author: TATUM, Judge.

text:
    Webb ANGLIN, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Jan. 18, 1977.
    Certiorari Denied by Supreme Court June 6, 1977.

      Seth W. Norman and Robert H. Schwartz, Nashville, for appellant.

      Brooks McLemore, Atty. Gen., Robert E. Kendrick, Asst. Atty. Gen., Nashville, Robert L. Jones, Asst. Dist. Atty. Gen., Columbia, Jim T. Hamilton, Asst. Dist. Atty. Gen., Mount Pleasant, for appellee.
   TATUM, Judge.

OPINION

The appellant, Webb Anglin, was convicted by a Maury County jury of aiding and abetting an assault with intent to commit armed robbery. His punishment was fixed at not less than 10 years nor more than 21 years in the State Penitentiary. We affirm the conviction.

Assignments I, II, V and VIII all attack the sufficiency of the evidence, saying (1) the evidence preponderates against the verdict; (2) the verdict is contrary to the law and the evidence; (3) that appellant was entitled to a directed verdict of acquittal; and (4) that the conviction cannot be sustained “merely by proof of the presence of defendant at or near the scene of the alleged offense”. In considering these assignments, we will summarize the facts as shown by the accredited evidence:

Larry Jackson, an admitted accomplice, drug addict and felon, was the principal witness for the State. He testified that after becoming acquainted with the appellant, he met with the appellant, appellant’s wife, Johnny Baker and Kim Brown at the appellant’s office. (Appellant was a vacuum cleaner distributor and salesman). At this meeting, the appellant proposed an armed robbery of Cy Young. The appellant pointed out that since Young was a bootlegger, Young might have a large sum of money and might not report the robbery.

At approximately 3:30 or 4:00 o’clock P.M. on December 15, 1975, Larry Johnson, Johnny Baker and the appellant met at the appellant’s residence in Columbia, Tennessee. The appellant furnished Johnson and Baker with ski masks and rubber gloves. He also furnished Johnson with a .38 caliber Police Special pistol. Baker had a .380 automatic pistol that he had previously purchased from the appellant.

The appellant then drove Baker and Johnson to Cy Young’s combination residence and car lot, which was located approximately two miles from Columbia on the Iron Bridge Road. Baker and Johnson left the appellant’s gray (or silver) 1975 Cadillac automobile near one end of the victim’s driveway. They were wearing their ski masks and gloves and were armed with their pistols. The arrangement was that the appellant would drive around in the immediate vicinity of Cy Young’s and pick them up in his automobile after the robbery was accomplished.

After walking to Cy Young’s residence from the road, Baker and Johnson found Young’s front door to be locked, although the appellant had assured them that it would be unlocked. They then knocked on the door and had some conversation with Cy Young about buying an automobile. When Cy Young came to the door, he looked through a peep-hole instead of opening the door, and saw at least one of the would-be robbers outside of his door. He closed the peep-hole and then immediately telephoned the police. Johnson shot at Cy Young’s doorknob at least two times and fired other shots while leaving. Baker shot at the wall and side window as he was leaving.

As Baker and Johnson approached the Iron Bridge Road, they saw the appellant’s car on the road, but they also saw “blue lights” coming in the opposite direction. They left the road and hid under a fence with honeysuckle vines for about three hours, in the rain, until it was dark. Johnson and Baker then walked to Stone’s BarB-Q where they telephoned the appellant’s residence and later, Kim Brown came after them in a Pinto automobile owned by the appellant’s wife.

Deputy Sheriff Bob Baucom testified that according to his records, he received the telephone call from Young at 4:31 P.M. and arrived at the scene at 4:36 P.M. As he approached, he observed a gray Cadillac occupied by the appellant sitting in the road near the iron bridge, about 100 yards from Cy Young’s driveway. There were no other vehicles in the vicinity. When the patrol car approached, the Cadillac drove off. The officer turned around and, with his blue lights flashing, followed the gray Cadillac, but the Cadillac did not stop until it reached the Columbia City Limits. The appellant was the only occupant of the Cadillac. He told the officer that he was in the area to meet “a man” to demonstrate a vacuum cleaner. There was no other residence in the vicinity of Cy Young’s place. The officer did not arrest the appellant at that time. He was arrested only after the witness, Larry Johnson, implicated him in the attempted robbery.

The appellant testified that he was in the area of the attempted robbery on his return from the home of Mrs. Iris Brown, where he had been demonstrating vacuum cleaner equipment. He said that he had met a sales trainee in the area who accompanied him to Mrs. Brown’s residence and that after the demonstration, he returned the sales trainee to the sales trainee’s vehicle. He said that he took a different route from the Brown residence, hoping to find a better way back to Columbia and thereby, came upon the Iron Bridge Road.

Mrs. Iris Brown testified as a witness for the appellant, but she testified that the appellant had been to her house “the first part of December”. She said that Mickey Wright was with the appellant that day and that the two of them were traveling together. She also testified that it made no sense at all for one to travel between her house and Columbia by way of the Iron Bridge Road. Mrs. Brown further testified that two or three weeks prior to trial, the appellant requested that she testify that he had been alone on the day of the demonstration, but that she had refused to comply with this request.

Mickey Wright testified that he had accompanied the appellant on the occasion when the vacuum cleaner was demonstrated to Mrs. Brown, in early to mid-December of 1975. He also testified that he traveled with the appellant in the Cadillac from the appellant’s office in Columbia to Mrs. Brown’s house and returned to Columbia with him. He said that they did not go to or from the Brown residence by way of the Iron Bridge Road or Cy Young’s place.

The appellant says that his mere presence at the scene of the robbery is insufficient to make him a principal under the provisions of T.C.A. § 39-109, citing Essary v. State, 210 Tenn. 220, 357 S.W.2d 342 (1962). We agree that in order to be deemed a principal offender under T.C.A. § 39-109, one must not only be present at the scene of a crime, but must be either aiding and abetting in the criminal offense or ready and consenting to aid and abet in the commission of the offense. We find ample evidence in the record to support the jury’s verdict that the appellant was not only present, but that he aided and abetted and was ready and consenting to further aid and abet in the commission of this offense.

The appellant also insists that he was convicted upon the uncorroborated testimony of an accomplice. Larry Johnson was definitely an accomplice. The rule requiring corroboration of the testimony of an accomplice to sustain a conviction is set out in Hawkins v. State, 4 Tenn.Cr.App. 121, 469 S.W.2d 515, 520 (1971);

“. . . The rule, simply stated, is that there must be some fact testified to, entirely independent of the accomplice’s testimony, which, taken by itself, leads to the inference, not only that a crime has been committed, but also that the defendant is implicated in it; and this independent corroborative testimony must also include some fact establishing the defendant’s identity. State v. Fowler, 213 Tenn. 239, 373 S.W.2d 460; Boulton v. State, 214 Tenn. 94, 377 S.W.2d 936. This corroborative evidence may be direct or entirely circumstantial, and it need not be adequate, in and of itself, to support a conviction; it is sufficient to meet the requirements of the rule if it fairly and legitimately tends to connect the defendant with the commission of the crime charged. Sherrill v. State, 204 Tenn. 427, 321 S.W.2d 811. It is not necessary that the corroboration extend to every part of the accomplice’s evidence. The corroboration need not be conclusive, but it is sufficient if this evidence, of itself, tends to connect the defendant with the commission of the offense, although the evidence be slight and entitled, when standing alone, to but little consideration. Stanley v. State, 189 Tenn. 110, 222 S.W.2d 384; Binkley v. State, Tenn.Cr.App., 434 S.W.2d 336.
‘The entire conduct of the accused may be looked to for the corroborating circumstances; and if, from those circumstances, the crime may fairly be inferred, the corroboration is sufficient. See 23 C.J.S. Criminal Law § 812(4).’ Binkley v. State, supra.
The quantum of evidence sufficient to corroborate the testimony of an accomplice is for the determination of the jury. Prom the facts proved in evidence the jury is entitled to draw reasonable inferences, and this Court may not substitute its judgment or inferences for those of the jury. Stanley v. State, supra; Binkley v. State, supra.”

See also, Monts v. State, 214 Tenn. 171, 379 S.W.2d 34 (1964); Henley v. State, 489 S.W.2d 53 (Tenn.Cr.App.1972).

The testimony of Cy Young, describing the attempted robbery, is sufficient in and of itself to corroborate the accomplice’s testimony that the crime was committed. The testimony of Officer Baucom was sufficient corroboration of Johnson’s testimony (that the appellant was waiting for Johnson and Baker). The jury was not bound to accept the appellant’s explanation as to why he was in this vicinity. As above stated, the quantum of the corroborating evidence is a question for the jury and we have no difficulty in understanding why the jury resolved this question adversely to the appellant, in view of the testimony of Mrs. Brown and Mickey Wright.

The guilty verdict, approved by the Trial Judge, removes appellant’s presumption of innocence and clothes him in a presumption of guilt. The burden is upon the appellant to show on appeal that the evidence preponderates against the verdict and in favor of his innocence and we will not disturb the jury verdict without such showing. Sikes v. State, 524 S.W.2d 483 (Tenn.1975); McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963). We do not find that the evidence preponderates against the jury verdict. Assignments I, II, V and VIII are overruled.

In Assignment III, the appellant says that the sentence imposed by the jury is excessive and indicates passion, prejudice and caprice on the part of the jury. The punishment imposed is within the legal limits prescribed for the offense for which the appellant was convicted. Therefore, the sentence imposed by the jury is not excessive and it does not indicate passion, prejudice and caprice on the part of the jury. T.C.A. § 39-607; Henderson v. State, 539 S.W.2d 843 (Tenn.Cr.App.1976); French v. State, 489 S.W.2d 57 (Tenn.Cr.App.1972). Assignment III is overruled.

The defendant next says that his constitutional rights to a trial by an impartial jury were violated because the jury deliberated only for five minutes or less before finding him guilty. The record reflects that the jury retired at 2:55 P.M. and returned into court at 3:05 P.M., with the verdict. While we do not think it determinative, the jury deliberated, according to the record, for ten minutes. We have found no case reported from any court of any of the fifty states or from the United States reversing a criminal case because of the brevity of the jury deliberation. The appellant’s counsel has cited no authority in support of this assignment. Neither the brevity of the time of the jury’s deliberation nor the length of the sentence imposed, if within the limits fixed by statute, indicates either passion, prejudice or caprice on the part of the jury or misconduct on the part of the jury. Wheeler v. State, 220 Tenn. 155, 415 S.W.2d 121 (1967). The length of time that a jury deliberates has no bearing on the strength or correctness of their conclusions or the validity of their verdict. Williams v. Bridgeford, 53 Tenn.App. 381, 383 S.W.2d 770 (1964); Campbell v. Campbell, 29 Tenn.App. 651, 199 S.W.2d 931 (1946); Jennings v. Brown, 3 Tenn. C.C.A. (Higgins) 113, 125 (1912). The State has cited several criminal cases from various jurisdictions where the courts have declined to reverse felony convictions when the jury deliberated ten minutes or less. Some of these cases are: People v. Mundt, 31 Cal.App.2d 685, 88 P.2d 767 (1939) (robbery, six minutes deliberation); Beach v. Commonwealth, 246 S.W.2d 587 (Ky.1952) (murder, eight minutes); State v. Turner, 165 La. 657, 115 So. 814 (1928) (murder, five minutes); Johnson v. State, 252 So.2d 221 (Miss.1971) (receiving and concealing stolen property, seven minutes); State v. Cline, 452 S.W.2d 190 (Mo.1970) (burglary and larceny, ten minutes). There are many more.

The evidence in this case was simple, clear and convincing of the appellant’s guilt. We have no doubt that this enabled the jury to reach a speedy verdict. We will not presume or speculate that the jury was corrupt, unfair or partial. Assignment IV is overruled.

The appellant next says that the Court erred in admitting a .38 caliber pistol into evidence because there is no proof connecting the pistol with the appellant. Larry Johnson testified that the appellant furnished him with a dark blue or black .38 caliber Police Special pistol that was an air-weight model with recessed hammer and wooden handle grips, and that it was loaded with five cartridges. Johnson testified that the pistol belonged to Brown Mat-lock. The appellant had told the witness that he (the appellant) had borrowed it from Matlock. Johnson also stated that he recognized the gun because he had seen Brown Matlock with it several times. Johnson further testified that immediately after the attempted robbery, he left the pistol at the appellant’s office. A member of the Sheriff’s Department testified that he obtained the .38 caliber Smith & Wesson pistol which was introduced into evidence from Brown Matlock subsequent to the attempted robbery. Johnson testified that the .38 caliber pistol taken from Brown Matlock was “the same or one similar” to the pistol furnished to Johnson by the appellant for use in the proposed robbery.

When the evidence is linked together, we think that it tends to establish that the pistol introduced in evidence was the same pistol used by Johnson in the attempted robbery that Johnson said was furnished to him by the appellant. We think that the pistol was admissible. However, we might add that the admission of the pistol into evidence did not affect the result. If Brown Matlock had two identical pistols, the introduction in evidence of one when the other was actually used in the attempted robbery would not in any manner prejudice the appellant or affect the verdict of the jury. The material fact was that Mat-lock did own a pistol fitting the description of the one used by Johnson in the attempted robbery.

Assignment of Error VI is overruled.

The appellant next says that the Court erred in allowing the .38 caliber pistol into evidence “on the ground that after request for inspection of evidence by the defendant, the State neglected or failed to produce same as required by law”. The appellant insists that he was entitled to inspect the pistol under T.C.A. § 40-2044. This Code Section provides, in part:

“Upon motion of a defendant, or his attorney, at any time after the finding of an indictment or presentment, the court shall order the attorney for the state, or any law enforcement officer, to permit the attorney for the defendant to inspect and copy or photograph . . . tangible objects, obtained from or belonging to the defendant or obtained from others which are in possession of, or under the control of the attorney for the state or any law enforcement officer. . . .” (Emphasis supplied).

The record in this case does not reflect any oral or written motion to inspect as T.C.A. § 40-2044 contemplates. There is no order of the Court in the record responding to any motion under this Code Section. According to the record, the only time this matter was mentioned in the Trial Court was when the pistol was offered in evidence. The appellant’s counsel objected to the receipt of the pistol into evidence, and stated to the Court that he had mentioned the matter of the inspection of physical evidence to the District Attorney General “earlier, right at the beginning of this trial”. It is essential that a party, by motion, obtain an order of the Court to entitle himself to the benefits of T.C.A. § 40-2044. The Trial Judge was never called upon to rule as to whether the appellant was entitled to inspection of this pistol under T.C.A. § 40-2044. He was only called upon to rule whether the pistol was admissible as evidence. Since the appellant failed to bring the matter to the attention of the Trial Judge for an adjudication as to whether he was entitled to inspect the pistol, we must overrule this assignment. Fox v. State, 1 Tenn.Cr.App. 308, 441 S.W.2d 491, 496 (1968). We again observe that an earlier view of the pistol would not have benefited the appellant. No effort was made in the appellant’s Brief to even hypothesize how an earlier view of this pistol would have affected the results or benefited the appellant. Assignment VII is overruled.

In Assignments IX and X, the appellant complains of the final argument of the Assistant District Attorney General. In his argument, the Assistant District Attorney General referred to the appellant as “master-mind” and referred to his automobile as “silver eagle”. He also referred to the Cadillac as “returning to the nest”. Appellant further complains of the Assistant District Attorney General referring to persons not charged in the case on trial as defendants or potential defendants, particularly Kim Brown, Brown Matlock, Johnny Baker, Larry Johnson, and others. We cannot consider these assignments. It is well-established that objectionable or improper argument and remarks of counsel afford no ground for a new trial, where no objection is made or exception taken at the time of the argument. Staggs v. State, 210 Tenn. 175, 357 S.W.2d 52 (1962); Rye v. State, 532 S.W.2d 941 (Tenn.Cr.App.1975). The appellant did not object to the State’s argument and even if prejudicial error had been committed, it was waived by the silence of the appellant.

Moreover, to justify a reversal on the ground of improper argument of counsel, it must affirmatively appear that the improper conduct affected the verdict to the prejudice of the defendant. Hunter v. State, 222 Tenn. 672, 440 S.W.2d 1 (1969); Armstrong v. State, 3 Tenn.Cr.App. 505, 464 S.W.2d 312 (1970). The argument complained of did not affect the verdict. Assignments IX and X are overruled.

Let the judgment of the Criminal Court of Maury County be affirmed.

WALKER, P. J., and DWYER, J., concur.


source: Caselaw Access Project

author: REAVLEY, Justice.

license: Public Domain

text:
    Gaines Franklin PARKER, Petitioner, v. James Albert BLACKMON et al., Respondents.
    No. B-6556.
    Supreme Court of Texas.
    June 22, 1977.
    Pearson & Caballero, Ray Pearson, El Paso, for petitioner.
    Allan L. Poage, El Paso, for respondents.
   REAVLEY, Justice.

Gaines Parker has established his unrestricted interest to property devised by the will of Cathalene Parker, and the judgment of the trial court in his favor has been affirmed by the Court of Civil Appeals. The majority opinion of the Court of Civil Appeals, however, construes the trial court judgment so as to deprive Gaines Parker of part of that interest. 544 S.W.2d 810. We affirm the judgment and construe it as did the dissenting Justice of the Court of Civil Appeals.

Cathalene Parker, who died in 1958, gave all of her property by her will to her husband, Gaines Parker, with this proviso:

[I]f my husband, GAINES FRANKLIN PARKER, should sell the house we lived in at the time of my death, then I give and bequeath what would have been my share of the proceeds of such a sale, had I lived, to my sons, JAMES ALBERT BLACKMON and JACK ARTHUR BLACKMON.

In 1958 and soon after their mother’s death James and Jack Blackmon executed and delivered a deed to their stepfather, Gaines Parker, conveying to him:

[A]ll of our right, title and interest in the estate of CATHALENE CRAVEY PARKER, of any property of whatsoever kind or wheresoever situate that would be bequeathed or devised to us by her will as a result of her death on the 30th day of March, 1958, TO HAVE AND TO HOLD together with all and singular, the rights and appurtenances thereto in anywise belonging, unto the said GAINES FRANKLIN PARKER, his heirs or assigns forever .

The present declaratory judgment suit was brought by Gaines Parker to construe this deed from his stepsons because of a controversy which arose in recent years. The stepsons’ only contention, so far as this record reveals, is that they could not effectively convey their interest in the proceeds from the sale of the home until after the sale is made. This contention was groundless, because the effective conveyance of the interest in an estate — contingent or vested, or even an expectant interest — is clearly permissible. Hale v. Hollon, 90 Tex. 427, 39 S.W. 287 (1897); McConnell v. Corgey, 153 Tex. 49, 262 S.W.2d 944 (1953); Gottwald v. Warlick, 125 S.W.2d 1060 (Tex.Civ.App.1939, no writ).

At the non-jury trial only the will and the deed were proved, without objection, by Gaines Parker. There were no other witnesses. The trial court rendered judgment reciting that the allegations of Parker’s pleading were supported by the evidence and that he was entitled to judgment and declaring that the 1958 deed from the Blackmons conveyed their interest in the home to Parker and thereby vested fee simple absolute in him and divested the Blackmons of any interest in said property. The Blackmons filed a motion to amend the proposed judgment to have it provide expressly that no prejudice would be thereby imposed against their making claim to a share in the proceeds in the event of a subsequent sale of the home. The trial court denied that motion by written order. The trial court made findings of fact which included a finding that the Blackmons “conveyed all of their interests in their mother’s estate” to Parker by the 1958 deed. Then the court concluded that “the Plaintiff herein has absolute title to the real estate in question, free and clear of any claims of the Defendants.” Only the Blackmons appealed.

The majority opinion of the Court of Civil Appeals construed the judgment awarding title to the home to Parker as excluding an award to him of the proceeds of any sale of the same. That opinion then construed the judgment to be in favor of the Blackmons as to potential sale proceeds. We disagree. While it is not incorrect to say that Parker owned fee simple title to the land under the will itself, the claim to proceeds from sale of the land was the issue here. To the parties and the trial judge this claim to the proceeds affected the rights to the disposition of the land. We cannot construe the judgment so as to nullify the 1958 deed— contrary to the facts and the law and the intent of the trial judge.

We construe the judgment to declare that Gaines Franklin Parker acquired by the 1958 deed all interest of James Albert Blackmon and Jack Arthur Blackmon in the estate of their mother. That included the right to share in the proceeds from the sale of the home. So construed, the judgments of the courts below are affirmed.


author: PER CURIAM.

text:
    Marvin THOMAS, guardian of the Estate of Dan D. Davis, Sr., incompetent, Petitioner, v. John Henry DAVIS et al., Respondent.
    No. B-6733.
    Supreme Court of Texas.
    June 29, 1977.

      Luna & Murto, Earl Luna and Thomas V. Murto, III, Dallas, for petitioner.
    Kelsoe & Ayres, R. Jack Ayres, Jr., Dallas, for respondent.
   PER CURIAM.

This case involves the filing of a motion for new trial after a default judgment was rendered by the Dallas County Probate Court Number Two cancelling deeds from Dan Davis, Sr., an incompetent, to his sons, John Henry Davis and Paul Davis. The court of civil appeals reversed the judgment of the probate court and remanded the cause. 548 S.W.2d 755. The holding of the court of civil appeals conflicts with Texas Rules of Civil Procedure 329b, and we grant the application for writ of error pursuant to Rule 483.

On October 13, 1975, Edith Faye Davis Gilliland, the daughter of Dan Davis, Sr., filed an application for guardianship for Dan Davis, Sr., alleging that he was mentally and physically incapable of taking care of himself or his estate. A hearing was held and on November 21, 1975, Marvin Thomas was appointed guardian of the estate of Dan Davis, Sr. On November 25, 1975, Thomas filed suit in Dallas County Probate Court Number Two, seeking to cancel deeds from Dan Davis, Sr., to John Henry Davis and Paul Davis. John Henry and Paul were served with citation on December 10, 1975. No answer was filed by John Henry or Paul and the probate court rendered default judgment on January 8, 1976. John Henry and Paul filed a motion for new trial on January 27, 1976, and an amended motion for new trial on January 29, 1976. The probate court held a hearing on the motion for new trial and signed the order overruling the motion for new trial on February 6, 1976.

The court of civil appeals held that the record revealed that the failure of John Henry and Paul to answer before judgment “was not intentional, nor was it the result of conscious indifference on their part, but was due to accident or mistake or an inadvertent circumstance.” The court of civil appeals stated that John Henry and Paul had established a meritorious defense and that the motion was filed at a time when it would cause no delay or injury to the estate of Dan Davis, Sr. In conclusion the court held that the probate court abused its discretion in failing to grant a new trial. On rehearing the court stated that it had jurisdiction to consider the case even though the Davises’ motion for new trial was not timely filed, citing McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706 (1961).

The court of civil appeals erred in holding that a defendant, properly served with citation, who files a motion for new trial after expiration of the 10-day time limit of Rule 329b(l) can appeal from an order of the trial court overruling this late-filed motion for new trial. Rule 329b provides in pertinent part:

“1. A motion for new trial when required shall be filed within ten (10) days after the judgment or other order complained of is rendered.
“5. Judgments shall become final after the expiration of thirty (30) days after the date of rendition of judgment or order overruling an original or amended motion for new trial. After the expiration of thirty (30) days from the date the judgment is rendered or motion for new trial overruled, the judgment cannot be set aside except by bill of review for sufficient cause, filed within the time allowed by law. The failure of a party to file a motion for new trial within the ten (10) day period prescribed in subdivision 1 of this rule shall not deprive the court of jurisdiction to set aside a judgment rendered by it, provided such action be taken within thirty (30) days after the judgment is rendered. The filing of a motion for new trial after ten (10) days have expired and before thirty (30) days have expired since the rendition of the judgment shall not operate to extend the court’s jurisdiction over the judgment for a period of more than thirty (30) days from the date of the rendition of judgment.”

Under subdivision five of Rule 329b, the trial court retains jurisdiction of a cause for a 30-day period and may, at its discretion, grant a new trial within that time. We hold, however, that under subdivision one of Rule 329b, a trial court’s order overruling a motion for new trial filed after the 10-day period cannot be the basis of appellate review, regardless of the fact that the trial court’s order was issued within 30 days of judgment. The court of civil appeals had no jurisdiction to consider the late-filed motion for new trial.

We hold that the instruments filed by John Henry and Paul were late-filed motions for new trial which the court of civil appeals had no jurisdiction to consider. Pursuant to Rule 483 we grant the writ of error, and without hearing oral argument reverse the judgment of the court of civil appeals and affirm the judgment of the probate court.

      . All references to Rules will be to Texas Rules of Civil Procedure.


author: EVANS, Justice.

text:
    Zeta BELL et al., Appellants, v. MITCHELL ENERGY CORPORATION et al., Appellees.
    No. 16820.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    April 7, 1977.
    Rehearing Denied May 5, 1977.

      William J. Merrill, Kelley, Ryan & Merrill, Houston, of counsel, for appellants.
    Paul A. Smith, Smith & Fulton, Ben H. Rice, Vinson & Elkins, Houston, of counsel; James H. Whitcomb, Columbus, for appel-lees.
   EVANS, Justice.

This action to cancel an oil and gas lease was brought by the appellants, who are the heirs and successors in interest to the original lessors, against the appellees, the present owners of the leasehold working interest. The appellants contend that the one producing well on the leased premises ceased to produce in paying quantities and that the appellees failed to maintain the lease in effect by the commencement of drilling or reworking operations under the 90 day clause of the lease. These issues were submitted to the jury which failed to find either that there had been a cessation of production in paying quantities or a complete cessation of production for a period of more than 90 days. On the basis of the jury’s verdict, the trial court entered judgment in favor of the appellees, declaring the oil and gas lease to be in full force and effect. Its judgment will be affirmed.

The oil and gas lease in question, executed in 1939, covers 695 acres of land in Colorado County, Texas. It has been maintained in effect by production after the expiration of its ten year primary term. In 1962 Mr. A. H. Wadsworth, Jr., acting under a farmout assignment from the appel-lees and their predecessors, drilled the subject well, known as the “McDermott No. 1” or the “Wadsworth No. 1.” At the time Wadsworth drilled this well the lease was being maintained in effect by production from a gas well on the north half of the lease, but that well ceased to produce in 1969, and thereafter the lease was held solely by production from the Wadsworth well. The production from the Wadsworth well has been sold pursuant to contract with Tennessee Gas Pipeline Company. This contract was renewed by Wadsworth effective January 1, 1973, with a price increase from 16$ per MCF to 24$ per MCF, conditioned on Federal Power Commission approval. On March 27, 1973, Wadsworth requested FPC’s approval of the increased gas price, and this request was granted by the FPC on June 12,1973, effective retroactively to April 30, 1973. Tennessee Gas authorized payment to Wadsworth in June 1973, at the increased price rate effective to April 30, 1973, but according to Wads-worth’s testimony he did not learn that the price increase had been approved until after he had decided to abandon the well and reassign his interest to the appellees. On October 1, 1973, Wadsworth ceased operation of the well and his compressor was moved from the well site. On October 18, 1973, he agreed to furnish a recordable reassignment of his interest and authorized the appellees to assume operation of the well while the assignment was being circulated for execution among his associates. In July 1974, the assignment had not been returned by Wadsworth’s associates, and he executed a new assignment which had been prepared for his execution by appellees. No royalty payments were tendered to the appellants from the time Mr. Wadsworth relinquished operation of the well until after this suit was filed in October 1974. The Wadsworth well continued to produce gas until May 1975, when the producing zone became depleted, and in August 1975, the well was reworked and production of gas was obtained from another zone. Thereafter the well has produced gas in paying quantities without requirement of a compressor.

The jury was submitted three issues pertaining to the appellants’ contention that the Wadsworth well had ceased to produce in paying quantities.

SPECIAL ISSUE NO. 1
“Do you find from a preponderance of the evidence that the McDermott No. 1 (Wadsworth No. 1) Well ceased to produce in paying quantities during any period of time, as herein defined, between September 1, 1971, and May 9, 1975? “In your determination of whether production in paying quantities from the McDermott No. 1 (Wadsworth No. 1) Well ceased, you are instructed by the Court that there is no arbitrary period as to time, whether days, weeks or months, to be taken into consideration in determining the question of whether production in paying quantities from the lease has ceased.
“Answer: ‘Yes’ or ‘No.’
“Answer: No .
“If you have answered Special Issue No. 1 ‘yes’, and only in that event, then Answer Special Issue No. 2.
SPECIAL ISSUE NO. 2
“Do you find from a preponderance of the evidence that a reasonably prudent operator would have discontinued the operation of the well under the circumstances at the time considered by you in your answer to Special Issue No. 1, if you have answered such Special Issue ‘Yes’?
“Answer: ‘He would have discontinued operation’ or ‘He would not have discontinued operation’.
“Answer:_
“If you have answered Special Issue No. 1 ‘Yes’, and Special Issue No. 2 ‘He would have discontinued operation’, and only in that event, then answer Special Issue No. 3.
SPECIAL ISSUE NO. 3
“When do you find from a preponderance of the evidence that the said well ceased to produce in paying quantities, if you have so found.
“Answer When:-”

Since the first special issue was answered, “No”, and since the second and third special issues were conditionally submitted, the jury made no response to the second and third issues.

The appellants first contend that the evidence established, as a matter of law, that the Wadsworth well would not produce in paying quantities and that the trial court erred in overruling their motion for judgment. In related points appellants attack the legal sufficiency of the evidence to support the jury finding to Special Issue No. 1 and contend that such finding is against the great weight and preponderance of the evidence. Appellants also contend the trial court erred in refusing to instruct the jury that the term “paying quantities” should be determined in the light of what a reasonably prudent operator would do under all relevant circumstances.

The appellants rely principally upon the testimony of two expert witnesses.

Mr. Wadsworth, who had drilled and operated the well, testified that the well showed an accounting loss in the aggregate amount of $412.00 for the first nine months of 1973, based upon a gas price of 16$ per MCF. In May 1973, he had notified appel-lees that he intended to abandon the well, but after his May runs came in, he found he had made a profit, and he decided to hold the lease “a little bit longer.” Accordingly he kept the lease until September when he gave notice of his intent to abandon his interest. Wadsowrth was permitted to state his opinion that “at that time” the lease was no longer capable of producing in paying quantities. However, when asked whether he would have changed his opinion if, at that time, he had known of the price increase, he replied that he would have to go back and figure the matter again, that at that time his opinion was that he had “carried it long enough.”

Mr. Paul E. Cameron, Jr., a petroleum engineer, was permitted to give his opinion, based upon the appellants’ schedule of income and costs for the period of January 1973 through September 1973, that the well would not produce in paying quantities. This schedule was based upon the 16$ per MCF price factor and it did not take into consideration the retroactive application of the increased gas price to April 30, 1973.

The period of time covered by Special Issue No. 1 was September 1, 1971 through May 9, 1975. There was evidence before the jury that during each calendar year within said period of time, the aggregate amount of income from the well exceeded the expense of operation. There was evidence that the well made a profit of $5,437 for the four month period beginning September 1, 1971 and ending December 31, 1971; a profit of $6,825 for the calendar year 1972, although accounting losses were shown for the months of January, September and November of that year; a profit of $3,008 for the calendar year 1973 (based upon the increased gas price computed retroactively to April 30, 1973) although accounting losses were shown for the months of February, March, April and October of that year; a profit of $8,675 for the calendar year 1974; a profit of $1,679.00 for the first three months of 1975, and a loss of $161.00 for the month of April 1975. Thus, although there were various months within the period of time covered by the first special issue for which accounting losses were shown, a net annual profit was indicated for each calendar year for said period of time.

The burden of proof was upon the appellants to prove first that the well was not making a profit, and if that burden was met, to prove that a reasonably prudent operator would not have continued to operate the well under the circumstances. Skelly Oil Co. v. Archer, 163 Tex. 336, 356 S.W.2d 774 (1962). A mathematical loss occasioned during certain months of a lease does not automatically establish the fact that the lease is not being held by production in paying quantities. Clifton v. Koontz, 160 Tex. 82, 325 S.W.2d 684 (1959).

“If a well pays a profit, even small, over operating expenses, it produces in paying quantities, though it may never repay its costs, and the enterprise as a whole may prove unprofitable.” 325 S.W.2d 684, 691.

If the well is making a profit, it is producing in paying quantities. If the well is marginal, it may still be producing in paying quantities if a reasonably prudent operator, under all relevant circumstances, would continue the operation. Clifton v. Koontz, supra.

The jury could properly have concluded from the evidence that the well actually made a profit during the period of time inquired about in the first special issue. The increased gas price became effective April 30, 1973, and royalties were subsequently paid on the basis of the increased price. The jury was entitled to take such increased price into consideration, even though the operator may not have been aware of the price increase until after he elected to reassign his interest to the appel-lees.

The jury was not required to accept the opinion testimony of the expert witnesses in deciding the ultimate issue of whether the well ceased to produce in paying quantities. Based upon the evidence presented, the jury was justified in determining that the evidence failed to establish that the well had ceased to produce in paying quantities, and the jury’s finding in that respect is not against the great weight and preponderance of the evidence. Since the jury failed to find that the well had ceased to produce in paying quantities, the question was not reached as to whether a reasonably prudent operator, under all relevant circumstances, would have discontinued operations.

The appellants next complain that the trial court erred in striking certain testimony of the witness Cameron, stating his opinion that the well had ceased to produce in April, May, June, and July of 1975. Pri- or to striking this testimony, the trial court had ascertained that the witness lacked familiarity with the factors which, under the law, must be considered in the determination of whether there is production in paying quantities and that the witness’ opinion was based solely on the data contained in the exhibit before him. The test for receiving opinion testimony of experts is whether the jury can receive any appreciable aid from the testimony. McCormick & Ray, Texas Law of Evidence, Section 1400, p. 234. The exhibit forming the basis for the witness’ expert opinion was before the jury, and the jury could have readily ascertained for itself the same information which appellants sought to elicit from the witness. Furthermore, since the question posed to the witness covered the months of May, June, and July 1975, the witness’ response was not relevant to the same period of time inquired about in the first special issue. The appellants have not demonstrated that the trial court’s action in striking this testimony constitutes reversible error.

The appellants next contend that the evidence conclusively established that the well did not produce in paying quantities for the month of April and the first seven days of May 1975, and that there was a complete cessation of production thereafter until production was restored on August 12, 1975. It is the appellants’ position that the appel-lees failed to comply with the lease clause providing that the lease will not terminate due to cessation of production if within 90 days the lessee commences additional drilling or reworking operations.

The burden of proof was upon the appellants to establish that there had been a cessation of production for a period of 90 consecutive days without additional drilling or reworking operations by the lessee. The evidence does not conclusively establish this issue in favor of the appellants, nor was the issue judicially admitted by the appellees as contended by the appellants.

The record shows that expenses exceeded income from production for the month of April 1975, but this does not compel a finding that at that time there was a cessation of production which required the lessee to commence drilling or reworking operations under the 90 day clause.

“. . .to apply the . . . clause as contended by petitioners would mean that respondents would have been required to immediately commence drilling operations upon sustaining a slight loss for one month, without regard to whether they believe the next month’s production might be profitable for the reason that if they were in error and suffered another slight loss, the lease would terminate . . . ” Clifton v. Koontz, supra, 325 S.W.2d at 690.

Since the jury failed to find that the well had ceased to produce in paying quantities during the period ending May 9, 1975, the trial court was not called upon to determine the applicability of the 90 day clause to any period of time beginning prior to that date. Clifton v. Koontz, supra.

The evidence is undisputed that the well continued to produce some gas until May 13,1975 when its producing zone of gas was depleted, and that operations for reworking the well were commenced on August 6, 1975, which resulted in the production of gas from another zone.

Mr. Melvin J. Sims, called as an adverse witness by the appellants, testified that according to his pressure gauge charts, the Wadsworth well produced gas through May 8, 1975 and again produced gas on May 13, 1975. According to these records the well produced 75 MCF on May 1; 70 MCF on May 2; 65 MCF on May 3; 60 MCF on May 4; 60 MCF on May 5; 50 MCF on May 6; 50 MCF on May 7, and 40 MCF on May 8. There was apparently no production on May 9,10,11, or 12. On May 13 Sims’ foreman, Dan Webel, checked the well, found an obstruction in the flow line, and restored production. The production was commenced at 4:15 p. m. on May 13, and ended at 2 a. m. on May 14, with a total showing of 30 MCF for that date.

Mr. Dan Webel testified that he went to the well site on May 13, and found the flow line plugged up with sand and formation solids. He said he removed the stem from the adjustable choke on the heater, took the flange off the orifice plate, and permitted the oil pressure to blow the obstructions out of the flow line. He then put it all back together, started up the compressor and “put it down to sales.” He had the pump on production about 3:30 that afternoon and it flowed until about 2 a. m. the next day.

Mr. Webel also testified that on August 5, 1975, he arranged for a steel tank on skids to be moved onto the well site to handle fluids needed for the workover operations. The following day, August 6, 1975, the tank was actually moved onto the well site by Stone Well Service. Webel also arranged with O’Neal Lundy Vacuum Service to have the workover fluid hauled to the well site, and this was done on August 7,1975. On August 8,1975 the tool pusher, Mr. Emil Kucera, and his workover rig arrived on the well site and commenced reworking operations which resulted in a gas producing well on August 11, 1975. The workover rig was released on August 12 and on August 13 production equipment changes were made so that the gas could bypass the compressor and run directly to the sales meter.

Mr. Webel’s testimony was substantially corroborated by the testimony of the service company personnel who performed the reworking operations, and the testimony of both Sims and Webel has not been contradicted in any material aspect by the appellants.

The appellants did not request submission of a special issue inquiring whether there had been a cessation of production for more than ninety consecutive days during the period May 8,1975 to August 13,1975. The trial court, therefore, submitted only one special issue to the jury in connection with the 90 day clause.

SPECIAL ISSUE NO. 4
“Do you find from a preponderance of the evidence that the McDermott No. 1 (Wadsworth No. 1) Well did not produce any gas for a period of more than ninety (90) consecutive days during the period of time between October 1, 1973, and March 31, 1974?
“Answer: ‘Yes’ or ‘No.’

To which the jury answered “No.”

The appellants contend that the trial court erred in overruling their objection to this special issue on the ground that the issue erroneously excluded from the jury’s consideration the period May 8, 1975 to August 13, 1975.

All the evidence in the record shows that reworking operations were commenced within a period of 90 days following cessation of production, and there is no evidence to the contrary. Although the testimony presented on this issue was principally that of appellees’ employees, their testimony was corroborated by other witnesses and by charts and records made in the regular course of business. The appellants have not seriously questioned the accuracy of the evidence with respect to this issue, and the evidence conclusively shows that reworking operations were timely commenced and prosecuted with diligence toward the completion of a producing well.

It is undisputed that the steel tank was moved on the well site on August 6, 1975 and that reworking operations promptly followed with gas production being obtained only six days later. The moving of machinery and equipment on the premises preparatory to the beginning of actual drilling or reworking, when performed with a bona fide intent to proceed thereafter with diligence toward the completion of a producing well, constitutes the commencement of operations within the meaning of the lease clause. Petersen v. Robinson Oil & Gas Co., 356 S.W.2d 217 (Tex.Civ.App. — Houston 1962, no writ). Even if it be assumed that the well ceased to produce on May 8, 1975 rather than on May 13, the date of last actual production, the reworking operations commenced on August 6, 1975 were timely under the 90 day clause.

The trial court did not err in overruling appellants’ objection to Special Issue No. 4 even if the evidence should be considered sufficient to raise a fact issue with respect to the period of time from May 8, 1975 to August 13, 1975. The issue was one upon which the appellants had the burden of proof, and since appellants failed to request an issue in substantially correct form covering this period of time, the issue must be deemed waived. Rule 279, T.R.C.P. The issue which was submitted by the court related to an entirely different frame of time than that specified in the appellants’ objection, and the objection did not suffice as a request for the submission of an issue with respect to the subsequent period of time. Avant v. Gulf Coast Investment Corporation, 457 S.W.2d 134 (Tex.Civ.App.— Dallas 1970, no writ).

It is further ruled that the trial court did not err in refusing the series of special issues requested en masse by the appellants, even though several such issues may have correctly stated certain elements of the controlling issue. McDonald, Texas Civil Practice, Vol. 3, Section 12.34.1, p. 429; Thompson v. Robbins, 157 Tex. 463, 304 S.W.2d 111, 118 (1957).

The appellants’ last point raises the question of whether the trial judge committed reversible error in the conduct of the trial. The appellants contend they were prejudiced by the trial court’s comments on their witnesses, their counsel and the weight of the evidence and that the cumulative effect of the trial court’s actions was so harmful that the injury could not be cured by instruction.

The testimony of the trial covers 1151 pages. For the most part the trial court’s remarks were appropriate and were directed toward expediting the orderly process of the trial. In one instance the trial judge improperly remarked that he did not see the relevancy of certain records which had been admitted in evidence. In another instance the court expressed its views about the content of a particular exhibit, but after a discussion with counsel out of the presence of the jury, the court issued an instruction to the jury to disregard its prior comment. Although some of the trial court’s comments were not proper, the appellants have not demonstrated that the trial court’s actions, singularly or collectively, constitute such a denial of their rights as was reasonably calculated to cause and probably did cause the rendition of an improper judgment. McDonald, Texas Civil Practice, Vol. 3, Section 11.20.1-2; Rule 434, T.R.C.P.

The judgment of the trial court is affirmed.


author: COLEMAN, Chief Justice.

text:
    R. M. ROBINSON, Individually and dba Robinson’s Restaurant, Appellant, v. GRANITE EQUIPMENT LEASING CORPORATION, Appellee.
    No. 16856.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    May 5, 1977.
    Rehearing Denied June 2, 1977.

      John P. Schaffer, III, Houston, for appellant.
    Lapin, Totz & Mayer, William A. Petersen, Jr., Houston, for appellee.
   COLEMAN, Chief Justice.

This is an appeal by the defendant-lessee from an adverse judgment rendered in a suit for damages by reason of the defendant-lessee’s default under a personal property leasing agreement. The case was tried to the court without a jury. Findings of Pact and Conclusions of Law were filed. The judgment is affirmed.

In 1965 the defendant, R. M. Robinson, operated a restaurant in Kemah, Texas. During that year he leased an ice machine and bin from Interstate Commercial Equipment, Inc., (hereinafter referred to as I.C. E.). On February 21, 1969 Robinson executed a new lease agreement covering the same ice machine and bin with Granite Equipment Leasing Corporation, the plaintiff. I.C.E. negotiated an agreement whereby Granite purchased the machine and then leased it back to Robinson.

Robinson made monthly payments through April, 1970 but has made no payments since that time. The lease agreement provided that maintenance of the equipment would be at Robinson’s expense. When the machine failed to function, and I.C.E. was unable or unwilling to repair it, Robinson requested that I.C.E. pick up the equipment. Robinson then placed the equipment in storage, from which place it was subsequently removed by I.C.E. in June or July of 1970. Robinson discontinued making his monthly rental payment, and after several requests for payment proved fruitless, Granite filed suit seeking recovery for all past due and unaccrued rentals. The trial court entered judgment for the plaintiff in the amount sought.

By his first point of error the defendant attacks the trial court’s conclusion of law that the delivery of the equipment to Interstate Commercial Equipment, Inc. was not in satisfaction or in lieu of the defendant’s obligations under the lease in question. Under this point the defendant attacks four findings of fact on the ground that they are not supported by any evidence or in the alternative by sufficient evidence. While the point is multifarious, we consider the defendant’s contention that the surrender and acceptance of the leased equipment terminated all obligations under the lease.

The trial court found as a fact that the defendant delivered the equipment to I.C.E. and that the equipment remains unsold and in the possession of I.C.E. The court further found that I.C.E. was not the agent of Granite Equipment and that Granite Equipment did not authorize the defendant to deliver the equipment to I.C.E. These findings of fact are supported by evidence admitted at the trial.

There is evidence that Granite continued to demand payments after the property was picked up by I.C.E. The lease provides that should the lessee default in payment of rental all obligations of lessee shall become due and payable at lessor’s option, and that lessor shall have all remedies under the law and under the Uniform Commercial Code. It further provides, that upon default the lessee shall be liable for arrears of rent, if any, the balance of rentals provided for, the expense of retaking possession and removal of the equipment, court costs, and reasonable attorney’s fees equal to 20% of the balance due. The lease further provides that if the proceeds of any sale of the equipment after deducting all costs of taking, storage, repair and sale are insufficient to pay said costs and the obligation, lessee agrees to pay any deficiency plus attorney’s fees as aforesaid. It provides that said sums shall become due and payable immediately as liquidated damages and not as a penalty. The lease further provides that lessor may exercise all remedies simultaneously, pursuant to the terms of the lease, and that any such action shall not operate to release the lessee until the full amount of the rentals due and to become due and all other sums to be paid under the lease have been paid in cash.

The findings of fact support a conclusion of law that the defendant abandoned the leased property. The lessor’s acceptance of the lessee’s surrender of a lease by abandonment occurs only by mutual agreement. There must be a showing of an intention on the part of the lessor to abrogate the contract. Blakeway v. General Electric Credit Corp., 429 S.W.2d 925 (Tex.Civ.App. — Austin 1968, writ ref’d n. r. e.).

The evidence shows that Granite did not intend to terminate the lease. Granite repeatedly notified the defendant of the default and requested payment. After learning that the machine had been picked up by I.C.E., Granite instructed I.C.E. to sell the equipment. This fact does not establish an intention to terminate the lease. The lessor may repossess leased equipment and recover unaccrued rentals if the contract so provides or necessarily implies such right. Walter E. Heller & Co. v. B. C. & M., Inc., 543 S.W.2d 696 (Tex.Civ. App. — Houston [1st] 1976, writ ref’d n. r. e.).

The provision of the lease requiring payment of all unaccrued rental on breach of contract is a provision for stipulated damages. Where the parties have agreed upon the amount of damages to be paid in case of a breach, the agreement will be enforced by the courts unless the defendant pleads and proves that the provision for liquidated damages is in fact a penalty. Langever v. R. G. Smith & Co., 278 S.W. 178 (Tex.Comm’n App.1925, jdgmt adopted); Stewart v. Basey, 150 Tex. 666, 245 S.W.2d 484 (1952); Blakeway v. General Electric Credit Corporation, supra.

The defense of penalty was not specially pleaded by the defendant. It is an affirmative defense which will be waived unless specially pled. Walter E. Heller & Co. v. B. C. & M., Inc., supra.

The trial court found that the balance due to the plaintiff by the defendant was the sum of $2,887.38. This sum is mathematically correct, but the defendant contends that the court was in error in failing to find that he was entitled to offset the return of the equipment against the balance due under the lease. It is not necessary to specially plead failure to mitigate damages. Moulton v. Alamo Ambulance Service, Inc., 414 S.W.2d 444 (Tex.1967).

The evidence establishes that after the machine was returned to I.C.E., notices of sale were sent to the defendant, but the machine was not sold or rented. There is no evidence as to the value of the machine on the date it was received by I.C.E. There is no evidence of its rental value at that time in its damaged condition. There is no evidence of the cost of necessary repairs. The burden of producing such evidence was on the defendant. Moulton v. Alamo Ambulance Service, Inc., supra. In any event, the question of mitigation of damages does not arise where there is a valid provision for liquidated damages.

The defendant contends that the transaction was not in fact a lease agreement but was a secured transaction governed by the provisions of the Texas Business and Commerce Code. The defendant did not allege that the lease agreement was in reality a security transaction. No findings of fact in support of such a theory were requested from the trial court and no such findings were made. After the findings of the trial court were filed the defendant did request as an additional conclusion of law a finding that “the instrument in dispute, plaintiffs exhibit no. 1, creates a security interest in the transaction involved as governed by the provisions of the Texas Business and Commerce Code dealing with security agreements.” There is no showing that this request was presented to or acted on by the trial court. The requested finding is waived. Dillingham v. Dillingham, 434 S.W.2d 459 (Tex.Civ.App. — Fort Worth 1968, writ dism’d).

The trial court found as a fact that the defendant executed a certain equipment lease on or about February 21, 1969, with the plaintiff as lessor. Whether this finding be regarded as a finding that the instrument in question was a straight lease rather than a memorandum showing a secured transaction is immaterial since this court would imply a finding in support of the trial court’s judgment that the instrument in question was a straight lease. Neither the finding made or the implied finding, if one be necessary, has been attacked in this court by a point of error. There is evidence in the record to support such a finding of fact. The instrument is denominated a lease and the payments to be made are designated as rental. There is an option to renew the lease under the same terms and conditions, but the annual rental to be charged is not stated in the lease. There is evidence that the lessee was charged the sum of $1.00 for a purchase option, but there is no evidence to show the terms of said option. There is evidence that Mr. Robinson leased the same equipment from I.C.E. for some four years prior to the date of the lease in question. By a letter dated February 12, 1969, from I.C.E. to Mr. Robinson the payments under the I.C.E. lease were reduced from $69.00 per month to $65.00 per month on a straight lease basis. The rental provided in the agreement between Granite Equipment and Robinson was $65.62 per month. There is evidence that Granite purchased the machine as used equipment from I.C.E. for the total sum of $2,708.15. Over the term of the lease the rental payments required would amount to $3,937.20. The lessee was required to keep the equipment in good condition, ordinary wear and tear excepted. There is no evidence to show the useful life of the equipment. The only evidence in the record concerning a reasonable rental price is the price which the lessee had paid prior to the purchase of the machine by Granite.

In the absence of testimony explaining the terms used we are unable to agree with the lessee that the $1.00 consideration for the purchase option reflected in the exhibits is the agreed value of the equipment at the end of the lease rather than a nominal consideration paid for an option to purchase. In the absence of evidence establishing the purchase price to be paid by the lessee on exercise of the option we are unable to determine whether the option granted the lessee a right to acquire the property at a price substantially lower than actual value.

In Davis Brothers v. Misco Leasing, Inc., 508 S.W.2d 908 (Tex.Civ.App.—Amarillo 1974, no writ history), the court reviewed the cases setting out the guidelines for making an effectual determination as to whether the particular transaction between parties is a true lease or one intended as security. The court concluded:

“. . . However, in order to apply such guidelines, it is necessary that the record contain evidence of the fair market value of the equipment at the time the purchase option may be exercised; evidence of the depreciation schedule and anticipated useful life of the equipment; and evidence as to whether the rental payments are indicative of customary rental rates for similar equipment or are indicative of an acquisition of equity in the equipment. The lack of evidence of this nature in the record makes it impossible to apply such guidelines. Thus, the absence of essential evidence precludes either a legal conclusion or a factual determination of the true character of the agreement on which the transaction was based.”

While the court in Davis Brothers v. Misco Leasing, Inc., supra, concluded that the evidence in that case was insufficient to support the implied findings and the judgment based thereon and reversed and remanded the case, we cannot reach that result in this case. There is some evidence to support an implied finding of fact that the instrument in question is a straight lease. The lessee has not attacked such finding either on a no evidence or on an insufficient evidence point. In determining whether there is any evidence to support the judgment and the implied findings of fact incident thereto, it is proper to consider only that evidence most favorable to appellee and to disregard entirely that which is opposed to it or contradictory in its nature. Joy Corp. v. Nob Hill North Properties, Ltd., 543 S.W.2d 691 (Tex.Civ.App.—Tyler, no writ history).

Since it is not established as a matter of law that the lease instrument in question created a security interest in the property, and was not in fact a lease, §§ 9.504 and 9.505 Vernon’s Texas Business and Commerce Code Annotated are not applicable to this transaction.

The judgment is affirmed.


author: CORNELIUS, Justice.

text:
    CITY OF MESQUITE and Mesquite Independent School District, Appellants, v. Eblen S. MALOUF, Individually and as Trustee, Appellee.
    No. 8422.
    Court of Civil Appeals of Texas, Texarkana.
    June 14, 1977.
    Rehearing Denied July 19, 1977.

      Elland Archer, City Atty., Dwight H. Moore, Asst. City Atty., Mesquite, for appellants.
    Ralph W. Currie, Dallas, for appellee.
   CORNELIUS, Justice.

Appellee Eblen Malouf, individually and as trustee, filed suit against appellants, the City of Mesquite and the Mesquite Independent School District, to recover allegedly excessive ad valorem taxes paid on 247.499 acres of land. Appellee contended that he was entitled to have appellants assess his land for taxes on consideration of only those factors related to agricultural use, as provided by Article VIII, Sec. 1-d of the Constitution of the State of Texas, but that appellants refused to do so.

Trial was to the court without a jury. The court concluded that appellee was entitled to the agricultural classification and rendered judgment against appellants for the sum of $1,967.18 and other relief.

Appellants have assigned eleven points of error by which they contend primarily that there was no evidence or insufficient evidence that appellee was the “owner” of the land within the meaning of the constitutional provision; that, if appellee could be considered the owner, he held title as trustee, and as such trustee was not a “natural person” within the meaning of the constitutional provision; that the action of the taxing officials in denying the agricultural assessment was supported by substantial evidence and should have been upheld by the trial court; and that there was insufficient evidence that appellee’s primary occupation and source of income was that of raising livestock and growing crops, fruits, flowers and other products of the soil under natural conditions as a business venture for profit, as required by the constitutional provision.

Appellee acquired the land on February 26, 1968. The deed was from T. Lewis Jones to Eblen S. Malouf. On March 22, 1968, appellee executed a declaration of trust concerning the property. That declaration is not in the record but on June 15, 1973, appellee and those persons designated as beneficiaries executed the following declaration of trust:

“DECLARATION OF TRUST
STATE OF TEXAS 1
f KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF DALLAS J
That, by General Warranty Deed dated February 26, 1968 from T. Lewis Jones to Eblen S. Malouf, the undersigned took title to approximately 247.499 net acres of land located near Mesquite, Texas, as more fully described in Exhibit A attached hereto and incorporated herein by reference.
It was understood and agreed at the time of closing that the undersigned was in fact taking title in trust for various individuals who, upon payment of their proportionate part of the cost of acquisition and maintenance of this property, would be entitled to share in the benefits and proceeds derived from the use, rental or sale of all or any part of this property, and by Declaration of Trust dated March 22, 1968 the various beneficial interests were set forth. Subsequent to that sale various of the beneficiaries have sold their interest to other beneficiaries, and it is therefore deemed advisable to execute this new Declaration of Trust, which when fully executed shall stand in lieu of the original Declaration of Trust and establishes the existing beneficial interest in and to the subject of this Trust.
It is further understood that this Declaration of Trust may be placed of record by any of the beneficiaries at any time they might deem it advisable, but notwithstanding the recordation of the Declaration of Trust, Eblen S. Malouf shall continue to hold this property in his name for so long as he might be competent to hold title as a trustee, and the beneficiaries do hereby release and indemnify the Trustee from any and all liability stemming from his acts or failure to act as Trustee.
In the event the undersigned ever should be not qualified to act as trustee the below listed beneficiaries are named as successor trustees in the order that their names appear.
Any person dealing with the undersigned in relation to this property need not obtain the permission, consent, ratification or approval of any of the beneficiaries, but shall be entitled to deal solely with the undersigned who shall have and retain full powers to lease and sell this property, and to take any action not inconsistent with this Declaration of Trust. In the event of sale of all or any part of this property (and the Trustee is given discretionary power to sell all or any part for such consideration as he deems adequate) the undersigned will deliver to the beneficiaries their proportionate part of all proceeds less their proportionate part of any expenses related to the maintenance or sale of this property. This trust shall terminate automatically at such time as all this property is sold and the proceeds distributed.
The beneficiaries of this Declaration of Trust and their respective beneficial interest in this property are as follows:
Arthur A. Smith 20% — sold to Eblen Malouf,
Ronald E. Malouf 20% Trustee 6-15-73 E.S.M.
Johnie Malouf
Dennis Malouf 20%
Julie Malouf
Executed as of the 15th day of June 1973.
/s/ Eblen S Malouf_
EBLEN S. MALOUF
The undersigned, being all the beneficiaries under the aforesaid trust do hereby ratify, confirm and approve the above Declaration of Trust:
/s/ Arthur A. Smith_
ARTHUR A. SMITH
/a/ Ronald Malouf_
RONALD MALOUF
/s/ Johnie Malouf_
JOHNIE MALOUF
/s/ Dennis Malouf_
DENNIS MALOUF
/s/ Julie Malouf_
JULIE MALOUF
THE STATE OF TEXAS 1 COUNTY OF DALLAS J
BEFORE ME, the undersigned, a Notary Public in and for said County and State, on this day personally appeared EBLEN S. MALOUF known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 15th day of June, 1973
/s/ E. G. Bovle_
Notary Public in and for Dallas County, Texas E. G. Boyle”
(Emphasis supplied.)

Attached to the declaration is a metes and bounds description of the 247.499 acre tract. The declaration of trust was attached to appellee’s original petition and was introduced by him into evidence.

The trial court’s judgment was based in part on findings and conclusions to the general effect that the declaration of trust quoted above did not create an existing trust because it was not appellee’s intention to vest the beneficiaries with a present beneficial interest in the land; appellee was therefore the owner of the land in his own right rather than as trustee; and appellee met the constitutional requirements of primary occupation and source of income as well as use of the land, and was therefore entitled to the benefits of the agricultural assessment. The trial court also concluded that if the trust did come into existence, appellee was nevertheless entitled, as trustee, to the agricultural assessment.

The trial court’s conclusion that the declaration of trust failed to create a present trust was based upon a construction of the declaration and upon appellee’s testimony of his intention in signing the declaration.

We have concluded that the trial court erred in finding that the trust was purely executory and never came into existence. The Texas Trust Act provides in part as follows:

“Art. 7425b-7. Requisites of a trust
An express trust may be created by one of the following means or methods:
A. A declaration in writing by the owner of the property that he holds it as trustee for another person, or persons, or for himself and another person or persons; or

The declaration signed by appellee and the beneficiaries states that “. . . the undersigned was in fact taking title in trust for various individuals . . . ” and that the declaration of trust “. . . establishes the existing beneficial interests in and to the subject of this Trust.” Those statements are clear and unequivocal. We regard the additional statement in the declaration to the effect that the beneficiaries, “. . . upon payment of their proportionate cost of the acquisition and maintenance of this property would be entitled to share in the benefits and proceeds derived from the use, rental or sale of all or any part of this property . . . ” as merely a condition restricting or deferring the beneficiaries’ use and enjoyment of the trust res and the income therefrom. See 76 Am. Jur.2d, Trusts, Sec. 61, p. 310.

If the intention of a settlor is to create, on behalf of the beneficiary, an existing beneficial interest in the trust res, the fact that benefits or enjoyment of the res or the income therefrom are postponed does not defeat the existence of a present trust. Restatement of Trusts, Second, Sec. 26, Comments a and g (1959); Bogert, Trusts & Trustees (2nd Ed.), Sec. 181, p. 174 (1965); 76 Am.Jur.2d, Trusts, Sec. 21, p. 269, Sec. 35, p. 282; 89 C.J.S. Trusts § 29, p. 749. Compare Samuell v. Brooks, 207 S.W. 626 (Tex.Civ.App. Dallas 1918, writ ref’d). Neither will the fact that the settlor imposed conditions upon the beneficiaries’ enjoyment of the property, or that he retained a power to revoke the trust, or that he received no consideration for its creation defeat the existence of a present trust. 76 Am.Jur.2d, Trusts, Sec. 15, p. 263; Restatement of Trusts, Second, Sec. 26, Comment a (1959); Bogert, Trusts & Trustees (2nd Ed.), Sec. 202, p. 353 (1965). It is true that whether or not a present trust has been created depends upon the intention of the settlor, but that intention must be determined from the language used in the written declaration or trust instrument. Cutrer v. Cutrer, 162 Tex. 166, 345 S.W.2d 513 (1961); William Buchanan Foundation v. Shepperd, 283 S.W.2d 325 (Tex.Civ.App. Texarkana 1955), rev’d for settlement, 155 Tex. 406, 289 S.W.2d 553 (1956); Schmidt v. Schmidt, 261 S.W.2d 892 (Tex.Civ.App. Galveston 1953, writ ref’d); 2 McCormick & Ray, Texas Evidence, Sec. 1681, p. 516 (2nd Ed. 1956); Bogert, Trusts & Trustees (2nd Ed.), Sec. 51, pp. 409, 410, 413 and 414 (1965). Unless that language is ambiguous, declarations or expressions of intent on the part of the settlor which are contrary to the written statement are not admissible or effective to contradict it. Appling v. Jay, 390 S.W.2d 799 (Tex.Civ.App. Texarkana 1965, writ ref’d n. r. e.); 2 McCormick & Ray, Texas Evidence, Sec. 1685, p. 527 (2nd Ed. 1956); Bogert, Trusts and Trustees (2nd Ed.), Sec. 51, p. 414 (1965).

The trust declaration here is not ambiguous. The intention to vest a present beneficial interest in the beneficiaries is indicated by several provisions of the declaration. It is stated that appellee took title to the property in trust for various individuals; that some beneficiaries have previously sold their interests; that the declaration establishes the existing beneficial interest in the trust property; and that the respective interests of the beneficiaries in the property are as set out therein. Specific powers and duties are imposed upon the trustee; provisions are made for substitute trustees in the event the appellee is disqualified; and the appellee, as trustee, specifically obligates himself, in case of a sale of the trust property, to deliver to the beneficiaries their proportionate part of all proceeds less their proportionate part of any expenses relating to the maintenance or sale of the property.

Having found that a valid trust was created by the declaration, it becomes necessary for us to determine if appellee, as trustee, was entitled to the agricultural assessment. In making that determination, the decisive question is not whether a trustee is a “natural person”, but rather whether the trustee or the beneficiaries are considered the “owners” of the land in contemplation of the constitutional provision.

There is no doubt that a trustee may represent the beneficiaries in rendering trust property for taxation and in paying the taxes levied, as well as represent the beneficiaries in court when his interest does not conflict with theirs. Tex.Rev.Civ.Stat. Ann. art. 7152(6) (1960); Carter v. DeJarnatt, 523 S.W.2d 88 (Tex.Civ.App. Texarkana 1975, writ ref’d n. r. e.). But when a valid trust is created, the beneficiaries become the owners of the equitable or beneficial title to the trust property, and are considered the real owners. Parrish v. Looney, 194 S.W.2d 419 (Tex.Civ.App.1946, no writ); Arnold v. Southern Pine Lumber Co., 58 Tex.Civ.App: 186, 123 S.W. 1162 (1909, writ dism’d); Rheinstrom v. Commissioner of Internal Revenue, 105 F.2d 642 (8th Cir. 1939). The trustee is only the depositary of the bare legal title. Parrish v. Looney, supra; Bogert, Trusts & Trustees (2nd Ed.), Sec. 146, p. 45 (1965). We believe the constitutional provision intended to give the benefit of the agricultural assessment to the real owners — not the mere holder of legal title. It is the beneficiaries, not the trustee, who will receive the benefit of the agricultural assessment, and it logically should be their occupations and primary sources of income, not the trustee’s, which should determine if the agricultural assessment should be applied. A contrary holding would effectively defeat the provision’s attempt to restrict its application to natural persons. If a trustee may be considered the owner for the purposes of the assessment, a corporation could transfer the legal title to its land to an individual trustee who qualified as to occupation and primary source of income, and thus receive the benefit which the constitutional provision intended to deny. We agree with the view of Judge Stephenson in his concurring opinion in Driscoll Foundation v. Nueces County, 445 S.W.2d 1 (Tex.Civ.App. Beaumont 1969), err. dism’d, 450 S.W.2d 320 (Tex. 1969), and hold that the beneficiaries of the trust, rather than the trustee, are the owners of the land within the meaning of the constitutional provision.

It follows that appellee was not entitled to the relief sought. He was not the owner of the land in question. Nor were the beneficiaries entitled to relief in this proceeding. They qualified as owners, but there was no evidence presented to the taxing authorities or to the court bringing themselves within the constitutional provision.

Appellants’ points 2 and 3 are sustained. Point 1 is overruled. The other points are not reached. The judgment of the trial court is reversed and judgment is here rendered that appellee take nothing.

      . “§ 1-d. Assessment of lands designated for agricultural use
      Sec. 1-d. (a) All land owned by natural persons which is designated for agricultural use in accordance with the provisions of this Section shall be assessed for all tax purposes on the consideration of only those factors rela-five to such agricultural use. ‘Agricultural use’ means the raising of livestock or growing of crops, fruit, flowers, and other products of the soil under natural conditions as a business venture for profit, which business is the primary occupation and source of income of the owner.”

      . Over appellants’ objections, appellee testified as follows:
      “Q And the persons named there are your children, I believe?
      A My children and a brother of mine, Johnie, and Dr. Arthur Smith who wanted to sell in ’73 because he said he was getting old and—

      Q All right, did you pay the purchase price for this land that you purchased from Mr. Jones?
      A Yes, I did.
      Q Did any of your children ever pay any part of the purchase price?
      A They are paying on it now. They paid some, but not all of it.
      Q How are they doing that?
      A Since they came into the business, like Dennis and Ronnie, they are making enough money to meet their payments.
      Q Well, do you pay this out on installments? Mr. Jones, did you pay him cash for the land or did you give him a note?
      A No, I gave him a note and over ten years.

      Q And do you know how much approximately is still owed on the property?
      A I think we still have about four years to go.

      Q I understand, so, is it your testimony that this purchase from Mr. Lewis Jones has not been completed in the sense that the purchase price has not been paid?
      A No, it has not, sir.
      Q All right. Have you ever conveyed or deeded any part of this property to your brother or to your children?
      A No, sir, I never have. Neither to Dr. Smith.

      Q (By Mr. Eades) Getting back to the question, Mr. Malouf, was it your intention to give this property or to transfer this property to your brother and your children if and when they did pay for it as it stated?
      A (By the Witness) Yes.
      Q And at this time, you have not completed any such gift?
      A No, I have not.
      Q You have executed no other instrument, deed or anything in writing conveying this property?
      A No, I have not.
      Q Have you filed any Federal Gift Tax Returns showing any gift?

        A No, sir, I have not.

      Q Now, when you purchased this land in Mesquite in 1968, do you recall what you paid for it?
      A I think we, I paid through Royce Banks, the real estate man, I think he bought it for me, for Dr. Arthur Smith, who instigated the deal, $700.00. Then, afterward, Dr. Smith decided that the land should belong to the children and with me as a Trustee—

      A No, I bought it for the, to, as an investment for the children, whether I paid for it as a farm or not.
      Q You intended for your children to have this property?
      A Sure, from the beginning.
      Q You’re not going to take it away from them, are you?
      A Well, unless they default on the payment, I couldn’t give it to them without having to pay gift taxes to the Government.


author: DUNAGAN, Chief Justice.

text:
    Kenneth GRANTHAM, Appellant, v. RUSK COUNTY AUCTION COMPANY, INC., Appellee.
    No. 1024.
    Court of Civil Appeals of Texas, Tyler.
    June 16, 1977.
    Karol Ann Thomas, Loftis, Rowan, Files, Clayton, Bain & Clark, Tyler, for appellant.
    Jack G. Neal, Sulphur Springs, for appel-lee.
   DUNAGAN, Chief Justice.

This is a suit brought by Kenneth Grant-ham against Rusk County Auction Company, Inc., for damages in the amount of $31,631.77 sustained by appellant as a result of appellee’s breach of duties owed to appellant and appellee’s alleged violation of Art. 1287a, sec. 6, V.A.C.S.

The case was tried to a jury. After presentation of the evidence and after both sides had closed, the appellee moved that the court withdraw the case from the jury and enter a judgment in favor of it. The court granted appellee’s motion and the case was withdrawn from the jury. No charge was ever submitted to the jury. The court discharged the jury and then rendered a take-nothing judgment against the appellant.

The appellant by its sole point of error complains that “the trial court erred in its ruling that the case should be withdrawn from the jury and that judgment should be rendered in favor of the appellee as a matter of law.” We agree.

The appellant went to trial on its first amended original petition. In said petition, appellant alleged that he was in the business of buying and selling cattle and that appellee was in the business of receiving cattle and selling them at an auction as agent for the owner of the cattle; that on July 14,1973, in Rusk County, Texas, appellant delivered a load of his cattle, of which he had lawful possession, to appellee in order that appellee might sell same for appellant; that these cattle were in fact sold by appellee and that appellant’s repeated demands upon appellee for the sale price of these cattle in the amount of $31,631.77 have been refused; and that appellee caused the check in said amount to be written to Livestock Board of Trade as payee and received by a person or persons other than appellant.

Appellant based his cause of action on the contention that appellee was negligent in the handling of the proceeds resulting from the sale of said livestock which appellant had placed in appellee’s care under the consignment arrangement. Appellant alleged that appellee breached the following duties owed by it to appellant: the duties of loyalty and good faith; the duty to inform principal; the duty of care of proceeds; and the duty to account to principal for the proceeds of a sale. Appellant further contended that appellee violated statutory rules and regulations under which it was required to operate, more specifically Art. 1287a, sec. 6, V.A.C.S.

Appellee has filed no brief in this cause nor did it appear for oral submission. It has not challenged in any manner the statements in appellant’s brief relative to the facts in the record. Under this condition of the record we accept as correct the statements contained in appellant’s brief relating to the facts in the record. Rule 419, T.R.C.P.; Gonzales v. Gonzales, 224 S.W.2d 520 (Tex.Civ.App. — San Antonio 1949, writ ref’d).

Regulations Under the Packers and Stockyards Act, 9 C.F.R. sec. 201.39 (1976), states that

“No market agency or licensee shall, pay the net proceeds or any part thereof, arising from the sale of livestock or live poultry consigned to it for sale, to any person other than the consignor or shipper of such livestock or live poultry, except upon an order from the Secretary or a Court of competent jurisdiction . . . .”

Appellant contends that the evidence was of sufficient strength to create fact questions which should have gone to the jury regarding:

1. whether appellee was negligent in his handling of the proceeds for his failure to comply with Art. 1287a, sec. 6, V.A.C.S.;

2. whether the cattle in the possession of appellee were those which were brought from the persons to whom the proceeds were wrongfully paid; and,

3. whether or not appellee had reason to believe that some person other than appellant was the true owner of said livestock.

There was some evidence introduced in the trial court that would prove that the cattle in appellee’s possession were the same as those bought from the persons to whom the proceeds of sale were allegedly wrongfully paid. Whether appellee was reasonable in taking the word of a Texas ranger as to the ownership of said livestock without some further evidence, is a question for the trier of the facts. But even if appellee was reasonable in doing so it was still required by statute to place the proceeds in a state or national bank and notify all parties claiming said proceeds of its action. Art. 1287a, sec. 6, V.A.C.S.

The rule in Texas is that when a verdict has been instructed for the defendant or the court has taken the case from the jury, the appellate court must consider all evidence in its most favorable light in support of plaintiff’s position. Echols v. Wells, 510 S.W.2d 916 (Tex.1974) holds that where there are fact issues to be resolved, an appellate court must indulge every inference that may properly be drawn from the evidence against the action of the trial judge in withdrawing the case from the jury and instructing a verdict. See also Seideneck v. Bayreuther Associates, 451 S.W.2d 752 (Tex.1970).

Appellant needs to show only that the evidence in the trial court raised issues of fact and not that such issues were proved as a matter of law or by weight of evidence. Meyer v. Worden, 530 S.W.2d 904 (Tex.Civ.App. — Houston 1975, writ ref’d n.r.e.).

Viewing the evidence in its most favorable light in support of appellant-plaintiff’s position and indulging every inference that may properly be drawn from the evidence against the action of the trial judge, it appears there were fact issues to be resolved and the trial court erred in withdrawing the case from the jury and rendering judgment for the appellee.

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

      . “Sec. 6. If the proceeds of any livestock so sold at auction by said livestock auction commission merchant shall become involved in a dispute between contending claimants, or if said livestock auction commission merchant is notified that some other party or parties are asserting right to said proceeds, or any part thereof, in opposition to the claim of those consigning said stock to said commission auction merchant, said livestock auction commission merchant shall deposit the amount of such net proceeds involved in such contention in some State or National Bank in the town, city, or county where said livestock commission merchant has his principal place of business and promptly notify all interested parties of his said action in the premises, whereupon no further liability as to such funds so deposited shall accrue or continue as to said livestock auction commission merchant or on his bond.”


author: HALL, Justice.

text:
    The LIGHTING SUPPLY COMPANY, Appellant, v. Ed WATTS, d/b/a North American Industries, Inc., Appellee.
    No. 5703.
    Court of Civil Appeals of Texas, Waco.
    June 16, 1977.
    Rehearing Denied July 28, 1977.
    J. Anthony Michael, III, Nickelson & Michael, Don L. Prager, Fort Worth, for appellant.
    Kenneth W. Boyd, Rogers & Hammond, Cleburne, for appellee.
   HALL, Justice.

Plaintiff Ed Watts d/b/a North American Industries, Inc., builds and sells houses. He brought this suit for actual and exemplary damages against The Lighting Supply Company and its vice-president, Marlin Massengale, on the theory that on the day in question Massengale and other employees of Company, acting for Company, maliciously broke into three houses owned by plaintiff which were on the market for sale and wrongfully removed installed lighting fixtures and other merchandise which had been sold to plaintiff by Company, thereby causing considerable damages to the houses. Defendants answered with general denials, and Company filed a cross action for an alleged balance due from plaintiff.

Trial was to a jury. All special issues were answered in favor of plaintiff. Judgment was rendered on the verdict awarding plaintiff recoveries of $2,318.60 actual damages and $4,000.00 exemplary damages against Company, and decreeing that Company take nothing on its cross action. Company appeals. We affirm.

Company comes to this court with 27 points of error. Twenty-five question the legal and factual sufficiency of the evidence to support certain jury findings. The other two raise asserted problems in the court’s charge. All rest upon Company’s motion for new trial which contains only these two assignments of error:

“1. The verdict returned by the Jury is contrary to the law and the evidence.
“2. The verdict is excessive and is not substantiated by the evidence as presented by the Plaintiff.”

Where (as here) a motion for new trial is required to preserve complaints for appellate review, a ground of error not distinctly set forth in such motion shall be considered waived on appeal. Rules 321, 322, 324, and 374, Vernon’s Tex.Rules Civ. Proc.; Tex-Wash Enterprises, Inc. v. Robna, Inc., 488 S.W.2d 504, 506 (Tex.Civ.App. —Waco 1972, writ ref’d n. r. e.). The assignments in Company’s motion for new trial are too general to call attention to any particular error. They do not specify any complaint raised on appeal. The complaints are therefore waived. Smith v. Brock, 514 S.W.2d 140, 142 (Tex.Civ.App. — Texarkana 1974, no writ).

The judgment is affirmed.


author: CHADICK, Chief Justice.

text:
    Delilah MORRIS, Appellant v. C. C. BARNETTE, d/b/a We Never Close Coin-O-Mat, et al., Appellees.
    No. 8471.
    Court of Civil Appeals of Texas, Texarkana.
    June 21, 1977.
    Rehearing Denied July 12, 1977.

      Harry B. Friedman, Harkness, Friedman & Kusin, Texarkana, for appellant.
    Charles D. Barnette, Arnold, Arnold, Lavender & Rochelle, Texarkana, Ark., for appellees.
   CHADICK, Chief Justice.

A summary judgment dismissing with prejudice the action of plaintiff below was entered in the trial court. The judgment is reversed and the case remanded to the trial court.

In summary, this is a suit by a business invitee against the possessor of business premises, open to the public, to recover both actual and exemplary damages for personal injuries inflicted by the acts of a third person. Mrs. Delilah Morris pled that she was a customer and invitee at a washateria operated .by C. C. Barnette, d/b/a We Never Close Coin-O-Mat Washateria and We Never Close Coin-O-Mat Washateria, when she was physically and sexually assaulted and injured; that the negligence of Bar-nette and We Never Close Coin-O-Mat Was-hateria was a proximate cause of her injury; the negligence alleged was “[FJailure to take such necessary precautions, such as having a watchman, an alarm, or some type of protection as would have protected Plaintiff, an invitee, from the occurrence herein complained of.” The indicated defendants answered with numerous special exceptions and a general denial. Hereafter, reference to Barnette includes reference to We Never Close Coin-O-Mat Was-hateria unless the context clearly indicates otherwise.

With reference to the duty of a possessor of business premises to control the conduct of a third party on the premises, Prosser, The Law of Torts, p. 405 (3rd Ed. 1964), says that:

“In particular, the possessor must exercise the power of control or expulsion which his occupation of the premises gives him over the conduct of a third person who may be present, to prevent injury to the visitor at his hands. He must act as a reasonable man to avoid harm from the negligence of . other persons who have entered it, or even from intentional attacks on the part of third persons. But he is required to take action only when he has reason to believe, from what he has observed or from past experience, that the conduct of the other will be dangerous to the invitee. Again, in the usual case, a warning will be sufficient precaution, unless it is apparent that, either because of lack of time or by reason of the character of the conduct to be expected on the part of the third person, it will not be effective to give protection.”

American Law Institute’s Restatement of the Law of Torts, Second, Sec. 344 (1965), states:

“A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to the members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to (a) discover that such acts are being done or are likely to be done, or (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.”

Comment f under the quoted section discusses the duty of the possessor of the land to police the premises and says:

“Since the possessor is not an insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.”

No washateria operation case from this or another jurisdiction has been cited or found. However, the duty and liability of a possessor of land held open to the public for the possessor’s business purposes has been the subject of comment and decision in a variety of Texas cases. See Eastep v. Jack-In-The-Box, Inc., 546 S.W.2d 116 (Tex.Civ.App. Houston-14th 1977, no writ); Prokop v. Gulf, C. &. S. F. Ry. Co., 34 Tex.Civ.App. 520, 79 S.W. 101 (1904), writ ref’d); East Texas Theatres, Inc. v. Rutledge, 453 S.W .2d 466 (Tex.1970); Marek v. Southern Enterprises, Inc. of Texas, 128 Tex. 377, 99 S.W.2d 594 (1936, opinion adopted); Rosas v. Buddies Food Store, 518 S.W.2d 534 (Tex.1975); see also 70 A.L.R.2d 628. From these respected sources it appears, by analogy, that the operator of a washateria business who, by reason of location, mode of doing business, or observation or past experience, should reasonably anticipate criminal conduct on the part of third persons, either generally or at some particular time, has a duty to take precautions against it and to provide an effective warning or a reasonably sufficient number of servants to afford reasonable protection to invitees on the premises.

A movant for summary judgment, Barnette in this instance, under the provisions of Tex.R.Civ.P. 166-A is entitled thereto if the record shows “. . . there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Great American R. Ins. Co. v. San Antonio Pi. Sup. Co., 391 S.W.2d 41 (Tex.1965); Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970); Odom v. Insurance Company of State of Penn., 455 S.W.2d 195 (Tex.1970); Rosas v. Buddies Food Store, supra; 4 McDonald’s, Texas Civil Practice, Sec. 17.26.2.

The record does not show Barnette entitled to summary judgment. It is elementary that in a conventional trial Mrs. Morris would have the burden of proving the several elements of her cause of action. Her pleadings placed on her the burden of proving the Barnette’s washateria’s location, or its mode of operation, or Barnette’s past observation or experience in its operation was such that he should have reasonably anticipated criminal conduct on the part of third persons therein and that he did not take precaution against such conduct and provide an effective warning or a reasonably sufficient number of servants to afford Mrs. Morris reasonable protection. The cases last cited are authority for the proposition that Barnette, as movant, had the burden of disproving as a matter of law one or more of the elements of Mrs. Morris’ action, that is, that the place or mode of operation of his business or his past observation or experience was not such that he should have reasonably anticipated criminal conduct, etc. Barnette made no effort to produce such summary judgment proof and as a consequence nothing in the pleadings, deposition, answers to interrogatories, admissions on file or affidavits discharged Barnette’s burden of showing entitlement to a judgment as a matter of law. His motion was improperly granted. Appellant’s points of error Nos. 1 and 4 are sustained.

Appellant’s other points of error, Nos. 2 and 3, are overruled. For the reasons discussed, the judgment of the trial court is reversed and the case is remanded for a new trial.