Statham v. City of Tyler, 6603

• Decision Date: 26 March 1953
• Docket Number: No. 6603,6603
• Citation: 257 S.W.2d 742
• Parties: STATHAM v. CITY OF TYLER.
• Court: Texas Court of Appeals

Page 742

257 S.W.2d 742

STATHAM v. CITY OF TYLER.

No. 6603.

Court of Civil Appeals of Texas, Texarkana.

March 26, 1953.

Rehearing Denied May 7, 1953.

Power, McDonald, Mell & Lowry, Tyler, for appellant.

Smith & Smith and Ted Chilcote, Tyler, for appellee.

LINCOLN, Justice.

This appeal is from a summary judgment in favor of appellee, defendant below. Appellant's first point asserts arror of the trial court on the ground that the pleadings and the evidence on the hearing of appllee's motion for summary judgment raised genuine issues of material facts which, if found true by the jury, would have entitled appellant to a judgment for the relief sought against the appellee. Appellant presents eight other points of error, but they relate to specific facts which appellant asserts were shown by the evidence sufficient to raise jury issues. We think a general discussion of the first point will suffice to dispose of all of them.

Appellant brought this suit to cancel a deed she had executed and delivered to the appellee, or alternatively for $2,500 damages. She alleged the deed was procured through fraudulent representations made to her by the city's agent, the city engineer. She also alleged a fraudulent scheme or design on the part of appellee and its agent to defraud her of her property for a grossly inadequate consideration; a mistake of fact on her part when she signed the deed; a mutual mistake of fact; and that appellee took advantage of a confidential relationship existing between her and the city of Tyler and particularly between her and a friend and close acquaintance who accompanied the city engineer when he came to see her about executing the deed. All of said allegations, however, have their basis in the allegations of fraud. The appellee answered by what it denominates a special exception and by general denial. The so-called 'special exception' asserts the allegations of the petition 'are insufficient as a matter of law to allege a cause of action based upon fraud.' For purpose of this appeal the allegations of fraud will be considered sufficient to state a cause of action. Appellee's motion for summary judgment depends upon the sufficiency of the evidence presented at the hearing and was not directed at any weakness or defect in the petition.

The City of Tyler was in process of widening South Beckham Street, and needed a strip off the front or east part of appellant's lot ten feet wide and extending across her lot from north to south the entire width, about 55 feet.

The facts relied on by appellant to show fraud are: (1) That the city engineer represented to appellant that the city was paying $150 for rights-of-way and did not intend to pay more than that sum to other property owners; (2) that she relied upon said representation; (3) that it was material to the transaction involved; (4) that she was induced thereby to execute the deed, without representation she would not have done so; and (5) said representation was false. Resolving in favor of appellant whatever doubt there may be as to the sufficiency of the allegation (1) above as a predicate for fraud, each of the foregoing specifications is essential in appellant's case. 20 Tex.Jur., p. 17 Sec. 8. In a jury trial on the merits, failure to prove any one of them by a preponderance of the evidence would be fatal to her case, and the defendant would be entitled to an instructed verdict in its favor. 20 Tex.Jur., p. 149, Sec. 101. So, if, on the hearing in this proceeding, the evidence adduced showed that there was no genuine issue of fact on any one or more of the foregoing essential elements, the trial court correctly granted appellee's motion and correctly entered summary judgment. Arlington Heights Appliance Co. v. Gordon, Tex.Civ.App., 244 S.W.2d 337; Hurley v. Knox, Tex.Civ.App., 244 S.W.2d 557, writ refused, no reversible error; Small v. Lang, Tex.Civ.App., 239 S.W.2d 441, writ refused, no reversible error.

We therefore need to consider only the alleged false representation, item (1) above. The testimony of the appellant hereself is crucial. Her deposition was introduced by appellee, the movant. The following is a summary of her testimony material to the inquiry involved: That she is 69 years old, unmarried, formerly a nurse but not now employed; that she had learned of the street-widening project by the city and desired to cooperate; that being a city project, she could not do anything about it and was not going to try; that Mr. Ferrill, the city engineer, and Ses Haynes, whom she had known some time 'but hadn't seen in some time,' came to see her on Saturday afternoon about four o'clock in reference to getting her strip of land for the right-of-way; that Mr. Ferrill mentioned only two names, that of Mr. Kessler and Mr. Kline, both south of her; that he had paid them each $150 for their rights-of-way and that he (Ferrill) would pay her the same; that he did not ask her to donate the land; that he got the deed out of the car and she signed it; that Ferrill 'told me he would pay them (Kline and Kessler) $150 and that is what he would pay me. That is all he said about price to anybody'; 'I have stated all he told me pertaining to price of the street in any way.' 'Q. Mr. Ferrill did not tell you that he would not pay anybody more than $150 for their right-of-way, did he? A. No, he didn't tell me that. Q. He did not tell you that he was not authorized to pay anybody more than $150, did he? A. No, no.' She further testified: 'Q. All right, Miss Statham, it is true then that Mr. Ferrill made no represenations to you that he was going to pay any particular property owner any particular amount? Is that true? A. He didn't say anything about that. Q. He didn't mention anybody's property except the two that you have mentioned? A. That is all.'

The affidavit of Ferrill, presented by appellee, states that he told appellant on the occasion she had testified about that he had paid Mr. Kline, two doors south of her, $150 for his part of the right-of-way; that Mr. Kessler, adjoining appellant on the south, had accepted $150, and that the city would pay her the same, and that she accepted it. He further stated that he did not at any time tell appellant that $150 was the highest price the city would pay for right-of-way on South Beckham, nor that that was the maximum he was authorized to pay, nor did he tell her that he would pay no more than that. He further stated that, with one exception, the only properties acquired at that time on...