author: PHILLIPS, Justice.

text:
    Ralph A. BICKLER, Appellant, v. Max BICKLER et ux., Appellees.
    No. 11298.
    Court of Civil Appeals of Texas. Austin.
    May 19, 1965.
    Rehearing Denied June 9, 1965.

      Sneed & Vine, Jerome Sneed, Jr., J. P. Darrouzet, Austin, for appellant.
    Kuykendall & Kuykendall, F. L. Kuy-kendall, Austin, for appellees.
   PHILLIPS, Justice.

This case involves a suit brought by Ralph Bickler against Max Bickler to establish an easement in a driveway on the property adjoining his and owned by Max Bickler and also to establish ownership of a 1-ft. 8-in. strip of land lying between his property and the adjoining property of his brother Max.

After trial to the court and after filing extensive findings of fact and conclusions of law, the court held that Ralph did not have an easement over the driveway and did not own the 1.8-foot strip in controversy. The court also ordered Ralph to remove a portion of a concrete walkway that extended onto Max’s property.

We affirm the judgment of the trial court.

In 1908 appellee, Max Bickler, and his brother Harry acquired a tract of land in Austin located on West 16th Street.

In 1909 Max and Harry partitioned a portion of this property between themselves and in 1915 they executed a correction deed. In this latter deed, Harry’s property was extended two feet to the east, and Max’s east line was extended six feet to the east to take in the already existing driveway which is in controversy here and which was then lying on property that had not been partitioned and was still owned in common by Max and Harry.

16th Street runs east and west. The Bickler property lays to the south of 16th Street. After the abovementioned partition and correction thereof, Harry owned a lot abutting 16th Street on the north, immediately adjoining him and to the east lay Max’s property and immediately adjoining Max’s property to the east lay an undivided strip owned in common by Harry and Max.

In 1915 Harry and Max conveyed the north portion of this undivided strip (a metes and bounds description not being necessary here) to Sam Sparks. The north end of this portion conveyed to Sparks abutted 16th Street.

At a date not important to this opinion Mrs. Jacob Bickler, the mother of the litigants herein, purchased a 15-foot strip from Sam Sparks. This strip extended across the entire south portion of the Sparks’ strip previously purchased from Max and Harry.

In 1916 and after the abovementioned conveyance to Sparks, Max and Harry and all of the other children of Martha and Jacob Bickler (including plaintiff-appellant Ralph) entered into an agreement with reference to a house for their mother (Jacob Bickler their father being dead at this time) to be placed on that portion of the property still owned in common by Harry and Max. This property lay immediately to the south of the property Harry and Max had conveyed to Sparks and south of, and adjoining, the strip purchased from Sparks by Mother Bickler. This property was cut off from any access to 16th Street other than by the driveway in controversy that joined it through Max’s property immediately to the west.

This agreement to build a house for Mother Bickler that the children entered into recited the amount that the house was to cost, the contribution due from each child and also that at Mother Bickler’s death either plaintiff-appellant Ralph or his brother George (who both lived with Mother Bickler up until the time of her death) would have a right to purchase the house for a stipulated price within one year after her death. There were other provisions of this instrument not pertinent here. The house was built in 1915 and Ralph and George continued to live there with their Mother until her death on November 18, 1937 intestate.

On December 6, 1938 Max and his wife, Mary, executed the following instrument:

“Austin, Texas, December 6th, 1938
WE, Max H. Bickler and wife, Mary H. Bickler, hereby acknowledge the receipt of the sum of $500.00 this day paid to us by our brother, Ralph A. Bickler, such amount being our interest (as a loan on) in the property at 809 West 16th Street, and as more fully described in the AGREEMENT entered into by the Bickler children, their husbands and wives, respectively, on the 10th day of June, 1916.
And we do hereby agree that Ralph A. Bickler may pay the interest amounting $287.50, to date, and no more, on said loan of ^Joq'qq ⅛ such monthly payments, until fully paid up, as may be convenient to him.
EXECUTED IN DUPLICATE
/s/ Max H. Bidder
/s/ Mary H. Bickler”

There are handwritten notations following the abovementioned signatures on the body of the instrument showing payments from January 1939 through March 1946. There is no dispute over payments.

Ralph had not exercised the option to purchase his mother’s property within the year after her death and the trial court so found.

Ralph received title to the property on which his mother’s house was built in 1949 through deeds executed by Max and Harry.

As stated above, Mother Bickler had purchased a portion of the south part of the Sparks’ property which lay between the property on which her house was located and 16th Street.

Through subsequent conveyances a Mrs. Marrs obtained title to the Sparks’ property and in 1944 Mrs. Marrs conveyed an 8-foot strip along her east line and a 20-foot strip across her south line to plaintiff-appellant Ralph.

At present Ralph’s property consists of the land upon which Mother Bickler’s house was built. Immediately to the north of this is the strip Mother Bickler bought from Sparks (of which Ralph now owns all except the outstanding interests of two Bickler children). Immediately to the north of this is the property Ralph acquired from Mrs. Marrs in 1944 which includes the abovementioned 8-foot strip leading from Ralph’s property onto 16th Street.

From 1915 until 1962 Ralph Bickler used a driveway, admittedly on Max’s property, to arrive at his residence. He has also used a walkway that extends from 16th Street along the dividing line between Max’s and Ralph’s property. This walkway has been approximately three feet wide, covered by flagstones for many years and recently concreted by Ralph. This walkway extends onto Max’s property for a distance of 1-ft. 8-in.

When Max put a chain link fence along his property line which cut off 1-ft. 8-in. of the abovementioned walkway and cut off access to the driveway entirely, Ralph filed this lawsuit.

In his first point of error, appellant Ralph complains of some twenty-one findings of fact made by the trial court. We do not deem it necessary to the decision of this case to discuss all twenty-one findings and will discuss only those which we consider controlling. Rule 296, Texas Rules of Civil Procedure; Boston Insurance Co. v. Rainwater, Tex.Civ.App., 197 S.W.2d 118.

In his second point of error, appellant complains of the error of the court in its conclusions of law and of its judgment in the following: (a) in concluding that plaintiff never had and is not now entitled to any kind of easement; the error of the take nothing judgment and that appellant be required to remove the concrete walkway.

Appellant’s third point of error is that of the trial court in permitting appellees to file a trial amendment wherein they asked that if the court found that the concrete walkway encroached on the land of ap-pellee that appellant be required to- remove same in a workmanlike manner.

We overrule these points.

With respect to the driveway that is located on appellee Max’s property that appellant Ralph has been using up until Max fenced it off in 1962, appellant claims an easement by estoppel en pais and an easement appurtenant by implication.

Appellant is precluded from asserting an easement by estoppel en pais for several reasons.

In the first place, there are no pleadings on the part of appellant that will support any theory of estoppel. The rule is well established that in order for estoppel to be relied upon it must be especially pleaded. 22 Tex.Jur.2d 689, Sec. 19. Also Rule 94, T.R.C.P. requires that estoppel shall be affirmatively pleaded. The pleader must allege with particularity the facts that are essential to establish estoppel, 22 Tex.Jur.2d 691, Sec. 20. No intendments will be indulged in favor of the plea.

In the second place, there is no evidence of the elements necessary to establish an estoppel in pais. These elements according to Harrison v. Boring, Sup.Ct., 44 Tex. 255, are (a) an agreement or representation which has been so acted upon by the one claiming the estoppel and (b) an expenditure of monies which would be lost if the right to enjoy the easement could be revoked. Also see Anderson v. Tall Timbers Corporation, 378 S.W.2d 16, Sup.Ct.

Ralph does not claim an express easement over the driveway. Nor is there evidence of any representation on the part of Max that would have led Ralph to believe that he had an easement thereon. In this regard, the overwhelming weight of the evidence in this case is to the effect that whatever use Ralph had made of both the driveway and the walkway over the years had been a permissive use enjoyed by both Max’s and Ralph’s families. From a reading of the record in this case it would be difficult to arrive at any other conclusion. The trial court so found.

On page 33 of his brief appellant states: “ * * * and even though we do not have an affirmative expenditure by Ralph on the roadway, * * * ” Appellant then argues that once Ralph had a garage on Max’s property near the driveway that he subsequently removed at Max’s request and had planted shrubs on his own property “as if the driveway was a part thereof.” Such were not sufficient to represent an expenditure of monies which would he lost if the right to enjoy the easement could be revoked.

Nor do we believe, and so hold, that appellant had an easement appurtenant by implication.

Appellant contends that at the time the Bickler children entered into the agreement to build a house for their mother in 1916, the driveway in question was the only way to reach the property on which the house was subsequently built. That after Mother Bickler’s death and Max and his wife executed the above quoted agreement of December 6, 1938 referring to the agreement of 1916, there was still no entrance to the property subsequently purchased by Ralph other than by the driveway in question or the walkway in question. Appellant contends that by virtue of these agreements that the easement appurtenant by implication attached and that Ralph’s property cannot be divested of same even though Ralph did not acquire title to the property until 1949. That such an easement attached even though obtaining title to the Marrs’ property in 1944, he acquired access to 16th Street through his own property. That the deeds from Max and Harry conveying the property to Ralph by metes and bounds also conveyed “the appurtenances thereto” and that the easement was one of the appurtenances. That Harry and Max had created a dominant estate in the part they had allowed their mother to build on and had subsequently sold to Ralph and that Max’s adjoining property had become a servient estate with the easement in question impressed thereon.

We shall not discuss the cases cited by appellant as they all require one element that is not present in appellant’s situation and that is strict necessity.

It is true that such a necessity existed in respect to the property used by Mother Bickler and subsequently by Ralph up until the time that Ralph acquired his own way of ingress and egress in 1944; however, we hold that when Ralph acquired title to the property in 1949 such necessity for the easement as the law requires was no longer present.

The above quoted agreement of December 6,1938 executed by Max and his wife stating that they had received $500.00 from Ralph and referring back to the agreement of the Bickler children in 1916 wherein it was agreed that either Ralph or George would buy the house within a year, was no more than a contract of sale permitting Ralph to buy the house. No title passed to Ralph here. In fact, until he paid the entire consideration required by the contract he had no more than an equitable right, Johnson et ux v. Wood, 138 Tex. 106, 157 S.W.2d 146. In Othen v. Rosier et al, 148 Tex. 485, 226 S.W.2d 622, the Supreme Court stated:

“ * * * In 28 C.J.S., Easements, §§ 34 and 35, pages 694 et seq., it is made clear that before an easement can be held to be created by implied reservation it must be shown: (1) that there was a unity of ownership of the alleged dominant and servient estates; (2) that the roadway is a necessity, not a mere convenience; and (3) that the necessity existed at the time of severance of the two estates.” (Emphasis added.)

The Supreme Court has restated these requirements in W. T. Waggoner Estate v. Gleghorn, 378 S.W.2d 47, Sup.Ct.

Since Ralph’s estate was severed from Max’s and Harry’s in 1949 there was no necessity at that time for the easement claimed due to Ralph’s having acquired the Marrs’ property. Such a necessity is a prerequisite for the easement he claims. See Mitchell et al v. Castellaw, 151 Tex. 56, 246 S.W.2d 163; Duff v. Matthews et al, 158 Tex. 333, 311 S.W.2d 637; Drye et al v. Eagle Rock Ranch, Inc. et al, 364 S.W.2d 196, Sup.Ct.

Consequently the “appurtenances” mentioned in the deeds to Ralph in 1949 did not convey any easement. In 19 Tex.Jur.2d, page 469, Section 153, it is stated:

“Nothing passes by the term ‘appurtenances’ except such land as is indispensable to the use and enjoyment of the property conveyed.”

In Stradley v. Magnolia Petroleum Company, Tex.Civ.App., 155 S.W.2d 649, writ ref., the Court quoted with approval from 26 C.J.S. Deeds page 902, Section 106, as follows:

“ ‘It is a general rule that upon the conveyance of property the law implies a grant of all the incidents rightfully belonging to it at the time of conveyance and which are essential to the full and perfect enjoyment of the property.” (Emphasis added.)

At the time the easement over Max’s property was necessary to reach Mother Bickler’s house and subsequently Ralph’s house, neither owned the property. The estate had not been severed. When the estate was severed and Ralph became the owner, there was no longer a necessity for the easement as Ralph had acquired a way of his own.

Again we quote from Othen v. Rosier, supra:

“ * * * ‘The rule is well settled that use by express or implied permission or license, no matter how long continued, cannot ripen into an easement by prescription, since user as of right, as distinguished from permissive user, is lacking,’ * *

Ralph’s use throughout the years was permissive only.

We come now to the walkway between Max’s and Ralph’s properties that has been in existence for many years and used by Ralph and his family. For many years the walk was covered with flagstones and later covered with concrete. Both Max and Ralph had a survey made and both surveys show that the walk is on Max’s property for a distance of 1-ft. 8-in. There is no dispute over this. Ralph knew this when he had the flagstones covered with concrete and he so testified.

Appellant maintains that the walkway is on Max’s property only if the call in his deed is strictly applied and that the words “more or less” stated after the call imply a latitude that would place the walkway entirely on appellant’s property. To support this theory appellant refers to the correction deed executed by Harry and Max in 1916 and reasons that an ambiguity exists as to where the correct boundary line really is at present. They also refer to the agreement of 1916 which states that the width of the strip in question was 4 feet instead of the 3 feet mentioned in Ralph’s deed. From here they reason that inasmuch as the walk has remained in its present location for all these many years, that the boundary has been acquiesced in by the adjoining parties.

We do not agree. The cases cited by appellant wherein the words “more or less” relieved the figure from exactness applied to quantity of land and not to distances or calls. See Wooten v. State, 142 Tex. 238, 177 S.W.2d 56.

In Humble Oil and Refining Co. v. Luther, Tex.Civ.App., 40 S.W.2d 865, no writ history, the court held that there was no ambiguity in a call reciting “thence about 50 varas * * *that 50 varas meant 50 varas and the word “about” was disregarded.

In Gulf Oil Corporation v. Marathon Oil Company, 137 Tex. 59, 152 S.W.2d 711, the Supreme Court holds that before the parties may establish a boundary line different from the true boundary line by parol, there must be either doubt, dispute or uncertainty between the parties as to the true line.

The undisputed testimony here shows that there had never been any dispute or controversy between Max and Ralph as to the true location of the boundary line.

Ralph contends that there is a defect in his right of egress and ingress over the corridor he obtained from Mrs. Marrs in 1944 in that such traffic must of necessity pass over the property he purchased from the Bickler heirs, the same being the property purchased by Mother Bickler from Sam Sparks, and that there are two interests still outstanding in respect thereto.

We overrule this contention. He has a right to the use of the property as a co-tenant and as such has been using the property without interference from anyone. See 15 T.J.2d, page 164, Sec. 9.

After the surveyor had testified as to the location of the boundary line in relation to the walkway in question and after Ralph had testified that he knew that the concrete walk extended into Max’s property, appellee filed the trial amendment complained of asking that if it was found that the concrete walkway encroached onto Max’s property that Ralph be required to remove the same in a workmanlike manner.

In allowing this amendment the court was not in error. Rules 66 and 67 provide for trial amendments. Rule 66 states that the court may allow amended pleadings:

“ * * * and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the allowance of such amendment would prejudice him in maintaining his action or defense upon the merits. The court may grant a postponement to enable the objecting party to meet such evidence.”

The allowance of the trial amendment did not prejudice Ralph’s action or defense on the merits. He did not ask for a postponement to enable him to meet such evidence. See Dirks v. Dirks, Tex.Civ.App., 302 S.W.2d 471, writ ref., n. r. e. The Court did not abuse its discretion in allowing this amendment and merely prevented the necessity of another trial in granting the amendment and ordering that the portion of the walkway on Max’s property be removed.

The judgment of the trial court is affirmed.

Affirmed.


source: Caselaw Access Project

author: SELLERS, Justice.

license: Public Domain

text:
    Robert L. HALVORSON et ux., Appellants, v. NATIONAL TITLE AND ABSTRACT COMPANY et al., Appellees.
    No. 135.
    Court of Civil Appeals of Texas. Tyler.
    May 27, 1965.

      Barnett M. Goodstein, Dallas, for appellant.
    George C. Dunlap, Lyne, Blanchette, Smith & Shelton, Dallas, for appellees.
   SELLERS, Justice.

Appellants, Robert L. Halvorson and wife, plaintiffs in the trial court, brought this suit against appellees, National Title and Abstract Company and the Title Guarantee Company, defendants in the trial court, to recover upon a title insurance policy issued by appellees to appellants, insuring the title to a house and lot located in Richardson, Dallas County, Texas, the date of purchase being April 9, 1959.

At the time and before the purchase of this property by appellants, it is an admitted fact that appellant, Robert L. Halvorson, went upon the property and observed a power line running along the west side of the property. While none of the poles were actually on the property, the power lines were extended over and along the west side of the property on poles just off the property which were clearly visible. This power line was owned by Texas Power & Light Company and was constructed upon an easement secured by it in 1917, which extended 50 feet on each side of the center line and was duly recorded in the deed records of Dallas County, Texas. It is not contended here that the 1917 easement did not authorize Texas Power & Light Company to construct the line as it existed at the time this suit was brought. In 1958, the City of Richardson granted to the same company an easement over an addition of the City of Richardson along the same center line of the 1917 easement but limited the width of this easement to 15 feet.

At the time of appellants’ purchase of the property, this easement was of record and the power line as it existed was constructed within the boundary of the 15-foot easement and carried voltage of 69,000 volts. After the purchase of this property by appellants, the Texas Power & Light Company constructed along this same center line new poles and lines carrying a voltage of 138,000 volts on crossbars extending beyond the 15-foot limits in the easement granted by the City of Richardson.

It is alleged by appellants that this second line, with its 138,000 volts, damaged their property in that the same made the occupancy of said property exposed to a dangerous current of electricity. It is the contention of appellants that the title policy issued to them by appellees guaranteed to them a title to the property free of the 1917 easement of the Texas Power & Light Company under which the new power line was constructed; and for this reason, appellants sought to recover damages against appellees based solely upon the title insurance policy.

The appellees defended on the sole ground that the title policy contained an exception to its liability which precludes appellants from recovering against appellees. The exception from liability contained in the policy relied upon by appellees is “Rights of Parties in Possession.”

Both parties filed motions for summary judgment; and after a hearing, the court granted appellees’ motion and denied the one of appellants. From this judgment the appellants have duly prosecuted this appeal.

Appellants make the contention that the above exception cannot be relied upon by appellees. We take the following from appellants’ brief:

“The Appellees in this case are relying on the Exception #5, ‘Rights of Parties in Possession’ Article 9.03, Insurance Code, V.A.C.S., states that Title Insurance Companies
“‘shall operate in Texas under the control and supervision, and under such uniform rules and regulations as to forms of policies and underwriting contracts and premiums therefor, as may be from time to time prescribed by the Board; and no Texas or foreign corporation, whether incorporated under this chapter or any other law of the State of Texas shall be permitted to issue any title policy of any character, or underwriting contract, on Texas property other than under this chapter, and under such rules and regulations.’
“Pursuant to this statute, the Board of Insurance Commissioners promulgated a ‘Basic Manual of Rules, Rates and Forms’. As stated in said manual, title insurers are permitted to insert, as a general exception to the policy’s guaranty, the language ‘rights of parties in possession’. The manual does not define the scope of this exception, but prescribes the condition of its use as follows:
“ ‘4. Provision for Exception in Owners Policy of Parties in possession.’ — In an Owner’s policy, where insured waives inspection, and is satisfied to accept the policy subject to the rights of parties in possession, the issuing company shall have the right to make general exception as to ‘Rights of Parties in Possession’. In all such cases, however, company must obtain written waiver from insured, which waiver must be retained and preserved by the issuing company.’ ”

We overrule this contention of appellants and hold that the rule relied upon by ap-pellees as applying only where purchaser waives inspection of the property. As stated above, appellant went upon the property and made inspection and actually observed the power lines crossing the property.

The provision contained in the policy is the same as that considered by the Supreme Court in the case of Shaver v. National Title & Abstract Co., 361 S.W.2d 867, 98 A.L.R.2d 531, “Rights of Parties in Possession.” As we construe this case, it holds that in order to operate as notice of a claim to the land occupied, possession must be open and visible, notorious, exclusive and not merely constructive.

The remaining question then, Was the power line that was in existence and crossing the property purchased by the appellants sufficient to put them on notice of Texas Power & Light Company’s rights to possession? We are of the opinion that it was.

We find this expression in 29 C.J.S. Electricity § 16, page 971:

“A person acquiring title to land with actual or constructive notice of an easement or right of way therein for an electric line take subject thereto, as does the tenant of the landowner.”

In the case of Markley et al. v. Christen et al., Tex.Civ.App., 226 S.W. 150, the court used this language:

“The sight or knowledge of structures, or other visible material objects, such as roads, wires, or poles connected with or on the land, might reasonably suggest some easement, license, or other similar right. Whenever it appears that a party obtains knowledge and information that are sufficient to put a prudent man upon inquiry, then the inference will arise that he obtained such information.”

Other assignments not discussed above have been considered and are deemed without merit and are overruled.

The judgment of the trial court is affirmed.


author: NYE, Justice.

text:
    John J. SURKO et al., Appellants, v. Dan J. HARRISON, Jr., Appellee.
    No. 66.
    Court of Civil Appeals of Texas. Corpus Christi.
    May 13, 1965.
    Rehearing Denied June 2, 1965.

      Ralph K. Miller, W. E. Daly, Jr., Simon M. Frank, Houston, for appellants.
    Hugh Dunlap, Houston, Leland B. Kee, Davis, Kee, & Mason, Angleton, for appel-lee.
   NYE, Justice.

This is an appeal from a summary judgment in favor of Dan J. Harrison, Jr., the defendant, and against John J. Surko, d/b/a C. B. S. Workover Company, as plaintiff.

The litigation began as a result of the plaintiff, the drilling contractor., suing to recover amounts alleged to be due him under the terms of a written drilling contract for services rendered and equipment and materials furnished, including the costs of certain third party services. The parties will be referred to as they appeared in the trial court.

The decision of this case rests upon an interpretation of the drilling contract and the facts that appear from the depositions of the parties and their witnesses.

Our Supreme Court, in passing upon Rule 166-A, V.A.T.R., has placed the burden of proving that there is no genuine issue of any material fact upon the movant and “All doubts as to the existence of a genuine issue as to a material fact must be resolved against the party moving for a summary judgment.” Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952). The trial court that hears the motion for summary judgment must determine if there are any issues of fact to be tried and' is not to weigh the evidence or to determine its credibility. Since the motion for summary judgment was granted to the defendant we shall view the plaintiff’s position with regard to the rules herein laid down by the Supreme Court. It is, therefore, the obligation of this Court to accept as true all evidence of the plaintiff (the party opposing the motion for summary judgment) Cowden v. Bell, 157 Tex. 44, 300 S.W.2d 286 (1957) which tends to support such plaintiff’s contention and to give him the benefit of every reasonable inference which can be drawn in favor of his position. Bolin v. Tenneco Oil Co., Tex.Civ.App., 373 S.W.2d 350, ref. n. r. e.; Valley Stockyards Company v. Kinsel, 369 S.W.2d 19 (Sup.Ct.1963).

The defendant owned and operated an oil and gas lease'. He entered into a written contract with the plaintiff to drill an oil well on his lease to 4800 feet. The plaintiff moved his rig on the location and drilled for several days. He exceeded the contract limitation of three degrees from true vertical, whereupon plaintiff plugged the well back some distance, and recommenced drilling for eight or ten days until he reached a certain formation at approximately 2900 feet. At this point plaintiff lost the circulation of “returns” of his drilling mud. Plaintiff’s drilling crew attempted to regain circulation by operating the mud pump at maximum capacity. When it became apparent that circulation could not be restored the crew attempted to remove the drill pipe from the hole. The sides of the hole caved in and the pipe became stuck. Plaintiff recovered approximately 110 feet of his drill pipe but was unable to loosen, rotate or pull the balance of the drill pipe from the hole. The defendant admitted that the plaintiff’s efforts to restore circulation and free the stuck drill pipe were reasonable and necessary under the circumstances.

At this point the testimony was in some instances conflicting. The plaintiff testified that he notified the defendant through his superintendent as quickly as possible. Plaintiff testified that when he finally got in touch with the defendant’s superintendent he informed him of the circumstances at the well * * * that a fishing tool company would have to be employed and that “washing over operations would have to be proceeded with.” “When he (the defendant’s drilling superintendent) called me back the second time and agreed those operations would have to be proceeded with,” plaintiff (continuing) stated “well, I asked him (defendant's drilling superintendent) who he thought would be the fishing tool company to send down here. I told him that I knew that he had used Horneo and he concurred that Homco, Houston Oil Field Materials Company, was the best company to send down.” The plaintiff and the defendant disagreed at this point as to whose responsibility it was under the contract to perform and pay for these special fishing tool services. Plaintiff testified “when Mr. Wear (defendant’s drilling superintendent) informed me it was my duty to fish out the pipe, I told him that I didn’t quite see how they could figure or could put that interpretation on it. I had never entered into a fishing job of this sort before other than the operator had taken over operations, and he said that he was sorry but the fishing operations would have to proceed. So, I went ahead, after we concurred on the fishing tool company I proceeded to call them and tell them to go down on the job.”

The fishing job proceeded for six or seven days. The plaintiff informed defendant’s superintendent that the last of the drill pipe was being recovered from the hole and requested instructions relative to continuing with drilling operations. The superintendent told the plaintiff that when they had recovered the fish entirely and the last portion of the drilling string was above the rotary table, to call him back. An hour or so later the plaintiff called back, and the superintendent told him to “plug the well”. The plaintiff called his employee, the tool pusher, instructing him to abandon the well and to set cement plugs. Plaintiffs’ employee told him that there were some “oil shows on this well” * * * “Aren’t they going to run an electric log on this well.” The plaintiff told his tool pusher to stand by while he called the defendant’s superintendent Wear, to tell him about the “oil shows” and -to see if they wanted to log the well. Wear, the defendant’s superintendent, said, “No, the geologists fell like we are too high on the dome or we are not structurally located right,” and said, “We don’t want to log it, just go ahead and plug it.” The well was plugged.

The defendant refused payment of any amount and the plaintiff brought this action, seeking recovery for three separate amounts alleged to be due under the contract: (1) $7,200.00 for the minimum 3000 ft guarantee (if well was abandoned at the election of the defendant); (2) $5,093.75 for “day work” and (3) $7,935.60 for the fishing expense performed by third party service company, or a total amount of $20,229.35, plus attorney fees of $10,000.00.

The plaintiff contends that he is entitled to recover not less than the sum of $7,200.00 for the minimum guarantee under the terms of the drilling contract unless he has forfeited all rights to compensation for their service and materials furnished as a matter of law because: (1) plaintiff abandoned the contract; or (2) because he “drilled through” an oil show without “due notice” to defendant, which breach was sufficient to cause a forfeiture of all sums due under the contract and that the same was not waived by the defendant.

Before taking up the defensive issues 1 and 2 above we look to the contract to determine if plaintiff is entitled to the minimum amount as contended. In this connection we consider Paragraph 21 of the written drilling contract which is referred to us by both parties.

“21. If formations are encountered in the drilling of said well which are unusually difficult to penetrate * * * or other formations where returns are lost, * * * Contractor shall, with diligence and skill, make at his risk and expense a reasonable effort to overcome such a condition and make hole, using modern methods and means adapted thereto for 24 hours * * * so that normal drilling operations can be resumed. If Contractor fails in such effort it shall be relieved of the obligation to drill 4800 feet and if Owner desires to continue operations in an attempt to penetrate such formation, he shall notify Contractor in writing. For such operations thereafter and until such formation shall have been penetrated and normal drilling operations resumed, or the well abandoned at Owner’s election, Contractor shall be paid on the day rate schedule * * * (until) normal drilling operations can be resumed, then further drilling shall be on footage basis as provided under the contract, (emphasis supplied).
“If the hole is lost while attempting to penetrate such formation on day time as provided in the above paragraph, then Contractor shall not be responsible for the loss of the hole * *. In the event the drill pipe is stuck while on day time as provided in this Article 21, * * * then Owner agrees to pay Contractor the applicable day rate plus cutting and fishing tool rental and expense for such reasonable time as is necessary to recover the drill pipe, but Owner shall have the right to direct the Contractor to stop the efforts to recover said stuck drill pipe at any time and pay the Contractor the reasonable value of the drill pipe not recovered.” '

The defendant admits that he waived the twenty-four hour requirement in paragraph 21 above which required the plaintiff to make at his risk and expense a reasonable effort to overcome the condition encountered in the formation where the returns were lost for a twenty-four hour period. As provided in this paragraph following, if plaintiff was unable to overcome his lost circulation after making a reasonable effort for the time specified he was thereafter relieved of the obligation to drill to the contract depth of 4800 feet. This being so it was incumbent upon the defendant to notify the contractor as to the next operating procedure. The contract provided that plaintiff was to drill to a depth of 4800 feet or “to such other depth at which owner (defendant) elects to abandon the well.” At another place the contract stated that plaintiff was to “drill to 4800 feet or to such other depth as owner (defendant) in his sole option and election may request.” Still at another place the contract provided that plaintiff “would be paid $2.40 per lineal foot drilled to the depth of 4800 feet or to such lesser depth as owner may have elected drilling discontinued; provided contractor (plaintiff) shall be paid for at least 3000 feet even though owner elects to discontinue drilling at a lesser depth.” If the defendant’s instruction to abandon the well constitutes his election to discontinue drilling, certainly plaintiff would be entitled to the minimum 3000 foot times $2.40, the same being $7200.00, unless defeated by (1) abandonment of contract by plaintiff or (2) a material breach of the contract that was not waived by the defendant.

We first look at the question of abandonment on the part of the plaintiff. The defendant testified that his superintendent (Wear) stated that the plaintiff told Wear that when he (plaintiff) got the pipe out of the hole he didn’t want to go ahead on the contract, he didn’t want to risk losing his string again. This statement was hearsay and is no evidence at all. Texas Co. v. Lee, 138 Tex. 167, 157 S.W.2d 628 (1941). Wear testified that he didn’t recall telling anyone that plaintiff had refused to drill the well any further * * * he said * * * “it was assumed” * * * by the defendant’s employees that plaintiff didn’t want to go on with the drilling of the well. The superintendent Wear’s testimony of what the plaintiff told him was a conclusion, not positive or unequivocal. “If a party intends to repudiate a contract before the time for performing it arrives, his declaration of repudiation must be positive, unequivocal, and unconditional in order to be accepted by the other party to the agreement * * * the party not in default will be justified in treating the contract as repudiated or abandoned only when the other party to the agreement, by his conduct or misconduct, clearly shows a fixed intention to repudiate the agreement and not to comply with its terms in the future. * * A refusal by one party to perform an independent provision of a divisible contract, or a bona fide controversy over the terms of a contract or the construction to be placed on it and a refusal to perform in a particular manner, is not such renunciation or abandonment as will authorize the other party to treat the contract as rescinded or breached.” 13 Tex.Jur.2d 565, § 310.

Looking to a reasonable inierence drawn from plaintiff’s testimony, i. e., his offer to run an electric log to see if the oil show was worthy of further consideration and his report that the string of pipe had been recovered and seeking instructions on how the proceed, does not indicate to us that the plaintiff had abandoned the contract. Plaintiff didn’t testify that he was abandoning the well or contract. Plaintiff did testify that he didn’t have any personal conversation with the defendant until after defendant’s employee, Wear, ordered the well plugged and abandoned and the well was actually plugged. The defendant’s testimony was hearsay and his employee’s version was indecisive. We hold that there is a fact issue as to whether or not plaintiff repudiated the contract which must be decided at a subsequent trial.

Looking now to the issue as to whether or not plaintiff forfeited his rights under the contract, we must determine from the evidence before us, viewed in the light most favorable to the plaintiff, as to whether or not there was a breach of the contract, and if so, did the defendant waive such breach.

The contract provided that * * * “no oil shows, indications or traces of oil or gas shall be drilled through until owner shall have due notice and an opportunity to have a representative present to specify the nature and scope of such tests as owner may desire.” The contract further provided that * * * “should contractor violate any of the terms or provisions of this contract, or if contractor deliberately furnishes false records of well surface such neglect, delay, discontinuance or violation shall of itself be a forfeiture of all rights and claims of contractor under this agreement without any notice or demand by owner.”

The defendant argues that the plaintiff breached the foregoing provision and thereby forfeited his rights to any compensation. The plaintiff contends that this is without merit because there were at least disputed fact issues as to whether (1) plaintiff only “encountered” as contrasted with drilling through an oil show so as to breach this provision; (2) plaintiff gave “due notice” thereof to defendant; and (3) any breach thereof was waived by the defendant who with knowledge of the oil show instructed the plaintiff to plug the well and is now estopped to assert any such breach. Both parties cite Ford v. Culbertson, 158 Tex. 124, 308 S.W.2d 855 (Sup.Ct.1958). The Court said:

“The question of waiver is one of fact for the jury or the trier of the facts where it is a matter of inference. The plaintiffs pleaded waiver and es-toppel as a defense and the burden of proof rests upon them to establish such issues by a preponderance of the evidence. A waiver takes place where one dispenses with the performance of something which he has a right to exact, and occurs where one in possession of any right, whether conferred by law or by contract, with full knowledge of the material facts, does or forbears to do something, the doing of which or the failure or forbearance to do which is inconsistent with the right or his intention to rely upon it. 92 C.J.S. [Waiver] p. 1061. Waiver, of course, is a matter or question of intention.”

The subject well was one of a series of wells that had already been drilled or were being drilled for the defendant on his lease. The contract depth was 4800 feet. The evidence is void of any testimony by the defendant’s superintendent Wear or the defendant himself that they were surprised or shocked to learn of the discovery by them of the reported oil show at the time they ordered the well plugged. It is apparent from the record before us that it was not important enough to the defendant to carry on any extended conversation with the plaintiff at the time the oil show was reported ; or important enough to the defendant to make any on the spot check; or to cross-examine the driller as to the extent of such oil show prior to the instructions by the defendant to plug the well. The plaintiff offered to run a log in the well, but the defendant wasn’t interested. The contract only required that the plaintiff give “due notice”. We hold that the testimony raises a fact issue as to “due notice” and as to waiver. Womack v. Allstate Insurance Company, 156 Tex. 467, 296 S.W.2d 233, (Sup.Ct.1956).

Forfeitures have never been favored by the law, and the courts will decline to strictly enforce such provisions whenever they are against equity and good conscience. Where all the rights of a party to a contract are dependent upon the construction of the term “due notice”, our courts would not hesitate to construe such language in the contract to avoid and prevent such forfeiture where the facts warranted it. 13 Tex.Jur.2d § 158, pages 340-43; 25 Tex.Jur.2d § 3, p. 502. Where it is undisputed that notice was given, it should be at least determined by the jury if such notice was sufficient; if not, then a jury question arises as to whether or not the defendant waived such breach.

There is little doubt that in construing the contract from its four corners, the plaintiff is entitled to the minimum lineal feet provision of $2.40 a foot for 3000 feet, unless the plaintiff abandoned the contract, or committed a breach of the contract that was not waiver, requiring forfeiture of his rights thereunder. These fact issues will have to be determined by a jury.

We do have some doubt as to the ability of the plaintiff to recover the day rate for day work in the amount of $5,093.75 and for the fishing expense in the sum of $7,-935.60. The contract provides in paragraph 21 that if the owner (defendant) desires to continue the operations in an attempt to so penetrate such formation he shall notify contractor in writing.

Of course, upon a trial of the entire case, it may be that the plaintiff as contractor can establish by the evidence that he is entitled to other issues. Only an actual trial of the merits will determine this.

We sustain appellants’ points 1 through 4 and reverse and remand the entire case for trial on the merits.

Reversed and remanded.


author: CHAPMAN, Justice.

text:
    BURRUS FEED MILLS, INC., et al., Appellants, v. W. A. REEDER, Appellee.
    No. 7467.
    Court of Civil Appeals of Texas. Amarillo.
    May 17, 1965.

      Day & Owen, Chas. H. Dean, Plainview, ■for appellants.
    Stovall & Stovall, Plainview, for appel-lee.
   CHAPMAN, Justice.

This is a products liability case tried to a jury upon the theory adopted by the trial court to the effect that the rule of ■“implied warranty” as announced by our Supreme Court in Decker & Sons v. Capps, 139 Tex. 609, 164 S.W.2d 828, 142 A.L.R. 1479, has application to food - mixed and processed by the manufacturer and sold for immediate consumption by animals.

The Decker case announced the principle that a non-negligent processor could be held liable in damages to a person injured from eating contaminated food prepared by such processor, although there was no privity of contract between the latter and the consumer of the contaminated food.

As pointed out in effect by our former, revered Chief Justice Alexander in Decker, there is no unanimity in the various jurisdictions upon the question, and many courts have insisted strictly on the requirement of privity. However, even as far back as 1942 when the Decker case was announced that court said: “There is a growing tendency * * * to discard the requirement of privity and to hold the manufacturer liable directly to the ultimate consumer.”

Thus, to affirm the instant case we must extend the doctrine beyond that to which our Supreme Court has as yet given assent, though so far as we have been able to determine, they have in no case yet refused to extend the doctrine. We believe this to be an appropriate case for such extension.

Appellee Reeder was a breeder of Quarter Horses, some of which carried the top blood lines of the breed. Among these was a two-year old stallion by the name of General Champ.

The evidence indicates that under the rule of genetics, even when two top blood lines are crossed in a breeding program, sometimes the result is not favorable. But in the case of General Champ, a foal out of Miss Cuba Girl by General Roy, those two blood lines “nicked” and he was a top two-year old stallion. Though his value was placed as high as $12,000 by one Quarter Horse breeder, the most reliable testimony of an expert in the Quarter Horse business who knew both the blood lines and the individual colt from the time he was foaled showed him to be worth between $7,000 and $10,000, “ * * * he could have expected to have sold from $7,000 to $10,000.” This witness was Bob Hooper, one of the original organizers of the American Quarter Horse Association who served as its president for four consecutive years; who has bred, raised and owned such horses even before there was an official registry association; who owned approximately 150 head of horses in 1962, 75 of which were registered Quarter Horses; and who has judged all the major shows in the United States, including the Kansas City Royal, the National Western at Denver, the Cow Palace at San Francisco, and the International Livestock Show at Chicago.

On July 28, 1962, Burrus Feed Mills, Inc. delivered to Plainview for Roy Phil-pot, a retail dealer, by way of rail, 80 100-pound sacks of feed mixed and designed by them for horse feed and labeled “Hearts Delight Heavy Duty Horse and Mule Feed,” manufactured by them. Also written on the said sack was the slogan: “Be Sure You’re Right — Use Hearts Delight.” The feed was shipped in what was referred to in the record as “toe” sacks, and the exhibits of which show to be loose woven burlap sacks. Each sack contained a tag which guaranteed the analysis. In none of the ingredients was there a mention of arsenic poison, of course.

Appellee had ordered from the retail dealer some of the described feed. Mr. Philpot was out of the feed at the time but soon afterwards, to wit, on July 28, 1962, the railway car from Burrus Mills, Inc. was spotted on the tracks with the feed and appellant Philpot went to the car, picked up 2 of the 100-pound sacks, placed them in his pickup and personally delivered them to appellee about 5:00 p. m. that afternoon by placing them in the consumer’s pickup. The evidence eliminates any possibility of arsenic poison in the two pickups that handled the feed after it left the railway car. Appellee then took the two sacks of feed to his barn, emptied them in a clean feed container and then filled a five-gallon bucket, which he emptied in the feed trough in his horse lot. There was no other feed in the trough at the time and there were three horses in the lot for which the horse feed was designed, all young stallions.

The two sacks were emptied one at a time in the feed container. A clean sack was emptied first and the sack that later showed a stiff spot on it and which the evidence showed to contain arsenic poison was emptied on top of the other. The five-gallon feed can was filled from the top part of the feed container.

General Champ was the boss in the lot over the other two horses. All became ill soon after eating the feed but despite all a veterinarian could do for General Champ he succumbed on Monday, July 30, at 3:00 o’clock p. m., following the feeding on the previous Saturday.

The next day appellant Philpot, James Pulliam, a Burrus Feed Mill representative, and appellee, while discussing the horse’s death, went to the horse lot and Mr. Pulliam noticed a stain on one of the feed sacks. It was the sack which had been emptied into the feed container last and which logically contained some of the feed that had been consumed by the three horses. The men then made an investigation of the railway car in which the feed had been shipped. The car was in excellent condition, being lined with clean paper on both the bottom and sides. There was one stain on the paper at the precise place where the sack of feed had been taken from, about four feet up from the floor of the railway car where the sack had been lying against the paper. The stain was also on the side of the paper next to the sack.

Dr. Joe Braden, the attending veterinarian, who performed, a complete post-mortem on General Champ testified that in his opinion, the horse died from arsenic poison which was in a soluble form.

The Chief of Police sent a sample of the stained part of the burlap sack to the Texas Department of Public Safety and Mr. Charles G. Smith, a chemist in the department, testified by deposition, after performing a chemical analysis on the stained feed sack, that the burlap contained arsenic poison. Fecal material saved from the horse while he was sick was sent in a plastic container to Terrell Laboratories in Fort Worth. Mrs. Jane Hester, a chemist for the laboratory, after making a chemical analysis of the fecal material after it was completely dried out, testified it contained arsenic.

Without further detailing the evidence we are compelled to say it was abundantly sufficient to show the particular sack from which the food was ingested by the horses, including General Champ, contained arsenic poison by a heavy metal, arsenic being so classified, that such poison was in soluble form, and that a sufficient amount of it was in the feed of the stained sack when removed from the railway car to produce the illness in the three horses and the death of the “boss of the corral,” General Champ.

As to appellant, Roy Philpot, there is no question that under the present rules of law in our state, so far as our Courts of Civil Appeals have spoken, a cause of action was proven because a privity of contract was established between him and ap-pellee. Wilderspin v. Bewley Mills, Inc., Tex.Civ.App., 298 S.W.2d 636 (N.R.E.). There the ranchman had bought Bewley’s Anchor Range Chunkets and fed to- his cattle. More than a hundred died, many more were condemned as unfit for beef for human consumption and the others sold. The Fort Worth Court of Civil Appeals held:

“ ‘On a sale of food or provisions for “immediate consumption,” the seller impliedly warrants that the commodity is wholesome and fit for the intended use. The warranty applies to a sale of stock feed, as well as to a sale of food for human consumption, made by a retail dealer to a consumer, where the purpose of the latter is understood. * * *

Appellants cite Brown v. Howard, 285 S.W.2d 752, as authority for their position against privity, but that case is nowhere analogous to the facts of our case. That case involved chemicals sold for cattle spray. The ingredients were shown on the container, several of which were toxic. The cattle to- be sprayed were Brahman. One of the chemicals shown on the container was chlordane. Evidence shows that Brahman cattle, because of their sweat glands in the skin, are more susceptible to chlordane poisoning than other breeds of cattle. This consumer was warned, whereas consumers of “Hearts Delight Feeds” would be attracted to its use for internal consumption by horses and mules.

Other jurisdictions have extended the exception and held that proof of privity is not required where food is sold for consumption by animals. McAfee v. Cargill, Inc., 121 F.Supp. 5. There a United States District Court held lack of privity would be no bar to the buyer’s action against the manufacturer of dog food for breach of warranty.

At a time when the privity requirement was viewed in Massachusetts as subject to an exception in the case of injury caused by food and drugs intended for human consumption the courts of that state refused to extend this exception to include foods and drugs intended for hens. Tompkins v. Quaker Oats Co., (1921) 239 Mass. 147, 131 N.E. 456. In 1946 the Supreme Court of that state rejected the early doctrine of that jurisdiction as represented by Tompkins v. Quaker Oats Co., supra, and in Carter v. Yardley & Co., 319 Mass. 92, 64 N.E.2d 693, 74 A.L.R.2d 1189, Section 20, held:

“The time has come for us to recognize that that asserted general rule (non-liability to persons not in privity of contract) no longer exists. In principle it was unsound. It tended to produce unjust results. It has been abandoned by the great weight of authority elsewhere. We now abandon it in this Commonwealth.” (Parenthetical statement ours).

This was a case not even involving articles manufactured or processed for food, but involved perfume that contained an ingredient that burned a person’s face.

We are not completely without support in Texas upon the reasoning of our courts on the privity question here under discussion. The Waco Court of Civil Appeals in International Milling Co. v. Jernigan, Tex.Civ.App., 191 S.W.2d 526, in a plea of privilege question had a situation before it where the manufacturer labeled wheat bran as being free from poison, sold it to the retail dealer, and Jernigan purchased it from the dealer, McLeod. The consumer sued the manufacturer and McLeod jointly. The court held:

“If the International Milling Company did, as alleged by the plaintiff, manufacture and sack the said bran and label it as being free from poison and put it on the market to be used for livestock feed, it certainly warranted said bran to be fit for livestock consumption. When V. E. McLeod sold the same to the plaintiff he also impliedly warranted it to be fit to be fed to livestock. While the plaintiff did not use the exact word ‘warrant* in his petition, he nevertheless set out facts sufficient to show that the defendants did warrant the fitness of the bran in question, and in his prayer he prayed for judgment against all of the defendants jointly and severally and thereby alleged a joint cause of action against McLeod and the International Milling Company.”

The record in our case shows one witness owned a Quarter Horse for which he had paid $30,000. It is common knowledge in this state that many breeders of horses and cattle own animals worth from $10,000 to $50,000; that processed feeds such as in the instant case are purchased for horses from retailers who would not be subject to execution and that cotton seed cake and pellets are purchased from “small” retail dealers whose assets could not satisfy a judgment for even one such animal. Thus, on the theory of non-liability to persons not in privity of contract it could, for all practical purposes, be said where one or many such fine and expensive animals are poisoned by feed sold by a manufacturer or processor to a retail dealer not subject to execution under warranty on their labels that it is clean and wholesome for consumption by animals and such dealer for a small profit sells such feed to the eventual consumer, such consumer has a cause without a remedy. We agree with the Supreme Court of Massachusetts that the theory of lack of privity is unsound and produces unjust results and we agree with the United States District Court in California wherein it held: “The same public policy considerations present for the protection of humans in the use of packaged and processed foods are also present where instead we deal with animals.” McAfee v. Cargill, Inc., supra.

With respect to food manufactured or processed for human consumption our Supreme Court has settled the question that: “Liability * * * is not based on negligence, nor on a breach of the usual contractual warranty, but on the broad principle of the public policy to protect human health and life.” Decker & Sons, Inc., v. Capps, supra; Griggs Canning Co. v. Josey, 139 Tex. 623, 164 S.W.2d 835, 142 A.L.R. 1424.

It has been textually stated that: “The general trend of the cases * * * from Winterbottom v. Wright to Henningsen v. Bloomfield Motors seems to be steadily in the direction of warranty liability regardless of privity of contract.”

In Randy Knitwear, Inc. v. American Cyanamid Co., 11 N.Y.2d 5, 226 N.Y.S.2d 363, 181 N.E.2d 399, the court in discussing this subject said:

“The world of merchandising is * * * no longer a world of * * * contract; it is, rather, a world of advertising and, when representations expressed * * * on labels (attached to the goods themselves) prove false and the user or consumer is damaged by reason of his reliance on those representations, it is difficult to justify the manufacturer’s denial of liability on the sole ground of the absence of technical privity.”

The manufacturers and processors of packaged foods are not without protection.

“Insurance had satisfactorily relieved manufacturers of other risks, beginning with marine -perils in the 12th century, fire in the 17th century, and, more recently, the general liability risks late in the 19th century. It was only natural, therefore, that insurance was expected to respond to this new need for protection against products liability.”

The jury found that when the horse feed in question was delivered to Roy Phil-pot by Burrus Mills, Inc., it contained arsenic poison; that when it was delivered by .the retail dealer to appellee it contained arsenic poison; and that the ingestion of the feed by General Champ was a producing cause of the horse’s death.

We are not unmindful of the fact that the Burrus Mills loaders testified the spot on which the poison was found was not there when the sack was loaded. Under the strong circumstances in this case indicating the contrary the jury was not obligated to believe their testimony. Mr. Philpot did not notice it when he loaded the sack. Mr. Reeder did not notice it when he emptied the feed. The jury could just as well have believed the loaders did not notice it when they placed it in the railway car. The record is clear that the particular sack of feed in question was not suited for its intended use; there are circumstances of probative force that the poison was in the particular sack when loaded on the railway car by appellant Burrus; there is no question but that the feed was used for the purpose intended; and thus, there was a causal relation between the product and the death of General Champ. We therefore hold that this is a case that constitutes an exception to the necessity of proving privity between the eventual user and the manufacturer and processor.

Our Supreme Court in Decker said: “We think the manufacturer is liable in such a case under an implied warranty imposed by operation of law as a matter of public policy.”

As heretofore stated the court in McAfee v. Cargill, Inc., supra, said: “The same public policy considerations present for the protection of humans in the use of packaged and processed foods are also present where instead we deal with animals.”

In a capitalistic society such as we enjoy and which guarantees one protection of his person, the law should also secure him in the possession of his property. We believe an extension of the doctrine of privity is necessary in this state in order to protect the consumer under facts such as we have here. We limit our holding to feed manufactured or processed for consumption by animals and advertised or labeled for such purpose.

Appellant next asserts error of the court in overruling their objections to the court’s charge wherein the term “producing cause” was used in the third issue instead of “proximate cause.”

The term was defined as “an efficient, exciting, or contributing cause which in a natural and continuous sequence produces the injuries or damages complained of.” Proximate cause is the definition used in negligence cases; and if we are correct in our holding that privity is not required, the negligent concept is not a part of the case. Decker & Sons v. Capps, supra; Griggs Canning Co. v. Josey, supra. Therefore, the point is overruled.

The third point raises the question of no evidence and factually insufficient evidence to support the findings of the jury that when the feed was delivered to Roy Philpot it contained arsenic poison. We feel that what we have said in a discussion of the first point fully covers the question raised in this point and that further discussion would constitute only repetition.

The fourth point complains of error of the court in permitting testimony by appellee’s witnesses as to the value of the deceased horse in his lifetime. This point is not well taken.

Reliable and qualified witnesses testified there would be no difference in the value of the Quarter Horse in Hale County and in the surrounding territory and testified to the value of General Champ in and around Hale County. There is even some testimony of his value in that county.

The next point asserts error of the court in allowing interest from the date of death rather than the date of judgment.

A rule contrary to this contention seems to have been settled by our Supreme Court at an early date in Watkins v. Junker, 90 Tex. 584, 40 S.W. 11. There the court said:

“If interest be properly an element of damages in any ease, then it is so as a matter of law. * * * and we believe that, practically, the courts have come to the proposition that, in cases where the measure of recovery is fixed by the conditions existing at the time that the injury is inflicted, the person entitled to recover has also the right to have compensation for the detention of the money to which he is entitled by reason of the wrong done to him. * * *
“If one takes possession of the horse of another, and withholds it from the owner, compensation for the value of the use of the horse during the time is a legal right, and no court would hesitate to instruct the jury to so find, and we can see no difference between the right to be compensated for detaining a horse worth $100, and the right to be compensated for the detention of $100, the value of the horse, in case he was killed or converted to the use of the taker.”

This rule seems to have been followed consistently by our courts. Ewing v. Wm. L. Foley, Inc., 115 Tex. 222, 280 S.W. 499, 44 A.L.R. 627; Texas Co. v. State, 154 Tex. 494, 281 S.W.2d 83.

Here the evidence shows the horse was just ready for stud service and that appel-lee could have expected to receive $200 a stud service for fifteen to twenty such services each year. Therefore, appellee was damaged from the date of the horse’s death. In Ricks v. Culp, Tex.Civ.App., 206 S.W.2d 285, 287, the court said: “Nor is a jury finding thereon necessary, where the case is submitted upon special issues. Ewing v. Wm. L. Foley, 115 Tex. 222, 280 S.W. 499, 44 A.L.R. 627; Miller v. Miller, Tex.Civ.App., 292 S.W. 917, error ref.”

In the next point appellant asserts error of the court in refusing to submit an issue as to whether the sack of feed in question had any visible defects at the time it was sold by Roy Philpot to W. A. Reeder and if W. A. Reeder had an opportunity equal to that of Roy Philpot to examine the sack of feed.

We believe the first requested issue is evidentiary but even if both issues were proper inquiries for this type case, they are issues upon which appellants depended for their affirmative defenses and there is not any affirmative pleading to support them in either of appellants’ pleadings upon which they went to trial. Rule 279, Vernon’s Ann.Texas Rules provides:

“ * * * a party shall not be entitled to an affirmative submission of any issue in his behalf where such issue is raised only by a general denial and not by an affirmative written pleading on his part.”
The point is overruled.

The last point asserts reversible error of the court in refusing to allow appellants “to ask appellee and require him to answer whether he had rendered the horse in question for ad valorem taxation.” The record as we read it shows counsel asked appellee: “And will you state to us what you assessed that valuable personal property for for taxation — ” “Well, we’ll just ask this. In 1961 and 1962, what did you assess the value of these two valuable horses for?”

He was asked not only about General Champ but also about another horse named Ramo for whom appellee testified he turned down $12,000.

“Q. Turned down $12,000 for Ramo?
A. Yes.”

In the first place the inquiry of the value of another horse was not material in this record. Secondly, appellee testified he had not personally rendered his horses for taxation.

As to real estate the San Antonio Court of Civil Appeals has held that even if the value of the land was fixed by the owner, when it was assessed for taxation, it would form no criterion for its value in a condemnation proceeding. Crystal City & U. R. Co. v. Isbell, Tex.Civ.App., 126 S.W. 47 (N.W.H.). In any event, it was shown here that appellee had not personally rendered the horse in question for taxes so the record could not show an admission against interest. In Boyer & Lucas v. St. Louis, S. F. & T. Ry. Co., 97 Tex. 107, 76 S.W. 441, our Supreme Court said:

“ * * * the only effect the rendition can have * * * is as evidence of an admission, and their weight as such may depend upon proof of what the party to be affected by it said and did.”

Appellee having not rendered the horse for ad valorem taxation at all, there was not anything to prove in that connection against interest.

Accordingly, the judgment of the trial court is in all things affirmed.

      .Insurance Counsel Journal, July 1964, page 441 (issued quarterly by International Association of Insurance Counsel).

      . 10 M. & W. 109, 11 L.J.Ex. 415 (an old English case in 1842).

      . 32 N.J. 358, 161 A.2d 69, 75 A.L.R.2d 1.

      . Insurance Counsel Journal, July 1964, (Current Problems and Products Liability Law and Products Liability Insur-anee) page 441, third paragraph, right-hand column.


text:
    Geoffrey E. STAHL, Appellant, v. Paul D. YARBOROUGH et ux., Appellees.
    No. 7449.
    Court of Civil Appeals of Texas. Amarillo.
    May 3, 1965.
    Rehearing Denied May 31, 1965.

      Simpson, Adkins, Fullingim & Hankins, Amarillo, for appellant.
    Clayton, Kolander, Moser & Templeton, Amarillo, for appellees.
   CHAPMAN, Justice.

This opinion is announced in lieu of our opinion announced on March 15, 1965.

The subject matter of this suit constitutes a controversy between two package store liquor and beer operators. Appellant, Geoffrey E. Stahl, shown in the record to be an attorney, prepared the instrument giving rise to the legal confusions apparent in the record. In transferring a liquor and beer package store to Paul D. Yar-borough, he prepared what he designated as “Bill of Sale and Promissory Note” in one instrument showing he received $3,171.24 cash and providing, “and for and consideration of the additional sum of $3,000.00, plus interest at the rate of six per cent per an-num, to be paid by Paul D. Yarborough. ⅜ ⅜ * Stahl then signed the instrument and had it witnessed.

Appellee Yarborough’s signature is not on the instrument anywhere and the record is without contradiction that he never signed a note of any nature haying to do with the purchase of the package store. However, he did sign a chattel mortgage in which he promised to pay $3,000.00 with interest thereon at the time and in the manner specified in said “Promissory Note.” He also signed a lease contract between the parties whereby Stahl subleased to Yarborough the premises housing the alcoholic beverages.

Though these instruments constitute no more than a non-negotiable contract between the parties, the suit was tried as if upon a promissory note. However, Yar-borough did not plead nor prove lack of execution, consideration, payment, nor any other of the defensive matters in bar of the remaining indebtedness owed for the purchases made in the transaction. In fact, he admitted payments on them without protest up to the time Stahl sought to take the business over for lack of tender of a monthly payment. Yarborough himself introduced all the instruments into evidence upon the trial of the case.

Though the case was tried by the court upon the wrong theory, there appears to have been consent thereto by all parties.

No payments were made on the indebtedness after the December 1961 installment was paid. Demand and refusal to pay the balance of the indebtedness was properly pleaded by appellant. At the time of trial the record showed an indebtedness still due of $2,518.79. Appellant admitted by brief appellee is entitled to $1,242.10, for his conversion of the liquor. Therefore, the court should have rendered judgment for appellant for the difference in the two figures just named, which is $1,276.69.

There is a serious question of the sufficiency of the point raised but in view of the -liberal construction given briefs we have considered it.

Judgment of the trial court is reversed and remanded with instructions to the trial court to render judgment for appellant in accordance with this opinion.


author: CADENA, Justice. MURRAY, Chief Justice

text:
    TRUCK INSURANCE EXCHANGE, Appellant, v. H. H. SCHUENEMANN, Administrator, et al.
    No. 14337.
    Court of Civil Appeals of Texas. San Antonio.
    May 12, 1965.
    Rehearing Denied June 2, 1965.
    Kleberg, Mobley, Lockett & Weil, Corpus Christi, Fred V. Klingemann, Karnes City, for appellant.
    Roy D. Roberts, Jr., Kenedy, Reese D. Wade, Beeville, for appellees.
   CADENA, Justice.

This Court’s opinion of January 20, 1965, is withdrawn and the following substituted therefor:

This is an action by appellant, Truck Insurance Exchange, against appellees, H. H. Schuenemann, administrator of the estate of Rauel Roberto Diaz, deceased, Luis R. Martinez, and Ygnacio Martinez and wife, Ramona, for declaratory judgment to determine the obligations of appellant under a liability insurance policy issued by it to Rauel Roberto Diaz.

The controversy grew out of a collision on July 15, 1962, in Karnes County, involving a 1953 Ford driven by Rauel Diaz and an automobile driven by appellee Luis R. Martinez. As a result of the collision, Rauel Diaz was killed, as was Sixto Martinez, minor son of appellees Ygnacio and Ramona Martinez, and appellee Luis R. Martinez suffered bodily injury. Luis Martinez, Ygnacio Martinez and Ramona Martinez filed suit against appellee Schuene-mann, administrator of the estate of Rauel Diaz, who called on appellant to defend him and the estate against the claim. Appellant then filed this suit, seeking a declaration that it was not obligated to defend or indemnify the estate.

Appellant had issued to Rauel Diaz a liability insurance policy of the type sometimes known as a “Non-Owner Policy”; that is, the policy did not apply to any automobile owned by the insured.

The parties stipulated as follows: (1) The 1953 Ford being driven by Rauel Diaz at the time of the collision was purchased by Rauel’s father, Marcos Diaz, in 1957. The title certificate issued at that time shows the father Marcos Diaz, as owner. (2) In May, 1959, Marcos Diaz and his wife, Aurelia, gave the custody and control of the car to their son, Rauel, as a graduation present, intending “at that time that the said Rauel Diaz would immediately have the title to said automobile.” (3) Thereafter, Rauel Diaz had the custody, possession and control of the automobile at all times until July 15, 1962, the date of the collision and Rauel’s death. (4) The title certificate to the vehicle was never transferred to Rauel, and no application for a new title in the name of Rauel Diaz was ever made by anyone, so that the provisions of the Texas Certificate of Title Act, Art. 1436 — 1, Vernon’s Ann. Penal Code, were never complied with in connection with the transfer of the vehicle.

Both parents of Rauel Diaz testified that, after May, 1959, they would ask their son’s permission whenever they wanted to use the automobile, and that after his graduation Rauel paid all expenses incident to the operation, maintenance and repair of the automobile.

The parties further are in agreement that if the 1953 Ford was owned by Rauel Diaz at the time of the collision, appellant has no obligations under the policy, but that appellant has an obligation to defend and indemnify if, on the date of the collision, the automobile was not owned by Rauel.

The trial court held that, because of the failure to comply with the Certificate of Title Act, the attempted gift of the automobile to Rauel Diaz by his parents was void, so that Rauel never was the owner of the vehicle. Judgment was accordingly entered declaring that appellant is under obligation to defend and indemnify the estate of Rauel Diaz.

It is apparent from the stipulations and the evidence that Mr. and Mrs. Marcos Diaz, intending to make a present gift of the automobile to their son, turned its possession and control over to him in May of 1959, and that thereafter, until July 15, 1962, the date of the collision, Rauel Diaz at all times had the exclusive and complete control of the vehicle. All requirements for a valid present gift of a chattel were satisfied, and there would be no question as to the validity and effectiveness of the gift if its subject matter had been a chattel other than a motor vehicle. Therefore, the only question to be decided concerns the effect of the failure to comply with the provisions of the Certificate of Title Act, Art. 1436 — 1, supra.

Sec. 33 of the Certificate of Title Act provides that no motor vehicle shall be disposed of at subsequent sale unless the owner designated in the certificate of title shall transfer the certificate before a Notary Public on a prescribed form, which form shall include an affidavit that the signer is the owner of the vehicle and that the vehicle is free of liens except as shown on the certificate of title. This section expressly recites that “no title to any motor vehicle shall pass or vest until such transfer be so executed.”

Sec. 51 makes it unlawful for any person to sell a motor vehicle without having in his possession the proper certificate of title covering such vehicle.

Sec. 52 makes it unlawful to acquire any title other than a lien in a motor vehicle without demanding of the proposed seller the registration receipt and certificate of title covering such vehicle, which shall, upon consummation of the purchase, be transferred upon such form as may be prescribed by the State Highway Department.

Sec. S3 provides that all sales “made in violation of this Act shall be void and no title shall pass until the provisions of this Act have been complied with.”

In Elder Chevrolet Co. v. Bailey County Motor Co., Tex.Civ.App., 151 S.W.2d 938, no wr. hist., the El Paso Court, relying in part on 7 Blashfield, Cyclopedia of Automobile Law and Practice (Perm.Ed., 1950), §§ 4261, 4262, in support of its statement that “[t]he weight of authority in other states having laws basically the same as our Certificate of Title Act, is that a sale not conforming to the law is void and does not pass title,” concluded that “[t]o hold that title did pass would be in the face of a statutory provision that is too plain to require construction.”

However, it is clear that subsequent decisions in this State establish the rule that failure to comply with the statutory requirements relating to the transfer of a motor vehicle does not render the transfer void as between the parties. In Pioneer Mutual Compensation Co. v. Diaz, 178 S.W.2d 121, aff. 142 Tex. 184, 177 S.W.2d 202, Diaz purchased a truck for cash but, for reasons of his own, had the vehicle registered in the name of his employee, Garcia. He purchased a liability insurance policy in which it was recited that he was the owner of the vehicle. After the truck had been involved in an accident, the insurer denied liability on the ground that the insured, Diaz, was not the owner, since the certificate of title listed Garcia as owner. The El Paso Court held that Diaz was the owner and that the insurer was liable on the policy. The following portions of the opinion are pertinent:

“The Certificate of Title Act * * * declares the legislative purpose and intent, Sec. 1, to be to lessen and prevent theft, the importation and traffic in stolen motor vehicles, and to enforce a disclosure of all liens and encumbrances. The act does not prohibit the registration of a motor vehicle in the name of one other than the true owner, nor render the title invalid or prohibit the passing of title in such event. It merely provides, after the first sale the title shall pass and vest only by a transfer of the certificate of title, Sec. 33, by the owner designated in the certificate of title. ‘Owner designated,’ indicates an owner may be different from the true owner.”

In affirming, the Commission of Appeals, in an opinion adopted by the Supreme Court, said, “We have concluded that the Court of Civil Appeals correctly decided each question presented, * * Pioneer Mutual Compensation Co. v. Diaz, 142 Tex. 184, 177 S.W.2d 202, 203. In answer to the contention by the insurer that the trial court had erred in instructing the jury that the term “owner,” as used in the charge, “includes any person claiming title to or having the right to operate pursuant to a lien on, a motor vehicle after the first sale as herein defined,” Judge Hickman said:

“But it is claimed that the Court erred in overruling the exceptions timely filed by petitioner to that definition. The exceptions are long * * *, but the effect thereof was to complain of the definition because, under the Certificate of Title Act * * * a certificate of title is the primary and controlling evidence of title and ownership. In effect, the objection was * * * that under the above statute Diaz could not be the owner, because the truck was registered in the name of Garcia. We approve the holding of the Court of Civil Appeals that the statute should not be given that construction. The registration in Garcia’s name raised the presumption of ownership. Such presumption, however, is not evidence, but is ‘an administrative presumption’ which vanishes when positive evidence to the contrary is introduced.” 177 S.W.2d at p. 204.

In Rush v. Smitherman, 294 S.W.2d 873, wr. ref., the Court rejected the theory that there could be no transfer of title to a motor vehicle without compliance with the provisions of the statute. After stating that the purpose of the Act was to prevent theft of motor vehicles, the importation into this State of, and traffic in, stolen motor vehicles, and the sale of encumbered motor vehicles without the enforced disclosure to the purchaser of any and all liens, Judge Pope said:

“Adhering to the declared purposes announced by Section 1 of the law itself, and even in the face of the express statement of Sections 33 and S3, that all sales without the transfer of the certificate shall be void, many cases have recognized the validity of sales between the parties, though no transfer was made. * * * So, despite the failure to transfer the certificate and the Act’s declaration that the non-transfer will render the sale void, as between the parties and when the purposes of the Act are not defeated, the sale is valid.” 294 S.W.2d at p. 877.

Appellees rely strongly on Hoskins v. Carpenter, Tex.Civ.App., 201 S.W.2d 606, wr. ref., n. r. e. In that case Mrs. Hoardley delivered the title certificate and the keys to the motor vehicle to Betty Hoskins, but the assignment part of the certificate was not sworn to as required by Sec. 33. The El Paso Court, in holding that title did not pass, said:

“The attempted transfer of this automobile was a ‘subsequent sale’ of the automobile in question, within the meaning of Section 8, Certificate of Title Act, * ⅜ ⅞. Section 33 of the (Certificate of Title Act) * ⅜ * provides in substance that no title passes unless the certificate is transferred before a Notary Public. This transfer was not before a Notary Public, hence it is thought elementary that title to the automobile did not pass.” 201 S.W.2d at p. 608.

However, the above language was unnecessary to the disposition of the case. The jury found that at the time Mrs. Hoardley delivered the keys and certificate of title she did not intend to vest title in the car to the transferee. In the absence of the required donative intent, the transaction could not amount to a gift.

The rule that failure to comply with the requirements of the Act does not prevent passage of title as between the parties has been applied to cases involving gifts. In Wise v. Cain, Tex.Civ.App., 212 S.W.2d 880, wr. ref., n. r. e., Wise told Mrs. Cain that he was making a gift of the car to her. There was a transfer of the certificate of title, but Wise did not appear before a Notary Public as required by Sec. 33 of the Act. Despite the express language of Sec. 33 that no title shall pass unless the required transfer is executed before a Notary Public, the Austin Court held that there was an executed and effective gift of the vehicle by Wise to Mrs. Cain.

In Bishop v. Bishop, 359 S.W.2d 869 (Tex.1962), the dispute involved ownership of a Cadillac as between the parties to a divorce action. The statement of the evidence by the Supreme Court shows that when the car was purchased the husband told the wife, “I am giving you the car. I want you to have this Cadillac. I am keeping it in my name because I am making the payments on it, and it should be in my name for this reason.” (Emphasis added). Although the evidence thus clearly showed that there was no transfer of the certificate of title, which showed the husband as owner, the Supreme Court held that the evidence showed a completed gift of the car to the wife.

This case does not involve a dispute between rival claimants of an interest in the automobile in question. Under such circumstances, the administrative presumption of ownership arising from the recitals in the certificate of title may be overcome by evidence showing that ownership of the vehicle was, in fact, in Rauel Diaz, the insured. The evidence and stipulations establish that, in fact, Rauel Diaz was the owner of the 1953 Ford. Since all parties concede that in such event the appellant insurer is under no obligation to defend or indemnify the estate of the insured, it follows that the trial court erred in holding that there was coverage under the “non-owner” policy.

Accordingly, appellant’s motion for rehearing is granted. The judgment of the trial court is reversed and judgment here rendered that appellant, Truck Insurance Exchange, is under no obligation to defend or indemnify appellee H. H. Schuenemann, administrator of the estate of Rauel Roberto Diaz, deceased, or the estate of such decedent, against the claims filed by appellees Luis R. Martinez, Ygnacio Martinez and Ramona Martinez.

MURRAY, Chief Justice

(concurring).

I concur in the result arrived at by the ■majority upon appellant’s motion for a re-Tiearing. While I believe that it was the ■intention of the Legislature to render parol gifts of motor vehicles void, or at least voidable, Art. 1436-1, §§ 33, 44, 46, 51, 52 and 53, Vernon’s Ann.Penal Code, yet under certain conditions such a parol gift may in equity be declared valid, and the facts here show this parol gift to be an exception to the general rule. No one with a justiciable interest in this gift is endeavoring to set it aside. Furthermore, Rauel Roberto Diaz, deceased, was in open, exclusive, adverse possession of this automobile under a parol gift for more than two years before his death and thus established a title by limitation. Art. 5526, §§ 2 and 3, Vernon’s Ann.Civ.Stats.

The decisions dealing with parol gifts of land should be helpful here. Statutes requiring that the transfer of title to land must be in writing, acknowledged, etc., Art. 1288 and Art. 3995, § 4 Vernon’s Ann.Civ. Stats., do not use language nearly as strong as that used in the Certificate of Title Act relating to motor vehicles, yet the Courts hold that a parol gift of land is void with the exception that when a present gift is shown and possession taken and held under that gift by the donee, with the consent of the donor, and permanent and valuable improvements made upon the land by the donee in reliance on such gift, with the consent or knowledge of the donor, such parol gift is valid. Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 15 A.L.R. 216; Davis v. Douglas, Com.App., 15 S.W.2d 232; Harper v. Harper, Tex.Civ.App., 274 S.W.2d 930; Henderson v. Henderson, Tex.Civ.App., 236 S.W.2d 154. Of course, if the donee has been in possession of the land for a sufficient length of time and under such circumstances as to establish title by limitation, the donee would have title independent of the parol gift.

I believe the parol gift of the automobile herein was effective due to the circumstances above pointed out, but I believe the general rule to be that parol gifts of automobiles made in violation of the Certificate of Title Act, Art. 1436-1, supra, are at least voidable. The language of the Certificate of Title Act is too plain to permit any other construction.

In my opinion the Supreme Court has not yet said that the title to motor vehicles can be passed by parol gift, the same as any other chattel, and in total disregard of the Certificate of Title Act, Art. 1436-1, supra.