author: BISSETT, Justice.

text:
    Audrey H. SCHMALTZ, Appellant, v. John E. WALDER, Progress Drilling Company, Highlands Insurance Company and General Adjustment Bureau, Appellees.
    No. 1273.
    Court of Civil Appeals of Texas, Corpus Christi.
    April 27, 1978.
    Rehearing Denied May 18, 1978.

      John Barrow, Nicolas & Morris, Corpus Christi, for appellant.
    Tom Hermansen, Dyer, Redford, Burnett, Wray & Woolsey, William A. Abernethy, Meredith, Donnell & Edmonds, Corpus Christi, for appellees.
   OPINION

BISSETT, Justice.

This is an appeal from a summary judgment in a suit to recover damages for personal injuries and to set aside a release. Mrs. Audrey H. Schmaltz sued John E. Walder and Progress Drilling Company to recover damages for personal injuries allegedly sustained by her when a truck which was then being driven by John E. Walder, an employee of Progress Drilling Company, struck a trailer that was being towed by an automobile in which she was riding as a passenger. Mrs. Schmaltz also sued Highlands Insurance Company and General Adjustment Bureau to set aside a release which she and Harold B. Schmaltz, her husband, executed subsequent to the accident which released each of the defendants from all liability which resulted from the collision. All defendants filed motions for summary judgment. Plaintiff contested the motions. The trial court granted the motions and rendered judgment that Mrs. Schmaltz take nothing by her suit. Mrs. Schmaltz has appealed.

The collision in question, wherein Mrs. Schmaltz sustained an injury to her knee and damage to property, occurred in Alvin, Texas on March 1, 1975. Thereafter, on March 14, 1975, in consideration of the sum of $2,000.00 paid, she and her husband signed a complete release of all liability with respect to all defendants. Mrs. Schmaltz filed suit on July 28, 1976, wherein she sought damages and asked that the release be set aside. She contends that the release should be set aside because: 1) she did not possess sufficient mental capacity to contract on March 14, 1975, when she signed the release and accepted the $2,000.00; 2) the release was procured by defendants by fraud which was perpetuated on her; and 3) the release was signed as a result of a mutual mistake.

All of the above grounds asserted for setting the release aside are affirmative defenses in the nature of confession and avoidance. Oram v. General American Oil Company of Texas, 513 S.W.2d 533 (Tex.Sup.1974); Nichols v. Smith, 507 S.W.2d 518 (Tex.Sup.1974); “Moore” Burger, Inc. v. Phillips Petroleum Company, 492 S.W.2d 934 (Tex.Sup.1973). Since the release, which is a contract, was admittedly signed by Mr. and Mrs. Schmaltz, and $2,000.00 was paid to and deposited by them in full settlement of all claims, past, present and future, arising out of the collision, the motions for summary judgment were properly granted unless Mrs. Schmaltz, the non-mov-ant, came forward with summary judgment proof sufficient to raise an issue of fact with respect to at least one of the grounds asserted by her for avoiding the release. Zale Corporation v. Rosenbaum, 520 S.W.2d 889 (Tex.Sup.1975); Gulf Colorado & Santa Fe Railway v. McBride, 159 Tex. 442, 322 S.W.2d 492 (1959).

The defendants’ summary judgment proof consisted of an affidavit of Mr. William E. Henry, Branch Claims Manager of Highlands Insurance Company, which had attached thereto as exhibits duly authenticated copies of the aforesaid release and of the draft. Such, without more, was sufficient to grant defendants’ motions for summary judgment. Therefore, we must examine the summary judgment evidence of Mrs. Schmaltz to determine whether such evidence establishes as a matter of law that there is no genuine issue of fact as to at least one of the grounds asserted for avoiding the effects of the release.

IN GENERAL

A settlement agreement and release, valid on its face, until set aside, is a complete bar to any later action based on matters included in the settlement agreement and covered by the release. Hart v. Traders & General Ins. Co., 144 Tex. 146, 189 S.W.2d 493 (1945).

“Evidence”, as that term is used in this opinion, means “summary judgment evidence” as presented by the affidavits and depositions on file in the trial court. The testimony and statements of the parties, hereinafter noted, are found in the affidavits and depositions.

Following the accident, Mrs. Schmaltz was treated by a doctor in Alvin for her injury and was released. A few days later, she returned to Corpus Christi, and was contacted by Mr. Mike Winner, an adjuster with General Adjustment Bureau. On their first visit, Winner and Mrs. Schmaltz discussed the matter of damages. Winner came up with a figure of $2,000.00 as a firm settlement offer. During the discussion with Winner, Mrs. Schmaltz suggested that $5,000.00 would be more in line with the damages she sustained. Winner, however, rejected the suggestion and told her firmly, but politely, that she was “making claims that weren’t possibly covered”. Mrs. Schmaltz then told Winner that she would have to go over this with her husband. The $2,000.00 settlement offer was calculated as follows:

Value of antiques in Trailer. $1,500.00

Medical expenses in Alvin . 35.00

Replacement of trailer. 450.00

$1,985.00

Mrs. Schmaltz acknowledged that her out-of-pocket expenses, as reflected in the above calculations, did not total $2,000.00. Further, she stated in her deposition that the $2,000.00 was:

“To cover the contents of the trailer, replacement of the trailer, and it would take care of the doctor bills in Alvin and a few other little — like the rental (use of the booth that she had lost by missing the antique show in Houston) and things like that that he (Winner) allowed and he thought that was ample.”

The only other “little things” mentioned by Mrs. Schmaltz in her deposition was a doctor bill for her visit to Dr. Nast, her personal physician in Corpus Christi, on March 19, 1975. There is no summary judgment proof relating to the amount charged by Dr. Nast for this visit.

On the evening of Winner’s call on Mrs. Schmaltz, the settlement offer was discussed by and between Mr. and Mrs. Schmaltz. Later, she discussed the settlement proposal with Mrs. Louise Bowman, her sister, and with her son. Shortly thereafter, Mrs. Schmaltz told Winner that she and Mr. Schmaltz had decided to accept the $2,000.00 in settlement of her claims for damages. The next day, she and her husband went to Winner’s office, where Winner handed them the release and asked that they both read it, which they did. They then signed the release and were given a sight draft for $2,000.00. They deposited the money to their account.

Mrs. Schmaltz saw Dr. Nast on March 19, 1975. She again contacted Winner and told him that it was her understanding that Highlands Insurance Company would take care of her medical bill for her visit on March 19, 1975, and that since her subsequent visits to Dr. Nast stemmed from the visit on March 19, 1975, defendants were' required to pay all such medical bills. Winner replied that she had signed the release, and Highlands Insurance Company could not take care of any of the doctor bills. Whereupon, Mrs. Schmaltz filed this suit.

THE ASSERTED MENTAL INCAPACITY

The general rule is that a contract, such as the release here involved, executed by a person who does not have the mental capacity to contract is voidable; and if such person signed a contract without sufficient mental capacity to understand the nature and consequences thereof, the contract is not binding and may be set aside. Nohra v. Evans, 509 S.W.2d 648 (Tex.Civ.App.-Austin 1974, no writ); 50 Tex.Jur.2d, Release, § 4. The validity of a release must be determined as of the date it was executed, and in light of the circumstances surrounding the parties at that time. Atkins v. Womble, 300 S.W.2d 688 (Tex.Civ.App.-Dallas 1957, writ ref’d n.r. e.).

Mrs. Schmaltz, with respect to her mental capacity at the time in question, stated in her deposition that after the offer of $2,000.00 had been under discussion with her husband, she told him:

“. . .1 was at the point of breaking. I just couldn’t stand thinking of what had happened and I told him, let’s sign off”.

She further stated that she was under “nervous tension and I was just all upset over everything”. Mrs. Schmaltz also consulted with her sister, Mrs. Louise Bowman, and said to her:

“. . . I can’t take any more of it . the nervous anxiety, the tension that I was under. . . . this is the tension of not having it resolved, . . ."

The tension and anxiety, according to Mrs. Schmaltz’s statements in her deposition, was caused by the fact that she “wanted to get it over with” in order to get money to “buy some more antiques”, and to continue her business of buying and selling antiques.

Mrs. Bowman, by affidavit, stated that she visited Mrs. Schmaltz on several occasions between March 1 and March 15, 1975. She said: “my sister suffered from emotional and mental distress . . during this period she was unable to act rationally”.

Mr. Schmaltz, in his deposition, stated that during period of negotiations, when he talked about settlement with his wife, she would get nervous and, at times, would start crying. He said that her nervous tension was a continuous problem that began after the accident and continued through the time she signed the release, and further stated that his wife told him that “they weren’t going to pay any more”.

Nervous tension and anxiety, without more, does not amount to mental incapacity which precludes such person from understanding the nature and consequences of his (her) acts. Although Mrs. Schmaltz testified that she was under nervous tension during the negotiations, she possessed sufficient mental capacity to rationally negotiate the settlement with Winner, and to discuss the terms of settlement with her husband, her son and her sister. She explained that the tension she was under was caused by not having the matter resolved so she could continue in business. By settling the matter, such tension should have been removed.

Mrs. Schmaltz had the opportunity to read the release document. She did so. There is a complete absence of summary judgment evidence which showed that Mrs. Schmaltz did not understand what she was doing. A fact issue with respect to a lack of mental capacity to enter into the agreement to settle and compromise the claim for damages is not raised by summary judgment evidence.

THE ASSERTED FRAUD

A release, like any other contract, may be set aside if it is induced by fraud. Page v. Baldon, 437 S.W.2d 625 (Tex.Civ.App.-Dallas, 1969, writ ref’d n.r.e.); Brady v. Johnson, 512 S.W.2d 359 (Tex.Civ.App.-Austin 1974, no writ). However, in this case, it was incumbent upon Mrs. Schmaltz to raise a fact issue by summary judgment evidence with respect to each of the six (6) elements of fraud in inducement of the execution of the release. Those elements were set out by Chief Justice Greenhill in Oilwell Division, United States Steel Corporation v. Fryer, 493 S.W.2d 487, 491 (Tex.Sup.1973), and it is not necessary that they be repeated in this opinion. Included in those elements, are the elements of misrepresentation of a material fact, and reliance by the party who claims injury upon such misrepresentation.

Dr. Nast, in his examination of Mrs. Schmaltz on March 19, 1975, ran an EKG, which showed “normal.” Mrs. Schmaltz made an appointment on that day “to come back when the series of blood tests would be taken and the back pain he didn’t provide for”. She saw Dr. Nast on March 25, 1975, when he put her on a “muscle relaxer”, prescribed a sedative, and had her back x-rayed. The next day she telephoned Winner. Concerning that conversation, she said in her deposition:

“A Yes, sir. I called him after I went to see Dr. Nast because he had told me that they would take care of the medical bills on the—when I went to the doctor on the 19th.
Q Now, when did he tell you that?
A In that conversation at the house.”
* ⅜ ⅜ ⅝⅞ * #
“A And I said I understood you to say that you would take care of the doctor bill on the 19th and I said, now, this has stemmed from the 19th and he said I am sorry, you signed the release and we can’t take care of any of the doctor bills.
Q All right. What did you say?
A I said, well, I am sorry to hear that but I am almost sure you told me that, Mike.
Q Uh-huh. Anything else take place in that conversation?
A Not to my knowledge, sir, that I can remember.
Q Did you ever talk to Mr. Winter (sic) any other time?
A No.”
⅜ ⅜ ⅜ ⅜ ⅜ ⅜

Mrs. Schmaltz did not produce any summary judgment evidence as to the amount of Dr. Nast’s medical bill. She received $15.00 more than the itemized total of her property damages and doctor bills incurred in Alvin, Texas. Defendants argue that the extra $15.00, “in all probability, was to cover the medical bill of March 19, 1975, there being an absence of any evidence to show that the bill was greater than $15.00.” There is no evidence that a false representation was made, nor is there any evidence that any statement by Winner was made recklessly and without any knowledge of its truth as a positive assertion. Moreover, assuming arguendo, that the statement was false, there is no summary judgment proof that Mrs. Schmaltz relied upon it to the extent that it was a controlling factor in inducing her to sign the release, and without which she would not have signed the same. See Neuhaus v. Kain, 557 S.W.2d 125 (Tex.Civ.App.-Corpus Christi 1977, writ ref’d n.r.e.); First State Bank of Bellaire v. Olde Colony House, Inc., 414 S.W.2d 221 (Tex.Civ.App.-Waco 1967, writ ref’d n.r.e.). There is no evidence that the release was procured by fraud.

THE ASSERTED MUTUAL MISTAKE

A “mutual mistake” is one common to both parties to a contract, each laboring under the same misconception. Hanover Insurance Company v. Hoch, 469 S.W.2d 717 (Tex.Civ.App.-Corpus Christi 1971, writ ref’d n.r.e.); Commercial Standard Insurance Co. v. White, 423 S.W.2d 427 (Tex.Civ.App.-Amarillo 1967, writ ref’d n.r.e.); Newell v. Mosley, 469 S.W.2d 481 (Tex.Civ.App.-Tyler 1971, writ ref’d n.r.e.).

The effect of a written release cannot be avoided on the grounds that the releasor was ignorant of, or mistaken as to the contents of the release, or failed to read the same before signing it. Harvey v. Elder, 191 S.W.2d 686 (Tex.Civ.App.-San Antonio 1945, writ ref’d).

Here, there is no evidence that Winner was laboring under any misconception. He offered $2,000.00 for a full and complete release of liability. His offer was accepted. The evidence did not raise a fact issue relating to the asserted mutual mistake.

DISPOSITION OF THE APPEAL

After considering the record most favorably to Mrs. Schmaltz, we hold, as a matter of law, that there is no evidence which raised a fact issue with respect to any of the grounds urged for the setting-aside of the release. It is undisputed that Mrs. Schmaltz signed the release, which was valid on its face. By the terms of the release, all of the defendants were released from all damages, past, present and future, resulting from the occurrence on March 1, 1975. Summary judgment was properly rendered for the defendants.

The judgment of the trial court is AFFIRMED.

NYE, C. J., not participating.


source: Caselaw Access Project

author: JAMES, Justice.

license: Public Domain

text:
    MIRA-PAK, INC., et al., Appellants, v. G. E. POSEY CORPORATION, Appellee.
    No. 5788.
    Court of Civil Appeals of Texas, Waco.
    April 27, 1978.
    Rehearing Denied May 25, 1978.
    B. Edward Williamson, Prappas, Mon-cure, Harris & Termini, Daniel 0. Newsom, Houston, for appellants.
    Robert Eikel, Eikel & Davey, Houston, for appellee.
   OPINION

JAMES, Justice.

This is a suit in contract, quasi-contract and negligence to recover $4,067.42 representing penalties and expenses incurred by Plaintiff-Appellee G. E. Posey Corporation (hereinafter called “Posey”) while acting as a customs broker for Defendant-Appellants in connection with an automatic wrapping machine owned by Defendant-Appellant Mira-Pak, Inc., and exported by Mira-Pak to a customer in Montreal, Canada. Upon the refusal of the Canadian customer to accept the machine (because it was damaged), the machine was reimported back into the United States at Houston, Texas, to Mira-Pak. Specifically, Plaintiff Posey sued to recover the penalties and expenses incurred by it in obtaining the release of the machine from the U. S. Customs Service at the time the machine was returned from Canada to Houston.

As stated, Plaintiff Posey is a corporation engaged in the business of customs brokering. Defendant Mira-Pak is a corporation in the business of manufacturing and shipping automatic packaging machines. The other Defendant-Appellant is Constable and Madison, Inc., a corporation engaged in the business of freight forwarding.

Trial was had to a jury which found (or failed to find) as follows:

(1) Plaintiff Posey acted as agent for Defendant Constable and Madison in making the Consumption Entry to obtain release by Customs of the packaging machine to Defendant Mira-Pak.

(2) Plaintiff Posey acted as agent for Defendant Mira-Pak in making said Consumption Entry.

(3) Payment by Reliance Ins. Co. to Customs of the dutiable amount set forth on the Consumption Entry was a payment made as a matter of business necessity or compulsion.

(3A) Plaintiff Posey paid Reliance Insurance Co. the dutiable amount which Reliance Ins. Co. paid to the Bureau of Customs.

(4) Plaintiff Posey’s payment to Reliance of the amount paid by Reliance to Customs was made as a matter of business necessity or compulsion.

(5) The charges made by Reliance Ins. Co. for its services in paying the dutiable amount set forth on the Consumption Entry were reasonable.

(6) The charges made by Plaintiff Posey for its services in connection with preparation of the Customs protest and payment of the dutiable amount on the Consumption Entry were reasonable.

(7) Failed to find that the agency between Defendant Constable and Madison and Plaintiff Posey was terminated on or before May 20, 1968.

(8) Failed to find that Plaintiff Posey acted as agent solely for Defendant Mira-Pak in connection with the transaction in question.

(9) There was no Special Issue Number 9 submitted.

(10) Failed to find that Plaintiff Posey failed to timely inform Defendant Mira-Pak that the machine in question should be reexported in order to avoid assessment of a penalty by Customs.

(13) Failed to find that Defendant Constable and Madison failed to timely inform Mira-Pak that the machine in question must be re-exported in order to avoid the assessment of a penalty by the Bureau of Customs.

After jury verdict the trial court entered judgment in favor of Plaintiff Posey against Defendant Constable & Madison and Defendant Mira-Pak, jointly and severally, in the amount of $4,067.42 with 6% interest per annum from May 31, 1973, to date of judgment, and 9% per annum from the date of judgment until paid. Defendant Constable and Madison was denied any judgment over against Defendant Mira-Pak for indemnity or contribution. In this connection it should be pointed out that Constable and Madison had pleaded and prayed for such relief against Mira-Pak. From this judgment both Defendants appeal. We reform the trial court’s judgment in the manner hereinafter indicated, and as reformed, we affirm said judgment.

Both Appellants assert there is no evidence and insufficient evidence that Plaintiff Posey paid Reliance Insurance Company any money. We overrule these contentions, because there is direct evidence in the record to the effect that Plaintiff Posey paid and reimbursed Reliance Insurance Co. the dutiable amount theretofore paid by Reliance to the Bureau of Customs.

Appellant Constable and Madison further contend that there is no evidence and insufficient evidence that Plaintiff Posey was acting as agent for Constable & Madison in performing the acts of clearing the machine through U. S. Customs. We overrule these contentions, and hold that such evidence of agency is both legally and factually sufficient.

Plaintiff Posey was licensed by the Bureau of Customs as a customhouse broker, whose function is to receive documents covering merchandise entering this country and to prepare the necessary documents for clearance through Customs. Included in such function is obtaining the release from Customs of shipments by either paying the duty or by posting a bond for the release of the shipment so that it can be delivered to the inland carrier for transportation to final destination.

Prior to the events which led to this litigation, Posey had for several years acted as customhouse broker on behalf of Mira-Pak through Constable & Madison in connection with the importation of packing machines from West Germany.

The machine in question had been exported by Mira-Pak from Houston, Texas, to a customer in Montreal, Canada. When the Canadian customer received the machine, it was damaged, and the customer refused to accept it, and thereupon ordered it returned to Mira-Pak. When the machine was in the process of re-entering the United States, the events occurred which brought about the instant litigation.

Mr. Woodman, Mira-Pak’s house counsel, telephoned Herman Constable, the president of Constable & Madison, and told Mr. Constable that the machine was in Customs at the Roadway Express Terminal in Houston, that Mira-Pak wanted to get possession of the machine so it could be repaired and then sent back to Mira-Pak’s customer in Canada. Woodman asked Constable what had to be done in order to have the machine released by Customs so that it could be delivered to Mira-Pak’s plant for repairs.

Constable then called Plaintiff Posey’s import manager, a Mr. Burrell, who advised Constable that Customs would release the machine upon the execution of a “Temporary Importation Bond” (T.I.B.), which is also called a “Consumption Entry.” Burrell told Constable that this was the most efficient method of handling the matter. Constable then, at the request of Mira-Pak, asked Plaintiff to get the machine released from Customs and to go to Roadway Express so as to pick up the invoice and other necessary shipping documents in order to obtain the information needed to prepare the Consumption Entry for submission to Customs.

Plaintiff carried out Constable’s request, and prepared the Consumption Entry dated May 20, 1968, and the following notation appears thereon:

“Imported for the purpose of re-working and repairing and return to Canada. Not imported for sale or for sale on approval.”

The above notation was based on information furnished by Mira-Pak’s chief export clerk to Constable & Madison, and then in turn relayed by Constable & Madison to Plaintiff. The duty for this machine (had it been paid) would have been $1,865.43; however, by the filing of the Temporary Importation Bond in twice this amount, to wit, $3,730.86, the duty would not have to be paid if the conditions of the bond were met. Under the terms of the T.I.B., the machine had to be exported within one year or destroyed under Customs supervision in order to avoid the assessment of the penalty.

Plaintiff set up this account in the name of Constable & Madison, prepared the T.I.B. by (Plaintiff) executing the bond as principal in the amount of $3,730.86 with Reliance Insurance Co. as surety, submitted the bond to Customs, and secured the release of the machine from Customs. Then Plaintiff furnished a copy of the T.I.B. (Consumption Entry) to Constable & Madison together with an invoice in the amount of $30.00 for services rendered in connection with obtaining the release of the machine; and thereupon Constable & Madison paid the invoice.

Constable & Madison requested Plaintiff to apply to Customs for a one-year extension on the T.I.B., which Plaintiff did. Customs granted the extension to April 29, 1970. Then on October 28, 1969, Plaintiff wrote a letter to Constable & Madison and inquired as to the status of the machine and advised that the penalty would be “quite large” in the event the terms of the T.I.B. were not complied with. Thereafter, Constable & Madison requested Plaintiff to apply to Customs for another extension of time. Plaintiff did apply, and Customs granted a second extension of time to April 29,1971. By letter of April 14,1970, Plaintiff wrote Constable & Madison advising of the new time extension and again asked for a status report concerning the machine. In turn, Mr. Constable wrote a letter to Mira-Pak reminding Mira-Pak that the machine had been brought into this country on a T.I.B. for the purpose of repair, that the repairs had not been made, and told Mira-Pak that unless something was done so as to finalize the clearance with Customs, that a duty penalty in the amount of $3,730.86 would have to be paid. Plaintiff Posey was sent a copy of the above letter, and upon receipt of same, Mr. G. E. Posey, Plaintiff’s vice president, contacted Mr. Enderson, Mira-Pak’s chief export clerk. Mr. Ender-son stated that the machine had been disposed of and inquired as to what could be done to mitigate the penalty. What had happened was, that on February 12, 1969, Mira-Pak sold the machine in its unrepaired condition for $6,000.00 to a firm in Chicago. From the record, it seems this is the first time either Plaintiff Posey or Defendant Constable & Madison had been furnished any information as to the disposition that Mira-Pak had made of the machine, this being some fourteen months after such disposition. Learning these facts, Mr. Posey asked Mr. Enderson to supply him with all the relevant facts, and stated that he, Po-sey, would do his best to secure a release from Customs so as to avoid the penalty. Posey asked Enderson to write a letter addressed to Customs but delivered to Posey setting out the pertinent information, which Enderson did, and sent a copy thereof to Constable & Madison. Plaintiff Posey then filed a petition with Customs seeking to mitigate or avoid the penalty, which was unsuccessful. Customs demanded payment of the $3,730.86 within 60 days from August 5, 1971.

Having received this demand from Customs, Plaintiff so advised both Mira-Pak and Constable & Madison and made demand upon both Defendants to pay said $3,730.86 directly to Customs. Neither Defendant paid the penalty nor any part thereof. Neither did Plaintiff Posey pay Customs’ demand, whereupon Reliance Ins. Co., the surety on Plaintiff’s Bond, paid Customs in full the penalty of $3,730.86. Plaintiff Po-sey then reimbursed Reliance for the $3,730.86 plus service charges incident thereto, and then brought this suit against both Defendants for the penalty money paid out by Plaintiff plus the incidental expense, all totalling $4,067.42.

In our opinion the evidence is ample to show that throughout these transactions Plaintiff Posey was acting as agent for Constable & Madison.

Appellant Constable & Madison further contends that the evidence conclusively shows that Constable & Madison was acting as agent for Mira-Pak, and therefore Constable & Madison was entitled to judgment over against Mira-Pak by way of indemnity as a matter of law, and for this reason the trial court erred in denying Constable & Madison such a judgment over against Mira-Pak. We sustain this contention.

The machine in question was delivered to Mira-Pak after entry of the T.I.B. resulted in Customs clearance. Herman Constable sent a copy of the T.I.B. to Mira-Pak, and Mr. Enderson of Mira-Pak was aware that the bond provided for repair and return of the machine. He stated, “It was our intention to repair it.” However, Mira-Pak decided it could not be repaired, and in February, 1969, sold it to a firm in Chicago. As chief export clerk for Mira-Pak, Ender-son used Constable & Madison for forwarding freight. Without detailing all of the transactions and contacts between Mira-Pak and Constable & Madison, it is clear from the record that the conduct of the parties and the circumstances conclusively establish that the acts of Constable & Madison were performed for the benefit of and under the direction of Mira-Pak. This being so, Mira-Pak is liable and bound to indemnify Constable & Madison from Plaintiff’s judgment against Constable <& Madison under the established rule that a principal is bound to indemnify his agent for the agent’s loss proximately resulting from the good faith execution of the agency. Oats v. Dublin National Bank (Comm.App.1936) 127 Tex. 2, 90 S.W.2d 824, 829, opinion adopted. Also see 2 Tex.Jur.2d “Agency,” Section 135, page 585; Modine Manufacturing Co. v. Northeast Ind. School District (Beaumont CA 1973) 503 S.W.2d 833 at page 845, NRE.

Appellants have other points and contentions, all of which we have carefully considered, and we overrule same for want of merit.

Judgment of the trial court is reformed by awarding Appellant Constable & Madison judgment over against Appellant Mira-Pak by way of indemnity for all sums which it may pay to Appellee G. E. Posey Corporation pursuant to the terms of the trial court’s judgment, together with its costs in the trial court in this behalf expended. As reformed, said judgment is affirmed.

Costs of this appeal are taxed one-third (⅛) against Appellant Constable & Madison and two-thirds (¾) against Appellant Mira-Pak.

REFORMED AND AFFIRMED.


author: BRADBURY, Justice.

text:
    Dorothy DRISKILL, Appellant, v. Gene FORBES et al., Appellees.
    No. 5111.
    Court of Civil Appeals of Texas, Eastland.
    April 27, 1978.
    Rehearing Denied May 25, 1978.
    Garry Lewellen, Stephenville, for appellant.
    Richard Don Coan, Stephenville, for ap-pellees.
   BRADBURY, Justice.

This is a suit to cancel a deed executed by John C. Syer, Deceased, to his sister, Dorothy Driskill. Gene Forbes, independent executor of Syer’s estate, brought suit against Driskill alleging no delivery of the deed. Driskill claimed the conveyance was made to defraud a creditor of Syer and, as between grantor and grantee, the parties should stand as they are found. The trial court, based on jury’s answers to special issues, entered judgment for Forbes. Dris-kill appeals and we affirm.

John C. Syer, an eighty-year old bachelor, was involved in a motor vehicle collision with Sheryl Cox on October 7, 1970. Cox was seriously injured. No suit was filed against Syer by Cox although during February and March 1971, her father and brother-in-law contacted Syer and told him they thought he should help on the expenses over the $10,000 provided for by his liability policy. Syer refused.

Cox’s father testified that no suit was filed and there was no intention of filing one as he did not think it would do any good, and they did not have time “to fool with it”. There is nothing to indicate that the decision not to file suit was conveyed to Syer. However, Syer’s insurance agent told him there was a possibility a claim would be made against him for more than the limits of his policy and he ran the risk of having a writ of execution levied against his farm. This alarmed Syer. On September 9, 1971, Syer’s insurance company settled with Cox within the policy limits.

On February 18, 1971, Syer had a deed prepared conveying his 254.21 acre farm to Driskill. The deed recited $10 and other consideration, although no consideration was paid. Syer took the deed to the County Clerk’s office and left it to be recorded with instructions to return it to him. When the recorded deed had been returned to him, he placed it in his trunk with other valuable papers.

As a result of injuries sustained in the collision, Syer was not able to return to his farm immediately. After a stay in the hospital, he went to Driskill’s home f ,r care. They had some disagreements and he returned to his farm where he lived until he reentered the hospital prior to his death.

On May 3,1974, Syer had a deed prepared for the purpose of having the farm recon-veyed to him. Driskill originally agreed to execute the deed, but later refused. Through his attorney, Syer tried to convince Driskill to execute the deed of recon-veyance. He offered her $200 as an inducement, but to no avail.

Syer died November 18, 1974, and Gene Forbes, as independent executor, brought this suit.

It is Driskill’s position that the deed in question was made for the purpose of defrauding a creditor and as between the parties they are to stand as they are found. Forbes contends the conveyance was never consummated because there was no delivery of the deed with the intent of conveying fee simple title. He urges that since the conveyance was never consummated the rule of “letting the parties stand as they are found” is inapplicable.

In Letcher v. Letcher, 421 S.W.2d 162 (Tex.Civ.App.-San Antonio 1967, writ dism’d), the court held:

. As between the parties to a fraudulent transaction, the transfer designed to defraud creditors passes title to the property, and the grantor may thereafter assert no right, title or interest in the property . . . ”

Defendant contends such holding as applied to the facts in this case precludes recovery by Forbes. Forbes argues that in Letcher, the court was speaking to a situation where there was a completed transfer of title. In the instant case, he contends that because the deed was never delivered the transfer was incomplete and the rule that the court must leave the parties in the position they have placed themselves is not applicable. We agree because in Koppelmann v. Koppelmann, 94 Tex. 40, 57 S.W. 570 (1900), the court stated:

. . In order for a deed to pass title, there must be a delivery of it, either actual or constructive. Steffian v. Bank, 69 Tex. 517, 518, 6 S.W. 823; McCartney v. McCartney, 93 Tex. 359, 55 S.W. 310. The depositing of a deed for record by or at the instance of the grantor had often been held to be sufficient evidence of delivery, but it is not conclusive; and where the deed is not actually delivered, but possession of it is retained by the maker, he is not estopped from showing that the registration was not intended to take the place of delivery or to give effect to the conveyance. From this it results, as we have heretofore held (McCartney v. McCartney, supra), that the question as to the effect of a deed thus recorded, but continuing in the possession of the signer of it, is open for investigation, and its decision depends upon the intent with which the acts relied on as taking the place of actual delivery were done, and, if they were not done for the purpose of completing the conveyance of title, the deed is inoperative. Where the execution of the deed is not thus completed, the purpose of the party to deceive and defraud cannot take the place of execution. A bad intent cannot operate to pass title without the execution of the deed. When the deed has been delivered, its effect is to pass the title as between the grantor and grantee, and the former will not be allowed to defeat it by showing that it was made without consideration for the purpose of defrauding creditors, nor to enforce an agreement on the part of the grantee to reeonvey or to hold in trust, because out of such a fraudulent transaction no cause of action can arise. The courts in such cases leave the parties where they find them. In all the cases relied on by appellant, the deed had been delivered. But when, for want of the execution of the deed, the title has not passed out of the grantor, he is in no need of a decree restoring it . . . ”

The jury found in favor of Forbes in answer to Special Issue No. 1 as follows:

“Do you find from a preponderance of the evidence that John C. Syer filed the deed dated February 18, 1971, in the County Clerk’s office with the intention that it become at that time operative as a fee simple conveyance of the land described therein to Dorothy Driskill?”

The jury answered, “We do not”.

Driskill argues there is no evidence or, alternatively, factually insufficient evidence to support the jury’s finding to Special Issue No. 1.

The Supreme Court stated in Thornton v. Rains, 157 Tex. 65, 299 S.W.2d 287 (1957):

“The question of delivery of a deed is one of intention on the part of grantor to be determined from all the facts and circumstances . . . ”

The Supreme Court also stated in Henry v. Phillips, 105 Tex. 459, 151 S.W. 533 (1912):

“What constitutes a delivery of a deed is a question of law, but whether there was in fact a delivery of the deed under consideration is a question of fact, to be determined by the jury . . . ”

Syer’s attorney, who prepared the deed, testifying by deposition indicated that Syer did not intend to make an unconditional conveyance to Driskill. The attorney was asked:

“Q And he expected to get it back, or could you draw from your discussion with him that he expected to get it back?
A Yes, he did.”

In a letter to her sister, Ola Huffman, Driskill said the arrangement of putting title to the farm in her name was “just temporary”. Driskill and Syer both continued to refer to the farm as Syer’s property. Syer took the deed to be recorded, requested it be returned to him and upon its return placed it in his trunk. Driskill never had physical possession of the deed and apparently did not know of its existence until sometime after it had been recorded. Syer continued to live on the farm, referred to it as his place and operated it as he had previously to the making of the deed. Syer told his attorney he intended to live and die there. After the deed in question was made, Syer made a will in which he devised the farm to his four sisters, a brother and the children of a deceased sister, in equal shares.

In passing on Driskill’s “no evidence” point, we have reviewed the evidence in its most favorable light, considering only the evidence and inferences which support the jury’s finding to Special Issue No. 1 and find some evidence to support that finding. Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex.1974). Furthermore, we have considered and weighed all of the evidence in the case and conclude it is factually sufficient to support the jury’s finding to Special Issue No. 1. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

There being no delivery of the deed, Dris-kill’s contention fails. Koppelmann v. Koppelmann, 94 Tex. 40, 57 S.W. 570 (1900); Blackman v. Schierman, 21 Tex.Civ.App. 517, 51 S.W. 886 (1899, no writ); Harmon v. Schmitz, 39 S.W.2d 587 (Tex.Com.App.1931).

Driskill also contends Forbes had no authority to bring this suit because an executor has no interest in property not in- the deceased’s estate and cannot bring an action which could not have been maintained by the deceased. We disagree. Tex.Prob. Code Ann. § 233 (1955) provides:

“Every personal representative of an estate shall use ordinary diligence to collect all claims and debts due the estate and to recover possession of all property of the estate to which its owners have claim or title, provided there is a reasonable prospect of collecting such claims or of recovering such property . . ”

The claim brought by Forbes was to cancel a deed for nondelivery. Syer could have brought this suit himself had he been living. Forbes, as independent executor of Syer’s estate, had the authority to bring this cause of action. Blackman v. Schierman, supra.

We have carefully considered all of Dris-kill’s points of error and they are overruled.

Judgment of the trial court is affirmed.


author: DUNAGAN, Chief Justice.

text:
    PROCESS OPERATORS, INC., Appellant, v. Ronald E. HAYES, Appellee.
    No. 1136.
    Court of Civil Appeals of Texas, Tyler.
    April 27, 1978.

      Paul R. Lawrence, Houston, for appellant.
    Dale Ledbetter, Houston, for appellee.
   DUNAGAN, Chief Justice.

The plaintiff-appellee, Ronald E. Hayes (hereinafter called Hayes), on or about June 12, 1972, entered into an employment relationship with the defendant-appellant, Process Operators, Inc. (hereinafter called Process), and purchased 250 shares of Process stock for $2,000. The dispute herein arises out of Process’s failure to reimburse Hayes for $833.37 worth of expenses incurred by Hayes in the furtherance of his employer’s business and the failure of Process to either deliver to Hayes the stock or return his $2,000.

The case was tried without a jury and Hayes was awarded a judgment in the amount of $2,833.37, plus costs. No motion for new trial was filed. No findings of’fact and conclusions of law were requested and none were filed.

Process’s sole point of error is that there was no evidence, or alternatively, there was insufficient evidence to support the judgment entered in favor of the plaintiff.

We affirm.

The appellant concedes that there was sufficient evidence introduced regarding the unreimbursed business expenses. Therefore, the appellant does not complain of that portion of the judgment holding that Hayes was entitled to recover his $833.37 worth of expenses incurred by Hayes in the furtherance of the appellant’s business. The major complaint of Process is that there are no pleadings to support the $2,000 portion of the judgment that was awarded to Hayes for the failure of Process to deliver the stock or to return to Hayes his $2,000. The appellant states that Hayes merely alleged he was fraudulently induced to enter into this contract for the sale of stock and that no fraudulent inducement evidence is contained in the record.

The record in this case shows that the appellee and the appellant entered into an agreement whereby the appellant was to pay $2,000 for 250 shares of the appellant’s stock. The appellee paid this $2,000 and was never presented the 250 shares of stock.

There is abundant evidence to support a failure of consideration concerning this agreement. The appellee performed his part of the agreement by paying the $2,000. The appellant never did tender the stock to the appellee and the record reflects that there never was any intent to do so.

The appellant states in its brief that . the only evidence offered tends to show a failure of consideration, no stock delivery. However, this was not in the pleadings and the Judgment must be reversed.” We agree that the evidence shows a failure of consideration. The undisputed testimony shows that the appellee never received the stock he paid $2,000 to receive.

The appellee only pled fraudulent inducement and conversion and failed to plead failure of consideration. This is not controlling, however, since the appellant, without objection, permitted the introduction of evidence bearing on a failure of consideration. Antrim v. McMurrey, 549 S.W.2d 463, 465 (Tex.Civ.App.-Austin 1977, n. w. h.). The issue of failure of consideration was tried by implied consent. Rule 67, Tex.R.Civ.P.; see Johnson v. Bond, 540 S.W.2d 516, 520 (Tex.Civ.App.-Fort Worth 1976, n. w. h.); Simon v. Watson, 525 S.W.2d 210 (Tex.Civ.App.-Dallas 1975, writ dism’d); Texas Tool Traders, Inc. v. Mosley Machinery Co., 422 S.W.2d 229, 232 (Tex.Civ.App.-Waco 1967, n. w. h.); Zorola v. Bishop & Son, 401 S.W.2d 713, 715 (Tex.Civ.App.-San Antonio 1966, n. r. e.); McKenzie v. Carte, 385 S.W.2d 520, 525-526 (Tex.Civ.App.-Corpus Christi 1964, n. r. e.); Shea v. Yanof, 288 S.W.2d 575, 576 (Tex.Civ.App.-Dallas 1956, writ dism’d); Shaw v. Tyler Bank and Trust Co., 285 S.W.2d 782, 790 (Tex.Civ.App.-Texarkana 1955, n. r. e.); Donalson v. Horton, 256 S.W.2d 693, 696 (Tex.Civ.App.-Amarillo 1952, n. w. h.); Morgan v. Young, 203 S.W.2d 837, 857 (Tex.Civ.App.-Beaumont 1947, n. r. e.);

Where a trial court filed no findings of fact or conclusions of law, the reviewing court on appeal would presume that the trial court found all controverted facts against the contention of the appellant and in support of its judgment. Brawley v. Bowen, 387 S.W.2d 383 (Tex.1965); North Waco Water Supply District v. City of Waco, 386 S.W.2d 155, 159 (Tex.Civ.App.-Waco 1964, writ ref’d n. r. e.). Since no findings of fact or conclusions of law were requested or filed, it not only must be presumed that the trial court resolved in appel-lee’s favor every issue of fact raised by the evidence but in passing upon the “no evidence” points, we must view the evidence in the light most favorable to such finding, disregarding all evidence that is contrary thereto. Collingsworth v. King, 155 Tex. 93, 283 S.W.2d 30 (1955); Quinn v. Dupree, 157 Tex. 441, 303 S.W.2d 769 (1957); 11 A.L.R.2d 165.

In examining the factual sufficiency of the evidence to support the court’s finding, we must consider the whole record to determine if the court’s finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. Traylor v. Goulding, 497 S.W.2d 944, 945 (Tex.1973); C & R Transport, Inc. v. Campbell, 406 S.W.2d 191, 194 (Tex.1966); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Parish v. Hunt, 160 Tex. 378, 331 S.W.2d 304 (1960). After a review of the entire record and after having weighed and balanced all the evidence, we hold that the trial court’s finding is supported by sufficient evidence. Appellant’s point of error is overruled.

The judgment of the trial court is affirmed.


author: CLAYTON, Justice.

text:
    LEE McGUIRE 1900 COMPANY, Appellant, v. INVENTIVE INDUSTRIES, INC., et al., Appellees.
    No. 8095.
    Court of Civil Appeals of Texas, Beaumont.
    April 27, 1978.
    Rehearing Denied May 18, 1978.

      Ronald E. Tigner, Houston, for appellant.
    Larry W. Bass, Houston, for appellees.
   CLAYTON, Justice.

Plaintiff below, Lee-McGuire 1900 Company, initially brought this forcible entry and detainer action against Fontana-Mur-rell-Polydoros, Inc. (F-M-P), Fontana-Poly-doros, Inc. (F-P), Texas General Petroleum Corporation (T-G-P-C), and Inventive Industries, Inc., in the justice of the peace court to recover possession of office space in a building in Houston. This court gave plaintiff possession of the premises, and defendants appealed. The case was then tried de novo by the county court-at-law without a jury. The county court held that plaintiff was entitled to restitution of the premises from all of the occupants except Fontana-Polydoros, Inc., which was entitled to retain possession. The court also ordered the four defendants to pay plaintiff $9,872.34, which represented the rent owed on the premises. Plaintiff also sought attorney’s fees, but none were awarded. Findings of fact and conclusions of law were filed. Plaintiff requested additional findings on attorney’s fees, but the trial court refused to make these findings. Plaintiff has appealed from the trial court’s refusal to award attorney’s fees.

The evidence in this case shows that FM-P leased office space from plaintiff in November of 1973. In June of 1974, FM-P assigned the lease to P-P, and this assignment was approved by plaintiff as required by the lease. In April of 1976, F-P assigned the lease to Inventive Industries, Inc., and this assignment was also approved. Inventive then entered into an agreement with T-G-P-C to assign this lease to T-G-P-C. Although plaintiff never approved this assignment, Inventive moved out of the premises and T-G-P-C moved in on January 4, 1977. On January 5, plaintiff gave written notice to all four defendants that the lease was terminated because of failure to pay the rent, abandonment of the premises by Inventive, and assignment of the premises to T-G-P-C without plaintiff’s written consent. Defendants then tendered the January rent, which was due on the first of the month, and plaintiff refused to accept it. On January 12, 1977, plaintiff filed this forcible entry and detainer action.

The threshold question presented by the defendants is a jurisdictional issue. Defendants contend in their first counterpoint that this court lacks jurisdiction to consider this issue under Tex.Rev.Civ.Stat.Ann. art. 3992 (1966). Article 3992 read as follows:

“The judgment of the county court finally disposing of the cause shall be conclusive of the litigation, and no further appeal shall be allowed, except where the judgment shall be for damages in an amount exceeding one hundred dollars.”

It is established law that in forcible entry and detainer suits our courts of civil appeals have no jurisdiction to consider the question of possession of the premises. When damages are awarded in excess of $100, only the damage issue is appealable. E. g., Vickery v. Symes, 527 S.W.2d 836, 837 (Tex.Civ.App.—Tyler 1975, no writ); Williamson v. Johnson, 492 S.W.2d 327, 329-30 (Tex.Civ.App.—Tyler 1973, no writ); Madison v. Martinez, 56 S.W.2d 908 (Tex.Civ.App.—Dallas 1933, writ ref’d).

Appellee argues that Article 3992 should be interpreted so as to allow only losing parties to appeal the damage portion of the judgment and cites the following quotation from Gillam v. Baker, 195 S.W.2d 826, 827 (Tex.Civ.App.—Galveston 1946, writ dism’d), as authority:

“While under said Article 3992 the losing party in a forcible entry and detainer proceeding has the right of appeal from a money judgment in a county court for an amount in excess of $100, the courts of this state have uniformly held that such an appeal will be limited to the question of damages . . . .” (Emphasis added in brief.)

No case was cited nor can we find any case in which the “prevailing” party in a forcible entry and detainer action appealed the court’s refusal to grant attorney’s fees. However, it is our conclusion that neither Article 3992 nor the language in Gillam precludes this type of appeal.

The damages awarded in this suit were in excess of $100, and this appeal involves and affects the award of damages, since attorney’s fees may be considered as and included in damages under Tex.R.Civ.P. 752. Since this is an appeal complaining of the amount of damages which exceeds the sum of $100, we hold this court has jurisdiction.

Plaintiff contends in its first point of error that it was an abuse of discretion for the trial court to refuse to award plaintiff attorney’s fees.

Tex.R.Civ.P. 752 provides in part that:

“On the trial of the cause in the county court the appellant or appellee shall be permitted to plead, prove and recover his damages, if any, suffered for withholding or defending possession of the premises during the pendency of the appeal.
“Damages may include but are not limited to loss of rentals during the penden-cy of the appeal and reasonable attorney’s fees in the justice and county courts. Only the party prevailing in the county court shall be entitled to recover damages against the adverse party.”

Since the award of attorney’s fees is considered a penalty, this rule should be strictly construed. Tenneco Oil Company v. Padre Drilling Company, 453 S.W.2d 814, 818 (Tex.1970); Van Zandt v. Fort Worth Press, 359 S.W.2d 893, 895 (Tex.1962); Perry v. Leuttich, 121 S.W.2d 332, 333 (Tex.Comm.App.1938), opinion adopted. Although we find no case in which the court addressed the question of whether Rule 752 is mandatory or discretionary, our conclusion is that Rule 752 gives the trial court discretion to grant or deny attorney’s fees. This interpretation is based at least in part on the use of the word “may” in the sentence involving attorney’s fees.

In this case it is our conclusion that the trial court did not abuse its discretion in refusing to award attorney’s fees. This suit was initiated against four defendants for possession of the premises and for past rents. It is undisputed that the rents were owed. Defendants’ tender of the rent was rejected each month and was placed in an escrow account. Therefore, the real issue to be litigated in this action was the right to possession of the premises. On the possession issue, plaintiff was the “prevailing” party as to three of the defendants, but was the losing party as to F-P. All four of the defendants were represented by the same attorney. If the court awarded attorney’s fees to all of the “prevailing” parties, plaintiff and F-P would receive attorney’s fees. Moreover, plaintiff did not prove specifically the amount of fees attributable to the suit against those defendants against whom he prevailed and the fee attributable to F-P. In this situation it should not be considered an abuse of discretion for the trial court to order that each party pay its own attorney’s fees instead of exchanging attorney’s fees.

Under the record in this case we hold there is no showing of an abuse of discretion in refusing to award attorney’s fees to plaintiff as an element of damages.

In his second point of error, plaintiff contends that the trial court erred by refusing to answer plaintiff’s request for additional findings of fact and conclusions of law relating to attorney’s fees. The court did make findings of fact and conclusions of law on attorney’s fees. The court found that all of the parties were required to retain attorneys and that each party should bear its own attorney’s fees. Since the matter of attorney’s fees was disposed of by these findings and conclusions, it is not error for the trial court to refuse to make additional findings on the same point. See Flagg Realtors, Inc. v. Harvel, 509 S.W.2d 885, 893 (Tex.Civ.App.-Amarillo 1974, writ ref’d n. r. e.); Huber v. Buder, 434 S.W.2d 177, 181 (Tex.Civ.App.-Fort Worth 1968, writ ref’d n. r. e.).

The judgment of the trial court is affirmed.

AFFIRMED.


author: DIES, Chief Justice.

text:
    Melvin Lee LEWIS, Appellant, v. COMMERCIAL INSURANCE CO. OF NEWARK, NEW JERSEY, Appellee.
    No. 8093.
    Court of Civil Appeals of Texas, Beaumont.
    April 27, 1978.

      Mark T. McDonald, Houston, for appellant.
    Robert B. Dillon, Houston, for appellee.
   DIES, Chief Justice.

This is a workers’ compensation case wherein the carrier, Commercial Insurance Company of Newark, New Jersey, as plaintiff below, filed suit to set aside an award of the Industrial Accident Board. Defendant and cross-plaintiff, Melvin Lee Lewis, an employee of Houston Lighting & Power, alleged incapacity because of an injury occurring August 15, 1973.

Trial was to a jury which failed to find that the injury was the producing cause of any total or partial incapacity.

Judgment was given carrier from which Lewis perfects this appeal, contending these findings were against the great weight and preponderance of the evidence.

Before trial, it was stipulated Lewis was injured in the course and scope of his employment for Houston Lighting & Power Company on August 15, 1973; that carrier paid Lewis compensation for fifteen weeks and two days at $49 per week; and that the medical bills of Dr. Simon Fredericks had been paid by carrier.

On the day of the injury, Lewis was an apprentice lineman; his duties were “to perform the functions of climbing poles, connecting wires to houses, cutting aloose meters from houses and cutting down electrical wires and hooking them up.”

On that day while plugging in a 480 volt meter “the meter itself exploded in my face.” His face, ears, neck, and both arms were burned. He was taken by ambulance to Memorial Hospital where he was confined for one week. After that he went to Herman Hospital. It was there he was treated by Dr. Simon Fredericks. After discharge from Herman, he went home and remained there recuperating for about a month and a half.

In 1975 he was again hospitalized at Herman Hospital where Dr. Fredericks removed surgically some scar tissue.

When he returned to work at Houston Power & Lighting (October 1973) he was put to work “sweeping the docks” because his burns “was still showing and they were open.” After about three weeks he went back to climbing poles until February 1976 when he was discharged.

A medical report of Dr. Simon Fredericks stated that Lewis first came under his care at Herman Hospital on August 21, 1973, when transferred from Memorial Hospital. The initial examination revealed “deep second degree burns on the face, neck, ears, and left upper extremity.” Lewis was “initiated on active local wound care and treatment designed to reduce the secondary infection of his wound, and to preserve the elements of the dermis still present.” He was brought to the operating room on August 23, 1973, where he was afforded the benefit of an extensive microdebridement, further designed to preserve the dermal elements.” Lewis was discharged from Herman Hospital on August 31,1973, “to be followed as an out-patient through my office.” Since his discharge from Herman Hospital, “the patient was followed as an out-patient through our office. He had numerous areas of weeping and blistering which required careful active local wound care and treatment.”

On October 8, 1973, the doctor permitted Lewis to return to work “with the restriction that he could not be exposed to extreme variations of temperature, heat and cold, or exposure to the elements — wind or sun.”

On November 30, 1973, “he was fitted with a special Jobst sleeve, which he was to wear at all times.”

In March 1975, “Mr. Lewis was afforded the benefit of excision and revision of keloi-dal scars of the arm and closure of the resultant defects by advancement of local tissue. . . . ”

Lewis “is left with a cosmetic embarrassment of thickening of the skin associated with burn, together with scattered areas of hyperpigmentation, and depigmentation.”

In Weicher v. Insurance Company of North America, 434 S.W.2d 104, 106 (Tex.1968), claimant was hospitalized for fifteen days which the court said, “This alone constitutes evidence of disability for at least a given compensable period.”

In Seeton v. Aetna Casualty and Surety Company, 535 S.W.2d 783 (Tex.Civ.App.-Eastland 1976, no writ), the court held that a finding that claimant did not sustain any total incapacity was against the great weight and preponderance of the evidence, where the claimant was in the hospital twenty-seven days following an operation for a herniated disc.

As a general rule, the question of the extent and duration from an injury is a question for a jury. Texas Employers’ Insurance Association v. Scott, 233 S.W.2d 171 (Tex.Civ.App.-Amarillo 1950, writ ref’d n. r. e.). However, a jury cannot ignore the undisputed facts, and the undisputed facts here show that claimant Lewis had some period of total incapacity. See Bazzano v. Ware, 530 S.W.2d 650 (Tex.Civ.App.—Beaumont 1975, writ ref’d n. r. e.).

Carrier responds that if there is error, it is harmless — Tex.R.Civ.P. 434 — because the stipulation before trial established Lewis was paid fifteen weeks of compensation. Carrier has cited us no case so holding, and we have been unable independently to find a case addressing this contention. But, we are persuaded this is not a sound proposition. The question of the extent and duration of incapacity is for the jury. Scott, supra. Thereafter, the carrier is given credit for any previous payments of compensation. A Court of Civil Appeals is no trier of the facts and may not exercise the fact finding power of a jury. 4 Tex.Jur.2d Appeal and Error § 777 at 248 (1974) and authorities there cited.

Appellant’s first point is sustained. The judgment of the trial court is reversed, and the case is remanded for a new trial.

REVERSED and REMANDED.


text:
    Francisco GUERRERO, Appellant, v. STANDARD ALLOYS MANUFACTURING COMPANY, Appellee.
    No. 8114.
    Court of Civil Appeals of Texas, Beaumont.
    April 27, 1978.
    Rehearing Denied May 18, 1978.

      Gerald Eddins, Port Arthur, for appellant.
    James L. Weber, Beaumont, for appellee.
   DIES, Chief Justice.

Francisco Guerrero, plaintiff below, received hand injuries while operating a machine owned by Standard Alloys Manufacturing Company, defendant below. He first settled a workers’ compensation claim with the insurer of Golden Triangle Janitorial Service before suing defendant below in a third party negligence suit. Defendant below was given a summary judgment from which plaintiff below perfects this appeal. The parties in this opinion will be referred to as they were below.

A defendant moving for summary judgment assumes a negative burden of showing as a matter of law that the plaintiff had no cause of action against the defendant and that no material fact issues remain. Citizens First National Bank of Tyler v. Cinco Exploration Co., 540 S.W.2d 292, 294 (Tex.1976); Neigut v. McFadden, 257 S.W.2d 864, 868 (Tex.Civ.App.—El Paso 1953, writ ref’d n.r.e.). We must review the evidence in the light most favorable to the party opposing the motion for summary judgment. Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557, 562 (1962). We must accept as true all evidence of the party opposing the motion which tends to support his contentions. All doubts are to be resolved against the movant. Womack v. Allstate Insurance Company, 156 Tex. 467, 296 S.W.2d 233, 235 (1956). See Governing Board v. Pannill, 561 S.W.2d 517 (Tex.Civ.App.—Texarkana 1977, no writ).

The sole owner of Golden Triangle Janitorial Service is Joe Gutierrez who, by affidavit, asserted he was in the business of supplying contract labor; that he had an oral contract with defendant to supply laborers. Defendant pays Gutierrez the hourly wage of all laborers supplied plus thirty percent (30%). Golden Triangle then pays the men (such as plaintiff), the social security and workers’ compensation insurance premiums, and withholds taxes. Gutierrez contends the men he supplied defendant, including plaintiff, worked under the direct supervision and control of defendant, and that Golden Triangle Janitorial Service did not direct plaintiff in doing his work.

Defendant cites us Producers Chemical Company v. McKay, 366 S.W.2d 220, 226 (Tex.1963), that “[w]hen a contract, written or oral, between two employers expressly provides that one or the other shall have right of control, solution of the question is relatively simple.”

However, in order to establish an employer-employee relationship between an employee and a borrowing employer, the employee must know or be charged with knowledge of the lending agreement. Mercury Life and Health Company v. De Leon, 314 S.W.2d 402, 405 (Tex.Civ.App.-Eastland 1958, writ ref’d n.r.e.); Twin City Fire Ins. Co. v. Dodd, 535 S.W.2d 416, 419 (Tex.Civ.App.-Tyler 1976), reversed and remanded 545 S.W.2d 766 (Tex.1977). No such showing appears here; in fact, the opposite appears. The right of control is ordinarily a question of fact. Sparger v. Worley Hospital, Inc., 547 S.W.2d 582, 583 (Tex.1977).

Plaintiff’s affidavit contends he speaks no English, and his supervisors at defendant’s plant speak no Spanish; that Gutierrez “always told us that we were working for him;” that Gutierrez would “stop by work several times a week to check on us and tell us what we were doing wrong and what to do to work faster and better. . In fact, on the day of the accident, Mr. Gutierrez was present at the job site and just the day before had had a meeting with us after work to tell us where we had messed up and how we could improve.”

Furthermore, Gutierrez’s affidavit said, “In compliance with my agreement with Standard Alloys [defendant], a claim was turned into the Travelers Insurance Company with which I had taken opt workmen’s compensation insurance on Francisco Guerrero [plaintiff], and the claim was handled under that coverage.” If defendant made such an agreement, it knew in making such a claim, plaintiff had to contend that his employer was Golden Triangle Janitorial Services. We believe a genuine issue of fact exists and reverse the order of the trial court’s granting the summary judgment, and we remand the cause for trial.

REVERSED and REMANDED.


text:
    Duane D. WITMER, Appellant, v. Bill McCARTY et al., Appellees.
    No. 8116.
    Court of Civil Appeals of Texas, Beaumont.
    April 27, 1978.

      D. Mike Fielder, Liberty, for appellant.
    L. J. Krueger, Liberty, for appellees.
   CLAYTON, Justice.

Defendant below appeals from a judgment granting a permanent injunction ordering defendant to remove a mobile home from his property and permanently enjoining him from placing a mobile home upon the property. Trial was to the court, and no findings of fact or conclusions of law were requested or filed.

Plaintiffs, being thirty property owners in the Whittington Subdivision in Liberty, sued defendant, also a property owner within such subdivision, to enforce the following two restrictive covenants:

“5. No trailor [sic], tent, shack, tin garage, barn, work shops or other buildings of like characteristics shall ever be erected or moved upon any part of this subdivision.
“6. ... No building with less than 1,200 square feet, exclusive of outside porches and garages shall be built on Lots 6 ... in Block 3 [and other lots]. . . .”

Defendant moved a mobile home on Lot 6, Block 3, which he owned. The mobile home was placed on concrete blocks with the wheels still attached, and city water, electricity, and sewage were connected. Defendant testified that he intended to remove the wheels to build onto the home and to make other improvements, but did not make such improvements because of this injunction suit.

Since no findings of fact or conclusions of law were requested or filed, “the trial court’s judgment must be viewed as impliedly finding all necessary facts in support of its judgment.” Buchanan v. Byrd, 519 S.W.2d 841, 842 (Tex.1975). Every issue raised by the evidence must be resolved in favor of the trial court’s judgment. Oxford Development Co. v. Eppes, 422 S.W.2d 583, 584 (Tex.Civ.App.-Corpus Christi 1967, no writ); Coker v. Harris, 281 S.W.2d 100, 101 (Tex.Civ.App.-Dallas 1955, writ ref’d n. r. e.). Therefore, it must be presumed that the trial court found violations of both of the restrictions, i. e., the size requirements and the prohibition against “trailers.”

In his first six points, defendant contends the trial court erred in entering judgment for plaintiffs because there were changed conditions in the subdivision and the restrictions were waived or abandoned. At trial, defendant introduced into evidence several photographs which he contends show violations of the restrictions by other property owners. The evidence adduced at trial indicates that some of the residents in the subdivision, including some of the plaintiffs, had parked self-contained recreational trailers, “barbeque trailers,” and boat trailers on their property. The evidence also shows some metal outbuildings and carports in the subdivision.

The mere presence of recreational trailers and boat trailers, both of which are used for recreational and pleasure purposes of the property owners, does not violate the prohibitive restrictions against “trailers.” The restrictive covenant appears to have been directed at immobilized “trailers” designed and being used for residential purposes. The recreational type vehicles serve an entirely different purpose. By the very nature of their use they may be present one or two days of the week and absent from the property the remainder of the time. We are of the opinion the presence of carports, attached to and made a part of the homes, do not violate the prohibitive restrictions. This leaves us with the question of the presence of some metal outbuildings on some of the lots as being in violation of the restrictions. Most of these outbuildings are described as “small outbuildings.” A review of the entire record shows that such “small outbuildings” exist on nine lots scattered throughout an area of fifty-four lots in the subdivision.

In Stephenson v. Perlitz, 537 S.W.2d 287, 288-89 (Tex.Civ.App.-Beaumont 1976, writ ref’d n. r. e.), quoting Cowling v. Colligan, 158 Tex. 458, 312 S.W.2d 943, 945 (1958), the Court states there are two circumstances where courts have refused to enforce residential-only restrictions:

(1) “[Bjecause of the acquiescence of the lot owners in such substantial violations within the restricted area as to amount to an abandonment of the covenant or a waiver of the right to enforce it.”
(2) “[Bjecause there has been such a change of conditions in the restricted area or surrounding it that it is no longer possible to secure in a substantial degree the benefits sought to be realized through the covenant.”

An important exception to this rule is that the owner “is not precluded from enforcing a restriction against an owner whose violation of it materially affects him, by failing to complain of another’s violation which does not materially affect him in the enjoyment of his property or which is merely trivial.” Stephenson v. Perlitz, supra at 289, quoting Stewart v. Welsh, 142 Tex. 314, 178 S.W.2d 506, 508 (1944).

A real estate expert witness testified that having a mobile home in the subdivision would lower the value of the property in the subdivision. There was no evidence that any outbuildings or any other matters complained of would affect property values. Therefore, the plaintiff owners were not precluded from enjoining the violations that materially affect them while not complaining of any other alleged violations.

“To prove abandonment of a general scheme or plan, it must be shown that the violations are so extensive and material as reasonably to lead to the conclusion that the plan had in fact been abandoned in the restricted area.” Zent v. Murrow, 476 S.W.2d 875, 880 (Tex.Civ.App.-Austin 1972, no writ); accord, Watson v. Wiseheart, 258 S.W.2d 350, 353 (Tex.Civ.App.-Galveston 1953, writ ref’d n. r. e.).

There being no evidence in the record that any of the other lot owners were living in mobile homes or trailers in the subdivision and no evidence that any of the small utility buildings materially affected the owners, defendant has failed to show that the restrictions have been waived or abandoned.

Defendant contends in points seven through ten that there was no evidence or factually insufficient evidence to support a finding that the mobile home was a “trailer” within the meaning of the restriction. The recent Texas Supreme Court case of Lassiter v. Bliss, 559 S.W.2d 353 (Tex.1977) is dispositive of this issue. In Lassiter the Court specifically held that a mobile home was a “trailer.” The mobile home involved in that case was 12 feet wide and 65 feet long, and its wheels had been removed. The Court stated, “ . . .we hold that the mobile home in this case was a ‘trailer’ and was prohibited by the restrictive covenant. The term ‘trailer’ is to be understood in its usual meaning regardless of whether it is referred to or described as a house trailer or mobile home.” Id. at 356. We overrule these points.

In view of our disposition of this appeal, it is not necessary to discuss the other point urged by defendant.

From a review of the evidence in the record, the judgment of the trial court is supported by probative evidence, and the judgment is affirmed.

AFFIRMED.


author: HALL, Justice.

text:
    William C. BAREFOOT, Appellant, v. Song N. BAREFOOT, Appellee.
    No. 5886.
    Court of Civil Appeals of Texas, Waco.
    April 27, 1978.
    Rehearing Denied May 18, 1978.
    John R. Duren and Mary M. Mudd, Duren & Thompson, Copperas Cove, for appellant.
    E. Gerald Sutton, Sutton & Kitchens, Kil-leen, for appellee.
   HALL, Justice.

Appellant William C. Barefoot and appel-lee Song N. Barefoot were divorced in 1972. The custody of their child, a son bom February 26, 1966, was awarded to appellee. Appellant was ordered to pay $160.00 per month for child support, excepting two months during each summer when he would have the child with him. Appellant has made all support payments as ordered. He brought this action in September, 1977, to have the payments reduced. Appellee countered with a plea to have the support increased. After a hearing without a jury, judgment was rendered denying both parties any relief.

Only appellant complains. He asserts that the court’s failure to reduce the amount of his child support payments was an abuse of discretion.

When the parties were divorced, appellant was a sergeant first class in the Army. His military occupational specialty was Food Service Supervisor. His gross pay was $1,000.00 per month. In anticipation of their divorce, the parties agreed as a part of their property division that appellant should receive all of his retirement pay, and he was awarded all of it in the divorce decree. It was also agreed by the parties that appellant should claim the child as a dependent for federal income tax purposes. Appellant’s motion to reduce child support was heard on September 23,1977. At that time he had retired from the Army after 26 years of service. The retirement was to become officially effective on September 30, 1977. Appellant’s gross retirement pay was calculated to be $585.00 per month.

The evidence shows that in 1974 appellant lost the sight in his right eye when the lense was removed. However, the vision of his left eye is normal. In 1975 he tore the cartilage in his right knee. He also has fluid on both knees. Whether he will draw disability payments from the Army for these physical problems has not been determined.

Appellant has remarried since his divorce from appellee. The evidence does not show that he and his wife have any children. Appellant testified that his wife is employed, but there is no evidence as to the nature of her job nor the amount of her income.

Appellant’s original home was in Alabama. He owns one-half acre of land there which he values at $1,000.00. He and his wife plan to move to Alabama. Neither has a known job opportunity waiting there. In preparation for the move, about one week before the trial appellant closed a credit union account of $900.00 and placed it in his checking account in a local bank. The evidence indicates that appellant does not now have a savings account, but it does not show the balance in his checking account.

Appellant admitted on the trial that in addition to his abilities as a food service supervisor he is also “a pretty good mechanic.” He then testified as follows: “Q. If you work as a mechanic or in food service about how much do you think you would normally make, do you have any idea? A. No, I haven’t, haven’t had a chance to check into the job, even. Q. Do you think you would probably make as much as five or six hundred a month, either in mechanic work or food service? A. Well, I don’t know now about that, what the mechanic rate is or anything.”

When appellant and appellee were divorced, he was awarded their equity in a house located in Alabama. Appellant presently owns but owes balances upon a 1977 pickup truck and a Coachman travel trailer. Appellant stated that he sold the house in Alabama in 1975, and used the proceeds of sale and another pickup truck as down payment on the new truck and the travel trailer. He testified that the balances owed are $3,200.00 on the pickup truck and $7,000.00 on the travel trailer, but the proof does not show his payment-arrangement for those vehicles nor the amount of the payments.

The evidence does not conclusively show that appellant is no longer able to pay $160.00 per month for child support. Although appellant’s physical problems might affect his earning capacity, they do not establish that he is unemployable. To the contrary, appellant testified, “I’m going to try to find a job when I get home.” The evidence simply shows that appellant has not inquired into job opportunities in Alabama as a food service specialist or mechanic and does not yet know what his earnings will be, there. If those earnings approach $500.00 per month, his personal income will be as much as it was before he retired from the Army. Too, it is a reasonable inference from the record that appellant’s wife will probably secure a job in Alabama, as she did when appellant was on full pay, and thereby provide additional income for their subsistence.

Under the record, the court’s refusal to reduce appellant’s payments for the support of his child was not an abuse of discretion.

Appellant asserts the court erred in failing to consider certain proof relating to the ability of appellee, who has also remarried, to support the child. Although we agree with appellant that this proof was properly before the court for consideration, we hold this complaint does not present reversible error. Within their abilities to do so, it is the equal duty of parents to provide the needs of their children, including clothing, food, shelter, medical care, and education. Y.T.C.A., Family Code § 12.04. Appellant conceded on the trial that with the child now older and in school, and with the increase in living costs since 1972, the expenses for the child’s needs have increased since the divorce was granted. However, he had no knowledge of how much it costs to support the child. Appellee testified that it costs at least $320.00 per month to provide the child’s needs at this time. Granted full consideration of the evidence bearing upon appellee’s ability to support the child, appellant would still be under the duty to contribute $160.00 per month for child support.

Appellant’s points and contentions are overruled. The judgment is affirmed.


author: O’QUINN, Justice.

text:
    LORENZO TEXTILE MILLS, INC., Appellant, v. Bob BULLOCK, Comptroller of Public Accounts, State of Texas, et al., Appellees.
    No. 12700.
    Court of Civil Appeals of Texas, Austin.
    May 3, 1978.

      Jack McCutchin, Jr., Crenshaw, Dupree & Milam, Lubbock, Michael L. Cook, Clark, Thomas, Winters & Shapiro, Austin, for appellant.
    John L. Hill, Atty. Gen., Gayle Johnson Cipriano, Asst. Atty. Gen., Austin, for ap-pellees.
   O’QUINN, Justice.

Lorenzo Textile Mills, Inc., the appellant, brought action in district court of Travis County to recover $9,677.18 in sales and use taxes, previously paid under protest to the Comptroller of Public Accounts, in conformity with Articles 1.05 and 20.10, Title 122A, Taxation-General, V.A.C.S. The Attorney General and the State Treasurer were also made parties defendant as required by statute.

In district court the taxpayer contended, and contends on appeal, that the State’s claim for the taxes, based on the Comptroller’s determination of deficiency, was barred by limitations because notice of the determination was not given within four years after the last day of the tax period in reliance on Article 20.06(D)(1), Taxation-General. The Comptroller defended in reliance on Article 1.045(A)(3), Taxation-General, as permitting assessment or suit “at any time.”

Both parties filed and urged motions for summary judgment in district court. The trial court granted the State’s motion and entered judgment that Lorenzo Textile take nothing by its suit.

Since both parties filed motions for summary judgment, and the trial court granted one motion and denied the other, we follow the rule of review approved in Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396 (1958); State v. Rope, 419 S.W.2d 890, 899 (Tex.Civ.App. Austin 1967, writ ref’d n.r.e.); Armstrong v. Penroc Oil & Gas Corp., 538 S.W.2d 12, 13 (Tex.Civ.App. Austin 1976, writ ref’d n.r.e.). We will reverse judgment of the trial court and will render judgment that the taxpayer recover its taxes with interest as provided by law.

The facts presented in the record are not in dispute. The quarterly periods of the taxes sought by the Comptroller extended from April 1, 1966, through December 31, 1973. Notice of deficiency determination was issued by the Comptroller April 29, 1974. Lorenzo Textile paid all taxes, penalty and interest due for the periods after December 31, 1969.

The taxpayer declined, however, to pay the amounts determined by the Comptroller in the years prior to 1970 because notice of the deficiency determination, issued in April of 1974, was not given within four years after the last day of the calendar month following the quarterly period for which the amount was proposed to be determined, or was not within four years after the day tax returns were filed. In this position Lorenzo Textile relied on provisions of Article 20.06(D)(1) prescribing that notices of deficiency determinations be given within four years after a tax period, or within four years after a return is filed.

After declining to pay such taxes as Lorenzo Textile considered barred by the limitations of Article 20.06(D)(1), the company petitioned the Comptroller for a redetermi-nation which was denied. Lorenzo Textile paid $9,720.38 under protest and made a claim for refund which also was refused by the Comptroller. The taxpayer timely filed this suit to recover the taxes paid under protest.

The controlling issue is whether the taxes were barred in four years under Article 20.06(D)(1), specifically applicable to sales, excise and use taxes, or not barred until after such longer period as provided in the subsequent enactment of Article 1.045. The State contends that Article 1.045, which became effective July 1, 1967, “. . . repealed by implication the earlier Art. 20.06(D)(1) to the extent of any conflict with the exception provided for in Art. 1.045(A)(3).”

Lorenzo Textile contends that Article 1.045(B), immediately following the portion of the statute the State relies on, preserves the limitation of four years found in Article 20.06(D)(1). The text of Article 1.045(A)(1) (2)(3)(B) is set out below:

“(A) Limitation. Except where a shorter period of time is provided in this Title, the Comptroller shall assess any tax imposed by this Title within seven (7) years from the date such tax is due and payable, and the Comptroller may bring an action in the course of this State, or of any other state, or of the United States within seven (7) years from the date such tax is due and payable to collect the amount delinquent together with penalties and interest. No action may be commenced to collect taxes imposed by this Title after seven (7) years (or such other shorter period of time as may be provided in this Title) from the date such tax is due and payable, provided that:
“(1) In the case of a false or fraudulent return with intent to evade the tax; or
“(2) In the case of failure to file a return; or
“(3) In the case of gross error in information reported in a return that would increase the amount of tax payable by twenty-five percent (25%) or more; the tax may be assessed and collected, or a proceeding in any court for the collection of such a tax may be begun without assessment, at any time.
“(B) Period for Sales and Use Tax. For the purpose of the Limited Sales, Excise and Use Tax imposed by Chapter 20 of this Title, the period of time provided by this Article shall be four (4) years, and any provision of Chapter 20 to the contrary is hereby repealed to the extent of such conflict.” (Emphasis added)

The limitation of four years as to notice of deficiency determinations in sales, excise and use taxes is stated in this language in Article 20.06(D)(1):

“(D) Time Within Which Notice of Deficiency Determination to be Mailed; Consent to Later Mailing of Notice.
“(1) Every notice of a deficiency determination shall be personally served or mailed within four (4) years after the last day of the calendar month following the quarterly period for which the amount is proposed to be determined or within four (4) years after the return is filed, whichever period expires the later. In the case of failure to make a return, every notice of determination shall be mailed or personally served within four (4) years after the last day of the calendar month following the quarterly period for which the amount is proposed to be determined.”

This article clearly and without ambiguity provides a limitations period for the issuance of notices of deficiency determinations as to sales and use taxes. Complementary to this article is Article 20.-11(C)(1)(2) which provides that taxpayers shall keep for a period of four years records “and other pertinent papers” related to sales and use taxes.

Prior to July of 1967, when the provisions of Article 1.045 now under examination became effective, the Limited Sales, Excise and Use Tax Act (Chapter 20 of Title 122A) was the only tax statute providing for (1) a limitations period for the issuance of deficiency determinations and (2) a complementary period during which taxpayers were required to retain records “in such form as the Comptroller may reasonably require.”

With the enactment of Article 1.045, which was added to Title 122A, Taxation-General passed in 1959, a limitations period was established for the first time on taxes other than sales and use taxes. Acts 1967, 60th Leg., ch. 448, sec. 1, effective July 1, 1967. The emergency clause of the Act recites “. . .an urgent need for limiting the time for collection of taxes and limiting time for making refunds for overpayment of taxes so that the Comptroller and taxpayer both need not unduly retain old books and records that are not needed . ” (Sec. 4 of the Act) The caption of the Act of 1967, adding Article 1.045, describes the Act as “. . . providing the Comptroller shall assess any tax imposed by said Title within seven years from the date such tax is due and payable; providing for exceptions to such period . . ” (Emphasis added)

The position of appellant is that no part of Article 1.045(A) enlarges, or changes in any manner, the limitation period imposed by Article 20.06(D)(1). The State contends that enactment of Article 1.045(A) extended the limitations period for sales and use taxes, established earlier by Article 20.06(D)(1), in the three situations enumerated in sub-paragraphs (1), (2), and (3) of Article 1.045(A). The State particularly insists that subparagraph (3) is applicable, which treats instances of gross error in information reported by the taxpayer “that would increase the amount of tax payable by twenty-five percent (25%) or more . [in which eases] the tax may be assessed and collected, or a proceeding in any court for the collection of such tax may be begun without assessment, at any time.” (Emphasis added)

It is undisputed that the error occurring in the report filed by Lorenzo Textile would amount to an increase in the tax by twenty-five percent or more. In Article 1.045(B) the limitation by four years, as found in Article 20.06(D)(1), is repeated and reenacted. Yet the State asserts there exists a conflict between Article 20.06(D)(1) and the later enacted Article 1.045(A), and that the latter, being more recent, repeals by implication the former statute.

The Act by which Article 1.045 became law contains no express repeal of the earlier provisions of Article 20.06(D)(1). To effect repeal therefore of Article 20.-06(D)(1) through the later statute, repeal must be by implication, which is not favored. Conley v. Daughters of the Republic, 106 Tex. 80, 156 S.W. 197, 201 (1913). As stated by the Supreme Court in Conley, “The two laws relate to the same subject, and should be considered as if incorporated into one act. If being so considered the two can be harmonized and effect given to each, there can be no repeal.” (156 S.W. at 201, col. 2)

The basic rules of construction where implied repeal is the problem were stated in 1914 by the Supreme Court in Cole v. State, 106 Tex. 472, 170 S.W. 1036, 1037 (1914):

“Though they [the two statutes] may seem to be repugnant, if it is possible to fairly reconcile them, such is the duty of the court. A construction will be sought which harmonizes them and leaves both in concurrent operation, rather than destroys one of them. If the later statute reasonably admits of a construction which will allow effect to the older law and still leave an ample field for its own operation, a total repugnance cannot be said to exist, and therefore an implied repeal does not result, since in such ease both may stand and perform a distinct office. Especially will this construction be adopted where the older law is particular and expressed in negative terms, and the later statute is general in its nature. In such instances that to which the older law distinctly applied its negative provisions will be regarded as excepted from the operation of the more general statute. These are but the familiar rules of construction to be applied where the implied repeal of a law is involved.”

These principles of construction have been acknowledged and followed in Townsend v. Terrell, 118 Tex. 463, 16 S.W.2d 1063 (1929); Flowers v. Pecos River R. Co., 138 Tex. 18, 156 S.W.2d 260, 263 (1941); Miller v. Calvert, 418 S.W.2d 869, 872 (Tex.Civ.App. Austin 1967, no writ).

It is true, as pointed out by appellant, that the Limited Sales, Excise and Use Tax Act has been amended on five occasions since the passage of Article 1.045, without the Legislature having changed or amended Article 20.06(D)(1). In Miller v. Calvert, supra, this Court held that in seeking to determine the legislative intent, legislative history of the general course and scheme of legislation on the subject may be examined. In that case it was pointed out that the Legislature, although having the opportunity on various occasions of new amendments, did not take advantage of the opportunity to enact changes to permit a general tax statute to repeal or amend prior specific provisions for tax liens. (418 S.W.2d 873)

The parties join issue on the meaning and purpose of Article 1.045(B), which specifically preserves the four-year period already applied to sales and use taxes. Appellant Lorenzo Textile contends that even if the opening words “Except where a shorter period of time is provided in this Title . .” in Article 1.045(A) do not serve to except Article 20.06(D)(1) from operation of Article 1.045(A), the provisions of Article 1.045(B) provide the exception to preserve the four-year period set out earlier in Article 20.06(D)(1).

The State maintains, on the contrary, that Article 1.045(B) was enacted to repeal the three-year limitations period within which the Comptroller must bring suit to collect delinquent taxes under Article 20.-09(B) and (G). In short, the State insists that Article 20.09(B) and (G), imposing a three-year limitations period on a suit for collection of taxes, which begins to run when “the amount is due and payable,” was repealed by Article 1.045(B), and that the newer statute now extends the three-year period to four years.

The State’s position is not in harmony with the holding of this Court in Calvert v. Engineers & Fabricators, Inc., 440 S.W.2d 320, 325 (Tex.Civ.App. Austin 1969, writ ref’d n.r.e.), which was decided after the effective dates of all the statutes under examination in the present case.

In Engineers & Fabricators this Court applied the rule of harmony to Article 20.-06(D)(1) and Article 20.09(B) and (G) and determined that in sales and use tax matters Article 20.06(D)(1) allowed the Comptroller four years in which to make a deficiency determination and that Article 20.-09(B) and (G) accorded the Comptroller three years, after the prior deficiency determination became “due and payable,” in which to bring suit for collection. This Court thereby upheld validity of Article 20.09(B) and (G) in determining that the statute imposed a limitation of three years on filing suit after a deficiency determination. It is obvious that without harmonizing the two statutes a conflict would have existed, creating a repugnance the courts are enjoined to avoid if construction through harmony will leave both laws in current operation, rather than destroy one.

We conclude that only by sustaining the position of Lorenzo Textile can Article 1.045(A) and Article 1.045(B), as the more recent statutes, and Article 20.06(D)(1), the earlier law, be allowed to operate concurrently, without destruction of either law, while upholding the principle that a general law will not be presumed to repeal a specific statute. The principle of harmony is important where, as in this case, the earlier law is particular and expressed in negative terms, whereas the later statute is general in nature. In such instances the matters to which the earlier law distinctly applies its negative provisions will be regarded as excepted from operation of the later more general statute. Cole v. State supra; Townsend v. Terrell, supra; Flowers v. Pecos River R. Co., supra; Miller v. Calvert, supra.

The introductory clause of Article 1.045(A), “Except where a shorter period of time is provided in this Title . . .’’is recognition of the continued validity of Article 20.06(D)(1); and Article 1.045(B), reiterating the period of four years as to sales and use taxes, preserves the limitations period established by Article 20.06(D)(1). We hold that Article 1.045(A) and Article 1.045(B) stand in harmony with Article 20.-06(D)(1) and that it was the legislative intent to permit such harmony, and not to repeal or destroy the earlier statute by implication.

The judgment of the trial court is reversed. We render judgment that Lorenzo Textile Mills, Inc., recover its taxes paid under protest, together with interest and costs of court.

Reversed and Rendered.