Kamp v. Hargis Bldg. Co.

required. were not conflict in proximate on con- We find no cause issue answer to Bros., Dorsey Younger an undis- the negligence was at most answers. v. tributory Tex.Civ.App., opinion. 294. expression The evidence 216 S.W.2d cussed jurors an ad- does not show of the trial court is af- deliberately sought or agreement vance firmed. effect a de- preconceived their answers to supports the sired result. The evidence the answers based finding that were

jurors’ convictions about the evidence. in accord with the trial court’s are upon probable the issue in conclusion CO. al. KAMP et al. v. BLDG. et HARGIS jury precise point has and believe that the Supreme by the Court an been settled No. 12235. (cid:127)opinion which reviews and discusses Appeals Court of Civil of Texas. (cid:127)pertinent Carpenter, authorities. Ford v. Galveston. 561; Lyons 558, 447, 147 Tex. 216 S.W.2d 1, March 1951. Cope, Tex.Civ.App., v. 217 S.W.2d 116. Rehearing Denied March 1951. con Nor do we think there were jurors’ vi flicts in the answers such as to ap jury

tiate the verdict. Thé found that

pellant contributorily negligent fail

ing keep proper child over the watch proximate

and that this was a cause urged findings

(cid:127)death. It is that these con jury acquit findings by

flict with other

ting appellant contributory negligence place herself between her child failing failing

and the door also in elevator effect,

to hold hand. In jury the child’s appellant

found that conducted herself as ordinary person, prudent

would under circumstances, same or similar in not

the. child, imposing physical restraint holding standing

either his hand be him danger. jury

tween and the Yet the

found that she did not conduct herself as an

ordinary prudent person, under the di same circumstances, keep similar failing under,

child observation. Had the child kept mother, 'by

been under observation his jury no doubt felt that the child would responded timely warning or cau

tioning. physical im While restraint and

pediment would have been effective means cope danger, they known

not exclusive means. Observation contem

plated timely suitable admonition and obedi

ence on the of the child. The issues meanings

are as distinct as are physical restraint. Either

obedience and effective,

may are not the same be found that both methods jury has

278

Stovall, O’Bryan Stovall, Stovall, & T. J. Fulbright, Crooker, Freeman & Bates and Morrison, Houston, ap- Walter all of J. pellants. Randolph Butler, & William B. Butler Green, Houston, and Glenn M. all of Hargis Bldg. Co.

CODY, Justice. Hargis Building, This was suit Company purchase by rescind it from. wife, Saint,, Allen Saint and Hazel Wisch J. group of a certain of lots located in the cancellation, Houston; City of and for the the contract of sale and of other connected with the trans- recovery and for of the paid to said defendants grounds alleged thereunder. The were that defendants, through their real estate agents- sale, represented making prop- question erty in was bounded Ideal. thereto,. over which there was access pur- trial, parties At the conclusion after but some time thereon, moved instructed The court property in reliance verdicts. chased said representation was refused motion main discovered that granted that there plaintiff alleged motions of not true. And defendants, and representation party respec- that Ideal of the third was either a false tively, property accordingly en- the and was Street was the plaintiff against as to the tered main mutual mistake the defend- that there awas ants, etc., sale, boundary, giving access cancelling the location of said contract recovery portion and granting of the thereto. purchase paid. price which And had been general with a answered defendants any the the defendants court denied main denial, answered, among other specially and recovery party against the defend- third property, things, plaintiff bought the appealed, ants. have defendants main in the con- property was described and will hereafter defendants. be 'called deed, sale, instruments and tract other in the main will here be suit blocks, sale, by lots connected with referred as in court. the trial When map which was and with reference capacities parties their as referred in recorded, duly and which showed that it party proceeding, to this third defend- e., by acreage, was bounded on —i. ants will continue to referred be so to. any giving access thereto. by street actual, pled aforesaid defendants And the ap- predicated The defendants their implied knowledge or constructive points, peal the effect: five part that there was fact directing 1. The court in verdicts erred street; by no access to party and third respect estoppel pled and waiver with testimony all was interested any were made. said witnesses, testimony their raised pay- sought enforce And said defendants jury. credibility issue of for the their purchase unpaid balance of ment of the admitting 2. The court erred in testi- price. respect to mony of witnesses trans- addition, brought a In said defendants actions and conversations action the real estate party third compos with the and with the non deceased represented making in agents who had them mentis, opposite when not called sale, alleging in substance that said real party, opposite party’s objection over agents listing contract estate had a from contrary statute. allowing which had effect of defendants per twenty instead of the them cent usual erred, 3. “The Court as a matter commission, per and said five cent defend- law, holding in not that where brokerage sought recover the ants conveyed by accurately deed describing party been received de- sellers, property actually owned and deed rescinded, contract if the etc. was fendants map on its makes of a face subdivision in which land lies thereof reference filed, After suit was inclusive map, to said recorded Deed in Records of trial, and before defend- located, pur- in which died; County land Saint ant Allen Saint and Mrs. was J. chaser is matters bound reflected compos mentis. And in adjudged due non map, deed there is where no evi- an administrator of the Estate time of J. prevented purchaser that sellers dence from guardian Saint and of the Estate of Allen advising fully map what itself deed respectively appointed, Saint were Mrs. regard description, disclosed and this regularly par- made substituted who purchaser especially where had own attor- ties, proceeded suit in the names of ney deed, note draw deed of trust cov- substituted defendants. said ering property, and all such ac- Thereafter, plaintiff sought to have curately property.” described party suit from the third severed the main suit, but the court ruled 4. “The Court as a matter erred of law proper parties. defendants were overruling the defendant’s Motion for boundary, as the evi- its west and Ideal close of Verdict at the

Instructed boundary. its east That it .there no idea dence because would of the con- case that defendants that the probative any force sisted of a mu- acres. When Mr. ground about five support a recision Swilley Henrys, went mistake, mistake over with the unilateral tual since supposed boundaries, when shown corrected he listing contract substantially cor- stated that it was than contract which more in the earnest suit, Swilley, the five That as did acres. Mr. rectly land described the soon note, received, listing all drawn letter of exclusive deed of trust up signs set attorney, along the defendants the west side of Ideal by plaintiff’s Street to the effect counsel.” having benefit of sale, telephone for giving and his number. law matter of erred as 5. “The a Court prior for Swilley Motion That on defendant’s Mr. had overruling occasions plaintiff, the evi- done business with a the close of which was Instructed Verdict'at corporation sale, clearly from that built it was shown homes for and dence which, business, matter of law in connection that as a with its the evidence all not, not, put subdivisions, building under sometimes plaintiff on did and case, That circumstances thereon for sale houses for and residence. the facts Westbrook, misrepresentatbm and drove Hargis he Mr. and Mr. have relied on plaintiff corporation, who were officers of been misled.” property, told out to look at and them points, up we taking defendants’ Before property, pointed acreage that it was and by the admitted was note evidence (as out its understood them boundaries he following effect: to the court be), including property to the fact that the sell the wished to the defendants That by on was bounded its east Ideal Street. involved, listed it for and property here interpolate that, practical pur- We here for Henry, under a Mrs. Mr. sale with and poses, bayou the prop- cut off access to Saint, to afore- A. addressed letter from J. west; erty that if from the and there was Jr., Henry, dated March C. Mrs. H. said property, to be access to the it had to be reading: 22, 1946, Ideal Street. by triangular piece of have for sale a “I Plaintiff, buy property who wanted to Kelton O. P. Sur- property located sell, develop agreed for to to homesites Addition vey, lying Morningside East of buy $6,000.00, property for and it was by west Little White on the and bounded plaintiff the evidence of de- Bayou. Oak Swilley, preparatory fendants that Mr. property price at offering “I am this contract,- money drawing earnest went $5,000.00 giving me I net to am requested Mr. Saint accurate right sales you exclusive same “legal” description property, days of this letter.” period from date of ten Saint told him that that Mr. he believed could, conveyed that he find the deed which writing of this letter prior to the That him, property and that he looked in Mrs. that he Henry Saint had advised Mr. his desk and after a search found such like property for sale and would had n deed, Swilley got and that Mr. the lots and to make com- her husband for her and description blocks from said which Henry, Mr. and Mrs. with the mission. description property showed that the was approval of associated Mr. part Morningside Addition. That Swilley selling with them description placed was said earnest Swilley required it Mr. who And was Swilley> contract Mr. and was money listing property exclusive written in all other connected with the period days. used of ten The evidence sale for Swilley That when submitted sale. plaintiff Mr. defendants was the earnest contract Mr.- West- given the effect Mr. Saint brook, who was the officer of Henrys property cor- rough which handled, purchase acreage, poration who having the bayou showed to be six long, some hundred feet description, and said demurred at he strip acreage prop- bounded on the east was understood ground he Street, west, Swilley Ideal part, and on Mr. erty -acreage, but that property no plain- explain would make had been deeded to hastened to n difference, as tiff acreage strip, Saints. This that was the same no Westbrook it was-for pointed to Mr. sale. had been out Hargis bounded Mr. .and to undisputed that, —which It was without access We here inter- by Ideal Street. to the Ideal from it was that defendants’ polate to show purchase price worth a fraction of the that Mrs. Saint inherited effect paid It therefor. acreage, at it was property, which time undisputed agents, the- real estate ..that Addition shows plat Morningside .and the Saints, representing the represented to had. joined making the dedi- that defendants plaintiff’s officers that n cationwhich its subjected on the east Ideal bounded Street. The Mr. deed which status. The lot and block plaintiff, aforesaid, officers testified that him Mr. was shown Swilley testified believed said and re- produced by or third Saint was it, purchased lied would not have by not reflected party property except for such reliance. -the abstract. By force of Texas of Rules Civil that, pursu- The further showed evidence Procedure, 184, rule law the common- of re- ant to terms of earnest the the England application, in its to .evidence is ceipt, over the abstract of title turned State, the law of this with certain ex plaintiff; that showed the the abstract ceptions. exceptions. One of these is em Addition, plat Morningside and that of 3714, by in R.C.S. bodied Art. which the 1938; ap- that in had been dedicated rule, provided law. which common a that plat property the peared from said that pecuniary a interest of witness in the is on the east here involved was bounded his sue tried rendered evidence incom in- .acreage, only could be which it —from petent, was revoked. Whatever the rule that, map the was correct at ferred the -respect pe to witnesses having a n date Addition, plat Morningside of the -elsewhere, cuniary may interest be the it was not bounded on the east Ideal “As, rule Texas is: the in Courts tes showed that Street. The' evidence further witnesses, timony general of interested the guaranty a title obtained that, jury right rule is while the has no n described being lots the in blocks arbitrarily disregard positive the testi Addition; plain- also Morningside that mony unimpeached and of uncontradicted employed attorney tiff who drafted witnesses, fact the mere that witness notes; trust, of and vendor’s lien deed interested the result of suit is description .and used therein was that require credibility sufficient to deemed description according lots-and-blocks testimony jury. to be of his submitted to the Morningside map or of Addition. form, in another the rule is that Stated testimony Hargis, president uncontradicted, The of Mr. uncorroborated testi plaintiff-corporation, (cid:127)of party shows that mony after to a suit will not authorize elapsed, had support (Opin some months after most an instructed or verdict.” Supreme paid, Court.) (cid:127)of the consideration been adopted by he Sim ion abstract, Louis, took Ry. occasion to look at the St. B. & M. 127 mon'ds v. Co. that, 332, saw first according 23, for the time 91 S.W.2d at 333 and 334. Tex. plat, undertake will here to note purchased exceptions general bounded on east acre- to this rule. See Mc n .age. City Dallas, 170, prop- 180, therefore had the 141 Tex. Guire v. erty surveyed. 722, It was established think such 723. But we 170 S.W.2d survey that the bounded test of whether court must the ultimate ' Street, (cid:127)on part Ideal by acreage verdict founded direct a where pe- which was some three hundred upon testimony feet wide witness-with 282 may be article shall include all ac- tried extend to and cuniary in the issue interest legal rep- or any impartial, tions the heirs If phrased:

thus reasonable of the resentatives”. of all mind, examination after one case, hut can reach evidence foregoing vestigial re article is must instruct court conclusion, then the aforesaid, mainder of the common law rule may he though it based verdict, even pecuniary that a interest renders the testi testimony an interested mony incompetent. Ragsdale of a witness Oil & v. Stanolind Simonds See witness. Ragsdale, 476, v. 142 Tex. 179 S.W.2d 291. 226, 351, 332, 114 S.W.2d Co., Tex. 134 Gas And it is the settled law of this State that 207. 136 S.W.2d language strictly will be article beyond construed so as not to extend it its testimony the witnesses Here, plain meaning. International Travelers’ Hargis, officers Westbrook 67, Bettis, 120 Ass’n v. Tex. 35 S.W.2d to be the stated have what we illustrates 1040, history meaning 1043. Swilley They testified test. ultimate sufficiently opin forth article set in the property was bounded represented just cited, ion and in cases there referred ac- by Ideal to, Schell, Spencer 44, such thereby; v. 107 Tex. be had cess to the 867, opinion by 173 S.W. Chief Phil and, representation, Justice believed lips; Timon, Leahy 73, 110 Tex. v. thereon, would not except reliance opinion by Judge S.W. Greenwood. purchased compels that, It is Here, a whole clear as true. such evidence defendants were in acceptance of competent testify engaged building in was to as transactions and Corporation to The corporation bought the and conversations between themselves sale. for homes sites, agreeing They testify, home develop for defendants. were called to property to $6,000.00. however, respect by plaintiff to the sum with trans therefor pay by Ideal actions conversations between them access Without obviously not fit property was selves deceased defendant and the purchased. compos it was non mentis defendant. And their purpose for which for testimony, it not egress, be which was clearly inadmissible ingress and Without action, And the cost party home sites. was admitted developed for third over from objection across the the thereto defendants. This was no access gaining impartial, rea- prohibitive. ground No doubt either that done bayou was plaintiff agreed testimony that doubt such constituted can admissions mind sonable only interest, against re- for or that were pay called $6000 representation testify by opposite party. aforesaid. upon the liance knowledge facts Whether testimony party If third inquiry another is matter. on put it merely defendants inadmissible in the point. first defendant’s overrule We action, party might possibly third be exception an to Art. held that no error 3716 is there was in its admis Art. suit, vestigial in the main that a remainder sion is defendants pecuni objections rule a have framed their common law should so as aforesaid incompetent only renders a witness to cause the evidence to be admitted interest ary However, “In actions testify. It or reads: in the main suit. under the stat administrators, executors, guard or ute, against clearly testimony incompetent may be rendered ians, party action, in which par .the third such, as party them neither against ty or necessary parties for defendants testify against party proper parties be allowed shall with, suit. Plaintiff sought transaction or in the main a state sever others testator, ance, sever, ward, intestate but the refused to by, the court ment testify exception was reserved to thereto no called to unless action. provisions authority party; and know of no which holds opposite this We that complaint founded, a would be ordered order well severance should be permit circumvent the statute. action directing the^court in a verdict that the evi- holding But our reason defendants would not be reached. dence of conversations of the defendants labor un seem to Since defendants with the defendants impression der sought deeper. incompetent goes in the main action this action to the sale be rescinded testimony inhibited the article. Such representation cause of original that the purpose was to render article acreage” there is some “raw incompetent testimony to conversations as point basis for supposing complains with in such and transactions the deceased of the court’s failure to direct a verdict for this, deny, might if alive. suit as which he Certainly law, defendant. as a matter of grantee sustain defendants’ second where the in a deed takes a con veyance point. But the admission of such evidence describes the blocks, error with re lots and did not constitute reversible he could be allowed to rely spect directing representation action in to the court’s that he was re This, plain plaintiff. ceiving unplatted verdict for “raw” or acreage. But clearly appears personal plaintiff’s tiff had no direct or contact with petition from that it pitch least until after it did not either of at its suit for rescission unsupportable plaintiff that Ideal so ground. discovered And since representation such initial put was not the is not in is by plaintiff statute not inhibit evidence of sue ground rescission, did as a what agents in ef it is real estate said did clear that defendants’ flourishes that law, could not have fecting sale. The Saints a matter of was charged knowledge by and trans such conversations testified that in the trans place between real action which took it was getting unplatted actions happen. plaintiffs acreage, immaterial, did not agents estate are and we construe any representa point fundamental that relating only And it is the issue on upon, etc., agent, misrepresentation relied plaintiff’s tion made peti tion, namely of a ground for rescission contract that Ideal realty. by sustaining course boundary, Of de Street was sale of and furnished point, required we are to fendants’ second access thereto. much of the court’s as reverse so plaintiff’s It was it was any recovery against denied defendants purchasing the develop to for defendants, based on the di say home sites. We cannot that the evi- rected verdict. dence not sufficient to raise an issue of not prudent whether or a reasonably man, respect With to defendants’ third buying who was lots and blocks develop to complains, plaintiff

point, not without sites, put for home was not on inquiry with identify reason, to ruling that it fails the of respect to all facts clearly shown the complained However, the court of. a court plat. The size of the blocks, lots and their may appeals disregard pnint not of civil suitability sites, for home accessibility their appeal merely an is based be blocks, to the other lots and to the streets point ambiguously is cause the stated. The addition, placed the restrictions on require remedy re-briefing. is But to re- lots, easements, the shown required here, here. briefing is For map addition, descrip- plaintiff, instructed a verdict for the court tion plaintiff showed that was only acquir- complain of this and defendants action on portion ing a anof addition. hand, one other hand refusing court in to action of the instruct The issue was any raised whether reason- for defendants in the main a verdict suit. able man who looked at the map, and point was intended clearly If defendants’ to be ad saw—what it disclosed—that the action court in refus was not dressed bounded on the east inquired direct a verdict for ing whether, to and Ideal have should .gained Ideal would therefrom not- have plat was dedicated since representation. And give knowledge to of the false to access as extended so Street was attorney, employed draft clearly who was here shows The evidence lots. first, transaction, papers- at the Hargis looked when Mr. .in plat repre- have learned from the questioned the truth once map, he at to be sentation Ideal Street was the survey and caused representation, word, pur- boundary line In property. in a us that'a It seems to of. made. plaintiff charged issue of title raises 'the knowl- chain of chaser’s law, prudent reasonably edge, matter as a of matters which not a whether or fact dedicated, plat, imposed upon inquiry as to put on been man would conveyed representation as to the loca- which was truth of a beyond map, if a but not what true dedicated which the a street tion of itself, refutes. ambiguity conclusion, in view.of This right had the : tentative, point, is of defendants’ believe that defendants knew location invited, requested allowed boundaries, property, their and its answer, which answer.will by it, to further right had the take the agents’ word rehearing. way motion -for be by Ideal Street the east line. right subject plaintiff’s reserved We, And, indicated, opinion, original in our further, sustain defend- point applied answer did rule so. Here the rule that the. court point, and Cauble, ants’ in such cases as Stevenson v. 55- directing a verdict defend- Tex.Civ.App. 75, 811, 812, erred in ap 118 S.W. “ * * * plies, rep ants. when one false facts, innocently although resentations points defendants’ have- considered made, induces another enter into con find them without merit. five and four and tract, misrepresentations are made is re- court below judgment of the other, sought the basis relief cause remanded. versed prayer is no defense to the for such relief person had the show deceived Rehearing On Motion opportunity correctly means inform whether, in this case immaterial It is ing premises, himself in the unless it be reasonably man looked prudent at the steps further shown. that he took some Addition, Morningside he would plat of independent investigation making inquiry put whether have been facts.” Ideal Street. bounded affirmatively corporate appellee’s motion This, the evidence rehearing represented plaintiff, granted, and the judgment who that no one shows insofar as rendered that Ideal trial court and knew line, However, in its favor is now affirmed. and' of was its judgment remanding this court materiality, ever saw the until the case its Mr. it, defendants un under circumstances remains Hargis saw opinion. changed. original to in our referred guaranty company rehearing part. granted title ex- Motion for had the Even did, title, presumably which it it Former aside. set amined

Case Details

Case Name: Kamp v. Hargis Bldg. Co.

Court Name: Court of Appeals of Texas

Date Published: Mar 1, 1951

Citation: 238 S.W.2d 277

Docket Number: 12235

Court Abbreviation: Tex. App.