author: BARROW, Chief Justice.

text:
    Pedro C. SANCHEZ, Appellant, v. AETNA CASUALTY & SURETY COMPANY, Appellee.
    No. 15650.
    Court of Civil Appeals of Texas, San Antonio.
    Nov. 3, 1976.
    Rehearing Denied Dec. 15, 1976.
    Donald J. Walheim, Hardberger, Branton & Herrera, San Antonio, for appellant.
    Melvin A. Krenek, Beckmann, Stanard & Olson, San Antonio, for appellee.
   BARROW, Chief Justice.

Appellant has perfected his appeal from a take-nothing judgment rendered on a jury verdict in a suit to set aside the final award of the Industrial Accident Board. The sole question presented is whether the trial court acquired jurisdiction over the appeal from the award in that the original petition was filed in the name of “Aetna Life & Casualty,” whereas “The Aetna Casualty & Surety Company” was the insurance carrier. The trial court permitted The Aetna Casualty & Surety Company to be substituted as plaintiff and overruled appellant’s plea to the jurisdiction.

On May 6, 1974, the Board made its final ruling in Claim No. M-023289-C2, styled Pedro C. Sanchez, Employee v. R. J. Reynolds Foods, Inc., Employer, and The Aetna Casualty & Surety Company, Insurance Carrier. On May 13, The Aetna Casualty & Surety Company filed written notice with the Board that it was not willing to abide by said final ruling and would, within twenty days from the date of such notice, file suit to set aside the final award. On May 31, suit was filed in the 131st Judicial District Court of Bexar County, being Cause No. 74-CI-6094, styled Aetna Life & Casualty v. Pedro C. Sanchez. Paragraph II of this petition correctly identified the Board’s claim number and referred to The Aetna Casualty & Surety Company. A copy of the Board’s award is attached to the petition. On June 10, Sanchez filed his original answer and cross-action seeking compensation for total and permanent incapacity from The Aetna Casualty & Surety Company. This answer was styled: The Aetna Casualty & Surety Company v. Pedro C. Sanchez. An answer to the cross-action was filed by The Aetna Casualty & Surety Company. On July 31, Sanchez filed written interrogatories directed to The Aetna Casualty & Surety Company.

Between July 31 and October 1, 1974, Sanchez learned of the mistake in the petition, and on October 1, filed a new suit in the 150th Judicial District Court of Bexar County, being Cause No. 74-CI-11401, styled Pedro C. Sanchez v. The Aetna Casualty & Surety Company. By this suit Sanchez sought to mature the May 6, 1974 award of the Industrial Accident Board because the court did not acquire jurisdiction by the suit brought by Aetna Life & Casualty. Sanchez also filed a motion to consolidate the two suits and a plea to the court’s jurisdiction. Aetna Life & Casualty, as plaintiff in the original suit, thereafter filed a motion to substitute the name of Aetna Casualty & Surety Company as plaintiff. It was alleged that the secretary for appellee’s attorney “inadvertently” typed the name of the parent company, Aetna Life & Casualty, rather than typing the name of the subsidiary company, The Aetna Casualty & Surety Company, which is on the Board award as the insurance carrier. Written interrogatories were again served on appellee by Sanchez. Appellee’s replies disclose that these two corporations are separate corporate legal entities with Aetna Life & Casualty, the parent of The Aetna Casualty & Surety Company. Both corporations have the same address and the same Board of Directors. Only The Aetna Casualty & Surety Company issues policies of workmen’s compensation insurance and it was the carrier for R. J. Reynolds Foods, Inc. It was admitted that Aetna Life & Casualty filed the suit to set aside the Board’s award.

The trial court, in interlocutory proceedings, ordered the two suits consolidated, overruled Sanchez’ plea to the jurisdiction as well as his motion for summary judgment for lack of jurisdiction, and permitted The Aetna Casualty & Surety Company to be substituted as party plaintiff. The case was then tried to a jury and a take-nothing judgment entered on the jury’s finding that Sanchez did not sustain an embolism in the course of his employment.

It is settled that the provisions of our Workmen’s Compensation Act, with respect to the successive steps in the progress and maturity of a claim, are mandatory, and the provisions of the Act must be complied with of an action is not maintainable in the courts. Industrial Accident Board v. Glenn, 144 Tex. 378, 190 S.W.2d 805 (1945); Castillo v. Allied Ins. Co., 537 S.W.2d 486 (Tex.Civ.App.—Amarillo 1976, writ ref’d n. r. e.). The requirement of Art. 8307, § 5, Tex.Rev.Civ.Stat.Ann., that suit be filed within twenty (20) days after the notice of appeal is given, has been held to constitute a general statute of limitation. Richards v. Consolidated Underwriters, 411 S.W.2d 436 (Tex.Civ.App.—Beaumont 1967, writ ref’d).

The primary purpose of a statute of limitations is to compel the exercise of a right of action within a reasonable time so that the opposing party has a fair opportunity to defend while witnesses are available and the evidence is fresh in their minds. Continental Southern Lines, Inc. v. Hilland, 528 S.W.2d 828 (Tex.1975). It was there held that although plaintiff Hilland made a mistake and sued Continental Trailways, Inc., in lieu of another corporation, Continental Southern Lines, Inc., it would be a misapplication of the statute of limitations to hold that the claim was barred if it could be shown that the latter was cognizant of the facts, was not misled, or placed at a disadvantage in obtaining relevant evidence to defend the suit.

A similar result was reached in Price v. Estate of Anderson, 522 S.W.2d 690 (Tex.1975), although the plaintiff made a mistake of law and brought suit against the “estate” of a decedent and did not sue the administrator of the estate until after the expiration of the limitation period. In holding that the claim was not barred, the Supreme Court said: “While petitioner made a mistake in her original petition as to the defendant that should have been sued, respondent was at all times fully cognizant of the facts and could not have been misled as to the basis of the suit, nor was he placed at any disadvantage in obtaining relevant evidence to defend the same.”

In our case, the suit was erroneously brought in the name of the parent company and the error was not discovered or corrected until after the statutory period for filing suit had expired. Nevertheless, it was conclusively established that no one was misled or placed at a disadvantage by this error. The petition is clear that it was brought as an appeal from the final award of the Board in the claim filed by Sanchez for an injury allegedly suffered in the course of his employment with R. J. Reynolds Foods, Inc. The allegations of the petition correctly identify the Board claim and The Aetna Casualty & Surety Company as the insurance carrier. Appellant’s own attorney promptly filed answer and cross-action in the correct name of the insurance carrier.

We conclude from this record that the petition filed by Aetna Life & Casualty gave the trial court jurisdiction to determine the claim for compensation filed by appellant. See also: Transport Ins. Co. v. Jaeger, 534 S.W.2d 389 (Tex.Civ.App.—Houston [1st Dist.] 1976, writ ref’d n. r. e.); Texas Employers Ins. Ass’n. v. Sarver, 531 S.W.2d 411 (Tex.Civ.App.—Beaumont 1975, writ ref’d n. r. e.); Charter Oak Fire Ins. Co. v. Square, 526 S.W.2d 635 (Tex.Civ.App.—Waco 1975, writ ref’d n. r. e.).

The judgment of the trial court is affirmed.

      . No complaint is made on this appeal of the jury verdict or the actual trial proceedings.


source: Caselaw Access Project

author: McDONALD, Chief Justice.

license: Public Domain

text:
    Nell C. ROBERT, Appellant, v. Don E. SUMEROUR and wife Clara Sumerour, Appellees.
    No. 5591.
    Court of Civil Appeals of Texas, Waco.
    Nov. 12, 1976.
    Rehearing Denied Dec. 16, 1976.

      Clark & Vannatta, Waco, for appellant.
    W. T. Phillips, Fred Horner, Waco, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Robert from $6,500 judgment against her in a fraud case.

Plaintiffs Sumerour and wife sued defendant Robert alleging defendant induced plaintiffs to purchase her home situated on an approximate one-acre tract by false and fraudulent representations that the water well on the property was a deep well; that such well had more than adequate water to take care of household needs, yard and garden; and that the water was quality suitable for drinking and household use; that such representations were false; that the well was only 21 feet deep; produced insufficient water for household purposes; that such representations were material and relied upon by plaintiffs; that plaintiffs paid defendant $21,500 for the house and lot; that its actual value in the condition it was delivered was $15,900. Plaintiffs prayed for rescission of the sale or alternatively for $6,500 damages.

Defendant answered by general denial.

Trial was to a jury, findings of which are summarized as follows:

1) Defendant represented to plaintiff that the well provided adequate water for household use.
2) Such representation was false.
3) Such representation was made for the purpose of inducing plaintiffs to purchase the property.
4) Plaintiffs relied on said representation in purchasing the property.
5) The market value of the property as represented to plaintiffs at the time of the sale was $21,500.
6) The actual value of the property in the condition in which it was delivered was $15,000.

The trial court rendered judgment on the verdict for plaintiffs for $6,500.

Defendant appeals on 11 points, pertinent of which contend:

1) The trial court erred in failing to grant instructed verdict for defendant as there was no evidence defendant made any “material” representations to plaintiffs.
2) The trial court erred in failing to grant a new trial because the verdict is so contrary to the overwhelming weight of all the evidence as to be unjust.
3) The trial court erred in not submitting Defendant’s Requested Issue on Plaintiffs’ failure to exercise reasonable care to protect their interest.
4) The trial court erred in submitting Issues 5 and 6 in that there was insufficient evidence to support submission of such issues.
5) The trial court erred in not granting a new trial because of prejudicial testimony elicited from plaintiffs’ witness.
6) The trial court erred in overruling defendant’s Special Exception to plaintiffs’ 1st supplemental petition.
7) The trial court erred in overruling defendant’s 2nd motion for continuance.
8) The trial court erred in not submitting defendant’s requested special instruction as to plaintiffs making their own investigation.

Contentions 1), 2) and 4) are that there is no evidence or insufficient evidence to support the verdict of the jury.

There is evidence that defendant represented to plaintiffs the well was a very deep well and had never run out of water; that it had never been pumped dry; that the water was not murky; that it would produce an adequate supply of water for household needs. There is further evidence the well pumped dry 3 days after plaintiffs moved into the house; that the water was black and murky; that it produces insufficient water for household needs; that the washing machine and dishwasher cannot be used because of insufficient water; that two baths cannot be taken in a row; that the well has run dry many times; that the well is a shallow surface well only 21 feet deep; that the property was worth $21,500 or $22,000 as represented; and worth $18,-000 or $15,000 as actually delivered to plaintiffs. There is evidence plaintiffs would not have purchased the property if they had known the water supply was in the condition that it was. The evidence is ample to support the findings of the jury and such findings are not against the great weight and preponderance of the evidence. In re Kings Estate, S.Ct., 150 Tex. 662, 244 S.W.2d 660. See also: Dallas Farm Machinery Co. v. Reaves, S.Ct., 158 Tex. 1, 307 S.W.2d 233; Central Motor Co. v. Thompson, CCA, Tex.Civ.App.Waco, NWH, 465 S.W.2d 405; Section 27.01 Texas Business & Commerce Code.

Contentions 3 and 8 complain the trial court erred in not submitting their requested issue inquiring whether plaintiffs failed to exercise reasonable care to protect their interest; and in failing to instruct the jury “if a purchaser makes a personal investigation which is free and unhampered and the conditions are such that he must obtain the information he desires, he is presumed to rely on his own investigation rather than on representations made to him by his seller”.

Contributory negligence is not a defense to an action based on fraud; moreover, plaintiffs made no personal investigation of defendant’s well or water supply.

And when one has been induced to enter into a contract by fraudulent representations, the person committing the fraud cannot defeat a claim for damages based thereon by asserting the party defrauded might have discovered the truth by the exercise of proper care. Labbe v. Corbett, S.Ct., 69 Tex. 503, 6 S.W. 808; Moore v. Beakley, S.Ct., Tex.Civ.App., 215 S.W. 957; Schonrock v. Taylor, CCA, Tex.Civ.App.Er. Ref., 212 S.W.2d 260; Smith v. Bifano, CCA, Tex.Civ.App.Waco, NRE, 330 S.W.2d 473; Rattan v. Bosley, CCA, Tex.Civ.App. Waco, NWH, 446 S.W.2d 345.

Contention 5) complains a new trial should have been granted because of prejudicial testimony elicited from plaintiffs’ witness.

Counsel for plaintiff asked the witness Mrs. Waters whether or not defendant had shot her husband. The trial court sustained objection to the question and instructed the jury to disregard same. The action of the trial court cured the matter, and in any event the matter is harmless under the record as a whole. Rule 434 TRCP.

Contention 6) complains of the trial court’s overruling exception to plaintiffs’ 1st Supplemental Petition, and contention 7) complains of the trial court’s overruling Defendant’s 2nd Motion for Continuance.

Plaintiffs’ 1st Supplemental Petition plead for the first time that a trust should be imposed on property defendant purchased with the $21,500 received from the sale to plaintiffs. The trial court overruled exceptions to such petition; and defendant moved for a continuance, which the trial court overruled.

The trial court did not impose any trust as prayed for in plaintiffs’ 1st Supplemental Petition; thus assuming error, the matter is harmless. Rule 434 TRCP.

All defendant’s points and contentions have been considered and are overruled.

AFFIRMED.


author: RAY, Justice.

text:
    Frank DOYLE, Appellant, v. W. C. GRADY et al., Appellees.
    No. 8372.
    Court of Civil Appeals of Texas, Texarkana.
    Nov. 16, 1976.
    Rehearing Denied Dec. 14, 1976.

      Roger D. Sanders, Jarvis, Grisham & Sanders, Sherman, for appellant.
    Robert C. Crouch, Morgan & Crouch, Greenville, W. Clark Williams, Jr., Stras-burger, Price, Kelton, Martin & Unis, Dallas, for appellees.
   RAY, Justice.

This is a venue case. Frank Doyle, appellant (plaintiff) brought suit against W. C. Grady, Grady Chevrolet Company, and American States Insurance Company of Texas, appellees (defendants), seeking damages and attorney’s fees under the Consumer Protection Act (Tex.Bus. & Comm.Code Ann., Sec. 17.41, et seq.). Trial was to the court and appellees’ respective pleas of privilege were sustained. Appellant has perfected his appeal and submits eight points of error for our consideration.

Appellant’s brief was received one day late by the Clerk of this Court. The postage meter registered a date (January 6, 1976) on the envelope in which the brief was transmitted, a date at least one day prior to the date that the appellant’s brief was due to be filed in the Court of Civil Appeals. The problem was whether or not the postage from a postage meter affixed to the carrier envelope was a postmark affixed by the United States Postal Service specified in Tex.R.Civ.P. 5, making the postmark prima facie evidence of the date of mailing, or whether it was one affixed from a private postage meter at the office of the attorney which would not be prima facie evidence of the date of mailing. There were no stamps attached to the envelope and therefore no cancellation of those stamps showing a postmark. Appellant has furnished this Court with an affidavit of C. R. Adams, an employee of the United States Postal Service at Sherman, Texas, in which Adams states that he processed the envelope and affixed the postage on the envelope from a postage meter registering a date of January 6,1976. We deem the affidavit sufficient to establish that appellant’s brief was timely mailed and have therefore ordered the brief filed. However, we reiterate the admonition pointed out in our previous opinion of Gaskin v. Perritt, 472 S.W.2d 211, 214 (Tex.Civ.App. Texarkana 1971, no writ), in which we stated that appellant’s counsel should use diligence in timely filing the required instruments in perfecting his appeal.

Appellant Doyle instituted this suit to recover losses alleged to have resulted from the deceptive trade practices of the appel-lees. Appellant is a resident of Fannin County and is the owner of a pickup truck which was insured by Appellee American States Insurance Company of Texas, a Dallas County resident. The truck’s wheel fell off, causing it to be damaged, and appellant contacted the agent who sold him the insurance policy, Gary Whitlock. Whitlock referred appellant to an adjuster who told appellant that Grady Chevrolet of Hunt County could make the necessary repairs. Appellee Grady Chevrolet was contacted by appellant and thereafter the pickup was towed to the Chevrolet repair garage in Hunt County. The evidence does not indicate whether or not Appellee Grady Chevrolet ever gave an estimate or stated what type of repair would be performed. The repairs performed were not to the appellant’s satisfaction. He had a heated discussion with the mechanic on duty, and was told that no more work would be performed. Appellee insurance company tendered payment to the appellant for the repairs as performed, but appellant refused the tenders on three separate occasions.

Appellant brought suit in Fannin County under the Deceptive Trade Practices and Consumer Protection Act, Chap. 17 of the Tex.Bus. & Comm.Code Ann. (Supp.1976-77). The venue section of the Act, Sec. 17.56, allows suit to be brought in any county in which the defendant is “doing business.”

The trial court filed no findings of fact or conclusions of law in sustaining appellees’ pleas of privilege. The trial court’s judgment could be based either on a failure of the appellant to plead and prove a cause of action under the Consumer Protection Act, or on a failure of the appellant to show that the appellees were “doing business” in Fan-nin County, the county where suit was instituted.

Counsel for appellant contended at oral argument that the Consumer Protection Act required only that a cause of action be alleged under the Act and that appellant was only required to prove that appellees were doing business in Fannin County. The appellees answered that the appellant had to both plead and prove a prima facie cause of action.

The general rule favors the position of the appellees. Since the application of a venue exception depends upon the existence rather than on the allegation of venue facts, a plaintiff generally has the burden to establish those facts which make a prima facie case in his favor. 1 McDonald’s, Texas Civil Practice, Sec. 455, p. 611 (1965); Meredith v. McClendon, 130 Tex. 527, 111 S.W.2d 1062 (1938).

The appellant cites cases, however, in which a mere allegation of a cause of action was held sufficient to support venue. State v. Harry Cloud Transport, Inc., 505 S.W.2d 798 (Tex.1974), Harrington v. State, 363 S.W.2d 321 (Tex.Civ.App. Austin 1962, writ ref’d n.r.e.). These cases, like the instant case, did not deal with the general venue statute, Article 1995, Texas Revised Civil Statutes, but rather the application of special venue sections of other acts. Such special venue provisions are controlling over the general statute. Gambill v. Town of Ponder, 494 S.W.2d 808 (Tex.1973).

In the Harry Cloud Transport case, supra, the state sought civil penalties and injunc-tive relief for the violation of the motor carrier act, Article 911b, Texas Revised Civil Statutes Ann. (Supp.1976-77). Venue for an action for such penalties is fixed in the county in which the violation occurs. Tex. Rev.Civ.Stat.Ann. Art. 911b (Supp.1976-77). Allegation of the violation of the motor carrier act was held to be sufficient.

In Harrington, supra, the railroad commission sought penalties allegedly due the state for violation of oil and gas conservation laws. These laws extended venue for such an action to “the county in which the violation is alleged to have occurred . .” Tex.Rev.Civ.Stat.Ann. Art. 6036 (1962).

The appellees suggest that these cases are distinguishable on the grounds that they provide the “safeguard” of having the state as a plaintiff. The cases seem more fundamentally distinguishable on the plain language of the special venue provisions. The special venue provision now before this court is Section 17.56 of the Business and Commerce Code, which is as follows:

“An action brought under Section 17.50 or 17.51 of this subchapter may be commenced in the county in which the person against whom the suit is brought resides, has his principal place of business, or is doing business.”

Venue is not fixed in any one county or extended to the county in which the violation is alleged to have occurred.

The general rule requiring a plaintiff to plead and prove a cause of action to support venue has been applied to special venue sections of particular statutes. Flowers v. Dempsey-Tegeler & Co., 472 S.W.2d 112 (Tex.1971); Universal Credit Co. v. Dunklin, 129 Tex. 324,105 S.W.2d 867 (1937). The rule will be so applied here.

The appellant’s first amended original petition alleged that the appellees violated six specific sections of the Deceptive Trade Practices and Consumer Protection Act. Section 17.50 of the Act provides:

“(a) A consumer may maintain an action if he has been adversely affected by any of the following:
(1) the use or employment by any person of an act or practice declared to be unlawful by Section 17.46 of this subehapter;
(2) a failure by any person to comply with an express or implied warranty;
(3) any unconscionable action or course of action by any person; or
(4) the use or employment by any person of an act or practice in violation of Article 21.21, Texas Insurance Code, as amended, or rules or regulations issued by the State Board of Insurance under Article 21.21, Texas Insurance Code, as amended.

The subsections of Section 17.46 under which appellant purported to file his claim are as follows:

“(b) The term ‘false, misleading, or deceptive acts or practices’ includes, but is not limited to, the following acts:
(3)causing confusion or misunderstanding as to affiliation, connection, or association with, or certification by, another;
(5) representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have or that a person has a sponsorship, approval, status, affiliation, or connection which he does not;
(6) representing that goods are original or new if they are deteriorated, reconditioned, reclaimed, used, or secondhand;
(7) representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another;
(12) representing that an agreement confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law;

The appellant also alleges that the appel-lee insurance company has violated unspecified provisions of Article 21.21 of the Texas Insurance Code. This last allegation was not relied upon in the appeal.

The appellant argues that the appellee insurance company falsely represented that the appellant was fully insured and that insurance would cover all damages; and that Appellee Grady Chevrolet falsely represented that the pickup truck would be and had been fully repaired.

The Consumer Protection Act states that its underlying purposes include the prevention of misleading and deceptive business practices, and that its terms should be liberally construed. Tex.Bus. & Comm.Code Ann., Sec. 17.44.

The appellees deny that a cause of action has been proven. The appellee insurance company asserts that the evidence indicates only that it received an estimate and offered to pay it. The evidence does not indicate from whom the estimate was received or who made the estimate. The Ap-pellee, Grady Chevrolet, denies ever having made an estimate of damages or ever having made any representations to the appellant.

A plea of privilege proceeding is not different in procedure from those ordinarily followed in other cases. Coker v. Audas, Inc., 385 S.W.2d 862 (Tex.Civ.App. Texarkana 1964, no writ). The judgment must stand unless the great weight and preponderance of the evidence favor the appellant on the factual issues in question. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The factual picture presented in the statement of facts does not support the appellant’s position. There is no evidence to indicate that an estimate of damages to the pickup was ever made by Appellee Grady Chevrolet, or that Grady Chevrolet agreed to perform any specific repairs for any specific price. There is no evidence to indicate that the appellees were working together, or that the insurance company did or could assure the quality of the motor company’s work. The appellant had no success in demonstrating any type of false or misleading representations made to him by the appellees. The negotiations between the appellant and the appellees were not developed or demonstrated; the relationship between the appellees was not explored. The appellant has failed to demonstrate that the faulty or incomplete repair of his pickup truck was the result of deceptive business practices or unconscionable actions covered by the Consumer Protection Act. Appellant admitted that Appellee Grady Chevrolet offered in writing to do something about satisfying him if he would take his truck back to appellee but appellant did not take his vehicle back for further inspection or repairs.

Appellant’s points of error 1, 2, 5 and 6 are overruled. Points of error 3, 4, 7 and 8 are not reached.

The judgment of the trial court is affirmed.


author: PHILLIPS, Chief Justice.

text:
    Jose J. MATA, Appellant, v. JIM BASS FORD, INC., a Texas Corporation, Appellee.
    No. 12469.
    Court of Civil Appeals of Texas, Austin.
    Nov. 17, 1976.
    Rehearing Denied Dec. 15, 1976.
    Marvin C. Hanz, San Angelo, for appellant.
    George S. Finley, Smith, Davis, Rose, Finley & Hofmann, San Angelo, for appel-lee.
   PHILLIPS, Chief Justice.

The question before this Court is whether appellant, who was injured while working for a subcontractor installing a concrete floor at appellee’s place of business, is precluded from any recovery against appellee under the doctrine of Delhi-Taylor Oil Corp. v. Henry, 416 S.W.2d 390 (Tex.1967). The trial court withdrew the case from the jury and entered judgment for appellee. We affirm the judgment.

Appellee, a Ford dealer in San Angelo, hired a general contractor to construct office space on the second story of his automobile agency building. The second story was divided from the first by a suspended ceiling which consisted of spaced, suspended aluminum strips on which acoustical celotex board had been placed. In order to construct an upstairs office, it was necessary to remove part of this suspended ceiling and to work adjacent to or in conjunction with the rest of the ceiling. Both the general contractor and the subcontractor knew that the suspended ceiling for a building of this type was not strong enough to bear the weight of a person. Therefore, to prevent anyone from stepping on the suspended ceiling, the general contractor put up a guardrail consisting of a 2 X 4 board alongside the plywood flooring that had been installed to facilitate the construction.

Appellant, who was employed by the subcontractor to pour concrete for the upstairs floor, stepped upon the suspended ceiling held in place by the aluminum runners, fell through the ceiling and was injured.

In our judgment Delhi-Taylor states the law applicable here and precludes any recovery by appellant. In that case the Supreme Court held that: “While an owner owes a duty to employees of an independent contractor to take reasonable precautions to protect them from hidden dangers on the premises or to warn them thereof, an adequate warning to or full knowledge by the independent contractor of the dangers should and will be held to discharge the landowner’s alternative duty to warn the employees.” (Emphasis added)

The duty of the landowner to the employees of a subcontractor is discharged in like manner by giving adequate warning to the subcontractor, or is fully discharged if the subcontractor has full knowledge of the danger involved.

Appellant complains here as error the trial court’s granting appellee an instructed verdict on the premise that it was released from all further liability by informing its contractor of dangerous conditions; and, further, because of the implied holding of the court, there was no genuine issue of fact as to one or more of the essential elements of appellant’s cause of action.

As we understand appellant’s position in his first point of error, he contends that although both contractors knew of and appreciated the existing danger surrounding the job site, it was error to hold that the appellee was under no duty to disclose the dangerous situation to appellant. Appellant further contends: “ . . . that a fact issue regarding the appreciation of the dangerous condition at the time of the entering of the contractual relationship existed, that such an element of appreciation of that dangerous condition should, as a matter of law, be a proper jury question.”

Appellant also contends that there was conflicting testimony as to whether or not the 2X4 guardrail constructed as a precautionary measure actually existed in the ceiling at the time of the accident.

All of appellant’s contentions are answered by the fact that the evidence indicates that both the general contractor and subcontractor knew of the existing danger around the job site. Whether appellant knew and appreciated the existing danger is immaterial. Also immaterial is the issue of whether the protective guardrail was present at the time of the accident. Appel-lee’s duty to warn appellant was discharged once the general contractor and subcontractor had full knowledge of the danger involved. Appellant did not show in the presentation of the evidence the breach by appellee of any duty owed him. The trial court was therefore correct in granting the instructed verdict.

Affirmed.


author: DIES, Chief Justice. KEITH, Justice

text:
    BAYSHORE CONSTRUCTORS, INC., et al., Appellants, v. SOUTHERN MONTGOMERY COUNTY MUNICIPAL UTILITY DISTRICT, Appellee.
    No. 7804.
    Court of Civil Appeals of Texas, Beaumont.
    Nov. 18, 1976.
    Rehearing Denied Dec. 12, 1976.

      William ■ G. Lowerre, Russell Talbott, Houston, for appellants.

      Ernest Coker, Jr., Stephen W. McClain, Conroe, for appellee.
   DIES, Chief Justice.

The Southern Montgomery County Municipal District (Referred to herein as District) sued Bayshore Constructors, Inc. (referred to as Bayshore) along with the surety on its performance bond, Fidelity and Deposit Company of Maryland (Fidelity), for the failure of performance in the installation of water and sewer pipes and the resurfacing of roads in the Oak Ridge North Subdivision of Montgomery County, Texas. After a jury trial, judgment was given District against Bayshore and Fidelity in the amount of $111,554 and in favor of Bayshore against the District on Bayshore’s counter-claim in the amount of $13,799.20, from which judgment Bayshore and Fidelity perfect this appeal.

There are a number of points challenging the evidence to support certain findings by the jury. In passing on no evidence points, we may consider only the evidence and inferences therefrom which tend to support the verdict and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965).

When the contention is that the evidence is insufficient to support a fact finding or that the finding is against the great weight and preponderance of the evidence, we must examine all the evidence and reverse and remand for a new trial if we conclude that the evidence is factually insufficient to support the finding of a vital fact or that the finding is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The jury found that the reasonable and necessary cost of correcting any defects in the work performed by Bayshore as a result of its failure to perform pursuant to the contract was $111,554, which-Bayshore contends is supported by no evidence or insufficient evidence.

J. C. Hild, a registered engineer, drew the District’s plans and specifications for the water and sewer lines constructed by Bay-shore. Following construction of the lines, and paving of the streets subsidence occurred both over the lines and in the streets. This, Hild believed, was caused by improper compaction over the trenches. To correct this, it was his opinion the entire street area would have to be repaved, not just areas of settlement. He described the process known as “water tamping” in which a pipe is forced through the refilled trench, then water jetted through the pipe until the water reaches the surface. This is designed to cause the refilled trench or “backfill” to settle or compact. He felt all the surface Bayshore had constructed on the streets should be torn up, the trenches water tamped and then resurfaced. To only re-patch the areas of subsidence as proposed by Bayshore would damage the other paving, and prevent uniformity.

Willie Acreman, a road builder, testified the cost to remove the surface material, water tamp, and replace road mix topping would be $208,512. He also felt the whole area needed redoing; otherwise, it would be a “patch job” and water would leak in between the old and the new asphalt. These points are overruled.

The jury found that Bayshore failed to backfill the trenches for the sanitary sewer lines according to the plans and specifications which Bayshore contends is supported by no evidence or insufficient evidence. The jury also found that Bayshore failed to backfill the trenches for water lines in a good and workmanlike manner which Bay-shore says is supported by no or insufficient evidence.

The jury also found that Bayshore failed to water tamp the sewer trenches according to the plans and specifications and in a good and workmanlike manner which Bayshore says is supported by no or insufficient evidence.

We will discuss all these points together.

The plans and specifications of the contract between Bayshore and District provided that a water line should be laid on one side of the street, and a sewer line on the other. This required water trenches of three feet in depth and sewer up to twenty feet in depth, the latter being deeper to provide flowage. The plans and specifications provided that after the pipe was put in the trench, Bayshore was to backfill the trench by hand-tamping up to a foot above the pipe, then to fill the trench with the loose dirt up to the top, then jet water into the trench (water tamping). After the dirt settled, if it had settled more than one foot, it was to be filled again, then compacted by running over it with heavy equipment. The purpose of this is to achieve compaction and prevent voids.

Bayshore got the contract, July 30, 1970; sometime after December 1, 1971, subsidence and deep holes began to appear over both the trenches, and the streets. Pictures introduced at the trial reveal this subsidence to be substantial and general. Hild believed this was caused by improper compaction and a failure by Bayshore to water tamp.

Frederick A. Harris, a Soils Engineer, conducted core boring tests in April and May of 1973. These tests measured the percentage of maximum dry density, which is a test to determine the moisture content and density of the soil. The average original of all bores was 88 percent, which “indicates relatively low degree of compaction”, and that it was not water tamped. If a ditch is properly water tamped, one can expect 95 percent to 105 percent maximum dry density. One core detected a five foot void from 6 feet to 11 feet. Water tamping would have eliminated any such void. The cores on both water and sewer lines revealed poor compaction and subsidence will likely continue. It was his opinion water tamping would have prevented the settlements in the ditches.

Two witnesses, Buchanan and Black, employed by the District, testified they never saw Bayshore do any water tamping.

Everett Phelps, general superintendent for Bayshore, testified they water tamped in April 1970 but soon ran out of water supply and had to wait until the new water line was installed before resumption. They completed tamping in four to six weeks— May 15 to June 1, 1971. They requested the District to wait until the following spring to resurface the streets, but were refused. The subsidence was caused by the water they tamped not being properly dried out.

Robert R. McBride, a Foundation Engineer, disputed that the water tamping required by these plans and specifications would do any good to achieve compaction, and in fact thought their tamping would cause greater subsidence.

So, while some of Bayshore’s testimony as to the cause of the subsidence was disputed, clearly fact issues were made for the jury, and it was their prerogative to make the choice. These points are overruled.

The jury failed to find that Bay-shore’s request to wait until the spring of 1972 to resurface the roads was reasonable. Bayshore says the evidence establishes this as a matter of law, or it is against the great weight and preponderance of the evidence. We disagree. The contract called for Bay-shore' to complete its work in 360 days, before the spring of 1972. Presumably, when Bayshore signed this contract it knew the time involved in water tamping and drying. There was no legal obligation by District to extend the time. Further without a finding of causation, even had this issue been in Bayshore’s favor, it would not have changed the result of the case. This point is overruled.

Bayshore contends the court erred in failing to award interest on its counterclaim (retainage) of $13,799.20 from January 1, 1973, rather than the date of the judgment. Bayshore would not be entitled to interest on any sums due it under the contract, until it had fully completed the contract. Ryan v. Thurmond, 481 S.W.2d 199 (Tex.Civ.App., Corpus Christi 1972, writ ref’d n.r.e.). See also Hurley v. Hirsch, 66 S.W.2d 387 (Tex.Civ.App., Dallas 1933, writ dism’d.). This point is overruled.

Fidelity and Deposit Company of Maryland as previously noted was surety upon the Tex.Rev.Civ.Stat.Ann. art. 5160 (1971) performance bond to the District and contends the statute of limitations of one year in that article bars recovery against it. The trial court held that Fidelity was liable.

Bayshore finished the contract by December 1, 1971. The District’s engineer, Hild, then recommended its Board to pay Bay-shore the final funds. On December 20, 1971, the District’s Board voted to pay Bay-shore these funds. Of course, it never did. The District’s original petition was filed October 5, 1973.

Bayshore’s contract with the District provided:

“The Contractor shall remedy any defects in the work and pay for any damage to other work resulting therefrom, which shall appear within a period of one (1) year from the date of final acceptance of the work unless a longer period is specified.”

Fidelity’s bond specifically makes this contract “a part hereof”, etc. This would, of course, include Bayshore’s above one year warranty.

Tex.Rev.Civ.Stat.Ann. art. 5160 (1971), in part, provides: “No suit shall be instituted on the performance bond after the expiration of one (1) year after the date of final completion of such contract.” This contract could not be “finally completed” before one year after the final acceptance of the work. The contractor had agreed to correct any defects which would appear within one year from the date of final acceptance. That provision was clearly a part of this contract, and its meaning is unambiguous. To give this contract and statute the meaning Fidelity wants us to give them would not allow the District time to file a suit if the defects appeared at or near the end of the one year “remedy” period. We construe art. 5160 to mean that a person in the position of the District in this case has a full year to file suit after the one year “remedy” period has elapsed.

Our interpretation as to the present meaning of art. 5160 is strengthened by a study of this article before its amendment m 1959. Before this amendment, this statute also contained the words “and final settlement” of the contract. The legislature removed those words from the amended statute. We conclude the logical reason for this amendment is to eliminate an argument as made by Fidelity in this case. The “final settlement” date no longer is the important criteria, but the “completion of the contract” is now the determining factor.

Fidelity cites City of Midland v. Waller, 430 S.W.2d 473 (Tex.1968), as supporting its position in this case. The factual situation in Midland was not the same as the one before us, and any statement as to the law of that case would have to be dicta as to the case before us. In Midland suit was filed more than two years after acceptance of the work. Both the one year for remedial work to be done and the one year statutory period had elapsed before suit was filed. In the case before us the one year for remedial work to be done had passed, but the additional one year statutory period had not. Fidelity’s point is overruled.

Bayshore has other points which we find have no merit, and they are all overruled. The judgment of the trial court is affirmed.

AFFIRMED.

KEITH, Justice

(concurring and dissenting).

I concur in the affirmation of the judgment as to the contractor Bayshore, but I dissent from the affirmation as to the surety, Fidelity and Deposit Company of Maryland. As to the surety, I would reverse the judgment of the trial court and render judgment that District take nothing as to the surety.

The case, insofar as it relates to the surety, is controlled by the decision in City of Midland v. Waller, 430 S.W.2d 473, 475 (Tex.1968), and a reversal is required.

District’s engineer, Hild, testified that Bayshore had completed the entire contract by December 1, 1971, and on that date he recommended that District accept it as complete and pay the final estimate. On December 20, 1971, the Board voted to accept the contract as complete and authorized the acceptance of Bayshore’s final estimate of $20,400, and agreed to pay $13,400 then and the balance of $7,000 when certain federal funds were received. Although District did get the funds, it did not pay Bayshore.

On October 5,1973, District sued contractor for breach of the contract and also named surety as a party defendant.

In Midland, supra, Justice Griffin quoted the one-year limitation period provided in Tex.Rev.Civ.Stat.Ann. art. 5160 (1971), and continued:

“The present suit was filed more than one year after the City accepted the pool and paid the contractor. The limitation imposed by Art. 5160 applies, and the trial court correctly rendered a summary judgment that the City take nothing against the surety. The Court of Civil Appeals correctly affirmed that judgment. We affirm the judgment of both courts below in favor of the surety.”

The contract in City of Midland also contained a one-year warranty, just as that in the case at bar. The only difference— which I do not consider to be material — in our case and Midland is that here the District only promised but did not actually pay the final amount due the contractor.

I would sever District’s cause of action against the surety and enter a judgment reversing that of the trial court and rendering judgment in favor of surety; and, I would affirm the judgment against the contractor.


author: KEITH, Justice.

text:
    William G. KINNEAR, Appellant, v. Herd Vrill DIXON et ux., Appellees.
    No. 7865.
    Court of Civil Appeals of Texas, Beaumont.
    Nov. 18, 1976.
    Rehearing Denied Dec. 9, 1976.

      Ernest L. Sample, Beaumont, for appellant.
    Gordon R. Pate, E. B. Lord, Beaumont, for appellees.
   KEITH, Justice.

Plaintiff below appeals from a judgment directing that he take nothing by reason of his suit and awarding $1,615 to the defendants. We will speak of the parties as they appeared in the trial court.

Plaintiff brought suit on a sworn account pursuant to Tex.R.Civ.P. 185 seeking to recover attorney’s fees for services performed. A cross-action was filed by defendants to recover $915 paid for services plaintiff failed to perform and to recover $700 loaned to plaintiff.

Trial was to a jury and the four special issues submitted were answered adversely to plaintiff. The substance of the findings is set forth in the margin below.

Plaintiff complains that defendants’ sworn denial was fatally defective while defendants vigorously argue that plaintiff’s pleadings are insufficient to constitute a sworn account under Rule 185.

In considering the contentions of the parties, we note that the sworn account practice is properly classified as a rule of evidence and is not of itself the basis of any cause of action. 2 McDonald, Texas Civil Practice, § 7.31, p. 239 (Rev.Vol. 1970), commenting upon Meaders v. Biskamp, 159 Tex. 79, 316 S.W.2d 75, 78 (1958). See also, Evans Advertising, Inc. v. Morphew, 525 S.W.2d 56, 58 (Tex.Civ.App.—Tyler 1975, no writ); Vahlsing Christina Corp. v. Ryman Well Service, Inc., 512 S.W.2d 803, 809 (Tex.Civ.App.—Corpus Christi 1974, no writ). It is likewise well settled that such an account must show with reasonable certainty the nature of each item, the date, and the charge therefor. Hassler v. Texas Gypsum Company, Inc., 525 S.W.2d 53, 55 (Tex.Civ.App.—Dallas 1975, no writ); Bookstall, Inc. v. John Roberts, Inc., 517 S.W.2d 451, 452 (Tex.Civ.App.—Austin 1974, no writ); Rudi’s Automotive Corporation v. Heeth, 509 S.W.2d 428, 430 (Tex.Civ.App.—Hous-ton [1st Dist.] 1974, no writ).

In the case at bar, the record conclusively shows that the account sued upon wholly fails to set forth any charge for the services allegedly performed or even that the account is due. The account is also defective in failing to itemize with sufficient particularity the nature of the services performed. Thus, under the cases heretofore cited, plaintiff has failed to establish a prima facie case under Rule 185.

As was said in Wilson v. Brickstone Products Corporation, 465 S.W.2d 183, 184 (Tex.Civ.App.—San Antonio 1971, error ref’d n. r. e.):

“It must be recognized at the outset that since this suit was not filed in the form provided by Rule 185, appellant was not required to file a sworn answer.”

See also, Unit Inc. v. Ten Eyck-Shaw, Inc., 524 S.W.2d 330, 333 (Tex.Civ.App.—Dallas 1975, writ ref’d n. r. e.); Biscamp v. Zeno Carpet Company, 473 S.W.2d 218, 220 (Tex.Civ.App.—Beaumont 1971, no writ); Copeland v. Hunt, 434 S.W.2d 156, 158 (Tex.Civ.App.—Corpus Christi 1968, writ ref’d n. r. e.).

Plaintiff’s pleadings being insufficient to constitute a sworn account under Rule 185, the burden was on him to prove his claim by a preponderance of the evidence. Layne Glass Company v. Parker, 340 S.W.2d 363 (Tex.Civ.App.—Fort Worth 1969, no writ); Biscamp v. Zeno Carpet Company, supra.

Additional complaint is made by plaintiff that the trial court wrongly refused to submit requested issues as to whether or not plaintiff performed specified legal services for defendants whether the defendants prevented plaintiff’s performance by their conduct, etc. Plaintiff asserts that these issues constituted a legal defense and are “controlling” issues in the sense that they were not included within any of the submitted issues. We disagree.

Special Issue No. 1, set out in the margin, supra, broadly submitted the issue of legal services performed, and the jury found that plaintiff had been paid for all such services. As said in Holmes v. J. C. Penney Company, 382 S.W.2d 472, 473-474 (Tex.1964):

“[I]n submitting a case upon special issues, the court should submit only the controlling issues made by the pleadings and the evidence and is not required to submit various phases or shades of the same issue. Rule 279. Repeatedly the attention of the bench and bar has been called to this correct mode of submission.”

See also, Vahlsing Christina Corp. v. Ryman Well Service, Inc., supra (512 S.W.2d at 811); American Pozzolan Corp. v. Desert Trucking Co., 450 S.W.2d 433 (Tex.Civ.App.—San Antonio 1970, writ ref’d n. r. e.).

Among plaintiff’s points of error is one asserting that the trial “court erred in entering judgment for the defendants on their cross-action because defendants failed to secure any jury finding that plaintiff owed defendants any sum of money, and failed to secure any other kind of jury finding upon which it could be determined that plaintiff owed defendants any sum of money.” Defendants were awarded a total of $1,615; out of this amount $915 paid for a patent application was ordered refunded to them, and $700 found to have been loaned to plaintiff was ordered returned. We will deal with these awards separately.

In answering Special Issue No. 4, the jury specifically found that an aggregate of $700 had been loaned to plaintiff by the defendants on two distinct occasions. This was a hotly contested issue during the trial and there is sufficient evidence in the record to support the jury’s finding. Consequently, this portion of the judgment is affirmed.

As to the remaining $915, however, we are of the opinion that plaintiff’s complaint is well grounded. Defendants concede that Special Issue No. 1 is the only issue upon which the recovery of this sum could possibly be based. We find, however, that there is no possible interpretation of this issue which will afford defendants reimbursement of their $915. At most the issue permits only a finding that defendants have paid in full for all services performed. It was a defensive issue in plaintiff’s suit; it was not an offensive issue on their cross-action.

Defendants assert, however, that the court’s judgment may be upheld by “deeming” findings to support it. We disagree.

As explained by J. B. Dooley in his comment in 20 Texas L.Rev. 32, 42 (1941) (included in the General Commentary following Rule 279):

“Under the express terms of Rule 279, the authority for a presumed finding on any unsubmitted issue belonging to a given ground of recovery or defense depends upon there having been a submission of some other issue ‘necessarily referable’ to that same ground of recovery or defense.”

Thus, where there is an omission of a controlling issue which is one of a cluster of issues submitted “embodying a theory of recovery or defense, it will be implied that the omitted issue was found in support of the judgment.” Allen v. American National Insurance Company, 380 S.W.2d 604, 609 (Tex.1964); Reliable Life Insurance Company v. Torres, 509 S.W.2d 409, 411 (Tex.Civ.App.—Austin 1974, writ ref’d n. r. e.). A trial court is not authorized, however, to make findings of fact as to an omitted issue which is an independent ground of recovery and which is not conclusively established by the evidence. Glens Falls Insurance Co. v. Peters, 386 S.W.2d 529, 532 (Tex.1965).

Here, no issue inquiring whether defendants were entitled to a refund of the $915 was requested or submitted. Defendants, as cross-plaintiffs, had the burden of securing a favorable finding on this point and, according to the general rule, failure to request an issue on which a party relies results in a waiver of his cause of action. Phelan v. Settle, 438 S.W.2d 377, 381 (Tex.Civ.App.—Amarillo 1969, writ ref’d n. r. e.); Wright v. McKinzie, 302 S.W.2d 231, 234 (Tex.Civ.App.—San Antonio 1957, no writ).

Accordingly, we reverse that part of the trial court’s judgment which ordered returned the $915 paid for a patent application for defendants’ portable bathtub. We further note that our holding on this point renders unnecessary any consideration by us of plaintiff’s asserted points of error in regard to the Statute of Limitations and the refusal of the trial court to submit requested defensive issues related to this ground of recovery.

In his final point of error, plaintiff urges that the trial court erred in overruling his motion for mistrial “based upon a direct communication from the defendant, H. V. Dixon, to the jury, out of the presence of the court and the plaintiff and plaintiff’s counsel.” Briefly, the facts are that while a conference was being held in the judge’s chambers, defendant Dixon proceeded to demonstrate to the jury and the courtroom at large the use and various features of his portable bathtub invention. Plaintiff’s brother, L. P. Kinnear, being under the rule, watched the demonstration through the courtroom windows but was unable to hear the monologue which accompanied it. We note that at the outset of the trial below, he had also demonstrated the workings of his bathtub for the court and the jury with the approval of all parties.

That the event complained of occurred is undisputed. Plaintiff, however, takes the position that the granting of a mistrial is mandatory under these circumstances while defendants urge that a showing of probable injury is a prerequisite to the granting of same.

In Fountain v. Ferguson, 441 S.W.2d 506, 507 (Tex.1969), our Supreme Court stated the prevailing rule as follows:

“The one complaining about jury misconduct has the burden to prove the overt act of misconduct, that it was material misconduct, and ‘from the record as a whole that injury probably resulted’. Rule 327, T.R.C.P.; Crawford v. Detering Co., 150 Tex. 140, 237 S.W.2d 615 (1951); White Cabs v. Moore, 146 Tex. 101, 203 S.W.2d 200 (1947).” (emphasis added)

Having carefully examined the entire record, we are ineluctably led to the conclusion that the misconduct complained of was not material and that it does not reasonably appear that probable injury resulted to the plaintiff.

Plaintiff has other points of error which we have considered, and finding no merit therein they are accordingly overruled.

The judgment of the trial court is reformed to exclude therefrom the recovery of $915, and as so reformed, is affirmed. Costs on appeal are taxed one-half to plaintiff and one-half to defendants.

       1. That plaintiff had performed no services for defendants for which he had not been paid. 2. Conditionally submitted and not answered. 3. That when defendants paid plaintiff $915, they agreed that was to be the total charges for all legal services, patent drawings and filing fees. 4. (a) On August 22, 1974, defendants loaned plaintiff $500. (b) On October 28, 1974, defendants loaned plaintiff $200.


author: YOUNG, Justice.

text:
    Ruby IVES, d/b/a Carriage Mobile Sales, Appellant, v. Lola WEBB, Appellee.
    No. 1131.
    Court of Civil Appeals of Texas, Corpus Christi.
    Nov. 18, 1976.

      William K. Wilder, Edna, for appellant.
    Nathan P. Hoffman, O. F. Jones, III, Victoria, for appellee.
   OPINION

YOUNG, Justice.

This is a breach of contract suit. The plaintiff, Lola Webb, sued defendant, Ruby Ives, d/b/a Carriage Mobile Home Sales, for failure to properly perform a contract to move and to set up plaintiff’s mobile home. Trial was to a jury which found that defendant failed to perform as agreed; that such failure was the proximate cause of damage to plaintiff’s property; that plaintiff sustained $350.00 damages. Based on that verdict the trial court rendered judgment in favor of the plaintiff for $350.00. Defendant appeals.

On June 7, 1974, appellee Webb contracted with appellant Ives to move her mobile home to a new site in an area in Victoria County known as Shady Oaks. By written contract the appellant agreed to disconnect water and electric connections; to transport designated personal property of appellee; and to unblock, tow, rebloek, and level the mobile home. By oral agreement appellee would arrange for the preparation of the lot site, including removal of trees if necessary.

Appellee’s claim is based on: damage to her sewer line and to fixtures, shelves, and doors of her mobile home; unauthorized cutting of trees on her lot; failure to properly level the mobile home; temporary loss of use of the home due to delay in moving and improper set up; and damage caused by felling a tree on her air conditioner, dryer and television antenna.

Appellant presents two points of error. She urges in the first that the trial court erred in failing to grant her motion for judgment non obstante veredicto; in the second, that special issue number 3 was improperly framed. The latter point will be considered first.

On appeal appellant complains for the first time that special issue number 3 was fatally defective because it did not inquire into the before and after cash market value of appellee’s damaged property, and that the jury was thus presented with an improper means to calculate damage.

Appellant did not object at the trial to special issue number 3. She cannot now on appeal object to this special issue for the first time. Where no objection is made, any complaint regarding the form or substance of the special issue is waived. Allen v. American National Insurance Company, 380 S.W.2d 604, 609 (Tex.Sup.1964); Lanphier Construction Company v. Fowco Construction Company, 523 S.W.2d 29, 35 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n. r. e.); Rules 272 and 274, T.R.C.P. Appellant’s second point is overruled.

In appellant’s first point, she argues that there is no evidence of actual monetary loss measured by a proper legal method of computation, and she should therefore be entitled to judgment as a matter of law. On a “no evidence” point, we must view the evidence most favorably to the findings of the jury, considering only the evidence and inferences which support those findings. Miller v. Riata Cadillac Company, 517 S.W.2d 773, 777 (Tex.Sup.1974).

Special issue number 3 of which appellant complains was presented to the jury as follows:

“What amount of money, if any, if paid now in cash, do you find from a preponderance of the evidence would compensate the Plaintiff for her actual damages proximately caused by the damage to her trailer house, and lot, if any you have so found? In answering this special issue you may take into consideration the following elements and none other:
a. Damages, if any, to the trailer house sewer line system,
b. Damage to the trailer house doors and shelves, if any,
c. Damages, if any, to the Plaintiff’s air conditioner, clothes dryer, and television antenna.
d. Damages received, if any, from the Defendant’s failure to properly level the trailer house, if you so find that the trailer house was improperly leveled by the Defendant.
e. Diminished market value of the Plaintiff’s lot, if any.
f. Loss of use by Plaintiff of the trailer house during that period of time, if any, that the trailer house was delayed in being relocated by the Defendant, if you find that the Defendant did proximately cause any such delay.
Answer in Dollars and Cents.
We, the Jury answer 350.00 ”

It will be noted that this issue merely informed the jury of the elements which may be considered in arriving at a total damage figure. It did not request a specific finding of an amount for each element. The trial court may submit issues broadly under Rule 277, T.R.C.P., combining elements or issues. Absent objection, and there was no objection by appellant, the special issue cannot be attacked for the first time on appeal, as discussed above.

We, therefore, examine the record to determine whether there was any competent evidence which the jury could properly use in reaching its finding of $350.00 in damages. See Nickel v. Snider, 484 S.W.2d 940, 943 (Tex.Civ.App.—Corpus Christi 1972, writ ref’d n. r. e.). Appellee’s expert witness Clegg, owner of a mobile home service company, testified that proper repairs to the sewer pipe, connections, and interior facilities would cost up to $100; that repairs to the doors and shelves were estimated to reach approximately $95. Appellee testified that her clothes dryer, ruined when appellant’s employees felled a tree upon it, was worth as much as $75. Although appellant stated the television antenna was completely broken and bent, she did not affix a dollar value to it, nor to the damage to the air conditioner which remained operable despite the fall of the tree onto it.

The general rule for measuring damages to personalty is the difference in market value immediately before and after injury to such property at the place where the destruction occurred. If the property is not destroyed but is susceptible of repairs, the owner may recover the reasonable costs of such replacement and repairs as are necessary to restore the damaged article to its condition immediately prior to the accident. Pasadena State Bank v. Isaac, 149 Tex. 47, 228 S.W.2d 127, 128 (1950). The testimony regarding costs of repair to the mobile home and the replacement value of the clothes dryer were within this rule. These estimates constituted competent, probative evidence of damages measured by a proper legal method of computation.

The only other evidence of monetary loss concerns the trees cut by appellant. The trees are not claimed to have had any value as timber or other use separate and apart from the land. Appellee testified that the trees were an important factor in her decision to purchase the lot in question, indicating their ornamental and shade value was of considerable consequence to her. Ordinarily, the measure of damages for loss of trees which are part of the realty is the difference in value immediately before and after the injury. Cummer-Graham Co. v. Maddox, 155 Tex. 284, 285 S.W.2d 932, 936 (Tex.Sup.1956).

Appellee testified that the lot was purchased for $2,300.00 a few days before the trees were cut. The only monetary estimate of the diminution in value was appellee’s testimony that the lot was worth $600.00 less immediately after the cutting. While an appraisal or expert testimony would have been helpful, this is some evidence of reduction in market value, and the jury could consider the testimony as an element of the total damage figure. See Southwestern Bell Telephone Company v. Willie, 329 S.W.2d 466 (Tex.Civ.App.—Austin 1959, writ dism’d).

We need not rely entirely on diminished market value of the lot as the only proper measure of damages, however. An exception to the general rule was carved out by the San Antonio Court of Civil Appeals in Lucas v. Morrison, 286 S.W.2d 190, 191 (Tex.Civ.App.—San Antonio 1956, no writ). Where the loss of a shade tree was stipulated to have caused no reduction in the market price of the land, the Court allowed a recovery for its intrinsic value to the owner. In a similar case, recovery of the intrinsic value of a tree was denied absent proof that the usual standard of reduced market value was inappropriate. See Smith v. Dye, 294 S.W.2d 452, 464-65 (Tex.Civ.App.—Galveston 1956, no writ).

In the case at bar, the appellant’s own witness testified that the real estate had not diminished in value at all. Thus, through her own witness, appellant laid the predicate which permits consideration of the intrinsic value of the destroyed trees rather than reduced market value of the realty.

We conclude that the jury could have believed the lot suffered a diminution in market value, or, alternatively, that there was no reduction in market value, but rather a loss of intrinsic value to appellee. In either case, the testimony of a $600.00 loss due to removal of trees was a proper consideration as an element of the damage issue.

The sum of all competent evidence of monetary loss which would be considered by the jury is in excess of their finding of $350.00. There is, therefore, evidence to support the judgment and appellant’s first point is overruled.

By cross point appellee complains this appeal was perfected solely for the purpose of harassment and prays for assessment of a 10% penalty against appellant as authorized by Rule 438, T.R.C.P. The reviewing court is required to inspect the entire record and notice any errors, whether assigned or not, and assess damages only in the event the court concludes from the whole record that the appeal was not taken in good faith, but for delay only. Biard Oil Company v. St. Louis Southwestern Railway Company, 522 S.W.2d 588, 591 (Tex.Civ.App.—Tyler 1975, no writ); Aetna Casualty and Surety Company v. Carlee, 416 S.W.2d 890, 893 (Tex.Civ.App.—Fort Worth 1967, no writ).

Although we find appellant’s points of error to be without merit, we cannot say without doubt that the record reveals an intended delay or harassment. Appellant did not favor us with oral argument, but she did timely file the entire record and her brief in this Court. Accordingly, the 10% penalty is denied and appellee’s cross point is overruled.

The judgment of the trial court is AFFIRMED.


text:
    Angelina MARTINEZ, Appellant, v. TRAVELERS INSURANCE COMPANY, Appellee.
    No. 5656.
    Court of Civil Appeals of Texas, Waco.
    Nov. 18, 1976.
    Rehearing Denied Dec. 16, 1976.

      Maner, Nelson & Jones, Inc., Lubbock, for appellant.
    Crenshaw, Dupree & Milam, Lubbock, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by Angelina Martinez from judgment she take nothing in a workman’s compensation case.

Appellant Martinez sued appellee Insurance carrier for workman’s compensation benefits for injuries she alleged she received on December 19, 1973 while working for Elmer’s Weights in Lubbock County.

Appellant alleged she suffered injuries to her back while attempting to move a roll of heavy canvass. Appellee Insurance carrier answered alleging that the incapacity suffered by appellant was caused solely by a prior injury.

Trial was to a jury which found in answer to Issue 1 that appellant Martinez did not sustain an accidental injury on December 19,1973. The trial court rendered judgment on the verdict that appellant take nothing.

Appellant appeals on 2 points:

1) The answer of the jury to Issue 1 is so against the great weight and preponderance of the evidence as to amount to an injustice in light of the uncon-tradicted testimony that appellant sustained an accidental injury on December 19, 1973.
2) The trial court erred in admitting evidence of a previous “claim” by plaintiff because the fact of such “claim” was totally irrelevant to any issue and was highly prejudicial to appellant.

Contention 1 asserts the jury’s answer to Issue 1 is against the great weight and preponderance of the evidence.

There is evidence appellant was hired by Elmer’s Weights on September 20,1973 and went to work as a cutter; which involved the cutting of canvass which comes in heavy rolls; that appellant at 3:30 on December 19,1973, while attempting to turn a roll around to get it in position for cutting felt a popping in her back, followed by a burning sensation; that she told her supervisor what happened but continued to work the rest of the day; that she went to the company doctor the next day, was treated and thereafter hospitalized from January 14, 1974 to February 7, 1974 and from February 17, 1974 to February 26, 1974.

There is evidence that during the 14 weeks appellant was employed at Elmer’s, that she worked only 5 full weeks; that she was off work the balance of the time for personal reasons or illness, and was off the day before December 19,1973 for a doctor’s appointment. There is further evidence that while employed at Cherry’s Cafe (prior to her employment at Elmer’s) appellant slipped on a sack of potatoes and fell hurting her leg and back; that she was treated by a doctor for her back on May 21, 1973 and on July 16, 1973; that appellant retained an attorney and authorized him to contact Mrs. Cherry, and made claim against Mrs. Cherry for medical expenses in connection with the injury received while employed by Mrs. Cherry. (Mrs. Cherry did not carry Workman’s Compensation Insurance).

In a workman’s compensation case, as in any other case, plaintiff has the burden of proving elements of her asserted claim by a preponderance of the evidence. American Surety Co. v. Semmons, CCA, NRE, Tex.Civ.App., 413 S.W.2d 732. And the jury is judge of the credibility of the witnesses and the weight to be given their testimony and the inferences to be drawn therefrom. Burt v. Lochausen, S.Ct., 151 Tex. 289, 249 S.W.2d 194.

Under the record the jury had the right to disbelieve appellant’s claim that she sustained a back injury while working for Elmer’s Weights on December 19,1973, and to find she had not proven such injury by a preponderance of the evidence. We cannot say from the record as a whole that the jury’s finding is against the great weight and preponderance of the evidence. In re Kings Estate, S.Ct., 150 Tex. 662, 244 S.W.2d 660.

Contention 2 asserts the trial court erred in admitting evidence of a previous “claim” by appellant.

The evidence complained of was either not elicited in the presence of the jury, or was not objected to.

Appellant’s points are overruled.

AFFIRMED.


author: CORNELIUS, Justice.

text:
    G. P. ENTERPRISES, INC., Appellant, v. Gordon H. ADKINS, Appellee.
    No. 8404.
    Court of Civil Appeals of Texas, Texarkana.
    Nov. 23, 1976.

      Robert A. Scardino, Houston, for appellant.
    Gerard B. Rickey, Dallas, for appellee.
   CORNELIUS, Justice.

Appellee filed suit in Collin County against appellant for breach of contract. Appellant, a corporation, filed its plea of privilege to be sued in Harris County where its principal place of business is located. The trial court overruled the plea and appellant has appealed.

The judgment sustaining venue in Collin County was based upon Tex.Rev.Civ.Stat. Ann. art. 1995-23 (1964) which provides that suits against a private corporation may be brought in the county “in which the cause of action or part thereof arose.” Appellant’s primary contention is that appellee did not sustain his burden of showing that the cause of action or a part thereof arose in Collin County.

Appellee’s evidence may be summarized as follows: Appellee had received information that appellant was interested in selling some 12,000 feet of oil well casing. From his office in Collin County he telephoned appellant’s office in Houston and inquired about the pipe. Mr. Prause, Vice President of appellant, stated from his office in Houston that appellant had the pipe which it would allow appellee to sell as broker. Mr. Prause stated that the price would be $25.00 per foot and that appellant would pay appellee, as broker, a commission of $4.00 per foot. Appellee consented to that arrangement and told Mr. Prause to send him a Telex, in care of appellee’s bank in Collin County, confirming the arrangement. Appellant sent the Telex as requested. It provided, among other things, that appellant would sell the pipe at $21.00 per foot net to it, and it agreed:

“ . . .to remit to Mr. Gordon Atkins (sic) via his specified mode of movement additions (sic) funds received from Apxco (the party to whom appellee expected to sell the pipe) and will be payable upon collection as received. GP Enterprises, Inc. is not responsible for any commissions or brokerage fees payable to other parties than to Mr. Gordon Atkins direct.” (Parenthesis supplied.)

Upon receipt of the Telex appellee called Apexco and arranged for the sale. Pursuant to appellant’s agreement to pay his commission “via his specified mode of movement,” appellee notified appellant to forward his commission to him in Plano, Collin County, in care of his local bank. Thereafter, appellant paid appellee $27,-000.00 commission at his bank in Plano. Appellee called appellant to inquire as to the reason for the deficiency in the commission. He was told that only 9,000 feet of pipe was usable and that appellant and Apexco had agreed to certain changes in the specifications for the threading and joints for the casing. Because appellant’s cost was greater than it anticipated, appel-lee was told that appellant was only going to pay $3.00 per foot commission, and it was to be paid only on the 9,000 feet of pipe which was actually delivered. Appellee thereupon filed suit to collect the $4.00 per foot commission on the 12,000 feet of casing as he contended was originally agreed.

To sustain venue under subdivision 23 of Article 1995, a plaintiff must establish by a preponderance of the evidence all of the elements of a cause of action against the defendant, and that at least a part of that cause of action occurred in the county of suit. See 1 McDonald’s, Texas Civil Practice, Sec. 4.30.2, p. 518, and cases there cited. In a breach of contract case the “cause of action” is composed of two elements: (1) the contract, which is the primary right, and (2) the breach thereof, which is the act or omission on the part of the defendant without which there could be no cause of action or right of recovery. Stone Fort Nat. Bank of Nacogdoches v. Forbess, 126 Tex. 568, 91 S.W.2d 674 (1936); Taylor-Evans Seed Company v. Hart, 420 S.W.2d 138 (Tex.Civ.App. Amarillo 1967, no writ); National Life Co. v. Wolverton, 163 S.W.2d 654 (Tex.Civ.App. Waco 1942, no writ); General Motors Acceptance Corporation v. Lee, 120 S.W.2d 622 (Tex.Civ.App. Fort Worth 1938, no writ). Thus, if the contract was entered into in the county of suit, or if the breach thereof occurred in the county of suit, venue may be retained in that county. Stone Fort Nat. Bank of Nacogdoches v. Forbess, supra. A contract is made where the acquiescence or final agreement of the minds occurs. If the contract is entered into through an offer by one party and its acceptance by another, the agreement is deemed to have been made at the place where the offer is accepted. Curtis Peanut Co. v. United Sales Co., 283 S.W.2d 113 (Tex.Civ.App. Dallas 1955, no writ); Loessin & Herndon, Inc. v. Coffield Lumber Company, 280 S.W.2d 796 (Tex.Civ.App. Galveston 1955, writ ref’d); Farmers’ State Bank v. Sullivan, 241 S.W. 727 (Tex.Civ.App. Beaumont 1922, no writ); 13 Tex.Jur.2d, Contracts, Sec. 298, p. 545. That principle applies to contracts made over the telephone. Traders Oil Mill Co. v. Arnold Bros. Gin Co., 225 S.W.2d 1011 (Tex.Civ.App. Galveston 1949, no writ); Gleason v. Southwestern Sugar & Molasses Co., 214 S.W.2d 640 (Tex.Civ.App. Waco 1948, no writ); Cowdin Grocery Co. v. Early-Foster Co., 237 S.W. 578 (Tex.Civ.App. Austin 1921, no writ). However, where other things or acts are to be done after acceptance before the parties are to be bound, the contract will be considered to have been made at the place where the other acts are performed. Clifford-Bell Petroleum Co. v. Banker’s Petroleum & Refining Co., 286 S.W. 564 (Tex.Civ.App. Fort Worth 1926, no writ); 13 Tex.Jur.2d, Contracts, Sec. 298, p. 546.

The court in this case made findings of fact and conclusions of law. Among other things, it was found that:

“1. On June 14, 1974, Defendant acting through its duly authorized Vice President, Mr. Prause, offered to authorize Plaintiff to broker approximately 12,000 ft. of casing and to pay Plaintiff a commission of $4.00 per ft. on all casing for which Plaintiff found a buyer, at $25.00 per ft.
2. Plaintiff assented to Defendant’s offer by telephone from his office in Plano, Collin County, Texas.
3. Plaintiff and Defendant agreed that the arrangement would be confirmed in writing and be effective upon delivery of a telegram to Plaintiff in care of his bank in Plano, Collin County, Texas.
4. Defendant sent the telegram, a true copy of which is attached hereto as Exhibit A, to Plaintiff and such telegram was delivered to Plaintiff at Plaintiff’s bank in Collin County, Texas.
5. Plaintiff acted upon receipt of the telegram by calling Apexco from his office in Collin County regarding purchase of the casing upon the terms stated in the aforementioned telegram.
6. Plaintiff specified to Defendant that his commission should be forwarded to him in care of his bank in Plano, Collin County, Texas.
7. Defendant paid to Plaintiff at Plaintiff’s bank in Collin County, Texas, only $27,000.00.
8. Defendant has not paid Plaintiff any sums of money in connection with the aforementioned casing other than the $27,000.00.”

Other findings established that appellee performed all of his obligations under the contract and, for the purposes of the venue hearing, had proven all of the elements of his cause of action against appellant. The record reveals that these findings are supported by sufficient evidence. As the court found that the acceptance of the offer was made in Collin County, and that the arrangement was to be effective upon the receipt by appellee of appellant’s telegram in Collin County, a portion of appellee’s cause of action, i. e., the contract or primary right arose in Collin County as required by subdivision 23. Moreover, appellant agreed to pay appellee’s commissions “via his specified mode of movement.” Appellee specified that payment was to be made to him in Collin County. As full payment, at least according to appellee’s view of the contract, was not made in Collin County as required, the breach of which appellee complains also occurred in Collin County.

We conclude that appellee sustained his burden of showing that his cause of action or a part thereof arose in Collin County as required by subdivision 23.

Appellant also complains that the venue hearing developed into an actual trial of the case on the merits, whereas it should have been restricted to a hearing on venue facts only. As above noted, in a subdivision 23 case the plaintiff is required to establish by a preponderance of the evidence on the venue hearing all of the elements of his cause of action. The court properly heard evidence on all those elements and made findings thereon. Those findings do not establish the elements of appellee’s cause of action on the merits, but only for the purpose of determining venue. The judgment properly made no disposition of the case on the merits but only decreed that the plea of privilege was overruled.

We find no error. The judgment of the trial court is affirmed.


author: JONES, Justice.

text:
    Morris POWELL, Appellant, v. Maurice PAYTON, Jailer, Henry County Jail, Appellee.
    Supreme Court of Kentucky.
    Nov. 12, 1976.
    Jack Emory Farley, Public Defender, Gary E. Johnson, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Frankfort, for appellee.
   JONES, Justice.

The issue on this appeal is whether the trial court erred in denying Morris Powell’s petition for habeas corpus.

On December 3,1975, Powell was convicted in the Shelby Circuit Court of third-degree burglary. The trial court sentenced him to the Kentucky State Reformatory for a term of one year.

On January 12, 1976, Powell was convicted in the Henry Circuit Court on two counts of possessing marijuana for the purpose of sale. The trial court fixed his punishment at confinement in the county jail for a period of three months on each count. In sentencing Powell, the trial court directed that each of the sentences be served consecutively and further, that they be served consecutively with the sentence imposed by the Shelby Circuit Court. Powell was returned to the reformatory. The Henry Circuit Court placed a detainer with the authorities of the reformatory, directing that upon completion of the Shelby Circuit Court sentence Powell be returned to the Henry County Jail to serve the two misdemeanor sentences.

In July 1976, Powell was released on parole, and returned to the Henry County Jail, where he is serving the two three-month’s sentences imposed by the Henry Circuit Court.

Powell contends that the trial court erred in directing that his two sentences' for misdemeanor offenses committed in Henry County run consecutively with the felony sentence imposed by the Shelby Circuit Court.

The trial court in denying Powell’s petition for writ of habeas corpus indicated that certain provisions of KRS 532.110 were ambiguous. He conceded, however, that if Powell had been convicted in the Henry Circuit Court on a felony charge and two misdemeanors, then the misdemeanor convictions would run concurrently with the felony sentence. The question that gave him concern was whether a judge of one circuit court can direct a sentence imposed by him to run concurrently or consecutively with a previously imposed sentence by another circuit court.

Concurrent and consecutive terms of imprisonment are dealt with in the provisions of KRS 532.110. Sub-section (1) of the statute provides:

“When multiple sentences of imprisonment are imposed on a defendant for more than one crime, including a crime for which a previous sentence of probation or conditional discharge has been revoked, such multiple sentences shall run concurrently or consecutively at the time of sentence, except that:
(a) A definite and an indeterminate term shall run concurrently and both sentences shall be satisfied by service of the indeterminate term.” (Emphasis added)

The statutes classify a sentence for a misdemeanor as a definite sentence, and for a felony as an indeterminate sentence. KRS 532.090, KRS 532.060. Therefore, the exception contained in KRS 532.110(1)(a) is applicable when an offender is sentenced for a misdemeanor conviction by a circuit court other than a circuit court that has imposed a sentence for a felony conviction. In such situations the misdemeanor conviction must run concurrently with the previously imposed felony sentence from another circuit.

The judgment is reversed with directions that Powell’s petition for writ of habeas corpus be granted.

All concur.


author: MORGAN, Judge. FINCH, Judge

text:
    In re Robert H. WENDT, Respondent.
    No. 59062.
    Supreme Court of Missouri, En Banc.
    Dec. 13, 1976.
    Lewis B. Shepley, David S. Hemenway, St. Louis, for informants.
    George R. Gerhard, St. Louis, for respondent.
   MORGAN, Judge.

In this original proceeding, the Bar Committee of the Twenty-Second Judicial Circuit seeks disciplinary sanctions against respondent Robert H. Wendt, an attorney at law, for professional conduct alleged to have been violative of Supreme Court Rule 4 — “Code of Professional Responsibility.”

The Honorable Elgin T. Fuller, having acted as Master in the cause by virtue of appointment by this court, now recommends that respondent be censured and that costs of the proceeding be assessed against him. Informant suggests that the recommended discipline would be inadequate, while respondent continues to deny any wrongdoing. Some factual background is called for to resolve the issue.

On the recommendation of another attorney, respondent in 1971 began the representation of one Leahman Triplett (an eight-time previously convicted felon) in two separate cases charging assault with intent to kill with malice. One charge stemmed from his putting a pistol to the head of a bar patron with whom he had argued and pulling the trigger, before some twenty witnesses, only to have the same fail to go off. He then dropped the pistol at the admonition of the armed bartender. The second charge was based on his then going to his home with a companion, obtaining a 12 gauge shotgun loaded with deer slugs and returning to lie in wait outside the tavern for the patron with whom he had argued. In the meantime, one Ken King, a stranger to the prior event, had entered the tavern to drink a beer. When he left, Triplett raised the shotgun and fired twice blowing off King’s right leg below the knee. During the pendency of the two charges, it seems agreed that respondent was successful in obtaining dismissal of two other charges against Triplett in Peoria, Illinois, involving robbery with a dangerous and deadly weapon and another of aggravated assault. The state elected to try the shotgun case first and a hung jury resulted. Thereafter, by plea negotiations, respondent arranged a sentence of twelve years in each case to be served concurrently. Pleas were made and sentences were entered; but, at the request of Triplett, the same were set aside. Trial of the shotgun case a second time resulted in a finding of guilty and a sentence of thirty-five years under the provisions of the Habitual Criminal Act. An appeal was filed.

Triplett later learned that his companion in the shooting episode was released on bail pending his own appeal of a twenty-five year sentence; and, he pressured his wife, half-brother and mother to obtain his release on bond. After their efforts with professional bondsmen were unsuccessful, respondent was contacted. With bond set at $35,000, respondent suggested that Triplett’s release might be secured under § 544.455.1(5), RSMo 1969, which authorizes release after a deposit of 10% of the bond amount with court approval. The mother raised the $3,500 and the half-brother delivered it to respondent. The latter’s effort was not successful because the trial court would not approve a percentage bond in view of Triplett’s criminal record.

On delivery of the money, respondent had given a receipt (dated November 6, 1973) which read: “Robert H. Wendt hereby acknowledges receipt of $3,500 from Galon Smith [the half-brother] for the purpose of securing bail for Leahman Triplett. Failing such purpose, said money will be returned.”

In the early part of 1974, the mother and half-brother began making demands on respondent for the return of the $3,500. When nothing was forthcoming, the present complaint was made. On July 29, 1975, respondent met with complainants. He returned $2,500 to them and with their approval retained $1,000 to apply on his fee statement — which had a-balance due of approximately $15,000. Letters were then written by complainants to the committee asking withdrawal of the complaint, explaining that it had been predicated on a simple misunderstanding and expressing complete approval of the effort made by respondent to defend Triplett.

Nothing could be gained by detailing the many contacts that respondent had with Triplett’s relatives during the period between execution of the “receipt” and the so-called “compromise.” Those developed in the record tend to reflect some slight possibility there was a misunderstanding. However, absent the belated effort of complainants to assist respondent, the finding of the Master that respondent was guilty of professional misconduct in failing to return the $3,500 as called for in the receipt is supported by the record before this court. DR 1 — 102(A)(1), (4) and (5).

Protection of the public and maintenance of the integrity of the profession are paramount in a disciplinary proceeding. Punishment, as such, is secondary. In re Mattes, 409 S.W.2d 54, 57 (Mo. banc 1966); In re O’Brien, 478 S.W.2d 310, 311 (Mo. banc 1972).

Respondent, now 33 years of age, graduated from the School of Law of the University of Missouri — Columbia in 1967. Since that time, he has fulfilled his military obligation and developed a reputation as an outstanding lawyer in the City of St. Louis. Some of the most reputable lawyers and judges in this state testified on behalf of respondent. He was identified not only as one having excellent legal ability but a person of high ethical and moral standards. In his area of specialization, criminal law, he is known as a tough advocate and extremely competent. No one suggests that the offense complained of was anything other than an isolated event.

In the case of In re Sullivan, 494 S.W.2d 329 (Mo. banc 1973), this court quoted with approval (l. c. 334) from 7 Am. Jur.2d, Attorneys at Law, § 18, pp. 52, 53, as follows: “Disbarment is the extreme measure of discipline and should be resorted to only in cases where the lawyer demonstrates an attitude or course of conduct wholly inconsistent with approved professional standards. To disbar it should be clear that he is one who should never be at the bar; otherwise suspension is preferable. For isolated acts censure, public or private, is more appropriate.” The recommendation of the Master is consistent therewith.

Respondent is hereby censured publicly and the costs of this proceeding are taxed against him.

BARDGETT, HENLEY and DONNELLY, JJ., concur.

FINCH, J., dissents in separate dissenting opinion filed.

HOLMAN, J., dissents and concurs in separate dissenting opinion of FINCH, J.

SEILER, C. J., dubitante.

FINCH, Judge

(dissenting).

I respectfully dissent.

As noted in the principal opinion, respondent suggested to Mrs. Burnett, the mother of his client, Leahman Triplett, that it might be possible to secure his release pending appeal on the basis of a deposit of $3,500 which was one-tenth of the amount of the appeal bond. Mrs. Burnett raised that sum and sent it to respondent by her son, Galon Smith. Respondent then prepared, signed and delivered a receipt which read as follows:

“Robert H. Wendt hereby acknowledges receipt of $3,500 from Galon Smith for the purpose of securing bail for Leah-man Triplett. Failing such purpose, said money will be returned.”

Judge Bloom refused to approve the release of Triplett on the basis of a deposit of $3,500. Respondent then suggested to Mrs. Burnett and Galon Smith the possibility of appealing that decision to the Missouri Court of Appeals, St. Louis District. Subsequently, he decided against so doing and advised Mrs. Burnett and Smith. They then began to inquire about the return of the $3,500. Respondent did not return the money, claiming, according to his testimony, that he was entitled to retain it and apply it against his fee. Ultimately, Mrs. Burnett and Smith made complaint to the Circuit Bar Committee of the 22nd Judicial Circuit. After that was done, respondent went to see Mrs. Burnett and Smith and worked out an agreement whereby he repaid $2,500 and retained $1,000 to apply on the fee still due him for representing Triplett.

The master appointed by this court, after hearing evidence, concluded that respondent had converted the $3,500 to his own use and thereby violated applicable disciplinary rules DR 1-102(A)(1), (4), and (5). That conclusion, in my judgment, is compelled by the evidence. The receipt prepared by respondent very clearly stated that he received the $3,500 for the specific purpose of securing bail for Triplett and that failing that objective, the money would be returned. The objective was not achieved but respondent did not return the money even after repeated inquiry and request by Mrs. Burnett and Smith. It is apparent that he intended to retain the $3,500 and apply it against his unpaid fee regardless of his agreement evidenced by the receipt he prepared and gave, and that the only reason he ultimately returned part of the money was the fact that complaint had been made to the Circuit Bar Committee. Such conduct did constitute conversion which cannot be excused on the basis that part of respondent’s fee had not been paid and that he was entitled to be paid.

In my judgment, it is not sufficient simply to censure respondent for this conduct and for that reason I cannot concur in the principal opinion. I would suspend respondent indefinitely with leave to apply for reinstatement after two years.