author: ROBERTSON, Justice.

text:
    Gus C. HENSON, Appellant, v. GRAYFORD OIL CORPORATION (OIL & GAS ENERGY, INC.) et al., Appellees.
    No. 19075.
    Court of Civil Appeals of Texas, Dallas.
    Jan. 13, 1977.
    Rehearing Denied Feb. 22, 1977.
    Second Rehearing Denied March 24, 1977.

      Stephen C. Porter, Waylon E. McMullen, McMullen & Snyder, Dallas, for appellant.
    John A. Thomas, Allen, Bowles, Davis & Horton, Dallas, for appellees.
   ROBERTSON, Justice.

Appellant, Gus C. Henson, appeals from a take-nothing judgment non obstante vere-dicto rendered in favor of appellees, Gray-ford Oil Corporation (formerly Oil & Gas Energy, Inc.), Maurice C. Hooker and Jack T. Redden. Henson sued the defendants on an oral contract for specific performance or, in the alternative, to recover stock in Gray-ford Oil Corporation which had previously been delivered to and accepted by the defendants. The jury found that the parties had entered into the oral agreement. Henson appeals on the grounds that the trial court erred in holding that he was not entitled to judgment: (1) for specific performance of an oral agreement because the undisputed evidence shows that he did perform his part and it would be perpetrating a fraud upon him to allow the appellees to repudiate the contract and set up the Statute of Frauds, Tex.Bus. & Comm.Code Ann. § 26.01 (Vernon 1968), and Statute of Conveyances, Tex.Rev.Civ.Stat.Ann. art. 1288 (Vernon 1962), as a defense; or (2) awarding him the return of stock in Grayford Oil Corporation equal to one-third of the issued and outstanding stock in the corporation which he transferred in reliance upon the oral agreement between them. We hold that the trial court was correct in holding that the remedy of specific performance on the oral agreement was barred, but that the court erred by not ordering restitution of the stock given by Henson in reliance upon the oral agreement. Accordingly, we affirm in part and reverse in part the judgment of the trial court and remand the cause for further proceedings with instructions.

In the early part of 1974, Henson met with Redden and Hooker to discuss the possibility of their association in an oil and gas venture. At that time it was orally agreed by the three of them that they would enter into business together, and each would own a one-third interest in leases or money acquired. In April 1974 they formed a corporation to solicit capital from private investment sources in accordance with the “Schedule D” Regulation of the Securities & Exchange Commission. The articles of incorporation adopted by the corporation do not refer to any preincorporation agreement between the incorporators. A total of one thousand shares of stock were issued by the corporation, with Henson receiving 333 shares, Hooker receiving 333 shares, and Redden receiving 334 shares. Each became a corporate director, and Henson was elected president, Hooker vice-president, and Redden secretary-treasurer. Subsequently, two oil leases, the subject of this litigation, were acquired by the corporation. Funds were raised through private investment sources, and development of the leases began.

On September 30, 1974, Henson tendered his written resignation as president and director of the corporation and his shares of stock in the corporation to Hooker and Redden in Hooker’s office. The corporation was then caused to issue shares of stock which gave Hooker and Redden each a fifty-percent ownership in the corporation. Thereafter, Hooker purchased Redden’s stock in the corporation.

After a trial before a jury, the only special issue submitted and answered was:

Special Issue No. 1
Do you find from a preponderance of the evidence that Maurice Hooker and Jack Redden agreed to assign to Gus C. Henson a one-third interest in the oil and gas leases owned by the company in exchange for Gus C. Henson’s stock in the company Oil and Gas Energy, Inc.? Answer Yes or No.
Answer: Yes

The trial court entered judgment non ob-stante veredicto in favor of the corporation, Hooker, and Redden and ordered that Henson take nothing.

Before addressing Henson’s arguments, we must first decide whether the trial court erred by holding there was no evidence to support the jury’s finding of an agreement between the parties. According to Henson, after he tendered his resignation, Redden stated, “You will get your assignments as originally agreed.” Subsequent to this statement, Henson delivered to Hooker and Redden a stock certificate representing his shares endorsed to the corporation. Henson testified that he surrendered the stock in reliance upon Hooker and Redden’s agreement to assign him the interest in the oil leases. He further testified that on several different occasions, he requested Hooker and Redden to execute a written assignment which Henson had prepared to evidence his share in the two oil leases in question, and he was told that no assignment would be executed until a title opinion was completed on the two leases in the first part of 1975, but he was assured by Redden that he would receive his written assignment when the other investors received theirs. Finally, Redden and Hooker refused to convey an interest by written assignment to Henson and alleged that there was no agreement to that effect. Thus, there is evidence to support the jury finding.

However, Hooker contends that the special issue answered by the jury pertains to Redden and Hooker in their individual capacities and not as agents of the corporation. Because Henson transferred his stock to the corporation and not to Redden or Hooker individually and because Hooker and Redden, unless acting as corporate agents, could not assign the corporation’s leasehold interests, Hooker argues that there is no consideration for their agreement to assign an interest in the leases. Although no finding concerning liability of the corporation was obtained, we cannot agree that there is no consideration to support the agreement as between Henson and the individual defendants. The only disputed issue was submitted to the jury and was answered that the parties in their individual capacities entered into an agreement whereby Henson promised to transfer his stock and Hooker and Redden promised to assign a one-third interest in the oil and gas leases owned by the company. It is undisputed that Henson did, in fact, transfer his stock and has received no benefit in exchange for this act. Nor is there a dispute that Hooker and Redden refused to cause the corporation to execute an interest in the leases to Henson. When a promisee acts to his detriment in reliance upon a promise, there is sufficient consideration to bind the promisor to his promise. Porizky v. Olinger, 177 S.W.2d 995, 997 (Tex.Civ.App.—Dallas 1943, writ ref’d w. o. m.) and Jeter v. Citizens National Bank, 419 S.W.2d 916, 918 (Tex.Civ.App.—Eastland 1967, writ ref’d n. r. e.). Since Redden and Hooker were the only remaining stockholders, they presumably had control of the corporation and, therefore, had power to cause it to execute the assignment. Moreover, the mere fact that a promisor promises something he knows he cannot perform does not relieve him of liability on his promise and bar any remedy, such as restitution, for the promise. Thus, there was an oral agreement which had all the requisites of a binding contract except the writing required by the Statute of Frauds. We must decide, therefore, whether Henson’s performance of the contract takes the case out of the statute, and, if not, whether he is entitled to rescission and restitution.

Henson contends that the trial court erred in not granting specific performance of the agreement since the undisputed evidence shows that he did perform his part of the agreement. He admits that normally the Statute of Frauds and Statute of Conveyances would bar enforcement of the oral contract, but cites Matthewson v. Fluhman, 41 S.W.2d 204, 206 (Tex.Com.App.1931, jdgmt. adopted) for the proposition that when one party to an oral contract in reliance on the agreement does so perform his part, a fraud would be perpetrated on him to allow the other party to repudiate the contract and assert the Statute of Frauds as a defense, and equity will, therefore, remove the case from the operation of the statute and enforce the contract.

However, Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 1116 (1921) establishes three prerequisites for an oral contract to be enforced notwithstanding the Statute of Frauds, to wit: (1) payment of consideration; (2) possession by the purchaser; and (3) the making by the purchaser of valuable and permanent improvements with the consent of the seller or, in the absence of such improvements, such other facts as would make the transaction a fraud if it were not enforced. Harris v. Potts, 545 S.W.2d 126 (Tex.1976) holds that each prerequisite in Hooks is indispensible.

Henson argues that there is compliance with the first and third prerequisites, to wit, he did pay consideration, and the facts of this case show a “virtual fraud;” but the impossibility of taking possession of this type of oil lease renders the second prerequisite of the Hooks test inapplicable in this situation. Consequently, he seeks specific performance.

We need not decide' whether the facts evidence a “virtual fraud” or whether the assignee of an interest in a mineral lease under these facts is required to take possession to entitle him to specific performance because we hold that Henson has an adequate remedy in lieu thereof. Recently, this court in Davis v. Campbell, 524 S.W.2d 790, 793 (Tex.Civ.App.—Dallas 1975, no writ) followed the well established principles of Hooks and Matthewson by holding that a partly performed oral contract may be enforced in equity notwithstanding the Statute of Frauds if the party acting in reliance on the contract has suffered a substantial detriment for which he has no adequate remedy and the other party would reap unearned benefits if permitted to plead the statute. See Morris v. Gaines, 82 Tex. 255, 17 S.W. 538, 539 (1891); Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 1117-18 (1921); Texas Company v. Burkett, 117 Tex. 16, 296 S.W. 273, 279 (1927); Matthewson v. Fluhman, 41 S.W.2d 204, 206 (Tex.Com.App.1931, jdgmt. adopted); 2 Corbin on Contracts § 429 (1950).

In view of these authorities, we hold that Henson had the burden to plead and prove facts which would bar the application of the Statute of Frauds to the oral contract by proving that he had no other adequate remedy. This he has not done, and in fact, he has pleaded alternatively for recovery of his stock. There has been no part performance by Hooker or Redden which would make the granting of restitution inequitable. Hausler v. Harding-Gill Co., 15 S.W.2d 548, 549 (Tex.Com.App.1929, jdgmt. adopted). Since neither party can enforce this contract, rescission is a proper remedy. Cheek v. Metzer, 116 Tex. 356, 291 S.W. 860, 863 (1927). The refusal by Hooker and Redden to perform their part of the agreement is material and goes to the very heart of the contract so as to defeat its basic aims and objectives. Consequently, it is proper to rescind this executory agreement and to allow Henson to recover his stock, thereby returning the parties to the status quo prior to the oral agreement. Hausler v. Harding-Gill Co., 6 S.W.2d 445, 446 (Tex.Civ.App.—San Antonio 1928), rev’d on other grounds 15 S.W.2d 548 (Tex.Com.App.—1929, jdgmt. adopted). Consequently, we hold that the trial court was correct in refusing specific performance of the agreement, but erred in refusing to order Hooker to transfer sufficient stock to Henson to entitle him to his one-third interest in the corporation.

Since the stock which Henson transferred to the corporation was immediately reissued to Hooker and Redden and since all of it was ultimately transferred to Hooker, it is within Hooker’s power to transfer sufficient stock to Henson in order to restore his one-third ownership in the corporation. Consequently, a judgment of rescission and restitution may properly be rendered against him. Accordingly, we affirm the trial court’s judgment denying specific performance of the agreement and finding no corporate liability, but we reverse the judgment concerning Henson’s recovery of the stock and remand the cause with instructions to determine the amount of stock necessary to return a one-third interest to Henson and to render judgment for rescission and restitution of the amount of stock so determined.

Reversed and remanded with instructions.

ON MOTION FOR REHEARING

Appellees, Grayford Oil Corporation (Oil & Gas Energy, Inc.) and Maurice Hooker, now contend that we have erred in ordering stock in the corporation returned to appellant Henson after determination of the amount necessary to place the parties in the same position as they were on September 30, 1974. They take the position that Henson waived his cause of action for restitution during the trial below when his attorney made the following statement:

We feel we have to make an election between asking for the stock back or asking for an assignment and in that sense, yes, we are not asking for the stock back, we are asking for the assignment.

This statement was made during oral argument on appellees’ motion for instructed verdict which was overruled. They cite Dashiel v. Lott, 243 S.W. 1072, 1073 (Tex.Com.App.1922, jdgmt. adopted) and Hodge v. Ellis, 154 Tex. 341, 277 S.W.2d 900, 908 (1955) to support this proposition. Both of these cases concern judicial admissions of fact and are not authority concerning abandonment of a cause of action. They also cite First National Bank v. McClellan, 117 S.W .2d 807, 808 (Tex.Civ.AppAmarillo 1938, no writ), which holds that where a party waives a cause of action during trial and the trial court finds in its judgment that the party announced the abandonment in open court and, therefore, is not entitled to relief, that portion of the pleading should not be considered on appeal because it would be inconsistent to induce the trial court to rely on the abandonment and on appeal complain of the trial court’s actions.

However, in this case there is no recital in the trial court’s judgment concerning abandonment of a cause of action by Henson. The judgment only recites that a directed verdict for the appellees would have been proper; accordingly, the findings of the jury were disregarded, and judgment non obstante veredicto-was rendered. Also, in Henson’s motion for judgment he prays in the alternative for rescission and the return of the consideration paid to appellees equal to one-third of the presently issued and outstanding stock in appellee corporation. Furthermore, the appellees in their motion for judgment make no mention of an abandonment of a cause of action concerning recovery of stock. In the original submission of the cause to this court, the appellees did not assert abandonment in a counterpoint in their brief nor during oral argument. This theory is raised for the first time on rehearing. Under these facts, we cannot agree that an abandonment of a cause of action has occurred. Accordingly, we overrule appellees’ contention.

Appellees also assert that Henson was required to elect between seeking specific performance and rescission. Application of the doctrine of election of remedies is conditioned upon the existence of two valid, available, and inconsistent remedies. A mistaken belief that a party has a particular remedy and his effort to enforce it is immaterial and does not constitute an election, unless the remedy in fact existed. Bandy v. Cates, 44 Tex.Civ.App. 38, 97 S.W. 710, 711 (1906, writ ref’d). In view of our holding that specific performance was not available to either party, the doctrine of election of remedies has no application.

Appellees raise other points on rehearing, but we find no evidence in the record to support them. Appellees also move for oral argument in support of their motion for rehearing, but we conclude that no useful purpose could be served by such argument because their position has been adequately presented in their motion for rehearing.

Accordingly, we reverse and remand this cause, and to avoid confusion, we clarify our instructions. The trial court should determine the changes in the corporation’s status and render judgment returning to Henson sufficient stock to place him in the same position he would be in if he had not transferred his 333 shares on September 30, 1974.

Motion for rehearing overruled.


source: Caselaw Access Project

author: BARROW, Chief Justice.

license: Public Domain

text:
    Evan P. ADCOCK, Individual Executor of the Estate of Mattie L. Pritchett, Appellant, v. ALAMO NATIONAL BANK, Individual Executor of Ellen C. Kerns, Appellee.
    No. 15739.
    Court of Civil Appeals of Texas, San Antonio.
    March 2, 1977.
    Rehearing Denied April 13, 1977.
    Biery, Biery, Davis & Myers, Bobby D. Myers, San Antonio, for appellant.
    Bayne & Snell, Barry Snell, San Antonio, for appellee.
   BARROW, Chief Justice.

Appellant brought this suit against Alamo National Bank, Guardian of the Estate of Ellen C. Kerns, a Person of Unsound Mind, to recover the sum of $20,006.84 for conversion of certain United States savings bonds. Mrs. Kerns died during the penden-cy of the suit and, after probate of her will, Alamo National Bank, as Independent Executor of the Estate, was substituted as party defendant. A take-nothing judgment was entered after a non-jury trial.

Series H bonds in the face amount of $17,500.00 and Series G bonds in the face amount of $1,500.00, in the name of “Miss Mattie L. Pritchett or Mrs. Ellen Kerns,” were found by the guardian in the lockbox of Mrs. Kerns after the death of Miss Pritchett. Appellant concedes that under existing Treasury Regulations both payees are recognized as co-owners of the bonds, and, upon the death of one payee, the survivor is recognized as the sole and absolute owner. See 31 C.F.R. Sec. 315.60-315.62. Appellant sought to avoid this rule by couching her suit as one for conversion or breach of trust because of the alleged failure of Mrs. Kerns to return the bonds to Miss Pritchett.

The circumstances surrounding the two women and the application of the Dead Man’s Statute limit the evidence available to appellant. The two women were close friends and Miss Pritchett lived most of her adult life in an apartment owned by Mrs. Kerns next door to her home. Miss Pritch-ett died on June 2, 1974, at the age of 89. Mrs. Kerns died on February 1,1976, at the age of 95. Both women were very self sufficient until their later years and neither had anyone looking after her business affairs. The closest surviving kin were a nephew of each and a niece of Mrs. Kerns.

The trial court found: savings bonds in the face amount of $19,000.00 were in the name of “Miss Mattie L. Pritchett or Mrs. Ellen Kerns”; Miss Pritchett died on June 2, 1974, and Mrs. Kerns on February 1, 1976; Miss Pritchett delivered the bonds to Mrs. Kerns for safekeeping; that at various times between 1971 and 1974, Miss Pritch-ett made demand upon Mrs. Kerns for the return of her stocks and bonds; and, that Mrs. Kerns did not deliver the bonds to Miss Pritchett. The trial court refused to find, as requested by appellant, that: the bonds were purchased by Miss Pritchett with her monies; Mrs. Kerns held the bonds as Trustee for the use and benefit of Miss Pritch-ett; and, Mrs. Kerns refused to re-deliver the bonds after being entrusted with them for safekeeping. The trial court concluded from its findings that prior to the death of Miss Pritchett, both women were co-owners of the bonds and that upon her death, the bonds became the sole property of Mrs. Kerns. The court also concluded that appellant was not entitled to recover damages for conversion or breach of trust.

Appellant asserts ten points of error. The first three points urge that he is entitled to judgment for conversion under the findings of fact by the trial court and that the judgment as entered is manifestly unjust. Two points complain because the court did not find that Mrs. Kerns refused to return the bonds to Miss Pritchett. Appellant also urges that the court erred in failing to find that Miss Pritchett purchased the bonds. He complains by three points of the trial court’s conclusions of law that both women were co-owners of the bonds prior to Miss Pritchett’s death and that Mrs. Kerns, as survivor, was the sole and absolute owner. These points are all inter-related and will be considered under one basic proposition.

The Supreme Court of the United States, in Free v. Bland, 369 U.S. 663, 82 S.Ct. 1089, 8 L.Ed.2d 180 (1962), held that, irrespective of the source of funds used to purchase savings bonds issued in co-ownership form, the survivor will be recognized as the sole and absolute owner of the bonds and that, absent fraud, no judicial determination will be recognized which would defeat or impair the right of survivorship conferred by the Treasury Regulations. In that case, bonds were purchased with community funds and placed in the name of Mr. or Mrs. Free. After the death of Mrs. Free, her son sued Mr. Free for one-half of the bonds or for reimbursement for the loss of her community interest in the bonds which were converted into his separate estate by operation of the Treasury Regulations. The Supreme Court of Texas granted this relief, but the Supreme Court of the United States reversed. See also: Yiatchos v. Yiatchos, 376 U.S. 306, 84 S.Ct. 742, 11 L.Ed.2d 724 (1964); United States v. Chandler, 410 U.S. 257, 93 S.Ct. 880, 35 L.Ed.2d 247 (1973); Wood v. Johnston, 404 S.W.2d 678 (Tex.Civ.App.—Eastland 1966, writ ref’d n. r. e.). Thus, the basic question before us is whether appellant has established that Mrs. Kerns committed fraud or a breach of trust tantamount to fraud prior to the death of Miss Pritchett.

There was no direct evidence of the circumstances regarding the purchase of the bonds. Order blanks were found in Miss Pritchett’s papers and they show that she purchased $7,000.00 in Series H bonds on March 23,1953, and $9,000.00 in Series H bonds on March 16, 1956. Another order blank was introduced which showed the purchase of $1,500.00 in Series H bonds on December 31, 1957, but the signature of the purchaser is not legible. The exact source of the funds used for these purchases was not shown although Miss Pritchett had received just over $9,000.00 on March 15, 1956, in redemption of some other bonds and this sum was probably used for the March 16, 1956 purchase. There was no evidence as to why the bonds were made payable to both women. Only Miss Pritch-ett’s address was shown on the bonds and she received and kept all interest payments. The bonds were kept in a safe in Mrs. Kerns’ home until removed to her lockbox at some undisclosed time.

The trial court refused to find that the bonds were purchased by Miss Pritchett with her monies although it did find that she had delivered the bonds to Mrs. Kerns for safekeeping. In 1970 or 1971 Miss Pritchett broke her hip. After release from a nursing home, she temporarily moved in with her nephew and his wife. She died before she was able to return to the apartment.

Mrs. Kerns entered a nursing home in 1968, and thereafter the two women had little direct contact. A niece of Mrs. Kerns testified that Miss Pritchett repeatedly asked her to obtain her “stocks and bonds” from Mrs. Kerns. The times of these requests were not fixed but it apparently was in early 1974 because in March 1974, Mrs. Kerns’ nephew from Arkansas came to San Antonio and arranged to deliver to Miss Pritchett her papers which were then located in the safe of Mrs. Kerns. At that time, he delivered certain stocks and papers to Miss Pritchett, but did not see any bonds. Thereafter Miss Pritchett made inquiry of the nephew and niece as to the bonds. The response of Mrs. Kerns was conflicting and, undoubtedly, reflect her senility. The nephew testified that upon inquiry of Mrs. Kerns, she denied there were any bonds. On the other hand, the niece testified that Mrs. Kerns told her that she was keeping the bonds for Miss Pritchett until the latter needed them in her old age. In any event, the evidence is very inconclusive because of the senility of both women and the inability of their heirs to really understand what was involved since no bonds were found until after the guardianship was opened. Miss Pritchett died on June 2, 1974, and on December 23,1974, Mrs. Kerns was declared to be a person of unsound mind.

We cannot say from this sparse record that the trial court abused its discretion in concluding that appellant is not entitled to recover damages for a conversion or for breach of trust. We recognize the difficulties confronted by appellant in trying to make out his case. Also, the court’s judgment may frustrate the wishes of these two life-time friends. Nevertheless, in the absence of evidence which would establish fraud, the Treasury Regulations must prevail.

There is no evidence whatsoever that Mrs. Kerns was made a co-owner of the bonds through any fraud or as the result of a breach of trust. If we assume that the bonds were bought by Miss Pritchett with her own monies, there is no evidence to rebut the presumption that Mrs. Kerns was made a co-owner either by gift from Miss Pritchett or else through some consideration. The evidence does not conclusively establish that Mrs. Kerns refused to deliver the bonds to Miss Pritchett in response to the latter’s specific request. To the contrary, Mrs. Kerns’ niece, who gave the only evidence of a request for the bonds by Miss Pritchett, testified that the latter never did get angry over her failure to obtain the bonds. Insofar as Mrs. Kerns was concerned, the evidence is conclusive that she was keeping the bonds for Miss Pritchett, not to cheat her. Finally, there is no evidence that Miss Pritchett intended to cash the bonds even if she had secured them from Mrs. Kerns. Under the Treasury Regulations, the bonds could not be reissued to another payee without the joinder of both co-owners. Thus, Mrs. Kerns would have been the sole owner upon Miss Pritchett’s death irrespective of who had possession.

We have considered each of appellant’s ten points and reversible error is not shown by any of them. The trial court did not err in entering the take-nothing judgment.

The judgment is affirmed.

      . Art. 3716, Tex.Rev.Civ.Stat.Ann. (1926).

      . Bland v. Free, 162 Tex. 72, 344 S.W.2d 435 (1961).


author: GUITTARD, Chief Justice.

text:
    KROGER STORES, INC., Appellant, v. Henry HERNANDEZ, Appellee.
    No. 19120.
    Court of Civil Appeals of Texas, Dallas.
    March 3, 1977.
    William T. Hankinson, Thompson, Knight, Simmons & Bullion, Dallas, for appellant.
    David Alexander, Dallas, for appellee.
   GUITTARD, Chief Justice.

In this slip-and-fall case, judgment was rendered on a verdict for plaintiff. Defendant appeals on the ground that the evidence was both legally and factually insufficient to support the jury’s finding that the foreign substance on which plaintiff slipped had been on defendant’s floor for such a length of time that it should have been discovered. We hold that the evidence was sufficient and, accordingly, we affirm the judgment.

The only evidence bearing on the issue of 'how long the substance had been on the floor is the testimony of plaintiff. He testified that he entered defendant’s store as a customer and that he fell as he was walking down an aisle. After he fell, he saw on the floor, and also on his shoes and clothing, a substance which he recognized as vomit. When asked to describe its appearance, he said, “Well, it was already dried where it looks like cake. It wasn’t just where you could rub your hands on it and it would splash all over you. It was just drying.” He said that it had wheel tracks through it that extended “a little bit past” where it was on the floor. On cross-examination, plaintiff could give no estimate as to how long the substance had been on the floor except that it was “more than two or three minutes.”

Defendant’s manager testified that the practice of the store was to sweep the floor twice before noon and twice after noon and to clean up spills and breakage as soon as discovered. He said that on the occasion in question he received no report of anything on the floor until plaintiff pointed it out to him, and then he ordered one of the employees to clean it up immediately.

On this appeal defendant argues that the evidence shows only that the substance had been on the floor “more than two or three minutes,” which is too short a period to establish that a reasonable shopkeeper should have realized its presence and cleaned it up. We do not think that the jury’s consideration is confined to this estimate of the time. More significant is plaintiff’s description of the substance as “already dried where it looks like cake.” No expert testimony was produced to estimate how long a period would be required for the substance to reach this condition, but we conclude that the jury was properly allowed to make its own estimate, based on its general experience and plaintiff’s description of what he saw.

Moreover, plaintiff’s description of the substance stands uncontradicted, even though defendant’s manager admitted that plaintiff pointed it out to him and he then ordered that it be cleaned up. Although the manager must have seen the substance, he was not asked to describe its condition. Failure to produce evidence within a party’s control raises a presumption that it would be adverse. H. E. Butt Grocery Co. v. Bruner, 530 S.W.2d 340, 343 (Tex.Civ.App.—Waco 1975, no writ).

We conclude that the case is analogous to Furr’s, Inc. v. Bolton, 333 S.W.2d 688, 690 (Tex.Civ.App.—El Paso 1960, no writ), where the substance on the floor was grape juice, which was said to be “dry around the edge.” The court observed that it could not have dried around the edge before falling on the floor. In this respect the present case is distinguishable from Franklin v. Safeway Stores, Inc., 504 S.W.2d 514, 517 (Tex.Civ.App.—Dallas 1973, writ ref’d n.r.e.), where the evidence concerned a “dry syrupy substance,” which, the court said, might have already been dry when placed on the floor.

We recognize that in Franklin the court distinguish Bolton on the further ground that in Bolton the plaintiff undertook to qualify herself as an expert and expressed her opinion that the grape juice had been on the floor for half an hour to an hour. However, we do not think that an estimate of the time by an expert witness is essential. Our question is whether reasonable minds could draw the inference that regurgitated food which was “already dried where it looks like cake” had been on the floor for a sufficient length of time that it should have been discovered and removed. We conclude that reasonable minds could draw this inference. Consequently, we hold that the evidence was sufficient, both legally and factually, to support the jury’s finding.

Affirmed.

ROBERTSON, J., not participating.


text:
    Joisephene CAMPAGNA, Appellant, v. UNDERWRITERS AT LLOYD’S LONDON, Appellee.
    No. 19119.
    Court of Civil Appeals of Texas, Dallas.
    March 7, 1977.
    Rehearing Denied March 31, 1977.

      Thomas R. Hartnett, III, Dallas, for appellant.
    Robert M. Greenberg, Greenberg & Bach, Dallas, for appellee.
   ROBERTSON, Justice.

This is an action to recover an indebtedness under a fire insurance policy issued to appellant, Joisephene Campagna, as mortgagee, by appellee, Underwriters at Lloyd’s London. After the property was destroyed, Campagna foreclosed on the mortgage (remaining balance of $2,551.03) and purchased the property for a stated consideration of $2,143.00. Campagna filed suit when Lloyd’s rejected her claim. The trial court withdrew the case from the jury after Campagna rested and found that she was entitled to recover $408.03 ($2,551.03 minus $2,143.00) as a matter of law. Campagna contends she has a right to recover under the policy the difference between the market value after the fire and the amount of the debt vested at that time. We affirm the judgment and hold the recited consideration in the trustee’s deed is binding on both mortgagee and mortgagor in the absence of an invalid trustee’s sale, and, therefore, parol evidence to modify the deed is inadmissible in subsequent litigation.

Campagna concedes that she would not be entitled to the insurance proceeds if the debt had been extinguished or actually reduced by the consideration stated in a deed to a third-party purchaser. See Rosenbaum v. Funcannon, 308 F.2d 680, 684 (9th Cir. 1962). However, she argues that because she purchased the property, there was no transfer of consideration regardless of the recital in the deed, and, therefore, public policy should allow the substitution of the actual market value after the fire as the consideration of the purchase. Accordingly, she contends that she is entitled to the amount of the debt minus the market value after the fire. Thus, the principal issue for our determination is whether a mortgagee is bound by the recited consideration in a trustee’s deed when the mortgagee has purchased the foreclosed property.

Clearly, in suit by the mortgagee against the mortgagor for a deficiency remaining after foreclosure, the mortgagee would be bound by the recital of consideration in the trustee’s deed. This result would follow because it has long been held that parol evidence varying the terms of contractual consideration in a deed is inadmissible unless fraud, accident, or mistake is alleged. East Line & Red River R.R. Co. v. Garrett, 52 Tex. 133, 139 (1879); Kahn v. Kahn, 94 Tex. 114, 58 S.W. 825, 827 (1900); and Hodge v. Ellis, 154 Tex. 341, 277 S.W.2d 900, 905 (1955). Consequently, the foreclosure had the effect of reducing the indebtedness by the amount of the consideration recited. A mortgagee’s insurable interest under an insurance policy containing a mortgagee loss-payable clause is limited to the indebtedness which the mortgagor owes under the note and mortgage. Norwich Union Fire Ins. Soc., Ltd. v. Citizens’ Building & Loan Ass’n, 7 S.W.2d 144 (Tex.Civ.App.—Texarkana 1928, err.-ref.) and 5a J. Appleman, Insurance Law and Procedure, § 3403 (1970). Campagna voluntarily reduced the indebtedness by an amount reflected in the trustee’s deed and, therefore, may recover from the insurer, as from the mortgagor, only that remaining portion of the debt. Accordingly, we hold that the trial court correctly fixed Campagna’s recovery in the amount of $408.03.

Judgment affirmed.

      . The policy provides:
      This policy, as to the interest of the mortgagee only therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the within described property, nor by a foreclosure or other proceedings or notice of sale relating to the property, .... [emphasis added]


author: CIRE, Justice.

text:
    GABER COMPANY, Appellant, v. Leila RAWSON et al., Appellees.
    No. 1533.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    March 9, 1977.
    Rehearing Denied March 30, 1977.

      Paul W. Persons, Houston, for appellant.
    W. James Kronzer, Jr., Nick C. Nichols, Kronzer, Abraham & Watkins, Russell H. McMains, Fulbright & Jaworski, Warren Y. Pennington, Brackeen & Pennington, Houston, for appellees.
   CIRE, Justice.

Defendant appeals from a judgment for plaintiff in a wrongful death action.

This suit arises out of a multiple-vehicle accident in which Bryan Rawson was killed. At about 1:00 p. m. on December 9, 1970, a truck traveling northeast on Houston’s Southwest Freeway dropped a number of boxes containing lavatories onto the freeway. The truck did not stop. Shortly thereafter, cars encountering the boxes slowed to avoid hitting them, resulting in a four-car collision. The third ear in line, driven by the decedent, was hit by a large truck owned and operated by Containerized Refuse Haulers, Inc. A fire broke out and burned the Rawson vehicle, causing the death of both Rawson and his passenger, Robert E. Nolan.

Appellee Leila Rawson, widow of the decedent, brought this wrongful death action against appellant Gaber Co., a wholesale plumbing distributor, alleging that it was a Gaber Co. truck that dropped the boxes of lavatories, causing the accident and her husband’s death.

The case was submitted on 26 special issues, and the jury’s affirmative answers to the first four issues formed the basis for finding Gaber Co. liable. In the first special issue, the jury found that the truck from which the lavatories fell was owned by Gaber Co. In the second issue, the jury found that the driver of the truck was engaged in the service of Gaber Co. and in the furtherance of its business. Special issue number three read:

Do you find from a preponderance of the evidence that the boxes of sinks or lavatories could have been prevented from falling off the truck by the exercise of ordinary care upon the part of Gaber Company and its employees?

The fourth issue read:

Do you find from a preponderance of the evidence that such failure was a proximate cause of the injuries, if any, and the death of Bryan Rawson?

The jury failed to find any contributory negligence on the part of the decedent. It found that Mrs. Rawson was entitled to compensation for her pecuniary loss in the amount of $167,000; that the decedent would have been entitled to $10,000 as compensation for his physical pain and mental anguish; that the market value of the Raw-son vehicle immediately before the accident was $2,000 and that its value after the accident was $25; and that reasonable funeral and burial expenses were $2,000. Based on this verdict, the court entered judgment that Mrs. Rawson, individually and as administratrix of the estate of Bryan Rawson, recover of Gaber Co. $179,-000, plus interest and costs.

Gaber Co. brings this appeal on five points of error. Each of these points attacks the judgment of the trial court on grounds of legal and factual sufficiency. However, appellant has not properly preserved its factual sufficiency points. To do so, they must have been included in a motion for new trial. Appellant’s original motion for new trial was timely filed on June 2, 1976. Its amended motion for new trial was filed on June 22,1976, the last day such motion could have been timely filed. Tex. R.Civ.P. 329b. The amended motion did not contain any ground for new trial asserting that the verdict of the jury was grounded on insufficient evidence or that it was so against the great weight and preponderance of the evidence as to be manifestly unjust. The first two grounds complained of the court’s error in overruling its motion for instructed verdict; the next ten grounds complained of the error of the court in overruling defendant’s objections to certain issues; and the thirteenth ground complained of the error of the court in “overruling defendant’s motion to disregard and set aside Special Issues and the jury’s findings thereto . . . .” It was not until July 7, 1976, when appellant filed its “Supplement to Amended Motion for New Trial,” that the factual sufficiency points were raised. This supplement had no effect as a motion for new trial. It was not filed within 20 days after the original motion for new trial was filed. Moreover, a party may not file more than one amended motion for new trial. Draper v. Liberty Mut. Ins. Co., 484 S.W.2d 135, 136 (Tex.Civ.App.—Texarkana 1972, writ ref’d n. r. e); Tex.R.Civ.P. 329b. Appellant’s points of error thus present only questions of law. In passing on these points, we consider only that evidence favorable to the appellee, and draw from the facts proven only those reasonable inferences which tend to support the trial court’s judgment. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.Sup.1965); Dictaphone Corp. v. Torrealba, 520 S.W.2d 869, 870 (Tex.Civ.App.—Houston [14th Dist.] 1975, writ ref’d n. r. e.).

In its first point of error, appellant asserts that the evidence shows as a matter of law that the boxes on the freeway did not fall from a Gaber Co. truck operated by a Gaber Co. employee in the course and scope of his employment and that there was no evidence to support the jury’s finding to that effect.

On the question of ownership, there is the testimony of William L. Gruber and Ruth Anne Vetterick that they saw a Gaber Co. truck drop some boxes at the site of the accident on the afternoon it occurred. They said they were traveling about two car lengths directly behind the truck when a box fell off the back of the truck. They swerved their car to avoid hitting the box, then pulled up beside the driver, blew their horn, and began motioning to him in an attempt to inform him that he was losing boxes. They further testified that they saw more boxes drop off the truck and that after their honking and motioning they saw the driver turn off at the next exit. They proceeded down the freeway and, after crossing an overpass, saw behind them a large cloud of black smoke. Both witnesses testified that the truck carried a sign saying “Gaber Co.” Gruber’s statement to the police, which was introduced into evidence, stated that the sign he saw was printed on the rear of the truck. However, he and Mrs. Vetterick testified that the sign was positioned over the cab of the truck. W. J. Spaulding, the officer who investigated the accident, testified it occurred on the down slope of the Newcastle overpass on the Southwest Freeway. He saw between seven and ten boxes containing white, 18 inch diameter, lavatory sinks on the eastbound portion of the freeway and took two of these into custody. He took one of the boxes to the Gaber Co. offices the next day and was told by,;, the dispatcher that the company handled such sinks, but that they had not lost any in this accident.

Appellant next contends that Mrs. Rawson failed to prove that the truck was being operated by a Gaber Co. employee within the course and scope of his employment. Appellant says that appellee must rely upon the “branded truck doctrine” to hold Gaber Co. liable for the negligent acts of its employee committed while driving its vehicle. Appellant correctly states the law to be that proof of the employer’s ownership of the vehicle and that the driver was employed by such employer creates a presumption that the driver was acting within the course and scope of his employment when the accident occurred. This presumption can be nullified by positive proof to the contrary. Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354, 357 (Tex.Sup.1971); Broaddus v. Long, 135 Tex. 353, 356, 138 S.W.2d 1057, 1058 (1940). Appellant argues that it offered such positive proof, the presumption vanished, and appellee was left with no evidence. This argument fails for several reasons. First, this is not an employee deviation case. Second, the argument does not focus upon the conduct complained of in this suit. Mrs. Rawson did not contend that the boxes fell off the truck because of any negligence in the manner in which the truck was driven. The negligence upon which this suit was based, and about which special issue number three inquired, was the failure of Gaber Co. to prevent the boxes from falling off the truck. Gaber Co. had a duty to secure its cargo in a way that would prevent it from falling off the truck and causing havoc on the freeway. It was established that the boxes were loaded by Gaber Co. employees under the direction of Johnnie Harlan, foreman at Gaber Co. He was in charge of the loading dock at the time of the accident. He testified that company drivers under his supervision loaded the trucks and that he had the duty of securing the load on the trucks. In his deposition, read into evidence, Harlan testified that there were no tailgates on the company’s flatbed trucks; that the loads, sometimes being two stacks of boxes, were secured with one rope for each stack; that a tarpaulin was sometimes used; and that improperly packed boxes could come out of the truck. The witnesses Gruber and Vetterick testified that the truck was heavily loaded. Third, there was no positive proof by appellant rebutting the presumption and, in addition to the proof that this was a Gaber Co. truck and that on the date of the accident all of their trucks were being operated by Gaber Co. employees, there was further evidence bearing on the course and scope issue. Using his handwritten dispatch log, which was put into evidence, Harlan testified that the one or more trucks with Gaber Co. Signs had been out around the time of the accident making deliveries in the southwest part of town, accessible by the Southwest Freeway. In his deposition, Harlan said that Gaber Co. handled this type of product (a round, 18 inch diameter, white, steel lavatory), and that a load of such lavatories was sent on the day of the accident to one of the locations accessible by the Southwest Freeway. We overrule this point.

Appellant’s second point asserts that there was no evidence of negligence on the part of a Gaber Co. employee in the course and scope of his employment proximately causing the accident, nor were there any findings on this issue. We disagree. As just stated, the evidence showed that the only persons involved in the loading process were Gaber Co. employees, and any negligence in loading must have been theirs.

Under this point, appellant also contends that special issues three and four were global. However, we view these issues as a broad submission, which the trial court may use in its discretion. Members Mut. Ins. Co. v. Muckelroy, 523 S.W.2d 77, 81 (Tex.Civ.App.—Houston [1st Dist.] 1975, writ ref’d n. r. e.); Tex.R.Civ.P. 277. The point is overruled.

In its third point, appellant contends there was no evidence that the boxes were the cause in fact of the accident and the resultant death of Mr. Rawson. We cannot agree with this contention. The witnesses Gruber, Mrs. Vetterick, and Cornejo all testified that their cars had to take evasive action to avoid hitting the falling boxes. Furthermore, Cornejo testified that when he looked in his rear view mirror other cars were slowing down and dodging the boxes. Finally, the witness David L. Wamstead testified to the res gestae statement made by the driver of the first car that he had to stop or hit the box; Wamstead also stated that there was a box directly in front of this car which the driver had either hit or just came close to hitting. This point is overruled.

Appellant’s fourth point asserts that the evidence established as a matter of law that the decedent was contributorily negligent in failing to maintain an assured clear distance behind the vehicle it was following, so that it could be safety brought to a stop without a collision, as required by statute, Tex.Rev.Civ.Stat.Ann. art. 6701d, § 61(a) (1977). Appellant bases this contention on the testimony of the truck driver, Thomas, that the decedent was driving his car two or three car lengths behind the preceding car and that he did not have time to apply his brakes before the accident. However, Thomas and the witness Wam-stead also testified that there was a blind spot at the scene of the accident and that a driver could not see ahead because of the slope of the road. Thomas testified that all of the traffic on the freeway was traveling at about the same speed, 45 to 50 miles per hour. This was some evidence of a permissible excuse for the alleged violation of the statute, i. e., the deceased was confronted by an emergency not due to his own misconduct. Impson v. Structural Metals, Inc., 487 S.W.2d 694, 696 (Tex.Sup.1972). Appellant had the burden of proof on the question of violation of the statute, L.M.B. Corp. v. Gurecky, 501 S.W.2d 300, 303 (Tex.Sup.1973), and he did not establish the violation as a matter of law. We overrule this point.

In his fifth point, appellant asserts that there was no evidence to support the jury’s findings of damages for conscious pain and suffering and pecuniary loss. On the issue of pain and suffering, there was eye-witness testimony that the decedent lived for a very short time after the accident, as well as medical testimony that this was possible. On the question of whether there was any evidence of pecuniary loss, appellant argues that there was no evidence of the condition of Mrs. Rawson’s own health, which was pertinent to her life expectancy and thus, to her recovery, and there was no evidence that the decedent had any income at any time or was able to contribute to the support of Mrs. Rawson. Mrs. Rawson testified at trial, and the jury could determine her health or physical condition from her appearance. See Atlantic Coast Line R. R. Co. v. McDonald, 50 Ga. App. 856, 179 S.E. 185, 186, cert. denied, 296 U.S. 621, 80 L.Ed. 441, 56 S.Ct. 143 (1935). Mrs. Rawson also gave evidence of her husband’s income which would support the jury finding on pecuniary loss. This point is overruled.

Affirmed.

J. CURTISS BROWN, C. J., not participating.


author: WARD, Justice.

text:
    The AETNA CASUALTY & SURETY CO., Appellant, v. FLORENTINE MARBLE & TILE CORPORATION, Appellee.
    No. 6522.
    Court of Civil Appeals of Texas, El Paso.
    March 9, 1977.

      Law Offices of Alfred W. Offer, Alfred W. Offer, San Antonio, for appellant.
    Wolff & Wolff, Walter C. Wolff, Jr., San Antonio, for appellee.
   OPINION

WARD, Justice.

Florentine Marble & Tile Corporation sued The Aetna Casualty and Surety Company for an alleged burglary loss of certain marble, tile, and personal property under a merchant’s property policy. Trial was to a jury which found issues in favor of the Plaintiff, and based on the verdict, judgment was entered for Florentine in the amount of $112,503.51. On this appeal, Aetna presents evidentiary points attacking the finding by the jury that a theft occurred in the burglary and the amount of the alleged loss, and alleged jury misconduct. We affirm on condition of remittitur.

Lawrence Iacono, the Plaintiff’s President, formed a Texas corporation called Florentine Marble & Tile Corporation in which he and his wife owned all of the capital stock. It started in business June 1, 1973, at 10820 Gulfdale Drive in San Antonio. Marble and tile were imported from Italy into its stock, but a portion of its business came from it acting as broker where the material would be imported direct to the customer. The amount of material that was received into inventory at the Plaintiff’s business was disputed, but it seems certain that during the period very few sales were ever made out of the inventory in San Antonio, except that considerable material was sold to Mr. Iacono individually. He had purchased some property at 16207 San Pedro Avenue in San Antonio, and as owner had constructed a large building between February and October, 1974, intending to lease the building to the corporation. With this in mind, he purchased from the corporation a considerable amount of the marble and tile that was on hand. On August 23, 1974, a fire occurred at Benny’s Pool Maintenance, which was next door to the leased premises on Gulfdale, and damage was sustained to the equipment, machinery, and stock of merchandise of the corporation. On August 27, 1974, Florentine Marble & Tile Corporation made a claim against Benny’s Pool Maintenance and its liability carrier, Great American Insurance Company, claiming a loss of $70,-289.66, of which amount $44,277.94 was claimed as destroyed merchandise. The day after the fire, Iacono applied for the merchant’s property insurance policy in question, and the policy was issued effective August 26, 1974. On September 27th, Mr Iacono closed his office on Gulf dale at 5:00 o’clock P.M. At about 10:00 o’clock that night, he returned to the office and found the front door open, the main items of his office equipment missing, and, according to him, the warehouse behind his office emptied of its inventory. During the next two days, and after Iacono and his wife had checked, a list was prepared of the missing items which included office equipment, machinery, marble works, marble sills, decorative ceramic tiles, onyx ashtrays, and bathroom accessories. This claim totaled $84,-616.70, and a copy was furnished to The Aetna Casualty and Surety Company. On October 10th they furnished additional information to the insurance company, at which time they reported a claim loss of $112,553.51 as being the total amount including their lost, profit on the materials. On November 11, 1974, a proof of loss was submitted to the Defendant setting the claim at $84,616.70.

The Defendant first challenges the findings of the jury that the theft occurred on September 27, 1974, by a series of no evidence and insufficient evidence points. Included in this attack are also against the great weight points regarding negative findings of the jury on the Defendant’s defensive issues regarding the theft. In the main, the Defendant has to rely on the unusual circumstances of the case and claimed inconsistencies in the insured’s own proof. Thus, it points to the insured’s poor financial condition, the two serious losses occurring within the period of a month, and to the theft loss occurring within the short period after the coverage was secured. The Defendant further argues that even the circumstances of the theft were questionable as Iacono closed the building at 6:00 o’clock P.M., returned after 10:00 o’clock P.M., and at that time he found his front door open and the place ransacked. The police officer who was called testified that at 8:00 o’clock P.M. he had patrolled the area, found it normal, that the company forklift in the warehouse was cold when he examined it after being called, and that he could not testify as to what was missing. Additional testimony was introduced which showed that the missing marble and tile would have weighed between 100,000 and 200,000 pounds; that more than two large trucks would have had to have been loaded and moved within the period of time that the theft had occurred; and that it was unreasonable to assume that such an amount could have been taken between the times when the police visited the area and the time that the policeman examined the premises.

On the other hand, Iacono and his wife were the only two people who really knew the business, what the inventory consisted of, how it was added to, how it was disposed, what happened to the items damaged in the fire, and the circumstances of the theft. He testified that on the night of the theft the premises were secured, and when he returned, the front door was opened, the padlock on the warehouse had been broken, there was dust in the air, and the inventory which he reported was missing. He immediately contacted the police, cooperated with them, and, under his version, there would have been an adequate period of over four hours to have loaded the material and carried it away.

Without adding further, we have examined the record, and after considering only the favorable evidence and the inferences arising which support the jury finding, the legal insufficiency point concerning the theft is overruled. After considering all of the evidence, the factual insufficiency of the evidence point and against the great weight points as to the theft and the related defensive issues are likewise overruled.

One of the Defendant’s great weight points complains of the jury’s negative answer to a special issue inquiring if the Plaintiff failed to submit a proper proof of loss to the Defendant as required by the policy. Iacono testified that he notified the Defendant and furnished invoices immediately after the loss, and, on October 10, 1974, notified the Defendant again in writing, furnished copies of his original invoices, packing lists, and a copy of the Police Department Report. Finally, on November 11th, he furnished a sworn proof of loss on a form provided by the Defendant’s adjuster for a total claim of $84,616.70, and attached thereto an itemized list of what was lost. Copies of these letters, inventories, and the proof of loss were introduced in evidence. The jury evidently believed this testimony. Further, on December 6th, the attorney for the Defendant notified the Plaintiff in writing that his claim was denied, and the Plaintiff, in his pleadings, alleged that the Defendant by the denial waived any valid objection to the sufficiency of the proof of loss. This stands uneon-troverted. The unqualified denial of liability waived any objection that might have existed as to the sufficiency of the proof. 32 Tex.Jur.2d Insurance, Sec. 384 at 594 (1962). The point is overruled.

By its points 9 through 11, the Defendant complains of three items of jury misconduct. These assert that the jury erroneously placed the burden of proof on the Defendant to show that there had not been a theft; that the jury erroneously considered and awarded the Plaintiff a profit when it found that the actual cash value of the stolen personal property was $112,553.51; and that in making the latter finding, it disregarded the Court’s instruction by failing to exclude items damaged or destroyed in the fire. Upon hearing the Defendant’s motion for new trial, two jurors testified. Juror Chapa stated that there was never any statement made in the jury room that the insurance company had the burden of showing that there was no theft. Juror Short testified that in his own mind he felt that the insurance company had not sustained its burden of proving that there was no theft, but that was only his own opinion. He did not testify that any such discussion occurred. He further denied that there ever was any discussion made that the jury would include any of the fire loss in arriving at the figure as to the cash value of the stolen property. Both jurors indicated that the jury was split in its finding on the amount of damages, and some were for a higher figure than the one arrived at. The Plaintiff had testified that the fair market value of the stolen property was $125,-000.00. A $125,000.00 figure was discussed by the jurors, but they could not find any written evidence in the exhibits showing that figure. They did find the exhibit previously referred to where Iacono had described his loss at being $112,553.51, and where he had stated in the covering letter that this included his profit loss. Just how the jury arrived at their answer is not shown by the evidence, although it is evident that this same figure was returned by the jury as their verdict on the damages. Mr. Chapa stated that one juror mentioned that the insurance policy provided for lost profits, but just when the statement was made or whether the jury agreed to accept it was not disclosed.

One complaining of jury misconduct under Rule 327, Tex.R.Civ.P., has the burden to prove that the overt act of misconduct occurred, that it was material misconduct, and from the record as a whole injury probably resulted. Fountain v. Ferguson, 441 S.W.2d 506 (Tex.1969). If the evidence offered at the hearing on the motion for new trial was conflicting as to whether misconduct occurred, the decision of the trial Court on a question is binding on appeal. Brawley v. Bowen, 387 S.W.2d 383 (Tex.1965). The Defendant has failed in its proof as to the occurrence of any misconduct regarding the erroneous placing of the burden of proof and the failure to exclude the fire damaged items. There is a positive denial by at least one juror that any such discussion occurred. How Juror Short reasoned regarding the burden of proof was immaterial. The mental process of the juror may not be probed and faulty or illogical reasonings are not misconduct. Griffith v. Hudspeth, 378 S.W.2d 153 (Tex.Civ.App.—San Antonio 1964, no writ), and 3 McDonald, Texas Civil Practice Sec. 14.17 (1970).

Special Issue No. 2 required the jury to determine the actual cash value of the stolen property, and the jury was instructed to exclude from its consideration any personal property destroyed or damaged as a result of the previous fire. No other instruction or limitation, such as lost profit, was placed upon their consideration. The letter dated October 10, 1974, from Iacono was in evidence without limitation and, as pointed out, he had asserted in the letter that his net loss from the burglary to his inventory was $84,626.70 and that his total loss was $112,553.51, and that this included his profit loss. This admissible and unobjected evidence was discussed by the jury and was proper. No instruction by the Court was violated. There was the testimony that the actual cash value of the stolen property was $125,000.00. The latter having been properly admitted, the defendant should have anticipated that the jury would consider it in arriving at a verdict, and should have requested an instruction that the jury not consider lost profits. Having failed to make such a request, it cannot complain at this time of jury misconduct. Blaugrund v. Gish, 142 Tex. 379, 179 S.W.2d 266 (1944). The trial Court having as usual, instructed the jury to consider only the evidence seen and heard in the courtroom, we conclude that the jury was not guilty of misconduct if it did discuss any evidence of lost profit. Regardless, as seen later, the matter becomes harmless. All points on jury misconduct are overruled.

The Defendant contends by its third and fourth points that there is no evidence and insufficient evidence to support the finding of the jury that the actual cash value of stolen personal property was $112,553.51. The Plaintiff attempted to prove the value of the property by inventories which were dated before and after the fire and after the theft. In addition, it attempted to show the purchase and the cost of all items which it originally brought to San Antonio, the purchase and cost of the items after it moved to San Antonio, the sales of all merchandise made to the public, the sale of the merchandise to Iacono individually, the items which had been broken and damaged in handling, the items and cost which were damaged and lost in the fire, and, finally, the items which Iacono testified were lost in the theft. There is no question but that Iacono qualified as an expert in the business, and he was permitted to testify that in his opinion the actual cash value of the missing items in San Antonio on September 27, 1974, was $125,000.00. While an objection was made to a part of the testimony of Iacono when the question was asked and which was sustained, we are satisfied from the record that the stated testimony was admitted. A detailed argument of the Defendant contending to the contrary has been examined and it is overruled. Having considered only the evidence favorable to the issue and having disregarded all evidence to the contrary, the no evidence point is overruled.

In reviewing all of the evidence, the Defendant points to the admittedly poor records which were kept and which were introduced into evidence. A late income tax return for the year 1973 was produced and it was not prepared and filed until June, 1974. In that return, Iacono, as President of the corporation, reported the merchandise and appreciated machinery and equipment inventory as of December 31, 1973, as being $80,239.00. In making the claim loss for the stolen items, the figures include office equipment and machinery which had been on hand for some years and on which no depreciation was allowed. Other discrepancies could be noted, but of most importance to us is the fact that, shortly after the loss, on October 10, 1974, Iacono concluded that the net loss according to the inventory and invoices represented a total of $84,626.70. Finally, on November 11, 1974, when the proof of loss was submitted, the figure $84,616.70 was submitted as the stolen property loss.

We can accept the explanation made by Iacono as to a mistake being made in the figure for his ending inventory on December 31,1973, and the fact that in his various claims he never added in shipping and brokerage expenses, import duties, and factors relating to an inflationary market, but we are also faced with the fact that by the time the proof of loss was made, Iacono had been working on the inventory regularly since the fire loss, had been repeatedly contacted by claim agents, and undoubtedly knew that they were requiring exact figures. Under the testimony, we can be satisfied that an actual cash loss of $84,616.70 was sustained, but, under the serious admission made in his letter of October 10th that the excess was a profit figure and which figure was practically repeated by his proof of loss made on November 11th, we are of the opinion that the evidence is factually insufficient to support the verdict of the jury as to that excess.

After a consideration of all of the evidence in this case, we believe that the amount awarded by the jury which is in excess of $84,616.70 is not supported by factually sufficient evidence. Because of that, the Defendant’s fourth point is sustained. But, since it is a question only of excessiveness of the verdict, the Plaintiff, under Rule 440, Tex.R.Civ.P., is entitled to exercise its option under the remittitur practice. The judgment of the trial Court will be affirmed if the Plaintiff will file in this Court within twenty days hereof a re-mittitur in writing of $27,886.81, together with the prejudgment interest attributable to such excess. A. F. Conner & Sons, Inc. v. Tri-County Water Supply Corporation, 541 S.W.2d 856 (Tex.Civ.App.—Eastland 1976, writ ref. n. r. e.). If such remittitur is not so filed, the judgment will be reversed and the cause remanded for a new trial.

The judgment is affirmed on condition of remittitur.


author: NYE, Chief Justice.

text:
    CATTLE FEEDERS, INC., Appellant, v. Jo Ann JORDAN and G. F. Jordan, Appellees.
    No. 1152.
    Court of Civil Appeals of Texas, Corpus Christi.
    March 10, 1977.

      Fly, Moeller & Stevenson, Victoria, William C. Reiff, Houston, for appellant.
    Marion M. Lewis and Jackie W. Marr, Guittard & Henderson, Victoria, for appel-lees.
   OPINION

NYE, Chief Justice.

Suit was brought by Cattle Feeders, Inc., the appellant herein, against Jo Ann and G. F. Jordan, appellees, seeking specific performance of an option to purchase 91.755 acres of land in Goliad County. Trial was before a jury. From a judgment denying all relief, appeal has been perfected to this Court.

On January 15, 1971, Cattle Feeders, Inc. entered into a lease agreement with Jo Ann and G. F. Jordan covering some 91.755 acres of land in two noncontiguous tracts. This land is located north of U. S. Highway 59 in Goliad County and is divided by a farm to market road. This acreage was part of a large tract of land in the same area which was either owned or leased by Cattle Feeders, Inc. as a part of their cattle feedlot operation. The lease stated that it was for farming, grazing and livestock feeding purposes only. The term was 5 years. The lease provided that all fences and water reservoirs constructed by the tenant were to remain on the premises. The lease, by its terms, granted Cattle Feeders an option to purchase the land in question based on certain conditions precedent, one of which was at least 90 days’ written notice of such election to purchase. The option agreement provided that time was of the essence concerning exercising the option to purchase.

In either April or May of 1971, Cattle Feeders alleged that it had sent a letter to the Jordans expressing its desire to exercise the option and purchase the land. No copy of this letter was produced or introduced into evidence. On December 5,1975, Cattle Feeders sent a letter to the Jordans in which they tendered the first purchase payment for the land pursuant to the terms set out in the option agreement. The Jordans refused this check on the grounds that they had not been notified of Cattle Feeders’ intent to exercise its option as provided for in the option agreement.

Shortly thereafter, Cattle Feeders brought this suit for specific performance of the option agreement on two grounds. The first theory was that it had in fact properly exercised the option by giving written notice 90 days prior to January 15, 1976. Alternatively, Cattle Feeders urged that in the event that Cattle Feeders had not satisfied the requirement of the option agreement, the Jordans were estopped from asserting the 90 day notice requirement. The Jordans, after excepting to certain allegations in Cattle Feeders’ pleadings, specifically denied Cattle Feeders’ claims and brought a cross-action for immediate possession of the land. At the beginning of the trial, the Jordans filed a motion in limine to exclude from the jury all of the evidence pertaining to waiver or estoppel on the part of the Jordans. Although the trial court granted the motion, all of the excluded evidence is before us on bill of exceptions.

The jury found that no written notice of the exercising of the option was mailed to Mrs. Jordan by Cattle Feeders; that Mrs. Jordan did not receive any such notice; and that Cattle Feeders was not damaged by Mrs. Jordan’s refusal to surrender possession of the land to them. Cattle Feeders does not attack these findings by the jury in this appeal. Therefore, the question as to whether or not the appellant properly exercised the written option agreement is not before us.

Through two points of error, Cattle Feeders allege that the trial court erred in refusing to permit the appellant to present to the jury, by evidence and special issues, its alternative theory that Cattle Feeders was entitled to specific performance of the option contract on equitable grounds. The appellant is relying on the language in Jones v. Gibbs, 133 Tex. 627, 130 S.W.2d 265 (1939, opinion adopted) to the effect that strict compliance with the terms or conditions of an option is excused when such failure is brought about by certain conduct of the optionor. The crux of Cattle Feeders’ argument is that the appellees engaged in such conduct as would have excused strict compliance with the terms of the option agreement and the trial court erred in refusing to allow Cattle Feeders to present this evidence to the jury. It is, therefore, necessary that we carefully review appellant’s bill of exceptions evidence to determine the validity of appellant’s points of error.

Appellant Cattle Feeders’ first bill of exceptions covered the testimony of a Mr. Carl Knabe who did some clearing work on the land in question. Mr. Knabe testified that he burned off brush, root-plowed, raked the land and stacked and burned roots. He testified that this work was done in June and July of 1970 and that he charged Cattle Feeders $40.00 to $42.00 per acre for the work. He testified that this work makes the land more productive and increased the value of the land. He also testified that the value of such services at the time of the trial was approximately $80.00 per acre.

The next testimony excluded by the trial court was that of the president of the appellant’s corporation, a Mr. Pat Hencerling. Mr. Hencerling testified that in June and July of 1970, Cattle Feeders executed certain documents with the appellee concerning this land. He testified that these documents were later embodied in the lease agreement. He testified that the lease agreement was part of an overall transaction between the parties to purchase the land and that the land in question was leased to Cattle Feeders and not purchased outright so as to gain a tax advantage for the appellees. He testified that the lease price was about $10.00 per acre above the going rate. He testified that he cleared the land, planted various grasses and built ponds on the land. He also testified that he had the land sloped for the feed yards and constructed a mobile home park for his employees. He testified he paid approximately $40.00 to $45.00 per acre to clear the land, several hundred dollars per acre to slope certain land and $1,500.00 each for the three ponds that were constructed. He also testified he spent $35.00 to $45.00 per acre to plant grass on approximately 5 acres to prevent erosion. He testified that the corporation spent between $10,000.00 and $12,-000.00 to construct the mobile home park. He testified that it also spent approximately $2,000.00 on fences. He stated that he spent about $60.00 per acre to fertilize some 80% of the land in 1975 and planted oats at a cost of $40.00 per acre. In summary, he testified he would not have spent any of this money if he was not under the impression that Cattle Feeders either owned the land or would acquire the land. He then pointed out on a map other land in the immediate area which the corporation had previously purchased from the appellees. He testified that all this work on the land in question was clearly visible from the road adjacent to the land and that the appellees were seen in the vicinity of the property.

On cross-examination under the bill of exceptions, Hencerling stated that he had the right, under the lease, to make all the improvements and that appellees could not have stopped any of the improvements. He admitted that he had never discussed the improvements with the appellees. Finally, Hencerling stated that the reason he made all the improvements was his reliance on the written notice to appellees.

The final testimony under the bill of exceptions was that of the appellee Jo Ann Jordan. Mrs. Jordan testified that she owned land in the vicinity of the land in question which she leased or used to graze cattle. She stated that since 1974, she visited the area about once very two weeks but between 1971 and 1975, she only occasionally visited the area. She said she observed the improvements on the subject land. She testified she always thought appellant would exercise its option but never knew this for a fact. She said her assumption was based on the improvements and the integration of the land into the remainder of the appellant’s operations. She said she refused the tendered money because she was no longer bound by the agreement. She stated that prior to December 5, 1975, she received no communication from appellant indicating an intent to exercise its option. She stated that had the option been properly exercised she would have sold the land to appellant as per the agreement.

The only remaining question involved in this case is whether or not the appellant is entitled to the land in question through some act or acts of the appellees which excused or prevented the exercising of the option agreement.

As a general rule, in absence of equities, an optionee is held to strict compliance with the terms of an option agreement. Zeidman v. Davis, 161 Tex. 496, 342 S.W.2d 555 (1961); Tidwell v. Lange, 531 S.W.2d 384 (Tex.Civ.App.—Waco 1975, no writ). The equities which will excuse strict compliance with the terms of an option agreement are set out in Jones v. Gibbs, 130 S.W.2d 265 (Tex.Com.App.—1939, opinion adopted), see pp. 272-273. These equitable principles can be summarized. An optionee will be excused from strict compliance where his conduct in failing to comply was not due to willful or gross negligence on the part of the optionee but was rather the result of an honest and justifiable mistake. In addition, equity will also excuse strict compliance where the strict compliance was prevented by some act of the optionor such as waiver or misleading representations or conduct.

There is no evidence in the record that Cattle Feeders’ failure to provide ap-pellees with timely notice of its intent to exercise the option was the result of an honest and justifiable mistake. To the contrary, the record indicates that the appellant simply never notified the appellees of its intention to exercise the option. The written notice, even if sent, was never received by appellees.

Next, we consider waiver and es-toppel. Waiver, whether express or implied, is an intentional release, relinquishment, or surrender of a right that is at the time known to the party making it. In order to constitute a waiver, it is essential that there be an existing right, benefit or advantage, a knowledge (actual or constructive) of the existence and an actual intention to relinquish it. It must be a voluntary act made with full knowledge of the facts. Rio Delta Land Company v. Johnson, 475 S.W.2d 346 (Tex.Civ.App.—Corpus Christi 1971, writ ref’d n. r. e.). A waiver takes place where one dispenses with performance of something which he has a right to exact, and occurs where one in possession of any right, whether conferred by law or by contract, with full knowledge of material facts does or forbears to do something, and such action is inconsistent with his right or his intention to rely upon it. Ford v. Culbertson, 158 Tex. 124, 308 S.W.2d 855 (1958); First National Bank of Midland v. Stoutco, Inc., 530 S.W.2d 619 (Tex.Civ.App.—San Antonio 1975, writ dism’d); Zurich Insurance Company v. Wiegers, 527 S.W.2d 511 (Tex.Civ.App.—Austin 1975, no writ); Rice v. Travelers Indemnity Company, 526 S.W.2d 698 (Tex.Civ.App.—Waco 1975, writ ref’d n. r. e.); Texana Oil Company v. Stephenson, 521 S.W.2d 104 (Tex.Civ.App.—El Paso 1975, no writ).

We have carefully reviewed all of the record and find that there is no evidence of any waiver. Even appellant’s president testified there were no oral agreements concerning the lease. The only evidence of implied waiver is the fact that appellee was in the area occasionally, knew of some of the improvements to the land and that appellant was using the land. In order to establish an implied waiver, there must be a clear unequivocal and decisive act showing such a purpose. Corrin v. Slagle, 300 S.W.2d 657 (Tex.Civ.App.—Fort Worth 1957, writ ref’d n. r. e.); Bounds v. Home Mut. Life & Accident Ass’n No. 1, 290 S.W.552 (Tex.Civ.App.—Amarillo 1927, no writ). There is simply no evidence anywhere in the record that appellee waived her right to notice of appellant’s intention to exercise its option.

The elements of equitable estop-pel are: 1) a false representation or concealment of material fact; 2) made with actual or constructive knowledge of the facts; 3) to a party without knowledge or means of knowledge of the real facts; 4) made with the intention that it should be acted on; and 5) the party to whom it was made must have relied on or acted on it to his prejudice. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952); Clifton v. Ogle, 526 S.W.2d 596 (Tex.Civ.App.—Fort Worth 1975, writ ref’d n. r. e.); Connally v. Home Insurance Company, 525 S.W.2d 252 (Tex.Civ.App.—Amarillo 1975, writ ref’d n. r. e.); Astro Sign Company v. Sullivan, 518 S.W.2d 420 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n. r. e.). Before an estoppel will arise, there must be certainty to every intent. Rio Delta Land Company v. Johnson, supra. The evidence totally fails to establish any false representation or concealment on the part of the appellees. In fact, the evidence clearly shows that the appellees did nothing to prevent the appellant Cattle Feeders from exercising the option in question. Failure to prove one of the essential elements of estoppel is fatal to the cause of action. Barfield v. Howard M. Smith Company of Amarillo, 426 S.W.2d 834 (Tex.Sup.1968).

After reviewing all of appellant’s bill of exceptions evidence, it is unnecessary for us to determine the correctness of the trial court’s action in preventing the jury from hearing this evidence. Even if all of the evidence had been submitted to the jury, it would not have supported a judgment favorable to appellant’s claim to equitable relief.

Appellant’s points of error are overruled. The judgment of the trial court is AFFIRMED.


author: McKAY, Justice.

text:
    Homer Wayne GOOLSBEE, Appellant, v. Vernon HEFT ex ux., Appellees.
    No. 1022.
    Court of Civil Appeals of Texas, Tyler.
    March 10, 1977.
    Stephen R. Patterson, Nichols & Parker, Longview, for appellant.
    Ebb B. Mobley, Mobley & Green, Long-view, for appellees.
   McKAY, Justice.

This case involves the question of whether a court may grant visitation rights to the maternal grandparents over the objection of the child’s father. The appellees, Vernon Heft and wife, Dorothy Heft, (the grandparents) instituted this action seeking to be appointed managing conservators of the child, Colby Aaron Goolsbee, but later amended their pleadings to seek only specific access rights. The father made a motion to dismiss plaintiff’s first amended petition on the grounds that the grandparents stated no cause of action in that they did not allege him to be an unfit parent. This motion was overruled. Following a hearing on the merits, the trial court granted the grandparents temporary possession of the child on every sixth week-end from noon on Thursday until 6:00 p.m. on the following Sunday. In addition, the court ordered the period of possession to be increased forty-eight (48) hours for those periods of possession nearest to the months of June and December. We are not presented with a statement of facts, nor does the transcript include either findings of fact and conclusions of law or a bill of exception.

Appellant, Homer Wayne Goolsbee (the father) alleges in his brief the following facts, to which the grandparents do not take exception: Colby Aaron Goolsbee was born to Homer Wayne Goolsbee and Vicki Heft Goolsbee on January 19, 1975. On January 20, 1975, Vicki Goolsbee died as a result of complications arising from Colby’s birth. The father still had a month to serve before being discharged from the United States Army, and because he did not feel he could care for the child at that time, he placed the child with the maternal grandparents, appellees in this case. Approximately one month later, the father was discharged from the Army, moved in with the grandparents, and began working for the grandfather. In October, 1975, the father became engaged to remarry. At that time he informed the grandparents that he was going to have to look for a better paying job as he, his new wife and the child would be starting a family of their own. During the next two months, the father was away from the child for short periods of time while he looked after his mother who had had surgery, worked out his wedding plans and attempted to find a new job. On December 2, 1975, when he returned to pick up the child, he was served with the grandparents’ original petition in this case.

Appellant brings two points of error. The first complains that the trial court erred in overruling and denying the father’s motion to dismiss the grandparents’ first amended petition for failure to state a cause of action. Appellant contends that a parent, absent pleading and proof of unfitness, has the absolute right of custody and control over the child, and that a court cannot award a grandparent visitation rights over the objection of the parents. We disagree.

Section 14.03(d) of the Texas Family Code provides as follows:

“The Court may grant reasonable access rights to either the maternal or paternal grandparents of the child and issue any necessary orders to enforce the decree.”

This statute clearly gives the grandparents the right to judicially seek visitation rights to the child, and the court has the authority to order such visitation rights in favor of the grandparents. Such power is not subject to the will of the parent; otherwise, the statute would be without force.

Appellant contends that under the case law of this state, the grandparents have no such right to visitation, citing Smith v. Painter, 408 S.W.2d 785, 786 (Tex.Civ.App.—Eastland 1966, writ ref’d n.r.e., 412 S.W.2d 28); Green v. Green, 485 S.W.2d 941 (Tex.Civ.App.—Eastland 1972, writ ref’d n.r.e.); Deweese v. Crawford, 520 S.W.2d 522 (Tex.Civ.App.—Houston [14th Dist.] 1975, writ ref’d n.r.e.). Both the Smith case and the Green case were decided prior to the effective date, January 1, 1974, of Title 2 of the Family Code, of which Section 14.03(d) is a part. As such cases were decided under the prior law, which did not include the provision in question, they are not applicable to the case at bar. In the Deweese case, the grandchildren had been adopted by the natural mother’s second husband, thus cutting off all rights of access of the natural father. The court held that since the grandchildren had been adopted by the second husband, the child’s paternal grandparents were not “paternal grandparents” within the meaning of Section 14.-03(d) of the Family Code and thus were not entitled to visitation rights. 520 S.W.2d at 526. The court also rejected the argument that Section 14.03(d) was unconstitutional. 520 S.W.2d at 526. In the present case there has been no adoption, and we find Deweese distinguishable on that basis. We overrule appellant’s first point.

The wisdom of enacting the section of the Family Code involved here may be subject to question, but the authority of the Legislature to pass such legislation is not challenged.

Appellant’s second point complains that the trial court erred in “instructing counsel for Petitioners and Respondent, pri- or to the hearing, that the Court would grant specific visitation rights to Petitioners if the parties could not agree upon the same.” Even though there is no statement of facts or bill of exception before us confirming the occurrence of the alleged error, and preserving such as error, we hold that if such statement was error, it was harmless. Rule 434, T.R.C.P. We overrule appellant’s second point.

The judgment of the trial court is affirmed.


author: McDONALD, Chief Justice.

text:
    Florence C. HOWELL, Appellant, v. CITY OF DALLAS et al., Appellees.
    No. 5678.
    Court of Civil Appeals of Texas, Waco.
    March 10, 1977.
    Rehearing Denied April 14, 1977.
    Stewart R. Miller, Dallas, for appellant.
    Lee E. Holt, Linda R. Lawson, Carroll R. Graham and M. Leigh Bartlett, Henry Wade, Dist. Atty., Charles Bowling, Jr., and Clinton W. Breeding, Dallas, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal from summary judgment plaintiff Howell take nothing in suit against defendants City of Dallas, Dallas Independent School District and Dallas County.

Plaintiff filed suit against defendants alleging defendants were threatening to sue her for ad valorem taxes on real estate owned by her “which taxes are based on grossly inaccurate, excessive and unreasonable assessments, and based on valuations which are inaccurate and unreasonable and in excess of any realistic salable value”. Plaintiff recites the 1974 taxes have been paid, and that she is paying the 1975 taxes into the registry of the court in the total amount being claimed, but “such payment is being made specifically ‘under protest’ with full reservation of the right to recapture in full any part thereof legally found to be excessive taxation”.

Plaintiff prayed for “interim temporary injunction against further assessment or attempted assessment of aforesaid unreasonable valuations for taxes”, and for resolution by jury of the reasonableness of the assessed valuations and judgment for refund of any taxes paid on unreasonable valuations.

Defendants moved for summary judgment asserting 1) the taxes have been voluntarily paid by plaintiff, and 2) once taxes have been paid all questions of their validity become moot.

The trial court granted such motion and rendered judgment plaintiff take nothing.

Plaintiff appeals contending the trial court erred in rendering summary judgment:

1) When issues of fact were unresolved; and

2) When plaintiff’s averments were in no way disputed or controverted.

Summary judgment is proper only if the summary judgment proof establishes a right thereto as a matter of law. Gibbs v. General Motors Corp., Tex., 450 S.W.2d 827.

It is undisputed plaintiff paid her 1974 ad valorem taxes in full, as assessed; and has paid her 1975 ad valorem taxes, in full, as assessed, under protest. She asserts the valuations on which such taxes were assessed are excessive for which reason the taxes are illegal. She further asserts she paid such taxes “to reflect good faith”.

Article 1.11A Vol. 20A p. 42 VATS provides for refunds of certain taxes but specifically provides it does not apply to ad valorem taxes.

A person who voluntarily pays an illegal tax has no claim for repayment. And in the absence of a specific statute, it is immaterial to the right of repayment whether or not such illegal tax was paid under protest. National Biscuit Co. v. State, 134 Tex. 293, 135 S.W.2d 687; Austin National Bank v. Sheppard, 123 Tex. 272, 71 S.W.2d 242; State v. Connecticut General Life Ins. Co., Tex., 382 S.W.2d 745; Galveston City Company v. Galveston, 56 Tex. 486; see also: 84 C.J.S. Taxation p. 1278; 84 A.L.R. 294; 72 Am.Jur.2d 344; City of Arlington v. Cannon, 153 Tex. 566, 271 S.W.2d 414, 418; Briscoe Ranches v. Eagle Pass Independent School District, San Antonio, Tex.Civ.App., NRE, 439 S.W.2d 118, 119, 122.

Defendants established their entitlement to summary judgment as a matter of law. Plaintiff’s points are overruled.

AFFIRMED.


text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Curtis L. MOORE, Appellee.
    No. 6509.
    Court of Civil Appeals of Texas, El Paso.
    March 16, 1977.

      Shafer, Gilliland, Davis, Bunton & McCol-lum, Inc., Lucius D. Bunton, Stephen L. Brannan, Odessa, for appellant.
    Phillip Godwin, W. Ruff Ahders, Richard J. Clarkson, Odessa, for appellee.
   OPINION

WARD, Justice.

This is a workmen’s compensation case which was tried to a jury on special issues on the basis of which judgment was entered for the claimant that he have and recover 14 weeks of compensation for total temporary disability and 300 weeks of partial permanent disability. The carrier appeals complaining of jury misconduct, an objectionable issue, and legal and factual insufficiency of the evidence. We affirm.

The Appellant-carrier first asserts that the trial Court erred in overruling its motion for mistrial, which stated that some of the jurors had violated Rule 226a, Tex.R. Civ.P., by accepting coffee furnished by one of the Appellee’s attorneys. After the jury had been selected and sworn, and before any evidence had been introduced, a recess was called. At the time this case was tried, it was the custom for the two District Judges and the Judge of the County Court at Law of Ector County to purchase the coffee for use of the jurors in the jury room. Near the two coffee pots was a sign stating “Coffee furnished courtesy of Judges C. V. Milburn, R. L. McKim and Phillip Godwin.” The sign had been placed in the jury room with the knowledge of the three Judges. Phillip Godwin was one of the attorneys for the Plaintiff Moore, and he participated in the trial, and undoubtedly he paid for a portion of the coffee. During this first recess and while some of the members of the jury were in the jury room, the bailiff removed the sign and the attorney for the carrier at that point moved for a mistrial. Testimony of the bailiff and of Mr. Godwin was heard by the Court upon the motion and the motion was overruled. The admonitory instructions, as directed under the provisions of Rule 226a, had been given by the trial Judge to the jury panel, and, as provided therein, the panel had been instructed not to accept from any of the lawyers “any favors, however slight, such as rides, food, or refreshments.” The Appellant argues that those jurors desiring coffee were compelled to violate this admonition and the violation was directly caused by attorney Phillip Godwin; and that while the general rule concerning jury misconduct is to the effect that the complainant must show that misconduct probably resulted in prejudice and injury, here, probable prejudice to the complaining party was shown simply by the conduct itself. Appellant cites those cases where the act was so highly prejudicial to fairness of trial that the burden of going forward with proof of harm was met prima facie by simply showing the improper act and nothing more. Texas Employers’ Insurance Association v. McCaslin, 159 Tex. 273, 317 S.W.2d 916 (1958), and Texas Employers’ Insurance Association v. Brooks, 414 S.W.2d 945 (Tex.Civ.App.—Beaumont 1967, no writ).

The parties agreed that generally a violation of the admonition given under Rule 226a is to be determined by the requirements of Rule 327, Tex.R.Civ.P. Cook v. Chapa, 492 S.W.2d 339 (Tex.Civ.App.—Amarillo 1973, writ dism’d). That Rule is written in the context of the granting of a new trial based on jury misconduct, and the one complaining of jury misconduct under the Rule has the burden to prove the overt act of misconduct, that it was material conduct, and, from the record as a whole, injury probably resulted. Fountain v. Ferguson, 441 S.W.2d 506 (Tex.1969). The primary question to be determined is whether misconduct did in fact occur, and that is a fact question and must be determined before the question of law is reached. If the evidence offered at the hearing on the motion for new trial is conflicting as to whether misconduct occurred, the decision of the trial Court on the question is binding on appeal. Roming v. McDonald, 514 S.W.2d 129 (Tex.Civ.App.—El Paso 1974, writ ref'd n. r. e.). The bailiff testified that he removed the sign from the room and stated that if anyone had been looking, they could have seen it. There was no testimony that any juror in this case saw the sign. Assuming, however, that a juror saw the movement and the sign, there is no testimony that any juror in this case drank the coffee. The reasonable assumption, then, is that if any juror saw the sign, he immediately followed the admonition of the Judge as contained in Rule 226a. The record, then, is that the jurors followed the admonition of the Judge and the Appellant failed in its burden of showing that any juror accepted any coffee. The first point is overruled.

The carrier’s next point asserts error of the Court in commenting on the evidence by the manner in which Special Issue No. 5 was submitted. Our consideration of the point is challenged by the Appellee, who argues that the Appellant has waived any right to complain because of the defective assignment of error in the motion for new trial. The assignment in the motion for new trial is as follows:

“The Court erred in overruling Defendant’s objections and exceptions to the Court’s Charge, and in failing to instruct the Jury in the manner therein suggested.”

The Appellant’s objections to the Court’s Charge take up four legal sized pages in the transcript, complain of four special issues, and at least three separate objections are made to Special Issue No. 5. Appellee’s challenge is sustained as the assignment does not comply with the provisions of Rules 320, 321, 322, and 374, Tex.R.Civ.P. An assignment of error in a motion for new trial which merely directs the trial Court by reference to scan all of a party’s objections to the charge of the Court is legally insufficient and a point of error based thereon cannot be considered. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960), and Grubb v. Grubb, 525 S.W.2d 38 (Tex.Civ.App.—El Paso 1975, writ ref’d n. r. e.).

Points of Error III, IV, and V attack the legal and factual sufficiency of the evidence regarding the jury finding that the Appellee sustained a permanent partial disability from his injury. Again, the Appellee attacks our consideration of the points because of the defective assignments in the motion for new trial. The motion for new trial pertinent to this part of the appeal follows:

“The verdict of the Jury and judgment of the Court is contrary to the law and the evidence in this case.”
“The verdict of the Jury and judgment of the Court is based on answers to certain Issues answered by the Jury when there was no evidence upon which to answer such questions or the answers were against the greater weight of the credible testimony.”
“There was no evidence from competent sources indicating the length or duration of the disability of the Plaintiff.”
“There was no testimony nor evidence before the Jury indicating that the Plaintiff suffered any permanent disability within the meaning of the Workmen’s Compensation Laws of the State of Texas.”

The assignments reflected by the first two paragraphs above are directly contrary to the direction contained in Rule 322 and cannot be considered. Smith v. Brock, 514 S.W.2d 140 (Tex.Civ.App.—Texarkana 1974, no writ). Because of the limited number of issues involved and the relative simplicity of the case, we will consider the last two paragraphs as being sufficient assignments. We note that the terminology “no evidence from competent sources” and “no testimony nor evidence” does not identify the type of complaint made. See the cases cited in the O’Connor article, Appealing Jury Findings, 12 Hous.L.Rev. 65 at 70 and 71 (1974). We further note that the Appellant moved for an instructed verdict, but has not assigned as error in the motion for new trial the overruling of that motion and has lost any right to ask for rendition. J. Weingarten, Inc. v. Razey, 426 S.W.2d 538, 540-541 (Tex.1968).

Regardless, we will consider the points, as the testimony is rather simple being all from the claimant, his own witnesses, and his doctors. Claimant Curtis Moore was working for Foote Well Service as an operator on September 1,1972, and he hurt his back while setting some pipe down. Some two weeks later, he reported to a doctor, who hospitalized him and put him in traction where he remained for some seven days. Thereafter, he experienced continuous pain and an inability to perform his work. He received medical treatment at various times, and finally quit his job in June, 1973. He hauled hay until December, 1973, when he again quit his job and he was not able to work because of his back until April, 1974. At that time, he got a job with Delta Drilling Company, and he still experienced pain and difficulty but worked until November, 1974, when he quit because the long trip he had to make each day was hurting his back. He then worked for Permian Products Company until May, 1975, when it went out of business. He secured employment with Holloman Construction Company as an operator and was still working for those people at the time of his trial. He stated he was not able to do the work as he had prior to his injury, and that he was only half the man that he had been. At the time of trial, he experienced actual pain and difficulty on his job, but continued to work because he had to make a living. He had seen several doctors in the year and one-half before the trial. Crewmen on the various jobs testified in his favor that he had been a good hand before the accident and that he had a bad back now, and that they helped him with the heavy lifting and carried him in his work. A medical examination in January, 1974, showed a slight defect at the L-5 level of his back. In summation, the Appellee had been having serious problems with his back for several years, which began at the time of his injury. Having considered only the evidence and the inferences tending to support the jury’s findings, and disregarding all evidence and inferences to the contrary, the no evidence point is overruled. Having considered all of the evidence, the insufficient evidence points are overruled.

The judgment of the trial Court is affirmed.