author: ROBERTS, Judge.

text:
    Tommy Ray KNEELAND, Appellant, v. The STATE of Texas, Appellee.
    No. 52178.
    Court of Criminal Appeals of Texas.
    Nov. 24, 1976.
    James H. Clack, Andrews, John R. Lee, Kermit, for appellant.

      Calvin W. Wesch, Dist. Atty., Kermit, Jim D. Yollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction under the old Code for murder with malice. A motion for change of venue was granted by the district court of Winkler County and the case was transferred to Pecos County. The jury assessed punishment at 550 years’ confinement in the Texas Department of Corrections.

The sufficiency of the evidence is not challenged. Appellant’s four grounds of error relate to the admission of his confession into evidence. Although three statements were taken from the appellant in connection with this case, only the last one was admitted into evidence. The trial court conducted a lengthy Jackson v. Denno hearing to determine the voluntariness of the statements. The findings of fact and conclusions of law filed at the conclusion of this hearing recite that all three statements were voluntary and that the third statement, the only one to be admitted into evidence, was not the result of any exploitation of the first two statements given by appellant.

The appellant contends that the confession should not have been admitted into evidence because it was made after his arrest and request for counsel and because it was the fruit of the two prior statements given, which he contends were also involuntary.

Appellant did not testify at the pretrial hearing on his Motion to Suppress Statements, nor at the trial on the merits.

The record reflects that the first two statements were made by appellant while he was under arrest and in custody in Fort Worth for an unrelated offense of aggravated kidnapping. Appellant’s wife had hired a Tarrant County lawyer to represent appellant in connection with this unrelated offense. This attorney had interviewed appellant and represented him in a writ of habeas corpus proceeding in connection with the kidnapping case.

After the writ hearing on the kidnapping case, appellant was returned to the city jail. Later, Fort Worth police detectives sought to interrogate him in connection with the kidnapping and another unrelated murder charge that had arisen. At this time, appellant requested that his attorney be present. After this request, he was placed back in the jail and no attempt was made to interview him. This was the first time appellant had requested an attorney since his arrest.

Shortly thereafter, Winkler County Sheriff Bell sought to interview appellant in connection with the instant murder. During this interview, appellant advised the sheriff that he wanted his attorney, at which time the interview was terminated.

Later, appellant consulted with his attorney and was returned to jail. A search warrant was then obtained in connection with the unrelated murder and kidnapping charges. Appellant went with the officers to his residence, where the warrant was to be executed. While at his residence, he told Fort Worth police detective Hudson that he wanted to talk with him. Hudson then took appellant to the Fort Worth district attorney’s office and began interviewing him. Prior to beginning the interview, Hudson gave appellant his Miranda warning and specifically asked appellant if he wanted his attorney present. Appellant stated that he did not want his attorney present and that he understood his rights. Appellant then gave statement # 1 in connection with the instant murder. While it was not admitted into evidence, appellant contends it was involuntarily given and tainted statement # 3 which was admitted into evidence.

Appellant was then given a polygraph examination. Prior to beginning the examination, appellant was again warned of his rights and he stated he understood them and did not want his attorney present. After the examination, Detective Hudson advised appellant that it showed he was lying about the instant murder. Appellant then proceeded to give statement # 2. Prior to this he was warned of his rights and he stated he did not want his attorney present.

During the course of taking statement # 2, Hudson was advised by an assistant district attorney that a restraining order had been issued preventing the interrogation of the appellant. The record reflects that appellant’s attorney had obtained this restraining order from District Judge Gordon Gray. Hudson knew nothing about the restraining order until he was notified. Another assistant district attorney then called Judge Gray at home and advised him that appellant wanted to make a voluntary statement. Judge Gray then came down to the district attorney’s office and talked to the appellant alone. Judge Gray testified that appellant told him he didn’t want a lawyer and he wanted to make a statement. Appellant told the judge that he had not hired his attorney and he did not want a lawyer at the time he made his statements to the police. He also stated he didn’t want a lawyer present then and wanted to give the statement. Judge Gray then gave appellant another warning. Judge Gray determined that appellant had not been mistreated, that appellant understood his rights, and that he did not want a lawyer and wanted to make a voluntary statement. At this time, Judge Gray entered an order rescinding the restraining order. After this, the judge told Detective Hudson to continue with the investigation.

Hudson then finished taking statement # 2. Before appellant signed it, appellant read it, corrected some errors, and specifically signed again where the statement says that he did not wish to talk to his attorney or any other lawyer or have any other lawyers present.

After all this, Sheriff Bell left Fort Worth with the appellant and took him to Kermit, Texas, where he was placed in jail. The next day, Bell took appellant before Justice of the Peace Jones and Jones gave appellant the magistrate’s warning. Appellant stated he understood the warning and told Jones that he wanted an attorney appointed. Jones testified that he called several attorneys in an effort to get one appointed and later, when he was prepared to appoint an attorney, the appellant stated that he wanted to waive his right to have an attorney appointed.

Later in the day, after appellant had lunch, Sheriff Bell talked to appellant concerning the facts of the instant murder. Appellant told him that he would give him another statement. Bell then advised appellant of his rights and appellant stated that he understood them. Bell specifically asked him whether or not he wanted a lawyer present during any interview questioning. Appellant replied that he did not want an attorney present. Appellant told Sheriff Bell that he wanted an attorney to represent him later on when his case was tried, but at that time he didn’t want an attorney present. After this, statement # 3, the one that was ultimately introduced into evidence in this case, was given by the appellant. It was typed, and appellant read it, understood it and signed it in the presence of a secretary who was not a peace officer. Appellant knowingly and voluntarily waived all of his rights.

From the lengthy recital of the above facts, it can be seen that appellant never requested an attorney to be present when he gave any of the three statements in this case. Whenever it was indicated that he did want an attorney present, the interview was terminated and the officers never obtained any information from appellant concerning any of the cases except while taking the written statements.

The record reflects no evidence of any physical abuse, threats or promises by any of the officers at any time after appellant was arrested in Fort Worth. It further reflects that appellant had been fed and properly treated. Although the record reflects that after talking with his attorney in Fort Worth appellant had requested his attorney to be present at any questioning, there was no such request after appellant voluntarily initiated the conversation with Detective Hudson during the execution of the search warrant. The testimony of Hudson, confirmed by the oral statements made by appellant to Judge Gray, leads to the conclusion that appellant voluntarily, knowingly and intelligently waived the presence of legal counsel in making the confession of the murder in the case at bar, and that the confession was freely and voluntarily made. Coercive custodial interrogation that succeeds in breaking an individual’s previously declared will to remain silent, condemned in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), is not shown in the instant case. See, Sweiberg v. State, 511 S.W.2d 50 (Tex.Cr.App.1974).

In Brown v. State, 508 S.W.2d 91 (Tex.Cr.App.1974), we held:

“The fact appellant at first told the officer he desired counsel did not render his statement given thereafter involuntary as a matter of law under the evidence in the case. A confession, although made subsequent to a prior invocation of rights, is voluntary and admissible when the prosecution demonstrates the use of procedural safeguards effective to secure the accused’s rights. (Citations). Thus, if the individual, once having invoked his rights, thereafter does, in fact, change his mind and knowingly and intelligently waive his rights, the prior invocation does not vitiate the statement.” (Citations). Id., at 94.

Considering the totality of the circumstances, Farr v. State, 519 S.W.2d 876 (Tex.Cr.App.1975), we conclude the prosecution demonstrated successfully the use of the procedural safeguards referred to in the above quotation.

The trial court did not err in admitting the confession into evidence. All of appellant’s grounds of error are overruled.

The judgment of the trial court is affirmed.

      . See, Art. 15.17, V.A.C.C.P.


source: Caselaw Access Project

author: BROWN, Commissioner.

license: Public Domain

text:
    Hector ZUBIA, Appellant, v. The STATE of Texas, Appellee.
    No. 53260.
    Court of Criminal Appeals of Texas.
    Nov. 24, 1976.
    Odell S. Holmes, Jr., El Paso, for appellant.

      George N. Rodriquez, Jr., County Atty., and J. Todd Southern, Asst. County Atty., El Paso, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is an appeal from a conviction for driving while intoxicated. Appellant waived his right to a trial by jury and entered a plea of guilty before the court which assessed punishment at three (3) days in the El Paso County jail and a fine of fifty ($50) dollars.

In his sole ground of error appellant contends that the trial court erred in refusing appellant’s application for probation. While it is clear that the trial judge has absolute and unreviewable discretion to refuse or to grant probation, Trevino v. State, 519 S.W.2d 864 (Tex.Cr.App.1975), the essence of appellant’s complaint is that he was eligible for probation and that the court would have granted probation but for its interpretation of Article 42.13, Vernon’s Ann.C.C.P.

The record reflects that appellant was previously convicted of driving while intoxicated on a plea of guilty before the court on November 29, 1971. This conviction was within five years of the offense in the instant case which occurred on January 30, 1976. The State chose to charge appellant by information with misdemeanor driving while intoxicated under Art. 6701/-1, Vernon’s Ann.C.S., rather than the felony offense under Article 6701/-2.

In its findings, the trial court indicated that it was disposed to grant appellant probation and noted the provisions of Article 42.13, Sec. 3(a)(2), Vernon’s Ann.C.C.P., which provides that a defendant who has been found guilty of a misdemeanor may be granted probation if:

“(2) he has not been granted probation nor been under probation under this Act or any other Act in the preceding 5 years; provided that the court may grant probation regardless of the prior probation of the defendant, except for a like offense within the last 5 years . . . ”

The court apparently felt the provision was inapplicable to appellant because the evidence showed that he had not been granted probation and that he had not been under probation under any act during the preceding 5 years. However, the court then noted that it was bound by the provisions of Section 3(b) of the same statute which, in addition to the mandatory probation required upon the jury’s recommendation, provides that the court “may grant the defendant probation regardless of the recommendation of the jury or the prior conviction of the defendant, except for a like offense within the last five years.’’ Therefore, the court concluded that it could not grant appellant probation.

Appellant contends that the trial court erred in its interpretation of the two sections of Article 42.13. It is his contention that he is eligible for probation under the terms of Subsection (a)(2) quoted above because even though he was convicted of the same offense within the past five years, he was not granted nor has he ever been under probation during the last five years. Furthermore, he contends that Subsection (b) applies only to the granting of probation in jury trials and would not apply to appellant since both his prior conviction and the instant case were before the court on pleas of guilty.

We cannot agree with appellant’s hypertechnical and restrictive interpretation of the statute. To do so would mean that an accused could escape the obviously mandatory requirements of Sec. 3(b) by waiving his right to a jury trial and proceeding before the court. We construe the provision to mean that if an accused has a prior conviction for a like offense within the preceding five years, he is ineligible for probation.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Windell Dwayne SARRATT, Appellant, v. The STATE of Texas, Appellee.
    No. 53393.
    Court of Criminal Appeals of Texas.
    Nov. 24, 1976.
    Tom A. Boardman and Lawrence B. Mitchell, Dallas, for appellant.
    Henry Wade, Dist. Atty., Edgar A. Mason and James G. Walker, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from an order revoking probation.

The appellant was convicted on May 29, 1975, of “unlawful possession of a criminal instrument, to-wit: a forged prescription.” His punishment was assessed at two years, probated. Later, on May 13, 1976, appellant’s probation was revoked and sentence was imposed.

Appellant contends that the conviction is void because the district court did not have jurisdiction. We agree and reverse. See Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975), and Ramirez v. State, 486 S.W.2d 373 (Tex.Cr.App.1972).

Omitting the formal parts, the indictment alleges that on or about February 24, 1975, the appellant:

“did then and there unlawfully knowingly and intentionally possess a criminal instrument, namely; [sic] a forged prescription, with intent to use it in the commission of obtaining possession of a controlled substance, to-wit: PRELU-DIN.”

This indictment is virtually identical to those in Ex Parte Harrell, 542 S.W.2d 169 (Tex.Cr.App.1976), 1 TCR 955. There we construed V.T.C.A., Penal Code, Sections 16.01 (unlawful use of a criminal instrument, a third degree felony) and 32.21(a)(1), (c) (possession of a writing with intent to utter it, a Class A misdemeanor). We held that the defendant could have been charged and convicted of the latter offense and that therefore there were “two statutes that deal with the same subject matter insofar as the forged prescriptions are here concerned.” 542 S.W.2d, at 171, 1 TCR, at 956.

We then concluded that:

“. . . V.T.C.A., Penal Code, Sec. 16.-01, is a broad and general statute applicable to all types of possession of criminal instruments with intent to use them in the commission of an offense, etc., while possession of a forged writing with intent to utter it is forgery under Y.T.C.A., Penal Code, Sec. 32.21(a)(1)(C), and is a special statute dealing with possession of forged instruments, including forged prescriptions. The statutes are in pari mate-ria and when construed together can be harmonized and given effect with the special governing the general in the event of any conflict. See Thomas v. State, 129 Tex.Cr.R. 628, 91 S.W.2d 716 (1936).
“We conclude that the petitioner was improperly convicted of unlawful possession of a criminal instrument and should have been charged with forgery under said Section 32.21(a)(1)(C), a misdemean- or, over which the convicting court did not have jurisdiction.” 542 S.W.2d, at 173, 1 TCR, at 957.

See also Fronatt v. State, 543 S.W.2d 140 (Tex.Cr.App.1976), delivered November 17, 1976; 2 TCR _.

As in Harrell, the appellant was indicted under the general statute instead of the governing special statute. For the reasons stated in Harrell, the judgment is reversed and the prosecution ordered dismissed.


author: STEPHEN F. PRESLAR, Chief Justice.

text:
    LIBERTY MUTUAL INSURANCE COMPANY, Appellant, v. Carla S. RAMOS, Individually and as Administratrix of the Estate of Manuel Jesus Ramos, Deceased, et al., Appellees.
    No. 6482.
    Court of Civil Appeals of Texas, El Paso.
    July 7, 1976.
    Rehearing Denied Aug. 18, 1976.
    Rassman, Gunter & Boldrick, John E. Gunter, Midland, for appellant.
    Warren Burnett Associated, Richard C. Abalos, Richard J. Clarkson, Odessa, for appellees.
   OPINION

STEPHEN F. PRESLAR, Chief Justice.

This is a companion case to our Cause No. 6481, Liberty Mutual Insurance Company, Appellant, v. Raymond E. Chesnut, Appellee, Tex.Civ.App., 539 S.W.2d 924, and the opinion in that case this day handed down controls the disposition of this case with the addition of our ruling on the question of attorneys’ fees.

This case, and the others set forth in our opinion in Cause No. 6481, 539 S.W.2d 924, were separate cases which were combined for the purposes of trial. Separate judgments were entered in each case and each present a separate appeal to this Court, but a single brief was filed with the same assignments of error to all cases except that of Raymond E. Chesnut which did not involve the question of lump súm payment of attorneys’ fees. By its Point of Error Ten, Appellant asserts that the award of lump sum attorneys’ fees was error. The Supreme Court has held otherwise in Texas Employers Insurance Association v. Motley, 491 S.W.2d 395 (Tex.1973). It was held that the trial Court in a workmen’s compensation proceeding had authority and discretion to order the insurer to make lump sum payment of the claimant’s attorney fees though the compensation to the plaintiff was to be paid in weekly installments. It was pointed out that there was a restriction as to what the Industrial Accident Board can do in awarding attorney’s fees which was not placed by the Legislature in its authorization of the Court to act; that whereas the Industrial Accident Board can only approve the amount of weekly payments to the attorney in instances where the claimant is receiving weekly payments, Section 7d, Article 8306, Tex.Rev.Civ.Stat.Ann., authorizes the Court to “fix and allow” such fees without the restriction as to periodic installments. In the case before us, there is no showing of abuse of discretion on the part of the trial Court, and the Point of Error is overruled.

All Points of Error relating to this case have been considered, and all are overruled. The judgment of the trial Court is affirmed.


author: CURTISS BROWN, Chief Justice.

text:
    Martha Jane HENRY et al., Appellants, v. MR. M CONVENIENCE STORES, INC., et al., Appellees.
    No. 1398.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Oct. 6, 1976.
    Rehearing Denied Nov. 3, 1976.

      Eugene J. Pitman, DeLange, Hudspeth, Pitman & Katz, Houston, for appellants.
    Will Sears, C. Charles Dippel, Sears & Burns, Houston, Cox, Smith, Smith, Hale & Guenther, San Antonio, for appellees.
   CURTISS BROWN, Chief Justice.

This appeal involves a case in which Mr. M Convenience Stores, Inc. (Mr. M) and H. Fred Staacke, Sr. (appellees) instituted suit against George A. Laigle, Trustee (Laigle) and others (appellants) for specific performance of a contract for the sale of real property and to remove clouds on the title to the • property. Actual and exemplary damages were also sought for alleged tortious interference with the contract. The trial court severed the claim for damages for tortious interference with the contract and entered summary judgment decreeing specific performance and cancelling certain instruments as clouds on title. Appellants have perfected this appeal from the summary judgment.

The summary judgment evidence conclusively established that on March 18, 1975 appellee Mr. M entered into an earnest money contract with appellant Martha Jane Henry (Mrs. Henry) for the sale of the subject property located in a fashionable section of Houston. Mrs. Henry was aware that the land was to be used for the construction of a Mr. M convenience store and a small office building to house Mr. M’s Houston-based operation. On June 12,1975 Mr. M assigned its interest under the contract to H. Fred Staacke, Sr. (Staacke) who was the majority stockholder in Mr. M.

Appellants Laigle and M. D. Eisemann (Eisemann) were residential property owners in the neighborhood which immediately surrounded the property. The summary judgment evidence established that Laigle was disturbed at the possibility of a commercial enterprise being established in the neighborhood. He projected that construction of the “Mr. M operations” would reduce the resale value of surrounding residences by “5 or 10%.” In a letter directed to the various property owners in the neighborhood, dated June 11, 1975, Laigle and another property owner in the neighborhood emphasized “that the importance to all of us in stopping Mr. ‘M’ cannot be overestimated.” In the same letter Laigle further stated: “We are continuing to explore every way of pressuring Mr. ‘M’ to give up on this project, but at this point we have received no concrete indication that they will.”

On June 13, 1975, three days before the scheduled June 16th closing, Mrs. Henry conveyed the property by way of a general warranty deed to Laigle, as trustee for thirteen named individuals. Laigle thereafter executed a Deed of Trust and Security Agreement in favor of Fannin Bank (the Bank) in the amount of $100,000.00. Simultaneously with the attempt to fix a lien in favor of the Bank, Laigle executed a second deed of trust, this one in favor of Mrs. Henry, in the amount of $74,528.00 to secure his promissory note to her for the remainder of the purchase price. Thereafter Laigle and Eisemann jointly executed and filed of record instruments placing certain restrictions on the property. The purpose of the restrictions was to limit the use of the property to residential purposes only, in direct contravention of the commercial intentions of appellees. These instruments constituted the “cloud” appellees sought to remove.

By way of their first point of error appellants complain that appellees’ “causes of action” were in fact a single cause of action and, as such, not properly severable. We disagree. The question of the propriety of a “severance” is subject to appellate judicial scrutiny. As provided in Tex.R.Civ.P. 41: “Any claim against a party may be severed and proceeded with separately.” For severance to be proper, however, the suit must involve two or more separate and distinct causes of action, and the severed cause of action must be such that it could be properly tried and determined as if it were the only claim in controversy. Kansas University Endowment Ass’n v. King, 162 Tex. 599, 350 S.W.2d 11, 19 (1961). See Pierce v. Reynolds, 160 Tex. 198, 329 S.W.2d 76, 78 (1959); Rose v. Baker, 143 Tex. 202, 183 S.W.2d 438, 441 (1944). The severed cause of action here sounds in tort rather than in contract. Exemplary damages ordinarily are not recoverable for breach of contract alone. The damages sought are significantly less than the purchase price of the property. It is clear that the legal damages sought by appellees in their “third cause of action” are separate and distinct from the equitable relief sought by way of their first two causes of action. For these reasons we hold that the trial court did not abuse its discretion in ordering the severance.

Appellants’ second and third points of error essentially complain that there was a material question of fact as to the sufficiency of appellees’ tender of performance in compliance with the requirements of the earnest money contract. The record conclusively shows that the appellees appeared at the scheduled closing and were ready, willing and able to consummate the agreement. Their failure to actually tender the purchase price was based on numerous “new circumstances,” paramount of which were the “restrictions” placed on the property limiting its use solely to residential purposes. In Burford v. Pounders, 145 Tex. 460, 199 S.W.2d 141, 145 (1947), the court stated that

‘whatever difference of opinion may exist as to the original necessity of a tender of the consideration before suit, * * * it appears to be quite well settled that a formal tender is excused where a tender would be a useless and idle ceremony’; and that a ‘tender is also excused where defendant repudiates the contract’; and further that ‘tender in pleadings (is) sufficient’ where plaintiff sets forth that he is ready, able and willing ‘or * * * pays the consideration into court.’

See McMillan v. Smith, 363 S.W.2d 437, 442-43 (Tex.Sup.1962). Appellants effectively repudiated the contract between Mrs. Henry and Mr. M by conveyance of her legal title, by placing the restriction on the property and by other conduct established by the summary judgment evidence. This conduct excused Mr. M from formally tendering performance at the closing. Further, appellees have pleaded that they are ready, willing and able to perform every obligation required of them by the contract. This is sufficient to allow appellees to obtain specific performance. Appellants’ second and third points are overruled.

Appellants’ fourth and fifth points of error complain that it was improper for the trial court to grant a partial summary judgment in light of Tex.Rev.Civ.Stat.Ann. art. 974a (Supp.1975). The statute contemplates approval by a city or its planning commission of any plans or plats of land to be developed within the city. Appellants contend that any attempt to use the subject property for purposes other than the construction of town homes would require the approval of the City Planning Commission of the City of Houston and joinder of said body in the present cause of action. While we are mindful of the legislative intention of promoting the health, safety, morals or general welfare of the community, we cannot agree with .appellants’ interpretation and application of article 974a to the facts of the instant case. This is a suit for specific performance and to remove clouds. An administrative procedure relating to Planning Commission approval (or to building permits) does not present a situation where the failure to join the Commission is error. If the City of Houston has the right to approve or disapprove the ultimate objectives of appellees, such right is not affected by the judgment of the trial court in this case. Appellants’ fourth and fifth points are overruled.

Appellants’ points of error six through 10 challenge the standing of appel-lees to seek removal of the cloud of the deed from Henry to Laigle, the deed of trust from Laigle to Fannin Bank, or the instruments between Laigle and Eisemann placing the restrictions on the property because appellees were not parties to these instruments. We overrule these points. The earnest money contract between Mrs. Henry and appellees expressly provided that the purchaser, Mr. M, had “the right to approve any easements, pipeline rights-of-way, covenants, mineral leases, building lines, encroachments and any dedications affecting the subject property.” The summary judgment evidence conclusively establishes that appellees were denied their contractual rights to approve the general warranty deed from Henry to Laigle and, indeed, were not given notice of its execution. The depositions and affidavits on file in this case conclusively show that Laigle, Eisem-ann, and Fannin Bank all had notice of the earnest money contract. By the imposition of the building restrictions on the property, Laigle attempted to establish title to the subject property different than that title possessed by his vendor, Henry. It is well settled in Texas that a vendee of land with full knowledge of a purchaser’s rights under a contract for the sale of the land is in the same position as the vendor in a suit by the purchaser for specific performance. Langley v. Norris, 141 Tex. 405, 173 S.W.2d 454, 457 (1943). Laigle, therefore, was in the same seller’s posture as Mrs. Henry and did not have the right to restrict the use of the property. Texas courts have repeatedly held that a holder of an equitable interest in land has standing to sue to remove clouds on title. Neely v. Neely, 52 S.W.2d 927, 930 (Tex.Civ.App.-Fort Worth 1932, no writ); See Texan Development Co. v. Hodges, 237 S.W.2d 436, 439 (Tex.Civ.App.-Amarillo 1951, no writ). Appellants’ points six through 10 are overruled.

Appellants’ points 11 and 12 challenge the action of the trial court in removing the deed of trust to the Bank as a cloud upon appellees’ equitable interest in the property. The judgment of the trial court provided that the instruments removed as clouds upon appellees’ equitable title to the subject property were conditioned upon payment of the full contract price into the registry of the court. The summary judgment evidence conclusively establishes that the Fan-nin Bank had notice of appellees’ contract of sale and that the Bank was not a bona fide lender for value. The judgment cancels the deed of trust but does not extinguish the obligations owed the Bank by Laigle. The judgment of the trial court does not undertake to adjudicate issues or obligations between appellants. Since the Bank had full knowledge of the pre-exist-ing contract for sale, the court did not err in removing the subsequent deed of trust as a cloud upon appellees’ equitable title. See Campbell v. City of Dallas, 120 S.W.2d 1095, 1097 (Tex.Civ.App.-Waco 1938, writ ref’d).

There being no merit in any of appellants’ points, the judgment of the trial court will stand affirmed.

Affirmed.


text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Robert Thomas ELLIS, Appellee.
    No. 6538.
    Court of Civil Appeals of Texas, El Paso.
    Oct. 13, 1976.
    Turpin, Smith & Dyer, L. Lloyd MacDonald, Midland, for appellant.
    Warren Burnett, Associated, Wm. Ruff Ahders, Richard J. Clarkson, Odessa, for appellee.
   OPINION

STEPHEN F. PRESLAR, Chief Justice.

This is a plea of privilege case involving a workmen’s compensation claim by a Texas employee injured outside of the State under the provisions of Article 8306, Section 19, Tex.Rev.Civ.Stat.Ann. The principal question discussed is whether a plea of privilege is a proper procedure in a case under that statute.

The claimant, Robert Thomas Ellis, filed suit in the District Court of Gaines County to set aside an award of the Industrial Accident Board. The basis of his suit was that he was a Texas employee and that he was hired in Texas to work in Texas and out of the State, and that while working in the State of New Mexico he was injured. The insurance carrier, Appellant herein, filed a plea of privilege which was overruled by the trial Court. We affirm that judgment.

At the outset, we are faced with the question of whether a plea of privilege is a proper procedure in a case brought under Article 8306, Section 19, or if the provisions of that statute are jurisdictional. The statute concerns itself with a Texas employee who is injured while working outside of the boundaries of the State of Texas. It prescribes that he shall be entitled to the rights and benefits as if injured within the State of Texas.

* * * except that in such cases of injury outside of Texas, the suit of either the injured employee or his beneficiaries, or of the Association, to set aside an award of the Industrial Accident Board of Texas, or to enforce it, as mentioned in Article 8307, Sections 5-5a, shall be brought either
“a. In the county of Texas where the contract of hiring was made; or
“b. In the county of Texas where such employee or his beneficiaries or any of them reside when the suit is brought, or
“c. In the county where the employee or the employer resided when the contract of hiring was made, as the one filing such suit may elect.”

Prior cases are in conflict as to whether the statute’s provisions are mandatory and jurisdictional or whether a plea of privilege would lie. If the provision as to the counties in which the suit may be brought are jurisdictional, then the proper test would be a plea to the jurisdiction. On the other hand, if it is a matter of venue, then a plea of privilege is the proper procedure. This Court, on three occasions, has held the statute not to be a venue statute, but jurisdictional. In Davis v. Petroleum Casualty Co., 70 S.W.2d 649 (Tex.Civ.App.-El Paso 1934, no writ), it was held that there was no authority to transfer when it was discovered that suit was brought in a county other than that prescribed by the statute; the only action the Court could take was to dismiss the case for want of jurisdiction. Again, in a later case, this Court ruled that the statute was not merely one of venue, but its provisions were jurisdictional. Baker v. Highway Ins. Underwriters, 209 S.W.2d 979 (Tex.Civ.App.-El Paso 1947, writ ref’d. n. r. e.). It was there said that, if there had been a failure to prove the facts under a, b, or c .above, the Court would have lost jurisdiction and could only dismiss the case. In Texas Employers’ Ins. Ass'n. v. Price, 291 S.W. 287 (Tex.Civ.App.-1926), this Court dismissed the case because as the statute then existed no jurisdiction of any court was specified. The Legislature then amended Section 19 by adding the above provisions a, b, and c. The Commission of Appeals then ruled that the amendment conferred “exclusive jurisdiction in cases where an employee is injured outside of the state.” Additionally, the opinion of the Commission of Appeals said that the employee could bring his suit in any court of competent jurisdiction subject to the insurer’s privilege of insisting that same be tried in a court having venue thereof under our statutes. Price v. Texas Employers’ Ins. Ass’n., 296 S.W. 284 (Tex.Com.App.1927, jdgmt. adopted).

Contrary to the above cases, this Court and the Fort Worth Court of Civil Appeals have ruled on the venue brought under a plea of privilege without questioning the right of the insurance carrier to test venue by the plea of privilege procedure. Texas Employers’ Insurance Association v. Nardman, 376 S.W.2d 891 (Tex.Civ.App.-El Paso 1964, no writ), and Texas Employers’ Insurance Association v. Thomas, 415 S.W.2d 18 (Tex.Civ.App.-Fort Worth 1967, no writ). The Nardman case has been rejected by the Beaumont Court of Civil Appeals in the case of Commercial Standard Insurance Company v. Lester, 481 S.W.2d 157 (Tex.Civ.App.-Beaumont 1972, no writ); that Court held that in a case brought under Article 8306, Section 19, for out of State injuries it was not proper to test venue by a plea of privilege; it construed the legislative intent to be that venue in such cases should be determined in a trial on the merits; and the authority for the Court’s position was Texas Employers’ Ins. Ass’n. v. Ribble, 260 S.W.2d 719 (Tex.Civ.App.-Eastland 1953, no writ). That case was not one brought under Article 8306, but rather under Article 8307a for an injury received within the State of Texas; Article 8307a provides that the appealing party shall “bring suit in the county where the injury occurred.” Those Articles each have their own venue provisions, one dealing with injuries outside of the State and one dealing with injuries within the State, and neither has any application to the other. Each requires different pleadings and different proof of facts. Hedtke v. Transport Insurance Company, 383 S.W.2d 474 (Tex.Civ.App.-San Antonio 1964, writ ref’d n. r. e.). We simply note in disagreeing with the Beaumont Court that Article 8307a and the many cases construing it have no application to this case. Obviously, there can be no “county of injury” in Texas when the injury occurred out of the State.

In addition to the general venue statute, Article 1995, there are many statutes particularly describing the place a case should be tried. Article 8306, Section 19, is such a statute. Some such statutes specify that cases may be brought only in particular counties or particular courts, others seem to provide mandatory venue, while still others are permissive as to venue. As to such statutes it is said:

“ * * * Statutes permitting suits against the State, or authorizing special proceedings for the settlement of rights which exist wholly by virtue of statute rather than by virtue of the constitution or the common law, often fix the county wherein suit must be prosecuted, and such provisions are commonly treated as jurisdictional. Conceptually, however, any statute which lodges in the courts of a single county (named specifically or identified by a description applicable only to it) the exclusive power to try a certain type of case is jurisdictional, even though it be placed by the legislature in juxtaposition to true venue provisions or be referred to in its body as a venue statute.”

1 McDonald, Texas Civil Practice, Venue, 4.02, 411 (1965). The interested reader will find a number of these statutes and their construction by the Courts set forth in Gambill v. Town of Ponder, 494 S.W.2d 808 (Tex.1973). In addition to the above statement of the law, we quote from the case of Alpha Petroleum Co. v. Terrell, 122 Tex. 257, 59 S.W.2d 364 (Tex.Com.App.) opinion adopted (122 Tex. 257, 59 S.W.2d 372) (1933):

“ * * * In such a case where the statute, as this one does, provides that the suit shall be filed in a particular court, it demonstrates a conclusive legislative intent to designate such court as the only tribunal where such matter can be litigated, and, as said by our Supreme Court, speaking through Judge Cureton, in Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084, 1088; ‘In special proceedings not within the common-law jurisdiction, the court’s statutory designation of the venue is mandatory and jurisdictional.’ ” (Emphasis supplied)

At this point, we note that Article 8306, Section 19, does not give a particular court of a single county the exclusive power to try cases arising under it; it does not meet the test set forth in Alpha so as to demonstrate a conclusive legislative intent as to the only tribunal in which the matter can be litigated. While it uses the mandatory language “shall”, yet it is permissive in allowing either party to choose the county. Of course, if they do not choose a county, they can waive the provisions. This indicates venue rather than jurisdiction, for jurisdiction cannot be waived but venue can. Jurisdiction is the power of a court to proceed to trial and render judgment in a matter; venue is a privilege or right of a litigant. The basic venue right is to be used in a particular county. Article 8806, Section 19, is not then compulsory in a specified court, but a privilege or right to choose the county of suit. We hold that the provisions of Article 8306, Section 19, are a matter of venue and not of jurisdiction.

Such a ruling is in keeping with the liberal construction to be given the compensation statutes of this State. Determining the proper county of suit is less onerous by the plea of privilege method than by trial on the merits. For instance, the case before us was tried in Gaines County in far West Texas; had it been filed by the carrier in far East Texas, the claimant would have been forced to appear in that tribunal 1,000 miles away from his home with his witnesses and prepared for a trial on the merits; if he was unsuccessful on the venue matter, he would have the long appellate process of a regular appeal from a trial on the merits, and if successful on appeal would then have another full trial on the merits. Otherwise, he could expeditiously dispose of the venue question with a plea of privilege and possibly only his own testimony, and if unsuccessful have a quick appeal.

Having determined that the provisions of Article 8306, Section 19, are venue matters, it follows that the proper procedure for the determination of venue is by plea of privilege. Exception No. 30 under Article 1995, Tex.Rev.Civ.Stat.Ann., provides:

“30. Special venue. — Whenever in any law authorizing or regulating any particular character of action, the venue is expressly prescribed, the suit shall be commenced in the county to which jurisdiction may be so expressly given.”

Article 8306, Section 19, would seem to be such a statute as is described in the above section in that it expressly prescribes the counties in which the suits may be commenced. It would seem that Exception 30 has no meaning unless it applies to statutes such as Article 8306, Section 19. In fact, the venue provisions of Article 8306 have been in effect since 1927, yet that statute contains no provision or authorization for a court to transfer cases under it when a determination is made that the suit is in the wrong county. Surely then, it is the intention of the Legislature that such transfer should be determined by the plea of privilege procedure.

Our Courts seem to confuse statutory provisions of venue when set out in the statutes themselves with the procedure of Article 1995 and Rule 86, Tex.R.Civ.P. Cases are numerous in which they have said “the statute itself controls”; they then go on to say that the procedure and rules applying to the general venue statute, Article 1995, and pleas of privilege do not apply. See Goff v. State Board of Insurance, 319 S.W.2d 383 (Tex.Civ.App.-Dallas 1958, no writ); Turner v. Bennett, 108 S.W.2d 967 (Tex.Civ.App.-Beaumont 1937, no writ); and Johnson v. Sharpstown State Bank, 503 S.W.2d 667 (Tex.Civ.App.-Eastland 1973, no writ). Such statements are correct in saying that the statute itself controls in that it specifies the venue facts, but it ignores the fact that the procedure to determine those facts is that of the plea of privilege. The vehicle to raise the venue issue is the plea of privilege followed by the response to it required by Rule 86. Our Courts seem to ignore the provisions of Rule 86 in such instances; it provides that when a plea of privilege is filed, it shall be prima facie proof of the defendant’s right to a change of venue, unless the adverse party controverts the plea. The Rules of Civil Procedure have the effect of statutes and cannot be ignored.

If these statutes which authorize or regulate venue by their own terms are not determined by the plea of privilege procedure, then we have problems intended to be eliminated by that procedure, problems of adverse rulings on the venue question which may not be an appealable order, long delays in that there must be the regular appeal after a full trial on the merits even though the only error is in the venue determination, and other problems. All are contrary to the more desirable method of expeditiously determining the venue of a cause before entering into a trial on the merits. By the Rules of Civil Procedure, venue is the first order of pleading and should be determined prior to trial of the case.

All of these matters would seem to have been laid to rest by a decision of the Supreme Court in 1967, but that decision seems almost to have been ignored by the Courts. Judge Calvert held without equivocation:

“Venue cannot be put in issue by pleas to the jurisdiction, pleas in bar, or pleas in abatement, but only by a plea of privilege. * * * ”

Texas Highway Department v. Jarrell, 418 S.W.2d 486 (Tex.1967). In that case, the Texas Highway Department was sued in Delta County, and by a plea of privilege was successful in getting the case transferred to Travis County. Some two years later, the same party instituted on the same grounds a suit against the Highway Department, again in Delta County; this time the Department did not file a plea of privilege, but rather filed a plea in abatement on the grounds that the final judgment in the first case as to venue was conclusive on the second case. The Supreme Court noted that a plea to the jurisdiction, if sustained, would require a dismissal; a plea in abatement, if sustained, would require an abatement of the claim or cause of action until some obstacle to its further prosecution was removed; and a plea in bar, if sustained, would require a judgment that the claimant take nothing. The Court noted that the plea of res judicata was a plea in bar, but only as to a venue issue. It then held that the Highway Department had not raised an issue of proper venue by a plea of privilege as required by Rule 86. It was said that if the Highway Department had filed a plea of privilege and the plaintiff had filed a controverting affidavit, proper venue of the cause would have been placed in issue; the Department’s plea that the judgment in the first cause was res judicata of the plaintiff’s right to maintain venue in Delta County would have been in order. The Court then cited numerous cases in which that procedure had been followed; that is, that a plea of privilege was filed and then the plea of res judicata was good on the issue of venue. Following this discussion, it then made the ruling which we have quoted above that venue cannot be put in issue by pleas to the jurisdiction, pleas in bar, or pleas in abatement, but only by a plea of privilege, and it then overruled several cases to the contrary.

In the case before us, the plaintiff followed the procedure above outlined in that he filed a controverting affidavit alleging that the venue is maintainable under Subdivision 30 of Article 1995 and Article 8306, Section 19, and pleading facts as to Paragraphs b and c of Section 19. When the facts of either a, b, or c of Section 19, Article 8306, are established, then venue is mandatory in that county. In the case before us, the evidence is conclusive as to b and c. The trial Court properly overruled the plea of privilege. Much is made in the briefs as to whether the plaintiff was a “Texas employee” or not. This is not a venue fact as seen from the above discussion, but is a matter for trial on the merits. It is basic to the plaintiff’s right of recovery that he be a Texas employee. We were in error in treating it as a venue fact in the Nardman case. The judgment of the trial Court is affirmed.


author: CIRE, Justice.

text:
    ANDERSON DEVELOPMENT CORPORATION, Appellant-Appellee, v. COASTAL STATES CRUDE GATHERING COMPANY, Appellee-Appellant.
    No. 1422.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Oct. 20, 1976.
    Rehearing Denied Nov. 17, 1976.

      Robert L. Burns, Sears & Burns, Houston, for appellant-appellee.
    Bill Blackburn, Corpus Christi, Bernard Schrader, Houston, for appellee-appellant.
   CIRE, Justice.

This suit arises out of a contract between Anderson Development Corporation and Coastal States Crude Gathering Company. Anderson agreed to construct two steel pipelines from Damon, in Brazoria County, to Webster Junction, in Harris County. Anderson sued to recover damages for breach of contract, payment of retainage withheld by Coastal, and payment on an invoice for work performed. The trial court sustained four special exceptions to the severable cause for breach of contract and, after Anderson declined to amend, rendered a take-nothing judgment thereon. The court also awarded a take-nothing judgment on a cross-action by Coastal. Trial to the court for recovery of the retainage and for the amount of the invoice resulted in a $69,943.59 judgment for Anderson, plus interest and costs. Both parties perfected limited appeals. Tex.R.Civ.P. 353.

Anderson appeals only from the take-nothing judgment rendered on its action for damages arising out of its alleged breach of contract. This ground of recovery, pleaded in Anderson’s second amended original petition, was based upon Coastal’s failure to supply proper right-of-way as required by paragraph 9 of the contract. Anderson alleges this failure caused work to be done in the inclement fall months instead of the more desirable summer months, forced Anderson to construct in a piecemeal fashion, prevented completion of the job until 76 days after the date required in the contract, and caused Anderson expenditures of $267,-525.33 in excess of the amount Coastal was obligated to pay under the contract.

Anderson first assigns error in the trial court’s sustaining of a special exception to the effect that Anderson’s petition did not state a cause of action because it stated an incorrect measure of damages for the alleged breach of contract. Anderson claimed as damages the sum it expended to complete the job, less the amount Coastal owed under the contract pricing schedule. Coastal’s special exception maintained that the only measure of damages was determined by paragraph 9, which read:

The Company will make every reasonable effort to make materials and right-of-way available so as not to delay construction. After Contractor has received written notice to begin performance of construction work and if, after having started the work of ditching, welding, and laying pipe, contractor is forced to completely shut down all operations of construction by reason of lack of materials or rights-of-way to be furnished by Company, Contractor shall be compensated by a lump sum payment per day per spread for each shut down day in accordance with rate set forth in Exhibit “B”, Unit Price Schedule.

Exhibit B provided for a lump sum price of $2,000 per day in excess of five days.

In ruling on the trial court’s sustaining of special exceptions and dismissal of a suit for failure to state a cause of action, we accept all of Anderson’s pleaded allegations as true. Benz-Stoddard v. Aluminum Co. of America, 368 S.W.2d 94, 96 (Tex.Sup.1963); Wheeler v. White, 398 S.W.2d 93, 95 (Tex.Sup.1965).

Anderson asserts that this liquidated damage clause contemplated only a complete shutdown of all operations and is inapplicable here. We agree. Anderson pleaded facts showing that when a right-of-way problem arose the advance crews would move to a location further along the route and begin work, so that they never completely shut down. Should there have been a complete shutdown, this clause would have been an appropriate measure of damages. It fixed a reasonable measure of damages for a contract breach incapable of estimation or very difficult to accurately estimate. This is the purpose of a liquidated damage clause. Restatement of Contracts § 339 (1932); Stewart v. Basey, 150 Tex. 666, 245 S.W.2d 484, 486 (1952). It was limited to that contingency, and this special exception of Coastal’s should not have been sustained.

Anderson’s points of error 2, 3, and 4 assert the trial court erred in sustaining three special exceptions to paragraph 12 of Anderson’s petition. This paragraph alleged that Anderson spent $812,324.80 to complete the job, which is $267,525.33 over the $544,799.47 Coastal owed Anderson under the contract’s Unit Price Schedule, that these sums represent the reasonable value of work done for Coastal, and that Coastal is obligated to pay the excess of $267,525.33 because its failure to supply proper right-of-way caused the expenditures.

Coastal’s first special exception to this paragraph complained that Anderson asserted an improper measure of damages by trying to recover every dollar spent without showing a direct causal connection with any specific alleged breach by Coastal.

Anderson is not required to make such a showing in its pleadings. Under Texas practice, the purpose of a pleading is to inform the court and defendant of the plaintiff’s claim and the nature of the issues to be tried. Special exceptions are available to the defendant to force a clarification of unclear or unspecific pleadings. Yeager Elec. & Plumbing Co. v. Ingleside Cove Lumber & Builders, Inc., 526 S.W.2d 738, 742 (Tex.Civ.App.-Corpus Christi 1975, no writ). The petition here sets out the nature of the construction work called for and the factors involved in determining the price Anderson could charge for a project. Such factors include the season in which the work was to be performed, the time within which the project was to be completed, and the estimated progress which could be made. Anderson’s claim was that Coastal, in continually failing to provide proper right-of-way, frustrated Anderson’s efficient operation, causing additional expenditures to complete the work. In seeking to recover the additional cost of completing the project caused by Coastal’s alleged breach of contract, Anderson used a correct measure of damages. Farris v. Smith Erectors, Inc., 516 S.W.2d 281, 283-84 (Tex.Civ.App.-Houston [1st Dist.] 1974, no writ); Bd. of Regents v. S & G Constr., 529 S.W.2d 90, 98 (Tex.Civ.App.-Austin 1975, writ ref’d n. r. e.). Its petition gave adequate notice of its claim and the issues to be tried.

Coastal’s next special exception asserted that Anderson claimed special damages which were not specifically stated. Tex.R.Civ.P. 56. We disagree. General da4mages are those which naturally and necessarily flow from a wrongful act, and are presumed to have been foreseen or contemplated by the party as a consequence of his wrongful act. Special damages arise naturally but not necessarily from the wrongful act, and must be shown to have been foreseen or contemplated. Moore v. Anderson, 30 Tex. 224, 230 (1867); Sterling Projects, Inc. v. Fields, 530 S.W.2d 602, 605 (Tex.Civ.App.-Waco 1975, no writ). Coastal contracted to furnish proper right-of-way, which was a prerequisite to Anderson’s doing any work; it is foreseeable that its failure to supply right-of-way would keep Anderson from progressing with construction and would cause Anderson additional expense in completing work. These are general damages.

The final special exception complained that Anderson’s petition did not sufficiently specify its alleged damages to allow Coastal to prepare its defense. Anderson alleged that Coastal’s failure to provide right-of-way caused expenditures for additional salaries, purchase and rental of equipment, maintenance, and supervision. This pleading gave Coastal adequate notice of the kinds of expenditures which Anderson claimed resulted from Coastal’s breaches of contract, and provided a reasonable starting point for Coastal’s discovery. Our rules do not require pleading of evidence. Ark. Fuel Oil Co. v. State, 154 Tex. 573, 280 S.W.2d 723, 725 (1955).

Anderson’s points of error are sustained.

Coastal appeals only from that portion of the judgment rendered for Anderson on Invoice No. 1106 in the amount of $13,-872.50 and the $30,000 retainage plus 6 percent interest from March 3, 1966.

By points of error 1 and 14-17 Coastal complains of the judgment awarding Anderson the $30,000 retainage. Coastal contends the evidence established Anderson itself breached the contract. It maintains that Anderson, having shown no excuse for its breach, cannot recover and the trial court thus erred in rendering judgment for Anderson. Coastal also assigns as error the trial court’s conclusions of law that Anderson fully performed the contract, that Coastal was not authorized to keep the re-tainage, and that Anderson should recover the retainage. We disagree.

Anderson did breach the contract’s time provisions requiring completion within 45 days after August 16, 1965; it pleaded that it finished work on or about December 15, 1965. This failure to comply with the contract could prevent Anderson from recovering the full amount due it; but if performance was prevented by Coastal, the contractor’s failure to timely perform will be excused. Miller v. Hodges, 260 S.W. 168, 172 (Tex.Com.App.1924, jdgmt. adopted); Ryan v. Thurmond, 481 S.W.2d 199, 206-07 (Tex.Civ.App.-Corpus Christi 1972, writ ref’d n. r. e.). Testimony was given by P. S. Reed, Anderson’s general manager, evidencing an excuse for Anderson’s failure to timely perform; thus, the element of excuse will be presumed in favor of the trial court’s finding that Anderson fully performed the work required under the contract. Tex.R.Civ.P. 299; See Jacobini v. Zimmerman, 487 S.W.2d 249, 251 (Tex.Civ.App.-Fort Worth 1972, no writ).

Coastal’s points of error 2-8 are based upon paragraph 8 of the contract. This paragraph authorized Coastal to retain 15 percent of the amount due Anderson, which would be released upon acceptance of Anderson’s work and proof by Anderson that all claims for labor, materials, and supplies were settled. Coastal’s points of error 2-6 complain of the legal and factual sufficiency of the evidence to support the trial court’s findings of fact and conclusion of law that Coastal accepted Anderson’s work. Paragraph 8 of the contract specified the method by which work was to be approved and Anderson paid. It stated that at the end of each week in which work was done, Anderson was to prepare a written statement, forward it to Coastal, and upon approval by Coastal’s chief inspector, 85 percent of the approved statement was to be paid. The evidence showed this procedure was not followed. Reed testified that Coastal’s inspectors prepared bi-monthly progress reports or “construction certificates” approved by the field superintendent, which were sent to Coastal’s offices and then sent to Anderson to authorize billing. Anderson’s invoices were prepared from Coastal’s reports. The evidence showed Coastal paid all the invoices, except No. 1106 and $30,000 of the $51,824.75 re-tainage. He also testified Coastal has used the pipeline. These acts constitute a waiver of the contractual acceptance provisions and all are evidence of Coastal’s acceptance of the work. Premier Petroleum Co. v. Box, 255 S.W.2d 298, 301 (Tex.Civ.App.-Eastland 1953), writ ref’d n. r. e. per curiam, 152 Tex. 321, 257 S.W.2d 105 (1953).

Coastal’s points of error 7 and 8 complain of the legal and factual sufficiency of the trial court’s finding that no claims for labor, materials, or supplies were pending against Anderson or Coastal as required under the contract for payment of the re-tainage. These points are overruled because any error in this finding would be harmless. Tex.R.Civ.P. 434. Coastal has waived its rights in the contract provision on which this finding was based. In addition to releasing two-fifths of the retain-age, a letter in evidence from Coastal’s counsel, Bernard W. Schrader, offered to release the remaining $30,000 upon Anderson’s assurance that Coastal would not be held liable for a property damage claim made by R. A. Suarez against Anderson. Coastal chose simply to hold the money for another purpose.

The court found that Invoice No. 1106 was based upon a separate contract between the parties, supported by consideration. It provided that Anderson was to bore under oil field roads and install pipes. Coastal’s points 9, 10, 12, and 13 attack these findings on the ground that they are not supported by a pleading of a separate contract. Anderson did plead that Coastal “refused to pay Anderson’s Invoice No. 1106 . .” We believe this pleading was sufficient to put Coastal on notice of Anderson’s claim on a specific invoice.

Point 11 complains of the trial court’s conclusion that the separate contract to bore under the oil field roads was supported by consideration. Coastal contends there could be no evidence of new consideration since the contract already obligated Anderson to bore and construct the pipeline at such locations. The trial court, however, found that the contract pricing schedules did not cover boring and insertion of the 8" and 12" pipe which was used at the oil field roads. This finding is sufficient to support the court’s conclusion that the contract was supported by consideration.

Coastal’s points are overruled.

That part of the trial court’s judgment ordering that appellant Anderson Development Corporation take nothing on its action for damages in the amount of $338,525.33 is severed and reversed and remanded for trial. That part of the judgment ordering that Coastal States Crude Gathering Company take nothing against Anderson Development Corporation and awarding Anderson Development Corporation $69,943.59, together with interest and costs of suit, is severed and affirmed.

Affirmed in part; reversed and remanded in part.


author: HALL, Justice.

text:
    WESTCHESTER FIRE INSURANCE COMPANY et al., Appellants, v. Fannie Blake ENGLISH et al., Appellees.
    No. 5550.
    Court of Civil Appeals of Texas, Waco.
    Oct. 21, 1976.
    Rehearings Denied Nov. 24, 1976.

      Hilton H. Howell, Ñaman, Howell, Smith & Chase, Waco, for appellants.
    John R. Gladney, Corsicana, Ken W. Fu-qua and Leland Reinhard, Wilson, Berry, Jorgenson & Fuqua, Dallas, for appellees.
   HALL, Justice.

Posing as husband and wife when in fact they were not married, Reaves Elden Hickey and Mrs. Carolyn Meadows purchased a frame house and two lots located in Frost, Texas, from Mrs. Fannie Blake English, on February 12,1974, for $8,000.00. Mrs. English conveyed the house and lots by warranty deed, and the grantees are shown to be “R. E. Hickey and wife, Carolyn Hickey.” The consideration was $600.00 cash and a vendor’s lien note in the principal sum of $7,400.00, payable with interest in 180 monthly installments of $66.52 each, beginning April 1, 1974. The note was secured by a deed of trust on the property which listed Mrs. English as the beneficiary. The note and deed of trust were executed by Hickey and Mrs. Meadows as, “R. E. Hickey and wife, Carolyn Hickey.” These instruments were executed in the presence of, and notarized by, Kenneth Logan, a notary public in Frost. Logan is also an agent for the appellant, Westchester Fire Insurance Company. At the time of the closing of the real estate transaction in question, Hickey purchased a Texas Standard Fire Policy on the house and its contents from Logan, issued by Westchester, insuring the house for $7,000.00 and the contents for $20,-000.00. The policy named only Hickey as the insured. The place in the policy for naming a mortgagee-beneficiary was left blank. The policy was effective from April 5, 1974, for one year. The premiums for this coverage were paid to and accepted by Westchester. The house burned on July 4, 1974. At that time, three payments had been made by Hickey and Mrs. Meadows on the note. None have been made since. Without dispute, the house and its contents were a total loss, eliminating need of proof of loss to Westchester on the house, under the provisions of Y.A.T.S. Ins. Code, Art. 6.13. The only claim filed with Westchester for loss of contents was signed by Hickey, alone. No payments have been made by Westchester on the policy for any loss.

After the fire, but prior to trial, Mrs. English, Logan, and Westchester learned for the first time that Hickey and Mrs. Meadows were not married. The record indicates that it was during the trial they learned for the first time that Mrs. Meadows is in fact married to Paul Meadows. Mr. Meadows is not a party to this suit.

The policy provides in part that it “shall be void if, whether before or after a loss, the insured has willfully concealed or misrepresented any material fact or circumstance concerning this insurance, or the subject thereof, or the interest of the insured therein, or in case of any fraud or false swearing by the insured relating thereto.”

In other parts, the policy provides that the insured “shall render to this Company a proof of loss signed and sworn to by the insured” within ninety-one days after a loss; that the proof of loss “shall reveal to the best knowledge and belief of the insured . . . the time and cause of the loss, the interest of the insured and all others in the property including any encumbrances thereon, . . . the actual cash value of each item of property and the amount of loss thereto . . . and that the amount of loss for which the Company may be liable “shall be payable sixty days after proof of loss, as herein provided, is received by this Company.”

Mrs. English initiated this suit against Hickey and Mrs. Meadows for recovery on the vendor’s lien note and for foreclosure of the deed of trust lien on the property; and against Logan, individually, and Westches-ter, for recovery as a loss payee under the policy on theories that Logan, acting as Westchester's agent, negligently failed to list her as mortgagee in the policy, and that under certain equitable principles and by reason of the provisions of V.A.T.S. Ins. Code, Art. 6.15, she is entitled to recover directly under the policy as mortgagee whether named in it or not. By cross-claim against Westchester, Hickey and Mrs. Meadows pleaded for recovery of the full amount of the insurance ($27,000.00) on the house and its contents under the policy. Logan and Westchester denied all liability alleged against them.

Trial was to a jury. The jury made these answers to Special Issues numbered as follows:

(1) It found that Logan negligently failed to list Mrs. English as mortgagee in the loss payable clause of the policy.
(2) It found that Mrs. English “sustained financial damage” as a result of Logan’s negligence.
(3) It found that $7,000.00 would fairly compensate Mrs. English for this damage.
(4) It found that Hickey substantially complied with the policy provisions regarding the filing of a signed, sworn proof of loss within 91 days from the date of the fire.
(5) It found that within 91 days from the date of the fire Westchester’s agent or representative told Hickey that the proof of loss he filed did not comply with the policy provisions.
(6) It found that Westchester “waived the filing of a formal proof of loss” on the contents of the house. (The jury was instructed in connection with issue no. 6 that Westchester “did waive the filing of a formal proof of loss on the contents if you find from a preponderance of the evidence that (a) the insurance company refused to allow the insured to file a proper total proof of loss within 91 days of the date of loss; or (b) the insurance company conditioned the filing* of a proof of loss on contents upon the parties reaching a settlement figure; or (c) the insurance company impliedly denied liability on the loss within 91 days of the date of loss”; and that “an insurance company impliedly denies liability when it pursues a course of conduct such as is reasonably calculated to make the insured believe that compliance on his part with the policy provisions regarding the filing of a proof of loss would be of no effect if observed by him.”).
(7) It found that the actual cash value of the contents in the house at the time of the fire was $9,183.00 for that part owned by Hickey, and was $16,605.00 for that part owned by Mrs. Meadows.
(8) It found that prior to the issuance of the policy Hickey falsely represented to Logan, as Westchester’s agent, the fact that the occupancy and use of the property Hickey sought to insure was to be by him and Mrs. Meadows “in a relationship as lawful husband and wife.”
(9) It found that this misrepresentation or concealment was willful and done by Hickey with intent to deceive.
(10)It failed to find that the misrepresentation or concealment was material to the risk of the insurance sought by Hickey.
(Special Issue No. 11 inquired whether Westchester relied on the representation or concealment, but it was conditioned upon an affirmative answer to Issue No. 10 and accordingly was not answered).
(12) It found that prior to the issuance of the policy Hickey falsely represented to Logan, as Westchester’s agent, that the property Hickey sought to insure was owned by him and by Mrs. Meadows “as his lawful wife.”
(13) It found that the misrepresentation was willfully made by Hickey with intent to deceive.
(14) It failed to find that the misrepresentation was material to the risk of the insurance sought by Hickey. (Special Issue No. 15 inquired whether Westchester relied on the misrepresentation, but it was conditioned upon an affirmative answer to Issue No. 14 and accordingly was not answered).
(16) It failed to find that “in making such claim or proof of loss as he made under the policy in question, [Hickey] misrepresented or concealed the fact that persons other than himself owned, or had an interest in, the property for which he claimed a loss.”
(Special Issues inquiring whether this alleged misrepresentation or concealment [17] was willfully made with intent to deceive, [18] was material, and [19] “misled” Westches-ter, were conditioned upon an affirmative answer to Issue No. 16 and accordingly were not answered).
(20) It found that “in making such claim or proof of loss as he made under the policy, [Hickey] misrepresented the value of the contents of the house at the time of the fire.”
(21) It failed to find that the misrepresentation was willfully made with intent to deceive.
(Special Issues inquiring whether this misrepresentation [22] was material and [23] “misled” Westchester were conditioned upon an affirmative answer to Issue No. 21 and accordingly were not answered).
(24) It failed to find that after the fire was first discovered by him, Hickey “neglected to use all reasonable means, not inconsistent with his own personal safety, to save and preserve the property in question.”
(25) It found that within 91 days after the fire Westchester’s agent or representative requested Hickey to “submit himself to examination under oath as to the fire loss.”
(26) It failed to find that after the request was made Hickey “failed or refused to submit to such an examination under oath, without reasonable justification and continually refused through November 20, 1974 [the date Westchester expressly denied all liability to Mrs. English, Hickey and Mrs. Meadows].”

Judgment was rendered on the verdict on September 12, 1975. In its pertinent parts, it provided as follows:

1. Mrs. English was awarded a recovery of $8,903.00 against Hickey and Mrs.' Meadows, representing principal due on the note, plus interest and attorneys’ fees, and a foreclosure of her lien on the property.
2. Mrs. English was awarded a recovery of $7,000.00 from Logan.
3. Mrs. English took nothing from West-chester.
4. Hickey, individually, was awarded recoveries against Westchester of $3,675.00, representing one-half of the policy proceeds on the frame house and prejudgment interest on it from October 16, 1974 (this being the 60th day after proof of loss was allegedly filed by Hickey with Westchester) and $9,642.00, representing his share of the policy proceeds for damages to the contents (found by the jury), with prejudgment interest on it from October 16, 1974.
5. Hickey was awarded recoveries against Westchester “for the use and benefit of Carolyn. Meadows” of $3,675.00, representing one-half of the policy proceeds on the frame house, and $11,358.00, “representing the difference between the policy limits on content’s and the jury’s assessment of the named insured’s [Hickey’s] damages [$9,183.00]” with prejudgment interest on both awards from October 16, 1974.
6. Mrs. English was given an equitable lien in the amount of $7,350.00 against the awards made to Hickey and Mrs. Meadows.
7. Provision was made for allowing credits in favor of Logan, Hickey, and Mrs. Meadows for any recoveries by Mrs. English from any of them; and Mrs. English was granted an equitable lien to the extent of $7,350.00 against the awards in favor of Hickey and Mrs. Meadows against Westches-ter, with provision for crediting her judgments against Logan and Hickey and Mrs. Meadows with any recovery by her under this lien.
8. The policy was reformed to correct an error in the description of the realty.

The initial question we must decide is whether the property of Mrs. Meadows was insured under the policy. Westchester asserts that because Mrs. Meadows was not named as an insured in the policy this question must be answered in the negative. We disagree.

It is undisputed that Logan is Westches-ter’s agent. He issued the policy for West-chester and accepted the premiums for Westchester. He testified without objection that he knew the policy was issued to insure the house listed in it and the contents located in that house; that he knew the insured properties (house and contents) were owned by Hickey and the woman he now knows as Mrs. Meadows; that she told him, “I have a lot of nice furniture that I’m going to move into that house”; that, “I assumed that half of the stuff that went in the house was [Hickey’s], since [I assumed] they were married”; and that the reason he listed only Hickey as the named insured in the policy was because he thought Hickey was “the head of the household.” Logan’s knowledge that Mrs. Meadows owned an interest in the house and a part of the contents that were to be insured and his intention to insure her share of the property are imputed to Westchester, his principal. Fireman’s Fund Indem. Co. v. Boyle General Tire Co., 392 S.W.2d 352, 356 (Tex.Sup.1965). The issuance of the policy and the collection of premiums with this knowledge and for this purpose constituted a waiver of any requirement that Mrs. Meadows be named as an insured in the policy. Republic Insurance Company v. Silverton Elevators, Inc., 493 S.W.2d 748, 750 (Tex.Sup.1973). In the Silverton Elevators case the Court held, under facts quite similar to ours, that it was proper to award a recovery to the named insured against the carrier “for the benefit of” the actual owner of the insured property.

Westchester contends that the evidence conclusively establishes that Hickey’s representations to Logan that he and Mrs. Meadows owned the house and contents as husband and wife and that they would occupy and use the house as such (which the jury found were falsely made by Hickey with intent to deceive) were material to the risk and were relied upon by Westchester; or, alternatively, that the jury’s answers to Issues 10 and 14, in which it failed to find the representations were material to the risk, are against the great weight and preponderance of the evidence.

A misrepresentation in an application for a policy is not material to the risk of insurance unless it actually induces the insurance company to assume the risk. Harrington v. Aetna Casualty and Surety Company, 489 S.W.2d 171, 177-178, (Tex.Civ.App.—Waco 1973, writ ref. n. r. e.). It is the carrier’s burden to establish this fact as a defense. V.A.T.S. Ins. Code, Art. 21.-16; Manhattan Life Ins. Company v. Harkrider, 402 S.W.2d 511, 512 (Tex.Sup.1966).

There is testimony that Mrs. Hickey is separated from her husband; that Hickey is a divorcee; that they plan to marry when Mrs. Meadows secures a divorce; that Hickey works at two jobs; that they intended to and did occupy and use the house, along with Mrs. Meadow’s three-year-old daughter, in typical family fashion; and that Hickey misrepresented their marital status to Mrs. English and Logan “so the papers wouldn’t have to be changed over, later,” and because he thought it was the proper thing to do under the circumstances. Ken Tomlinson, an underwriter employed by Westchester, testified to several reasons why Westchester would not have issued the policy to Hickey if it had known the true relationship between Hickey and Mrs. Meadows. Logan testified he “couldn’t say exactly” what Westchester would have done. Westchester has not offered to return any premiums.

Tomlinson was an interested witness, and the jury was not obliged to believe him. The evidence does not show as a matter of law that the misrepresentations were material to the risk or that Westchester was induced by them to issue the policy by the misrepresentations. A review of the entire record convinces us that the jury’s answers on the materiality of the misrepresentations are not against the great weight and preponderance of the evidence.

Westchester asserts that the evidence conclusively shows that in making his claim for personal property loss Hickey misrepresented or concealed the fact that a part of the property for which he sought recovery was owned by others, that he did so willfully with intent to deceive, that it was material, and that it misled Westchester. Alternatively, it is asserted that the answer to Issue 16, in which the jury failed to find the misrepresentation or concealment of property ownership in his claim, is against the great weight and preponderance of the evidence.

Although Hickey made timely, sworn proof of loss of the house, the only instrument filed by him with Westchester which purports to be a proof of loss on the contents of the house was made on a form denominated “Schedule Of Personal Property Lost, Damaged Or Destroyed.” It was signed by Hickey, but he did not swear to it. It has columns for showing, “Item,” “Where Purchased,” “Date Purchased,” “Cost To Replace Today,” “Cost To Repair,” “Depreciation And/Or Betterment,” and “Amount Claimed.” In it, Hickey listed the items of personal property allegedly destroyed in the fire and their values. Included are not only properties owned by Hickey and Mrs. Meadows, but also a piano owned by Mrs. English. On its face, the schedule does not purport to show the ownership of the items listed. It could be construed to be simply a listing of property lost in the fire. At one point in his testimony, Hickey said that this was the way he intended it. Accordingly, the findings sought by West-Chester are not conclusively established by the proof. We hold also that the jury’s failure to find the asserted misrepresentation or concealment of ownership by Hickey in his claim is not against the great weight and preponderance of the evidence when viewed in the light of the whole record.

Westchester contends that the evidence establishes as a matter of law that Hickey’s misrepresentation of the value of the personal property in his claim (found by the jury in answer to Issue 20) was willfully made with intent to deceive, was material, and that it misled Westchester. Alternatively, it contends the jury’s failure to find the misrepresentation was willfully made with intent to deceive (in answer to Issue 21) is against the great weight and preponderance of the evidence.

Many of the values placed on the property by Hickey and claimed by him in the schedule to be his actual loss exceed the actual cash value of the property. Hickey admitted this fact on the trial and the jury properly found it to be true. Other testimony by Hickey supports his contention that he did not intend by the overvaluations to deceive Westchester, and, for this reason, we overrule Westchester’s argument that the evidence conclusively shows that his purpose was deceitful. Nevertheless, we believe all of the evidence preponderates in favor of a finding that Hickey submitted the misrepresented values (totaling over $87,000.00) to Westchester willfully and with intent to deceive, and that if West-chester had tendered payment on that basis Hickey would have accepted it without revealing the true facts on the actual amount of his loss. In short, we find and hold that the jury’s answer to Issue 21 in which it failed to find that Hickey’s misrepresentation of the value of the contents of the house was willfully made with intent to deceive is against the great weight and preponderance of the evidence. We do not reach the questions relating to the materiality of this deceit and whether Westchester was actually misled by it.

The policy provides that the insured shall file a sworn proof of loss within 91 days from the date of loss. This was not done by Hickey. However, there is evidence from which the jury could have believed that within the 91 days Westchester refused to accept Hickey’s offer to file a sworn proof of loss and led him to reasonably believe it would be of no effect to do so, and that Westchester was using the proof of loss requirement as a tool for arbitration. These facts support the jury’s finding of waiver of proof of loss by West-chester in the answer to Issue 6. Scottish Union & Nat. Ins. Co. v. Clancey, 83 Tex. 113, 18 S.W. 439, 441 (1892); International Service Insurance Co. v. Brodie, 337 S.W.2d 414, 416 (Tex.Civ.App.-Fort Worth, writ ref’d n. r. e.). In the light of the entire record, Westchester’s complaint that the jury’s finding of waiver is against the great weight and preponderance of the evidence is without merit and is overruled.

Westchester’s remaining points and contentions are also without merit. They are overruled.

Logan asserts he owed no duty to name Mrs. English as a mortgagee in the policy and therefore could not have negligently failed to do so. Mrs. English counters with contentions that she is entitled to recover against both Logan and Westchester, and that the court erred when it overruled her motion for judgment against Westchester. We agree with her.

There is evidence of these facts: Logan is president of Citizens State Bank in Frost, Texas. He is a notary public. He is an agent for several insurance companies, including Westchester. Mrs. English is a retired widow. Logan is her banker, good friend, adviser, and insurance agent. For many years, he has written the insurance on her house, car, “everything,” for her. At the time Hickey and Mrs. Meadows purchased the house from Mrs. English, she owned a policy on it issued by Logan. When the three went to Logan for the notary work in question, they handed him the three instruments they had with them which are designated across the top in bold letters, “WARRANTY DEED WITH VENDOR’S LIEN,” “DEED OF TRUST,” and “REAL ESTATE LIEN NOTE.” All three show Mrs. English’s interest as a mortgagee in the property in question. After the warranty deed and deed of trust were executed, Logan handed Mrs. English the deed of trust and real estate lien note, telling her, “you get these”; and he handed Hickey the warranty deed, saying “you get this.” In Mrs. English’s presence, Hickey told Logan that he wanted insurance “to protect her part in the property ... to take care of her if anything happened.” Because of this instruction, and because she “trusted [Logan] implicitly to take care of [her] insurance on the house,” Mrs. English did not also instruct Logan to include her in the policy as mortgagee.

The trial court and the jury were privileged to believe this proof. It supports the implied finding that when Logan wrote the policy he knew Mrs. English’s status as mortgagee. It imposed a duty on Logan as Hickey’s agent to comply with Hickey’s instructions to include Mrs. English as a mortgagee-beneficiary in the policy. His negligent failure to do so proximately caused Mrs. English’s loss of the policy benefits on the house as a named mortgagee-beneficiary in the policy as a matter of law and rendered him and Westchester liable to her for the loss. Diamond v. Duncan, 107 Tex. 256, 172 S.W. 1100 (1915); Boston Ins. Co. v. Rainwater, 197 S.W.2d 118, 125 (Tex.Civ.App.-Amarillo 1946, no writ hist.); Sovereign Camp, W.O.W. v. Nash, 36 S.W.2d 284, 285 (Tex.Civ.App.-San Antonio 1931, no writ hist.).

Additionally, under the terms of the deed of trust Hickey and Mrs. Meadows were charged with the duty of procuring insurance on the house for Mrs. English’s protection. Under the principles of equity, the mortgagor’s breach of his agreement to insure the mortgaged property for the benefit of the mortgagee charges the benefits of any insurance taken out by the mortgagor for his benefit with a lien in favor of the mortgagee; and the mortgagee may proceed directly against the insurer (as Mrs. English has done) to recover his pro rata share of any funds payable under the policy at the time the insurer learned of his interest. Farmers Insurance Exchange v. Nelson, 479 S.W.2d 717, 721 (Tex.Civ.App.—Waco 1972, writ ref’d n. r. e.); Fidelity & Guar. Ins. Corp. v. Super-Cold Southwest Co., 225 S.W.2d 924, 927 (Tex.Civ.App.-Amarillo 1949, writ ref’d n. r. e.). Cf. V.A.T.S. Ins. Code, Art. 6.15, Standard Fire Insurance Company v. United States, 407 F.2d 1295, 1299, (5th Cir. 1969).

Logan’s points and contentions are overruled. Mrs. English’s cross-points in which she asserted a right of- recovery directly against Westchester are sustained.

The jury’s negative answer to Issue 21, which we have found was against the great weight and preponderance of the evidence, deprived Westchester of its right to answers to other vital defensive issues which were conditionally submitted, and properly so, on an affirmative answer to Issue 21. This requires a reversal of the judgment against Westchester on this part of the case. Strauss v. LaMark, 366 S.W.2d 555, 558 (Tex.Sup.1963).

The cause of action against West-chester on the contents coverage is “clearly separable without unfairness to the parties,” within the meaning of Rule 434, Vernon’s Tex.Rules Civ.Proc., from the claims on the house coverage, and it should be severed from them. We order this severance. The awards to Hickey (for both his benefit and the benefit of Mrs. Meadows) for loss of household contents are reversed, and this severed cause is remanded for another trial.

The decree reforming the property description in the policy is affirmed.

The awards to Hickey (both individually and for Mrs. Meadows’ benefit) totaling $7,350.00 for policy proceeds for loss of the house are reversed, and judgment is rendered that Hickey and Mrs. Meadows take nothing against Westchester on this part of the policy coverage.

The take-nothing judgment against Mrs. English in favor of Westchester is reversed, and judgment is rendered that Mrs. English recover $7,350.00 (representing the policy proceeds on the house plus prejudgment interest) from Westchester with post-judgment interest on this sum from September 12, 1975 until paid.

The judgment in favor of Mrs. English against Logan for $7,000.00 is affirmed. It is ordered that this recovery shall be credited with any sums paid to Mrs. English by Westchester as policy proceeds.

The judgment awarding Mrs. English recovery against Hickey and Mrs. Meadows on the promissory note, with interest and attorneys’ fees, and foreclosure of lien on the property is affirmed. It is ordered that the recovery on the note shall be credited with any sums paid to Mrs. English by Westchester as policy proceeds and with any sums paid to her by Logan on the principal of her judgment against him.

Costs of this appeal are taxed one-half against Hickey and Mrs. Meadows, one-fourth against Westchester, and one-fourth against Logan. The order assessing costs of the trial against Logan and Westchester is affirmed.