author: BARROW, Chief Justice.

text:
    Marvin W. HURST, Appellant, v. Worth A. STEWART, Appellee.
    No. 15433.
    Court of Civil Appeals of Texas, San Antonio.
    July 23, 1975.
    Rehearing Denied Sept. 10, 1975.

      Ben D. Sudderth, Sudderth, Woodley & Dudley, Comanche, for appellant.
    Urban Farrow, Carrizo Springs, for ap-pellee.
   BARROW, Chief Justice.

Appellant has perfected his appeal from an order overruling his plea of privilege to be sued in Comanche County where he is domiciled. The sole question presented is whether appellant had submitted himself to the jurisdiction of the District Court of Dimmit County for appellee’s plea in intervention by filing suit in that county.

On August 8, 1974, appellant filed suit in Dimmit County against the Citizens State Bank of Carrizo Springs seeking a declaratory judgment that he was the owner of 45 shares of capital stock in the bank together with all dividends declared on this stock after March 20,1956. Bank filed an answer wherein it denied that appellant was the owner of said shares and pleaded affirmatively that these shares had been transferred by appellant to appellee, Worth A. Stewart, on November 27, 1962. Bank sought a judgment requiring appellant to surrender the two stock certificates evidencing these shares and that appellant pay Bank’s attorney fees in this cause. On August 26, 1974, appellee filed his petition in intervention in said cause wherein he asserted ownership to the shares of stock in question and sought a judgment ordering appellant to deliver to him the stock certificates plus damages for appellant’s prior wrongful refusal to deliver same.

On September 3, 1974, appellant took a non-suit on his cause of action. On September 6,1974, appellant filed his plea of privilege to remove to Comanche County the cause of action asserted in appellee’s plea of intervention. The plea of privilege was duly controverted by appellee and was overruled after a hearing before the court.

It is well settled that a party may waive his venue rights in several situations. One such situation, which is applicable here, is that by instituting suit in a county other than his residence, a plaintiff submits himself to the jurisdiction of that county as to all matters arising out of or incidental to the subject matter of his suit. Zachry v. Robertson, 147 Tex. 307, 214 S.W.2d 949 (1948); 1 McDonald, Texas Civil Practice, Section 4.40(11) (1965).

Under this rule, a plaintiff may not challenge the venue of a plea in intervention when an intervenor asserts a claim against the plaintiff which arises out of or is incidental to the subject matter of plaintiff’s claim. May v. Little, 473 S.W.3d 632 (Tex.Civ.App., El Paso 1971, writ ref’d n. r. e.); City of Orange v. State ex rel. City of Port Arthur, 450 S.W.2d 722 (Tex.Civ.App., Beaumont 1970, no writ); Sun Oil Company v. High Plains Underground Water Con. Dist., 426 S.W.2d 347 (Tex.Civ.App., Amarillo 1968, no writ).

Appellee’s plea in intervention was directly related to the subject matter of appellant’s suit. Appellant had sought a declaration that he was the owner of 45 shares of stock in Bank. Appellee claimed ownership of these shares and prayed that appellant be ordered to deliver the stock certificates to appellee. In addition, appel-lee asserted an affirmative plea for damages from appellant for wrongful withholding of the stock certificates. Appellant had voluntarily submitted himself to the jurisdiction of the Dimmit County District Court by filing his original petition there and may not successfully challenge the venue of ap-pellee’s plea in intervention which arose out of the subject matter of appellant’s suit.

Nor was venue defeated by appellant’s non-suit after the plea in intervention was filed. A plaintiff has the absolute right under Rule 164, Tex.R.Civ.P (1967), to take a non-suit of his action at any time before the decision is announced in a non-jury proceeding. However, once a claim for affirmative relief has been filed by an adverse party, plaintiffs right to move for dismissal is limited to his cause of action and the plea for affirmative relief is unaffected by the voluntary taking of the non-suit. Smith v. State, 388 S.W.2d 291 (Tex.Civ.App., Houston 1965, writ ref'd n. r. e.); 4 McDonald, Texas Civil Practice, Section 17.16.3 (1971). This rule has been expressly held applicable to a plea of intervention. State v. Roberson, 409 S.W.2d 872 (Tex.Civ.App., Tyler 1966, no writ).

The trial court did not err in overruling appellant’s plea of privilege to the plea of intervention filed by appellee. The judgment is affirmed.

      . The two stock certificates are for fifteen shares; however, it is undisputed that Bank • has split its capital stock three for one.


source: Caselaw Access Project

author: BREWSTER, Justice.

license: Public Domain

text:
    Clyde TABOR, Appellant, v. Gerald Thomas RAGLE, d/b/a E & R Enterprise, Appellee.
    No. 17640.
    Court of Civil Appeals of Texas, Fort Worth.
    July 25, 1975.
    Rehearing Denied Sept. 12, 1975.

      Garrett, Burkett & Bodoin, and Robert R. Bodoin, Fort Worth, for appellant.
    King & Massey, Inc., and Marion L. Massey, Fort Worth, for appellee.
   OPINION

BREWSTER, Justice.

The trial court in a non-jury trial rendered judgment decreeing that plaintiff, Gerald Thomas Ragle, d/b/a E & R Enterprise, recover from the defendant, Clyde Tabor, the sum of $6,800.00 and this appeal is brought by Tabor from that decree.

The parties to the suit had signed the following written agreement on or about September 20, 1972:

On March 1, 1978, William David Elam assigned his interest in the contract to his former partner, Gerald Ragle, the plaintiff.

When the contract was executed on September 20, 1972, the buyers therein, Ragle and Elam, paid to the seller, Tabor, the $5,000.00 down payment therein provided for, and six months later they paid Tabor the semi-annual interest payment therein provided for totalling $1,800.00.

The contract obligated the parties to the contract to close the deal one year later, on September 20, 1973. Tabor (seller) went to the title company offices where the deal was to be closed prior to closing date and executed the necessary closing papers including the deed and left them with his representative at the title company. On about the same date Ragle (buyer) went to the title company office and signed and left with the same person at the title company the note and deed of trust provided for in the contract and he also delivered to the title company a check for $1,885.52 for the interest due under the contract plus closing costs. The cheek was drawn on a Weather-ford bank and there were insufficient funds in the account at the time it was executed to pay the check. The buyer testified that he had made arrangements with the president of the Weatherford bank to clear the check when it was presented for payment. The check was mailed to the bank and the bank still would not pay it because the funds in the account oh which it was drawn were insufficient to cover the check.

The seller, Tabor, had the title company keep trying to collect the check until September 28, 1973, at which time he had Mrs. Yiva Puckett at the title company, who was handling the deal for the seller, write a letter to the buyer, Ragle, advising him that the contract was being forfeited by the seller because the Weatherford bank on which buyer’s check was drawn advised the title company that the account on which buyer’s check was drawn did not have enough funds in it to cover the check.

On closing date of September 20, 1973, buyer’s account was overdrawn by $6,200.57.

Later on October 17, 1973, the buyer, Ragle, came to the title company office and presented Viva Puckett with a cashier’s check for the amount of $1,885.52, the amount due on the contract as of September 20, 1973. Mrs. Puckett took the check but told Ragle she could not go ahead and close the deal out unless he could work something out with Mr. Tabor. Tabor refused to accept this check and to go through with the deal. The seller and his agents have never tendered a deed to the buyer. Ragle requested the deed when he delivered this cashier’s check, but seller refused to deliver it.

In his trial pleading Ragle (the buyer) alleged that the contract involved was unenforceable because it did not comply with the statute of frauds in that the property description as contained therein was insufficient. He prayed for judgment for the recovery of the $6,800.00 consideration that he had paid under the contract to Tabor.

In the seller’s trial pleading he also alleged that the contract did not satisfy the requirements of the Statute of Frauds (Art. 3995, V.A.T.S.) and asked that plaintiff be denied a recovery in the case.

The trial court concluded that the contract that is the basis of the suit is unenforceable under the statute of frauds because of an inadequate property description.

No one questions that ruling on this appeal.

From the record before us it is apparent that the trial court reached a decision in this case by the following reasoning: the contract forming the basis of this suit was a real estate sales contract; since it did not so specify, the times specified therein for performance were not of the essence; the question of whether the buyer paid the $1,885.52 within a reasonable time of the date set for dosing was a fact question to be determined by the trial court; that since the trial court decided that issue in the buyer s favor, the buyer is not in default of the contract; the seller has never tendered a deed and has refused to perform; as early as September 23, 1973, the seller advised the buyer that the contract was forfeited; and under those facts the trial court has reasoned that the buyer is entitled to recover the amount of the purchase price of the land that he has paid to the seller.

We affirm.

For convenience, we will hereinafter refer to appellant Tabor as seller, and to appellee Ragle as buyer.

Seller’s first point of error is that the trial court erred in holding that time was not of the essence in performing the contract in that the contract involved is clearly an option contract in which contracts time for performance is of the essence.

Vie overrule this point of error.

In an ordinary contract for the conveyance of real estate, in which the purchase money is to be paid at a later day, time is not of the essence unless the contract clearly so states, or the intent that it shall be clearly appears from the terms of the contract. But if the contract involved is an option contract, giving a party an option to acquire a right by doing a certain thing within a specified time, then time is essential and in order to secure the right the party must comply within the specified period. Johnson v. Portwood, 89 Tex. 235, 34 S.W. 596 (1896); Gala Homes, Inc. v. Fritz, 393 S.W.2d 409 (Waco Tez.Civ.App., 1965, ref., n. r. e.); and Smith v. Warth, 483 8.W.2d 834 (Waco Tex.Civ.App., 1972, no writ hist.).

The seller’s contention is that the contract involved in this ease was an option contract, as distinguished from a contract to convey realty, and that because it was an option contract, the trial court erred in holding that the time specified therein for buyer to pay his money was not of the essence.

In drawing the contract in this case on® of the Texas Standard Sale Contract forms was used. One sentence of the contract read: “Should the Purchaser fail to consummate this contract as specified for any reason, except title defects, Seller shall have the right to retain said cash deposits as liquidated damages for the breach of this contract.” In the printed form used the sentence just referred to also contained the following language: “And shall pay to Ag*ent therefrom the sum of $ or Belle? may enforce specific performance of this contract.” Before the contract was signed by the parties someone had taken a typewriter and, using the hyphen mark, had marked through the last part of the sentence that is last quoted above.

The seller’s contention is that when the part of the sentence just referred to, providing that seller can get specific performance of the contract, was xed through that the legal effect of the deletion was to change the contract from one to convey real estate into an option contract.

The test for determining whether the contract involved here is an option contract or is one for the sale of real estate is set out in Gala Homes, Inc. v. Fritz, supra, as follows: “Whether the seller has the mandatory obligation to accept the sum stipulated to be liquidated damages in lieu of the purchaser’s further liability, thereby relieving the purchaser of obligation to pay the purchase price, is the established test in Texas for determining the nature of the contract as constituting, or not, an absolute agreement of sale and purchase.”

In Paramount Fire Ins. Co. v. Aetna Casualty & Surety Co., 163 Tex. 250, 353 S.W.2d 841 (1962), the court held that whether there is a provision in the contract that the seller must accept the stipulated fund “in full settlement of the buyer’s liabilities for default” is the determining factor and that in the absence of such a provision the nature of a contract as one of sale is not altered.

In Texas the general rule is that if one party to a contract for the sale of real estate breaches ⅛ the other party, be he the seller or the buyer, can enforce specific performance. 59 Tex.Jur.2d, “Vendor and Purchaser,” § 510, p. 57.

In the case before us, after the deletion above referred to, the rest of the contract is silent as to whether or not the seller had the right of specific performance in the event of a breach by the buyer. The contract involved contains no provision that the vendor must accept the liquidated damages sum in full settlement of the buyer’s liability for default.

On applying the tests laid down in the Paramount Fire Ins. Co. case and the Gala Homes, Inc., case, both supra, we can reach no conclusion except that the contract involved here was a contract for the sale of real estate. The contract involved here did not contain a provision requiring that the vendor must accept the liquidated damages sum in full settlement of the buyer’s liability for default.

In the event of a breach a party to a contract can pursue any remedy which the law affords in addition to the remedy provided in the contract, unless the contract declares the remedy to be exclusive. Jensen v. Sire, 137 Mont. 391, 352 P.2d 263, 84 A.L.R.2d 317 (1960).

Some jurisdictions in determining the remedies available to contracting parties in the event of a breach apply the following rule: the mere fact that a contract provides a particular remedy does not necessarily mean that such remedy is exclusive of others afforded by law, but rather that the question of exclusiveness turns upon the intention of the parties as revealed by the language of the contract as a whole, the specific provisions relating to the remedy, and all the facts of a particular case, such as the background of the contract when executed, the conduct of the parties, and the nature of the subject matter involved. See 84 A.L.R.2d 324, “Contractual Remedy —Exclusiveness,” and cases there cited.

The contract involved in this case did not provide that seller did not have the remedy of specific performance.

The testimony in this case showed that the seller requested the title company employees to draw up the contract involved. The trial court found that the seller did not instruct anyone to delete from the contract the proviso giving him the right of specific performance; that the seller did not know that the proviso had been deleted; and that the buyer did not know it had been deleted. The evidence in the case supported these findings.

If it can be said that the rule last referred to above is the law in Texas, we reach the same announced result that we reached by applying the tests laid down in the Paramount Fire Ins. Co. and Gala Homes, Inc. cases, supra.

The trial court by necessary implication found that the parties to the contract did not intend that the particular remedy provided for in the contract for vendor, in the event of a breach by vendee, be vendor’s exclusive remedy for such breach. Rule 299, T.R.C.P.

The fact that someone, without explanation in the evidence, and without the knowledge or request of any party, had hyphened out the proviso giving seller the remedy of specific performance, was a fact to be considered by the trial court, along with the other pertinent evidence in the case on the issue of the intention of the parties.

The evidence was sufficient to support the trial court’s implied finding that the parties intended that the contract provision relating to liquidated damages not be the vendor’s exclusive remedy for a breach of the contract by vendee.

We hold that the contract involved was a contract to convey realty, as distinguished from an option contract. Because of this the times therein specified for the payment by the buyer of his money were not of the essence. The trial court’s ruling so holding, that is complained of in seller’s first point of error, was therefore correct.

Seller’s second point of error is that the trial court erred in holding that Ragle’s payment of the $1,885.52 was within a reasonable time of the date contracted for closing. We overrule the point.

The contention therein made is actually that the evidence in the ease was insufficient to support the trial court’s finding to the effect that the payment was made within a reasonable time.

In the case of Ridglea, Interests, Inc. v. General Lumber Company, 848 S.W.2d 490 (Fort Worth Tex.Civ.App., 1961, ref., n. r. e.) the Court held that “reasonable time” is a relative term. Its meaning differs according to the circumstances of each particular ease.

In this ease the buyer testified that the bank president had told him that he would pay the check when it reached the bank through normal banking channels. The buyer knew that the seller’s representative had never deposited the check prior to September 28, 1973, for collection through normal banking channels. Then on September 28, 1973, the seller, through his agent, advised the buyer that the contract was forfeited. Since that time the seller has refused to go through with the contract and he has never tendered back to the buyer the sums that the buyer paid him under the contract and now refuses to return that money. On the other hand, the buyer, even after the alleged forfeiture of the contract by the seller, offered to comply with the contract.

We hold that under the facts of this case there was sufficient evidence to support the trial court’s finding that is complained of in seller’s second point of error.

The substance of seller’s third point of error is that the trial court erred in holding that he could not keep the money that buyer had paid Mm under the contract.

We overrule the point.

The controlling rule is stated in Campbell v. Fair, 82 S.W.2d 1038 (Texarkana Tex.Civ.App., 1935, no writ hist.), as follows: “The universal rule seems to be that a vendee may not recover of a vendor money paid as a part of the consideration for land purchased under a contract which is within the statute of frauds, unless he shows a tender of compliance on his part with the contract and a refusal of compliance on the part of the vendor.”

To the same effect is the holding in Cammack v. Prather, 74 S.W. 354 (Tex.Civ.App., 1903, no writ hist.).

All of the elements of the buyer’s cause of action that is here sued on, as they are shown to be in the two cases just cited, are present in this case.

Under the findings of fact, as made by the trial court, the buyer did not breach the contract, and has tendered performance, and the seller has refused to comply with the contract.

Under those circumstances the judgment for the buyer was correct.

Another case that supports our holding is MacLane v. Smith, 198 S.W.2d 493 (Fort Worth Tex.Civ.App., 1946, no writ hist.).

The judgment is affirmed.


author: PER CURIAM.

text:
    Marshall M. BYROM et ux., Appellants, v. The TEACHER RETIREMENT SYSTEM OF TEXAS et al., Appellees.
    No. 14998.
    Court of Civil Appeals of Texas, Austin.
    July 30, 1975.
    Rehearing Denied Aug. 13, 1975.

      Leslie E. Hudson, Pasadena, for appellants.
    John L. Hill, Atty. Gen., Bill Campbell, Asst. Atty. Gen., Austin, for appellees.
   PER CURIAM.

Appellant, Irene Byrom, executrix of the estate of Marshall M. Byrom, deceased, has filed with the Clerk of this Court a motion for extension of time within which to file the transcript in the above cause. On the same date, appellant tendered the transcript to the Clerk for filing. As we are of the opinion that appellant’s request of the district clerk that he prepare the transcript was not made within a reasonable time after entry of the judgment, we will overrule the motion.

The judgment was signed on May 9,1975. No motion for new trial was filed, and, therefore, the time for filing the transcript in this Court was July 8, 1975. Appellant’s counsel wrote the district clerk on July 19, 1975, requesting that a transcript be prepared. On July 23, 1975, and within the time permitted by Tex.R.Civ.P. 386, appellant filed the motion under consideration.

This Court is authorized by Rule 386 to extend the time for filing the transcript upon a showing of “good cause” why the transcript could not have been filed within the sixty-day period. The inability of the clerk of the trial court to prepare the transcript, because of the press of official business, has been held to constitute “good cause,”

In considering a motion for extension of time for the filing of the transcript, however, the preliminary question to be resolved is whether the request for the transcript was made within a reasonable time after entry of the judgment in the event no motion for new trial was filed. Patterson v. Hall, 430 S.W.2d 483 (Tex. 1968).

In her motion, appellant states, that on May 19, 1975, her counsel filed with the district clerk Notice of Appeal, which provided as follows:

NOTICE OF APPEAL
“TO THE DISTRICT CLERK OF TRAVIS COUNTY, TEXAS
“This petition being filed to affect [sic] notice as to the desire of the Plaintiff in the above styled and numbered cause to appeal the judgment of the Court to the Court of Civil Appeals, Third Supreme Judicial District, for adjudication upon all of the issues within the cause.
“Judgment of the District Court was signed and rendered on or about the 13th day of May, 1975.
“The names and addresses of all of the parties interested in the cause appear in said judgment.
“Please determine the amount of bond required and transmit same to this office.
“Respectfully submitted,
/s/ Leslie E. Hudson LESLIE E. HUDSON”

Appellant takes the position in the motion for extension of time that her Notice of Appeal should be construed as a request of the district clerk to prepare a transcript of all of the pleadings and orders in the cause, in compliance with Tex.R. Civ.P. 376. If the Notice of Appeal could be so construed, appellant then would argue that the failure of the district clerk to have prepared the transcript would be “good cause” for her failure to have filed the transcript within sixty days as required by Tex.R.Civ.P. 386.

Tex.R.Civ.P. 376 provides the appellant shall promptly file with the clerk of the trial court a written designation of the desired portions of the proceedings to be included in the transcript. Save Our City Organization of San Antonio, et al. v. Texas Highway Commission, et al., 521 S.W.2d 895 (Tex.Civ.App.1975, writ ref’d n. r. e.).

From our reading of appellant’s Notice of Appeal we conclude that the notice was not intended, and cannot serve, as a request for a transcript pursuant to Rule 376. The only service requested of the clerk was his determination of the amount of the appeal bond. Contrary to appellant’s position, we are of the opinion that the phrase, “ . . . for adjudication upon all of the issues within the cause,” contained in the Notice of Appeal, is an effort by appellant to indicate that the scope of appeal was not to be limited. Tex.R.Civ.P. 353(c). It is true that appellant’s Notice of Appeal does contain information and statements not usually found in such filings, but its mere unorthodoxy in no way qualifies it as a request for transcript.

The district clerk had no duty to prepare the transcript until directed in writing to do so. Tex.R.Civ.P. 376. The clerk did not receive such direction from appellant until after the expiration of sixty days from the entry of the judgment. The direction for the preparation of the transcript was not made within a reasonable time after the entry of judgment. Patterson v. Hall, supra.

Appellant’s motion for extension of time is overruled.

Motion overruled.

      . During the course of the proceedings below Marshall M. Byrom died, and pursuant to Texas Rules of Civil Procedure, rule 151, Irene Byrom, executrix of the estate of Marshall M. Byrom, deceased, appeared and prosecuted the suit.


author: STEPHEN F. PRESLAR, Chief Justice.

text:
    Julian G. CASTORENA et ux., Appellants, v. EMPLOYERS CASUALTY COMPANY, a corporation, Appellee.
    No. 6436.
    Court of Civil Appeals of Texas, El Paso.
    July 30, 1975.
    Rehearing Denied Sept. 3, 1975.
    Richard Yetter & Associates, P.C., Richard Yetter, Victor Arditti, El Paso, for appellants.
    Kemp, Smith, White, Duncan & Hammond, Jimmy C. Curtis, El Paso, for appel-lee.
   OPINION

STEPHEN F. PRESLAR, Chief Justice.

This is a suit brought by Appellants against their insurer under the uninsured motorist provision of a Texas standard automobile policy. The trial Court granted summary judgment for the insurer. It upheld a policy provision which voided coverage when settlement had been made with another without the prior written consent of the insurer. The judgment will be affirmed.

Appellants were two of four passengers in an automobile driven by one Gonzalez, which was involved in a collision with a car operated by one Miguel Colorado, an uninsured motorist. Uninsured motorist coverage on the Gonzalez vehicle was provided by Aetna Insurance Company. In consideration of the payment to them of $1,000.00, Appellants released Aetna Insurance Company. They then brought this suit against their own insurer, Appellee, Employers Casualty Company, under the uninsured motorist coverage of their policy.

The defense which the trial Court upheld was a provision of the policy:

“Exclusions. This policy does not apply under Part IY:
“(b) to bodily injury to an insured with respect to which such insured, his legal representative or any person entitled to payment under this coverage shall, without written consent of the company, make any settlement with any person or organization who may be legally liable therefor.”

It is undisputed that the release or settlement with Aetna was made without first obtaining the written consent of the Employers Casualty Company.

Under similar, but not identical, fact situations, it has been held that the insured is barred from recovery. Jessie v. Security Mutual Casualty Company, 488 S.W.2d 140 (Tex.Civ.App.—Fort Worth 1972, writ ref’d n. r. e.); Grissom v. Southern Farm Bureau Casualty Insurance Company, 476 S.W.2d 448 (Tex.Civ.App.—Waco 1972, writ ref’d n. r. e.); Stephens v. State Farm Mutual Automobile Insurance Company, 508 F.2d 1363 (5th Cir. 1975). The validity and legitimacy of this particular exclusion from uninsured motorist coverage were upheld by the above decisions. Such a clause is enforceable for the reason that it serves “to protect the company’s subrogation rights against the uninsured motorist or any other person legally responsible for the insured’s injuries.” Dairyland County Mutual Insurance Company of Texas v. Roman, 498 S.W.2d 154 (Tex.1973).

Appellants seek to escape the holding of the above cases on the basis that they did not settle with the driver of the automobile but only with his insurer; thus, they say, they did not settle with the person within the meaning of the clause “who may be legally liable therefor.” There has been no determination of the driver’s responsibility for Appellants’ injuries, but if he is liable Appellee is subrogated to Appellants’ rights against him. Aetna is obligated to defend the driver and pay within policy limits any judgment against Mm. There is a distinct difference between recovery against one who may be judgment proof and one backed by a solvent insurer. This is true because the recovery sought ⅛ in the form of money. Appellants’ release of Aetna, the one obligated to pay that money, is an impairment of their own insurer’s subrogation rights.

In the case of Bauer v. Consolidated Underwriters, 518 S.W.2d 879 (Tex.Civ.App.—Houston (1st Dist.) 1975, no writ), it was contended that the settlement was not with one who was “legally liable,” as used in this policy exclusion. The Court overruled the contention and enforced the policy exclusion saying:

“ * * ⅝ There is legal liability if there is an obligation established which would form the basis of a judgment. Fort Worth Cavalry Club, Inc. v. Sheppard, 125 Tex. 339, 83 S.W.2d 660 (1935).

In the case before us, if the driver was negligent, his tort, combined with Ms insurer’s policy obligation to pay for it, would establish an obligation which would form the basis of a judgment against the insurer. The insurer apparently recognized this for it paid $1,000.00 for the release. It strains credulity to think that such payment would be made if there was no liability. We hold, that within the meaning of the above clause, Appellants’ release of the insurer of the car in which they were passengers is a release of one who may be legally liable therefor. Such release precludes any recovery by Appellants.

The same fact situation as the case before us resulted in a summary judgment for the insurer in the case of Magness v. State Farm Insurance Co., Docket No. 1093 (Tex.Civ.App.—Houston (14th Dist.), December 18, 1974) (unreported). Under the authorities cited in this opinion, the exclusionary clause is valid and enforceable. It does not deprive an insured of the protection required by the Texas uninsured motorist statute. Tex.Ins.Code Ann. art. 5.08-1 (Supp.1967).

All points of error have been considered and all are overruled. The judgment of the trial Court is affirmed.


author: SHANNON, Justice.

text:
    F. E. HOLLOMAN, d/b/a F. E. Holloman Excavating Company, et al., Appellants, v. CITY OF GEORGETOWN, Texas, Appellee.
    No. 12238.
    Court of Civil Appeals of Texas, Austin.
    July 30, 1975.
    Rehearing Denied Sept. 10, 1975.

      Tom Joseph, Ban Antonio, for appellants.
    Douglass D. Hearne, Stayton, Maloney, Hearne & Babb, Austin, for appellee.
   SHANNON, Justice.

This is an appeal from the judgment entered by the district court of Williamson County in favor of appellee, the City of Georgetown, Texas, for $69,526.28. Appellants are F. E. Holloman, doing business as F. E. Holloman Excavating Company and Millers Mutual Fire Insurance Company of Texas. We will affirm the judgment of the district court.

In his trial petition Holloman alleged that the City advertised for sealed bids for certain sanitary sewer improvements to be constructed in Georgetown. He submitted a written bid to do the work and furnish the materials for $137,174.75. The City accepted the bid and Holloman entered upon the construction of the improvements. The contract was to be completed in April of 1972.

Holloman pleaded that after the job was underway he discovered that the City’s plans and specifications were incorrect with respect to the quantities of rock required to be excavated. Those plans and specifications stated that the amount of rock to be excavated was 1200 cubic yards whereas, according to Holloman, the amount to be excavated exceeded 8900 cubic yards.

In addition to the greater quantity of rock, Holloman stated that he encountered large amounts of underground water. By reason of the difficulty in excavating the rock and in removing the water, the excavation was “slow and exceedingly expensive.” Holloman requested and received permission of the City to extend the time for completion of the contract until November 26,1972. Holloman pleaded additionally that he notified the City that he would need even a longer period of time than November 26. He claimed that in October or November of 1972, he notified the City that a renegotiation should be had upon the bid price for rock excavation over the amount of 1500 cubic yards upon the basis of $35.00 per cubic yard.

Holloman averred further that the City’s agent wrote the City recommending that on November 26, the City declare the project abandoned, that the City take over Hollo-man’s equipment, and that Holloman not be paid on his monthly estimate number six. Holloman pleaded that on November 17, he learned that the contract had been terminated at the city council meeting on the preceding evening. On November 20, 1972, Holloman handed to appellee’s city manager his proposal to renegotiate the excavation of the rock. According to Holloman, the city manager advised Mm that the city council had voted to terminate the contract and to pay Mm the balance due him.

Acting upon such information, Holloman claimed that he proceeded to remove the workmen from the project and most of his equipment.

Holloman alleged that the City breached the contract, and prayed for compensatory damages in the sum of $88,150.16, for exemplary damages in the sum of $50,000.00, and for attorney’s fees in the sum of $10,000.00.

The City answered and filed a cross-action. The City pleaded that the contract “was repudiated and breached” by Hollo-man on November 20, 1972, when he refused to prosecute the job further unless the City agreed to renegotiate the contract. The terms of the contract, the City claimed, were clear and unambiguous, and did not require it to agree to any renegotiation because of any inaccuracies in the estimate submitted in its proposal.

In its cross-action the City pleaded the contract, under the terms of which Hollo-man was required to complete the work in April of 1972. Despite several extensions of time granted by the City, by November 20, 1972, the City was notified by its engineer that judging by the rate of past progress that it would take about 814 more calendar days for Holloman to complete the job and advised the City that no more extensions of time should be granted. Also on November 20, 1972, the City was informed that Holloman would continue on the job only if the rates for the excavation of the rock were renegotiated.

The City pleaded that “faced with Hollo-man’s ultimatum,” it notified Holloman that the contract was declared breached. Thereafter the City entered into a contract with Roy Krienke for the completion of the job. Krienke immediately began work on the project which was finished in December, 1978.

The City pleaded finally that it had suffered damages in the amount of $69,524.61, which sum was the difference between the total construction cost less the cost of the project had Holloman performed under the contract, increased by the “reasonably foreseeable” consequential damages. The City also sought recovery of $10,000.00 as reasonable attorney’s fees.

The case was submitted to the jury by sixteen special issues. In answering those issues the jury failed to find (1) that the City terminated the contract as of November 26, 1972; (2) that the City had wrongfully withheld certain of Holloman’s equipment; and (8) that the City had willfully made a claim against Holloman’s bonding company. The jury answered affirmatively (1) that Holloman abandoned the contract with the City; (2) that he failed to provide sufficient workmen and equipment to complete the work called for under the contract by November 26, 1972; and, (8) that there were defects in the lines and the “lift station” which had been installed by Holloman.

With respect to the damages issues, the jury answered that the remaining balance due Holloman by the City for labor performed and materials furnished to November 20, 1972, was $3,718.54. The amount that Holloman would have earned under the contract, had he completed it was $161,-226.35, and the amount which the City was reasonably required to spend in completing the contract, excluding those amounts expended for the reasonable and necessary inspection and repairs of the materials and equipment installed by Holloman was §136,-376.60. The jury answered further that the amount the City was reasonably required to spend in inspecting and repairing the defects in the lines and lift station was §15,-496.53. The jury answered, in addition, that the City had incurred the total sum of $22,918.21 for additional engineering costs, interest, and attorney’s fees "to make good” the failure of Holloman to perform the contract.

Based upon the jury’s verdict, judgment was entered for the City for §58,946.23. The judgment recited that sum represented the City’s cost of completing the contract over and above the cost to the City had Holloman performed, including additional interest and engineering expenses, less the amount of offsets to Holloman as determined by the jury.

Holloman complains of the judgment by fifteen points of error. No effort will be made to discuss those points of error in the order of their appearance in the briefs.

Holloman’s claimed right of renegotiation was grounded upon General Provision 5.02 of the Specifications. That provision reads as follows:

"Changes and Increased or Decreased Quantities of Work:
“The Owner shall have the right to make such changes and alterations in the Plans or in the quantities of work as he may consider necessary or desirable, and such changes and alterations shall not be considered as a waiver of any condition of the Contract, nor shall they invalidate any provision thereof. The Contractor shall perform the work as increased or decreased, and no allowance will be made for anticipated profits.
“Payment to the Contractor will be made for the actual quantities of work done and materials furnished at the unit prices set forth in the Contract, except as follows:
“When the total cost of work to be done or of materials to be furnished is more than one hundred and twenty-five per cent (125%) of the total Contract Price stated in the proposal.
“When the total cost of work to be done or of materials to be furnished is less than seventy-five per cent (75%) of the total Contract Price stated in the proposal, then either party to the Contract, upon demand, shall be entitled to a revised consideration on the work actually done.
“Eevised consideration shall be determined by supplemental agreement between the parties which supplemental agreement shall be included with and shall become a part of the Contract.”

The City maintained that General Provision 5.02 was “voided and replaced” by the following Special Provision:

"Increased or Decreased Quantities of Work:
Paragraph GP5.02, Section 5, Part II, General Provisions is hereby voided and replaced with the following:
“The owner shall have the right to make such changes and alterations in the plans or in the quantities of work as he may consider necessary or desirable, and such changes and alterations shall not be considered as a waiver of any condition of the contract, nor shall they invalidate any provision thereof. The contractor shall perform the work as increased or decreased, and no allowance will be made for anticipated profits.”

After the close of the evidence the court ruled, as a matter of law, that the above quoted Special Provision superseded General Provision 5.02. That ruling is the genesis of several of Holloman’s points of error. Holloman says that the existence of the General Provision and the Special Provision in the contract rendered the contract “. . . ambiguous as a matter of law and should have been submitted to the jury for fact finding.” Holloman says further that it follows that the court in refusing to submit his requested special issue number two, inquiring whether Holloman under the terms of the Sanitary Sewer Contract, was entitled to a renegotiation of Item 16, ‘Rock Excavation’ Finally, in this connection, Holloman claims that the ruling of the court amounted to an enforcement of “an illegal contract” against him.

To read General Provision 5.02 and the above quoted Special Provision is to conclude that the contract was not ambiguous. The Special Provision plainly states that it “replaces” the indicated part of General Provision 5.02. Because the contract was not ambiguous, it follows that the court did not err in refusing to submit requested special issue number two.

The contract is “illegal,” says Hollo-man, because the quoted Special Provision is contrary to Tex.Rev.Civ.Stat.Ann. Art. 2368a. Holloman makes no reference to an assignment of such an error in the amended motion for new trial. A reading of the amended motion for new trial shows no assignment of error that the contract was in violation of Art. 2368a. As the error was not preserved in the amended motion for new trial, it was waived and will not be considered. Tex.R.Civ.P. 320, 324, and 374. St. Louis Southwestern Railway Company v. Gregory, 387 S.W.2d 27 (Tex.1965).

By further point of error Holloman claims that the court erred in excluding from evidence that part of the contract which pertained to federal participation in the project. Holloman says that the court’s exclusion of that portion of the contract and “evidence pertaining thereto” served to eliminate the necessity for the City to fully prove its damages. In this connection Hol-loman takes the position that he had the right to fully develop before the jury that the United States government paid for a portion of the construction project, and to show that the government did not require repayment by the City.

The district court did not err in excluding the evidence of federal participation in the project. That evidence was immaterial and irrelevant since a contractor who breaches a federally funded contract is not insulated from liability for damages to the owner to the extent of federal participation. The possibility of a windfall to the owner is a matter solely between the owner and the United States government and is of no concern of the breaching contractor.

In his point of error five Holloman claims that the court erred in refusing to submit to the jury his requested special issue number one. That special issue read: “Do you find from a preponderance of the evidence that F. E. Holloman, in reliance that his contract had been terminated by the City of Georgetown, began moving his equipment from the job site on November 20, 1972?”

Appellant had the burden of drafting the requested special issue in substantially correct form. Jones v. Rainey, 168 S.W.2d 507 (Tex.Civ.App.1942, writ ref’d). Tex.R.Civ.P. 279, Hodges, Special Issue Submission in Texas. Holloman’s requested special issue was not in “substantially correct” form because it assumed a controverted fact, that being that the contract was terminated by the City. Texas State Optical v. Caylor, 387 S.W.2d 461 (Tex.Civ.App.1965, writ ref’d n. r. e.). As previously stated, that controverted fact was submitted in special issue number one, and was found not to exist.

In points six and eight, Holloman complains that the answers of the jury to special issues one and eight are “so contrary to the overwhelming weight and preponderance of the evidence as to be clearly erroneous.” As will be remembered, in response to special issue number one, the jury failed to find that the City had terminated the contract on November 16, 1972, and in response to special issue number eight the jury answered affirmatively that Holloman abandoned the contract with the City.

It was Holloman’s position that the City terminated the contract, and that the termination was accomplished during the evening of November 18, at the regular meeting of the council. Holloman called Andy Welch, a news director of a radio station in Georgetown who was present at the council meeting. From Welch’s testimony the jury could have concluded that the council voted to terminate the contract or at least it voted to advise the City Attorney to begin whatever steps were necessary to get rid of Holloman and the contract. Holloman testified that he visited with the city manager on November 20, and asked him if the contract had been terminated. Holloman testified, at least one time, that the city manager told him that the contract had been terminated as of November 26. Holloman also claimed that he was told by the city manager that he could remove his equipment and that the council had voted to pay him. The city manager replied that, though he vaguely recalled Holloman’s visit, he could not recall any discussion about termination of the contract.

The City claimed that the facts were that the council did not terminate the contract on November 16, but instead asserted their intention to require Holloman to finish the called-for work by November 26. The council chose not to grant Holloman any more extensions of time to complete the contract. The minutes of the council meeting show that the council intended to hold Holloman and the bonding company to their responsibilities under the contract. The City did nothing, however, that would have prevented Holloman from continuing the work until November 26.

All work on the project stopped by November 20, six days before the date of the scheduled completion. Holloman gave notice to the City that he intended to remove his equipment from the project and he ceased operations.

Holloman took a position inconsistent with the contract as early as November 18, when he told the city manager and two engineers that he could not continue on the job unless the price for excavation of rock was renegotiated. That thought was contained in a letter written by Holloman and dated November 20, which the City regarded as tantamount to an “ultimatum” that Holloman was willing to proceed with the project only if there was a renegotiation.

We have examined the evidence and have concluded that the answers of the jury to special issues one and eight are not so contrary to the great weight and preponderance of the evidence as to be clearly wrong.

Point of error number nine which reads, “The trial court erred in submitting special issue no. 9” is not in compliance with Tex.R.Civ.P. 418 inasmuch as it does not direct the attention of the court to any particular error relied upon. Missouri-Kansas-Texas Railroad Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 981 (1956).

We, nevertheless, have read the argument under point of error number nine and have found the basis for the point to be that there were no pleadings to support its submission. Special issue number nine inquired whether Holloman failed to provide sufficient workmen and equipment in order to perform and complete the work called for under the contract. General Provision 8.10 of the contract is concerned with “Abandonment of Work or Default of Contract.” On ground for abandonment given in General Provision 8.10 is the failure on the part of the contractor “to perform the work with sufficient workmen and equipment.”

In response to special issue number eight the jury answered that Holloman abandoned his contract. The jury’s answer to special issue number eight is sufficient basis for the judgment without regard to special issue number nine.

With respect to Holloman’s complaint that there was no pleading to support the submission of special issue number nine, we have examined the City’s trial pleading. In its cross-action, the City pleads the contract and, in effect, makes the contract a part of its pleading “for all purposes.”

Holloman’s tenth point of error is that the jury’s answer to special issue number eleven concerning the amount of money reasonably incurred by the City in completing the contract is “so contrary to the overwhelming weight and preponderance of the evidence as to be clearly erroneous.” Under that point Holloman says that the substitute contractor, Krienke, was paid for work already done by Holloman and that Krienke “inflated” charges to the City which were neither reasonable nor authorized under the contract. We have examined the statement of facts and have concluded that the answer of the jury to special issue number eleven is not so contrary to the great weight and preponderance of the evidence as to be clearly wrong.

In points of error number eleven and thirteen Holloman complains that, as a matter of law, interest and attorneys’ fees are not proper elements of recovery in cases of this character. Holloman has waived any error in this connection in that the amended motion for new trial contains no such assignment of error. The only assignment of error in the amended motion for new trial complains of the insufficiency of the evidence of the jury’s answers respecting interest and attorneys’ fees.

We have discussed those points of error which we view as controlling. We have considered those remaining, and find them to be without merit. The judgment is affirmed.


text:
    AMERICAN CAPITOL INSURANCE CO., Appellant, v. KARNES COUNTY SAVINGS & LOAN ASSOCIATION et al., Appellees.
    No. 15436.
    Court of Civil Appeals of Texas, San Antonio.
    July 30, 1975.
    Rehearing Denied Sept. 10, 1975.

      Waitz, Bretz & Collins, San Antonio, for appellant.
    Scarborough, Roberts, Busselman & Berry, Kenedy, for appellees.
   BARROW, Chief Justice.

Appellant, formerly Columbia Life Insurance Company, has perfected its appeal from a judgment which made final a partial summary judgment granted appellees, Karnes County Savings and Loan Association and Mary L. Colvin, Individually and as Independent Executrix of the Estate of James T. Colvin, Deceased. Appellees brought suit to recover on a policy of group credit life insurance issued by appellant to Karnes County Savings and a certificate issued pursuant thereto in the face amount of $10,000.00 on the life of James T. Colvin. A partial summary judgment was granted Karnes County Savings, as creditor-beneficiary, for the face amount of the certificate plus the statutory penalty of $1,200.00. Judgment was also entered after a non-jury hearing whereby Mrs. Colvin recovered the sum of $1,233.78, for tortious breach of contract and appellees jointly recovered attorneys’ fees in the amount of $4,500.00.

On May 26, 1972, appellant issued a master policy of group credit life insurance in favor of Karnes County Savings and appointed lola A. Young, an assistant vice-president of Karnes County Savings, as its issuing agent. On September 27,1972, Mrs. Young issued a certificate of insurance to James T. Colvin in the amount of $10,-000.00. On February 24, 1973, Colvin died of a heart attack and claim was subsequently made on the certificate by Karnes County Savings as creditor-beneficiary. The claim was rejected by appellant on the ground that Colvin was not an “eligible borrower” within the terms of the master policy at the time the certificate was issued.

Both parties moved for a summary judgment. Appellant asserted that Colvin was not an eligible borrower under the terms of the master policy. Appellees contended that Colvin was an eligible borrower under the plain and unambiguous language of the policy. They urged in the alternative, that if the definition is ambiguous, it should be construed against the insurer; or, in any event, appellant waived its right to contend Colvin was not an eligible borrower. The trial court concluded that Colvin was an eligible borrower under the plain and unambiguous definition in the policy and accordingly granted appellees a partial summary judgment.

The master policy defines the term “borrower” as one who is indebted to the association for an eligible loan indebtedness. “Eligibility of Borrowers” is defined as follows:

“A. Present Borrowers as of This Date:
To be eligible, a borrower must be within the age limits provided for in the Schedule of Insurance attached on Creditor’s Application. Eligible present borrowers in apparent good health are each eligible only for insurance hereunder, as to their present loans not in default on the effective date of this group policy and for exactly seven (7) days thereafter. All such eligible borrowers shall also be eligible for insurance thereafter on the date they become a debtor of a loan which renews, extends, or replaces a present loan which is not in default.
B. New Borrowers
Eligible new borrowers who are in apparent good health shall be eligible for insurance hereunder on the date they become borrowers, or become a debtor of a loan which renews, extends, or replaces a loan which is not in default.”

The summary judgment record establishes that Colvin was a “present borrower” on the effective date of the group policy in that he was indebted to Karnes County Savings on a home loan executed in 1968. On the effective date of the master policy (May 26,1972), he still owed over $11,000.00 on this loan and he was never in default on this loan prior to his death.

Appellees urge, and the trial court concluded, that all borrowers who were not in default on the effective date of the master policy, and not in default for seven days thereafter, were eligible “present borrowers” and remained so while the master policy was in effect. On the other hand, appellant asserts that the definition of “present borrowers” establishes an enrollment period of seven days after the effective date of the master policy for a borrower whose loan was not in default.

Article 3.53, Section 5 of the Tex.Ins.Code Ann. (Supp.1975) authorizes an insurer writing a group policy of credit life to establish an enrollment period. While the sentence structure of the definition of eligible “present borrower” leaves much to be desired, the term is meaningful only when construed in the manner urged by appellant. Other definitions in the master policy of “eligible borrowers,” whether the debtor be a “new borrower” or one renewing, extending or replacing an old loan, require that the debtor not be in default. To permit a “present borrower,” who was not in default on May 26, 1972, or for seven days thereafter, to be eligible for coverage at any subsequent time, irrespective of whether his loan was then in default or not, would be inconsistent with the obvious intent and other eligibility requirements of the master policy. Particularly is this so since monthly payments by the debtors are contemplated.

With the exception of the seven-day enrollment period, the master policy involved herein is very similar to that considered by the Supreme Court in Republic National Life Insurance Company v. Spillars, 368 S.W.2d 92 (Tex.1963). The undisputed evidence established that J. D. Spillars was a debtor of the Farmers State Bank on the effective date of the master contract entered into between Bank and the insurer, but his name was not included as one of the debtors to be initially insured as required by the master contract. However, a certificate of insurance was issued to him about six months later. In denying coverage, the Supreme Court said:

“The master policy imposes two conditions precedent, either one of which must be met before insurance coverage can exist. The conditions are: (1) J. D. Spil-lars must have been initially insured as a debtor on the effective date of the policy; or (2) at the time of the execution of the note on December 23,1960, he must have incurred a new debt and procured insurance coverage. Since J. D. Spillars was not initially insured, the creation of a new debt in order to support a status of a new debtor is the foundation upon which the eligibility of Spillars for insurance must stand or fall.”

Since Spillars was not an eligible borrower, coverage was denied and a take-nothing judgment rendered by the Supreme Court. The question of waiver was not considered by the Supreme Court.

The master policy issued Karnes County Savings provides three conditions precedent for eligibility: (1) a present borrower not in default must have been initially insured on May 26,1972, or within seven days thereafter; (2) he must have incurred a new debt which was not in default; or (3) he must have renewed, extended or replaced an original loan which was not then in default. The summary judgment record establishes that Colvin vías indebted to Karnes County Savings on the effective date of the policy. This debt was not renewed, extended or replaced on September 27, 1972, when the certificate of insurance was issued Colvin. He, therefore, was not an “eligible borrower” within the clear and unambiguous language of the master policy at that time. See also Pope v. American National Insurance Company, 443 S.W.2d 377 (Tex.Civ.App., Tyler 1969, writ ref’d n. r. e.).

Appellees urge that in any event appellant waived this condition precedent for eligibility by issuing certificates to Colvin and several other “present borrowers” more than seven days after the effective date of the master policy. This situation apparently arose because of a change of insurers by Karnes County Savings. Karnes County Savings had been insured through two other companies prior to securing the master policy from appellant, but these companies limited their coverage to a maximum of $5,000.00. On the effective date of the issuance of appellant’s master policy, Colvin was covered through each of these companies with a $5,000.00 certificate. Rather than cancel these policies on a short-term basis, they were kept in effect and when they expired in September of 1972, Mrs. Young issued appellant’s certificate to Col-vin. Mrs. Young was the agent in this transaction for both Karnes County Savings and appellant. There is no showing that Colvin, whose monthly payments to Karnes County Savings included a charge for credit life insurance, even knew of the change of insurers. His certificate did not include the definition of an “eligible borrower.”

The rule is settled that while waiver and estoppel may operate to avoid a forfeiture of a policy, they have consistently been denied operative force to change, re-write or enlarge the risks covered by a policy. Thus, waiver and estoppel cannot create a new and different contract with respect to risks covered by the policy. Scott v. Industrial Life Ins. Co., 411 S.W.2d 769 (Tex.Civ.App., Dallas 1967, no writ); Great American Reserve Ins. Co. v. Mitchell, 335 S.W.2d 707 (Tex.Civ.App., San Antonio 1960, writ ref’d).

Colvin met all the terms and provisions of his certificate and of the master policy save and except the requirement that his original loan, which was not in default, was not extended, renewed or replaced. There is no contention that appellant could not have knowingly waived this condition precedent so as to cover Colvin who was otherwise eligible in all respects. Such a waiver would not have enlarged the risks covered by the policy. Colvin was a debtor of Karnes County Savings whose loan was not in default; he was within the applicable age limits; and he was in apparent good health. This was the risk insured by appellant for which the premium was paid. See Republic Ins. Co. v. Silverton Elevators, Inc., 493 S.W.2d 748 (Tex.1973).

The meager summary judgment evidence on this issue does not establish or rule out waiver as a matter of law. It was not established that any officer of appellant knew prior to Colvin’s death that Colvin or any of the other “present borrowers” who were subsequently issued certificates by Mrs. Young were not then eligible borrowers within the definitions in the master policy. It was not established that there was any discussion or agreement between Karnes County Savings and appellant regarding “present borrowers” who had credit life certificates with the prior insurers. Therefore, a summary judgment was not proper for either party on appellees’ plea of waiver.

The judgment of the trial court is reversed and the cause remanded for a trial on the merits. The costs herein are taxed against appellees jointly.

KLINGEMAN, J., not participating.

      . “Sec. 5. Term of Credit Life Insurance and Credit Accident and Health Insurance. —The term of any credit life insurance or credit accident and health insurance shall, subject to acceptance by the insurer, commence on the date when the debtor becomes obligated to the creditor, except that, where a group policy provides coverage with respect to existing obligations, the insurance on a debtor with respect to such indebtedness shall commence on the effective date of the policy or the date of enrollment for coverage under the group policy, whichever is later.”


author: ROBINSON, Justice.

text:
    SOUTHWESTERN PUBLIC SERVICE CO., Appellant, v. Ellzey D. VANDERBURG et al., Appellees.
    No. 8518.
    Court of Civil Appeals of Texas, Amarillo.
    July 31, 1975.

      Lemon, Close, Atkinson & Shearer, Otis C. Shearer, Perryton, for appellant.
    Morrison, Cross & Edmonds, John E. Morrison, Jr., Borger, T. D. Sansing, Spearman, for appellees.
   ROBINSON, Justice.

Appellant, Southwestern Public Service Co., condemned an easement in 4.85 acres of land consisting of a 40-foot strip a mile in length along the west side of the farm belonging to Ellzey D. and Charlotte Yan-derburg. The easement is for the purpose of erecting and maintaining eight- two-pole unguyed structures, commonly known as “H-frames”, to support electrical transmission lines and other devices. Judgment on the jury verdict was entered for appellees, the Vanderburgs and their tenant Newell Allen, for $13,649.75. Reversed and remanded.

Appellant challenges the admission over objection of various items of evidence. It first complains of the admission of testimony about the death by electrocution of a teen-age boy who was rabbit hunting with two companions on nearby land. According to the testimony, a rabbit ran into a 80-foot irrigation pipe. The boy picked up the pipe which came in contact with an REA line. The force generated by the contact knocked the boy over a barbed wire fence and into a field. When his companions reached him, there was no pulse or breath. He was taken to the hospital where he was pronounced dead on arrival.

This incident occurred after the date of taking, and thus, could not have influenced market value on the date of taking. Since condemnor’s witnesses did not contend that the structures together with the power lines were not dangerous; the evidence was not proper rebuttal testimony on that point. The testimony should not have been admitted. E. C. Heddin et ux. v. Delhi Gas Pipeline Co., 522 S.W.2d 886 (Tex.1975).

Immediately following the testimony concerning the electrocution of the boy, appel-lees called an attorney who was not otherwise involved in the case, as a witness. This attorney identified a photocopy as a copy of Article 1436c as reflected in the pocket parts of Vernon’s Annotated Civil Statutes. Over objection, the photocopy was admitted in evidence and the attorney was permitted to testify to the law as it pertains to tort liability for personal injury.

Article 1436c restricts activity in the proximity of electrical lines having a voltage in excess of 600 volts. Because Article 1436c restricts the post-taking use of the property in question, it is relevant to post-taking market value. Witnesses may be interrogated concerning the effect on property value of restrictions on its use caused by a taking. In Texas Electric Service Co. v. Graves, 488 S.W.2d 135, 137 (Tex.Civ.App.—El Paso 1972, writ ref’d n. r. e.), the court held that it was within the trial court’s discretion to admit Article 1436c in evidence during the course of the trial.

In this case the objection to the admission of the photocopy was that it had not been proved up as provided by law. Appellant contends that the photocopy of the statute was not part of a book printed under authority of the state as provided in Article 3718 or a certified copy under the Seal of the Secretary of State as provided by Article 3719.

The courts of this State take judicial notice of the public statutes of this State. Southern Cotton Press and Manufacturing Co. v. Bradley, 52 Tex. 587 (1880); McNabb v. Taylor Oil Field Rental Co., 428 S.W.2d 714 (Tex.Civ.App.—San Antonio 1968, writ ref’d n. r. e.). Both the trial court and this court judicially know that the photocopy introduced in evidence correctly reflects the statute in question. See A. & M. College of Texas v. Guinn, 280 S.W.2d 373 (Tex.Civ.App.—Austin 1955, writ ref’d n. r. e.). Also, before the photocopy was offered, an earlier witness testified at length concerning the provisions of Article 1436c and, without objection, read the relevant portions of the statute to the jury. We conclude that the error, if any, in the admission of the photocopy of the pocket part of the statute book is harmless and was not calculated to cause the rendition of an improper judgment. We hold that the trial court did not err in refusing to instruct the jury to disregard any testimony concerning Article 1436c,

Nevertheless, it was error for the trial court to allow the attorney witness to testify to his conclusions concerning the landowner’s potential liability under Article 1436c for possible future personal injuries, his opinion concerning the application of the doctrine of negligence per se, and his opinion concerning the applicability of common law defenses including assumption of the risk. Opinions on questions of law should not be received in evidence. The trial judge can determine the questions of the law of this state without the aid of any witness. On mixed questions of law and fact, the jury after being instructed by the judge, can determine them equally as well as the witness. Adamson v. Burgle, 186 S.W.2d 388, 396 (Tex.Civ.App.—San Antonio 1945, ref’d w. o. m.).

In any event, in this case the question of potential liability growing out of possible future law suits growing out of possible future activities, is so speculative and conjectural that it should not be submitted to the jury and evidence concerning it should be excluded. In determining the admissibility of testimony on the question of value, the rule is that evidence concerning all such matters as suitability and adaptability, surroundings, conditions before and after, and all circumstances which tend to increase or diminish the market value should be admitted. Evidence relating to remote, speculative or conjectural injuries or uses which are not reflected in the market value on the date of valuation, should be excluded. State v. Carpenter et al., 126 Tex. 604, 89 S.W.2d 194, 200 (1936).

Applying this rule to the case before us, the trial court should not have permitted appellee to interrogate appellant’s expert witness concerning whether it would be prudent for a farmer who had electrical lines on his farm and who knew about the electrocution of the teen-age boy to carry liability insurance. On the other hand the trial court properly admitted evidence concerning the land’s before-taking adaptability for the construction and use of a tailwater pit and the effect of the construction of the power line on the feasibility of the use of the land for that purpose.

The evidence concerning the death of the teen-age boy, the testimony of the attorney concerning tort law and ultimate liability in future tort actions, and the interrogation of the witness concerning the advisability of securing liability insurance were each calculated to cause and probably did cause the rendition of an improper judgment. Therefore the judgment will be reversed and the cause remanded. Rule 434, Texas Rules of Civil Procedure.

Because of the remand we have considered each of appellant’s remaining points of error. We find no other reversible error. After considering all of the evidence, including that opposed to the verdict, we do not find that the jury’s answers to the special issues are so against the great weight and preponderance of the evidence as to be manifestly unjust.

The trial court did not abuse its discretion in admitting the valuation testimony of the landowner, Ellzey Vanderburg, and another area farmer, Ray Phelps. The objections to their testimony go to its weight rather than to its admissibility. Although Mr. Vanderburg should not have been permitted to state that no one would want to sell a strip of land of the size taken, his testimony by and large was admissible and the court properly refused to instruct the jury to disregard all of his valuation testimony on the strip taken. Guadalupe Valley Electric Coop., Inc. v. Towns, 397 S.W.2d 496, 498 (Tex.Civ.App.—Corpus Christi 1965). We do not find that the record bears out appellant’s contention that Vanderburg’s valuation testimony was not directed to the surface estate only. Nor do we find that the trial court limited appellant’s interrogation of Ray Phelps in such a way as to prevent cross examination concerning the basis of his valuation of the remainder.

Upon a retrial appellees’ counsel should not be permitted to state to a witness that it was the difference in value rather than the before and after value which was controlling. However, we do not find that the statement taken in the context of the record as a whole could reasonably be said to have affected the jury’s verdict in any way.

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


author: McDONALD, Chief Justice.

text:
    Garry Joseph DeGROOT, Appellant, v. Robert Charles HALL, Appellee.
    No. 5441.
    Court of Civil Appeals of Texas, Waco.
    July 31, 1975.
    Rehearing Denied Sept. 4, 1975.

      John R. Duren, B. C. Jones, Copperas Cove, for appellant.
    Mark S. Knapp, Copperas Cove, C. Stephen Allen, Waco, for appellee.
   OPINION

McDONALD, Chief Justice.

This case is before us on Writ of Error to a “Decree of Termination” rendered by default September 9, 1974, whereby the parent-child relationship between Garry Joseph DeGroot and his two children Garry Nicholas and Erick Michael was terminated.

On July 15,1974 Robert Hall, husband of the children’s mother, filed petition to terminate the parental rights between Garry Joseph DeGroot and his two children Garry Nicholas and Erick Michael. The petition alleged there was no court ordered relationships affecting the children, and that the father had failed to support the children for one year (ending within six months of filing of petition).

DeGroot was served in New Jersey on July 26,1974 (thus being required to answer by August 19,1974). He filed no answer by August 19, 1974, and the trial court heard the matter and rendered Decree of Termination on September 9, 1974.

Evidence adduced at the hearing reflects: Robert Hall is husband of the children's mother; is in the army; the children live in Hall’s home; that father of the children has not supported them for one year ending within six months of the filing of petition; that 45 days had elapsed since service on DeGroot,

Thereafter on September 27, 1974 De-Groot tardily filed answer alleging the Superior Court of New Jersey, Chancery Division, Bergen County created a conservator-relationship between him and his children which still subsists; that he has not failed to support the children; and prayed the parent-child relationship between him and his sons be not terminated.

In September 30,1974 DeGroot filed “Motion to Vacate” the September 9, 1974 Decree of Termination, alleging he had a valid defense as shown by his tardily filed answer. The trial court overruled the motion to vacate, but permitted movant to adduce evidence by Bill of Exception. Such reflects: Linda Anne Hall married DeGroot in New Jersey in 1966; divorced DeGroot in New Jersey in July 1978; was given custody of the two children ages 6 and 8; that DeGroot was given certain visitation rights and required DeGroot to pay child support, but she had not received any in more than a year; that she married Hall in August 1973; that she moved to Texas with Hall who is in the army; that she denied De-Groot’s request that the children visit him for one month as provided by the New Jersey court order; that she received an order from New Jersey Court in May 1974, enjoining her from filing petition in any court seeking to change the parent-child relationship of the children; that she had not filed any such petition; that the court in New Jersey did not instruct her not to move the children from New Jersey without the court’s permission; that DeGroot agreed to an adoption of the children by her husband but changed his mind; that the New Jersey Probation Department wrote her DeGroot wanted to know when the adoption was to take place so he would be relieved of support payments (which he was not making).

Petitioner invokes our appellate jurisdiction by writ of error to the September 9, 1974 judgment and contends:

1. The trial court erred in failing to exercise its discretion to hear his motion to vacate.
2. The trial court failed to consider that another court has continuing jurisdiction over the parties.
3. The trial court failed to consider that Hall perpetrated a fraud upon the court through obscuration of De-Groot’s meritorious defense.
4. The trial court failed to consider (De-Groot) was free of fault in suffering a default judgment.

On writ of error, any error in the judgment must be disclosed by the papers on file. Collins v. Collins, Tex.Civ.App., NRE, 464 S.W.2d 910; Mullen v. Roberts, Tex., 423 S.W.2d 576; McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706.

Section 15.02 of the Family Code provides “A petition requesting termination of the parent-child relationship with respect to a parent who is not the petitioner may be granted if the court finds that (1) the parent has: * ⅜ *. E. Failed to support the child in accordance with his ability during a period of one year ending within six months of the date of filing of the petition ⅜

Considering the record which is before us the evidence is ample to sustain a finding that DeGroot failed to support the children for one year ending within six months of the date of filing of the petition. Even though the trial court overruled the motion to vacate, it permitted movant to adduce evidence by Bill of Exception. Assuming without deciding that we may consider the evidence in The Bill adduced on the motion we cannot say the trial court abused its discretion in overruling the motion. Mrs. Hall testified the New Jersey court gave her custody, required DeGroot to pay child support, and provided for visitation by DeGroot with the children. But neither the judgment itself or the Statutes of New Jersey were introduced into evidence, which was DeGroot’s burden. From the record before us, the trial court was not required to find that New Jersey had continuing jurisdiction of Mrs. Hall and her children. In fact petitioner (DeGroot) in his brief says New Jersey’s continuing jurisdiction is based in part on its Statute, which is not in the Bill of Exception, and photocopy of the New Jersey decree which DeGroot relies on (and which is not in the Bill of Exception but is attached to petitioner’s brief) reflects it was not the original order entered at the divorce of the parties.

Petitioner’s point and contentions are overruled.

Affirmed.


text:
    C. E. RICE, next friend of Jeffrey Charles Mallow, a minor and Karen Hunt, Appellants, v. The TRAVELERS INDEMNITY COMPANY et al., Appellees.
    No. 5435.
    Court of Civil Appeals of Texas, Waco.
    Aug. 7, 1975.
    Rehearing Denied Sept. 4, 1975.

      Patrick M. Reed, Denison, for appellants.
    David K. Noteware, Dallas, Benjamin N. Hamilton, Waco, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiff Rice, next friend of Jeffrey Charles Mallow and Karen Hunt, as hems and legal representatives of Charles L. Mallow, deceased, from take-nothing judgment in suit for accidental death benefits under an automobile liability policy, issued by defendant Travelers Insurance Company, and sold through defendants Barrett, Jackson and Chapman d/b/a Jackson & Barrett Insurance Agency.

Plaintiffs sued defendants alleging Charles L. Mallow purchased policy of insurance from defendant Travelers through its agent Jackson & Barrett on February 6, 1971, which provided for payment of $10,-000 in event of death of Mallow as result of an automobile accident; that the policy expired on February 6,1972; was in effect on November 21,1971; that Mallow was killed by being struck by an automobile on November 21, 1971; and that defendant Travelers denied liability for payment. Plaintiffs prayed for judgment against defendant Travelers, and alternatively against defendants Barrett, Jackson and Chapman.

Defendant Travelers answered that the policy had been cancelled in August 1971, and was not in force at the time of the accident. Defendants Barrett, Jackson and Chapman answered by general denial, and by denial that it had received any premiums other than those earned prior to August, 1971.

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

1) Travelers Indemnity Company effected a cancellation of the insurance policy;
2) Travelers Indemnity Company did not waive cancellation of such policy by accepting the proceeds of the $83.00 cheek dated September 2, 1971;
3) Jackson & Barrett Insurance Agency did not waive cancellation of such policy by accepting the proceeds of the $83.00 cheek dated September 2, 1971.

The trial court rendered judgment on such verdict that plaintiffs take nothing.

Plaintiffs appeal on 6 points contending:

1) The trial court erred in overruling plaintiffs’ objection to the submission of Issues 1, 2 and 3, for the reason that same present questions of law rather than questions of fact, and should have been determined by the court,
2) The trial court erred in not granting plaintiffs’ motion for judgment notwithstanding the verdict in tu&t the jury’s answers to Issues 2 and 3 are so against the great weight and preponderance of the evidence as to be unjust;
3) The trial court erred in not granting plaintiffs’ motion for judgment notwithstanding the verdict because it was admitted by defendant Jackson, his company accepted the check for $83.00 which clearly indicated it was for payment on the automobile insurance on the automobile owned by deceased Charles L. Mallow; that defendant Jackson admitted that a portion of the funds were not applied to said policy and admitted misapplication of a portion of same to a homeowners policy.

We revert to contention 1 that Issues 1, 2 and 3 present findings of law rather than of fact, and should have been determined by the court. Issue 1 inquired whether Travelers effected a cancellation of the policy; Issue 2 inquired whether Travelers waived the cancellation of the policy by accepting the $83. check; and Issue 3 inquired whether Jackson & Barrett waived the cancellation of the policy by accepting the $83. check.

The policy provides that it may be cancelled by either party at anytime for any reason, and further provides the procedure to be followed in cancelling. Whether a cancellation was effected was an issue of fact, Sudduth v. Commonwealth Mut. Ins. Co., Tex., S.Ct., 454 S.W.2d 196; Oliver v. Allstate Ins. Co., Tex.Civ.App., Er.Dismd., 456 S.W.2d 558.

Waiver is the intentional relinquishment of a known right or such conduct as warrants an inference of the relinquishment of such right, and is ordinarily a question of fact. Smith v. Northwest Nat. Bank, Tex.Civ.App., NRE, 403 S.W.2d 158; Praetorians v. Strickland, Tex. Comm.App., 66 S.W.2d 686.

Contention 2 is that the trial erred in not granting plaintiffs’ motion for judgment notwithstanding the verdict because the jury’s answers to Issues 1, 2 and 3 are against the great weight and preponderance of the evidence.

Judgment notwithstanding the verdict can only be granted on a no evidence point. Rule 301 Texas Rules of Civil Procedure; Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194.

Contention 3 asserts the trial court erred in not granting plaintiffs’ motion for judgment notwithstanding verdict because defendant Jackson admitted his company accepted the $83. check which clearly indicated it was for payment on the automobile insurance and that a portion of such funds were not applied to such policy but misapplied to the home-owners policy.

Travelers, through its agents, Jackson & Barrett, on February 6,1971, issued mallow a policy on bis 1968 Pontiac GTO, which provided for accidental death benefits. The policy was for one year. Mallow and his wife had insurance on another car and a home-owners policy with defendants. Premium payments on all insurance policies were on a monthly basis to Jackson & Barrett. On July 8, 1971, Mallow was behind $157.62 on his monthly payments of insurance premiums, and Jackson & Barrett had learned Mallow and his wife were getting a divorce. On July 8, 1971, Jackson & Barrett wrote Mallow, “Since you and Mrs. Mallow no longer reside in the same household it is necessary for us to separate your coverage. At the present time you are in arrears $157.62. This must be brought up to date. If we do not hear from you by return mail we will have to take steps ⅜ * which could result in cancellation of your coverage.” Mallow did not reply, and Jackson & Barrett requested Travelers to cancel the insurance, which Travelers did on August 11, to be effective August 28, 1971. Mallow was given notice of such cancellation as required by the policy.

Mrs. Mallow paid Jackson and Barrett the premiums attributable to the car she had. Jackson & Barrett advised Mallow the earned premium after cancellation on the 1968 Pontiac was $83.00, and that he owed $8.44 additionally. Jackson testified: “I was concerned and that is why we wrote him (Mallow) to find out if he wanted that coverage in effect to continue, or if he wanted to make other arrangements. Q. Did he answer your? A. He did not not. Q. He sent you $91.44; that’s a pretty good answer, isn’t it? * * ⅜ Q. He did answer you then? A. Yes sir, he sure did. Mallow on September 2, 1971, mailed to Jackson & Barrett his check for $83.00 marked “Final pmt. Ins. 1968 GTO,” and on September 15, 1971, mailed Jackson & Barrett a check for $8.44, marked “Final Balance.”

At the time of cancellation Mallow actually owed $91.44 broken down: $38.79 earned premium on the 1968 GTO policy, and $52.65 earned premium on the homeowners policy. Jackson & Barrett credited the $83.00 and $8.44 (totalling $91.44) $38.79 to the 1968 GTO policy and $52.65 to the home-owners policy (totalling $91.44).

Mallow never asked that his automobile policy be reinstated, never asked that a new policy be issued, nor communicated further in any way. Mallow was killed in an accident November 21, 1971.

Plaintiff asserts that since the $83.00 check was marked “Final pmt. Ins. 1968 GTO.” and only $38.79 was actually due on the GTO policy, that the balance should have been applied to pay future premium on the GTO policy, which would have paid it beyond the date of Mallow’s death; that application of the balance to other insurance premiums owed by Mallow was a misapplication of such funds; and for such reason defendants have waived cancellation of the policy as a matter of law.

Plaintiff’s brief says: “A reading of the Statement of Pacts clearly reflecte that defendant agency misled the deceased into paying more money ($83.00) on the automobile policy than was earned thereon ($38.79), and then applied the balance to other accounts.” Plaintiff asserts the $83.00 under the facts must be applied to the GTO policy which would prepay it beyond the date of Mallow’s death.

Mallow clearly intended to pay only the premium earned on his GTO policy prior to the cancellation of such policy. Plaintiffs concede this when they state “defendant misled plaintiff into paying more money on the automobile policy than was earned thereon”. And Mallow clearly further intended to pay defendants what he owed on other policies. (He sent his check for $8.44 marked “final balance.”)

While forfeiture of policy of insurance due to the insured’s default may be waived by acceptance, by the insurer of payment of an overdue premium, we cannot hold on the record before us that defendants waived cancellation of the policy as a matter of law, or that the trial court erred in not granting plaintiff’s motion for instructed verdict.

Plaintiff’s points are overruled.

Affirmed.

      . 32 Tex.Jur.2d p. 360, Republic Ins. Co. v Silverton Elevators, Inc., Tex., S.Ct., 493 S.W.2d 748.