author: COLEMAN, Chief Justice.

text:
    Mary MOODY et vir., Appellants, v. The CITY OF GALVESTON, Appellee.
    No. 16429.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    May 22, 1975.
    Rehearing Denied July 10, 1975.

      Thomas M. Harlan, Alvin, for appellants.
    Mills, Shirley, McMicken & Eckel, John S. McEldowney; Alton C. Todd, Galveston, for appellee.
   COLEMAN, Chief Justice.

This is a suit for personal injuries resulting from a fire caused by the ignition of a flammable gas introduced into the plaintiffs’ water line with the water sold to the plaintiffs by the defendant. A judgment for the defendant was entered on a jury verdict. The principal issue on appeal is the applicability of strict liability to a city operating a water supply system. Necessary to the decision of this question is the question of whether water which is infiltrated with a flammable gas is a defective product.

On June 3, 1973 part of the water supply of the City of Galveston was obtained from fourteen water wells located near the town of Alta Loma, Galveston County, Texas. The water was pumped through two water mains to a treatment plant in the City of Galveston, Texas. These lines are referred to as the Old Main and the New Main in the testimony. Mr. and Mrs. Moody were residents of Alta Loma, but were supplied untreated water by the City of Galveston. Originally they were supplied water through a line which ran into the Old Main from the top through a “breather”. This line was owned by the City and ran to a water meter, which measured the water supplied to the Moodys. A line owned by the Moodys then transported the water to a small tank which was equipped with a water pump designed to boost the pressure to an amount sufficient to allow convenient operation of washing machines and other appliances. It is undisputed that two of the water wells produced a significant amount of a flammable gas which was transported along with the water into the homes of those persons being supplied from the Old Main at points between the water wells and the treatment plant. It is undisputed that the gas passing through the water meter caused it to gauge the use of water improperly, for which reason the City gave certain of its customers, including the plaintiffs, rebates on their water bills.

When the gas accumulated in sufficient quantities, it would interfere with the flow of water. When a faucet was turned on in the house on these occasions there would be a sputtering action and at times no water would flow. There is testimony that the same action would occur from time to time because of air in the lines.

Some time before the accident made the basis of this suit the plaintiffs’ water line was connected to the New Main. There is testimony that the New Main was a 39-inch line and that it was tapped near the center of the pipe rather than from the top. The plaintiffs testified that they were told that this would take care of their problem with gas. On the day in question Mrs. Moody was cleaning corn at her kitchen sink when the water stopped coming out of the faucet. Mrs. Moody testified that she thought there was air in the line and that she walked over to the table and lit a cigarette while she was waiting for the air to clear out of the line. She picked up an ashtray and walked back to the kitchen sink with the lighted cigarette in an ashtray and placed it near the sink. The gas being emitted from the water faucet caught fire. Mrs. Moody was burned when she turned off the faucet in order to shut off the flow of gas.

By its answers to the special issues submitted the jury found that the City of Galveston was transmitting a flammable substance through its water system to the home of Mr. and Mrs. E. 0. Moody, but that such action was not negligence; that the failure of E. 0. Moody to bleed the tank on the morning of June 3rd was negligence and a proximate cause of the occurrence in question, but not the sole proximate cause; that the action of Mary Moody in placing a lighted cigarette in close proximity to the faucet immediately prior to the incident in question was negligence and a proximate cause of the occurrence in question. The jury refused to find that the plaintiff voluntarily assumed the risk of a flammable substance being transmitted through the water line. It found $300.00 damage for loss of earnings in the past; $175.00 for medical expenses incurred; and $800.00 for physical pain and mental anguish which she has suffered in the past.

By Points 1 and 2 the plaintiffs complain of the action of the trial court in refusing to submit requested issues on implied warranty of merchantability and an implied warranty of fitness for a particular purpose. The first requested special issue reads: “Do you find from a preponderance of the evidence, if any, that the Defendant, The City of Galveston, its agents or employees, violated an implied warranty of merchantability?”

“You are instructed that

(a) Unless excluded or modified, a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.
(b) Goods to be merchantable must be at least such as
(1) pass without objection in the trade under the contract description; and
(2) in the case of fungible goods, are of fair average quality within the description; and
(3)are fit for the ordinary purposes for which such goods are used;”

This special issue and the instruction accompanying it is not in substantially correct form. It does not confine the jury to the facts of the particular sale which resulted in the injury of which complaint is made. The issue is unnecessarily confusing. As we view the evidence there was no specific contract either written or oral; there was a continuing offer to sell water, which offer was accepted by the act of drawing water through the water meter. The term “merchant” is defined in Sec. 2.104 of the Uniform Commercial Code, V.T.C.A., as being a “person who deals in goods of the kind . . . ” The term “goods” is defined in Sec. 2.105 of the Code. In essence the definition is that goods means all things which are movable at the time of identification to the contract for sale. As we view the evidence it is undisputed that the City of Galveston was selling water. It is a question of law as to whether such water constitutes “goods”. Instead of the language of Subparagraph (a), under the facts of this case, and assuming that the Uniform Commercial Code applies to this transaction, the instruction should have been to the effect that in making a sale of water the City of Galveston impliedly warrants that the water is merchantable. Paragraph (b) would have been confusing to the jury. There was no testimony as to whether the water would or would not pass without objection in the trade or whether the water was or was not of fair average quality. The real issue was whether or not the water was suitable for ordinary household use. It is unlikely that the jury would have known the meaning of “fungible goods”. The court did not err in refusing to submit the requested special issue. Rule 279, Texas Rules of Civil Procedure.

Section 2.315, Vernon’s Texas Codes Annotated, Business and Commerce, provides:

“Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is . an implied warranty that the goods shall be fit for such purpose.”

The plaintiffs requested the court to submit to the jury the following issue:

“Do you find from a preponderance of the evidence, if any, that the Defendant, The City of Galveston, its agents or employees, violated an implied warranty of fitness for a particular purpose, in its delivery of water to the home of Mr. and Mrs. Moody?
“You are instructed that where the seller at the time of contracting has reason to know of any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is an implied warranty that the goods shall be fit for such purpose.”

Under the facts of this case there can be no question but that agents of the City knew that the water was to be furnished for ordinary household use and that the plaintiffs necessarily relied on the City to furnish suitable water for household use. The question was whether or not the water was suitable for that purpose. As requested the issue and its accompanying instruction would tend to confuse the jury and submitted issues of law as well as of fact. The trial court did not err in refusing the issue. Rule 279, T.R.C.P.

Since we have determined that the issues were not in proper form, it is unnecessary to determine whether or not the provisions of the Business and Commerce Code referred to herein apply to a municipality engaged in furnishing water for compensation to its inhabitants and others. Appellants’ Points 1 and 2 do not present error.

At the conclusion of all the evidence at this trial, and before the case was submitted to the jury, the plaintiffs presented to the court a motion for instructed verdict on the liability issues, and that as to the liability issues the ease be withdrawn from the jury. The plaintiffs contended that the evidence established as a matter of law the liability of the City as the seller of the defective product under the doctrine of Sec. 402a of the Restatement of Torts. The motion was denied. The plaintiffs did not file a motion for judgment notwithstanding the verdict, but they complained in their motion for new trial of the court’s failure to instruct the jury on the issues of liability.

The evidence establishes that the City was engaged in the business of selling water; that it delivered water to the plaintiffs through a pipeline system; that in producing water from certain of its water wells the City also produced a quantity of flammable gas; that this gas in conjunction with the water was introduced into the pipeline system; and that the gas was commingled with the water at the time it was sold to plaintiffs. The presence of flammable gas in the plaintiffs’ water lines created an unreasonable risk of harm to the plaintiffs and was a producing cause of the injuries suffered by Mrs. Moody. The jury failed to find that the plaintiff voluntarily assumed the risk of a flammable substance being transmitted through her water lines.

The liability of a seller of a defective product to the consumer is determined by the rule set out in Section 402a of the Restatement of the Law of Torts in the State of Texas. McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967). We have found no Texas cases which clearly hold that a municipality engaged in selling water is subject to the doctrine of strict liability. There are cases holding that the furnishing of a water supply by a municipal corporation constitutes a sale of goods. Canavan v. City of Mechanicville, 229 N.Y. 473, 128 N.E. 882 (1920); Mayor, etc. of Jersey City v. Town of Harrison, 71 N.J.L. 69, 58 A. 100, affirmed 72 N.J.L. 185, 62 A. 765 (1904); Coast Laundry, Inc. v. Lincoln City, 9 Or.App. 521, 497 P.2d 1224 (1972); Helvey v. Wabash County Remc, 151 Ind. App. 176, 278 N.E.2d 608 (1972). In City of Denton v. Gray, 501 S.W.2d 151 (Tex.Civ. App.—Fort Worth 1973, writ ref’d n. r. e.), the court stated:

“A city that owns and operates a waterworks system for profit is required by law to exercise ordinary care in the operation of its system. It is subject to the same standard of care as is any other person. It is not an insurer and is not liable for damages resulting from the operation of its system, unless such damages are proximately caused by its negligence. City of Bryan v. Jenkins, 247 S.W.2d 925 (Waco Tex.Civ.App., 1952, ref., n. r. e.).”

In the above cited case a homeowner brought an action against the city for damage from flooding allegedly caused by the negligence of the city employees. There was no question of a defective product or strict liability involved.

When furnishing water to its inhabitants, or to those who do not reside within the city, as in this case, the city was acting in a proprietary capacity and is not immune to liability in tort. Hodge v. Lower Colorado River Authority, 163 S.W.2d 855 (Tex.Civ.App.—Austin 1942, writ dism’d by agreement); City of Wichita Falls v. Lipscomb, 50 S.W.2d 867 (Tex.Civ.App.—Fort Worth 1932, writ ref’d); City of Waco v. Busby, 396 S.W.2d 469 (Tex.Civ.App.—Waco 1965, writ ref’d n. r. e.).

Since it is clear that a city when engaged in a proprietary activity is subject to the same rules or tort liability as private persons, we conclude that the doctrine of strict liability as set out in Sec. 402a of the Restatement of Torts is applicable to the City when engaged in the sale of water through a municipal waterworks system.

The crucial question is whether or not the water was defective at the time it passed through the plaintiffs’ water meter. There is no evidence of any possibility that a flammable gas could have been introduced into the plaintiffs’ household piping system from any source other than the City’s water mains. There is no evidence that plaintiff had suffered any ill effects from drinking the water or washing with the water or from using the water in the preparation of food.

The defendant contends that the evidence does not show a defective product. The City relies on Anderson v. Associated Grocers, Inc., 11 Wash.App. 774, 525 P.2d 284 (1974), where the plaintiff’s decedent was bitten by a spider on a piece of wet burlap on top of a box of radishes which had been under bananas in a banana box. In this case the court said that there was no showing that the bananas were in any way defective or unfit for the purpose intended. The spider was not in the bananas and they were edible and saleable.

Erwin v. Guadalupe Valley Electric Coop, 505 S.W.2d 353 (Tex.Civ.App.—San Antonio 1974, writ ref’d n. r. e.), was a suit for wrongful death of a football coach who was electrocuted when a goal post he and others were constructing came into contact with a high voltage transmission line. It was alleged that the electric product was defective in that the wires were too low. Special exceptions were sustained to the portion of plaintiffs’ pleadings in which they sought to recover under the theory of strict liability, or products liability. This action of the trial court was affirmed. The opinion states:

“. . . plaintiffs alleged no defects in the manufacture of the electricity. Even if it be assumed that the doctrine of products liability extends to the sale of electricity, it was incumbent on plaintiffs, if they seek the protection of the doctrine embodied in Section 402A of the Restatement, and approved by the Supreme Court of Texas in McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (1967), to show a defect in the electricity. Buckeye Union Fire Ins. Co. v. Detroit Edison Co., 38 Mich.App. 325, 196 N.W.2d 316, 318 (Ct.App.1972).”

In Barbee v. Rogers, 425 S.W.2d 342 (Tex.1968), the court held that the doctrine of strict liability would not be extended to the prescription, fitting and sale of contact lenses where there was no claim that the lenses were defective in themselves and the lenses were not a finished product offered to the general public in the regular channels of trade. The court stated:

“. . . The failure here is not attributable to the product itself, i. e., the contact lenses, but to the professional and statutorily authorized act of ‘measuring the powers of vision’ of Petitioner’s eyes and ‘fitting lenses * * * to correct or remedy * * * [his] defect or abnormal condition of vision.’ This is not the act of one selling a ‘product in a defective condition unreasonably dangerous to the user’ in the terms of the Torts Restatement. . . . , the fact remains that the contact lenses sold to Petitioner were designed in the light of his particular physical requirements and to meet his particular needs . . . They were not a finished product offered to the general public in regular channels of trade . , nor was it contemplated that Petitioner would use them without changes or adjustments to fit his needs

These cases point up the necessity of showing that the product must be defective as marketed. See also Gravis v. Parke-Davis & Co., 502 S.W.2d 863 (Tex.Civ.App.—Corpus Christi 1973, ref’d n. r. e.). These cases, however, do not resolve the question presented in this case. The product, water, as delivered, was intermingled with a flammable gas. The presence of this gas in the plaintiffs’ water lines created an unreasonable risk of injury to the plaintiffs. We consider the case more analogous to those cases in which liability was upheld where a foreign substance, such as glass, rocks, or pieces of metal, are packaged with food products. In Gladiola Biscuit Co. v. Southern Ice Co., 267 F.2d 138 (5th Cir. 1959), a biscuit manufacturer recovered from an ice manufacturer the costs incurred in destroying biscuits and biscuit dough because of glass in ice purchased from the distributor. The court held that ice, if not a food in the sense of a nutritive item, must be regarded as a commodity for human consumption within the rule imposing liability without fault on manufacturer of foodstuff for injuries sustained by one who consumes product containing deleterious substances. In Campbell Soup Co., Inc. v. Ryan, 328 S.W.2d 821 (Tex.Civ.App.-Waco 1959, no writ hist.), the court sustained a judgment against the manufacturer of a “T-V Chicken Dinner”, which contained a metal washer. For a comprehensive correlation of the authorities see Annotation: Products Liability-Beverages, 77 A.L.R.2d 215.

The fact that the injury occurred not as a result of drinking or washing with the water but from an ignition of the gas which had accumulated in plaintiffs’ water lines and storage tank when she was attempting to use water in the preparation of food for cooking, should not insulate the City from liability. Plaintiffs purchased water. They received water and a flammable gas. We consider that the product was defective. The trial court erred in refusing to withdraw from the jury the issues on liability. Since the plaintiffs failed to present a motion for judgment notwithstanding the verdict, judgment cannot be rendered by this court in her favor. The error caused the rendition of an improper judgment, and the cause must be reversed and remanded to the trial court.

The plaintiffs complain that the trial court erred in refusing to submit certain requested issues embodying the doctrine of res ipsa loquitur. The trial court submitted issues inquiring whether or not the City of Galveston was transmitting a flammable substance through its water system to the home of Mr. and Mrs. E. 0. Moody, and predicated on this issue a further issue was submitted inquiring whether such action by the City of Galveston was negligent and a proximate cause of the occurrence in question.

Since the court submitted this broad general issue on the question of negligence, the plaintiffs could not have been injured by the refusal of the court to submit the issues requested. In Mobil Chemical Co. v. Bell, 517 S.W.2d 245 (Tex.1975), the Supreme Court of Texas pointed out that the effect of successfully invoking the res ipsa doctrine was that the plaintiff can survive no evidence procedural challenges— he has produced some evidence of the defendant’s negligence. He is in the same position as any other plaintiff who has made out a case for the jury. No presumption of the defendant’s negligence arises; the jury is merely free to infer negligence. It is our view that the instrumentality causing the damage was the presence of flammable gas in the water lines of the plaintiffs’ house. We are further of the view that the accident was of such a character under the record in this case that it would ordinarily not happen in the absence of negligence. On a retrial of this case, if proper request is made, the trial court doubtless will consider the issues and instructions suggested by the Supreme Court of Texas in the Mobil Chemical Company case. The point does not present reversible error. Rule 434, Texas Rules of Civil Procedure.

Plaintiffs requested certain special issues seeking to establish a basis for the recovery of exemplary damages. It is a rule of general application that exemplary damages cannot be recovered against a municipal corporation. Cole v. City of Houston, 442 S.W.2d 445 (Tex.Civ.App.—Houston [14th], 1969, no writ hist.); Annotation, 19 A.L.R.2d 903 (1951). In addition, after viewing the evidence most favorably to the plaintiffs, any negligence shown to have been committed by the managerial or supervisory employees of the City appears to be passive or negative rather than positive or affirmative. The evidence fails to meet the requirement that there be an entire want of care so as to raise the belief that the acts complained of were the result of a conscious indifference to the rights or welfare of others. There does not appear to be any indication of wilfulness, wantonness or malice. The issues on gross negligence are not raised by the evidence. Sheffield Division Armco Steel Corp. v. Jones, 376 S.W.2d 825 (Tex.1964).

Appellants contend that the trial court erred in submitting Special Issue No. 9 inquiring as to the negligence of Mary Moody, contending that there was no duty on the part of Mary Moody to not smoke at her kitchen sink. The point cannot be sustained. The plaintiff was under a duty to exercise that degree of care for her own safety as a reasonably prudent person would or should have exercised under the same or similar circumstances. Walgreen Texas Co. v. Shivers, 137 Tex. 493, 154 S.W.2d 625 (1941). Defendant’s answer generally alleged contributory negligence and the issue submitted was raised by the evidence.

Reversed and remanded.


source: Caselaw Access Project

author: JAMES, Justice.

license: Public Domain

text:
    ROY GLADEN BUICK, INC., Appellant, v. St. Peter STERLING, Appellee.
    No. 5449.
    Court of Civil Appeals of Texas, Waco.
    June 26, 1975.
    Rehearing Denied July 17, 1975.

      Nall, Harrison & Nall, Sherman, for appellant.
    Geary, Brice, Barron & Stahl, Gerald P. Urbach, David A. Coggin, Dallas, Weisberg & Weisberg, Denison, for appellee.
   OPINION

JAMES, Justice.

This is a case involving the conversion of an automobile, growing out of the sale of an automobile by a dealer to a customer. The trial court based upon a jury verdict awarded actual and exemplary damages to Plaintiff-Appellee Sterling (the customer) against Defendant-Appellant Roy Gladen Buick, Inc., (the dealer) from which the dealer appeals. We affirm.

Plaintiff-Appellee Sterling sued Defendant-Appellant dealer, alleging breach of contract for the sale of an automobile to Plaintiff and that Defendant converted said automobile by taking it from Plaintiff after the sale. Plaintiff sued for actual damages, and exemplary damages based upon the alleged wilful and malicious actions of Defendant. The jury verdict was favorable to Plaintiff Sterling, and based upon same the trial court entered judgment for Plaintiff against Defendant for $845.00 actual damages, plus interest, and $5000.00 exemplary damages.

By their answers to the special issues the jury found some facts and failed to find other facts. The facts found by the jury are as follows:

(1) On May 15, 1971, Plaintiff Sterling offered to purchase the 1970 Buick from Roy Gladen Buick, Inc., for $1400.00 plus the trade-in of his 1969 Chevrolet Impala automobile;

(2) Roy Gladen Buick, Inc., acting through its agents, servants, and employees, on May 15, 1971, accepted Plaintiff’s offer as stated in (1) hereinabove;

(2A) A. D. Lummus, the salesman working for the dealer, had the apparent authority to make the above agreement with Plaintiff for the sale of the 1970 Buick in question;

(3) On May 15, 1971, Roy Gladen Buick, Inc., acting through its agents, servants or employees orally agreed that Plaintiff could pay the balance owing on the 1970 Buick in question on Monday, May 17, 1971;

(4) On May 15, 1971, the Defendant dealer, acting through its agents, servants, or employees, orally agreed that it would deliver title of the 1970 Buick to Plaintiff on Monday, May 17, 1971;

(5) On Monday, May 17, 1971, Defendant dealer refused to deliver title of the 1970 Buick to Plaintiff:

(6) On Monday, May 17, 1971, Plaintiff offered to pay the balance ($1400.00) owing on the 1970 Buick to Defendant dealer;

(7) On Monday, May 17, 1971, Defendant dealer refused to accept payment by Plaintiff of the $1400.00 balance owing on the 1970 Buick;

(8) Plaintiff Sterling was in possession of the 1970 Buick on Wednesday, May 19, 1971;

(9) On Wednesday, May 19, 1971, Roy Gladen took the 1970 Buick from the possession of Plaintiff Sterling;

(9A) That Roy Gladen converted the 1970 Buick to the use of Defendant Roy Gladen Buick, Inc.;

(10) That at the time of such taking, Roy Gladen was acting in furtherance of the business of Roy Gladen Buick, Inc.;

(11) The reasonable market value of the 1969 Chevrolet Impala (traded in by Plaintiff) in Grayson County, Texas, on or about May 19, 1971, was $1650.00;

(12) Such taking of the 1970 Buick from Plaintiff’s possession was done wilfully and maliciously. In this connection the trial court gave to the jury the following definition: “By the term ‘wilfully and maliciously’ is meant the intentional doing of a wrongful act without just cause or excuse; that is, if a wrongful act is intentionally done without just cause or excuse for believing it to be right or legal, or done with conscious disregard to the rights of others, then such act is wilfully or maliciously done. Wilfulness and intent may be inferred by the actions and conduct of the wrongdoer.”

(13) Plaintiff Sterling should be awarded exemplary damages in the amount of $5000.00.

(24) The contract price at which Defendant dealer sold the 1970 Buick to Paul Anderson was $3504.00.

The jury failed to find as follows to the following special issues:

(14) They failed to find that on or about May 15,1971, Plaintiff Sterling represented to Roy Gladen Buick, Inc., its officers, agents or employees that he had purchased the 1969 Chevrolet Impala as a new automobile;

(18) They failed to find that on or about May 15, 1971, Plaintiff Sterling represented to Defendant dealer, its officers, agents or employees, that he had a new car warranty on the 1969 Chevrolet Impala automobile;

(22) They failed to find that the agreement by Defendant to make the sale in question was conditioned upon Plaintiff Sterling delivering a new car service warranty; and

(23) They failed to find that after Defendant took possession of the 1970 Buick automobile, that it (Defendant) notified Plaintiff’s attorney that said Buick automobile would be held for a reasonable length of time, to be delivered at the same price, during which time it would accept delivery of the Chevrolet automobile, undamaged, provided it was accompanied by a new car warranty or service policy.

As stated above, based upon the above jury verdict, the trial court entered judgment in favor of Plaintiff Sterling against the Defendant for $845.00 actual damages plus interest, and $5000.00 exemplary damages, from which Defendant-Appellant appeals.

Appellant asserts by his points one through five that there is no evidence to support the jury’s answers to Special Issues Numbers 12 (that the taking of the car was wilful and malicious) and 13 (that Plaintiff was entitled to $5000.00 exemplary damages). Further, that the jury’s answers to Special Issues 12 and 13 were so against the great weight and preponderance of the evidence as to be manifestly unjust. We overrule these contentions.

Plaintiff-Appellee St. Peter Sterling was a black man sixty-five years of age and retired at the time of trial. Prior to his retirement, and at the times material to this controversy he was caretaker of a Methodist Church located in Denison, Texas. He had had a fifth grade education.

Defendant-Appellant Roy Gladen Buick, Inc., is a Buick retail dealership located at Sherman, Texas, headed by Roy Gladen, its president.

At times material to this controversy Plaintiff Sterling was the owner of a 1969 Chevrolet Impala automobile. About two weeks before May 15, 1971, Sterling went to Defendant dealership and made an effort to purchase a 1970 gray Buick which Defendant then had in stock. Plaintiff at that time talked to Roy Gladen, and tried to trade his Chevrolet for the 1970 Buick. The matter ended when Roy Gladen offered to sell him the Buick for Sterling’s Chevrolet and $2195.00 difference. Sterling thought this was too much difference to pay and did not buy the Buick.

Then on Saturday, May 15,1971, Plaintiff Sterling came back to Defendant dealership and tried to buy a different 1970 Buick which was similar to the car he had tried to purchase earlier.

On May 15, 1971, Sterling talked to A. D. Lummus, an automobile salesman who had been working for Defendant about three months, and who was not permitted by his employer to appraise automobiles for trade purposes.

After examining Sterling’s Chevrolet, Lummus contacted Harry Parks, another salesman who worked for Defendant, and Lummus and Parks both inspected Sterling’s Chevrolet and drove it around the block. Sterling offered to trade in his Chevrolet and pay $1400.00 difference for the 1970 Buick. After some bargaining back and forth, Parks told Lummus, in effect: “We’ve got to sell some ears. Go ahead and sign the man up.” Whereupon Lummus filled out and prepared a printed form in triplicate entitled, “Retail Order for a Motor Vehicle,” showing Sterling to be the purchaser of the 1970 Buick by trading in his 1969 Chevrolet and paying $1400.00 difference. Sterling signed this form as purchaser and A. D. Lummus signed it as “Dealer or his Authorized Representative,” and Sterling was given a copy.

Sterling told Lummus that he wanted the car financed through Associates Finance Service in Denison, Texas, whose manager was O. T. Winters. Sterling’s 1969 Chevrolet was currently being financed with Associates, who had his title certificate and other car papers at that time. Winters had financed other cars for Sterling over a period of some twelve to fourteen years.

At Sterling’s request Lummus called Winters on the telephone about financing the 1970 Buick. Winters told Lummus that he would finance the Buick for Sterling; but since it was Saturday, his office was closed and he would not be able to have a check ready for the $1400.00 difference and produce the title papers on Sterling’s Chevrolet until the following Monday, May 17, 1971. Lummus arranged with Winters for him and Plaintiff Sterling to meet at Winter’s office about 9 A.M., Monday, to complete the deal.

After this, Sterling left in his Chevrolet and went back to Denison. Sterling called Winters on the telephone and verified that Winters would finance the 1970 Buick. Then (this still being Saturday afternoon) Sterling went back to Sherman to the Buick dealership and asked Lummus if it would be all right for him to pick up the Buick and drive it over the weekend, and leave his Chevrolet with them. Lummus agreed, whereupon Sterling left Lummus his Chevrolet and its keys, and Sterling was given the keys to the Buick and drove it back home to Denison.

On this Saturday, May 15, 1971, Lummus agreed to deliver title of the Buick to Sterling on Monday, May 17, 1971, at which time Sterling agreed to pay the $1400.00 difference and deliver the title to the Chevrolet to Defendant, and to accomplish this Lummus and Sterling agreed to meet at the office of Associates Finance Service at Den-ison, Texas, with Mr. Winters at or about 9 A.M., on said Monday, May 17, 1971.

However, on the morning of Monday, May 17, 1971, Lummus drove the 1969 Chevrolet (that Sterling delivered to him the previous Saturday) up to Denison and went to the church where Sterling was employed, arriving there between 8 and 9 A.M. When Lummus saw Sterling at the church, he asked Sterling for the warranty on the Chevrolet; whereupon Sterling told him he had no warranty. Lummus told him he did not know “whether we’re going to go through with the trade or not if you don’t have the warranty.”

At this point, Lummus and Sterling went to the Associates Finance office and met with Winters, who offered Lummus the check for the difference. Lummus refused to take the check, saying, “Sterling don’t have the warranty to this car and I don’t think we’re going to be able to go through with it.” Lummus called to Sherman on Winter’s telephone, after which he told Winters, “They’re not going to go through with it.”

Then after lunch on this same Monday, Lummus and Parks both came back to the church and talked to Plaintiff Sterling, asking Sterling for the warranty on the Chevrolet, and Sterling again told them he had none. Parks said, “Well, you led us to believe that you had it.” To this Sterling replied, “No, I did not.”

On the morning of the following Wednesday, May 19, 1971, Sterling drove the 1970 Buick to work, and parked it on the Wyatt’s Supermarket parking lot. Sterling decided to go see Mr. Eric Weisberg, an attorney, in an effort to get the trade through, and when he went to get his car, he discovered that it was gone. Shortly thereafter Lum-mus and Parks came to the church and asked Sterling for the keys to the Buick, and Sterling refused to give them up. Parks said, “You mean we’re going to have to get the Sheriff to get the keys?” To this Sterling replied, “If you get them you will.” Lummus then handed Sterling the keys to the Chevrolet, which Sterling took. Lum-mus and Parks left the Chevrolet with Sterling, and went away.

After this, on this same Wednesday morning, Plaintiff Sterling contacted Mr. Weisberg, the attorney, who in turn put in a telephone call to Mr. Roy Gladen, but he was at that time away from his place of business. About two hours later, Roy Gla-den returned the call to Weisberg. After Weisberg explained the purpose of his call, Gladen at first acted as if he knew nothing about the matter. Then he said, “Oh yes, he’s that colored fellow.” He then told Weisberg that they had taken the car and said, “I didn’t sell it to him. There was no binding contract. I didn’t sign the contract.” Weisberg pointed out to him that the contract had been signed by Lummus, one of his salesmen, and the car had been delivered to Sterling. Gladen then said, “Well, what do you want?” Weisberg told him Sterling wanted his car back, to which Gladen replied, “It is not his car and nothing can be done.”

Roy Gladen testified that he personally went to Denison and found the Buick ear parked on the supermarket parking lot, and took the ear. He said he kept extra sets of keys to the cars he sold. Gladen also testified that when he was talking to Weisberg on the telephone, that he told Weisberg he would hold the Buick car on his lot for thirty days in order to give Sterling an opportunity to get a new car warranty on the Chevrolet. Weisberg denied that Gla-den told him this. On June 21,1971, Gladen sold the Buick to one Paul Anderson for $3504.13.

Lummus and Parks both testified that on the Saturday when Sterling and Lummus signed the retail order form, that Sterling told them he had bought the Chevrolet as a new car, and that he had a new car warranty on it. Sterling denied that he ever told them any such thing. The warranty in question was customarily delivered by a car dealer to the purchaser of a new car, and covered five years or 50,000 miles, which ever came first. Sterling’s Chevrolet had 41,000 miles on it, and if he had had a warranty, it would have covered him only 9000 more miles. Winters, a disinterested witness, testified that having such a warranty would be worth about $100.00 to a car such as Sterling had. Roy Gladen testified that such a warranty would make Sterling’s car worth $300.00 more; whereas Lummus testified the warranty would make Sterling’s Chevrolet worth $300.00 to $500.00 more.

However, the NADA handbook, used as a guide by car dealers for various makes and models of used cars in average condition throughout the country, does not take into consideration the existence or not of a new car warranty in arriving at the value of a given make and model of used car. In other words, this handbook published by the National Automobile Dealers Association considers a number of factors in arriving at the value of any given make and model of a used car, but whether such car has a new car warranty is not considered. Significantly, there was nothing in the written Retail Order Form signed by Sterling and Lummus to the effect that Sterling had agreed to furnish a warranty on the Chevrolet. The other aspects of the trade were set out in this form, but no mention of a warranty is made. The form does recite, however, “Purchaser agrees that this Order includes all the terms and conditions on both the face and reverse side hereof, that this Order cancels and supersedes any prior agreement and as of the date hereof comprises the complete and exclusive statement of the terms of the agreement relating to the subject matters covered hereby; -.” (emphasis supplied). Moreover, when Lum-mus called Winters (the finance company man) on the telephone on Saturday, May 15, 1971, to give him the details of the trade, he made no mention to Winters about Sterling furnishing a warranty on the Chevrolet.

Roy Gladen testified that Lummus had no authority to sign the “Retail Order for Motor Vehicle” forms, and that he “reprimanded” Lummus when he learned Lum-mus had signed it on Sterling’s trade. Gla-den testified that he had been out of town and returned on the afternoon of Monday, May 17, 1971, and learned of this Sterling deal. Lummus informed Gladen of the details of the trade at this time.

It should be pointed out that none of the jury’s findings were challenged by Appellant except Special Issues 12 and 13, relative to the exemplary damages. By the unchallenged findings it is established: (1) that Plaintiff and Defendant had made a firm agreement to trade cars on Saturday, May 15, 1971, subject only to exchanging car titles and payment of the $1400.00 on the following Monday, May 17, 1971; (2) that on the following Monday, the Plaintiff offered to pay the $1400.00 difference and complete the transaction; but (3) Defendant on that same Monday refused to deliver title to the Buick, or to accept payment of the $1400.00 difference; (4) that on Wednesday, May 19, 1971, Plaintiff was in possession of the Buick, at which time the Defendant wrongfully took the Buick and converted it to its own use and benefit.

Moreover, and significantly, the jury failed to find (1) that Sterling on Saturday, May 15, 1971, represented to Defendant that he had purchased the Chevrolet new, or that he had a new car warranty on said car, and (2) that the agreement was conditioned upon Sterling delivering a new car service warranty, and (3) that after the taking of the Buick, Defendant notified Plaintiff’s attorney that it would hold the Buick a reasonable time in order to give Plaintiff time in which to secure a warranty.

In summary, the jury believed Sterling’s testimony and that of his attorney, and did not believe the Defendant’s version of what happened. Since the wrongful conversion facts are established by jury findings and are not challenged, the problem before us is whether there is any evidence of probative value to support the jury’s findings (1) that the conversion was wilful and malicious, and (2) whether Plaintiff should be awarded $5000.00 exemplary damages. We hold the evidence to be ample to support such findings. The next question before us is whether the jury’s answers to Special Issues 12 and 13 (the exemplary damage issues) are so against the great weight and preponderance of the evidence as to be manifestly unjust. In answer to this, we hold that the jury’s findings to those issues are not against the great weight and preponderance of the evidence.

Prom the record before us, the jury had the right to infer and conclude that (1) Lummus and Parks had made a bad deal for their employer; (2) that when Roy Gla-den found out about it he was unhappy and wanted the deal rescinded; (3) that in order to protect themselves, Lummus and Parks fabricated the testimony relative to Sterling’s alleged agreement to furnish the warranty, and tried to get Sterling to agree to call off the trade; (4) that failing in this, Roy Gladen, without making any effort to get Sterling’s side of the story, or without resorting to any legal recourse, wrongfully took the car away from Sterling’s possession. In other words, the jury had a right to infer that the Defendant, and its president and salesman tried to back out of a bad deal by conspiring against the Plaintiff; and having failed to accomplish their purposes in this manner, wrongfully took the car away from the Plaintiff when he was not present to prevent them from doing so.

Exemplary damages may be awarded in addition to compensatory damages where a Defendant is shown to have acted wilfully or fraudulently. Pan American Petroleum Corp. v. Hardy (Waco CA 1963) 370 S.W.2d 904, error refused NRE; Big Town Nursing Home, Inc. v. Newman (Waco CA 1970) 461 S.W.2d 195, no writ; First Security Bank & Trust Co. v. Roach (Dallas CA 1973) 493 S.W.2d 612, error refused NRE; Tennessee Gas Transmission Co. v. Moorhead (Beaumont CA 1966) 405 S.W.2d 81, error refused NRE.

Our Supreme Court has held that exemplary damages may properly be awarded when the Plaintiff has suffered actual damage as the result of fraud intentionally committed for the purpose of injuring him. See Dennis v. Dial Finance & Thrift Co. (Tex.Sup.Ct.1966) 401 S.W.2d 803, and the cases therein cited at page 805. Also see Bond v. Duren (Waco CA 1975) 520 S.W.2d 460, error refused NRE.

In the case at bar, we hold that the evidence shows that the Defendant wrongfully, wilfully, and with gross indifference to the Plaintiff’s rights, took the Buiek automobile from Plaintiff’s possession and converted same to Defendant’s own use and benefit, and that the trial court’s judgment for exemplary damages based upon the jury verdict was therefore proper.

Appellant’s remaining three points, being 6, 7, and 8, assert error of the trial court in overruling Appellant’s motion for mistrial, occasioned by statements made by Plaintiff-Appellee’s counsel in the presence of the jury.

This ease had been once before tried before a jury, and resulted in a mistrial.

At the beginning of the second trial (which is the trial now before this court on appeal) Plaintiff-Appellee’s counsel made a request in the presence of the jury to have the transcript of the first trial put in the record. Defendant-Appellee made a motion for mistrial which was overruled by the trial court.

Then later on in the trial, Plaintiff-Ap-pellee’s counsel, Mr. Weisberg, testified concerning the attorney’s fees rendered by him in behalf of Plaintiff, in support of his plea for exemplary damages. Concerning these matters, he testified to the nature of services performed by him and time spent by him in connection with the previous trial as well as the current trial, including a possible appeal from the current trial. In conclusion, he testified that the reasonable value of these legal services amounted to $8500.00. In recounting his services in the previous trial, counsel testified, “There were a number of pleadings filed, a motion for judgment, which was granted to the Plaintiff; a motion for judgment notwithstanding the verdict of the jury, which was denied.” Defendant again moved for a mistrial, which was overruled by the trial court.

There was at no time before the jury any testimony concerning what the verdict of the previous jury was, except for the possibility that the jury might have been able to ascertain from counsel’s testimony concerning the motions, that the previous verdict was favorable to Plaintiff. We have carefully reviewed the record, and hold that the acts and statements of Plaintiff’s counsel complained of constituted harmless error, and did not amount to such a denial of the rights of the Appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Rule 434, Texas Rules of Civil Procedure. This is true particularly in view of the fact that the jury was not informed of what the previous jury verdict or judgment was. See Federal Underwriters Exchange v. Bickham (Tex.Sup.Ct.1941) 138 Tex. 128, 157 S.W.2d 356.

All of Appellant’s points have been carefully considered, and are overruled. Judgment of the trial court is accordingly affirmed.

Affirmed.


author: PEDEN, Justice.

text:
    Finley H. HORN et al., Appellants, v. Charles D. TULLER, Jr., Nominee of the Trustees of Cousins Mortgage and Equity Investments, Appellee.
    No. 16502.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    May 29, 1975.

      Leo A. Kissner, Houston, for appellant.
    Fulbright & Jaworski, James C. Slaughter, D. J. Baker, Houston, for appellee.
   PEDEN, Justice.

Defendants appeal from the granting of a summary judgment in favor of plaintiff in a suit on a guaranty contract.

Defendants executed an agreement guaranteeing payment of a promissory note made payable to plaintiff by Villa Milagro, Inc., which company is not a party to this suit. The guaranty contract was executed separate and apart from the promissory note. The defendants unconditionally guaranteed the full and prompt payment when due, whether by acceleration or otherwise, of all indebtedness evidenced by the promissory note. The defendants expressly waived any notice or demand; they agreed that the lender was empowered to proceed against the defendants or any of them without joining the borrower, that the lender could sue without first or contemporaneously suing the others and that there was no duty or obligation to proceed against the borrower or exhaust any remedy against the borrower or the property or collateral securing the note before bringing suit. The contract stated that it was a “Georgia contract and was to be construed and governed according to the laws of the State of Georgia.”

Plaintiff’s motion for summary judgment was granted, the trial court stating in its judgment that there was no genuine issue as to any material fact, that plaintiff’s cause of action was liquidated and proved by a promissory note in the principal sum of $250,000.00 and an agreement of guaranty. Plaintiff was awarded $250,000.00 principal, $39,771.02 interest, and $40,000.00 in attorney’s fees.

Defendants’ only point of error is that the trial eourt erred in not considering their sworn answer as proper summary judgment proof. They point out that there was attached to their answer a sworn statement that they “have read the above Defendants’ First Amended Original Answer and know the contents thereof and the facts stated therein are within their personal knowledge, and that each and every one of the paragraphs contained therein in defense of Plaintiff’s Motion for Summary Judgment are true and correct.” Appellants say that these defenses were established by their answer: “(a) failure to plead and prove the law of a foreign jurisdiction, (b) partial failure of consideration and (c) uncertain and undetermined amount in controversy.”

We overrule the appellants’ point of error. Pleadings, even if sworn, do not constitute summary judgment evidence. Hidalgo v. Surety Savings and Loan Association, 462 S.W.2d 540 (Tex.1971); Texas National Corporation v. United Systems International, Inc., 493 S.W.2d 738 (Tex.1973); Pickering v. First Greenville National Bank, 495 S.W.2d 16 (Tex.Civ.App.1973, writ ref. n. r. e.). The answer was no less a pleading because it stated that it was filed in response to the plaintiff’s petition and to his motion for summary judgment.

Having overruled the only point of error raised by appellants’ brief, we need not respond to other matters argued in oral submission, but we will do so briefly.

We find no merit in the appellants’ contention that their answer established the defense of “(a) failure to plead and prove the law of a foreign jurisdiction.” The transcript contains a motion filed by the plaintiff (appellee) asking the court to take judicial notice, pursuant to Rule 184a of the Texas Rules of Civil Procedure, of the law of the State of Georgia relevant to the status of a guarantor. The transcript also contains the trial court’s order, which was signed more than five months before the hearing on the motion for summary judgment, stating that the court “hereby takes the requested judicial notice of said Georgia case law.” Such motion and order, as part of the record in the trial court, were properly considered by the judge.

We also disagree with the appellants’ other assertions, that their answer established the defenses of “(b) partial failure of consideration and (c) uncertain and undetermined amount in controversy.” Item (c) apparently refers to the allegation in appellants’ answer to the effect that part of the money which was consideration for their execution of the guaranty agreement was diverted to another apartment project. This, like item (b), is an allegation of partial failure of consideration.

Failure of consideration is an affirmative defense. Rule 94, Texas R.C.P.

“Where the plaintiff moves for summary judgment in an action in which the defendant has pleaded an affirmative defense, he is entitled to have his summary judgment if he demonstrates by evidence that there is no material factual issue upon the elements of his claim, unless his opponent comes forward with a showing that there is such a disputed fact issue upon the affirmative defense.” Gulf, Colorado & Santa Fe Rwy. Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492 (1958); Torres v. Western Casualty and Surety Co., 457 S.W.2d 50 (Tex.1970).

As movant for summary judgment, plaintiff had the burden of offering proof that establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.1970). Plaintiff sustained his burden by offering, attached to his affidavit in support of his motion for summary judgment, the original promissory note and the guaranty contract; the affidavit showed execution of the note and guaranty agreement, alleged that he is the legal owner and holder of the note, that payment was demanded of Villa Milagro, Inc. according to the terms of the note, which is shown due on its face, that upon default payment was demanded of the guarantors and that they have failed to pay.

Having demonstrated that as a matter of law there was no issue of material fact, the plaintiff was entitled to judgment because the defendants offered no summary judgment evidence in support of their affirmative defense.

Affirmed.


author: DUNAGAN, Chief Justice.

text:
    OLIVER BASS LUMBER COMPANY, INC., Appellant, v. KAY AND HERRING BUTANE GAS COMPANY, INC., Appellee.
    No. 818.
    Court of Civil Appeals of Texas, Tyler.
    May 29, 1975.

      Sallas, Griffith & Meriwether, Gus E. Meriwether, Crockett, for appellant.
    Granberry & Hines, F. P. Granberry, Crockett, for appellee.
   DUNAGAN, Chief Justice.

This is an appeal from a summary judgment which was granted in favor of plaintiff-appellee Kay and Herring Butane Gas Company, Inc., against defendant Oliver Bass Lumber Company in an action based upon a sworn account. The parties will be referred to as they appeared in the trial court.

Plaintiff brought suit on a sworn account against defendant for $1,991.25, the value of 22,125 gallons of propane, which plaintiff allegedly sold defendant during March, 1972. Defendant filed verified pleadings which included its original answer and a cross-action. In addition to defendant’s general denial it specially denied that:

(1) Plaintiff delivered all of the propane mentioned in its original petition,
(2) Plaintiff delivered 22,125 gallons of propane because plaintiff could not have delivered in excess of 19,130 gallons of propane during March, 1972, and
(3) Defendant owes plaintiff the sum of $1,991.25 for propane delivered during March, 1972, because the amount owed to plaintiff for propane delivered in March, 1972, could not exceed $1,721.17. Further, defendants maintained that it was entitled to an offset of $1,794.97 for overpayment to plaintiff for propane delivered during December, 1971, and January and February, 1972.

In a sworn affidavit that follows defendant’s answer and cross-action, Oliver Bass, Jr. stated “That he has read the foregoing Answer and Cross-Action and that the facts contained therein are within his personal knowledge and that the same are true and correct.”

Plaintiff filed its motion for summary judgment accompanied by two supporting affidavits. One of the supporting affidavits was made by Laura Coon, who keeps records of sales made by the plaintiff while the other supporting affidavit was made by F. P. Granberry, who is a partner in the law firm that represents the plaintiffs. Oliver Bass filed an affidavit in opposition to plaintiff’s motion for summary judgment which stated “That the statement contained in Plaintiff’s Original Petition and in the Affidavit of Laura Coon that Plaintiff delivered 22,125 gallons of propane to Defendant during the month of March, 1972, is not true and correct and that affiant personally knows that Plaintiff could not have delivered in excess of 19,130 gallons of propane during the month of March, 1972, to the Defendant.” After having considered the pleadings and supporting affidavits of both parties, the trial court found that there was an absence of any genuine issue of material fact and granted summary judgment in favor of the plaintiff.

We affirm.

Defendant maintains in its third point that the trial court erred in holding that defendant’s original answer is insufficient under Rule 185 for two primary reasons.

First, defendant’s pleadings do not include a sworn denial that sufficiently traces the language requirements of Rules 93(k) and 185. Rule 185 provides that in a suit upon a sworn account the defendant must file a verified answer,

“ * * * stating that each and every item is not just or true, or that some specified item or items are not just and true * *

If a defendant files an answer not in compliance with Rules 93(k) and 185, he will not be permitted to deny the plaintiff’s claim or any item included within the claim. Wilson v. Browning Arms Company, 501 S.W.2d 705 (Tex.Civ.App., Houston, 14th Dist., 1973, writ ref’d.). A denial of a verified account must be in the terminology of Rule 185, and courts are extremely exacting in the nature of the language used in sworn denials of such accounts. Goodman v. Art Reproductions Corporation, 502 S.W.2d 592 (Tex.Civ.App., Dallas, 1973, writ ref’d., n. r. e.); A. G. Solar v. Petersson, 481 S.W.2d 212, 215 (Tex.Civ.App., Houston, 14th Dist., 1972, no writ); Duncan v. Butterowe, Inc., 474 S.W.2d 619 (Tex.Civ.App., Houston, 14th Dist., 1971, n. w. h.); Akins v. Coffee,. 376 S.W.2d 953 (Tex.Civ.App., Dallas, 1964, writ dism.).

Other than a general denial in its answer, appellant does not seem to deny that “each and every item is not just or true.” In other words, appellant does not seem to maintain that none of the alleged propane was delivered. (A sworn general denial is clearly inadequate compliance with Rules 93(k) and 185.) A. G. Solar v. Petersson, supra. Instead, appellant maintains that not all of the alleged 22,125 gallons of propane were delivered and that not all of the alleged $1,991.25 was owed because plaintiff could not have delivered in excess of 19,130 gallons which would have been valued at not in excess of $1,721.17. Therefore, defendant’s complaint is leveled at “some specified item or items” and will be so treated in our discussion.

Rule 93 states that “A pleading setting up any of the following matters, unless the truth of such matters appear of record, shall be verified by affidavit. * * (k) That an account which is the foundation of the plaintiff’s action, and supported by the affidavit, is not just; and, in such case, the answer shall state that each and every item is not just or true, or that some specified item or items are not just and true.” (Emphasis added.) Nowhere in its answer, cross-action and verifying affidavit, or even affidavit in opposition to summary judgment, does defendant come close to making a sworn denial in the language required by Rules 93(k) and 185. The nearest defendant comes to using the language required by Rules 93(k) and 185 is not even in its answer, as is required by Rule 93(k), but is in its affidavit in opposition to summary judgment in which it states “That the statement contained in Plaintiff’s Original Petition and in the Affidavit of Laura Coon that Plaintiff delivered 22,125 gallons of propane to Defendant during the month of March, 1972, is not true and correct ' * *.” Nowhere in its answer, cross-action and verifying affidavit, or even affidavit in opposition to summary judgment, does defendant deny the “justness” of plaintiff’s claim. If a defendant’s sworn denial is leveled at each and every item, he must state that “each and every item is not just or true.” (Emphasis added.) But, if a defendant’s sworn denial is leveled at some specified item or items, he must state that “some specified item or items are not just and true.” (Emphasis added.) McDonald v. Newlywed’s, Inc., 483 S.W.2d 334 (Tex.Civ.App., Texarkana, 1972, writ ref’d., n. r. e.); Duncan v. Butterowe, Inc., supra. “Every word of a statute (or rule) is presumed to have been used for a purpose, and a cardinal rule of statutory construction requires that each sentence, clause, phrase and word be given effect if reasonably possible.” (Emphasis added.) Eddins-Walcher Butane Company v. Calvert, 156 Tex. 587, 298 S.W.2d 93, 96 (1957); Findley v. Calvert, 509 S.W.2d 393 (Tex.Civ.App., Beaumont, 1974, n. w. h.). “Ordinarily the words ‘and’ and ‘or,’ are in no sense interchangeable terms, but, on the contrary, are used in the structure of language for purposes entirely variant, the former being strictly of a conjunctive, the latter, of a disjunctive nature.” Board of Insurance Commissioners v. Guardian Life Ins. Co., 142 Tex. 630, 180 S.W.2d 906, 908 (1944); Employers Casualty Company v. Patterson, 344 S.W.2d 199, 201 (Tex.Civ.App., Amarillo, 1961, n. w. h.). “And” means “also” or “in addition to.” Therefore, we believe that if a defendant is denying some specified item or items, the rule makers intended for him to deny both the “justness” and the “truth” of the plaintiff’s claim. Although “just” and “true” can be synonyms, they can have somewhat different meanings. “Just” can mean “fair” while “true” can mean “correct.” See First State Bank of Teague v. Hadden, 158 S.W. 1168, 1170 (Tex.Civ.App., Dallas, 1913, no writ) and Hughes v. Potts, 39 Tex.Civ.App. 179, 87 S.W. 708, 709 (1905, writ ref’d.). We do not believe that the rule makers would have been intentionally redundant by including two words, side by side, with identical meanings. It appears that the rule makers intended for the words “just” and “true” to have somewhat different meanings and that if a defendant’s denial is only leveled at some specified item or items, then it seems that the rule makers intended for the defendant to deny both the “justness” and the “truth” of plaintiff’s claim. In the case at bar, the defendant only denies delivery of some of the propane, not all of the propane.

Moreover, a comparison of the defendant’s alleged sworn denial in the case at bar with the defendant’s alleged sworn denial in Roy E. Youngblood v. Central Soya Company, Inc., 522 S.W.2d 277 (Tex.Civ.App., Fort Worth, 1975) shows that defendant did not sufficiently comply with the language requirements of Rules 93(k) and 185. In Youngblood, the defendant’s answer stated that “ * * * the account made the basis of Plaintiff’s suit is not just and true in that the Plaintiff has charged the Defendants a price in excess of the reasonable market value of the feed that it furnished * * * ” and the defendant’s verifying affidavit at the end of his answer and cross-action stated “ * * * the above Defendants’ First Amended Original Answer is true and correct.” In Youngblood, the court stated that the defendant did not deny under oath “that each and every item is not just or true, or that some specified item or items are not just and true” as is required by Rule 185. Certainly the defendant’s alleged sworn denial in Young-blood was much closer to the language requirements set forth in Rule 93(k) and 185 than the defendant’s alleged sworn denial in the case at bar, and in Youngblood the court held that the defendant’s sworn denial was insufficient. See Akins v. Coffee, supra.

Second, when the defendant’s denial questions only a part of the items (specified item or items), those put in issue must be set forth in intelligible detail. A. G. Solar v. Petersson, supra; 2 McDonald Texas Civil Practice, see. 7.31, at 241 (1970). The word “specified” has been construed to mean “mentioned or named in a specific manner, or told or stated precisely or in detail.” Republic National Bank of Dallas v. Strealy, 343 S.W.2d 284 (Tex.Civ.App., Forth Worth, 1961, reversed on other grounds 163 Tex. 36, 350 S.W.2d 914). The account filed by plaintiff in its original petition was set forth in careful detail. Plaintiff’s systematically kept records reveal that it made fourteen deliveries of propane to defendant during March, 1972. Plaintiff’s records also show the date on which each delivery was made, the number of gallons of propane that were delivered per delivery, the cost of propane per gallon at the time of each delivery, and the monetary value of each delivery. Nowhere in its answer, cross-action and verifying affidavit, or even affidavit in opposition to summary judgment, does defendant specify the deliveries (items) which he disputes, much less sets forth those items in intelligible detail.

In its other points defendant contends that the trial court erred in granting a summary judgment because there is a genuine issue of a material fact and because summary judgment is improper where the summary judgment evidence renders the position of the moving party untenable regardless of insufficient pleadings.

Rule 185 provides that in a suit on a sworn account plaintiff’s petition, properly verified, “shall be taken as prima facie evidence thereof.” Rule 185 also provides that unless the defendant files a written denial, denying the plaintiff’s allegations under oath, in the form provided, the defendant shall not be permitted to deny the plaintiff’s claim. Wilson v. Browning Arms Company, supra. Also see Hidalgo v. Surety Savings and Loan Association, 462 S.W.2d 540, Footnote 1 at 543 (Tex.Sup.1971). In the ease at bar, since the defendant did not file a written denial, in the form provided by Rule 185, it shall not be permitted to deny the plaintiff’s claim. Since defendant did not plead a sworn denial of the account in the form required by Rule 185 and 93(k), it follows that the validity of the account sued upon remains unchallenged and no issue of fact is presented. Roy E. Youngblood v. Central Soya Company, Inc., supra, and cases cited therein; Akins v. Coffee, supra. Summary judgment was therefore properly rendered in favor of plaintiff on the sworn account action.

All of defendant’s points have been considered and are overruled. The judgment of the trial court is affirmed.

      . All references herein are to Texas Rules of Civil Procedure unless otherwise indicated.


text:
    SLEEPY HOLLOW DEVELOPMENT CO. et al., Appellants, v. SOUTH PARK CIVIC CLUB et al., Appellees.
    No. 16467.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    April 24, 1975.
    Rehearing Denied May 22, 1975.
    Second Rehearing Denied July 10, 1975.

      Malone, Murphy, Fenley & Lee, W. R. Malone, Huntsville, for appellants.
    Wm. E. Hornbuckle, III, Oliver James Moak, Huntsville, for appellees.
   PEDEN, Justice.

Appeal from the granting of a temporary injunction in favor of appellees, South Park Civic Club and certain of its members who live in South Park Addition in Huntsville. The appellants are enjoined from selling lots within the addition of a smaller size than those shown on a recorded plat and from building any improvements on the company’s lots without prior approval of the architectural committee set up by the Civic Club. Appellees brought this suit under the Uniform Declaratory Judgments Act, Art. 2524 — 1, Vernon’s Ann.Texas Civil Statutes, to declare the rights, status and legal relations of the parties with respect to the recorded plat and restrictions of the addition, for temporary and permanent in-junctive relief and for damages.

Dr. and Mrs. M. D. Hanson were the original subdividers and developers of the addition. Twenty-two sales of lots were made by Dr. Hanson before Sleepy Hollow Development Co. bought the remaining 63 lots in the addition. Sleepy Hollow has since sold five. Appellant company claims the right to replat the remaining lots to a sixty-foot width and the right to approve its own building plans without submission to appellees’ architectural committee for approval.

The temporary injunction first enjoins the appellants from selling lots smaller than those shown on the recorded plat of the subdivision.

The dedication of South Park Addition was filed for record by the Hansons on December 7, 1966. It included these provisions:

“. . .do hereby adopt said attached plat for subdividing the land owned by us known as South Park Addition . and hereby dedicate for the use of the public the streets specified and shown thereon abutting land owned by us for the use of the purchasers and owners of the lots fronting thereon or adjacent thereto and for the use of the public generally . . . ”
“We do hereby designate all of the lots shown thereon owned by the undersigned as residential lots for single family dwellings and subject further to the following:
“(1) • • •
“(2) . . . (will be noticed later in
this opinion)
“(3) . . .
“(4) No residential structure shall be erected or placed on any building lot, which lot has an area of less than 6,850 square feet or a width of less than sixty (60) feet at the front building set-back line.

The dedication was recorded in Vol. 203 at Page 763 in the Deed Records of Walker County.

No plat appears to have been attached to the dedication instrument, but a map and plat of South Park Addition was recorded in Vol. 195 at Page 669 of the same Deed Records. All of the lots shown on the recorded plat, and not specifically excepted from the dedication by its own terms, are at least 99.5 feet wide. There is evidence that all but two are 100 feet wide and 125 feet deep.

By deed dated September 7,1972, Dr. and Mrs. Hanson conveyed the 63 unsold lots in South Park Addition to the appellant, describing them as “Being the unsold balance of all lots located in the South Park Addition to the City of Huntsville, Texas, as shown by map and plat of said subdivision recorded in Vol. 195, Page 669 of the Deed Records of Walker County, Texas . Here followed a description by lot and block numbers, of the property conveyed.

The deed contained this provision: “Grantors do further covenant and agree with Grantee that Grantee shall be entitled to replat the subdivision known as South Park Addition in which all of the lands and premises herein conveyed are located . . . ”

To warrant issuance of a temporary injunction, an applicant is not required to establish that he will prevail on final trial; he needs only to plead a cause of action and to show a probable right on final trial to the relief he seeks and probable injury in the interim. Sun Oil Co. v. Whitaker, 424 S.W.2d 216 (Tex.1968).

As to probable injury to the applicants, the president and manager of the appellant company testified that it claims the right to replat the subdivision and the right to sell lots as narrow as 60 feet wide.

In their first two points of error the appellants complain that the trial court erred in enjoining the sale of lots less than 100 feet wide because 1) the recorded dedication contemplated such sales and 2) the recorded plat and dedication did not prohibit such sales.

Purchasers of lots in the subdivision testified that before buying their lots they investigated and considered the fact that the recorded plat of the subdivision shows the lots were 100 feet wide. One purchaser stated that he relied on this factor in deciding to buy his lot.

It is difficult to harmonize and give effect to all of the provisions of the dedication so that none will be rendered meaningless, particularly the designation of the 100 foot wide lots shown on the plat as residential lots for single family dwellings, on the one hand, and the restriction against placing any residential structure on any building lot less than 60 feet wide, on the other hand.

The settled rule is that restrictions are construed strictly in favor of the grantee and against the grantor and in favor of the free and unrestricted use of the property. MacDonald v. Painter, 441 S.W.2d 179 (Tex.1969).

Applying that rule and considering the plat and the dedication together, it appears that the intention of the Hansons was to create a subdivision of residential lots each 100 feet wide for single family dwellings but not to restrict the property against the placing of a residential structure on any building lot which was 60 feet or more in width at the front building set-back line (and which had an area of at least 6,850 square feet).

We cannot say, under the facts developed in this case, that a general plan was maintained for development of the addition into lots at least 100 feet wide; we find nothing in the record to show that anyone had bought his lot after recording of the plat but before recording of the dedication.

We sustain the appellants’ first two points.

Appellants’ third through sixth points are that the trial court erred in enjoining construction without prior approval of the architectural committee of property owners because 3) appellants stood in the shoes of the original developer and thus held the exclusive privilege of approving plans and specifications, 4) the provisions of the recorded dedication pertaining to selection of this committee are void for uncertainty, 5) such committee was selected by owners of a minority of lots in the subdivision and now seeks to act in a manner which constitutes an inequitable and unconstitutional interference with the appellants’ property rights and 6) there was no proof of a reasonable basis for deciding that the applicants had a probable right of recovery or that they would suffer probable injury before the case could be tried on the merits.

The dedication contained this restriction:

“(2) So long as the undersigned own a majority of the lots included in these restrictive covenants, they shall have the privilege of approving plans and specifications for improvements to be placed on said restricted lots. After the undersigned have sold a majority of the lots then the then lot owners shall have the privilege of selecting a committee of not less than 3 lot owners to approve the plans and specifications for the improvements to be placed on said restricted lots.”

We overrule the appellants’ third point. The dedication reserved the privilege of approving plans and specifications to “the undersigned”; the undersigned were Dr. and Mrs. Hanson. No right to convey the privilege in question was retained, and “the undersigned” have now sold a majority of the lots.

Appellants’ fourth and fifth points present these problems: Is the meaning of the quoted restriction too uncertain to be enforceable? The uncertainty complained about is: Does it mean that after the Han-sons had sold a majority of the lots, selection of the committee was to be by a majority of owners of lots or by owners of a majority of lots?

We find no persuasive authority, either way, as to its meaning, but the record does not show which one was adopted in selecting the committee, so we cannot say the trial court erred in upholding its authority. We assume the matter will be more fully developed on final trial. We overrule the appellants’ fourth and fifth points of error.

We also overrule their sixth, and last, point. The president and manager of the appellant company testified that he has refused to allow the architectural committee to approve or disapprove plans and specifications for improvements in the addition. We hold that this testimony furnished a reasonable basis on which the trial court was entitled to conclude that the appellees would probably be injured pending final trial on the merits unless appellants were temporarily enjoined from violating the restriction in question.

One of the movants testified that, although he is not an expert, the houses built by Sleepy Hollow within the last few days were, to his knowledge and from outward appearances, of the same type and quality as the others in the addition. This testimony did not require the trial court to conclude that the movants would probably not be injured by a refusal of the temporary injunction in view of the refusal by appellants’ president and manager to submit plans to the committee.

We reverse and render the trial court’s order granting the temporary injunction as to the size of the lots, and we affirm the order as to the architectural committee.

On Motion for Rehearing

The appellees argue that the only question before an appellate court in reviewing the granting or refusal of a temporary injunction is the applicant’s right to a preservation of the status quo and that the trial court’s ruling is not to be disturbed on appeal unless a clear abuse of discretion is shown.

We agree with this statement of the law but consider that we must here apply the modification stated in Southland Life Insurance Co. v. Egan, 126 Tex. 160, 86 S.W.2d 722 (1935): “. . . the trial court abuses its discretion when it fails or refuses to apply the law to conceded or undisputed facts.”

The motion for rehearing is denied.


author: BREWSTER, Justice.

text:
    Beryl KLECKNER, Appellant, v. Gene McCLURE et al., Appellees.
    No. 17624.
    Court of Civil Appeals of Texas, Fort Worth.
    June 13, 1975.

      Nobles & Duncan and M. P. Duncan, III, Decatur, for appellant.
    W. B. Woodruff, Jr., Decatur, for appel-lee Gene McClure.
    John L. Hill, Atty. Gen. of Texas, and J. Arthur Sandlin, Asst. Atty. Gen., Austin, for Veterans’ Land Board of the State of Texas.
   OPINION

BREWSTER, Justice.

This trespass to try title suit was filed by the plaintiff, Beryl Kleckner, against the defendants, Veterans Land Board of the State of Texas and Gene McQlure, on March 26, 1973. The trial was to a jury. Two issues were submitted inquiring whether the plaintiff and those under whom he claimed, either in person or through tenants, had held exclusive, peaceable and adverse possession of the land in dispute, cultivating, using or enjoying same for a period of more than 10 years or for a period of more than 25 years prior to March 26, 1973. The jury answered both of those issues in plaintiff’s favor. The defendants’ motion for a judgment notwithstanding the verdict was granted by the trial court. Judgment was rendered decreeing that plaintiff take nothing by his suit against the two defendants, and this appeal is taken by the plaintiff from that decree.

We affirm.

The parties stipulated: (1) that plaintiff owned the record title to an 80 acre tract which was a part of Block 80 of the Bell County School Land Survey, Abstract No. 27 in Wise County, Texas; (2) he acquired this land through two deeds, one such being from Estha Smith and others, to him and his wife dated November 22, 1967, and the other deed being from Vilie Inez Patton, et al., to him and his wife dated August 18, 1967; (3) the defendant, Veterans Land Board, owned the record title to another 80 acre tract that is a part of Block 19 of the Bell County School Land, Abstract 27, in Wise County, Texas, by virtue of a deed dated September 11, 1969, from William Covington, Jr., individually and as independent executor of the estate of William Cov-ington, deceased; and (4) that Gene McClure owned the equitable title to this last mentioned tract by virtue of a contract of sale entered into between him and the Veterans Land Board.

The parties also stipulated that Blocks 30 and 19 of the Bell County School lands in Wise County are adjacent blocks and that the defendants owned no record title to any part of Block 30 and that the plaintiff, Kleckner, owned no record title to any part of Block 19.

The record, without dispute, showed that the plaintiff’s 80 acre tract and the defendants’ 80 acre tract were adjacent. The land in controversy was a strip 60 feet wide lying wholly within and being a part of the defendants’ 80 acre tract and running the entire length of the common boundary line between the plaintiff’s and defendants’ 80 acre tracts. The 60 foot strip was the part of defendants’ land that lay immediately adjacent to the plaintiff’s 80 acre tract.

Since the parties had stipulated that 'plaintiff owned no part of the record title to the strip of land in dispute, his right to recover title thereto hinged on whether or not he had introduced evidence that would create a fact issue as to whether or not he had acquired limitation title to that strip under either the 10 or 25 year Statutes of Limitation.

The undisputed evidence showed that plaintiff had not personally held adverse possession of the land in dispute for as long as 10 years because he did not buy his 80 acre tract until 1967 and he did not even come into the area until after he purchased his 80 acre tract. This suit was filed in March, 1973.

The question involved in this case is thus further narrowed down to whether the plaintiff and another or others with whom he can show privity of possession together held exclusive, peaceable and adverse possession of the tract involved continuously throughout the entire statutory limitation period. If he could make that showing then those successive periods of adverse possession can be tacked or added together in order to get the entire statutory limitation period. The limitation title would, under those circumstances, ripen into and become vested in the adverse possessor that had possession at the time the statutory limitation period expired. Art. 5516, Vernon’s Ann.Civ.St., and Philadelphia Trust Co. v. Johnson, 257 S.W. 280 (Beaumont Tex.Civ. App., 1923, writ dism.).

Plaintiff’s only point of error is that the trial court abused its discretion by granting defendants’ motion for judgment notwithstanding the verdict and in rendering judgment against plaintiff because there was probative evidence presented to support the jury’s verdict in favor of plaintiff.

We overrule that point.

Grounds E and F of defendants’ motion for judgment notwithstanding the verdict were as follows:

“E. Plaintiff failed to introduce any evidence of a continuous claim of title by Plaintiff or his predecessors in title to the property claimed by Plaintiff herein. Judgment should therefore be entered in favor of Defendant.
“F. Plaintiff failed to introduce evidence of a continuous claim of title by Plaintiff or his predecessors in title to the property claimed by Plaintiff herein, sufficient to perfect limitations title under any law of this State.”

We hold that both of those grounds of that motion were properly granted by the trial court for the reasons hereinafter set out.

The 25 year limitation statutes have no application to the facts of this case. Before Art. 5519, V.A.C.S. can apply, the claimant must be claiming under a deed or instruments conveying the land to him that are recorded in the deed records. Here plaintiff is not claiming the disputed tract under any recorded instruments. Pinchback v. Hockless, 138 Tex. 306, 158 S.W.2d 997 (Com.App., 1942, opn. adp.).

Article 5519a, V.A.C.S. does not apply in this case because no effort was made to prove that plaintiff or those under whom he claims had paid the taxes on the disputed property as is required by that statute. Pagel v. Pumphrey, 204 S.W.2d 58 (San Antonio Tex.Civ.App., 1947, ref., n. r. e.), and Purnell v. Gulihur, 339 S.W.2d 86 (El Paso Tex.Civ.App., 1960, ref., n. r. e.).

The undisputed evidence shows the following: at one time an old county road was located wholly on defendants’ 80 acre tract; fences were on each side of the road; the road ran from a northwesterly to a southeasterly direction at a 45 degree angle, as did the boundary line between the plaintiff’s and defendants’ 80 acre tracts; the fence on the northeasterly side of the roadway was located parallel to the roadway, wholly on defendants’ 80 acre tract, on a line that was parallel to and 60 feet from the boundary line between plaintiff’s and defendants’ tracts; this situation resulted in a strip 60 feet wide out of defendants’ 80 acre tract being cut off from the rest of defendants’ 80 acres, with a road lying between it and the rest of the defendants’ 80 acres; as stated, this 60 foot wide strip lay adjacent to the boundary line between plaintiff’s and defendants’ 80 acre tracts, and it was located wholly within defendants’ 80 acre tract; the evidence showed that for many years after 1907 this strip in dispute was farmed along with the plaintiff’s 80 acres by the people in possession of plaintiff’s 80 acres; not long after 1945 this old roadway was abandoned and the fence that lay along the southwesterly side of the road was allowed to deteriorate; the defendants in about 1969 acquired their 80 acres by deed from William Covington, Jr., individually and as independent executor of the estate of William Covington, deceased; William Covington for many years prior to 1969 was the record owner of 1700 acres of land located in this area, which 1700 acres included the defendants’ 80 acres and the land that is in dispute; Covington ran a ranching operation on this land; for many years prior to and continuing up to the time plaintiff bought his 80 acre tract in 1967, Covington had a grass lease on the plaintiff’s 80 acre tract from the prior owners of that land and he had the actual possession of that 80 acres during all the period that he had that land leased and he used it for grazing in connection with his ranching operation; during all that period of time that Covington had the 80 acres now owned by plaintiff leased he also had the actual possession of the strip of land that is in controversy; for those many years he grazed cattle on all of his 1700 acres, including the 60 foot strip of land that is in dispute and including the plaintiff’s 80 acre tract; the fence along the southwesterly side of the old roadway had been allowed to disintegrate and the fence along the other side of that roadway had gaps in it through which Covington’s cattle passed freely to graze as they pleased on both 80 acre tracts involved here, including the strip in dispute; after the plaintiff purchased his 80 acre tract in 1967 he continued to lease to Covington that tract for $80.00 a year for a period of about 3 years and during that first 3 year period of plaintiff’s ownership of the 80 acres, the man having the actual posession of plaintiff’s 80 acre tract and of the land in dispute was this William Covington who, without dispute, was also the owner of the record title to the land in controversy.

In other words the undisputed evidence showed that the man that had the actual possession of the disputed tract for many years just preceding plaintiff’s acquisition of his 80 acre tract in 1967 was the record owner of that land, William Covington. It was also undisputed that William Coving-ton, the record owner of the disputed strip, also had the actual possession of that disputed strip for the first 3 years following the time plaintiff acquired his 80 acres in 1967. .

The law applicable to the situation before us is set out in the case of Riddle v. Vandiver, 225 S.W.2d 460 (Texarkana Tex.Civ. App., 1949, no writ hist.) as follows: “ ‘To be effective as a means of acquiring title, the possession of an adverse claimant must be exclusive of the true owner. The owner must be wholly excluded from possession by claimant. Any sort of joint or common possession by claimant and the owner or a tenant of the owner prevents the possession of claimant from having the requisite quality of exclusiveness. In these circumstances, the law referred the possession to the person having the legal title.’ ”

The following cases also hold that in order to result in title by adverse possession, the possession by the limitation claimants must wholly exclude the record owners of the property: Wicks v. Langford, 320 S.W.2d 707 (Eastland Tex.Civ.App., 1959, no writ hist.); Rick v. Grubbs, 147 Tex. 267, 214 S.W.2d 925 (1948); Hardeman v. Mitchell, 444 S.W.2d 651 (Tyler Tex.Civ.App., 1969, no writ hist.), and Petty v. Dunn, 419 S.W.2d 417 (Tyler Tex.Civ.App., 1967, ref., n. r. e.). And to the same effect see 2 C.J.S. Adverse Possession § 55, p. 728.

The burden of proof is on one claiming title by adverse possession to prove every fact essential to his claim. Burnett v. Knight, 428 S.W.2d 470 (Dallas Tex.Civ.App., 1968, ref., n. r. e.).

No presumptions will be indulged in favor of a party claiming adversely under a limitation statute. Riddle v. Vandiver, 225 S.W.2d 460 (Texarkana Tex.Civ.App., 1949, no writ hist.).

The undisputed evidence in this case shows that plaintiff did not have exclusive adverse possession of the disputed tract for the first 3 years immediately following his acquisition of his 80 acres in 1967, because during that period Mr. William Covington, the owner of the record title to the disputed tract was in actual possession of it. This being true, the undisputed evidence showed that the plaintiff did not have exclusive adverse possession of the disputed tract for any period of time at all that could be tacked onto a prior period of exclusive adverse possession held by one of his predecessors in title with whom he was in privity, so as to give them together a period of continuous, exclusive, adverse possession for the limitation period.

In addition, the undisputed evidence shows that for many years prior to the time plaintiff came on the scene in 1967 Mr. Covington, the record owner of the disputed tract, had the actual possession of that tract, grazing his cattle on it during all that time.

Under these circumstances the undisputed evidence showed that none of plaintiff’s predecessors had held exclusive adverse possession of the disputed tract for any period of time on to which plaintiff could have legally tacked, and that there has been no continuous, exclusive, peaceable period of adverse possession of the disputed tract by plaintiff and his predecessors for a period of as much as 10 years that has ripened into a limitation title for the plaintiff since he came on the scene in 1967.

The plaintiff’s burden in the case was to show that he owned the title to the land in dispute. He did not meet this burden. Even if limitation title had matured in one or more of plaintiff’s predecessors prior to the time the plaintiff came on the scene in 1967, that fact would be of no benefit in this case to the plaintiff. If that had occurred the limitation title would still be in that predecessor, because the plaintiff has no written conveyance from him conveying the land in dispute to plaintiff. A limitation title cannot be transferred or conveyed orally any more than can a record title be conveyed orally. A verbal transfer of such a title is wholly ineffectual. See Art. 1288, V.A.C.S., Bridges v. Johnson, 69 Tex. 714, 7 S.W. 506 (1888); Reeves v. Houston Oil Co. of Texas, 230 S.W.2d 255 (Beaumont Tex.Civ.App., 1950, ref., n. r. e.), and Hurr v. Hildebrand, 388 S.W.2d 284 (Houston Tex.Civ.App., 1965, ref., n. r. e.).

In saying what we have said in the last paragraph above, we recognize that where one seeks to merely tack one period of adverse possession that is short of the statutory limitation period onto another (in instances where two adverse possessors are in privity with each other) in order to show adverse possession for one entire limitation period that a deed is not necessary in order to transfer that possessory right. 2 T.J.2d 156, Adverse Possession, Sec. 75, and Sterling v. Tarvin, 456 S.W.2d 529 (Fort Worth Tex.Civ.App., 1970, ref., n. r. e.). But once the limitation period has expired and limitation title has ripened or matured in the adverse possessor, it thereafter takes a deed in order to transfer the title that the adverse possessor acquired by limitations. Article 1288, V.A.C.S.

In addition to what we have said above, the record before us shows other deficiencies in the proof.

The plaintiff offered no evidence to show a privity of estate between him and those whose periods of adverse possession he seeks to have tacked onto his own. It was necessary in order for him to prove his case to make that proof. Rushing v. Lanier, 63 Tex.Civ.App. 40, 132 S.W. 528 (1910, writ ref.); Jakovich v. Nass, 185 S.W.2d 473 (Galveston Tex.Civ.App., 1945, no writ hist.), and Abramson v. Sullivan, 103 S.W.2d 229 (Austin Tex.Civ.App., 1937, no writ hist.).

In this connection, the parties stipulated that by virtue of two 1967 deeds the plaintiff became the owner of his 80 acre tract. .There was no proof of the length of time that plaintiff’s grantors owned their 80 acre tract and there was no evidence offered tending to show that they were ever in actual possession of the 80 acre tract or of the land in dispute. There was no evidence offered to show that they or any of plaintiff’s predecessors ever made any claim to the disputed tract that was hostile to and exclusive of the owner’s right to possession. The plaintiff himself testified that the record owner of the disputed strip had actual possession of it and of plaintiff’s 80 acres for many years prior to 1967. No evidence was offered to show any of the following: who plaintiff’s predecessors were; whether they ever had possession of the disputed tract, and if so, for how long; whether they were in privity with plaintiff and his vendors; and whether they ever made a claim to the disputed tract that was hostile to the owner.

The judgment is affirmed.


author: SHANNON, Justice.

text:
    Bernice LECHOW, Appellant, v. Edna MOORE, Appellee.
    No. 12305.
    Court of Civil Appeals of Texas, Austin.
    June 18, 1975.

      Bill Bender, Seguin, for appellant.
    T. Paul Bulmahn, Austin, for appellee.
   SHANNON, Justice.

The last will and testament of James L. Moore, deceased, was admitted to probate on February 11,1974, in the county court of Hays County. Appellee, Edna Moore, the widow of the deceased, and the successful proponent of the will, qualified as executrix of the estate. Appellant, Bernice Lechow, a daughter of the deceased, gave notice of appeal, filed a bond for appeal to the district court of Hays County, and filed the record made in the county court with the district clerk. Upon appellee’s motion, the district court entered a judgment dismissing appellant’s appeal for want of jurisdiction. It is from that judgment that appellant appeals to this Court. We will affirm the judgment of dismissal.

The right of appeal from probate court to district court no longer exists. Cluck v. Hester, 521 S.W.2d 845 (Tex.1975); Boyd v. Dean, 515 S.W.2d 753 (Tex.Civ.App. 1974, no writ); Butts v. Ailshie, 521 S.W.2d 155 (Tex.Civ.App.1975, no writ).

Before 1973, Tex.Const. Art. V, § 8, Vernon’s Ann.St. made allowance for appellate jurisdiction in probate matters m district courts. Likewise before 1973, Tex.Prob. Code Ann. § 5, V.A.T.S. provided that the “. . . district court shall have appellate jurisdiction and general control over the county court in all probate matters .” Tex.Prob.Code Ann. § 28 stated that, “Any person who may consider himself aggrieved by any decision, order, decree, or judgment of the court shall have the right to appeal therefrom to the district court of the county.”

Tex.Const. Art. V, § 8 was amended by popular vote in November of 1973. That amendment empowered the legislature to increase, diminish, or eliminate the jurisdiction of either the district court or the county court in probate matters. Tex.Prob.Code Ann. § 5 was amended in 1973 to provide “in the clearest possible language” that all final orders in applications, petitions, and motions regarding probate “. . . shall be appealable to the courts of (civil) appeals.” Boyd v. Dean, supra. The amendment of § 5 repealed § 28 by implication. Cluck v. Hester, supra; Butts v. Ailshie, supra.

Because the district court of Hays County had no jurisdiction to entertain appellant’s attempted appeal, that court’s judgment of dismissal is affirmed.

Affirmed.

      . Probate proceedings in the county court may be reviewed in district court by way of writ of certiorari. Tex.Prob.Code Ann. § 30, Cluck v. Hester, supra.


author: CULLEN, Commissioner.

text:
    Ann CETRULO et al., Appellants, v. CITY OF PARK HILLS, Kentucky et al., Appellees.
    Court of Appeals of Kentucky.
    June 20, 1975.
    J. Gregory Wehrman, Wehrman & Wehr-man, Covington, for appellants.
    Martin W. Mitchell, Adams, Brooking, Stepner & Mitchell, Covington, for appel-lees.
    Robert E. Ruberg, O’Hara, Ruberg, Ce-trulo & Osborne, Covington, for appellee Martha F. Butler.
   CULLEN, Commissioner.

The Kenton County and Municipal Planning and Zoning Commission approved a proposal by W. P. Butler Company for a “Planned Unit Development” (PUD), consisting of a seven-story condominium, on a YVfe-acre tract of land owned by Martha F. Butler, in an R — IE zone in the City of Park Hills. Neighboring property owners who had protested the proposal brought suit in the circuit court to stop the project, on the grounds (1) that the action of the zoning authorities was invalid and (2) that the Butler tract was subject to deed restrictions limiting the use of the tract to residential use in the form of single-family dwellings. The circuit court dismissed the action by a summary judgment, from which the plaintiffs appeal.

The appellants argue that the approval of the PUD use of the Butler tract amounted to a map amendment within the meaning of KRS 100.213, which involved adjudicatory action and which required properly supported findings of the facts set forth in KRS 100.213. The appellants maintain that the action of the zoning commission is invalid because it was not based on the required findings of fact supported by substantial evidence.

The appellants’ contention is not sustainable because the zoning action in question was not a map amendment but was an approval of a use specifically authorized by the terms of a text amendment of the zoning ordinance. The zoning ordinance of the City of Park Hills, as it existed prior to the adoption of the amendment in question, authorized PUDs in various zoning districts (not including the R — IE district) if found by the zoning commission to meet designated standards. The use of this type of zoning regulation was approved by this court in Bellemeade Company v. Priddle, Ky., 503 S.W.2d 734. The Butler company made application to have the ordinance amended to permit PUDs in the R — IE district also, which would mean that the zoning commission then could consider a specific proposal for a specific PUD in that district. The application was given full consideration by the zoning commission at a public hearing, at which the protestants were heard, following which the commission recommended that the amendment be made. Thereafter, the city council amended the ordinance as recommended.

After the amendment to the ordinance was adopted, the Butler company submitted to the zoning commission the specific proposal for a condominium on the Butler tract. Another hearing was held and the commission then approved the proposal.

Plainly, the amendment of the ordinance was not adjudicative action, but was legislative in nature. The type of hearing required for that kind of action was held. See City of Louisville v. McDonald, Ky., 470 S.W.2d 173. Since it did not involve a map amendment, KRS 100.213 was not applicable and the findings set forth therein were not required to be made.

The action by the zoning commission in approving the specific proposal for the PUD on the Butler tract (after the ordinance was amended) might be considered adjudicatory in nature but the appellants do not claim that there was a denial of a due process hearing on that action or that the proposed project did not conform to the designated standards for a PUD.

It is our conclusion that the circuit court properly dismissed the complaint as concerned the action of the zoning authorities.

The argument that there is a deed restriction against a condominium on the Butler tract is based on a clause in the deed by which the Butlers acquired title to the 7V2-acre tract, providing that “should the real estate herein conveyed be subdivided, each deed conveying any part thereof, or lot therein, shall contain restrictions thereon which shall be as similar as possible to, and in any event not less restrictive than, the restrictions heretofore imposed in the original conveyances of lots in Hillcrest Addition to Park Hills Subdivision.” The relevant restriction referred to, in the conveyances of lots in Hillcrest (by deeds from the same grantor as in the deed to the Butlers), was that the lots “shall be used for residential purposes only * * * and only one dwelling shall be erected on each lot hereby conveyed.”

By the plain language of the deed to the Butlers, the restriction referred to was not to become applicable to the Butler tract until it was subdivided; it clearly did not apply to use of the tract by the Butlers in its original unit. And in any event the obvious purpose of the restriction referred to was that multi-family dwellings not be put on lots of customary subdivision size, which purpose would not be defeated by erection of the proposed condominium on the tract of 7V2 acres.

We conclude, therefore, that the judgment was correct as to the deed-restriction matter.

The judgment is affirmed.

All concur.