author: MASSEY, Justice. BREWSTER, Justice MASSEY, Chief Justice.

text:
    L. M. HOWARD, Appellant, v. AMERICAN PAPER STOCK COMPANY, Appellee.
    No. 17614.
    Court of Civil Appeals of Texas, Fort Worth.
    April 25, 1975.
    Opinion on Rehearing May 16, 1975.

      Law Offices of Herrick & Ward, and Richard E. Ward, Fort Worth, for appellant.
    Brown, Crowley, Simon & Peebles, and M. Hendricks Brown, Fort Worth, for ap-pellee.
   OPINION

MASSEY, Justice.

For personal injuries sustained in a collision between a truck of the defendant American Paper Stock Company and an automobile in which plaintiff L. M. Howard was a back seat passenger, suit for damages because of plaintiff’s personal injuries was brought under the theory of negligent tort.

E. W. Allen, driver of the truck of the defendant on the occasion in question and for whose negligence the jury found defendant liable to plaintiff under the theory of respondeat superior, was never made party to the suit. Allen was the brother-in-law of Jerry Hart, who was the owner and operator of the automobile in which plaintiff was passenger. He was also the brother-in-law of the plaintiff.

By answers returned to special issues the jury found that: E. W. Allen was in the course and scope of his employment by defendant upon the occasion in question. The jury also found further: that he negligently failed to keep a proper lookout; drove the truck at a greater rate of speed than a person of ordinary care; failed to make such application of brakes as a person using ordinary care; knowingly drove the truck when the brakes thereon were insufficient to bring the same safely to a stop; and followed the automobile in which plaintiff was passenger more closely than a person using ordinary care would have followed. The jury found that each act or omission constituting negligence amounted to a proximate cause of the collision and consequent injuries to plaintiff. The jury found the following as sums which as of date of the verdict, would reasonably compensate him therefor: (a) $22,600.00 for past physical pain and mental anguish; (b) $30,000.00 for physical pain and mental anguish he will suffer in the future; (c) $2,400.00 loss of earnings in the past; and (d) $50,000.00 as the loss of earning capacity which, in reasonable probability, he would suffer in the future.

Thereafter the defendant filed its Motion for Judgment Notwithstanding and to Disregard Findings of the Jury. The court granted the motion and entered judgment that plaintiff take nothing. Plaintiff appealed.

We reverse and render.

The parties are in agreement that the trial court rendered its judgment non obstante veredicto on the theory that as a matter of law E. W. Allen, driver of defendant’s truck, was not acting within the scope and course of his employment by the defendant at the time of the collision. We have reviewed the entire record and will state that our holding is that each and every jury finding upon Allen’s negligence, amounting to proximate cause of the collision, was supported by the evidence. Defendant has no cross point by which it contends that there was no evidence supporting the submission of such issues to the jury or that the jury findings in respect thereto were contrary to the greater weight and preponderance of the evidence.

Shortly prior to the occurrence of the collision E. W. Allen, at the direction of defendant, drove the truck toward the west on Vickery Boulevard in Fort Worth, Texas to a warehouse of a third person to receive delivery of rolls of paper-. The paper having been loaded on the truck Allen departed such premises and drove back out onto Vickery Boulevard and turned and drove in an easterly direction thereon until the time of the collision. The collision occurred immediately to the west of the intersection of Vickery Boulevard with Hemphill Street. Thereat the automobile of Jerry Hart, in which plaintiff was a back seat passenger, had been stopped in obedience to the change of signal lights from the green to “Go” signal to the red “Stop” signal for vehicular traffic traveling east. Hart’s automobile had been proceeding in an easterly direction.

The truck of the defendant, driven by E. W. Allen, struck head-on into the left part of the rear of Hart’s automobile and knocked it forward out into the intersection. The force of the collision broke the front seat of Hart’s automobile, occupied by Hart and a front seat passenger, and it moved backward so that plaintiff was “pinned” in the rear seat. Extrication of plaintiff required approximately 30 minutes.

The record is entirely silent upon the matter of when, if ever, Hart became aware that Allen was driver of the truck which ran into his automobile. Hart did not testify. Plaintiff learned of the fact the day following the collision.

According to Allen (and Allen alone) he at some time, either immediately upon departing the premises on Vickery Boulevard, or by reason of discovery while he was thereafter driving in an easterly direction on that street, became aware that it was the automobile of his brother-in-law Hart which was ahead of him and that it was Hart who was driving.

Allen decided to pursue and overtake Hart so that he could converse with him upon purely personal matters. He testified that he pursued approximately a quarter-mile, but had not caught up with the Hart automobile when it stopped at the intersection of Vickery Boulevard with Hemphill Street. He testified that he was driving with his truck in “second gear” and was about a car length behind the Hart automobile when he discovered the fact of the signal light change and that Hart was stopping his automobile in obedience thereto; that he was unable to get his brakes to stop the forward motion of the truck; and that he thereupon attempted to turn to the left, but was unable to avoid running into the rear of the automobile. Further, Allen testified that the route he was traveling, to-wit: in an easterly direction on Vickery Boulevard, was the route he would have, in any event, taken on his return trip to the premises of his employer. This fact seems to be without dispute in the record.

In other words this is a situation where Allen was pursuing Hart; where if Hart had made a turn so as to go south on a side street Allen might have pursued by making a like turn and thereby have made a deviation which would have removed him from the scope and course of his employment, for his admitted intention was to overtake and converse with Hart. But Hart made no such turn and proceeded straight ahead; so Allen proceeded straight ahead also, making no deviation which would have removed him from the scope and course of his employment. There was no deviation which could be said to have occurred as a matter of law because the route traveled would have been the same had Allen’s sole purpose been to return to the premises of his employer, according to his duty. The evidence showed that the acts and conducts of Allen might have been for a dual purpose, one of which was in furtherance of the business affairs of the defendant.

It is settled in our law that in these circumstances the jury’s fact finding that an employee continued to be acting within the scope and course of his employment and in furtherance of the affairs of his employer is determinative of the issue. Under the verdict returned in this case Allen’s employer became responsible for his actions under the doctrine of respondeat superior. If the purpose of serving the master’s business actuates the servant to any appreciable extent his acts are within the scope of the employment. Late cases under the “dual purpose” doctrine include Gulfcraft, Inc. v. Henderson, 300 S.W.2d 768, 772 (Galveston, Tex.Civ.App., 1957, no writ history) and M. K. Hall Company v. Caballero, 358 S.W.2d 179 (Eastland, Tex. Civ.App., 1962, writ ref., n. r. e.). See also Restatement of the Law, Agency, Ch. 7, “Liability of Principal to Third Person; Torts”, Sec. 226, “Servant Acting for Two Masters”, and Sec. 236, “Conduct Actuated by Dual Purpose”; 27 A Tex. Digest, ^302(6) “(Scope of employment) Acts of servant in his own behalf”. See also the Workmen’s Compensation case of Williams v. American Employers’ Ins. Co., 71 App. D.C. 153, 107 F.2d 953 (1939).

Furthermore, it is to be remembered that there was no dispute upon the facts that E. W. Allen was the employee of the defendant as its truck driver. When it is proved that the truck was owned by the defendant and that the driver was its employee a presumption arises that the driver was acting within the scope of his employment when an accident occurs; and an injured plaintiff is entitled to prevail by jury verdict in his favor upon the presumption that defendant’s driver was acting as its agent under these circumstances unless the defendant comes forward with clear and positive evidence to show that the employee was not engaged in its business at the material time. Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W. 2d 354 (Tex.Sup., 1971). In the instant case the defendant tendered no proof.

By a cross point the defendant attacks all the items of damage except that for plaintiff’s $2,400.00 loss of earnings in the past. The contention is that there was no evidence, and in the alternative insufficient evidence, to support the findings; and also that the findings were so contrary to the greater weight and preponderance of the evidence as to be manifestly wrong, and made as result of bias, prejudice or some other improper motive on the part of the jury.

Our holding is against the contentions of the cross point. Prior to the collision in question plaintiff had sustained an antecedent injury to his back necessitating an operation and spinal fusion. In the evidence upon this trial he testified and the jury was entitled to believe that he had fully recovered from the effects of such and that he was able to bend, stoop, and lift in his work without pain. Plaintiff testified that because of the accident of October of 1972 something “popped” and he was numb from the waist down. He was taken to the hospital by ambulance and remained there five days. One week later he was re-admitted and underwent a mye-logram and exploratory surgery. Bone was removed from the next movable segment above the old spinal fusion. Later, upon plaintiff’s return to work he found it necessary to wear a back-brace at all times, and take medication every two hours. By the end of the year ensuing his condition worsened in that he began to lose strength in his right leg, accompanied by muscle involvement with severe pain which was not eased by bed-rest. He was re-hospitalized for between two and three weeks, during which another myelogram was performed and an operation ensued with lami-nectomy and fusion of the fourth and fifth lumbar vertebrae. He again returned to work with aid of back-brace and pain medicine.

Plaintiff produced expert medical testimony to the effect that plaintiff’s condition would be permanent, both as applied to disability and pain. The state of the evidence is such that substantial damage findings would be compelled.

Since our holding is that plaintiff was, by the effect of and from the date of the verdict on July 24, 1974, entitled thereupon and at that time to have judgment awarding him $105,000.00 it is obvious that entitlement thereto was of same as a liquidated sum. In other words plaintiff’s prior demand for unliquidated damages ceased upon the return of the verdict for by the verdict his entitlement was for a liquidated amount of damages. Since our judgment — in the stead of judgment to the same effect as if by the trial court— occurs nine months after the time plaintiff was entitled to judgment what would have been “legal interest” at six per cent per an-num would amount to more than $4,725.00. This is not a “trifle” with which a court would not be concerned. In effect it was value received by defendant to which it was not entitled as against the plaintiff because of its continued use of plaintiffs money. See Vernon’s Ann.Tex.Civ.St. Art. 5069 — 1.05 (formerly Art. 5072), “(Interest) Rate of judgments”. Interest in Federal courts is by statute directed to be similarly calculable. 28 U.S.C.A., Sec. 1961. A construction made in a Texas case having a delay after verdict before entry of a judgment for plaintiff based thereon was held, under the Federal law, to entitle plaintiff to judgment for interest from date of the verdict, since the entitlement was upon jury finding of the amount of damages “if paid now in cash”. Gorsalitz v. Olin Mathieson Chemical Corporation, 429 F.2d 1033, 1047 (CCA, 5th Circuit, 1970). Our construction of Texas law is to the same effect. In a judgment rendered for plaintiff, his interest entitlement should under circumstances of this case date from return of the jury’s verdict.

Judgment is reversed, and judgment is rendered that plaintiff recover damages in the sum of $105,000.00, with interest thereon of six per cent per annum from July 24, 1974.

BREWSTER, J., dissents.

BREWSTER, Justice

(dissenting).

I disagree with the part of the opinion of the majority holding that plaintiff can recover interest in this case from the date of the jury verdict, to-wit, July 24, 1974.

This was a suit to recover damages for personal injuries sustained in an automobile wreck (it was a suit for damages on an unliquidated demand).

The authorization for the recovery of interest in such cases is Article 5069 — 1.05, V.A.C.S., which provides: “All judgments of the courts of this State shall bear interest at the rate of six percent per annum from and after the date of the judgment,

The plaintiff has never had a decision in this case rendered in his favor at any time prior to the time the opinion in this case is handed down by this Court. The date on which the opinion in this case is handed down is the date of plaintiff’s judgment in this case.

I am convinced that because of the terms of Article 5069 — 1.05 authorizing the recovery in such cases as this of interest only from date of judgment that a holding that plaintiff is entitled to interest from date of the verdict, instead of from the date that the opinion in this case is handed down (the date of judgment), is erroneous.

In reaching this conclusion I rely on the following decisions: Jacobe v. Goings, 3 S.W.2d 535 (Beaumont, Tex.Civ.App., 1928, writ dism.) and Armstrong Tire and Rubber Company v. Shearer, 290 S.W.2d 294 (San Antonio, Tex.Civ.App., 1956, ref., n. r. e.).

Here we have a statute specifically declaring that interest in cases such as this can be recovered only from date of judgment. The majority opinion is saying in effect that, regardless of that controlling statute, interest in cases such as this can be recovered from the date of verdict, instead of date of judgment. It is things such as this that makes the law so confusing to so many of us.

I agree with the majority opinion, except on this interest point. I would allow interest to be recovered only from date the opinion in this case is handed down by this Court.

OPINION ON MOTION FOR REHEARING

MASSEY, Chief Justice.

Drawn to our attention on Motion for Rehearing was that by inadvertence we had overlooked the fact that by the jury verdict, under pleadings by way of limitation of the amount found, there were hospital and medical bills totaling $4,072.06 which should have been a part of the judgment for plaintiff. Thus plaintiff’s entitlement thereto, as in the nature of liquidated damages, would date from the time the jury returned its verdict, as held by us relative to the amount of $105,000.00.

Obvious therefore is that our judgment should have been for $109,072.06 as plaintiff’s damages, with interest thereon of 6% per annum from July 24, 1974. By amendment to and as supplement to our opinion in the case it is accordingly our holding.

Our judgment rendered pursuant to the opinion of April 25, 1975, is therefore amended and reformed in that instead of for $105,000.00 judgment is rendered that plaintiff recover damages of and from defendant in the sum of $109,072.06, with interest thereon of six per cent per annum from July 24, 1974.


source: Caselaw Access Project

author: BREWSTER, Justice.

license: Public Domain

text:
    Harry William GOLDRING et al., Appellants, v. Phidias Arden GOLDRING et al., Appellees.
    No. 17607.
    Court of Civil Appeals of Texas, Fort Worth.
    May 2, 1975.
    Rehearing Denied June 6, 1975.

      Loe & Warren, Callaway & Marshall, and Clyde M. Marshall, Jr., Fort Worth, for appellants.

      Brown, Herman, Scott, Dean & Miles, and Beale Dean and William M. Brown, Fort Worth, for appellee, Phidias Arden Goldring.
    DeVore, Bagby, McGahey & Ross, and William L. Bagley, Arlington, for appellee, intervenor, Arlington Bank & Trust.
   OPINION

BREWSTER, Justice.

The plaintiffs, Harry William Goldring, Robert Alford Goldring, Donald Lee Goldring and Carolyn June Goldring Agos-tini, sued their father, Phidias Arden Goldring, in trespass to try title, seeking to recover title to about 100 acres of land. They also sought to cancel and rescind, on the grounds of fraud, certain conveyances and an agreement affecting the title to such property that the parties had entered into about 13 years before this suit was filed. Plaintiffs also asked for an accounting by the father to the plaintiffs for funds plaintiffs claimed the father owed to them as testamentary trustee under the terms of Emma Goldring’s will. Emma Goldring was the mother of Phidias Gold-ring and the grandmother of the plaintiffs. Involved in the proceedings was the matter of construing the will of Emma Goldring. Plaintiffs also sought to recover title to the land free of the lien in favor of inter-venor, Arlington Bank and Trust, that had been granted to such intervenor by defendant.

Trial was had before a jury. On a hearing of a preliminary motion filed in the case by plaintiffs, the court entered an order several months before the trial construing the Emma Goldring will adversely to the contentions of plaintiffs. At the subsequent trial, at the close of the plaintiffs’ evidence, on motion by the father, the cause of action in trespass to try title and the cause of action for cancellation and rescission of the partition deeds and related agreements were severed from plaintiffs’ cause of action relating to an accounting. Judgment was then rendered as a matter of law, denying the plaintiffs the right to cancel and rescind the two partition deeds and accompanying agreement that the parties entered into, and judgment was also rendered that plaintiffs take nothing from defendants on their trespass to try title action. This is an appeal from that decree. The accounting feature of the case, after the severance, was docketed under a different number and after the causes were severed and judgment rendered as above indicated, the trial of the accounting feature of the case continued to the jury as a separate case. The accounting feature of the case is not involved on this appeal.

The appellants did not file a motion for new trial in this case as a prerequisite to the appeal as is required by Rule 324, Texas Rules of Civil Procedure.

Because of that there is at the outset presented to us for determination this question: Which of appellants’ 21 points of error must we overrule because appellants did not assign as error in a motion for new trial the matters complained of in the points of error?

The substance of the part of Rule 324 that is material here is that a motion for new trial shall be filed as a prerequisite to appeal except that an assignment in a motion for new trial is not a necessary prerequisite to the right to complain on appeal of a court’s action in withdrawing a case from a jury and rendering judgment. But a motion for a new trial is a necessary prerequisite to a consideration of the complaints mentioned in Rule 325, T.R.C.P.

Rule 325 provides that, “In cases of motions for continuance, or for change of venue, or other preliminary motions made and filed in the progress of the cause, the rulings of the court thereon shall be considered as acquiesced in, unless complained of in the motion for new trial; . . . .”

In appellants’ 4th, 5th, 6th, 7th and 8th points of error, complaint is made of the trial court’s rulings on special exceptions and on motions to strike allegations from pleadings that were involved. We overrule each of those points because the matters therein complained of were not assigned as error in a motion for new trial. See on this Miller v. Riata Cadillac Company, 517 S.W.2d 773 (Tex.Sup., 1974), and First National Life Insurance Co. v. Herring, 318 S.W.2d 119 (Waco, Tex.Civ. App., 1958, no writ hist.).

In appellants’ 11th and 12th points of error complaint is made of the trial court’s ruling severing the causes in the manner hereinabove indicated. We overrule those two points of error because the court’s ruling therein complained of was not assigned as error in a motion for new trial. See Finder v. E. L. Cheeney Company, 368 S.W.2d 62 (Beaumont, Tex.Civ. App., 1963, no writ hist.).

In appellants’ 13th point of error complaint is made of the trial court’s action in overruling plaintiffs’ motion for withdrawal,' reconsideration or amendment of the judgment that is being appealed from here.

In their 14th point of error appellants contend that the trial court erred, after he had granted Phidias Goldring’s motion for an instructed verdict, in overruling appellants’ motion then made to be permitted to reopen their case and to file their second trial amendment.

We overrule appellants’ 13th and 14th points of error because the rulings therein complained of were not assigned as error in a motion for new trial. See Rule 324, T.R.C.P., and White v. Aetna Fire Underwriters Insurance Co., 503 S.W.2d 653 (Eastland, Tex.Civ.App., 1973, no writ hist.).

In appellants’ 15th and 16th points of error they complain of the trial court’s action in overruling their objections to special issues submitted in the charge and in refusing to give their requested instructions in the charge.

We overrule those two points because the matters therein complained of were not assigned as error in a motion for new trial. Moreno v. Jenkins, 436 S.W.2d 620 (Austin, Tex.Civ.App., 1968, ref., n. r. e.), and Prewitt v. Liberty Mutual Insurance Company, 461 S.W.2d 522 (Waco, Tex.Civ.App., 1970, ref., n. r. e.). We overrule these two points for the additional reason that the issues submitted in the charge to which the objections were made related only to the accounting suit which was severed out of the case that is now on appeal before this Court. Because the accounting suit is not involved on this appeal, the question of whether the court erred in overruling the objections to the charge given in the accounting feature of the case is immaterial to this appeal.

Appellants in their 17th, 18th and 20th points of error complain of rulings of the trial court in either admitting or excluding evidence.

We overrule all three of those points of error because none of the rulings therein complained of were assigned as error in a motion for new trial. Complaints of the action of a court in ruling on the admission or exclusion of evidence are waived when not based on a specific assignment of error in a motion for new trial. Prewitt v. Liberty Mutual Insurance Company, supra.

In their 19th and 21st points of error appellants complain that the trial court erred in unfairly limiting the cross-examination of the witnesses, James Knapp and T. T. Chamberlain.

We overrule both of those points because neither of them were based on an assignment of error in a motion for new trial. Rule 324. We also overrule both of those points for the added reason that the two witnesses referred to in these two points did not even testify until after the judgment here being appealed from had already been rendered. At that time the accounting case had been severed, as above indicated, and the trial before the jury was continuing therein. It was later, during the trial oí only the accounting case that the witnesses Knapp and Chamberlain testified. For that reason any error that the trial court might or might not have committed during the time those witnesses were testifying would have no bearing on the outcome of this appeal.

This suit was filed on December 24, 1969. The plaintiffs sought therein to cancel and rescind the following :

1. A partition deed dated August 1, 1956, by which the defendant, Phidias Goldring, conveyed to his four children (the plaintiffs) that part of the Emma Goldring farm lying north of the Dallas-Fort Worth Toll Road, and by which the plaintiffs conveyed to the defendant all of .that farm lying south of said Toll Road;

2. A contract or letter agreement between plaintiffs and defendants dated August 1, 1956, pertaining to this same farm; and

3. Certain recitals contained in a general warranty deed dated January 24, 1958, by which the defendant, Phidias Goldring, conveyed jointly to the four plaintiffs and their mother, Mrs. Gladys Paine, a 9.6 acre tract (being a part of said farm) located on the south side of the Toll Road and fronting on Meadowbrook Drive.

Plaintiffs sought to set aside those instruments on the ground that they were induced to execute' the first two instruments just referred to above and to accept the third one (a conveyance) by the alleged fraud of their father consisting of misrepresentations, false promises, and conceal-ments of material facts.

The defendant-intervenor, Arlington Bank and Trust, claimed that it was an innocent mortgagee for value and without notice of any claims to said land by plaintiffs, and that it had loaned money in good faith to Phidias Goldring, the record title holder of said land, who had given a lien on the land as security for the loan.

The undisputed evidence showed that Emma Goldring, the plaintiffs’ paternal grandmother, had owned this farm at the time she died. Emma Goldring was also the mother of the defendant, Phidias Goldring. Emma Goldring died on May 26, 1945, leaving a will dated July 15, 1940, which was probated in 1948 by defendant, Phidias Goldring. Phidias Goldring qualified as independent executor under the will. In 1948, when this will was probated, the four plaintiffs’ ages were: Harry, 15; Robert, 14; Donald, 12; and Carolyn June, 7. In 1955 and 1956, the Fort Worth-Dallas Toll Road was built across a part of this farm and about 7 acres of the farm was taken for right-of-way for the Toll Road. This left about 30 acres of the farm north of the Toll Road and 110 acres south of it.

It is also undisputed that on about August 1, 1956, Phidias Goldring and the four plaintiffs executed a partition deed which conveyed the 30 acres of the Emma Gold-ring farm that lies north of the Toll Road to the four plaintiffs and conveyed the 100 acres of that farm that lay south of the Toll Road to defendant, Phidias Goldring. This partition deed, in addition to the part effecting the conveyances above referred to, contained the following recitals:

“Whereas, Emma Goldring, during her life time was the owner of a tract of land . . . which property has commonly been described as the Goldring Estate property in Tarrant County, Texas, and

“Whereas, the said Emma Goldring is deceased and left a written will which has ■ been duly probated in the Probate Court of Tarrant County, Texas, the record of which is . . . made a part hereof for all purposes . . . and

“Whereas, the said will is ambiguous in its terms with reference to the ownership of said property in that she attempted to set up a trust of said property, and

“Whereas (the children naming them) together with their father (naming him) desire to divide the property among them at this time so that the four grandchildren may take title to certain property and that take deed or title the father . . . may to certain property and that the title to same shall not be under any attempted trust or will, and all being of age do make the following deeds: . . . . ”

At the same time this partition deed was executed the parties to the suit all signed a letter agreement in which Phidias Goldring also agreed to later convey a two acre home building site out of this 100 acre tract to each of the four plaintiffs, and another two acre site to the plaintiffs’ mother, Mrs. Gladys Paine. This letter agreement signed by all of the Goldrings, also recited the following: "In consideration of this building site, it is agreed that you ratify and confirm all of my previous actions as Independent Executor of the Estate of Emma Goldring, deceased and/or my action as Trustee under the will for you four children and each of you waive any maintenance or education which might have been set up under the terms of your grandmother’s will.”

As of August 1, 1956, the date of the partition deed referred to, Harry was 24 years old and Robert was 22 years of age. Donald Lee Goldring was 20 years old but his disabilities of minority had prior thereto been removed by court action. Carolyn June Goldring, who was 16 years old, had been emancipated by a prior marriage to Lon T. Stephens.

The third instrument referred to above, recitals in which are sought to be set aside by plaintiffs, is the warranty deed executed January 24, 1958, by Phidias Goldring, by which he conveyed approximately 9.6 acres of the farm involved that lies south of the Toll Road to the four plaintiffs and their mother, Mrs. Gladys Paine. This deed was executed and delivered to plaintiffs in order to carry out the terms of the letter agreement of the parties dated August 1, 1956, and to carry into effect the partition agreement that the parties had previously made.

This deed of January 24, 1958, contained the following recitals as to what constituted the consideration for the execution of that deed: “TEN AND NO/100 DOLLARS, cash in hand paid, the receipt of which is hereby acknowledged and confessed; AND

“The further consideration of the love and affection I have for my children; AND

“In further consideration of the carrying out of a Partition Agreement dated August 1st, 1956, and the Grantees by the acceptance and filing of this Deed acknowledge receipt of the five two acre tracts as called for in said contract. We ratify and affirm said partition deed heretofore given the Grantor herein and which is recorded in Volume 3018 at Page 445 of the Deed Records of Tarrant County, Texas.”

On or about the same date that Phidias Goldring executed the deed conveying this 9.6 acre tract to the four plaintiffs and to their mother, Mrs. Paine, those grantees joined in executing a conveyance by which those five grantees partitioned the 9.6 acre tract among themselves, giving to each of the five persons a tract of about two acres.

Thereafter on March 3, 1958, the plaintiffs, Harry William Goldring and Donald Lee Goldring, joined with their mother, Mrs. Paine, and her husband, and conveyed by warranty deed to W. D. and Gartrelle S. Thornton the three 2 acre tracts that had been conveyed to them by the partition deed referred to in the paragraph next above.

The plaintiff Carolyn June Goldring Stephens and her then husband on March 14, 1958, conveyed her 2 acre tract that she had from the January 24, 1958 partition deed executed by plaintiffs to the plaintiff, Donald Lee Goldring for $2,300.00 and Donald Lee Goldring did on April 10, 1959, sell and convey this 2 acre tract to W. D. and Gartrelle S. Thornton.

The evidence also showed that on September 7, 1957, Phidias Goldring did execute a will leaving all of the Emma Gold-ring farm that he still had at his death to the four plaintiffs.

On the 6th day of July, 1971, after this suit was instituted, all four of the plaintiffs joined in executing a quitclaim deed to Mr. and Mrs. Thornton conveying to them the four 2-acre tracts that the Thorntons had previously purchased from the plaintiffs as above set out. This deed shows that the plaintiff, Harry Goldring, acknowledged that deed before a notary as late as February 3, 1974.

The construction of the third paragraph of the Emma Goldring will is involved in this case and it is worded as follows: “Third: I give and bequeath to my said son Phibis Arden Goldring, my farm and all improvements thereon which is situated in Tarrant County (then follows a description of the farm) to have and to hold the same during his life in trust for his four children (my grandchildren,) namely Harry William Goldring a boy, Robert Alford Goldring a boy, Donnie Lee Goldring a boy and Carolyn June Goldring a girl; and to descend to them in equal parts after the death of my said son. -This clause is intended to create a life interest only to said land and tenements in my said son and I desire that he take full charge of said land and estate and to use and cultivate and maintain the same in good condition and to equitably divide the rentals and income from the management of said property into a fund to be used for the maintenance and education of said minor children named above and who are the beneficiaries herein.”

The question of who got what by this bequest contained in the third paragraph of the Emma Goldring will could have a material bearing on the outcome of the Trespass to Try Title case involved here and also on the outcome of the accounting suit plaintiffs had filed against defendant, Phidias Goldring.

The plaintiffs filed herein a motion in limine, asking the court to construe the will in advance of the trial on the merits. The trial on the merits began June 24, 3974. On April 16, 1974, pursuant to plaintiffs’ motion to have paragraph 3 of the will construed in advance, the trial court did enter an order construing that paragraph of the will as follows: “By Paragraph Third of her said will the testatrix, Emma Goldring, devised and bequeathed to her son, Phidias Arden Gold-ring, a life estate in and to the farm property in question, with the remainder interest, at his death, to descend in equal parts to her four grandchildren, Harry William Goldring, Robert Alford Goldring, Donnie Lee Goldring, and Carolyn June Goldring, subject only to the precatory desire expressed by testatrix that her son, Phidias Arden Goldring, use the rentals and income from his management of the property for the maintenance and education of her four grandchildren named above, during their minority.”

The plaintiffs, by their first three points of error, contend that the trial court erred in construing the third paragraph of the Emma Goldring will in the manner that that court did construe it in his order of April 16,1974, referred to above.

The defendants contend that since the order construing the third paragraph of the will was rendered and entered in limine in response to plaintiffs’ motion asking for such a pre-trial construction thereof that because of the provisions of Rule 325, T.R.C.P., plaintiffs are deemed to have acquiesced in such preliminary ruling and have lost the right to complain thereof on appeal because they did not file a motion for new trial in which they assigned as error the trial court’s ruling in construing the will.

We overrule the defendants’ contention that we have just referred to. We hold that plaintiffs did not, because of the provisions of Rule 325, T.R.C.P., lose the right by failing to file a motion for new trial to complain of the trial court’s ruling wherein he construed the third paragraph of the will as has been indicated above. Our authority for this holding is the case of City of Roma v. Starr County, 428 S. W.2d 851 (San Antonio, Tex.Civ.App., 1968, ref., n. r. e.).

The court’s order construing the will, although made at a preliminary stage of the case, in part went to decide the merits of the case. If that ruling stands, its effect is to, of itself, result in a ruling on the trespass to try title feature of the case adverse to the plaintiffs.

The City of Roma case held that when properly construed, Rule 325, T.R.C. P., relates and has application to only preliminary motions and rulings of the same class as those that are specifically enumerated in the rule, such as motions for continuance and motions for change of venue. That court reached that conclusion by applying the rule of construction known as the doctrine of ejusdem generis that is discussed in 53 Tex.Jur.2d 221, Statutes, Sec. 155. That doctrine is to the effect that general words following an enumeration of particular or specific things will be construed to mean only things of the same kind as those specifically named.

When that doctrine is applied in construing Rule 325 to determine whether or not its provisions apply to the court’s preliminary ruling construing the Emma Goldring will, we reach the conclusion that Rule 325 does not apply. This is true because the specific types of preliminary rulings referred to in the Rule, such as motions for continuance and for change of venue, are not of the same class or category as a motion to construe the will, which was a matter that has a material bearing in the determination of the merits of the law suit. Motions for continuance and for change of venue do not relate to a determination of the merits of the case.

For the reasons stated we hold that we are required to consider plaintiffs’ first three points of error.

We sustain the plaintiffs’ first three points of error in so far as they contend that the trial court erred in construing the third paragraph of the Emma Goldring will as he did in his April 16, 1974, order. We hold that the trial court erred in construing that will as he there did.

The rules hereinafter set out are announced in the case of Bergin v. Bergin, 159 Tex. 83, 315 S.W.2d 943 (1958), and are applicable here. In construing a will a court’s purpose and duty is to ascertain and declare the intent of the testatrix and to enforce that intent if it is legal. The intention of the testatrix is to be ascertained by viewing the will in its entirety. Although words such as “desire” in their ordinary and primary meaning are precatory, they are often construed as mandatory when used in a will or when it appears from the entire document that they are the expression of the testatrix’ intention in disposing of her property.

We hold that a correct construction of the third paragraph of Emma Goldring’s will is that it bequeaths her farm to her son, Phidias Goldring, to have and to hold the same during the term of his life in trust for her four grandchildren (the plaintiffs). The trustee, Phidias Goldring, was given the duty to manage and control the farm as trustee during the term of his life and to use the income therefrom for the education and maintenance of the plaintiffs for as long as he, the trustee, lived. Upon the death of the trustee, Phidias Goldring, the farm was to descend in equal shares to the four plaintiffs.

The will did not bequeath to Phidias Goldring a life estate in the farm, and, in fact, the only right it did bequeath to him was the right to serve as trustee for his children and to have the control and management of the farm for their benefit during the term of his life.

The trust did not end when the beneficiaries ceased to be minors, as has been suggested, because the will expressly provided that the bequest to Phidias Goldring was in trust for the term of his life.

We are convinced .that the testatrix in using the word “desire” in the second sentence of the third paragraph of her will used it in a mandatory sense to express her intent as to the terms of the trust which she had in prior sentence expressly created, the uses to which the trust property and the funds derived from the operation thereof would he put, and of the duties her son would have in serving as trustee of the trust.

In plaintiffs’ 9th and 10th points of error they contend that the court erred in granting defendant, Phidias Goldring’s motion for an instructed verdict at the close of the plaintiffs’ evidence and in rendering judgment for that defendant and against the plaintiffs on their cause of action in Trespass to Try Title and to set aside the 1956 partition deed and agreement that the parties had made.

We overrule both of these points of error.

It was not necessary that plaintiffs have an assignment of error in a motion for new trial in order to complain on appeal of the trial court’s rulings referred to in those points. McKelvy v. Barber, 381 S.W.2d 59 (Tex.Sup., 1964).

Defendant’s motion for instructed verdict was based on several independent grounds. The trial court granted the motion without indicating which of the grounds he granted it on. If any of the grounds urged were sound, then we must overrule these two points of error and affirm the judgment. McKelvy v. Barber, supra.

The defendant, Phidias Goldring, had contended that he had acquired title to the land sued for by virtue of an accord and satisfaction, or partition or settlement agreement, that he and the plaintiffs had entered into in 1956 and 1958 by which they all executed deeds and a letter agreement partitioning the Emma Goldring farm between them.

If this partition transaction was valid, then plaintiffs could not win the trespass to try title feature of the case because the plaintiffs had in the partition deed granted, sold and conveyed to their father, Phidias Goldring, all of the Emma Goldring farm that lay south of the turnpike.

The plaintiffs sought to get around the partition transaction by suing herein to cancel and rescind this partition transaction on the grounds that they were induced to enter into it by the fraud of their father, Phidias Goldring.

This partition deed was executed by all the plaintiffs and by the defendant, Phidias Goldring, on August 1, 1956. It recited in substance that whereas Emma Goldring had owned the farm in question during her lifetime and the following is copied from the partition deed: “Whereas, the said Emma Goldring is deceased and left a written will which has been duly filed and probated in the Probate Court of Tarrant County, Texas, the record of which is herein referred to and made a part hereof for all purposes and as if incorporated herein, and

“Whereas, the said will is ambiguous in its terms with reference to the ownership of said property in that she attempted to set up a trust of said property, and

“Whereas (the children naming them) together with their father (naming him) desire to divide the property among them at this time so that the four grandchildren may take title to certain property and that the father . . . may take deed or title to certain property and that the title to same shall not be under any attempted trust or will, and all being of age do make the following deeds: . . . . ”

The plaintiffs and their father then proceeded by that deed to partition the Emma Goldring farm between them by granting, selling and conveying to plaintiffs all that part of the farm that lay north of the turnpike and granting, selling and conveying to defendant, Phidias Goldring, all that part of the farm that lay south of the turnpike.

At the same time the parties entered into the following letter agreement:

“August 1, 1956
“Harry William Goldring,
“Robert Alford Goldring,
“Donald Lee Goldring “Carolyn June Goldring Stevens “Dear Children:
“We have today executed a deed by which you are taking title to all of the property mentioned as being that part of the Emma Goldring Estate which lies north of the Toll Road and you have deeded to me all of that property which lies South of the Toll Road and as a further consideration and as my desire to establish each of you with a homesite, including your mother, Gladys O. Payne, who was my former wife, I agree that as soon as I may secure a surveyor to survey same that I will begin at the northeast corner of the property on the south side of the present road which is known as the Meadowbrook Extension and that I will have a surveyor to cut five (5) two acre tracts and when he has made a map of same that you children will have a drawing or some sort of designation between you and your mother and after it has been determined which tract each of you shall receive, I agree to execute a Warranty Deed to you four children on the two acre tract which you have selected and the fifth tract I shall deed to your mother, Gladys O. Payne, so that each of you five may have a tract to build a home upon.
“In consideration of this building site, it is agreed that you ratify and confirm all of my previous actions as Independent Executor of the Estate of Emma Goldring, deceased and/or my action as Trustee under the will for you four children and each of you waive any maintenance or education which might have been set up under the terms of your grandmother’s will.
“Respectfully,
“/s/ Phidias Arden Goldring
Phidias Arden Goldring
“ACCEPTED:
“/s/ Harry William Goldring
Harry William Goldring “/s/ Robert Alford Goldring
Robert Alford Goldring “/s/ Donald Lee Goldring_
Donald Lee Goldring “/s/ Carolyn June Goldring Stephens
Carolyn June Goldring Stevens “Stephens”
“/s/ Lon T. Stephens
Lon T. Stevens
“Stephens”

To further carry out the partition agreement Phidias Goldring did on January 24, 1958, execute another deed by which he conveyed to plaintiffs and to their mother, Mrs. Gladys Paine, a 9.6 acre tract out of the part of the Emma Goldring farm that lay south of the highway.

That deed contained the following recital:

“In further consideration of the carrying out of a Partition Agreement dated August 1st 1956, and the Grantees by their acceptance and filing of this Deed acknowledge receipt of the five two acre tracts as called for in said contract. We ratify and affirm said partition deed heretofore given the Grantor herein and which is recorded in . . . the Deed Records of Tarrant County, . . . .”

We are convinced that these two deeds and the partition and settlement agreement were based on a valid consideration.

On receipt of the January 24, 1958, deed from Phidias Goldring the plaintiffs and their mother on that date executed a partition deed on that same date by which they partitioned the 9.6 acre tract into 5 separate lots and gave each of the parties to the deed one lot.

On March 3, 1958, the plaintiffs, Harry William Goldring and Donald Lee Gold-ring and their mother, Mrs. Paine, conveyed the three lots they had gotten out of the 9.6 acre tract to W. D. Thornton and his wife.

On March 14, 1958, the plaintiff, June Goldring Stephens, deeded the lot she got out of the 9.6 acres to her brother, Donald Lee Goldring. On April 10, 1959, Donald Lee Goldring deeded that lot to W. D. Thornton and wife.

And on July 6, 1971, all of the plaintiffs joined in executing a quitclaim deed by which they bargained, sold and quitclaimed to W. D. Thornton and his wife the four lots out of the 9.6 acre tract that had previously been conveyed to the Thorntons. The plaintiff, Harry William Goldring, acknowledged this deed as late as February 3, 1974.

The first ground of the motion for instructed verdict was that the undisputed evidence showed that all of the plaintiffs had in 1958, 1959, and 1971 executed deeds conveying a part of the land that they acquired out of the partition agreement with their father to W. D. Thornton and wife, and had thus made it impossible for them to restore the conditions that existed prior to the time the partition agreement was entered into on August 1, 1956. It was contended that because of these facts, as a matter of law, the plaintiffs could not get a rescission on the grounds of fraud of the partition deeds and agreement that are involved. The facts on this issue were undisputed.

The following Texas cases uphold this contention: Corbett v. McGregor, 62 Tex. Civ.App. 354, 131 S.W. 422 (1910, writ ref.); Chambers v. Grisham, 157 S.W. 1177 (El Paso, Tex.Civ.App., 1913, writ ref.); and DePuy v. Bodine, 509 S.W.2d 698 (San Antonio, Tex.Civ.App., 1974, ref. n. r. e.).

The second ground of defendants’ motion for instructed verdict was that it is undisputed that after acquiring knowledge of all the papers and documents involved here, including the Emma Goldring will, and after becoming aware of all the fraud they claim was committed on plaintiffs, Donald Lee Goldring continued to manage the thirty acre tract north of the toll road that plaintiffs were deeded by their father in the 1956 partition deed and that he managed it as the agent of the other plaintiffs and as such continued to collect the income from this property for the benefit of the plaintiffs and by doing so he recognized as a binding transaction the partition agreement and deeds by which the plaintiffs were deeded such property and have thereby affirmed the transaction and waived the plaintiffs’ right, if any, to rescind the partition transaction.

The undisputed evidence did show that since about 1965 Donald Goldring has taken charge of the 30 acre tract the plaintiffs were deeded in the 1956 partition agreement and rented all or parts of it and applied the rentals in payment of the taxes on the property for the benefit of all plaintiffs. This conduct has continued after the plaintiffs acquired full knowledge of the fraud they complain of.

The third ground of the motion for instructed verdict was that the undisputed evidence showed that after this suit was filed and after the plaintiffs had full knowledge of all of the matters about which they complain, they executed the quitclaim deed to W. D. Thornton and wife with respect to four of the approximately 2 acre lots that they received out of the 9.6 acre tract south of the turnpike that was deeded to them by their father, and that by reason of said quitclaim plaintiffs, as a matter of law, ratified, confirmed and acknowledged the title conveyed by them to the Thorntons by the March 3, 1958, and April 10, 1959, deeds, and that by such action, as a matter of law, the plaintiffs waived any right they might have had to cancel or rescind the complained of partition transaction with their father which constitutes a link in the chain of title to these tracts that were conveyed to theN'horntons.

The undisputed evidence does show that all of the plaintiffs, after this suit was filed, executed and delivered the quitclaim deed to the Thorntons after they had acquired full knowledge of all facts they now complain of. By this conduct they recognized as valid and binding the 1956 partition deed and agreement by which they acquired the fee simple title to that property.

The law relied upon by defendant in support of his second and third grounds of his motion for instructed verdict is pronounced in Rosenbaum v. Texas Bldg. & Mortg. Co., 140 Tex. 325, 167 S.W.2d 506 (Tex.Com.App., 1943) as follows: “The principle of law applicable to the foregoing facts is well established. It is, in effect, that, if a person who is induced by fraud to enter into a contract continues to receive benefits under the contract after he becomes aware of the fraud, or if he otherwise conducts himself in such manner as to recognize the contract as subsisting and binding, he thereby affirms the contract and waives his right of rescission. An express ratification is not necessary; any act based upon a recognition of the contract as subsisting or any conduct inconsistent with an intention of avoiding it has the effect of waiving the right of rescission.”

In that case Mrs. Rosenbaum contended that she was induced by fraud to purchase some bonds. After she discovered the fraud and after the suit was filed, defendant then sent her a $150.00 check which was a semi-annual payment of interest on the bonds that she had purchased. Mrs. Rosenbaum cashed the check and used the proceeds. The Court held that this was a positive act of ratification of the contract and because of that act she waived her right to have that contract rescinded.

The following cases also support defendant’s contentions on this point: Oram v. General American Oil Company of Texas, 513 S.W.2d 533 (Tex.Sup., 1974); Powell v. Rockow, 127 Tex. 209, 92 S.W.2d 437 (Tex.Com.App., 1936); Webb Materials, Inc. v. Lacey, 364 S.W.2d 473 (San Antonio, Tex.Civ.App., 1963, ref., n. r. e.); and DePuy v. Bodine, supra.

One’s mental intent or reservation does not enter into a determination of this question. On that the Supreme Court in Oram v. General American Oil Company of Texas, supra, said the following: “It is true that Mrs. Oram has written to the lessee objecting to the lease, and in her petition she states that she did not intend to ratify the lease by her acceptance of the rental payments. Whatever her mental reservations have been, her acceptance of the payments are inconsistent with the intention to avoid the lease. These acts have recognized the lease as subsisting and binding. The effect is to waive or abandon any right of rescission . . . .”

The fourth ground of defendant’s motion for instructed verdict was that the suit brought by plaintiffs in 1969 to cancel and set aside the 1956 partition deed and settlement agreement was barred by the four year statute of limitations as a matter of law because under the undisputed evidence the plaintiffs could have discovered, through the use of reasonable diligence through the means and avenues open to them, the fraud alleged to have been practiced by defendant prior to four years next preceding institution of the suit.

We will not further discuss this ground of that motion and other grounds urged in the motion for instructed verdict because of the length this opinion has already reached.

We hold that the grounds of the motion for instructed verdict that we have herein-above referred to were each a sound and sufficient basis for the trial court’s action in withdrawing this case from the jury and in rendering judgment for defendant.

It is for the reasons stated that we have overruled plaintiffs’ ninth and tenth points of error.

The trial court’s error in construing the Emma Goldring will was not a reversible error because regardless of what a proper construction of such will was the parties to this suit settled the problem of who got what under the terms of that will by the 1956 partition deed and agreement that they entered into. It is that 1956 partition deed and agreement that put title to the part of the farm lying south of the turnpike in Phidias Goldring.

Judgment is affirmed.


author: MASSEY, Chief Justice.

text:
    Larry Wayne COFFEY, Appellant, v. Leonard Byron LECHLER, Appellee.
    No. 17609.
    Court of Civil Appeals of Texas, Fort Worth.
    May 9, 1975.
    Rehearing Denied June 13, 1975.

      Roger M. Norman, Fort Worth, for appellant.
    Law Offices of John B. Garrett, and John L. Gamboa, Fort Worth, for appellee.
   OPINION

MASSEY, Chief Justice.

This is an adoption case. Appellant Coffey is the natural father of Melissa Ann. He and his former wife were divorced in Tarrant County, Texas on 17 August, 1971, pursuant to the judgment order in which the custody of Melissa Ann, then a little over three years of age, was given the wife. In November of 1971 the wife married Appellee Lechler. At all times the legal residence of Melissa Ann has been in Tarrant County. Appellee’s wife, Mrs. Lechler, consented to the application of her husband to adopt Melissa Ann. Appellant, the natural father, did not consent.

Following a hearing at which all parties appeared the court permitted the adoption applied for. Predicate therefor was by the court, as fact finder, making the determination that Appellant had failed to contribute substantially to the support of Melissa Ann commensurate with his financial ability for the two-year period, to-wit: the interval between 17 August, 1971 (date of divorce) and 17 August, 1973. The natural father appealed.

We affirm.

That the trial ■ court was authorized by law to select such two-year period is not contested.

Inapplicable at any time as applied hereto is Title 2 of Texas’ Family Code, V.T. C.A.

In effect at all material times was the law in Vernon’s Ann.Tex.Civ.St., Title 3, “Adoption”, Art. 46a, “Proceedings for adoption . . Sec. 6(a), “Consent of parents and child; exceptions”, reading in part as follows: “Except as otherwise provided in this Section, no adoption shall be permitted except with the written consent of the living parents of the child; provided, however, that if a living parent . . . voluntarily abandon and desert a child sought to be adopted, for a period of two (2) years, . . . or if such parent shall have not contributed substantially to the support of such child during such period of two (2) years commensurate with his financial ability, it shall not be necessary to obtain the written consent of the living parent . in such default, and in such cases adoption shall be permitted on the written consent of the Judge . . .

Upon the two (2) year period during which the factual determination was made that Appellant had failed to contribute substantially to the support of Melissa Ann commensurate with his ability, the undisputed facts were that a single payment of child support in the amount of $20.00 was made 14 August, 1973. This was three days before the termination of the two-year period in question.

It is obvious that if Appellant’s resources amounted to only the sum of $1,000.00 within the period he contributed no more than .02% thereof to the support of the child. The Appellant, himself, testified to earnings from income which without question would have exceeded $1,000.-00. Furthermore he was living with his parents without obligation to pay room and board. He had made several lengthy trips from where he was living in North Carolina to other states. To make these trips there was necessarily required an expenditure of funds. Appellant testified that the money therefor had been provided by his parents, but this was not corroborated. The Court, as the fact finder, was free to disbelieve his testimony as to the source of funds while believing that they were funds of Appellant which he was free to spend as he chose, and that at least a part of it could have and should have been contributed to the support of Melissa Ann.

Furthermore the Appellant testified that he had found himself able to have dates with women and to engage in social pleasures. In all reasonable probability these would have required the expenditure of funds which he could have and should have used to contribute to the support of his child. He had purchased an automobile. He had paid debts owed to third persons.

Consideration given to the “key words” of Art. 46a, Sec. 6(a) applicable in this case, to-wit: “commensurate with his financial ability”, the facts adduced upon trial amply supported the court’s finding that Appellant had failed, for a period of two years, to substantially contribute to the support of his child commensurate with his financial ability; that the $20.00 paid was less than the requirement of the law by the term “commensurate with his financial ability” to pay.

During the selected two-year period between 17 August, 1971 and 17 August, 1973 there were several months during which Melissa Ann was with her father in North Carolina. For this period Appellant claims entitlement for credit as one in which he was providing for her entire support. The evidence showed that his possession of the child was the result of having surreptitiously abducted her without the consent of his former wife and without the consent of Appellee, to whom she was married at the time. Further evidence showed the necessity thereby occasioned for the Appellee and his wife to expend time and money in locating Melissa Ann, in employing an attorney to go into court in North Carolina to gain her possession by temporary order; later to return to North Carolina for a hearing of the North Carolina case on the merits.

To allow Appellant any credit for the period when he had his child, in violation of law, would be to reward him because of his transgression. Public policy requires that as applied to these adoption proceedings Appellant not be credited with any benefit in respect to having provided support during such period of time, it having been a mere consequence of Appellant’s breach of the law by willful violation of the custody court order made a part of the divorce decree. See, generally, 72 C.J.S. Public Policy p. 209; Cheney v. Coffey, 131 Tex. 212, 113 S.W.2d 162 (1938).

Appellant relies principally upon the recent case of Cawley v. Allums, 518 S.W.2d 790 (Tex.Sup., 1975). It is his claim that the single $20.00 payment made three days prior to the expiration of the two-year period selected by the court, as that within which he had failed to properly contribute to Melissa Ann’s support, eliminated authority of the court to permit Melissa Ann’s adoption without his consent. That $20.00 payment was in compliance with the order of the court relative to the amount per week which Appellant was obligated to pay (though no payment of other amounts due to be paid by the week had theretofore been paid) and it was made before the expiration of the two-year period selected by the court. Appellant insists that by Caw-ley v. Allums a single full support payment, made in compliance with the order of the court before the elapse of two years, prohibits adoption without his consent and, at most, marks a time antecedent to which there could not be calculation of a two-year period of failure to support for purposes of the adoption statute (Art. 46a, Sec. 6(a)).

In Cawley v. Allums there had been a divorce of the natural parents of a minor child, followed by a period of time in which the father had paid approximately 60% of the monthly amounts ordered. In January, 1972 the court entered its order reducing the support payments to $135.00 per month. The payment due for February was made. The payment due for March was not paid, and nothing more was paid for eleven months. Token payments were made thereafter during the subsequent seven months. As we construe the opinion it does no more than hold that the court having in January entered an order reducing the amount of child support payments required by prior order of the court, and one payment having been made in February in compliance with the new order of the court, the two-year period contemplated by Art. 46a could not “begin to run” until there was failure, in March, to make payment required by the new order. As we read the opinion there was no construction of the words in the Article which are material in the instant case, to-wit: “. . . during such period of two (2) years commensurate with his financial ability”. Nothing in Cawley v. Allums requires that we reverse the judgment in this case.

Here the period of Appellant’s failure to support his child began on date of his divorce; by the evidence the $20.00 paid nearly two years thereafter plus evidence of some ability to have paid at an earlier time and/or a greater amount presents evidence amply supporting a finding that there was failure to contribute substantially to the support of the minor child commensurate with his ability. That finding having been made the court did not err in permitting the adoption over protest of the Appellant.

Judgment is affirmed.


author: TUNKS, Chief Justice.

text:
    William M. ZONER et al., Appellants, v. HERTZ EQUIPMENT RENTAL CORPORATION et al., Appellees.
    No. 1075.
    Court of Civil Appeals of Texas, Houston (14th Hist).
    April 30, 1975.
    Rehearing Denied May 18, 1975.

      John H. Holloway, Houston, for appellants.
    Gerald P. Coley, Vinson, Elkins, Searls, Connally & Smith, Charles D. Boston, Fullbright & Jaworski, Derral K. Sperry, Jack R. Martin & Associates, Houston, for appellees.
   TUNKS, Chief Justice.

The plaintiffs in the trial court and appellants here are William M. Zoner and Mickey G. Caylor. They sustained personal injuries when a personnel basket in which they were working hoisted by a crane, being operated by A. C. Lewis, fell from a height of thirty-five or forty feet.

At the time in question, Brown & Root was the general employer of Zoner, Caylor and Lewis. Brown & Root was in the course of constructing an addition to the plant of Celanese Corporation in Harris County. The crane in question was leased by Celanese from Hertz Equipment Rental Corporation.

The plaintiffs sued Lewis, Celanese and Hertz for damages resulting from the personal injuries they sustained when the personnel basket fell with them.

Highlands Underwriters Insurance Company, the workmen’s compensation carrier for Brown & Root, intervened seeking recovery from the defendants for the benefits it had paid to Zoner and Cay-lor. The plaintiffs’ suit against Lewis and Celanese was based upon allegations of Lewis’ negligence in the operation of the crane. Since Brown & Root was a subscriber under the Workmen’s Compensation Act, and since Zoner, Caylor and Lewis were general employees of Brown & Root, Lewis was immune from liability for his negligence unless he was at the time a borrowed servant of Celanese. Vernon’s Tex.Rev.Civ.Stat.Ann. art. 8306, § 3 (1967). Also their claim against Celanese, under respondeat superior, depended upon their proof that Lewis was, at the time of his alleged negligence, the borrowed servant of Celanese. Their suit against Hertz was based upon alleged defects in the crane which caused the fall.

In April 1973, before the case came on for a jury trial, the defendant, Lewis, made a motion for summary judgment, asserting his immunity under the Workmen’s Compensation Act. That motion was granted And an order entered adjudging that the plaintiffs take nothing from that defendant. There was no severance of the cause of action pleaded against Lewis, so that the summary judgment in his behalf was interlocutory and did not become final until the disposition of the case as to the other defendants.

In March 1974, the plaintiffs’ claim against Celanese and Hertz came on for trial before a jury. Celanese filed a motion in limine by which it requested that the plaintiffs be instructed not to refer to or offer evidence as to their contention that Lewis was the borrowed servant of Celanese. It cited, as the basis for its motion, the fact that Lewis’ motion for summary judgment had been granted. The motion in limine was granted by the trial court.

At the close of the evidence, the trial court granted Celanese’s motion for instructed verdict. The case was submitted to the jury as against only the defendant Hertz. The jury failed to find that the crane was defective and found that Lewis’ negligent operation of the crane was the sole proximate cause of the accident in question. The trial court rendered judgment that the plaintiffs and the intervenor take nothing from any of the defendants. The plaintiffs, but not the intervenor, perfected appeal.

The Summary Judgment for Lewis

The motion for summary judgment by Lewis was made at the time the case was pending in the 127th District Court of Harris County and was heard and granted by that court. The order granting it recited that depositions on file were considered. Those depositions were not origi-ninally brought up and filed in this Court as part of the statement of facts, but we, under the authority of Texas Rules of Civil Procedure, rule 428, directed the district clerk to send them up and they have been considered to determine whether they sustained the granting of the summary judgment.

The controlling issue on the motion for summary judgment was whether Lewis was the borrowed servant of Celanese. It is undisputed that he and the plaintiffs were the general servants of Brown & Root so that, unless he was at the time of the accident the borrowed servant of Cel-anese, he was immune from any liability to the plaintiffs for injury to them because of his negligence. To sustain his contention on this issue, he had the burden of proving by the summary judgment evidence that, as a matter of law, he was not the borrowed servant of Celanese. Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.Sup.1970).

The question as to whether Lewis was the borrowed servant of Celanese is governed by the answer to the question as to whether Celanese had the right to control him in the details of his operation of the crane. Producers Chemical Company v. McKay, 366 S.W.2d 220 (Tex.Sup.1963). Celanese was the lessee from Hertz of the crane. That fact, standing alone, gave Cel-anese a legal right to control its operation. The lease agreement between Celanese and Hertz is not in evidence. The crane is obviously a large, expensive machine. It would not be unreasonable that its owner, Hertz, would specifically limit its use to its lessee and the lessee’s employees.

There was a contract, also, between Cel-anese and Brown & Root, Lewis’ general employer. That contract, too, is not in evidence. The evidence does not show whether it was an oral contract, in general terms, or whether it was a specific, written contract. More importantly, the evidence does not show whether that contract covered the question of the right to control the manner of operating the crane of which Celanese was the lessee and which was used by Brown & Root’s general employee in the performance of the contract.

The evidence does show that, in fact, Brown & Root supervisors directed Lewis in his operation of the crane. That fact, however, is not necessarily conclusive of the question as to who had the right to control him. If the contract between Brown & Root and Celanese specified the right of control of the details of the operation of the crane, the contract would be conclusive of the question. Greyhound Van Lines, Inc. v. Bellamy, 502 S.W.2d 586 (Tex.Civ.App. — Waco 1973, no writ). In such event the actual exercise of control would be evidentiary of the fact that the contract was a subterfuge or had been abandoned. See Newspapers, Inc. v. Love, 380 S.W.2d 582 (Tex.Sup.1964). If there was a contractual provision governing the right of control, or if there was evidence that the contract was a subterfuge or was abandoned, then the actual exercise of control should be evidentiary of, and might establish as a matter of law, that the right of control was in the one actually exercising control. In the absence of such contract, however, the question usually is one of fact. Sanchez v. Leggett, 489 S.W.2d 383 (Tex. Civ.App. — Corpus Christi 1972, writ ref’d n. r. e.). As noted, however, the relevant terms of the contract between Brown & Root and Celanese, or the absence of such relevant terms, were not shown by Lewis, who on the motion for summary judgment, had the burden of proof.

There is, also, evidence that the relationship between Brown & Root and Celanese was such that if Celanese had wanted the crane used for a purpose not within the scope of the construction contract, it would have been so used. The Brown & Root supervisor testified by deposition that if Lewis had not complied with Celanese’s plant rules and regulations, then he would “get him out”. He, also, testified that if the crane required any major repairs, he would “work through” a Celanese man to get them done.

We are of the opinion that the judge of the 127th District Court erred in rendering summary judgment for the defendant, Lewis.

The Instructed Verdict for Celanese-

When the plaintiffs’ case against Celanese and Hertz came on for trial, it was transferred to the 152nd District Court of Harris County. The judge of that court, on being advised that the judge of the 127th District Court had granted Lewis’ motion for summary judgment, granted Celanese’s motion in limine that the plaintiffs be prohibited from referring to or offering evidence that Lewis was a borrowed servant of Celanese. That ruling was error. Celanese was not a party to the motion for summary judgment filed by Lewis. Celanese had not filed any motion for general summary judgment or for separate trial of and summary judgment on the issue of borrowed servant. That issue had not been adjudicated as between the plaintiffs and Celanese. It was yet to be tried between those parties, and the plaintiffs were not limited to the evidence heard on the motion by Lewis for summary judgment even if it had been properly granted. See DeBord v. Muller, 446 S.W.2d 299 (Tex.Sup.1969).

However, a trial court’s erroneous ruling on a motion in limine does not, of itself, show harmful, reversible error. It is the subsequent exclusion or admission of relevant evidence pursuant to its action on the motion in limine that may constitute reversible error. Hartford Accident and Indemnity Co. v. McCardell, 369 S.W.2d 331 (Tex.Sup.1963). In this case, it was incumbent upon the plaintiffs to present by bill of exception evidence which would, either by itself or together with other evidence actually admitted, at least raise a fact question on the borrowed servant issue if they were to show harm in the erroneous granting of the motion in limine. These plaintiffs did make a bill of exception which, together with the evidence actually received by the court, presented facts substantially the same as that summarized above as being presented on the motion for summary judgment.

In considering the propriety of the court’s granting of the motion for instructed verdict for Celanese, a different rule is applied as to the burden of proof from that applicable to the motion for summary judgment. Torres v. Western Casualty and Surety Company, 457 S.W.2d 50 (Tex.Sup.1970). But the plaintiffs did not have the burden of proving Lewis’ status as a matter of law, as did Lewis on his motion for summary judgment. They, to prevent the proper instruction of verdict against them, only had the burden of presenting sufficient evidence that, considered in the light most favorable to them, indulging in all reasonable inferences in their favor and disregarding all adverse evidence, was sufficient to raise an issue of fact on the question of borrowed servant. Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965). If the evidence raised a fact question as to the borrowed servant issue, it precluded the granting of the motion for instructed verdict even if it was insufficient to sustain a jury finding for the plaintiff as against a contention that such finding was against the weight of the evidence. Stephenson v. O’Neal, 433 S. W.2d 804 (Tex.Civ.App. — Houston [14th Dist.] 1968, writ ref’d n.r.e.).

The lack of proof as to the relevant provisions of the two contracts involved, or proof of the absence of any such provisions, is of importance in determining the propriety of the instructed verdict. The defendant, Celanese, was a party to both contracts but the plaintiffs were not. Therefore, Celanese obviously had access to the testimony that would have proven their provisions. An inference can be drawn from Celenese’s failure to produce such evidence which, together with other facts proved, strengthens the plaintiffs’ position. 1 C. McCormick & R. Ray, Texas Evidence § 100 (2d ed. 1956).

We hold that the 152nd District Court erred in granting the motion for instructed verdict in favor of Celanese.

The Verdict and Judgment for Hertz

The plaintiffs’ claims against Hertz were based upon the contention that the brake mechanism on the crane was defective. That matter was submitted to the jury and the jury failed to find such defect. The appellants attack that answer and the rendition of judgment for Hertz on it as being contrary to the weight of the evidence. We overrule appellants’ contentions in this respect.

Just after the accident Rubbin David Beck, the Brown & Root supervisor on the job, called in his most experienced and ablest crane operator and the two conducted a thorough investigation of the crane and tested its brake mechanism. Beck was a long time employee of Brown & Root in the construction business and experienced in the use of cranes. He had read the operating manual for the crane in question. He testified that the checking and testing that he and the other employee had done showed the brakes to be in good working order and that they were not defective in any respect.

As opposed to Beck’s testimony is that of Lewis to the effect that he properly applied the brake and that the only explanation for the basket’s falling was that the brake was defective.

The jury’s failure to find that the brake was defective was not so in disregard of the weight of the evidence as to be clearly wrong.

The judgment of the trial court against the plaintiffs, Zoner and Caylor, and in favor of the defendants, Celanese and Lewis, is severed and is reversed and remanded. The judgment against the plaintiffs and in favor of the defendant Hertz is affirmed. There having been no appeal by the inter-venor, Highlands Underwriters Insurance Company, the judgment that it take nothing by its intervention is not disturbed.