Castilleja v. Camero

• Decision Date: 31 March 1966
• Docket Number: No. 173,173
• Parties: Alberto CASTILLEJA, Appellant, v. Severa CAMERO, Appellee. . Corpus Christi
• Court: Texas Court of Appeals

Page 265

402 S.W.2d 265

Alberto CASTILLEJA, Appellant, v. Severa CAMERO, Appellee.

No. 173.

Court of Civil Appeals of Texas.

Corpus Christi.

March 31, 1966.

W. G. Perkin, F. B. Godinez, Jr., Pharr, for appellant.

E. G. Henrichson, of Henrichson & Bates, Edinburg, for appellee.

GREEN, Chief Justice.

This case involves a contest between the parties over the ownership and rights to proceeds of a winning ticket No. 33870 in the Mexican National Lottery of September 15, 1964. The suit was originally brought by appellee as plaintiff, against Famelisa Castilleja and her husband Jose Castilleja as defendants. By amended petition, appellant Alberto Castilleja was included as defendant. At the close of the evidence, plaintiff took a non-suit as to defendants Famelisa and Jose, leaving Alberto as the only defendant. All of the above named parties are residents of Edinburg, Hidalgo County, Texas.

On or about September 11, 1964, appellee gave to Famelisa $2.00 for the purpose of buying for appellee in Reynosa, Mexico, a one-half (1/2) interest in a $4.00 ticket in the Mexican National Lottery to be decided September 15, 1964, Famelisa to buy the other half for herself, with the agreement that the two of them were to 'make a vaca,' i.e., a partnership, in the ticket. ¹ (Famelisa testified that appellee gave her only $1.00, but the testimony supported the jury's finding that appellee gave her $2.00.) Famelisa went to Reynosa that same day and purchased several tickets, including Nos. 33870 and 38512. On her return to Edinburg, she gave appellee a written memorandum with the number 33870 on it, stating that was the number of the ticket in which appellee owned a one-half interest.

Famelisa testified that on the following day, and before the drawing, she discovered that she was mistaken about the number of the ticket in which appellee owned a one-half interest, and that she went to appellee's house and told her of such mistake, stating to appellee that the number of the ticket in which the two of them had 'made the vaca' was 38512 and not 33870. Famelisa further testified that appellee wrote such number on a piece of paper, and 'said it was all right.' According to Famelisa, ticket No. 33870 was purchased for her son, Alberto, defendant and appellant in this case . Ticket No. 38512, introduced in the evidence by defendant, had the word 'Vaca' on the reverse side, written, according to Famelisa, by the man who sold her the tickets.

Appellee testified that she had given Famelisa $2.00 to buy for her a one-half interest in a $4.00 lottery ticket in the Mexican lottery, and that Famelisa was to buy and to own the other half. She further stated that after Famelisa had given her the written memorandum that the interest in the ticket purchased for appellee was in ticket No. 33870, she never thereafter stated anything to appellee about any other lottery ticket until several days after the drawing, and after all parties knew that ticket No. 33870 was the winner of the net sum after taxes due the Republic of Mexico of $34,000.00. According to appellee, on or about September 22nd she saw Famelisa, and demanded her half of the money and that then for the first time Famelisa denied that appellee owned any part of the winning ticket, and stated that such ticket was bought for her son Alberto, appellant herein, and was owned by him. Appellee has not received any part of the money won on the ticket.

Witness Nieto testified that on September 16th, he heard Famelisa say that she owned the winning ticket in partnership with another lady.

Appellant Alberto Castilleja testified that he gave his mother money to buy him a ticket; that he considered the number 33870 his lucky number, and as proof of his favoritism for such number produced several tickets bearing the number 33870 which he said he had purchased at prior lotteries. He corroborated the testimony of his mother that such ticket was bought by her for him with his money and as his property. He said that on September 16th, the day after the drawing, his mother gave him ticket No. 33870, and he went to Banco Longoria in Reynosa, Mexico and cashed said ticket, receiving therefor the sum of $34,000.00, which he deposited to his own account in said bank.

Upon the trial, neither Jose nor Famelisa Castilleja claimed any part of this money. They testified that the winning ticket No. 33870 was purchased for appellant with his money. Appellee, on the other hand, contended that she had a one-half interest in the winning ticket, that appellant had no title or claim to the money and that he wrongfully held one half of the money as agent or bailee of appellee; that he had wrongfully converted appellee's money to his own use, and that appellee was entitled to recover the sum of $17,000.00 from appellant.

The jury, in answer to the two issues submitted, found that (1) Famelisa Castilleja purchased ticket No. 33870 for the benefit of the plaintiff Severa Camero, and the defendant Famelisa Castilleja, and (2) that the amount paid Famelisa by plaintiff was $2.00.

On the basis of the evidence and jury verdict, the court rendered judgment for plaintiff-appellee against defendant-appellant for $17,000.00. In the judgment, the court expressly found that appellee had a $17,000.00 interest in the sum on deposit in the Banco Longoria, and enjoined appellant from assigning, removing, dissipating, secreting or hiding said sum of money.

Appellant by a number of points of error raises the proposition that the entire alleged cause of action as shown by plaintiff's pleadings, the evidence, and the special issues submitted to the jury, was based on a transaction which was illegal, contrary to public policy, and unenforceable in Texas courts. The proposition of the illegality of the transaction and of the contract between appellee and Famelisa was raised in the trial court by appellant by special exceptions to the petition, by motion for summary judgment, by motion for instructed verdict dictated into the record after plaintiff had rested, by motion for judgment notwithstanding the verdict, and by motion for new trial. These same contentions are raised on appeal by appellant's points 1, 2, 3, 4, 5 and 9.

Appellant's first point, that the trial court erred in overruling his special exception to the Second Amended Original Petition, is overruled. The record does not show that such special exception was ever brought to the trial court's attention, or that he made any ruling thereon. Rule 90, T.R.C.P.; Marshall v. Huron, Tex.Civ.App., 274 S.W.2d 572; Tarkington v. Continental Casualty Company, Tex.Civ.App., 341 S.W.2d 490, writ ref., n.r.e.

Appellant's second point, that the trial court erred in overruling his motion for summary judgment, is overruled. This is not a point for consideration on appeal from a judgment rendered on a trial of the merits of the case. Stewart v. Lomax, Tex.Civ.App., 395 S.W.2d 82, writ ref., n.r.e.

Appellee's answer to the points of appellant raising the question of the illegality of the agreement between appellee and Famelisa is that appellant was not a party to such agreement; that he owned no interest in the money; that he received the money as either an agent, bailee, or third party stranger to the title thereof, and that as between appellee and appellant, it was not necessary for appellee to rely on an illegal or unenforceable contract or transaction to establish her cause of action.

According to the testimony of appellee, appellant owned no interest in the winning ticket, and no interest in the money here involved. This is the effect of the jury's answer to Special Issue No. 1. If, as contended by appellee and found by the jury, the winning ticket was the property of appellee and Famelisa, appellant when he was given the winning ticket by his mother to collect the proceeds was as a matter of law acting on behalf of the true owners in collecting and holding the proceeds. If such be the true facts, when, after depositing the money in the Mexican bank, he refused to recognize appellee's claim, and asserted ownership to the money, he converted same to his own use and benefit, and is in no position to raise the plea of illegality of the original contract between his mother and appellee.

'It is settled law that the courts will not enforce gambling contracts, but will leave the parties where they are found. But it has been determined with equal clearness that the fruit of a gambling venture is property about which the parties will be allowed to litigate. The courts will enforce no wagering contract, nor render any judgment based upon its terms. But when a wagering contract has been executed, and its fruits paid to the agent of the winner, the agent can not hold it against his principal. Floyd v. Patterson, 72 Tex. (202) 205, 10 S.W. 526, 13 Am.St.Rep. 787, and authorities cited.' Russell v. Kidd, 37 Tex.Civ.App. 411, 84 S.W. 273.

From Hartford Fire Ins. Co. v. Galveston, H. & S.A. Ry. Co., Tex.Com.App., 239 S.W. 919, 923, opinion approved by Supreme Court, we copy as follows:

'It frequently happens as a result of the execution of an illegal contract that in consideration thereof some new title to property or some new property right vests in one of the parties to such contract . When such contract has been fully executed, and suit is brought, not for the enforcement thereof, but for a recovery upon or enforcement of the new title or right thus acquired relief will not be denied. Hall v. Edwards (Tex.Com.App.) (222) S.W. 167; Wegner v. Biering, 65 Tex. 506; Floyd v. Patterson, 72 Tex. 202, 10 S.W. 526, 13 Am.St.Rep. 787; De Leon v. Trevino, 49 Tex. 88, 30 Am.Rep. 101; Brooks v. Martin, 2 Wall, 70, 17 L.Ed. 732.

'The general rule is that the defense of illegality is confined to the parties to the contract and is not available to third parties to defeat a just claim against themselves. (citing authorities).'

See, also, City of Garland v. Texas Power & Light Co., Tex.Civ.App ., 295...