author: HALL, Justice.

text:
    FROST NATIONAL BANK OF SAN ANTONIO, Independent Executor and Trustee of the Estate of Louise M. Cozby, Deceased, et al., Appellants, v. Karolen NEWTON et al., Appellees.
    No. 5625.
    Court of Civil Appeals of Texas, Waco.
    Oct. 28, 1976.
    Rehearings Denied Nov. 18, 1976.

      Joe Meador, James E. Aderhold, San Antonio, for appellants.
    Van G. Hilley, Goodstein & Semaan, Bayne & Snell, San Antonio, for appellees.
   HALL, Justice.

The Frost National Bank of San Antonio is independent executor of the will of Louise M. Cozby, deceased, and trustee of the trust estate created in the will. The Bank brought this suit in both capacities seeking a declaratory judgment as to whether, under the terms of the will, the trust has terminated or should be terminated.

The will was executed by Mrs. Cozby on August 25, 1965. Following several bequests and the devise of a life estate in the testatrix’s homestead to her husband, Rex-ford S. Cozby, the will provides in parts relevant to this appeal as follows:

“TRUST ESTATE

“I hereby give, devise and bequeath unto the Frost National Bank of San Antonio, as Trustee, in trust for the following beneficiaries and for the uses and purposes hereinafter set forth, . . .all of the residue and remainder of my property and estate . all of which property will be hereinafter referred to as the “Trust Estate,” and is to be held, managed, controlled and disposed of by said Bank as Trustee, as hereinafter provided.

“The said Trust . . . shall continue in force and effect during the remainder of the lifetime of the last survivor of the following named three beneficiaries, viz: Rex-ford S. Cozby, Karolen Newton and Louise Purvis, and shall terminate upon the date of death of the last survivor of said three last-named beneficiaries. Provided, however, that said Trustee shall have the right, at its option, to sooner terminate said Trust in the event the income from the trust property shall hereafter cease to be sufficient in amount to justify the further continuance of such Trust, in the opinion of the Trustee.

“During the entire existence of the term of said Trust, the said Trustee is directed to pay, out of said Trust funds, to or for the use and benefit of the following named respective beneficiaries the following periodical payments:

“One-third (⅛) of the net income from said Trust Estate shall be by said Trustee paid to my husband, Rexford S. Cozby, during the remainder of his lifetime; and the remaining two-thirds (⅜) of said net income from said Trust Estate (plus such portions of the principal thereof as the Trustee may deem necessary) shall be applied to the payment of the expenses incident to: (a) The support and education through high school and college of my great-nephew, Warren S. Wilkinson, Jr., so long as he may attend and continue in school or college during the term of said Trust; and (b) the support and education through college of my great-niece, Susan Arnette, so long as she may attend and continue in college during the term of said Trust; and (c) the support and education through college of my great-niece, Karolen (Lyn) Wilkinson, so long as she may attend and continue in college during the term of said Trust; and (d) if, as, and when any one or more of said three student beneficiaries shall, during the term of said Trust, obtain a college degree, he or she shall be paid by said Trustee the sum of $1,000.00 in cash out of the interest or principal of said two-thirds (⅜) of said total Trust Estate, as a graduation present.

“The payments of net income which are to be so paid by the Trustee to or for the use and benefit of the respective beneficiaries above-named shall be so paid in monthly installments, or in such other periodical installments as the Trustee may determine, and the respective proportionate amounts of the principal payments to be so paid to or for the benefit of my said great-nephew and great-nieces for educational purposes, out of the said two-thirds (⅜) of the total net income from the entire Trust Estate, shall be left to the discretion of and shall be determined by the Trustee according to the needs of each of said three student beneficiaries, and need not be in equal proportions. Such payments may be made direct to said student beneficiaries, regardless of their minority, or may be made to any other person or persons for any such beneficiary’s use and benefit.

“If at any time during the term of said Trust the net income from said two-thirds (⅜) of said Trust Estate shall be insufficient to pay the expenses incident to a college education for said last-named three beneficiaries, or any of them, then in such event the Trustee shall have the right to pay any excess amount needed for said purposes out of the principal of said two-thirds (⅜) share of said entire net Trust Estate; and in the event their said proportionate share of said net income shall be more than sufficient to pay for their college education as aforesaid, then any such excess amount thereof shall be by the Trustee, from time to time, paid in equal shares thereof to Louise Purvis and Karolen Newton at such times and in such installments as the Trustee may determine.

“Upon the final termination of said Trust Estate all of the property then comprising said Trust Estate, and all of the remainder and residue of my property and estate, if any, not hereinabove otherwise disposed of, I hereby give, devise and bequeath to the following named ultimate beneficiaries, in equal shares, an undivided one-half (½) to each, viz.: Karolen Newton and Louise Pur-vis. If either one of said last-named beneficiaries be not living at the time of the final termination of the Trust Estate above provided for, then the share of my estate which such deceased beneficiary would be otherwise entitled to receive if living, shall go to and vest in her then living children, in equal shares.”

The testatrix died in December, 1967: Her husband, Rexford S. Cozby, predeceased her, having died in January, 1967. They had no children. The other beneficiaries named in the trust survived the testatrix. Karolen Newton and Louise Purvis were the nieces of the testatrix. Their relationship with Mrs. Cozby was like that of mother and daughters. Warren S. Wilkinson, Jr., Susan Arnette, and Karolen (Lyn) Wilkinson (now Karolen Dittmar), are the only children of Louise Purvis. These surviving beneficiaries, and the three children of Karolen Newton were named by the bank as defendants. Later, Mrs. Alibel M. Pardue, who is the surviving sister of the testatrix and is the mother of Karolen Newton and Louise Purvis, was brought into the case as a defendant. All of these defendants are adults. Additionally, a guardian ad litem was appointed to represent the unborn and unadopted children of Karolen Newton and Louise Purvis.

The case was heard by the court without a jury. During the course of the trial, Karolen Newton and Louise Purvis and their six children made and introduced into evidence an agreement in which they released and waived all their claims and rights under the trust, released and discharged the Bank as Trustee from all responsibility, and requested the court to terminate the trust and order distribution of the trust assets “to the two ultimate beneficiaries,” Karolen Newton and Louise Pur-vis. Mrs. Pardue filed an answer in which she adopted the pleadings of her daughters requesting termination of the trust and distribution of the trust assets to them.

After the hearing the court terminated the trust and ordered the assets delivered to Karolen Newton and Louise Purvis. It made the following findings and conclusions, among others, in support of its rulings: that the primary purposes of the trust were (1) to provide a lifetime income for the testatrix’s husband, Rexford S. Coz-by, and (2) to provide for the education of Warren S. Wilkinson, Jr., Susan Arnette, and Karolen Wilkinson; that the provision for income to Karolen Newton and Louise Purvis was only an incidental purpose of the trust; that the three educational beneficiaries of the trust have either completed their education or elected not to accept benefits under the trust; that all of the direct and contingent beneficiaries of the trust have consented to its termination; and that no primary purpose of the trust would be frustrated by terminating the trust and distributing the assets to Karolen Newton and Louise Purvis in accordance with the agreement of the beneficiaries.

The Bank and the guardian ad litem are the appellants. They do not question the finding that the three educational beneficiaries have completed their schooling and renounced any right of further benefits under the trust. However, they do question the court’s determination that the provision for income to Karolen Newton and Louise Purvis was merely an incidental purpose of the trust. Rather, they say that a primary purpose of the trust was to provide for payment of income to each of those two beneficiaries during their lifetimes. They base this contention on assumptions that under the terms of the trust it must continue “during the remainder of the lifetime of the last survivor of . . . Rexford S. Cozby, Karolen Newton, and Louise Purvis” unless terminated earlier only at the option of the Bank because of insufficient income, and that the direction in the last paragraph of the trust for distribution of assets to Karolen Newton and Louise Purvis on “final termination” refers only to a termination by the Bank for want of sufficient income. We disagree with this construction of the will.

We have set forth the pertinent parts of the will virtually in full because we believe they plainly show that the primary purposes for which Mrs. Cozby created the trust were to provide income for her husband during the remainder of his lifetime, and to provide for the education through college for each of the three student beneficiaries. These purposes have been fulfilled. The trust also plainly shows that the payment of income benefits to Karolen Newton and Louise Purvis was merely a minor or incidental purpose. They are not named as lifetime income beneficiaries. The testatrix did not intend to guarantee continuing, regular support from the income, or any support, for Karolen Newton and Louise Purvis during the term of the trust, as she did for the other beneficiaries. This is evidenced by the provision that any income payments to them must come only from any excess remaining after the needs of the student beneficiaries are met. It is evidenced also by the fact that the provision for payment of “excess income” to them was not included in the same paragraph in which the provisions for regular income expenditures are contained.

The present value of the trust estate is $450,000. The appellants argue that the trust has not terminated because Karo-len Newton and Louise Purvis are not deceased and because there are sufficient assets to justify the continuance of the trust. They base this argument on the language contained in the second paragraph of the trust set forth, above. The appellants’ construction of this language places it directly in conflict with the “ultimate beneficiaries” status accorded Karolen Newton and Louise Purvis in the last paragraph of the trust to receive the assets remaining on “final termination” of the trust, and would mean that these two beneficiaries specifically designated by Mrs. Cozby to finally receive the corpus of the trust would never do so. We cannot agree with this construction. To follow it would simply permit the Bank to continue the trust for an incidental purpose and collect an annual fee as Trustee after the primary purposes of the Trust have been accomplished. If the main object of a trust has been attained, the trust will not be continued in order to achieve an incidental or minor purpose. Equity will decree its termination. Alamo National Bank of San Antonio v. Daubert, 467 S.W.2d 555, 561 (Tex.Civ.App., Beaumont 1971, writ ref. n. r. e.). Additionally, a trust may be terminated upon the application of all beneficiaries when they are sui juris and no subversion of the wishes of the trustor will be caused by the termination. 57 Tex.Jur.2d 417, Trusts, § 35; 76 Am.Jur.2d 324, Trusts, § 76; Restatement of Trusts, Second Edition, § 337; Bogert, Trusts And Trustees (2d ed. 1962), § 1007. For these reasons, the trust in question was properly terminated by the court.

The appellants’ points and contentions are overruled. The judgment is affirmed.


source: Caselaw Access Project

author: McDONALD, Chief Justice.

license: Public Domain

text:
    FORD MOTOR COMPANY, Appellant, v. Milton STERN et al., Appellees.
    No. 5609.
    Court of Civil Appeals of Texas, Waco.
    Oct. 28, 1976.
    Rehearing Denied Nov. 26, 1976.

      Noley R. Bice, Waco, for appellant.
    Douglas R. Bergen, Waco, for appellees.
    C. Edward Fowler, Jr., Bailey, Williams, Westfall, Lee & Fowler, Dallas, for Bird Kultgen.
   OPINION

McDONALD, Chief Justice.

This is an appeal by appellant Ford Motor Company from order of the trial court overruling its plea of privilege to be sued in Dallas County, the County of its residence.

Appellees Stern and wife, sued appellant Ford Motor Company and co-defendant Bird Kultgen Inc., in McLennan County, alleging appellees purchased a new Ford Pinto from Bird Kultgen August 30, 1974; that such was manufactured by Ford Motor Company; that seller and manufacturer warranted the automobile reasonably fit, safe, and suitable for use as a motor vehicle; that on February 25, 1975 while Mrs. Stern was driving said car in a careful manner, the automobile’s steering failed to function causing Mrs. Stern to hit a tree, resulting in damages. Appellees further alleged the steering defect existed at the time the vehicle was manufactured and/or sold to them; and alternatively that both defendants failed to discover or correct the defective condition which existed in the steering mechanism of the vehicle, which failure was negligence and a proximate cause of plaintiff’s damages.

Appellant Ford Motor Company filed its plea of privilege to be sued in Dallas County-

Appellees controverted asserting venue in McLennan County under Subdivisions 4 and 31 of Article 1995 VATS.

After hearing the trial court overruled appellant’s plea of privilege.

Appellant appeals on 4 points contending the trial court erred in overruling its plea of privilege because:

1, 2) There is no evidence and/or insufficient evidence to establish an exception to exclusive venue in Dallas County under Section 4, Article 1995.
3, 4) There is no evidence and/or insufficient evidence to establish an exception to exclusive venue in Dallas County under Section 31, Article 1995.

Section 4, Article 1995 provides “If two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides.”

Under Section 4, the venue facts which must be established are: 1) One defendant resides in the county of suit; 2) The party filing the plea of privilege is a proper party; 3) Plaintiff must plead and prove a cause of action against the resident defendant. Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300.

Defendant Bird Kultgen is a resident of McLennan County, and Ford Motor Company is a proper party.

Appellee pled the vehicle had a steering defect at time of manufacture and/or at time of its delivery to them; and further that both defendants were negligent in failing to discover or correct such defective condition.

The evidence is the vehicle was purchased by appellees new from Bird Kultgen shortly before the accident; that after purchase of the car “the steering was really tight,” and “very hard to steer”; and that prior to the accident “the steering was difficult and the car spun to the right prior to any accident”; that after purchase appellees took the vehicle to Bird Kultgen to have the steering checked; and that Bird Kultgen told them they had checked the steering. On the occasion of the accident the evidence is the “car pulled again and the thing wouldn’t steer” and “all of a sudden the car pulled to the right. I tried to steer to the left * * nothing worked and the car went over the tree * *

We think the trial court authorized to believe and find that a defect existed in the steering mechanism of the vehicle at the time it left Bird Kultgen; and further authorized to believe and find that Bird Kult-gen was negligent in not discovering and correcting the steering mechanism of the vehicle.

Thus, a cause of action was pled and proved against Bird Kultgen, the resident defendant, and Section 4 sustains venue in McLennan County, as to appellant.

Appellant’s contentions 1 and 2 are overruled.,

AFFIRMED.


author: BISSETT, Justice.

text:
    Charles R. HOSACK, Appellant, v. M. E. CASSIDY, Jr., et al., Appellees.
    No. 1113.
    Court of Civil Appeals of Texas, Corpus Christi.
    Oct. 29, 1976.

      W. J. Nutto, Corpus Christi, for appellant.
    Lee Mahoney, Corpus Christi, for appel-lees.
   OPINION

BISSETT, Justice.

This is a suit to recover money as a result of an alleged breach of contract. Trial was to the court, sitting without a jury. Judgment in the total amount of $10,606.30, including the amount of money sought to be recovered and interest thereon from the date it should have been paid by the defendant, was rendered in favor of the plaintiff M. E. Cassidy, Jr. against the defendant Charles R. Hosack. An appeal by the defendant has been perfected from that judgment.

M. E. Cassidy, Jr. and Charles Mayes, the plaintiffs, alleged that prior to September 1, 1969 they owned the “Marine Club”, a business in Corpus Christi, Texas, which was operated by them as a partnership, and on that date the defendant purchased an interest in the business and became a partner therein with the plaintiffs; that on April 10, 1970, the defendant purchased the business, assumed all obligations and liabilities owed by the Marine Club, took possession of all assets belonging to the Marine Club, and thereafter owned and operated the business as the sole owner thereof; that at the time of the sale, there was then due and owing certain accrued taxes to the Internal Revenue Service (IRS), which the defendant later refused to pay; that the IRS then made a demand on the plaintiffs for the payment of such taxes because of their partnership interest in the business prior to the sale thereof to the defendant; that the plaintiffs paid such taxes pursuant to the demand; and that they are entitled to be reimbursed by the defendant for all sums of money so paid by them.

The defendant filed an answer and a cross-action. The answer consisted of a special exception, which, according to the record before us, was not presented to the trial court for a ruling thereon, a general denial, and the further defense that plaintiffs’ action is based upon an illegal agreement, and stems from an illegal activity between the parties, and, consequently, is void and unenforceable. The trial judge denied the defendant any recovery on his cross-action. The defendant, in this appeal, does not complain of that action by the trial court.

The only witnesses who testified at the trial were: the plaintiff M. E. Cassidy, Jr., the defendant Charles R. Hosack, and Bill Cross, a certified public accountant. The only other evidence consisted of three letters from the defendant to the plaintiff Charles Mayes and a copy of the 1969 Partnership Income Tax Return for the Marine Club.

Cassidy testified that he and Charles Mayes owned and operated the Marine Club as a partnership business until on or about September 1, 1969, when the defendant bought into the partnership and became an equal partner therein, with equal right to share in the profits and equal liability for losses; that on or about April 10, 1970, the plaintiffs sold their interest in the business to the defendant for the sum of Three Thousand ($3,000) Dollars cash to each of them and the assumption by the defendant of all outstanding liabilities, including, specifically, all taxes (withholding and social security taxes) due the IRS which had accrued during the last quarter of 1969 and the first quarter of 1970; that the defendant, following the sale of the business, went into possession of all assets of said business as owner thereof, and thereafter operated the business as a sole proprietorship; that the defendant did not pay the taxes which were due and owing the IRS, which had been assumed by him; that as a result of such failure and pursuant to a demand made on him by the IRS, he (Cassidy), because of his being a partner in the business at the time such taxes accrued, was required to pay and did pay such taxes; that he demanded that the defendant reimburse him for the money so paid to the IRS by him but that the defendant refused to do so.

Bill Cross, a certified public accountant, testified that he knew that the defendant and the plaintiffs had formed a partnership sometime in September, 1969. He also stated that the defendant told him he was a partner with the plaintiffs in the Marine Club. He further testified that he prepared a partnership tax return for the partnership for the year 1969; and that the partnership was then composed of the plaintiffs and the defendant.

The defendant denied that he was ever a partner with the plaintiffs, but stated that he was an investor in the business. He stated that he made a personal loan to Mayes in the amount of Five Thousand ($5,000) Dollars, but that the check for the said sum of Five Thousand ($5,000) Dollars, was made payable to the “Marine Club” at the request of Mayes. He further stated that because of such advancement and loan, he considered himself to be an investor in the business. He wrote a letter to Mayes on October 24, 1970 and stated therein that he wanted to withdraw from “our partnership at the Marine Club”. In another letter to Mayes, dated September 16, 1970, the defendant, with reference to the taxes owed to IRS, said:

“I cannot pay the attached, even though I agreed to assume all debts and liabilities (obligations) of the club and restaurant when you and Cassidy got out . . .”

The trial judge made findings of fact. He found, in summary: 1) the defendant purchased a one-third interest in the partnership business (Marine Club) from the plaintiffs in September, 1969, became a partner in the business, and remained a partner therein until April 10, 1970, when he “purchased the partnership interest of each of the plaintiffs in said business, and thereafter became the sole owner of the business”; 2) as part of the consideration for the sale and purchase, the defendant “agreed to assume all obligations and liabilities owed by said business and said partnership incurred or arising by reason of the operation of said business, including all taxes due and owing and which would thereafter accrue”; 3) at the time of the purchase by the defendant of the partnership interest of the plaintiffs in the Marine Club, taxes were due and owing to the IRS, which defendant agreed to assume and pay as a part of the consideration of the purchase price of said business; 4) the plaintiffs and the defendant were jointly and severally liable to the IRS for the sum of $8,217.40 for accrued taxes, interest and penalty owed by the Marine Club; 5) the IRS demanded payment of the plaintiffs and the defendant of the said sum of $8,217.40; 6) Cassidy, following such demand paid IRS the said sum of $8,217.40, made demand upon defendant for reimbursement thereof, but defendant refused to do so.

The trial court concluded: 1) the defendant is indebted to Cassidy in the sum of $8,217.40, together with interest thereon from date of payment by Cassidy to the IRS of said amount of money, and Cassidy is entitled to judgment against the defendant for said amount of money, together with interest thereon from date of payment; 2) the defendant is not entitled to any offsets.

The defendant’s first point of error reads as follows:

“The trial Court erred in rendering judgment for Appellees because such judgment was not supported by sufficient evidence or by a preponderance of the evidence.”

The point does not comply with Rule 418, T.R.C.P., which requires that points of error direct the attention of the appellate court to the error relied upon by the appellant. The point, as written, is too general to be entitled to consideration by this Court. McWilliams v. Muse, 157 Tex. 109, 300 S.W.2d 643 (1957); Pleasant Grove Builders, Inc. v. Phillips, 355 S.W.2d 818 (Tex.Civ.App.—Dallas 1962, writ ref’d n. r. e.). The point is overruled.

The defendant’s second point of error reads as follows:

“The trial Court erred in rendering judgment because the evidence was insufficient to establish a parol agreement between Appellant and Appellees.”

The point, standing alone, does not identify the “parol agreement” about which complaint is made, and in that respect is too indefinite to direct our attention to the particular error asserted. The defendant’s brief does not contain a “statement”, but does contain an “authorities and argument” section, which we look to in an attempt to determine with some degree of certainty the nature and real basis for the point. The opening paragraph of the “authorities and argument” part of the brief under the point reads:

“This point is directed towards the findings of the court that Appellant entered into an agreement of partnership and also that Appellant entered into an agreement to purchase the business and assume liabilities including taxes. (Findings of fact, paragraph 3, 5, 6). Each of such alleged agreements were parol. The alleged partnership agreement will be considered first.”

Even indulging the most liberal construction of the briefing rules in favor of the sufficiency of the point, we must hold that the point is not entitled to consideration because it is clearly multifarious. It embraces more than one specific ■ ground of error, and attacks more than one separate and distinct finding of fact by the trial court. Rule 418, T.R.C.P.; Barber v. Corpus Christi Bank & Trust, 506 S.W.2d 254 (Tex.Civ.App.—Corpus Christi 1974, no writ); City of Shamrock v. Hrnciar, 453 S.W.2d 898 (Tex.Civ.App.—Eastland 1970, writ ref’d n. r. e.); Johnson-Sampson Construction Co., Inc. v. W & W Waterproofing Co., 274 S.W.2d 926 (Tex.Civ.App.—Amarillo 1953, writ ref’d n. r. e.).

However, if the point were not to be considered multifarious, a careful examination of the evidence in connection with the two parol agreements encompassed by the point fails to reveal reversible error. There are other reasons why the point must be overruled.

The record will not permit the defendant to attack the finding that a partnership between the plaintiffs and the defendant was created by a “parol agreement”. Plaintiffs alleged that a partnership was created by agreement on September 1,1969, whereby the defendant “became a partner with plaintiffs in the ownership and operation of the Marine Club, making an agreed contribution to the capital account of said partnership”. The defendant did not file a sworn denial of plaintiffs’ allegations of partnership, as required by Rule 93(f), T.R.C.P. Therefore, in that state of the record, the fact of partnership was admitted in the trial court and cannot be challenged on appeal. Howell v. Bow-den, 368 S.W.2d 842 (Tex.Civ.App.—Dallas 1963, writ ref’d n. r. e.); Coulson v. Alvis Auto Rentals, Inc., 352 S.W.2d 849 (Tex.Civ.App.—Fort Worth 1961, writ ref’d n. r. e.).

Concerning the finding that defendant, in the sale and purchase of the business, agreed to assume all obligations owing by the business, including the accrued taxes due the IRS, there is a conflict in the testimony of the plaintiff Cassidy with that of the defendant. The trial judge resolved that conflict in favor of Cassidy and against the defendant. See Hall v. Villarreal Development Corporation, 517 S.W.2d 326 (Tex.Civ.App.—Corpus Christi 1974, writ dism’d); Royal v. Cameron, 382 S.W.2d 335 (Tex.Civ.App.—Tyler 1964, writ ref’d n. r. e.); United States Fidelity & Guaranty Co. v. Carr, 242 S.W.2d 224 (Tex.Civ.App.—San Antonio 1951, writ ref’d); Ohlen v. Hagar, 212 S.W.2d 253 (Tex.Civ.App.—Fort Worth 1948, writ ref’d, n. r. e.).

Point two is overruled.

The defendant, in points three and four, asserts that the trial court erred in rendering judgment for Cassidy because the cause of action alleged by plaintiff “was based upon an illegal contract” and “the parties were engaged in an illegal activity at the time of any alleged agreements”. The points have no merit.

The defendant claims that the use of the liquor license that was issued in the names of the plaintiffs at all times pertinent to this appeal constituted a violation of Tex. Penal Code Ann. art. 666-1 et seq. (1974), which rendered all agreements invalid and unenforceable as a matter of law. We do not agree. The plaintiffs did not allege any fact that would constitute an action to recover “upon an illegal contract”, as claimed in point three.

While the evidence shows that the liquor license was in the names of the plaintiffs only during all of the time that the Marine Club was operated as a going business, there is also evidence of probative value that at the time of the sale to the defendant, it was specifically discussed that the defendant would acquire his own liquor license. What was sold were the assets of the business. The liquor license was not transferable under Tex.Penal Code Ann. art. 666-1 et seq. (1974). No attempt was made to transfer such a license to the defendant as part of the sale. A contract is not rendered illegal simply because in carrying it out illegal acts are committed. Erminger v. Daniel, 185 S.W.2d 148 (Tex.Civ.App.—San Antonio 1945, writ ref’d. w. o. m.). The fact that the defendant may have operated the business after he purchased it under the liquor license that was then outstanding in the names of the plaintiffs did not render the contract, legal when made, illegal because of the defendant’s actions. The contract upon which the plaintiffs sued, as alleged in the petition, must be held to be valid, not illegal. See Lewis v. Davis, 145 Tex. 468, 199 S.W.2d 146 (1947). Points three and four are overruled.

As between the IRS and the plaintiffs, who held the taxpayer’s identification number in their names, the IRS looked to the plaintiffs for the payment of all withholding and FICA taxes that became due as long as such identification number was outstanding and remained unchanged. However, that fact did not alter or affect the agreement between the plaintiffs and the defendant in which the defendant assumed and agreed to pay taxes due and owing to the IRS which had accrued to the date of sale (April 10, 1970). The IRS had a legal right to insist that such taxes be paid by the plaintiffs and the defendant. The testimony of Cassidy, who stated that the IRS made a demand on him for the payment of such taxes, and that he paid the same in the several amounts specified, was sufficient to prove the amount paid by him. Under the circumstances, Cassidy was not required to present a receipt from the IRS as the best evidence of his payment of such taxes. The plaintiff Cassidy had personal knowledge of that fact. His testimony constitutes original evidence that he paid the taxes to IRS following the demand made on him. See 23 Tex.Jur.2d, Evidence, § 223. Cassidy was not a volunteer, and did not sue the defendant for recovery of the amount of money paid by him to the IRS under any theory of subrogation. Points five, six and seven are overruled.

We have carefully considered all of the remaining points of error brought forward in this appeal by the defendant. None present reversible error. All are overruled.

The judgment of the trial court is AFFIRMED.


author: JAMES, Justice.

text:
    SAFEWAY STORES, INC., Appellant, v. Eva LECK et vir., Gus Leek, Appellees.
    No. 5647.
    Court of Civil Appeals of Texas, Waco.
    Nov. 4, 1976.
    Rehearing Denied Nov. 18, 1976.

      John F. Green, Jr., McBryde, Bogle & Green, Fort Worth, for appellant.
    Robert J. Wilson, Burleson, for appellees.
   OPINION

JAMES, Justice.

This is a slip and fall case. Plaintiff-Ap-pellees Eva Leek and husband Gus Leek brought this suit against Defendant-Appellant Safeway Stores, Inc. and Defendant Jim Sullivan (Safeway’s store manager) to recover damages for personal injuries sustained by Eva Leek growing out of an accident which occurred in Appellant’s store in Cleburne, Texas, on October 16, 1973, on which occasion Eva Leek slipped and fell on a foreign substance, to wit, produce trimmings which were on the floor in an aisle of the Appellant’s store. The case was tried to a jury which rendered a verdict in favor of Plaintiff-Appellees Leek and against Defendant-Appellant Safeway. The verdict awarded the Leeks damages in the total amount of $20,040.00. Pursuant to the jury’s verdict, the trial court entered judgment in favor of the Leeks against Safeway for the amount of damages found by the jury, but the judgment decreed that the Leeks take nothing against the Defendant Jim Sullivan. From this judgment, Safeway appeals on eighteen points of error. We overrule all of Appellant’s points of error and affirm the trial court’s judgment.

By its verdict in answer to the following numbered special issues the jury found:

(1) On the occasion in question there were produce trimmings on the floor in the aisle in the store;

(1A) Such produce trimmings on the floor in the aisle was a dangerous condition;

(2) Eva Leek fell in the aisle because of produce trimmings on the floor;

(3) The fall caused personal injuries to Eva Leek;

(4) An employee of Safeway caused the produce trimmings to be on the floor in the aisle;

(5) Such action was negligence;

(6) And a proximate cause of the personal injuries of Eva Leek;

(7) The employees of Safeway failed to warn Eva Leek of produce trimmings in the aisle in question;

(8) Such failure to warn was negligence;

(9) And a proximate cause of the personal injuries to Eva Leek;

(10) On the occasion in question employees of Safeway failed to make a proper inspection of the aisle in question;

(11) Such failure was negligence;

(12) And a proximate cause of the personal injuries of Eva Leek;

(13) The jury failed to find that Eva Leek failed to keep a proper lookout;

(14) No answer made to this proximate cause issue, and none necessary in view of the jury’s failure to find as above indicated in response to Issue No. 13;

(15) The jury found that Eva Leek failed to discover and appreciate any danger which existed in the aisle on the occasion in question; but

(16) Failed to find that such failure was negligence; and

(17) No answer made to this proximate cause issue and none necessary in view of the jury’s failure to find as above indicated in response to Issue No. 16.

In answer to Issues Numbers 18 and 19 the jury found damages in the total amount of $20,040.00.

By its first point of error Appellant asserts that the evidence conclusively shows that the produce trimmings upon which Eva Leek slipped and fell were as a matter of law so open and obvious that she was charged in law with knowledge and appreciation of whatever dangerous condition existed with respect to the floor, and consequently Appellant Safeway owed no duty to warn her or protect her with respect to the floor’s condition. We do not agree, and therefore overrule this point and contention.

Eva Leek was 69 years of age at the time of trial, and was a housewife. Her husband, Gus Leek, was seventy years of age, and was a retired taxicab driver. Prior to the occasion in question, Mrs. Leek had shopped in this particular Safeway store many times, and was well familiar with the general arrangement of same. At about 5 P.M. on Tuesday, October 16, 1973, she went to this Safeway store to purchase groceries. The store faces south. Mrs. Leek entered the store at an entrance near the east end of the front of the store. She got a pushcart and first went to the meat counter (which is along the east side of the store) and picked up some bacon. Then she picked up “something else” (she couldn’t remember what it was) and then got some eggs, and then entered aisle 4 from the back end of the store. The produce department is at the west end of the store, and the aisles are numbered beginning from the west end of the store toward the east. Aisle 4 then was the fourth aisle east of the produce department.

Mrs. Leek entered aisle 4 from the rear end of said aisle pushing the shopping pushcart ahead of her, and she had not proceeded down said aisle “over three or four feet” when she slipped and fell. She was a rather short person in height, and was looking for and trying to reach some merchandise on the second shelf from the top at or about the time she slipped and fell. Her feet went out from under her, causing her to land on her buttocks and the base of her back, thereby bringing about the personal injuries for which this suit was brought. She fell into and sat down in what appeared to her to be “garbage,” being “celery leaves off the end of celery and old beat up lettuce leaves” which were strewn “up and down the aisle there just like you would string something on the floor.” These produce trimmings were in aisle four beginning about three feet from the rear end of the aisle and scattered along the floor of this aisle some six to eight feet. The testimony is undisputed that the substance on the floor consisted of produce trimmings of celery and lettuce, and were not the type of materials that would be or were displayed or offered for sale by the store.

Appellant contends that these produce trimmings on the floor of aisle four were so open and obvious that Mrs. Leek was charged in law with knowledge and appreciation of the dangerous condition, so that Safeway owed her no duty to warn her or protect her from such condition of the floor. We do not agree. In the first place, aisle four was four aisles over from the produce department, and Mrs. Leek had no reason to believe or foresee that produce trimmings would be on the floor of aisle four. Mrs. Leek was a regular customer in this store and familiar with its arrangement. Secondly, she had just turned the corner into aisle four a distance of three or four feet when she slipped and fell, and at the time as she moved along, she was looking at merchandise that she wanted to buy which was located on an upper shelf, as she had a right to do. Thirdly, she was pushing the shopping cart ahead of her with some groceries in it, in the manner contemplated that shoppers would do, which cart would at least partially obstruct her view of the floor ahead of her. In short, under this record we cannot say as a matter of law that the produce trimmings were so open and obvious that Mrs. Leek was charged in law with knowledge and appreciation of the dangerous condition, and that Safeway owed her no duty to warn or protect her. See Adam Dante Corporation v. Sharpe (Tex.1972) 483 S.W.2d 452.

Appellant further contends that there is no evidence, and insufficient evidence to support the jury’s finding in answer to Special Issue No. 4, wherein the jury found that an employee of Safeway caused the produce trimmings to be on the floor of the aisle. We overrule these contentions.

Safeway had well-defined procedures in handling produce as follows: Produce was brought into the store from the rear of the store to the back room where it is prepared for sale display. The back room is separated from the main store area by a solid wall. The back room is located directly behind aisles one and two. The door that comes out of the back room into the main store area is directly in line with and at the rear end of aisle three. Customers are not allowed in the back room. Employees of Safeway cut the ends off the stalks of celery and take the bruised or otherwise inedible leaves of lettuce off the heads of lettuce and customarily put these produce trimmings into a grinder called a “gar-bal,” whereby the trimmings are disposed of. In other words, Safeway had a policy of disposing of produce trimmings as soon as they were created or acquired. When produce had been cut and trimmed, it was carried by employees through the door near aisle three and put on display in the produce department on the westernmost aisle of the store. At times when a customer at one of the checkout stands wanted one or more items of produce which were not on display, an employee would go into the backroom and get the desired item or items and bring them from the back room up to such checkout stand located in the front part of the store.

The produce trimmings on the floor of aisle four were obviously not saleable items which a customer might have dropped out of his shopping cart. The produce trimmings had to come from the back room, where customers or people other than employees were not allowed to enter, and not allowed to carry off produce trimmings. It is reasonable to assume and infer from these physical facts that the person who “caused the produce trimmings to be on the floor in the aisle” had to be someone employed by Safeway. That is to say, only the employees of Safeway exercised control over these produce trimmings and only they could have taken a different course of action which resulted in the produce trimmings being located on the floor of aisle four. In our opinion, the evidence is both legally and factually sufficient to support the jury’s finding in answer to Special Issue No. 4 that an employee of Safeway caused the produce trimmings to be on the floor in aisle four.

Moreover, the evidence is both legally and factually sufficient to support the jury’s finding in answer to special issue No. 5, wherein the jury found that the Appellant’s employee “causing the produce trimmings to be on the floor of the aisle,” was negligence. The evidence shows that all of Appellant’s employees were instructed- to check the aisles for debris during store business hours, and that any debris should be immediately removed from the aisle floor. Manifestly, the Appellant and its employees understood that any debris in the aisles created a hazardous situation and dangerous condition to the customers, and that such debris should be immediately removed because of the strong likelihood that an unsuspecting customer would step upon and slip and fall upon the debris and thereby cause bodily injury. The occupier of premises has a duty to use ordinary care to keep his premises in a safe condition for his invitees, or to warn of the hazard. Weingarten Inc. v. Razey (Tex.1968) 426 S.W.2d 538. Our Supreme Court has held that “the ordinary invitee can presume that the premises are safe and it is not his duty to search the things offered for defects.” Blanks v. Southland Hotel (Tex.1950) 149 Tex. 139, 229 S.W.2d 357.

Appellant’s remaining points complain of the legal and factual sufficiency of the evidence to support the jury’s findings in answer to special issues Nos. 8, 9, 10, 11, and 12, and of the factual sufficiency of the evidence to support the jury’s failure to make findings in answer to Special Issues Nos. 13 and 16. We have carefully considered these points in the light of the entire record before us, and overrule said points as being without merit.

All of Appellant’s points and contentions are overruled. Judgment of the trial court is affirmed. ¶

AFFIRMED.


author: JAMES, Justice. HALL, Justice,

text:
    Edward E. MACARUSO, Appellant, v. REPUBLIC NATIONAL BANK, Trustee for TI Employees Universal Profit Sharing Trust, Appellee.
    No. 5584.
    Court of Civil Appeals of Texas, Waco.
    Nov. 4, 1976.
    Rehearing Denied Nov. 24, 1976.
    Craig Penfold, Dallas, for appellant.
    David R. MeAtee, R. Clarke Heidrick, Jr., Thompson, Knight, Simmons & Bullion, Dallas, for appellee.
   OPINION

JAMES, Justice.

This is a summary judgment case. The trial court granted a summary judgment in favor of Defendant-Appellee Republic National Bank, Trustee for TI Employees Universal Profit Sharing Trust (hereinafter called “the Trust”) by holding that Plaintiff-Appellant Edward E. Macaruso take nothing, from which Macaruso appeals. We reverse and remand.

Macaruso brought this suit against the Trust for actual and exemplary damages for conversion of 61 shares of stock. He alleged that he had been employed by Texas Instruments, Incorporated, for some 14 years, to wit, beginning September 19,1960, and terminating December 15, 1974; that during his employment he participated in a profit sharing plan with his employer whereby he accumulated 149 shares of stock in Texas Instruments, Inc. plus $200.44 in money at the time of his retirement; that at the time of his retirement the stock was worth $64.75 per share. He further alleged that the Trust wrongfully issued to his former wife, Marian Macaruso, 61 shares of his said stock plus $19.75 cash, “contrary and in violation of the terms of the TI Employees Universal Sharing Trust_as well as Defendant’s contractual obligations to Plaintiff.” He further alleged that since the date of the alleged conversion of December 15,1974, the stock has risen in value to 104⅛ as of April 25,1975; that “Defendant and its agents were duly notified that Plaintiff did not consent to the issuance of 61 shares of his Texas Instruments, Inc. stock and $19.75 of his money to Marian Macaruso. Nonetheless, Defendant proceeded to and did issue to Marian Macaruso some 61 shares of stock and $19.75 in cash contrary and in violation of the terms of the contractual relationship between Plaintiff and Defendant.” For all of this Plaintiff sued for actual and exemplary damages.

Republic National Bank, as Trustee for the Trust, filed a motion for summary judgment, alleging that the consent divorce decree (hereinafter described) between Maca-ruso and his former wife, Marian Macaruso, “operated to divest the Plaintiff of all right, title, and interest in the shares and money paid by the Defendant to his former wife, Marian Macaruso.” The Defendant, for summary judgment proof, relied upon: (1) Plaintiff’s Original Petition, (2) Defendant’s Original Answer, and (3) a certified copy of the Macaruso Divorce Decree.

The divorce decree in question is dated June 24, 1974, and contains the following recitations:

“It is, therefore, ordered that the community property owned by the parties shall be divided as follows:

“1. The home of the parties_will be sold. Upon the sale of said home, the Respondent (wife) will receive one half (½) of the equity value of the home. Upon the sale of the home, the Respondent will also receive twenty five (25%) per cent of the value of Petitioner’s profit sharing account at Texas Instruments in the amount of Four Thousand ($4000.00) Dollars to be paid by the husband from his one half (½) of the equity when the home is sold.” (emphasis supplied).

“2. Twenty five (25%) per cent of the Petitioner’s (husband’s) profit sharing account at Texas Instruments in the amount of Four Thousand ($4000.00) Dollars or thirty seven (37) shares, whichever is the greater, will be paid to the Respondent (wife) at such time as the profit sharing account is payable to the Petitioner by the company rules on profit sharing.” (emphasis supplied).

According to Plaintiff’s Original Petition, which has been adopted by the Defendant and made a part of its summary judgment proof, the stock was worth the amount of $64.75 per share on December 15, 1974, same being the time it was payable to Plaintiff. Thirty-seven shares then were worth at that time $2395.75, an amount less than $4000.00. According to the above-quoted language of the divorce decree, it appears that Mrs. Macaruso was entitled to $4000.00 since 37 shares were worth only $2395.75, a sum less than $4000.00.

What the Trust actually did on December 15, 1974, was to issue to Mrs. Macaruso 61 shares of Plaintiff’s stock plus $19.75, which at that time was worth in the aggregate $3969.50 or $30.50 short of $4000.00.

Plaintiff-Appellant Macaruso asserts error in entering the summary judgment against him because the summary judgment proof failed to establish as a matter of law that the divorce decree divested Plaintiff-Appellant of sixty-one shares of stock and $19.75 cash. We sustain this point of error and accordingly reverse and remand the cause for trial on the merits.

At the outset, let us say that the divorce decree is ambiguous because it is not clear in paragraph 2 hereinabove quoted as to whether this $4000.00 (or 37 shares) is to be paid by the husband to Mrs. Macaruso in the same manner as the $4000 was recited to be paid as provided in paragraph 1, or whether such $4000 (or 37 shares) was contemplated to be paid directly by the Trust to Mrs. Macaruso. In other words, does paragraph 2 operate so as to divest Plaintiff-Appellant of his title and interest in the shares and money (as Defendant-Appellee says) or does paragraph 2 create a personal debt as against Plaintiff-Appellant in favor of Mrs. Macaruso in the amount of $4000.00, payable as of the termination of Plaintiff’s employment (as Plaintiff-Appellant contends)?

If paragraph 2 of the divorce decree operated to divest Plaintiff of $4000.00 worth of stock, as the Trust contends, then Plaintiff-Appellant has no cause of action against the Trust for conversion, and the summary judgment is proper. On the other hand, if paragraph 2 created a personal debt against Mr. Macaruso in favor of Mrs. Macaruso for $4000.00 (since 37 shares were worth less than $4000.00), then Plaintiff had the right and option to pay his former wife $4000.00 in money and keep his stock, as he says he would have done, in which event the Trust converted 61 shares of Plaintiff’s stock. In his affidavit controverting Defendant’s motion for summary judgment, Plaintiff says: “It was our agreement that I would have the option of paying my wife $4000.00 or 37 shares of stock. I fully intended to pay Marian Macaruso the $4000.00 as per our agreement.” There is nothing in the agreed judgment which refutes or precludes such an agreement between Plaintiff and his former wife.

What we have here is a material fact issue presented as to whether Mr. and Mrs. Macaruso agreed at the time the consent divorce decree was entered that he would have the option of paying her $4000.00 or 37 shares of stock, which ever was the greater at the time of his employment termination.

In the event of ambiguity in an instrument, as here, which can be resolved only by reference to extrinsic evidence, summary judgment is improper. See Chapa v. Benavides Mill and Gin Co. (San Antonio Tex.Civ.App.1967), 420 S.W.2d 464, NRE; Robert v. E. C. Milstead Ranching, Inc. (Beaumont Tex.Civ.App.1971), 469 S.W.2d 429, NRE; Martin v. First State Bank, Memphis, Texas (Amarillo Tex.Civ.App.1973), 490 S.W.2d 208, no writ.

A summary judgment should be granted, and if granted should be affirmed, only if there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Rule 166-A, Texas Rules of Civil Procedure; Harrington v. Young Men’s Christian Assn, of Houston (Tex.1970), 452 S.W.2d 423.

In the case at bar, Defendant-Appellee has failed to meet its burden, and summary judgment is improper. We accordingly reverse the cause and remand same for trial on the merits.

REVERSED AND REMANDED.

HALL, Justice,

concurring.

I agree with the majority that the summary judgment must be reversed and the cause remanded, but for a different reason.

The summary judgment is based upon the construction of the divorce decree as providing for payment to Mrs. Macaruso of 37 shares of the profit sharing account or of whatever number of shares is of the value of $4,000. This construction is erroneous. It is not supported by the record. The divorce decree is not ambiguous. It explicitly provides (in the pertinent particulars) for payment to Mrs. Macaruso of $4,000 in money or 37 shares of the profit sharing account, whichever is the greater. It does not authorize nor support the delivery of 61 shares to Mrs. Macaruso by Texas Instruments.


author: SHANNON, Justice.

text:
    David R. TUCK, Appellant, v. TEXAS POWER AND LIGHT COMPANY, INC., et al., Appellees.
    No. 12468.
    Court of Civil Appeals of Texas, Austin.
    Nov. 10, 1976.
    Rehearing Denied Nov. 24, 1976.
    J. W. Thomas, Jr., Temple, for appellant.
    John B. Daniel, Jr., Daniel, Tarver & Secrest, Temple, Burford, Ryburn & Ford, Dallas, for Texas Power & Light Company, Inc.
    J. F. Skelton and W. E. Reeder, Barney L. Knight, City Atty., Temple, for City of Temple and David M. Bandy.
   SHANNON, Justice.

This is an appeal from the judgment of the district court of Bell County dismissing appellant’s lawsuit for want of jurisdiction. Appellant is David R. Tuck, a resident of the City of Temple. Appellees are Texas Power and Light Company, its president and district manager, and the City of Temple and its Board of Commissioners. We will affirm the judgment.

Appellant’s suit was an effort to “annul” a 1975 ordinance adopted by the Board of Commissioners which provided an electric rate increase. Appellant sought a declaration that the rates to be charged for electricity in Temple were excessive and unlawful. Appellant further sued for “reparations” to the extent those rates were excessive and unlawful. By his suit appellant purported to act individually and, in addition, to represent the class of persons who comprise the customers of the utility company in Temple.

In response to appellant’s petition, appel-lees filed, among other things, respective pleas to the jurisdiction. The district court granted those pleas and entered a judgment dismissing appellant’s suit. The judgment recited that appellant’s suit was dismissed for the reason that the court did not have jurisdiction of the subject matter and for the further reason that appellant had no justiciable right or interest in the subject matter of the suit.

At the outset, it is important to recognize that this is not a case wherein a utility consumer complains of discrimination in the charge made against him as compared to the charges made other such consumers. Likewise, this suit is not one filed by the utility against a municipality premised upon the allegation of an unreasonable rate structure.

The City of Temple is a home rule city pursuant to Tex.Const. Art. XI, § 5. As such, Temple has full power of self-government, that is, full authority to do anything the legislature theretofore could have authorized it to do. Lower Colorado River Authority v. City of San Marcos, 523 S.W.2d 641 (Tex.1975), Forwood v. City of Taylor, 147 Tex. 161, 214 S.W.2d 282 (1948).

Texas Rev.Civ.Stat.Ann. art. 1175(12) grants specific authority for home rule cities to fix and regulate utility rates. The Board of Commissioners exercised that authority by the enactment of the rate ordinance.

We will affirm the judgment upon the basis that appellant has no justiciable interest in the controversy. To have standing to maintain the suit, appellant must have had a justiciable interest in the controversy which was distinguishable from the public in general. Appellant did not plead any damage peculiar to himself and not in common with every electric utility user in Temple. Hazelwood v. City of Cooper, 87 S.W.2d 776 (Tex.Civ.App.1935, writ ref’d), Jenkins v. City of Cooper, 87 S.W.2d 778 (Tex.Civ.App.1935, writ ref’d). See also Schenker v. City of San Antonio, 369 S.W.2d 626 (Tex.Civ.App.1963, writ ref’d n. r. e.).

The judgment is affirmed.

Affirmed.

      . The Public Utility Regulatory Act, Tex.Rev.Civ.Stat.Ann. art. 1446c, is not applicable to this cause.


author: STERNBERG, Justice.

text:
    RESOURCE DEVELOPMENT CORPORATION et al., Appellants, v. The CAMPBELL COUNTY FISCAL COURT et al., Appellees.
    Supreme Court of Kentucky.
    June 25, 1976.
    Rehearing Denied Dec. 17, 1976.
    A. J. Jolly, Fort Thomas, for appellants.
    Paul H. Twehues, Jr., Newport, Leonard L. Kopowski, Cincinnati, Ohio, for appellees.
   STERNBERG, Justice.

This is a zoning action in which the Fiscal Court of Campbell County, Kentucky, denied the application of appellants for a zoning change from agriculture (A-l) to industrial (1-3). The Campbell Circuit Court affirmed the action of the fiscal court; thus, this appeal.

Appellants’ application for a zoning change was submitted to the Northern Kentucky Area Planning Commission (hereinafter referred to as Area Planning Commission) for study and research (KRS 147A.080) and for a report to the Campbell County Planning and Zoning Commission (hereinafter referred to as Planning and Zoning Commission) (KRS 147A.090). A public hearing was held by the Area Planning Commission and a record of the pro-eeedings is retained in its office. This report, after setting forth facts upon which it relied for its conclusions, recommended that the zoning change be granted, subject to close control and scrutiny by the Planning and Zoning Commission.

On November 19, 1974, the Planning and Zoning Commission held a public evidentia-ry hearing on the application. Testimony was taken, transcribed, and filed with the commission. On November 24, 1974, after considerable and lengthy discussion and after having made detailed and lengthy findings of fact, the Planning and Zoning Commission agreed:

1. That the map amendment proposed by the applicants is in agreement with the community’s comprehensive plan;
2. That the original zoning classification given the property was proper and appropriate, and
3. That the zoning of the property requested by the applicants be changed from agriculture (A-l) to industrial mining (1-3), subject to a restriction that would not permit open pit mining.

The fiscal court did not conduct a trial-type hearing, but on December 16, 1974, after considering the application, the reports and recommendations of the Area Planning Commission, the reports and recommendations of the Planning and Zoning Commission and the record of the proceedings which it held, and numerous letters and written protests which were received by the individual members of the fiscal court, made findings of its own which were •contrary to the findings of both the Area Planning Commission and the Planning and Zoning Commission. It denied the application.

The witnesses for the applicants are experts in the field of civil engineering and environmental control. Mr. John Steele, President of the appellant corporation, described the method proposed to be used in carrying out its operation. Its capital investment would be in excess of $30 million. It would furnish employment to between 100 and 150 employees. The only surface mining would be the removal of the clay and overburden in the area of the mine shaft. Most of the mining would be underground. The need for this type of limestone is for use in construction work, in making steel, in water processing and treatment, in purification of sewage disposal plants, in the control of fuelburning pollutants, in the manufacturing of cement, and in the manufacturing of lightweight aggregate. Mr. Ib Jensen, President of Industrial Engineering for the Centennial Engineering Company, of Denver, Colorado, also testified. His testimony demonstrates that the mining of limestone, as proposed by applicants, would have no visible deleterious effect on the area but, on the contrary, would add to the economy. Dr. Sanford Horstman, Assistant Professor of Environmental Health at the University of Cincinnati Medical College, made a study of applicants’ plans for the control of air pollution. He told of the emission of dust, the potential for water pollution, and the noise emission from plant operation. He explained in detail the modern and adequate controls which the applicants proposed to use in the operation of their plant, and stated that this operation would be in keeping with all good and proper standards of operation and would not seriously damage the area or anyone living in the immediate vicinity. These were the only persons to testify for appellants.

Three persons testified in opposition to the application. Mr. George Geisen, who has resided in the area for 12 years, objected to applicants’ plans. His objections were speculative and based on his experience with other mining in the general vicinity. Mr. John Ebert, President of Camp Sunshine, also testified in opposition. He described Camp Sunshine, which is maintained for the underprivileged youth in the area, and expressed fear for the safety of the youngsters in the camp and under his supervision. Camp Sunshine adjoins the subject properties. Mr. Samuel Martin protested and read an article which appeared in the local newspaper.

In addition to the record of the hearings, the fiscal court members had received many letters and petitions of protest.

On this appeal the appellants present and argue five issues; however, by reason of the disposition that is being made of this action, it is necessary that we discuss only one of them, to-wit:

“Was there substantial evidence before the Fiscal Court to sustain Appellees position and support its order denying Appellants request to place the subject land in a special mining district?”

In appellants’ brief it is written:

“ * * * An examination of the findings of fact made by the Fiscal Court upon this evidence clearly indicates that the Court acted not upon substantial evidence as is required under Kentucky law, but merely upon the petitions of objecting residents.”

In the brief of the Campbell County Fiscal Court, in making reference to the letters and petitions of protest which were received by the members of the fiscal court, it is stated:

“ * * * They did not control the action of the fiscal court; they did not deny appellant its right of due process; and they certainly did not make the decision of the fiscal court to refuse the zone change an arbitrary exercise of power.”

The statement of policy filed by the Campbell County Fiscal Court with its resolution denying the application states, among other things, as follows:

“The Court also must give weight to the position of the people of the county. Here, the Court has been flooded by a multitude of petitions opposing the change. It should be noted here that the councils of the two communities oppose the change and also the people in the surrounding vicinity almost unanimously oppose the change.
All must realize that the Fiscal Court members are the duly elected representatives of the people and in functioning as such must reflect the sentiment and desires of the general public who reside in the county. The Court therefore must give great weight to the people’s position in balancing the scales of justice in this issue and determine that the zone change must be denied.”

The resolution of the fiscal court contains, among other things, the following:

“WHEREAS, the members of this Fiscal Court have reviewed the minutes, findings of fact and recommendation of the Planning and Zoning Commission as well as the applicant’s transcript and exhibits introduced by the applicant and opponents; and
WHEREAS, a multitude of petitions opposing such zone change have been filed with the members of the Fiscal Court; and
8. The vast majority (it’s almost unanimous) of the property owners and residents of the area, including the two communities, have filed petitions with the Court opposing the requested zone change.”

Since the decision of the fiscal court was simply a refusal to rezone, the problem is whether the evidence shows a compelling need for the rezoning sought or clearly demonstrates that the existing zoning classification is no longer appropriate. City of Louisville v. McDonald, Ky., 470 S.W.2d 173; City of Bowling Green v. Hunt, Ky., 516 S.W.2d 647. However, the evidence must come as a result of a due process hearing. It is pointed out in City of Louisville v. McDonald, supra:

“If the zoning commission conducts a trial-type due process hearing and based thereon makes factual findings and a recommendation, the legislative body may follow the commission’s recommendation without a hearing or only an argument-type of hearing. The record made before the commission must adequately reflect the elements necessary for judicial review to determine whether the ultimate action was arbitrary. The legislative body may review the record made before the commission and determine from that evidence adjudicative facts which differ from those found by the commission. Again, in this event, the record made before the commission must reveal the proper elements to be considered on judicial review. The legislative body also may hold its own trial-type hearing and may find as a result thereof different adjudicative facts than those found by the commission. * * * ”

In the case at bar, since the legislative body did not conduct a trial-type hearing, it was limited to the evidence produced at the due process trial-type hearing held by the Planning and Zoning Commission. The full proceeding before the Planning and Zoning Commission was submitted to the fiscal court, and it could have acted upon that record or it could have conducted a due process trial-type hearing of its own as described in City of Louisville v. McDonald, supra, and reiterated in Caller v. Ison, Ky., 508 S.W.2d 776, which it did not do.

In Fiscal Court of Jefferson County v. Stallings, Ky., 515 S.W.2d 234, which was a zoning case, the circuit court, on appeal, permitted the filing of additional exhibits and the taking of a deposition. In the determination of the issue the chancellor considered the newly introduced evidence along with other evidence in the record. On appeal to this court, it is pointed out in the opinion, to-wit:

“ * * * The circuit court was not at liberty to consider additional exhibits and evidence in the absence of a claim of fraud or misconduct on the part of the fiscal court or its individual members.”

In the case at bar the fiscal court was not at liberty to consider the additional exhibits which took the form of letters and written petitions of protest which it received and which appellants were not afforded the opportunity to rebut.

The judgment is reversed with directions that the fiscal court either consider and determine the application in light of the competent evidence submitted to it as a result of the hearing held by the Planning and Zoning Commission or, in the alternative, hold a due process trial-type hearing of its own.

All concur.


author: DOWD, Judge.

text:
    STATE ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Respondent, v. THELNOR, INC., et al., on exceptions of Leah Obin, et al., Defendants, Southern Commercial & Savings Bank, Defendant-Appellant.
    No. 36691.
    Missouri Court of Appeals, St. Louis District, Division Two.
    July 27, 1976.
    Motion for Rehearing and for Transfer to Supreme Court Denied Nov. 12, 1976.
    Application to Transfer Denied Dec. 13, 1976.

      Greensfelder, Hemker, Wiese, Gale & Chappelow, John J. Bahnak, Jr., St. Louis, for defendant-appellant.
    Donald L. Spry, St. Louis, Bruce A. Ring, Chief Counsel, Jefferson City, for plaintiff-respondent.
   DOWD, Judge.

In this second appeal arising out of condemnation proceedings, defendant-Southern Commercial Bank (formerly Southern Commercial and Savings Bank) challenges a summary judgment rendered against it. Because the facts in this matter are complicated and crucial to our ruling, we state them in some detail.

On November 14, 1964, pursuant to condemnation proceedings initiated by the State Highway Commission, the circuit court condemned certain property located along Lindbergh Boulevard. The court appointed commissioners to prepare a report and make an award for the taking.

The property in question was owned by R. W. Stuckenberg Real Estate Co. (hereinafter referred to as Stuckenberg) and was encumbered by a deed of trust held by Southern Commercial and Savings Bank (hereinafter referred to as Southern) as as-signee of Dorothy Durning. The deed of trust provided: “Any amounts awarded in condemnation proceedings or taking the property herein described or any part thereof, shall be paid to [Dorothy Durning], to be applied on the indebtedness hereby secured.” The encumbrance on the property secured a loan made to Hazel Morin. As of November 14, 1964, both Stuckenberg and Southern were defendants in the condemnation proceeding.

The commissioners’ report, filed January 4, 1965, found that the value of property taken by the condemnor was $14,500.00. Both the State Highway Commission and Stuckenberg excepted to the award later in January.

On January 14, 1965, the State Highway Commission deposited $14,500.00 in the court registry. The lower court conducted an ex parte proceeding on February 5,1965, in which Stuckenberg alone applied for and received a payout order for part of the deposit. A check for $13,825.00 was issued to Stuckenberg as payee and withdrawn from the court registry on February 13, 1965. Three days later, on February 16th, Southern was notified of the commissioners’ award.

As the respondent — State Highway Commission noted in its brief, the payout order issued by the trial court was an “irregularity” under the law in effect on February 5, 1965. The trial court should not have permitted the commissioners’ award to be withdrawn solely by Stuckenberg because rival claims, Stuckenberg’s and Southern’s, existed as to the award. State ex rel. State Highway Commission v. Mahon, 350 S.W.2d 111, 114 (Mo.App.1961). Indeed, if the payout order had directed payment of the commissioners’ award to both Stuckenberg and Southern, the condemnor would have a clear claim against Southern for any reductions in the condemnation award, and much of the litigation in the ease could have been averted.

The transactions between Stuckenberg and Southern on March 3, 1965, form the core of the controversy between Southern and the State Highway Commission. On this date, Stuckenberg deposited the award check for $13,825.00 in Stuckenberg’s cheeking account at Southern. The check was endorsed with a stamp reading:

Pay to the order of Southern Commercial & Savings Bank R. W. Stuckenberg Co.

Thereafter, $14,059.77 was withdrawn from Stuckenberg’s checking account at Southern and was applied to reduce a loan made by Southern to Edward J. Diehl, a straw party for Stuckenberg. This loan was unrelated to the condemnation proceedings.

The exceptions to the commissioners’ award came to trial on March 15, 1971. Prior to this date, Stuckenberg had gone through bankruptcy and out of business. However, Southern entered an appearance. A jury found that the value of the property condemned was $8,900.00. The court entered judgment against the defendants, one of whom was Southern, for the difference between the commissioners’ and the jury’s valuation, $5,600.00.

Southern appealed the judgment. In the prior appeal, we affirmed the jury verdict which valued the property condemned at $8,900.00. However, we reversed and remanded that part of the judgment imposing liability on Southern for $5,600.00. We ordered a retrial to determine “the amount of the award, if any, paid to or received by defendant bank and recovery, if any, limited to the percentage established by that payment.” State ex rel. State Highway Commission v. Thelnor, Inc., 485 S.W.2d 443, 446 (Mo.App.1972).

In proceedings before the trial court, both parties moved the court to grant summary judgment in their favor. On October 28, 1974, the trial court entered a summary judgment in favor of the State Highway Commission against Southern for $5,600.00 together with interest thereon at 6% per annum from February 5, 1966, the date on which Stuckenberg obtained the payout order. Southern has again appealed.

The question presented by this appeal is whether the trial court complied with the mandate of State ex rel. State Highway Commission v. Thelnor, supra, by entering summary judgment against Southern. We note that Southern filed no affidavits or other verified denials in opposition to the State Highway Commission’s motion for summary judgment. Consequently, affidavits and exhibits filed by the State Highway Commission are deemed admitted. Sample’s Estate v. Travelers Indemnity Co., 492 S.W.2d 829, 833 (Mo.1973). No genuine issue of material fact is in dispute in this appeal. However, we must still determine whether the State Highway Commission is entitled to judgment as a matter of law. See Hall v. Hall, 506 S.W.2d 42,44 (Mo.App.1974). Review of a summary judgment is the equivalent of review of court tried or equity cases. We are obligated to determine whether the summary judgment is supported by sufficient evidence and, if necessary, to enter such judgment as the trial court ought to have given. Swink v. Swink, 367 S.W.2d 575, 578 (Mo.1963); Title Insurance Corp. of St. Louis v. U. S., 432 S.W.2d 787, 790 (Mo.App.1968).

Appellant’s first argument is that no portion of the commissioners’ award was paid to or received by Southern, therefore Southern is not obligated to return any portion of the $5,600.00 difference between the commissioners’ and the jury’s award. We agree with this contention.

Clearly, none of the commissioners’ award was paid to Southern. Stuckenberg alone requested the payout order, and a check in which Stuckenberg was named as sole payee was issued by and withdrawn from the court before Southern was notified of the commissioners’ award.

The question in dispute in this case is whether Southern received any of the commissioners’ award. Thus, we must determine whether any portion of the award paid to Stuckenberg can be traced to Southern. We find that Stuckenberg deposited its award cheek as a general deposit for collection and hold that any payment made to Southern from Stuckenberg’s account lost its character as the condemnation award.

Stuckenberg deposited its award check with the endorsement “Pay to the order of Southern Commercial & Savings Bank.” The endorsement was not restricted by words indicating that the check was deposited for collection only. The State Highway Commission argues that the endorsement employed by Stuckenberg specially endorsed the award check to Southern which became the new owner of the check. We disagree. Under the law in effect on the date the award check was deposited, Southern took the check as Stuckenberg’s agent for collection. Section 402.050 RSMo 1959 provides that, except as to subsequent holders of the item a bank takes an item for collection even though the item is endorsed by the depositor by special endorsement. As a general rule, therefore, if a bank takes a check for collection and credits the depositor’s account when settlement of the check becomes final, the depository bank does not receive the check as owner. If Southern merely collected the check and credited Stuckenberg’s account when settlement became final, no argument could be made that Southern received the award check.

However, the State Highway Commission argues that, because Stuckenberg withdrew money from its checking account and reduced a loan owed to Southern on the same day the award check was deposited, the bank received the award. The award could be traced to Southern if Stuckenberg withdrew its $13,825.00 award and paid this sum to Southern to reduce the loan secured by the deed of trust on the condemned property, but this was not the action taken by Stuckenberg. Stuckenberg violated the terms of the deed of trust and did not pay the condemnation award to Southern as the mortgagee of the condemned property. Instead, Stuckenberg withdrew $14,059.77 from his checking account and reduced another, independent debt held by Southern. Given these facts, Southern did not receive the commissioners’ award under the agreement with the mortgagor-eondemnee. The commissioners’ award can not be traced to Southern by virtue of payment under the terms of Southern’s deed of trust on the condemned property.

Absent payment of the commissioners’ award under the terms of the deed of trust, we are unable to trace the award through Stuckenberg’s checking account to Southern. It is not disputed that Stuckenberg paid $14,059.77 to Southern shortly after Stuckenberg deposited the award, but we can not characterize the payment as a payment of the award. When Stuckenberg deposited the award check as a general deposit, the award was commingled with Stuckenberg’s other funds on deposit and lost its character as a condemnation award. See In re Home Trust Co. of Fulton, 69 S.W.2d 312, 315-16, (Mo.App.1934) aff’d, 336 Mo. 239, 78 S.W.2d 445 (1934). The stamped endorsement on the award check did not indicate that the check was specially endorsed to Southern as mortgagee nor was the check personally presented to Southern as the mortgagee. Stuckenberg handled the check as it would handle any general deposit, without indication that the fund was to be segregated. Stuckenberg merely deposited the award check and another check in its checking account and then treated the fund as its own by withdrawing $14,059.77 to reduce a debt unrelated to the condemnation proceedings.

A bank is not responsible to third parties whose property is misappropriated by the bank’s depositor when the depositor makes a general deposit of the misappropriated fund and thereafter withdraws the fund. Leuzinger v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 396 S.W.2d 570, 579 (Mo.banc 1965). We do not believe the result should be otherwise merely because the depositor pays the withdrawn fund to a bank which acted as the depository bank. Stuckenberg could have made a general deposit of the award check at some other bank besides Southern. Indeed, Stucken-berg did deposit its second award check for $675.00 at a different bank. Had Stucken-berg deposited the award check in a checking account at a different bank in the same manner in which it deposited the check at Southern, neither the depository bank nor Southern, as recipient of a fund withdrawn from the other checking account, would be liable to third parties defrauded thereby. We see no reason to hold Southern liable on the sole ground that Stuckenberg chose to use Southern as its depository bank, a purely fortuitous circumstance.

Assuming arguendo that Southern had exercised its right of setoff against Stuckenberg’s checking account in order to reduce the loan not secured by the condemned property, we believe that Stucken-berg’s treatment of the award check as a general deposit would prohibit tracing the award to Southern. Under most circumstances, a bank may apply its customer’s deposits to reduce the customer’s indebtedness to the bank as it becomes due. This right grows out of the debtor-creditor relationship between a bank and its customer. Adelstein v. Jefferson Bank and Trust Co., 377 S.W.2d 247, 251 (Mo.1964). The bank’s right of setoff is not terminated upon showing that the depositor wrongfully obtained the fund deposited. Crider Bros. Commission Co. v. Farmers’ National Bank of Ludlow, 183 S.W. 648 (Mo.App.1916). In fact, the bank loses its right of setoff only if the bank has notice that a debtor-creditor relationship has not arisen by virtue of a deposit. Such notice exists if: (1) the depositor notifies the bank that the fund deposited belongs to a third party and that the bank is to pay the fund to the rightful owner, Crider Bros., supra; (2) the deposit is specially endorsed to a third party, Craig v. Bank of Granby, 210 Mo.App. 334, 238 S.W. 507 (1922); or (3) the bank knows that a fund is deposited by a fiduciary in trust for the benefit of a third party. Cassel v. Mercantile Trust Co., 393 S.W.2d 433 (Mo.1965). So long as the bank does not have knowledge that the fund deposited is not a general deposit, the bank can exercise its right of setoff. In the ease at bar, the transcript contains no evidence indicating that the bank knew that Stuckenberg’s deposit of the award check was not a general deposit. As pointed out, Stuckenberg handled the award check as one would handle any general deposit. Stuckenberg took no action to indicate to Southern that the award check was to be segregated for a special purpose or that the check belonged to a third party. Further, Stuckenberg did not deposit the condemnation award in trust. Parties to a condemnation proceeding are in a debtor-creditor, not a fiduciary, relationship. State ex rel. State Highway Commission v. Harris, 417 S.W.2d 29, 32 (Mo.App.1967). In summary, once Stucken-berg had made a general deposit of the award check, the award could be traced no further absent knowledge on the part of the bank that the deposit was not made as a general deposit. Southern had no such knowledge.

Since we have determined that Southern received none of the commissioners’ award, we need not reach the further issues raised on this appeal regarding apportionment of the refund owed the condemnor or interest due on the refund.

The summary judgment entered against Southern is not supported by sufficient evidence and is reversed. All material facts were before the trial court, and Southern was entitled to summary judgment in its favor. We order the trial court to enter judgment in accordance with this opinion.

CLEMENS, P. J., and STEWART, J., concur.

      . The court retained $675.00 for taxes on the condemned property.

      . On June 10, 1966, the court ordered that the remaining $675.00 of the deposit be paid to Stuckenberg. On June 13, 1966, a check for this sum was issued to Stuckenberg and was thereafter deposited at Southside National Bank.

      .The trial judge here was not the trial judge who had issued the payout order.

      . This case is not governed by the Uniform Commercial Code. The award check was deposited March 3, 1965, and the U.C.C. became effective on July 1, 1965. However, the U.C.C. provides that, regardless of the form of endorsement used, a depository bank takes an item for collection only, unless a contrary intent appears. § 400.4-201(1) RSMo 1969, Missouri Code Comment (1).

      . See Cockrell v. Moberly, 85 S.W.2d 185, 188-89 (Mo.App,1935) which notes the presumption in favor of finding a general deposit and indicates that, notwithstanding extrinsic evidence that a deposit is made for a special purpose, a deposit is general absent evidence that the deposit itself is made as a special deposit.


author: TURNAGE, Presiding Judge. PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Frank HARRELSON, Appellant.
    No. KCD 27834.
    Missouri Court of Appeals, Kansas City District.
    Aug. 2, 1976.
    Motion for Rehearing and/or Transfer Denied Oct. 12, 1976.
    Application to Transfer Denied Dec. 13, 1976.
    Austin F. Shute, Ronald J. Stites, Kansas City, for appellant.
    John C. Danforth, Atty. Gen., Nanette Laughrey, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   TURNAGE, Presiding Judge.

Frank Harrelson was convicted by a jury on two counts of possession of a controlled substance, Section 195.017, RSMo 1969, as amended by Laws 1971. The jury could not agree on the punishment, so the court imposed sentence at five years on each count to run concurrently.

On this appeal, Harrelson contends the search warrant by which the officers found a large quantity of marihuana and amphetamines in his dwelling was invalid because it was based on false affidavits and because of the refusal of the officers to reveal the identity of the informant upon whose information the officers based their affidavits. Finding Harrelson has waived these objections, the judgment is affirmed.

Pursuant to a search warrant, officers of the Independence, Missouri Police Department went to the dwelling of Harrelson. On being admitted by Harrelson, the officers found and seized a large quantity of marihuana and a number of amphetamine tablets.

On a pre-trial motion to suppress the search warrant, it was revealed the officers received information concerning the fact Harrelson was in possession of these controlled substances from an informer. On the hearing of this motion, Harrelson’s counsel sought to determine the identity of the informer but the court sustained the State’s objections to this line of questioning and ruled the officers did not have to reveal the name. The court overruled the motion to suppress.

At the trial, the State had a large number of packages containing marihuana and boxes containing the amphetamine tablets. While the State was having these items identified, Harrelson’s counsel interrupted. After being assured by the detective who was identifying the items that the grocery cart full of items were found at the Harrel-son dwelling, and that they contained marihuana and amphetamines, counsel stated: “We’ll stipulate everything into evidence as a quantity of marihuana and amphetamine tablets found by this officer.” The State proceeded, however, to have the items identified and when such items were then offered into evidence, Harrelson’s counsel stated: “Your Honor, an offer has been made of all these exhibits into evidence. We would stipulate all of them into evidence . . .” Counsel then objected to a set of scales, some empty plastic bags, a copy of the Physician’s Desk Book, and a writing tablet. The objection of these items was on the basis of relevancy and not on the basis of any objection to the search warrant.

During the course of the trial, the fact an informer had been involved was never mentioned and no effort was made on the part of Harrelson’s counsel to request the court to require the State to divulge the identity of such informer.

Not only did counsel stipulate all of the drugs seized in the search could be admitted into evidence, he further stipulated the items seized and introduced in evidence did in fact contain marihuana and amphetamines without the necessity of the State calling a chemist to prove their chemical composition. Again, the State preferred to call the chemist rather than rely on such stipulation.

It is beyond question in this State “that to keep alive the issue of the improper search and seizure, an objection must be made when the evidence is offered.” State v. Hunter, 530 S.W.2d 432, 433[1, 2] (Mo.App.1974). See also State v. Yowell, 513 S.W.2d 397 (Mo. banc 1974). Here Harrel-son not only failed to make any objection when the drugs were introduced into evidence, but affirmatively stated he would stipulate such drugs could be admitted. This brings this case squarely within the rule stated in Hunter that such action “constituted an express waiver of the contentions made in the motion to suppress and was a waiver of any error on the part of the trial court in refusing to suppress the evidence.” 530 S.W.2d 433.

In this case it must be held Harrel-son waived any objection he had to any error on the part of the court in overruling the motion to suppress when he affirmatively stipulated the drugs seized under the warrant could be admitted into evidence. This waiver extended as well to the action of the trial court in refusing to require the State to divulge the identity of the informer. That issue went only to the grounds for obtaining the warrant and was thus directed solely at the validity of the search warrant, thus the question of identity is not a viable issue.

Because the only grounds urged on this appeal were waived by stipulating the drugs seized under the warrant could be admitted in evidence, the judgment is affirmed.

All concur.

ON REHEARING

PER CURIAM.

Harrelson has filed a motion for rehearing, or in the alternative to transfer to the Supreme Court. In this motion he concedes the opinion correctly states that by stipulating the marihuana seized under the warrant could be received in evidence, he thereby waived all possible later objections to the court’s ruling on the motion to suppress.

However, Harrelson states for the first time in his motion for rehearing that his point on appeal was directed at the error of the court in overruling his motion for a new trial because he produced newly discovered evidence by way of the testimony of the informant which showed the affidavit of the officers to procure the warrant was false.

The opinion dealt with the only point raised by Harrelson in his brief and that was the warrant was issued on material inconsistencies and without probable cause. Those objections were waived by failure to object when the evidence seized was offered.

The argument that Harrelson is entitled to a new trial on the basis of newly discovered evidence is presented for the first time on the motion for rehearing. Matters presented for the first time on the motion for rehearing will not be considered, except for those which may be raised at any stage. 24A C.J.S. Criminal Law § 1830, p. 508 Rule 28.02.

The motion for rehearing or to transfer is overruled.