author: PEDEN, Justice.

text:
    GULF OIL CORPORATION, d/b/a Gulf Oil Company-U. S. Chemicals Department, a division, Appellant, v. RICE AND AGRICULTURAL CO-OP, INC., a.k.a. and d/b/a Rice & Agricultural Co-Op, Inc. and Rice & Agri. Co-op, Inc., Appellee.
    No. 16619.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    April 1, 1976.
    Rehearing Denied April 29, 1976.

      Lapin, Totz & Mayer, William A. Petersen, Jr., Houston, for appellant.
    McNeal, Thrash & Williams, William W. McNeal, Alvin, for appellee.
   PEDEN, Justice.

Gulf Oil brought this suit on a sworn account against the Rice and Agricultural Co-op, Inc. One of the principal issues on appeal is whether the arrangement between the parties amounted to a completed sale of some fertilizer, a consignment, or a sale or return.

The Co-op filed a sworn denial that the claim was just, a counter-claim for storage expenses and costs of sales resulting from Gulf’s failure to accept the return of the goods, and these allegations:

3.
“. . . Defendant was a dealer for Plaintiff in the sale of certain merchandise which Plaintiff furnished to Defendant under an agreement and arrangement known as a dated billing program. Under said dated billing program, Plaintiff was obligated to and agreed to accept merchandise to be returned by Defendant in the event that Defendant did not wish to continue to attempt to sell same to the public generally, at retail. The account set out in Plaintiff’s Original Petition is an account referring to goods originally held by Defendant under said dated billing program. It is alleged that the agreement and understanding between the parties was that Defendant should be a consignee of Plaintiff’s products and would hold same in Defendant’s warehouse subject to sale. At the time of each dated billing period, an inventory would be made of the products sold by Defendant and Plaintiff would, thereafter, invoice Defendant for the purchase price of the goods actually sold by Defendant to the public generally, at retail.
4.
“On or about December 9, 1970, Defendant notified Plaintiff, in writing that Defendant had lost its storage warehouse and did not have space in its own warehouse to store the goods held under consignment. Defendant requested that Plaintiff pick up said goods as soon as possible. Although, under the terms of the agreement and understanding between the parties, Plaintiff was obligated to do so, Plaintiff failed and refused to pick up the said goods. Because of Plaintiffs failure and refusal to do so, it was necessary for Defendant to move said goods to another location and store same, at Defendant’s expense. The goods and merchandise so stored became reduced in value during the ensuing months and Defendant was unable to sell same for the list price. The merchandise was continuing to deteriorate and decrease in value and, in order to mitigate its damages and that of Plaintiff, Defendant was required to and did dispose of same for the best price obtainable. All amounts received for the sale of said merchandise were forwarded to Plaintiff and, in fact, Plaintiff has been paid more money, in total, than the amounts due on account to Plaintiff for merchandise sold prior to said notification and all amounts received for the sale of said merchandise, at reduced prices, subsequent to the delivery of said notice to Plaintiff. It is alleged that all of said merchandise sold by Defendant was sold for a fair price which amounted to the market value of said merchandise and was a reasonable price, under the circumstances.”

The jury made these findings:

1) There was an agreement that the Co-op could return any unsold merchandise to Gulf. This instruction was given:
“In connection with the foregoing Special Issue, you are instructed that ‘agreement’ means the bargain of the parties in fact as found in their language or by implication from other circumstances including course of dealings or usage of trade or course of performance.”
2) The Co-op requested permission to return fertilizer to Gulf.
3) Such request was made on December 9, 1970.
4) Gulf refused to accept return of the goods.
5) The Co-op acted in good faith in caring for and handling the fertilizer.
6) The Co-op received $12,443.52 for the sale of Gulf fertilizer from and after January 8, 1971.
7) The sum of money which would fairly and reasonably compensate the Co-op for caring for and selling the fertilizer from and after January 8, 1971 was $7,328.20.
8) Nothing was paid to Gulf by the Co-op for ‘goods on hand’ on January 8, 1971, and thereafter.
9) The Co-op owes Gulf Oil $2,811.66 for the merchandise in question.
10) Reasonable compensation for the plaintiff for its attorney’s fee is zero.

The trial court granted the Co-op’s motion to disregard the answers to Special Issues 8 and 9 and entered judgment that Gulf Oil recover $115.32 from the Co-op.

Appellant urges forty-nine points of error. Its first twenty-eight points complain that the trial court erred in submitting Special Issues 1 through 7 because there was no evidence or insufficient evidence, because the issues and the jury’s answers to them were against the great weight and preponderance of the evidence, and because there were no pleadings to support their submission to the jury. We overrule the great weight points. A trial judge does not err by submitting an issue whose answer is against the great weight of the evidence. He must submit it; he may, after verdict, grant a new trial.

Mr. Boyer, a Gulf salesman, began dealing with the Co-op through its manager, James Harvell. They agreed in 1969 that the Co-op would take delivery of some Gulf fertilizer for resale. Under an arrangement called a “dated billing program”, Gulf delivered and stored it in a warehouse operated by the Co-op. The parties agreed that at each dated billing period an inventory would be taken and Gulf would bill the Co-op for the fertilizer it had sold since the last billing period but that the Co-op would not be billed for any fertilizer still on hand.

Gulf says this transaction was a completed sale with a financing arrangement whereby Gulf would not charge the purchase price or interest until the Co-op sold the fertilizer but that if the Co-op failed to pay the billed amount within thirty days, the purchase price of the fertilizer in inventory also became due. Gulf says the billing statement of account called a “redating form” merged their agreement into an integrated contract.

We disagree. The redating form did not purport to be complete or to state the entire agreement of the parties. The signature of Co-op’s representative shows, at most, a verification of the accuracy of the values of the fertilizer sold and of the goods on hand. Gulf did not allege a written contract, and the evidence shows that the agreement between the parties was never reduced to writing.

It appears that the arrangement may be considered either as a consignment or as a “sale or return” as provided in Section 2.326, Tex.Bus. & Comm.Code:

“(a) Unless otherwise agreed, if delivered goods may be returned by the buyer even though they conform to the contract, the transaction is
(2) a ‘sale or return’ if the goods are delivered primarily for resale.
(Omitted portions deal with determination of creditor’s rights.)
“(d) Any ‘or return’ term of a contract for sale is to be treated as a separate contract for sale within the statute of frauds section of this chapter (Section 2.201) and as contradicting the sale aspect of the contract within the provisions of this chapter on parol or extrinsic evidence (Section 2.202).”

Since the entire agreement was oral we do not consider applicable the statute of frauds provision in subsection (d) above. Further, Gulf did not plead the statute of frauds and did not object to evidence of the oral agreement. Section 2.326 is primarily concerned with the protection of other creditors of the buyer, a matter not at issue here.

Section 2.327 provides:

“(a) . . .
“(b) Under a sale or return unless otherwise agreed
(1) the option to return extends to the whole or any commercial unit of the goods while in substantially their original condition, but must be exercised seasonably; and
(2) the return is at the buyer’s risk and expense.”

We overrule Gulf’s points of error complaining of the first five special issues and of the jury findings in response to them. Although Mr. Martel, Gulf’s credit manager, and Mr. Boyer, who was Gulf’s salesman when the arrangement was initiated with the Co-op, testified that the agreement amounted to a sale, not a consignment, and that Gulf did not agree to let the Co-op return unsold fertilizer, we hold that the Co-op’s pleadings and the evidence presented by Mr. Harvell, general manager of the Co-op from 1964 to July, 1970, of Mrs. Krueger, and of Mr. Peltier amply support the submission of the first five issues and the jury’s answers to them.

The Co-op’s witnesses testified that the Gulf representative, Mr. Boyer, agreed that Gulf would pick up any unsold goods or goods the Co-op didn’t want, just as the other fertilizer companies had agreed to do. They also related that when the Co-op lost its fertilizer warehouse, in December, 1970 it asked Gulf to come and pick up the fertilizer but Gulf didn’t do it, so the Co-op had to move and store it in late January, 1971, at its own expense. The Co-op’s officers decided to sell the fertilizer at the best price obtainable and offered to remit this amount to Gulf less any expenses incurred.

The Co-op had received the fertilizer as late as August of 1970, and the agreement that Gulf would pick up unwanted goods did not provide a time limit. We cannot say the time passage was unreasonable, and must presume in support of the judgment that the trial court found it reasonable. The appellant requested no issue or explanatory instruction in substantially correct wording on this matter at any appropriate place in the charge. Rule 279, Texas Rules of Civil Procedure.

The jury findings show that Gulf breached the covenant to return the fertilizer and it is uncontroverted that Gulf gave no instructions with respect to it. We consider applicable these sections of the Business and Commerce Code:

“Section 2.603 Merchant Buyer’s Duties as to Rightfully Rejected Goods
“(a) Subject to any security interest in the buyer (Subsection (c) of Section 2.711), when the seller has no agent or place of business at the market of rejection a merchant buyer is under a duty after rejection of goods in his possession or control to follow any reasonable instructions received from the seller with respect to the goods and in the absence of such instructions to make reasonable efforts to sell them for the seller’s account if they are perishable or threaten to decline in value speedily. Instructions are not reasonable if on demand indemnity for expense is not forthcoming.
“(b) When the buyer sells goods under Subsection (a), he is entitled to reimbursement from the seller or out of the proceeds for reasonable expenses of caring for and selling them, and if the expenses include no selling commission then to such commission as is usual in the trade or if there is none to a reasonable sum not exceeding ten per cent on the gross proceeds.
“(c) In complying with this section the buyer is held only to good faith and good faith conduct hereunder is neither acceptance nor conversion nor the basis of an action for damages.”
“Section 2.604 Buyer’s Options as to Salvage of Rightfully Rejected Goods
“Subject to the provisions of the immediately preceding section on perishables if the seller gives no instructions within a reasonable time after notification of rejection the buyer may store the rejected goods for the seller’s account or reship them to him or resell them for the seller’s account with reimbursement as provided in the preceding section. Such action is not acceptance or conversion.”

Gulf next complains, in points 21 through 24 about the submission of Special Issue No. 6. The jury’s answer was that the Co-op received $12,443.52 from its sales of Gulf fertilizer after January 8, 1971.

Mr. Walter Sensat, manager of the Co-op’s successor company, managed the Co-op before it was sold in 1973. He testified from the Co-op’s business records that $8,592.56 was the corrected figure of the sales of the left-over Gulf fertilizer and that $3,697.09 was received from another sale of fertilizer; he didn’t know whether or not it was Gulf fertilizer, but it had the same chemical analysis as Gulf’s. He said ten percent was a normal sales commission. The jury was entitled to disagree with his testimony that one $154 item should be excluded; if that item is added, the jury’s answer of $12,448.52 is only thirteen cents less than a total of the three figures just mentioned. We overrule these points.

Gulf says in points 25 through 28 that the trial court erred in submitting Special Issue No. 7 because the evidence does not support it. The issue asked what sum would reasonably compensate the Co-op for caring for and selling the fertilizer on and after January 8, 1971. We hold that the evidence amply supports the submission of the issue. Gulf’s point 35 also refers to Issue 7. It is: “The court erred in overruling paragraph II of the Plaintiff’s motion to disregard jury findings.” We will consider this point even though it is multifarious in that it contains several different complaints. We agree with one of Gulf’s complaints about the jury’s answer of $7,328.20 to Issue No. 7: it is excessive.

Mr. Peltier, a director of the Co-op in 1969 testified that the Co-op had to store its seed rice in a rented warehouse because the fertilizer took up the Co-op’s space. The prevailing storage charge in that area was $4 per ton for three months and the prevailing rate for hauling was $3 to $3.50 per ton. He said some of the fertilizer deteriorated so badly it had to be discarded.

The evidence supports these figures:

Storage charges $4,080.00
Hauling charges @ $3.50 710.50
Sales commission @ 10% 1.244.35
$6,034.85

We do not agree with the Co-op’s argument that it should recover the $1,557.20 its witness testified it had to spend for storing its seed rice elsewhere. To do so would permit a double recovery since we have included a storage charge for the fertilizer. We find that the jury’s answer of $7,328.20 to Issue No. 7 is excessive by $1,293.35.

Gulf complains that the evidence does not support the jury’s answer to Special Issue No. 9. The trial judge disregarded that answer, so these points do not present error.

Points 32 and 33 are insufficient evidence and great weight points directed to the jury’s denial of an attorney’s fee to Gulf in response to Issue 10. Point 37 is that the trial court should have disregarded that finding, and Point 41 asserts that Gulf is entitled to recover an attorney’s fee of $2,500.

We overrule these points. Gulf’s prayer for an attorney’s fee is based on Art. 2226, Y.T.C.S., which authorizes recovery of a reasonable amount upon a valid claim. The jury did not find Gulf’s claim to be valid. Gulf’s recovery is, instead, based on the amount the Co-op received for salvaging the fertilizer for Gulf. Gulf cannot recover an attorney’s fee on the jury’s findings that Gulf violated its agreement to accept the returned fertilizer.

Gulf’s thirty-fourth point of error is that the trial court erred in refusing to submit this offered special issue:

“If you have answered Special Issue No. 2 ‘We do’ and only in that event, then answer:
SPECIAL ISSUE NO. 4
“Do you find from a preponderance of the evidence that Gulf refused to accept return of the goods?
“In connection with the above issue you are instructed that the return extends to the whole or any commercial unit of the goods while in substantially their original condition, but must be returned seasonably at the buyer’s risk and expense. An action is taken ‘seasonably’ when it is taken at or within the time agreed or if no time is agreed at or within a reasonable time.”

Gulf is complaining, in effect, of the trial judge’s refusal to submit the offered instruction; he submitted Special Issue No. 4 as requested, but not the instruction. The instruction appears to be an excerpt from Section 2.327(b)(1) of the Texas Business & Commerce Code plus a statement that the goods must be returned seasonably and a definition of “seasonably” as in Sec. 1.204 of the Code. We hold that the trial judge did not err in refusing to submit the instruction as a part of Issue 4. It would not have been useful to the jury as a guide in answering that issue.

We also overrule Gulf’s points of error 38 through 40 and point 42. They complain of the trial court’s having overruled Gulf’s paragraphs 6 through 8 and 10 of its motion to disregard the jury’s answers. Those paragraphs contain arguments that are merely repetitious of earlier points and are multifarious, as are points 43 through 45.

Point of error 46 is that the trial court erred in granting Gulf a judgment in the amount of only $115 since it was entitled, as a matter of law, to recover $10,139.86.

It is uncontroverted that the Co-op paid Gulf $5,000 by check on May 3, 1972, so the trial court was correct in disregarding the jury’s zero answer to Special Issue No. 8, which asked how much the Co-op paid Gulf after January 8, 1971, for goods on hand. The trial judge apparently based his judgment on this computation:

Received by Co-op after 1-8-71 from sale of Gulf goods (answer to Issue 6): $12,443.52
Amount due Co-op for services rendered after 1-8 — 71 (answer to Issue 7): $7,328.20
Amount paid by Co-op after 1-8-71: 5.000.00
Amount due Gulf from Co-op -12.328.20
$ 115.32

We have held in response to Point 35 that the jury’s answer to Issue 7 is excessive by $1,293.35, so the amount due to the Co-op for services must be reduced and Gulf’s recovery increased by that amount, to $1,408.67.

Gulf complains in Point 47 about the trial court’s having taxed half of the costs against Gulf. The trial court did not state on the record any cause under Rule 141, Tex.R.C.P., for adjudging the costs as he did. We hold that costs in the trial court should have been taxed against the Co-op.

Gulf’s last two points complain that it should have been awarded interest on the judgment from the date the account became due instead of from the date of the judgment We overrule them. Under the facts of this case Gulf did not show that the account came due, so Gulf’s recovery of interest is not determined by a provision in the dated billing form or by the rule applied to suits on open accounts, Art. 5069-1.03, V.T.C.S.; the trial court correctly awarded interest from the date of judgment in accordance with Art. 5069-1.05. The amount of Gulf’s damages was unliquidated.

The judgment of the trial court is amended to increase the appellant’s recovery to $1,408.67 and to tax trial court costs against the Co-op; as amended, the judgment is affirmed.


source: Caselaw Access Project

author: OSBORN, Justice.

license: Public Domain

text:
    C. W. WEAVER et al., Appellants, v. Cecil A. ROBINSON, M. D., Appellee.
    No. 6494.
    Court of Civil Appeals of Texas, El Paso.
    April 7, 1976.
    Rehearing Denied May 5, 1976.

      James D. Cunningham, Odessa, Little & Little, Jack Little, Big Spring, for appellants.
    Finley & Scogin, Kermit, Shafer, Gilli-land, Davis, Bunton & McCollum, Inc., W. 0. Shafer, James M. O’Leary, Odessa, for appellee.
   OPINION

OSBORN, Justice.

This is a medical malpractice case. The trial Court entered summary judgment for the doctor on a plea of the two-year statute of limitations. Sustaining a contention that the “discovery rule” delayed the running of limitations, we reverse and remand.

The Appellant sustained an on-the-job injury on July 26, 1971. The Appellee performed a myelogram on Appellant on August 6, 1971, and a laminectomy on August 10, 1971, at the L 4-5 and L 5-S 1 level. Dr. Robinson continued to see and treat Mr. Weaver until December 29,1971. On January 25, 1972, the Industrial Accident Board approved a compromise settlement agreement between Mr. Weaver and the workmen’s compensation carrier, Hartford Insurance Group. Shortly thereafter, the Appellant saw another orthopedist who initially prescribed a back brace, and then following a myelogram on April 25, 1972, performed a laminectomy on April 26, 1972, and removed a herniated nucleus pulposus from the L 3 — 4 level. Another operation was performed in December, 1973, with a total laminectomy and a fusion. The patient continued to have back pain and additional surgery was performed for a myelo-stat implantation to relieve the back pain. Appellant filed suit against Dr. Robinson on April 4, 1974, and his basic complaint is one of an improper diagnosis, particularly with regard to the ruptured disc at the L 3 — 4 level which he contends was never discovered until the myelogram in April, 1972.

The Appellee pled the two-year statute of limitations and attached to the motion for summary judgment a copy of the compromise settlement agreement and Board’s order dated January 25, 1972, approving the settlement agreement. It was contended that limitations began to run when the Board approved the compromise settlement agreement, and that this suit, more than twenty six months later, was barred by Article 5526, Tex.Rev.Civ.Stat.Ann. The trial Court agreed and entered summary judgment.

The Appellants present five points of error. We have concluded that a fact issue does exist under the discovery rule and sustain the last point.

This is not a true third-party case, since the doctor did not cause the on-the-job injury, and is not liable for damages resulting from such injury, but only for damages arising from any aggravation resulting from his malpractice. Seward v. Robinson, 535 S.W.2d 778 (Tex.Civ.App.-El Paso 1976, writ ref’d n. r. e.). But, in any event, Appellee contends the holding in Campbell v. Sonford Chemical Company, 486 S.W.2d 932 (Tex.1972), controls. In that case, the Court said:

“ * * * limitation runs against * * the employee in third-party actions authorized by Section 6a from the date of the payment of the award of the Industrial Accident Board * * *

If the Workmen’s Compensation Act was not involved, then normally, where treatment is given or surgery performed, a cause of action accrues immediately if proper care is not exercised by the attending physician. Coffman v. Hedrick, 437 S.W.2d 60 (Tex.Civ.App.-Houston (1st Dist.) 1968, writ ref’d n.r.e.); Axcell v. Phillips, 473 S.W.2d 554 (Tex.Civ.App.-Houston (1st Dist.) 1971, writ ref’d n.r.e.); Stone v. Morris, 476 S.W.2d 901 (Tex.Civ.App.-Fort Worth 1972, no writ); Jirovec v. Maxwell, 483 S.W.2d 852 (Tex.Civ.App.-Corpus Christi 1972, no writ).

But in some instances where the patient is not aware of the malpractice until a later time, the courts have applied the “discovery rule” to delay the time from which limitations will begin to run. The Texas Supreme Court has applied the rule in two instances. First, in the case where a foreign object is left in a patient, and also, in the case of an unsuccessful vasectomy operation. Gaddis v. Smith, 417 S.W.2d 577 (Tex.1967); Hays v. Hall, 488 S.W.2d 412 (Tex.1972).

Following those decisions, this Court in Sanchez v. Wade, 514 S.W.2d 812 (Tex.Civ.App.-El Paso 1974, no writ), held “that in a case involving an improper diagnosis, limitations should begin to run when the patient knew, or in the exercise of ordinary care, should have known, of the condition or disease which the doctor failed to properly diagnose.” Such holding is in line with cases from other jurisdictions. See: Medical Malpractice-Limitations, 11 Houston Law Review 826, 842, footnote 115 (1974).

This issue was before the Supreme Court of Hawaii in Yoshizaki v. Hilo Hospital, 50 Haw. 150, 433 P.2d 220 (1967). In that case, the Court stated the issue and its answer thereto as follows:

“This case involves a narrow and precise question. When does the statute of limitation begin to run against a malpractice claim where the plaintiff did not know, nor acting reasonably could have been expected to know, that the defendant negligently diagnosed an ailment?
⅜ ⅜ ⅜ ⅜ * *
“We conclude that the statute does not begin to run until the plaintiff knew or should have known of the defendant’s negligence. This conclusion is consistent with the legislative prescription to avoid constructions which would lead to absurd results.6 The injustice of barring the plaintiff’s action before she could reasonably have been aware that she had a claim is patent. * * *
6 “R.L.H.1955, § 1-18(c) reads: ‘Every construction which leads to an absurdity shall be rejected.’ ”

Very similar language was used by the Texas Supreme Court in Hays v. Hall, supra, where the Court, in discussing the effect of permitting limitations to run before a party knows that he is injured, said: “A result so absurd and so unjust ought not to be possible.”

In 1969, the issue was before the Supreme Court of Idaho in Renner v. Edwards, 93 Idaho 836, 475 P.2d 530 (1969), and there the Court stated the issue and its answer as follows:

“This case presents for decision a single question, to-wit: in an action for medical malpractice involving an alleged misdiagnosis, should this Court adopt the ‘discovery rule’ previously adopted by this Court in medical malpractice actions involving the negligent leaving of a foreign object in a patient’s body during surgery?
Hi ⅜ ⅜ ‡ * *
“We conclude that the statute does not begin to run until the plaintiff knew or should have known of the defendant’s negligence.”

The following year, the issue was before the Supreme Court of Colorado in Owens v. Brochner, 172 Colo. 525, 474 P.2d 603 (1970). The Court noted that the complaint alleged that the doctor negligently diagnosed a malignant tumor in plaintiff’s brain and performed unnecessary surgery to remove the tumor and that an amended complaint alleged that the pathologist negligently diagnosed brain tissue to be malignant when, in fact, it was normal. In reversing a summary judgment which had been entered in favor of the defendants based upon the statute of limitations, the Court said:

“Defendants have argued that the discovery rule is and should be applied only to foreign object cases. We believe the same rule should be applied regardless of the type of negligence involved.
* * * * * *
“Thus we hold that in a professional negligence case the cause of action ‘accrues’ when the patient discovers or, in the exercise of reasonable diligence, should have discovered the doctor’s negligence.”

Although our 1974 decision in the Sanchez case has no writ history, we believe the decision to be in accord with other cases which have passed upon this issue, and that such decision is controlling in this case. Grady v. Faykus, 530 S.W.2d 151 (Tex.Civ.App.-Corpus Christi 1975, writ ref’d n.r.e.). We believe anything to the contrary in Coffman v. Hedrick, supra, must be considered in the light of when it was written and the Supreme Court holding in the Gaddis case.

The Appellant, by affidavit and deposition, asserts that he did not know he had a ruptured disc at the L 3-4 level until after the myelogram of April 25, 1972. While these sworn statements by Mr. Weaver do not prove the issue as a matter of law, they do raise a fact issue under the discovery rule.

Although Dr. Robinson asserts in his deposition that there was no improper diagnosis and that there was not a ruptured disc at the L 3^1 level as shown by the myelogram which he performed, his opinion and conclusion cannot establish such a fact as a matter of law for summary judgment purposes. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970); Bond v. Snow, 422 S.W.2d 842 (Tex.Civ.App.-Eastland 1967), aff’d, 438 S.W.2d 549 (Tex.1969). The Appellant having raised the “discovery rule” to defeat the running of the statute of limitations at the summary judgment hearing, the burden was upon Appellee to negate the applicability of such rule. Oram v. General American Oil Company of Texas, 513 S.W.2d 533 (Tex.1974); Zale Corporation v. Rosenbaum, 520 S.W.2d 889 (Tex.1975). That was not done in this case. Appellants’ Point of Error No. 5 is sustained.

The judgment of the trial Court is reversed and the case is remanded to the trial Court.


author: ELLIS, Chief Justice.

text:
    Manuel DAVIS and Manuelita Foster, Appellants, v. Bennie L. CARRIKER, Appellee.
    No. 8609.
    Court of Civil Appeals of Texas, Amarillo.
    April 13, 1976.
    Rehearing Denied April 13, 1976.

      Key, Carr, Evans & Fouts (Donald M. Hunt), Lubbock, for appellants.
    Brock, Waters & Galey (Ralph Brock), Lubbock, for appellee.
   ON MOTION FOR REHEARING

ELLIS, Chief Justice.

Our opinion issued on March 15, 1976, is withdrawn, and the following opinion, issued subsequent to appellee’s motion for rehearing, is substituted therefor:

Manuel Davis and his daughter, Manueli-ta Foster, defendants-appellants, have brought this appeal from a judgment granting a permanent injunction in favor of plaintiff-appellee, Bennie L. Carriker, preventing the defendants from interfering in any manner with plaintiff’s ingress and egress to Section 71, Block G, W. and N. W. R. R. Co. Survey in Kent County, Texas, a portion of the Carriker ranch, across a certain triangularly shaped tract of land in the northeast corner of Section 70. Record title to Section 70 (which adjoins section 71 on the west) is in defendant Davis, and Carriker claims he has acquired title to or an easement across the triangular tract. In response to plaintiff’s petition, defendants answered and Davis counterclaimed for a declaratory judgment that plaintiff has no easement across the triangle and for an injunction prohibiting plaintiff and anyone in privity with him from “entering upon or going across the Defendant’s land.”

Trial was to the court without a jury. Judgment was rendered for plaintiff against both defendants and against defendant Davis on his counterclaim. The trial court concluded, among other matters, that: plaintiff acquired title to the triangular strip by grant, or alternatively, by virtue of the ten year statute of limitation; and plaintiff has an easement by prescription, an express easement, an implied easement, a way of necessity, and a public easement over the triangular strip to section 71. The judgment as entered is reversed and rendered in part, and affirmed in part.

This case involves the Carriker ranch and the Davis ranch. According to plats shown in the record, four sections of land out of the two ranches lie about a common corner, section 86 to the northeast, section 71 to the southeast, section 70 to the southwest, and section 87 to the northwest. At the time this suit was filed gravel was being hauled from the pits located in section 71 (a part of the Carriker ranch) which has been owned wholly by appellee since he purchased the outstanding interests therein from other members of the Carriker family in 1971. Section 87 (recently sold) was also a part of the Carriker ranch which, along with section 71 and other lands, was purchased by the Carrikers in 1924.

Record ownership of section 70 is in Manuel Davis and section 86 is owned in trust for his daughter, Manuelita Foster. Davis acquired section 70 in 1968 from his fathe; who was the grantee of Belle Sims who patented the land in 1916. The Davis home, in which Manuel, his wife, and his mother reside, has been located between 50 and 100 yards from the triangle, near the northeast corner of section 70 (the common corner) since 1935. It is the triangularly shaped tract of land which lies between the Davis home and the common corner which is the subject of this suit.

Appellant Davis here asserts that he owns all of section 70 up to the above mentioned common corner. Carriker claims ownership of a prescriptive right, easement or other right, title or interest in the triangular tract which he contends is bounded on the east by the fence dividing sections 70 and 71, on the north by the fence dividing sections 70 and 87, and on the southwest by a fence cutting across the northeast corner of section 70. Neither Carriker nor Davis knew when or by whom the fence line across the northeast corner of section 70 was first established; this fence was there when the Carrikers purchased their land. The triangular area is a “rocky” corner, and it was difficult to build and maintain a good fence line. On at least one occasion Davis, on his own initiative and at his own expense, moved the angular fence line southward. Although the exact measurement and description of the triangular tract are in dispute, the approximate dimensions of the triangle are: 80 feet on the east side, 80 feet on the north side, and 130 feet on the southwest side. This corner of land is not precisely in the shape of a triangle because the fence making the southwest side turns substantially due north a short distance before it intersects the east-west fence between sections 70 and 87. However, the tract shall be herein referred to as a triangle.

The trucks hauling gravel from the Car-riker pit in section 71 traveled northwest across the triangle to section 87, then north on a road along the east side of section 87, and continued north along the east side of the next section (section 100) to U.S. Highway 380.

Appellants Davis and Foster assert nine points of error primarily challenging the evidential support for various findings of fact and conclusions of law made by the trial court. In point of error number 5 appellant Manuelita Foster contends that the judgment rendered against her is without support in the evidence. Although Manuelita Foster was named as a defendant, no complaint is made of her in the Plaintiff’s Amended Original Petition. She and Davis answered by general denial. Only Davis sought relief against Carriker by counterclaim; Manuelita did not join in the counterclaim.

It does not appear that Manuelita claims ownership of any part of sections 70, 71 or 87, nor does it appear that her ownership of section 86 or any part thereof is in question. Neither is there any evidence that Manuelita acted to restrict the use of the triangle.

We find nothing in the record to support the rendering of judgment against appellant Manuelita Foster. Accordingly, point of error number 5 is sustained.

Point of error number 4 will next be considered because it involves matters germane to the consideration and determination of other points raised in this appeal. Point 4, when its entire scope is considered, clearly presents a challenge to the legal and factual sufficiency of the evidence to support the findings and conclusions of the trial court that Carriker had acquired rights in the triangle by prescription or adverse possession. Carriker contends that he or those through whom he claims acquired title to the triangle by limitation (or acquired a prescriptive easement therein), so as to make it a part of section 87 and not a part of section 70. Although Carriker did not plead a claim of limitation title by adverse possession, he pleaded easement by prescription. The trial court found both easement by prescription and fee title by adverse possession.

To establish an easement by prescription the claimant must show that the use of the alleged servient estate was open, notorious, hostile, adverse, uninterrupted, exclusive and continuous for a period of more than ten years. Dailey v. Alarid, 486 S.W.2d 620 (Tex.Civ.App.-Tyler 1972, writ ref’d n. r. e.). It is clearly pointed out in Dailey that a failure to prove any of these elements is fatal to a prescriptive claim.

Carriker contends that Manuel Davis judicially admitted that he claimed no more land than was fenced in. In this connection, Carriker insists that Davis claimed only that part of section 70 which was bounded by the fence line and the court so found. He urges, therefore, that Davis is precluded from claiming all of section 70 to the common corner previously mentioned, particularly the triangular tract in the northeast portion thereof.

During the trial a survey plat was introduced into evidence which showed that, west of the triangle, the east-west line separating sections 87 and 70 was 24.7 feet north of the original section line. Also, east of the triangle, the east-west line separating sections 86 and 71, according to the survey plat, indicated that such line encroached upon or dipped down to some extent into section 71. During his examination concerning these encroachments, Davis stated that he claimed to the fence line. Later in the testimony, however, he stated that he claimed all of section 70. Davis indicated that he had formerly been confused about positioning and reading the plat map, and it does not appear that at any time during this testimony Davis was testifying concerning any disclaimer of the triangle. We find no clear factual admission of non-ownership of the triangle.

When viewed in context, and in consideration of the circumstances, it is our opinion that the statements made by Davis are not sufficiently deliberate, clear and unequivocal to meet the standards required for a judicial admission. See Griffin v. Superior Insurance Company, 161 Tex. 195, 338 S.W.2d 415 (1960); United States Fidelity & Guaranty Co. v. Carr, 242 S.W.2d 224 (Tex.Civ.App.-San Antonio 1951, writ ref’d). Additionally, it is well recognized that adverse possession must be established by the strength of Carriker’s title and not by any weakness in Davis’ claim of title. Reinhardt v. North, 507 S.W.2d 589 (Tex.Civ.App.-Waco 1974, writ ref’d n. r. e.).

The evidence indicates that the use of the triangle by the Carrikers continued more or less uninterrupted since 1924. However, mere use, no matter how long continued will not satisfy the requisites of adverse possession. Dailey v. Alarid, supra. The use must be adverse. Gilbert v. Green, 150 Tex. 521, 242 S.W.2d 879 (1951). The hostile and adverse character of the user necessary to establish an easement by prescription is the same as that which is necessary to establish title by adverse possession. Othen v. Rosier, 148 Tex. 485, 226 S.W.2d 622 (1950). It is well established that the possession by the limitation claimant must wholly exclude the record owner. See W. T. Carter & Bro. v. Holmes, 131 Tex. 365, 113 S.W.2d 1225 (1938); Southwestern Lumber Co. of New Jersey v. Allison, 276 S.W. 418 (Tex.Comm’n App.1925, holding approved). Such exclusion of the Davises by the Carrikers has not been established during any asserted prescriptive period. The failure to prove exclusive use is fatal to the establishment of title by adverse possession. Dailey v. Alarid, supra; also see 24 Baylor L.Rev. 428 (1972).

The record reveals the absence of significant acts or conduct by the Carrikers demonstrating their asserted adverse claim to the triangle. Only Davis and his predecessors in title paid the taxes on section 70. There was no evidence that Carriker or his predecessors ever paid taxes on any part of the land which he claims by adverse possession. Although payment of taxes is not necessary to support ten year limitation title, failure to do so after the expiration of that period is significant evidence that no adverse claim is being made. Warren v. Fredericks, 83 Tex. 380, 18 S.W. 750 (1892). Carriker contends that the description of section 87 in the deed evidencing the conveyance of section 71 to him from other members of the Carriker family included the triangular strip because the strip became a part of section 87 by adverse possession. There is no metes and bounds description of section 87 or any other evidence to indicate the shape or area of section 87 as including the triangular strip. It does not appear from the evidence that the triangular strip has ever been described in any instrument other than as a part of section 70. Further, it is noted that Davis granted an easement to the State of Texas in 1963 to allow gravel trucks to cross the triangle between the gravel pit in section 71 and a highway construction site to the north. Additionally, the only evidence as to claim of right was with respect to the subjective intent of the Carrikers, an intent not communicated to the Davises and not manifested by conduct of the Carrikers of such a nature as to put the Davises upon constructive notice that the Carrikers claimed Davis’ land as their own.

The Carrikers had the burden of proving, without the benefit of any inferences, their adverse possession under the ten year statute of limitations. Champion Paper & Fibre Company v. Wooding, 321 S.W.2d 127, 134 (Tex.Civ.App.-Waco 1959, writ ref’d n. r. e.). The applicable rule is stated in Stringer v. Johnson, 222 S.W. 267, 274 (Tex.Civ.App.-Beaumont 1920, no writ) as follows:

“One asserting title to land by limitation has the burden of proving every fact necessary to give such title, and inferences are never indulged in favor of a limitation claimant. Dunn v. Taylor, 102 Tex. 80, 113 S.W. 265.”

From a review of the record in the light most favorable to the trial court’s findings as to those matters determinative of Carriker’s rights in and to the triangle, it is our opinion that because of the absence of evidence of probative force establishing all of the elements of adverse possession such findings cannot be permitted to stand. Accordingly, Davis’ contention in his fourth point to the extent that he challenges the legal sufficiency of the evidence to support Carriker’s claim of establishment of fee title or prescriptive easement in the triangle, is sustained.

By the first point of error, it is contended there is no evidence to support the finding and conclusion of the trial court that Carriker had an express easement across the triangle. An easement is an interest in land, subject to the Statute of Frauds and the Statute of Conveyances and generally must be conveyed in writing. Anderson v. Tall Timbers Corporation, 378 S.W.2d 16 (Tex.1964). The record does not contain any evidence of a writing granting an easement across section 70. Carriker replies that the deed of 1971 conveying section 71 to him contained a grant of an easement from U. S. Highway 380 across the east side of sections 100 and 87 to section 71. He argues that section 87 as described included the triangle of land. Carriker relies wholly upon the theory he or his predecessors in title acquired title to the triangle by adverse possession and that it thus became a part of section 87. Implicit in the trial court’s finding of express easement is a finding of title to the triangle in' the Carrikers because the trial court also found that Carriker had no written easement on any part of section 70. In view of the foregoing discussion relevant to our holding that the evidence was legally insufficient to support the trial court’s findings of title by adverse possession and easement by prescription, we sustain point of error number 1.

Point of error number 2 attacks the findings and conclusions by the trial court that the triangle was burdened with an implied easement or way of necessity. It is contended that such findings and conclusions are unsupported by the evidence, chiefly because there is no evidence of unity of ownership. Among the elements that must be established to create an easement by implication is unity of ownership of the quasi-dominant and quasi-servient estates. Othen v. Rosier, supra. Unity of ownership is also necessary to the establishment of a way of necessity. The dominant and ser-vient estates must at some time have been under common ownership. Estate of Waggoner v. Gleghorn, 378 S.W.2d 47 (Tex.1964). In reply Carriker contends that because the triangular strip was part of the Carriker ranch “from the time they acquired it,” when he purchased section 71 he received a way of necessity over the strip which would then have been a part of section 87. Thus, Carriker relies again on title by adverse possession or easement by prescription as the basis for his contention that he has an implied easement or way of necessity. The trial court found that there was no unity of ownership between sections 70 and 71 or between sections 86 and 71. Therefore, in view of our discussion under point of error number 4 with regard to Carriker’s failure to establish title to the triangle by adverse possession or prescriptive easement, we sustain point of error number 2.

In point of error number 3 a challenge is made to the finding and conclusion by the trial court that the triangle was impliedly dedicated as a part of a public road. It is contended that the evidence is conclusive that if the road was ever public, the public stands to lose no rights if the road should be closed. To establish that a dedication to the public has been made it must be established that there was an act express or implied throwing open to the public, sufficient to establish a dedication, that the public accepted the dedication by general and customary use, that the road remains devoted to public use, and that the public will lose valuable rights if the road is closed. O’Connor v. Gragg, 161 Tex. 273, 339 S.W.2d 878 (1960).

It is our opinion that the findings of fact which are the basis for the conclusion of law that there had been an implied dedication of the road to the public are not supported by the evidence. The evidence does not disclose that any “old road” mentioned was subject to general and customary use by the public. Even if the road crossing the triangle was once part of a road leading southward to a certain dugout town and cemetery, the town had been abandoned since before the 1920’s, and the evidence showed that the road leading directly from the abandoned town is no more than two ruts, barely visible through the grass in some places and must be traveled on foot in some places. Thus, even if the road were once public, it has not retained its public character. The old road cutting across section 87 had been fenced off as it enters that section from the north. Carriker testified that people who came to explore the old dugout town located in section 71 crossed the Carriker ranch because he did not mind their coming across his land. He maintains a gate across the road which leads from the gravel pits to the triangle on the west fence line of section 71.

There is no evidence of any other use of the road than the use made by the gravel trucks, by the Carrikers and Davises themselves, and by occasional visitors to the dugouts. Carriker testified that he did not know whether the road to the dugouts was the same road that served the cemetery.

We find no more than a scintilla of evidence to support the findings by the trial court of the existence of an implied dedication of the road to the public. In law a scintilla of evidence is no evidence. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898). Appellants’ third point of error is sustained.

By point of error number 6 it is asserted that, because of the insufficiency of evidential support, the trial court erred in finding that no health hazard or nuisance exists because of dust created by the gravel trucks traveling across the triangular tract, and in concluding that Carriker should not be enjoined. Points of error numbers 7-9 are alternative points relating to the adequacy of the description of the easement area in the event it is established that Car-riker has an easement or other right to cross the triangular tract. Thus, points 6-9, inclusive, are predicated upon the assumption that Carriker has established his asserted rights to cross the triangular tract. In view of our holding that he has not established his claim of title, easement, and prescriptive or other rights across the triangular tract, we do not reach points 6-9.

For the reasons above stated we have determined and declare that Carriker has no easement across the triangular tract. Accordingly, we reverse that portion of the trial court’s judgment declaring Carriker’s rights of ingress and egress across the described triangular tract, dissolve the injunction heretofore granted in Carriker’s favor, and render judgment that he take nothing by his suit. Davis has not brought before us an appropriate point of error attacking that part of the judgment effecting a denial of his plea for injunctive relief; therefore, that portion of the judgment is affirmed.

We have considered the various matters raised in appellee’s motion for rehearing. This opinion issued subsequent to appellee’s motion and in lieu of our original opinion covers and includes, along with the various other matters, our consideration of the trial court’s findings deemed as basic or controlling in the disposition of this appeal and our determination that such findings cannot be sustained on the basis of the status of the evidential support. After considering all matters set out in appellee’s motion for rehearing, we adhere to our former disposition of the case. Accordingly, appellee’s motion for rehearing is overruled.


author: STEPHEN F. PRESLAR, Chief Justice.

text:
    TEXACO, INC., Appellant, v. Billy O. ROMINE, Appellee.
    No. 6473.
    Court of Civil Appeals of Texas, El Paso.
    April 14, 1976.
    Rehearing Denied May 5, 1976.

      Oliver J. Butler, Jr., Houston, Kemp, Smith, White, Duncan & Hammond, William Duncan, El Paso, for appellant.
    Malcolm McGregor, Philip T. Cole, El Paso, for appellee.
   OPINION

STEPHEN F. PRESLAR, Chief Justice.

This case involves the right of a discharged Texaco employee to benefits under a Permanent Total Disability Plan, the terms of which specifically state that eligibility is to be determined solely by the Company. A jury found that Texaco acted in bad faith or arbitrarily in refusing the benefits of the Plan and, based upon such finding, judgment was entered for the plaintiff, Romine. We reverse and render that judgment.

On appeal, the question of the legal sufficiency of the evidence to support the jury finding is presented. There are also questions of admissibility of medical testimony by a lay witness and whether such evidence was harmless in a case of this nature.

The parties will be referred to by name and the Permanent Total Disability Plan will be referred to as the Plan. Romine had been employed by Texaco some fifteen years when he was discharged on April 1, 1970, for insubordination and the continuation of other conduct for which he had previously been disciplined. Some seven months after his discharge, he sought the benefits of the Plan and Texaco’s refusal resulted in this suit. The Plan provided payments to the employee if he became permanently and totally disabled, and Ro-mine’s years of service entitled him to one-fourth of his regular pay until he reached the age of sixty-five. The Plan was incorporated into the collective bargaining Agreement between Texaco and the Oil, Chemical and Atomic Workers International Union of which Romine was a member. That Agreement specifies that the provisions of the Plan will determine all questions arising under and in connection with it. Pertinent provisions of the Plan are:

“B. Determination of what Constitutes Permanent Total Disability
“The Company alone shall, in any case, determine what constitutes permanent and total disability, when the same commenced, and at any time reverse or alter such determination.”
And further:
“No benefits shall be allowed or paid under this Plan:
“(c) If the employe’s disability was not permanent or total at the time of the termination of his employment with the Company.”

There is a further provision that the Company’s determination is conclusive in respect of any question which may arise in connection with the interpretation or administration of the Plan and “shall be final and conclusive and binding on all employes and all others in any manner concerned.” The employee pays nothing for coverage under the Plan, and it is provided specifically that the Plan is entirely voluntary on the part of the Company; and, that an employee has neither a vested nor a contractual right to benefits under it.

The law covering the rights of parties in a case like this is well settled and is not in question here. Briefly, that law is that in a situation such as this one, where there is an employer-funded plan which is made a part of the employment contract between the employer and the employee, and with provisions which make the employer’s determination final, that if the employer determines that an employee is not entitled to benefits, the only way that determination can be attacked is by showing that there was bad faith or fraud in the employer’s actions. This Court so held in Webster v. Southwestern Bell Tel. Co., 153 S.W.2d 498 (Tex.Civ.App.-El Paso 1941, writ ref’d). It was there said “that the action of the committee is final and conclusive and binding upon all its employees and not subject to attack in the courts, in the absence of an allegation and proof of fraud or bad faith.” The same holding in similar cases can be found in the cases of Magnolia Petroleum Co. v. Butler, 86 S.W.2d 258 (Tex.Civ.App.-Fort Worth 1935, writ dism’d); Long v. Southwestern Bell Telephone Company, 442 S.W.2d 462 (Tex.Civ.App.-San Antonio 1969, writ ref’d n. r. e.); Bruner v. Mercantile National Bank, 455 S.W.2d 323 (Tex.-Dallas 1970, writ ref’d n. r. e.); Neuhoff Brothers Packers Management Corporation v. Wilson, 453 S.W.2d 472 (Tex.1970).

Recognizing the settled condition of the law in this area, the Court submitted only one issue which, with its instructions, is as follows:

“SPECIAL ISSUE NO. 1
“Do you find from a preponderance of the evidence that there was arbitrariness or bad faith on Texaco’s part in its failure to determine that Plaintiff was entitled to benefits under its Permanent Total Disability Plan at the time it terminated Plaintiff’s employment?
“In connection with Issue No. 1 you are instructed that ‘bad faith’ means ‘dishonesty’ or ‘unfairness’. The term means any act, omission or concealment which involves a breach of legal duty, trust or confidence by which an undue advantage is taken of another.
“You are further instructed that ‘arbitrariness’ means a willful and unreasonable action, without consideration and in disregard of the facts or circumstances of the ease.
“Answer ‘Yes’ or ‘No’.
“ANSWER: Yes ”

Appellant’s Points of Error Numbers One and Two, contending that the Court erred in overruling its motion for an instructed verdict at the conclusion of all the evidence and that the Court should have granted its motion for judgment notwithstanding the verdict, raise the contention that there is no evidence to support the submission of the above issue or to sustain the answer thereto by the jury. We are of the opinion that there is no evidence to support the finding. In reaching that conclusion, we have followed the familiar rule of law that an appellate court in passing on the legal question of no evidence will view the evidence in its most favorable light, considering only the evidence and the inferences which support a jury finding, and rejecting inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); Calvert, No Evidence and Insufficient Evidence, 38 Texas L.Rev. 362 (1960).

A reading of the voluminous statement of facts reveals no act or omission or concealment which would amount to a breach of legal duty that would amount to bad faith as defined by the Court, nor is there any evidence of willful and unreasonable action that would amount to arbitrariness as defined. Appellee points to the fact that Texaco’s representative, its personnel man Smith, took only fifteen or twenty minutes to determine that Romine was not entitled to benefits. This occurred when Romine first made known his claim for benefits under the Plan, some seven and one-half months after his discharge. Any haste in this initial announcement of denial has been cured by time because his claim has been pending ever since and is denied by the Company until this day. There has been ample time for consideration of his entitlement for his claim had been pending for five years prior to trial.

It is urged that there was bad faith or arbitrariness on Texaco’s part in not giving Romine a physical examination. At the time of his discharge, he was claiming no disability or benefits under the Plan; under the issue, the jury is to determine the existence of bad faith at the time of Romine’s discharge; it is difficult to accuse Texaco of bad faith at that time, for it did not know of any disability claim until seven and one-half months later. Aside from the fact that the Plan made no provision for such physical examination, we fail to see any bad faith in not sending a man to a doctor to find out what his condition was seven and one-half months before. In his fifteen years of employment, Romine had various health problems but he was all right at the time of his discharge. At the time of his discharge, Texaco knew that he had, in the past two years, had no problems with his health and had not missed any work because of health problems; that he had not availed himself of Texaco’s sickness and accident plan under which he could draw full pay for time off; two years prior to his discharge, there was in his file a medical report that he was not disabled, and Texaco had not been made aware of any change in his condition since that report. Under the issue, the act of bad faith is Texaco’s failure to determine that Romine was entitled to benefits, and there is simply no evidence to support the jury answer in the affirmative.

Complaint is made of the admission of testimony by a Professor Dillman as to whether Romine was totally disabled to do his job at the time he was discharged. The Professor has a degree of PhD in Management Statistics and testified to experience in labor management, evaluating disability claims, service on a Civil Service Commission, and consulting work to a number of firms in the area of personnel. The Professor would qualify as an expert in that field. Thus, he gave an abstract opinion as to how a percentage medical disability might be total occupational disability depending on the occupation. Such an opinion would be within the Professor’s field of expertise in employment. The testimony complained of was not, however, within the witness’ field.

Based on a hypothetical set of facts, the Professor was asked to express his opinion as to Romine’s “ability to do the job of a — a heavy manual job, back in April of 1970.” He responded: “* * * he would have been totally occupationally disabled from performing any type of heavy labor — any type of heavy work normally associated with blue collar type professions.” The Court erred in permitting this testimony from a non-medical expert. The rule is recognized that a lay witness may testify to the physical condition of a person whom he has observed performing a certain task or attempting certain labors, but such was not the case here; the basis of the opinion was not things that the witness had observed. It was based on information furnished him prior to trial; on the basis of such, he expressed the opinion that on a given date some five years previous the man was disabled. The rule is also recognized that the receipt of expert testimony must be left largely to the discretion of the trial judge, Wilson v. Scott, 412 S.W.2d 299 (Tex.1967), but that rule is not involved here, for this witness was not testifying within his own field of expertise. Though an expert in his own field, when it came to expressing a medical opinion he was no more qualified than the lowest lay witness on the totem pole.

The next question is whether the admission of this evidence was harmless error, whether in our opinion it was reasonably calculated to cause and probably did cause the rendition of an improper verdict. It had no bearing on an ultimate issue — or for that matter, any issue. The Plan did not define disability and, as noted earlier, whether or not a workman is disabled under the Plan is to be determined solely by the Company. However, it appears that a jury could be influenced by evidence that the workman was disabled at the time of his discharge; that being disabled, and thus entitled to the benefits of the Plan, the Company acted in bad faith in denying him those benefits after fifteen years of employment. That the jury may have so reasoned is evidenced by the fact that it found that the Company did act in bad faith when there was no evidence of it.

The judgment is reversed, and judgment is here rendered that Appellee take nothing by his suit.


author: WALTER, Justice.

text:
    Bill P. COGDELL, Appellant, v. The FORT WORTH NATIONAL BANK, Appellee.
    No. 4868.
    Court of Civil Appeals of Texas, Eastland.
    April 15, 1976.
    Rehearing Denied May 6, 1976.
    Gloria T. Svanas, Midland, for appellant.
    Robert M. Randolph; Marvin Champlin, Fort Worth, for appellee.
   WALTER, Justice.

Bill P. Cogdell filed suit against the Fort Worth National Bank, Trustee, and others for a declaratory judgment. The Bank’s motion for summary judgment sustaining its plea of privilege was granted and Cog-dell has appealed. We affirm.

The Bank’s plea was controverted by citing ten exceptions under Article 1995, Texas Revised Civil Statutes.

The federal statute (12 U.S.C.A. § 94) on venue against national banking association is as follows:

“§ 94. Venue of suits
Actions and proceedings against any association under this chapter may be had in any district or Territorial court of the United States held within the district in which such association may be established, or in any State, county, or municipal court in the county or city in which said association is located having jurisdiction in similar cases . . .”

In Mercantile National Bank v. Langdeau, 371 U.S. 555, 83 S.Ct. 520, 9 L.Ed.2d 523 (1963), the court said:

“The phrase ‘suits . . . may be had’ was, in every respect, appropriate language for the purpose of specifying the precise courts in which Congress consented to have national banks subject to suit and we believe Congress intended that in those courts alone could a national bank be sued against its will.
We would not lightly conclude that a congressional enactment has no purpose or function. We must strive to give appropriate meaning to each of the provisions of Title 12 and its predecessors. See United States v. Menasche, 348 U.S. 528, 539, 75 S.Ct. 513, 520, 99 L.Ed. 615 [624]; Montclair v. Ramsdell, 107 U.S. 147, 152, 2 S.Ct. 391, 394, 27 L.Ed. 431 [432]. Appellee, however, would have us hold that any state court could entertain a suit against a national bank as long as state jurisdictional and venue requirements were otherwise satisfied. Such a ruling, of course, would render altogether meaningless a congressional enactment permitting suit to be brought in the bank’s home county. This we are unwilling to do, particularly in light of the history of § 57 . . .”

Appellant contends the mandatory provision of Subdivision 14 of Article 1995, V.A. C.S. controls venue. The pleadings concerning land in Scurry County are as follows:

“On November 12, 1974, The Fort Worth National Bank, Trustee, sold to Billy Cog-dell and D. M. Cogdell, Jr., the real property interests held by The Fort Worth National Bank, Trustee, in the Cogdell Center properties in Scurry County, Texas, for a total consideration in excess of $10,000.00.
Plaintiff alleges that the sale of an interest of real property held by Trustee as distributions from an Estate directly to the individuals serving as Executors of that Estate is proscribed by Section 352 of the Texas Probate Code.”

Appellant’s prayer for relief in part is as follows:

“WHEREFORE, Plaintiff prays that citation be issued to each of the Defendants named herein requiring them to answer and appear herein; and upon jury trial hereon that Plaintiff have judgment cancelling, rescinding, declaring void ab initio all leases, sales of all properties, real and personal, of the Estate of D. M. Cogdell, Deceased, to the Independent Co-Executors and/or Trustee of the Estate of D. M. Cogdell, Deceased; .

In Shellberg v. Shellberg, 428 S.W.2d 117 (Tex.Civ.App.-Fort Worth 1968, writ dism’d), the court said:

“In Miller v. Howell, 234 S.W.2d 925 (Tex.Civ.App.1950, no writ hist.), this court held: ‘Plaintiffs say that their suit is one to recover land, and to partition land, and to foreclose a lien on land, a part of which land lies in Wood County. Their pleadings may contain conclusions to such effect, if the conclusions are read without regard to the remaining allegations in the pleadings, but when the pleadings are examined in their entirety, and when it is endeavored to find out what principal right or rights are asserted and what relief is sought, it is seen that the suit falls within a well-defined category. It is, by all standards, an equitable proceeding for a partnership accounting. It is a transitory action, rather than a local one, it is primarily a proceeding in personam, rather than a proceeding in rem.’
In the instant case when the pleadings are examined in their entirety, and when it is endeavored to find out what principal right or rights are asserted, and what relief is sought, we must conclude the trial court was correct in finding the suit was brought primarily to construe the written Trust Agreement, determine the rights and duties of the various trustees and beneficiaries, and to require an accounting from defendant as to his actions as a trustee.
The evidence, too, supports his findings. The suit is primarily a proceeding in per-sonam and not a proceeding in rem. Defendant was not entitled, therefore, to have the suit transferred to Moore County under the provisions of Sub. 14.
Venue was retained in Tarrant County under the provisions of Art. 7425b-24, Sections A and B, V.A.C.S.”

Article 7425b-24(A) and (B) of Texas Trust Act provides:

“A. The district court shall have original jurisdiction to construe the provisions of any trust instrument; to determine the law applicable thereto; the powers, responsibilities, duties, and liability of trustee; the existence or non-existence of facts affecting the administration of the trust estate; to require accounting by trustee; and to surcharge trustee.
B. In cases where there be a single trustee, the venue of such actions shall be in the county of the residence of such trustee; or if a corporation, in the county of its principal place of business. Where there are two or more trustees, then the venue shall be in the county where the principal office of the trust is maintained.”

Article 1995, Subdivision 30, provides:

“30. Special venue — Whenever in any law authorizing or regulating any particular character of action, the venue is expressly prescribed, the suit shall be commenced in the county to which jurisdiction may be so expressly given.”

We hold the record conclusively establishes the primary, dominant and ultimate purpose of this declaratory judgment suit is not to recover lands or remove encumbrances therefrom. Assuming this was a suit for the recovery of land, the above quoted portions of appellant’s petition show the Bank parted with title before the commencement of this suit and under the holding in James v. Drye, 159 Tex. 321, 320 S.W.2d 319 (1959) Subdivision 14 would not apply.

In James v. Drye, supra, the court said:

“This writ of error was granted because the holding of the Court of Civil Appeals that the suit was a suit for ‘the recovery of lands’ or ‘damages to land’ under Section 14 of Article 1995, Revised Civil Statutes, Vernon’s Ann.Civ.St. art. 1995, § 14, is in conflict with the holding of the Courts of Civil Appeals in the following cases: Smith v. Rampy, Tex.Civ.App. Amarillo, 1946, 198 S.W.2d 592; Morris Plan Bank of Fort Worth v. Ogden, Tex.Civ.App. Ft. Worth, 1940, 144 S.W.2d 998, and other similar cases. We approve the holding of the earlier cases that suits against former owners of land who have parted with all title prior to the filing of suit are not suits for ‘the recovery of lands’, or ‘damages to land’ within the meaning of Section 14, Article 1995, Revised Civil Statutes, 1925 . . .”

We hold the summary judgment proof establishes as a matter of law there is no genuine issue of fact and the Bank is entitled to be sued in the county of its domicile as a matter of law under Article 7425b-24(A) and (B) and Subdivision 30 of Article 1995, T.R.C.S. and 12 U.S.C.A. § 94.

We have considered all of Appellant’s points and find no merit in them. They are overruled.

The judgment is affirmed.


author: NYE, Chief Justice.

text:
    Dorothy Virginia CHANDLER, Appellant, v. Dennis Ross CHANDLER, Appellee.
    No. 1062.
    Court of Civil Appeals of Texas, Corpus Christi.
    April 15, 1976.
    Rehearing Denied May 13, 1976.
    John L. Bates, Waco, for appellant.
    Robert D. Nogueira, Beeville, for appel-lee.
   OPINION

NYE, Chief Justice.

This is a divorce case filed by the husband against his wife. The trial court rendered judgment on May 19, 1975, granting the divorce and dividing and distributing the parties’ properties. There were no children. The wife appeals raising two points which actually complain: 1) that the trial court abused its discretion in refusing to grant the wife’s second motion for continuance and 2) that the trial court erred in dismissing the jury panel and trying the case without the aid of a jury.

The appellant wife argues in effect that her second motion for continuance should have been granted because her attorney (from Waco) had prior settings of cases which should have entitled him to a continuance as a matter of law. The chronological order of events up to the time of trial is important.

The transcript reflects that the original petition for divorce was filed September 24, 1974. On November 13, the wife’s attorney made his request for a jury trial and requested notice of trial settings in accordance with Rule 246, T.R.C.P. A few days later on November 20, the wife’s attorney paid the jury fee.

On November 20, the wife’s attorney requested that the court order counseling and requested a hearing on the merits of this motion for the purposes of enforcing her request for counseling. In a hand written note on the bottom of the letter of transmittal, the wife’s attorney requested that the case not be set for the week of December 5 and 6 because of prior commitments.

On the 25th day of November, the trial court issued its order setting the case on December 3, at 10:00 a. m. to show cause why counseling should not be ordered and in its letter of transmittal, the court set the case for trial on December 13,1974, at 9:30 a. m. The wife’s attorney responded by sending a telegram on December 4 asking for a continuance of the trial because of a prior court setting. The telegram was followed by formal first motion for continuance. The motion was granted. Thereafter, the wife filed her first amended answer.

On December 13, 1974, the trial court ordered a pre-trial conference on December 20, at 1:30 p. m. In answer to this setting, the wife’s attorney wrote the judge stating that he had a criminal matter set at 10:00 a. m. on that date and suggested that the husband’s attorney and he would agree upon a setting within a reasonable time in the future. The trial court in a hand written note on the bottom of the attorney’s letter stated that the case was reset for 9:30 a. m. on December 30, 1974. On that date, the transcript shows that the court ordered counseling and directed that the report from the counselor be returned on the 27th day of January, 1975. The report of the Social Psychotherapist was subsequently filed on February 4,1975. It stated that he was of the opinion that “there exists no reasonable expectation of reconciliation of the parties”.

On May 6, 1975, the case was again set for trial on May 15, 1975, at 9:30 a. m. on the non-jury docket. The clerk of the court called the attorney’s office and notified the secretary of that setting. This oral notice to the wife’s attorney was followed by a formal letter from the district clerk dated May 9, 1975.

In a letter dated May 8, 1975, the wife’s attorney wrote to the trial judge and said:

“I have received a notice from the Clerk of a setting on May 15, 1975. I have two cases scheduled for that day, one a contested child support case, and the other a juvenile case in which I was appointed.
I note also that the notice shows this to be non-jury. I have requested a jury and paid a jury fee, and I still request a jury.
Please pass this to another date. It would facilitate matters if the attorney for the petitioner would contact me as well as the Court for settings in this matter.”

The trial judge wrote back to the attorney for the wife that “the case has been and remains set for trial at 9:30 a. m., Thursday, May 15, 1975. A jury panel will be on hand.”

On May 13, the attorney for the appellant mailed a second application for continuance addressed to the district clerk and stated that “I would appreciate this motion being presented to the court prior to calling this case for trial.” The second motion for continuance was presented to the court and overruled.

The judgment recites that the case was called for trial after ample notice to both the parties and their respective counsel of record and a jury having been summoned and qualified at the demand of the wife, the case was called for trial and that neither the wife or counsel appeared. The court recessed the jury until 9:30 p. m. and directed the clerk to contact both the attorney and the wife by telephone. The judgment recites that the attorney could not be located at either his office or the courthouse and that the wife having been notified, did not appear, and the jury having been waived by the attorney for the plaintiff, the court proceeded to try the case before the court.

In the wife's attorney’s second motion for continuance, there was attached two letters concerning the two cases that were in conflict with the case at bar. In the first case where the wife’s attorney had been appointed as attorney ad litem, the Honorable Bill Logue, Judge of the Juvenile Court, McLennan County, Texas, wrote to the wife’s attorney on May 2, 1975 and said: “. . .If anything prevents you from accepting this case, please let us know several days in advance.” In the other letter dated April 23, 1975, involving the other case, the wife’s attorney was advised by opposing counsel of the show cause hearing set for May 15 and that: “. . .if this date is not convenient, I have secured an alternate date of Wednesday, May 21, 1975, at 9:00 A.M.”

Rule 253, T.R.C.P. states:

“Except as provided elsewhere in these rules, absence of counsel will not be good cause for a continuance or postponement of the cause when called for trial, except it be allowed in the discretion of the court, upon cause shown or upon matters within the knowledge or information of the judge to be stated on the record.”

It is clear to us from the record that the wife’s attorney had ample notice of the setting of the case as the rules so provide. The basis for a continuance because of absence of the attorney is a matter within the sound discretion of the trial court. The trial court’s ruling will not be disturbed on appeal unless there has been a showing of an abuse of discretion. We hold that the trial court did not abuse its discretion for refusing to grant a continuance herein. Rule 253, T.R.C.P.

Appellant’s second point concerning the failure of the trial court to try the case before a jury is covered under Rule 220, T.R.C.P. This rule provides:

“When any party has paid the fee for a jury trial, he shall not be permitted to withdraw the cause from the jury docket over the objection of the parties adversely interested. If so permitted, the court in its discretion may by an order permit him to withdraw also his jury fee deposit. Failure of a party to appear for trial shall be deemed a waiver by him of the right to trial by jury. Amended by order of Aug. 18, 1947, effective Dec. 31, 1947; order of July 21, 1970, effective Jan. 1, 1971.” (Emphasis supplied.)

When the absent party is the one who affirmatively asserts his right to a jury and has timely paid his jury fee, his absence shall be deemed as a waiver by him of the right to a trial by jury. 3 McDonald Texas Civil Practice, § 11.03.2, p. 107; Carruth v. Shelter Air Systems, Inc., 531 S.W.2d 913 (Tex.Civ.App.-Houston [1st Dist.] 1975, no writ).

The appellant makes other complaints in his argument in his brief that are completely unrelated to his points of error. Since these other complaints are not presented by points of error, they will not be considered. Rule 418, T.R.C.P.; Godde v. Wood, 509 S.W.2d 435 (Tex.Civ.App.-Corpus Christi 1974, writ ref’d n. r. e.). See also City of Deer Park v. State, 154 Tex. 174, 275 S.W.2d 77 (1954).

We have carefully considered appellant’s points of error and they are overruled. The judgment of the trial court is AFFIRMED.


author: ROBINSON, Justice.

text:
    SECURITY FEDERAL SAVINGS & LOAN ASSOCIATION, Appellant, v. Frances L. DeWITT, Appellee.
    No. 8599.
    Court of Civil Appeals of Texas, Amarillo.
    April 19, 1976.
    Rehearing Denied May 10, 1976.

      Clayton & Stubblefield, Cleo G. Clayton, Jr., Amarillo, for appellant.
    Edwards, Smith & Associates, Thomas S. Hoekstra, Amarillo, for appellee.
   ROBINSON, Justice.

This is a suit to recover the value of personal property owned by plaintiff Frances L. DeWitt and allegedly converted by the defendant, Security Federal Savings & Loan Association, when it removed Mrs. DeWitt’s property from a house on which it was foreclosing. Trial was to a jury which returned a verdict in favor of Mrs. DeWitt and against Security Federal in the amount of $1,500 actual damages and $1,000 exemplary damages. Defendant, Security Federal, appeals from a judgment on the verdict. Judgment is modified to eliminate exemplary damages and, as modified, affirmed.

The jury in response to correspondingly numbered special issues found that Security Federal, (1) acting through its agents or employees, converted property of Mrs. DeWitt (2) of the value of $1,500 and (3) that the conduct of Security Federal, its agents or employees, in converting the property constituted malice, fraud or gross negligence. It (4) awarded exemplary damages in the amount of $1,000.

The evidence, except for that pertaining to the nature of the property removed from the house, is largely undisputed.

Mrs. DeWitt received a notice that Security Federal intended to foreclose the mortgage on the residence located on Barbara Lane in Amarillo in which she was living. The house in question was awarded to her former husband in their divorce. Shortly afterward, Mrs. DeWitt moved to a house on Parker Street and assumed a loan financed through Security Federal on that house. She did not remove all of her belongings from the Barbara Lane house, but continued the process of moving as she had time. She notified Security Federal that she would be out of the Barbara Lane house in about two weeks. She was told that this was satisfactory and was asked to leave the key in the night depository when she had completed moving. Within the two week period, she discovered that all of her property had been removed from the house. She called Security Federal and talked to Lewis Knapp, who was then a collection man with Security Federal. Knapp told her that he had had the house cleaned out because Security Federal had to give the house back to F.H.A.

Security Federal had mailed a second notice of foreclosure in the form of a letter to Mrs. DeWitt at the Barbara Lane address. That letter had been returned to Security Federal. Her Parker Street address had been written on the face of the envelope, but the notice was not remailed to that new address. Security Federal had Mrs. De-Witt’s telephone number which was the same on Parker Street as it had been on Barbara Lane. It also had her business address and telephone number. Knapp testified that Security Federal made no effort after return of the letter to contact Mrs. DeWitt about the impending foreclosure, and that he saw no reason to write her at the other addresses.

Knapp testified that he went into the house and inspected it and its contents before having it cleaned. He reported to his “superior.” The name, title, or authority of the superior does not appear in the record, nor does the content of Knapp’s report. The superior instructed him “to get rid of the trash.” Knapp then sent a janitor, who cleaned houses for Security Federal, to clean out the Barbara Lane house. No effort was made to keep the property removed from the house so that Mrs. DeWitt could reclaim it, but everything including family pictures, was thrown away or given to Goodwill Industries. The janitor testified that there was so much trash in the house that he couldn’t haul it away with his truck, and he hired the driver from Goodwill to help haul the trash to the city dump. Goodwill was paid for this service with a check from Security Federal.

Although the evidence concerning whether the house was locked is in conflict, there is evidence from which the jury could reasonably infer that Mrs. DeWitt’s belongings were still in the house when Security Federal’s employees cleaned it out. The janitor testified that when he was first in the house, he noticed some movie film on the floor. He left the house to find somebody to help clean it out. He was gone about three hours. Mrs. DeWitt’s testimony shows that she was in the house after the janitor left and before his return. There is no indication that anything was missing then. She said that she collected a few clothes from the closet and she took the movie film. When the janitor returned with the driver from Goodwill, he noticed that the movie film was gone. He noticed nothing else missing or disturbed.

A list of the items which Mrs. DeWitt contends were in the house together with her estimate of the replacement cost of each item was admitted in evidence. Mrs. DeWitt, Knapp, the janitor, and the driver from Goodwill, all offered testimony concerning what items were in the house and their condition.

After viewing the evidence in the light most favorable to jury answers, we overrule defendant’s contention that there was no evidence to support the jury’s findings to Special Issues Numbers 1 and 3. After considering all of the evidence, we overrule defendant’s contention that the evidence was factually insufficient to support the jury’s findings in Special Issues Numbers 1 and 3, and we further find that those answers were not against the great weight and preponderance of the evidence so as to be manifestly unjust. Defendant did not brief or argue its point of error asserting that the evidence is factually insufficient to support the jury answer to Special Issue No. 2. The point therefore is waived. Phagan v. State, 510 S.W.2d 655, 659 (Tex.Civ.App.-Fort Worth 1974, writ ref’d n. r. e.). However, in considering all of the evidence, we find that the evidence is factually sufficient to support the jury answer to Issue No. 2.

Security Federal next contends that issues 1 and 3 improperly include references to agency and authority, without submitting the agency issue to the jury separately, and without properly limiting the scope of authority. Citing Neeley v. Southwestern Investment Company, 430 S.W.2d 465 (Tex.1968), Security Federal says that the issue of agency must be submitted separately to the jury. It contends that the submitted issues are global issues in a form condemned by the Supreme Court of Texas, in Roosth & Genecov Production Co. v. White, 152 Tex. 619, 262 S.W.2d 99 (1953).

Since the Neeley and Roosth cases were written, Rule 277, Texas Rules of Civil Procedure (Supp.1976), has been amended to permit the trial court, at its discretion, to submit broad issues to the jury. An issue is not now objectionable because it is general or includes a combination of elements of issues. The amended Rule 277 has been liberally construed to mean that issues need no longer be submitted distinctly and separately, and generality or multifariousness, without more, is not objectionable. Members Mutual Insurance Co. v. Muckelroy, 523 S.W.2d 77 (Tex.Civ.App.-Houston [1st Dist.] 1975, writ ref’d n. r. e.); Shasteen v. Mid-Continent Refrigerator Co., 517 S.W.2d 437 (Tex.Civ.App.-Dallas 1974, writ ref’d n. r. e.).

In Ka-Hugh Enterprises, Inc. v. Fort Worth Pipe & Supply Company, 524 S.W.2d 418 (Tex.Civ.App.-Fort Worth 1975, writ ref’d n. r. e.), a special issue in a form similar to those complained of here was presented for review. The issue inquired whether the plaintiff, “acting by and through its agent, employees and representatives” accepted the terms and conditions shown on the defendant’s invoices and delivery tickets. Objections made to that special issue were similar to those made to the issues before us, and included allegations that it was multifarious, unfair and confusing; did not name the agent involved; involved a question of law; and did not inquire into authority or scope of authority. The court in Ka-Hugh overruled all of the objections, citing Rule 277 as authorization for the trial court to submit the issue as it did.

We overrule the points of error insofar as Security Federal asserts that the issues Nos. 1 and 3 are objectionable because the questions of agency and course of employment were not submitted separately.

However, Security Federal correctly contends that the charge wholly fails to submit the question of the agent’s authority to bind the corporation in exemplary damages.

The Texas rule on liability of the principal or master for exemplary or punitive damages was adopted from the Restatement of Torts § 909 in King v. McGuff, 149 Tex. 432, 234 S.W.2d 403 (1950) and reiterated by the Supreme Court in Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627 (Tex.1967), as follows:

[t]he rule in Texas is that a principal or master is liable for exemplary or punitive damages because of the acts of his agent, but only if:
(a) the principal authorized the doing and the manner of the act, or
(b) the agent was unfit and the principal was reckless in employing him, or
(c) the agent was employed in a managerial capacity and was acting in the scope of employment, or
(d) the employer or manager of the employer ratified or approved the act.

The evidence does not establish as a matter of law that the acts of Knapp or his “superior” meet any one of these requirements nor does it establish as a matter of law that either Knapp or his unidentified superior were employees falling within the category of those whose acts are regarded as the acts of the corporation itself, as distinguished from the acts of a mere servant. See Fort Worth Elevators Co. v. Russell, 123 Tex. 128, 70 S.W.2d 403 (1934). Further, the testimony does not show that Knapp’s superior knew what was in the house at the time that he authorized Knapp to clean it out.

The question of sufficiency of the evidence to raise issues on the questions of authority, authorization, and ratification is not before us and we make no ruling in that respect.

We conclude that plaintiff has failed to establish the liability of the corporate defendant for exemplary damages and that the portion of the judgment awarding exemplary damages is in error.

The judgment is modified to eliminate exemplary damages and, as modified, is affirmed.


author: CORNELIUS, Justice.

text:
    Don A. HALL et ux., Appellants, v. C-F EMPLOYEES CREDIT UNION, Appellee.
    No. 8277.
    Court of Civil Appeals of Texas, Texarkana.
    April 20, 1976.

      Leon Crum, Dallas, for appellants.
    Ted H. Mitchell, Mitchell, Morris & Clark, Dallas, for appellee.
   CORNELIUS, Justice.

Appellee filed suit against appellants to collect the balance due on two promissory notes, one dated September 6, 1967 for $9,000.00 and one dated September 28, 1967 for $7,000.00. Appellants answered by general denial and pleas of payment and accord and satisfaction, and also filed a counterclaim asserting they had overpaid appellee to the extent of $1,400.00.

Although appellants made timely demand for a jury and paid the jury fee, on the day set for trial they failed to appear either in person or by attorney. Their failure to appear at the trial constituted a waiver of their right to a jury, under the amendment to Rule 220 effective January 1, 1971. Tex.R.Civ.P. 220; 3 McDonald, Tex.Civ. Practice, Sec. 11.03.2, p. 107. Judgment was rendered in appellee’s favor for the sum of $21,729.07 principal, interest and attorneys fees. Appellants’ motion for new trial was overruled, and they have perfected this appeal.

The court reporter was not present when judgment was taken, and the record does not show what evidence, if any, was adduced in support of either the merits of appellee’s suit or the amount of the recovery. Appellants contend the failure of the court to have the reporter present deprived them of the opportunity to obtain a statement of facts and requires that a new trial be ordered. Appellee says the absence of a statement of facts is harmless because the demand was liquidated, and in the absence of appellants, the court was authorized to enter judgment and calculate the recovery by reference to the instrument sued upon and the pleadings without taking evidence.

Although the trial court in its judgment characterized the proceedings below as a trial before the court, the parties to this appeal have treated the judgment as a default judgment. If the judgment was a default judgment (that is, one rendered upon the pleadings without the taking of evidence) it was unauthorized because appellants had both an answer on the merits and a counterclaim on file, and their failure to appear at the trial constituted neither an abandonment of their pleadings nor an implied confession of any issue thereby joined. Thus, neither a judgment by default nor a judgment nihil dicit was proper. Frymire Engineering Company, Inc., v. Grantham, 524 S.W.2d 680 (Tex.1975) and cases there cited; 4 McDonald, Tex.Civ. Practice, Sec. 17.25, p. 127. In such an event the plaintiff is not entitled to judgment on the pleadings but must proceed to trial and prove his case. 4 McDonald, Tex.Civ. Practice, Sec. 17.25, pp. 127-128. Although sometimes called a default judgment, the judgment entered in such a case is, strictly speaking, not a default but a judgment upon trial. Webb v. Reynolds, 207 S.W. 914 (Tex.Comm’n App. 1919, jdgmt. adopted).

If the judgment here was rendered after presentation of evidence in a trial to the court, the failure to have the court reporter present to make a record constituted reversible error. Morgan Express, Inc. v. Elizabeth-Perkins, Inc., 525 S.W.2d 312 (Tex.Civ.App. Dallas 1975, writ ref’d). It cannot be said that such error is harmless, because without a statement of facts this court is unable to determine if sufficient evidence was submitted to support the judgment. Morgan Express, Inc. v. Elizabeth-Perkins, Inc., supra. Nor can we presume there was such evidence, for that presumption only applies where a statement of facts is available. Dugie v. Dugie, 511 S.W.2d 623 (Tex.Civ.App. San Antonio 1974, no writ).

Moreover, appellee’s claim here must be considered unliquidated, which would require the presentation of evidence on the balance due even if there was no dispute as to liability. For the purpose of assessing damages without the necessity of presenting evidence, a claim on a written instrument is liquidated when the amount due can be calculated by the court solely from the instrument and the factual allegations of the petition. Buttrill v. Occidental Life Ins. Co., 45 S.W.2d 636 (Tex.Civ.App. Dallas 1931, no writ); Western Lumber Co. v. Chicago, R. I. & G. Ry. Co., 180 S.W. 644 (Tex.Civ.App. Amarillo 1915, no writ). Even a claim which objectively appears to be liquidated may be classified as unliqui-dated when the petition fails to allege specific facts with regard to the written instrument as to the amounts paid, or the due dates, or the dates of default, but merely alleges that plaintiff has made proper calculations of the total balance due. Freeman v. Leasing Associates Inc., 503 S.W.2d 406 (Tex.Civ.App. Houston 14th Dist. 1973, no writ); C & H Transportation Company v. Wright, 396 S.W.2d 443 (Tex.Civ.App. Tyler 1965, writ ref’d n. r. e.).

Concerning the $9,000.00 note, appellee’s petition alleged the date, the principal amount, and the interest provided by the note, and then alleged that “after allowing all just and lawful credits and offsets, the balance remaining due and unpaid is $12,-511.88.” It does not specify what payments were made, nor does it allege a failure to make any payment or that the entire principal and interest are due. As to the $7,000.00 note, the date, amount, and interest are alleged and then it is only alleged that “the balance remaining” is $524.51. It is obvious that substantial payments were made on that note, but the dates and amounts are not given. These allegations are not sufficiently definite to allow the court to calculate the amount due without considering evidence aliunde or without relying upon appellee’s conclusions as to the balance due. Thus, the pleading falls within the rule applied in Freeman v. Leasing Associates, Inc., supra, and the claim must be considered unliquidated.

Appellants’ point concerning the denial of a continuance becomes immaterial in view of the conclusions heretofore noted.

The judgment is reversed and the cause is remanded for a new trial.