author: RUARK, Presiding Judge.

text:
    In re Interest of G-. In re ADOPTION OF G-.
    Nos. 8360, 8379.
    Springfield Court of Appeals. Missouri.
    March 24, 1965.

      Henry Warten, Joplin, for appellant.
    George C. Baldridge, Joplin, for respondent.
   RUARK, Presiding Judge.

This is a contest between the mother and the paternal grandmother concerning the custody and adoption of male child G-, who it appears was six years of age at the time the proceedings were commenced. The child is one of four children. The mother with three of the children lived at A-, Kansas, a small town about fifty miles from Joplin, Missouri. The grandmother had actual or physical custody of G- and lived in Joplin. On April 9, 1963, the mother wrote the grandmother and informed her that she was coming over to Joplin to get her child and to please have his clothes ready. The grandmother went to the Juvenile officer in Jasper County and such Juvenile officer, on April 11, 1963, instituted what was designated as Case No. 5050 by filing a petition in Juvenile Court. This petition asserted that the mother resided in A-and the father “resided” in Jefferson City. It stated that the child is “now in the custody of --” (no name) ; that the child was abandoned by both mother and father in 1957, and that both parents signed relinquishment for the grandmother to adopt in 1957. On the same day (April 11, 1963), apparently without investigation, home study report, notice or hearing, an order was made making the child a temporary ward of the court and placing care and custody in the grandmother pending hearing. Both mother and grandmother employed attorneys, and arrangement was worked out by the attorneys whereby the child could visit his mother and sisters and brother pending hearing. On September 19, 1963, the mother filed a motion requesting the Juvenile Court to set aside its order of April 11 and to order custody in her, the natural mother. In support of such motion she alleged that when the child G-was born she and the father lived in Kansas City; that she, the mother, was compelled to work at the father’s insistence and by necessities of the family; that when G- was a newborn infant the grandmother and the father presented to the mother a printed form, already signed by the father; and, in response to the urgings and insistence of the father and grandmother, the mother signed it; that when it was signed the grandmother assured the mother she would return the child whenever the father ceased his wanderings, reformed, and secured gainful employment; that thereafter the mother sought to have the infant reunited with the family but was prevented by the father and grandmother; that finally the mother separated from the father; that thereafter the father was convicted of the crime of burglary and was at the time of filing of the petition in the penitentiary; that shortly thereafter the mother came to Joplin to get her son G-so as to reunite him with the family but was prevented by the proceedings instigated by the paternal grandmother; that the petitioner mother had at all times opposed the adoption of her son by the grandmother; that the consent to adopt purportedly given by the written instrument was not willingly or understandably given and she repudiated the same.

On November 15, 1963, the paternal grandmother instituted what was docketed as Case No. 6279 by filing a petition for adoption of her grandson. The petition stated that the father and mother consented in writing to such adoption and that they abandoned the child when he was four days old. Accompanying such petition was a printed form of consent to adoption. None of the blanks in the printed form are filled in, but it is purportedly signed by the father and mother and acknowledged before a notary public. We will refer to this more fully hereafter. The mother filed answer contesting the adoption. On February 18, 1964, the two cases were consolidated and hearing was commenced. On April 22, 1964, after hearings, the court sustained the petition of the grandmother and decreed the adoption in Case No. 6279. On the same day the mother’s petition for custody in Case No. 5050 was denied. The mother has appealed.

We first address ourselves to contentions of the appellant as to matters of record: One complaint is that the order placing custody in the paternal grandmother and the decree of adoption unto her were entered without investigation and report, since (it is contended) the decree of adoption was entered on April 22, 1964, whereas the written Home Study report filed by the Juvenile officer is dated April 24, 1964, and was not filed until April 28, 1964. As to this:

Adoption statutes are to be strictly construed against the deprivation of natural parents in regard to the parent and child relationship. Section 453.070, V.A.M.S. provides that no decree of adoption shall he entered, nor shall transfer of custody to the petitioner be ordered until a full investigation has been made and that the results of the investigation shall be embodied in a written report which shall be submitted to the court.

The requirement of such statute in respect to investigation and report is mandatory. See Sherrill v. Bigler, Mo.App., 276 S.W.2d 473. The object and purpose of such investigation and report is the protection of the child and the public by apprising the court of the circumstances prior to order or decree. A report presented after the decree of adoption has been entered obviously comes too late.

Other of appellant’s complaints deal with the appointment of guardian ad litem. It is contended that (a) whereas the principal hearing and presentation of evidence was on February 18, 1964 (and apparently some further hearing was held on February 27, 1964), the record shows that the guardian ad litem was appointed on April 22, 1964, the day adoption was decreed; and (b) the guardian ad litem so appointed was the attorney who had actively represented the petitioner grandmother throughout the proceedings.

Section 453.020, V.A.M.S. (Amended Laws of 1959, RSMo 1959, p. 3957) provides that the court should, in all cases where the person sought to be adopted is under the age of twenty-one years, appoint a guardian ad litem. See State v. Schilb, Mo.App., 285 S.W. 748(4). Such guardian ad litem should be appointed in time to permit proper representation of the minor’s interests. The general rule is that he should be appointed as soon as the minority becomes apparent. In an adoption case the minority should be apparent at the outset.

The appointment and service of a guardian ad litem is not a mere technical formality. The person so appointed is not a mere “figurehead.” It is his duty to protect the interests of the child. He should not waive or give up anything which affects the interest of his ward. In this case the decree recites that the court was well and fully advised in the premises and that “the guardian ad litem now appointed by the court recommends this adoption be made.”

In an adoption proceeding both the child and the state are interested parties. 2 C.J.S. Adoption of Children § 36, Note 59 PP.; see State ex rel. Earnest v. Meriwether, Mo., 270 S.W.2d 20, 22. And it is obvious that the appointment of an attorney representing a party who seeks to terminate the child’s physical and legal relationship with the parents is improper. The person so appointed should be in a position to represent the best interests of the child and to fairly advise the court. If he has an axe to grind in that he is employed to represent the petitioner for adoption, he should not be appointed. See Sargeant v. Rowsey, 89 Mo. 617, 1 S.W. 823, 824.

It is difficult, from this voluminous and rather confusing record, to ferret out and determine what and when things were done. The matters of the investigation and report, and of appointment of guardian ad litem, if found to be in accordance with appellant’s contentions, would call for reversal of the court’s judgments but would not necessarily terminate this legal tug-of-war between the mother and the paternal grandmother. It is for the best interest of the child that all questions be finally settled; therefore, we consider and rule upon the appellant’s principal contention that all the evidence shows that the child-parent relationship should not be terminated by adoption to the grandmother, and that the best interests of the child require that he be placed in the custody of his mother. This necessitates a more complete examination of the facts.

Appellant mother, who is a junior college graduate, and the child’s father were married (March 1954) in Nebraska, where their first child was born. Within the next three and one-half years they had moved to Joplin, Missouri, then to Berkeley, California, where a second child was born, then to Napa, California, back to Joplin again, and then to Kansas City, where the infant G- was born on November 13, 1957. After that they moved to Galena, Kansas (which is adjacent to Joplin), and there they lived when the fourth child was born. The family lived a rather pillar-to-post existence. This, it is evident, was due greatly to the irresponsibility and the inability, or lack of inclination, on the part of the father to hold a job. He had a “drinking problem.” He had frequent “brushes with the law.” There is mention of repeated lost jobs, of leaving one place of residence because of a “check.” There were frequent occasions during which the father would be gone from home for varying periods of time. The mother was required to work, even during pregnancies, in order to provide a living for the family. Finally, while they lived in Galena, there was a permanent separation, and after the mother was laid off work at the garment factory, she, with the three children then in her custody, moved to A-, which is in the vicinity of where her parents live. Her parents are farmers of excellent repute. They help the mother and her family by supplying meat, farm produce, and “gifts.” In October 1961, she was admitted to the rolls of Aid to Dependent Children and now receives one hundred sixty-five dollars per month, plus medical service. The case worker for ADC in her locality testified that in the event she secures custody of G-- she will receive an additional $30.35 on his account. She has now obtained a Kansas decree of divorce from her husband and was awarded care and custody of her children. She lives in a large rented house but because of difficulty in heating uses only four rooms and bath in cold weather. The two oldest children with her attend school in A-, and she stays home with the youngest (not yet of school age). She attends P.T.A., and she and the children attend church and Sunday school. A large number of witnesses — it would seem the women of A-almost en masse — give her a good reputation as to character, as to good housekeeping, and as to the way she keeps her home, and care and supervision of her children.

The paternal grandmother was at time of trial fifty years old. She is separated from her second husband (who is not the grandfather of G-), but there is no indication or intimation that her separation from either of her husbands was due to any fault of hers; and she bears a good reputation in the community where she lives. She is a good housekeeper; she obviously cares for her grandson and looks after him to the best of her ability. She is employed as a nurses’ aid at a local hospital, for which employment she receives one hundred sixty dollars per month. She works six days per week (her day off is irregular), and her working hours are from 2:30 to 11 P.M. Since she received physical custody of G-, she has moved her place of residence six times, but all of these places were in Jasper County. She is now, however, buying her present residence and is paying forty dollars per month on the purchase price. She also pays taxes of approximately twenty-three dollars per year. The residence consists of a living room, kitchen, bedroom, and bath.

The evidence indicates that she has retained a mother’s interest in her son (the father of G-) and his problems, and there has been some visiting with him and. presumably with her grandchildren. On one occasion she went to Kansas City to talk to him about a job opening for him at Neosho. After the separation of the mother and the father, the father lived with his mother, the petitioner, and had been so living there when he got involved in a. burglary for which he was later sentenced* After the father was arrested, but not sentenced, the petitioner grandmother, went to A-to see the mother. She says she went there to solicit the mother to take the children with her to see the father, who was then confined. The testimony of the mother, however, is to the effect that the grandmother’s purpose in that visit was to secure an alibi for the father. After the father was sentenced and this proceeding was started, the grandmother went to Medium Security Prison, where her son was then confined, in order to consult with him about it.

Now as to how the grandmother petitioner got physical custody of G-: The mother had been working; apparently the father was not working, at least not regularly. When she came from the hospital with the baby on the fourth day, the grandmother had come to Kansas City to take the child back to Joplin with her. The parties differ as to the understanding. The mother says the grandmother took the child because she, the mother, was not able to return to work immediately after confinement; but that she didn’t know the grandmother intended to take the child until she got home from the hospital with the baby and her husband announced he couldn’t support the child. Within two weeks the grandmother was back with a paper to have signed. The mother testified, “Well, I signed it because my husband didn’t want the child and he said he couldn’t support it, and I signed it not knowing what I was signing. They got me when I had come off work [evidently she had then returned to work] and I was tired anyway and despondent. I just went ahead and signed the paper.” She said she never read it and that she never went before a notary public. The petitioner grandmother, on the other hand, testified : “A. Well, he wrote me a letter after they left here and went to Kansas City.” (By her attorney) “She you mean.” “A. [The grandmother] V- [the mother] wrote me a letter which I have lost in the meantime, she wrote me a letter and asked me if I wanted this child when it was born, and if I did she would let me have it. And so the afternoon that she went to the hospital my son called me and told me, he said ‘Mama, would you come up and take care of the child while she was in the hospital.’ ” She went, and when the mother came home from the hospital she presented her with the child and his clothing. Two weeks later she went back to Kansas City with the printed form of consent to adoption and “he” hunted up a notary public, and he (the father) and mother went with her to a notary public and both signed the statement. Since then she has had physical custody except for two periods of visitation with his mother, brother, and sisters — one for two weeks and one for three days— which were arranged by the attorneys.

There is no question that there is considerable affection between the grandmother and the child. By trial time he was in school. He is a bright, intelligent boy. The way of life in regard to care of the child is that the grandmother arises in the morning and gets him off to school. Some days he comes home to lunch, and she fixes it. She goes on duty at the hospital at 2:30 in the afternoon. After school the boy goes to the home of an uncle (another son of the petitioner), eats the evening meal, and goes to bed. After the grandmother gets off work at 11 P.M., she goes to the uncle’s house, arouses the boy, takes him to her home, and puts him to bed again. Besides the forty dollars per month payments and taxes, which the grandmother is required to pay out of her one hundred sixty dollars per month salary, she also pays the uncle, whose family keep the boy from the time he is out of school until she returns from work at 11 P.M., the sum of ten dollars per month, which she says is to apply on the “rent.” She, likewise, has applied for ADC on account of this child but has been refused, no doubt because of uncertainty as to the right to custody.

There is a presumption that the natural parent is fit and qualified to have the custody of his or her child. And the right of the parent to such is not to be interfered with unless it clearly appears that such parent has forfeited his or her right and the best interests of the child will be served by allowing the adoption. Consent to adoption, like any other instrument, must be understandably given and free from legal fraud or duress. In adoption cases there is recognized a somewhat indefinite and shadowy border area which for want of better words can be called duress “by force of circumstances.”

We have gone into considerable detail in the evidence to show the whole circumstances surrounding the transfer of custody to the grandmother and the execution of the “consent” upon which respondent relies. It appears to us that both the mother and the grandmother are victims of circumstances over which neither of them has had much control. The primary responsibility for these circumstances rests upon him who is the father of the child and son of the petitioner.

We think all the evidence shows that the natural mother has struggled to make a home for the children and is now doing well in the rearing of the three children she has. The force of circumstances pried the infant G-away from her, and circumstances prevented her from recovering it until she was free of her husband and was receiving financial assistance.

While we respect the grandmother’s valiant efforts, we believe that the circumstances under which she lives and is required to work are not conducive to a normal home life for a child. She who is seeking to become the adoptive mother cannot be with him after school or share his evenings. During the period in which it is customary for families to be together, it is necessary that the boy be “farmed out” to another family.

Then, the grandmother has passed the half-century mark. As the child grows and his needs for supervision, counselling, discipline, and understanding increase, she also will be growing older. She will not be in the age group of the parents of his associates. While circumstances often require that grandparents once again assume the roles and problems of parents, it is often a burden to them and not ordinarily desirable. Mother Nature provides against the too-elderly parent by limiting the period in which women can bear children.

There is the added factor that the father, who has thus far assumed little responsibility, will soon be, or already has been at the time this is written, discharged from the penitentiary. If history repeats itself, he will again be back at the home of his hardworking and solicitous mother. Because the grandmother is required to be at work a considerable portion of the time, there is some question as to whether or not the principal custody, and influence, will be in the father.

Turning over the coin again: We think that it is desirable that a child, where there are brothers and sisters, be reared in the give-and-take atmosphere of the family, rather than be separated from them and reared as an only child. All things being equal, it is better that families be kept together (I- v. B-, Mo.App., 305 S.W.2d 713, 720). We have not overlooked the principle of “equitable estoppel” and “ties of affection” which inhibits the revocation of consent for adoption as against those who have taken a child in good faith with intention of adopting and have expended love, energy, and time in attempting to fulfil that end. If the grandmother regarded the paper, signed in blank and presented only after her son had gone to the penitentiary and the mother was insisting upon return of the child, as a sincere step in the actual adoption process, she waited a long time to act upon it. During a part of that interim period her son had lived with her in the same house. The families, at least some of the time, lived in the same vicinity, and there had been some visiting. At one time while the mother had a job in the garment factory at Galena, and after the birth of the last child, she, the grandmother, kept this (last) child for two weeks. She was familiar enough with the other grandchildren (the brother and sisters of G-) to describe them as “wonderful” and “as sweet as can be.” The evidence justifies the belief that, in keeping and caring for the infant here involved, she was doing so, not as an adoptive parent, or with any complete intention of becoming one, but as a helpful grandmother and mother, hopefully waiting for the time when her son would get on his feet and be able to meet the responsibilities of parenthood. (Compare Ex parte De Castro, 238 Mo.App., 1011, 190 S.W.2d 949). To be sure, there are ties of affection, but there are ties of love and affection between almost all grandparents and grandchildren. The restoration of a child to his mother and his brother and sisters should not destroy those ties. Nor do we see the terrific emotional wrench which sometimes occurs (and is therefore to be avoided if possible) when a child is torn from the arms of those he loves and is placed in the hands of strangers. As stated, the parties have lived a part of the time in the same vicinity, and they are not strangers. The evidence is that when the child visited his family on the two occasions arranged by the attorneys, the children played together happily. We think the adjustment can easily be made if neither the mother nor the grandmother allows herself to become so blinded by this unpleasantness that she permits prejudice to interfere with the welfare .of the children. Visitation on both sides should be invited and encouraged — and enjoyed.

Our view is that the petition for adoption should be denied and that the custody of the child should be remanded to the appellant, his mother. However, we have another complication: It is now nearing the end of another school term. We presume that G- is in school. We are in some doubt whether his welfare will be best promoted by transferring him from one school to another until the end of the school year, or whether the present circumstances require the immediate transfer of custody.

Accordingly, it is our judgment that the adoption prayed in our case No. 8379 be denied and the judgment reversed outright. That the judgment in the custody case (our case No. 8360) be remanded for further proceedings and orders not inconsistent with this opinion.

STONE and HOGAN, JJ., concur.

      . In the Mayernik, Mo., 292 S.W.2d 562 (3); In re Slaughter, Mo.App., 290 S.W.2d 408, 411; In re Adoption of J. M. K., Mo.App., 363 S.W.2d 67(6).

      . Morgan v. Morgan, Mo.App., 289 S.W.2d 151, 152; Weiler v. Weiler, Mo.App., 331 S.W.2d 165, 167; State ex rel. and to Use of Marlowe v. Nolan, Mo., 146 S.W.2d 598, 601.

      . Tracy v. Martin, 363 Mo. 108, 249 S.W.2d 321; M. F. A. Mutual Ins. Co. v. Alexander, Mo.App., 361 S.W.2d 171, 181; Kennard v. Wiggins, 349 Mo. 283, 160 S.W.2d 706, cert. den. 317 U.S. 652, 63 S.Ct. 47, 87 L.Ed. 524.

      . 2 C.J.S. Adoption of Children § 21, pp. 383, 384; Cox v. Carapella, Mo.App., 246 S.W.2d 513; Morris v. McGregor, Mo.App., 269 S.W.2d 171.

      . In re Cole, Mo.App., 274 S.W.2d 601; I- v. B-, Mo.App., 305 S.W.2d 713, 719; In re J.- L.- H.— , Mo.App., 373 S.W.2d 635; In re Slaughter, Mo.App., 290 S.W.2d 408(6); In re Perkins, 234 Mo.App. 716, 117 S.W.2d 686, 691.

      . Adoption of McKinzie, Mo.App., 275 S.W.2d 365, 372; Adoption of J. M. K., Mo.App., 363 S.W.2d 67, 74; see In re Watson’s Adoption, 238 Mo.App. 1104, 195 S.W.2d 331, 336.


source: Caselaw Access Project

license: Public Domain

text:
    WINTHROP SALES CORPORATION, a corporation, Plaintiff-Appellant, v. Arnold D. SHELTON et al., Defendant-Respondent.
    No. 8384.
    Springfield Court of Appeals. Missouri.
    March 29, 1965.

      J. Roger Buck, Kansas City, for plaintiff-appellant.
    Robert P. Warden, Richart, Titus & Martin, Joplin, for defendant-respondent.
   RUARK, Presiding Judge.

This is an appeal by plaintiff Winthrop Sales from an order quashing an execution which had been issued against defendant Shelton.

On January 22, 1962, plaintiff filed suit against defendants Shelton and Greenwell. The petition alleged in substance that plaintiff leased from defendants certain designated space in defendants’ men’s wear store in Joplin, Missouri, for a definite period. The written lease was attached to and made a part of the petition. Under the provisions of such lease, plaintiff installed a stock of shoes with fixtures and equipment in the space so leased. Title to the merchandise was to remain in the plaintiff until sold, but defendants were to sell the same in the course of business. All funds received from such sales were to be held in trust for plaintiff and not commingled with defendants’ funds, hut instead were to be deposited daily in a separate special bank account in a designated bank. Defendants were to make regular written reports and monthly remittance to the plaintiff. As payment for rental and for services in selling the merchandise, defendants were to receive eighteen per cent of the net sales. The agreement provided that in the event of insolvency or bankruptcy all funds so held in trust were to be paid over immediately to the plaintiff, and not paid over to or listed as defendants’ assets with any receiver, trustee, assignee, or other person. The petition then charged that it did install the stock of merchandise, equipment, and fixtures, but that defendants failed to hold the funds received from sale in trust, but instead did wrongfully and illegally convert such to their own use and did wrongfully and illegally convert to their own use and dispose of the stock of merchandise, furniture and fixtures (the items were listed) of a total value of $3,166.72, for which it prayed judgment.

On February 5, 1962, defendants filed separate motions to dismiss. Defendant Shelton’s motion was based on the general ground that the petition failed to state a cause of action or grounds upon which the court could grant relief.

On June 22, 1962, defendant Shelton filed petition in bankruptcy and was adjudged a bankrupt.

On July 8, 1963, the motions were overruled and defendants were granted twenty days to plead. Defendant Greenwell filed answer (a general denial), but no further pleadings were filed on behalf of defendant (now respondent) Shelton.

On August 5, 1963, Shelton received his discharge in bankruptcy.

On October 11, 1963, judgment by default was rendered against Shelton. On May 25, 1964, execution was issued.

On June 5, 1964, Shelton filed motion to quash the execution, alleging (for the first time, as far as the record shows) that he had been adjudged a bankrupt and had subsequently received his discharge, and that plaintiff had been listed as a creditor in the bankruptcy petition and had received notice thereof.

On June 11, 1964, hearing was held on such motion to quash and, over plaintiff’s objection, testimony of judgment debtor Shelton was received. He testified in substance that he understood the arrangement he had with plaintiff was that the merchandise remained the property of the plaintiff and that he, Shelton, was selling the shoes as a representative — that the arrangement was “similar to a consignment.” He began to have trouble with his creditors and was being pressed by them. He had approximately one thousand dollars which had been derived from the sale of the shoes (whether from sale in ordinary course of business or in bulk is not clear), but he did not deposit such money in the special bank account as provided in the agreement, nor did he remit it to the plaintiff. Instead, such money was put into his own bank account. Finally, he said, in an effort to make composition with his creditors, he sold the whole business (apparently for six thousand dollars) and turned the proceeds to a third person, who was attempting to arrange the composition. This failing, he filed petition in bankruptcy. His evidence does not make clear whether or not the remaining stock of merchandise and the fixtures and equipment were included in the six thousand dollar sale or what happened to them.

He further stated that while he had legal advice concerning plaintiff’s suit, he did not authorize any attorney to file the motion to dismiss.

Appellant’s first contention is that Shelton had waived any defense in respect to bankruptcy which might have originally been available to him by failing to assert it.

A discharge in bankruptcy does not discharge or extinguish a debt which the bankrupt owes; it is simply a bar to enforcement of liability, a purely personal defense of which the debtor may avail himself, or waive, as he so wishes. If he chooses to avail himself of it as a defense, he should plead and prove it. 8 Remington on Bankruptcy, § 3225, p. 47; 9 Am.Jur. 2d, § 750, p. 560; Chitwood v. Jones, Mo.App., 56 S.W.2d 147; Crandall v. Durham, Mo.App., 141 S.W.2d 148; 348 Mo. 240, 152 S.W.2d 1044; In re Innis (7th Cir.) 140 F.2d 479.

In Missouri, as in other jurisdictions, if the defense of bankruptcy is then available to the defendant, it is an affirmative defense; and, if he fails to plead it, he loses it. Civil Rule 55.10, V.A.M.R.; Sec. 509.090 V.A.M.S.; 8B CJ.S. Bankruptcy § 584, p. 138 et seq.; 8 Remington on Bankruptcy, § 3240, p. 70; Bank of Missouri v. Franciscus, 15 Mo. 303 (213); Helms v. Holmes (4th Cir.) 129 F.2d 263, 141 A.L.R. 1367; see Standley v. Western Auto Supply Co., Mo.App., 319 S.W.2d 924, 929.

The requirement that an affirmative defense be pleaded is not a mere technicality. It is necessary to the fair and orderly administration of justice. White v. Wilks, Mo., 357 S.W.2d 908, 913. Whether the judgment be referred to as res judicata, or whether the result be termed simply “estoppel by judgment,” or waiver, the failure to tender an issue which is available prior to rendition of the judgment precludes its being raised thereafter in a proceeding between the same parties involving the same thing. Reis v. LaPresto, Mo., 324 S.W.2d 648; Abeles v. Wurdack, Mo., 285 S.W.2d 544; Kansas City to Use of Missouri Pac. R. Co. v. Southern Surety Co., Mo.App., 51 S.W.2d 221; see cases West’s Missouri Digest, Judgment, <®~>713(2). And, in the absence of legal excuse for failure to so plead, or irregularity in the proceedings, or some reason which appeals to the conscience of a court of equity, the rule applies to default judgments. 50 C.J.S. Judgments § 650, p. 92; 128 A.L.R. 472, 483, 77 A.L.R.2d 1414; 8B C.J.S. Bankruptcy § 584, p. 140, Notes 11 et seq.; Helms v. Holmes (5th Cir.) 129 F.2d 263; Tune v. Vaughan, 170 Ark. 971, 281 S.W. 906; Bank of Missouri v. Franciscus, supra, 15 Mo. 303.

In this case the defendant was in court. The judgment was not taken until October 11, 1963. He had from June 22, 1962, the day he was adjudged a bankrupt, to at least suggest the bankruptcy proceedings and request a stay. [See In re Innis (7th Cir.) 140 F.2d 479]. And he had from August 5, 1963, the day he received his discharge, until October 11, to plead his discharge. Yet he remained in default. The defendant did not assert fraud, mistake, irregularity, or any reason (other than the fact of bankruptcy) why the judgment and execution were not valid and operative. We are of the opinion that he is bound by the judgment. This being so, it is unnecessary to consider appellant’s further contentions in regard to whether the debt was excepted under the provisions of the Bankruptcy Act. The judgment is reversed and the execution is reinstated.

STONE and HOGÁN, JJ., concur.

      . But see Gore v. Gorman’s Incorporated (W.D.Mo.) 143 F.Supp. 9, 12.

      . See Personal Industrial Loan Corp. v. Forgay (10th Cir.) 240 F.2d 18; and dissent in Helms v. Holmes, supra, 129 F.2d 263.


author: STEWART, Judge.

text:
    Ruby HARROD, Administratrix of the Estate of Walter Coy Harrod, Appellant, v. MERIDIAN MUTUAL INSURANCE COMPANY, Appellee.
    Court of Appeals of Kentucky.
    Dec. 18, 1964.
    Rehearing Denied April 16, 1965.

      Ephraim K. Lawrence, Jr., Chris Duvall, Louisville, for appellant.
    J. Walter Clements, Louisville, for ap-pellee.
   STEWART, Judge.

The question to be resolved in this appeal is whether the insurer, under the facts presented, was guilty of bad faith in not settling a claim against its insured and thereby became liable for the amount of a judgment in excess of the limits of a policy issued by it.

On August 30, 1960, in Shelby County a collision occurred between the automobiles of Charles M. Drury and Walter Coy Har-rod. Both persons were killed in this accident. Drury at that time had an automobile liability insurance policy with appellee, Meridian Mutual Insurance Company, herein referred to as “Meridian,” with coverage of $10,000 for one person.

On August 31, 1960, by telephone, followed up by letter of September 6, 1960, Meridian turned the case over to Crawford & Company, who are independent adjusters in Louisville, for investigation and a report. On September 14, 1960, appellant, Ruby Harrod, qualified as administratrix of the estate of her deceased husband. Her counsel then was and now is Ephraim K. Lawrence, Jr., of Louisville.

On October 26, 1960, Lawrence sent out two identical registered letters, one to Meridian’s office at Louisville, and the other to Crawford & Company, stating that:

“ * * * We are willing to settle the case of the wrongful death of Mr. Harrod for the sum of $9,999.00. We are leaving this matter open for a period of ten (10) days for your answer, and we must hear from you no later than Saturday, November 5, 1960, or we will consider our offer of settlement refused.”

The letter was received at the home office of Meridian at Indianapolis, Indiana, on October 28, 1960, and Meridian’s district claims manager, J. T. Lettelleir, called Crawford & Company on the telephone and authorized the payment, if there could be no further saving. For some unexplained reason, however, Crawford & Company did not contact Lawrence within the named ten-day period. On November 12, 1960, Lawrence filed suit in Shelby County against the Charles M. Drury estate for $288,070.

On November 22, 1960, eighty-two days after the accident, Crawford & Company, upon the instruction of Lettelleir, offered the limit of $10,000 under the policy, both verbally and in writing. This was tendered as an open, continuing offer, and it was agreed between Lawrence and Berry Lang-ford of Crawford & Company that no responsive pleading would have to be filed in the pending suit in Shelby County until a reasonable time after Lawrence had either accepted or rejected the offer.

On November 26, 1960, Lawrence wrote to Langford rejecting the offer of settlement for the amount of the policy coverage. On December 2, 1960, when counsel for Meridian was employed, he renewed and confirmed, verbally and in writing, to Lawrence the open, continuing $10,000 offer for the death claim. On January 3, 1961, the suit in Shelby County was dismissed because it had been brought prematurely against the Drury estate. On February 9, 1961, a second and timely suit was filed against this estate in the same county for $228,070.

On March 2, 1961, Meridian filed answer, offering to confess judgment in the case for the sum of $10,000, tendering into court its check, pursuant to such offer. This check was later withdrawn and the $10,000 was applied in satisfaction pro tanto the judgment recovered by appellant against the Drury estate.

On October 19, 1961, the trial of the second suit in Shelby County resulted in a judgment for appellant against the Drury estate for $71,070.

On March 13, 1962, Susan B. Drury, as executrix of the Drury estate, assigned and transferred to Ruby Harrod, administratrix of the Harrod estate “any and all claims” she had against Meridian “arising out of any bad faith or negligence, or both,” exercised by Meridian, or its agents, in their negotiations with Ruby Harrod, or her attorneys, “on the claim for wrongful death of Walter Coy Harrod.”

On March 14, 1962, appellant in the capacity of assignee filed suit against Meridian to recover $61,070, apparently on the theory that Meridian was guilty of a lack of good faith in not settling the death claim for $9,999, pursuant to the offer made in Lawrence’s letter of October 26, 1960. On February 8, 1963, the trial court sustained Meridian’s motion for summary judgment. This appeal followed.

Much law has been written about the duty of a liability insurer to settle or compromise a claim made against its insured. There are two lines of authority in cases where liability has been imposed in excess of the policy limits. A minority of the courts hold that negligence is the test. The majority, of which Kentucky is one, apply the “good faith” principle, whereby an insurer only becomes liable in excess of the policy limits when it acts in bad faith. See American Surety Company of New York v. J. F. Schneider & Son, Ky., 307 S.W.2d 192; Georgia Casualty Co. v. Mann, 242 Ky. 447, 46 S.W.2d 777.

To support a recovery it was incumbent upon appellant to allege and prove that Meridian’s conduct was of such an arbitrary and reprehensible nature as to constitute bad faith. In the case of Spiegel v. Beacon Participations, Inc., 297 Mass. 398, 416, 8 N.E.2d 895, 907, it was said:

“ ‘Bad faith’ is a general and somewhat indefinite term. It has no constricted meaning. It cannot be defined with exactness. It is not simply bad judgment. It is not merely negligence.
It imports a dishonest purpose of some moral obliquity. It implies conscious doing of wrong. It means a breach of a known duty through some motive of interest or ill will. It partakes of the nature of fraud. * * * It means ‘with actual intent to mislead or deceive another.’ * * * ”

See also Slater v. Motorists Mutual Insurance Company, 174 Ohio St. 148, 187 N.E.2d 45; Johnson v. Hardware Mutual Casualty Co., 108 Vt. 269, 286, 187 A. 788, 796.

We believe the conduct of Meridan was at worst no more than a failure to settle through error, or mistake, or inaction within the ten-day ultimatum period mentioned. Never at any time, in our opinion, was there a conscious, deliberate refusal to settle. On the other hand, from the very time the full amount of the policy coverage was offered, the offer was made a continuing one. The offer appears to have been rejected solely on the ground that this amount had not been tendered within the time period prescribed by appellant’s counsel.

We are unable to find in Meridian’s conduct a “conscious doing of wrong,” or “a breach of a known duty through some motive of interest or ill will, or anything that “partakes of the nature of fraud.”

Appellant argues that the issue of bad faith raised a factual question that should have been presented to the jury for determination. Neither Georgia Casualty Company v. Mann, supra, nor American Surety Company of New York v. J. F. Schneider & Son, supra, was held to be a jury case, because in each the trial court was able to decide as a matter of law there was no bad faith. We believe the rule that should be applied in a case such as the one before us is well stated in Tennessee Farmers Mutual Insurance Company v. Wood, 277 F.2d 21 (CA 6):

“If the proof, in the light of all of the relevant circumstances, and infer-enees to be drawn therefrom is such as to leave a reasonable basis for disagreement among reasonable minds, the question of good faith of the insurer in the handling of the claim and conducting compromise negotiations is for the jury.”

In the light of the facts recited, we are of the opinion that the trial court correctly held as a matter of law that the case at bar raised no issue of bad faith upon the part of Meridian. As there could have been no recovery in this case upon the part of the insured, there can be none upon the part of the assignee, who stands in the same shoes.

We do not pass on the question of whether the type of claim here involved is assignable.

Wherefore, the judgment is affirmed.


author: J. L. HAYS, Special Commissioner.

text:
    Frank H. BROWN et al., Appellants, v. Lucy D. SAUNDERS et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 29, 1965.
    Rehearing Denied April 30, 1965.
    Val A. House, Jr., Scottsville, for appellants.
    Coleman, Harlin & Orendorf, Jo T. Oren-dorf, Bowling Green, for appellees.
   J. L. HAYS, Special Commissioner.

This appeal involves the settlement of the estate of Fannie Brown and the proper distribution of the proceeds thereof. She died, intestate, July 26, 1961, without husband or issue. She left a considerable estate, both real and personal. The real estate has been sold under proper orders of the court and the funds are now in the hands of the administrator for proper distribution.

Surviving her were no children or their descendants; no father or mother; no brothers or sisters or their descendants; no husband, no grandfather or grandmother; no great-grandfathers or great-grandmothers; no maternal uncles or aunts or descendants of maternal uncles or aunts, except the appellee, Lucy D. Saunders, who is the only child and descendant of Rory O. Mulligan, a maternal half blood uncle of the deceased Fannie Brown.

On the paternal side William A. Brown, the grandfather of Fannie Brown, deceased, had eight brothers and sisters and her grandmother, Sarah Alexander Brown, had eleven brothers and sisters, and most of these great-aunts and great-uncles left descendants, among them the appellants.

Thus it will be observed that Fannie Brown left no descendants to heir her estate and no ascendant heirs above or below the cousin level.

It is admitted, and shown by the record, that the appellee, Lucy D. Saunders, is a half blood cousin on the maternal side and sole and only heir on that side; that the appellants are full blood cousins on the paternal side and entitled to inherit as such.

Appellants contend that the appellee, being a cousin of the half blood on the maternal side, is entitled to only one-half the amount allotted the appellants, who are cousins of the whole blood on the paternal side. Therefore, they as cousins of the whole blood on the paternal side should be allotted three-fourths of the estate to be divided among them, and only one-fourth allotted to appellee as the sole and only heir on the maternal side. The appellee contends, however, that after the estate is divided into moieties, as provided in KRS 391.010, the half blood statute, as set out in KRS 391.050, only applies within the moieties.

The trial court held that the appellee, Lucy D. Saunders, as the sole and only heir on the maternal side, even though of half blood, was entitled to one-half of the estate and that appellants, even though of full blood on the paternal side, were entitled to the other half, to be distributed among them according to their interest. Thus this appeal.

Therefore, the question presented is whether the only maternal heir of a decedent, a half blood cousin, takes only half the share she would take if she were a whole blood cousin under the statutes involved and under the facts presented in this case.

It is evident that a correct determination of the question presented depends on a proper interpretation of the two statutory sections involved, being KRS 391.010 and KRS 391.050, which are as follows:

KRS 391.010
“When a person having right or title to any real estate of inheritance dies intestate as to such estate, it shall descend in common to his kindred, male and female, in the following order, except as otherwise provided in this chapter:
“(1) To his children and their descendants; if there are none, then
“(2) To his father and mother, if both are living, one moiety each; but, if the father is dead, the mother, if living, shall take the whole estate; if the mother is dead, the whole estate shall pass to the father; if there is no father or mother, then
“(3) To his brothers and sisters and their descendants; if there are none, then
“(4) To the husband or wife of the intestate; if there are none surviving, then
“(5) One moiety of the estate shall pass to the paternal and the other to the maternal kindred, in the following order:
“(a) The grandfather and grandmother equally, if both are living; but if one is dead, the entire moiety shall go to the survivor; if there is no grandfather or grandmother, then
“(b) To the uncles and aunts and their descendants; if there are none, then
“(c) To the great-grandfathers and great-grandmothers, in the same manner prescribed for the grandfather and grandmother by subsection (a); if there are none, then
“(d) To the brothers and sisters of the grandfathers and grandmothers and their descendants; * * * ”
KRS 391.050
“Collaterals of the halfblood shall inherit only half as much as those of the wholeblood, or as ascending kindred, when they take with either.”

While there have been no recent applications of the half blood statute, the question involved in this case is not novel in Kentucky. This Court, in 1821, had before it the case of Pinkard v. Smith, 16 Ky. (6 Litt.) 331, which involved the interpretation of a statute similar to the one here involved:

“ * * * the statute expressly declares that in passing to the collateral kindred, the inheritance shall be divided in two moieties, one of which shall go to the paternal and the other to the maternal kindred; and that clause in the statute, which restricts the portion of the half blood to half as much as that of the whole blood must be understood to apply to the half blood on the part of the same ancestor, and should not be construed to invest the collateral kindred of the whole blood of either ancestor, with any part of the moiety which is directed to pass to the kindred of the other.”

In the case of Berg v. Berg’s Adm’r, 105 Ky. 80, 48 S.W. 432, the Court, in construing the statute in effect at the time, and which was the same as section 391.050 of our present statute, held that it regarded the individuals of the two classes, and not the classes collectively, in making the apportionment between the collaterals of the whole and those of the half blood. Likewise, in the case of Nixon’s Heirs v. Nixon’s Adm’r, 38 Ky. (8 Dana) 5, it was held that the words, “those of the half blood” and “those of the whole blood”, meant the individuals of the two classes, and not the classes collectively.

It is admitted in this case that there are no heirs involved above or below the cousin level. Therefore, there were no heirs to inherit under any of the first four sections of KRS 391.010 at which point, as provided in section (5) thereof, the estate was directed to be divided into moieties, one part to the paternal and the other to the maternal kindred. This being done, there are no grandfathers or grandmothers, as provided in section (a); nor are there any uncles or aunts as provided in section (b); but there are the descendants of the uncles and aunts, who are the parties to this action. It is our opinion that when the estate is divided into moieties section (5) intends that one-half of the estate shall pass to the paternal and the other half to the maternal heirs as a class. Therefore, the appellee, being the only heir on the maternal side, even though a half blood kinsman, is entitled to one-half of the estate as adjudged by the lower court.

We find no error in the judgment of the trial court and we recommend that it be affirmed.

The opinion is approved by the Court and the judgment is affirmed.


author: CLAUDE WILLIAMS, Justice.

text:
    Billy B. WILLIAMS, Appellant, v. Roscoe S. BERRY et al., Appellees.
    No. 16474.
    Court of Civil Appeals of Texas. Dallas.
    March 19, 1965.
    Rehearing Denied April 9, 1965.

      Matthews & Matthews, and John D. Gilli-land, Dallas, for appellant.
    Touchstone, Bernays & Johnston, and Wade C. Smith, Dallas, for appellees.
   CLAUDE WILLIAMS, Justice.

Billy B. Williams appeals from a “take nothing” judgment based on a jury verdict in a suit for personal injuries to his wife, Rosemary Williams, growing out of an automobile collision which occurred on March 20, 1962 in the City of Dallas, Texas. Appellant alleged that his automobile, being driven by his wife, had been negligently struck from the rear by a pickup truck owned by Berry Brothers Machinery Company and being driven by their agent, servant and employee, William Arthur Wright. Appellees responded by pleading various acts of contributory negligence against Mrs. Williams and also pleading that the collision was the result of an unavoidable accident.

In answer to special issues submitted to them the jury found that Wright, the driver of appellees’ pickup truck, did not fail to keep a proper lookout; that he was not following the Ford Falcon station wagon driven by Rosemary Williams more closely than a reasonably prudent man would have done under the same or similar circumstances ; that he did not fail to timely apply the brakes on the pickup truck; that he was not operating the pickup truck at a greater rate of speed than that which a reasonably prudent man would have driven the same under the same or similar circumstances; that he did not fail to sufficiently turn the pickup truck to the right in order to avoid the collision. The jury also found that Mrs. Rosemary Williams did not fail to keep a proper lookout; that she did not stop the vehicle which she was operating suddenly; that she did drive her Falcon station wagon into the path of the Chevrolet pickup truck driven by Wright, but that such act was not negligence. The jury found that the collision was the result of an unavoidable accident. It was also found that reasonable medical and hospital bills was the sum of $495.20 and that reasonable compensation for Mrs. Williams’ pain and suffering was $1,500.

Seeking to reverse the judgment, appellant presents thirty points of error. In his brief appellant compresses these points into three main groups: (1) that the jury’s answers to the various issues relating to acts of negligence are not supported by sufficient evidence and are so contrary to the great weight and preponderance of the evidence as to be manifestly wrong and unjust; (2) that there is no evidence of any probative value to support the jury’s answers to the various issues of negligence; and (3) (a) there is no evidence, or insufficient evidence, to support the jury’s answers to the damage issues, and (b) that the jury was guilty of numerous acts of material misconduct which resulted in an unfair verdict and harm to appellant. Following a careful study of all of appellant’s points we find the same to be lacking in merit and overrule them.

Appellant’s “no evidence” points of error present a question of law, that is, whether the evidence in this record, as a matter of law, requirés a conclusion contrary to the verdict of the jury. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114. In reviewing these points we are governed by the rule that if there is any evidence of probative force to support the jury finding, such finding is conclusive and binding on us. A review of the record in this case demonstrates that there is, indeed, evidence of probative force to support the jury’s answer to each question submitted to and answered by them. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

Our consideration of appellant’s points wherein he challenges the answers of the jury to the liability issues as being without support in the evidence or “contrary to the great weight and preponderance of the evidence” presents a question of fact, as opposed to one of law, and requires us to resolve such question of fact by weighing all of the evidence in the case, including the evidence which supports the verdict and also the evidence which is contrary to it. In re King’s Estate, supra.

In compliance with this rule we have examined and weighed all of the evidence presented, consisting of 624 pages of testimony, a full volume of exhibits, and 42 pages of testimony given on hearing of motion for new trial. We deem it essential to briefly summarize the essential portions of the testimony which reflect light upon the issues in question.

The scene of the accident was the intersection of Cadiz and Pearl Streets in the City of Dallas, Texas. At this point Cadiz Street runs generally East and West and is designated as a “one-way” street for traffic traveling East. Pearl Street runs generally North and South. Cadiz Street is divided into four lanes of traffic, marked with white lines in the street. Traffic control signal lights are located on each corner of the intersection. In the block of Cadiz Street west of Pearl there are situated a number of wholesale produce concerns and the testimony reveals that large trucks habitually park in angular positions on each side of Cadiz Street in front of these produce houses, such parking being done in such a manner as to block at least two lanes of traffic on Cadiz Street. The accident occurred in the morning hours of March 20, 1962. At that time appellant’s wife, Rosemary Williams, driving a 1960 Ford Falcon station wagon, and being accompanied by Rose Marie Red-ding, was proceeding in an easterly direction on Cadiz Street when she was struck from the rear by a 1957 Chevrolet pickup truck owned by Berry Brothers and operated by appellee William Arthur Wright, an employee of Berry Brothers, who was at that time acting within the scope and course of his employment for such concern. At the time of the accident no rain was falling but rain which had previously fallen had caused the pavement to be wet or damp. The facts relating to the events which transpired immediately prior to the collision are in sharp conflict.

Mrs. Rosemary Williams testified, both by deposition and in person, that she was proceeding in an easterly direction on Cadiz Street and that she drove up to the intersection with Pearl Street and came to a stop for a red light; that she had been stopped approximately five seconds before the collision occurred. She did not see the pickup truck prior to the collision. She denied that she had passed the pickup truck immediately before she came to a stop at the red light. She said that following the collision Wright told her that the reason he struck her was that his brakes went out. She testified that there was only one lane of traffic available on Cadiz Street due to the parked trucks on either side of the street. Mrs. Redding, a passenger in Mrs. Williams’ automobile testified to the same state of facts as related by Mrs. Williams. Herman Coleman, a witness for appellant, testified that he was an employee of one of the produce companies at the location of the accident and that at the time of the collision he was standing facing Cadiz Street approximately 20 to 25 feet west of the intersection of Pearl and Cadiz, on the south side of Cadiz Street. He testified that the two outside lanes, on the north and south sides of Cadiz Street, were materially blocked by trucks which had backed into the produce companies on either side of the street. He said that he saw the Falcon automobile drive up to the red light and come to a stop and was there from three to five seconds when the Chevrolet pickup truck collided with the rear of the Falcon. He did not see the pickup truck before the collision. He said that there was no room in the street for Mrs. Williams to have passed the pickup truck before the collision. Police Officer Charles L. Palmer investigated the accident after it happened. He testified that the only way he could determine the point of impact between the automobiles was by having the same pointed out to him by both Mr. Wright and Mrs. Williams; that they both indicated that the point of impact was approximately in the center of Cadiz Street and about 20 feet west of Pearl Street. He said that Wright told him that the reason he struck the Falcon was that he could not stop it in time. He said that Wright made no statement to him concerning the fact that the Falcon cut suddenly in front of him and stopped. He also testified that the outer lanes of Cadiz Street were blocked by trucks parked at the produce houses.

Appellee William Arthur Wright, a colored man forty-six years of age, with an eighth grade education, and who had worked for Sherman Berry and Roscoe Berry for eighteen years, testified that he was driving the pickup truck, pulling a compressor, and going East on Cadiz Street. He said he was traveling between five and ten miles per hour and saw the light at Pearl Street change to “Caution” whereupon he began the application of his brakes. At this point, he saw the Ford Falcon station wagon pass him on his left and the station wagon stopped suddenly in front of him. He said that he applied his brakes but due to the wet pavement his automobile slid into the Falcon. He said his left front collided with the right rear of the station wagon but did not cause a very hard impact. He estimated that he was going between two and three miles per hour when the accident occurred. He identified Defendants’ Exhibit 3, being a photograph of Cadiz Street looking East towards the intersection where the collision occurred. This photograph demonstrates clearly that Cadiz Street consists of four well-marked lanes of traffic and that appfoximately two lanes of this traffic are blocked by the trucks parked on either side, leaving a space equivalent to approximately two lanes of traffic for vehicles to travel. It is also undisputed that for a distance of some 20 to 30 feet west of Pearl no trucks or vehicles are allowed to be parked, thereby leaving all four lanes open for that distance.

The only physical damage to the pickup truck driven by Wright was the breaking of a parking lens which cost $1.75 to repair. A picture of the Falcon station wagon was introduced in evidence and reveals the only damage to be a very slight dent on the right rear portion thereof which had not been repaired.

From this evidence appellant argues forcefully that appellee Wright tells an incredibly impossible story concerning the Falcon station wagon passing him on his left immediately prior to the collision and therefore we must say, as a matter of fact, that the verdict based upon such testimony must be set aside. The sine qua non of appellant’s argument is the physical impossibility of the happening of the accident as related by appellee Wright. While it is true that a reading of this testimony from the cold pages of the statement of facts might cause us to believe that, had we been sitting on the jury in this case, we would have rendered a different verdict. This, however, is not the test to be applied, since we are not authorized to substitute our findings of fact for those of the jury. 4 Tex.Jur.2d § 832; King v. City of Dallas, Tex.Civ.App., 374 S.W.2d 707. Appellate review of such questions is a difficult task but in arriving at a solution thereof we are governed by the well established rule of law in Texas that where the evidence is conflicting, a reviewing court will not disturb the jury’s verdict if there is evidence of probative value to support them unless the evidence is so overwhelmingly against the verdict or findings of the jury as to shock the conscience of the appellate court or to demonstrate clearly that the conclusion reached by the jury was manifestly unjust or was the result of passion, prejudice or improper motive. 4 Tex.Jur.2d, § 837, and cases therein cited.

Having carefully and conscientiously studied the entire record in this case within the purview of the rules of law announced above we find ourselves unable to agree with appellant that the verdict of the jury in this case is so contrary to the overwhelming weight of the testimony as to fall within the rule above recited. The record reveals that the case was tried for seven days during which time all of the facts and circumstances were presented to a jury which had the full and complete opportunity to see and observe all of the witnesses and to inspect the physical evidence introduced. The jury, as in every intersection collision case, heard conflicting evidence, resolved such conflicts, and evaluated the credibility of the various witnesses. Based upon all the evidence, both direct and circumstantial, they elected to believe Wright and disbelieve the other witnesses. There is nothing in the record to demonstrate that the jury was guilty of bias or prejudice against appellant and his wife. The jury found that neither party to the accident was guilty of negligence proxi-fnately causing the collision in question, but that the same was the result of an unavoidable accident. This finding is amply supportable by the wet and slippery condition of the street on the occasion in question. Nor can we agree with appellant’s contention that the story of appellee Wright was either incredible or impossible. Defendants’ Exhibit 3, being the photograph of the scene of the accident, clearly demonstrates that it was indeed possible for the Williams car to have been driven past the pickup truck within the space in the street between the parked trucks.

In his final group of points appellant first contends that the answers of the jury to the damage issues are contrary to the great weight and preponderance of the evidence and therefore grossly and manifestly inadequate. While it is true that appellant introduced testimony relating to hospital bills, doctor bills and other medical expenses amounting to a total of in excess of $5,000, and the jury found that the sum of $495.20 was the reasonable amount of such expenses, such finding may not be disturbed by us for the simple reason that the record is replete with conflicting testimony as to the injuries sustained by Rosemary Williams in this accident. The medical testimony is conflicting as to her disability and the jury was entirely justified in deciding that appellant was not entitled to recover the full amount sought. Moreover, in any event, since the jury found no liability to exist against appellees, the damage issue becomes immaterial. Shiflett v. Bennett Printing Co., Tex.Civ.App., 330 S.W.2d 220; Martin v. Jenkins, Tex.Civ.App., 381 S.W.2d 115; L. B. Foster Steel Co. v. Moorhead, Tex.Civ.App., 382 S.W.2d 280.

In the second part of appellant’s final group of points he argues that jury misconduct occurred which requires reversal of the judgment. This contention must be overruled for several reasons. In the first place the trial court heard testimony relating to jury misconduct and, following such hearing, rendered findings of fact and conclusions of law contrary to appellant’s position. We have examined the evidence and find that the court’s findings and conclusions are amply supported by the evidence and therefore may not be disturbed by us. Dallas Transit Co. v. Newman, Tex.Civ.App., 380 S.W.2d 818. Appellant frankly concedes that none of the acts that he contends to be jury misconduct would constitute such misconduct which would be calculated to cause, and in all probability did cause, the rendering of an unjust verdict. He seeks to say, however, that the combined effect of all of the alleged acts of jury' misconduct constitute error. We have given careful consideration to this contention and, finding the same to be without merit, it is overruled.

The judgment of the trial court is affirmed.

Affirmed.


author: WILSON, Justice.

text:
    Mrs. Willie King COOK, Independent Executrix of the Estate of Mary E. Hunter, Deceased, Appellant, v. Janies HUNTER, Administrator of the Estate of W. Q. Hunter, Deceased, Appellee.
    No. 4358.
    Court of Civil Appeals of Texas. Waco.
    March 11, 1965.
    Rehearing Denied April 1, 1965.
    Robert W. Hainsworth, Houston, for appellant.
    Herman W. Mead, Houston, for appellee.
   WILSON, Justice.

Appellant as independent executor of the deceased wife’s estate sought a money judgment against the administrator of the deceased husband’s estate, alleging prior presentation to and rejection of the executor’s claim by the administrator. The “claim” is alleged to be for one-half of the amount of a dormant bank savings account discovered and paid to the administrator by the bank during administration. (The parties have conducted previous similar litigation in the same court. See Hunter v. Cook, Tex.Civ.App., 375 S.W.2d 574, writ dism.).

The trial court dismissed the suit for want of jurisdiction on appellee’s motion asserting the administration of “W. Q. Hunter, the husband of Mary Hunter is still pending in the probate court” and the claim pertains to community property.

Appellant admits these facts, hut contends that since his claim was properly authenticated and presented, rejection of the claim authorized the present suit under Sec. 313, Texas Probate Code, V.A.T.S.

If appellant’s factual position is correct, the “claim” consists of the wife’s asserted interest in community property under administration in the husband’s estate. It is not such a “claim for money against an intestate” as is contemplated by Sec. 298(a), Ch. 8, Probate Code. Sim-kins, Administration of Estates, first ed., 204. Appellee is not, by virtue of the claimed title to the personalty being administered, a creditor; the interest of the wife’s estate is not a debt against the husband’s estate. It is not a “claim for money” under the statute any more than would be the asserted community interest in realty, Sec. 317(d) Probate Code. See Hunter v. Cook, Tex.Civ.App., 375 S.W.2d 574, writ dism.

Upon the granting of letters of administration on the estate of the husband, the wife’s control over the community property ceased and the estate passed under the jurisdiction of the probate court for settlement. Moke v. Brackett, 28 Tex. 443, 445; Hollingsworth v. Davis, 62 Tex. 438, 440. If the husband died first, the wife’s subsequent death did not have the effect of withdrawing it from administration. Lawson v. Kelly, 82 Tex. 457, 17 S.W. 717, 718. See Lovejoy v. Cockrell, Tex.Com.App., 63 S.W.2d 1009, 1010, 1011.

The community interest of the wife’s estate in personalty being administered in the husband’s estate could not be fixed by a “claim” under ch. 8, Probate Code or by a suit on a “rejected claim” under Sec. 313.

Affirmed.


author: GRISSOM, Chief Justice.

text:
    AMARILLO INDEPENDENT SCHOOL DISTRICT et al., Appellants, v. Ray BARR, Appellee.
    No. 3966.
    Court of Civil Appeals of Texas. Eastland.
    March 19, 1965.

      Stephen P. Killough and Don P. Teague, Amarillo, for appellants.
    Culton, Morgan, Britain & White, Mas-ton C. Courtney, Amarillo, for appellee.
   GRISSOM, Chief Justice.

Amarillo Independent School District and Amarillo College District sued Ray Barr for delinquent taxes, interest and penalties on cattle located in Amarillo on January 1, 1958. In a trial to the court, it was found that Barr did not own the cattle on the date of the tax assessment, January 1, 1958 and, therefore, judgment was rendered for him. Plaintiffs have appealed.

Mr. Barr testified to the terms of the contract under which he bought the cattle without objection and without a motion to strike, although it became evident during the trial that the contract was in writing. He testified that in December, 1957, he bought the cattle from Watkins for delivery in March, 1958; that at that time he paid $10.00 per head and agreed to pay the balance, based on a price per pound, upon delivery to him in March, 1958; that possession was retained by the seller until March; that it was agreed that loss of cattle and loss of weight prior to March would fall upon the seller; that gain in weight prior to that date accrued to the seller’s benefit; that care and feeding of the cattle was under control of the seller until delivery in March, 1958, and that title was not to pass until delivery in March, 1958, when payment per pound, in addition to the said $10.00 per head, was to be made. Barr’s testimony was to the effect that the agreement was fully performed; that the seller retained possession, grazed the cattle on the seller’s land and fed them the seller’s feed until delivery and payment therefor in March, 1958. Another witness testified that such a contract was common in the area and well understood by people in the cattle business.

The sole question presented is whether such evidence was competent and supported the trial court’s conclusion that Barr did not own the cattle on the date they were assessed for taxes, January 1, 1958. We hold that it was competent evidence and that it supports the court’s conclusion. Said testimony was not hearsay. Although it was secondary evidence, it was admitted without objection that it was not the best evidence, or any other objection, or motion to strike, after it was made clear that the contract was in writing. It was competent and it sustains the court’s finding that Barr did not own the cattle when the tax assessment was made. Aetna Insurance Company v. Klein, 160 Tex. 61, 325 S.W.2d 376, 381, and cases there cited. See also 23 Tex.Jur.2d 324, 325.

The judgment is affirmed.


author: CLAYTON, Justice.

text:
    SANTANA PETROLEUM CORPORATION, Appellant, v. GO SERVICES, INC., Appellee.
    No. 5753.
    Court of Civil Appeals of Texas. El Paso.
    March 10, 1965.
    Rehearing Denied April 14, 1965.

      Tom Parker, Midland, for appellant.
    Whitten, Harrell & Wilcox, Josephine M. Jameson, Abilene, for appellee.
   CLAYTON, Justice.

This is an appeal from a summary judgment granted the plaintiff-appellee by the District Court of Midland County, Texas. This suit on sworn account was originally filed in Taylor County, Texas, in the year 1963, and by judgment dated July 18, 1963 the defendant’s plea of privilege, on motion of the plaintiff, was granted and the cause transferred to Midland County. Plaintiff’s First Amended Original Petition was filed in Midland County on April 9, 1964, and thereafter, on October 26, 1964 the plaintiff filed motion for summary judgment with accompanying affidavit, which motion was apparently unanswered, and resulted in summary judgment being granted the plaintiff on November 12, 1964 and filed the same day. The judgment recites that such motion was made in proper form and time, proper service thereof made and the parties were before the court for hearing thereon. Notice of appeal was filed on November 20, 1964, and appeal bond filed. Transcript was filed in this court on January 8, 1965, but no brief has been filed for appellant. On February 18, 1965 ap-pellee filed motion for dismissal of the appeal under Rule 415, Texas Rules of Civil Procedure, for non-compliance with Rule 414. On February 23, 1965 appellant filed its motion that further time be granted for filing brief, which motion reads as follows:

“TO SAID HONORABLE COURT:
“Santana Petroleum Corporation, the appellant in the above entitled and numbered cause, makes this its motion that the court grant further time for filing its brief and copies thereof herein, upon the grounds following: Appellant herein was represented at the trial of this cause by Rush Moody of the firm of Stubbeman, McRae, Sealy, & Laughlin and by Tom Parker, your affiant. After the preparation of the notice of appeal there was confusion as to which firm was to prepare appellant’s breif with the result that both firms believed the others had prepared and sent in appellant’s brief. Appellant would further show this honorable court that appellant is appealing from a decree granting a summary judgment and that appellee has not sustained any damage because of a late filing and will not sustain any damage if this motion is granted.
“Premises considered, appellant prays to the court that it enter its order granting appellant until March 10, 1965 to-its brief on such terms as the court may order.”

This motion was contested by appellee for the reasons that the appellant has failed to show good cause for failure to timely file brief and has failed to show that appel-lee has not suffered material injury thereby, and moved that this appeal should be dismissed for want of prosecution as provided in Rule 415, T.R.C.P. Appellee accompanies its motion to dismiss the appeal by citations of numerous authorities to support its position. Quotations from some of these authorities are set out:

Julian v. Carrollton Independent School District, 346 S.W.2d 189 (Tex.Civ.App., 1961; n.w.h.) (at pages 190 and 191):

“The excuse that confusion in the office of appellant’s counsel caused him to overlook filing the brief in the prescribed time is not good cause excusing failure. See 4 Tex.Jur.(2) 138, Sec. 633, and cases there cited dealing with causes that excuse a tardy filing.
“The duty to examine a record for fundamental error in the absence of briefs may be conceded to have been required prior to the advent of the Rules of Civil Procedure and repeal of Art. 1837, Vernon’s Ann.Tex.Civ.St. See 4 Tex.Jur.(2) 127, Sec. 612. Presently, Rule 415 authorizes a dismissal of an appeal for want of prosecution, but at the same time grants the appellate court authority to consider late briefs even in the absence of good cause. The rule is silent on examination of the record for fundamental error as a prerequisite to dismissal for want of prosecution. Repealed Art. 1837 required Courts of Civil Appeals to consider errors apparent on the face of the record in the absence of an assignment. The repeal of the article constricted the legal concept of fundamental error, and many errors formerly treated as fundamental may not be so regarded now. See cases next cited.
“The outer limits of fundamental error have not been fixed, but an error is now said to be truly fundamental when it establishes by judgment rights or relief adverse and in conflict with the public interest as declared by the Constitution or by legislative enactment, or when a complete record reveals the trial or appellate court is without jurisdiction of the subject matter or procedure in litigation, or the parties to the action have no justiciable interest in the issues litigated. See Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979; McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265; Holland v. Taylor, 153 Tex. 433, 270 S.W.2d 219; Wagner v. Warnasch, 156 Tex. 334, 335, 295 S.W.2d 890. Logically it follows that in the absence of a brief the record should be examined for fundamental error as the same is now recognized.”

We find no such fundamental error here.

Maples v. Jackson, 311 S.W.2d 464 (Tex.Civ.App., 1958; ref., n.r.e.)

“In view of Texas Rules of Civil Procedure, rule 415, it seems clear that the burden is cast upon an appellant to show not only the existence of good cause for any failure to comply with the provisions of Rule 414 regarding time for filing an appellant’s brief, but must also carry the burden of showing that his failure in such respect has not caused any material injury to the appellee. It has been held that an appellee presumptively suffers consequential injury when deprived of the affirmative right to seasonably file a reply brief. Aldridge v. Clinton Park Development Co., Tex.Civ.App. Galveston 1945, 187 S.W.2d 255. In the present instance, the appellants have offered nothing, either orally or in writing, to rebut this presumption.
“Under authority of T.R.C.P. 415, it appears proper to dismiss the appeal for want of prosecution. No circumstance appears indicating that order of dismissal should not be entered.
“Appeal dismissed.”

It is apparent that this lawsuit has been in a pending state for a considerable period of time, the transcript revealing that the cause of action arose in 1962. We are not persuaded by the merits of the appellant’s motion for additional time to file briefs and feel that under the authorities this motion must be overruled and this appeal dismissed.

Appeal dismissed.


text:
    J. C. KING et al., Appellants, v. PITTSBURGH DES MOINES STEEL COMPANY et al., Appellees.
    No. 3969.
    Court of Civil Appeals of Texas. Eastland.
    March 19, 1965.
    Miller, Sanders & Baker, Oth Miller, Amarillo, for appellants.
    Underwood, Wilson, Sutton, Heare & Berry, R. A. Wilson, Amarillo, for ap-pellees.
   GRISSOM, Chief Justice.

J. C. King et al. sued Pittsburgh Des Moines Steel Company in Randall County for damages caused by defendant permitting paint to fall and cover “plaintiffs’ building, fixtures and equipment” while it was painting adjoining property. Said defendant filed a plea of privilege to be sued in Dallas County, where its principal place of business is located. Plaintiffs filed a controverting affidavit asserting that their suit was to recover damages to land within the meaning of exception 14, Article 1995. The court sustained said plea. Plaintiffs have appealed.

Appellants’ only point is that the court erred in sustaining the plea of privilege because the “evidence” showed that (1) its suit was for damages to land and that (2) the land was in Randall County, where the suit was brought.

Appellants had the burden of establishing two venue facts; (1) the nature of the suit, that is that it was for the recovery of damages to land, and (2) that the land was in the county in which the suit was brought. Whether appellants’ suit is for the recovery of damages to land is a question of law to be determined by the court from the plaintiffs’ petition. Their petition clearly showed only a suit for damages to appellants’ building, fixtures and equipment. A building may or may not be a part of the land. Holly v. Craig, Tex.Civ. App., 334 S.W.2d 586, 587. The petition did not show that the building was a part of appellants’ land. Therefore, appellants did not show that their suit was for damages to land, which is a prerequisite to sustaining venue in Randall County under exception 14, and the court did not err in sustaining appellees’ plea of privilege.

In Knight v. Houston & T. C. R. Co., 93 Tex. 417, 55 S.W. 558, our Supreme Court held that a petition containing allegations of damages to burning grass growing upon land did not show an action for damages to land within exception 14. In Stanolind Oil & Gas Company v. Smith, Tex.Civ.App., 290 S.W.2d 696, it was held that a petition which contained allegations of the destruction of growing crops on land did not show a suit for damages to land within exception 14. See also Stull’s Chemicals, Inc. v. Davis, Tex.Civ.App., 263 S.W.2d 806.

The judgment is affirmed.


text:
    Edgar L. REYNOLDS et ux., Appellants, v. Francis S. LOONEY, Appellee.
    No. 3957.
    Court of Civil Appeals of Texas. Eastland.
    March 19, 1965.
    Rehearing Denied April 16, 1965.
    Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, for appellants.
    Lumpkin, Watson, Dunlap & Smith, Amarillo, for appellee.
   GRISSOM, Chief Justice.

Francis S. Looney sued Edgar L. Reynolds and wife for damages alleged to have been caused by Mrs. Reynolds driving her automobile into the rear end of plaintiff’s automobile and injuring plaintiff’s wife and damaging his automobile. The collision occurred on June 18, 1964. The suit was filed on July 13, 1964. Citation was served on the Reynolds on July 15th. The Reynolds were required to answer on August 10, 1964 at 10:00 a. m. Citations were promptly delivered by the Reynolds to an independent insurance adjuster in Amarillo who made some investigation of the accident and then mailed them to the Reynolds’ insurer in Dallas, who was required to defend the suit. The citations reached the insurance company’s office on July 27th. On August 10th Mrs. Reynolds called said Amarillo insurance adjuster and told him that Looney’s attorney had asked her if she had been served with citation. The Amarillo adjuster immediately called the insurer in Dallas and was advised to take his file to the company’s attorney in Amarillo, which he speedily did. On August 10th at about 2:40 p. m., no answer being filed, Looney took a default judgment against the Reynolds. Within a few minutes thereafter the attorney for the Reynolds’ insurer, having been contacted by the Amarillo insurance adjuster, called the Clerk of the District Court and inquired whether a default judgment had been taken. He was advised that the file was out of the clerk’s office. He went immediately to the District Judge and learned that a default judgment had just been taken and was advised that he would have to file a motion to set it aside. The insurance company’s attorney filed for the Reynolds an answer and a motion for a new trial before 5:00 o’clock on the same afternoon that (at 2:40 p. m.) the default judgment had been taken. The Reynolds offered to promptly go to trial before a jury and to pay the expenses incurred in taking the judgment.

The evidence with reference to the reason for failure to timely answer shows that after the citations were received in the insurance company’s office in Dallas they were accidentally mislaid and did not come to the attention of the person who, under their well organized system of procedure, would ordinarily have promptly received it, selected an attorney and delivered the citations to him so that an answer would have been timely filed. Although the system was that usually employed in insurance offices for the purpose of seeing that such business was promptly attended to, there being an unusual rush of business and the matter occurring at a time when some experienced employees were on vacation, for some unknown reason a good system failed to work and an attorney was not timely instructed to answer. The letter containing the citations was not located until the afternoon of August 10th, when it was found on a clerk’s desk, mixed with unimportant mail and unopened.

The Reynolds asked the court reporter for a question and answer statement of facts. They learned that no court reporter recorded the evidence introduced on the default judgment inquiry. They did not have any kind of a statement of facts until after the hearing of the Reynolds’ motion to set aside the default judgment and grant them a new trial when the trial Judge filed his statement of facts. Until after said hearing on August 20, 1964, the Reynolds did not know what evidence had been introduced when the default judgment was rendered. The Reynolds alleged and proved facts showing the absence of an intentional failure to timely answer. The fact situation is not materially different from that in Craddock v. Sunshine Bus Lines (Sup.Ct.), 133 S.W.2d 124, wherein it was held that absence of an intentional failure to timely answer was established and judgment refusing to set aside the default judgment was reversed and judgment was rendered setting it aside and granting a new trial. In the answer filed by the Reynolds on August 10th they alleged that plaintiff’s injuries were caused by the negligence of the plaintiff and, alternatively, was the result of an unavoidable accident. In their amended motion for a new trial, in addition to excusing the failure to timely answer, the Reynolds alleged that setting aside the default judgment and granting their motion for a new trial would not prejudice the plaintiff. They agreed to pay the expenses incurred in taking the default judgment, agreed to promptly try the case before a jury and alleged a meritorious defense. They further alleged that the amount of the judgment was contrary to the weight of the credible evidence and based upon hearsay.

Upon the trial Mrs. Reynolds offered to testify, and she did testify for the purpose of making a bill of exception, to a state of facts which if established in a trial on the merits would show the contributory negligence of the plaintiff or an unavoidable accident. Appellee argues that the judgment could not be set aside because appellants did not allege “facts” showing they had a meritorious defense. Appellants did allege contributory negligence and unavoidable accident. In the absence of exception the pleadings were sufficient to support the evidence offered in support thereof.

The court erred in refusing to set aside the default judgment and grant a new trial. As stated, the excuse for failure to answer was not materially different from that sustained in Craddock v. Sunshine Bus Lines, supra. Our Supreme Court there reiterated the very liberal rule announced in Dowell v. Winters, 20 Tex. 793, 794 that, although the excuse offered for failure to answer was slight, nevertheless, there was some excuse and the default judgment should be set aside because it was clearly not the intention of the attorney who failed to answer to suffer judgment by default. We think the following authorities require our conclusion. Hanks v. Rosser (Sup.Ct.), 378 S.W.2d 31; City of San Antonio v. Garcia, Tex.Civ.App., 243 S.W.2d 252 (W.R.); Iley v. Reynolds, 319 S.W.2d 194, 196 (Ref. N.R.E.); Cragin v. Henderson County Oil Development Company (Com.), 280 S.W. 554, 555 and 33 Tex.Jur.2d 700.

In any event, the judgment for medical expenses and damages to the automobile were not supported by any competent evidence and to that extent the judgment must be reversed.

The judgment is reversed and the cause is remanded with instructions to set aside the default judgment and grant a new trial. The costs of the trial court to date are assessed against the appellants. The costs of appeal are assessed against appellee.


author: COLLINGS, Justice.

text:
    C. L. NORSWORTHY, Jr., Appellant, v. Leona MICHELS, Appellee.
    No. 3946.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 26, 1965.

      Biggers, Baker, Lloyd & Carver, Dallas, for appellant.
    R. J. Balch, Seymour, for appellee.
   COLLINGS, Justice.

Mrs. Leona Michels brought this suit in Knox County against C. L. Norsworthy, Jr. Plaintiff alleged that she contracted and agreed with the defendant to execute an oil and gas lease to the defendant covering her undivided interest in a 215 acre tract of land in Knox County, and that the defendant agreed to pay $5,550.00 as a bonus therefor. The defendant filed a plea of privilege to be sued in Dallas County. Plaintiff filed a controverting plea and after a hearing the plea of privilege was overruled. C. L. Norsworthy, Jr., has appealed.

Mrs. Michels seeks to maintain venue in Knox County under Subdivision 5 of Article 1995, Vernon’s Ann.Tex.Civ.St. claiming that her suit for the recovery of money owed as a bonus involves a contract in writing to perform an obligation in Knox County. She also urges that venue lies in Knox County under Subdivision 14 of the Venue Statute, contending that her suit involves the quieting of title to land.

Appellant Norsworthy presents points contending that the court erred (1) in overruling his plea of privilege on the basis of Subdivision 5 of the statute because there was no evidence showing that he contracted in writing to pay the claimed bonus in Knox County as contended by appellee, and (2) erred in overruling his plea of privilege because the evidence failed to show any exception to exclusive venue in the county of one’s residence as provided by Article 1995, V.A.T.C.S. and, particularly, that plaintiff’s claim to venue under Subdivision 14 of the statute is not tenable.

Mrs. Michels testified that she was the owner in fee simple of a 6/7ths undivided interest in and to 215 acres of land in Knox County as alleged in her petition. She stated that a Mr. Charles W. Shelton called her and inquired concerning the leasing of the land for oil and gas purposes; that several days later she entered into an agreement with him to lease her undivided interest in the land and he requested her to take her abstract to the office of Honorable Tom Bullington an attorney in Munday, Texas and that the necessary papers would be prepared. Mrs. Michels stated that in compliance with Shelton’s request she took her abstract to the 215 acre tract of land to Mr. Bullington’s office where she met Shelton and after some discussion signed an oil and gas lease which Shelton had had the attorney to prepare. The lease was introduced in evidence and shows to have been executed by Mrs. Leona Michels, a widow, and the lessee named therein was C. L. Norsworthy, Jr. The lease was not signed by appellant C. L. Norsworthy, Jr. Mrs. Michels also stated that in connection with the execution of the oil and gas lease a draft was prepared and signed by Charles W. Shelton, and she contends that Shelton was the agent of Norsworthy. This draft was introduced in evidence as plaintiff’s Exhibit Number 2, and is as follows:

Mrs. Michels testified that Shelton was present at Mr. Buffington’s office in Munday at the time the oil and gas lease and the draft were prepared; that such instruments were both prepared on March 5, 1964, under the direction of Shelton. She stated in effect that she talked with Mr. Shelton concerning Mr. Norsworthy being the lessee and found that Shelton was representing Norsworthy; that after the oil and gas lease was executed by her and the draft signed by Shelton and indorsed by Mrs. Michels the two instruments were placed in the draft envelope and Shelton took them to the bank in Munday for transmission to the Republic National Bank of Dallas, Texas. Mrs. Michels left her abstract with Mr. Buffing-ton for examination and later furnished a supplemental abstract. She stated that after a considerable lapse of time the envelope containing the oil and gas lease and the draft was returned to her by mail from the Munday bank and that there was attached thereto another instrument or paper which at the trial was designated as Plaintiff’s Exhibit Number 3 which is as follows:

It is noted that such instrument indicated that the draft was returned unpaid because title was not approved. Mrs. Michels stated that this was the only communication she ever received from anyone relative to the matter and that no one ever told her what was wrong with her title. The record further shows that Mr. Bullington did approve title to the land subject to a showing that Mrs. Michels owned only a 6/7ths undivided interest therein and that there was a lien against the property to secure indebtedness. Mrs. Michels testified that under her agreement with Shelton it was agreeable with Norsworthy to accept the lease even though it is undisputed that she owned only a 12/14 interest in the land and that the other 2/14 interest belonged to minor heirs. There was also evidence to the effect that appellant expected to secure a subrogation agreement from the loan company.

We cannot agree with appellee’s contention that the record shows that Nors-worthy contracted in writing to pay the $5,550.00 bonus payment in Knox County. In the first place there was no written escrow agreement. An oil and gas lease was executed by Mrs. Michels and a draft was prepared and signed by Shelton whom ap-pellee contends was the agent of Nors-worthy. Regardless of whether Shelton was Norsworthy’s agent there is still no written agreement to pay the bonus in Knox County. In Harvey v. Bain, 140 Tex. 375, 168 S.W.2d 234 (Com. of App.), it was stated by Judge Hickman that “The burden was upon the appellee to prove, as a venue fact, in order to bring his case within the rule relied upon, that the appellant accepted these escrow contracts, and not merely to prove that he should have accepted them.”

The record is undisputed that the draft was sent to the bank in Dallas for presentment to Norsworthy there for payment, and that Norsworthy did not accept the draft; that on the contrary he refused to pay the draft or to accept the oil and gas lease executed by appellee. Even if the lease had been accepted its terms did not require the payment of the $5,550.00 bonus in Knox County. We sustain appellant’s point that the court erred in overruling his plea of privilege on the basis of Subdivision 5 of the Venue Statute.

Appellee also seeks to maintain venue in Knox County under Subdivision 14 of the Venue Statute which provides as follows:

“14. Lands. — Suits for the recovery of lands or damages thereto, or to remove incumbrances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie.”

Appellee contends that this suit involves the removal of a cloud to her title and the prevention of waste to land. We cannot agree with this contention. To maintain venue in a county under Subdivision 14 a plaintiff has the burden to show that the nature of the suit concerns land as contemplated by the statute and that the land involved is located in the county where suit is brought. Appellee’s petition in the instant case does not show a suit for the removal of a cloud from title or to prevent waste of land as contended by appellee. On the contrary, this suit is one to enforce the payment of $5,550.00 which appellee contends that Norsworthy agreed to pay. Appellant’s second point is also sustained.

The judgment is reversed and the cause remanded to the District Court with instructions to transfer the suit to the District Court of Dallas County.