*1 Baker, (Tex.Comm’n App. cross-point second com v. Appellee’s Negli- finding exonerating adopted), 40 Tex.Jur.2d plains jdgmt. that (Second) Restatement contrary gence (1962), Hartford Insurance was 11-15 § (1965). of of Torts great weight preponderance § We also overrule this evidence. Boiler of the Texas purpose duty as we are at a loss to understand what matter of is a Regulations Law Rules and owed to Union Gas Hartford Southern We must consider interpretation. statutory or even to Brownstone Park. Its Company, pre was intended to the harm the statute voluntary inspection of the boiler was for sought protect. vent and the interests insurability purpose determining of its regard purpose We as the Code and, such, was for the benefit of Hart property of the protection of the lives and only. Although inspector ford the Hartford building containing inhabitants of the was commissioned the State and filed boiler, lawfully within persons or of those Commission, Boiler he report to the State legislature that the building. We doubt authority agent had no as an of Hartford to promulgated or the Boiler Commissioner compel comply any par Brownstone to with for the by appellee cited regulation he had Any authority ticular standard. those liability from purpose absolving of agent any duty was as an State who, boilers, and to service who contract State, he owed was to the not to Southern damage negligence, through their own Union Gas. that, cannot hold Consequently, we them. take law, court erred Finally, appellee contends that the trial as a matter of nothing judgment against Brownstone Brownstone Park holding appellant Brownstone should be affirmed because se. negligent per negligence per owning was of se in guilty the motion which part grant We require- with the compliance boiler not in appellee’s the consideration of concerns ments of the Boiler Code. State things, the motion cross-points. In all other rehearing is overruled. negligence per The rule of se is Castro, found Southern Pacific Co. v. (Tex.1973), which approves
S.W.2d 491 in Restatement
the definition set out
(Second) 288(B) (1965). The of Torts § legislative
unexcused of a enact violation regulation ment or an administrative THOMAS, (John) (Dick) and J. H. H. C. defining the adopted by the court as Individually co-partners Thomas, and as man is standard of conduct of a reasonable Thomas, Appellants, d/b/a Thomas and negligence prove in itself. Thus for one to se, (1) negligence prove he must a viola per standard, (2) penal tion of the a viola MORRISON, Appellee. G. Dale tion which is unexcused. No. 6488. However, is also clear Texas, Appeals of Civil a criminal statute whether the violation of El Paso. liability in a may also be the basis of civil 17, 1976. March
given express case in the absence of an therefor, whether 1976. provision depends upon Rehearing April On is within the class for whose plaintiff April 1976. Rehearing Denied protection passed, the statute was June 1976. Rehearing Denied Second nature the statute injury is Mundy v. Pirie- prevent. intended to Co., 146 Tex.
Slaughter Motor (1947); Ry. Texas & Pacific Co.
S.W.2d 587 *2 Seminole,
John L. Shepherd, Prappas, Moncure, Caldwell & B. Edward William- son, Houston, appellants. for Garner, Vickers, Nelson, Purdom & Rob- Garner, Vickers, Lubbock, ert E. John E. Gibson, Ochsner, Adkins, Harlan & Han- kins, Boulter, Amarillo, appellee. Beau for OPINION OSBORN, Justice. of a Appellants complain judgment against damages
entered them for resulting from a breach of a lease of one section of County purpose provide land in Gaines condition. Lessee will over- raising grazing Having alfalfa and cattle. own cattle. Lessor seer care for its judgment concluded that the was not based cattle will no responsibility have damages, measure we pay will Lessor count health. Lessee for a new reverse and remand trial. gain.” per gain all pound 12<t *3 1972, In Appellee acquired a section of pro- the returned approved Morrison and land about five miles southwest of Semi- 20, 1972, on June the leases posed leases nole, on which was located two water wells 22,1972, after effective June were executed irrigation and and 26 tower pumps, sys- a agreement was period the of the second bought tem. Mr. the for Morrison land a provide for term corrected Thomas to an approximately acre which con- $150.00 1, through September from October $2,200.00, payment sisted a in cash of 30, 1977. $1,000.00 assumption note and of a to loan Thomas, prepared to Mr. he According $81,- Company John Hancock Insurance for secretary type had them. the leases and his 000.00, $15,000.00 plus payment of to make 1972, what he he discovered September, the loan current. After an unsuccessful or an error mistake considered to be attempt to sell property, the he entered into provided for long-term lease. He said negotiations with John Thomas for a lease alfalfa, etc., when in “lessee” to the plant for grazing purposes. There was a substan- agreement of the original fact the was controversy tial what the over were terms parties responsibility. had such that “lessor” agreed of the lease as finally upon between was error or any that there Morrison denied parties. the On June Mr. Thomas Being unable to re- in the lease. mistake sent a proposed Mr. Morrison lease for the Mor- issue, wrote Mr. the Mr. Thomas solve period through of June 1972 December 1972 if the 8, 1973, stating that rison on June for the sum of and other valuable $10.00 corrected, not be error could typographical consideration. terms Under the lease, willing (1) to cancel he would be lease, (a Thomas Thomas partnership & at a irrigating (2) capital furnish the for composed of J. Thomas H. C. H. and Thom- fee, (3) negotiate some or grazing reduced as) agreed “perform tilling op- whatever He his arrangement. concluded type other erations that are directed” by Morrison for ( n ) of ac- definitive by stating: “Without letter prevailing one-half custom rate. 14, position take 1972, On we your part, June Morrison returned the on shall tion unsigned entirety lease in its and noted that it did not that the lease be cancelled mention the cotton allotment they present- that the cattle removal of had discussed raised question and a as to lawyer promptly Mr. Morrison’s ly there.” whether there grass was to be alfalfa unwilling was re- his client replied that 17, crop. 1972, June On Thomas made Demand was a new lease. negotiate for changes in the lease and sent to Morrison contract under the due payment made leases, draft covering of two one a period grazed, dam- already plus on cattle gain from 1972 through June December alfalfa. The mat- plant for failure ages and providing permanent for a Viothacre of unresolved, filed the suit was being this ter cotton left allotment to be on the land after following month. expired with the same clause lease in this suit of land involved The section on The tilling operations. pro- other lease John Hancock under foreclosed was through vided for a from June 1972 term 2, 1974, and this April Deed of Trust provided that: December March, 1975. case was tried agrees plant the above Section “Lessee long-term to find that the jury failed The necessary provide and will alfalfa They a mutual mistake. contained lease motors, irrigation and related pumps, expressly that “Morrison failed to find same, also fences to care for
equipment and
to have
& Thomas
directed Thomas
necessary
will
cat-
provide
Lessee
performed.”
operations
fully grazing
tilling
planting
keep
tle to
the alfalfa
Issue,
The last
No.
and its answer
Special
made
issue Whitson
distinctively
grounds
was as follows:
pointing out
Rules of
objections.
Texas
its
Rule
you
“What
find from
money
sum
do
so,
to do
Having failed
Civil Procedure.
the preponderance of the evidence Morri-
say
thereafter be heard
it cannot
as rent from
son would have received
damages as submitted
the measure of
during
and Thomas
the term of
Thomas
”
* *
*
improper.
question
the lease in
section been
planted
fully grazed?
to alfalfa and
the same
That conclusion was followed and
cents, if any,
Answer in dollars and
as
Vanity
reached
Fair
results
in Cantile
you
find.
may
(Tex.Civ.App.—
Properties,
S.W.2d
e.).
ref’d
r.
San Antonio
n.
iS162.750.00”
Answer:
first Point of Error is overruled.
amount,
Judgment was
entered for
plus the
acknowledged
amount Thomas
also com
The second Point
Error
*4
grazing, plus
stipulated
due for
the amount
plains
objection
Special
an
overruling
of
as to the increase in
value of
it
the
land had
inquired
3
it
as to rent to
Issue No. because
planted
been
in alfalfa.
during
be received
the entire term of the
parties
stipulated
though
lease even
the
present
The
seven
Appellants
Points of
part
as
a
the
to the amount due for
of
lease.
Error,
Special
of which
related to
most
The
that' alfalfa would
evidence established
Issue No.
and the judgment
3
based
normally
planted August
Septem
be
in
or
trial,
the answer to that
At the
Issue.
ber
that it
not be
until it
grazed
and
should
Appellants objected to Special Issue No. 3
growth. Mr.
year’s
had a
Thomas contend
“for the
that
reason
this issue does not
long-term
ed that since the
lease did not
the
properly
damages
outline
under the
October, 1972,
commence until
alfalfa could
lease in
“for the
question”, and
further
August
September
planted
not be
until
or
wording
reason that said issue and the
con-
1973,
get
but that in order to
some income
tained therein is not the
measure of
1974,
prior
it
damages
grazing
cause.”
first
in
was decided to
in this
The
Point of
plant
in
complains
overruling
graze
Error
of
error in
wheat
1972-73. The
the
objections.
those
dispute
evidence established without
that
during the first
Thomas & Thomas did
year
While the
probably
Point of Error
plant wheat crop,
graze
and did
cattle on
presents error,
objection
the
upon which it
wheat,
stipulated
the
it was
that this
is based
preserved
is not sufficient to have
in an
Morrison of
resulted
indebtedness to
274, Tex.R.Civ.P.,
the error.
requires
Rule
$5,804.40
time,
that
of
during
period
as rent
that a
out
party point
distinctively the mat
although
dispute
there
to whether
was
as
objects
ter to
grounds
which he
and the
of
that
Morrison authorized or directed
wheat
objection.
his
Whitson
be
the
planted
year.
first
139,
Bluff
Company,
Creek Oil
156 Tex.
inquired
as to
(1956),
Special
No.
S.W.2d 488
the Court considered a
Since
Issue
similar
have received for
objection
concluded that
rent Morrison would
lease,
objection
adequate.
was not
The Court
full term
and since the
of
parties
recovery
said:
as
stipulated
“ * * *
$5,804.40
grazing
during
from
on the wheat
only
The
objection
by
made
lease,
part
sug-
Appellants
the first
submitting
issue
special
market
gest
double dam-
that
recovered
value
parted
other than that Rucker had
interest,
ages. They urge
objection
that their
objection
with his
is not
special issue
have
briefed,
this:
should
been sustained.
was
‘Because said issue
Northern R. Co. v.
does
as
International-Great
inquire
measure
(Tex.Comm’n
general objection
King,
App.
tain the second Point of Error. Were this ler, 388 (Tex.Civ.App. Corpus S.W.2d 265 — the only point to be sustained we would e.) n. r. where the Christi writ ref’d remittitur, order a but the next Point Court said: presents error which cannot be cured testimony, “Although as summa- remittitur. above, incomplete rized as to whether Kirk had abandoned not Lawless Error, By Ap third Point of June, 1959, we feel that premises pellants contend that the answer Special implied is sufficient to sustain an find- Issue No. 3 could not form the basis upon trial court that such was the ing by the judg which the trial could render * * * event, the land- case. In such against ment them. We agree. In White *5 to relet the right lord would have had the Watkins, v. 385 267 (Tex.Civ.App.— S.W.2d and, having agreed to sur- property 1964, writ) Waco no the Court stated the contract, rights render his under the lease rule for determining damages where a ten assign- lessee recover from the former ant breaches his lease and abandons rent for the agreed ee the amount of premises. The Court said: of the less period entire contractual lease “Where the tenant the prem abandons from the may the sum that he realize ises, lessor, remedy, as one may ac re-letting, after the use of reasonable dili- tenant, cept the by breach retake ” * * * a tenant. gence to obtain possession damages. and sue for his Mar (Tex.Civ.App.1935), athon Oil v. Rone Co. fails to establish an party aWhere 1028, 1031, 83 S.W.2d writ ref. If he measure of element of the essential elects this and has relet remedy be reversed and damages, the case must term, premises unexpired for the entire remanded for a new trial. Cantile v. Vani damage gener the measure of lessor’s is In our case there ty Properties, supra. Fair ally the difference the rental between finding “present of the cash value” no for and that originally contracted realized lease, for in the but the rent contracted reletting. from the received. only the amount of rents to be at rea finding
There was no all as to the “ * * * value the lease for sonable cash market elect, instead, may But he to were unexpired findings its term. Both damages anticipatory sue for Appellee’s of the dam essential elements reletting, breach without and without ex Appel sustain the ages in this case. We ercising any diligence to do so. In the lants’ third Point of Error. damages latter ease the measure of is the present difference between the value of with the measure of dam- connection pro- ages, the rentals contracted for in the lease and we note the rule of law which value of the also terminate tenancy may reasonable cash market vides: “A reversionary interest as unexpired ending lease for its term. John of the prior executed to the (Tex.Civ.App. mortgage Church Co. v. Martinez where a ref.; 486, 489, 1918), property.” lease is foreclosed on- the S.W. San (1905), Property, Vol. 3A 1318 Brewing Thompson Antonio Ass’n v. Brents on Real § above, property under p. 538. As noted Tex.Civ.App. lease was April, foreclosed on reply 1974. This was stated to be in Appellants’ could have any terminated lease three, made after points of error one and it did not the Deed of Trust and which would actually reply point three which was matter of subject law be rights to the of the related to the verdict as a basis for Tex.Jur.2d, mortgagor. 36 Landlord and judgment, objections rather than Tenant, 262. Certainly, would have charge, § as was raised by point of error terminated the rights lessor’s under the number one. We sustain the first reply did Thus, lease. on retrial appear it would point point insofar as related to of error lessor’s damages would be peri- limited to a objections number one because the up od of time the foreclosure if Court’s charge general were too to be con- pleadings proof are made as to the sidered.
foreclosure rights and the being lessor’s Appellee’s reply points two and three subject rights mortgagor. reply were also in Appellants’ point considered, The other Points have been error number three. reply points Those but passed need not be on since any error were on the merits of the issue raised involved will not likely reoccur anoth- point the third of error. er The judgment trial. of the trial Court is Having reversed and the lost on each of proposi cause is remanded for a new trial. reply Appellants’ tions set forth in third error,
point now seeks a second time, apple bite at the and for the first on ON MOTION FOR REHEARING motion rehearing, urges that there is no Appellee’s Motion for Rehearing raises assignment of error in the trial Court to for the first time the question of failure to raise the point third of error. He relies properly assign error in the trial Court as to Foster, primarily Wagner 161 Tex. of error which has been sustained on 333, (1960). The Appellant S.W.2d appeal. Some discussion is essential be- has reply filed no to the motion for rehear cause the answer to the issue is neither ing. We are well aware of the need for simple nor easy. *6 proper assignment preserve in order to er First, Appellants’ presents brief as the appeal. ror for W. T. Company See Grant third point of error following: (Tex.1968). v. Key, 433 163 S.W.2d “The Trial Court erred in entering judg- question The final is when must the issue ment for upon based case, Wagner be raised. In the the points verdict that, for the reason as a matter of Appeals sustained the Court of Civil law, response of the jury Special alleged present were fundamental error Issue No. 3 could not form the basis proper and thus there was no need for a which the Court could render a assignment in the trial Court. The Su judgment.” preme error was Court concluded That point and the following point, which and, having prop not fundamental been raised a question as to the sufficiency of the erly assigned, points could not be con support evidence to Special answer to case, sidered. In the W. T. Grant 3, Issue argued together. No. were None of Appellee’s counterpoint one in the Court of Appellants’ points of error were shown to Appeals Civil was that there was no germane be assignments of error in the assignment of error in the trial as to trial required 418(b), Court as by Rule Tex. by Appellant’s points the issues raised R.Civ.P. argument error one and two. The in that
Appellee, by its reply point, urged first counterpoint placed upon Wagner reliance that “Appellants’ objections damage Foster, supra; v. Haulers v. Oilfield Ass’n. issue, Special general Issue No. are too Commission, (Tex. to Railroad 381 183 S.W.2d comply with Rule 1964); Alviar, cannot be con- 821 Garza S.W.2d appeal.” sidered on reply point Thus, While the (Tex.1965). the issue of lack of as- signment of in the error trial Court was (142 tention to it. Rule xiv), S.W. before Appeals the Court of Civil and was expressly provides that: properly preserved for determination in the ‘Whatever of the ap- statements of application for writ of error. pellant plaintiff or in error in his brief is not contested will be considered as case, In the present Appellee chose to do acquiesced in.’ battle on presented the merits of the issue in the third of error and lost. Now he go “We did not into the lengthy tran- claims for the first time that there should script to see if there preserved were bills have been no that, battle because the issue was exception, but assumed if counsel not properly May raised in the trial Court. appellees any objection had one wait until after an issue has been decid- assignments, consideration of said adversely ed on the merits and then com- same would have been made known to us. plain for the first time on motion Appellant objections insists that excep- rehearing properly assign about a failure to preserved tions were and are shown in record; the error? There are many holding cases but that is aside from the that a new issue not be may raised for the question. practice To tolerate a of this first time appeal. Tex.Dig., Appeal virtually require kind would a resubmis- Error, 835(2). Key No. sion of the Certainly case. another con- sideration along a line not heretofore Engine Southern Gas & Gasoline Co. v. presented to us. It equivalent would be Peters, (Tex.Civ. Adams & to giving party opportunities two App. ref’d), Antonio - San brief the case. what disposi- No matter Court, on rehearing, motion for said: this tion court would have made of these “Appellees in their urge, motion for a assignments, timely objection been rehearing, this court erred in sus- made, when present able counsel to us a taining appellant’s assignments of error them, brief upon they all of in which numbered and 11 for the presumed urge every point favorable assignments reason that complained said to them and do not raise the question, of the errors of the trial court in either now urged, for the first time until a giving charges or refusing charges to the rehearing, motion for court this will con- jury, and that there are no bills of excep- sider that any other not con- tion in the record to the action of the waived, tained brief was unless it court complained of in the assignments, be some matter of fundamental law. and therefore power this court had no And this is of fundamental question not a consider and determine such assignments. law, being purely procedure.” one of “Both parties appeal to this filed *7 following year, Taylor The the court in briefs, lengthy and appellees able but no- Hawley, 178 First State Bank of S.W. where in their any objection brief made 1915, writ), no (Tex.Civ.App. Worth assignments. to the consideration of these - Fort overruling rehearing a for wrote: motion Nor was our attention ever called to the fact exception that no bills of were re- “Appellee also insists that we erred in served to the action of the court in such the conclusion that there was no evidence matter until rehearing fraud, the motion for a rendering judg- of and in here the was filed. rule ment, Under 40 this court is appellant for the reason that on authorized to the rely upon objection briefs for a the trial below made no to the proper presentation appeal, of the case on charge submitting court’s the issue of record; fraud, and, without an examination of the contrary, requested on the and to assume if any subject, thus, there were special charge on the as is objections assignments contended, right appeal or to the waiving any on matters predi- which the same were question of evi- sufficiency the the cated, party the other would call our at- the of the in dence to sustain verdict hearing, introduced on its and stat- origi- On dence
appellee’s favor on that issue.
motion,
that the
the
objec-
ed
court overruled
hearing
nal
made no such
appellee
excepted
such
appellant duly
assignments
tion to a consideration of the
also
action.
statement
referred to
case,
of
of which
error in this
at least one
proceedings
other
had which were
the
for want
directly
judgment
attacked
thought
bearing on
proprie-
to have a
the
of sufficient
it on the
evidence
sustain
the
court on
ty of
action of the
the mo-
fraud,
issue
and it
of
is now too late to do
justified
We think we were
tion.
in con-
opinion
rehearing
so.
on
in Southern
See
the
sidering
assignment on the uncontest-
Engine
Gas & Gasoline
Co. v. Adams &
appellant,
ed
made by
statement
and that
Peters,
1149.”
169 S.W.
now too
appellee
urge
late for
this
The above
cases served as a basis for
two
objection.
(142
xiv)
Rules 40 and
S.W.
the conclusion reached on
motion
Appeals;
for the Courts of
Southern
Civil
rehearing
Employers’
in
Ins. Ass’n v.
Texas
Engine
Gas & Gasoline
Co. v. Adams &
Downing,
(Tex.Civ.App.—
133; Panhandle, etc., Ry. Kirby, Co. v. 498; Dixon v. Cooper, 178 S.W.
695; Paris, etc., Ry. Boston, Co. v.
S.W. 944. fully
“The case was briefed both
parties, and orally argued original
submission, and no such assignment
consideration of the was then
urged by appellee. appellant, copied
statement the assignment, under full,
the motion the evi- referred to