author: NYE, Chief Justice.

text:
    Margaret Lois DUPREE et vir., Appellants, v. PIGGLY WIGGLY SHOP RITE FOODS, INC., et al., Appellees.
    No. 1061.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 30, 1976.
    Opinion on Motion for Rehearing Oct. 14, 1976.
    Rehearing Denied Nov. 4, 1976.

      John C. Werner, Werner & Rusk, Houston, for appellants.
    William R. Powell, Weldon Funderburk, Funderburk, Powell, & Gibson, Law Office of Fred Parks, Richard Burns, Houston, for appellees.
   OPINION

NYE, Chief Justice.

Plaintiffs, Margaret Dupree and husband, Charles Dupree, Jr., brought suit against Denco Security Systems, Piggly Wiggly Shop Rite Foods, Inc., R. B. Denson and I. B. I. Security Service, Inc., for false imprisonment and malicious prosecution. The ease was tried before a jury which answered special issues favorable to Mrs. Dupree concerning false imprisonment, but found that Denco Security Systems on the occasion in question was acting as an independent contractor for Piggly Wiggly. Based on such findings, the trial court denied plaintiffs .any recovery against Piggly Wiggly. Mrs. Dupree has timely perfected her appeal to this Court.

The plaintiff, Margaret Dupree was a married woman, 56 years of age and mother of four children. .At the time of the incident in question, Mrs. Dupree was very active in both school and church activities and had never, before the occasion in question, been charged with a criminal act.

Defendant, Denco Security Systems, is a private investigation company who, at the time in question, worked exclusively for Piggly Wiggly Shop Rite Foods, Inc. The two security guards who participated in the false imprisonment of Mrs. Dupree were Eddie Bo Wilson and J. 0. Harris, both being employees of Denco. The defendant, Piggly Wiggly, is a corporation doing business in the State of Texas, in the retail grocery business. Piggy Wiggly had a contract with Denco whereby Denco was to provide external and internal security services for its stores. The store manager of the Piggy Wiggly store at the time the incident made the basis of the lawsuit occurred, was Mr. Jerry Michalik.

Mrs. Dupree testified during the trial that on the afternoon of October 23, 1969, at about 2:30 p. m. she entered the Piggy Wiggly store, located on Cavalcade Street in Houston, Texas, for the purpose of buying some groceries and other non-food items. The evidence reflects that she had been a frequent customer in this store for the past year. Mrs. Dupree testified that while in the store, she purchased some cupcakes, a package of salami, a small toy rocket, two pairs of beads, a candy bar and a pair of panties. Mrs. Dupree was checked out by Thelma Feak, one of the store’s checkers. She received a sales receipt for the above items and then left the store.

Upon arriving home, Mrs. Dupree noticed that she was out of milk. Her daughter complained that the type of salami her mother had purchased was a type which she did not like. Mrs. Dupree then decided it would be necessary for her to return to the store for the milk and try to exchange the salami for another kind. Upon entering the store, the second time that day, Mrs. Du-pree carried with her a large shopping bag which she stated contained those items she had purchased earlier in the day.

Mrs. Dupree testified that she went back to the meat counter to exchange the package of salami, but could find no other type of salami. She then went by the toy section to look at the toy rocket and beads to see if she could find some that were better packaged than the ones she had previously purchased, but found them to be the same. She then picked up some other items (bread, root beer, chicken, milk and ice cream) and proceeded through the check out stand at which time she paid for them.

After Mrs. Dupree left the store, two men approached her, told her that they were the police and that she was under arrest. Those two individuals were later identified as J. 0. Norris and Bo Wilson, security agents for Denco Security Systems. Although the evidence is conflicting, it appears that Mrs. Dupree was told by the two security guards that they were arresting her for shoplifting. Mrs. Dupree was then taken back into the store by the two guards and back to a storeroom in the rear of the store. Everything was then taken out of her purse and billfold. Mrs. Dupree testified that she gave one of the guards the sales receipt she received earlier in the day showing that those items she was accused of shoplifting had been paid for. One of the guards admitted that Mrs, Dupree gave him the sales receipt covering the questioned items, but he testified that it did not correspond with the prices of those items she was accused of shoplifting. He said that he gave the sales receipt back to Mrs. Dupree.

Mrs. Dupree testified that she stayed in the storeroom for approximately an hour and forty-five minutes and was not allowed to leave nor was she allowed to use the telephone. She repeatedly denied that she had taken any merchandise without first paying for it. Mrs. Dupree reiterated to the guards that she had purchased the items earlier that same day and requested the security guards to talk with the checker (Thelma Feak) so that her story could be verified. The two guards refused to do so. Although the value of the merchandise allegedly stolen was only of the approximate value of $2.12, the security guards decided to file criminal charges for shoplifting against her. The evidence showed that the store manager, Mr. Miehalik, was in the back storeroom with the two security guards and Mrs. Dupree approximately half the time that she was back there.

One of the guards called the police department and requested that police officers be sent to pick her up. Two Houston uniformed police officers subsequently arrived and led her out of the store and took her to the Houston Police Station. Mrs. Dupree was fingerprinted, photographed, booked and then placed in jail. She stayed in jail until later that evening when she was finally released on bond. The criminal complaint filed against her by the security guards was subsequently dismissed on February 17, 1970.

On June 6, 1970, Mrs. Dupree initiated this lawsuit. The defendant, Piggly Wiggly Shop Rite Foods, Inc., answered the lawsuit contending that the incident complained of was proximately caused by the acts of a third party (Denco) over whom it had no control and that Denco was not an agent, servant or employee of Piggly Wiggly-

The trial of the cause commenced on January 13, 1975, and was tried before a jury. In answer to certain special issues submitted, the jury found that: Mrs. Dupree did not commit the offense of shoplifting; that Mrs. Dupree was falsely imprisoned; that Norris and Wilson (guards) participated in the false imprisonment of Mrs. Dupree; that Michalik (store manager) did not participate in the false imprisonment of Mrs. Dupree; that guards Norris and Wilson participated in the filing of the criminal complaint against Mrs. Dupree; that Mi-chalik (store manager) did not participate in the filing of such complaint; that Norris and Wilson (guards) did not have probable cause to believe Mrs. Dupree had committed a criminal offense; that Norris and Wilson (guards) were not acting as employees of Piggly Wiggly on the occasion in question; that Denco was acting as an independent contractor on the occasion in question; that the reasonable and necessary medical and legal expense incurred by Mrs. Dupree was $650.00; that the sum of $25,000.00 would reasonably compensate Mrs. Dupree for the damages she sustained; and found no exemplary damages should be assessed against Piggly Wiggly.

The plaintiff then moved for judgment regarding defendant, Piggly Wiggly Shop Rite Foods, Inc., contending that by reason of the jury’s answers and as a matter of law, judgment should be entered against Piggly Wiggly for the amount of actual damages of $25,650.00. The trial court entered a Default Judgment against Denco Security Systems for the sum of $50,650.00 (the actual damages plus $25,000.00 exemplary damages), but adjudged that plaintiff should not recover anything from defendant Piggly Wiggly Shop Rite Foods, Inc.

Mrs. Dupree brings forward five points of error on appeal. No complaint has been raised by the appellees concerning the jury’s findings that: Mrs. Dupree did not commit the offense of shoplifting; that she was falsely imprisoned; or to the amount of damages. The primary question on appeal is whether under these facts and circumstances, Piggly Wiggly is responsible for the acts of Denco and its employees.

The appellant contends that the trial court erred in failing to enter judgment for her on the verdict because the defendant-Piggly Wiggly had a “non-delegable duty” to afford Mrs. Dupree a safe place in which to shop, and liability attached to Piggly Wiggly as a matter of law when the duty was breached by the two security guards who were acting in behalf of Piggly Wiggly-

Appellee, Piggly Wiggly, contends that where an employer (Piggly Wiggly) contracts with an agency (Denco) for private police or security service, in order to be liable for the acts of personnel supplied, it is dependent upon a factual determination of the nature of the employment relationship between the employer (Piggly Wiggly) and the agency (Denco) supplying the personnel and the nature of the tort committed. Appellee says in effect that since the jury found that Denco was an independent contractor, Piggly Wiggly is not liable regardless of what the security guards did. The question is whether or not Piggly Wiggly is liable as a matter of law for the tortious conduct of Denco’s employees or agents under the facts.

There are two types of relationships easily recognized in Texas that could exist between Piggly Wiggly and Denco which would cause liability to attach to Piggly Wiggly for the tortious acts of Den-co’s agent or employee. One is that of Master-Servant and the other is Principal-Agent. A master or principal is liable to one falsely imprisoned by the acts of an employee or agent acting within the scope of his employment. If the act of the employee or agent is done within the scope of his authority as an employee or agent and while acting in furtherance of the employer’s or principal’s business, then the employer or principal is liable in damages for the false imprisonment. See Rucker v. Barker, 108 Tex. 280, 192 S.W. 528 (Tex.Sup.1917); Smith v. M System Foods Stores, Inc., 156 Tex. 484, 297 S.W.2d 112 (Tex.Sup.1957); Perkins Bros. Co. v. Anderson, 155 S.W. 556 (Tex.Civ.App.—Dallas 1913, writ ref’d); Magnolia Petroleum Co. v. Guffey, 102 S.W .2d 408 (Tex.Comm’n App.1937, opinion adopted); Alamo Downs, Inc. v. Briggs, 106 S.W.2d 733 (Tex.Civ.App.—San Antonio 1937, writ dism’d); Clement v. Emmons, 170 S.W.2d 610 (Tex.Civ.App.—Waco 1943, writ ref’d w. o. m.); American Insurance Association v. Smith, 439 S.W.2d 418 (Tex. Civ.App.—Texarkana 1969, no writ); Skillern & Sons, Inc. v. Stewart, 379 S.W.2d 687 (Tex.Civ.App.—Fort Worth 1964, writ ref’d n. r. e.); Kroger Company v. Warren, 420 S.W.2d 218 (Tex.Civ.App.—Houston [1st Dist.] 1967, no writ); Annot. 25 Tex.Jur.2d False Imprisonment § 28; 92 A.L.R.2d 15 (1963); 38 A.L.R.3rd 1332 § 3 (1970); 57 C.J.S. Master and Servant §§ 561—575; 1A C.J.S. Agency §§ 254-261; 35 C.J.S. False Imprisonment §§ 39-40a. See also Restatement of Agency 2nd § 245.

Under the rule of the' aforesaid cases, in order to cause liability to attach to Piggly Wiggly for the tortious acts of the two guards, it would be incumbent upon a plaintiff to establish that: 1) the relationship between Piggly Wiggly and the two security guards was that of either master-servant or principal-agent; 2) that the servant or agent actually caused or participated in the illegal restraint; and 3) that he acted within the scope of employment or authority either implied or express; or 4) that the act was ratified by the master or principal. In the case at bar, the jury found that the two security guards were not acting as employees of Piggly Wiggly but were employees of Denco and that Denco was acting as an independent contractor.

This brings us to appellant’s main contention which presents a more difficult problem. That is, even though the jury found that Denco was an independent contractor, such relationship will not relieve Piggly Wiggly from liability because Piggly Wiggly had a “non-delegable” duty to afford Mrs. Dupree a safe place in which to shop. As a consequence, liability attached as a matter of law when such duty was breached by the acts of the security guards who were acting on behalf of Piggly Wiggly from the outset.

We have found no Texas case which has had before it the exact question of whether or not the “duty” owed by a business establishment seeking to protect its property from shoplifters is “non-delegable” or “nonassignable” under circumstances where a store owner attempts to insulate itself from such responsibility to an innocent victim of a false arrest or false imprisonment by a security guard of an independent contractor employed for such purpose.

In view of the absence of Texas case law on this subject, we look to the numerous out-of-state cases relating to the liability of an employer for acts of security guards who are employees of an independent contractor. Many of such cases can be found in 38 A.L.R.3rd 1332. Under Section 5 of this article entitled “non-delegable duty of hirer”, there are two exceptions prevalent to the general overall principal, that an employer of an independent contractor is not liable for the negligent acts committed by such contractor or his employees.

Under one exception, it is generally recognized, (Texas included), that where the work to be performed is “inherently dangerous”, duties commensurate therewith cannot be delegated to an independent contractor so as to relieve the delegator of liability. See Sun Pipe Line Co., Inc. v. Kirkpatrick, 514 S.W.2d 789 (Tex.Civ.App.—Beaumont 1974, writ ref’d n. r. e.); Cage v. Creed, 308 S.W .2d 78 (Tex.Civ.App.— Waco 1957, no writ); Olson v. B. W. Merchandise, Inc., 388 S.W.2d 737 (Tex.Civ.App. —Austin 1965, no writ.); Gragg v. Allen, 481 S.W.2d 452 (Tex.Civ.App.—Waco 1972, writ dism’d); Cameron Mill & Elevator Co. v. Anderson, 98 Tex. 156, 81 S.W. 282 (Tex. Sup.1904). See also 30 Tex.Jur.2d Independent Contractors § 28, p. 516; 41 Am.Jur.2d Independent Contractors § 41, p. 805; 38 A.L.R.3rd 1332 § 5(b); Restatement 2nd Torts § 427.

The first aspect of the question presented is, whether the task of guarding one’s property from possible shoplifters by security guards is of such an inherently dangerous character, that such work constitutes a dangerous non-delegable duty of the owner. The theory upon which this liability is based is that a person who engages a contractor to do work of an inherently dangerous character, remains subject to a duty, (an absolute, non-delegable duty) to see that it is performed with that degree of care which is appropriate to the circumstances. 41 Am.Jur.2d Independent Contractors, § 41. Liability of the employer depends upon his antecedent knowledge of the danger inherent in the work or in a finding that a reasonable prudent man (or corporation) should in the exercise of due diligence, have known of such dangerous work. See Restatement 2nd Torts § 427 and 427A. The question of what type work is considered inherently dangerous so as to impose liability upon an employer, is not always readily soluble. It usually is dependent on the facts of each particular case. For instance, it has been held that the protection of one’s property with firearms does not, in and of itself, constitute an inherently dangerous activity. This type of duty, can in some instances, be delegated to an independent contractor, thereby relieving the hirer of a security agency from liability for acts of ordinary negligence committed by the agency’s personnel. Brien v. 18925 Collins Avenue Corp., 233 So.2d 847 (Fla.D.C.App.1970). See also 38 A.L.R.3rd 1332 § 5(b). The record before us does not readily point out the inherent dangers of the security work. Therefore, under the state of the facts in this case we cannot hold as a matter of law that the work of the security guards in protecting Piggly Wiggly’s property from shoplifters was inherently or intrinsically dangerous. If plaintiff was to prevail upon this theory, (inherently dangerous work), it would have been incumbent upon her to request special issues thereon. Sun Pipe Line Co., Inc. v. Kirkpatrick, 514 S.W.2d 789 (Tex.Civ.App. —Beaumont 1974, writ ref’d n. r. e.). Glens Falls Insurance Co. v. Peters, 386 S.W.2d 529 (Tex.Sup.1965); Rule 279, T.R.C.P. This she did not do.

The other exception is that because of the “personal character” of duties owed to the public by one adopting measures to protect his property, owners and operators of enterprises cannot, by securing special personnel through an independent contractor for the purposes of protecting property, obtain immunity from liability for at least the intentional torts of the protecting agency or its employees. See Adams v. F. W. Woolworth Co., 144 Misc. 27, 257 N.Y.S. 776 (N.Y.C. Sup.Ct.1932); Hendricks v. Leslie Fay, Inc., 273 N.C. 59, 159 S.E.2d 362 (Sup.Ct.1968); Szymanski v. Great Atlantic & Pacific Tea Co., 79 Ohio App. 407, 74 N.E.2d 205 (C.A. 1947); Zentko v. G. M. McKelvey Co., 38 N.E.2d 265 (C.A.1948); Halliburton-Abbott Co. v. Hodge, 172 Okl. 175, 44 P.2d 122 (Sup.Ct.1935); Webbier v. Thoroughbred Racing Protective Bureau, Inc., 254 A.2d 285 (R.I.Sup.Ct.1969); Malvo v. J. C. Penney Company, Inc., 512 P.2d 575 (Alaska Sup.Ct.1973). False imprisonment is an intentional tort.

In Adams v. F. W. Woolworth Co., supra, the leading case, the plaintiff, a customer in the defendant’s store, recovered damages for false arrest. The defendant contended the plaintiff’s arrest was caused by employees of one Lowenthol, (an independent contractor), who had contracted to provide the defendant with detective service. In rejecting this contention, the court said:

“. . . A store owner who places a detective agency on his premises for the purpose of protecting his property by various means, including arrest, should not be immune from responsibility to an innocent victim of a false arrest made by the detective agency, even as an independent contractor . . . customers of Woolworth Company are invited into the store to buy its merchandise, for the profit of Woolworth Company. Can it be said that Woolworth Company can disclaim all duty of protecting them from the tortious acts of detectives brought by it into its own premises for the very purpose, among others, of making arrest of its customers? This is not the case of a contractor doing his work negligently. Where negligence is the sole basis of the liability, the doctrine of respondeat superior has been held inapplicable to independent contracts. Negligence does not enter into the tort of false arrest. The act itself, if not justified under statute . , is tortious, irrespective of negligence. Lowenthol, was brought onto the premises to watch and also to arrest. Immunity from vicarious liability would permit any store keeper to subject his customers to the hazards of an irresponsible detective agency without peril to himself. He would obtain all the benefit of the surveillance and punishment of shoplifters; he would be subject to none of the penalties for unjustified or unlawful arrest of law-abiding citizens. The opportunities for gross injustice afforded by such a doctrine are too manifest to permit its incorporation into the jurisprudence of our state, without compelling reason.”

The weight of the above authorities seems to be that one may not employ or contract with a special agency or detective firm to ferret out the irregularities of its customers or employees and then escape liability for the malicious prosecution or false arrest on the ground that the agency and or its employees are independent contractors. Consideration of public policy requires the necessity for holding a responsible person liable for the acts done by others to its patrons in the prosecution of its business. Such cases adopting this policy have been founded on the principle that he who expects to derive advantage from an act which is done by another for him, must answer for any intentional injury which a third party may sustain from it. We believe that a holding to the contrary immunizes the corporation from the responsibilities imposed by law, thereby permitting it to subject its patrons to the hazards of an irresponsible detective agency while escaping all danger of the legal ramifications adverse to itself.

The undisputed facts before us show that Denco Security Systems was employed by and worked exclusively for Piggly Wiggly Shop Rite Foods, Inc. providing both external and internal security for the various Piggly Wiggly stores in Houston, Texas. When a security problem arose in one of the stores, Piggly Wiggly would contact Denco, inform them of the specific problem, and request that Denco send security guards out to the particular store. When the guards arrived at the particular store to which they were assigned, they would report in to the store manager (which in this case was Mi-chalik) making him aware that they were on the premises. At this time the store manager would either brief the guards on the problem as he believed existed or point out to the guards a customer who he suspected of shoplifting. The guards would then proceed to walk around the store keeping the suspected shoplifter under surveillance until they saw the allegedly illegal conduct occur, at which time an arrest would ensue.

It is clear that Piggly Wiggly provided the place in which these security guards were to work thereby intentionally exposing its customers to the possible tortious conduct of the guards. The jury made several findings, none of which were complained of or attacked by Piggly Wiggly. Those findings are that Mrs. Dupree did not commit the offense of shoplifting; that she was falsely imprisoned; and that Norris or Wilson participated in the false imprisonment. At the time Mrs. Dupree was arrested and taken back into the Piggly Wiggly store, the manager, (Michalik) was fully aware of the situation and, in fact, remained in the back storeroom at least half the time Mrs. Dupree was retained there. It is undisputed that Piggly Wiggly did not make any effort to investigate the propriety of the arrest or detention through its management or through other employee.

There are certain duties that an owner of a store cannot absolve itself from liability by delegating the performance thereof to an independent contractor. Such non-dele-gable duty cases hold the store operator liable for the negligence of the contractor although he himself has done everything that could reasonably be required of him.

We hold that Piggly Wiggly by securing through the guise of an independent contractor, security guards to protect its property by various means, cannot obtain immunity from liability for false imprisonment which such store owner would not be equally entitled to if such owner itself directly selected and paid the agents expressly retaining the power of control and removal. When a store owner undertakes these functions its duties are personal and non-assignable and where the company arranges for and accepts the service, it will not be permitted to say that the relationship of master and servant as far as responsibility is concerned, does not exist. Negligence does not enter into the tort of false imprisonment. The act itself is tortious irrespective of negligence. The appellant’s second point of error is sustained.

The appellee, Piggly Wiggly Shop Rite Foods, Inc., by cross-point, contends that the jurisdiction of this Court has not been invoked as to certain of appellant’s points of error, (Number two above not involved), because appellant’s motion for new trial was not filed in time to preserve these points.

On April 25, 1975, the trial court entered its original judgment whereby the plaintiff should recover by default from Deneo Security Systems, the sum of $50,000.00. ($25,000.00 actual and $25,000.00 punitive damages). On May 7, 1975, (12 days later) the plaintiff filed an instrument designated “Plaintiff’s Renewal Motion for Judgment And in the Alternative, Motion for New Trial”. It is here noted that: A motion for new trial when required, shall be filed within ten (10) days after the judgment or order complained of is rendered. Rule 329b(l) T.R.C.P.

Thereafter on May 27, 1975, plaintiff filed her “Application for judgment nunc pro tunc” requesting the trial court to add to the $50,000.00 judgment, damages recovered against Denco Security Systems in the amount of $650.00. This being the damages for legal and medical expenses incurred by plaintiff which was inadvertently omitted from the original judgment. The trial court then entered a judgment nunc pro tunc and included the $650.00 as damages recoverable by plaintiff (as found by the jury), from Denco Security Systems on that date (May 27, 1975).

Piggly Wiggly contends, that since appellant’s motion for new trial (filed May 7, 1975) was not filed within ten (10) days from date of the original judgment (April 25, 1975), the errors complained of in the motion for new trial cannot be considered by this Court. Citing Rule 5 T.R.C.P.

Thirty days from the date the original judgment was entered fell on May 25, 1975, which was a Sunday. The next day, Monday, May 26, 1975, was a legal holiday (Memorial Day). The next day, not a Saturday or Sunday or a legal holiday, was May 27, 1975, the date the nunc pro tunc judgment was entered. Therefore, the trial court’s action was within the thirty day period in which the trial court has absolute control over its judgment to make corrections for clerical as well as judicial errors. Rules 4 and 329b, T.R.C.P.

Since the trial court could not act on Sunday and the next day was a legal holiday, the court had jurisdiction, (under rule 4) to act on the following day. Therefore, appellant’s motion for new trial was timely filed, it dating from the entry of the judgment nunc pro tunc. See Rule 306c “Prematurely filed Motions for New Trial” and see Rule 4, 329b, T.R.C.P. Appellee’s cross-point is overruled.

Although Plaintiff obtained a default judgment against Denco Security Systems which company does not appear as appellee, the only other appellee on appeal besides Piggly Wiggly is R. B. Denson. The appellant in her fifth point of error complains of the action of the trial court in dismissing R. B. Denson from the subject lawsuit. The record shows that plaintiff’s cause of action arose on October 23, 1969. On June 26, 1970, the plaintiff filed her original petition naming Denco Security Systems as one of the defendants. On October 29, 1973, the plaintiff named R. B. Denson individually as a defendant for the first time in her third amended original petition. In said pleading, no relationship or connection between Denson and Denco Security Systems was alleged. In fact, in plaintiff’s fourth amended petition on which she went to trial, plaintiff alleges that Denco Security Systems is a corporation doing business in the State of Texas engaged in the security business. The appellant admits that Den-son was not made a party individually to the suit until well over four years after her cause of action occurred. Denson answered alleging that plaintiff’s suit was barred by both the two and four year Statute of Limitations. Articles 5526, 5529, Tex.Rev.Civ. Stat.Ann.

On the date of trial (January 13, 1975), prior to the empaneling of the jury, Denson filed a motion for instructed verdict contending that the plaintiff’s cause of action insofar as he was concerned, was commenced more than four years after plaintiff’s cause of action arose. The trial court granted Denson’s motion for instructed verdict and dismissed him from the suit.

The appellant contends that Denson has always been a party to the lawsuit because the testimony was undisputed that Denco Security Systems was the trade or assumed business name of R. B. Denson, an individual, citing Rule 28, T.R.C.P., as its authority. The Rule says:

“Any partnership, unincorporated association, private corporation, or individual doing business under an assumed name may sue or be sued in its partnership, assumed or common name for the purpose of enforcing for or against it a substantive right, but on motion by any party or on the court’s own motion the true name may be substituted.”

In plaintiff’s trial petition, there is no indication as to what capacity Denson was being sued, nor do the pleadings allege that Denson is an agent, officer or principal of Denco Security Systems. At the time the trial court granted Denson’s motion for instructed verdict, there was no pleadings or evidence before the court showing that Denco Security Systems was a trade name or assumed name of R. B. Denson. At the end of the testimony, appellant’s attorney attempted to introduce into evidence certain interrogatories propounded to Denco Security Systems showing that Denco Security Systems was the trade name or assumed name of R. B. Denson. However, the trial court stated “that the interrogatories should not be read to the jury and should not be accepted into evidence because they are not relevant to any question that will come before the jury”, to which neither party objected. These interrogatories do not appear in the record before us.

Since plaintiff has failed by both pleading and proof, to show the relation between Denco Security Systems and R. B. Denson, the trial court was correct in directing a verdict for Denson. Appellant’s fifth point of error is overruled.

Because of the disposition hereinafter made, it is not necessary for us to consider appellant’s other points of error. The Jury found that Plaintiff had been damaged in the amount of $25,650.00. Those damages are here rendered against Piggly Wiggly Shop Rite Foods, Inc. The judgment of the trial court is accordingly reversed as to appellee Piggly Wiggly Shop Rite Foods, Inc. and judgment is here rendered for the Plaintiffs Margaret Dupree and husband Charles Dupree, Jr. in the amount of $25,-650.00 with interest from date of judgment and for costs. The judgment as to appellee R. B. Denson is affirmed.

REVERSED AND RENDERED IN PART AND AFFIRMED IN PART.

OPINION ON MOTION FOR REHEARING

Appellee Piggly Wiggly Shop Rite Foods, Inc. in its fourth and fifth assignments of error in its motion for rehearing complains that this Court erred in considering appellant’s second point of error and rendering judgment thereon because said alleged error by the trial court was not properly perfected for consideration by this Court.

Before an appellant is entitled to rendition by a Court of Civil Appeals, he must first present the error to the trial court in the form of a proper motion to allow the trial court to correct its error. In order to preserve the right to rendition of judgment, the proper predicate must be made by one or more prejudgment motions or objections. A motion to disregard a jury finding under Rule 301, T.R.C.P. is one way to preserve such a point of error as we have before us. See Calvert, No Evidence and Insufficient Evidence, 38 T.L.R. 359 (1900).

It is Piggly Wiggly’s contention that neither appellant’s motion for judgment or renewed motion for judgment are sufficient to provide the necessary predicate for rendition of judgment. The objective of the rules of civil procedure is to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law. To this end; the rules shall be given a liberal construction. Rule 1, Objective of Rules, T.R.C.P.

If the motion for judgment was sufficient to call the trial court’s attention to the question raised and was sufficient to direct the court’s attention to the matter complained of, the appellate court can rule on the point of error where the substance of the error complained of can be determined. Compare Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (Tex.Sup.1943). We hold that the appellant’s motion for judgment was sufficient to disregard certain jury findings and for the trial court to have rendered judgment for the plaintiff and against Piggly Wiggly. In Myers v. Crenshaw, 134 Tex. 500, 137 S.W.2d 7 (Tex. Comm’n App.1940, opinion adopted), the court said that the substance of a motion is not to be disregarded because of an imperfection in form.

There are three (3) necessary elements which must be included in a motion to disregard findings. The motion must: 1) designate the finding and/or findings which the court is called upon to disregard; 2) specify the reason why the finding or findings should be disregarded; 3) contain a request that judgment be entered upon the remaining findings after the specific findings have been set aside or disregarded. Hines v. Parks, 128 Tex. 289, 96 S.W.2d 970 (Tex.Comm’n App.—1936, opinion adopted); Employers Mutual Casualty Company v. Poorman, 428 S.W.2d 698 (Tex.Civ.App.—San Antonio 1968, writ ref’d n. r. e.).

In light of this test, we examined appellant’s renewed motions for judgment and determined that they were sufficient to direct the trial court’s attention and our attention to the matter complained of, i. e., to disregard certain jury findings. The renewed motion for judgment clearly sets out the reason the findings should be disregarded. The appellant contended that the findings were against the law as it concerned this case. The motion contained a request that judgment be entered in appellant’s favor based on the remaining findings. Therefore, the second and third elements of the motion were clearly present. The only real question concerns the first element that the motion designate the findings to be disregarded. Appellant’s renewed motion for judgment requests the trial court to grant judgment against Piggly Wiggly based on the jury answers to Special Issue Numbers 1, 2, 3, 13, 14, and 15. In effect, to disregard all the rest of the findings.

This is similar to the fact situation in Myers v. Crenshaw, supra. In the Myers case, the motion in question asked the court to disregard all or any special issues except No. 10. The appellant in the Myers case was contending that this motion was insufficient under Art. 2211 (now Rule 301) for the court to set aside Special Issue Number 9 because said issue was not specifically designated to be set aside in the motion. The court rejected the appellant’s contention and held that the motion was sufficient for the trial court to set aside all issues except No. 10. This same effect was given by us to the appellant’s renewed motion for judgment in the case at bar. By asking the court to render judgment based on Special Issues 1, 2, 3, 13, 14 and 15, the appellant, rather unartfully but still effectively, requested that the trial court disregard the remaining issues.

The appellant’s point of error that the trial court erred in failing to enter judgment for appellant based on the verdict as a matter of law, was a properly perfected point of error and as such, with the argument under the point and the appel-lee’s answer to such argument, empowered this Court to render that judgment which the trial court should have entered. Rule 434, T.R.C.P. Martin v. Commercial Standard Fire and Marine Insurance Company, 505 S.W.2d 799 (Tex.Sup.1974); Perez v. Los Fresnos State Bank, 512 S.W.2d 796 (Tex.Civ.App.—Corpus Christi 1974, no writ); Yanowski v. Fort Worth Transit Co., 204 S.W.2d 1001 (Tex.Civ.App.—Fort Worth 1947, writ ref’d n.r.e.); Lehrer v. Wegenhoft, 203 S.W.2d 245 (Tex.Civ.App.—Galveston 1947, writ ref’d n.r.e.); Comer v. Brown, 285 S.W. 307 (Tex.Comm’n App.— 1926, jdgmt. adopted).

We have carefully reconsidered all of ap-pellee’s points on rehearing. Its motion for rehearing is OVERRULED.

      . For a list of work held inherently dangerous and not inherently dangerous, see 57 C.J.S. Master-Servant § 590, pp. 362-363.


source: Caselaw Access Project

author: RALEIGH BROWN, Justice. WALTER, Justice

license: Public Domain

text:
    J. M. NAFTALIS et al., Appellants, v. Robert E. RANKIN et al., Appellees.
    No. 4938.
    Court of Civil Appeals of Texas, Eastland.
    Sept. 16, 1976.
    Rehearing Denied Nov. 10, 1976.

      John P. Camp, Fillmore, Camp & Lee, Fort Worth, for appellants.
    Frank L. Jennings, Jennings, Montgomery & Dies, Graham, for appellees.
   RALEIGH BROWN, Justice.

Dr. J. M. Naftalis, Dr. R. D. Martin, Gene S. Friedman, and E. F. Lisle sued Robert E. Rankin and the Permian Corporation to (1) impress a constructive trust upon an undivided three-fourths interest in an oil and gas lease upon land situated in Knox County; (2) recover the net income received by Rankin attributable to the undivided three-fourths interest; and (3) recover from the pipeline company, the Permian Corporation, the money held in suspense.

Plaintiffs alleged that they and defendant, Rankin, became partners in a mining partnership in the Melton lease; that Rankin represented to them that he would obtain an adjoining lease, the Orsak lease, for himself and the plaintiffs at a time when they were partners; that Rankin took the Orsak lease on August 21,1974, in his name to the exclusion of the plaintiffs; that Rankin, as a Fiduciary, breached a duty to the plaintiffs in doing so, and, therefore, a constructive trust should be imposed upon the Orsak lease in favor of plaintiffs.

Rankin denied the existence of a partnership or that he had a fiduciary relationship with the plaintiffs.

After a jury verdict, judgment was entered against the plaintiffs and in favor of Rankin and the Permian Corporation. Dr. Naftalis, Dr. Martin, Friedman and Lisle appeal. We reverse and render in part and reverse and remand in part.

Appellants argue the trial court erred in overruling their motion for judgment and sustaining Rankin’s. It is their contention the evidence established and the jury found a breach of fiduciary duty, and that such findings justified the imposition of a constructive trust on the Orsak lease.

In support of this argument, appellants point to the answers to special issues one and three, which, are:

“SPECIAL ISSUE NO. 1.
Do you find from a preponderance of the evidence that in the month of August, 1974, Richard D. Martin, Jerome M. Naf-talis, Gene S. Friedman, Tooker Lisle, and Robert Rankin were jointly engaged in the business of operating the Melton lease, sharing income and expenses according to their ownership interests in such lease?
Answer ‘We do,’ or ‘We do not.’
ANSWER: We do
“SPECIAL ISSUE NO. 3.
Do you find from a preponderance of the evidence that between the time drilling commenced on the Melton lease and August 21, 1974, Robert Rankin represented to any of the plaintiffs that he, Robert Rankin, would obtain the Orsak lease for himself and the plaintiffs?
Answer ‘We do’ or ‘We do not.’
ANSWER: We do

Rankin testified that he was a petroleum engineer and had approximately twenty years experience in the oil business. He met Dr. Naftalis and after extended negotiations, the parties entered into a contract to drill one well on the Melton lease. After completion of the well, which was a producer, assignments of an undivided one-sixth interest was made to Friedman, Dr. Martin, and Dr. Naftalis. Rankin retained one-quarter interest and one-quarter was assigned to Lisle. A second well was drilled on the Melton lease and each of the owners contributed their proportional part of the costs. Each shared income and expenses in accordance with his respective interest. This method of operation continued with the income being divided in accordance with the interest owned by each in the Melton lease and the expenses being paid in accordance with the same ratio. Rankin operated the lease, preparing invoices, billing the interest owners, and making bank deposits. From this account, he drew a check for $200 a month as compensation for managing the lease. The parties met from time to time to consider the operation of the Melton lease.

On May 21, 1974, the second well on the Melton lease was completed, at which time a joint bank account with everyone having authority to write checks on it was established. The account was called the “Melton Lease Account”.

Rankin admitted that one of the maps he used to sell the deal to plaintiffs had circled in red a location of the Orsak lease and had printed next to it the word, “location”. Dr. Naftalis testified that after the second well was drilled on the Melton lease, plaintiffs had discussions with Rankin concerning the acquisition of the Orsak lease, and Rankin agreed he would get the Orsak lease for the group when he found Mr. Orsak was in the right mood. Such discussions continued after August 21, 1974, the date Rankin obtained the Orsak lease in his name.

Lisle confirmed the testimony of Dr. Naf-talis that Rankin told the group that he would obtain the Orsak lease for all the parties, and in their names.

Each of the other plaintiffs testified that after August 21, 1974, when asked about the Orsak lease, Rankin would tell them that Mr. Orsak was difficult to deal with, for them to leave Orsak alone and that he, Rankin, would get the lease for them.

We must first determine whether a fiduciary relation existed.

The parties jointly considered and discussed the proper development of the Melton lease. Rankin admitted that the parties were jointly engaged in the production of oil from the Melton lease, sharing income and expenses in accordance with their ownership interests. The jury confirmed such facts in answer to the first special issue.

The court in Holcombe v. Lorino, 124 Tex. 446, 79 S.W.2d 307 (1935), stated:

“. . . The general rule with respect to joint adventures is stated in 33 C.J. p. 841, as follows:
‘A joint adventure has been aptly defined as a “special combination of two or more persons, where in some specific venture a profit is jointly sought without any actual partnership or corporate designation.” ’
“The rule is also defined in 25 Texas Jurisprudence, pp. 159 and 160, in the following language: ‘It is constituted by a special combination of persons in the nature of a partnership — more particularly, a limited or special partnership — engaged in the joint prosecution of a particular transaction for mutual benefit of profit.’ ”

The Court in Johnson v. Peckham, 132 Tex. 148, 120 S.W.2d 786 (1938), while considering fiduciary obligations said:

“. . . no distinction can be drawn between the duties owing by partners and those owing by joint adventurers. Thompson et al. v. Duncan, Tex.Com. App., 44 S.W.2d 904; Paddock v. Bray, 40 Tex.Civ.App. 226, 88 S.W. 419; Griffin v. Reilly et al., Tex.Civ.App., 275 S.W. 242; Meinhard v. Salmon [249 N.Y. 458, 164 N.E. 545], supra.”

In Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256 (1951), the court stated:

“ ‘The relationship between joint adventurers, like that existing between partners, is fiduciary in character, and imposes upon all the participants the obligation of loyalty to the joint concern and of the utmost good faith, fairness, and honesty in their dealings with each other with respect to matters pertaining to the enterprise. This is especially true of those to whom the conduct of the transaction, or the property involved therein, is intrusted. Such a party will be regarded as a trustee and will not be permitted to enjoy any unfair advantage because of his possession or control of the joint property. The mere fact that his is intrusted with the rights of his coadventurers imposes on him the duty of guarding their rights equally with his own, and he. is required to account strictly to his coad-venturers; and if he is recreant to his trust, any rights they may be denied are recoverable.’ 30 Am.Jur. ‘Joint Adventurers,’ p. 695, Sec. 34.
‘Persons engaged in a joint adventure, or about to assume such relationship, owe to each other the utmost good faith and the most scrupulous honesty. Lind v. Webber, 36 Nev. 623, 134 P. 461, 135 P. 139, 141 P. 458, 50 L.R.A.,N.S., 1046, Ann. Cas.1916A, 1202.’”

We hold special issue one established that the parties were engaged in a joint venture and, therefore, a fiduciary relationship existed as to the Melton lease. Fitz-Gerald v. Hull, supra; Maykus v. First City Realty and Financial Corporation, 518 S.W.2d 887 (Tex.Civ.App.-Dallas 1974, no writ).

Rankin argues that if in fact a fiduciary relationship did exist as to the Melton lease, such relationship terminated because of disagreements and controversies that arose between the parties during the drilling of the two wells on the lease. We disagree.

The court in Johnson v. Peckham, supra, said:

“When persons enter into fiduciary relations each consents, as a matter of law, to have his conduct towards the other measured by the standards of the finer loyalties exacted by courts of equity. That is a sound rule and should not be whittled down by exceptions. If the existence of strained relations should be suffered to work an exception, then a designing fiduciary could easily bring about such relations to set the stage for a sharp bargain. . ."

Although strained relations may have existed between the parties, the joint venture had not been terminated prior to August 21, 1974. Therefore, the fiduciary relationship existed at the time Rankin obtained the Orsak lease in his name.

The jury found in special issue three Rankin agreed to obtain the Orsak lease for himself and the plaintiffs after drilling began on the Melton lease and before he obtained the Orsak lease. Appellants urge this finding together with the existence of the fiduciary relationship creates in their favor a constructive trust, and thus avoids the application of the Statute of Frauds, Section 26.01, Tex.Bus. & Com.Code, Ann., and the Texas Trust Act, Art. 7425b-7. We agree.

Our courts apply the rule that for a constructive trust to arise there must be a fiduciary relationship before and apart from the agreement made the basis of the suit. Meadows v. Bierschwale, 516 S.W.2d 125 (Tex.1974); Consolidated Gas & Equipment Co. v. Thompson, 405 S.W.2d 333 (Tex. 1966); and Tyra v. Woodson, 495 S.W.2d 211 (Tex.1973).

The Texas Trust Act does not prohibit the enforcement of a constructive trust, Fitz-Gerald v. Hull, supra; Omohundro v. Matthews, 161 Tex. 367, 341 S.W.2d 401 (1960), nor is the imposition of a constructive trust a violation of the Statute of Frauds. Omohundro v. Matthews, supra; Dorbandt v. Bailey, 453 S.W.2d 205 (Tex. Civ.App.-Tyler 1970, writ ref. n. r. e.); Burket v. Delaware Drilling Corporation, 435 S.W.2d 307 (Tex.Civ.App.-El Paso 1968, writ dism’d).

Rankin argues that the finding of the jury to special issue three is at most only a finding there was an oral agreement to create an express trust or to convey an interest in real property. He cites Consolidated Gas and Equipment Company of America v. Thompson, supra; Tyra v. Woodson, supra; Rogers v. Winn, 329 S.W.2d 319 (Tex.Civ.App.-San Antonio 1959, writ ref. n. r. e.); and Karnei v. Davis, 409 S.W.2d 439 (Tex.Civ.App.-Corpus Christi 1966, no writ), for the proposition that such oral agreement violates the Statute of Frauds and the Texas Trust Act. The cited cases are distinguishable because in those cases there was no fiduciary relationship before and apart from the agreement made the basis of the suit.

Smith v. Bolin, 261 S.W.2d 352 (Tex.Civ. App.-Fort Worth 1953, affirmed in part and reversed and remanded in part), 153 Tex. 486, 271 S.W.2d 93 (1954), and 294 S.W.2d 280 (Tex.Civ.App.-Fort Worth 1956, writ ref. n. r. e.), cited by Rankin is also distinguishable from the case at bar. In Smith a fiduciary relationship may have existed but there was no agreement to acquire additional properties for the benefit of all.

We hold the jury findings establish a fiduciary relationship (the joint venture) before and apart from the agreement (to obtain the Orsak lease for parties) made the basis of this suit, and thus justify the imposition of a constructive trust on the Orsak lease. Neither the Statute of Frauds nor the Texas Trust Act present an obstacle to its imposition.

Rankin argues the jury’s answers to the following special issues defeat appellants’ right of recovery.

“SPECIAL ISSUE NO. 4
Do you find from a preponderance of the evidence that the relationship on August 21, 1974, between plaintiffs and defendant was such that plaintiffs were justified in believing that the defendant would act in the mutual interest of the plaintiffs and the defendant?
Answer: ‘We do’ or ‘We do not.’
ANSWER: ‘We do not.’
SPECIAL ISSUE NO. 5
Do you find from a preponderance of the evidence that defendant in acquiring the Orsak Lease for himself amounted to an abuse of the relationship inquired about in Special Issue No. 4?
Answer: ‘We do,’ or ‘We do not.’
ANSWER: ‘We do not.’
SPECIAL ISSUE NO. 6
Do you find from a preponderance of the evidence that defendant’s failure to inform the following plaintiffs before August 21, 1974, of his intention to acquire the Orsak Lease for himself amounted to an abuse of the relationship inquired about in Special Issue No. 4? Answer: ‘We do,’ or ‘We do not,’ by the name of the following plaintiffs:
RICHARD C. MARTIN: ‘We do not.’
JEROME M. NAFTALIS: ‘We do not.’
GENE S. FRIEDMAN: ‘We do not.’
SPECIAL ISSUE NO. 8
Do you find from a preponderance of the evidence that defendant’s failure, if any, to inform Tooker Lisle before August 21, 1974, of his intention to acquire the Orsak Lease for himself amounted to an abuse of the relationship inquired about in Special Issue No. 4?
Answer: ‘We do,’ or ‘We do not.’
ANSWER: ‘We do not.’
SPECIAL ISSUE NO. 9
Do you find from a preponderance of the evidence that the acquisition of the Orsak Lease by Robert Rankin was occasioned solely by information obtained in the drilling of the two wells on the Melton?
Answer: ‘We do,’ or ‘We do not.’
ANSWER: ‘We do not.’ ”

Appellants urge the issues are not material and do not defeat their right of recovery. They argue the negative responses are not findings that no fiduciary relationship existed between the parties and contend that once the fiduciary relationship is established, it cannot be impeached or destroyed, because a jury failed to find that appellants were justified in believing that Rankin would act in the mutual benefit of the parties or that Rankin’s acts amounted to an abuse of the relationship.

The responses to special issues, 4, 5, 6, 8, and 9 cannot be interpreted as findings that the fiduciary relationship did not exist.

As stated by the court in C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191 (Tex. 1966):

“The Court of Civil Appeals treated the negative answer to issue 15 as a finding by the jury that the plaintiff did not drive his pickup from the shoulder of the highway onto the highway immediately prior to the collision. That is a misinterpretation of the issue and the answer. Properly interpreted, the answer is nothing more than a failure or refusal by the jury to find from a preponderance of the evidence that the plaintiff did drive his pickup from the shoulder onto the highway immediately prior to the collision, and means, in law, that the defendant failed to carry its burden of proving the fact. See Usher v. Gwynn, Tex.Civ.App., 375 S.W.2d 564, 565, holding approved, Ashley v. Usher, Tex.Sup., 384 S.W.2d 696, 697 (1964).”

In Johnson v. Peckham, supra, the defendant contended that although he and the plaintiffs had been partners during negotiations and the sale made the basis of the lawsuit, prior dissension had led to strained relations which in effect destroyed the fiduciary relationship between them. He sought to submit issues to establish the absence of the fiduciary relationship. The Supreme Court affirmed the trial court’s refusal to submit the issues saying, as we have previously quoted in part:

“When persons enter into fiduciary relations each consents, as a matter of law, to have his conduct towards the other measured by the standards of the finer loyalties exacted by courts of equity. That is a sound rule and should not be whittled down by exceptions. If the existence of strained relations should be suffered to work an exception, then a designing fiduciary could easily bring about such relations to set the stage for a sharp bargain.
The absolute duty to disclose was upon Peckham. The parties were not dealing with each other at arm’s length, and the issue of whether Johnson relied upon Peckham to discharge his high duty was not a material inquiry. The trial court, we conclude, did not err in refusing to submit to the jury the special issues requested by defendant in error Peckham.” (Emphasis added)

Whether appellants were justified in believing that Rankin would act in their mutual interest or whether the jury failed to find that Rankin’s actions amounted to an abuse of the relationship between the parties is not material in view of the existing fiduciary relationship. Rankin had the burden of establishing the “fairness” of the transaction to the appellants. Allen v. Great Liberty Life Insurance Company, 522 S.W.2d 247 (Tex.Civ.App.-Eastland 1975, writ ref. n. r. e.); see also, Stephens County Museum, Inc. v. Swenson, 517 S.W.2d 257 (Tex.1974).

We hold the responses to these issues furnish no basis for judgment. They neither destroy the established fiduciary relationship nor establish that Rankin discharged his duty as a fiduciary.

Rankin pled and the jury found estoppel by silence against the appellants. The court in Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952) said:

‘In order to constitute an equitable estoppel or estoppel in pais there must exist a false representation or concealment of material facts; it must have been made with knowledge, actual or constructive, of the facts; the party to whom it was made must have been without knowledge or the means of knowledge of the real facts; it must have been made with the intention that it should be acted on; and the party to whom it was made must have relied on or acted on it to this prejudice.’ 31 C.J.S., Estoppel, § 67, page 254. Also, ‘Before an estoppel can be raised there must be certainty to every intent, and the facts alleged to constitute it are not to be taken by argument or inference. Nothing can be supplied by intendment . . . ’”

In the early case of Burleson v. Burleson, 28 Tex. 383 (1866), the rule was stated:

“The effect of an estoppel in pais is to prevent the assertion of an unequivocal right, or preclude a good defense, and justice demands that it should not be enforced unless substantiated in every particular. (12 Barb., 1287.) The ground upon which the estoppel proceeds is fraud, actual or constructive, on the part of the person sought to be estopped. What will amount to the suggestion of a falsehood, or the suppression of the truth, may be difficult to determine in all cases; but some turpitude, some inexcusable wrong, that constituted the direct motive, or induced the outlay or purchase, is necessary to give silence or acquiescence the force of an estoppel in pais. Hence, the ignorance of the true state of the title on the part of the purchaser must concur with willful misrepresentation or concealment on the part of the person estopped.” “The true doctrine is well expressed in Story’s Eq., § 386. In order to apply an. estoppel, it is indispensable that the party standing by and concealing his rights should be fully apprized of them, and should, by his conduct or gross neglect, encourage or influence the purchaser; for if he be wholly ignorant of his rights, or the purchaser know them, or if his acts, silence, or negligence do not mislead or in any manner affect the transaction, there can be no just inference of actual or constructive fraud on his part. Rights can be lost or forfeited only by such conduct as would make it fraudulent and against conscience to assert them.”

It is stated in Barfield v. Howard M. Smith Company of Amarillo, 426 S.W.2d 834 (Tex.1968) as follows:

“There can be no estoppel when the party claiming the estoppel ‘conducts himself with careless indifference to means of information reasonably at hand or ignores highly suspicious circumstances which should warn him of danger or loss.’ 31 C.J.S. Estoppel § 71b, page 435; City of Tyler v. Bruck (Tex.Civ.App., 1954), 267 S.W.2d 429, writ ref. n. r. e.”

Appellants urge that there is no evidence to support essential elements of the defensive theory. We agree.

The court in Concord Oil Company v. Aleo Oil and Gas Corporation, 387 S.W.2d 635 (Tex.1965), included the following:

“ ‘The burden of proving an estoppel, and the essential elements thereof, is on the party asserting it.’ 31 C.J.S. Estoppel § 160a, p. 765.
‘Estoppel is ordinarily regarded as affirmative matter; and under the rule that he who has the affirmative of the issue has the burden of proof, a party who claims, asserts, or invokes, or who alleges and relies on, an estoppel has the burden of establishing it, or all of the facts or elements necessary to constitute it, or the grounds on which it rests, and the failure to prove any one or more of the elements constituting an estoppel has been declared to be fatal. The opponent of the party relying on an estoppel is not required to show the absence of any of its component elements.’ Idem pp. 765-767.”

The court in Barfield v. Howard M. Smith Company of Amarillo, supra, said:

“Silence can be the basis for an estoppel, where there is a duty to speak. Burnett v. Atteberry, 105 Tex. 119, 145 S.W. 582 (1912). The burden of proving an estop-pel and the essential elements thereof is on the party asserting it and the failure to prove any one or more of the elements is fatal. Concord Oil Co. v. Alco Oil & Gas Corp., Tex.Sup., 387 S.W.2d 635 (1965); Grinnan v. Dean, 62 Tex. 218 (1884).”
“A party claiming an estoppel must have used due diligence to ascertain the truth of the matters upon which he relies in acting to his detriment. Champlin Oil & Refining Co. v. Chastain, Tex.Sup., 403 S.W.2d 376 (1965); Houston & T. C. R. Co. v. Paris Milling Co. (Tex.Civ.App., 1922), 240 S.W. 638, no writ. One of the requirements of estoppel is that the party claiming the estoppel was without knowledge, or the means of acquiring knowledge, of the facts which the party to be estopped is alleged to have represented by his acts, conduct or silence. Richey v. Miller, 142 Tex. 274, 177 S.W.2d 255 (1944); Page v. Arnim, 29 Tex. 53 (1867); Hunt v. W. O. W. Life Ins. Soc. (Tex.Civ. App., 1941), 153 S.W.2d 857, writ refused. ‘[Wjhere the real facts were known to a person or were open for his convenient ascertainment, he was not justified in relying on representation pertaining thereto and he cannot effectively say that he was misled or deceived by such representations.’ 31 C.J.S. Estoppel § 71b, page 433. See also Grinnan v. Dean, 62 Tex. 218 (1884); Logan v. Aiken (Tex.Civ. App., 1939), 123 S.W.2d 401, writ dismissed, judgment correct.”

There is no showing of any fraud or misrepresentation by appellants which would prevent Rankin from knowing the legal effect of his obtaining the Orsak lease during the existence of the fiduciary relationship between the parties. Rankin could have made inquiry of appellants as to their acquiescence in his individually obtaining the Orsak lease. The record fails to show any act of appellants which prevented Rankin from knowing the truth about their acquiescence.

Rankin, having the burden of showing that the essential elements of estoppel are present must show that any representation or concealment of a material fact by appellants was without his knowledge or the means of acquiring knowledge of such fact. Rankin has failed to make such a showing.

The trial court erred in sustaining Rankin’s motion to disregard special issues one and three and the jury’s findings in response thereto, and failing to enter a judgment imposing a constructive trust in favor of appellants to the extent of an undivided three-fourths interest in the Orsak lease.

The judgment is reversed and rendered that Naftalis, Martin, Friedman and Lisle have title to an undivided three-fourths interest in the Orsak lease. Appellants’ proportionate ownership in the Orsak lease shall be the same as their respective ownership in the Melton lease.

By cross-point Rankin urges that if appellants be awarded an interest in the Orsak lease, their recovery should be reduced by their proportionate share of the costs incurred by Rankin in acquiring, drilling, developing, equipping, operating and producing such lease. Appellants in their pleadings expressed their willingness to pay such sums as may be determined by the evidence to be equitable. We are unable to determine those costs with exactness from the record. We, therefore, reverse and remand for determination the proportionate share of costs to be borne by Naftalis, Martin, Friedman and Lisle. Rule 434, T.R. C.P.; National Life and Accident Insurance Company v. Blagg, 438 S.W.2d 905 (Tex. 1969).

The judgment is reversed and rendered in part and is reversed and remanded in part.

ON MOTION FOR REHEARING

WALTER, Justice

(dissenting).

I respectively dissent. Special Issues Number 4, 5, 6, 8 and 9 and the jury’s answers are copied in the majority opinion and reference is made to them.

Plaintiffs pleaded a fiduciary relationship existed between them and the defendant and defendant abused that relationship in acquiring the Orsak Lease for himself.

The answers to the issues referred to constitute a finding defendant did not abuse his relationship with plaintiffs. I would grant the motion for rehearing and affirm the judgment.


author: CLAUDE WILLIAMS, Chief Justice.

text:
    John T. CHAMBERS, Independent Executor of the Estate of Carl N. Chambers, Sr., Deceased, Appellant, v. Peggy (Noblin) CHAMBERS et al., Appellees.
    No. 18997.
    Court of Civil Appeals of Texas, Dallas.
    Sept. 16, 1976.
    Rehearing Denied Oct. 14, 1976.

      Philip R. Russ, William C. Odeneal, Jr., Dallas, for appellant.

      William M. Jones, Dallas, for appellees.
   CLAUDE WILLIAMS, Chief Justice.

Peggy Noblin, Joann Skinner, and Carol Smith brought this action in the Probate Court of Dallas County, Texas, in which they sought annulment and cancellation of an order of the probate court dated September 21, 1970, which admitted to probate an instrument as the last will of Carl N. Chambers, deceased, and appointed John T. Chambers as independent executor of the estate of Carl N. Chambers, deceased. The basis of the suit was that the holographic will of Carl N. Chambers, Sr., deceased, dated February 20, 1963, which had been admitted to probate, had been previously revoked by one or more later holographic wills dated May 8, 1964; December 20, 1964; March 26, 1968; and March 5, 1970. Trial was before the court without a jury. The court entered judgment revoking and setting aside the previous order of September 21, 1970 admitting to probate the will dated February 20, 1963 and holding that such will had been revoked by one or more of the subsequent wills. John T. Chambers, independent executor of the will previously admitted, to probate, appeals from this judgment which requires the decedent’s estate to be administered under the laws of intestate succession. Appellant’s principal contentions are that appellees failed to prove: (1) The subsequent holographic wills contained the handwriting and signature of the decedent; (2) the decedent possessed the necessary testamentary capacity at the time of execution of the wills, and (3) the subsequent wills were executed free from undue influence. Appellant also contends that a will which is not admitted, to probate cannot be used to revoke a prior will. Because we find no merit in any of these contentions, we affirm the judgment.

During the trial, appellees offered each of the four holographic wills bearing dates subsequent to the original will which had been admitted to probate, for the purpose of showing revocation of the prior will pursuant to Tex.Prob.Code Anri. § 63 (Vernon 1956). The four wills disposed of testator’s estate to the appellees with the exception of nominal bequests of $1.00 each to the appellant and his brothers. This disposition is contrary to the probated will written in 1963 which disposes of all the estate to the appellant with the exception of nominal bequests of $1.00 each to appellees and their brothers. The trial court found that each of the four wills offered in evidence was in the handwriting of the decedent, Carl N. Chambers, Sr., and that the signature of each was his signature. The court also found that at the time each of the wills was executed by the decedent he had testamentary capacity, was of sound mind and was able to recognize the objects of his bounty. The court also found that each of the wills was made voluntarily, free from undue influence or duress.

Appellant has limited the scope of his appeal to only that portion of the judgment of the trial court ordering revocation of letters testamentary issued to John T. Chambers as independent executor of the estate of Carl N. Chambers, Sr., deceased. Appellant has limited his points on appeal to “no evidence” and “matter of law” points of error. Consequently, to determine whether the probate court erred in revoking its prior order, we must consider whether there is any evidence of probative value from which the inference may be properly drawn to reasonably support the court’s findings. Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696, 698 (1914); Lindley v. Lindley, 384 S.W.2d 676, 679 (Tex.1964); Hale v. Baker, 397 S.W.2d 937, 938 (Tex.Civ. App.—El Paso 1965, writ ref’d n.r.e.); see In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

We first notice appellant’s contention that a will which has not been filed in time to allow probate may not be used to revoke a prior will thereby requiring the testator’s estate to pass by the laws of intestate succession. This matter was finally heard by the trial court in January 1976 and final judgment rendered on March 3, 1976. September 8, 1974, marked the expiration of four years from the date of the death of the decedent. It was subsequent to the passage of this date that the four holographic wills, dated as aforesaid, were offered by appel-lees during the hearing. At the time these instruments were offered, the trial court received such instruments for the limited purpose of demonstrating revocation of the prior will of the decedent but expressly stated that such wills could not be admitted-for the purpose of probate as provided in Tex.Prob.Code Ann. § 73 (Vernon Supp. 1975).

Tex.Prob.Code Ann. § 63 (Vernon 1955) provides that a written will or any clause thereof shall only be revoked by a subsequent will, codicil or declaration in writing, executed with like ' formality. Three of the subsequent holographic wills in question contained definite statements revoking all prior wills. If the earliest of these wills dated May 8,1964, was executed with the required formality, it effectively revoked the probated will dated February 20, 1963, notwithstanding the fact that subsequent wills were executed revoking it. Consequently, the fact that the decedent revoked the will dated May 8, 1964, cannot have the effect of reviving the will dated February 20, 1963. Brackenridge v. Roberts, 114 Tex. 418, 267 S.W. 244, 247 (Tex. 1924), reh. denied, 114 Tex. 418, 270 S.W. 1001 (1925); Sanderson v. Aubrey, 472 S.W.2d 286, 288 (Tex.Civ.App.—Fort Worth 1971, writ ref’d n.r.e.). This holographic will, although not permitted to be admitted to probate as a will, may still operate as a written instrument of revocation. Dannenbauer v. Messerer’s Estate, 62 S.W.2d 235, 238 (Tex.Civ.App.—Texarkana 1933, writ ref’d); Dougherty v. Holscheider, 40 Tex. Civ.App. 31, 88 S.W. 1113, 1116-17 (Tex.Civ. App.—1905, writ dism’d w.o.j.). The facts in these cases are similar to the pending case.

In Dannenbauer, the contestant in probate of a will written in 1897 alleged the existence of three subsequent wills written in 1900, 1908 and 1919, each of which contained a revocation clause. The three wills were lost and could not be produced in court. The contestant did not seek their probate but only sought to defeat the validity of the will being probated. The court held there was adequate parol evidence to prove the 1900 will and 1919 will revoked the 1897 will. The only change in the 1900 will was to increase the sole beneficiary’s control over the testator’s property. However, the 1919 will significantly changed the disposition of the property to include other beneficiaries. Thus, although the wills could not be probated, they were used to show the revocation of a prior will. In the pending case, the May 1964 will could not be probated because the statutory time period expired but was admitted for the limited purpose of showing revocation of the 1963 will.

In Dougherty, the testator wrote a conditional will contingent upon his death within a few weeks resulting from an operation in the hospital. The will disposed of his property in a manner inconsistent with his prior will by bequeathing nothing to the person to whom he had bequeathed the bulk of his property in the prior will. Since the testator did not die until two years later, the court held that the will was ineffective as a testamentary disposition because the contingency upon which it was based failed to occur. However, the court further held that the written instrument revoked the first will because of the inconsistent disposition of property included therein. Therefore, the testator’s property passed by intestate succession. In the pending case, the May 1964 will, containing an inconsistent disposition of property from the 1963 will, could have been a valid testamentary disposition but was rendered ineffective because it was not probated within the required time. Thus, the property passed by intestate succession. We believe these cases to be controlling when there is an inconsistent disposition between two wills as we have here.

No reliance can be placed here upon the doctrine of dependent relative revocation which creates a presumption against revocation in circumstances where the testator cancels or destroys a will with the present intention of making a new one immediately, and the new will is invalid for any reason. The theory is that in such circumstances the testator would have preferred the old will to intestacy. 79 Am. Jur.2d Wills § 563, at 675 (1975). This doctrine has been recognized, although it was not applied, by our supreme court in Burton v. Bell, 380 S.W.2d 561, 569 (Tex. 1964). We conclude the doctrine does not apply here because dispositive provisions of the May 1964 will, as well as the revocation clause, indicate the testator’s definite intention to dispose of his property in an extremely different manner from that provided in the 1963 will. The intention of the testator as determined from all the circumstances should be the controlling factor. Dougherty v. Holscheider, supra. In 1 Page on Wills § 478, at 873—78 (Lifetime ed. 1941), the author submits that in a situation such as here when the revoking will, which is invalid as a testamentary disposition, disposes of property to beneficiaries different from those in a former will, the testator’s intention may best be followed by allowing the property to pass by intestate succession. We agree. Consequently, since it appears that it was the testator’s intention to revoke the 1963 will notwithstanding the ineffectiveness of the dispositive provisions of the May 1964 will, the trial court was correct in holding that the 1963 will had been revoked and that the property should pass under the laws of intestate succession.

Appellant argues that the probate court erred as a matter of law in admitting the holographic will of May 1964 and finding that it contained the handwriting and signature of the decedent. During the trial, appellees offered the testimony of three witnesses to verify the handwriting and signature of the instrument as being that of the decedent. The testimony of one witness, Peggy Chambers, who is a beneficiary under the will, was otherwise properly excluded under the dead man statute, Tex. Rev.Civ.Stat.Ann. art. 3716 (Vernon 1926), but her testimony verifying the handwriting and signature of the decedent was properly admitted and considered by the probate court. The testimony of the second witness, Ida Noblin, the former mother-in-law of Peggy Chambers, was properly admitted but revealed that she could not definitely identify the handwriting and signature. Finally, the testimony of the third witness, Richard Geiger, an attorney at law who had represented the decedent for several years, specifically identified the handwriting and signature on the will as that of the decedent. Thus, two credible witnesses identifying the handwriting and signature on the holographic will constituted sufficient probative evidence which clearly supports the probate court’s findings.

Appellant, in another point of error, argued that the probate court erred as a matter of law in finding that the decedent possessed the necessary testamentary capacity to execute the holographic will because there is no evidence to support such finding. To obtain probate of a will, the applicant has the burden of proof to show that the testator was “of sound mind.” Tex.Prob.Code Ann. § 88 (Vernon Supp. 1975). As used in the probate code, the term “of sound mind” means “having testamentary capacity.” Nass v. Nass, 224 S.W.2d 280, 283 (Tex.Civ.App.—Galveston 1949), aff’d on other grounds, 149 Tex. 41, 228 S.W.2d 130 (1950); Garcia v. Galindo, 189 S.W.2d 12 (Tex.Civ.App.—San Antonio 1945, writ ref’d w.o.m.). In order to have testamentary capacity, the testator at the time he executes the will must have sufficient ability to understand his business upon which he is engaged, the effect of the act of making a will, the nature and extent of his property, the persons to whom he meant to devise and bequeath his property, the person dependent upon his bounty, and the mode of distribution among them. Also, he must have memory sufficient to collect in his mind the elements of the business to be transacted and hold them long enough to form a reasonable judgment. Prather v. McClelland, 76 Tex. 574, 13 S.W. 543 (1890); Rutherford v. Robbins, 298 S.W. 549, 549-50 (Tex.Comm’n App.1927, holding approved). The court is limited to determine whether the testator’s mental capacity measures up to the legal standard of testamentary capacity. Farmer v. Dodson, 326 S.W.2d 57, 61 (Tex.Civ.App.—Dallas 1959, no writ). While making this determination, the court will not presume mental capacity in a probate proceeding. Navarro v. Garcia, 172 S.W. 723, 724 (Tex.Civ.App.—San Antonio 1915, no writ).

In the instant case appellees did not attempt to probate the holographic will dated May 8, 1964, because the maximum time period for probate had expired. They offered this instrument for the limited purpose of revoking a prior will. Although this instrument was riot offered for probate, it still must have been executed with like formalities required by the statute for probate. Dannenbauer v. Messerer’s Estate, 62 S.W.2d 235, 239 (Tex.Civ.App.—Texarkana 1933, writ ref’d); Baptist Foundation v. Buchanan, 291 S.W.2d 464, 472 (Tex.Civ.App. —Dallas 1956, writ ref’d n.r.e.). Consequently, the decedent must have possessed a legal standard of testamentary capacity when he wrote it. The question before the court was the mental capacity of the testator at the time he executed this holographic will. The burden of proof concerning mental capacity was on the appellees, the parties relying upon the will dated May 8, 1964 as a revocation of the earlier will. Dannenbauer v. Messerer’s Estate, supra; Wells v. Royall National Bank, 249 S.W.2d 695, 699 (Tex.Civ.App.—Galveston 1952, writ ref’d n.r.e.). The question, therefore, before this court is whether there is any evidence of probative force that the decedent possessed the mental capacity to revoke his will by executing this subsequent holographic will.

It is significant to note that decedent was an attorney at law and practiced this profession during his lifetime. The will dated May 8, 1964, demonstrates on its face a rational and sensible disposition of decedent’s property. This is some evidence of the fact that the will was written during the period when the decedent was mentally competent. Carr v. Radkey, 393 S.W.2d 806, 814 (Tex.1965). Furthermore, attorney Geiger testified that the decedent, until 1968, was capable of caring for himself in moving about the city, as well as capable of understanding his business affairs. Geiger testified that decedent definitely knew who the members of his family were. However, Geiger did not testify as to the mental state of the decedent on the actual date that he executed the holographic will. Appellant argues that the proper inquiry concerning testamentary capacity is the condition of the testator’s mind on the very day the will was executed. Lee v. Lee, 424 S.W.2d 609 (Tex.1968). Although this is the ultimate question, the court may also look to the state of the testator’s mind at times other than when he executed his will if it tends to show the testator’s state of mind at the time of the execution. Kutchinsky v. Zillion, 183 S.W.2d 237, 239 (Tex.Civ.App.— Galveston 1944, writ ref’d w.o.m.). Our supreme court has enunciated a principle in cases involving execution of a deed which we believe is applicable concerning execution of holographic wills. This principle is that although the issue is mental competency on the date of execution of the document, relevant evidence concerning mental competency is not restricted to the time the given act is done but may also include testimony as to the actor’s mental condition either prior or subsequent to the time the act in question was done. Cole v. Waite, 151 Tex. 175, 246 S.W.2d 849, 852 (1952). This principle is increasingly important since a holographic will may be executed in the privacy of one’s room without witnesses, thereby imposing an impossible burden to show the mental state of the testator at the very moment of execution.

Appellant, who is not a lawyer, relies on his own testimony concerning decedent’s testamentary capacity. A lay witness may testify concerning the mental capacity of a decedent and express an opinion thereon after stating his observations and knowledge of the testator’s actions, but he may not express an opinion on the legal capacity to revoke a will. Brown v. Mitchell, 88 Tex. 350, 31 S.W. 621, 627-28 (1895); Campbell v. Campbell, 215 S.W. 134, 138 (Tex.Civ.App.—Dallas 1919, writ ref’d); Chambers v. Winn, 137 Tex. 444, 154 S.W.2d 454, 455 (Tex.Comm’n App.1941, opinion adopted); Kutchinsky v. Zillion, 183 S.W.2d 237, 239 (Tex.Civ.App.—Galveston 1944, writ, ref’d w.o.m.). Our supreme court has held that in a will contest, the layman witness may be asked, assuming he knows, whether the testator knew or had the capacity to know the objects of his bounty, the nature of the transaction in which he was engaged, or the nature and extent of his estate. Carr v. Radkey, 393 S.W.2d 806, 813 (Tex.1965). In this case the appellant testified, as decedent’s son having observed decedent for many years, that by 1966 and, particularly, October 1968, the decedent could not be considered to have retained testamentary capacity. Upon further questioning, the appellant stated that his reference to testamentary capacity meant decedent’s knowledge of his bounty. However, appellant did not testify concerning the decedent’s knowledge of his bounty prior to 1966. Appellant testified that he considered the decedent to have a good sound mind when he borrowed money from the decedent in both March and April 1964, approximately one month prior to the execution of the holographic will. Because of both the appellant’s and Geiger’s testimony and the close proximity of the above dates, we hold that there is competent probative evidence of mental capacity on which the trial court could have based its findings that the decedent possessed the necessary testamentary capacity.

In another point of error, appellant asserts that the trial court erred as a matter of law in finding that the holographic will was executed voluntarily and free from undue influence. Since the ap-pellees established that the 1964 instrument was in the testator’s handwriting and that he had testamentary capacity at that time, the burden shifted to appellant to show the 1964 instrument was the result of undue influence. McIntosh v. Moore, 22 Tex.Civ. App. 22, 53 S.W. 611, 614 (Tex.Civ.App.— 1899, no writ). Thus appellant must have shown:' (1) The existence and exertion of an influence; (2) the effective operation of the influence to subvert or overpower the mind of the testator at the time of execution; and (3) the execution of a testament which the maker would not have executed but for the influence. Rothermel v. Duncan, 369 S.W.2d 917, 922 (Tex.1963); Reynolds v. Park, 485 S.W.2d 807, 813 (Tex.Civ. App.—Amarillo 1972 writ ref’d n.r.e.). The only evidence which implies undue influence was appellant’s own testimony stating that he had been told by the decedent that in 1962 the appellees withdrew money from the decedent’s bank account, threatened to place the decedent in a mental institution, and harassed the decedent into allowing one of the appellees to remove her legal disability prior to the age of attaining majority. We cannot agree with appellant that this evidence establishes undue influence as a matter of law.

Appellant also argues that the will dated May 8, 1964, should not have been allowed into evidence to contest the probated will because it was not filed with the court as an exhibit within two years after the initial probate. Appellant does not cite cases to support this position but instead relies only on Tex.Prob.Code Ann. § 93 (Vernon 1956) which only requires that after a will is admitted to probate, any interested person may institute suit in the proper court to contest the validity of the probated will within two years after the date of probate. We have found no cases under this provision of the code requiring the actual revoking instrument to be filed within the two-year period. Consequently, we overrule this point of error.

Careful consideration of all of appellant’s points of error fails to reveal any reversible error on the part of the trial court and they are, accordingly, overruled.

The judgment of the trial court is affirmed.

Affirmed.