author: CLAUDE WILLIAMS, Chief Justice.

text:
    STRICKLAND TRANSPORTATION COMPANY, INC., Appellant, v. Eugene WOMACK, d/b/a Womack Lumber Company and Jack Baughtman, Appellees.
    No. 18760.
    Court of Civil Appeals of Texas, Dallas.
    March 18, 1976.
    Rehearing Denied April 15, 1976.

      H. C. McCracken, McCracken, Smith, Shields & Taylor, Carrollton, for appellant.
    Buford A. Cates, Jr., Dallas, for appellees.
   CLAUDE WILLIAMS, Chief Justice.

Strickland Transportation Company, Inc. sued Eugene Womack, d/b/a Womack Lumber Company and Jack Baughtman, Womack’s truck driver, to recover damages sustained to its motor vehicle as a result of a collision with Womack’s motor truck. Womack answered and asserted a counterclaim against Strickland to recover for the damage sustained to its truck. Strickland appeals from the judgment which awarded Womack money damages but denied Strickland any relief.

The record reveals that on July 1, 1972, Jack Baughtman was driving the Womack truck and trailer on Interstate Highway 30 in an easterly direction in the city of Dallas. The truck developed clutch trouble which resulted in a loss of power, and Baughtman pulled off the highway and disengaged the trailer from the tractor. Intending to borrow tools at a truck stop further down the highway, he drove the tractor back to Interstate Highway 30. He said that it was getting dark and that he had turned on the lights on the vehicle. He testified that he was driving between twenty and thirty miles per hour in the right hand lane of the highway when his vehicle was struck from the rear by the Strickland unit, which consisted of a motor truck and two “pup” trailers. James William Tate, the driver of the Strickland truck, testified that he was traveling east on Interstate Highway 30 when a car traveling in the same lane ahead of him darted to its left. He then saw the Womack truck “sitting up there partially on the road and partially on the shoulder.” He did not see any lights on the rear of the Womack tractor. He said that he applied all of his brakes and pulled to the left but that the corner of his rear trailer struck the Womack vehicle. Both vehicles sustained serious damage as a result of the collision.

In its petition, Strickland charged that Baughtman was negligent in failing to keep a proper lookout; in operating a vehicle without lights on the rear portion as required by law; in operating the vehicle at a speed less than the minimum permitted by law; in operating the tractor in a defective condition; and in failing to operate the tractor in one lane of traffic as required by law. Each of these acts of negligence was alleged to be a proximate cause of the collision. In its answer, Womack and Baughtman charged that Tate, the driver of the Strickland truck, was negligent in failing to keep a proper lookout and in failing to timely turn to the left to avoid the collision and that each of these acts was .a proximate cause of the collision.

In response to special issues, the jury found (1) that Baughtman did not fail to keep a proper lookout; (3) that Baughtman operated the vehicle on the roadway without lights on the rear portion thereof; (4) that such act was not a proximate cause of the collision; (8) that Baughtman was operating the vehicle in question in a defective condition; (9) that such act was negligence; (10) that such negligence was a proximate cause of the collision; (11) that Tate failed to keep a proper lookout; (12) that such failure was a proximate cause of the occurrence; (15) that Tate failed to timely turn to the left; and (16) that this failure was a proximate cause of the collision. In answer to special issue (5), the jury refused to find that Baughtman was driving his vehicle at a speed less than the minimum permitted by law. The court sustained Womack’s motion to disregard the jury’s findings in response to special issues 8, 9 and 10 and rendered judgment in favor of Womack for $8,971.50. The court denied Strickland any recovery. Strickland attacks the judgment rendered against it but does not challenge the judgment denying it any recovery against Womack and Baughtman.

In its main points on appeal, Strickland argues that the trial court committed reversible error in disregarding the jury’s answers to special issues 8, 9 and 10 since these issues were material and were supported by the evidence. Appellees Womack and Baughtman contend that there is no evidence to support the jury’s answers to these issues and that they were, therefore, properly disregarded.

The jury’s answer to a special issue may be disregarded only when it has no support in the evidence or when it is immaterial. Tex.R.Civ.P. 301; C & R Transport, Inc. v. Campbell, 406 S.W.2d 191, 194 (Tex.1966). The record shows that prior to the collision Baughtman discovered that the clutch of his truck was slipping and that, as a result of this malfunction, the motor had lost power. After stopping and disengaging the tractor, he drove the tractor back onto Interstate Highway 30. Baughtman testified that he selected the route he was traveling at the time of the collision because there was less grade to pull and he realized the truck might not have the power to make a more abrupt grade. He testified that he was driving between twenty and thirty miles per hour when the collision occurred. Mrs. Hope Martinez, a car driver who witnessed the accident, testified that Baughtman was driving partially on the shoulder of the road between ten and twenty miles per hour. Driver Tate testified that when he first saw the Womack vehicle it was “sitting” partially on and partially off the highway. We think that this testimony is competent evidence of probative value to support the jury’s answers to special issues 8 and 9 inquiring whether Baughtman was driving the Womack vehicle in a defective condition prior to the collision and whether that operation of the vehicle was negligence. The evidence shows that the vehicle was defective in that it had a slipping clutch and that the loss of power resulting from this condition affected the driver’s control over the vehicle. Consequently, we hold that the evidence is sufficient to support a finding that Baught-man was negligent in driving the tractor on a highway when he knew the motor did not have full power.

There was also evidence of probative value to support the jury’s finding that Baughtman’s negligence in driving the truck in a defective condition was a proximate cause of the collision. In addition to the evidence discussed above, the testimony of Martinez and Baughtman, that the Womack truck was being driven at a slow rate of speed, and the testimony of Tate that when he first saw the Womack truck, it loomed up in front of him and was “sitting up there partially on the road and partially on the shoulder,” support that finding. When we consider all this testimony in light of the fact that it was dark and that other vehicles were driving near the legal maximum of fifty-five miles per hour, we find that there was evidence of probative value to support the jury’s answer to special issue number 10.

In appellee Womack’s “cross-point,” which we treat as a counterpoint since ap-pellee seeks no reversal or modification of the trial court’s judgment, appellee contends that the trial court correctly disregarded issues 8, 9 and 10 because these issues, when submitted in conjunction with specific negligence issues, constituted a double submission not authorized by rule 279, Texas Rules of Civil Procedure. Appellee argues that the expression “defective condition” renders special issue number 8 a general issue which, though proper in itself under the 1973 amendment of rule 277, should not be submitted along with more specific issues covering the same factual dispute, and that findings on this series of issues should be disregarded because the more specific issue of driving at a rate of speed less than that permitted by law was submitted in special issue number 5, and the jury refused to find an answer to that issue that Baughtman was driving at such a slow rate of speed.

We cannot agree with appellee’s contention because we do not regard issues 8, 9 and 10 as “general” issues in the context of this case. The only evidence of a “defective condition” was the slipping clutch. Issues 8, 9 and 10 must be considered for our present purposes as equivalent to issues submitting whether Baught-man was operating the vehicle with a slipping clutch, whether such operation was negligence, and whether such negligence was a proximate cause of the collision. So considered, the issues were specific rather than general, and the trial court’s disregard of them in rendering judgment cannot be justified on the ground that the answer to these issues became immaterial when the jury refused to find that Baughtman was driving at a rate of speed less than the minimum, if any, provided by law. Consequently, the judgment rendered in disregard of these findings must be reversed.'

Since we hold that the judgment must be reversed on this ground, we must determine whether to render judgment for Strickland or to remand for a new trial. Tex.R.Civ.P. 505 expressly grants to the supreme court the authority to remand the case to the lower court if it shall appear that the justice of the case demands another trial. This rule was applied by the supreme court in C & R Transport, Inc. v. Campbell, 406 S.W.2d 191 (Tex.1966). In Scott v. Liebman, 404 S.W.2d 288, 294 (Tex.1966), the supreme court speaking through Justice Greenhill held that both the court of civil appeals and the supreme court, having found error in the judgment of the trial court, are authorized in a proper case to remand in the interest of justice. Both courts have discretion in the matter. Dahlberg v. Holden, 150 Tex. 179, 238 S.W.2d 699 (1951) and Morrow v. Shotwell, 477 S.W.2d 538, 541-42 (Tex.1972).

We conclude that in this case a new trial should be granted in the interest of justice. Without deciding whether there is a technically fatal conflict between the jury’s findings and answers to issue 5 and issues 8, 9 and 10, we hold that there is at least an apparent inconsistency between these findings since under the evidence the principal effect of the slipping clutch was to reduce the speed of the vehicle. Moreover, the finding that the vehicle was not being driven at a speed less than the minimum is questionable in view of the practically undisputed evidence that the Womack truck was proceeding at a speed less than thirty miles per hour, or was apparently “sitting” on the highway when first seen by the Strickland driver. Consequently, we remand the case to the trial court for further proceedings insofar as the judgment awards Womack damages against Strickland Transportation Company, Inc. Cf. C & R Transport, Inc. v. Campbell, 406 S.W.2d 191 (Tex.1966).

We see no reason, however, to disturb that part of the judgment which denies Strickland recovery against Womack. That part of the judgment is based on the findings of contributory negligence on the part of Strickland’s driver, and those findings are not challenged on this appeal. Since that portion of the judgment is severable, the judgment in that respect is affirmed.

Affirmed in part and reversed and remanded in part.

AKIN, J., not participating.

      . Although there was some evidence that the lights on the rear of the Womack vehicle were not burning on the occasion in question, there is no evidence that they were not in operating condition. Operation of the vehicle without lights on the rear was submitted in separate issues, and the jury found that such operating was not a proximate cause of the collision. Consequently, the record does not indicate that the jury might reasonably have considered the absence of rear lights as bearing on the “defective condition” issues.


source: Caselaw Access Project

license: Public Domain

text:
    Charles R. ROSE, Relator, v. Mark WHITE, Secretary of State of the State of Texas, et al., Respondents.
    No. 18968.
    Court of Civil Appeals of Texas, Dallas.
    March 29, 1976.

      Alvin Roy Granoff, Dallas, for relator.
    Richard S. Geiger, Manuel DeBusk, Ronald A. Dubner, Dallas, for respondents.
   CLAUDE WILLIAMS, Chief Justice.

Charles R. Rose has with our permission filed his petition for writ of mandamus ordering and commanding respondents White, DeBusk and Murdoch to omit the name of respondent Richard Scott Geiger from the official ballot of the Democratic primary as a candidate for the Democratic nomination for state representative, District 33-G, Dallas County, Texas. Our jurisdiction to hear and determine this original proceeding is derived from Tex.Rev.Civ. Stat.Ann. art. 1735a (Vernon Supp.1975).

The sole contention advanced by petitioner Rose is that respondent Geiger will not be twenty-one years of age on the election dates and, therefore, he is not eligible to be a candidate for the office which he seeks. Respondents contend that Geiger will attain the age of twenty-one on the 30th day day of December 1976, and since the 65th Legislature of the State of Texas will convene on the 11th day of January 1977, at which time Geiger, if elected, will take the oath of office as a representative, he is qualified to have his name placed on the ballot. It is undisputed that respondent Geiger possesses all of the other essential qualifications to be a candidate for the office of legislator. It is also without dispute that pursuant to the terms of Tex.Rev.Civ.Stat.Ann. art. 5422, the next session of the legislature, will convene on January 11, 1977.

The Tex.Const. art. Ill, § 7, entitled “Qualifications of Representatives” states:

No person shall be a Representative, unless he be a citizen of the United State's, and, at the time of his election, a qualified elector of this State, and shall have been a resident of this State two years next preceding his election, the last year thereof a resident of the district for which he shall be chosen, and shall have attained the age of twenty-one years.

On November 8, 1966, article III, § 4 of the Constitution of Texas entitled: “Election and term of members of House of Representatives,” was amended to read:

The Members of the House of Representatives shall be chosen by the qualified electors for a term of two years. Representatives shall take office following their election, on the day set by law for the convening of the Regular Session of the Legislature, and shall serve thereafter for the full term of years to which elected and until their successors shall have been elected and qualified.

Article III, § 4 of the Constitution, prior to 1966, provided that the term of office commence on the day of election.

The question presented is whether the word “eligible” as used in the constitution, refers to the time of a person’s election to office, or to the time when he assumes the duties of the office. We have concluded, and so hold, that the word “eligible” is used in connection with qualification for office and does not apply to the actual time of election.

The identical question was presented in Kothmann v. Daniels, 397 S.W.2d 940 (Tex.Civ.App.-San Antonio 1965, no writ). As the court there pointed out American courts are in disagreement as to the time when conditions of eligibility must exist in order to satisfy constitutional requirements. As stated therein, one line of authority, construing the word “eligible” to mean “capable of being chosen,” adopts the view that the required eligibility must exist at the time of election. In adopting the opposite view, the court said:

The opposing view, which appears to be followed by the majority of American courts, construes the word ‘eligible’ as referring to the capacity of holding office, so that the constitutional requirement is satisfied if the required eligibility exists at the time of commencement of the term of office. Under this view, lack of eligibility at the time of election is immaterial. Annot. 88 A.L.R. 812; 143 A.L.R. 1026.
We are satisfied that, at least where the disqualification involved is of such a nature that its continuation or termination is not within the control of the person seeking office, the better reasoning supports the proposition that where the word ‘eligible’ is used in connection with qualification for office, and there are no explanatory words indicating that such word is used with reference to the time of election, it has reference to the qualification to hold office, rather than the qualification to be elected to office. [Emphasis added.]

The Kothmann court noted that constitutional or statutory provisions which restrict the right to hold public office should be strictly construed against ineligibility, citing Willis v. Potts, 377 S.W.2d 622 (Tex.1964); Kirk v. Gordon, 376 S.W.2d 560 (Tex.1964); and Lee v. Daniels, 377 S.W.2d 618 (Tex.1964).

We agree with these authorities and hold that respondent Geiger is entitled to have his name placed upon the ballot since he will be eligible to assume the office sought by him in January 1977.

The writ of mandamus is denied.

Motion for rehearing will not be allowed.

GUITTARD, J., not sitting.


author: AKIN, Justice.

text:
    INTERNATIONAL INVESTORS LIFE INSURANCE COMPANY, INC., Appellant, v. Bettie P. UTRECHT and Candice A. Utrecht, Appellees.
    No. 18811.
    Court of Civil Appeals of Texas, Dallas.
    April 1, 1976.

      Franklin H. Perry, Thompson, Coe, Cousins & Irons, Dallas, for appellant.
    William M. Hayner, Flagg, Cooper, Hay-ner, Miller, Long & Owen, Dallas, for appel-lees.
   AKIN, Justice.

The question presented is whether drowning is included within an accidental death benefit rider to an insurance policy excluding the following risks: “Suffocation, strangulation, or smothering when such death occurs prior to the policy anniversary nearest the insured’s fourth birthday.”

Plaintiffs Bettie and Candice Utrecht sued International Life Insurance Company for benefits under an accidental death rider to a life insurance policy on Alexander S. Utrecht, who drowned March 14, 1974, at age three years, five months. The death certificate stated that the death was by asphyxia, due to drowning. The defendant paid the face amount of $10,000 to plaintiffs on the basic policy but denied liability under the accidental death double indemnity rider. The defendant contended that drowning was a risk within the exclusion for “suffocation, strangulation, or smothering” and, therefore, not covered by the rider. Plaintiffs argued that drowning is not synonymous with suffocation in the commonly understood meaning of the two words. Alternately, plaintiffs contend that the language in the exclusionary clause is ambiguous and, consequently, should be construed against the defendant who chose the words in the exclusionary clause. The trial court held this language ambiguous and, accordingly, rendered judgment against the insurance company, which appeals. We agree that this language is ambiguous and, accordingly, affirm the judgment.

A contract is ambiguous when application of rules of construction leaves it uncertain which of the two meanings is proper. Coker v. Travelers Insurance Co., 533 S.W.2d 400 (Tex.Civ.App.-Dallas, 1976); Wynnewood State Bank v. Embrey, 451 S.W.2d 930 (Tex.Civ.App.-Dallas 1970, writ ref’d n. r. e.). Whether an ambiguity exists is a question of law for the court’s determination. Brown v. Payne, 142 Tex. 102, 176 S.W.2d 306 (1943).

The pertinent language of the accidental death benefit rider is as follows:

For purposes of this agreement accidental death shall mean death which (a) results directly and independently of all other causes from accidental bodily injury, (b) occurs within 90 days after the date such injury was sustained, and (c) is not a direct or indirect result of one or more of the following causes, which are risks not assumed:
(8) Suffocation, strangulation, or smothering when such death occurs prior to the Policy anniversary nearest the Insured’s fourth birthday. [Emphasis added.]

Defendant resorts to the dictionary to support its contention that drowning was excluded. WEBSTER’S NEW INTERNATIONAL DICTIONARY 2520 (2d ed. 1941) defines “suffocate” as: “To kill by stopping respiration, as by strangling or asphyxiation ... To compress so as to impede or prevent respiration ... To extinguish or destroy by, or as by, deprivation of air.” The word “drown” defined in this dictionary is: “To be suffocated in water or other liquid; to sink and perish in water.” [Emphasis added.] Thus, as defendant argues, since the insured drowned and because drowning is defined as “suffocated in water,” it could reasonably be included within the definition of suffocation. Consequently, defendant contends that drowning is an excluded risk. Defendant further argues that the words “strangulation and smothering,” although used in conjunction with the word “suffocation,” are mere sur-plusage since they are included within the definition of suffocation.

On the other hand, plaintiff contends that the average person does not understand “suffocation” to include “drowning,” and that the exclusion should be interpreted in accordance with this more popular interpretation under the rule that insurance contracts should be construed most favorably to the insured.

We agree with plaintiff that the exclusion is ambiguous and, regardless of medical technicalities, to the average person “suffocation” does not include “drowning.” Cf. De La Cruz v. Combined American Insurance Co., 527 S.W.2d 820, 821 (Tex.Civ. App.-Amarillo 1975, writ refd n. r. e.). “Drowning” connotes something more than exhaustion of the oxygen supply. It means death resulting from inhalation of water or some other fluid into the lungs. “Suffocation,” on the other hand, is ordinarily understood to mean death resulting from exhaustion of the supply of breathable air in an enclosed space. In our opinion, the ordinary person purchasing such an insurance policy would not think of absence of oxygen in the lungs as the immediate physiological cause of death, but rather the external circumstances that would ultimately lead to that result. If a person dies as a result of exhaustion of air in an enclosed space, he is said to “suffocate.” If he dies as a result of fluid in the lungs, he is said to “drown,” and the fact that the physiological effect of the one is the same as the other does not establish to the average person that the one includes the other. Certainly, one would not say a person “fell into the water and suffocated.” Rather, one would say the person drowned.

The reasonableness of this interpretation is demonstrated by the context in which “suffocation” is used here. If “suffocation” was intended in the broad sense of death by reason of deprivation of oxygen in the lungs, as urged by defendant, then it would include “strangulation” and “smothering” as well, and these words would be surplusage. We must, however, give effect to all words in the exclusionary clause. E. g., Williams v. J. & C. Royalty Co., 254 S.W.2d 178, 179 (Tex.Civ.App.-San Antonio 1952, writ ref’d).

Strangulation is defined as: “Act of strangling, or state of being strangled . Strangle is defined as “To compress the windpipe of (a person or animal) until death results from stoppage of respiration; to choke to death by compressing the throat, as with the hand or a rope; to throttle.” Smother is defined as “To destroy the life of by suffocation; to kill, murder, etc., by depriving of air; as, a child smothered in sleep . . . .” WEBSTER’S, supra. We do not regard these words as surplusage, and we suppose that they were used to avoid any uncertainty as to whether “strangulation” and “smothering” would be within the exclusion if those words were omitted. Omission of the specific word “drowning” raises a similar uncertainty. Since both “strangulation” and “smothering” draw attention to the external circumstances which ultimately result in death rather than the ultimate physiological effect, the ordinary reader may be expected to interpret “suffocation” to be a word of the same order. We conclude, therefore, that an interpretation of “suffocation” as not including drowning is a reasonable interpretation, if not the only reasonable interpretation of the language of the exclusion.

Since words of limitation in insurance policies are strictly construed against the insurer, the interpretation which permits recovery by the insured will be used. Ramsay v. Maryland American General Insurance Co., 533 S.W.2d 344, 19 Tex.Sup.Ct.J. 27 (Tex., 1976); Gulf Insurance Co. v. Parker Products, Inc., 498 S.W.2d 676, 679 (Tex.1973); Coker v. Travelers Insurance Co., supra; Southwestern Fire and Casualty Co. v. Atkins, 346 S.W.2d 892 (Tex.Civ.App.-Houston 1961, no writ); Kelley v. American Insurance Co., 316 S.W.2d 452 (Tex.Civ.App.-Texarkana 1958), affirmed, 160 Tex. 71, 325 S.W.2d 370 (1959). We hold, therefore, that the language contained in the exclusionary clause must not be construed to include death by drowning. Indeed, had the defendant intended to exclude drowning, it could easily have done so by inserting this word as it included strangulation and smothering. This the defendant chose not to do. Therefore, it is reasonable to conclude that drowning was not intended to be within the exclusion. See Holt v. George Washington Life Insurance Co., 123 A.2d 619, 621 (D.C.1956).

As we stated in Coker v. Travelers Insurance Co., supra, “[IJnsurance companies should write policies in clear language, understandable by persons without legal expertise, so that policyholders may fully know the extent of their coverage.” This is particularly true when the language may exclude coverage.

Affirmed.


author: PRESLAR, Chief Justice.

text:
    R. Wright WATKINS, Sr. et al., Appellants, v. W. Ben BOYKIN and C. O. Niblack, Administrators of the Estate of Benjamin Edmund Watkins, Deceased, Appellees.
    No. 6472.
    Court of Civil Appeals of Texas, El Paso.
    April 7, 1976.
    Rehearing Denied May 5, 1976.
    Collins, Langford & Pine, John A. Lang-ford, Charles E. Vinson, El Paso, for appellants.
    Scott, Hulse, Marshall & Feuille, J. F. Hulse, Charles R. Jones, Schuyler B. Marshall, El Paso, for appellees.
   OPINION

PRESLAR, Chief Justice.

In this will contest, the trial Court admitted to probate a handwritten instrument as the last will of Benjamin Edmund Watkins. Admission to probate was opposed on the grounds that the instrument was not a will. Questions presented on appeal are whether or not the instrument evidenced testamentary intent and whether a portion of the instrument could be admitted as a will when the entire instrument was not wholly in the handwriting of the maker.

R. Wright Watkins, Sr., Mertis Delia Watkins and Georgia Watkins, heirs of Benjamin Edmund Watkins, are contestants, and Appellees, W. Ben Boykin and C. 0. Niblack, are proponents of the will. We affirm the judgment of the trial Court admitting the instrument to probate.

On June 21, 1975, Benjamin Edmund Watkins, hereinafter referred to as the deceased, or author, prepared an instrument which was, with the exception of one paragraph, in his own handwriting. Relevant portions of this instrument are as follows:

“ ‘Giving thanks to God for my Christian School Teacher Parents George Is-ham Watkins and Delia Wright Watkins, who bore 9 children, me Ben Edmund, the youngest.
On this June 21, 1974, A.D. three people, namely W. Ben Boykin, 407 Baltimore Ave., El Paso, Texas 79902; Lt. Colonel (Ret.) C. 0. Niblack, 8300 Saturn Place, El Paso, Texas 79904 and Ben E. Watkins owner and deponee of property set forth in this Will, hereby set up a deed of trust in continuation of management of my properties in the event of my demise or incapacity. The purpose being to insure a continuous management along lines I here set forth, and Deed of Trust Members hereby agree to carry out until all of my estate has been settled or divided according to the general terms of my suggestions, wherein feasible, always operating under the rules of sound business practice, Christian precepts, unitedly so far as possible, otherwise the majority ruling, or singly in the event of ineapacity of two of the triumvirate who are unable to act. This is a management trust set out to perform specified duties, to manage such properties according to the desires of this trust in any manner it chooses through its entire life. All have agreed to fulfill the desires of Ben E. Watkins, deponee insofar as is possible and reasonable; the Deed of Trust itself is the final judge in all matters, Firstly and in the main, ail the members of my family and some specially mentioned friends are to receive special gifts as follows :
Margaret Ann, Rachael and Hazel Virginia had been given paid-up $10,000.00 Life Insurance Policies, probably in R. W. Watkins, Jr., safety deposit boxes, Jackson American Bank of (unintelligible) Richard W. Watkins, Jr. and Elizabeth Wikes wife are to receive $25.00 each. Robert Bryans Watkins and his wife Gertrude are to receive $25.00 each. In lieu of paid-up life insurance policies as issued to Richards three children, is to go to Bob and Gertrude Watkin’s six children namely: Donna Ann, Barbara Lynn, Robert B. Watkins, Jr., Hugh Wright, Carolyn and Angela the amount of $20,000.00 to be used by the parents according to their desire. To my brother R. Wright Watkins, Sr. and his wife Floreid are to receive $25.00 each; my sisters Myrtis Delia and Georgie Irene are to receive $25.00 each. As a solute to friends in the Jackson Presbyterian Church, U. S. $125.00 is to be given to Reverend David Black. To the other two members of this deed of Trust, largely a partial expense coverage is to be given $1,000.00 each to Mr. Boy-kin and to Mr. Niblack (as this is really a largely donated work-trust rather than a money-maker for participants. It is really labors of love donated to vital managements of the Lords Business. Ben E. Watkin’s living expenses are to come out of proceeds of this Estate, the returns from Government pension will likely defray most of his living expense.
The proceeds of remaining holdings, stocks, bonds, real estate, and personal property such as automobile, organ, etc. are to be used for the general benefit, support, classes, new developments and operation of Christian activity including those sponsored by El Paso Bible Church 2901 N. Campbell Street, El Paso, Texas 79902, in operations chosen by Church bodies and by this Deed of Trust (here following, two lines of words were crossed out).
The development of Church Life and activities is very much the concern of this Deed of Trust./ . . . (here followed a discourse by the writer on his religious beliefs).
The deponee here by designates Mr. Boy-kin and Mr. Niblack, mentioned above, to act in my behalf with power of attorney, to transact any and all business including issuance and signature of checks, access to safety deposit box and other necessary business activities including the responsibility to arrange (the provisions of the instrument appear to end at this point. It is noted that this last paragraph did not appear to be in the handwriting of the Deceased.)’
/s/ Benjamin Edmund Watkins”

Appellants’ first assignment of error is that the instrument should not have been admitted to probate because the instrument itself and the circumstances surrounding its preparation demonstrate a lack of testamentary intent. Testamentary intent is one of the characteristics of a will and an instrument is not a will unless it is executed with testamentary intent; Hinson v. Hinson, 154 Tex. 561, 280 S.W.2d 731 (1955), and an instrument is not admissible for probate unless there is testamentary intent. Cravens v. Chick, 524 S.W.2d 425 (Tex.Civ.App.-Fort Worth), writ ref’d n. r. e., 531 S.W.2d 319 (Tex.1975).

As the Supreme Court has noted in the recent case of Welch v. Straach, 531 S.W.2d 319 (1975), all rules of construction pertaining to wills have been worked out by courts to ascertain the testator’s intention and before this intention, all such rules fall, and the intent of the testator must likewise be determined from such instrument. Huffman v. Huffman, 161 Tex. 267, 339 S.W.2d 885 (1960); Utay v. Urbish, 433 S.W.2d 905 (Tex.Civ.App.-Dallas 1968, writ ref’d n. r. e.). Considering the entire instrument, we are of the opinion that it was executed with testamentary intent.

The dominant purpose of a will is the disposition of property; clearly, that is what this instrument does; and, it provides for the disposition of the list of property after the author’s demise. Appellants concede that that appears to be true, but they urge the rule that a writing is not testamentary if its effect is to transfer a present interest in property. 61 Tex.Jur.2d Wills § 6, at 6; Utay v. Urbish, supra; Huffman v. Huffman, supra. Appellants point to that portion of the instrument which provides for the continuous management of the properties “in the event of my demise or incapacity.” Appellants underscore incapacity (even as Appellees underscore demise) as a provision which makes use of the property to provide services during the lifetime of the deceased. Yet, we observe that in the disposition of the property, the instrument does not make a present transfer of it. In disposing of property, it speaks in future terms: “are to receive” and “is to be given.”

Another provision pointed to by Appellants is: “Ben E. Watkin’s living expenses are to come out of proceeds of this Estate, the returns from Government pension will likely defray most of his living expense.” The instrument considered as a whole shows testamentary intent and this paragraph must yield to the whole. As the Supreme Court said in Welch v. Straach, supra:

“This Court said in McMurray v. Stanley, 69 Tex. 227, 6 S.W. 412 (1887);
‘In construing the will, all its provisions should be looked to, for the purpose of ascertaining what the real intention of the testatrix was; and, if this can be ascertained from the language of the instrument, then any particular paragraph of the will which, considered alone, would indicate a contrary intent, must yield to the intention manifested by the whole instrument.’ ”

Although we know of no precedent for it, we think some intent can be gleaned from the tenor of the instrument. The religious tenor of the instrument, as distinguished from one written in the business sense, indicates a disposition of property in contemplation of death rather than a present business transaction.

Some two months after the execution of the instrument in question, the deceased executed a trust agreement which had been drawn by an attorney and provided for his care during his lifetime, and upon his death, the property to go in much the same manner and to the same people as this instrument. The trust never came into being as the deceased’s death occurred before the property was ever transferred into the trust. Since the instrument was executed some two months after the instrument in question, we do not consider it as being a part of the surrounding circumstances; we adhere to the rule that testamentary intent must be found in the instrument offered for probate. As to the use of the words “deed of trust” in the instrument, we quote from the Supreme Court case of Welch v. Straach, supra:

“This Court has also on a number of occasions considered informal language used by a layman who did not have legal advice in drawing a will. We have said that in such instances the Court will not construe lay language technically but will do so liberally in the endeavor to arrive at the intent of the testator.”

Section 59, Texas Probate Code, provides for the admission into probate of holographic wills “wholly in the handwriting of the testator.” The last paragraph of page three of the instrument in question is not in the handwriting of the deceased, Ben E. Watkins; therefore, Appellants urge that the Court erred in admitting the document to probate. We are unable to agree with this contention for the reason that the Court did not admit into probate the paragraph which was not in the deceased’s handwriting, and that portion that was admitted into probate was complete within itself as a will. That portion which was admitted into probate as a will was “wholly in the handwriting of the testator.” That distinguishes this case from cases in which partially typed or partially printed instruments were offered in their entirety and were refused. Dean v. Dickey, 225 S.W.2d 999 (Tex.Civ.App.-El Paso 1949, writ ref’d); Scott v. Schwartz, 469 S.W.2d 587 (Tex.Civ.App.-San Antonio 1971, writ ref’d n. r. e.); Gunn v. Phillips, 410 S.W.2d 202 (Tex.Civ.App.-Houston 1966, writ ref’d n. r. e.). Those cases relied upon by Appellants are not in point. More in point and controlling here are such cases as Maul v. Williams, 69 S.W.2d 1107 (Tex.Com.App.1934). There, a holographic will was given effect notwithstanding certain words were not in the maker’s handwriting but those words were not necessary to complete the instrument, did not affect its meaning; the Commission of Appeals said, “In this connection we hold that a testamentary instrument intended by the testator as a holographic will should be given effect as such, although it contains words not in the handwriting of the testator, if such words are not necessary to complete the instrument in holographic form, and do not affect its meaning.” The same holding was made in Kramer v. Crout, 279 S.W.2d 932 (Tex.Civ.App.-Waco 1955, writ ref’d n. r. e.). Under authority of such cases, the Appellants’ second point of error is overruled.

The judgment of the trial Court is affirmed.


text:
    J. N. HEATH, d/b/a J. N. Heath Carpet Company, Appellant, v. Bobby GILBREATH, Appellee.
    No. 6499.
    Court of Civil Appeals of Texas, El Paso.
    April 7, 1976.
    Leonard Howell, Midland, for appellant.
    Fugit, Pipes & Bobo, Gerald K. Fugit, Odessa, for appellee.
   OPINION

PRESLAR, Chief Justice.

This is an appeal from an order overruling defendant’s plea of privilege on the basis of a written contract. We reverse on the ground that there was no written contract established for the obligation sought to be enforced.

Appellee, Gilbreath, brought suit against Appellant, Heath, alleging that there was a contract between the parties, a breach of that contract, and requesting either damages or a rescission. In response to Appellant’s plea of privilege, Appellee filed a controverting plea asserting venue under Exceptions 5(a) and 31 of Article 1995, Tex. Rev.Civ.Stat.Ann. He pled no facts, just that the venue was maintainable under the two exceptions. At the venue hearing, no attempt was made to establish venue under Exception 31, and it is not involved in this appeal. As to Exception 5(a), Appellee offered in evidence an instrument in the following form:

STATEMENT
1-19 1974
TO_Gilbreath Job_
ADDRESS 2711 Verde_
CITY Odessa_ STATE_
TERMS_
25.99
545.74
Paid
1/19/74

Appellee testified that Heath had installed carpet in January of 1974, and at the conclusion of the work had handed him the above instrument, and that he at that time paid the full amount; that thereafter, there was a problem with the carpet in that it appeared to be of two different shades; that their agreement was for one continuous color. He testified that he had been damaged in the amount of the above bill; that he was willing to give the carpet back and wanted his money back. At the conclusion of the hearing, the Court announced that he found that the defendant furnished plaintiff with a written instrument which set out the details of the agreement and named specific price within Ector County, Texas, and the Court announced the conclusion that the suit had been brought by reason of the written agreement designating a definite place in the County of suit. On that basis, the defendant’s plea of privilege was overruled.

The written instrument offered in evidence, if it is a contract, shows on its face to be a completed contract as it is marked paid. This, then, is not a suit to enforce the terms of that contract. This suit was filed eighteen months after the date of the above written instrument. On allegations of a breach of contract, it seeks damages or to rescind the above instrument. There is no written instrument for either of the remedies.

In order for a case to come with Exception 5 of the Venue statute, the suit must be to enforce a particular obligation which the written contract requires to be performed in the particular county expressly named. Slagle v. Clark, 237 S.W.2d 430 (Tex.Civ.App.-Amarillo 1951, no writ); Cunningham v. Allison, 202 S.W.2d 297 (Tex.Civ.App.-Port Worth 1947, no writ). As stated by the Amarillo Court of Civil Appeals:

“ * * * It is immaterial that some obligations imposed by a written contract are required to be performed by one or the other party in a particular county; the material and controlling fact being that the particular obligation sought to be enforced by the suit is required by the contract to be performed in a particular county. McKinney v. Moon, (Tex.Civ.App.), 173 S.W.2d 217; May v. Perkin, (Tex.Civ.App.), 227 S.W.2d 393; Rogers v. Waters, (Tex.Civ.App.), 262 S.W.2d 521.”

A & S Steel Buildings, Inc. v. Burk, 390 S.W.2d 401 (Tex.Civ.App.-Amarillo 1965, no writ).

The argument that the obligation sought to be enforced here arose “by reason of” the written contract and is such as to bring the suit within Exception 5 cannot be sustained. Following the Legislature’s amendment of Exception 5 by the addition “upon or by reason of”, the Supreme Court determined that that phrase does not make any alteration in the law as it existed before the amendment. Rorschach v. Pitts, 151 Tex. 215, 248 S.W.2d 120 (1952); and see A & S Steel Buildings, Inc. v. Burk, supra; Texas Automatic Sprinkler Company v. Ealand-Wood Lumber Company, 297 S.W.2d 958 (Tex.Civ.App.-Beaumont 1957, no writ); 1 McDonald, Texas Civil Practice, Venue § 4.11.3 at 449.

The judgment of the trial Court is reversed and this cause is ordered transferred to the County Court of Midland County, Texas.


text:
    Cloverdell REILLY, Appellant, v. Pauline L. JACOBS, Administratrix of the Estate of James Palmer Jacobs, Deceased, Appellee.
    No. 18865.
    Court of Civil Appeals of Texas, Dallas.
    April 8, 1976.
    Rehearing Denied May 6, 1976.
    Paul E. Lokey, Dallas, for appellant.
    Jack Johannes, Dallas, for appellee.
   CLAUDE WILLIAMS, Chief Justice.

The sole question presented by this appeal is whether the record supports the finding of the judge of the probate court that James Palmer Jacobs and Pauline L. Jacobs had consummated a valid informal, or common-law marriage, which continued until the death of James Palmer Jacobs. We hold that the record supports such a finding and, therefore, affirm the judgment.

On December 11, 1974, James Palmer Jacobs died intestate. Pauline L. Jacobs, claiming to be the surviving wife of the deceased was duly appointed administratrix of the estate of James Palmer Jacobs, Deceased. Thereafter, Cloverdell Reilly, sister of the deceased, filed her petition to declare heirship in which she asserted that the only heirs at law of James Palmer Jacobs, deceased, and, therefore, the only persons entitled to participate in his estate, were his mother, two sisters, two half-brothers and a niece and nephew. She asked the probate court to determine the question of heirship and division of the estate of the deceased among such heirs. Pauline L. Jacobs, both individually and as administratrix of the estate of James Palmer Jacobs, deceased, filed her response to such petition in which she alleged that she and James Palmer Jacobs were married “by common law” in 1968 and at that time agreed to be and become husband and wife and that at all times thereafter until the death of Jacobs, they lived and cohabited together as husband and wife and held each other out to the public as such. She alleged that no children were ever born to or adopted by James Palmer Jacobs. She prayed that she be declared to be the sole heir of her deceased husband and entitled to inherit the whole of his estate. Following a hearing before the probate judge, without a jury, judgment was rendered decreeing that there was a valid common-law marriage between James Palmer Jacobs and Pauline L. Jacobs which entitled her to receive all of the property of the deceased. The court further found the final accounting of the property of the deceased to be correct. Clo-verdell Reilly appeals only from that part of the judgment upholding the validity of the common-law marriage. In a number of points of error she assails the findings and conclusions of the probate judge which upholds the common-law marriage status between the parties.

Texas has long recognized the validity of a common-law or informal marriage. Our courts, and the legislature, have said that the existence of the relationship or status is valid if three elements exist. These elements are: (1) An agreement, express or implied, presently to be husband and wife; (2) living together in cohabitation as man and wife; and (3) the parties holding each other out to the public as husband and wife. Humphreys v. Humphreys, 364 S.W.2d 177 (Tex.1963); Ex parte Threet, 160 Tex. 482, 333 S.W.2d 361, 364 (1960); Shelton v. Belknap, 155 Tex. 37, 282 S.W.2d 682 (1955); Grigsby v. Reib, 105 Tex. 597, 153 S.W. 1124 (1913); Tex. Family Code Ann. § 1.91(a)(2) (Vernon 1975).

Appellant, in her brief, has conceded that the last two elements of a common-law marriage were established by competent evidence at the trial. This narrows the question to be decided by this court to whether the record supports the probate court’s finding that there was an agreement between the decedent and appellee to be presently married.

The difficulty in producing direct evidence relating to such an agreement between a man and a woman to be presently married is quite apparent since the lips of one of the two parties are sealed by death and the lips of the other party who survives are closed by the mandatory prohibition of Tex.Rev.Civ.Stat.Ann. art. 3716 (Vernon 1926), commonly known as the “Dead Man Statute.” For this reason, the courts have long held that such an agreement need not be expressed but may be implied and ordinarily may be inferred when evidence establishes the second and third essential elements of the marriage relationship. Humphreys v. Humphreys, 364 S.W.2d 177 (Tex.1963); Shelton v. Belknap, 155 Tex. 37, 282 S.W.2d 682 (1955); Gary v. Gary, 490 S.W.2d 929 (Tex.Civ.App.-Tyler 1973, writ ref’d n.r.e.); Rosales v. Rosales, 377 S.W.2d 661 (Tex.Civ.App.-Corpus Christi 1964, no writ); and McIlveen v. McIlveen, 332 S.W.2d 113 (Tex.Civ.App.-Houston 1960, no writ).

The legislature adopted this rule when it enacted Tex. Family Code Ann. § 1.91(b) (Vernon 1975) which states: “In any proceeding in which a marriage is to be proved under Subsection (a)(2) of this section, the agreement of the parties to marry may be inferred if it is proved that they lived together as husband and wife and represented to others that they were married.”

Appellant concedes that the evidence, which we need not discuss in detail, demonstrates conclusively that Pauline L. Jacobs and James Palmer Jacobs lived together as husband and wife and held themselves out to the world to be husband and wife. Therefore, under these authorities, and the statute quoted, the trial judge was justified in inferring the agreement of the parties to be married.

Appellant, however, argues that she presented sufficient evidence to rebut this presumption or inference and, therefore, the rule cannot be applied. She points to the testimony offered by her that Mrs. Jacobs did not change her former name (Pauline Armes) on a driver’s license until after the death of James Palmer Jacobs; that she did not change the name on her social security card; and that Palmer had opened bank accounts and had a bank safety deposit box in his name without the joinder of Pauline Jacobs.

In support of her contention, appellant in oral argument relies on Clack v. Williams, 189 S.W.2d 503 (Tex.Civ.App.-San Antonio 1945, writ ref’d w.o.m.) wherein the decedent had divorced her husband but according to his testimony they continued to live together in the same manner. Although he testified that he did not know about the divorce, he contended that he was the surviving husband by common-law marriage. The court held that no common-law marriage existed because the existence of a marriage agreement cannot be implied from circumstantial evidence when there is contrary direct testimony by the alleged spouse showing no agreement.

This case is distinguishable because there is no direct testimony by Pauline Jacobs rebutting the presumption of marriage. See 1 Wigmore on Evidence § 25 at 399 (3d ed. 1940). The almost identical situation was present in McIlveen v. McIlveen, 332 S.W.2d 113 (Tex.Civ.App.-Houston 1960, no writ), in which evidence was offered to contest the existence of a common-law marriage. In that case there was evidence that Lupe Postell Mcllveen, claiming to be the common-law wife of Alfred Mcllveen, had not changed her social security number; that she continued to use the name Postell and had not used the name Mcllveen on other occasions. The court held that such evidence by Mrs. Mcllveen goes merely to her credibility and does not constitute an admission on her part that she did not hold herself out as the wife of the deceased. As the court pointed out there were conflicts in the testimony and perhaps some inconsistencies but such conflicts and inconsistencies have to do with the credibility of Mrs. Mell-veen and the weight to be given her testimony. We think the same rationale applies here to the marriage agreement and a careful review of the entire record convinces us that there was sufficient evidence, though circumstantial, to support the findings and conclusions of the probate judge in support of the common-law marriage.

The judgment of the trial court is affirmed.

      . The Supreme Court of Texas in Grigsby v. Reib, 105 Tex. 597, 608, 153 S.W. 1124, 1130 (1913), speaking through Chief Justice Brown, after an exhaustive historical and legal review of the common-law marriage relationship, said:
      Marriage is not a contract, but a status created by mutual consent of one man and one woman. The method by which it is solemnized or entered into may be by proceedings prescribed by statute, or by mutual agreement with cohabitation, but, however contracted, having the same elements, and producing the status of husband and wife. The sole difference which can legally exist is in the method of expressing consent; and the only particular in which a marriage as at common law can differ from the statutory method is the absence of license and the ceremony. The cohabitation must be professedly as husband and wife, and public, so that, by their conduct towards each other, they may be known as husband and wife. Such marriages may be equally the consummation of a mutual affection, which will produce a home and family that will contribute to good society, to free a. d just government, and to the support of Christianity — to the common weal. It would be sacrilegious to apply the designation, ‘a civil contract’ to such a marriage. It is that and more; a status ordained by God, the foundation and support of good government, and absolutely necessary to the purity and preservation of good society.


author: MASSEY, Chief Justice.

text:
    Robert CRABBE et al., Appellants, v. Glen D. HORD, Appellee.
    No. 17711.
    Court of Civil Appeals of Texas, Fort Worth.
    April 9, 1976.
    Rehearing Denied May 14, 1976.

      John Walker, Center, Vial, Hamilton, Koch, Tubb, Know & Stradley, and Robert G. Vial, Dallas, for appellants.
    R. G. Guthrie, Fort Worth, for appellee.
   OPINION

MASSEY, Chief Justice.

Robert Crabbe and Kenneth Campbell, hereinafter termed appellants, brought suit against Glen D. Hord, hereinafter termed appellee, seeking by bill of review to set aside a prior judgment rendered against them. Therein was an award of damages to Hord because of injuries sustained in a vehicular collision.

Trial of the bill of review case was to a jury which returned a verdict. Judgment, rendered upon the verdict, was in denial of the bill of review. Therefrom Crabbe and Campbell appealed.

We affirm.

Following the collision by reason of which appellee sustained personal injuries he brought his suit for damages on October 6, 1972. He did not sue appellant Campbell. He sued appellant Crabbe and another by the name of Melton, alleged at the time to have been the employer of Crabbe and liable under the doctrine of respondeat superi- or. After service of citation was obtained Melton obtained agreement of appellee to an indefinite extension of time within which to file an answer. September 6,1973 appellee filed an amended petition in which he added appellant Campbell as a defendant, alleging that at time of the collision Crabbe was Campbell’s agent, whereby Campbell would be liable under the doctrine of respondeat superior.

September 14, 1973 appellee revoked his agreement for extension of time within which to answer and requested that answers in response to the citations antecedent to September 6th be filed by September 24, 1973. September 28, 1973 an attorney filed an answer for Melton. No answer was ever filed for any other party. Melton’s answer contained a demand for jury trial, and he paid the jury fee. The spurious “attorney” upon whose promises both appellants were relying, and who was deemed their agent by appellee and his attorney, acted — or rather failed to act — to the undoubted prejudice of the appellants, for had he performed as a proper fiduciary there no doubt would have been answers filed in behalf of both appellants.

October 17, 1973 appellee, without notice to either of the defaulting appellants, or to Melton, moved for and obtained an order severing the action against appellants from that against Melton. Melton alone remained as the defendant in the original suit under the original number. Appellee’s suit against both appellants was docketed under the new number. Under the new number appellee secured by default a joint and several judgment against the appellants. The evidence upon damages was heard by the court, without a jury, and default judgment was rendered in appellee’s behalf for a substantial amount in damages.

The postcard notice required by T.R.C.P. 239a, “Notice of Default Judgment”, was not sent to either appellant. This was through mistake or inadvertence on the part of the clerk, appellee having complied with his duties under that same rule. Appellants did not know that the default judgment had been taken against them until immediately before August 14, 1974. They were made aware of the judgment by an attempt to make levy of execution in satisfaction. Circumstances shown upon trial evidenced that delay in taking action prior thereto was excused and justified as to both appellants.

By their petition for bill of review appellants made a “two-pronged” attack upon the default judgment. By one theory the judgment was directly attacked on the premise that appellee was chargeable with having prevented their making answer to the action in which default judgment had been taken. By another theory they asserted unjustified denial of opportunity to timely file a motion for new trial. This was because of the clerk’s failure to notify them as required by Rule 239a.

The special issues presented to the jury posed questions, answers to which might have been shown that appellants were entitled to prevail on their bill of review. The answers did not suffice to so show this entitlement. No special issues were submitted in answer to which appellee might have established his right to recover damages in the event appellants had proved entitlement to prevail on the bill of review. The result was that appellee had “all his eggs in one basket”; where any right of recovery which appellee might have possessed would be totally extinguished for “failure of proof” in the event appellants should establish their right to have the issues of appellee’s original action retried.

Important to our disposition of the appeal is the law applicable to the test of propriety or impropriety of granting proper motions for new trial where complaint is of a default judgment. In such motions for new trial a movant must show either (1) that to grant the new trial would work no injury upon the party who has obtained the judgment, or (2) make an offer to “do equity” in the event a new trial be granted so as to make or keep such party whole by reimbursement of his expenses attendant to the trial pursuant to which he obtained the default, and otherwise to make compensation to him for whatever relief he might show as a proper demand. See 4 McDonald, Texas Civil Practice, 1971 Rev., p. 268, “New Trial”, Sec. 18.10.2, “(Grounds for New Trial — After Judgment by Default or in Defendant’s Absence, Equitable Grounds)-(II) Requirements.” Indeed, we have concluded that disposition of the appeal is controlled by law in this respect. It will be the subject of our discussion at a later point of this opinion.

Appellants are restricted to rules applicable to bill of review cases under T.R.C.P. 329b, “District and County Court Cases.” They properly insist that in a test of their right to prevail under the peculiar circumstances of this case should be the same as in a case where the claim was of error in overruling a timely filed motion for new trial following entry of a default judgment. They contend that because of the failure on the part of the court clerk to mail the required notices that default judgment had been taken by Rule 329a their right to relief is shown. We agree that they were aggrieved and by the fact of the clerk’s dereliction they have established one element of their burden of proof. Petro-Chemical Transport, Inc., v. Carroll, 514 S.W.2d 240 (Tex.Sup., 1974). The holding of the cited authority was relative to the effect of T.R. C.P. 306d, “Notice of Final Judgment or Other Appealable Order.” The necessary effect of the holding in the case would nevertheless make the identical rule applicable to Rule 239a. The purpose of both rules is to insure that, insofar as practicable, parties adversely affected by a final judgment or other appealable order have an opportunity to attack the same by motion for new trial or appeal, which purpose would be unnecessarily thwarted if there can be no relief when the clerk, either intentionally or through oversight, fails to send the requisite notices promptly required by both rules.

It is in the decision of Hanks v. Rosser, 378 S.W.2d 31 (Tex.Sup., 1964) that we find the applicable rules to be applied to the immediate bill of review case. The rules are a combination of those of Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (1939) and of those of Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950). Craddock was an appeal from a default judgment where motion for new trial was timely filed. Hagedorn was not a case in which a motion for new trial was filed, for discovery of the fact that a default judgment was after time therefor could be permitted. It was an appeal from judgment in a later filed bill of review case. Interesting eases applicable to Craddock and to Hagedorn are Texas State Board of Examiners in Optometry v. Lane, 358 S.W.2d 636 (Tex.Civ.App., Fort Worth, 1962, writ ref., n. r. e.); Kelly Moore Paint Co. v. Northeast National Bank, 426 S.W.2d 591 (Tex.Civ.App., Fort Worth, 1968, no writ history), and Gracey v. West, 422 S.W.2d 913 (Tex.Sup., 1968). These cases exhibit instances where freedom from negligence of a complainant is shown where failure to take timely protective action is attributable to dereliction on the part of a court or its officials.

By the instant appeal the appellants must necessarily seek reversal by the rule of Hanks and found their claim upon the error in their deprivation of an opportunity to present a motion for new trial or to appeal from the default judgment. The necessity has resulted because the jury refused to make the findings requisite to appellants’ entitlement to reversal of such judgment by the rule of Hagedorn. Had the findings been made appellants would not have the duty to offer to “do equity” as predicate to their right to relief. Relative thereto we note that the jury refused to find for appellants that either of them was prevented from making answer and contesting rendition of the default judgment before its entry as an appealable judgment by fraud, accident or wrongful act of the opposite party, unmixed with any fault or negligence of theirs. Had the appellants obtained the finding desired theirs would have been the victory. By the jury’s refusal to find as the appellants desired the appellants, necessarily, must present their case as one in which their attack is upon denial of opportunity to move for a new trial. On this appellants claim they have established their case by the rule of Hanks and that there should have been a judgment entered on the jury’s verdict for them because they had done so.

What is the rule of Hanks? As applied to the particular facts confronting the Supreme Court at time of the opinion it was stated that the controlling facts were: (1) whether the failure to file the answer was either intentional or the result of conscious indifference; (2) whether the defendant in default judgment was misinformed by the clerk within the time for filing the motion for new trial, and (3) was thus prevented from filing, or misled into not filing, his motion in time; (4) whether such defendant in judgment had a meritorious defense; and (5) whether the plaintiff who had obtained the default judgment would not be caused to suffer injury by the granting of the bill of review.

In the instant case the appellants obtained jury findings that they had a meritorious defense, that their failure to file answer before the default judgment was taken was not intentional or the result of conscious indifference, and that they were not informed of the default judgment taken against them. Construably, there was also finding by the jury that the appellants were prevented from filing, or misled into not filing, a timely motion for new trial. Actually the finding was that they were deprived of an opportunity to timely protest the default judgment, and we deem such finding to be sufficient, if not more than sufficient, to satisfy the requirements that they show that they were prevented from filing, or misled into not filing, a motion for new trial. This was because of the failure of the clerk to comply with Rule 239a.

To be observed, however, is the total absence of any jury finding upon element five (5) as denominated in Hanks, to-wit: that the plaintiff who had obtained the default judgment would not be caused to suffer injury by the granting of the bill of review. There was not a submission of any special issue to the jury on this element. Neither was there any request therefor or complaint because of a failure of submission.

Element five (5) has been written upon in Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (1939), and other cases where there was action of the court upon a motion for new trial filed after the taking of a default judgment. It is to these cases we must look in the determination of whether the trial court was correct in the conclusion that appellants failed to establish their right to prevail by their bill of review, and in rendering judgment upon the verdict against their contentions.

In view of the absence of any issue in the verdict of the jury we must consider that if it was actually made an issue upon trial it should be deemed upon the appeal as having been found by the trial court in such manner as to support the judgment. T.R.C.P. 279, “Submission of Issues”.

For our purposes we treat the issue as having been raised although by the evidence the only instance where we find the matter mentioned was as a part of the testimony of Lancaster Smith, an attorney, when he stated that in his opinion, assuming that the cause of action of the appellee would be maintained, that appellee would not be caused to suffer injury by the court’s granting appellants’ bill of review. Of course, as expert testimony and furthermore clearly by way of opinion, the trial court would not thereby be bound in any way as the fact finder upon the particular question by Rule 279.

In the pleadings we find nothing whatever relative to the aforementioned element five (5). At no point did appellants either allege that (1) to grant the bill of review would work no injury upon appellee, nor (2) did they at any stage offer to “do equity” and make or keep appellee whole by any reimbursement of his expenses attendant to trial where he obtained the default judgment, etc. It is made obvious that in the appellants’ “two-pronged” attack upon the default judgment by their bill of review that they hoped to prevail by the rules of Hagedorn. Apparently they overlooked this particular element, essential by the rule of Hanks. As we understand Hanks the test to be applied to the element would be identical to those of Craddock. The inquiry is upon probable injustice relative to deprivation of right to file a motion for new trial, as distinguished from inequity in the rendition of the default judgment itself. Therefore, in the test made upon appeal the situation is to be viewed as one where a motion for new trial had been filed in time for the trial court to have considered it and where the judgment is not void but is a valid and subsisting judgment unless and until it may be set aside with a new trial granted.

The inquiry constitutes matter considered in cases where the defendant appeared after default judgment had been entered but in time to file a motion for new trial; and where upon overruling the motion for new trial an appeal was taken. One such case is that of Craddock itself, in which the following language appears: (133 S.W.2d 124, 125) “Upon a hearing of the motion (motion for new trial) evidence was offered in support of all the material allegations therein contained. It was made further to appear upon the hearing that, if the judgment by default had been set aside on September 11, and a new trial granted, the plaintiff could have obtained a trial as soon as he could have done had an answer been filed before appearance day. It was also made to appear at the hearing that one of defendant’s attorneys, on the date the motion was filed, offered, on behalf of his client, to pay the plaintiff all of the expenses incurred in obtaining the default judgment. In short, it was shown, at least prima facie, that, had the default judgment been set aside and the case tried in its regular order, the plaintiff would have been in no worse position than he would have been had an answer been filed prior to the rendition of the default judgment.” In Craddock the judgment was reversed and the cause remanded for new trial.

Like action by the appellate court occurred in Ward v. Nava, 488 S.W.2d 736 (Tex.Sup., 1972), in which the court wrote (p. 738) as follows: . . Ward has also stated in his motion that, if granted a new trial, he is willing to pay the expenses and costs of the hearing of this motion in the setting aside of such default judgment. These costs can be assessed against him by the trial court in a final judgment to be entered herein.” Somewhat similar language is found in Reynolds v. Looney, 389 S.W.2d 100 (Tex.Civ.App., Eastland, 1965, writ ref., n. r. e.).

Contrary action, in that the appellate court refused to reverse the default judgment of the trial court, is to be observed in Griffin v. Duty, 286 S.W.2d 229 (Tex.Civ.App., Galveston, 1956, no writ history), where the court wrote (p. 233), as follows: “In our view defendant’s failure to set up a meritorious defense in his motion is conclusive against his appeal, but it must be denied for the additional reason that he wholly failed to demonstrate — did not even attempt to demonstrate — that a new trial with consequent delay and additional expense to plaintiff would not work an inequitable injury to his adversary — an injury which defendant did not seek to mitigate by diligence in filing his motion and getting it up for hearing, nor by tendering to plaintiff his expenses incurred in connection with the first trial.”

The most recent expression of the rule requiring equity of one who seeks relief from a default judgment is by the Supreme Court. United Beef Producers, Inc. v. Lookingbill, 532 S.W.2d 958 (Tex.Sup., 1976). A case cited is that of Griffin v. Duty, supra.

In a recent instance where a local trial court granted a new trial following entry of a default judgment where the movant conceded that he did not suffer its entry through any fraud, accident or wrongful act of his opponent, we observed that part of the reason for granting a new trial was the payment by the movant of $3,000.00, which plaintiff in judgment showed he would be damaged in the event the new trial should be granted. The trial court decided that such amount had been proved as expenses and damages of the party who had obtained the default judgment, and that its payment should be required as the equitable condition upon which the new trial was granted. This occurrence would seem to serve as an example of the requirement incumbent upon a movant seeking equitable relief from a judgment taken where he was not prevented from making answer and appearing for trial, and where the judgment by default was not due to any fault, accident or wrongful act of the opposite party, unmixed with any fault or negligence of his own.

We hold that the trial court did not err in rendering judgment upon the verdict returned by the jury, which lacked any finding that to grant the bill of review and order a new trial would work no injury upon the opposite party, and lacked any finding (there having been no offer of appellants to do equity) as to the entitlement of appellee in order to make him whole and restore his position in the event appellants’ bill of review be granted.

Most of appellants’ points of error are already covered by the discussion. These are overruled. Another, complaining of failure to submit a specially requested issue to the jury in the charge of the court inquiring whether the damages allowed by the default judgment was in excessive amount is overruled as immaterial.

Remaining is a point of error that the court erred in denying the bill of review because one of the defendants in the cause of action, as it existed prior to severance, had seasonably demanded a jury trial, and paid a jury fee, and that with the record in such state it was error for the damages upon default to be awarded by the court without a jury. Appellants cite authority to the effect that payment of the jury fee by one party creates the entitlement to trial by jury (at least as to unliquidated damages) of all parties. We are convinced, for the particular purpose, the error, if any, was procedural merely. Even if as applied to a regular appeal there would have been reversibility because of the failure of a jury to assess the damages, which we neither are required to hold nor do we hold, yet there would not otherwise be reversibility, and, specifically, would not entitle appellants to prevail by their bill of review. Furthermore, by amendment effective January 1, 1971, the applicable procedural rule was amended by language certainly operating to effect a waiver of a right to jury trial by any party who has not himself paid a jury fee and is in default for failure to file answer and also failing to appear for trial. See T.R.C.P. 220, “Withdrawing Cause from Jury Docket”, the last sentence, “Failure of a party to appear for trial shall be deemed a waiver by him of the right to trial by jury.” The point is to be overruled for either of the above reasons.

Each point of error has been severally considered. All are overruled.

Judgment is affirmed.

SPURLOCK, J., not participating.


author: WARD, Justice.

text:
    UNITED PARCEL SERVICE, Appellant, v. HELEN OF TROY CORPORATION, Appellee.
    No. 6504.
    Court of Civil Appeals of Texas, El Paso.
    April 14, 1976.

      Brock, Waters & Galey, Harold H. Pigg, Lubbock, for appellant.
    Robert E. Rosenberg, El Paso, for appel-lee.
   OPINION

WARD, Justice.

Summary judgment was awarded to the plaintiff, as a shipper, and against its carrier which accepted three certified checks from the consignee. The certified checks were accepted by the carrier for a C.O.D. delivery. The shipper alleged that the checks were forged and worthless. We reverse the judgment of the trial Court and remand the cause.

The plaintiff, Helen of Troy Corporation, sent three shipments of hairgoods by the carrier, United Parcel Service, to a consignee, Hair Unlimited, at Racine, Wisconsin. The plaintiff alleged that the shipments were sent on a C.O.D. basis and that the carrier was instructed to collect “cash”. It was alleged that the carrier misdelivered the hairgoods and accepted the fraudulently certified and worthless checks for the goods, and that the shipper suffered the loss of the amount of cash that the carrier was to collect from the consignee. Motions for summary judgment were filed by both parties after which the trial Court entered judgment for the plaintiff in the sum of $1,426.75, being the amount that the carrier was to collect in cash from Hair Unlimited. Findings of fact and conclusions of law were filed by the trial Court.

The summary judgment proof relied upon by the parties consisted of a sworn motion for summary judgment filed by plaintiff, a sworn answer filed by the defendant consisting of some six special exceptions and a general denial, admissions made by both parties, and answers of the defendant to the plaintiff’s interrogatories.

By a general point the defendant complains of the summary judgment and under the point makes the attack that fact issues are present on each of the essential elements of the plaintiff’s cause of action. At this time it is noted that findings of fact and conclusions of law have no place in summary judgment cases. 4 McDonald, Texas Civil Practice, § 17.26.13 (1971), and that a summary judgment sought should be granted and, if granted, should be affirmed only if the summary judgment record establishes a right thereto as a matter of law. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970). The plaintiff’s theory of recovery was that the carrier, when receiving merchandise on a C.O.D. shipment, was acting on the specific condition that it would not deliver or relinquish possession of any of the property transported until all charges had been paid in cash. Under such a theory it is generally held that the C.O.D. obligation is a special service and only arises out of the contract between the shipper and the carrier. National Van Lines, Inc. v. Rich Plan Corporation, 385 F.2d 800 (5th Cir. 1967); see Annotation 27 A.L.R.3rd 1320. This contract then had to be proved by the plaintiff as movant for the summary judgment. The proof is not present that the defendant was obligated to collect cash on the C.O.D. delivery of hair-goods to Wisconsin. The defendant, in its answer to the request for admission, neither admits nor denies that its instructions were to receive cash. The plaintiff points out that these allegations are made by the plaintiff in its motion for summary judgment and this motion is verified. The motion as made is merely a part of the pleadings in this case and any statements therein do not suffice as summary judgment evidence. Hidalgo v. Surety Savings and Loan Association, 462 S.W.2d 540 (Tex.1971).

Further, there appears to be no proof that the certified checks which were accepted by the carrier were fraudulently certified. The carrier’s answer to the interrogatories states that certified checks were accepted from the consignee and were forwarded to the plaintiff, and that the carrier had no knowledge as to whether or not the plaintiff had received the amount of payment on the certified checks.

Finally, the plaintiff’s petition alleged that the goods were delivered to the wrong address. The carrier’s proof is a denial of this allegation. Because these three essential elements of the plaintiff’s cause of action are lacking, the first point is sustained.

It is noted that the carrier contests the proof upon which the damages were awarded. The trial Court awarded to the plaintiff the amount in cash that the defendant was to collect from the consignee. As pointed out, proof is lacking as to what the carrier agreed to collect, and the carrier’s argument is sustained on this item. The carrier’s argument that the plaintiff’s burden was also to prove the lack of mitigating circumstances need not be decided on this appeal. See Hungate v. Hungate, 531 S.W.2d 650 (Tex.Civ.App.-El Paso 1975, no writ); Herrin Transportation Company v. Robert E. Olson Company, 325 S.W.2d 826 (Tex.Civ.App.-San Antonio 1959, no writ).

The carrier next presents a point, which for practical purposes is a cross point, wherein it complains of the action of the trial Court in refusing to grant its motion for summary judgment. The point is that the shipper accepted the three certified checks received from the consignee without qualifications and thereby ratified all acts of the carrier. The trial Court overruled the carrier’s motion for summary judgment on the theory that a judgment for the carrier would, in effect, create a discrimination as to tariff rates. The Appellant argues correctly that the trial Court was in error in its findings, as there were neither pleadings nor summary judgment proof supporting that theory. However, neither can the Appellant’s position in asking for rendition in its favor be sustained. In the first place, the issue of ratification was raised in the carrier’s pleadings by a special exception. The special exception was a “speaking demurrer” and thus defective. It pointed to no defect or insufficiency in the plaintiff’s petition as required by Rule 91, Tex.R.Civ.P., and was invalid. Friedman v. Cohen, 404 S.W.2d 372 (Tex.Civ.App.-Houston 1966, no writ); 2 McDonald, Texas Civil Practice, § 7.22 (1970). There was no other pleading as to the defensive issue or ratification before the trial Court, and to have granted a summary judgment for the mov-ant-carrier without proper affirmative defensive pleading of ratification would have been improper. DeBord v. Muller, 446 S.W.2d 299 (Tex.1969); Petroleum Anchor Equipment, Inc. v. Tyra, 419 S.W.2d 829 (Tex.1967); Tex.R.Civ.P. 94.

In the second place, the issue of ratification was not established by the evidence to the degree necessary to have sustained a summary judgment. An intention to ratify is said to be the essence of a ratification. 25 Tex.Jur.2d, Express Companies § 4 at 94 (1961). The summary judgment proof on this issue of intent was contested by the plaintiff’s agent, and additionally, the question as to intent is not normally one for summary judgment. 4 McDonald, Texas Civil Practice, § 17.26.7 at 155 (1971). This last point for the Appellant is overruled.

The judgment of the trial Court is reversed and the cause is remanded for trial.


author: CIRE, Justice.

text:
    Paul Martin LUTES, Relator, v. Lucy Marshall Alexander LUTES et al., Respondents.
    No. 1410.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    April 14, 1976.

      E. W. Newman, Houston, for relator.
    W. D. Masterson, Kilgore & Kilgore, Dallas, Melvin G. Bateman, Moore, Bateman & George, Athens, for respondents.
   CIRE, Justice.

This is an original proceeding in which relator Paul Martin Lutes petitions this court to grant a writ of prohibition to prevent the 173rd District Court of Henderson County from taking any further action on a divorce case now pending in that court.

On August 29, 1975 Lucy M. Lutes filed suit in the Henderson County district court for divorce from relator and for managing conservatorship of their two children. Relator filed his suit for divorce and managing conservatorship in the Harris County Court of Domestic Relations on October 8, 1975. Lucy Lutes answered that suit by a plea of privilege to be sued in Henderson County, the county of her residence. Her plea of privilege was granted on January 12, 1976 and Paul Lutes appealed. The appeal from that order granting Mrs. Lutes’ plea of privilege is now pending in this court.

On February 27,1976 Paul Lutes filed his plea to the jurisdiction and plea in abatement in the Henderson County suit, which were denied by the Henderson County court on March 9, 1976. That case is now pending in Henderson County and has been set for trial on April 19, 1976.

Relator invokes the jurisdiction granted to this court by Tex.Rev.Civ.Stat.Ann. art. 1823 to issue such writs as are necessary to protect our jurisdiction of the appeal from the order of the Harris County Court of Domestic Relations now pending before us. He asks that we order no action be taken on the Henderson County suit pending our disposal of the appeal in the Harris County case.

Texas follows the rule that the court in which a suit is first filed acquires dominant jurisdiction to the exclusion of other coordinate courts. Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex.Sup.1974). Under that rule the district court of Henderson County, being the court in which this suit was first filed, would have dominant jurisdiction, to the exclusion of the Harris County Court of Domestic Relations. If the Harris County court has no jurisdiction over the case, then we have no jurisdiction over the appeal, and we should dismiss the Harris County suit and deny relator’s petition for a writ of prohibition.

The circumstances of this case prevent us from doing so. The Harris County Court of Domestic Relations has not acted without jurisdiction. As the second court, the Harris County Court of Domestic Relations was obligated to dismiss the suit filed there if the pendency of a prior identical suit has been called to its attention by a proper plea in abatement. As the second court, the Harris County Court also has jurisdiction of the case until it is presented with a proper plea in abatement, and has jurisdiction to rule on such plea in abatement. Curtis v. Gibbs, 511 S.W.2d at 267; Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063, 1069, 1072 (1926). This has not been done.

Lucy Lutes’ plea of privilege alleged that Henderson County was the county of her residence; that no exception existed to exclusive venue in that county; and that there was a prior suit pending in the 173rd District Court of Henderson County. Even if we were to construe this third allegation as constituting a proper plea in abatement, it could not have served to require dismissal of the second suit.

Rule 84 of the Texas Rules of Civil Procedure expressly requires that special appearances and pleas of privilege are to be heard by the court before ruling on any further defensive matters. In this case the Harris County court has ruled on Mrs. Lutes’ plea of privilege, and has made no further rulings. Therefore, even if Mrs. Lutes has presented her plea in abatement, it has not yet been ruled on by the Harris County court. The Harris County court retains jurisdiction until it rules favorably on a proper plea in abatement, and that point in the proceedings has not yet been reached.

Since the Harris County court had jurisdiction to rule on Mrs. Lutes’ plea of privilege, the appeal from that ruling is properly before this court. Appellate jurisdiction having attached in this court, we must, under Article 1823, protect our jurisdiction by the issuance of an appropriate writ.

Relator’s petition for a writ of prohibition is granted. Respondents Lucy M. Lutes and the Honorable Jack H. Holland, Judge of the 173rd District Court of Henderson County, are ordered to take no further action on any suit involving the parties and issues in the suit now pending in the Harris County Court of Domestic Relations, until this court renders judgment on the appeal of the plea of privilege.

Writ of prohibition granted.


author: GUITTARD, Justice.

text:
    E. Hoyt DOWDEY, Appellant, v. DAHLSTROM CORPORATION, Appellee.
    No. 18763.
    Court of Civil Appeals of Texas, Dallas.
    April 14, 1976.
    Prank R. Jelinek, Duke, Rosenberry, Duke & Jelinek, Arlington, for appellant.
    John A. Mackintosh, Jr., Stephen F. Fink, Thompson, Knight, Simmons & Bullion, Dallas, for appellee.
   GUITTARD, Justice.

Plaintiff Hoyt Dowdey sued Dahlstrom Corporation for personal injuries and for damages to his automobile resulting from running off the end of the paved portion of a highway under construction. He alleges that defendant Dahlstrom, the contractor in charge of the construction, failed to maintain a barricade. The trial court instructed a verdict against him, and he appeals, contending that the trial court erred in excluding certain evidence and in granting the motion for instructed verdict. We affirm on the ground that even if the excluded evidence had been admitted, the evidence failed to raise a fact issue of defendant’s negligence.

Plaintiff testified that before the accident, which occurred at approximately 11:00 o’clock p. m., he had been driving in an easterly direction on State Highway 183. He said that after he turned onto the highway from the access road, he proceeded for a short distance and saw certain barricades and warning devices in the area, but no warning of the ending of the pavement in his lane. At the end of the pavement was a steep dropoff. Plaintiff testified that he was unable to stop his car before the pavement ended. His car ran off the pavement and fell onto a steel form used in constructing the concrete paving. According to plaintiff, there were no barricades, warning devices or signs to indicate that he was approaching the end of the pavement.

After the accident plaintiff hailed a passing car, and was taken to Parkland Hospital in Dallas, where he was treated in the emergency room for minor injuries. An employee of the hospital called the plaintiff’s brother, a Dallas physician, who came to the hospital and, later that same night, accompanied plaintiff to the scene of the accident.

Plaintiff testified that when he returned to the scene, about 3:00 o’clock a. m., he looked for a barricade marking the hazard but could find none. He said that he saw parts of a barricade adjacent to the roadway where his car had struck the form. This barricade, he said, had consisted of a wooden frame with blinking lights on it, and he found part of the frame “jammed into the mud.” Plaintiff attempted to testify that the ground was muddy when that part of the barricade had been jammed into the dirt. Defendant’s objection was sustained, and then plaintiff, in response to questions from his counsel, testified that the dirt at the time of his inspection was “packed hard” on parts of the barricade. He further testified that he tried to extricate a blinker light from the dirt at the scene. In an apparent attempt to prove that the light had been partially buried for some time, his counsel elicited the following testimony:

Q. All right. Was it easy to come out of the dirt, or hard?
A. No, it was packed adobe brick style. MR. MACKINTOSH: If the Court please, that was not responsive.
THE COURT: Yes, I sustain the objection, and the jury will not consider the answer for any purpose whatsoever.
Q. Mr. Dowdey, I will redirect your attention without getting into that, did the blinking light have dirt or mud on it?
A. Yes, sir.
Q. Did it have it around its base?
A. Yes, sir.
Q. Did it have it around the blinkers, the actual plastic yellow part?
A. It had it on it.
Q. Was there mud located on the wooden parts of the barricade?
A. Yes, sir.
Q. What was the distance between where these parts were laying and the blinking yellow light was laying from your vehicle?
A. About five or six feet to the south.

The plaintiff’s brother testified that when they arrived at the scene he observed no barricades or warning devices near the car.

Defendant’s superintendent Hawthorn was called by the plaintiff as an adverse witness. Hawthorn testified that employees of the defendant regularly inspected the barricades at the job site in the mornings and in the evenings before 6:00 o’clock p. m. He also testified that on a few occasions he had responded to calls informing him that the barricades were down and that he had gone to the scene to erect new ones. Hawthorne did not testify as to whether he had inspected the barricades on November 6, nor was such testimony elicited from any other witness.

At the close of plaintiff’s ease defendant moved for an instructed verdict on the grounds that plaintiff had presented no evidence to prove that defendant had breached any duty with respect to maintenance of its barricades and that plaintiff had failed to prove that any negligence of defendant was a proximate cause of the plaintiff’s injuries. In this court, likewise, defendant contends that no fact issue is raised on negligence or proximate cause.

Since this case comes to us as a result of an instructed verdict, we must consider the evidence presented in the light most favorable to the plaintiff to see if a fact issue was raised. Ford v. Panhandle & S.F. Ry., 151 Tex. 538, 252 S.W.2d 561 (1952). The question, then, is did plaintiff present evidence which would justify an inference that defendant was responsible for the absence of a barricade in front of the hazard which caused plaintiff’s injury?

We hold that the plaintiff did not carry this burden. The evidence, taken most favorably to plaintiff, indicates only that there was no barricade in front of the hazard at 11:00 o’clock p. m. It does not establish that the barricade was absent at the time defendant’s employees left the job site on that day. The facts in evidence, as well as the testimony excluded by the trial court, show only that several hours after the accident plaintiff found parts of a barricade covered with mud or “jammed into the mud” and that the mud was “packed hard.” Plaintiff introduced no evidence showing how long the barricade had been down or whether it was in place when defendant’s employees left the job site. Plaintiff elicited evidence that on other occasions barricades had been knocked down by motorists or by defendant’s own equipment, but he offered no proof that such an accident had occurred on the day in question. Neither does plaintiff assert that defendant was negligent in failing to maintain a patrol after working hours to insure that the warning devices were continually in proper order. Plaintiff offered no evidence tending to show that the absence of a barricade was caused by defendant’s act or omission rather than the act or omission of a third party.

Plaintiff would have us infer from the evidence of a board “jammed into the mud” and of mud “packed hard” about the board, that this board had once been part of a barricade at this construction site, that this barricade rather than some other barricade had previously been used to warn approaching motorists of the peril at this site, that this barricade had not been in place when defendant’s crew left the site on the afternoon before the accident, and that no other barricade or warning device was then in place. These inferences are too many to rest on the single fact that at 3:00 a. m. plaintiff had discovered what he took to be part of a barricade “jammed into the mud.” The evidence establishes nothing more than that no barricade was in place at 11:00 p. m. when the accident occurred. We find that this evidence is not legally sufficient to show that no barricade was in place five hours earlier. Consequently, we hold that the evidence does not raise a face issue concerning defendant’s negligence and that defendant’s motion for instructed verdict was properly sustained. Since no ground for liability has been established, we do not reach plaintiff’s points concerning the damage issues.

Affirmed.


author: McDONALD, Chief Justice.

text:
    L. W. GARDNER, Jr., et ux., Appellants, v. CITY OF HAMILTON, Appellee.
    No. 5528.
    Court of Civil Appeals of Texas, Waco.
    April 15, 1976.
    Rehearing Denied May 20, 1976.

      Ben Sudderth, Commanche, for appellants.
    James E. Crouch, Hamilton, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by L. W. Gardner, Jr., and wife from judgment decreeing the City of Hamilton, owner of a described 5.68 acre tract of land in Hamilton, Texas. Such judgment recites the City of Hamilton acquired ownership under its power of eminent domain, and required the City to deposit $9,806. into the registry of the court for the Gardners.

The Gardners as plaintiffs filed this suit to set aside an easement on 5.9 acres executed by them to the City of Hamilton for construction of a water conservation structure; and further to enjoin the City from entering on or using the land in question. The City answered, filed cross action to declare the easement valid, and in the alternative to condemn the property.

Trial to a jury resulted among other things in findings that the property taken plus damage to the remainder was $9,806.

After both parties moved for judgment, the trial court rendered judgment setting aside the easement, declaring same void; decreed title to a 5.68 described tract to the City of Hamilton under eminent domain; and required the City to pay $9,806. to the Gardners.

The Gardners appeal on one point:

“The trial court erred in finding that the City of Hamilton acquired the property in question by the power of eminent domain”.

The record reflects that the City of Hamilton in 1965 or 1967 was soliciting easements from property owners upon which to construct a water conservation structure to prevent flooding in the City of Hamilton. Gardner and wife signed such an easement to 5.9 acres out of their 7.77 acre tract. The Gardners were paid no money for the easement. In 1975 the construction of the structure was commenced and the contractor moved equipment on the property and began moving earth. The Gardners filed this suit to set aside the easement and enjoin construction.

The City cross acted in condemnation for the land. As noted the trial court set aside the easement, decreed title by eminent domain to the City, and required the City to pay $9,806. to the Gardners.

Under their point appellants assert “the City of Hamilton did not have power of eminent domain as to this land for the purpose set forth”.

Article 1109b VATS recites: Eminent domain

“Incorporated cities and towns shall have the power to appropriate private property for public purposes whenever the governing authorities shall deem it necessary and to take any private property within or without the city limits for any of the following purposes: * * * * storm sewers, * * * drains * * * reservoirs, water sheds * * * and to acquire lands within or without the city for any other municipal purposes that may be deemed advisable. * * *

A municipal purpose or function is one which promotes the comfort, convenience, safety, and happiness of the citizens of the municipality rather than the welfare of the general public. Community Natural Gas Co. v. Northern Texas Utilities Co., CCA (Amarillo) Er.Dismd., Tex.Civ.App., 13 S.W.2d 184, 194. The record reflects that Hamilton had in the past suffered from severe floods and that the project here was a part of a plan to prevent floods. We think the right of the City of Hamilton to exercise eminent domain for flood control and water retention purposes within the provisions of Article 1109b.

Appellants further assert the City did not follow the proper procedures to take the property in that the resolution passed by the Hamilton City Council did not state on its face that condemnation was “necessary”; as required by Burch v. City of San Antonio, CCA (San Antonio) Tex.Civ.App., 508 S.W.2d 653 (reversed by S.Ct., Tex., 518 S.W.2d 540).

Assuming such prerequisite required in the conventional condemnation ease, same was not required here.

Article 3269 VATS provides:

“When the State of Texas * * * or any county, incorporated city * * * having the right of eminent domain * * is a party, as plaintiff or defendant * * to any suit in a District Court * * . * for property or for damage to property occupied by them or it for the purposes of which they or it have the right to exercise such power of eminent domain, or when a suit is brought for an injunction to prevent them or it from going upon such property or making use thereof for such purposes, the Court in which such suit is pending may determine the matters in dispute between the parties, including the condemnation of the property and assessment of damages therefor, upon petition of the plaintiff, cross bill of the defendant * * * asking such remedy or relief; and such petition, cross bill * * * asking such relief shall not be an admission of any adverse party’s title to such property; and in such event the condemnor may assert his or its claim to such property and ask in the alternative to condemn the same if he or it fails to establish such claim; * * *

In this cause the City was in possession of the property under an easement and was at work on the project, when appellants filed their suit to set aside the easement and enjoin the City from proceeding. The City asserted its easement valid but in the alternative sought to condemn. This is precisely the situation covered by Article 3269. Such statute does not contain a requirement that the condemnor, before filing its condemnation proceeding in District Court follow the requirements it would be required to follow if it were filing an initial conventional condemnation suit. So. Pacific Transportation Co. v. The County of Harris, CCA (1st. Houston) Er.Refused, Tex.Civ.App., 508 S.W.2d 484.

Appellants’ point and all contentions thereunder are overruled.

AFFIRMED.

      . Emphasis added.


text:
    Weldon GAY et ux., Appellants, v. CITY OF HILLSBORO, Texas, Appellee.
    No. 5570.
    Court of Civil Appeals of Texas, Waco.
    April 15, 1976.
    Rehearing Denied May 20, 1976.
    Jack B. Cowley, Dallas, for appellants.
    Larry 0. Brady, Waco, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiffs, Gay and wife, from summary judgment they take nothing in suit for damages against defendant City, for alleged negligence in failing to keep a street in reasonable repair.

Plaintiffs appeal on one point: “The trial court erred in granting defendant’s motion for summary judgment.”

The judgment recites among other matters that the trial court considered the depositions on file. The record reflects that at least 3 and probably 6 depositions were on file in the case.

No depositions have been brought forward as part of the record on appeal, which is plaintiffs’ (appellants) burden.

We cannot decide from the incomplete record before us that the judgment is erroneous. It is presumed the omitted depositions establish the correctness of the judgment. Hassell v. New England Mut. Life Ins. Co., Tex.Civ.App. (Waco) Er. Refused, 506 S.W.2d 727; Alexander v. Bank of American National Trust and Savings Assn., Tex.Civ.App. (Waco) Er. Refused, 401 S.W.2d 688; Wood v. Indiana Lumbermen’s Mutual Ins. Co., Tex.Civ.App. (Waco) NRE, 477 S.W.2d 657.

Appellants’ point is overruled.

AFFIRMED.