author: FANNING, Justice. DAVIS, Justice.

text:
    MEDALLION STORES, INC., Appellant, v. W. T. EIDT, Appellee.
    No. 7714.
    Court of Civil Appeals of Texas. Texarkana.
    May 31, 1966.
    Rehearing Denied July 5, 1966.

      Jack Pew, Jr., Jackson, Walker, Win-stead, Cantwell & Miller, Dallas, for appellant.
    Charles Gallagher, Carter, Gallagher, Jones & Magee, Dallas, for appellee.
   FANNING, Justice.

This is an appeal from a verdict and judgment in favor of appellee, a customer of appellant’s store, for injuries sustained when he tripped over the corner of a display platform that constituted the boundary of one of the aisles in the store. There was one and only one liability finding against appellant: that appellant, at the time and on the occasion in question, “had a display platform without merchandise or other tangible objects resting thereon”, which act was negligence and a proximate cause. (Special issues 1, 2 and 3) Appellant has timely complied with all the steps in the appellate process. The points of error presented here are germane to assignments in appellant’s motion for judgment non obstante veredicto and to disregard certain special issues, its amended motion for new trial, or both of them.

Appellee went into appellant’s store for the purpose of purchasing a television set. He and his wife were proceeding down an aisle in search of the television department; on his way he noticed a display of dishes which he thought was “mighty pretty”; the various displays of merchandise were placed upon platforms and were arranged to attract the attention of the customer to the various displays; • one of these platforms or “display islands” had no merchandise on it and appellee while looking upwards towards signs in the television department after being told by his wife where to look for them, tripped over the platform or “display island” which had no objects upon it, and received his injuries from tripping over said platform. He did not see the platform or display island and had not been in the store before. He testified that he was looking up toward the television department signs when he tripped over the platform, but further testified to the effect that he guessed that he could have seen it if he had been looking down instead of up. His wife did not see the accident. The witness Crawford testified that he saw the accident and saw Mr. Eidt trip over the platform or display island. There was also testimony to the effect that an employee of the store was changing the display on the platform in question; however this was not being done at the immediate time when Mr. Eidt tripped over the platform in question, however after the accident merchandise or boxes were placed on said platform or display island. Appel-lee’s attorneys, on cross-examination of appellant’s witness and employee, Miss Mason, developed, among other things, testimony as to the art of display and the purpose of display to attract the attention of customers.

The type of the display platform in question is shown in Defendant’s Exhibits Nos. 1, 2 and 3, photographs of the interior of appellant’s store; appellee’s wife measured the height of the platform at 4¾ inches and estimated that the platform was 3 or 4 feet wide and 5 or 6 feet long.

It was undisputed that the color of the platform contrasted with the color of the floor and that the store was well lighted. There was testimony to the effect that the display platform was of a standard type and used in “plenty of stores”, which was not disputed. There was also testimony to the effect that stores change their displays or display platforms.

The jury in response to issues 4,10 and 11 found to the effect: (4) that the failure of defendant to use a display platform boxed in at the bottom, at the time and on the occasion in question, was not negligence, (10) that at the time and on the occasion in question the display platform in question did constitute an unreasonable hazard to the purchasing public, and (11) that plaintiff at the time he reached the proximity of the platform in question did not have full knowledge of its presence.

There is no evidence or contention that the platform in question was not properly aligned with the other platforms which constituted the boundaries of the aisle. We have examined the photographs of the platforms in the interior of appellant’s store and conclude that the platforms are plainly visible, and are open and obvious to anyone who might choose to look at them. The evidence is likewise undisputed that the platforms are plainly visible.

Appellee, a customer in appellant’s store, was an invitee. A. C. Burton Co. v. Stasny, Tex.Civ.App., 223 S.W.2d 310, writ refused (1949). A retail store is not an insurer of its invited customers. Parker Food Stores, Inc. v. Pierce, Tex.Civ.App., 374 S.W.2d 699, wr. ref., n. r. e. (1964). The store’s liability, if any, must be predicated upon a showing of a breach of a duty. A. C. Burton Co. v. Stasny, supra. (223 S.W.2d 310).

The invitee’s case contains at least three essential elements. The first is described in Restatement of Torts, 2d § 343, as follows.

“A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
“(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
“(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
“(c) fails to exercise reasonable care to protect them against the danger.”

In other words, the invitee “is under a burden to prove the presence of a danger on the premises and that the owner knew or ought to have known of that danger.” Camp v. J. H. Kirkpatrick Co., Tex.Civ.App., 250 S.W.2d 413, wr. ref., n. r. e. (1952). In the second place, even if the condition is one that constitutes a danger of which the owner knew or ought to have known, the store owner is not liable unless the invitee can overcome the “no duty” doctrine. In this connection see Halepeska v. Callihan Interests, Inc., Tex., 371 S.W.2d 368, wherein it was stated:

“The ‘no duty’ doctrine is this: the occupier of land or premises is required to keep his land or premises in a reasonably safe condition for his invitees. This includes a duty of the occupier to inspect and to discover dangerous conditions. Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 20 A.L.R.2d 853 (1950); Genell, Inc. v. Flynn [163 Tex. 632], 358 S.W.2d 543 (1962). His duty is to protect his invitees from dangers of which he, the occupier, knows, or (because of his duty to inspect) of which he should know in the exercise of ordinary care. If there are dangers which are not open and obvious, he is under a duty to take such precautions as a reasonably prudent person would take to protect his invitees therefrom or to warn them thereof. But if there are open and obvious dangers of which the invitees know, or of which they are charged with knowledge, then the occupier owes them ‘no duty’ to warn or to protect the invitees. This is so, the cases say, because there is ‘no duty’ to warn a person of things he already knows or of dangerous conditions or activities which are so open and obvious that as a matter of law he will be charged with knowledge and appreciation thereof. This Court said in Harvey v. Seale, 362 S.W.2d 310 (1962):
‘And there is no duty whatsoever with respect to conditions that are so open and obvious, with dangers therein so apparent, that the same are or should be known and appreciated by the visitor. One who has no right to enter except by virtue of the landowner’s consent can remain off the premises if he does not wish to subject himself to the risk of injury from such conditions. Where he has an opportunity to exercise an intelligent choice as to whether the advantage to be gained by his entry is sufficient to justify his incurring the risk, the landowner owes him no further duty to protect him from harm.’ [Emphasis throughout is here added.] 362 S.W.2d at 312-313.
“So in a suit by an invitee against the occupier, the invitee must not only prove that he was injured as a proximate result of encountering a condition on the premises involving an unreasonable risk of harm, but he must also prove, as part of the plaintiff’s case, that the occupier owed him a duty to take reasonable precautions to warn him or protect him from such danger, i. e., the plaintiff must negative ‘no duty.’ This is the ‘no duty’ referred to in the cases. Academically, it may be a rather clumsy concept, but it is still the law. Houston National Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374 (1948)”.

and. in the third place there can be no liability unless the negligence complained of was a proximate cause of the invitee’s injuries. Baumler v. Hazelwood, 162 Tex. 361, 347 S.W.2d 560 (1963).

After carefully reviewing the record in this cause it is our opinion that the judgment of the trial court should be reversed and that a “take nothing” judgment should be rendered in favor of defendant-appellant for the following reasons:

1. There was no evidence of probative force in the record to show that it was dangerous for appellant to have a large, standard display platform, (as shown by this record) in plain sight, without merchandise or other tangible objects thereon. In this connection see the following authorities: 61 A.L.R.2d 122; Smith v. Safeway Stores, Inc., 206 A.2d 264 (D.C.App., 1965); Engdal v. Owl Drug Co., 183 Wash. 100,48 P.2d 232 (1935); Letiecq v. Denholm & McKay Co., 328 Mass. 120, 102 N.E.2d 86 (1951).

2. There was no evidence of probative force in the record to show that appellant knew or should have known that it was dangerous to have such display platform without merchandise or other tangible objects thereon. In this connection see Camp v. J. H. Kirkpatrick Co., supra (250 S.W.2d 413). There was nothing which occurred prior to appellee’s accident which might have served as a suggestion, warning or notice to appellant, that the platform, without display objects upon it, might be dangerous. There was evidence that a prior accident had occurred in appellant’s store but it was not suggested that said prior accident was in any manner or in any respects even remotely similar to appellee’s accident. In this connection see J. C. Penney Company v. Norris, 250 F.2d 385, 5 Cir. (1957), in which the plaintiff slipped on a bottle cap while descending a stairway in defendant’s store, and where the circuit court held that no negligence was shown by testimony that another person had fallen on such steps seven months earlier. Also see Reynolds & Huff v. White, Tex.Civ. App., 378 S.W.2d 923, no writ (1964). The circumstance of appellee tripping over the platform is no evidence of a danger and “the mere fact of falling does not prove the presence of danger * * *” Camp v. J. H. Kirkpatrick Co., supra, (250 S.W.2d 413).

3. Even if it be assumed that there was something dangerous about the platform without display objects upon it, and that appellant knew or should have known of such danger, if any, it is our view that under the undisputed facts of this case, the platform without display objects upon it, and any possible dangers incident thereto, were open, obvious, in plain sight, and clearly perceptible. Therefore under the Texas “no duty” doctrine appellant had no duty to protect appellant, an invitee, from the alleged dangers which were clearly perceptible and obvious. Steele v. Slade, Tex.Civ.App., 353 S.W.2d 329, writ refused (1962); Halepeska v. Callihan, supra (271 S.W.2d 368). Also in this connection see Western Auto Supply Company v. Campbell, Tex., 373 S.W.2d 735 (1964), which quoted with approval the following language from Bohlen, “Studies in the Law of Torts,” p. 183:

“The owner’s duty rises no higher than that of making the appearance conform to the reality, of making the condition as good as it looks, or of bringing to the knowledge of the visitor that it is as bad as it is. The visitor, having no right to enter the premises, is not entitled to find it safe for his visit; he is only entitled to know its real condition so that he may intelligently make up his mind to accept or reject the owner's permission to enter it.” (373 S.W.2d 738.)

Appellant did not conceal the display platform from appellee; it was not a hidden trap or snare; appellant did not - in any way obscure the fact that the display platform had no merchandise or other tangible objects resting thereon. Appellant made the condition as good as it looked, and one who would choose to look, could clearly see what was clearly perceptible, and clearly open and obvious.

4. Even if it be assumed that appellant was negligent “in having a display platform without merchandise or other tangible objects resting thereon”, it is our view that under the undisputed facts in this cause the same was not a proximate cause of appel-lee’s fall and injuries.

Proximate cause “embraces at least two distinct concepts, both of which must be present: (1) there must be cause in fact, — a cause which produces an event and without which the events would not have occurred; and (2) foreseeability.” Baumler v. Hazelwood, 162 Tex. 361, 347 S.W.2d 560 (1961).

Appellee’s theory on the “proximate cause” as well as the “no duty” questions in this case is based upon “attractive display” cases, such as Pewatts v. J. C. Penney Company, 238 F.Supp. 736, Dist.Ct.Penn. (1965). To show appellee’s position in this regard with reference to the proximate cause question we quote in part from ap-pellee’s brief, as found below.

We have found no Texas cases dealing with the “attractive display" theory. Appellant in its brief has pointed out one out of state case in its discussion of the “attractive display” theory. We quote in part from appellant’s brief as found below.

On the question of “cause in fact” we make the following observations. The testimony of appellant’s wife, who did not see her husband fall, was no evidence of causation. Her testimony only proved the fact of the accident, not the cause. There was no evidence of causation in the testimony of Mr. Crawford. Mr. Crawford’s description of the accident was that ap-pellee was walking “pretty fast” ahead of his wife and “tripped” over the corner of the display platform. Appellee’s testimony on the point is to the effect that he did not know what caused him to fall, that he was looking up at the television signs after his wife’s statement to the effect as to the location of the television department, and that he guessed he could have seen the display platform if he had been looking down.

We think it is entirely too speculative to guess or surmise that if there had been display items on the platform in question at the time of appellee’s accident, that the same would have diverted appellee’s attention and caused him to look down and see the platform and avoid tripping over or running into it, especially when he was intent on locating the television department and had heard the statement made by his wife, and when he wanted to look up and was looking up. We hold that there was no evidence of “cause in fact” on the question of proximate cause. In this connection see Baumler v. Hazelwood, 162 Tex. 361, 347 S.W.2d 560 (1961), and Reynolds & Huff v. White, Tex.Civ.App., 378 S.W.2d 923, no writ (1964).

With respect to the “foreseeability” aspect of proximate cause, it is our further view that there was no evidence of probative force to support a finding that the defendant-appellant could have foreseen that injury to the plaintiff-ap-pellee would result from the alleged negligence; if there was any negligence. In this connection see the following authorities: Texas & Pacific Railway Co. v. Bigham, 90 Tex. 223, 38 S.W. 162 (1896); Genell, Inc. v. Flynn, 163 Tex. 632, 358 S.W.2d 543 (1962). Appellant was required to foresee that appellee would enter the store, but it was not required to foresee the chain of circumstances that caused his injuries. We do not think that appellant can be properly charged with the ability to foresee that appellee’s attention would be diverted to such an extent either by his wife’s statement or his own intent desire to locate the television department, and that in a well lighted store, appellee would trip over the corner of a large and obvious platform, and it would be unusually speculative to surmise that if the platform had had some display objects upon it, that this would have diverted or re-diverted appel-lee’s attention to same, in order to cause him to look down, especially when it is apparent that both at his own intent and also by reason of his wife’s statement, he wanted to look up and was looking up to locate the television department. In so doing, he failed to look at the platform which was' clearly visible, open and obvious and clearly perceptible to. anyone who chose to look at it. Could the entire chain of events have been reasonably foreseen by appellant, short of prophetic ken? We think not. In Texas & Pacific Railway Co. v. Bigham, supra, (90 Tex. 223, 38 S.W. 162) it was stated: “[N]othing short of prophetic ken could have anticipated the happening of the combination of events which resulted in the injury of the person of the plaintiff.”

Each of the foregoing reasons, in and of itself, would require that the judgment of the trial court be reversed and judgment here be rendered that appellee take nothing from appellant. Appellant’s points which raise the questions above discussed are sustained.

For each and all of the reasons above stated, the judgment of the trial court is reversed and judgment is here rendered that appellee take nothing from appellant.

Reversed and rendered.

CHADICK, C. J., concurs.

DAVIS, J., dissents.

DAVIS, Justice.

I dissent. A careful study of the law and facts will reveal otherwise. I would affirm the judgment.

      . “In considering the evidence on proximate cause Appellant considers only that evidence which is favorable to it and draws therefrom only inferences that are favorable to it. Appellant again says that Appellee was not looking down only because he looked up in response to his wife’s statement that she had located the television department. However, he also testified that he was looking up at the television sign hanging from the ceiling. Appellee had been admiring the display of dishes on the other platforms along the aisle so that his attention was distracted from the empty platform located at the corner of the two aisleways. Miss Mason testified that Appellant told her that he was looking at the television displays immediately prior to this fall. Can it be said without question that Ap-pellee would not have seen a display of merchandise on the empty platform if such a display had been there?
      *****
      “Appellant created the situation. An empty display platform was placed at the corner of two aisleways. Merchandise displays were placed upon all other platforms in the area and departmental signs were hanging from the ceiling to be observed by customers entering the store. Miss Mason testified that the merchandise displays were placed upon the platforms as attractively as possible so that customers walking in the aisles would be attracted to them. Appellee while walking down the aisle was looking at and admiring the display of dishes that were placed upon platforms immediately adjacent to the empty platform. While so looking at the display of dishes, Ap-pellee’s wife said ‘here it is over here’ and Appellee looked up and was either looking at the television sign hanging from the ceiling or the display of television sets straight ahead when he tripped and fell. As heretofore pointed out a proper inference from the evidence is that Appellee was in the act of turning to the right or had completed his turn and was attempting to walk down the aisle in which his wife was walking when his right foot caught under the corner of the empty platform throwing him forward to the extent that he stumbled four or five steps, then fell by the side of his wife. Can it be unequivocally stated that if merchandise had been placed upon the platform, Appellee would not have seen it when he made his turn? Would it have been within the peripheral vision of the Appellee as he looked up or as he was walking down the aisle? Reasonable minds could differ. Therefore, proximate cause was a question of fact to be determined by the jury.
      “Appellant says that an employee was in the act of changing the merchandise display at the time Appellee entered the store. However, there is no evidence when the employee began removing the merchandise display which had theretofore been on the platform, if any had, and there is no evidence in the record as to when a new merchandise display was placed upon the platform. The only evidence is that immediately after the fall the employee placed some boxes on the platform in question.
      “The empty platform, situated as it was, was a cause in fact of Appellee’s injury, and a fact question existed in regard to proximate cause.
      * * * * *
      “Appellant created the situation in the case at bar and should have foreseen that a customer while walking down the aisle admiring the merchandise displays or looking for a departmental sign would be injured in some manner by failing to observe the empty display platform while walking straight or when turning from the east-west aisle-way to the north-south aisleway at the corner where the empty platform was situated. It is a matter of common knowledge that customers in a store do not execute a military turn in going from one aisle to another. Pewatts v. J. C. Penney Company, 238 F.Supfp]. 736, supra.
      “Under the evidence of this case proximate cause was a fact question for the jury. * * * ”

      . “The first question presented by this appeal, is, therefore, under the above undisputed and indisputable facts, does the single circumstance that the display platform had no ‘merchandise or other tangible objects resting thereon’ constitute, in and of itself, a condition which is sufficient to fasten liability upon the store owner? We know of only one case in which such a thing has even been suggested, and it was there held that the plaintiff-invitee had produced no evidence of whatever of negligence. The case is Smith v. Safeway Stores, Inc., 206 A.2d 264 (D.C.App., 1966.)
      “In the Smith case, the plaintiff tripped over a display rack in a grocery store and brought suit against the store for her injuries. The evidence showed that (as here) there was plenty of room for passage alongside the rack, that (as here) the store was not crowded, that (as here) the rack was of the sort ordinarily used for display of merchandise, that (as here) the store was adequately lighted, and that (as here) there was nothing on or about the rack tending to obscure its outlines. The plaintiff contended, however, that the rack ‘was not clearly visible since only a few bags of potato chips were placed on the lower shelves, thereby making it possible to see directly through it.’ (206 A.2d 265.) The trial judge granted the store’s motion for a directed verdict, and the District of Columbia Court of Appeals affirmed. The appellate court held:
      ‘The rule is well settled that on defendant’s motion for a directed verdict, the evidence must be construed most favorably to the plaintiff, who is entitled to every legitimate inference. Jackson v. Capitol Transit Co., 69 App. D.C. 147, 99 F.2d 880, cert, denied, 306 U.S. 630, 59 S.Ct. 464, 83 L.Ed. 1032. In applying that rule here, however, we find no eyidence sufficient to require submission of the question of defendant’s negligence to the jury.

      ‘The duty of a shopkeeper is to keep and maintain his premises, including the aisles, in a reasonably safe condition for the use of his customers. However, the shopkeeper is not an insurer of his customers’ safety, and is liable only for injuries resulting from his negligence. And where an ordinary device, such as the potato chip rack involved herein, customarily used in markets for the display of goods and plainly observable with nothing to conceal its presence or outlines, is placed in a well-lighted position with sufficient passageways going by, the shopkeeper should not be found negligent when someone heedlessly collides with it. The law does not impose■ on a shopkeeper the duty to prevent a careless person from injuring himself.’ (206 A.2d 265, emphasis added.) ”


source: Caselaw Access Project

author: GREEN, Chief Justice.

license: Public Domain

text:
    David RUIZ, Appellant, v. The TRAVELERS INSURANCE COMPANY, Appellee.
    No. 272.
    Court of Civil Appeals of Texas. Corpus Christi.
    Aug. 4, 1966.
    Bonilla, DePena, Read & Bonilla, by L. Taylor Zimmerman, Corpus Christi, for appellant.
    Lewright, Dyer & Redford, by James W. Wray, Jr., Corpus Christi, for appellee.
   OPINION

GREEN, Chief Justice.

This is a workmen’s compensation case. The parties to the appeal have filed in this Court their joint motion wherein they state that they have reached an agreement for a settlement of all controversies now involved in this litigation. They ask that we reverse and remand this cause to the trial court for the purposes of proof and entry of an agreed judgment according to the terms of the settlement, the entry of such decree to be subject, of course, to the approval of the trial court. They further ask that the mandate issue immediately under the provisions of Rule 442, Texas Rules of Civil Procedure.

The joint motion should be, and accordingly is, granted. Mickelson v. Mickelson, Tex.Civ.App., 384 S.W.2d 230; Castro v. Highlands Insurance Company, Tex.Civ. App., 401 S.W.2d 689; Eichelberger v. Orr, Tex.Civ.App., 392 S.W.2d 474.

The judgment is reversed and the cause is remanded. The clerk is instructed to issue mandate immediately upon the announcement of this decision. All costs of this appeal are assessed against the appel-lee, as agreed to by the parties.

Reversed and remanded.


author: MCDONALD, Chief Justice.

text:
    Zola GOLDSTEIN, Appellant, v. L. F. CORRIGAN, Appellee.
    No. 4506.
    Court of Civil Appeals of Texas. Waco.
    June 23, 1966.

      James R. Handy, Parnass, Weatherhogg & McGuire, Irving, for appellant.
    Strasburger, Price, Kelton, Miller & Martin, A. D. Bynum, Dallas, for appellee.
   OPINION

MCDONALD, Chief Justice.

This is an appeal from a summary judgment that plaintiff take nothing in a slip and fall case.

Plaintiff Goldstein alleged she was tenant in apartment A, 6432 Bandera Street, Dallas, Texas, and that defendant Corrigan was owner of the apartment; that she slipped and fell as the result of a warped or irregular condition in the floor of the premises between the dining room and the living room, and sustained personal injuries. Plaintiff alleged defendant guilty of negligence proximately causing her injuries: 1) in failing to keep the floor in a safe condition; 2) failing to repair the floor; 3) permitting a structural defect to exist; 4) permitting the floor to become warped; 5) failing to make inspections; 6) failing to repair after acquiring knowledge; 7) and in failing to properly light the area. Defendant answered by general denial and asserted the area where plaintiff fell was open and obvious and plaintiff’s knowledge of same was just as complete as defendant’s.

Defendant moved for summary judgment. The record on motion for summary judgment contains the depositions of plaintiff and her brother who lived in the apartment with plaintiff; and the affidavit of Roy O’Rear who was resident manager of defendant’s apartments. Such affidavit recites the apartment was leased to plaintiff’s brother by written lease which is attached.

The lease is an uncomplicated lease whereby plaintiff’s brother leased the apartment for $115 per month; and provides various rules for the premises. Nowhere does the lease contain any covenant on the part of defendant to repair the leased premises.

Plaintiff filed no opposition to defendant’s motion for summary judgment, and filed no affidavits or other evidence to oppose plaintiff’s motion.

The trial court granted defendant’s motion for summary judgment that plaintiff take nothing.

Plaintiff appeals, contending the trial court erred in granting motion for summary judgment because: 1) defendant owed a duty to plaintiff as a matter of law to exercise ordinary care in maintaining the premises in a safe condition; 2) there exists several fact issues which should_. be resolved by a jury; 3) as a matter of law defendant cannot assert the defenses of “no duty”, and “open and obvious.”

The record reflects the plaintiff fell in an area wholly within the leased premises. The lease is totally void of any covenant on the part of defendant to repair the leased premises. Plaintiff knew of the defective floor where she fell several months before she fell, and testified by deposition it was obvious to her and her brother.

The rule is that the landlord is under no obligation to make repairs in the absence of an agreement to do so; he is not liable to the tenant for injuries caused by defects which are not concealed or hidden; and the tenant takes the property as he finds it assuming the risks of apparent defects. Flynn v. Pan American Hotel Co., 143 Tex. 219, 183 S.W.2d 446.

Plaintiff pleads and contends in her brief the defective condition constituted a structural and/or foundation defect, and that defendant only, and not plaintiff, has exclusive access to repair the defective flooring; and the foregoing precludes summary judgment for defendant.

But plaintiff did not file opposition to defendant’s motion for summary judgment; nor file affidavits establishing the foregoing; and the depositions on file likewise do not establish same.

When facts entitling the moving party to summary judgment have been established (as here), the motion will not be denied merely because the opposite party has alleged matters in pleadings which, if proved, would require a different judgment to be rendered. If plaintiff expected to defeat defendant’s motion for summary judgment by showing the defective floor was caused by structural defects under control of defendant, it was incumbent on her to come forward with “evidence” sufficient to raise that question. This, plaintiff did not do. Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948; Molsen v. Compania Industrial, Tex.Civ.App. (n. w. h.), 394 S.W.2d 271.

Plaintiff’s points and contentions are overruled.

Affirmed.


author: PHILLIPS, Justice.

text:
    RAILROAD COMMISSION of Texas et al., Appellants, v. WALKER TRANSFER & STORAGE COMPANY et al., Appellees.
    No. 11423.
    Court of Civil Appeals of Texas. Austin.
    July 13, 1966.
    Rehearing Denied Aug. 24, 1966.

      Waggoner Carr, Atty. Gen., Hawthorne Phillips, First Asst. Atty. Gen., T. B. Wright, Executive Asst. Atty. Gen., Howard Fender, Sam Kelley, Asst. Attys. Gen., Austin, Dan Felts, Austin, for appellants.
    James, Robinson & Starnes, Phillip Robinson, Austin, for appellees.
   PHILLIPS, Justice.

This appeal involves the question of the validity of an order of the Railroad Commission issued by authority of the Motor Carrier Act, Art. 911b, and specifically, whether the Commission complied with the fact findings requirements of Section 5a (d), Vernon’s Ann.Civ.St. of said Act.

After trial to the court, appellees’ motion for judgment was granted, the order of the Commission was declared void and set aside and appellant McNeil (the recipient of the authority under said order) was permanently enjoined from conducting any operations thereunder.

We affirm this judgment.

Appellants are before this Court on a single point of error being that of the trial court in granting appellees’ motion for judgment because the orders of the Railroad Commission herein attacked contain sufficient findings of basic facts required by the Motor Carrier Act, Art. 911b, V.C.S.

We overrule this point.

The Commission’s order under review, dated July 9, 1964, granted an application to appellant McNeil to amend his specialized Motor Carrier Certificate No. 15183 so as to authorize, in addition to the authority previously contained in said certificate, a new and additional authority as a specialized motor carrier to transport grain in bulk within a prescribed radius of two additional cities in Texas.

That portion of the Commission’s order under review here are two sentences inserted into the Commission’s pre-printed form order dated July 9, 1964 which read as follows:

“Because of the seasonal nature of the transportation of this commodity numerous transportation facilities are necessary to adequately serve the shipping public and in almost every instance and in every season certificated carriers are required to lease equipment in order to fulfill the transportation requirements of their shippers. For these reasons, the Commission finds the public convenience and necessity requires the granting of this application.”

Section Sa(d), after specifically referring to applications for a certificate of convenience and necessity authorizing operation as a “Specialized Motor Carrier,” states:

“The order of the Commission granting said application and the certificate issued thereunder shall be void unless the Commission shall set forth in its order full and complete findings of fact pointing out in detail the inadequacies of the services and facilities of the existing carriers, and the public need for the proposed service.”

In the absence of full, complete and detailed findings of fact, this statute declares the Commission’s order void, and in a direct attack such as we have here, the statutory language warrants judgment by a reviewing court setting aside an order that fails to meet these mandatory fact-finding requirements. See Thompson v. Railroad Commission, 150 Tex. 307, 240 S.W.2d 759.

This case is controlled by the rule announced by the Supreme Court in Miller v. Railroad Commission, 363 S.W.2d 244, wherein the following finding was declared inadequate under the above cited Section of Art. 911b:

“The commission further finds as a fact from the evidence that the existing specialized motor carrier service is inadequate in that the service is not available when needed, and further, that trucks and facilities are not available when needed.”
In Miller the Court stated:
“[4, 5] We hold that the findings do not meet the requirements of the statute. The statements that ‘service is inadequate in that the service is not available when needed’ and ‘trucks and facilities are not available when needed’ do not provide sufficient findings of basic facts from which the courts can determine if reasonable grounds existed for issuance of the order. This court has neither the ' right nor the ability to lay out a precise form of findings to be made by the Commission. They should be such that a court upon reading them can fairly and reasonably say that they either do or do not support the required ultimate statutory findings of inadequacy of the services and facilities of existing carriers and a genuine public need for the proposed service. Brinker Trucking Co. v. Illinois Commerce Commission, 19 Ill.2d 354, 166 N.E.2d 18. The sufficiency of findings to meet the requirements of the statute must be related to the issues and the evidence in each case separately. Writings in 33 Texas Law Review 650, 146 A.L.R. 209 and Davis on Administrative Law, Vol. 2, p. 444, et seq. are informative.”

To paraphrase the Supreme Court in Miller, the statement in the Commission’s findings here that because of the seasonal nature of the transportation of the commodity numerous transportation facilities are necessary to serve the shipping public and in almost every instance and in every season certificated carriers are required to lease equipment in order to fulfill the transportation requirements of their shippers, do not meet the requirements of the statute.

This Court cannot determine from these findings, standing alone, whether reasonable grounds exist for issuance of the order. The two broad generalizations urged by appellants in support of the Commission’s conclusions and order are not of a nature specific enough so that a court, upon reading them, can fairly and reasonably say that they either do or do not support the required ultimate statutory findings of inadequacy of the services and facilities of existing carriers and a genuine public need for the proposed service. They are not shown to relate in any material respect to the evidence in the case, as opposed to the evidence in bulk grain cases generally, and they do not meet the requirements of Section 5a(d).

The judgment of the trial court is affirmed.

Affirmed.


author: COLLINGS, Justice.

text:
    James Douglas COX, Appellant, v. Carl E. YOUNG, Appellee.
    No. 4066.
    Court of Civil Appeals of Texas. Eastland.
    July 15, 1966.
    Rehearing Denied Aug. 12, 1966.

      Kenneth D. Furlow, Beaumont, for appellant.
    Nipper & Knox, Houston, for appellee.
   COLLINGS, Justice.

This is a writ of habeas corpus proceeding involving child custody. James Douglas Cox, a resident of New Iberia Parish, Louisiana, brought the action against Carl E. Young of Harris County. The court denied the writ and gave custody of the minor child to its stepfather, Carl E. Young. James Douglas Cox has appealed.

The record shows that appellant was married to Frances Evelyn Young, now deceased, on December 31, 1953; that on February 1, 1956, Carla Katherine Cox, the child involved, was born to that marriage; that Cox and his wife, Frances Evelyn, were divorced in Jefferson County on August 15,1957, and custody of the minor child was granted to the mother, with a provision requiring appellant to contribute child support in the amount of $50.00 per month and allowing visitation by appellant. Appellant contributed to the support of the child until May of 1960. In July of 1960, appellant was cited for contempt but the child’s mother elected to discontinue that action. Another contempt proceeding was instituted in September of 1960 and, upon a hearing, appellant was found in contempt and a capias was issued. Appellant then began to pay child support and was credited with four payments during the following seven months period. In April of 1961, appellant again ceased making child support payments and, in August of 1961, he was cited for contempt for non-support by the Louisiana Department of Welfare, apparently at the request of the mother. The District Court of New Iberia Parish, Louisiana, on August 14, 1961, imposed a fine and jail sentence upon appellant which was suspended on condition that he would regularly pay child support. Appellant testified that during the time he was delinquent he was out of work and unable to make such payments. Appellant further stated that sometime thereafter when he again ceased making payments it was because he did not know his first wife’s address; that some of the payments he did make were returned. On February 7, 1962, the probation was removed by the District Court of New Iberia Parish, Louisiana, for the stated reason that “probationer’s divorced wife cannot be located and child support payments have been returned.” In March, 1964, the child’s mother again attempted to compel appellant to pay child support but the outcome of that attempt is not shown in the record.

Sometime around Christmas of 1964, the child’s mother married appellee, Carl E. Young. Mrs. Young died during June of 1965. The record indicates that there was no visitation or communication between appellant and his child from 1961 until the time of her mother’s death; that, since the date of the divorce in 1957, appellant has never sent Christmas presents, Christmas cards, birthday presents or birthday cards to his daughter. The evidence further indicates that the minor child, on various occasions, made extended visits to appellant’s parents, in Sulphur Springs, Texas, and that for a period of time said child attended school in Sulphur Springs while the mother was ill. Appellant testified that he first learned of this fact during the trial. Appellant also stated that for a time he made efforts to visit his daughter but that on each occasion his first wife “started a big stink” with his family. The present Mrs. Cox testified that the girl’s mother “kept calling my house and causing trouble * * * begging my husband to leave me and go back to her”.

On November 6, 1961, appellant executed a “consent for adoption” document which recited the mother’s mailing address as 5235 Pennsdale, Houston, Texas. The instrument recited that appellant was the father of Carla Katherine Cox; that appellant agreed to permanently surrender the care, custody and parental authority of said child to one F. R. Augustine “who is now married to the natural mother, Mrs. Frances Augustine”. The instrument further recited that appellant consented to the adoption of said child by the said F. R. Augustine upon judgment of any court of competent jurisdiction. There is no showing that the child was ever adopted by Augustine.

We overrule appellant’s first point complaining of the action of the court in allowing the introduction of the “consent for adoption” document. Appellant’s contention that the instrument has no binding contractual effect is unquestionably correct. Also appellant testified, in effect, that the reason he signed the consent for adoption was to avoid the trouble his first wife was causing between him and his second wife. The instrument was admissible, however, because it is material to the principal issue involved concerning whether appellant was neglecting his child without regard to his parental responsibilities. It was admissible, together with other evidence which appellee contends shows a pattern of conscious disregard of appellant’s parental responsibilities toward the child.

There is evidence to the effect that appellant, James Douglas Cox, has three children by his second marriage but has ample room in his home for his wife and children and for his minor daughter, Carla Katherine Cox; that he has a three bedroom brick veneer house near a shopping center and church; that he and his wife are fit and proper persons to care for his daughter; that they both love her and desire to have her with them; that appellant was out of work during a portion of 1960 and 1961 and, for that reason, was unable to contribute to the support of his daughter as ordered by the court, but that for the past three years he has earned in excess of $12,000.00 per annum and is now well able to support his family, including said daughter.

In child custody cases the welfare of the child is the controlling consideration. 44 Tex.Jur.2d 43, 44. The determination of custody is within the sound and broad discretion of the District Court which will not be disturbed except in a case of clear abuse. Mumma v. Aguirre, 364 S.W.2d 220 (Tex.Sup.Ct.). There is a presumption that the interests of a young child are best served by being in custody of a parent rather than some other person. Mumma v. Aguirre, supra, and upon the death of one of the parents to whom custody has been awarded by a divorce decree, as in the instant case, the custody of the child vests automatically in the other parent. Vernon’s Annotated Probate Code, Section 109(a); Knollhoff v. Norris, 152 Tex. 231, 256 S.W.2d 79; Peacock v. Bradshaw, 145 Tex. 68, 194 S.W.2d 551. However, improper conduct of a parent may forfeit his right to custody of his child and a trial court does not abuse its discretion by awarding custody to some other person, (1) who is fit and proper, (2) if it is shown that the parent is not a fit and proper person. Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787.

There is no evidence that appel-lee Young is a fit and proper person to have custody of the child, and, from a consideration of the evidence as a whole, we are of the opinion that the evidence is insufficient to show that appellant is an unfit and improper person. We therefore sustain appellant’s points contending, in effect, that the judgment is erroneous because (a) the evidence does not support the findings of fact and conclusions of law; (b) that the judgment is so against the great weight and preponderance of the evidence as to be manifestly wrong and (c) that the court abused its discretion in entering such judgment. The material time concerning fitness for child custody is the present. If the parent is presently a suitable person to have custody, the fact that there was a time in the past when the parent would not have been a proper person to have such custody is not controlling. 44 Tex.Jur.2d page 48. Past misconduct or neglect, such as the failure of a divorced father to make child support payments, are factors to be considered when he seeks custody after the death of the mother, but such facts are not of themselves sufficient to show present unfitness. Clements v. Schaeffer, 360 S.W.2d 906 (Tex.Civ.Apps., no writ history); Pettit v. Engelking, 260 S.W.2d 613 (Tex.Civ.Apps., n. r. e.). Even a judgment decreeing that a parent is unfit to have custody of his child is not a perpetual adjudication of unfitness.

The court found that at the time of the death of Frances Evelyn (Cox) Young she was married to Carl E. Young, and that the child Carla Katherine Cox is now in his custody. The court further found that it would be to the best interest of Carla Katherine Cox to be in the custody of her stepfather, Carl E. Young. Based upon these findings and the finding that appellant is not a fit and proper person to have custody of his daughter, judgment was entered for appellee. The judgment, in our opinion, is not supported by the evidence. The record as heretofore indicated does not show that appellee, Young, adopted the minor child. He married the mother about Christmas of 1964 and she died in June of 1965. Thus the child was with him and under his care for only about six months prior to the mother’s death. Appellee did not testify, nor did any other witness testify concerning his fitness. There is no evidence concerning his background, employment or lack of employment, or any other facts pertaining to his qualifications or fitness to have the care, custody and control of the minor child, Carla Katherine Cox. A consideration of the evidence as a whole, as herein substantially set out, shows that the evidence is insufficient to support the finding that James Douglas Cox is not a suitable person to have custody of his daughter, and such finding is against the great weight and preponderance of the evidence.

For the reasons stated, the judgment is reversed and the cause is remanded for another trial.


author: WILSON, Justice.

text:
    Elaine PRUETT et al., Appellants, v. Robert Culmore BERKELEY et al., Appellees.
    No. 4495.
    Court of Civil Appeals of Texas. Waco.
    June 30, 1966.

      Dunnam & Dunnam, Robert M. Campbell, Waco, for appellants.
    Phil Teeling, Waco, for appellees.
   OPINION

WILSON, Justice.

The questions in this action to construe a will are whether a clause in the will is ambiguous, and if so, whether the trial court properly construed it. We hold the ambiguity exists, and the trial court’s construction is correct.

Testatrix, approximately 80 years of age, lived with her older sister. Her holographic will vested a life estate in the sister, and authorized the independent executor to deal with the property at its discretion so as to provide for the sister’s support and maintenance. These provisions were followed by the clause in controversy :

“In event my death predeceased her it is my desire and I will, devise and bequeath all my real property as follows: to my beloved great nephew * * * ” in fee simple.

There is no general residuary clause.

The quoted clause is ambiguous, in our opinion. Appellant urges the italicized words mean: “In the event I predecease her”. The trial court concluded they mean: “In the event she predeceases me”. They are, on their face, equally subject to the interpretation: “In the event of my death predeceased by her,” for if the word “predeceased” is a verb, it is in the past tense, and the grammatical case of the pronoun “her” is not ascertainable. Since the clause in question is ambiguous, courts are not authorized to “indulge conjecture as to the possible or probable intention of the testator.” Philleo v. Holliday, 24 Tex. 38, 44.

In this posture the court looks to the will as a whole “and to the circumstances surrounding its execution” in determining intent. Guilliams v. Koonsman, 154 Tex. 401, 279 S.W.2d 579, 581, 57 A.L.R.2d 97. Extrinsic evidence is admissible to show family status, the testator’s situation and other circumstances relating to his affairs to enable the court to determine the testator’s meaning in use of the words. Federal Land Bank of Houston v. Little, 130 Tex. 173, 107 S.W.2d 374, 377; Peet v. Commerce & E. S. Ry. Co., 70 Tex. 522, 8 S.W. 203, 206; Hunt v. White, 24 Tex. 643. Among circumstances held to be so admissible are prior wills executed by the testator. 4 Page on Wills (rev. 1961) Sec. 32.9, p. 274; 94 A.L.R. (IV, m.) 247-249, and cases cited Supp. See Thompson, Wills (3d ed.) Secs. 217, 326.

Testatrix executed a typewritten will prepared for her six months before the holographic will under consideration was made. In that earlier will she likewise created a life estate in her sister with similar powers vested in the independent executor, and provided: “Should my sister predecease me, or, if she survives me, upon her death, it is my will and desire that my real property remaining in the estate pass in fee simple as follows * * * to my beloved great nephew * * * ”

Among the specific alterations in the provisions of the prior will made in the holographic instrument are the deletion of a second life estate qualifying the fee-simple estate of the nephew in an identified tract, and the changing of the former second life tenant to a legatee of personalty only. The wording of the holographic will is sometimes awkward as though testatrix was attempting, somewhat ineptly, to copy most of the typewritten provisions of the earlier will. In both instruments the dominant intent clearly manifest is the desire to insure the maintenance and support of the elderly sister of the testatrix. Under the construction urged by appellant this purpose would be defeated.

In our opinion the trial court’s construction is correct. Appellants’ points are overruled.

Affirmed.


text:
    John DRACOPOULAS et al., Appellants, v. Henry PIXLEY et al., Appellees.
    No. 4504.
    Court of Civil Appeals of Texas. Waco.
    June 16, 1966.
    Rehearing Denied July 7, 1966.

      William Andress, Jr., Dallas, for appellant John Dracopoulas.
    Cervin & Stanford, Dallas, for appellants Bell & Rachal.
    Richard S. Chambers, Dallas, for ap-pellee Pixley.
   OPINION

WILSON, Justice.

Plaintiffs Bell and Rachal, licensed real estate brokers, sued Dracopoulas for real estate dealers’ commissions. After a jury verdict, judgment was rendered for plaintiffs against defendant Dracopoulas. We affirm.

Dracopoulas signed á 60-day exclusive listing contract to sell his property on March 17, 1962, by which he agreed to pay a commission. Dracopoulas refused to sign an extension of this agreement, but the jury found he orally extended the effective date before the term of the written agreement expired.

Dracopoulas urges that the oral extension of the term of the contract is invalid because the agreement was originally required by Art. 6573a, Sec. 28, Vernon’s Ann.Civ. St., the Real Estate Dealer’s Licensing Act, to be in writing.

The position of Dracopoulas is that where a contract is required to be in writing under the statute of frauds, no essential term may be modified by parol, with the possible exception of extensions of time made before expiration of the contract period.

There is language in certain cases apparently announcing or supporting the view that where a contract is required by the statute to be in writing, and the contract as written covers the entire agreement, no parol modification, except extensions before expiration, will be permitted. The reason usually given is that to permit such alteration of one or more terms is to “make a new contract resting partly in writing and partly in parol.”

It is uniformly held in Texas that an oral agreement to extend the time of performance of a contract such as this, required by the statute of frauds to be in writing, is enforceable if the oral agreement is made before time for performance expires. Bullis v. Noyes, 75 Tex. 540, 12 S.W. 397, 402; Watkins v. Arnold, Tex.Civ.App., 60 S.W.2d 476, 477, writ ref.; Davis v: Freeman, Tex.Civ.App., 347 S.W.2d 650. See Gulf Production Co. v. Continental Oil Co., 139 Tex. 183, 132 S.W.2d 553, 164 S.W.2d 488, 491.

The question of whether verbal modification of other specific contractual provisions (as distinguished from the entire contract) not required by the statute of frauds to be in writing is valid was first raised in Texas by Judge McClendon in Kistler v. Latham, Tex.Com.App., (1923) 255 S.W. 983, 984. He thought the problem was not free from difficulty and speculated on its solution, but concluded decision was unnecessary. In Robertson v. Melton, Tex. Com.App., (1938) 131 Tex. 325, 115 S.W.2d 624, 627, 118 A.L.R. 1505, Judge Smedley, writing for the Commission, also found it not necessary to decide whether the general prohibition of parol modification should be qualified “in respect to some term which might have been omitted or which might have rested originally in parol.” We find no authoritative decision holding contractual terms in the latter quoted category may not be altered by parol.

The question was settled, however, in Garcia v. Karam, (1955) 154 Tex. 240, 245, 276 S.W.2d 255, 257, 258. Justice Smith noted that Texas had adopted no statute prohibiting subsequent oral modification of a contract required by the Statute of Frauds to be in writing, and observed that if the consideration in a contract for sale of realty had been altogether omitted, it could validly have been supplied by oral agreement. So, it was said, would be an oral agreement to transfer merchandise without an invoice as required by the written contract, because only the method of performance — not the subject matter — was changed. The Supreme Court adopted the rule that where “the statute of frauds does not require agreements in relation to” the subject modified by parol to be in writing, and the parol modification would otherwise be enforceable, “its validity is not affected, although it is incident to a written contract which concerns a subject that the law requires shall be in writing”. Kistler v. Latham and Robertson v. Melton were distinguished.

Art. 6573a, Sec. 28, V.A.C.S. provides that no action shall be brought to recover a commission for sale of real estate unless the promise or agreement "upon which action shall be brought” is in writing and signed by the party to be charged. Dracopoulas argues that the oral extension of the contract term is not effective because the oral agreement went further, changing the exclusive listing to a general non-exclusive agency, and extinguishing the original expiration date without specifying a new one. These collateral incidents of the written contract are not promises or agreements “upon which action” is brought, and are therefore not themselves required by the statute to be written. Their alteration by oral agreement is valid.

Point 3 of Dracopoulas concerning variance between pleading and proof is not assigned in his motion for new trial, nor previously preserved. It is waived. His other points, including that concerning insufficiency of evidence, have been considered and are overruled.

Affirmed.

      . Parks v. Underwood, Tex.Civ.App., 280 S.W.2d 320, 323, writ ref. n. r. e.; Dickey v. Bird, Tex.Civ.App., 366 S.W.2d 859, 863, writ ref. n. r. e., (cf. Manning v. Barnard, Tex.Civ.App., 277 S.W.2d 160, 165, writ ref. n. r. e., and Davis v. Freeman, Tex.Civ.App., 347 S.W.2d 650, 654, no writ); Herren v. Hollingsworth, Tex.Civ.App., 188 S.W.2d 706, 710, writ ref. w. o. m.


text:
    W. R. ALLBRITTON, Appellant, v. KAY WAY PROPERTIES, INC., Appellee.
    No. 4511.
    Court of Civil Appeals of Texas. Waco.
    June 2, 1966.
    Odeneal, Odeneal & Hunt, Wm. C. Odeneal, Jr., Dallas, for appellant.
    Bailey & Williams, James A. Williams, Dallas, for appellee.
   OPINION

WILSON, Justice.

Appellant’s suit against appellee alleged alternatively: (1) That appellant owned the equitable title to described realty, legal title to which was held in trust for appellant’s benefit, and appellant was indebted to appellee in a specified sum “which is entitled to be secured by a lien” on the property. The relief prayed was that the trust be terminated, the trustee’s title can-celled, and full legal title be vested in appellant. No other material facts were alleged. (2) That appellee held title to the property merely as a security transaction in order to secure payment of the indebtedness. A declaration to this effect was sought.

Appellant pleaded a tender of the amount of the admitted debt, but made no actual tender. Because of appellant’s failure to make actual tender after notice, the court dismissed the suit on appellee’s motion.

Appellant concedes he was required to make actual tender in order to maintain the action under the second, or security transaction theory, but he contends that dismissal of his alternative action to declare the trust cancelled and terminated and to have legal title vested in him with a lien securing the debt was not authorized. His position necessarily is that tender was not essential to obtaining the latter relief. No authority sustaining this contention is cited.

In the present case, although it is not directly alleged that defendant holds in trust for the purpose of securing a debt, it is averred that defendant holds in trust for plaintiff’s use, and that defendant is entitled to a second lien to secure a conceded debt. Plaintiff is thus seeking to convert an admitted trust to a simple security status. The ground asserted for cancelling the trust is that defendant is threatening to sell the land “refusing to acknowledge plaintiff as the equitable owner”, and it is alleged the land is worth several times the amount of the debt. These vague pleadings assert, in effect, that defendant holds the legal title in trust to secure a debt. In our opinion the court properly required tender of the amount of the debt before proceeding with an equitable action to cancel the trust alleged to exist for the purpose of securing its payment. II Pomeroy, Equity (5th ed.) Sec. 393b; 30 C.J.S. Equity § 92, p. 1003, n. 74.40; 19 Am.Jur., Equity, Sec. 464. One seeking cancellation or rescission “must restore the original status”. Texas Company v. State, 154 Tex. 494, 281 S.W.2d 83, 91 and authorities cited.

Affirmed.


text:
    Mell BAKER et ux., Appellants, v. Ethel Y. PROTHRO, Appellee.
    No. 4499.
    Court of Civil Appeals of Texas. Waco.
    June 9, 1966.
    Odeneal, Odeneal & Hunt, Dallas, for appellants.
    Dalton, Moore, Forde & Joiner, Sam S. Stollenwerck, Dallas, for appellee.
   OPINION

WILSON, Justice.

The sole question in this suit on a promissory note is whether it is a demand instrument as a matter of law. It reads as follows:

“$25,000 4-27 A. D. 1959
I, L. P. Baker and Mell Baker after date for value received promise to pay to the order of Ethel Y. Prothro Twenty-five thousand Dollars and no/100 Dollars at 6% Int. only with 6% per cent interest per annum from 4-27-59 to 4-27-70 until paid. All past due principal and interest shall bear interest at the rate of 6 per cent per annum until paid.” (There follows a provision for attorney’s fees and the signatures of the makers). “Due 4— 27-60 Int. only and Continue Int on 4-27— of each year April Until Pd.”

Summary judgment was rendered under Rule 166-A, Texas Rules of Civil Procedure against the makers, husband and wife, in favor of the payee for $25,000 with interest and attorney’s fees. Judgment was on the payee’s motion contending the note was a demand obligation as a matter of law under Sec. 7, Art. 5932, Vernon’s Ann. Civ.St., (Uniform Negotiable Instruments Act) because no time for payment is expressed.

The record on the motion consists of the pleadings and two depositions. There are no affidavits or admissions. The note was prepared by one of the makers, Mrs. Baker, a real estate broker, and was given in consideration of a $25,000 cash advance. Plaintiff pleaded defendants had agreed to execute a deed of trust to secure its payment, and had failed to do so.

The note is ambiguous. It is subject to the construction that it is payable April 27, 1970, the time for payment being so expressed. It is reasonably susceptible also of the interpretation, apparently adopted by the trial court, that no time for payment is fixed.

There is nothing in the depositions relative to the latter issue except a letter to Mrs. Prothro, payee, from the Bakers dated April 27, 1959 in which they state they will build multiple units to be completed by October 1, 1959 and they will give Mrs. Prothro a deed of trust “securing the sum of $25,000, and this note can be paid on or before or any amount can be paid at any time, note to bear 6% interest only until paid, beginning April 27, 1960 and continuing for ten years payable on April 27 each year until paid.”

The record presented does not authorize summary judgment, in our opinion. It does not establish the intent of the parties as a matter of law; it does not establish the instrument as a demand note without dispute. It makes these questions impossible of determination as a matter of law, and leaves a fact question to be decided in accordance with general rules applicable to construction of ambiguous contracts. Skelly Oil Co. v. Archer, 163 Tex. 336, 356 S.W.2d 774, 778; Ellisor v. Kennedy, Tex.Civ.App., 128 S.W.2d 842, writ ref. The judgment is reversed, and the cause remanded.

      . The word “Due” is a part of the printed form of the note. It is followed by a printed blank in which the succeeding quoted words are inserted.


author: McDONALD, Chief Justice.

text:
    Richard DENWITTY, Independent Administrator, et al., Appellants, v. Calvin WESLEY et al., Appellees.
    No. 4507.
    Court of Civil Appeals of Texas. Waco.
    July 14, 1966.
    Rehearing Denied Aug. 4, 1966.

      William Andress, Jr., Dallas, for appellants.
    W. J. Durham, J. L. Turner, Jr., Dallas, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal from a judgment non obstante veredicto in a trespass to try title suit involving a 44 by 103 foot lot in Dallas.

The case went to trial on appellees’ (the Wesley’s) Fourth Amended Cross Action which alleged the land in controversy was deeded to John C. Clark and wife Annie Clark in 1903 and 1905that the Clarks had actual, exclusive possession of the land for more than 45 years prior to the date appellants (the Denwittys) asserted any claim to the property; that appellees are the sole heirs of the Clarks; and that appellants assert some claim to the property which casts a cloud on appellees’ title. Appellees further plead title by virtue of the 10 and 25 year statutes of limitations; and plead superior title under a common source of title. Appellees prayed that appellants’ claims be adjudged a cloud on appellees’ title and removed; and that appellees have title and possession to the land.

Appellants answered by general denial only. Trial was to a jury which found:

1) Appellees and those under whom they claim have not held peaceable, adverse possession of the land in controversy, using and enjoying same, and paying taxes thereon, and claiming under a deed for any consecutive period of 5 years prior to November 25,1959.
2) Appellees and those under whom they claim have not held peaceable, adverse possession of the land in controversy for any consecutive 10 year period after 1903 and up to the filing of suit on November 25, 1959.
3) Appellees and those under whom they claim have not held peaceable, adverse possession of the land in controversy for any consecutive 25 year period prior to the filing of suit on November 25, 1959 under a claim of right or deeds.
4) Appellants held peaceable, adverse possession of the land in controversy using and enjoying same, and paying taxes thereon, claiming under a deed for 5 years, before November 25, 1959 and after October 24, 1947.
5) Appellants held peaceable, adverse possession of the land in controversy for 10 consecutive years before November 25, 1959 and after October 24, 1947.

Appellants moved for judgment on the verdict. Appellees moved for judgment non obstante asserting (among other things) the undisputed evidence shows appellees the sole and only surviving heirs of John C. and Annie Clark; that John C. and Annie Clark acquired the property by deed in 1903; and appellees and those under whom they claim (the Clarks) held continuous possession from 1903 to 1959.

The trial court overruled appellants’ motion for judgment; granted appellees’ motion for judgment non obstante and entered judgment removing the cloud on appellees’ title; and decreeing fee simple title and possession of the property in appellees.

Appellants appeal on 7 points, contending:

1) The trial court erred in admitting documents in evidence without same being listed or filed in advance of trial.
2) Since appellees did not establish title from the sovereign or from common source with their own as superior, judgment for appellees was error.
3) There was sufficient evidence fo sustain the jury’s answers to Issues 1, 2, 3, 4 and 5; and judgment to the contrary is error.

We revert to appellants’ 1st contention. The trial court permitted appellees to introduce a marriage license, a number of deeds, and other instruments from thé County Clerk’s records, without notice of same having been given appellants three days in advance of trial, as required by Article 3726 Vernon’s Ann.Civ.St. All of these instruments were introduced by ap-pellees in an effort to prove title from the sovereign. Since the judgment is not predicated on title from the sovereign, the asserted error is harmless. Rule 434 Texas Rules of Civil Procedure.

We revert to appellants’ 2nd and 3rd contentions. It is undisputed that John C. and Annie Clark took possession of the property here in controversy under warranty deeds duly recorded in 1903, and remained in continuous, uninterrupted possession until 1941 or 1947; and that appellees are the sole remaining heirs of John C. and Annie Clark. The Clarks perfected title to the property under the 10 and 25 year Statutes of Limitations; appellees acquired such title by inheritance.

In such situation it is not necessary that appellees prove either title from the sovereign or from common source. Nesbitt v. Garvin, C.C.A. (nwh), 308 S.W.2d 86; Brohlin v. McMinn, 161 Tex. 319, 341 S.W.2d 420. There is no evidence to sustain the jury’s answers to Issues 2 and 3.

Appellants did not plead any Statute of Limitations. Limitation is not available as a defense unless plead. Rule 94, TRCP; Southwestern Fire & Cas. Co. v. Larue, Tex., 367 S.W.2d 162. Appellants therefore can assert no title by limitations, or by virtue of jury findings 4 and 5. Appellees’ title remains undefeated.

The judgment is correct. Appellants’ points and contentions are overruled.

Affirmed.


author: BATEMAN, Justice.

text:
    Freddie R. JACKSON, Appellant, v. Fred L. EWTON et ux., Appellees.
    No. 16758.
    Court of Civil Appeals of Texas. Dallas.
    June 24, 1966.
    Rehearing Denied July 22, 1966.

      Fanning, Billings, Harper, Pierce & Gil-ley, Dallas, for appellant.
    James D. Stevenson and Douglas Riley, Jr., Dallas, for appellees.
   BATEMAN, Justice.

The appellees Fred L. Ewton and wife sued Freddie R. Jackson for damages on account of bodily injuries sustained when the automobile he was driving collided with the rear end of their automobile. The jury found that Jackson failed to keep a proper lookout, which proximately caused the occurrence in question, and acquitted him of the other alleged acts of negligence. The jury also found that (IS) Fred Ewton attempted to make a right turn into private property from the center lane. of South Beckley Street, (16) which was negligence, and (17) a proximate cause of the occurrence in question. Appellees moved, under Rule 301, Vernon’s Texas Rules of Civil Procedure, that the court disregard the findings in response to Special Issues Nos. 15, 16 and 17 and for judgment non obstante veredicto. The court sustained the motion to disregard, so far as the answer to Special Issue No. 17 was concerned, and rendered judgment for appellees. The court did not disregard or set aside the findings in response to Special Issues Nos. 15 and 16. Jackson, as appellant, presents only one point of error on appeal, which is that the court erred in rendering the judgment for appellees on the basis that there was no evidence to support the jury’s answer to Special Issue No. 17, because the evidence “clearly presented facts, conflicting and otherwise from which different inferences might reasonably be drawn by an ordinary person.”

Facts

The appellees were traveling in a northerly direction in their automobile on South Beckley Street in the City of Dallas, following another car being driven by Mr. Ewton’s brother and which had turned to the right into a private driveway of a nursing home. It was the intention of appellees to follow that car into the grounds of the nursing home, but the brother’s car stalled momentarily in the driveway. Appellees’ car slowed down almost to a complete stop, waiting for the driveway to clear, when appellant’s car, also traveling in a northerly direction, collided with the rear end of their car.

South Beckley Street at that place consisted of four lanes, two southbound and two northbound, with a median strip separating the two sets of lanes. The two northbound lanes were described as “normal lanes,” each ten or twelve feet wide. Ew-ton’s “right turn indicator” was on, and he testified that his car was three feet from the right curb at the time of the collision, although appellant testified that appellees’ car was eight feet from the right curb. It is undisputed that at the time of impact appellees’ car was still headed North, the front wheels not having yet been turned to the right.

Appellant testified that he first became aware of the presence of the Ewton car in front of him just before he hit it, that he had noticed some cars but “wasn’t paying especially any attention to that one”; that at the time right before the collision he was busy putting a check in his billfold and had momentarily taken his eyes off the road; that he was going thirty miles an hour, and when he looked up the Ewton car was about fifteen feet in front of him and that he immediately applied his brakes; that when he looked up and saw Ewton’s car in front of him the latter was more in the left lane than in the right lane; that he was almost stopped when he hit the Ewton car, and in his opinion he would only have gone four or five feet if the other car hadn’t been there; that his car stopped right where it hit the other car. Ewton testified that after the collision he stepped off the skid marks left on the pavement by appellant’s car and there were 48 feet of them, and that those skid marks “angled” from the left side of the roadway to its right side, where the impact was.

Opinion

As said in Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194, 199, “ * * * to sustain the action of the trial court in granting judgment non obstante veredicto, it must be determined that there is no evidence having probative force upon which the jury could have made the findings relied upon.”

A jury finding may not be disregarded under the provisions of Rule 301, T.R.C.P., “if the record discloses any evidence of probative value which, with inferences that may be properly drawn therefrom, will reasonably support the same.” Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273, 276.

Another well settled rule is that when judgment is rendered non obstante veredicto only that evidence which supports the jury’s verdict will be considered. Shelton v. Belknap, 155 Tex. 37, 282 S.W.2d 682, 683.

Also, in passing upon a motion for judgment n. o. v. we must consider the evidence in the light most favorable to the party against whom the motion is made, indulging every reasonable intendment deducible from the evidence in such party’s favor. Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547, 550; Burt v. Lochausen, supra.

The trial court declined to disregard the findings in response to Special Issues Nos. 15 and 16. Appellees did not except thereto and they file no cross-point or cross-assignment of error in this court complaining thereof. Therefore, we are bound by those findings of negligence on the part of Ewton, leaving for us to determine only whether there was any evidence of probative value to support the finding of proximate cause in response to Special Issue No. 17.

For a negligent act to be a proximate cause of a certain result, it must meet two tests. Not only must the act have been actually a cause of the objectionable result, but “it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.” Milwaukee & St. P. Railway Co. v. Kellogg, 94 U.S. 469, 24 L.Ed. 256, as quoted in Texas & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S.W. 162, 164; Hopson v. Gulf Oil Corp., 150 Tex. 1, 237 S.W.2d 352; Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359. The evidence clearly supports the implied finding that Ewton ought to have foreseen the collision, leaving open only the question of whether his negligent conduct actually caused it.

Was there a causal connection between the negligent act and the collision? We think the question must be answered in the affirmative. Since an attempt to do an act consists of some ineffectual overt act, accompanied by an intent to perform the act, we think the jury may very properly have considered Ewton’s acts in slowing the speed of his car until it was almost stopped, and putting in operation the blinking light indicating a right turn, as such overt act or acts. The jury probably concluded that these acts, being part of of the process of turning, constituted at least one cause of the collision.

Accordingly, we think the trial court erred in holding that the finding of proximate cause was without support in the evidence. However, feeling that the case was not fully developed and that justice would be better served thereby, we reverse the judgment and remand the cause for another trial. London Terrace v. McAlister, 142 Tex. 608, 180 S.W.2d 619; Rule 434, T.R.C.P.

Reversed and remanded.


text:
    A. C. SCHILLER et al., Appellants, v. J. C. RALEY, Appellee.
    No. 4496.
    Court of Civil Appeals of Texas. Waco.
    July 14, 1966.
    Rehearing Denied Aug. 4, 1966.
    Roger Knight, Roger Knight, Jr., W. R. Malone, Madisonville, for appellants.
    Mac L. Bennett, Jr., Normangee, for ap-pellee.
   OPINION

WILSON, Justice.

Appellee sought, and the trial court granted a permanent injunction, after a jury verdict, restraining appellants from operating a cattle feed lot on their land, and requiring them to remove their cattle from, the lot.

Appellants’ position is that a decree prohibiting absolutely the operation of the feed lot on their own land is not justified because they are engaged in a lawful, useful and essential business in a sparsely settled rural area devoted primarily to farming and the raising of livestock.

Plaintiff alleged, and there is evidence to show that he and his wife reside on their 15-acre tract 2½ miles from Madison-ville; that on defendants' 50-acre tract they constructed, over plaintiff’s protest, a cattle feed lot across the highway several hundred feet from plaintiff’s garage, filling station and house; that defendants feed approximately 80-90 animals in small pens which, “when the wind is out of the southeast at certain times of the year” cause odor and stench which result in great discomfort to plaintiff and his wife; that flies are generated; that the value of their property has been materially reduced; that the operation of the feed lot “in the manner” alleged constitutes it a nuisance. It was prayed that an injunction be granted enjoining defendants “from maintaining and operating the feed lot as hereinabove set out” in such manner as to constitute a nuisance.

The jury found that the operation of the feed lot is a nuisance to plaintiff; that it causes flies to be drawn in great numbers, “or that noxious odors, filth and stench are generated, either or both,” extending to plaintiff’s property; that the condition found materially depreciated the value of plaintiff’s property and interfered with his comfort and use of the property.

The judgment permanently enjoined defendants “from operating said feed lot upon their premises” described, and directed, ordered and commanded that they “remove from said feed lot said animals therein contained in order that said private nuisance may be abated.”

The evidence shows that the corner of defendants’ feed lot is 526 feet from plaintiff’s filling station and 750 from his house. There is one farmhouse J4 mile from plaintiff’s, another ½ mile away, and a third about “½ mile or so southeast”; and, as plaintiff testified, it is a sparsely settled farming and ranching area. There is evidence that the operation is “essential to the meat supply of the city”, and “someone must do it”; that it is a useful and necessary business. The only evidence on the issue is that the conditions complained of “could probably be controlled.” The evidence negatives the existence of a health hazard. The state and county health agencies found no basis for action, and determined the operation was “pretty well in order.” The operation would be subject to objection and complaint wherever it was located in the county. The injunction will effectively put defendants out of business.

In our opinion the complete and absolute prohibition of the operation of a feed lot upon appellants’ premises and the requirement that they remove cattle therefrom is not authorized. Storey v. Central Hide & Rendering Co., 148 Tex. 509, 226 S.W.2d 615; Georg v. Animal Defense League, Tex.Civ.App., 231 S.W.2d 807, writ ref., n. r. e.; Garland Grain Co. v. D-C Home Owners Improve. Ass’n, Tex.Civ.App., 393 S.W.2d 635, writ ref., n. r. e.; Royalty v. Strange, Tex.Civ.App., 204 S.W. 870. The cases cited by appellee, Lamb v. Kinslow, Tex.Civ.App., 256 S.W.2d 903, writ ref., n. r. e.; King v. Miller, Tex.Civ.App., 280 S.W.2d 331, writ ref., n. r. e., and Livestock Feeder Co. v. Few, Tex. Civ.App., 397 S.W.2d 297, writ ref., n. r. e., do not hold to the contrary.

The judgment is reversed and the cause remanded.


author: PER CURIAM.

text:
    G. L. SKIDMORE et al., Appellants, v. Steve BYBEE et al., Appellees.
    Motion No. 11566.
    Court of Civil Appeals of Texas. Texarkana.
    July 19, 1966.

      Cunningham, Cole & Southerland, Bon-ham, J. D. McLaughlin, Paris, for appellants.
    Henry Braswell, McWhirter & Braswell, Paris, for appellees.
   PER CURIAM.

A motion filed in this court labeled “Ap-pellees’ Second Motion to Dismiss Appeal for Want of Jurisdiction or in the Alternative Affirm on Certificate”, states that Cause No. 28,509 on the docket of the 62nd District Court of Lamar County, Texas, was a suit to contest a school bond election wherein G. L. Skidmore, Horace Boyle, V. J. Worthey, Troy Simpkins and C. R. Cozort are Contestants, and Steve Bybee, individually and as a member of the Board of Trustees of the Powderly-Reno Independent School and the Board of Trustees of the Powderly-Reno Independent School District, and J. N. Thompson, County Attorney, are Contestees. Respecting the judgment, motion for new trial and appeal bond in such action the sworn motion says, and accompanying exhibits confirm, that:

“(1) Final judgment was made, entered, rendered and filed December 23, 1965, (as reflected by the certified copy of judgment attached hereto as Exhibit A);
“(2) The Contestant’s Amended Motion for New Trial was overruled by said District Court February 9, 1966, such order being made, entered, rendered and filed on said date, and in such order Contestants-Appellants gave notice of appeal, (as reflected by the certified copy of such order attached hereto as Exhibit B);
“(3) Contestants-Appellants filed their Appeal Bond in this cause March 12,1966, and on said date such appeal bond was approved by the Clerk of said District Court, (as reflected by the certified copy of the Appeal Bond attached hereto as Exhibit C).”

The appeal bond mentioned does not agree with the second (2) quoted item but contains a recitation that: “ * * * on the 11th day of February, 1966, the Judge presiding in said court entered a judgment overruling the motions for new trial filed by petitioners and plaintiffs * * The motion says such recital is erroneous and the trial court’s order and the clerk’s certificate support the accuracy of the motion.

The records of this court show that neither a transcript nor a statement of fact pertaining to the lawsuit have been tendered to this court for filing, nor has a motion been made to extend the time in which such documents might be filed. The motion before the court does not by its prayer, expressed purposes, or when considered as a pleading seek or purport to institute an original proceeding, but seems to be designed to secure a declaration of the rights of the parties and other relief as though the mentioned suit is pending on appeal in this court. Paragraph IV of the motion avows that:

“Contestants-Appellants have attempted to perfect their appeal of this cause to the Court of Civil Appeals for the Sixth Supreme Judicial District of Texas by giving notice of appeal to such court and filing their appeal bond, but such action on the part of Contestants-Appellants cannot serve to perfect their appeal because their appeal bond has not been filed within the time prescribed by law. Contrary to the mandatory and jurisdictional requirements of Rule 356 T.R.C.P., the Contestants-Appellants have failed to file their appeal bond in this cause with the Clerk of the 62nd Judicial District Court of Lamar County, Texas, within thirty days after the date of rendition of judgment or order overruling motion for new trial and the Court of Civil Appeals is therefore without jurisdiction to hear and determine such appeal. The attempted appeal by said Contestants-Appellants in this case should accordingly be dismissed for lack of jurisdiction and the clerk instructed to refuse to receive the statement of facts and transcript in the event Contestants-Appellants attempt to file same with such clerk.”

This court has concluded that the only proper order it may enter is one dismissing this motion. Rule 363, Vernon’s Ann.Tex. Rules of Civil Procedure provides that an appeal is perfected when the notice of appeal is given and an appeal bond or pauper’s affidavit is filed, except in cases involving a contested pauper’s affidavit. The motion and exhibits referred to therein show that the appeal bond was not filed within a thirty day period following the date the motion for new trial was overruled, as required by Rule 356. Taking notice of this court’s records and accepting these factual recitals as true, it is apparent an appeal has not been perfected in the mentioned case. Dillard v. McClain (Tex. Civ.App.1959), 322 S.W.2d 26, wr. ref., 159 Tex. 559, 324 S.W.2d 163; Lucchese v. Specia (Tex.Civ.App.1955), 281 S.W.2d 725, er. ref.; Howe v. Howe (Tex.Civ.App.1950), 223 S.W.2d 944, er. ref.

Since neither transcript nor statement of fact as contemplated by Rules 376, 376-a, 377, 377-a, 378, or 381 has been tendered for filing in this court, granting the suggested relief, that the clerk of this court be ordered to decline to receive a statement of fact and transcript if tendered, is not an appropriate disposition of the motion for reasons other than lack of jurisdiction. The clerk’s duties with respect to tardily filed transcripts and statements of fact are covered by Rules 389 and 389-a. These rules contemplate that proper orders will be made with respect to filing when such instruments are tendered and at such time a motion by these movants to dismiss will be in order. There is no warrant for giving the clerk instructions under the circumstances shown to prevail by the motion.

The alternative relief sought, af-firmance on certificate, is not in order for the same reason, lack of jurisdiction. Luc-chese v. Specia, supra. This court after appropriate notice may, under the provisions of Rule 387, affirm on certificate when an appellant has failed to file a transcript of the record within the proper time and the appellee in addition to moving for af-firmance files a certified copy of the judgment and a certificate of the clerk of the trial court stating the time when and how such appeal or writ of error was perfected. The first purpose of this motion and its recitals and exhibits is to show that an appeal was not perfected. As the motion presents the matter, no appeal has been perfected. An attempt to affirm the mentioned judgment on any basis would be nugatory.

The motion is dismissed without prejudice.