text:
    CITY OF HOUSTON, Appellant, v. J. R. GRIBBLE, Appellee.
    No. 937.
    Court of Civil Appeals of Texas, Tyler.
    Sept. 30, 1976.
    Rehearing Denied Oct. 28, 1976.

      Johnathan Day, City Atty., Dale M. Ting-leaf, Houston, for appellant.
    Howard S. Hoover, Hoover, Cox & Miller, Houston, for appellee.
   McKAY, Justice.

This is a suit on a contract wherein J. R. Gribble (Contractor), as assignee of the rights of J. R. Gribble Construction Company, brought suit against the City of Houston (City) for money withheld by the City as liquidated damages under a storm sewer construction contract. The City denied generally the Contractor’s right to recovery. Trial was had before a jury which found the City arbitrarily and capriciously failed and refused to allow Contractor 146 days additional time on his contract, and the circumstances causing the delay were not under the Contractor’s control. Based upon the jury verdict the court rendered judg-. ment against the City for $48,873.86, from which judgment the City brings this appeal.

The contract in question here was for the construction of a 10 foot by 10 foot reinforced concrete box storm sewer approximately one mile in length. Contractor was low bidder on the project with an original contract price of $985,201.34. The parties entered into the contract on July 18, 1969, and Contractor began work on August 20, 1969. The contract provided for completion of the project in 240 working days. However, the project was not completed by the Contractor until July 16, 1971, 694 days after work began.

The Contractor claims that during the construction of the project he suffered delays due to certain circumstances beyond his control. He maintains he was delayed 21 days due to late delivery of forms, 11 days due to late delivery of guard rails, 54 days due to the flooding of Buffalo Bayou, 26 days due to removal of stone from the site, and 45 days due to encountering an alkaline soil condition. The Contractor filed monthly claims for time lost due to weather, which claims were allowed, but he did not file a monthly claim with the City for the five delays listed above. After the completion of the project the Contractor filed a claim for the delays, and the City denied his claim.

The City on December 28, 1971, accepted the work as completed and authorized payment under the terms of the contract. On April 18, 1972, the City, in tendering the final payment to the Contractor, withheld $44,800.00 as liquidated damages. The tender by the City was' $4,073.86 as the final payment which tender was refused by the Contractor. The contract provides that if the 240 working days are exceeded the Contractor will pay the City $400.00 per day in liquidated damages for each additional day that the work remains uncompleted. The $44,800.00 liquidated damage figure was arrived at by calculation that to complete the project the Contractor took 112 working days more than the 240 days allowed by the contract at $400.00 per day.

The pleading of the Contractor not only sought to recover the liquidated damages withheld by the City, but also alleged that he was entitled to an additional $83,182.00 for removal of stone from the trench excavated for the storm sewer. However, the question of additional money for removal of stone is not before us on appeal.

Issue No. 1 submitted to the jury was:

“Do you find from a preponderance of the evidence that notwithstanding the written terms of their contracts (sic), it was the custom and practice of the City of Houston Public Works Department to permit contractors such as the plaintiff in the present case to present requests for extra time due to ‘conditions not under the control of the contractor,’ after the completion of the contract in question?
“Answer: ‘We do.’ ”

Issue No. 2 was:

“Do you find from a preponderance of the evidence that the plaintiff, Gribble Construction Company, made such request in accordance with such custom and practice, if any?
“Answer: ‘We do.’ ”

Other issues were answered by the jury that the Contractor was delayed 10 days due to late delivery of forms, 11 days due to late delivery of guardrails, 54 days due to flooding of Buffalo Bayou, 26 days due to removal of stone, 45 days due to alkaline soil condition, and that each of such delays were not under the control of the Contractor and that the City was arbitrary and capricious in not allowing the Contractor the number of days of delay so found.

City’s first point of error complains that the trial court erred in failing to render judgment notwithstanding the verdict for the City because the Contractor failed to comply with the mandatory contractual prerequisite necessary to the establishment of a claim for an extension of contract time. We sustain this point.

The contract provided that:

“No claims for extension of time will be considered unless the claim is filed between the first (1st) and fifteenth (15th) of the month following the month in which the delay- was occasioned. These requests will be approved or disapproved by the Director of Public Works instead of City Council as stated in the E-10.”

It is undisputed that the Contractor did not file his claim or claims in accordance with the above provision of the contract. It seems to be settled that such a provision is valid and enforceable. Housing Authority of City of Dallas v. Hubbell, 325 S.W.2d 880 (Tex.Civ.App.—Dallas 1959, writ ref’d n. r. e.); Austin Bridge Co. v. State of Texas, 427 S.W.2d 925 (Tex.Civ.App.—Austin 1968, writ ref’d n. r. e.).

“Where the contract so provides the contractor must give notice to the owner or the architect of delays arising from stipulated causes, or of his claim for additional time by reason of such delays, or he will not be excused or entitled to additional time, unless such formality is waived . . .” 17A C.J.S. Contracts § 502(4)e, p. 778-779.

We are of the opinion that where the contract so provides the contractor must not only give notice to the owner of delays arising in the performance of the contract, but the contractor must give such notices or make such claims for delay in the manner and within the time specified in the contract. The timely filing of the Contractor’s claim for an extension of time because of delay was a condition precedent to the obligation of the Director of Public Works for the City to consider the validity of such claim.

Appellant City also argues that custom and practice, or usage, will not vary the terms of a written contract. We agree. The courts of Texas so hold. Turner v. Scobey Moving and Storage Co., 515 S.W.2d 253 (Tex.1974); Malone v. Dawson, 117 Tex. 377, 5 S.W.2d 965, 60 A.L.R. 665 (1928).

Appellee Contractor maintains that the City waived the notice requirements concerning delays caused by circumstances beyond the control of the Contractor, and he cites Ryan v. Thurmond, 481 S.W.2d 199 (Tex.Civ.App.—Corpus Christi 1972, writ ref’d n. r. e.) as authority. Contractor argues that Ryan holds that after the time for completion of the work has expired and the owner assents to the continuance of the work without objection to the delay, the owner will be deemed to have waived the provisions as to time of performance and that this applies to the instant case. In Ryan there was no prerequisite in the written contract about time for claiming delay time as here. We believe Ryan is distinguishable for that reason. Moreover, Ryan also holds that a waiver of the time provisions for performance does not necessarily waive a claim for damages for failure to perform on time. When the owner permits a contractor to continue work after the completion time has expired, such action might constitute a waiver of the breach which could have caused a forfeiture of the contract; nevertheless, the owner may still recover any damages sustained as a result of the breach.

Appellee Contractor also contends that the City is estopped from asserting the strict terms of the contract when it is acting in its proprietary capacity because the evidence shows that it was the custom of the City to allow requests or claims for extensions of time due to delays caused by circumstances not within the control of the contractor to be made after the completion of the project, and that the actions and words of the agents and employees of the City reinforced Contractor’s belief that it would follow such custom with him on the contract in question. Edward Gresham, an estimator in the construction division of the Public Works Department of the City, testified that in some cases contractors would send in a claim for delay at the end of the job, and that even though such claim came in late it would be considered. The witness George Patrick testified that contractors routinely make requests for delay after the job is completed, and that to his knowledge no contractor has been penalized for running over his time. Joe Meador, construction engineer for the City on the project involved here, testified that “several — lots of times” claims for delay had been made at the end of the job and that such had been the practice. Appellee Gribble testified he did not make monthly requests for extension of time because the practice had been to make them at the end of the project, and that on two other occasions he had made his claim on completion of the project for the City and there was “no problem”.

Contractor does not contend, nor does he present any evidence that the representatives of the City made any representation to the Contractor in the instant case that the City would not hold him to the strict terms of the written, unambiguous contract which induced him to wait until the completion of the project to claim an extension of time for delays. No issue was submitted to the jury on the question of estoppel, and none was requested. Contractor cites a recent case by the Supreme Court, Roberts v. The City of Haltom City, Tex., 543 S.W.2d 75 (1976). That case is distinguishable from this case on the facts.

It has been held that in a construction contract where the terms and specifications were unambiguous and where it clearly spelled out the duty of the Contractor, “it was not permissible to resort to custom and usage as the basis for changing its terms.” State of Texas v. F & C Engineering Co., 438 S.W.2d 647, 652 (Tex.Civ.App.—Houston [14th Dist.] 1969, writ ref’d n. r. e.).

We are of the opinion that the trial court erred in rendering judgment for appellee Contractor based upon custom and usage. In view of the fact that we sustain appellant City’s first point, we do not reach the other points of error.

As to the $44,800.00 awarded to appellee Contractor, the judgment of the trial court is reversed; and it is here rendered that Contractor take nothing. The judgment of the trial court for Contractor for the sum of $4,073.86 is affirmed.


source: Caselaw Access Project

author: BISSETT, Justice.

license: Public Domain

text:
    Fred HALAMICEK et al., Appellants, v. Roy Edward HALAMICEK, Appellee.
    No. 1033.
    Court of Civil Appeals of Texas, Corpus Christi.
    Sept. 30, 1976.
    Rehearing Denied Oct. 28, 1976.

      W. T. Miller, Miller & Miller, Gonzales, for appellants.
    Andrew Gary, Morgan, Gary & Klossner, San Marcos, for appellee.
   OPINION

BISSETT, Justice.

This is a suit to set aside the probate of the holographic will of Roy Edward Halam-icek, Sr., Deceased, on the ground that such will had been revoked by a later holographic will. Trial was to a jury. The judgment set aside the probated will. Fred Halami-cek and Eddie Halamicek, defendants, have duly and timely perfected an appeal from that judgment.

Roy Edward Halamicek, Sr., hereinafter referred to as “decedent”, died on April 19, 1972. He was survived by two natural sons, Roy Edward Halamicek, Jr. (the plaintiff), and Henry Irving Halamicek, and by an adopted daughter, Cindy Mabrey. They constituted his sole and only heirs at law. Fred Halamicek (a brother of the decedent) filed a holographic will of the decedent for probate shortly after the decedent’s death. That will, dated September 16, 1963, was duly admitted to probate by the County Court of Gonzales County, Texas, on May 8, 1972. Fred Halamicek qualified as Administrator with will annexed of the decedent’s estate.

At the time the will was probated, both of decedent’s sons were minors. Roy Edward Halamicek, Jr., upon reaching his majority, brought identical suits in both the District Court and in the County Court (Gonzales County) to set aside the will that had been probated on May 8,1972, as above stated. The District Court suit was filed on May 6, 1974 and the County Court suit was instituted on September 3, 1974. Fred Ha-lamicek, Individually and as Administrator of the Estate of Roy Halamicek, Deceased, Eddie Halamicek, Henry Irving Halamicek, Cindy Mabrey and Marjorie Hensley were made defendants to the actions brought by the plaintiff.

The defendants Cindy Mabrey and Henry Irving Halamicek, following the removal of his disabilities of minority, expressly adopted the allegations made by Roy Edward Halamicek, plaintiff, in his petition, and further prayed that the probated will be set aside. The defendant Marjorie Hensley, the ex-wife of the decedent and the mother of his two sons, disclaimed any interest in the subject matter of the suit.

The plaintiff, among other allegations, alleged that the probate of the September 16, 1963 will should be set aside on the ground:

“. . . THAT said instrument dated September 16, 1963 had been revoked, either expressly or by implication, by the Decedent, Roy Halamicek, executing a subsequent inconsistent holographic instrument as his Last Will and Testament with like formalities which expressly and/or by implication revoked such instrument dated September 16, 1963.”

The County Court suit was transferred to the District Court, where the causes were consolidated. Trial commenced on February 26, 1975. Special Issue No. 1 inquired:

“Do you find from a preponderance of the evidence that after 1963 Roy Halami-cek, Sr. executed the instrument testified to by Lucille Herschap intending the same to be and constitute his last will and intending same to revoke all other wills?”

To which, the jury answered: “We do”.

The judgment, which was signed on May 23, 1975, in part, decreed:

“. . . that the probate of said 1963 will of the decedent, ROY HALAMICEK, in Cause No. 6096 on the probate docket of the County Court of Gonzales County, Texas, should be, and the same is hereby, SET ASIDE AND HELD FOR NAUGHT. It is further ORDERED, ADJUDGED AND DECREED that the said 1963 will has been revoked by the decedent, . . . ”

The defendants (appellants) assert in their first point of error that there is “no evidence that the alleged revoking will was wholly in the handwriting of the decedent Roy Halamicek as pleaded by Appellee”. They contend in their fourth point that “the judgment of the court should be reversed because the testimony of Lucille Herschap as to declarations of the decedent, Roy Ha-lamicek, are insufficient to prove either the execution or contents of the alleged revoking will”.

The plaintiff (appellee) contends “the record in this case abounds with evidence by which the jury might reasonably infer the revoking will was wholly in the handwriting of the decedent”, because: 1) the decedent made a prior holographic will in 1963; 2) in a discussion between decedent and Mr. W. T. Miller, an attorney, Miller told decedent to rewrite his will and include certain provisions therein; 3) the decedent telephoned Lucille Herschap and told her that he was making out his will, and later told her in person that he had executed his will; 4) the testimony of Lucille Herschap as to declarations of decedent; 5) the testimony of Mr. Roger Dreyer, an attorney, as to a statement made to him by decedent that he had something written up he wanted Dreyer to look over; 6) it can reasonably be inferred that decedent, as a result of his conversation with Miller, knew that anything but a wholly handwritten will had to be witnessed in order to be valid.

Statutory requirements pertaining to revocation of wills in Texas are set out in our Probate Code as follows:

“§ 63. Revocation of Wills
No will in writing, and no clause thereof or devise therein, shall be revoked, except by a subsequent will, codicil, or declaration in writing, executed with like formalities, or by the testator destroying or canceling the same, or causing it to be done in his presence. Acts 1955, 54th Leg., p. 88, ch. 55.”

The statutory method of revoking a valid will is exclusive. Morgan v. Davenport, 60 Tex. 230 (1883); Pullen v. Russ, 209 S.W.2d 630 (Tex.Civ.App.—Amarillo 1948, writ ref’d n.r.e.); Aschenbeck v. Aschenbeck, 62 S.W.2d 326 (Tex.Civ.App.—Austin 1933, writ dism’d); Citizens First National Bank of Tyler v. Rushing, 433 S.W.2d 741 (Tex.Civ.App.—Tyler 1968, no writ).

In order to establish revocation of a will by the execution of a subsequent will that either expressly or impliedly revokes the prior will, it must be shown by a preponderance of the evidence that the revoking will was executed with like formalities of the prior will. The term “like formalities”, as used in the statute, requires proof that the revoking instrument was validly executed. Womack v. Woodson, 169 S.W.2d 786 (Tex.Civ.App.—Beaumont 1943, writ ref’d).

Since this is a suit to annul the probate of a will already probated, the burden is cast upon the plaintiff to establish by a preponderance of the evidence “the execution, attended by due formality and legal requirements, of a subsequent instrument, which either expressly or impliedly revoked the former will.” Richardson v. Ames, 2 S.W.2d 517 (Tex.Civ.App.—Eastland 1928, writ ref’d). See also, Chambers v. Winn, 137 Tex. 444, 154 S.W.2d 454 (Tex.Com.App.1941, opinion adopted); Boyd v. Frost Nat. Bank, 145 Tex. 206, 196 S.W.2d 497 (1946); Crane v. Pierce, 257 S.W.2d 510 (Tex.Civ.App.—Dallas 1953, writ ref’d); Ehrhardt v. Ehrhardt, 364 S.W.2d 471 (Tex.Civ.App.—Houston 1963, no writ).

It is well settled rule in this case that while statements made by the decedent to the general effect that he had made a later will are admissible on the execution of a lost will, it is further well settled that such statements and declarations cannot within themselves, and standing alone, be of sufficient probative force to establish the fact that the alleged lost will was actually and validly executed by the decedent. Compton v. Dannenbauer, 120 Tex. 14, 35 S.W.2d 682 (1931); Tynan v. Paschal, 27 Tex. 286 (1863).

The decedent was divorced from his wife Marjorie in 1963. Following the divorce, decedent’s two boys lived with their mother for about two years, when they went to live with their maternal grandmother. In 1966, the boys then went to live in the home of Mrs. Annie Halamicek, their paternal grandmother, in whose home the decedent also resided. They continued to live in her home until shortly after their father’s death. A close relationship existed between the decedent and his sons.

On the date of his death and for many years prior thereto, the decedent and the defendant Fred Halamicek were partners in a business in Gonzales, Texas. On September 13, 1963, when the probated will was signed, the decedent owned considerable property in partnership with Fred and also in his own right. His net estate was in excess of $200,000.00. The defendants were the principal beneficiaries under the 1963 will, although in that will the sons of the decedent were devised a certain tract of land, which, at the time of decedent’s death, was apparently quite valuable.

According to Mr. Roger Dreyer, about a year before the decedent’s death he had a conversation with the decedent, when the decedent told him: “I have got something that I have written up that I want you to look over sometime”. There is no showing in the record that the decedent, at any time presented any writing to Mr. Dreyer for him “to look over”.

Mr. W. T. Miller testified, in substance, that the decedent, in 1967 or 1968, told him that “he had a holographic will”, and that he (Miller) advised the decedent of the “danger of making a holographic will”, and suggested that he “let a lawyer look at it”. He further testified that he wrote out two paragraphs in his own handwriting, gave them to the decedent, and told him “that at the very least he ought to have these two paragraphs” in his will. The paragraphs provided for the appointment of an executor without bond, and for an independent administration of the estate.

The statement made to Dreyer to the effect that he had “something written up” does not raise an inference that the document was wholly in the decedent’s handwriting, or that it was a revoking instrument, or that it was testamentary in character or nature. The account of the transaction between Miller and the decedent will not support an inference that the decedent thereafter executed a valid will holographic or otherwise, or revoked a prior will.

The only witness who gave any testimony in support of the plaintiff’s claim of revocation of the probated will by a later holographic will was Mrs. Lucille Herschap. She testified that she was acquainted with the decedent during his lifetime, and that he first mentioned a will to her “about ’69 or ’70”, when he asked her to “come down to the store”, and told her “that he was making out a will”. She did not comply with his request. Several nights later, the decedent, while at Mrs. Herschap’s home, said to her: “I really have got my will fixed up for my boys. They are well taken care of”. She also testified that the decedent told her that he had executed a will, in which he “had left everything for his boys and that he was leaving one dollar to his ex-wife, and Fred half of the store only”. She did not know “when he actually finished the will”. She further testified that she had never seen any will of the decedent “other than the one that was admitted to probate”.

The alleged revoking instrument (holographic will) was not produced at the trial. No witness testified as to ever having seen such an instrument. There is no evidence that any such instrument was wholly in the handwriting of the decedent. There is neither pleading nor proof that the decedent signed a nonholographic will that was properly witnessed. The statements and declarations made by the decedent to Mrs. Herschap, standing alone, are not of sufficient probative force to establish the fact of execution of the alleged revoking will, or to even raise the issue of its execution. Those statements and declarations constituted nothing more than legal conclusions of the decedent that he had executed a will, which may have been altogether imperfect or erroneous. Those statements and declarations do not give rise to a reasonable inference that the alleged will was wholly in the handwriting of the decedent, or that he signed any such instrument.

We have carefully examined the record. We have, as is required of us in disposing of “no evidence” points, viewed the evidence in its most favorable light in support of the finding that the decedent “executed the instrument testified to by Lucille Her-schap”, considering only the evidence and inferences which support the finding, and rejecting the evidence and inferences which are contrary to the finding. There is no evidence of probative force in the record that the decedent revoked the September 16, 1963 will be any of the methods prescribed by Tex.Prob.Code Ann. § 63 (1956). The defendants’ first and fourth points are sustained.

In view of our holding in this case, it is not necessary that we consider or dispose of defendants’ remaining points of error.

The judgment of the trial court is reversed, and judgment is here rendered that the instrument dated September 16, 1963, which was admitted to probate as the Last Will and Testament of Roy Halamicek, Deceased, by the County Court of Gonzales County, Texas, sitting in probate, has not been revoked, and that the holographic will of Roy Halamicek, Deceased, dated September 16, 1963, is the valid Last Will and Testament of the decedent.

REVERSED AND RENDERED.


author: CHADICK, Chief Judge.

text:
    Victoria Ann LINDOP et al., Appellants, v. ALLSTATE INSURANCE COMPANY et al., Appellees.
    No. 8382.
    Court of Civil Appeals of Texas, Texarkana.
    Oct. 5, 1976.
    Rehearing Denied Oct. 26, 1976.

      William R. Eddleman, Carp & Eddleman, Dallas, for appellants.
    Byron L. Falk, Vial, Hamilton, Koch, Tubb, Knox & Stradley, Arlen D. Bynum, Bradshaw & Bynum, Dallas, for appellees.
   CHADICK, Chief Judge.

This suit is grounded upon the uninsured motorist provisions in two automobile insurance policies. It was instituted to recover indemnity provided by the policies for loss proximately caused by the negligence of a hit and run driver. The trial court entered a take nothing judgment and the plaintiffs below have appealed.

Ronald Odell Lindop, the trial pleadings allege, was fatally injured as the proximate result of the negligence of a hit and run driver, as that term is defined in the automobile policies in suit. The plaintiffs below, appellants here, are the decedent’s surviving wife, three minor children and parents. One policy was issued by Allstate Insurance Company to Mr. Lindop and the other was issued by State Farm Mutual Automobile Insurance Company to Mr. Lin-dop’s employer. These insurance companies were defendants below and are appellees here. The parties agree that liability to pay under policy provisions is dependent upon proof of negligence by a hit and run driver that proximately caused Mr. Lindop’s death.

A favorable jury verdict in the trial court would have entitled the plaintiffs to judgment had the trial judge not sustained the motion of the insurance companies and granted judgment notwithstanding such verdict. The jury in response to special issues found that Mr. Lindop’s fatal injury was proximately caused by a hit and run driver’s negligent failure on the occasion in question to keep proper lookout, failure to turn to the left and failure to apply brakes. On motion by the defendant insurance companies, the trial court disregarded the jury’s verdict upon such issues and entered the mentioned take nothing judgment. Such action by the trial judge is authorized by Tex.R.Civ.P. 301 when issues are not supported by evidence having probative value. Gulf, Colorado & Santa Fe Railway Company v. Deen, 158 Tex. 466, 312 S.W.2d 933 (1958); Hicks v. Matthews, 153 Tex. 177, 266 S.W.2d 846 (1954); Reed v. Enright, 488 S.W.2d 596 (Tex.Civ.App. Dallas 1972, no writ); 4 McDonald’s, Texas Civil Practice, Sec. 17.32; Hulse, The Motion For New Trial As Basis For Review, in State Bar of Texas, Appellate Procedure in Texas, Sec. 8.4[2] (1964). The evidence in the record is decisive of the question. Therefore, the evidentiary record has been examined to determine whether or not there is probative evidence supporting either of the three issues of primary negligence found by the jury.

The decedent’s body, one hand clutching a hammer, was found near the middle of two traffic lanes carrying northbound traffic on Interstate 45 in Dallas County. One article of decedent’s clothing was a bright orange shirt. The only traumatic injury found was to the head. Medical experts concluded injury was caused by high speed impact. Investigating authorities found nothing at the scene deemed to be evidence of criminal activity. A truck belonging to Mr. Lindop’s employer, a red and white Chevrolet with a 40-foot float bed, was properly parked on the shoulder of the road headed in a northerly direction; the motor was running and emergency flashers were operating; a grease cup had been removed and lay beside the front tandem of the trailer. The truck was loaded with turf, and Mr. Lindop was employed to drive it from Beaumont to Dallas. The weather was clear and the highway dry. No skid, slide or tread marks were found. The highway was of such width and the surface conditions of a nature that a driver of a vehicle passing the truck had room for maneuver and space to avoid striking a person working on or close by the truck. It was nighttime, approximately 4:00 o’clock a. m., when the body was found and reported to authorities and traffic at that time was backed up for some distance to the south of the scene of the fatality.

These facts furnish grist for extensive speculation but the facts and inferences that may legitimately be drawn from them, considered in the aspect most favorable to the jury’s verdict, do not constitute evidence that a hit and run driver failed to keep the lookout that an ordinarily prudent person would have under the conditions shown or constitute evidence of the other failure found by the jury. The evidence produced does not tend to prove what the presumed hit and run driver was doing or the position of his vehicle on the road at or prior to the time Mr. Lindop was struck. Since these facts are not known or inferable from direct evidence, it is impossible to conclude that such driver failed to do in any respect what a reasonable person would ordinarily have done under the same or similar circumstances. The fact that Mr. Lin-dop was struck is not of itself evidence of negligence and does not raise an inference that the presumed hit and run driver defaulted in the several instances found by the jury. Rankin v. Nash-Texas Company, 129 Tex. 396, 105 S.W.2d 195 (Tex.Com.App.1937, opinion adopted); Willis Sears Trucking Company v. Pate, 452 S.W.2d 782 (Tex.Civ.App. Beaumont 1970, no writ). From the facts in the record it may be surmised or suspicioned that the presumed hit and run driver may have failed in the instances found by the jury, but accounting for the occurrence by speculation and surmise consistent with these facts is not proof that will support a verdict. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898); Calvert, “No Evidence” and “Insufficient Evidence,” Points of Error, 38 Texas L.Rev. 361, 363 (1960). The trial judge did not commit error in sustaining the motions for judgment notwithstanding the verdict.

It is unnecessary to discuss proximate cause as that element of the case has no relevance in the absence of proof of negligence.

All points of error briefed by the appellants have been carefully examined. No reversible error is found. The judgment of the trial court is affirmed.


author: SHANNON, Justice.

text:
    SNYDER SAVINGS AND LOAN ASSOCIATION et al., Appellants, v. W. Sale LEWIS, Savings and Loan Commissioner of Texas, et al., Appellees.
    No. 12466.
    Court of Civil Appeals of Texas, Austin.
    Oct. 6, 1976.
    Rehearing Denied Oct. 27, 1976.

      Donald J. Hahn, Jr., McCulloch, Ray, Trotti, Hemphill & Meadows, Dallas, for Snyder Sav. and Loan Ass’n and West Texas State Bank.
    John L. Hill, Atty. Gen., Thomas M. Pol-lan, Asst. Atty. Gen., Austin, for W. Sale Lewis, Savings and Loan Commissioner of Texas.
    R. Temple Dickson, Mays, Moore, Dickson & Roberts, Inc., Sweetwater, and Jack C. Ogg, Houston, for Sweetwater Sav.
   SHANNON, Justice.

Sweetwater Savings Association filed an application with the Savings and Loan Commissioner for a branch office to be located in Mitchell County at Colorado City. Four area savings and loan associations and banks filed written protests in opposition to the branch application. After hearing, the Commissioner granted the application.

Appellants, Snyder Savings and Loan Association and West Texas State Bank of Snyder, Texas, filed suit in the district court of Travis County to set aside the order of the Commissioner. The district court entered judgment affirming the Commissioner’s order. We will affirm the judgment.

Appellants’ first point of error is that the Commissioner’s finding that the proposed branch office would be supervised by qualified full-time management was not reasonably supported by substantial evidence.

Rule 2.4(g) of the Rules and Regulations for Savings and Loan Associations requires a finding by the Commissioner that the “. . . proposed branch office will be supervised by qualified full-time management.”

The evidence pertaining to management of the proposed branch office consisted of the testimony of appellee Sweetwater Savings Association’s president and managing officer, Ed Aiken, Jr. Aiken testified that appellee would have a full-time employee in the proposed branch. He stated that appel-lee’s vice-president, Bernie Hawley, would be directly responsible for the operation of the branch. Hawley, it was said, would spend at least one day each week at the Colorado City branch. On cross-examination, Aiken testified that the full-time employee serving at the proposed branch would probably be an experienced woman living within the Colorado City community.

Appellants argue that there was no evidence concerning Hawley’s qualifications, and moreover, that even if Hawley were qualified, his supervision of the branch would not be “full-time” as required by Rule 2.4(g).

Although the record does not show the number of years that Hawley had worked in a managerial capacity with appellee or some other savings association, the evidence was that he was experienced “in this field” and that he had opened appellee’s three other branch offices.

Rule 2.4(g) requires supervision by “full-time” management. That rule does not require “full-time” supervision by the management, as argued by appellants. Without dispute Hawley worked “full-time” with appellee. With respect to supervision, the testimony was that Hawley spent “at least” one day each week at each branch. The clear implication of the testimony was that Hawley was available, and if he were needed for a greater length of time at the Colorado City branch office, he would be there. Appellants’ point of error is overruled.

Appellants’ other significant point of error is that the Commissioner’s finding that there was a public need for the proposed branch office was not reasonably supported by substantial evidence.

In the order granting the branch application, the Commissioner set out the “underlying facts.” The portion of the order pertinent to the public need for the proposed branch is set out in the footnote, and no good purpose would be served to again summarize that evidence.

Appellants’ point of error will be overruled inasmuch as we are of the opinion that substantial evidence exists in support of the Commissioner’s finding that there is a public need for the proposed branch office and the volume of business in the community is such so as to indicate a profitable operation to the association within a reasonable time.

Appellants criticize the Commissioner's reliance upon the testimony of James R. Vinson, an economist called by appellee. Appellants’ position is untenable inasmuch as the Commissioner was entitled to believe and to rely upon the testimony of the witness in arriving at his decision to grant the application. Gonzales County Savings and Loan Association v. Lewis, 486 S.W.2d 176 (Tex.Civ.App.1972, writ ref’d n. r. e.).

Appellants say that appellee will take away savings obtained at the Colorado City branch and use those savings for loans in another location. Such a practice is common in the savings and loan business and is not prohibited. Colorado County Federal Savings and Loan Association v. Lewis, 498 S.W.2d 723 (Tex.Civ.App.1973, writ ref’d n. r. e.).

The judgment is affirmed.

      . The relevant part of the Commissioner’s order, without record references, follows:
      “. . . The home office of the Association is in Sweetwater, Nolan County, Texas, approximately 28 miles from the site of the proposed branch office in Colorado City, Mitchell County, Texas. Nolan County and Mitchell County adjoin one another.
      “The proposed location of the branch office is in the vicinity of the intersection of Highway 163 and East Second Street in the City of Colorado City, Mitchell County, Texas. An option is held by the Association near that location in Colorado City. The community to be served by the proposed branch office is the entirety of Mitchell County, as shown on the map received into evidence as Branch Exhibit 3. Colorado City is the largest city in Mitchell County. There are two other towns in the county. They are Loraine and Westbrook.
      ‘.‘The population of Mitchell County in 1970, according to the Census Bureau after a population count was 9,073. The population of Colorado City was 5,227.
      “The population of Mitchell County has been fairly stable since 1970; however, its work force has increased during that period of time from 3,700 persons in 1970 to 4,660 persons in 1974. Industrial earnings were $16,102,000 in 1968; $23,757,000 in 1972; and $28,490,000 in 1974.
      “Dr. James R. Vinson, testifying as an economic expert, stated that general business activity is healthy and growing in Mitchell County. The Commissioner finds such testimony to be reliable and credible and adopts same as his finding of facts. Some of the economic indicators which the witness studied and viewed as reflecting a healthy, growing economy were: bank debits; sales tax receipts; gross sales; the level of employment; and wages and salaries.
      “There is presently only one savings and loan facility located within Mitchell County, the community, that being the home office of Colorado City Savings and Loan Association in Colorado City, Texas. Dr. Vinson observed that the making of mortgage loans in Mitchell County by banks and by ‘out of area’ savings associations indicated that a locally available source for lending funds could have a good market.
      “The existing association in Colorado City has enjoyed excellent growth in recent years. From 1971 to year-end 1974, the total assets of the association increased from $5,682,306 to $9,012,731, and during that same period total savings increased from $5,040,737 to $7,961,-009. The two banks in Mitchell County have also had good growth.
      “The proposed branch office will offer a full range of both savings and lending services to the residents of the community. Furthermore, the Association has traditionally been involved in a wide range of civic activities, and through its subsidiaries builds residences and develops land.
      “In this regard, the Commissioner further notes that the Colorado City association did not oppose the application on the basis of undue harm or any other ground. While William Sikes, Managing Officer of Snyder Savings and Loan Association, testified in opposition to the application to the effect that operation of such branch office could unduly harm his association, review of the entirety of his testimony reveals that what he considers undue harm is this branch impacting on his association only in terms of lessening his association’s profits. It is obvious that approval of this branch office introduces a competitive alternative into the community in the Mitchell County market, but the Commissioner fails to be persuaded that approval of this branch would unduly harm any other association; and, in fact, finds that it would not unduly harm any association.
      “Dr. James R. Vinson, an expert witness, had a definition of public need posed to him and was asked, in view of his study and that definition, whether there existed a public need for a branch in Colorado City. It was Dr. Vinson’s opinion that such a public need does exist. The Commissioner concludes that such opinion is reliable, credible, and justified in the record and finds that a public need for a branch in Colorado City does exist. Based on the experience of the Association, its proposed budget and the experience of other similar branches, the Commissioner concludes that the applying Association would have a profitable operation within a reasonable period of time.
      “The proposed branch office will permit the applying Association to render better service to its substantial number of customers in the community and to attract new customers. As of October 31, 1974, Applicant had 135 savings accounts in the community with total balances outstanding of $1,034,253 and nine mortgage loans totaling $210,101.30 and thirteen loans of other types. There is a demonstrated public need and demand for the services of Sweetwa-ter Savings Association in the community to be served by the proposed branch office, and the ability of the Association to attract the business necessary to insure the profitable operation to the Association of the proposed branch office within a reasonable time is manifest from its existing volume of business within the community. The needed and beneficial services to be provided by the proposed branch office can and will be rendered without an unduly adverse effect on any other association.
      “Dr. James R. Vinson, a qualified expert in the field of economics, testified: that the volume of business in the community in which the proposed branch office will conduct its business is such as to indicate a profitable operation to Applicant within a reasonable period of time; and that the proposed operation of the branch office will not unduly harm any other association operating in the vicinity of the proposed location. The record as a whole and the various data cited in this part IV of the Order and brought forward by Dr. Vinson at the hearing support the reasonableness and correctness of these opinions. The Commissioner hereby adopts as findings and relies upon said opinions and conclusions of Dr. Vinson.”


author: JAMES, Justice.

text:
    The STATE of Texas, Appellant, v. William L. TEER et ux., Appellees.
    No. 5599.
    Court of Civil Appeals of Texas, Waco.
    Oct. 7, 1976.
    Rehearing Denied Oct. 28, 1976.

      Gordon H. Rowe, Jr., Gardere, Porter & DeHay, Dallas, Joe D. Jarrard, Jr., Austin, for appellant.
    L. L. Geren, Groesbeck, McClintock, Herring & Youts, Waco, for appellees.
   OPINION

JAMES, Justice.

This is a suit for personal injuries growing out of a car-truck collision. After jury verdict the trial court entered judgment in favor of Plaintiffs William L. Teer and wife Helen Joyce Teer against the Defendant State of Texas for $75,853.94 and costs, from which the State appeals. We affirm.

The Teers brought this suit against the State of Texas under the Tort Claims Act/ Article 6252-19, Vernon’s Annotated Civil Statutes, for personal injuries sustained by Mrs. Teer growing out of a collision of the car she was driving, with a State Highway Department dump truck driven by one Clauzéll Cox. As a result of the accident Mrs. Teer sustained severe injuries to her entire body, suffering a broken jaw, a ruptured spleen, bone fractures, and dental and head injuries. Plaintiffs alleged that the dump truck was backed from the right hand side of the road onto the highway so as to obstruct that portion thereof along which Mrs. Teer was travelling.

Trial was to a jury, which found:

(1) Clauzell Cox (the driver of the dump truck) failed to keep a proper lookout, (2) which was a proximate cause of the collision; (3) that Cox backed his vehicle when such movement could not be made with safety and without interfering with other traffic, (3A) which was negligence and (4) a proximate cause of the collision; (8) that Mrs. Teer failed to keep a proper lookout, (9) which was a proximate cause of the collision; (16) that Mrs. Teer failed to properly apply her brakes, (17) which was a proximate cause of the collision; (20) that the Teers suffered the following damages, to wit, (a) $40,000.00 for past pain and suffering, (b) $30,000.00 for future pain and suffering; (c) zero for the value of Mrs. Teer’s past household services, (d) $15,-000.00 for value of the future loss of Mrs. Teer’s household services., (e) $7817.43 for past hospital and medical care, and (f) $2000.00 for future medical care. The jury further found in answer to special issue no. 21 that Clauzell Cox was 80% negligent and that Mrs. Teer was 20% negligent.

Pursuant to and in harmony with the jury verdict the trial court entered judgment that the Plaintiffs Teer recover $75,-853.94 and costs against the State of Texas, from which the State appeals. We overrule all of Defendant’s points and contentions and affirm the trial court’s judgment.

Appellant’s first point asserts the trial court erred in “refusing to properly instruct the jury in response to its note” sent to the court while the jury was deliberating. After the presentation of the evidence had been concluded and the jury was deliberating, the jury sent a written note to the court in the following language:

“Your honor: On Issue No. 3, do you mean Mr. Cox backed the truck in gear or involuntary rolling? Are in gear and involuntary rolling synonymous terms? Respectfully, Preston Shields.”

In response to this note the court sent back to the jury a note containing the following language:

“In reply to your inquiry I can give you no further instruction. Please carefully read the instructions in the charge heretofore given you.”

Special Issue No. 3, the subject matter of the jury’s note, was submitted to the jury in the following wording:

“Do you find from a preponderance of the evidence that on the occasion in question Clauzell Cox backed his vehicle when such movement could not be made with safety and without interfering with other traffic?”

Appellant takes the position that this issue is inquiring only about a voluntary “in gear” backing and did not inquire about any involuntary backward movement of the truck; and that the trial court erred in refusing to instruct the jury that it should not attribute to this issue an ambiguous meaning. In other words, Appellant says the trial court should have instructed the jury that the “backing” in the issue meant only a voluntary “in gear” backing. We do not agree.

The word “back” is a very common term, and the jury is supposed to use common sense and common interpretation of this language in arriving at their verdict. The word “back” or “backing” has a common interpretation and meaning and could mean either that the truck was driven back or rolled back.

As a matter of fact, there is no evidence in the record that Cox put the truck in gear and voluntarily backed the truck into the path of Mrs. Teer’s car. On the contrary, the evidence showed that immediately prior to the accident, Cox had parked the truck on the shoulder of the highway and was sitting in the cab of his truck under the steering wheel with the engine running, with the truck in neutral (gear), which truck was parked on an incline which sloped downward toward the direction from which Mrs. Teer’s car approached. Cox was sitting in the truck eating a sandwich at the time his truck was struck in the rear by Mrs. Teer’s car. More will be said about the facts of the collision under other of Appellant’s points; however, here it should be said that any movement of the truck immediately prior to the accident was shown by the evidence to be an involuntary rolling back as opposed to a voluntary “in gear” backing. We hold that the wording of this special issue inquired of an involuntary rolling back of the truck as well as an “in gear” backing, and that the trial court did not err in refusing to give further instructions to the jury. Appellant’s first point is overruled.

Appellant’s points eight through twenty assert there is no evidence and insufficient evidence to support the jury’s answers to the following special issues:

(1) To special issue Nos. 1 and 2, wherein it was found Clauzell Cox failed to keep a proper lookout, and proximate cause because of same.

(2) 'fo special issues Nos. 3, 3(a), and 4, wherein the jury found that Clauzell Cox backed his truck when such movement could not be made with safety and without interfering with other traffic, that same was negligence, and a proximate cause of the collision.

(3) To special issue No. 20(d) wherein the jury found $15,000.00 as damages for loss of the value of Mrs. Teer’s household services in the future, and in the alternative that said amount is excessive.

From our careful examination of the entire record we find ample evidence to support the jury’s answers to all the above special issues, and hold that the evidence is legally and factually sufficient to support the jury’s answers to the above issues.

The accident happened on or about February 5, 1974, shortly after 9 o’clock in the morning in the outskirts of the City of Mexia, Texas, on U.S. Highway 84.

Shortly before the accident, Clauzell Cox, travelling west on U.S. Highway 84, pulled the State Highway Department dump truck off the main paved portion of the highway and onto the righthand shoulder of the highway in front of Jackson Tractor Co. and stopped to wait for the arrival of other equipment. His engine was running, the truck was in neutral gear, and the truck was sitting on an incline which sloped downward in an easterly direction from the truck towards the direction from which Mrs. Teer’s car approached. Cox was sitting in the cab of the truck, had gotten a sandwich out of his lunch box and was eating it, and he testified that at this time “something hit me from behind,” thereby causing his truck to “go forward to the right about five feet.” What hit him was an Opel automobile driven by Mrs. Teer.

On this occasion Mrs. Teer with two small children in the car with her, was driving an Opel automobile west on U.S. Highway 84 about 35 to 40 miles per hour. She testified that this dump truck parked off the right-hand side of the main paved part of the highway, suddenly and unexpectedly backed out into the highway in front of her, causing the right front of her car to strike the left rear of the truck. Jimmy Porter, the ambulance driver who carried Mrs. Teer away from the scene to the hospital, testified that Mrs. Teer told him several times enroute that the truck backed out in front of her. This was corroborated by Mr. Teer, who was driving another automobile about four car lengths ahead of Mrs. Teer at the time of the accident. Mr. Teer testified that he noticed the dump truck parked on the right shoulder when he passed it going west, and that at the time his wife’s car struck the truck, that the truck was out in the highway, so that he could see only about half of his wife’s car because of the truck’s blocking his view. Mr. Teer never did actually see the truck in backward motion, but merely testified to the truck’s changed position between the time he passed the truck and the time of the collision. On the other hand, Clauzell Cox testified that the dump truck never did move from its parked position at any time prior to the impact. A Mr. Buck Day, an employee of Jackson Tractor & Equipment Co., was an eyewitness to the accident, and he testified that the dump truck did not move from its parked position before the impact.

The physical facts are supportive of the jury’s findings that Cox failed to keep a proper lookout, and that same was a proximate cause of the collision. The truck being parked on the side of the main paved portion of the highway with the engine running, being in neutral, and sitting on an incline sloping downward so that if the truck should roll back, that it would roll into the highway in the probable path of oncoming vehicles, with Cox as driver thereof eating a sandwich, all point to and are evidentiary of Cox’s failure to keep a proper lookout, which failure was certainly a proximate cause of the accident. Moreover, there is ample evidence to support the jury’s findings that Cox allowed the truck to roll backward into the main paved portion of the highway into the path of Mrs. Teer’s automobile, that this was negligence, and a proximate cause of the collision.

With reference to the jury’s answer of $15,000.00 for loss of the value of Mrs. Teer’s household services in the future: We find the evidence to be legally and factually sufficient to support this amount of money, and we further find that this amount is not excessive. Dr. William E. Wagnon, an orthopedic surgeon who treated Mrs. Teer, testified that when Mrs. Teer was brought to him at the hospital in Waco, that she was in a serious condition, that she had depressed blood pressure, a fractured femur thigh bone (a compound fracture); that he called in Dr. Goldberg, a neurosurgeon, to see her, along with Dr. Baskin, another surgeon, to see her because he (Dr. Wag-non) thought she might have something wrong with her in her abdomen. He also had Dr. Lance, an oral surgeon, see her, and then they took her to the operating room and put about three pints of blood into her. Dr. Wagnon testified that he was afraid to operate on her even after giving her the blood because she was not doing too well. Then Dr. Baskin assisted by Dr. Wagnon opened up her abdomen, and they found Mrs. Teer had a lacerated spleen which was bleeding inside, and they removed the spleen. She also had a fractured jaw, and Dr. Lance operated on her jaw. Dr. Wag-non then performed surgery on her right leg, noting that she had a problem concerning her knee cap. She had to remain in traction in the hospital for two and a half to three months, during all of which time she was unable to turn over in bed. All told, she remained in Hillcrest Hospital in Waco, Texas, for three months, from February 5, 1974 until May 4, 1974.

Dr. Wagnon testified that Mrs. Teer had a serious limitation of motion in her right knee, that she would continue through life in relatively this same condition; that she was not able to bend, get down on the floor, and get up and down doing housework. At the time of the accident she was 26 years old and had a husband and three small children, seven, six and four years of age; that when she sits for a long period that she has difficulty walking when she gets up, because the leg tended to stiffen. Dr. Wagnon further testified that her condition was such that she would continue to endure pain in the future. Mr. Teer was required to clothe and bathe the children and wash their clothes and had to help his wife in mopping the floors and cleaning the house. Mrs. Teer had to sit in a chair to wash dishes. We find the evidence legally and factually sufficient to support the jury’s answer of $15,000.00 for the value of the loss of Mrs. Teer’s household services in the future, and that said amount is not excessive.

Appellant’s points two through seven complain alleged acts of jury misconduct, including (1) the foreman visiting the scene of the accident during jury deliberations and allegedly reporting this back to the jury; (2) the jury foreman giving the jury a definition of the term “prudence”; (3) alleged remarks about the veracity of Mr. Buck Day, an eyewitness to the accident; (4) alleged discussion of attorney’s fees; and (5) alleged discussion by the jurors concerning proper parking practices; and (6) the cumulative effect of all these alleged acts of misconduct.

Without detailing the evidence given by the jurors at the motion for mistrial and motion for new trial, we overrule all of Appellant’s points of alleged jury misconduct. Basically, in each instance the evidence was conflicting, with there being some evidence that the alleged improper conduct occurred, other evidence wherein improper remarks were met by warnings that they should not be made, followed by no further mention thereof again, and still other evidence to the effect that the alleged improprieties were not even observed. The trial court overruled the motion for new trial, thereby impliedly finding that the alleged misconduct did not occur, and if it did occur, that it was not material and did not result in probable injury to Defendant-Appellant. We reach the same conclusions.

In order to grant a new trial for jury misconduct: (1) such misconduct must be proved; (2) such must be material; and (3) it must reasonably appear that probable injury resulted to the complaining party. Rule 327, Tex.Rules of Civil Procedure; Crawford v. Detering Co. (1951), 150 Tex. 140, 237 S.W.2d 615; Mrs. Baird’s Bread Co. v. Hearn (1957), 157 Tex. 159, 300 S.W.2d 646; Jordan v. New Amsterdam Casualty Co. (CA 1961), Tex.Civ.App., 353 S.W.2d 256, reversed on other grounds, Tex., 359 S.W.2d 864. Here, Appellant has failed to meet the burden imposed upon it in order to become entitled to a reversal and new trial. See Geo. C. Vaughan and Sons v. Dyess (Texarkana CA 1959), Tex.Civ.App., 323 S.W.2d 261, writ dismissed.

We have carefully considered all of Appellant’s points and contentions, and overrule same. Judgment of the trial court is affirmed.

AFFIRMED.


author: SPURLOCK, Justice.

text:
    INTERCITY INVESTMENTS CO., Appellant, v. Chester PLOWMAN d/b/a A-Better Striping Company, Appellee.
    No. 17751.
    Court of Civil Appeals of Texas, Forth Worth.
    Oct. 8, 1976.

      Johnson, Bromberg, Leeds & Riggs, and Richard L. Jackson, Dallas, for appellant.
    Bagby, McGahey, Ross & Devore, Inc., and Terry B. Arnn, Arlington, for appellee.
   OPINION

SPURLOCK, Justice.

This is an appeal from a judgment and award of attorney’s fees against two individuals and a limited partnership and its general partner in a suit on a sworn account. The appeal rests primarily on the grounds (1) that there is no evidence that the entity is in fact a limited partnership and no cause of action was proved against it, (2) that the limited partnership was not a party to the suit, and (3) that the judgment against the individuals was not properly based on a quantum meruit theory because the evidence reflects the existence of an express contract between plaintiff and the limited partnership.

A-Better Striping Company, a sole proprietorship owned by Chester Plowman, by his first amended original petition sued Intercity Investments Company, a Texas corporation, Leo F. Corrigan, Jr., and Edwin B. Jordan, d/b/a Ector Square Apartments, upon a sworn account for materials and services furnished for the repair of an asphalt paved area at the Ector Square Apartments complex.

The defendant, “Intercity Investments Company, a Texas corporation,” answered, stating under oath that it was not doing business under an assumed name or trade name as alleged, together with denials of the account.

By supplemental pleadings plaintiff alleged that Leo F. Corrigan, Jr., and Edwin B. Jordan are a partnership, doing business as Intercity Investments, which operates and manages the Ector Square Apartments. Ector Square Apartments is owned by Leo F. Corrigan, Jr., and Edwin B. Jordan. Plaintiff also alleged that Jim Bush is the manager of Ector Square Apartments with express or implied authority to contract for same and that he requested the plaintiff to perform the repair work. It is further alleged that Jim Bush was employed by Intercity Investments to manage these apartments for the owners; and that Leo F. Corrigan, Jr., Edwin B. Jordan, and Joe B. Turner, Jr., under the name of Intercity Investments, are the agents for the owners of Ector Square Apartments, Edwin B. Jordan and Leo F. Corrigan, Jr.

The defendants, by their first supplemental answer filed in response to plaintiff’s second supplemental petition, deny (1) any additional allegations of fact set forth in plaintiff’s second supplemental petition, and (2) the allegations that Corrigan and Jordan are doing business as Intercity Investments as alleged.

The judgment provides that the plaintiff recover of and from, “Edwin B. Jordan, Leo F. Corrigan, Jr., Intercity Investments Co., a limited partnership and Edwin B. Jordan the general partner thereof, jointly and severally, the sum of $2,165.00 together with interest at six percent (6%) from June 26, 1975 until paid, together with costs of suit. Attorneys fees in the amount of $850.00 are adjudged against Intercity Investments Co., a limited partnership and Edwin B. Jordan the general partner thereof. All relief sought not granted is denied.” (Emphasis supplied.)

The case was tried without the aid of a jury. No findings of fact and conclusions of law were requested or filed.

Notice of appeal was given in the following language: “COME NOW the Defendants in the above entitled and numbered cause . . ..” (Emphasis supplied.)

Intercity Investments Company, Leo F. Corrigan, Jr., and Edwin B. Jordan are recited as being principals in the appeal bond, but only signator was “Intercity Investments Co.”, and obligations stated by the bond was likewise to be that of “Intercity Investments Company”. No motion to dismiss the appeal on account of defective bond was filed. It is not clear whether Intercity Investments, a partnership (against whom the judgment was decreed) is appellant, or whether it is Intercity Investments, a Texas corporation, which is appellant. Had there been presented some character of motion challenging the appeal bond a proper procedure would be that outlined in Owen v. Brown, 447 S.W.2d 883 (Tex.Sup.,1969).

In any event the appeal is also presented by Leo F. Corrigan, Jr. and Edwin B. Jordan. The matter of what other appellant is before us will be discussed in the body of the opinion.

Judgment is modified and, as modified, affirmed.

Appellants, by their points of error Nos. 1 and 2, assert error of the trial court in granting judgment against Intercity Investments Company, a limited partnership, because there is no evidence that this entity is a limited partnership and no cause of action was proved against it.

By their points of error Nos. 3-6, error is alleged because the partnership was not a party to the suit; it was error to grant judgment against Edwin B. Jordan, as a general partner, because the partnership was not a party to the suit; no cause of action was alleged or proved against Jordan as an individual; and the awarding of attorney’s fees was error for the same reasons.

Appellants cite no authority in support of their first 6 points of error.

The judgment recites: “ON THIS THE 9th day of June, 1975, came on to be heard the above entitled and numbered cause, no jury having been requested, all parties having announced ready . . ..” (Emphasis supplied.)

The record reflects that Joe B. Turner is a general partner and the managing partner of Intercity Investments, a limited partnership. He appeared in court and testified that Intercity Investments is a limited partnership, that he and Edwin B. Jordan are general partners, and that this entity manages Ector Square Apartments, which are owned by Edwin B. Jordan and Leo F. Corrigan, Jr., a partnership. There is nothing in the record that would indicate that all the parties did not appear and announce ready. Such a recitation in the judgment is presumed to be true, especially when there is nothing in the record to indicate that such recitation is not true. Roberts v. Roberts, 405 S.W.2d 211 (Tex.Civ.App., Waco, 1966, affirmed Tex., 407 S.W.2d 772).

In Perkins v. Terrell, 214 S.W. 551 (Tex.Civ.App., Amarillo, 1919, ref.) it was held that where the authority of plaintiff to sue for the use and benefit of a necessary party to the suit did not otherwise appear, it will be presumed, in support of judgment for plaintiff, that such party was personally present at the trial directing the suit so far as it affected his interests. See also 4 Tex.Jur.2d (Part 2) (1974 Rev.), App & Err— Civil Cases, Sec. 707, Review — Presumptions Favoring Judgment — Parties.

Ordinarily the function of plaintiff’s supplemental petition is to contain special exceptions, general denials, and the allegations of new matter not before alleged by him, in reply to those which have been alleged by the defendant. Rule 80, T.R.C.P.

In his supplemental petition, however, plaintiff alleges that Intercity Investments is a limited partnership. This was not filed until the defendants, by their pleadings, put plaintiff on notice that he probably had no cause of action against this defendant as a corporation. Thus, his supplemental petition was filed in response to defensive pleadings.

If the necessity for thus adding a new party, or for pleading that a prior party is not a corporation, but is a limited partnership, grows out of the facts pled in defendant’s answer, then new parties may be brought into the suit by supplemental petition. Harris v. Cain, 41 Tex.Civ.App. 139, 91 S.W. 866 (Tex.Civ.App., 1905, no writ hist.). See also 44 Tex.Jur.2d (1963 Ed.), Sec. 31, Bringing in New Parties — By plaintiff’s amended or supplemental pleadings.

Defendants did not object to the manner in which the partnership was made a party to the suit.

Although plaintiff in his supplemental petition alleged that Chester Plowman was a plaintiff but did not specifically state that Intercity Investments, a partnership, was a defendant, it is presumed that the party first named is plaintiff and all others are defendants. Russell v. Koennecke, 197 S.W. 1111 (Tex.Civ.App., San Antonio, 1917, no writ hist.).

Pleadings are ordinarily given liberal construction in order to ascertain the intent of the pleader and should be so construed as to do substantial justice. Hatten v. Mohr Chevrolet Company, 366 S.W.2d 945 (Tex.Civ.App., Dallas, 1963, no writ hist.); American Manufacturing Company of Texas v. Witter, 343 S.W.2d 943 (Tex.Civ.App., Fort Worth, 1961, no writ hist.).

Jordan contends he is not liable individually. In plaintiff’s first amended original petition Edwin B. Jordan is a named defendant. In the supplemental petition he is sued as an individual and in representative capacities. In response to both pleadings he filed verified answers. This constitutes an appearance. Rule 121, T.R.C.P. In 6 Tex.Jur.2d, Sec. 9 (1959 Ed.), Appearance — Filing of defensive pleadings — the rule is stated: “In this state, all defensive pleadings are styled the ‘answer’; and a defendant who files any defensive pleading makes such an appearance as gives the court jurisdiction over his person as fully as would the issuance of proper citation.”

It is undisputed that Jordan is a general partner in the limited partnership and that he was served with citation and answered. The provisions of Art. 2223, Y.A.T.S., apply. This statute provides that, “Where the suit is against several partners jointly indebted upon contract, and the citation has been served upon some of such partners but not upon all, judgment may be rendered therein against such partnership and against the partners actually served, but no personal judgment or execution shall be awarded against those not served.”

Article 6132a, Y.A.T.S., Uniform Limited Partnership Act, Sec. 10(a), provides that a general partner in a limited partnership shall be subject to all the liabilities of a partner in a partnership without limited partners with the exceptions therein stated, none of which are here applicable.

We conclude that the trial court had jurisdiction over this defendant in all the capacities in which he was sued.

The defendants against whom judgment was rendered entered their appearance in all capacities when they filed their first supplemental answer. Maytag Southwestern Co. v. Thornton, 20 S.W.2d 383 (Tex.Civ.App., Amarillo, 1929, dism.); White v. Zoning Board of Adjustment of Arlington, 363 S.W.2d 955 (Tex.Civ.App., Fort Worth, 1962, ref., n.r.e.); Stewart v. Walton Enterprises, Inc., 496 S.W.2d 956 (Tex.Civ.App., Austin, 1973, ref., n.r.e.).

Points of error 1-6 are overruled.

By their 7th point of error appellants assert error in the granting of judgment against Jordan and Corrigan upon a theory of quantum meruit because the proof shows an express contractual agreement was made between plaintiff and Intercity Investments, a limited partnership.

By their 8th point, error is claimed because the recovery of attorney’s fees on a theory of quantum meruit is not warranted as a matter of law.

Appellants state in their brief that there was without question a contract or an agreement between the plaintiff, Chester Plowman, and Jim Bush on behalf of Intercity Investments, a limited partnership, and that therefore he cannot recover on an implied contract theory.

It is undisputed that Jim Bush ordered the work done. He had authority to do so. In addition thereto, Mr. Turner, a general partner in Intercity Investments authorized the work. No oral or written contract was entered into. No consideration or fixed price for doing the work was discussed. Under these circumstances the law generally implies a promise to pay a reasonable compensation therefor. 62 Tex. Jur.2d (1965 Ed.) Sec. 2, Work, Labor, and Materials — Elements of Implied Obligation — In general; Rendition of services. The agreement under which this work was done certainly was not an express contract.

There are allegations that Intercity Investments, a limited partnership, in ordering this work done was acting as an agent for the other defendants who were the owners of the apartments. The judgment, however, does not disclose whether it was based on contract or quantum meruit.

In the absence of findings of fact and conclusions of law, a reviewing court will presume that the trial court found every issuable fact necessary to sustain judgment, where such fact is raised by pleadings and can be supported by any reasonable theory supported by evidence and authorized by law. Beddall v. Reader’s Wholesale Distributors, Inc., 408 S.W.2d 237 (Tex.Civ.App., Houston, 1966 no writ hist.).

Whether this be a suit on an implied contract, on a quasi contract, or in the nature of quantum meruit, under the facts of this case plaintiff could recover his attorney’s fees. He specifically pled Art. 2226, V.A.T.S., and the terms thereof, and that he had complied therewith. This Article provides in part that if “Any person having a valid claim against a person or corporation for . . . services rendered, labor done, material furnished, ... or suits founded upon a sworn account or accounts . may also recover, in addition to his claim and costs, a reasonable amount as attorney’s fees, if represented by an attorney.”

These pleadings are supported by evidence in the record.

In Ferrous Products Co., Inc. v. Gulf States Trading Co., 160 Tex. 399, 332 S.W.2d 310 (Tex.Sup., 1960) that court held in a similar fact situation that attorney’s fees are allowable.

Points 7 and 8 are overruled.

It is clear that by the provision of the judgment that “. . . all relief sought not granted is denied”, plaintiff recovered nothing against Intercity Investments Company, a Texas corporation. The judgment specifically grants judgment against Intercity Investments Co., a limited partnership, and may not be disturbed whether it is an appellant or is not. Inadvertently the abbreviation “Co.” appears after the name of the partnership. In order to clarify any ambiguity that might exist the judgment is reformed by deleting the word “Co.” from each place in which it appears in the judgment.

As reformed, judgment affirmed.


author: BREWSTER, Justice. '

text:
    William Howard CLEMENT, Appellant, v. Adam S. NACOL, Appellee.
    No. 17753.
    Court of Civil Appeals of Texas, Fort Worth.
    Oct. 8, 1976.
    Short & Copeland, and Donald E. Short, Wichita Falls, for appellant.
    Nelson, Montgomery & Robertson, Keith Nelson and Charles R. Wilson, Wichita Falls, for appellee.
   OPINION

BREWSTER, Justice. '

The plaintiff, Adam S. Nacol, sued defendant, Howard Clement, in trespass to try title. The case started as a jury trial, but at the close of all the evidence the trial court dismissed the jury and rendered judgment, stating that the court was of the opinion that plaintiff, Nacol, should recover from the defendant, Clement, the title and possession of the premises described (the land was here described in the trial court’s judgment by metes and bounds).

The judgment also stated the following:

“The Court further finds that the Plaintiff has the right, after having put up partitions which are adequate to support the sections of any building lying partially on adjoining land, to take down the parts of any such buildings which encroach upon the Plaintiff’s land described more particularly above.”

The appeal is brought by the defendant, Howard Clement, from that decree.

The defendant’s answer contained a “not guilty” plea. It also alleged: “If further Answer is needed, Defendant alleges that he has never asserted any right of possession to real property owned by the Plaintiff.” It also contained a general denial.

The lawsuit centers around three lots or tracts of land. Two of those lots had a common boundary line running generally north and south. The north boundary line of both of those lots was also the southern boundary line of the third lot. The third lot adjoined the other two lots on the north. At one time, prior to the involvement of either plaintiff or defendant with them, all three lots were leased to the same person. During that period one warehouse-type building was built, a part of which was located on each of the three lots.

Mr. Clement, defendant, acquired a leasehold interest in the three tracts under separate leases. At that time the building was already built. Clement leased one of those tracts from the Deatherages; another from the Hairstons; and the third from the Fort Worth and Denver Railroad. The Deather-age tract is the one in dispute in this case. It lies to the west of the Hairston tract which Clement now owns. The Fort Worth and Denver Railroad Tract lies to the north of the other two lots, and its southern boundary line is the north line of the other two lots.

Mr. Clement has continued the lease on the Railroad tract, and he has bought the Hairston tract from the descendants of D. D. Hairston, who were the fee owners. ' Mr. Clement allowed the lease on the Deather-age tract to lapse. It is the title to the Deatherage tract that is in dispute.

Plaintiff’s pleadings put in issue the title to the entire tract involved.

At the conclusion of all of the evidence the trial court took the case from the jury and rendered judgment for plaintiff. Plaintiff’s contention on the appeal is that he had established as a matter of law that the plaintiff and defendant both deraign their title from a common source and that the title he has from the common source is superior to the title that defendant derived from that same source. His contention is that plaintiff’s immediate predecessors (the Deatherages) were the common source of title.

Plaintiff also contends that he proved as a matter of law that he had prior possession of the land in controversy and was entitled to judgment as a matter of law on that theory.

We reverse and remand.

Defendant’s fourth point of error is that the trial court erred in admitting into evidence a xerox copy of a warranty deed (PX 5) purporting to convey title to the land involved from plaintiff’s immediate predecessors (the common source) to the plaintiff, Nacol.

We sustain that point of error.

PX 5 is a picture of an original instrument (a deed), and the evidence is to the effect that if plaintiff does have title to the land involved, he got it by virtue of that deed.

PX 5 was identified as a copy of a warranty deed signed by Gerald E. Deatherage and wife, Monte E. Deatherage and wife, and Bruce Deatherage. It purported to convey title to the land involved to the plaintiff, Nacol. When plaintiff offered the copy into evidence, the defendant objected on the grounds that it was not the best evidence and because a proper predicate had not been laid. The trial court overruled the objection and admitted the exhibit into evidence.

A written instrument is itself the best evidence of its contents. Service Mut. Ins. Co. of Texas v. White, 138 S.W.2d 273 (Tex.Civ.App., Galveston, 1940, writ ref.) and Pettit v. Campbell, 149 S.W.2d 633 (Tex.Civ.App., Fort Worth, 1941, no writ hist.). The general rule is that if the original writing is not produced or its non-production accounted for, secondary evidence of its contents is not admissible. Wheat v. Citizens National Bank at Brownwood, 310 S.W.2d 735 (Tex.Civ.App., Eastland, 1958, ref., n. r. e.) and Hill v. Taylor, 77 Tex. 295, 14 S.W. 366 (1890).

A summary of the rules as to production of the original document is clearly and accurately stated in “Texas Law of Evidence” (Sec. 1562, p. 401) as follows: “Where inquiry is being made as to the contents of a material document, the only competent evidence of such contents is the document itself, unless the document be first shown to be unavailable as being lost or destroyed or absent from the jurisdiction without fault on the part of the person offering the evidence, or as being in the adversary’s possession where he has been notified to produce it, or as being a part of the public records, in all which cases other evidence may be resorted to.

“The rule is dispensed with in cases where the exact terms of a document are only ‘collaterally’ involved in the litigation, and also where the admission of the adversary himself or his privies in interest, as to the terms of the document, are offered.”

In this case the plaintiff made no effort whatsoever to lay a predicate to show that a copy of the deed was admissible under any of the exceptions to the general rule that are set out above. He also made no effort to make the exhibit admissible by complying with Art. 3726 or Art. 3726b, V.A.C.S.

Plaintiff now contends that the copy was admissible under Art. 3731c which is as follows:

“Photographic or photostatic copies of written instruments; use in judicial or administrative proceedings

“Any copy or reproduction of a writing or written instrument, by photographic, photostatic, microfilm or other processes which accurately reproduces or forms a durable medium for reproducing the originals of any such writing or written instrument, can be used and its use shall be permitted in any judicial or administrative proceeding or trial, including the taking of depositions, where the party using the same, at the time of its offer in evidence either produces the original or reasonably accounts for its absence, or where there is no bona fide dispute as to its being an accurate reproduction of the original. This Act shall be cumulative of any other statutory or common law relating to the subject hereof. Acts 1959, 56th Leg., p. 867, ch. 393, § 1.”

Plaintiff contends that it was admissible under that statute on the proof made because there is no bona fide dispute as to its being an accurate reproduction of the original.

We disagree with that contention. To make the exhibit admissible on the theory urged by plaintiff, it was incumbent on him to lay a predicate by showing that there was no bona fide dispute as to the copy being an accurate reproduction of the original. Plaintiff made no effort to lay such a predicate. The instrument was therefore not admissible under Art. 3731c on the theory urged by the plaintiff.

When he offered the Exhibit 5, plaintiff simply offered evidence identifying the exhibit as being a copy of a deed, had the witness identify the signatures of the grantors as being genuine, and then offered it into evidence, at which time the defendant promptly objected to its being introduced on the grounds that it was not the best evidence of the deed.

We hold that the trial court abused its discretion in admitting PX 5 into evidence under the facts of this case because there was no evidence from which it could conclude that there was no bona fide dispute between the parties on the question of whether the exhibit was an accurate reproduction of the original.

The error in admitting this exhibit into evidence was a prejudicial one. The exhibit did not relate to a collateral matter. It is the instrument by which plaintiff contends he acquired title to the lot from the common source. Without this deed plaintiff did not prove up a case under the common source doctrine.

There was also no evidence in the case tending to show that the plaintiff has ever personally had possession of the tract involved. There is evidence to show that the Deatherages had possession and that at one time they rented the land to Clement. In the absence of proof of a conveyance from the Deatherages to the plaintiff, under the facts of this case, the plaintiff also failed to prove his right to a judgment against Clement under the prior possession theory which he now also relies upon to uphold the decree involved.

Our ruling above expressed on defendant’s point of error No. 4 controls the decision of this appeal.

Defendant urges other points of error. All questions as to the admissibility of copies of other instruments that were also admitted into evidence could have been taken out of the case by simply complying with Art. 3726 and Art. 3726b, V.A.C.S.

The questions involved in the other points of error, after the parties have had the occasion to brief them on this appeal, will probably not arise on a retrial of the case. For that reason, we will not discuss them.

We here call attention to the wording of the judgment appealed from. The trial court simply made several findings, without ever decreeing anything. A judgment so worded is questionable, to say the least. We assume that that question will also be removed on a retrial.

We are convinced that the interests of justice require that we remand instead of render judgment as requested by defendant.

Reversed and remanded.


author: BREWSTER, Justice.

text:
    Ex Parte Marion Wayne NEFF, Relator.
    No. 17834.
    Court of Civil Appeals of Texas, Fort Worth.
    Oct. 8, 1976.
    Handy & Morgan, Inc., and James R. Handy, Hurst, for relator.
    Wynn, Brown, McConnico, Mack, Renfro & Thompson, Darrell W. Wood, Fort Worth, for Wilma G. Neff.
   OPINION

BREWSTER, Justice.

This is an original habeas corpus proceeding. The relator, Marion Wayne Neff, seeks to be discharged from the custody of the sheriff where he had been placed by an order of the Domestic Relations Court No. 4 of Tarrant County, which order committed him to jail for contempt.

That court on July 16, 1975, had rendered a decree granting the respondent, Wilma Neff, a divorce from relator. The decree made her managing conservator of their child born on February 5, 1958, who was at the time of the decree seventeen years old. Relator was ordered to pay child support for the child and he did pay all of such child support as ordered. The boy is now 18.

The divorce decree recited that the parties had agreed to the judgment and they both did approve it.

The decree also undertook to divide the property of the parties providing in that connection in part as follows: “IT IS THEREFORE ORDERED that the community property owned by the parties shall be divided as follows: Petitioner is awarded the following property: ... (9) $17,-500.00 in lieu of property to be paid in equal payments of $175.00 each on the 1st day of each month and on the 15th day of each month, the first payment due and payable March 1, 1976, and continuing due and payable on the 1st and 15th day of each month thereafter until the total amount is paid in full.” The decree awarded other items of property to respondent and some items to relator.

It is undisputed that relator has not made any of the $175.00 bimonthly payments provided for by the provision of the judgment just referred to.

The respondent in August, 1976, filed a contempt motion seeking to have Neff adjudged in contempt of court for wilfully disobeying the court order by not making the $175.00 bimonthly payments referred to.

A contempt hearing was held and at its conclusion the trial court held that: Neff had wilfully disobeyed the court order by not paying the $175.00 bimonthly payments ordered; he was on the date of the hearing $2,250.00 behind; and that he was able to comply with the order. The court held Neff in contempt of court, ordered him to jail for 30 days and until he paid all of the accrued payments ($2,250.00).

Pursuant to the order, Neff was placed in jail. He filed this action seeking to be discharged from the custody of the sheriff.

We hold that the contempt order was void and discharge relator from custody of the sheriff.

Relator’s first point of error is that the trial court erred in holding him in contempt and in ordering his confinement in jail because such action results in a violation of his Constitutional rights and constitutes an imprisonment for debt in violation of Art. 1, Sec. 18 of the Texas Constitution.

We sustain that point of error.

A law review article by Judge Joe Green-hill and Martin Beirne, Jr., on this subject appears in 1 St. Mary’s Law Review 9 — 12. It is entitled, “Habeas Corpus Proceedings in the Supreme Court of Texas.”

Another good article dealing with the questions involved here is in 5 Texas Tech Law Review 645 (“Enforcing Divorce Judgments and Property Settlement Agreements in Texas”, by Morton A. Rudberg). The following is stated from that article at p. 653: “The contempt remedies are available to enforce only those portions of a judgment calling for delivery of assets . presently in existence . . ..” (Emphasis supplied.)

The following is from p. 654: “Inasmuch as contempt is reserved for enforcement of an order to deliver presently existing assets, it is clearly unavailable to enforce the breach of an obligation by one spouse to pay funds or deliver assets not presently existing.”

The following is from p. 656: “Provisions calling for payments in the future from nonexistent or unspecified funds . are said to be contractual in nature. Presumably, enforcement is by subsequent suit between the parties for breach of contract.”

In the case before us the Relator is not ordered to pay over funds in existence at the time of the decree or to which he then had a vested right to future payment. The decree does not specify any existing fund from which the payments were to be made. Relator is simply ordered to make future bimonthly payments to the ex-wife who was awarded them “in lieu of property.”

Nothing in the record before us indicates that the $17,500.00 or a vested right thereto was in existence at the time of the divorce decree. Whether we construe the language of the decree to mean, as the ex-wife argues, that relator was awarded property in exchange for which he was to make the future payments, or whether we construe it to mean that the ex-wife was being given the cash payments because there was not enough other property to award her, the fact remains that the divorce decree itself does not identify the $17,500.00 as funds in existence at the time of the divorce. The implication is to the contrary, since the decree did not seek to award the ex-wife an immediate interest in the funds, although it purported to divide the community property-

The burden was on respondent, Wilma Neff, to prove that the fund from which the $17,500.00 was to be paid to her by relator was in existence at the time the decree was rendered. Respondent did not meet that burden. The evidence at the hearing was all to the effect that no such fund or property existed at the time the decree was rendered from which this sum could be paid.

We hold that the effect of the divorce decree and of the agreement on which the property division decreed therein was based was to create a debt or obligation on the part of the relator, Marion W. Neff, to pay to respondent the sum of $17,500.00 in the future at the times ordered in the decree.

When the trial court adjudged Neff to be in contempt of court and ordered him to jail for not making those payments, it imprisoned him for debt in violation of Art. 1, Sec. 18 of the Texas Constitution, which provides: “No person shall ever be imprisoned for debt.”

An analysis of the opinions in the following eases leads us to the conclusions that we have reached in this case: Ex parte Preston, 162 Tex. 379, 347 S.W.2d 938 (1961); Ex Parte Yates, 387 S.W.2d 377 (Tex.Sup., 1965); Ex Parte Duncan, 462 S.W.2d 336 (Tex.Civ.App., Houston, 1st Dist., 1970, no writ hist.); and Ex Parte Jones, 163 Tex. 513, 358 S.W.2d 370 (1962).

We have considered relator’s remaining points of error and overrule them. We do not discuss them because our action on the first point of error controls a decision of the case.

Relator is discharged from custody. Costs are taxed against respondent, Wilma Neff.