author: McDONALD, Chief Justice.

text:
    Mrs. Rubin GOLDSTEIN, Individually and d/b/a Honest Joe’s, Appellant, v. KDFW, TEXAS PAWNBROKERS’ ASSOCIATION and Murray Chud, Appellees.
    No. 5590.
    Court of Civil Appeals of Texas, Waco.
    Sept. 9, 1976.
    Rehearing Denied Oct. 21, 1976.

      Levin, Weinberg & Levin, Dallas, for appellant.
    Jack Pew, Jr., Jackson, Walker, Win-stead, Cantwell & Miller, Bedsole & Bird, Dallas, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiff Mrs. Rubin Goldstein from summary judgment she take nothing in a libel action against defendants KDFW-TV, Texas Pawnbrokers’ Association, and Murray Chud.

Plaintiff Mrs. Rubin Goldstein sued defendants KDFW-TV, Texas Pawnbrokers’ Association, and Murray Chud for asserted libelous statements made against her by the KDFW-TV broadcaster and by Murray Chud individually and as spokesman for Texas Pawnbrokers’ Association in a KDFW-TV news broadcast on October 21, 1973 at 6 P.M. and 10 P.M.

Plaintiff alleged she and her deceased husband Rubin Goldstein operated a business in Dallas known as Joe’s Gun & Lock Shop since 1939; that plaintiff and her husband before her became known as “Honest Joe”; that the business consisted of retail and wholesale sales, equipment rental, gun and lock sales and repairs, purchase and sale of new and used items, and prior to 1972 as a pawnshop, at which time such pawnshop portion of the business was discontinued and other business activities continued; that on September 2, 1972 Rubin Goldstein died and the operation, ownership and control of the business has continued since such time in plaintiff, also known as “Honest Joe”; and plaintiff still continues operation of the business.

Plaintiff alleged on October 21, 1973 defendant KDFW broadcast, televised and published in its 6 P.M. and 10 P.M. broadcasts an interview with Murray Chud, spokesman for the Texas Pawnbrokers As-' sociation, false and defamatory matter as to plaintiff, announcing among other things plaintiff had some business relation to John Dillinger; that she acquired a “bad reputation”, “conducted a seedy business with unsuspecting victims”; “created a bad image for area pawnbrokers”; “failed to obey the laws, and was a renegade”.

Plaintiff alleged such remarks were libelous, made with malice, and sought actual and exemplary damages.

Defendants moved for summary judgment plaintiff take nothing, asserting among other matters the broadcast was not libelous of plaintiff and that she has failed to prove a libel action as a matter of law.

The record consists of the pleadings, transcript of the asserted libelous broadcast, motions for summary judgment, photos of plaintiff’s place of business, and depositions of plaintiff, Arnold Thomas, defendant Chud, and Tony Garcia.

The trial court granted defendants’ motions, and rendered judgment plaintiff take nothing.

Plaintiff appeals on 15 points contending among other matters the trial court erred in granting summary judgment plaintiff take nothing, because a genuine material issue of fact exists as to whether plaintiff was personally identified in the statements of Chud and Station KDFW, and whether such statements were libelous toward plaintiff.

Defendants by counterpoints assert the summary judgment correct because the broadcast as a matter of law was not a libel of plaintiff.

The text of the 2 broadcasts, with KDFW’s remarks in capitals and Chud’s remarks in regular type, follow:

The 6 P.M. broadcast:
“THE TEXAS PAWNBROKERS’ ASSOCIATION SAYS IT’S ATTEMPTING TO IMPROVE THE CLANDESTINE, SHADY IMAGE THAT THE PUBLIC PRESENTLY ASSOCIATE WITH THE PAWN BUSINESS.”
“THE NOW DEFUNCT, INFAMOUS, ‘HONEST JOE’S’ PAWN SHOP LOCATED IN EAST DALLAS, ACQUIRED A REPUTATION FOR CONDUCTING SEEDY BUSINESS WITH UNSUSPECTING VICTIMS. IT OPERATED DURING THE DAYS OF GANGSTER JOHN DILLINGER AND FINALLY CLOSED DOWN LAST YEAR. THE PRESIDENT OF THE TEXAS PAWNBROKERS’ ASSOCIATION CONTENDS THAT ‘HONEST JOE’S’ CREATED A BAD IMPRESSION.”
“It certainly did and I’m happy to say he was never a member of our association and unfortunately he has died and we hope that no one else will take his place because every other store in Dallas, especially those that are members of the association, run a very clean legitimate operation. We hope that interviews like this improve our image somewhat . . we are regulated by the state . . we welcome the legislation that went through so pawnbrokers would have to obey laws and this way we don’t have the renegades that we used to have.”
“OVER 100 PAWNBROKERS ARE CONVENING TODAY AND TOMORROW IN NORTH PARK INN, IN HOPES OF COMING UP WITH IDEAS TO IMPROVE THEIR PUBLIC IMAGE.”
The 10 P.M. broadcast:
“THE CLANDESTINE SHADY IMAGE ASSOCIATED WITH THE PAWNBROKERS’ BUSINESS DURING THE PAST DECADES IS IN PROCESS OF BEING IMPROVED.”
“THE ONCE THRIVING ‘HONEST JOE’S’ PAWN SHOP IS CLOSED NOW. BUT WHEN IT WAS IN OPERATION, DURING THE HEY DAY OF GANGSTER JOHN DILLINGER, HONEST JOE’S ACQUIRED A BAD REPUTATION FOR CONDUCTING SEEDY BUSINESS WITH UNSUSPECTING VICTIMS. ONE BROKER SAYS ‘HONEST JOE’S’ CREATED A BAD IMAGE FOR AREA PAWNBROKERS.”
(Chud’s remarks were identical as in the 6 P.M. telecast).
“OVER 100 MEMBERS OF THE TEXAS PAWNBROKERS’ ASSOCIATION ARE CONVENING IN DALLAS NORTH PARK INN DISCUSSING WAYS OF IMPROVING THE PAWNBROKERS IMAGE WITH THE PUBLIC.”

Plaintiff by deposition testified that her husband was known as “Honest Joe” during his lifetime; that upon his death, September 2, 1972, she became known as “Honest Joe”; that her husband and she during her husband’s lifetime operated a Pawnshop, gun shop, retail and wholesale business of new and used items until 1972; that commencing in 1972 the pawnshop was discontinued, and after her husband’s death she continued the sale of new and used items, operated a swap shop, but did not operate a pawnshop. And the record reflects that after December 31, 1971, neither plaintiff’s husband (nor plaintiff) had a license to operate a pawnshop.

Article 5430 VATS defines: “A libel is a defamation expressed in printing or writing * * * tending to injure the reputation of one who is alive, and thereby expose him to public hatred, contempt or ridicule, or financial injury, or to impeach the honesty, integrity, or virtue, or reputation of any one, or to publish the natural defects of any one and thereby expose such person to public hatred, ridicule, or financial injury.”

Newspapers Inc. v. Matthews, S.Ct., 339 S.W.2d 890 holds the asserted libel must refer to some ascertained or ascertainable person and that person must be the plaintiff; that it is not necessary that the individual referred to be named, if those who knew or were acquainted with the plaintiff understand from reading the publication that it referred to the plaintiff. See also: Miller v. Reinert, Waco, Tex.Civ.App., er. dis., 534 S.W.2d 161.

We examine the assertedly libelous broadcasts: The subject thereof is “Honest Joe’s Pawn Shop” which is mentioned in the past tense and is said in the broadcast to be out of business. The broadcast stated “Honest Joe’s Pawn Shop” was “infamous”; “acquired a reputation for conducting seedy business with unsuspecting victims”; operated during the days of John Dillinger; created a bad impression; that “Honest Joe” has died and it is the hope of the Pawnbroker’s Association “that no one will take his place”; that he was “one of the renegades we used to have.”

Plaintiff’s name is Bess Goldstein; her name was not mentioned in the broadcast; she is not a pawnbroker, and has never been a pawnbroker; the business has not had a pawnbroker license since December 31, 1971; and it was not until September 1972 that she became known as “Honest Joe”, a year after her husband had discontinued his pawnbroker’s business; and she has never done business as “Honest Joe’s Pawn Shop.”

We think the references in the broadcast to “Honest Joe” identify plaintiff’s deceased husband, and that they exclude plaintiff.

The matters complained of are thus not libelous to plaintiff as a matter of law.

All plaintiff’s points and contentions are overruled.

AFFIRMED.

      . Times Herald Printing Company d/b/a KDFW-TV.


source: Caselaw Access Project

license: Public Domain

text:
    Isauro GONZALEZ and Rufino Saenz, Appellants, v. Maria Fefugia GUAJARDO de GONZALEZ, Appellee.
    No. 5632.
    Court of Civil Appeals of Texas, Waco.
    Sept. 16, 1976.

      Armando Barrera, Canales & Barrera, Alice, for appellants.
    Dean C. Woodward and Homer E. Dean, Jr., Alice, for appellee.
   OPINION

McDONALD, Chief Justice.

This is a partition suit and involves 39 acres in Jim Wells County.

Plaintiffs Isauro Gonzalez and Rufino Saenz sued defendant Maria Gonzalez to partition 39 acres of land, alleging the land community property of defendant and her deceased husband Eliseo Gonzalez; that Eliseo died October 18,1958; that plaintiffs acquired ½ interest through the will of Eliseo; that defendant was entitled to ½ interest; that defendant abandoned her homestead rights in the property as she no longer occupies or uses it.

Plaintiffs sought judgment defendant had abandoned her homestead, and for partition of the land ½ to plaintiffs and ½ to defendant.

Defendant answered that 20 acres of the 39 acres was her separate property; that she had not abandoned her constitutional and testamentary life estate and homestead estate in the property; and prayed plaintiff take nothing.

Trial was before the court which rendered judgment: 1) the 39 acres was community property of Eliseo Gonzalez and defendant; 2) defendant owns a testamentary, constitutional and statutory homestead right in all 39 acres; 3) upon the death of defendant the property shall be partitioned into 2 specified shares of equal value, the 1st being set aside to plaintiffs; and the 2nd being set aside to the heirs or devisees of defendant.

Plaintiffs appeal on one point: “The trial court erred in denying partition of the property, and holding that defendant had not abandoned her homestead right in and to the 39 acres.

Defendant appeals on two points:

1. The trial court erred in denying the separate property character to the real property purchased with separate funds of defendant.

2. The trial court erred in denying a widow’s allowance to defendant.

Plaintiffs assert the trial court erred in holding defendant had not abandoned her homestead right in the property.

Defendant is 74 years old. She married Eliseo Gonzalez in March 1940. In 1946, 20 acres of the property was purchased. In 1947, 10 additional adjoining acres was purchased, and in 1950,10 more adjoining acres was purchased. (One acre was thereafter sold). Defendant and her husband built a home on the property and lived there until Eliseo died October 18, 1958. Eliseo left a will leaving defendant a homestead right in the property, and the balance to his 2 children Isauro and Aurora (antecedent of Ru-fino Saenz). Defendant stayed on the property several years after her husband died, but was forced to move to town because of her health. She maintains the house on the property; visits it often; plans to return to live on it; and there is furniture in the house. She deeded the property to her brother in 1971, before she had surgery (when she thought she was going to die); her brother deeded the property back to her the same year; and testified the property was not sold or given to him, but was put in his name in trust, to handle for defendant because she was sick at the time. Defendant rents the property to her brother for $175. per year; she also receives $101. per month Social Security and $73. per month Old Age Pension. Defendant claims the property as her homestead, and has never intended to abandon same.

Section 284 Texas Probate Code states: “The homestead shall not be partitioned among the heirs of the deceased during the lifetime of the widow, or so long as she elects to use or occupy the same as a homestead * *

After property has been impressed with the homestead character, a temporary renting of the homestead will not terminate its homestead character if no new homestead has been acquired. 28 Tex.Jur.2d 513; Texas Constitution Art. XVI, Sec. 51; Art. 3833 VATS. Whithan v. Kemp, S.Ct., Tex.Civ.App., 66 S.W.2d 462.

The trial court was authorized to believe and find defendant had not abandoned her homestead right in the 39 acres, and in denying partition prior to defendant’s death.

Defendant asserts the trial court erred in denying the separate property character to the real property purchased with funds of defendant; and in denying defendant a widow’s allowance.

Defendant married Eliseo in 1940. She testified that she owned a house in which her parents lived and sold it for $2000. in 1946, and purchased the first 20 acres. The deed to the property is to Eliseo and defendant, and recites a vendors lien for an unpaid balance of $200. Upon the death of her husband, defendant listed the 20 acres as her separate property in the inventory. Defendant contends that she is entitled to judgment that %2 of the 20 acres is her separate property.

Property acquired by spouses during marriage is presumed to be community property, and the law imposes upon the party asserting otherwise the burden of overcoming the presumption by clear and satisfactory evidence. Wilson v. Wilson, S.Ct., 145 Tex. 607, 201 S.W.2d 226.

Stated another way, the presumption of the community character of the property acquired by either spouse during marriage is very strong, and can be overcome only by clear and convincing proof that it belongs to one or the other of them, and the burden of proving its separate character is always upon him who asserts it. Stanley v. Stanley, CCA, NRE, Tex.Civ.App., 294 S.W.2d 132.

The foregoing is especially true where the deed is made to both parties, such fact raising the additional presumption that the spouses agreed that the property would be community property. Belkin v. Ray, S.Ct., 142 Tex. 71, 176 S.W.2d 162; Robbins v. Robbins, CCA, NWH, Tex.Civ.App., 519 S.W.2d 507.

And where the only evidence produced by a party is such party’s own testimony, such testimony of an interested witness only raises a fact issue for the finder of fact. This is true though the testimony not be contradicted. Kirtley v. Kirtley, CCA, Er. Dism’d, Tex.Civ.App., 417 S.W.2d 847.

The trial judge heard the witnesses and was judge of their credibility and of the weight to be given their testimony. We think he was authorized to find defendant did not overcome the presumption of the community character of the property, purchased during the marriage and deeded to both spouses, by clear and convincing proof that it was defendant’s separate property.

Defendant complains the trial court erred in denying her a widow’s allowance.

Section 286 of the Probate Code states:

“Immediately after the inventory, ap-praisement and list of claims have been approved, the court shall fix a family allowance for the support of the widow and minor children of the deceased.”

Defendant’s husband died in 1958. Defendant probated her husband’s will in the County Court in 1958. Such will recited that deceased “owned” 2 tracts of land, 1) the 20 acre tract and 2) the 19 acre tract. Such will provided defendant should have her choice of the 2 tracts, and that the other tract go to deceased’s 2 children, share and share alike.

The will further provided that if defendant refused to waive her homestead exemption, that both tracts go to deceased’s 2 children.

Defendant refused to waive her homestead rights, so deceased’s interest in both tracts went to plaintiffs.

Defendant’s “accounting” of the properties of the estate coming into her hand, filed in 1974, reflects 1) the land is in her possession being used as a homestead; 2) the pickup truck was delivered to the bank in satisfaction of debt against it; 3) the 23 head of cattle; 14 head sold for $1000.; 2 died and 1 was stolen; 6 were consumed by defendant for her support; and the $1000. was used to pay bills of the parties.

Defendant made no claim for a widow’s allowance until she filed her 1st Amended Original Answer in District Court on August 28, 1975.

Miller v. Miller, S.Ct., 149 Tex. 543, 235 S.W.2d 624 (Headnote 4) holds that if the widow elects to take her one half of the community property, and further elects to take her homestead under the will, as here that she cannot further claim widow’s allowance.

And the amount of allowance for a widow’s support in lieu of exempt personalty and homestead is addressed to the Court’s discretion. San Angelo National Bank v. Wright, CCA, Er. Refused, Tex.Civ.App., 66 S.W.2d 804.

Defendant received homestead in the entire tract, the $1000. received from sale of 14 head of the cattle was used in part to pay her bills; and 6 head of the cattle were consumed by defendant for her support.

The trial court did not err in denying defendant a widow’s allowance.

Plaintiffs’ point and defendant’s 2 points are overruled.

AFFIRMED.

      . Plaintiff Isauro Gonzalez is a son of Eliseo Gonzalez by a prior marriage; plaintiff Rufino Saenz is a h brother and heir of Aurora Gonzalez, deceased, who was a sister to Isauro. Eliseo’s will devised Isauro and Aurora his interest in the 39 acres, subject to defendant’s homestead rights.


author: BISSETT, Justice.

text:
    LOEB, RHOADES & COMPANY, Appellant, v. John J. STANLEY, Appellee.
    No. 1091.
    Court of Civil Appeals of Texas, Corpus Christi.
    Sept. 16, 1976.
    Rehearing Denied Oct. 21, 1976.

      Jack K. Dahlberg, Jr., Allison & Garcia, Corpus Christi, Charles P. Fincher, Brownsville, for appellant.
    John J. Stanley, pro se.
   OPINION

BISSETT, Justice.

This is an appeal from a judgment against a stock brokerage company for damages allegedly sustained because of its failure to timely transact an order in securities. Plaintiff John J. Stanley, entered a “sell short” order with defendant Loeb, Rhoades & Company (Loeb), an investment securities brokerage company. Loeb purchased the requested stock for Stanley, who later sold the stock at a loss. Stanley then filed suit against Loeb and its employee, Jack N. Sutter, for damages as a result of Loeb’s failure to complete Stanley’s “short sale order” within the time allegedly directed. Trial was to the court without a jury. A take nothing judgment as to Sutter was rendered, and judgment in favor of Stanley in the amount of $1,425.00 was rendered against Loeb, who has appealed.

Stanley alleged that on November 20, 1973, he telephoned Sutter, who was employed by Loeb, Rhoades & Company as a securities salesman, and gave him an order to “sell short” 200 shares of McDonald Corporation; that he reaffirmed the order by telephone on November 21, 1973, and again on November 23, 1973; that the transaction was not completed until November 26,1973, when the stock was sold at a price which resulted in the loss of a substantial profit to him.

A “short sale” is highly speculative. By a “short sale”, a person undertakes to sell stock that he does not own at the time the order is given to the broker, in the hope that the price will drop during the period of time that the person is in the “short” position, and if that does occur, then the person stands to make a profit of the difference between the price that he “sold” the stock pursuant to the “short” sale order, and the subsequent price of the stock when he later purchased it to cover the “short” sale. It is the policy -of the brokerage firm (Loeb), upon receipt of a “short” sale order, not to do anything until it has received permission from its New York City Headquarters to place such an order. If permission is so granted, then it becomes the duty of the broker to execute the order by borrowing or through other means acquiring the stock, and to close it in accordance with the instructions of the customer and the requirements of the New York Stock Exchange. One of such requirements was that before a “short sale” could be made, the stock being “shorted” had to be on the “uptick”. An “uptick” is a rise in price. Permission to “short” must be given on each day and such permission, when given on a particular day, cannot be carried over to the next business day.

This controversy arose from disputed facts surrounding Stanley’s orders to Sutter regarding the “short” sale. Stanley contends he requested Sutter to sell “at the market” but not to “let the price drop below 40.” According to Sutter, Stanley told him to “go ahead and do the best you can, but don’t let it go under 40”.

Concerning the telephone conversation between Stanley and Sutter relating to the placing of the order, Stanley testified:

“On the 20th of November, 1973, I placed a telephone call by long distance from Harlingen, Texas, to Loeb, Rhoades & Company, the Defendants, and gave an order to short 200 shares of McDonalds Corporation and he, in turn, asked me at what price and I said, ‘At the market,’ and he, in turn, . . . said, ‘You can’t. You have to have an uptick,’ and I said — I believe I said I — ‘Go ahead and get one then,’ or ‘Get one,’ or words to that effect, and I said, ‘But don’t let it drop below 50.’ I believe that — no, I am sorry, I said, ‘Don’t let it drop below 40.’ And he accepted my order.”

Sutter, when asked: “Did the plaintiff give you a market order?”, replied:

“To the best of my recollection, no, sir. He called me and stated he wished to short 200 shares of McDonalds and I told him immediately, ‘Before we can do it, I’ll have to get permission from New York to short the stock and, from there, we’ll have to have an uptick. My understanding is, ‘Well, go ahead and do the best you can, but don’t let it go under 40.’ ”

Upon the conclusion of his conversation with Stanley, Sutter sought permission from New York to make the “short” sale, but due to the lateness of the order, did not receive an answer prior to the closing of the market on that day. On the following day, November 21, 1973, Sutter again requested permission to short the stock. Permission was then granted by Loeb. Stanley then called back and reaffirmed his order with Sutter, who in turn placed a “sale order” at 52 or better. It was established by the evidence that on this date (November 21), McDonald was trading at a high of 56V4 to a low of 51, and finally closed at 51V2. Sutter testified that in his judgment the trading price of McDonald on this date was not the most advantageous and, even though the stock made an uptick in price, he decided not to buy at this time. No trading occurred the next day due to the Exchange being closed for Thanksgiving. On Friday, November 23, 1973, Stanley again reaffirmed his order but Sutter was unable to place it. The sale was finally made on November 26, 1973 at 44¼. Stanley, as part of his obligation in a short order transaction, deposited money in a special “margin contract account maintained specifically for such transactions.” Thereafter on March 4, 1974, Stanley completed the “short” sale by purchasing 200 shares of McDonald stock, 100 shares at 52⅝ and 100 shares at 52/i.

The trial court, among other findings of fact found: 1) Stanley on November 20, 1973, directed Sutter, a broker with Loeb, Rhoades & Company, to sell for him “short” 200 shares of McDonald Corporation upon Sutter’s receiving permission from Loeb; 2) Stanley on November 21st again placed his order for the stock with Sutter, to be sold “short” and “at the market”; 3) Sutter failed to place the order on November 21st; 4) on November 26, 1973, Sutter placed Stanley’s order for McDonald at 44¼; 5) that but for Sutter’s failure to make the order sooner, the sale could have been made at 51⅜; 6) that Stanley sustained damages in the amount of $1,425.00 as a result.

In its conclusions of law, the court found: 1) the acts of Loeb and Sutter constituted negligence; 2) that such act was a breach of contract on Loeb’s and Sutter’s part; 3) that such negligence or breach of contract resulted in Stanley’s loss of $1,425.00.

The findings of. fact and conclusions of law are attacked by “no evidence”: and “against the greater weight and preponderance of the evidence" points (1 — 19). In point 20, it is contended that the “evidence shows as a matter of law that Sutter ‘shorted’ the stock within the price range directed by Plaintiff and, therefore, Plaintiff did not sustain any legally recoverable, compensa-ble damages”.

The only witnesses who testified at the trial were Stanley and Sutter. The testimony of a party to a suit raises an issue of fact. Bishop v. Bishop, 359 S.W.2d 869 (Tex.Sup.1962). It is within the sole province of the trier of fact, who had the opportunity to observe the demeanor of the witnesses on the stand, to judge their credibility and the weight to be given their testimony, to resolve conflicts in the testimony of one witness with testimony of another witness, and to believe part of a witness’ testimony and to disregard other portions of his testimony. United States Fidelity & Guaranty Co. v. Carr, 242 S.W.2d 224 (Tex.Civ.App., San Antonio 1951, writ ref’d); Royal v. Cameron, 382 S.W.2d 335 (Tex.Civ.App., Tyler 1964, writ ref’d, n.r.e.); Ohlen v. Hagar, 212 S.W.2d 253 (Tex.Civ.App., Fort Worth 1948, writ ref’d, n.r.e.); Hall v. Villarreal Development Corporation, 517 S.W.2d 326 (Tex.Civ.App., Corpus Christi 1974, writ dism’d).

The findings of fact made by the trial court will be sustained if there is some evidence of probative value to support them and they are not against the great weight and preponderance of the evidence. Dyer v. Caldcleugh & Powers, 392 S.W.2d 523 (Tex.Civ.App., Corpus Christi 1965, writ ref’d n.r.e.); Miller v. Puritan Fashions Corporation, 516 S.W.2d 234 (Tex.Civ.App., Waco 1974, writ ref’d n.r.e.); Bavousett v. Bradshaw, 332 S.W.2d 155 (Tex.Civ.App., Amarillo 1959, writ ref’d n.r.e.); Cortez v. Cortez, 457 S.W.2d 131 (Tex.Civ.App., San Antonio 1970, no writ).

A Court of Civil Appeals cannot substitute its judgment for that of the trier of fact, even though after reviewing the evidence it may have reached a different conclusion from that of the jury or the trial judge sitting without a jury. Bardwell v. Anderson, 325 S.W.2d 929 (Tex.Civ.App., Houston 1959, writ ref’d n.r.e.); Dyer v. Sterett, 248 S.W.2d 234 (Tex.Civ.App., San Antonio 1952, no writ). Nor may a Court of Civil Appeals pass upon the credibility of witnesses or substitute its findings for those made by the trial judge or jury, as the case may be. Burchfield v. Tanner, 142 Tex. 404, 178 S.W.2d 681 (1944).

In the case at bar, there is a direct conflict in the evidence with regard to the instructions which Stanley gave to Sutter on November 20, 1973, which were reaffirmed thereafter, as has been stated. There is probative evidence that Stanley told Sutter to make the “short” sale “at the market”. There is also probative evidence that he did not so instruct Sutter, but, instead directed him to sell “short” and “do the best you can”. The conflict was resolved in favor of Stanley. It is undisputed that there was an “uptick” on November 23, 1973, and had Sutter sold the stock on that day following such an “uptick”, Stanley would not have sustained a loss in the amount of $1,425.00, the amount of the judgment award. There is evidence to support the findings of fact complained of in this appeal. They are not against the “greater weight and preponderance of the evidence”. The conclusions of law of the trial judge are warranted by the evidence. Points 1 to 20 are overruled.

We have carefully reviewed the record in its entirety. We have also considered Loeb’s remaining points of error. They are all overruled.

The judgment of the trial court is AFFIRMED.


author: KEITH, Justice.

text:
    William LEINERT, Independent Executor of the Estate of Jessie M. Hagedorn, Deceased, Appellant, v. SABINE NATIONAL BANK, Appellee.
    No. 7855.
    Court of Civil Appeals of Texas, Beaumont.
    Sept. 16, 1976.
    Rehearing Denied Oct. 7, 1976.

      H. J. Bernard, Houston, for appellant.
    James M. Black, Port Arthur, for appel-lee.
   KEITH, Justice.

The summary judgment below denied plaintiff any recovery in his suit against the defendant bank for the loss of the proceeds of a check. While we review an incomplete factual record consisting solely of answers to requests for admission of facts and interrogatories, there is little, if any, dispute between the parties.

However, we encounter a procedural problem at the threshold which requires attention before we reach the merits of the appeal. Plaintiff below, our appellant, filed his brief on May 27,1976, and it contained a section entitled “Statement of the Points Relied Upon” followed by two “statements” which are set out in the margin. On June 18, defendant bank filed its reply brief. Then, without any request having been made to this court for permission, plaintiff filed, on July 1, 1976, what is denominated as his “amended brief.” This is much more elaborate than his original brief and contains eight “statements” similar to those which appeared in his original brief.

The only authority known to us authorizing the filing of amended briefs is that set forth in Tex.R.Civ.P. 431 and it is obvious that leave of the court must first be obtained to file such brief; and, such leave will be granted only “when justice requires,” and then the permission to file will be “upon such reasonable terms as the court may prescribe.”

The plaintiff has not brought himself within the terms of the rule authorizing the filing of the amended brief; and, under the circumstances shown, it is our opinion that plaintiff’s amended brief should be stricken and it is so ordered. See and compare Texas Technological College v. Fry, 288 S.W.2d 799, 801 (Tex.Civ.App.—Amarillo 1956, no writ).

When we return to a consideration of the merits of the appeal as presented in the original brief, we find that Guaranty National Bank in Houston issued its cashier’s check in the amount of $4,055 payable “to the order of Sabine National Bank and Jessie M. Hagedorn or Dolores K. Ward,” the check bearing the date of October 26, 1974. On or about the 31st day of October the check was credited to Account No. 031— 757 — 1 in the defendant bank and it was shown that only Sharon J. Lee or Jessie M. Hagedorn were authorized to make withdrawals from said account.

A photocopy of the reverse side of the check discloses that the check was accepted by the defendant bank without any type of indorsement having been placed thereon by any of the payees, the only indorsement being the regular stamped bank indorsement wherein it was sent to Guaranty Bank for payment.

On November 1, Jackie Lee signed a check upon Account No. 031-757-1 for the sum of $4,055 and deposited it into Account No. 031-553-6, an account in the name of “Jackie Lee or Larry Lee.” Defendant did not have specific authority, either oral or written, to make the deposit of the Guaranty check without requiring indorsement thereof by the payees. And, defendant admitted that the entire transaction was handled without the supervision or participation of any officer or director of the bank.

The parties have filed a stipulation to which is attached a photocopy of the signature card controlling Account No. 031— 757 — 1 (the joint account of Sharon J. Lee and Jessie M. Hagedorn into which the Guaranty check was deposited) and the card shows that the defendant bank was authorized to honor withdrawals from said account upon checks signed by “Jackie Lee.” Furthermore, the parties have stipulated that Sharon J. Lee and Jackie Lee are the same person. Neither party attempts to explain the relationship of Dolores K. Ward to the transaction.

Both sides moved for a summary judgment upon the pleadings, requests, interrogatories, and admissions. Defendant’s motion was granted and that of plaintiff denied and plaintiff has appealed.

The parties have not cited us case law upon the narrow point under consideration and we have not found any precisely in point in the course of our own research. However, under the peculiar record which we review, we are of the opinion that plaintiff may not prevail. The defendant bank was one of the joint payees (along with Jessie Hagedorn) of the check. Under the statutes noted later, the bank and Hage-dorn could negotiate the check or the other payee, Dolores K. Ward, could negotiate it alone.

The bank’s indorsement is upon the check; the proceeds went into an account of the other payee; thus, we conclude that its indorsement was sufficient. Tex.Bus. & Comm.Code Ann. § 4.205 (Tex.U.C.C.1968).

The defendant bank relies upon the first subsection of Tex.Rev.Civ.Stat.Ann. art. 342 — 706 (1973) reading: “A bank may pay a present or future deposit, payable to or on the order of (a) any one of two or more persons . . . .” We note that this statute is compatible with the provisions of the Uniform Commercial Code, Tex.Bus. & Comm.Code Ann. § 3.116 (1968), reading:

“An instrument payable to the order of two or more persons
(1) if in the alternative is payable to any one of them and may be negotiated, discharged or enforced by any of them who has possession of it; . .”

The provision in the Banking Code (Tex. Rev.Civ.Stat.Ann. art. 342-706) is also consistent with subdivision (a) of the Uniform Commercial Code, Tex.Bus. & Comm.Code Ann. § 4.205, quoted in the margin. See Main Bank of Houston v. Davy Crockett Inn, Etc., 531 S.W.2d 388, 390 (Tex.Civ.App.—Austin 1975, no writ).

We agree with the major premise of plaintiff which is stated in this manner:

“When a bank account is in the names of A and B, funds therein are the joint property of A and B who are considered to be joint tenants in the absence of evidence of a contrary intent known to the bank. [9] C.J.S. Banks and Banking § 286, p. 595 [1938]. On the other hand, it is well established that a checking account in the names of A or B enables either party to exercise total control over it; either A or B can draw a check on said account to the same extent as if it were A’s or B’s separate account.”

We disagree, however, with plaintiff’s claim that “it was improper” for the bank to deposit the cheek into the joint account. Plaintiff cites no authority for the contention so advanced and we find none which would lead us to uphold it.

Contrary to the position now taken by plaintiff, it was held in Danner v. McMahan, 490 S.W.2d 213, 217 (Tex.Civ.App.—Amarillo 1973, writ ref’d n. r. e.):

“[U]nder the Banking Code’s renumbered art. 342-706, V.A.C.S., until it is served with court process, a bank may pay to the survivor without liability, and under the rationale of Krueger v. Williams, 163 Tex. 545, 359 S.W.2d 48 (1962), a party with survivorship rights is entitled to receive as the owner, joint ‘or’ deposits after the death of the other joint owner.”

The joint owner, in this case, withdrew the funds from the “or” account during the lifetime of the other owner of the funds. This was authorized by Art. 342-706; and, plaintiff-executor has no cause of action against the defendant bank because it paid the check drawn by the joint owner of the account.

While the procedures employed by the defendant bank in handling this transaction are not to be commended to the industry as standard operating procedures, from our review of the contentions of the plaintiff and the authorities, we do not find error; consequently, the judgment of the trial court is affirmed.

STEPHENSON, J., not participating.

      .“1. Appellee acted without authority and contrary to its obligations to Jessie M. Hage-dorn in depositing without endorsement the $4,055.00 cashier’s check in Checking Account No. 031-757-1.
      “2. Appellee acted without authority and contrary to its obligations to Jessie M. Hage-dorn in permitting Jackie Lee to withdraw the $4,055.00 which had been deposited in Checking Account No. 031-757-1.”

        . The pertinent part of the rule reads: “Briefs may be amended or supplemented at any time when justice requires upon such reasonable terms as the court may prescribe . . .

      . This account was carried on the bank records as “Sharon J. Lee or Jessie M. Hagedorn.” However, the handwritten signatures on the signature card were those of “Jackie Lee” and Jessie M. Hagedorn.

      . “(a) A depositary bank which has taken an item for collection may supply any indorsement of the customer which is necessary to title unless the item contains the words ‘payee’s indorsement required’ or the like. In the absence of such a requirement a statement placed on the item by the depositary bank to the effect that the item was deposited by a customer or credited to his account is effective as the customer’s indorsement.”


author: DIES, Chief Justice.

text:
    B. H. "Brodie” JONES, Appellant, v. OGLETREE LUMBER COMPANY et al., Appellees.
    No. 7856.
    Court of Civil Appeals of Texas, Beaumont.
    Sept. 16, 1976.
    Rehearing Denied Oct. 7, 1976.

      W. R. Malone, Huntsville, for appellant.
    William R. Choate, Houston, for appel-lees.
   DIES, Chief Justice.

The Ogletree Lumber Company, a partnership, as plaintiffs below, sued defendant below, B. H. “Brodie” Jones, to remove cloud from title to a 20.7 acre tract of land. The trial court granted Ogletree’s motion for summary judgment from which Jones has perfected this appeal. The parties will be referred to as they were below.

In a prior suit, plaintiffs brought suit against defendant describing the same property. The petition in the former suit contained two paragraphs in the form of a statutory trespass to try title action. The remaining paragraphs alleged damages by reason of wrongful cutting of timber. The prayer was for money judgment, and “any other relief to which they [plaintiffs] may be entitled.”

Defendant Jones filed a plea of not guilty, general denial, and alternatively pleaded honest mistake as regards the timber cutting. On November 23, 1955, the court dismissed this cause using this language: “[T]his suit, together with the cause of action alleged therein by the Plaintiffs as against the Defendant, Brodie Jones, be, and the same is hereby dismissed with prejudice against the Plaintiffs.” Costs were taxed against defendant Jones. Defendant Jones says this dismissal with prejudice gave him title to the property and is res adjudicata of the case we now review. He cites Zimmerman v. Texaco, Inc., 409 S.W.2d 607, 614 (Tex.Civ.App.—El Paso 1966, writ ref’d n.r.e.), 413 S.W.2d 387 (Tex.1967), saying:

“Such an order is, of course, usually a determination of the merits of the lawsuit, rather than a plain dismissal.”

He also quoted 27 C.J.S. Dismissal and Non-suit § 39 (1959) at 380:

“A voluntary dismissal of a complaint with prejudice operates as an adjudication on the merits terminating the action and concluding the rights of the parties.”

In Permian Oil Co. v. Smith, 129 Tex. 413, 73 S.W.2d 490 (1934), 107 S.W.2d 564 (Tex.1937), 111 A.L.R. 1152 (1934), the petition in a prior suit was in the statutory form of trespass to try title describing sections 103 and 104. Judgment was that plaintiff take nothing by his suit. In a second suit, plaintiff held under the defendant in the prior suit and asserted title to section 103 by virtue of the take nothing judgment. Defendants there contended the title to section 103 was not determined by the. take nothing judgment because the fact issue tried and determined in that suit was one of boundary only and not title. The court held the judgment was unambiguous and that its effect was to vest the title to the defendants in that cause.

This decision was somewhat modified in Poth v. Roosth, 146 Tex. 7, 202 S.W.2d 442, 445 (1947), permitting examination of the pleadings in the prior suit “in order to determine the scope and meaning of a take nothing judgment.” See also Cargile v. Carter, 326 S.W.2d 208 (Tex.Civ.App.—Texarkana 1959, writ ref’d n.r.e.). In City of Houston v. Miller, 436 S.W.2d 368, 372 (Tex.Civ.App.—Houston [14th Dist.] 1968, writ ref’d n.r.e.), the court said:

“We believe it to be clearly the law of this state that the pleadings of the parties may be considered to determine the scope and meaning of a ‘take nothing’ judgment in trespass to try title.”

See also, Richerson v. Pounds, 223 S.W.2d 668 (Tex.Civ.App.—Waco 1949, no writ).

When we examine the pleadings involved here (see Tex.R.Civ.P. 783) it seems clear the court was dismissing with prejudice only plaintiff’s suit for money damages for wrongful cutting and did not intend to transfer title to the land to defendant Jones. This is more evident when the court adjudged the costs in the previous case against defendant Jones. This point of error is overruled.

Appellant Jones under his fourth point of error asserts as “another reason why . ” the deeds offered by appellees cannot be relied upon for summary judgment that the “certified copies of said deeds were not attached to the affidavit supporting the Appellees’ (Plaintiffs) Motion for Summary Judgment, or served therewith.” We find no merit in this contention.

The record shows that the certified copies of the deeds in question were attached to appellees’ second amended abstract of title which was in affidavit form. While this document was not attached to appellees’ motion for summary judgment, it can be considered as having been properly before the trial court as an admission. In Looney v. First National Bank of Floresville, 322 S.W.2d 53, 55 (Tex.Civ.App.—San Antonio 1959, writ ref’d n.r.e.), involving a summary judgment in a trespass to try title suit, the court stated:

“It is true that appellants, Looney et al., originally filed a trespass to try title suit which did not disclose the title under which they were claiming, but when they filed their abstract of title it disclosed that they were claiming as devisees under the will of Isaac S. Hurt, deceased, and unless they change or abandon this abstract of title, with leave of the court, they are bound thereby, and in a summary judgment proceeding their abstract of title can be considered by the court as an admission by them that they are claiming as devisees under the will of Isaac S. Hurt. Rule 794, Texas Rules of Civil Procedure.” (Emphasis added)

Appellant has other points which we find have no merit and they are overruled. The order of the trial court granting summary judgment for appellees is, therefore, affirmed.

STEPHENSON, J., not participating.


text:
    Ella Marie LOONEY, Appellant, v. Willis L. LOONEY, Appellee.
    No. 7857.
    Court of Civil Appeals of Texas, Beaumont.
    Sept. 23, 1976.

      Ernest L. Sample, Beaumont, for appellant.
    Everett B. Lord, Beaumont, for appellee.
   DIES, Chief Justice.

Ella Marie Looney (wife) sued Willis L. Looney (husband) for divorce and property division. Trial was to the court without a jury from which wife perfects this appeal, complaining only of the property division.

We begin this review by repeating the oft-stated rule in these attacks that Texas divorce courts are given wide discretion in making a division of the estate of the parties; equal division is not required; upon appeal it is presumed that the trial court exercised its discretion properly, and the cause will be reversed only where there is a clear abuse of discretion. Wilkerson v. Wilkerson, 515 S.W.2d 52, 55 (Tex.Civ.App.—Tyler 1974, no writ), and authorities cited.

Wife contends the court erred in failing to take into account and to consider the amount of payments during the marriage on pre-marital liens against property awarded husband as his separate property. During the six-year marriage of the parties, $19,095.15 principal was paid on three notes that had been given by husband for realty acquired prior to the marriage. We believe wife would be entitled to an accounting for these funds. Bazile v. Bazile, 465 S.W.2d 181, 182 (Tex.Civ.App.—Houston [1st Dist.] 1971, writ dism’d):

“When community funds are used as purchase money for real property which is separate property of one spouse, the other spouse is entitled to reimbursement for his or her share of the community funds so paid and the reimbursement is not limited to the enhancement of the property. The enhancement limitation applies to the value of improvements placed upon separate property by the community or by separate property of the other spouse.”

But we cannot agree that the trial court here ignored these payments. Almost all of the property awarded husband was previously stipulated by the parties as acquired by him before the marriage. And when we consider the items awarded wife, together with the fact that husband was ordered to pay “all debts due and owing by the parties” ($109,841.38), we find no abuse of discretion. This point is overruled.

Wife further contends that the court erred in holding that she had no pleading to support a judgment against separate property of husband and in refusing to fix a lien or award a portion of the property as reimbursement to the community for lack of adequate pleading.

The starting point in developing a case where the question of division of property is contested is the task of establishing the nature of the property to be divided as separate or as community. Cooper v. Cooper, 513 S.W.2d 229, 232 (Tex.Civ.App.—Houston [1st Dist.] 1974, no writ). The trial court has the power to invade the separate property of one spouse for the benefit of the other spouse where necessary to reach a just and fair division of property of the parties. Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1923); Cooper, supra at 232; Tex.Family Code Ann. § 3.63 (1975).

We will accept wife's contention that her pleadings were sufficient to authorize the trial court to take this action. However, pleading alone is not enough. There must be some reasonable basis for doing so. Cooper, supra at 233.

In Wilkerson v. Wilkerson, supra at 55 the court says:

“In the exercise of this discretion, the court may consider, among other things, the age and physical condition of the parties, their relative need for future support, fault in breaking up the marriage, benefits the innocent spouse would have received from a continuation of the marriage, the size of the estate and the relative abilities of the parties.” (Citing authorities)

This record contains no evidence to authorize the court to take this action. This point is overruled.

Wife has other points which we find without merit, and they are overruled. The decree of the trial court is affirmed.

AFFIRMED.

STEPHENSON, J., not participating.


text:
    J. Alex McKENZIE et al., Appellants, v. Jack A. FARR, Appellee.
    No. 7823.
    Court of Civil Appeals of Texas, Beaumont.
    Sept. 23, 1976.
    Rehearing Denied Oct. 21, 1976.

      Fred Much, Joe H. Reynolds, Emory T. Carl, Houston, for appellants.
    Julius Glickman, William Pannill, Houston, for appellee.
   KEITH, Justice.

We are called upon to write another chapter in the history of one of the oldest civil disputes it has been our misfortune to encounter in recent years. This suit has as its genesis a dispute which erupted in 1958 when the plaintiff Farr was removed as president and manager of a drive-in movie in Houston. In January 1960, a special meeting of the directors of the corporation was held to try and resolve Farr’s claims of mismanagement, breach of fiduciary obligation, and violation of the antitrust laws. According to Farr, he was given options to purchase either the assets of the corporation or the capital stock of the control group. He filed his original suit in May, 1960, seeking specific performance of his option contracts or, in the alternative, damages aggregating nearly a half million dollars.

In one of the earlier appeals, Farr v. McKinzie, 477 S.W.2d 672 (Tex.Civ.App.—Houston [14th Dist.] 1972, writ ref’d n.r.e.), the court recounted some of the background of the dispute between the parties and specifically pointed up the problem which we encounter in this appeal: the dispute between the parties as to the legal effect of the settlement agreement initialed by the parties on May 26, 1971, which was merged into the judgment of June 17, 1971.

Three years after the reversal of the 1971 judgment in the cited case, plaintiff amended his pleadings so as to sue upon the settlement agreement alleging, in substance, that while he was willing to perform thereunder, the defendants had repudiated the agreement by persuading the trial court to enter the 1971 judgment in violation thereof; thus, plaintiff claimed that the act of the defendants in persuading the trial judge to enter the judgment in 1971 amounted, in law, to an anticipatory breach of the settlement agreement. He claimed that he was justified, in view of this “breach” by the defendants, in abandoning all efforts to sell the real estate belonging to the corporation and that he actually took his signs down from the property within about ten days after the entry of the judgment in 1971. He sought and recovered, in the trial, damages for the breach of such settlement agreement. The defendants have perfected their appeals and we have several appellate briefs; but, in view of our disposition of the appeal, it will not be necessary to discuss each of the points of error presented by the several defendants.

The holding of the Fourteenth Court in the prior appeal, although lengthy, has two pertinent elements which are of interest in this appeal:

(a) “Being persuaded that the case of Burnaman v. Heaton, supra [150 Tex. 333, 240 S.W.2d 288 (1951)], and similar cases required a party’s consent to the entry of an agreed or consent judgment at the very moment the trial court undertakes to make the agreement the judgment of the court, and that such consent was lacking in this case, we accordingly reverse the judgment of the trial court and remand the case for a new trial.” 477 S.W.2d at 677-678.
(b) “We do not pass upon the effect of the agreement or memorandum of settlement made by the parties in writing.” 477 S.W.2d at 678.

Thus, under the rationale of the law of the case, while we are precluded from reexamining the validity of the judgment entered in 1971, there are no restrictions upon our consideration of “the effect of the agreement or memorandum of settlement made by the parties in writing” which was merged into the judgment of 1971. For a discussion of the doctrine of the law of the case, see the authorities cited in Lebow v. Weiner, 454 S.W.2d 869, 876 (Tex.Civ.App.—Beaumont 1970, writ ref’d n.r.e.).

Among appellants’ points of error is one urging that the “Trial Court erred in failing to sustain [appellants’] motion for Instructed Verdict and their Motion for Judgment notwithstanding the verdict, and in failing to grant New Trial because entry of the judgment of June 17, 1971, as a matter of law, could not constitute a breach of contract or any other character of actionable wrong by Defendants.” We agree.

The record conclusively shows that at all times, before and after the entry of the judgment in 1971, the defendants made known their willingness to perform under the settlement agreement. Indeed, the agreement was made a part of the 1971 judgment as an exhibit. Plaintiff did not announce his claim of anticipatory breach until he filed his sixth amended original petition more than three years after the reversal of the earlier judgment. In the meanwhile, he had been pursuing vigorously his original contentions advanced at the beginning of the litigation a decade earlier.

Plaintiff has not brought to us the authorities supporting his major premise in this litigation: that an uncommunicated unilateral subjective determination by one party to a contract that the other has committed an anticipatory breach thereof authorizes a recovery. Particularly, plaintiff is deficient in authority supporting the implied contention of his unilateral determination that his concept of the rights and obligations of the parties under the settlement agreement was the only correct determination thereof. Because, once having made such a determination in his own mind — and it was made according to plaintiff about ten days after the entry of the 1971 judgment — he pulled up stakes, quit trying to sell the property, and completely abandoned all efforts to perform under the agreement. He made no effort to perform his end of the bargain; he did nothing toward selling the property or minimizing his damages.

Against this background, it must be remembered that it was only the action of the defendants and their counsel in securing the entry of the 1971 judgment which, according to plaintiff, constituted the anticipatory breach of the settlement agreement. The falsity of plaintiff’s position is apparent when we remember that a judgment, regardless of the activities of the parties in the selection of the language appearing therein, is always the court’s judgment. In Dikeman v. Snell, 490 S.W.2d 183, 185-186 (Tex.1973), the rule was stated in these words:

“A judgment is usually prepared by the attorney for the successful party, as was done here. Rule 305. When rendered in writing and thus signed and entered it becomes the judgment of the court. Recitations or provisions alleged to have been inserted by mistake of the attorney nevertheless become a part of the court’s judgment and therefore are judicial errors when thus rendered in writing by the court. Finlay v. Jones, 435 S.W.2d 136 (Tex.1968).”

The law of Texas relating to anticipatory breach of contract is clear. It was stated by Judge Brown in Kilgore v. Northwest Texas Baptist Educational Soc., 90 Tex. 139, 37 S.W. 598, 600 (1896):

“The intention to abandon the contract at some future date is no breach of it; but, when that intention is declared in positive terms and unconditionally, it has the effect ... to repudiate the contract itself, and to terminate the contractual relations between the parties. . But, to have this effect, the declaration of an intention not to perform the contract in the future must be unconditional in its terms.”

Judge Greenwood, speaking for the court in Moore v. Jenkins, 109 Tex. 461, 211 S.W. 975, 976 (1919), quoted this language from Kilgore, supra, with approval. Then, Judge Critz in the landmark opinion of Pollack v. Pollack, 39 S.W.2d 853, 857 (Tex.Comm’n App.1931, holdings approved), rehearing denied, 46 S.W.2d 292 (1932), quoted from both of the earlier opinions mentioned herein.

It is clear, therefore, that before there can be an anticipatory breach of a contract, “the declaration of an intention not to perform the contract in the future must be unconditional in its terms. . ‘It must be a distinct and unequivocal absolute refusal to perform the promise . We do not find even a scintilla of evidence in the voluminous record which would even tend to support an inference that the defendants ever at any time made a declaration which was “ ‘a distinct and unequivocal absolute refusal to perform the promise.’ ”

The rules distilled from the earlier cases still prevail in this jurisdiction. See, e. g., Preston v. Love, 240 S.W.2d 486, 487 (Tex.Civ.App.—Austin 1951, no writ), where the court used this language:

“To constitute an anticipatory breach of contract the declaration of intent to abandon must be in positive and unconditional terms. Kilgore v. Northwest Texas Baptist Educational Soc., 90 Tex. 139, 37 S.W. 598. It is not sufficient that refusal to perform be based upon a genuine mistake or misunderstanding as to matters of fact or law. Englehart v. Volunteer State Life Ins. Co., Tex.Civ.App., 195 S.W.2d 798 (Eastland CCA. Writ Ref. N.R.E.).”

In the very recent case of Ennis Business Forms, Inc. v. Gehrig, 534 S.W.2d 183, 189 (Tex.Civ.App.—Waco 1976, writ ref’d n.r. e.), the authorities were reviewed in detail:

“The doctrine of anticipatory breach is applicable only where there is an unequivocal renunciation of the contract by the defaulting party. Universal Life & Accident Ins. Co. v. Sanders, 129 Tex. 344, 102 S.W.2d 405, 406 (Tex.Com.App., opinion adopted, 1937); Pollack v. Pollack, 39 S.W.2d 853, 855 (Tex.Com.App., holdings approved, 1932); Ulen Securities Co. v. City of El Paso, 59 S.W.2d 198, 199 (Tex.Civ.App.—El Paso, 1933, writ ref.). The party not in default will be justified in treating the contract as repudiated or abandoned only where the other party to the agreement, by his conduct or misconduct, clearly shows a fixed intention during nonperformance to repudiate the agreement and not to comply with its terms in the future. Kilgore v. Northwest Texas Baptist Educational Ass’n, 90 Tex. 139, 37 S.W. 598 (1896) .... Accordingly, it is the rule that refusal by one party to perform an independent provision of a divisible contract is not such renunciation or abandonment as will support an action under the principles of anticipatory breach of the whole agreement.” (emphasis supplied, some citations omitted)

Being of the opinion that plaintiff may not prevail upon the theory of anticipatory breach, we sustain the point of error quoted earlier. Thus, we do not find it necessary to discuss the other points of error in the several appellate briefs and express no opinion as to merit or lack thereof. Since the case appears to have been fully developed, we now reverse the judgment and render the judgment which the trial court should have rendered: that the plaintiff take nothing by reason of his suit and that the defendants go hence without day and recover their costs.

REVERSED and RENDERED.

STEPHENSON, J., not participating.

       See Kilgore, supra (37 S.W. at 600), quoting from U. S. v. Smoot, 15 U.S. 36, 15 Wall. 36, 21 L.Ed. 107, 111 (1872), which, in turn, quoted Benjamin, Sales, § 568. The rule was restated, along with the various citations supporting the rule in Pollack, supra (39 S.W.2d at 857).


author: DIES, Chief Justice. KEITH, Justice

text:
    Ruthie Lee GUILLORY, Appellant, v. AETNA LIFE INSURANCE COMPANY, Appellee.
    No. 7858.
    Court of Civil Appeals of Texas, Beaumont.
    Sept. 23, 1976.
    Rehearing Denied Oct. 21, 1976.
    George Michael Jamail, Beaumont, for appellant.
    Dale Dowell, Richard N. Evans, Beaumont, for appellee.
   DIES, Chief Justice.

In 1968 appellant Ruthie Lee Guillory began living with Oren Guillory, in the latter’s home in Beaumont. They had two children. In March 1974, after a beating by Oren, Ruthie Lee Guillory moved to a rent house in another part of the city. It was dangerous to go out at night in this section. On June 28, 1974, between 2 a. m. and 3 a. m. Ruthie Lee Guillory heard a noise on the back porch and saw the back door being opened. Oren had been by a few hours before then, but they talked through the window. She says she challenged the intruder and getting no answer she fired a revolver several times at him. He had an arm raised above his head. After the shots, he backed off. Ruthie Lee Guillory ran to a neighbor’s house to phone the police, telling them she thought she had shot an intruder. When they arrived they found Oren Guillo-ry dead near Ruthie Lee Guillory’s abode. The police found a stick (like a broom stick) near the body. They (the police) testified Ruthie Lee Guillory told them she knew the intruder was Oren Guillory before she shot and that he had said he had come for their two children.

Oren Guillory had a policy with Aetna Life Insurance Company, appellee, which named Ruthie Lee Guillory as beneficiary. The policy provided:

“If an employee suffers a non-oecupa-tional bodily injury caused by an accident and as a direct result of such injury and, to the exclusion of all other causes, sustains. . . . ” etc.

Ruthie Lee Guillory sued Aetna contending Oren’s death was accidental. In a trial to a jury she received favorable findings after which the trial court granted judgment non obstante veredicto for Aetna, from which Ruthie Guillory perfects this appeal.

For a judgment non obstante vere-dicto to be upheld, it must appear that there is no evidence of probative force in support of the jury finding which is disregarded. Bennett v. Heath Furniture Company, 390 S.W.2d 505 (Tex.Civ.App.—Eastland 1965, no writ); Missouri-Kansas-Texas RR. Co. v. Shelton, 383 S.W.2d 842 (Tex.Civ.App.—Dallas 1964, writ ref’d n. r. e.); Shelton v. Ector, 364 S.W.2d 425 (Tex.Civ.App.—Dallas 1963, no writ).

As recently as April 1976, the Texas Supreme Court in Republic National Life Insurance Company v. Heyward, Tex., 536 S.W.2d 549, approved the “Hutcherson test” [Hutcherson v. Sovereigh Camp W. O. W., 112 Tex. 551, 251 S.W. 491 (1923)] saying, “the test of whether the killing is accidental within the terms of an insurance policy is not to be determined from the viewpoint of the one who does the killing, but rather from the viewpoint of the insured.”

If his conduct was such that he should not have anticipated what happened, his death was accidental; otherwise, it was not. See also, Releford v. Reserve Life Insurance Company, 154 Tex. 228, 276 S.W.2d 517 (1955); 49 A.L.R.3d 673, 679 (1973) and the many authorities cited.

Oren Guillory knew Ruthie Lee Guil-lory and their two children were living alone in a tough neighborhood. When he attempted to force his way in the back door of the house at 2 or 3 a. m. in the morning, he should have reasonably anticipated that Ruthie Lee Guillory might react as she did. Hence, under the “Hutcherson” test his death was not accidental. The judgment of the trial court is affirmed.

AFFIRMED.

STEPHENSON, J., not participating.

KEITH, Justice

(concurring).

I join in the affirmation of the judgment of the trial court.

       In Special Issue No. 1 the jury found that Oren Guillory suffered a bodily injury caused by an accident. The definition accompanying the issue was: “An injury is accidental only when it cannot reasonably be anticipated as the result of the actions of the person injured. Conversely, when one should in all reasonable probability expect events to result from his voluntary conduct, the happening of such event is not an accident.”
      Whether an injury should have been reasonably anticipated is to be determined from the standpoint of the injured person and no one else. The jury in answer to S.I. No. 2 answered, “We do not” to the inquiry if Ruthie Lee Guillory willfully killed Oren Guillory.


author: SHANNON, Justice.

text:
    TEXAS STATE BOARD OF PHARMACY et al., Appellants, v. GIBSON’S DISCOUNT CENTER, INC., et al., Appellees.
    No. 12330.
    Court of Civil Appeals of Texas, Austin.
    Sept. 29, 1976.
    Rehearing Denied Oct. 20, 1976.

      John L. Hill, Atty. Gen. of Texas, John C. Madison, III, Asst. Atty. Gen., Austin, for appellants.

      Bardwell D. Odum, Dallas, for Gibson.
    Mary Joe Carroll, Clark, Thomas, Winters & Shapiro, Austin, for Sage International.
   SHANNON, Justice.

By direction of the Supreme Court we review the merits of this appeal. The previous opinions of this Court and that of the Supreme Court appear at 530 S.W.2d 332 (1975), and 539 S.W.2d 141 (1976).

This appeal stems from a permanent injunction entered by the district court of Travis County enjoining Texas State Board of Pharmacy and others, from enforcing Tex.Rev.Civ.Stat.Ann. art. 4542a, § 20A, subdivisions 11(a) and 11(d) (1973). Appel-lees are H. R. Gibson, Sr., Gibson’s Discount Center, Inc., and other corporations.

Appellees filed a declaratory judgment action seeking a declaration that art. 4542a, § 20A, subdivisions 11(a) and 11(d) is in violation of Tex.Const. art. I, § 19. After trial before the court, judgment was entered declaring, among other things, that the statute’s prohibitions and restrictions concerning the advertising of prescription drugs deprived appellees of property “without due course of the law of the land” in violation of Tex.Const. art. I, § 19. We will affirm that judgment.

Upon request, the court filed findings of fact and conclusions of law which appellants did not challenge. As a result, appellants are bound by those findings of fact. Cortez v. Cortez, 457 S.W.2d 131 (Tex.Civ.App.1970, no writ); Kroger Company v. Warren, 420 S.W.2d 218 (Tex.Civ.App.1967, no writ).

Appellants’ most significant contention is that the district court erred in holding that § 20A, subdivisions 11(a) and 11(d) was in violation of Tex.Const. art. I, § 19.

Section 19 provides that “no citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.”

Texas Rev.Civ.Stat.Ann. art. 4542a, § 20A, subdivisions 11(a), 11(b), and 11(d) (1973) provide as follows:

“II. Policy, (a) It is the policy of this state to permit and encourage, for the benefit of the citizens of this state, the availability of factual information regarding charges by licensed pharmacists or pharmacies for prescription drugs and the professional services and nonprofessional convenience services associated with the dispensing of such drugs. It is the stated purpose of this Section, when read in conjunction with Section 17(d)(3) to permit and encourage the availability of such factual information in a manner which will not encourage unfair or deceptive competitive practices but will assist the public in making informed purchasing decisions based on total value received for prescription drug expenditures and not based on price alone. It is also the policy of this state, recognizing that prescription drugs are designated as such by law because they are potent medications not safe for use except when medically necessary and then only under close professional supervision and control, that information permitted and encouraged by this Section when read in conjunction with Section 17(d)(3), shall be provided the public only in a manner which will not serve to create artificial demand for prescription drugs; and it is likewise intended that the provisions of this Section be the exclusive method by which price information shall be available to the general public.
“(b) A licensed pharmacy shall have available to the public at the prescription department or other dispensing area in complete public view, in a standard format authorized by rule or regulation of the Texas State Board of Pharmacy, a poster containing the one hundred (100) most prescribed drugs in Texas and the maximum charges to the public for prescription drugs, including charges for professional services and nonprofessional convenience services specified by rule or regulation of the Texas State Board of Pharmacy which the pharmacy includes and does not include within the posted maximum charge.
“(d) No notice or advertising to the general public shall contain promotional claims or statements comparing, either directly or indirectly, the charges either listed or otherwise charged for specific prescription drugs or prescription drugs generally, with the charges either listed or otherwise charged for specific prescription drugs generally by any other pharmacist or pharmacy; and provided, further, that no such notice shall contain any claims or statements comparing, either directly or indirectly, the professional services or nonprofessional convenience services provided the public by any other pharmacist or pharmacy; nor shall any pharmacy publish or display or cause or permit to be published or displayed in any newspaper or by radio, television, window display, poster, sign, billboard or any other means or media any statement or advertising concerning prescription medication which is fraudulent, deceitful or misleading, including statements or advertisements of bait, discounts, premiums, price, gifts or any statement or advertisements of a similar nature, import or meaning, or any statement, or advertisement of or reference to the price of prescription medication except in compliance with this Act.”

Appellants argue that the above provisions are not in violation of § 19, but instead, are a reasonable exercise of the State’s police power. In that respect we recognize that the police power is broad and comprehensive, and is grounded upon public necessity which alone can justify its exercise. Such exercise hinges upon the public need for safety, health, security, and protection of the general welfare of the community. City of Coleman v. Rhone, 222 S.W.2d 646 (Tex.Civ.App.1949, writ ref’d). If, however, a statute purporting to have been enacted to protect the public morals or safety, bears no substantial relation to those objects, the statute must, of necessity, yield to the Constitution.

For the following reasons we are of the opinion that § 20A, subdivisions 11(a) and 11(d), bears no reasonable relation to the safety, health, security, and protection of the general welfare of the citizens of this State.

Subdivision 11(a) enumerates several salutary purposes said to be served by subdivisions 11(b) and 11(d). In their presentation to this Court appellants did not choose to urge those purposes in defense of the statute; nevertheless, the proper res ’■’tion of the appeal necessitates their consideration. First, the statute claims to promote the availability of factual information regarding charges for prescription drugs. Such a result is supposed to be achieved by subdivision 11(b). That subdivision requires posting in each pharmacy a list of the prices of one hundred most commonly prescribed drugs. However, all other price advertising is specifically prohibited by subdivision 11(d). Contrary to promoting the availability of factual information regarding prices for prescription drugs, we believe subdivision 11(d) inhibits the free flow of price information.

The second stated purpose of the prohibition against advertising is to prevent “unfair or deceptive competitive practices” such as price baiting and similar activities. It occurs to us that Tex.Bus. and Comm. Code Ann. § 17.41 et seq, the “Deceptive Trade Practices-Consumer Protection Act,” more effectively controls false, misleading, or deceptive trade practices than does a blanket prohibition against all advertising of drugs.

Another purpose said to be served by the statute is the prevention of an artificial demand for prescription drugs. We disagree. In the first place, the district court found that the evidence would not support a finding that advertising would create such artificial demand. In the second place, this purpose is premised on the notion that the advertisement of prescription drugs subjects physicians to pressures which will force them to prescribe drugs on the basis of patient demand without regard to the patients’ physical well-being. This concept overlooks the professional and ethical integrity of the medical profession in prescribing drugs for patients. Stadnik v. Shell’s City, Inc., 140 So.2d 871 (Fla.1962). Further, the district court found that the evidence would not support a finding that advertising would cause patients to influence physicians to overpres-cribe drugs.

In support of their contention that § 20A, subdivisions 11(a) and 11(d) protects the public health, safety or morals, appellants advance the following considerations:

“1. That a pharmacist is much more than a mere merchant — he is a highly skilled professional . as much as is a dental surgeon, attorney or certified public accountant;
“2. That the pharmacist handles extremely potent and often toxic drugs . . . different from a grocer or used car salesman;
“3. That the pharmacist is heavily relied upon by other members of the health-care family and by patients ...
“4. That the unregulated advertising would stop the pharmacist from performing tasks such as those mentioned above and diminish the quality of patient care . . .”

With respect to appellants’ first and second considerations, we observe that the statute is more concerned about retail sales by the pharmacist than it is about his professional standards. Subdivisions 11(a) and 11(d), do not directly affect professional standards one way or another.

Further, appellants do not directly attack the court’s finding that “pharmacy is a profession, but the dispensing of prescription drugs is primarily a retail activity.” The court found also that less than ten per cent of prescription drugs are compounded by retail pharmacists. We think, it is a fair conclusion that the dispensing of prescription drugs has become more of a retail endeavor than a service endeavor. Maryland Board of Pharmacy v. Sav-A-Lot, Inc., 270 Md. 103, 311 A.2d 242 (1973). With respect to this point, Justice Burger wrote in a concurring opinion in Virginia State Board of Pharmacy et al. v. Virginia Citizens Consumer Council et al., — U.S. —, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976):

“The Court notes that roughly 95% of all prescriptions are filled with dosage units already prepared by the manufacturer and sold to the pharmacy in that form. These are the drugs that have a market large enough to make their preparation profitable to the manufacturer; for the same reason, they are the drugs that it is profitable for the pharmacist to advertise. In dispensing these items, the pharmacist performs three tasks: he finds the correct bottle; he counts out the correct number of tablets or measures the right amount of liquid; and he accurately transfers the doctor’s dosage instructions to the container. Without minimizing the potential consequences of error in performing these tasks or the importance of the other tasks a professional pharmacist performs, it is clear that in this regard he no more renders a true professional service than does a clerk who sells lawbooks.”

We recognize that Texas has a substantial interest in the maintenance of a high degree of professionalism on the part of licensed pharmacists. Those high professional standards are protected in large part by the regulations to which pharmacists in Texas are subject. Surely, any pharmacist guilty of professional dereliction that endangers his customer will promptly lose his license. Virginia State Board of Pharmacy et al. v. Virginia Citizens Consumer Council, Inc. et al., supra. We conclude that the interest of the State in the professionalism of pharmacists is not greatly served by legislation which keeps the public ignorant of prescription drug prices.

Appellants’ third and fourth considerations are that the pharmacist is heavily relied upon by other members of the healthcare family and by patients, and that unregulated advertising would “diminish the quality of patient care.” In argument supporting those considerations, appellants say that advertising would tend to disperse drug customers to various pharmacies and thereby weaken the pharmacist's ability to “monitor” drug prescriptions. “Monitoring” refers to the practice by some pharmacists of watching the prescriptions of a regular customer for the purpose of possibly detecting the prescription of a drug which would be antagonistic to other drugs which the customer is taking.

In this regard the uncontroverted finding of fact of the district court was that the evidence would not support a finding that advertising has caused, or in the future would cause, customers to have prescriptions filled at different pharmacies and thereby frustrate monitoring attempts. The court further found that appellants failed to show that most pharmacies engaged in “monitoring.” In addition, it is the physician’s duty to be certain that he is not prescribing drugs antagonistic to those already being taken by his patient.

In conclusion, it seems to us that if the legislature was in fact concerned about the prescription of antagonistic drugs, the legislature would have chosen a more direct method of regulation than prohibiting the advertisement of prescription drug prices. Pennsylvania State Board of Pharmacy v. Pastor, 441 Pa. 186, 272 A.2d 487 (1971).

The judgment is affirmed.

Affirmed.


author: O’QUINN, Justice.

text:
    Gerald REDMAN, Appellant, v. Leon WHITNEY, Appellee.
    No. 12458.
    Court of Civil Appeals of Texas, Austin.
    Sept. 29, 1976.
    Rehearing Denied Oct. 20, 1976.

      Charles W. Richards, Austin, for appellant.
    Thomas S. Goggan, Goggan & Cain, Austin, for appellee.
   O’QUINN, Justice.

Leon Whitney, as vendor of the subject realty, brought this action in trespass to try title against Gerald Redman as purchaser, seeking forfeiture of a contract of sale.

The property involved is an apartment dwelling used primarily for rent to students attending the University of Texas. Whitney originally acquired the property late in the 1940⅛ and subsequently sold it in 1965 under contract of sale to Ray Bois and wife, who thereafter assigned the contract to Redman in 1967.

This suit grew out of a dispute in 1975 between Whitney, the vendor, and Redman as purchaser, culminating in action by Whitney to declare a forfeiture of the contract. The cause was tried before the court without a jury resulting in judgment granting the forfeiture, from which Redman appeals.

We will reverse the judgment of the trial court and remand the cause for new trial.

At the trial Whitney claimed that Red-man breached the contract of sale in at least one of three ways. Whitney contended that (1) Redman failed to make timely payments of several installments; (2) failed to maintain the premises in the same state of repair existing in February of 1965, reasonable wear and tear excepted; and (3) breached an “oral agreement" to pay off the balance of the contract by June 1,1975.

In its findings of fact and conclusions of law the trial court found that (the parties) did enter into an agreement as a result of Defendant’s (Redman) breach of the Contract of Purchase and Sale whereby Defendant would pay in full the balance remaining unpaid ... by June 1, 1975.” The court also found that Redman breached the oral agreement by failing to pay the balance of the contract on June 1, 1975.

Appellant Redman attacks the findings by nine points of error. In the main appellant contends that (1) the court erred in finding that Redman had entered into an oral agreement to pay off the contract balance by June 1; (2) that if such an agreement was made it violates the statute of frauds; and (3) the evidence is insufficient to support the trial court’s finding that appellant breached the contract of sale. We will sustain appellant’s points of error five, six and nine and will remand the cause for new trial.

In his suit to declare forfeiture of the contract of sale appellee, as vendor, had the burden of proving that Redman as purchaser was in default under terms of the purchase contract. 59 Tex.Jur.2d Vendor and Purchaser, sec. 503 at 54 (1964). Appel-lee attempted to meet the burden by establishing that the purchaser had (1) made several late payments, (2) failed to maintain properly the premises, and (3) breached an alleged oral modification of the contract to pay off the balance of the contract by June 1, 1975. The trial court, in its findings impliedly found breach of the first two obligations. The court expressly found that an oral agreement to pay off the balance of the note had been made, and that appellant breached the agreement.

With respect to the alleged oral agreement, appellee contends that appellant fell behind on his contract obligations to make payments on time and failed to keep the premises in good repair. Because of this breach of the contract appellee insists that he agreed to waive appellant’s default (at a time when appellant asserted that no default had occurred) if appellant would pay off the balance of the contract by June 1, 1975. Appellant was unable to secure financing by that date and, in doing so, appellee argues, breached the contract.

Contentions that breach of the alleged oral agreement is a valid basis upon which to declare a forfeiture fail for several reasons. The statute of frauds precludes enforcement of a contract for sale of real estate unless the agreement is in writing and signed by the person to be charged with the promise. Tex.Bus. & Comm.Code Ann. art. 26.01 (1968). Parties to a written agreement coming within the statute of frauds may not, by mere parol agreement, alter or change one or more of the terms thereof. Michael v. Busby, 139 Tex. 278, 162 S.W.2d 662 (1942); 58 Tex.Jur.2d Vendor and Purchaser, sec. 51 at 256 (1964); Fleming v. Todd, 42 S.W.2d 123 (Tex.Civ.App. Beaumont 1931, writ dism’d).

The object of the purported agreement was to obtain refinancing of the property by execution of an independent note and deed of trust, thereby creating a lien on the property to secure the purchase price. The modification of the consideration, therefore, is itself within the statute of frauds and required to be in writing to be enforceable. Schofield v. Pyron, 257 S.W. 350 (Tex.Civ.App. Dallas 1923, writ ref.); Epstein v. D. & A. Oppenheimer, 94 S.W.2d 779 (Tex.Civ.App. San Antonio 1936, writ dism’d).

In response to reliance by appellant on the statute of frauds in bar to the modification of the contract, appellee contends the agreement was reduced to writing by letter dated April 11, 1975. The letter was sent by appellant’s attorney to appellee’s attorney in which the attorney stated:

“It is my understanding that my client, Gerald Redman, is desirous of paying the balance due upon the note he owes Mr. Whitney. . . . He is desirous of making the payoff by June 1, 1975.” (Emphasis supplied)

The letter fails to make a binding commitment to pay off the contract by June 1. Use of the word “desirous” falls short of an “offer” needed to form an agreement to modify the contract. An expression of desire or hope is not of itself an offer which will become a contract on acceptance by the adversary party. 17 C.J.S. Contracts § 46 at 693 (1963); 13 Tex.Jur.2d Contracts, sec. 15 at 131 (1960).

Under the sixth point of error, appellant argues the letter of April 11 did not establish an absolute agreement to pay the balance of the contract by June 1, but instead indicated a desire by appellant to attempt to pay it off by that date, provided appellant acquired necessary financing. The language of the letter stating, “He is desirous of making the payoff by June 1, 1975,” is consistent with the contention that acquisition of financing was condition precedent to payment of the balance on that date.

Redman’s agreement to refinance the property clearly was conditioned upon his being able to secure financing. If a promise is made subject to the happening of a condition, no liability can arise on the part of the promisor, and there can be no breach of the contract by him until the condition occurs or is performed. Burns v. American Nat’l Ins. Co., 280 S.W. 762 (Tex.Comm’n App.1926, judgment adopted); 13 Tex. Jur.2d Contracts, sec. 280 at 516 (1960). Since appellant was unable to secure necessary financing, the condition never occurred, and, therefore, there was no breach of the agreement. Appellant’s sixth point is sustained.

Appellee also urges that appellant breached the contract by failing to make several payments when due, and by failing to keep the premises in proper repair from the time appellee sold it in 1965, reasonable wear and tear excepted. Appellant attacks the trial court’s finding in this regard as against the great weight and preponderance of the evidence. The standard of review under this point is:

“. . . where the verdict is attacked as being against the great weight and preponderance of the evidence, the court of civil appeals has the duty to examine all the evidence and, if it finds the verdict thus to be clearly unjust, to remand for a new trial, even though the verdict be supported by more than a scintilla of evidence and even though reasonable minds could differ about the conclusion to be drawn from the evidence.”

Careful review of the record shows that evidence of any breach of the contract by appellant is meager at best and the judgment based upon it is manifestly unjust. Appellant made two payments late, due to a secretarial error; however, the payments thereafter were made within the thirty-day grace period allowed by the contract. No breach of this portion of the contract occurred.

With respect to claimed failure of appellant to maintain the premises in the same condition of repair, reasonable wear and tear excepted, there is little if any evidence to support the court’s finding. The building, approximately thirty years old, has a history of flooding problems. The only evidence of disrepair offered by appellee was “some loose boards” in the carport and some termite damage.

Redman testified extensively as to repairs to and remodeling of the premises during several years prior to trial. Red-man’s testimony was supported by that of Mrs. Bois, a former purchaser of the premises, who stated that the building was in better condition at the time of trial than when she and her husband purchased it from Whitney in 1965. The only evidence offered by appellee to ■ support the claim that condition of the building had deteriorated consisted of two pictures taken by Whitney the day before trial showing its condition. The only other testimony regarding the building’s state of repair was Whitney’s general comment that the condition was “worse” than in 1965.

Forfeitures are not favored in law, and the courts will decline to enforce forfeiture when it is against equity and good conscience. Surko v. Harrison, 391 S.W.2d 115 (Tex.Civ.App. Corpus Christi 1965, writ ref. n. r. e.); Missouri State Life Insurance Company v. Le Fevre, 10 S.W.2d 267 (Tex.Civ.App. Waco 1928, writ dism’d). We find the evidence clearly insufficient to support the trial court’s judgment. We sustain appellant’s point of error nine.

Inasmuch as we sustain points five, six, and nine, we do not reach the remaining points.

Judgment of the trial court is reversed, and the cause is remanded for new trial.

      . Garwood, The Question of Insufficient Evidence on Appeal, 30 Tex.L.Rev. 803 (1952); In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).


text:
    SESCO PRODUCTION COMPANY, Appellant, v. J. B. ALLEN, Appellee.
    No. 12463.
    Court of Civil Appeals of Texas, Austin.
    Sept. 29, 1976.

      Bob Burleson, Bowmer, Courtney, Burle-son & Pemberton, Temple, for appellant.
    John B. Henderson, Jr., Cameron, for ap-pellee.
   O’QUINN, Justice.

This appeal is from an order overruling the plea of privilege of appellant, Seseo Production Company, to be sued in Gregg County, the county of its residence. Appellant’s plea was interposed in a suit brought in Milam County by J. B. Allen, appellee, in which he alleged he was injured by appellant’s negligent maintenance of a gas well on Allen’s property.

In his controverting affidavit Allen alleged that venue properly was maintainable in Milam County under subdivision 9a of Article 1995, V.A.T.S. Appellant appeals from the trial court’s order overruling the plea of privilege.

No findings of fact were requested and none was filed.

In the main appellant attacks the court’s judgment on the ground that appel-lee failed to prove by sufficient evidence the venue facts necessary to maintain the suit under subdivision 9a of Article 1995. Under subdivision 9a, plaintiff may maintain venue in the county of suit upon proof that (1) an act or omission of negligence occurred in the county where suit was filed, (2) the act or omission was that of defendant, in person, or that of his servant, agent or representative acting within the scope of his employment, and (3) that such negligence was a proximate cause of plaintiff’s injuries.

Plaintiff is required to prove each of these venue facts. Reynolds and Huff v. White, 378 S.W.2d 923 (Tex.Civ.App. Tyler 1964, no writ). Appellant contends that the evidence was insufficient to establish any of these elements. We agree and will reverse the judgment of the trial court.

The circumstances leading up to this suit are substantially undisputed. In 1973 J. B. Allen executed a mineral lease to Hayes Operations but reserved to himself an old gas well located one quarter mile from his homestead. In April of 1974, Hayes Operations assigned its interest in Allen’s lease to appellant, Seseo Production Company. During the month of May, 1974, this gas well was being cleaned by H. T. Ray and his employees. During the reworking operations W. 0. West, an officer of Seseo, was present although it is disputed whether he was supervising the operations or was merely present during the reworking. Ray, who performed the reworking operations, testified that when the cleaning was completed, the well was left with tubing inside the casing, a valve in both the tubing and casing, and a chain and boomer were affixed to the apparatus to prevent anyone from turning the valves. No warning signs or fences were erected at the well.

On May 19, Allen visited the well and found gas escaping through a partially opened valve. The chain and boomer installed by Ray were not present. In an attempt to cut off the escaping gas flow, Allen turned the valve first one way and then another. While pulling on the valve he felt something “turn,” lost his balance and fell, injuring his skull. Subsequently, Allen brought suit in Milam County against Seseo Production Company, claiming his injury was due to Sesco’s negligence in maintaining the gas well.

Under its first point, appellant urges that evidence is insufficient to establish an act or omission of negligence by appellant. Seseo urges that the well was left in a safe condition, and that its condition had been changed by the acts of unknown third persons and that any evidence offered by ap-pellee is insufficient to show what, if any, act of negligence occurred.

The evidence in the record is insufficient to establish an act of negligence by appellant, but merely shows that an accident occurred when appellee attempted to turn a valve on the well. The mere occurrence of an accident is not, in itself, evidence of negligence. Hardy v. McMillar, 492 S.W.2d 381 (Tex.Civ.App. Waco 1973, no writ); Beall Brothers, Inc. v. Benton, 478 S.W.2d 157 (Tex.Civ.App. Tyler 1972, no writ).

The undisputed testimony of Ray, called as a witness by appellee, reveals that the well was left secured and chained after completion of the cleaning work to prevent anyone from tampering with the valves. Ray testified further that the valves were left tightly shut and the tubing was secured in the casing by slips and wedges. Appellee failed to prove that the condition of the well, as he found it, was caused by any negligence of appellant.

Appellee argues that it was negligence on the part of appellant to allow Allen to enter the area of the gas well when appellee knew, or should have known, of the unreasonable risk or harm that might result from the shifting of the tubing. Again, this contention ignores the fact that Allen, as an owner-occupier of the land, could not be prohibited by Seseo from entering the area of the gas well. Hernandez v. Heldenfels, 374 S.W.2d 196 (Tex.1963); Rabb v. Coleman, 469 S.W.2d 384 (Tex.1971). The well was reserved to appellee, and appellant had no right to prevent Allen from entering the well premises. In addition, it appears Allen was himself an experienced gas well worker. The fact that a person owns or occupies lands does not necessarily create in him the right to expose himself voluntarily to a danger he knows and appreciates and thereby impose liability for damages upon another who is on the land by the owner’s consent. Rabb v. Coleman, supra.

Under its second point of error appellant urges that the evidence is insufficient to establish that there was any relationship of master-servant between appellant and H. T. Ray, the contractor who worked on the well. To sustain his burden of establishing the required venue facts under subdivision 9a, appellee must further prove that Ray and his employees were servants, agents, or representatives of appellant acting within the scope of their employment.

Finally, under its third point appellant contends the evidence is insufficient to establish that any act or omission by appellant was a proximate cause of appellee’s injuries. Since we hold that the evidence is insufficient to establish an act, or omission, on the part of appellant amounting to negligence, it becomes unnecessary to consider further contentions made under points two and three.

The judgment of the trial court is reversed. The trial court is directed to enter its order transferring the cause to district court of Gregg County.

Reversed and Cause Ordered Transferred.


text:
    J. F. DICKSON, Appellant, v. R. P. DICKSON, Appellee.
    No. 12499.
    Court of Civil Appeals of Texas, Austin.
    Sept. 29, 1976.
    Rehearing Denied Oct. 20, 1976.
    Kirk Patterson, Mitchell & Stewart, San Antonio, for appellant.
    Roy Q. Minton, Jones, Blakeslee, Minton, Burton & Fitzgerald, Inc., Austin, for ap-pellee.
   SHANNON, Justice.

Appellant filed the transcript in this cause with the Clerk of this Court on June 16, 1976.

On June 28,1976, appellant filed a motion to accelerate the submission of this cause upon the premise that a speedy submission would assist in obviating immediate and irreparable injuries to appellant. On June 30, 1976, this Court granted appellant’s motion and set the cause for submission and oral argument for October 6, 1976.

Appellant’s brief was due to be filed on July 16, 1976. To date, appellant has not filed his brief.

Texas R.Civ.P. 415 provides that when the appellant has failed to file his brief within the time prescribed, the appellate court may dismiss the appeal for want of prosecution, unless good cause is shown for such failure and appellee has not suffered material injury thereby.

The time for filing appellant’s brief has long passed and appellant has shown no reason for his failure to file such brief. Accordingly, the appeal is dismissed for want of prosecution. Cuellar v. H. E. Butt Grocery Company, 397 S.W.2d 873 (Tex.Civ.App.1965, no writ), Tello v. Hankins, 468 S.W.2d 115 (Tex.Civ.App.1971, no writ), Miller v. Southern Investment Corp., 541 S.W.2d 526 (Tex.Civ.App., Austin, 1976), see Haynes v. J. M. Radford Grocery Company, 118 Tex. 277, 14 S.W.2d 811 (1929), in which the court construed former Rule 38.

Dismissed for want of prosecution.

O’QUINN, J., not participating.