author: CLAYTON, Justice.

text:
    David S. DIAMOND et al., Appellants, v. Allen BORENSTEIN et al., Appellees.
    No. 5813.
    Court of Civil Appeals of Texas. El Paso.
    Nov. 16, 1966.
    Rehearing Denied Dec. 21, 1966.
    John G. Lay, Robert Kennedy, Paxson & Santiesteban, El Paso, for appellants.
    Potash, Cameron, Bernat & Studdard, El Paso, for appellees.
   OPINION

CLAYTON, Justice.

This is an appeal from a judgment on account and foreclosure of a deed of trust lien in favor of appellees Allen Borenstein, Josephine Borenstein, a feme sole, and Jarvis P. Freiden, against appellants David S. Diamond and wife, Marsha Kalmore Diamond, rendered by the court without the intervention of a jury. The cause of action grew out of an agreement by which appellees entered into the financing of an operation in which the Diamonds bought and sold used cars. In the course of the operation Marsha Kalmore Diamond and her husband executed a deed of trust covering a certain tract of land situated in Presidio County, Texas, to T. M. Diamond, Jr. as trustee, to secure the obligations of the appellants under the agreement. The property covered by the deed of trust was the separate property of Marsha Kalmore Diamond, it having been acquired from her father’s estate in 1952. The acknowledgment on this deed of trust was taken on September 4,1963 by one Allen Fred Boren-stein, the same person as Allen Borenstein, one of the appellees, and one of the beneficiaries under the deed of trust. Under an agreed statement of facts, the amount of money recovery by appellees against appellants is not in dispute, and the sole issue is the validity of that part of the judgment which awarded appellees the right of foreclosure of the deed of trust.

The appellants’ position is contained in their sole point of error, maintaining that the trial court erred in giving effect to the deed of trust of a married woman’s separate estate which was acknowledged by a beneficiary of the said deed of trust and thus void and unenforceable.

This point of error presents two issues: (1) Is the conveyance in the instant case valid although the acknowledgment was taken by a beneficiary under the instrument, and (2) does a defective acknowledgment of a married woman void a conveyance or encumbrance of her separate property since the repeal of Article 1299, and other recent legislation ?

As to the first issue, we refer to the decision in Haile v. Holtzclaw, 400 S.W.2d 603, 614 (Tex.Civ.App., 1966; writ granted on other points). In that case the deed involved was acknowledged before one Byrum H. Haile, a possible grantee and part owner of the property interest sought to be conveyed. In that case the court recites:

“Appellee concedes that the fact the deed in question was acknowledged by Byrum H. Haile, one of the appellants, and one with an interest in the estate, does not in itself render the deed void; but contends this ground, taken with the other facts and circumstances should be considered in setting aside the deed as void.”

The court then held that this contention was without merit and stated: “Appellee admitted the validity of his signature on the deed. Deeds of grantors are valid as between the parties, grantor and grantee, without a valid certificate of acknowledgment except where the grantor is a married woman.” The court then cites cases in support of this finding. We consider the Holtzclaw case, and cases therein cited, as authority for the validity of a deed as between the parties without a valid certificate of acknowledgment, and must thus answer the first issue set out above in the affirmative. However, under recent legislation, we believe that the ruling of that case as to married women concerning their separate property is no longer applicable.

Passing now to the second issue presented to us, as to whether a defective acknowledgment of a married woman would void a conveyance or encumbrance of her separate property since the repeal of Article 1299, Vernon’s Ann.Tex.Civ.St., and other recent legislation, we must answer it in the negative. The 58th Texas Legislature, in regular session in the year 1963, passed two bills which very definitely affected existing statute law relative to the disabilities of coverture of a married woman. These were House Bills numbers 403 and 404. These bills took effect 90 days after May 24, 1963, the date of adjournment of the Legislature. H.B. 403 provided for an amendment to Article 4614, V.A.T.S., defined the separate property of the wife and provided that during marriage the wife shall have the sole management, control and disposition of her separate property, both real and personal. The bill also amended Article 4618, V.A. T.S., relative to sale of the homestead. Article 4621, V.A.T.S., was amended relative to community property. Article 4623, V.A.T.S., was repealed. Article 4624, V.A. T.S., relative to property upon which levy may be made, growing out of a suit based upon a contract of the wife, was also amended. Article 4626, V.A.T.S., which was also amended, had to do with the application of a married woman to become a feme sole, and as amended reads as follows:

“Art. 4626.
“A married woman shall have the same powers and capacity as if she were a feme sole, in her own name, to contract and be contracted with, sue and be sued, and all her separate property, her personal earnings and the revenues from her separate estate which is not exempt from execution under the laws of Texas shall thereafter be subjected to her debts and be liable therefor, and her contracts and obligations shall be binding on her.”

The caption of this bill, H.B. 403, very clearly expresses the purpose of the Bill: “An Act to remove the disabilities of cover-ture of a married woman in connection with her contracts and her management and control of the separate property; * * * ” H.B. 404 has the following caption: “An Act repealing one Article of the Revised Civil Statutes of Texas, 1925; namely, Article 1299, which requires joinder of the husband and privy acknowledgment of the wife in any conveyance of the separate lands of the wife * * * ” Article 1299, V.A.T.S., referred to, before its repeal read as follows:

“Art. 1299. Conveyance of separate lands of wife
“The husband and wife shall join in the conveyance of real estate, the separate property of the wife; and no such conveyance shall take effect until the same shall have been acknowledged by her privily and apart from her husband before some officer authorized by law to take acknowledgments of deeds for the purpose of being recorded and certified to in the mode pointed out in articles 6605 and 6608.”

It should be noted that the Article which followed 1299, Article 1300, has not been amended, but it has no relevancy to this case before us, since it relates solely to a conveyance of the homestead, and should be read in connection with amended Article 4618. While the Legislature, in repealing Article 1299, did not specifically repeal Articles 6605 and 6608, their relation to Article 1299 has been ended with the repeal of that Article.

Article 6605 reads as follows:

“No acknowledgment of a married woman to any conveyance or other instrument purporting to be executed by her shall be taken, unless she has had the same shown to her, and then and there fully explained by the officer taking the acknowledgment on an examination privily and apart from her husband; nor shall he certify to the same, unless she thereupon acknowledges to such officer that the same is her act and deed, that she has willingly signed the same, and that she wishes not to retract it.”

Article 6608 merely sets out the form of acknowledgment of a married woman.

In the matter before us, the deed of trust was executed and acknowledged on September 4, 1963, a date subsequent to the effective date of both H.B. 403 and H.B. 404, so that Article 1299 had been repealed before the deed of trust was executed. Furthermore, Article 4626 was amended in H.B. 403 before the deed of trust was executed, as shown above. Certainly, the repeal of Article 1299 and the amendment of Article 4626, if to be given any effect whatsoever, together serve to relieve a married woman from complying with the terms of Article 6605 as to acknowledgments, in the manner and form set out in Article 6608. A further change in the contractual status of a married woman, reflected in the legislative measures referred to, is found in the repeal by H.B. 403 of Article 4623, V.A.T.S., which had read, before repeal, as follows:

“Art. 4623. Subject to debts of wife
“Neither the separate property of the husband nor the community property other than the personal earnings of the wife and the revenues from her separate property shall be subject to the payment of debts contracted by the wife except those contracted for necessaries furnished her or her children.”

As far as we have been able to determine, the only decision based upon the effect of the two House Bills discussed above is to be found in the case of Kitten v. Vaughn, 397 S.W.2d 530 (Tex.Civ.App., Dec. 3, 1965, Rehear .Den. Jan. 5, 1966; n. w. h.), cited by appellee herein. In that case a suit was brought by appellee, Vaughn, against J. B. Kitten and wife, Helen M. Kitten, appellants on a promissory note executed by them, dated March 26, 1964, given for cash borrowed by appellants from appellee. Mrs. Kitten pleaded her coverture as a defense to recovery on the note. The court recited:

“We will first dispose of the contention of Mrs. Kitten that since she was a married woman when she executed the note to appellee that she is not liable thereon in the absence of evidence that the note was executed or its proceeds used for the benefit of her separate estate, or that such note or its proceeds were used for necessaries furnished to her or her children, or that her disabilities of coverture had been removed prior to the execution of the note. None of these circumstances was shown.
“Appellants cite many cases to support this contention, all of which were decided before or involved transactions occurring before the amendment by the Legislature in 1963 of Art. 4626, and the repeal in the same year of Art. 4623, Vernon’s Ann.Tex.Civ.St.
“With respect to the changes made in the law by these enactments, appellants say: ‘By amending Art. 4626, V.A.C.S., 58th Legislature, merely the procedural requirements to enable a married woman to act as a sole trader for the benefit of her separate estate, was changed. A careful reading of H.B. 403, indicates no intention on the part of the Legislature to make a community debt binding upon the separate estate of the wife or any intention to subject the wife to personal liability for such community debts.’
“With this statement, we are in complete disagreement. If accepted, it would leave, for all practical purposes, the law unchanged by the legislation enacted by the Legislature in 1963. We cannot attribute to the Legislature the intention of doing a useless act, or the intention to appease the militant leaders in an historical effort to obtain greater freedom and more rights for married women by passing a law which inform purported to advance their status towards equality with other persons sui juris but in fact made no change in their status. We are forbidden in this regard by the plain language of amended Art. 4626, which we quote: * ⅜ *

The court then recites amended Article 4626 as is set out above herein, and also the language of repealed Art. 4623; and concludes :

“These two enactments by the Legislature, one positive and one negative, make it crystal clear that the Legislature has removed all impediments previously existing to the power and authority of a married woman to contract, and to bind her separate estate, and to sue and be sued, by reason of her status as a married woman.
“We enforce the legislative will so plainly expressed. We hold that Mrs. Kitten’s plea of coverture is not valid, and that she is liable on the note which she executed.”

We consider the court’s reasoning in Kitten v. Vaughn equally applicable to the case at hand, and following that reasoning hold that a married woman is no longer confined to the strict procedural and other restraints applicable under the provisions of repealed Article 1299, V.A.T.S.

Therefore, while we hold under the issues presented to us that the acknowledgment of Marsha Kalmore Diamond to her deed of trust is defective, since the disqualification of the notary taking the acknowledgment is apparent from the face of the instrument, nevertheless, that the deed of trust is valid and enforceable between the parties thereto under the present statutory situation, effective at the time of the execution and acknowledgment of said instrument.

We accordingly affirm the judgment of the district court herein.

OPINION ON MOTION FOR REHEARING

Appellants, in their motion to this court to set aside the opinion rendered herein on November 16, 1966 affirming the trial court’s judgment, and asking for a rehearing and that the trial court’s judgment be reversed, request additional findings of fact.

The record that came to us from the trial court contains an “Agreed Statement of Facts” in this language:

“The parties to the above entitled and numbered cause, under the provisions of Rule 378, of the Texas Rules of Civil Procedure, agree that the following is a statement of the case and of the facts proven, upon which judgment shall be rendered therein, the controversy being submitted to the Court upon the same, and such agreed statement of facts, without further record or need therefor: * * * >t

The opinion of this court was based upon this Agreed Statement of Facts, and we find it unnecessary to enlarge upon the facts as agreed to and as set out in our opinion.

Appellants’ motion calls the attention of this court to the first page of our opinion in which they maintain that it is implied that Marsha Kalmore Diamond was a party to the automobile financing agreement between appellees and David S. Diamond and the other three men engaged in business as Logan Auto Sales.

This court did not intend such implication, and if such implication is to be found in the language used, the court wishes to state that the langauge used was intended to apply only to David S. Diamond without the inclusion of Marsha Kalmore Diamond as being engaged in such agreement.

All other requested additional findings of fact are believed to be covered by the Agreed Statement of Facts in the record, and we deem it unnecessary to repeat them here.

The points of error set out in the motion for rehearing, together with the arguments thereunder, are hereby overruled, and the motion for rehearing in said cause is hereby overruled and denied.


source: Caselaw Access Project

author: CLAUDE WILLIAMS, Justice.

license: Public Domain

text:
    Sammy THORNTON, Appellant, v. CITY OF KLEBERG, Texas et al., Appellees.
    No. 16882.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 9, 1966.

      Horace G. Goodrich, Dallas, for appellant.
    B. Robt. Baker, of Saner, Jack, Sallinger & Nichols, Dallas, for appellees.
   CLAUDE WILLIAMS, Justice.

Sammy Thornton instituted this action seeking to enjoin the City of Kleberg, Texas, its mayor, city secretary and city attorney from interfering with the operation of Thornton’s trucking business and completion of his garage and storage facilities upon the property involved located in the City of Kleberg. The City filed its cross-action to enjoin Thornton from operating his business, and the erection and construction of a garage and storage facilities upon the property involved in violation of the Comprehensive Zoning Ordinance of the City of Kleberg. Judgment was entered denying Thornton a temporary injunction and granting the City an injunction against Thornton as prayed.

Appellant Thornton has perfected his appeal to this court by the timely filing of a transcript but has filed no statement of facts or brief in support of his appeal. Pursuant to Vernon’s Texas Rules of Civil Procedure, Rule 385, this cause may be heard in this court on the bill and answer and such affidavits in evidence as may have been admitted by the judge of the court below. Under this rule neither the filing of a statement of facts or brief is required on appeal. However, in the absence of a statement of facts the scope of our review is limited and we must presume that the judgment of the trial court was supported by sufficient evidence. Cunningham v. State, Tex.Civ.App., 353 S.W.2d 514; McDonald v. Debco Corp. of Texas, Tex.Civ.App., 350 S.W.2d 221; T.H.G.K. & T. Corp. v. Lipe, Tex.Civ.App., 399 S.W.2d 408.

Our Supreme Court has repeatedly enunciated the rule that on appeal from interlocutory orders and injunction matters the narrow question is whether the trial court abused its discretion in entering the order appealed from and further, that such order should not be overturned unless the record discloses the clear abuse of such discretion. Texas Foundries, Inc. v. International Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460; Railroad Commission v. Shell Oil Co., 146 Tex. 286, 206 S.W.2d 235; Southwestern Greyhound Lines, Inc. v. Railroad Commission, 128 Tex. 560, 99 S.W.2d 263, 109 A.L.R. 1235; Janus Films, Inc. v. City of Fort Worth, 163 Tex. 616, 358 S.W.2d 589.

Without a statement of facts, this court cannot say that the trial court abused its discretion in denying appellant an injunction and in granting appellees the injunction against appellant. International Longshoremen’s Ass’n v. Galveston Maritime Ass’n, Civ.App., 358 S.W.2d 607.

No fundamental error is apparent from a careful examination of all of the papers before us. Accordingly, the judgment of the trial court is affirmed.

Affirmed.


author: TIREY, Justice.

text:
    Sonny ELLEN, Appellant, v. CITY OF BRYAN et al., Appellees.
    No. 4540.
    Court of Civil Appeals of Texas. Waco.
    Dec. 22, 1966.
    Rehearing Denied Jan. 12, 1967.

      Sam Houston Clinton, Jr., Austin, for appellant.
    John M. Lawrence, III, W. C. Davis, Bryan, for appellees.
   OPINION

TIREY, Justice.

The city of Bryan brought this action against Sonny Ellen to abate a nuisance occasioned by the operation of a chicken and egg farm within the city limits of Bryan. The court permitted some thirty-six resident citizens in the area to file pleas of intervention. The court overruled defendant’s plea in abatement and his motion to strike the pleas of intervention, as well as a motion for continuance and a motion for severance. The jury in its verdict found substantially: (1 and 2) That the odors escaping from the poultry operations of defendant have continued in substantial amounts sufficient to pollute the atmosphere in the vicinity of the operation, and that such odors, fumes or stenches are a proximate cause of material personal discomfort and annoyance to those persons residing in the vicinity of defendant’s poultry operations ; (3) But found in issue three that flies or mosquitoes did not breed on the property in substantial numbers or quantities so as to infest the vicinity of defendant’s operation; (5) That the noxious odors arising from defendant’s operations will be temporary.

The court granted plaintiff and in-tervenors’ motions for judgment and decreed that defendant’s agents and employees be enjoined from operating any poultry or egg business on the property in the city of Bryan and in which his operation is now located, and decreed that the nuisance be abated and the operation terminated with the qualifications and provisions that defendant remove all poultry fecal substances and any and all sources of noxious odors from the property involved. The court further decreed that the defendant and his agents be allowed a period of sixty days from the date of the judgment to comply with the foregoing injunction, except that the obvious unsanitary conditions referred to in the judgment be removed immediately, and that the foregoing conditions be complied with and satisfied prior to the sixty-day term of the period here named. The court further decreed that defendant be permitted to resume his poultry and egg business at the present location upon presenting in open court after due notice satisfactory proof that he had constructed and placed the necessary facilities and equipment upon the property to dispose of the accumulation of filth and any other source of noxious and offensive odors, and present proof that the nuisance complained of will not occur in either wet or dry weather, and further provided that the facilities, equipment and modes of operation shall meet approval and recognized standards of sanitation, incineration and disposal of the sources of such odors and stenches in similar locations, to the end that the nuisance complained of will be permanently abated. The court further decreed that violation of any of the terms of the injunction will subject the defendant and those persons acting for him to the pains and penalties of contempt of court, and in such event of violation the sheriff of Brazos County, with the assistance of the lawfully constituted officers of the city of Bryan, shall be empowered to carry out and enforce the terms of said judgment. It further provided that defendant shall allow periodic inspections of the property as provided by the law and ordinance. The court further decreed that it was of the opinion that an emergency existed and ordered said judgment be literally and timely complied with for the accomplishment of speedy, certain and unconditional relief in that area. It further decreed that said judgment be final, and any and all further relief prayed for by any party is expressly denied and overruled.

Defendant excepted to the judgment and gave notice of appeal to this court. The judgment was entered on the 18th day of April, 1966, and on the 25th day of April defendant filed his motion for new trial. The pertinent parts of this motion are that the court erred: (1) In overruling defendant’s plea in abatement; (2) In overruling defendant’s motion for a continuance; (3) In overruling defendant’s motion for change of venue; and (4) In overruling defendant’s motion to strike the petition in intervention and for severance of the two actions. The motion was not amended and was overruled by operation of law. Thereafter, on the 18th day of June, the city of Bryan presented its motion to have Sonny Ellen held and punished in contempt of court because he had violated the provisions of the judgment heretofore entered. After due notice and hearing the court entered its judgment for contempt on June 21, 1966. That order decreed that defendant be held in contempt of court and be fined $100.00, and be imprisoned in the county jail of Brazos County for a period of three days, and further imprisoned until he purged himself of the contempt under the terms of the judgment entered on April 18, 1966. The order then directed the Sheriff of Brazos County to abate the nuisance and provided specifically therefor and directed the Sheriff how to carry out the order of the court. There is no appeal from the judgment of contempt.

Appellant’s Point 1 is that the court erred in overruling his motion to strike plea of intervention and thereafter rendering judgment based on the plea of intervention rather than relegating intervenors to their legal remedy for damages. We overrule this point for reasons hereinafter stated.

First of all, the plea of intervention merely adopted the City of Bryan’s pleadings, and made such pleadings a part of that plea and did not ask for any damages. The plea of intervention raised no new issues to be passed upon by the court, and each of the intervenors resided in the area affected by the alleged nuisance, and each intervenor could have been called by the city as a witness to the condition there existing by reason of defendant’s operation. It is our view that the allowance of the plea of intervention was within the discretion of the trial court, and we think no abuse was shown, because the evidence of the in-tervenors was cumulative of the city’s contention in this cause. See First McDonald Texas Civil Practice, 395 and 44 Tex.Jur.2d 192, and McDonald Civil Practice 2d 398. See also Rule 434 Texas Rules of Civil Procedure.

Appellant’s Second Point is that the court erred in entering judgment enjoining continuation of the operation of appellant’s business on a jury finding that the odoriferous condition was temporary. We overrule this point. In 41 Tex.Jur.2d 637, we find this statement:

“ * * * where the nuisance is of a recurring nature, an action at law is not an adequate remedy, because damages could be recovered only to the time of the bringing of the action, and a multiplicity of suits would be necessary.”

This court, in Lamb v. Kinslow, 256 S.W.2d 903, March 26, 1953, n. r. e., said:

“It is further our view that the nuisance here complained of is of a recurring nature and that injunction will lie irrespective of legal remedy at law.”

See 31 Tex.Jur. 447. We think that is the exact situation here. In other words, if appellant saw fit to bring the chickens back and continue the operation as he was doing at the time the city filed its suit, the nuisance would reoccur. (He was keeping approximately 15,000 hens in his operation). See also Landwer v. Fuller, Tex.Civ.App., 187 S.W.2d 670; Youngblood’s Inc. v. Goebel, Tex.Civ.App., 404 S.W.2d 617, Waco, 1966, n. r. e.; Central Hide and Rendering Co. of Wichita Falls v. Storey, Tex.Civ.App., 223 S.W.2d 81; Storey v. Central Hide & Rendering Co., 148 Tex. 509, 226 S.W.2d 615, 1950 Sup.Ct.

This court, in Ballenger v. City of Grand Saline, 276 S.W.2d 874, 1955, no writ history, held in effect that a nuisance is public when it is one which disturbs or injures the inhabitants of an entire community, or a considerable portion thereof. Citing 31 Tex.Jur. 413, Sec. 4; 39 Amer.Jur. 284, et seq., Secs. 7-10; and 66 C.J.S. Nuisances § 2, p. 730, et seq., and authorities. This record shows that a substantial area of the city of Bryan was affected by the alleged nuisance.

In the Ballenger case the court pointed out that Art. 1015 of Vernon’s Texas Civ. Stats, empowered the governing body of a city or village to abate all nuisances which may injure or affect the public health or comfort in any manner it may deem expedient. See points 1, 3 and 4 of said opinion.

In the case of Hill v. Villarreal, Tex.Civ.App., 362 S.W.2d 348, 1962, n. w. h., this court held in effect that plaintiff need not seek damages, but is entitled to injunc-tive relief where the nuisance complained of is of a recurring nature, and further held that negligence is not required. It is obvious, here, that the only effective remedy would be an injunction. See also Nichols v. Simpson, Tex.Civ.App., 308 S.W.2d 613, San Antonio 1957, n. r. e.

The case before us here is one where the nuisance is in a municipal area and the judgment of the court in this cause is not absolute and unconditional, but on the contrary it gives the appellant the right to continue his operation, when he can do so without creating a nuisance.

Point 4 is that the court erred in overruling plea in abatement, and thereafter in rendering judgment based on petition of the city of Bryan, since the alleged nuisance is not claimed or shown to be a public nuisance, but purely private in nature. Since the nuisance was of a recurring nature, we think that we have said in answer to points 1 and 2 is applicable to point 4, and it is overruled.

Point 5 is that the court erred in overruling appellant’s motion for a continuance. We overrule this contention. Pertinent to this contention, the application for continuance alleged: “ * * * that he cannot safely go to trial in said cause because a petition in intervention has been filed by numerous parties herein on April 11, 1966, said parties asking for a permanent injunction to prohibit defendant from conducting business upon his property as he had hitherto; that defendant has had insufficient time to investigate the allegations and contentions in such petition which materially affect his livelihood and the conduct of his business and the outcome of this litigation.” No testimony was offered by appellant on his application for continuance. Under the record before us it was merely called to the attention of the court, and it was overruled. Under the foregoing conditions we think that the application failed to meet the tests as provided in Rules 251 and 252, T.R.C.P. See also Wilemon v. State, Tex.Civ.App., 385 S.W.2d 573, reversed by Supreme Court on other grounds, 393 S.W.2d 816. See also opinion of this court, Citizens’ Mutual Life Ins. Ass’n v. Miles, 77 S.W.2d 717, 1934, opinion by Justice Alexander, n. w. h., points 1 and 2. There is nothing in the record to indicate any prejudice was shown by failure of the court to grant a continuance, and we think it was not an abuse of the court’s discretion. See statement and authorities under point 1.

Point 3 is not raised in appellant’s motion for new trial. See Rules 320, 321, 322 and 374, T.R.C.P.; Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887, Dec. 1960. This rule has not been changed or modified.

Accordingly, the judgment of the trial court is affirmed.


author: MOORE, Justice.

text:
    Phyllis Ann KIRCHNER et vir, Appellants, v. Billy Ray VAN SKIKE, Appellee.
    No. 248.
    Court of Civil Appeals of Texas. Tyler.
    Dec. 29, 1966.
    John D. Bradshaw, Houston, for appellants.
    Frank B. Gray, Houston, for appellee.
   MOORE, Justice.

Plaintiffs, Phyllis Ann Kirchner, joined by her husband, William R. Kirchner, brought this suit against defendant, Billy Ray Van Skike, her former husband, to change custody of a child granted him in a previous divorce decree. The parties were divorced in March of 1964 and shortly thereafter in September, 1964, the plaintiff, Phyllis Ann Kirchner, brought this suit for a change of custody alleging that a material change of conditions had occurred since the date of the divorce decree, and that the welfare of the child would be best served by granting her the present care, custody and control of the child. Defendant, Billy Ray Van Skike, answered with a general denial.

After a trial before a jury, the trial court submitted the case on one special issue, which the jury answered in favor of the plaintiff, Mrs. Kirchner. The special issue, together with the court’s instructions thereon and the jury’s verdict, reads as follows:

“Do you find from a preponderance of the evidence that since the former Judgment, of March 12, 1964, granting custody of the minor child, Vicki Lynn Van Skike, to Billy Ray Van Skike, there has occurred such a material change of conditions that the best interest of said minor child require a change of custody to Phyllis Ann Kirchner ?
* *
“In connection with the foregoing special issue you are instructed that not every change of conditions justifies the modification of a former decree of divorce awarding the custody of the minor child. Such changed conditions must be such as affect the welfare and best interest of the child and be of such nature that to leave the custody of the child as previously adjudicated would be injurious to the welfare of the child and requires that such custody be changed.”

to which the jury answered:

“We do.”

Upon motion of the defendant, Billy Ray Van Skike, the trial court entered a judgment notwithstanding the verdict, thus permitting defendant to retain the care, •custody and control of the child. Plaintiffs excepted to the ruling of the court and have perfected this appeal contending that there was evidence of probative force to support the jury’s verdict and therefore the trial court erred in refusing to enter judgment on the verdict. Defendant, on the other hand, contends that there was no evidence to support the jury’s finding and that the judgment notwithstanding the verdict was proper.

In child custody proceedings, as in other civil actions, the jury’s findings are binding upon the court’s if supported by any evidence of probative force. Article 4639a, Vernon’s Ann.Tex.Civ.St., as amended; Welch v. Welch, (Tex.Civ.App.) 369 S.W.2d 434.

Thus the sole question presented for review is whether or not there was sufficient evidence of probative force to support the verdict of the jury.

In passing on a motion for judgment notwithstanding the verdict, the trial court must be governed by the test of whether there has been introduced on the trial any evidence of such probative force as to raise an issue of fact. Lee v. Grupe, (Tex.Civ.App.) 223 S.W.2d 548; 4 McDonald Texas Civil Practice, Sec. 17.32.

If there is any evidence of probative force, from which reasonable minds might come to the conclusion that the jury came to, then there is “some evidence” to support the finding of the jury, and it then becomes the duty of the court to enter judgment in keeping with such finding. The fact that there may be evidence to the contrary is immaterial. Biggers v. Continental Bus System, 157 Tex. 351, 298 S.W.2d 79, 303 S.W.2d 359; Martinez v. Welcome, (Tex.Civ.App.) 335 S.W.2d 254.

Since this is an appeal from a judgment notwithstanding the verdict, all testimony must be considered in a light most favorable to the party against whom the motion has been granted, and every reasonable intendment deductible from the evidence is to be indulged in such party’s favor. Rule 301, Texas Rules of Civil Procedure; Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547.

The evidence shows during the marriage of Mr. Van Skike and Mrs. Kirchner, they adopted Vicki Lynn, who was the daughter of Mrs. Kirchner’s sister. At the time of the divorce, Vicki Lynn was approximately four years of age. The divorce decree awarded custody to the adoptive father, Mr. Van Skike, and gave the adoptive mother the right to take the child in her custody on Saturdays and Sundays of each week. Immediately after the divorce, the adoptive father took Vicki Lynn into the home of his mother, where they lived until he remarried some ten months later. After he remarried, he took Vicki Lynn from his mother’s home and moved her into the trailer house with his wife and two step daughters. The evidence shows that Mr. Van Skike followed the construction trade and in following this work, he was required to move his family frequently. At the time of trial, on January 18, 1966, he and Vicki Lynn, together with his wife and two step children, were living in a trailer house in Bay City, Texas.

Phyllis Kirchner testified that shortly after the divorce, she married William R. Kirchner, whom she had lived with continuously since that time; that she and her husband were living in Houston where they maintained a two-bedroom home near churches and schools and that their home was adequately equipped with all facilities necessary for caring for Vicki Lynn; that she was no longer employed, as she was at the time of the divorce, and could therefore devote her entire time and attention to rearing the child; that her husband was regularly employed with the Sheffield Steel Company with a salary of approximately $700.00 a month. She further testified that since the date of the divorce, she had made every effort to visit with Vicki Lynn each week as provided for in the divorce decree, but she had been refused the right to take Vicki Lynn on numerous occasions. She further testified that on several occasions when she was allowed to visit with Vicki Lynn, she observed large bruise spots on her as if she had been beaten with a belt. This testimony was verified by another witness who testified that she had seen dark bruises on the child’s right hip on two occasions. William R. Kirchner, the husband of Phyllis Ann Kirchner, testified that he had developed an affection for Vicki Lynn and likewise desired to assume responsibility for her care and custody.

Other witnesses testified with reference to the suitability of the Kirchner home and as to the fitness of Mr. and Mrs. Kirchner for the custody of the child-While there was other evidence, both pro and con, we see no need to review all the testimony in detail. The jury heard the testimony of all of the witnesses, as well as the parties to the suit, and observed their demeanor and was thus in a position to pass on the credibility of the witnesses and the weight to be given their testimony. In so doing, the jury found that there had been a material change of conditions and that the best interest of the child would be served by awarding her to-the custody of the appellants.

After reviewing all of the testimony in the record in a light most favorable to appellants, it appears to us that there was at least some evidence of probative force to raise an issue of fact upon the question of whether or not the conditions had changed to such an extent that the custody previously adjudicated would be injurious to the welfare and best interest of the child if allowed to continue.

As a consequence, the verdict of the jury awarding custody to appellants became binding upon the trial court and the judgment non obstante veredicto was therefore improper. Article 4639a, supra; Welch v. Welch, supra; Shannon v. Newman, 400 S.W.2d 861, (Tex.Civ.App.).

The judgment of the trial court is reversed and judgment is hereby rendered for appellants, Phyllis Ann Kirchner and husband, William R. Kirchner.


author: GRISSOM, Chief Justice.

text:
    Christina H. Doornbos STAPPERS et al., Appellants, v. The STATE of Texas, Appellee.
    No. 4146.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 12, 1966.
    Rehearing Denied Jan. 13, 1967.

      Weller, Wheelus & Green, Beaumont, for appellants.
    W. G. Walley, Jr., Beaumont, for appel-lee.
   GRISSOM, Chief Justice.

This is an appeal from a judgment in a condemnation proceeding by' the State of Texas against Christina H. Doornbos Stap-pers et al. in which the State alleged it was laying out, reconstructing and improving highway Number 347, and that in connection therewith it was necessary that appurtenant drains, ditches and grades be constructed and maintained across certain land owned by the defendants and that it was necessary to take certain small portions of the defendants’ land and to run drains, ditches and grades across same. The State alleged that the land to be taken was a strip across certain described land of defendants. It further specifically alleged that the State needed an easement “to dispose of spoil from the initial construction of the drainage facility” and that such spoilage be placed within 100 feet of the land taken and that said spoilage be uniformly and neatly spread, with openings left at regular intervals for drainage into a proposed channel. Based upon a jury verdict judgment was rendered for the land owners for the aggregate of the amounts found to be the difference between the value of the defendants’ remaining tracts before and after the taking. The defendants obtained judgment for the land taken and damages to the remaining land for only $28,740.00, and they have appealed.

In answer to issue 13, the jury fouñd the value of defendants’ “remaining” land, before the taking, was $501,000.00 and (14) that its value after the taking was $487,-000.00, or $14,000.00 damages. The defendants filed a motion for judgment non obstante veredicto, urging the court to set aside the answer to issue 14 because the undisputed evidence established that the value of defendants’ remaining land was $89,000.00 less than before the taking, instead of the $14,000.00 difference found by the jury. The motion was overruled. In defendants’ motion for a new trial there were assignments of error to the effect that the court erred in overruling said motion because there was no finding of the value of four 100 foot wide easements taken by the plaintiff on which to dispose of spoilage and because there was no evidence to sustain the jury’s answers to issues 13 and 14 that defendants’ remaining land was only damaged $14,000.00 and also that such findings were so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust.

Defendants owned approximately 197 acres of land in Port Arthur, known herein as the Doornbos tract, which was bounded on the east by State Highway 347; the four tracts taken' slashed their land from east to west, cutting drainage canals from highway 347 to the 60 foot City of Port Arthur Main Outfall Channel, which runs the entire length of def endants’ west boundary. Defendants say the purpose of these canals was not to drain their land, but to drain higher ground to the north and east thereof. The first easement, called the E-l series, ran from highway 347 west to Port Arthur’s Main Outfall Channel and was 30 feet wide. A ditch five feet deep, six feet wide at the bottom and twenty-six feet at the top, was dug there. This first easement taken by the State contained 1.065 acres of land.

About 1300 feet north of the E-l easement, the State took the E-2 series of easements, which ran from highway 347 west to the 60 foot Port Arthur’s Main Outfall Channel. A 45 foot wide easement was taken there, upon which a ditch was dug five to six feet deep, six feet wide at the bottom and twenty-six feet wide at the top. This canal divided and isolated the tracts on the south from those on the north of said canal. The E-2 series condemned was about 1,900 feet long and contained 2.0197 acres of land.

900 feet north of the E-2 easement, the E-3 easement was taken. It, likewise, ran from highway 347 west to the 60 foot City of Port Arthur’s Main Outfall Channel. The E-3 was a 25 foot wide easement taken adjacent to a pre-existing 20 foot wide easement. Upon this 45 foot wide easement was dug a canal five feet deep, six feet wide at the bottom and twenty-six feet wide at the top. The E-3 easements were approximately 1,800 feet in length and contained about 1.007 acres of land.

900 feet north of the E-3 easement, and on the north boundary of the Doornbos tract, the E-4 series of easements was taken. E-4 ran from highway 347 west to the City’s 60 foot wide main outfall channel. It was a 35 foot wide easement taken adjacent to one pre-existing 15 foot easement, with a 5 foot wide ditch. Upon this 50 foot the State dug a canal four feet deep, four feet wide at the bottom and twenty feet wide at the top. The E-4 easement was approximately 1,300 feet in length and containing 1.2715 acres.

As to each of said easements the State alleged it needed in connection therewith an easement to dispose of spoilage from said drainage ditches and that they should each be 100 feet wide and immediately adjacent to the tracts taken.

Defendants say that, in addition to taking the E-l, E-2, E-3 and E-4 easements heretofore mentioned, the State took additional easements 100 feet wide adjacent to each of said four strips on which it deposited the spoilage from three canals which, according to the State’s testimony, produced 17,000 cubic yards of dirt which was spread over the defendants’ adjoining land which was not taken. The defendants offered the testimony of Kohler, a practicing drainage engineer, that the Doornbos tract was much less valuable for residential purposes because thereof. Defendants say it is undisputed that the highest and best use of such property, except the corner highway property which was commercial property, was for a residential subdivision. Defendants offered the testimony of appraiser Smelker that the value of the land taken was $15,337.00; the value of the remainder before the taking $466,839.00; the value of the remainder after the taking $376,885.00, or that the damage to defendants’ remaining land was $89,954.00. Appellants offered the testimony of Thompson that the value of the land taken was $15,968.00 and testimony showing the difference in value of the remainder before and after the taking was $89,248.00. Pete M. Doornbos testified to the effect that the damage to the remainder was $96,000.00.

Appellants’ first point is that the court erred in overruling their motion for judgment non obstante veredicto because there was no finding of the value of the four 100 foot wide easements taken by the State to dispose of ¡spoilage from the drainage ditches. Appellants correctly say that the State sued for an easement 100 feet wide adjacent to each strip taken on which to deposit spoilage from the ditches and that said 100 foot easements were used to deposit the spoilage and that a State’s witness testified that 17,000 cubic yards of earth were excavated and spread over the remaining adjoining property of the defendants. Appellants say that the State, having sued to condemn spoilage easements 100 feet wide running the entire length of the four drainage canals, upon which 17,000 cubic yards of spoilage was spread, was awarded such easements but no issue relative thereto was submitted and no finding was made as to the. compensation due appellants therefor. Defendants say that the taking of such easements for disposal of spoilage on their remaining land violated Article 1, Section 17, of the Constitution of Texas, Vernon’s Ann.St., which provides that no person’s property shall be damaged or applied to public use without adequate compensation, unless by the consent of such person.

The State says the burden was upon the condemnees to see that appropriate issues relative thereto were submitted. The usual rule is stated in 22 Tex.Jur.2d 441, Par. 315, as follows:

“In accordance with the Rules of Civil Procedure, a condemner who fails to request submission of an issue relative to one of the interests sought to be condemned waives its right to have that interest awarded to it, and the trial court has no authority to render judgment awarding the condemner that interest. On the other hand, the failure of the condemnee to object to failure to submit issues relative to a sought interest does not constitute a waiver of his right to have those issues submitted.”

Appellants say that Long v. City of Austin, Tex.Civ.App., 265 S.W.2d 632, ref. n.r.e., is a “white horse” case. There, the City by its pleadings sought condemnation of two easements. The judgment granted them two easements but there was submitted to the jury issues only as to one. They quote the following:

“It is obvious that the two easements do not cross appellant’s land along the same route. No request was made by appellee for the submission of any issue relative to the second easement. In this state of the record appellee waived that ground of recovery. Rule 279, Texas Rules of Civil Procedure. Here appellant was resisting the condemnation of any easement across her land and if appellee, by failing to request issues on this independent ground of recovery, waived it, appellant could agree without being compelled to object to the failure to submit issues thereon and no waiver can be imputed to her because of such failure. Wichita Falls & Oklahoma Ry. Co. v. Pepper, 134 Tex. 360, 135 S.W.2d 79. This unquestionably was the status of the record at the time the verdict of the jury was received. Thereafter when the trial court came to render judgment he could not render judgment awarding relief on an independent ground of recovery which had been waived, and a finding to support the judgment is not to be presumed as to such independent ground of recovery. Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.2d 1084. The trial court had no authority to render a judgment awarding appellee the second easement. Texas Employers’ Ins. Ass’n v. King, Texas Civ.App., 244 S.W.2d 369; Texas Employment Commission v. Brasuell, Tex.Civ.App., 235 S.W.2d 950, error dismissed.”

The State’s pleadings and judgment refer to easements with openings left at regular intervals for drainage into a proposed canal. Therefore, the nature of the easements acquired by the State in the 100 foot strips running the entire length of condemnees’ tract is one in which openings are required to be maintained for drainage into the canal. In other words, appellants say the easements taken deprived them of all beneficial use of their remaining land and, in any event, that the land owners were entitled to a jury determination of the value of their land taken for dumping spoilage. Ordinarily we would agree with this conclusion. However, the State in answering the con-demnees’ point 1 refers to said spoilage easements as “temporary easements.” It agrees with appellants that in its pleading the State, in addition to the drainage easements, sought four “temporary easements”, one adjoining each of the drainage easements, for disposal of spoilage. Such temporary easements were properly placed in issue by the State’s pleadings. Throughout the trial appellants introduced evidence calling attention to such disposal of spoilage. But, after selection of the jury the parties entered into an agreement in open court that “the only issue involved is the value of the land taken by the condemner and the damage, if any, to the remainder of the property. — ” Relying thereon, the court permitted appellants to open and close and the State confined its evidence to said agreed upon issues. The evidence showed the taking of such “temporary easements” for spreading dirt from the ditches. But, when the evidence was closed appellants did not mention nor request an issue relative thereto but abided by said agreement as to the limited fact issues. They waived any right to recover therefor by virtue of said agreement, the courts and appellee’s apparent reliance thereon and their failure to timely assert any claim relative thereto. Said stipulation as to the only issues to be determined by the jury excluded damages from spreading spoilage and confined the trial to facts relevant to the value of the land taken and damage to the remainder. Furthermore, under Rules of Civil Procedure, rule 279, failure to submit an issue is not ground for reversal unless the party complaining of the judgment requested its submission in writing in substantially correct wording or objected to the failure to submit it. Appellants did neither. We agree with the State that a holding against appellants’ contention does not contravene the constitutional limitation mentioned because it expressly provides that another’s property may be damaged with his consent without the necessity of paying therefor. The decision in Hale v. Lavaca County Flood Control District, Tex.Civ.App., 344 S.W.2d 245, states the law applicable here, to-wit:

“In the present case appellants do not assert a denial of due process as such, but do contend that the judgment in question is void because they were not awarded compensation. Article 1, Sec. 17 of the State Constitution contemplates that a person’s property may be taken without compensation if such person consents thereto. Due process requires that the landowner be given an opportunity to establish his damages, but his is not required to do so. He may waive or disregard such right and consent to his property being taken or damaged without payment of any compensation.”

Appellants’ point Number 1 is overruled.

Appellants’ points two through five are to the effect that the court erred in overruling their objections to the testimony of qualified expert witnesses in substance that construction of said drainage ditches did not damage appellants’ remaining land. Whether or not appellants’ remaining land was reduced in value by digging drains on the land taken was an ultimate issue presented by appellants. More specifically, appellants’ claim that the court committed reversible error in overruling their objection to the testimony of Avant that the value of the remaining land was not reduced by construction of drainage canals because it was based upon a hypothetical question and was a conclusion based thereon, that it was based on the assumption that before the taking appellants’ remaining land was inadequately drained but that after the ditches were dug it was adequately drained by the canals constructed upon the land taken. The State produced two real estate experts and relied upon admissions from two engineers introduced by appellants. The witness Terry had been engaged in the real estate business for thirteen years; he had been upon the property, inspected it and investigated the general area for sales of comparable land. He testified as to the sales of comparable land. He checked the elevation on the the respective tracts. In most instances the elevation of property that appeared comparable which had been sold was higher than that of appellants’ land, when the elevation ranged from two to five feet. He was an experienced subdivider, was one of the owners of an addition in the general vicinity of the property which had a 30 foot drainage ditch dug down the middle. He testified that it was not necessary to fence lots that backed up to the drainage ditch. Having to fence was one of the main reasons asserted by appellants as causing damage to their remaining land. This expert witness testified that proper drainage in this area largely affected the market price and caused an increase in price. He testified as a qualified expert, that in his opinion appellants’ remaining land prior to the taking was worth $470,962.00; that, assuming, with reference to which there was adequate testimony, that the ditches would afford proper drainage of appellants’ property, in his opinion, the market value of appellants’ remaining land after the taking would be $486,054.00, in other words, that appellants’ remaining property would be enhanced by such drainage about $15,000.00. Mr. Avant, a real estate broker and appraiser of more than fifteen years experience, investigated appellants’ land and the sale of other comparable land in the vicinity. In answer to hypothetical questions, which assumed appellants’ property was not adequately drained prior to the taking but would be adequately drained by the canals on the land taken, that appellants’ remaining land would be greatly enhanced in value. Appellants’ engineering witnesses testified that appellants’ property was subject to frequent flooding before the taking; that without being adequately drained it was not suitable for residential subdivision; that, based on their experience, education and investigation, said ditches would adequately drain appellants’ property and make it suitable for a residential subdivision. Appellants’ engineering expert, Mr. Kohler, testified that appellants’ land before the taking was not properly drained. Engineer Neel testified that said drainage ditches would adequately drain appellants’ property. Other proceedings complained of simply tend to show that during rainy weather water stood on appellants’ land. All this testimony and the proceedings relative thereto, clearly, did not relate to general benefits. Cases cited by appellant are largely those where the extent of change in highway facilities were considered as conferring benefits to all land owners adjoining a highway and have no application here. The testimony complained of was admissible and relevant to the question whether appellants’ remaining land had been damaged by the drainage ditches. If the drainage ditches constructed on the lands taken from appellant enhanced the value of appellants’ remaining land, it had the effect of adequately draining appellants’ remaining land, which theretofore had not been adequately drained, such testimony was not objectionable on the theory that it permitted the jury to consider enhancement in value of land generally. On the contrary, it related to benefits peculiar to the appellants’ remaining land. Appellee certainly should have been afforded the opportunity to prove that appellants’ remaining land would thereby be increased in value rather than damaged. See Hall v. Wilbarger County, Tex.Civ.App., 37 S.W.2d 1041, and Houston & T. C. R. Company v. Postal Telegraph Cable Company, 18 Tex.Civ.App. 502, 45 S. W. 179, 182. In the latter case the court said it was not the province of the court to exclude evidence of benefits merely because some might possibly think they were such as those shared by the community generally, that to do so was to usurp the function of the jury and let the court decide that question of fact. In State v. Carpenter, (Tex.Com.App.), 126 Tex. 604, 89 S.W.2d 194, 201, issues suggested as proper in condemnation cases were accompanied with instructions to exclude benefits enjoyed by the community generally, indicating, as appellee correctly contends, that such evidence would be heard by the jury and that it was proper for the court to tell it to exclude those benefits that were enjoyed by the community generally. See also City of Dallas v. Priolo, (Sup.Ct.), 242 S.W.2d 176, 180.

Reversible error was not committed by allowing appellee to propound hypothetical questions. One has the right to assume within the limits of the evidence, or inferences reasonably drawn therefrom, any state of facts which it justifies and a right to have expert witnesses to express their opinion upon the facts so assumed. Shuffield v. Taylor, (Tex.Com.App.), 125 Tex. 601, 83 S.W.2d 955. Appellee had the right to have such witnesses assume the drainage ditches would properly drain appellant’s land. There was ample evidence thereof. It was within the province of the real estate expert to testify what effect, in his opinion, drainage had on the market value of appellants’ land. In Gale v. Spriggs, Tex.Civ.App., 346 S.W.2d 620, (Ref. n.r.e.), the court said that:

"Such appraiser could have testified and given an opinion based purely on hypothetical questions. It is well settled that value testimony may be based purely upon hypothetical questions.”

See also Topletz v. Thompson, Tex.Civ.App., 342 S.W.2d 151; Aronoff v. Texas Turnpike Authority, Tex.Civ.App., 299 S.W.2d 342, 347. Moreover, such testimony was not reversible error because appellants introduced evidence of a similar character. We also overrule appellants’ contention that such hypothetical questions invaded the province of the jury. International & G. N. R. Company v. Mills, 34 Tex.Civ.App. 127, 78 S.W. 11. An ultimate issue was the market value of appellants’ remaining land both before and after the taking. The hypothetical questions related to drainage and its effect. If, as there was evidence to show, appellants’ land in fact was improper-erly drained before the taking but, after the taking, was properly drained, so as to be usable for its best purpose, that is, as a residential subdivision, the evidence was relevant and admissible, tended 'to support the findings of market value and did not invade the province of the jury. We have considered the many points presenting procedural error, such as the error assigned to overruling appellants’ objection to testimony as to whether or not fences would be necessary if appellants’ remaining land backed up to the drainage ditch. We conclude that they do not show reversible error. They are all overruled.

Issue 12 inquired whether the market value of appellants’ remaining land had decreased as a result of taking some of appellants’ land for drainage purposes. The jury answered, “Yes”. It found, in answer to issue 13, that the market value of appellants’ remaining land before the taking was $501,000.00 and (14) that its value after the taking was $487,000.00, in other words, that appellants’ remaining land was thereby damaged $14,000.00. Appellants complain of the conditional submission of the question of the market value before and after the taking. Such submission was in accord with the holding in State v. Oakley, 163 Tex. 463, 356 S.W.2d 909, 95 A.L.R.2d 1207, wherein the court said that the ultimate issue as to the remaining property was whether its market value was decreased as a result of the taking. Of course, only controlling issues should be submitted. Texas R.C.P. 279. The jury simply found that appellants’ remaining property had decreased in value $14,000.00. As stated, issue 12 inquired whether the market value of appellants’ remaining land was reduced by the taking. Appellants’ objection that the land taken for drainage easements was not excluded therefrom and that they were prejudiced thereby is overruled. The issue was limited to appellants’ remaining land. It excluded the land taken. There was ample evidence as to whether the remaining land of appellants had diminished or increased in value as a result of the better drainage testified to by expert witnesses. The trial court complied with Rule 277 and gave to the jury guide posts marking the thin line of demarcation between special and general benefits. We think it was in accord with rules stated in State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, (Tex.Com.App.).

There was no reversible error committed by introduction of photographs of appellants’ land before and after the taking. These pictures simply enabled the jury to have a better understanding of appellants’ land before and after the taking and to more accurately answer the issues submitted.

All of appellants’ points have been carefully considered. We conclude that reversible error is not shown. The judgment is affirmed.


text:
    TEXAS ELECTRIC SERVICE COMPANY, Appellant, v. Harriett P. FAUDREE, Ind. and as Guardian et al., Appellees.
    No. 5819.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 7, 1966.
    Rehearing Denied Jan. 4, 1967.

      Turpin, Smith, Dyer & Hardie and Max N. Osborn, Midland, for appellant.
    Bullock & Neely and Tom Scott, Midland, for appellees.
   OPINION

CLAYTON, Justice.

Appeal from an order of the trial court sustaining a plea in abatement filed by ap-pellees in a condemnation case brought by appellant. Appellees, defendants below, are Harriett P. Faudree, Individually and as Guardian of the persons and estates of the minors, Martha Ann Parks, Charlotte Jane Parks and Harriett Ellen Parks; Bill B. Faudree, husband of Harriett P. Faudree; and the minors, individually.

In November, 1964, the appellees entered into a surface lease agreement with Gulf Refining Company, leasing a three-acre tract to Gulf to be used for the erection and operation of a liquified petroleum gas products booster station. Thereafter, Gulf requested that appellant, Texas Electric Service Company, furnish to it electricity to operate the booster station. The utility, Texas Electric Service Company, for the purpose of securing a SO-foot right of way over appellees’ land in order to construct its distribution line to the booster station, filed its Statement for Condemnation against appel-lees on April 15, 1965. Commissioners were appointed and on June 25, 1965 assessed damages at $1,000.74 for the strip of land to be used as a right of way, and provided ingress and egress for Texas Electric to be limited to that provided for Gulf Oil Company in its lease, phrased to fit an easement rather than a lease. Texas Electric, on June 29, 1965, appealed the award to the County Court and filed its First Amended Statement for Condemnation on August 31, 1965. Appellees then, on November 26, 1965 filed their answer and plea in abatement and motion to dismiss on the ground that the Gulf Refining Company was a necessary and indispensable party to the lawsuit, and had not been made a party to these proceedings.

Judgment was entered by the County Court sustaining the plea in abatement and holding that Gulf was a necessary and indispensable party to the suit, from which order appellants appealed. All other points raised by the appellees in their plea in abatement were overruled.

The appellant raised three points of error to the ruling of the court: First, that the court erred in holding that Gulf was a necessary and indispensable party to the condemnation suit because of contractual relations between Gulf and the appellees; second, in so holding because under the surface lease Gulf could not grant a right of way to appellant and had not attempted to do so; and third, in so holding because Gulf was to be provided service by appellants on the right of way to be obtained in the condemnation suit, whereas under the surface lease appellees retained the exclusive right to grant right of way to an electric utility company.

Appellant points out that since the court had sustained a plea in abatement, the cause was never tried on its merits and no evidence was offered with regard to the merits of the case. In support of its first point of error, appellant asserts that this is a condemnation case, statutory in nature under the provisions of Title 52, Art. 3264 et seq., of the Vernon’s Ann. Texas Revised Civil Statutes, and permits a public utility to take land for a public purpose upon payment of compensation for the land taken. Appellant attacks the appellees’ contention that Gulf should be made a party to the condemnation proceedings, despite the fact that the condemnation was instituted to provide electrical service to Gulf, and the surface lease under which Gulf is in possession gives it no right to grant a right of way to provide such services. The only other parties affected are appellees, who are made parties to the proceedings.

Since the surface lease has been referred to in connection with the plea in abatement, the pertinent parts thereof should be here quoted. The parts referred to are paragraphs 6(c) and 8 thereof, which read as follows :

“6.
******
“(c) Lessee agrees to pay Lessor for all damage to any property of any kind, including, any building, residence or other structure, agricultural implements and equipment, water wells, livestock, shrubs, trees, grass, growing crops, the surface, fences and roads, and any and all of them, arising out of installing, maintaining and operating the booster station on the leased premises (except damages to the surface and grass within the boundaries of the leased premises) or as a result of the escape of any substance transported through any pipelines of Lessee. This obligation is unconditional and absolute, without regard to the negligence or degree of care exercised by Lessee. The obligation of Lessee to pay damages as aforesaid extends to operation within and outside the boundaries of the leased premises.”
“8.
“(a) Lessee shall not sell or assign this lease or sublet said premises or any part thereof without first obtaining the written consent of Lessor.
“(b) This lease between Lessor and Lessee shall not confer upon any electric utility company or other utility company the right to extend service to the Lessee at the leased premises over and across or through the land adjacent to the leased premises, and no such rights shall be implied; it being understood and agreed that any utility company shall use for this purpose only such rights-of-way or licenses as may have been heretofore, or which may be hereafter, created or granted.”

The judgment of the trial court, as stated, sustained the plea in abatement in so far as it was based upon the claim that Gulf was a necessary and indispensable party to the condemnation, but overruled the other grounds alleged in the plea in abatement. The matter of clearly defining and distinguishing necessary and indispensable parties has been undertaken by numerous authorities. The Supreme Court, in Royal Petroleum Corporation v. Dennis, 160 Tex. 392, 332 S.W.2d 313 (1960), in an opinion by Judge Culver, has this to say:

“Necessary parties to a suit are those who have or claim a direct interest in the object and subject matter of the suit and whose interest will necessarily be affected by any judgment rendered therein. Veal v. Thomason, 138 Tex. 341, 159 S.W.2d 472; Cook v. Pollard, 70 Tex. 723, 8 S.W. 512.
“The term ‘necessary parties’ has also been defined as ‘persons who have such an interest in the controversy that a final judgment or decree cannot be made without either affecting their interests or leaving the controversy in such a condition that its final adjudication may be wholly inconsistent with equity and good conscience.’ 67 C.J.S. Parties § 1, p. 890. This definition has also been accepted and applied in this jurisdiction. Fischer v. Rio Tire Co., Tex.Com.App., 65 S.W.2d 751; Simmons v. Wilson, Tex.Civ.App., 216 S.W.2d 847; Jones v. English, Tex.Civ.App., 235 S.W.2d 238, wr. dism.”

The following is' taken from McDonald, Texas Civil Practice, 1965 Revised Volume I, sec. 3.23, p. 297:

“ * * * Truly ‘indispensable parties are only those whose interests could not be excluded from the terms or consequences of the judgment and leave anything, or appreciably anything, for the judgment effectively to operate upon, as where the interests of the absent party are inextricably tried in to the cause * * * or where the relief really is sought against the absent party alone * * *. [I] f there may be a viable judgment having separable affirmative consequences with respect to parties before the court, and the inquiry is concerned solely with the inequities, in the light of the total circumstances, resulting from the inability to affect absent interested parties, then such other parties should be defined as merely necessary, not indispensable.’ * * * It is ‘such an interest that it is necessary for the owner thereof to be a party in order to enable the court to grant complete relief as between the parties before it.’ ”

In determining whether a party is necessary, the following is given in the same text, on page 300:

“ * * * Four test questions often have been quoted:
‘After first determining that [the] party is interested in the controversy, the court must [answer] the following questions * * *: (1) Is the interest of the absent party distinct and sever-able? (2) In the absence of such party, can the court render justice between the parties before it ? (3) Will the decree made, in the absence of such a party, have no injurious effect on [his] interest * * *? (4) Will the final determination, in the absence of such party, be consistent with equity and good conscience?’
“If all four are answered ‘Yes,’ the party, though he be necessary, is not indispensable. If one or more are answered ‘No’, he is indispensable.”

If this test is applied to the facts before us, all questions must be answered in the affirmative. The language of paragraph 8 of the lease agreement, previously quoted, clearly makes the interest of the absent party (Gulf) distinct and severable from appellees, parties to the suit, by withholding from Gulf any right to confer upon any utility company the right to extend services to Gulf over, across or through the land adjacent to the leased premises, but such utility company must use for such purpose only such rights of way or licenses theretofore or thereafter granted or created. Gulf could not be a necessary party to a lawsuit filed for the purpose of securing such rights of way or licenses, nor could it benefit therefrom.

If Gulf would be liable to appellees for any damages resulting from a condemnation of the right of way or ingress and egress, under the terms of paragraph 6(c) of the surface lease quoted above, an issue of such liability would be apart from the issues provided for in the statutes on Eminent Domain and could not be included in the statutory provisions governing the subject.

In the case before us, the issue in the condemnation proceedings is the right of appellant to condemn part of appellees’ land, and if so, the amount of compensation to be paid by appellant therefor. It is possible that under the terms of the surface lease agreement with Gulf, the latter may become liable in some amount to appellees. But this is not properly a part of the condemnation proceedings, nor does such consideration make Gulf an indispensable party to such proceedings.

Appellees have presented a “Reply Point” in reply to appellant’s Points 1, 2 and 3 which deals with the court’s decision that Gulf is a necessary party to the suit. We believe this contention has heretofore been adequately treated, without need of further consideration.

In Appellees’ Cross-Point One, the claim is made that the trial court erred in overruling appellees’ Motion to Dismiss on the ground that the Board of Directors of Texas Electric Service Company has never made a declaration of public necessity for the transmission line in question. Appellant claims this matter is not for consideration of the Commissioners, and had not been reached before the County Court since the plea in abatement was sustained before any evidence was offered on the merits. Cited in Brazos River Conservation & Reclamation Dist. v. Allen, 141 Tex. 208, 171 S.W.2d 842, 846 (Tex.S.Ct., 1943) where it is said: “The sole authority given to the commissioners by the statute (Articles 3264-3265) is to hear the evidence, assess the amount of damages due the owner and file their decision with the county judge. They are not a court.” See also 22 Tex. Jur.2d 89 § 17. We believe this Cross-Point One to be without merit.

In Cross-Point Two, appellees claim that the trial court erred in overruling ap-pellees’ motion to dismiss because this proceeding constitutes a collateral attack upon the prior order of the County Court in the surface lease matter. This is a proceeding instituted under the provisions of Title 52, Article 3264 et seq., relating to Eminent Domain. It cannot be successfully maintained that such a statutory proceeding is subject to, or controlled by, an action of a County Judge, especially when one of the parties to the condemnation proceeding here was not even before the court in its action with reference to the Gulf surface lease. This cross-point is overruled.

In their Cross-Point Four appellees call attention to the fact that in the Original Statement for Condemnation the appellant, paragraph 5, in addition to requesting a right of way easement on the strip of land for the power line, asked for the right of ingress and egress in this language: “Together with the rights of ingress and egress to and from said strip over and across Defendants’ adjacent property.” Appellees contend that the “adjacent property” of defendants consisted of a 36,000-acre ranch.

The Commissioners tried to confine the right of ingress and egress for the appellant Electric Service Company to that granted to Gulf in its surface lease, and appellant, in paragraph 5 of its First Amended Statement of Condemnation, sets out a proposed right of ingress and egress the same as that granted in the surface lease to Gulf. Appellees cite and quote from an opinion of this court in Texas Electric Service Company v. Linebery, 327 S.W.2d 657, 664 (Tex.Civ.App., 1959, dism.), where it is held:

“It was not within the province of the court below to limit the condemnor’s right of ingress and egress over and across defendants’ adjoining property to any particular route or particular portion of defendants’ adjoining land; it being a legislative or political question, not a judicial one, and, therefore, not subject to review by the courts. See 16 Tex.Jur. 395, sec. 125, and authorities cited.”

The appellees take the position that the action on the part of the Commissioners in attempting to limit the “rights condemned” was a nullity. But certainly the appellees have no ground of complaint when the Commissioners confined the scope of ingress and egress to the same route approved by appellees in their surface lease with Gulf, and appellant was not harmed since it adopted this route in its amended Statement for Condemnation. If technically any error had been committed by the Commissioners in their award, we deem it harmless error. The action of the appellant seems to be approved in the case of State v. Nelson, 160 Tex. 515, 334 S.W.2d 788, 790 (S.Ct., 1960) cited by appellant, in which it was held that:

“Subject to jurisdictional limitations, there is no reason why the rule which permits pleadings to be amended should not apply to the proceeding after it has become a case in court. See Gulf, C. & S. F. Ry. Co. v. Kerfoot, 85 Tex. 267, 20 S.W. 59. It is settled, for example, that the pleadings can be amended in the county court to set up additional grounds for attacking the award. Coastal States Gas Producing Co. v. Pate, 158 Tex. 171, 309 S.W.2d 828. Where the landowner will not be prejudiced, the condemning authority may also amend the description and abandon part of the land or rights which it had previously sought to condemn. Texas Power & Light Co. v. Cole, 158 Tex. 495, 313 S.W.2d 524.”

We find nothing in the record before us to substantiate the claim of appel-lees in Cross-Point Three that the Commissioners failed to assess damages for the “rights condemned”; nor is there any evidence presented as to the damages incurred by appellees in the condemnation proceeding other than the $1,000.74 awarded by the Commissioners. Appellees’ Cross-Points Three and Four, dealing with these matters, are overruled.

Having considered all points of error and cross-points presented to us, we have come to the conclusion that Gulf Refining Company was not a necessary and indispensable party to the proceedings as they come to us in this record, and that the trial court erred in holding them to be and sustaining the plea in abatement filed by appellees. We find no other error on the part of the trial judge, but we must reverse this cause and remand it to the County Court of Midland County, Texas, for a trial on the merits.

Reversed and remanded.


author: McDONALD, Chief Justice.

text:
    TEXAS CONSTRUCTION RENTALS, INC., Appellant, v. Gerard A. HARRISON, Appellee.
    No. 4563.
    Court of Civil Appeals of Texas. Waco.
    Dec. 29, 1966.
    Rehearing Denied Jan. 19, 1967.

      Hutcheson, Taliaferro & Hutcheson, J. Philip Wandel, William G. Wilson, Houston, for appellant.
    Fred W. Moore, Houston, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Texas Construction, from a judgment for plaintiff Harrison, in a suit for breach of an express warranty of a Caterpillar tractor, sold by defendant to plaintiff.

Plaintiff sued defendant alleging that defendant entered into an agreement orally and in writing with plaintiff, to sell plaintiff a used D8 Caterpillar tractor (plus equipment) for $16,000; that such agreement set out certain repairs defendant was to make to the tractor, and warranted the tractor would be in “excellent operating condition”; that plaintiff believed and relied on defendant’s warranty which induced plaintiff to purchase the tractor; that plaintiff informed defendant he was purchasing the tractor to clear a certain 1200 acre tract of land prior to a date upon which plaintiff was obligated to clear same; that the tractor was not delivered in excellent operating condition; that plaintiff had to make some $9,104 repairs to the tractor; and rent another tractor for $1800 to work during such period of repair; that the tractor as delivered was worth only $4,000. Plaintiff prayed for damages in the amount of repairs and rental; and alternatively for the difference in the value of the tractor as delivered and the purchase price, plus the rental of the other tractor.

Trial was to a jury which found:

1) The tractor was not in excellent condition at the time it was delivered.
2) The reasonable cost of repairs necessary to place the tractor in excellent operating condition was $8,000.
3) The reasonable market value of the tractor as delivered was $10,000.
4) The reasonable rental value of the tractor rented to work while the purchased tractor was being repaired was $1260.
5) Selmer A. Larson did not accept delivery of the tractor.

The trial court overruled plaintiff’s and defendant’s motions for instructed verdict; overruled plaintiff’s motion for judgment for the costs of repairs; and entered judgment for plaintiff for $7260 (difference in price and value of the tractor, plus the reasonable rental value of the rented tractor).

Defendant appeals on 11 points, contending:

1) The trial court erred in overruling defendant’s motion for instructed verdict, in that plaintiff failed to prove the reasonable market value of the tractor as delivered was less than $16,000.
2) The jury findings do not support a judgment for plaintiff.
3) Issue 4 should not have been submitted ; and the finding is grossly excessive.
4) The finding of the jury in Issue 8 is against the overwhelming weight and preponderance of the evidence.
5) Plaintiff’s counsel made improper jury argument which requires reversal.

Plaintiff, by cross points, asserts he was entitled to judgment for $9260, (the cost of repairs plus the cost of additional tractor rental) instead of the $7260 awarded by the trial court.

Plaintiff purchased a used timber moving D8 Caterpillar tractor from defendant for $16,000. Defendant orally and in writing agreed to make certain repairs to the tractor “to put this machine in excellent operating condition.” Some repairs were made and defendant delivered the tractor to plaintiff. After some 90 hours of work the tractor broke down. Plaintiff notified defendant and defendant offered to make some repairs which were not satisfactory with plaintiff. Plaintiff had $9104 repairs made to the tractor; and rented another tractor to do work clearing timber while the purchased tractor was being repaired.

Defendant’s first contention is that the trial court erred in overruling its motion for instructed verdict, in that plaintiff failed to prove the value of the tractor was less than $16,000. After the trial court overruled defendant’s motion, defendant elected not to stand on such motion, but proceeded with the introduction of his evidence. In such situation defendant waives his motion, and if thereafter as here, the evidence from all sources is sufficient, the defendant cannot contend the trial court should have sustained his motion. Citizens’ Mut. Life Ins. Ass’n v. Miles, CCA (nwh), 77 S.W.2d 717.

Defendant’s second contention is that the jury findings do not support a judgment for plaintiff. Defendant asserts there is no finding that plaintiff relied on the warranty, and absent such finding there can be no judgment for plaintiff. The evidence is undisputed that plaintiff relied on defendant’s oral and written agreement to put the machine in “excellent operating condition”; no issue and finding thereon was necessary.

Defendant’s third contention is that Issue 4 should not have been submitted; and that the finding is excessive. Plaintiff told defendant he had borrowed the money to buy the land and had a commitment from an insurance to loan him the money when he cleared the land, and that the land had to he cleared by December 31st, and that such was his reason for purchasing the tractor. Reasonable rental cost of another tractor was a proper element of damage. Webb-North Motor Co. v. Ross, CCA, Er. Dis., 42 S.W.2d 1086; The Kansas City Ry. Co. v. Frederick, CCA (nre), 276 S.W.2d 332; Craftsman Glass, Inc. v. Cathey, CCA (nwh), 351 S.W.2d 950.

The evidence is that $20 per hour is the usual reasonable rental for such a tractor. Plaintiff used the tractor for some 35 days; and there is evidence such a tractor would rent for $1800. The finding is not excessive.

Defendant’s fourth contention is the finding in answer to Issue 5 is against the weight and preponderance of the evidence. Selmer Larson was a friend of plaintiff and delivered the check to defendant for the tractor. While we think there is ample evidence to sustain the finding, it makes no difference whether Larson accepted the tractor. Plaintiff relies on the breach of an express written warranty.

Finally, defendant complains plaintiff’s counsel guilty of improper jury argument in two instances. The trial court in both instances instructed the jury to disregard the complained of argument. We think the matter complained of, if error, harmless. Rule 434, Texas Rules of Civil Procedure.

Plaintiff by cross points complains that he was entitled to the cost of repairs as his measure of damages.

We think the measure of damages plaintiff entitled to recover, is the difference in the market value of the tractor in the condition in which it was delivered, and its market value had it been delivered in the condition it should have been according to the contract of the parties (here the contract price). Wright & Clark v. Davenport, Sup.Ct., 44 Tex. 164; Stark v. Alford, Sup.Ct., 49 Tex. 260; McCown v. Jennings, CCA (nwh) 209 S.W.2d 408; Hendricks v. Moore, 156 Tex. 570, 297 S.W.2d 811.

Plaintiff’s cross points are overruled. Defendant’s points and contentions are overruled.

The judgment is correct.

Affirmed.


text:
    Warren P. CASTLE, Jr., et al., Appellants, v. APPLIANCE BUYERS CREDIT CORPORATION, Appellee.
    No. 16837.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 23, 1966.

      Paul Thorp, of Matthews, Weaver & Thorp, Dallas, for appellants.
    Harry I. Freedman & Richard S. Geiger, of Spafford, Freedman, Hamlin, Gay & Whitham, Dallas, for appellee.
   CLAUDE WILLIAMS, Justice.

Appliance Buyers Credit Corporation brought this action against Warren P. Castle, Jr. and Milton H. Friend, Jr., asking judgment for the unpaid balance of a promissory note. Plaintiff’s motion for summary judgment was sustained and this appeal follows.

Appellants’ only point on appeal is that the trial court erred in rendering summary judgment for appellee since an issue of fact existed as to the unpaid balance of the note. We have carefully reviewed this record in the light of the rules relating to judicial review of summary judgment proceedings as announced by our Supreme Court in Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, and having done so we overrule appellants’ contention and sustain the trial court’s action.

The petition of the appellee corporation was regular on its face alleging a cause of action against appellants to recover the balance due on a promissory note executed by appellants, which note was attached as an exhibit to the petition. Appellants’ unverified answer consisted of a general denial and a general allegation to the effect that appellee had posted for sale the real property described under a deed of trust given by appellants to secure the note sued upon and that on or about January 4, 1966 appellee corporation proceeded to sell said real estate to itself. It was then asserted that appellee corporation did not pay the reasonable market value of such property but that the corporation purchased same for a grossly inadequate sum. It was claimed that if proper credit was given for the market value of the property that nothing would be due and owing on the note.

Appellee’s motion for summary judgment wss supported by affidavit of E. D. Smythe, its vice-president, in which facts were set forth relating to the execution, delivery, ownership and nonpayment of the note and that “after allowing all just and lawful assets, payments and credits to which the makers are entitled there remains due and owing on said note the sum of $56,177.71.” In opposition to the motion for summary judgment appellants alleged generally that they had not been given due credit on the note. To support the opposition to the motion appellants attached an affidavit by appellant Friend who stated that in his opinion the property and improvements had a market value in Dallas, Texas on January 4, 1966 of more than $75,000 in excess of the amount of the first lien mortgage against the property. There was also attached an affidavit of attorney Paul Thorpe stating that “he was advised by Harry I. Friedman and during the month of March 1966 he was advised by Richard S. Geiger * * * that plaintiff had bought in said property for the sum of $5,000.”

Under the well established law of Texas appellants’ motion and supporting affidavits were insufficient to create an issue of material fact which would prevent the granting of a summary judgment.

It is first to be observed that appellants failed to allege, as required by Rule 95, Vernon’s Texas Rules of Civil Procedure, or to prove payment which would controvert appellee’s contention that the note was due and payable in the amount demanded. Southwestern Fire & Casualty Co. v. Larue, Tex.Sup.Ct, 367 S.W.2d 162.

The real theory of appellants’ appeal seems to be nothing more than a collateral attack upon a trustee sale held prior to the institution of this suit. Appellants’ contention that the consideration paid by appellee corporation for the property at the trustee sale was inadequate is in itself insufficient to constitute a valid attack on the sale. Mere inadequacy of consideration alone does not render a foreclosure sale void if the sale was legally and fairly made. Tarrant Savings Ass’n v. Lucky Homes, Inc., Tex.Sup.Ct., 390 S.W.2d 473; Graham & Locke Investments v. Madison, Tex.Civ.App., 295 S.W.2d 234; Miller v. Gibraltar Savings & Building Ass’n, Tex.Civ.App., 132 S.W.2d 606; 13 Tex.Jur.2d Contracts, § 49, p. 183.

Appellants make no contention or produce no proof that the trustee sale was unfairly held or coupled with fraud or other circumstances. A trustee sale will not be disturbed or set aside because the consideration was inadequate unless there were allegations and proof of irregularities connected with the sale which caused or contributed to cause the property to be sold for a grossly inadequate price. Jacobson v. Nat’l Western Life Ins. Co., Tex.Civ.App., 403 S.W.2d 528; Tarrant Savings Ass’n v. Lucky Homes, Inc., Tex.Sup.Ct., 390 S.W.2d 473.

The judgment of the trial court is

Affirmed.


author: SELLERS, Justice.

text:
    Blake G. SLOCUM and wife, Barbara Slocum, Appellants, v. GALVESTON COUNTY, Texas, Appellee.
    No. 242.
    Court of Civil Appeals of Texas. Tyler.
    Dec. 1, 1966.
    Rehearing Denied Jan. 5, 1967.

      Simpson, Hancock & Green, James P. Simpson, Texas City, for appellants.
    Markwell, Stubbs, Decker, Dalehite & Youngblood, William D. Decker and Elmo M. Johnson, Galveston, for appellee.
   SELLERS, Justice.

Appellants, Blake G. Slocum and wife, brought a suit for personal injuries against Galveston County alleging that Mrs. Slocum had sustained personal injuries as a result of consuming a meal in which was embedded a piece of glass which severely injured her gums, mouth and teeth. At the time of sustaining her injuries, Appellant was a paying patient in Galveston County Memorial Hospital, which was owned and operated by the Defendant. Appellant contends that such occurrence, in the absence of the asserted defense of governmental immunity, was such as to form the basis for liability based upon the well settled doctrine of products liability. Upon the filing of her suit for damages, the Defendant, Galveston County, through its counsel filed a motion for summary judgment under Rule 166-A of the Rules of Civil Procedure of Texas in which the Defendant asserted the defense of governmental immunity. Based upon such motion and upon well settled law, the Trial Judge granted the County’s motion for summary judgment. This appeal followed in due course.

“FIRST POINT OF ERROR
“The Trial Court erred in granting the motion for summary judgment in this cause, acting as it did on the asserted grounds of governmental immunity from tort liability.
“STATEMENT OF APPELLANT’S FIRST POINT OF ERROR
“The formal requirements of Appellate procedure require an Appellant to point out the error into which Trial Judge has allegedly fallen. In this case candor requires the admission that the Trial Judge did indeed not err in granting the Defendant’s motion for summary judgment based upon its asserted governmental immunity from tort liability. The Trial Judge acted upon well settled law granting • to counties as well as other political subdivisions immunity from tort liability. This appeal then is a frontal assault on the citadel of governmental immunity in Texas. Although the Trial Judge did not err, it is asserted that the basis, if any there ever existed for this harsh rule, no longer finds acceptance in the light of current conditions. This appeal then is one to this Honorable Court to re-examine the anachronistic doctrine of governmental immunity.”

Then follows an able Brief of authorities in other jurisdictions abolishing the above rule of governmental immunity.

Since appellants admit that the Supreme Court of this State has many times in numerous cases upheld the above rule, we see no beneficial purpose in citing the cases so holding.

This Court finds itself in the same position of the trial court in that it is our constitutional duty to follow the law as announced by the Supreme Court where the identical question has been decided. 15 T.J.2d, Section 137, page 597 states the rule: “Thus, it is the constitutional duty of the Court of Civil Appeals to follow decisions of the Supreme Court in cases that are squarely in point.”

The judgment of the trial court is affirmed.


author: DIXON, Chief Justice.

text:
    LEE-EMMERT, Appellant, v. MACATEE, INC., Appellee.
    No. 16839.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 30, 1966.
    Oswin Chrisman, of Palmer, Green,. Palmer & Burke, Dallas, for appellant.
    Christopher M. Weil, Dallas, for appel-lee.
   DIXON, Chief Justice.

Appellant Lee-Emmert, a corporation, and a general contractor, sued appellee-Macatee, Inc. for damages caused by delays in delivery of 228,000 Mexican adobe bricks to be used in the construction of an apartment building. This appeal is from a summary judgment in favor of appellee Macatee, Inc. that appellant take nothing.

This suit is a consolidation of two suits. Appellee Macatee, Inc. as plaintiff sued Lee-Emmert as defendant for the purchase-price of the bricks. Lee-Emmert as plaintiff in a separate action sued Macatee, Inc. as defendant for damages for delays in delivery of the bricks. In the consolidated suit Lee-Emmert, Inc. occupied the position of plaintiff and Macatee, Inc. the position of defendant-plaintiff in a counterclaim. Except insofar as its counterclaim for the purchase price of the bricks may be so regarded, Macatee, Inc. did not file an answer to the suit of Lee-Emmert for damages for delays in deliveries.

Appellee Macatee filed motions for summary judgment both in its cause of action against appellant and in appellant’s cause of action against appellee. Both motions were sustained. An interlocutory judgment was rendered in the action by Macafee, Inc. for the purchase price of the bricks. Later the summary judgment was rendered in the damage action from which judgment this appeal is taken.

Appellant does not deny that it is liable for the purchase price of the bricks. But it says in substance that it is entitled in the final judgment to offset its indebtedness to Macatee, Inc. by the damages it suffered by reason of Macatee’s delays in delivery.

In its point on appeal appellant asserts that there are material fact issues disclosed by the record in its action for damages which could not properly be resolved against appellant in a summary judgment.

The sale of the bricks is evidenced by a written order accepted by appellee. This order provides that the bricks were to be delivered by appellee to appellant at the rate of 50,000 per week beginning April 20, 1964.

Appellant’s written order contains the following provisions:

“3. We reserve the right to cancel this order, without cost or obligation to us, if shipment is not made in accordance with all terms of this written order.
“— Time is of essence.”

Most of the material facts are undisputed. Appellee admits in its brief that (1) time was of the essence of the contract, (2) there were delays in delivery, and (3) appellant sustained damage. Ap-pellee even admits that there are fact questions present but says that they are not material or necessary to a disposition of the case on appeal. Appellee takes the position that there was no liability on its part because (1) under the terms of the contract appellant’s exclusive remedy — that is, its only remedy — for delays in the scheduled deliveries was to cancel the contract and (2) by accepting the delayed deliveries of the bricks appellant as a matter of law waived its only remedy, cancellation, and as a matter of law is not entitled to maintain a suit for damages.

We do not agree with appellee as to appellant’s right to maintain suit for damages. In our opinion the quoted paragraph in regard to the right of appellant to cancel the contract is permissive in character. It does not have the effect of limiting appellant to the remedy of cancellation. Nowhere in the written order do we find any provision which may be interpreted to mean that if appellant fails to exercise its right of cancellation it thereby loses its right to the remedy of damages for delay in deliveries.

In Nunn v. Brillhart, 111 Tex. 588, 242 S.W. 459, 461 (Tex.Com.App. opinion adopted) there is this significant statement:

“When the provisions for return and rescission are merely permissive, it is generally held that they give the buyer an option to seek redress by that method, and his right to seek redress if he chooses under the ordinary rules of law is not in any way impaired thereby.”

See also West Texas Utilities Co. v. Huber, Tex.Civ.App., 292 S.W.2d 702 (ref. n. r. e.); and Powers v. Sunylan Co., 25 S.W.2d 808 (Tex.Com.App.).

By accepting the delayed deliveries of the bricks appellant undoubtedly waived its right to cancel the contract. However, we think it is a fact question whether appellant by accepting the delayed deliveries waived - the provision that time was of the essence, or waived its right to sue for damages. Alco Oil and Gas Corp. v. Concord Oil Co., Tex.Civ.App., 375 S.W.2d 463 (affirmed 387 S.W.2d 635); West Texas Utilities Co. v. Huber, supra; Ford v. Culbertson, 158 Tex. 124, 138, 308 S.W.2d 855, 865. Waiver is ordinarily a question of fact and intention is usually a necessary element in determining the question. Kennedy v. Bender, 104 Tex. 149, 135 S.W. 524; Ford v. Culbertson, supra.

In its response to appellee’s motion for summary judgment Merlin Lee, President of Lee-Emmert, in an affidavit in proper form under Rule 166-A, Vernon’s Texas Rules of Civil Procedure, swore (1) that in April 1964 he agreed with Mr. Harry Vaughn representing Macatee for the purchase of 228,000 bricks at a price of $47 per thousand; (2) that Mr. Vaughn at the time was informed of the necessity for the prompt delivery of the bricks because Lee-Emmert was then engaged in the construction of an apartment complex at 4217 Brown Street in the City of Dallas; (3) that said bricks were to be delivered beginning April 20, 1964 at the rate of 50,000 bricks per week; (4) that Lee-Emmert sent and delivered to appellee the written order agreement; (5) that appellee failed to deliver the bricks on time; (6) that due to such failure monetary damage was caused to Lee-Emmert as follows:

(a) Additional sheet metal was required to be applied to roofs — additional cost: $392.
(b) Four moves in and out of the building site were required by various bricklayer subcontractors — additional cost: $6,209.
(c) Water damage: $693.
(d) 56 additional days’ interest on $700,000: $5,395.47.
(e) Additional overhead expense: $400 per week.
Total damages: $15,889.51.

Since this was a summary judgment all doubts as to the existence of a genuine issue of material fact must be resolved against appellee. Appellant is entitled to the benefit of every reasonable inference which can properly be drawn in its favor. Womack v. Allstate Ins. Co., 156 Tex. 467, 296 S.W.2d 233, 235.

Believing that the record presents a fact question as to waiver of damages we sustain appellant’s point on appeal and reverse the judgment and remand the cause for a trial.

Reversed and remanded.