author: WALTER, Justice.

text:
    M. J. BRANNON, Jr., et al., Appellants, v. GULF STATES ENERGY CORPORATION et al., Appellees.
    No. 4982.
    Court of Civil Appeals of Texas, Eastland.
    March 10, 1977.
    Rehearing Denied March 31, 1977.

      W. Scott Clark and Daniel M. Tartaglia, Port Worth, for appellants.
    Levie Old, Brownwood, John E. Rapier, Dallas, for appellees.
   WALTER, Justice.

M. J. Brannon, Jr., and Otis Thompson filed suit against Clara Odessa Martin and Gulf States Energy Corporation seeking to have an oil and gas lease dated November 20, 1973 from Clara Odessa Martin to Mary Linn Elliott, under which plaintiffs are claiming, to be in full force and effect. Patricia A. Elliott and Henry W. Elliott III intervened asserting a ⅛6 overriding royalty under the lease. From a take nothing judgment, the plaintiffs and intervenors have appealed.

Clara Odessa Martin executed an oil and gas lease on 202 acres of land located in Coleman County to Mary Linn Elliott on November 20, 1973. Mrs. Elliott assigned this lease to Master Drillers, Inc. and retained a ¼6 overriding royalty interest which she assigned to intervenors.

The delay rental was not timely paid on the Martin-Elliott lease. Royal Russell, President of Gulf States, mailed Mrs. Martin a letter dated January 17, 1975 stating he was enclosing a check dated January 17, 1975 in the amount of $202.00 for “lease rental” on the lease of her 202 acres of land. On the face of the check were the words “lease rental.” On July 9, 1975, Mrs. Martin executed a lease on the same 202 acres to Gulf States.

The basic issue between the parties is whether the $202.00 payment from Gulf States is payment for the delay rental on the Martin-Elliott lease or payment of the bonus for the Martin-Gulf States lease.

The jury answered the issues as follows: (1) the Gulf States’ check dated January 17, 1975 payable to Mrs. Martin was not paid by Gulf States as delay rental on the Martin-Elliott lease; (2) not answered; (3) Gulf States paid $202.00 as consideration for the Martin-Gulf States leaáe; (4) Mrs. Martin accepted payment as consideration for the Martin-Gulf States lease; (5) Gulf States drilled and made improvements on the 202 acres believing, in good faith, it had a valid right to drill; and (6) the value of the improvements made by Gulf States on the 202 acres was $200,000.

Appellants contend the evidence establishes conclusively the payment by Gulf States of $202.00 on January 17, 1975 was payment for the rental on the November 20, 1973 Martin-Elliott lease.

Mrs. Clara Odessa Martin testified substantially as follows:

I am a widow and I am 76 years old. I reside on Route # 1, Talpa in Coleman County. I understand there is a controversy about who owns the oil and gas lease on 202 acres of my land here in Coleman County. I leased this land to Mary Linn Elliott on November 20, 1973. I did not receive the delay rental provided for in the lease on or before November 20, 1974. I wrote Mrs. Elliott and informed her I did not receive the delay rental and asked her about my abstracts. Thereafter, I received a check from Gulf States for $202.00, “but it wasn’t rental. It wasn’t what I call rental.” It was for a new lease. Mr. Mabry, Gulf States’ geologist, came to see me a few days before Christmas and we came to an agreement on a lease. I was ready to go on a Christmas trip and I asked him if we could wait until after Christmas “to write this up.” “So we made our agreement at that time.” The bonus for the lease was $202.00 and the drilling of the well. I wasn’t looking for a lot of money. I wanted a well drilled. My mother and father had leased the place years ago, but there had never been a well drilled on the place. On July 9, 1975, I executed the lease to Gulf States.
I know the plaintiff Otis Thompson and he never did talk to me about a tax sale. I never had a conversation with Mr. Thompson wherein I told him the rentals were paid late on the Elliott lease, the first lease. I never discussed that with Mr. Thompson and the second time he came out, he told me he was interested in my property and I told him it was already leased and he didn’t say anything about rentals. I received a letter on or about January 17, 1975 from Royal Russell of Gulf States and a check from him for $202.00 and this was the amount of money we agreed on for the new lease, because this other lease terminated a year after I first leased.
Three gentlemen came to my home on July 29,1975 and one of them wrote out a statement and I signed it. The statement is as follows:
“Coleman, Texas
July 29, 1975
I, Clara Odessa Martin, remember writing Mary Lynn Elliott about last November and telling her I had not received the rentals on my lease to her dated Nov. 20, 1973 covering 202 acres of my land.
She wrote back that they would be paid, and they were paid a few days later. They were late, but I accepted the payment and deposited the money in the Coleman Bank.
I later told Mr. Otis Thompson that I had been paid and the lease of Nov. 73 was still valid.
s/ Clara Odessa Martin”
I was nervous when I made this statement because they suggested to me that if I didn’t I would be subpoenaed. When he said something about a subpoena, it scared me to death.
On or about the 9th day of July, 1975,1 made an affidavit as follows:
“I, CLARA ODESSA MARTIN, Lessor of that certain Oil, Gas and Mineral Lease, dated and executed November 20, 1973, between CLARA ODESSA MARTIN, a widow, Lessor and MARY LINN ELLIOTT, Lessee covering the following lands, to-wit:
Tract 1: The NE/4 of Section 62, C. D. Cleveland Survey, Abstract 1156 and containing 161.5 acres, more or less and;
Tract 2: The south fourty and one-half (40 1/2) acres, of the SW/4 of Section 27, G. H. and H. R. R. Survey, Block 1, all of which are located in Coleman County, Texas;
State that pursuant to the terms and conditions of said Lease, no delay rentals were paid to me on or before November 20, 1974, nor were operations begun by said Lessee for the drilling or mining on said lands on or before November 20, 1974, nor were said lands pooled as set out in said Lease on or before November 20, 1974.
s/ Clara Odessa Martin CLARA ODESSA MARTIN”
This affidavit has been recorded in the deed records of Coleman County.

The testimony of Mrs. Martin and other facts and circumstances in evidence constituted some evidence of probative force and support the jury’s answers to Special Issues # 1. Martinez v. Delta Brands, 515 S.W.2d 263 (Tex.1974).

Appellants’ point the Court erred in granting appellees’ motion in limine is without merit. It is the subsequent exclusion of the testimony which may or may not constitute a reversible error. In Biard Oil Company v. St. Louis Southwestern Railway Company, 522 S.W.2d 588 (Tex.Civ.App.—Tyler 1975, no writ), the court said:

“It is never error for a trial court to overrule a motion in limine which seeks to preclude the introduction of evidence. The party opposing the admission of certain evidence still has the burden of interposing a specific objection at the time the evidence is tendered and appeal from its admission over his objection . . . ”

Appellants contend the court erred in sustaining appellees’ objection to questions asked Royal Russell about the identity of investors who put up the money for drilling wells on the Martin property, the amount of their investment and the interest granted to them for their investment. They also contend this testimony was relevant to the issue of whether or not the drilling of the three wells was reasonable and prudent.

Rule 418, T.R.C.P., provides in part:

“ . . . If complaint is made of the improper admission or rejection of evidence, the full substance of such evidence so admitted or rejected shall be set out with reference to the pages of the record where the same may be found . . ”

This provision of the rule has not been complied with by appellants. Appellants have cited no authorities in support of this point. Points that are not briefed are waived. St. Paul Mercury Insurance Company v. Sugarland Industries, Inc., 406 S.W.2d 778 (Tex.Civ.App.—Eastland 1966, writ ref. n. r. e.).

We find no merit in appellants’ contention the court erred in overruling their motion for summary judgment. In Morrow-Thomas, Inc. v. Harris, 466 S.W.2d 323 (Tex.Civ.App.—Eastland 1971, no writ), we held:

“Appellant’s first and second points, that the trial court erred in overruling its motion for summary judgment are overruled. This is an appeal from a ‘take nothing’ judgment tried on its merits by a jury. Whether the trial court did err in overruling appellant’s motion for summary judgment before the case was tried on the merits is not a matter for consideration on appeal. Dyche v. Simmons, 264 S.W.2d 208 (Tex.Civ.App., writ ref., n. r. e.); Stewart v. Lomax, 395 S.W.2d 82 (Tex.Civ.App., writ ref., n. r. e.).”

Appellants contend the court erred in admitting the testimony of Royal Russell of Gulf States to the effect the $202.00 paid by Gulf States to Mrs. Martin was bonus for a new lease because such testimony violates the parol evidence rule.

Appellants have not complied with the provision of Rule 418, T.R.C.P., in that they have made no reference to the pages of the record where the evidence may be found.

Mr. Russell testified substantially as follows:

During December of 1974, I was acquainted with August Powe. He is a rancher and farmer at Valera and lives at Mrs. Martin’s place. During that time, I had a conversation with Mr. Powe about the Martin-Elliott lease. I told him that if he would talk to Mrs. Martin and get me a new lease, I would drill her a well and pay her $202.00. Mr. Powe was going to talk to Mrs. Martin, and my geologist, Frank Mabry, was going to talk to Mrs. Martin about the lease. If this arrangement was agreeable with her, I was going to send her the $202.00 and drill her a well. About January 17, I mailed Mrs. Martin a check for $202.00.

He was then asked the following question:

“Now Mr. Russell, tell the jury whether that $202.00 was consideration for the new lease with the agreement that you had or whether it was payment of the delay rentals on the lease which had expired, which was the original lease between Martin and Mary Elliott?”

Appellants made the following objection:

“Your Honor, I’ll object to that question. That question calls for an answer on the part of the witness that’s parol evidence. The best evidence of what that payment was for is in the written letter by Mr. Russell.”

The objection was overruled and Mr. Russell answered, “The $202.00 was for a new lease, and I agreed to drill her a well.”

Before Mr. Russell testified, the plaintiffs and intervenors called Mrs. Martin under the adverse party rule and she testified without objection that she received the $202.00 cheek from Gulf States and it was not a rental payment but was for a new lease. She testified the bonus for the new lease was $202.00 and the drilling of a new well. Mrs. Martin was shown Plaintiffs’ Exhibit 1, which is the letter from Gulf States to Mrs. Martin of January 17, 1975, enclosing the $202.00 check and the check of $202.00. She testified she received these instruments and stated that $202.00 was the amount of money she agreed on for the new lease “because this other lease terminated a year after I had first leased.”

Appellants laid the predicate for the introduction of the check and letter by Mrs. Martin. Appellants introduced these exhibits in evidence and established by Mrs. Martin the $202.00 check was consideration for the new lease to Gulf States. When appel-lees offered the same evidence from Russell, the appellants contended it violated the parol evidence rule.

23 Tex.Jur.2d, Evidence § 376 is as follows:

“§ 376. In general.
The extrinsic evidence rule applies only to writings that actually evidence the contract or agreement of the parties. In other words, for the rule against admitting extrinsic evidence of the terms of written instruments to be applicable, the instrument must have been executed by the parties as a means of evidencing the creation, modification, termination, or securing of a particular right or obligation. Accordingly, the rule is inapplicable to accounts, letters written in the ordinary course of correspondence, memorandums, and other writings that were not written primarily with an intent to bind the parties or to evidence rights and obligations existing between them . . . ”
“The parol evidence rule does not apply to writing which do not purport to be contractual agreements, such as letters, telegrams, book entries or accounts, and other miscellaneous writings of an informal nature constituting mere memoranda of the agreements themselves. Similarly, the parol evidence rule is not applicable to written instruments signed and delivered in the execution or carrying out of a contract . . ” 30 Am.Jur.2d, Evidence § 1024 (1967)

It is apparent the letter was written in the ordinary course of correspondence and was not written primarily with an intent to bind the parties or to evidence rights and obligations existing between them. This letter did not constitute a contract between the parties relating to the Martin-Elliott lease or the Martin-Gulf States lease, therefore, the extrinsic evidence rule is not applicable. Appellants contend the letter constitutes a contract between Gulf States and Mrs. Martin and the parol evidence rule applies and Mr. Russell cannot testify the $202.00 check was consideration for the new lease.

If this be true, appellants are strangers and cannot invoke the parol evidence rule. See Vander Stucken v. Willoughby, 242 S.W. 478 (Tex.Civ.App.—Austin 1922, no writ).

We have considered the entire record and hold the findings of the jury to issues one and three are not against the weight and the preponderance of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Appellants discuss their estoppel contentions under their sixth point of error which is as follows:

“APPELLANTS’ SIXTH POINT OF ERROR (RESTATED)
The trial court erred in overruling Appellants’ motion for summary judgment, motion for instructed verdict, and motion for new trial wherein it was asserted Gulf States Energy Corporation was estopped from testifying that the $202.00 check forwarded to Clara Odessa Martin on January 17, 1975, was bonus for a new lease, inasmuch as the letter and the check labeled it Tease rentals’, and President Royal Russell of Gulf States Energy Corporation sent a copy of the letter to Mary Linn Elliott, owner of the overriding royalty, who relied on such representations to her detriment. Estoppel is buttressed by Gulf States’ failure to record its alleged oral lease for six months, during a period when (1) production offset the subject tract and (2) the leasehold on the subject tract was advertised for public sale and Gulf States bid on the leasehold along with these Appellants. Further, Co-Defendant Martin is estopped from attacking validity of Appellants’ lease by her acceptance and deposit of the late rental check and by her representation to Otis Thompson that she had accepted late rentals and the 1973 lease is valid.”

In Hudspeth v. Hudspeth, 206 S.W.2d 863 (Tex.Civ.App.—Amarillo 1947, no writ), the court said:

“A point or assignment of error is multifarious when it embraces more than one specific ground of error or when it attempts to attack several distinct and alleged errors or rulings of the trial court. When it fails to point out definitely some alleged specific error or ruling of the court or fails to present some concrete question raised in the case it is too general and too indefinite to be considered provided it does not present fundamental error . . . ”

We consider this point broad, general and multifarious.

Appellants objected to the charge by first asserting issues numbers 3 and 4 were inferential rebuttal issues and not necessary. Appellants stated they were suggesting a different issue for issue number 5. The court said, “All right. Let the record show that no requested issues have been submitted to the Court at this point.” They also dictated some requested issues which they contend supported their contentions of estoppel.

In Garza v. San Antonio Light, 531 S.W.2d 926 (Tex.Civ.App.—Corpus Christi 1975, writ ref. n. r. e.), the court said:

“Appellants contend in their second point that it was error for the trial court to refuse to define the term ‘public hatred’. The request and the suggested form of the definition was made by the appellants as they dictated their objections to the charge to the court reporter. In their third point the appellants contend that it was error to refuse to submit a requested special issue. That request and the suggested form of the special issue were also made as the appellants dictated their objections to the court’s charge. These points must be overruled.
The objections to the court’s charge and the submission of the definition and special issues were made together. The failure to submit definitions or special issues may not be considered as error by an appellate court unless they have been requested separate and apart from the objections made to the court’s charge. Vega v. Royal Crown Bottling Company, 526 S.W.2d 729, 734 (Tex.Civ.App.—Corpus Christi 1975, no writ); Samford v. Duff, 483 S.W.2d 517, 527 (Tex.Civ.App.—Corpus Christi 1972, writ ref’d n. r. e.); Rule 273, T.R.C.P. Appellants’ second and third points are overruled.” (Emphasis added)

Appellants requested issues on es-toppel cannot be considered because they were not properly presented to the trial court as provided for by Rule 273, T.R.C.P. Appellants did not secure a finding on their defense of estoppel and the record does not establish estoppel as a matter of law. The contention they are entitled to recover on their affirmative defense of estoppel cannot be sustained.

We have considered all of appellants’ points and find no merit in them. They are overruled.

The judgment is affirmed.


source: Caselaw Access Project

author: JAMES, Justice.

license: Public Domain

text:
    Robert L. SMALLWOOD, Appellant, v. Dora SMALLWOOD, Appellee.
    No. 5701.
    Court of Civil Appeals of Texas, Waco.
    March 10, 1977.
    Michael J. Rogers, Cleburne, for appellant.
    Hugh B. Higgins, Cleburne, for appellee.
   OPINION

JAMES, Justice.

This is a divorce case. The Appellant husband appeals from the trial court’s division of the community property in the divorce judgment, asserting the trial court abused its discretion therein. We overrule this contention and thereby affirm.

At the time of the divorce judgment Mr. Smallwood was 39 years of age, Mrs. Small-wood was 37 years of age, and the parties had been married twenty years. The parties had two children born to the marriage, to wit, a daughter eighteen years old and a son fifteen years old, both of whom lived in the home with Mrs. Smallwood. The husband had been for seventeen years employed by Gerhart-Owens Co., a large company; and at the time of the divorce he was earning $1200.00 per month. The wife was an unskilled laborer and was employed outside the home earning about $225.00 per month.

The parties had accumulated as community property a home place, consisting of a house and lot in Burleson, Texas, worth about $23,000.00 with a $7500.00 debt against it, household furniture and fixtures, a pickup truck, a retirement fund, cash surrender value of certain life insurance policies, two bank accounts, and other miscellaneous items of personal property.

The trial court sitting without a jury, after hearing, granted the parties a divorce, appointed the mother managing conservator of the fifteen year old boy, allowed reasonable visitations of the child to the father, and ordered the. father to pay $150.00 per month child support. All of these things were substantially agreed to by and between the parties.

Then the division of the community property ordered by the trial court is as follows:

(1) To Mrs. Smallwood he awarded the house and lot and household furniture (except certain items awarded to Mr. Small-wood) subject to any indebtedness charged against said property.

(2) Mr. Smallwood was awarded a dining room suite and dresser, a light fixture and stove lamp, a rifle and shotgun, stereo, a motorcycle, a pickup truck, ham radio equipment, bank accounts of the value of $598.87, a retirement fund worth $420.00, cash surrender values of life insurance policies worth $2000.00, certain power tools, and other miscellaneous items of personal property.

Appellant Mr. Smallwood asserts the trial court abused its discretion in making the above division and disposition of the community property, because he says there is a gross disparity between the value of Mrs. Smallwood’s share as compared with his share. We overrule this contention.

Article 3.63 of the Texas Family Code provides in pertinent part:

“In a decree of divorce . . the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.”

It is well settled that the trial court has broad discretion in determining the disposition of property in divorce actions, and this discretion will not be disturbed unless an abuse of discretion is shown. That is to say, the trial court’s action should be disturbed on appeal only when an abuse of discretion is shown in that the disposition made is manifestly unjust and unfair. Hedtke v. Hedtke (Tex.1923) 112 Tex. 404, 248 S.W. 21; Carle v. Carle (Tex.1950) 149 Tex. 469, 234 S.W.2d 1002; Bell v. Bell (Tex.1974) 513 S.W.2d 20; McKnight v. McKnight (Tex.1976) 543 S.W.2d 863; Fortenberry v. Fortenberry (Waco CA 1976) 545 S.W.2d 40, 42, no writ.

There is no requirement under the above-stated rules that the trial court divide the property equally between the parties. Hedtke v. Hedtke, supra. On the contrary, the trial court is required to view the case in its entirety in making a division that is just and right between the parties.

Here, we have a case where a home was needed to be maintained for the children by the mother, coupled with a great disparity in earning capacity between the mother and the father. Considering the record as a whole, we cannot say the trial court abused its discretion, so that the division made is manifestly unjust and unfair.

Judgment of the trial court is accordingly affirmed.

AFFIRMED.


author: McDONALD, Chief Justice.

text:
    Jimmy RODGERS, Appellant, v. TEXAS DEPARTMENT OF PUBLIC WELFARE, Appellee.
    No. 5705.
    Court of Civil Appeals of Texas, Waco.
    March 10, 1977.
    Robert A. Carter, Fort Worth, for appellant.
    Dan M. Boulware and John R. MacLean, Cleburne, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by Jimmy Rodgers from judgment raising child support Rodgers was required to pay, from $50. to $113. per month.

Appellee Texas Department of Public Welfare filed this cause against appellant Rodgers alleging it was managing conservator of Carla Rodgers; that said child was being maintained in a foster home; that costs of keep for the child had increased; and that it would be for the best interest of the child to raise the child support appellant father of the child was required to pay from $50. to $125. per month.

Trial before the court resulted in judgment raising child support appellant was required to pay from $50. to $113. per month.

Appellant appeals on 2 points asserting the trial court abused its discretion in ordering the increase of child support because the evidence is legally or factually insufficient to support a finding of changed conditions since entry of the original support order.

On April 12, 1976 the court appointed appellee managing conservator of the minor child involved herein, and ordered the father, appellant, to pay $50. per month child support. On November 10, 1976 the trial court entered the order here appealed from raising such support payment to $113. per month.

The record reflects the cost of keeping the child in a foster home was $93. per month, and that the child needed money to spend for various items for her care and upkeep. The record further reflects the original order of $50. per month child support was based on appellants having a monthly income of $670.85; that at the time of hearing appellant’s wife had a net monthly income of $606., and appellant had a net monthly income of $580.24; that the appellant’s net monthly family income is $1,186.80 instead of $670.85 as was believed when the court entered the original support order of $50. per month.

Section 14.08(c)(2) provides for modification of a child support order “if the circumstances of the child or a person affected by the order or portion of the decree to be modified have materially and substantially changed since the entry of the order or decree.”

The trial court is given a broad discretion in fixing child support payments, and in decreasing and increasing such payments, and the court’s order will not be disturbed on appeal except on a showing of a clear abuse of discretion. Hewlett v. Hewlett, CCA (Waco) Er.Dism’d, 486 S.W.2d 107. (Cert. Den. U.S. Sup.Ct., 414 U.S. 877, 94 S.Ct. 48, 38 L.Ed.2d 122).

The evidence is legally and factually sufficient to support a finding of changed conditions, and the trial court has not abused its discretion.

Appellant’s points are overruled.

AFFIRMED.


author: RALEIGH BROWN, Justice.

text:
    BAEN-BEC, INC., Appellant, v. Tom TENHOOPEN, Appellee.
    No. 4996.
    Court of Civil Appeals of Texas, Eastland.
    March 10, 1977.
    James B. Morgan, Handy & Morgan, Hurst, for appellant.
    Jefferson K. Brim, III, Carter & Brim, Commerce, for appellee.
   RALEIGH BROWN, Justice.

This appeal questions the validity of a default judgment taken on an unliquidated claim without the evidence being reported.

Tom Tenhoopen sued Baen-Bec, Inc. and Elbert E. Long to recover damages as a result of “reckless, willful and malicious conduct” for having Tenhoopen arrested in connection with the theft of certain monies and records belonging to Baen-Bec. Long was never served and was dismissed from the suit. Baen-Bec failed to file an answer and a default judgment awarding $10,000 damages was entered against it. Baen-Bec’s timely filed motions to set aside the default judgment and for new trial were overruled. Baen-Bec appeals. We reverse and remand.

Appellant argues the trial court erred in granting a default judgment on an unliqui-dated claim for damages without a record of the testimony being made. It contends that the testimony on which the judgment was based was not recorded and, consequently, no statement of facts is available for review of the sufficiency of the evidence. We disagree with appellant’s contention.

The reporter certified that she was unable to comply with appellant’s request for a statement of facts because she was not present when the evidence was given and no other reporter recorded the testimony. Appellee concedes the oral testimony was not transcribed and the record reflects that neither the appellee nor the court made a request of the court reporter to record the evidence offered. Appellant made no other attempt to get a statement of facts either by agreement with opposing counsel or from the trial judge.

Appellant urges as controlling Morgan Express, Inc. v. Elizabeth-Perkins, Inc., 525 S.W.2d 312 (Tex.Civ.App.—Dallas 1975, writ ref.) wherein it is stated:

“ . . .We conclude that an appellant who was not present and was not represented when the testimony was taken is in no position to agree with his opponent concerning the substance of the testimony, and neither should he be required to rely on the unaided memory of the trial judge, who, though presumably fair, has already decided the merits of the case against the appellant. Cf. Waller v. O’Rear, 472 S.W.2d 789, 792 (Tex.Civ.App.—Waco 1971, writ ref’d n. r. e.). If the court has an official reporter, Tex. Rev.Civ.Stat.Ann. art. 2324 (Vernon 1971) imposes a mandatory duty on him to ‘(a)ttend all sessions of the court,’ and to ‘take full shorthand notes of all oral testimony offered.’ The trial judge has the responsibility to see that this duty is performed. Ex parte Thompson, 520 S.W.2d 955 (Tex.Civ.App.—Dallas 1975, no writ). If the reporter’s failure to perform this mandatory duty deprives a party of this right to an adequate review, the case should be remanded for a new trial.”

Subsequent to Morgan Express, the Legislature amended Article 2324 by adding the words “upon request.” If in fact, the article was mandatory rather than directory prior to the amendment, following the amendment, effective May 27, 1975, Article 2324 is no longer mandatory. See Taylor v. State, 489 S.W.2d 890 (Tex.Cr.App.1973).

The Supreme Court in Smith v. Smith, 544 S.W.2d 121 (Tex.1976) considering an appeal of a party who had filed responsive pleading but did not appear personally or by counsel at the hearing on the merits reaffirmed a previous holding of the court saying:

“ . . .In Robinson v. Robinson, 487 S.W.2d 713 (Tex.1972), we held that if an appealing party exercises due diligence and through no fault of his own is unable to obtain a proper record of the evidence introduced, this may require a new trial where his right to have the case reviewed on appeal can be preserved in no other way. See also Wallace v. Snyder National Bank, 527 S.W.2d 485 (Tex.Civ.App. 1975, writ ref’d n. r. e.); Fitz v. Toungate, 419 S.W.2d 708 (Tex.Civ.App. 1967, writ ref’d n. r. e.); Dugie v. Dugie, 511 S.W.2d 623 (Tex.Civ.App. 1974, no writ).”

Morgan Express resolved the issue of diligence necessary for a defaulting appellant to secure a new trial. It followed that line of cases which held that a party who was not present or represent at the trial is entitled to a reversal if he is unable to obtain a record from the official reporter as opposed to the line of cases which held that a defaulting defendant is not entitled to a reversal unless he shows that he is unable to obtain a statement of facts from the court reporter or as alternatively prescribed by Rule 377, T.R.C.P.

We conclude the holding of Morgan Express and the line of cases it followed are founded on the then mandatory Article 2324. Under the amended nonmandatory Article 2324, we hold an appellant must comply with Rule 377 as showing due diligence before he is entitled to a new trial. Smith v. Smith, supra.

Appellant has not discharged his burden to show no statement of facts was available to him. Therefore, he is unable to establish that no evidence was heard on an unliqui-dated claim. Rule 243, T.R.C.P. Also, this court may presume the testimony would support the default judgment. Dugie v. Dugie, 511 S.W.2d 623 (Tex.Civ.App.—San Antonio 1974, no writ).

Appellant urges the trial court erred in overruling its motion to set aside the default judgment and in failing to grant its motion for new trial. We agree. We are guided in making this determination by the rule reannounced in Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (1939):

“ . . .A default judgment should be set aside and a new trial ordered in any case in which the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; provided the motion for a new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff. This is a just rule. It prevents an injustice to the defendant without working an injustice on the plaintiff. Such a rule has the sanction of equity.”

See also Ivy v. Carrell, 407 S.W.2d 212 (Tex.1966).

Appellee concedes that appellant timely filed its motion to set aside the default judgment and motion for new trial and thus would not have caused significant delay or injustice to him. He argues, however, appellant has not demonstrated that it had a justifiable excuse for failing to answer or a meritorious defense.

Meritorious defense has been defined as one which if established upon another trial will produce a different result. Cragin v. Henderson County Oil Development Co., 280 S.W. 554 (Tex.Comm’n App.1926); Vela v. Sharp, 395 S.W.2d 66 (Tex.Civ.App.—San Antonio 1965, writ ref. n. r. e.); Smith v. Hillsboro State Bank, 253 S.W.2d 897 (Tex.Civ.App.—Galveston 1952, no writ). In Alexander v. Hagedorn, 226 S.W.2d 996 (Tex.1950), the court stated a meritorious defense is one that is asserted as a defense to the cause of action alleged to support the judgment.

Appellee’s cause of action is one for malicious prosecution. The court in Davis v. Teague, 256 S.W. 957 (Tex.Civ.App.—Beaumont 1923, writ dism’d) said:

“ . . . Facts that would create in the mind of a reasonably prudent man a belief in plaintiff’s guilt would constitute a defense against the charge of malicious prosecution . . ”

See also Moran Utilities Company v. Childs, 392 S.W.2d 536 (Tex.Civ.App.—Beaumont 1965, writ ref. n. r. e.).

Appellant alleged in its motion for new trial, supported by affidavits of its President, James O. Baenisch, and Supervisor, Elbert E. Long, that:

“1. Defendant was the employer of Plaintiff at the time of the incident in question and at said time had good reason to believe and did believe that probable cause existed to suspect the Plaintiff of wrongdoing in his capacity as manager of Defendant’s Commerce store due to:
A. Defendant’s change fund in the approximate amount of One Hundred and no/100 ($100.00) Dollars was and is currently unaccounted for.
B. Receipts, under exclusive control of Plaintiff although after requested, have not been furnished to Defendant by Plaintiff.
C. The sums of money, which sums were exclusively in Plaintiff’s possession, and are presently unaccounted for total approximately Two Thousand Eight Hundred Forty-Four and 59/100 ($2,844.59) Dollars.
D. Defendant nor any agent or servant of Defendant ever filed any criminal complaint against the Plaintiff.
E. Defendant, through it’s agent, did request assistance from the Justice of Peace, Precinct Two of Hunt County, Texas, and from Officer Sparks of the Commerce Police Department regarding the apparent shortages set forth above. Any action taken was at the instance of the Justice of Peace or said Police Department.
F. Plaintiff failed to follow company procedure relative to deposits resulting in checks drawn against said deposits being insufficient and Plaintiff, although requested, never offered any explanations regarding the departure from company procedure.”

We hold the pleadings meet the test of a meritorious defense.

As stated by the court in Ward v. Nava, 488 S.W.2d 736 (Tex.1972):

“In Ivy v. Carrell, supra, this Court said:
‘The motion must allege facts which in law would constitute a defense to the cause of action asserted by the plaintiff, and must be supported by affidavits or other evidence proving pri-ma facie that the defendant has such meritorious defense.’
The burden in this situation is much less onerous than the burden that would have been placed on him had he allowed the time for new trial to expire and sought relief in a bill of review proceeding.”

The more difficult issue is whether appellant has met the “excuse” requirement of Craddock.

The affidavits of Baenisch and Long contend that after being served with citation, contact was made with an investigator with the Hunt County District Attorney’s office. This man indicated there was no necessity for filing any written “complaints” and that he would take care of the matter. It was their contention that they mistakenly thought the District Attorney’s office had something to do with the lawsuit and that no answer on their part was required. Their failure to answer was not intentional or due to conscious indifference.

We hold such facts meet the accident and mistake “excuse” requirement established by Caddock, supra.

The judgment will be reversed and the cause remanded.


text:
    Virginia PAGE et al., Appellants, v. CENTRAL BANK & TRUST COMPANY, Appellee.
    No. 4988.
    Court of Civil Appeals of Texas, Eastland.
    March 10, 1977.
    Rehearing Denied April 7, 1977.

      Maxine T. McConnell and John Dennis, Director of Legal Clinic, Dallas, for appellants.
    W. A. Pritchard, Anderson, Henley, Shields, Bradford, Pritchard & Miller, Dallas, for appellee.
   WALTER, Justice.

Central Bank and Trust Co. recovered a judgment for $1,707.97 plus attorney’s fees against Virginia Page on a promissory note in a nonjury trial. Mrs. Page has appealed.

Mrs. Page pleaded the defense of usury. The court found in his conclusions of law the defendant’s answer was not verified as required by Rule 93(7), T.R.C.P., hence the Bank’s “objection to evidence of usurious interest as a defense, was properly sustained.”

We sustain appellant’s first point the court erred in failing to find conclusively the Bank contracted for and charged in excess of the statutory maximum of 8% add-on interest.

Article 5069-4.01, V.A.C.S., Section (1), provides on an installment loan the bank is authorized to make an add-on interest charge of eight dollars per one hundred dollars per annum for the full term of the loan. Section (2) provides the interest shall be computed on the cash advance at the time the loan is made. The note shows the cash advance is $1,852.10. Eight percent (8%) of the cash advance is $148.17, which is the proper interest charge. Section (2) provides:

“. . . Interest authorized by Section (1) of this Article shall be added to the cash advance and said sum shall be the amount of the loan.”

The cash advance of $1,852.10 plus the proper interest charge of $148.17 is $2,000.27. The note is for the principal amount of $2,128.97. The interest charge shown on the note is $249.44.

Appellant contends the court erred in finding if the Bank did charge in excess of the statutory maximum of 8% add-on interest, such charge was the result of an accidental and bona fide error. We are compelled to hold the pleadings and the.evidence support the court’s findings.

Article 5069-8.01, V.A.C.S., provides the penalty for contracting for charging or receiving interest of a greater amount than authorized by law. It also provides “provided that there shall be no penalty for a violation which results from an accidental and bona fide error.”

In his findings of fact, the court found the Bank undertook to charge 8% add-on interest on the note and if an error was made in the calculation of interest, it was an accident and resulted from a bona fide error.

Findings of fact have the same force and dignity as a jury verdict upon special issues. If these findings are supported by some evidence of probative force, they will not be disturbed on appeal. 4 McDonald, Texas Civil Practice § 16.05 (Rev.Ed.1971).

In Ives v. Watson, 521 S.W.2d 930 (Tex.Civ.App.—Beaumont 1975, writ ref. n. r. e.), the court said:

. . We must presume that the evidence supports not only the express findings made by the district court but also any omitted findings which are necessary to support the judgment. Wisdom v. Smith, 146 Tex. 420, 209 S.W.2d 164, 166 (1948); Allied Building Credits, Inc. v. Grogan Bldrs. Sup. Co., 365 S.W.2d 692, 695 (Tex.Civ.App.—Houston 1963, writ ref’d n. r. e.); Burkhart v. Christian, 315 S.W.2d 668, 671 (Tex.Civ.App.—Waco 1958, writ ref'd n. r. e.).”

We find some evidence in the record to support the findings.

We have considered appellant’s other points and find no merit in them.

The judgment is affirmed.


author: ROBINSON, Justice.

text:
    In the Interest of S_ H_ et al.
    No. 8779.
    Court of Civil Appeals of Texas, Amarillo.
    March 14, 1977.

      Sally Ray, Staff Counsel for Inmates, Texas Dept, of Corrections, Huntsville, for appellant.
    Joe Smith, Dist. Atty., Seminole, for ap-pellee.
   ROBINSON, Justice.

In this appeal from an order terminating his parental rights in three minor children, the children’s father contends that the trial court erred in overruling his special exceptions to the petition and in failing to file findings of facts and conclusions of law. Reversed and remanded.

Involuntary termination of parental rights rests upon Section 15.02 of the Family Code, Vernon’s Ann.Tex.Stat. Subdivision (1) of that section lists several acts or omissions, one or more of which must be proved in a termination case. Subdivision (2) of the same section requires proof of a second element — that the termination is in the best interest of the child. The list in subdivision (1) may not be exclusive. Nevertheless, both elements must be established and the requirements of subdivision (1) are not excused because a court is of the opinion that subdivision (2) has been proved. Wiley v. Spratlan, 548 S.W.2d 349 (Tex.1976); Holley v. Adams, 544 S.W.2d 367 (Tex.1976).

The only language in the petition alleging grounds for termination follows verbatim:

“Petitioner alleges the termination of the parent-child relationship between the children and their natural parents would be in the best interest of the children for their personal physical and emotional well being.”

Such language does not properly plead that the parent has done any act which is ground for involuntary termination under Section 15.02(1).

Section 11.08 of the Family Code provides that the petition in any suit affecting the parent-child relationship must include the statutory grounds on which the request is made. It is elementary that a petition must state the essential facts which constitute a cause of action. This is necessary to inform the defendant of what he is called upon to answer and enables him to prepare his defense. Lewis v. Hatton, 86 Tex. 533, 26 S.W. 50 (1894), Rules 45 and 47, Tex.R.Civ.P.

The petition before us did not allege the essential elements of a cause of action for termination as set out in our statute and reiterated by the Supreme Court and did not apprise the defendant father of the charges that he would be called upon to answer. The defendant father’s exceptions to the petition on those grounds should have been sustained.

We conclude that the judgment of the trial court should be reversed. Since the cause will be remanded to the trial court, we will, for the purpose of the re-trial, consider defendant’s contention that the trial court erred in failing to file findings of facts and conclusions of law upon proper request and five-day notice as provided by Rule 297 Tex.R.Civ.P. The record reveals no findings and conclusions filed by the trial court. However, the judgment of the court contains the following language:

“The Court finds that the natural parents of the child have:
1. Knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered the physical and emotional well-being of the children.
2. Engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers the physical and emotional well-being of the children.
3. Knowingly failed to provide parental guidance and support for the children which endangers the physical and emotional well-being of the children.
The Court finds that termination would be in the best interest of the children.”

In this connection we note that findings Nos. 1 and 2, each made in the alternative, are not positive findings that either one of the alternatives occurred. For example, the finding that the parents engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers the physical and emotional well-being of the children is not a finding that the parents engaged in conduct which endangered the children, nor is it a finding that they knowingly placed the child with persons who engaged in such conduct, nor is it a finding that both alternatives occurred.

Upon retrial and upon proper request, findings of fact and conclusions of law should be made in such a form as to allow the appealing party to know with certainty which facts the trial court found against it so as to properly present its case on appeal.

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


author: SHANNON, Justice.

text:
    ORANGE ASSOCIATES, INC., Appellant, v. Kirby ALBRIGHT et al., Appellees.
    No. 12503.
    Court of Civil Appeals of Texas, Austin.
    March 16, 1977.
    Rehearing Denied April 6, 1977.
    Elvis G. Schulze, Law Offices of Gilbert Prud’homme, Austin, for appellant.
    Fred E. Davis, Davis & Davis, Austin, for appellees.
   SHANNON, Justice.

This is an appeal from the judgment of the district court of Travis County sustaining the plea of privilege of Kirby Albright, and pertains to Tex.Rev.Civ.Stat.Ann. art. 1995, § 29a (1964).

Orange Associates, Inc., appellant, filed suit for breach of contract in the district court of Travis County against Helio-Courier of Texas, Inc., and appellee Kirby Al-bright. Appellant’s suit was grounded upon a written contract of sale of an airplane by Helio-Courier to appellant.

Appellant agreed to pay Helio-Courier $72,500 for the airplane. A part of the contract of sale included a lease-back provision whereby, “HELIO-COURIER or KIRBY ALBRIGHT” agreed to pay appellant five hundred dollars each month for four years for the limited use of the airplane. Appellant alleged that Albright and Helio-Courier, after making one such payment, refused to make further payments.

Appellant’s further allegation was that Albright signed the contract of sale “. in his individual capacity, and he has become and bound himself by the provisions of such contract to personal liability. The parties to this agreement [the contract of sale] agreed, understood, and acknowledged that Kirby Albright was signing in his individual capacity and not solely as an officer of Helio-Courier of Texas, Inc.”

The contract of sale was signed by Kirby Albright in the following manner:

“HELIO-COURIER of Texas, Inc.
Seller
By [signature]
Kirby Albright”

Appellant sought a joint and several judgment for $23,500 against both defendants based upon the violation of the leaseback provision of the contract.

Helio-Courier of Texas, Inc., filed a plea of privilege to be sued in Dallas County, and Albright filed a plea of privilege to be sued in Rockwall County. Appellant filed its controverting plea, asserting venue in Travis County as to Helio-Courier by reason of Tex.Rev.Civ.Stat.Ann. art. 1995, § 23 and as to Albright by reason of Art. 1995, § 29a. Upon trial the district court overruled the plea of privilege of Helio-Courier and sustained the plea of privilege of Albright. The court severed the cause asserted against Albright and transferred that cause to the district court of Rockwall County.

Section 29a of Art. 1995 provides:

“29a. Two or more defendants.— Whenever there are two or more defendants in any suit brought in any county in this State and such suit is lawfully maintainable therein under the provisions of Article 1995 as to any of such defendants, then such suit may be maintained in such county against any and all necessary parties thereto.”

Because both Albright and Helio-Courier are not residents of Travis County and because Helio-Courier did not appeal from that part of the judgment overruling its plea of privilege, the question for resolution is whether Albright is a necessary party to the suit against Helio-Courier for purposes of § 29a.

Appellant maintains that Albright was a necessary party within the meaning of § 29a and, as a result, the court erred in sustaining Albright’s plea of privilege. We agree. A necessary party is one whose joinder is required in order to afford the plaintiff the complete relief to which he is entitled against the defendant who is properly suable in that county. Ladner v. Reliance Corp., 156 Tex. 158, 293 S.W.2d 758 (1956); Union Bus Lines v. Byrd, 142 Tex. 257, 177 S.W.2d 774 (1944).

Albright contends that he was not a necessary party since appellant could have obtained a judgment against Helio-Courier for the full amount due under the contract without joinder of Albright. To the contrary, appellant claims that its pleading and proof showed that appellant could not obtain the full relief to which is had a contractual right, that is, a joint as well as a several judgment against both defendants unless both were sued in the same action. See Commonwealth Bank & Trust v. Held Bros., Inc., 122 Tex. 56, 52 S.W.2d 74 (1932).

As noticed above, appellant sought byway of relief a joint and several judgment for $23,500 against Hejio-Courier and Al-bright predicated upon the alleged violation of the lease-back provision in the contract.

Appellant’s proof of the joint liability of Helio-Courier and Albright consisted of the contract of sale. Albright insists that he had no personal liability because he signed the contract only in his capacity as an officer of Helio-Courier. The contract of sale does not show prima facie that Albright signed it exclusively in a representative capacity. Although the last page of the contract shows Helio-Courier of Texas, Inc., as seller, there is no word preceding or following Albright’s signature showing that he signed only in a representative capacity.

The fact that Albright did or did not sign the contract in a representative capacity is not solely determinative of his liability under the contract. The court must look to the intention of the parties at the time of contracting to determine whether or not the signers are personally bound. Leonard Duckworth, Inc. v. Michael L. Field & Co., 516 F.2d 952, 958 (5th Cir. 1975); Steele v. Hallandale, Inc., 125 So.2d 587 (Fla.Dist.Ct.App. 1960). The intent of the parties is determined by an examination of the language of the entire contract in the light of surrounding circumstances. Spence & Howe Construction Co. v. Gulf Oil Corp., 365 S.W.2d 631 (Tex.1963).

By the terms of the contract Helio-Courier “or” Albright agreed to pay appellant five hundred dollars each month for at least four years for the right to use the airplane for specified periods of time. He-lio-Courier “or” Kirby Albright promised to pay appellant the sum of seventy-five dollars for each hour the airplane was used over a certain number of hours. Helio-Courier “or” Kirby Albright promised to pay “oil, gas, and pilot time.” Appellant promised Albright “. . . the use of the aircraft in the summer of 1976 for a trip to Alaska at the rate of $25.00 per hour of flying time.” Albright was required by the terms of the contract to secure prior approval from appellant as to the date to make the trip.

If appellant elected to sell the airplane, Albright “or” Helio-Courier, under the contract, had the first right of refusal to purchase. Appellant reserved the right to cancel Albright’s “. . . $500.00 per month [payment] and all subsequent use of the aircraft.” Albright “or” Helio-Courier warranted that the airplane and all equipment was “operational to FAA specifications.” Finally, the contract provided that the obligation “. . .is personal to Kirby Al-bright and the present officers of Helio-Courier of Texas, Inc. . . .”

After an examination of the provisions of the contract of sale, some of which have been described above, we are of the opinion that the parties intended that Albright be personally bound by the contract. Appellant asserted all of its rights by seeking both a joint and several judgment against Helio-Courier and Albright. Such being the case, appellant is entitled to the complete relief sought: that is, appellant is entitled to a joint judgment against the two defendants, as well as a several judgment against each of them. Accordingly, Albright is a “necessary” party within the contemplation of § 29a. Commonwealth Bank & Trust Co. v. Heid Bros., Inc., supra.

That part of the judgment transferring the cause of action asserted against Kirby Albright to the district court of Rockwall County is reversed and judgment is here rendered overruling Kirby Albright’s plea of privilege to be sued in Rockwall County.

Reversed and Rendered.


author: PHILLIPS, Chief Justice.

text:
    Kyle L. TURKNETT et ux., et al., Appellants, v. D. M. BANDY et al., Appellees.
    No. 12513.
    Court of Civil Appeals of Texas, Austin.
    March 16, 1977.
    Rehearing Denied April 6, 1977.
    Tim M. Trickey, Kammerman, Yeakel & Trickey, Austin, for appellants.
    Barney L. Knight, City Atty., Temple, for appellees.
   PHILLIPS, Chief Justice.

On March 18, 1976, The Board of Commissioners of the City of Temple, Texas, the governing body of the City of Temple, a home-rule municipal corporation, passed an ordinance and annexed a tract of land therein described. On March 19, 1976, appellants filed a lawsuit asking for a declaratory judgment that the ordinance was invalid and void.

The trial court granted appellees’ motion for summary judgment. We affirm.

The gist of appellants’ pleadings is that the City’s governing body failed to follow the provisions of the City Charter of Temple which requires that no ordinance, unless it be declared an emergency measure, shall be passed finally on the date it is introduced, but must be passed, read and voted upon at three regular meetings of the Board. In addition, appellants contend that in passing the annexation ordinance, there was a failure to precede the institution of annexation proceedings by a public hearing as required by Article 970a § 6, Texas Civil Statutes; and that there was a failure to limit the annexation to 30 percent of the area of the City as further required by Art. 970a § 7 C.

Appellants have brought a collateral attack against the ordinance as distinguished from a direct attack brought in quo warran-to.

We have concluded that the district court correctly entered summary judgment for the reason that appellants had no standing to sue. In City of West Lake Hills v. State ex rel. City of Austin, 466 S.W.2d 722 (Tex.1971), the Court stated that it is well established that private parties who are directly affected may collaterally attack a void incorporation or annexation; however, even if the municipal act is void, the private party must suffer some burden peculiar to himself to acquire standing to sue. Otherwise, no action lies by the individual to restrain an interference with the public interest. Also see: Hoffman v. Elliott, 473 S.W.2d 675 (Tex.Civ.App.1971, writ ref. n. r. e.), and the per curiam opinion of the Supreme Court with respect thereto reported in 476 S.W.2d 845 (Tex.1972).

Appellants contend that by the terms of the ordinance, such burden is shown as the ordinance provides that the area annexed “shall bear its pro rata part of the taxes levied by the City of Temple

This argument is not persuasive. In West Lake Hills the Court held that the most common special burden alluded to by the rule is the imposition of tax. The imposition of taxes is constituted of the provisions of law which determine the persons or property to be taxed, the sums to be raised, the rate, and the time and manner of levying, receiving and collecting the taxes. The imposition of a tax conclusively establishes the sum to be paid by each person taxed or to be borne by property specially assessed, and creates a fixed and certain demand in favor of the State or a subordinate governmental agency, and a definite obligation on the part of those taxed, and prescribes the manner of its voluntary or enforced fulfillment. Mayor and Council of the City of Baltimore v. Perrin, 178 Md. 101, 12 A.2d 261 (1940). There had been no imposition of tax in the case at bar.

Because appellants had not acquired standing to sue, the trial court correctly entered summary judgment. Franks v. Welch, 389 S.W.2d 142 (Tex.Civ.App.1965, writ ref. n. r. e.).

The judgment of the trial court is affirmed.

Affirmed.

      . Article IV, Sec. 52, City Charter of the City of Temple, Texas.


text:
    Guy H. SPINKS, Appellant, v. Pauline SIMMONS, Appellee.
    No. 12603.
    Court of Civil Appeals of Texas, Austin.
    March 16, 1977.

      John R. Duren, Duren & Thompson, Copperas Cove, for appellant.
    Henry Taylor, Sr., Taylor, Taylor & Gauntt, Temple, for appellee.
   SHANNON, Justice.

On February 22, 1977, appellant, Guy H. Spinks, timely filed with the Clerk of this Court the transcript in Cause No. 12,603, Guy H. Spinks v. Pauline Simmons. On that date appellant also tendered to the Clerk thé statement of facts in the same cause. Because the statement of facts was not agreed to by the parties or approved by the trial court, the Clerk refused to file that part of the record. Tex.R.Civ.P. 377(d), 389a.

Later, but within the time permitted by Tex.R.Civ.P. 21c, appellant filed with the Clerk his motion to extend time for filing the statement of facts. As explanation for his failure to file a properly executed statement of facts within the time permitted by Tex.R.Civ.P. 386, appellant alleged that “Appellant’s attorney was not furnished with the Statement of Facts by the Court Reporter in time to obtain approval of the Court or opposing counsel.”

Rule 21c provides in pertinent part as follows:

“The failure of a party to timely file a . statement of facts ... in the court of civil appeals . . will not authorize a dismissal or loss of the appeal if the defaulting party files a motion reasonably explaining such failure

As noticed previously, appellant sought to explain his failure to timely file a properly executed statement of facts upon the basis that the court reporter did not furnish counsel with such statement of facts in time to obtain the approval of the court or opposing counsel.

The statement of facts was due to be filed with the Clerk of this Court on February 22, 1977. An inspection of the statement of facts tendered the Clerk of this Court shows that the statement of facts was filed with the district clerk on January 31, 1977. Accordingly, the statement of facts obviously was completed and filed with the district clerk twenty-two days previous to February 22, 1977.

Under these circumstances, as a matter of law, appellant failed to reasonably explain his failure to file the signed statement of facts in this Court on February 22, 1977.

Appellant’s motion for extension of time to file the statement of facts is overruled.


text:
    TYLAN CORPORATION, Appellant, v. TEXAS MATERIALS LABORATORIES, INC., Appellee.
    No. 5687.
    Court of Civil Appeals of Texas, Waco.
    March 17, 1977.

      Arthur G. Schroeder, Jr., Schroeder & Hoffmeyer, Dallas, for appellant.
    Kenneth D. Fuller, Garland, Keith W. Marshall, Richardson, for appellee.
   OPINION

McDONALD, Chief Justice.

Plaintiff Tylan Corporation sued defendant Texas Materials Laboratories, Inc., alleging plaintiff through its agent Dozier and defendant through its agent Kerns, in latter February and early March 1973 “entered into negotiations concerning plaintiff’s manufacturing one GaAsP Epi Reactor for Defendant; that thereafter on or about March 23, 1973 Defendant submitted to Plaintiff its written purchase order”; that thereafter plaintiff believing some clarification was needed on the terms and conditions of the purchase order, on April 2, 1973 sent defendant its letter setting forth plaintiff’s understanding of the matter, and setting a price of $46,000. for the reactor, and providing further that if the reactor did not work the cost to defendant would be $24,000. Plaintiff alleged defendant did not answer such letter or give any notice of its intention to reject the terms therein set out; that plaintiff relying on defendant’s failure to object to the terms and conditions set out in such letter began developing and manufacturing the reactor; that thereafter about May 3, 1973 defendant notified plaintiff it would not accept the reactor or pay for it; that plaintiff had spent $5,179. for materials and labor at such time to its damage in such amount, for which it prayed judgment.

Defendant answered by general denial.

Trial was to a jury which answered special issues submitted as follows:

1) Defendant agreed to purchase from plaintiff the reactor in question.
2) Plaintiff and defendant did not agree on a price for the reactor.
3) (Was conditioned on an affirmative answer to issue 2; inquired as to the price agreed on; and was unanswered.)
4) $4272. would fairly compensate plaintiff for its damages.

Both parties moved for judgment. The trial court overruled plaintiff’s motion; granted defendant’s motion; and rendered judgment plaintiff take nothing.

Plaintiff appeals on 2 points, contending: the trial court erred in submitting Issues 2 and 3 because the evidence established conclusively the price of $46,000. was agreed on and/or accepted by defendant; and alternatively there was no evidence to support the negative finding to Issue 2, and such finding was against the overwhelming weight and preponderance of the evidence.

Plaintiff and defendant entered into negotiations for plaintiff to build a GaAsP Epi Reactor for defendant during latter February and early March 1973. On March 23, 1973 defendant sent plaintiff a written purchase order pertinent portions of which follow:

"TEXAS MATERIALS LABORATORIES, INC.
Garland, Texas 75041
Purchase Order
No. 805
March 23, 1973
"[To] Tylan Corporation
Torrance, California 90503

Plaintiff is an engineering concern which manufactures equipment for the semi conductor industry. This includes the development, fabrication and assembly of a GaAsP Epi Reactor. This reactor was not a stock item, but was to be manufactured, with others including Lindberg Company making certain parts. Lindberg was to make the furnace with controls and cabinet; plaintiff was to build the gas flow system; engineer the design and build the reactor.

On April 2, 1973 plaintiff sent defendant a letter enclosing an “agreement that details [plaintiff’s] understanding of the program” and stating “If you concur please sign and return one copy”.

The enclosed agreement recited a price of $46,000. for the reactor, provided plaintiff would engineer and fabricate the reactor; and further provided plaintiff and defendant jointly assume the risk of developing a successful reactor, and if the goal is not achieved defendant agrees to pay only $24,-000.

Defendant received the letter and contract, but never signed the contract nor replied to the letter.

On April 27, 1973 defendant’s president telephoned plaintiff that defendant “was not going into the particular business the reactor was designed for, and would like to cancel the contract”.

Thereafter plaintiff stopped all work on the project.

Plaintiff asserts in its brief the basic question is whether the price to be paid by defendant to plaintiff for the reactor was “conclusively established by positive uncon-tradicted evidence”.

It is established plaintiff intended the price to be charged defendant for the reactor was $46,000. (subject to reduction to $24,000. if it did not work), but there is no evidence that defendant agreed to this. In fact when defendant did not respond to plaintiff’s letter of April 2, 1973 or sign the tendered written contract, this is some evidence defendant did not agree with its terms including price to be charged.

We think the evidence raised the question submitted in Issues 2 and 3; that there is ample evidence to support the answer to Issue 2; and that such answer is not against the overwhelming weight and preponderance of the evidence.

Plaintiff’s points are overruled.

AFFIRMED.


author: BISSETT, Justice.

text:
    Johnnie MITCHELL et al., Appellants, v. Dale Ensly JONES, Appellee.
    No. 1163.
    Court of Civil Appeals of Texas, Corpus Christi.
    March 17, 1977.

      T. R. Bandy, Jr., North, White & Black-mon, Allen V. Davis, Davis & Hale, Corpus Christi, for appellants.
    Bill Blackburn, Corpus Christi, for appel-lee.
   OPINION

BISSETT, Justice.

The original opinion handed down by this Court on February 24,1977 and the Supplemental Opinion handed down by this Court on March 10, 1977 are withdrawn and this opinion is substituted therefor.

This is a suit for damages for false arrest. Dale Ensly Jones instituted suit against Johnnie Mitchell, sheriff of Nueces County, M. S. Burton and Troy Smith, deputy sheriffs of Nueces County at the time of the occurrence in question, and Western Surety Company, the surety on the sheriff’s bond. He asked for $25,000.00 as damages for the “embarrassment, humiliation and mental suffering” which he allegedly suffered as a result of false arrest. Trial was to a jury, which awarded Jones $15,000.00. Judgment was rendered in that amount against defendants, Johnnie Mitchell, M. S. Burton and Troy Smith, jointly and severally; for $5,000.00 against Western Surety Company as a part of the $15,000.00 recovery; and judgment for Western Surety Company over and against Johnnie Mitchell for the recovery of any money paid by it to Jones. All of the defendants have appealed.

We first consider defendants’ third and fourth points of error, wherein they say that the trial court erred in rendering judgment against them because: 1) “the verdict of the jury is against the great weight and preponderance of the evidence”; and 2) “the evidence is factually insufficient to support the verdict”.

The arrest was made on October 4, 1973. Plaintiff was then nineteen years of age, was married, and was employed by Globe Department Store, in Corpus Christi, Texas.

The series of events from which this case developed began when a complaint of theft by bailee was made by the lessor named in a TV rental contract signed by “Dale Jones”, the lessee. To the left of the lessee’s signature in the contract appeared the writing “Dale Edward Jones 1318V2 6th St., Corpus Christi, Texas”, followed by a driver’s license number. The lessee had disappeared with the set and had discontinued payments.

An attorney in the District Attorney’s office prepared a case sheet. The original complaint was sent to the Justice of the Peace. None of these papers contained a middle name or initial of the accused. Upon receipt of the complaint, the Justice of the Peace issued a warrant of arrest for “Dale Jones” with no address or other identifying information on it.

Sheriff Johnnie Mitchell’s deputy, Earl I. Hornburg, received the warrant. After telephone inquiry of the District Attorney’s office he recorded “no info” on the warrant. The next day Deputy Hornburg examined the District Attorney’s file folder. He did not see the rental contract but wrote the 6th Street address on the warrant, which he found on an envelope in the file. He turned the warrant over for service by other officers as was the standard office procedure.

Deputy J. W. Talley tried to effect service at the 6th Street address and could neither find the accused nor his location. He returned the warrant for further processing.

The warrant was then given to Deputy Earl Rigby, who was assigned to locate people. He checked the telephone book, city directory, and finally obtained a Wallace Street address for a “Dale Jones” from the local power utility. With “1820 Wallace” as the street address recorded on it, the warrant was reinserted into the service system.

The warrant was placed in the box of Deputy Burton for service. He went to the Wallace Street address with Deputy Smith but found no one there. Inquiries led Burton and Smith to the Globe Department Store.

Burton and Smith entered the Globe store at about 9:30 a. m., which was just prior to the opening of the store for business. They asked Mr. Edward Preusse, the security guard at the store, if “a Dale Jones” was working at the store. Preusse said: “yes”; whereupon they asked to see him. The plaintiff was paged over the loud-speaker system, and he came to the information desk in the store. Burton asked him if he was “Dale Jones”; he said “yes”. Burton then told him that he had a warrant for his arrest. According to the plaintiff:

“. . .it stunned me and I asked him what for and and he stated it was a felony theft charge so it was theft by bailee. . . . ”

The plaintiff further testified that Burton told him:

“. . .we had — have to go downtown to the courthouse and straighten it out.”

The plaintiff did not know what the term “theft by bailee” meant, but he did know that a felony charge was serious. He then agreed to go to the courthouse with the deputies to straighten the matter out, but told them that he wanted to tell his supervisor that he had been arrested. Burton and Smith followed the plaintiff back to the middle of the store within arm’s reach, and the plaintiff told his supervisor that he had been arrested' and was going to have to go downtown. The plaintiff went out through the front of the store with the deputies right behind him. His fellow-employees were staring and “oohing and aahing”. The plaintiff was patted down by the deputies before he got into the car at the front of the store, which action was also observed by several customers waiting to get into the store.

On the way to the courthouse, a six mile trip, discussions resumed. An explanation of the charge of theft by bailee did not satisfy the plaintiff. He was told by the deputies that he would have a chance to make one phone call. It was then that he realized for the first time that he was going to jail rather than to simply straighten matters out. He then began to think about jail conditions and about rumors that people in jail were sometimes sexually assaulted. The plaintiff was asked whether he had lived at the 6th Street address. When he said he had not, Burton suggested to Smith that he go by the District Attorney’s office for more information. Smith did so, and Burton and the plaintiff proceeded to the jail. The plaintiff was taken through two locked and barred doors to the booking desk at the county jail. There all of his belongings, including his lunch which someone on duty told him he would not need because they fed prisoners at the jail, were taken from him. After a ten minute wait, he began giving his personal data to the officer. Before he had finished, Smith came in and advised the officer that they had the wrong man. This was confirmed within five minutes. The belongings of the plaintiff were returned to him. The three then left the jail. They arrived back at Globe approximately one hour after leaving the store.

The plaintiff testified that he was scared to death, and while waiting in the jail-holding area preceding his interrogation, he worried about the probability of losing his job. After being returned to the store, he said that he had the feeling that all of the other employees were watching him, and that it was about a week before they really believed that he was innocent of any wrongdoing. He further testified that two or three, nights after the incident he had a nightmare about being stopped by Burton and Smith, and that “they were just tearing the car apart looking for something”.

The plaintiff’s wife testified that the experience upset him, and that he was affected by what had happened for a period of about three months. She further testified:

“. . .he didn’t sleep very good for a while after this happened ... every time we’d be out in public and he’d see a sheriff’s deputies car, well, he’d, you know, he’d start looking out in his rear-view mirror and keeping an eye on them.”

Preusse overheard the conversation between the deputies and the plaintiff. He said that the plaintiff “appeared shocked” and “turned pale”. He noticed that several customers who were then outside the store observed “Dale being taken out there in his Globe Discount City jacket apparently under arrest by the sheriff’s deputies”.

Burton and Smith discovered that the plaintiff was not the man for whom the arrest warrant was issued within fifteen minutes from the time they reached the courthouse. Deputy Smith determined this from looking in the District Attorney’s file and getting the driver’s license from the contract signed by the real subject of the arrest warrant. This information could have been obtained by the deputies as easily before the arrest as afterwards. The contract signed by the proper subject of the arrest warrant also shows that his middle name was “Edward” rather than “Ensly” (the middle name of the plaintiff), and that he (“Dale Edward Jones”) lived at 1318½ Sixth Street in Corpus Christi. The plaintiff had never lived at 1318y2 Sixth Street. However, even after the plaintiff told Burton and Smith that he had never lived at 1318½ Sixth Street, they did not release him and check the matter out further; they proceeded to continue to detain him at the jail. The warrant also showed that the subject of it had lived at 1318V2 Sixth Street.

“Dale Edward Jones” was arrested between 12:00 and 1:30 p. m. the same day on which the plaintiff was arrested.' In the Sheriff’s Department’s own records there was a file set up on “Dale Edward Jones”, with a photograph of him in it. Deputy Sheriff Ray Fernandez testified that it was clear from the picture that the plaintiff was not the same person as “Dale Edward Jones”.

The Sheriff’s Department file also reflected that on October 4, 1973, “Dale Edward Jones” was on probation with the Nueces County Probation Office. His Probation Officer could have gotten in contact with him at any time through his employer, but nobody with the Sheriff’s Office ever contacted the Probation Officer about the matter. Burton agreed that if he had checked the District Attorney’s files before he arrested the plaintiff rather than after-wards, and had found out that the middle name of the man for whom the arrest warrant was issued was “Edward” and that the middle name of the-plaintiff was “Ensly”, he would not have arrested the plaintiff.

We have read the record in its entirety. We have considered all of the evidence. The finding of the jury to the effect that the plaintiff sustained injuries because of past “mental anguish, humiliation and embarrassment” is supported by competent evidence of probative value, that is factually sufficient to sustain the finding; it is not against the great weight and preponderance of the evidence. Defendants’ third and fourth points are overruled.

Next the defendants complain that the jury’s award to the plaintiff of $15,-000.00 actual damages is excessive. They argue in this respect that Burton and Smith reasonably believed that the plaintiff was the proper person named in the warrant, that the mistake on the part of the deputies was an honest mistake, and that “the plaintiff was under a minimum form of detention for less than a half hour, at the conclusion of which he was absolutely aware and conclusively assured of his exoneration”. They further say that the plaintiff was never mistreated, was not “handcuffed” at the store, and was never fingerprinted or photographed at the jail. They particularly point out the fact that the arrest did not cause the plaintiff to lose his job with Globe.

After carefully reviewing all of the evidence, we are of the opinion that the award of $15,000.00 for actual damages is excessive. It, therefore, becomes our duty to suggest a remittitur and the time within which it may be filed. Rule 440, Texas Rules of Civil Procedure; Impson v. Structural Metals, Inc., 487 S.W.2d 694 (Tex.Sup.1972).

Both the plaintiff and the defendants have cited a number of cases in support of their respective positions relating to the question of whether the award is excessive to the point that a remittitur should be ordered. In resolving the issue, we recognize the difficulties presented. See K-Mart No. 4195 v. Judge, 515 S.W.2d 148 (Tex.Civ.App.—Beaumont 1974, writ dism’d).

The law has not furnished us with any fixed standards by which to measure an award for damages which resulted from mental anguish, embarrassment and humiliation for false arrest. Prom our review of the record, we are of the opinion that the amount of damages awarded to the plaintiff is excessive in the amount of $10,500.00. It is accordingly ordered that a remittitur of $10,500.00 be filed by the plaintiff in this Court within ten days from the announcement of this decision, whereupon this Court will reform the judgment of the trial court by the amount of the remittitur; otherwise the judgment of the trial court will be reversed and the cause remanded for a new trial. Rule 440, T.R.C.P.; Carter v. Texarkana Bus Company, 156 Tex. 285, 295 S.W.2d 653 (1956); Southern Pacific Company v. Stanley, 473 S.W.2d 52 (Tex.Civ.App.—Corpus Christi 1971, writ ref’d n. r. e.).

The plaintiff, through his attorney, filed the remittitur as suggested by this Court in its original opinion. Therefore, the judgment of the trial court is reformed to the extent of the amount hereby remitted by plaintiff so that the amount of judgment against the appellants is reduced to the sum of $4,500.00, and it is further ordered that the appellant, Western Surety Company, have judgment over and against the defendant, Johnnie Mitchell for said amount of money.

The costs of this appeal are taxed 50% to the plaintiff and 50% to the defendants.

The judgment as herein reformed is hereby AFFIRMED. Motion for rehearing is OVERRULED.


text:
    Richard Hugh YOUNKMAN et al., Appellants, v. Rebecca KREAGER et al., Appellees.
    No. 4997.
    Court of Civil Appeals of Texas, Eastland.
    March 17, 1977.
    Rehearing Denied April 7, 1977.

      Randall Grubbs, Charles L. Hirseh, Garland, for appellants.
    George R. Edwards, Edwards, Sowell & Padgett, Dallas, for appellees.
   WALTER, Justice.

Richard Hugh Younkman, Beatrice Clau-dell Moore, and T. F. Moore filed suit against Rebecca Kreager and William D. Kreager for damages resulting from a motorcycle-automobile collision which occurred on July 20, 1972. Suit was filed on the last day before the running of the Statute of Limitations. The court entered the following order:

“IT IS ORDERED, ADJUDGED AND DECREED that the causes of action asserted herein by RICHARD HUGH YOUNKMAN, BEATRICE CLAUDELL MOORE and T. F. MOORE against REBECCA KREAGER be, and the same are hereby dismissed and the Plea of REBECCA KREAGER of Limiatation, the Plea of Dismiss, the Plea of Laches, and Plea of Dismissal for Failure of the Plaintiffs, and each of them, to use due diligence to obtain prompt service of citation in this cause, as asserted by her Plea in Abatement and Motion to Dismiss on file herein, is hereby sustained in asmuch as the Court has found that said Motions are good, well founded and supported by the record herein.”

The plaintiffs have appealed.

The transcript shows a jury fee has been paid. In the judge’s letter to the attorneys of March 11, 1976 regarding this case, he informs them this case had been set for trial on the merits for October 4, 1976. His letter noted: “Jury has been demanded.”

When these proceedings began, the court asked if plaintiffs were ready to proceed. Appellants’ attorney said:

“MR. GRUBBS: Ready to proceed, Your Honor, but we would object to proceeding at this time, we realize the Court’s position on it, but as we have already mentioned to the Court, we believe this is a matter for a Jury Trial.”

In appellants’ amended motion for new trial, they assert:

“IX.
There are presently facts before the Court that, if believed by the finder of fact, verify due diligence and, therefore, said matter is a question for a jury.
X.
A jury has been requested and that in the event of dismissal, the Judge has in fact decided issues of fact, which he is not permitted to do in this case.”

The court found as a matter of law in a hearing on defendants’ “Plea in Abatement and Motion to Dismiss” the plaintiffs suit against Rebecca Kreager was barred by the two-year statute of limitations. The two-year statute of limitations is an affirmative defense pleaded by the defendant and is a plea in bar.

In Texas Highway Department v. Jarrell, 418 S.W.2d 486 (Tex.1967), the court said:

“We observe that a plea of res judicata is not a plea in abatement or a plea to the jurisdiction, but is a plea in bar. 34 Tex. Jur.2d, Judgments § 450. The three pleas have different objectives, and different consequences flow from their sus-tention. As applied to a pending claim for relief or cause of action, a plea to the jurisdiction, if sustained, would require a dismissal; a plea in abatement, if sustained, would require an abatement of the claim or cause of action until some obstacle to its further prosecution was removed. Life Ass’n of America v. Goode, 71 Tex. 90, 8 S.W. 639, at 640; and a plea in bar, if sustained, would require a judgment that the claimant take nothing. Kelley v. Bluff Creek Oil Co., 158 Tex. 180, 309 S.W.2d 208, at 214.”

In Filipp v. Ochoa, 340 S.W.2d 847 (Tex.Civ.App.—Waco 1960, no writ), the court said:

“Appellee filed an unverified plea alleging that on a date nearly one month after the suit was filed, plaintiff executed a release discharging defendant from all liability for property damage. Appellant then pleaded that appellee had full notice of the subrogation interest of the insurer before he executed the release. Appel-lee’s allegations of the terms of the release were embodied in an unverified pleading termed a ‘motion to dismiss.’ The court granted the motion and dismissed the action by virtue of the pleaded release.
The court was not authorized to summarily dispose of the action on a plea in bar.”

We sustain appellants’ point the court erred in dismissing his case because such ruling effectively denied him a trial by jury on the appellees’ plea in bar.

The judgment is reversed and the cause is remanded.


author: HUGHES, Justice.

text:
    Alma Lee EVANS, Appellant, v. FORT WORTH STAR TELEGRAM and Kathy Lee Keys, Appellees.
    No. 17811.
    Court of Civil Appeals of Texas, Fort Worth.
    March 18, 1977.
    Law Offices of George Busch, Fort Worth, for appellant.
    Kelly & Walker, and Jearl D. Walker, Fort Worth, for appellees.
   OPINION

HUGHES, Justice.

This is an appeal from a summary judgment granted the Fort Worth Star Telegram, severing and dismissing it as defendant to the personal injury suit brought against Telegram and Kathy Lee Keys by Alma Lee Evans. Evans claimed Keys was acting in the course and scope of her employment as an employee of Telegram at the time of the automobile wreck in which Evans was injured. Trial court found Keys was an independent contractor and not an employee of Telegram in that there was no genuine issue of any material fact as between Evans and Telegram.

We reverse.

Telegram’s motion for summary judgment was accompanied by a Xerox copy (uncertified) of an agreement between it and Keys for Keys to deliver missed copies of its newspapers each day between specified hours. The agreement copy designated Keys as an “independent contractor.” Also filed with the motion was an affidavit by Keys to the effect that she was not an employee of Telegram and that the agreement attached was identical to the one she made with Telegram. Evans filed nothing in opposition to the motion.

We find it to be well established that the test for determining a master-servant relationship is the right of control of the details of the work to be performed. Newspapers, Inc. v. Love, 380 S.W.2d 582 (Tex.1964).

Equally well established is the rule that the burden of proof is on the movant in summary judgment proceedings and that all doubts as to the existence of a genuine issue as to a material fact must be resolved against him and that the evidence must be viewed in the light most favorable to the party opposing the motion. Tex.R.Civ.P. 166-A.

Also, evidence favoring the movant's position is not considered unless uncontra-dicted. Even then, if such evidence is from an interested witness, it cannot be considered as doing more than raising an issue of fact, unless it is clear, direct and positive and there are no circumstances in evidence tending to discredit or impeach such testimony. Cochran v. Wool Growers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904 (1942). This exception is particularly true where opposing party has the means and opportunity to disprove the testimony, if untrue, and does not do so. 4 McDonald, Texas Civil Practice (1971 Rev.) § 17.26.12 (Summary Judgment—IV Determination of Motion).

In this case the summary judgment has to stand on the affidavit of Keys, a party to the suit. She is an interested witness to the fact as to whether she was the servant of Telegram at the time of the collision. Evans did not have the means to disprove this type of testimony as it was based on facts peculiarly known to Keys and to Telegram. Trial court had to accept the evidence of Keys as true and thereby pass on her credibility. This the trial court could not properly do. Republic Insurance Co. v. State Farm Insurance Co., 416 S.W.2d 557 (Tex.Civ.App.—Fort Worth 1967, no writ). Randell v. Lubbock National Bank, 453 S.W.2d 860 (Tex.Civ.App.—Eastland 1970, no writ).

We hold that there is a material fact issue as to whether a master.rservant relationship existed between Keys and Telegram at the time of the collision. We order that the Fort Worth Star Telegram be reinstated as a defendant in this cause in the trial court.

Reversed and remanded.


author: PER CURIAM.

text:
    COMMONWEALTH of Kentucky, Appellant, v. Ray DUVALL, Appellee.
    Supreme Court of Kentucky.
    March 11, 1977.
    Robert F. Stephens, Atty. Gen., Miles H. Franklin, Asst. Atty. Gen., Frankfort, for appellant.
    Thomas F. Towles, Public Defender, Fa-yette County Legal Aid Inc., Lexington, for appellee.
   PER CURIAM.

On February 17, 1976, during the trial of Ray Duvall for knowingly receiving stolen property (KRS 433.290), the trial court refused to permit the Commonwealth to introduce for impeachment purposes evidence that on January 6, 1975, Duvall had been convicted of a similar offense or offenses. The 1975 judgment had been affirmed by this court on December 12, 1975, but on January 12,1976, Duvall had filed a petition for rehearing, and on the date of the trial now in question the petition for rehearing was still pending. (It was eventually denied, and the mandate issued on March 26, 1976).

The trial court correctly held that under the principle of Foure v. Commonwealth, 214 Ky. 620, 283 S.W. 958, 962 (1926), for impeachment purposes a judgment of conviction that has been appealed is not final until the mandate is issued. The Attorney-General urges that the rule be relaxed and brought into line with Rule 609(e) of the Federal Rules of Evidence, under which the pendency of an appeal does not prevent proof of the conviction from which the appeal was taken. This, it is said, is the majority rule in the country. Cf. Annotation, 16 ALR 2d 726. We think, however, that until the litigation is ended and the conviction has survived the appeal it should not be admissible. Until then the defendant’s day in court is not over. We decline to overthrow what we consider to be a sound principle.

The law is so certified.

All concur.


author: LUKOWSKY, Justice.

text:
    U. S. MINING AND EXPLORATION NATURAL RESOURCES CO., INC., Appellant, v. CITY OF BEATTYVILLE et al., Appellees.
    Supreme Court of Kentucky.
    March 11, 1977.
    Kendall Robinson, Booneville, for appellant.
    Rose & Short, Beattyville, for appellees.
   LUKOWSKY, Justice.

The issue to be resolved in this case is whether a city may within its corporation limits prohibit the construction and operation of a coal tipple. This is not a zoning case. The procedures delineated in KRS 100 et seq., for enacting zoning regulations were not followed by the city. Rather the city has attempted to outlaw coal tipples under its general police power.

The ordinance under consideration states:

WHEREAS, the city of Beattyville, Kentucky, that being the duly elected legislative body of said city and responsible for the general welfare of its city has determined that in order to adequately safeguard and promote the health, safety, and welfare of its citizens, that the exploration, mining, and marketing of any and all minerals and activities incident thereto shall be prohibited from being conducted in the corporate limits of the city of Beattyville, Kentucky.
Now, THEREFORE, be it ordained by the city council of the city of Beattyville, Kentucky as follows:
SECTION I: The exploration, mining and marketing of minerals within the corporate limits of the city of Beattyville, Kentucky, is hereby prohibited and any and all other activities which are incidental thereto or are in conjunction therewith, including, but not exclusive of, the building and erection of coal tipples and the operation, thereof, the drilling and erection of oil and gas wells and the stock piling and storing of same within said corporate limits of said city is also prohibited.

Section II provides criminal penalties for any person, firm or corporation that violates Section I.

The appellant, prior to the enactment of the ordinance, contracted with the L & N railroad to build a coal tipple adjacent to railroad tracks within the city of Beatty-ville. The appellant initiated this suit in the Lee Circuit Court seeking a declaratory judgment that the ordinance is unconstitutional, and has appealed from a judgment which upheld the ordinance. We reverse.

A municipal corporation, under its police power, has wide latitude to pass ordinances promoting the health, safety, morals, or general welfare of the people. However, a legislative body may not “under the guise of protecting the public, arbitrarily interfere with private business or prohibit lawful occupations or impose unreasonable or unnecessary restrictions upon them. The regulation of a lawful business is dependent upon some reasonable necessity for the protection of health, safety, morality, or other phase of the general welfare, and unless an act restricting the ordinary occupations of life can be said to bear some reasonable relation to one or more of these general objects of the police power, it is repugnant to constitutional guarantees and void.” 16 Am.Jur.2d, Constitutional Law, Sec. 314; Ky.Const. Sec. 2.

There is no doubt that a legislative body can under its police power prohibit certain businesses. The test to be applied is whether the prohibition of a particular business is necessary to prevent infliction of a public injury. Tolliver v. Blizzard, 143 Ky. 773, 137 S.W. 509 (1911). Thus, this court has recently upheld against constitutional attack legislation which put an end to the private bail bonding business in Kentucky. Stephens v. Bonding Ass’n of Kentucky, Ky., 538 S.W.2d 580 (1976). The decision in that case was based upon the judicial and legislative recognition of the notorious inherent evils and abuses of privately operated bail bonding businesses which tarnished the image of Justice.

However, this court has refused to permit the abolition of a business where abolition was too drastic a solution of a legitimate problem. Thus public dances may not be completely banned. Bruner v. City of Danville, Ky., 394 S.W.2d 939 (1965). All businesses may not be required to close between midnight and 4 A.M. City of Jackson v. Murray-Reed-Slone & Co., 297 Ky. 1, 178 S.W.2d 847 (1944). And a municipality may not prohibit the sale of “soft drinks.” Tolliver v. Blizzard, supra.

It has been noted that in defining the limits of the police power “the touchstone is necessity and reasonable relationship. It is fundamental that such as [sic] extraordinary power is not without limitation, for it may not operate unreasonably beyond the occasion or necessity of the case.” Bond Bros. v. Louisville & Jefferson County Metropolitan Sanitation District, 307 Ky. 689, 211 S.W.2d 867, 872 (1948). Moreover, as was noted in the Tolliver case, a business may not be outlawed merely because some who engage in it will inflict injury upon the public.

From these principles we deduce that a municipality may not prohibit the construction and operation of a coal tipple unless such a drastic measure is necessary for the protection of the health, safety, or general welfare of the people. Put another way, the operation of a coal tipple must be a nuisance per se before the prohibition can be justified. See McQuillen, Municipal Corporations, see. 24.325 (volume 7 at 213). If coal tipples become nuisances only when they are mismanaged, they are nuisances per accidens and not nuisances per se. Board of Education of Louisville v. Klein, 303 Ky. 234, 197 S.W.2d 427 (1946). As such, a coal tipple may not be shut down until it is found to be a nuisance in fact and that shutting it down is the only reasonable way of abating the nuisance.

This court has repeatedly held that a coal tipple is not a nuisance per se. Strough v. Ideal Supplies Co., 300 Ky. 34, 187 S.W.2d 839 (1945); Reynolds v. Community Fuel Co., 309 Ky. 716, 218 S.W.2d 950 (1949). Indeed with the economy of our state and the energy needs of our country so dependent upon the production and shipment of coal it seems unlikely that coal tipples will evolve into “nuisances per se” in the foreseeable future.

We are aware that coal tipples are dirty noisy places and that those in charge of them must exercise extreme care to limit the spread of coal dust and sound. For this reason the operation of coal tipples may be regulated by appropriate legislative bodies. Coal tipples may not be appropriate in many areas of a community, but this is a zoning problem. In the final analysis, we are not convinced that problems that coal tipples create can not be solved by a means less drastic than a blanket prohibition of their construction and operation. The ordinance is arbitrary and, therefore, unconstitutional.

We are also mindful that “it is within the province of the legislature to assimilate, consider, and weigh all the factors in the concept of public welfare”. Stephens v. Bonding Ass'n of Kentucky, supra. However, a legislative finding of fact is not conclusive. If it were, limitations on the police power would be meaningless. See Bruner v. City of Danville, supra.

The judgment is reversed and the cause is remanded for the entry of a new judgment consistent herewith.

All concur except STEPHENSON, J., who dissents.