West Texas Equipment Co. v. Walker

• Decision Date: 05 June 1967
• Docket Number: No. 7720,7720
• Parties: WEST TEXAS EQUIPMENT COMPANY, Appellant, v. W. G. WALKER, Appellee. . Amarillo
• Court: Texas Court of Appeals

Page 864

417 S.W.2d 864

WEST TEXAS EQUIPMENT COMPANY, Appellant, v. W. G. WALKER, Appellee.

No. 7720.

Court of Civil Appeals of Texas.

Amarillo.

June 5, 1967.

Rehearing Denied July 17, 1967.

Neal, Hazlewood & Wolfram, Amarillo, A. Curtis Neal, Amarillo, of counsel, for appellant.

Stovall & Stovall, Plainview, R. F. Stovall, Plainview, of counsel, for appellee.

CHAPMAN, Justice.

Appellant, West Texas Equipment Company, sued appellee, W. G. Walker, upon a verified sworn account for parts and services on three invoices totaling $835.31, and for attorney's fees and costs. Before the case went to trial before a jury on its merits, a pre-trial hearing was conducted on Monday, August 8, 1966. Appellee to that date having not filed his Vernon's Ann.Tex.Rules, Rule 185 denial to the duly verified sworn account petition appellant had previously filed, the latter forwarded its motion for summary judgment on July 28, 1966, to the Floyd County clerk's office, and urged such motion at the pre-trial conference on August 8. The motion was overruled and appellant's 'Point One' asserts reversible error of the trial court in so doing. The point is not well taken.

'The denial of a motion for summary judgment is not an adjudication of the merits against the movant and, no doubt for this reason, is held in the Federal courts to be interlocutory and thus unappealable. * * * We see no good reason to take a different view for our own practice, which derives from the Federal Rules.' Wright v. Wright, 154 Tex. 138, 274 S.W.2d 670 (1955).

A different rule prevails where both parties file motions for summary judgment and one such motion is granted. Under this situation the trial court's judgment becomes final and appealable, and on appeal the Court of Civil Appeals should determine all questions presented. Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396 (1958).

However, '* * * the rule of practice adopted by Tobin v. Garcia is an exception to the general rule that an order overruling a motion for summary judgment is not subject to review upon appeal.' Ackermann v. Vordenbaum, 403 S.W.2d 362, 365 (Tex.1966).

When the instant case came on for trial before a jury appellee had on file, among other pleadings, Defendant's First Amended Original Answer. The pleading alleged that appellee had previously purchased from appellant a Caterpillar motor for the pumping of irrigation water. The date of the purchase was not alleged but the record shows it was in 1948. The pleading alleged that in the purchase, as part of the agreement and warranty, all repairs on the motor were to be made by appellant. No allegation is alleged in such pleading that they were to be made without charge. The pleading alleged that thereafter, not naming the date, ¹ the motor began to give trouble and appellee took it to appellant company for repair; that appellant worked on it and represented it had been repaired '* * * and that they would stand behind and guarantee the work which they had done on the motor, and in reliance and consideration of the representation made to the Defendant by the Plaintiff, the Defendant issued his check to West Texas Equipment Company, under date of October 13, 1964 * * * in the amount of $2,309.74, representing repairs made to said motor. * * *' The pleading then alleged in effect 'that shortly thereafter' the motor began to give trouble because it had not been properly repaired, that the company then made proper repairs and, except for two small items, appellee did not owe for the second repair job because it represented repairs, which had been paid for by the $2,309.74 check.

Appellee later filed on the day of trial, with leave of the court, Defendant's Second Amended Original Answer, which did not include any pleading of guarantee or warranty, but which constituted his Rule 185 sworn denial that 'Exhibit A' (the itemized verified sworn account sued upon) '* * * is not just or true in whole or in part, and that Defendant denies he is indebted to the Plaintiff in any amount.' Though the parties had agreed at the pre-trial hearing upon inquiry from the court that no further pleadings would be filed, appellant has brought forward no point asserting abuse of discretion in permitting the filing. So, that point is not in the case. This pleading had the effect of then requiring appellant to prove its case as at common law. Earnest & Co. v. Word, 137 Tex. 16, 152 S.W.2d 325 (1941); Opryshek v. McKesson & Robbin, Inc., 367 S.W.2d 357 (Tex.Civ.App.-Dallas, 1963, no writ). This, the appellant did by the witness, Strawn, manager of the Lubbock branch of appellant company, and the company's field mechanic, J. C. Laymance. The latter testified the major overhaul in the spring had nothing to do with the account sued upon, a considerable part of which was for replacement of cracked cylinder heads. The record shows such condition happened some six months following the major overhaul and after the 1948 motor had operated for 24 hours a day for 60 days. Mr. Strawn testified that the charges for the items sued for, representing parts and services performed in the fall, were reasonable and customary for such parts and labor; that the account sued upon was unpaid and the amount was past due.

The burden then shifted to appellee to overcome that proof by some sort of affirmative defense showing avoidance. Burrus Mills, Inc. v. Hein, 399 S.W.2d 950 (Tex.Civ.App.-Houston, 1966, writ ref'd, n.r.e.). In the case just cited the Houston Court of Civil Appeals held: '* * * we are of the opinion that when appellant proved that the account was due and owing at the time of delivery of the goods or thirty days thereafter and there was nothing to indicate that it ceased to be due and owing down to the time of trial, the burden shifted to appellee to plead and prove his affirmative defenses. If the account was not due and owing at the time of the trial it was because payments had been made thereon. The burden was on appellee to plead and prove that such payments had been made in view of Rule 95, T.R.C.P.'

The only affirmative defense alleged here in any pleading is that by the payment in October for the spring overhaul in May ² appellant had paid for the fall services because of appellant's guarantee that it '* * * would stand behind and guarantee the work which they had done on the motor.' This affirmative defensive pleading is included in the reply to the motion for summary judgment and Defendant's First Amended Original Answer, neither of which constituted pleadings upon which the case was tried upon its merits. Additionally, the guarantee was alleged to have been made after the overhaul on the motor had been completed and before issuance of the October check which had been due in May. It was not alleged to be part of the consideration for the spring overhaul but as part of the consideration for the issuance of the check constituting payment for parts and services past due for five months.

Rules 62 through 65 V.A.T.R. provide in effect that pleadings may be amended by either party under certain conditions. Hunt v. Employers Reinsurance Corporation, 219 S.W.2d 483 (Tex.Civ.App.-Fort Worth, 1949, writ ref'd, n.r.e.). Rule 65 provides, inter alia, that unless the substituted instrument be set aside on exceptions, the instrument for which it is substituted shall no longer be regarded as a part of the pleading in the record of the cause. 'As such the amended pleading supplants and takes the place of the preceding pleading which is sought to be amended.' Hunt v. Employers Reinsurance Corporation, supra. See also Kelso v. Wheeler, 310 S.W.2d 148 (Tex.Civ.App.-Houston, 1958, no writ).

The last cited case said:

'It has been held that an amended answer or amended petition is not in supplement of the pleading it amends and is not to be taken into consideration along with it. The amendment completely supplants the pleading it amends. See Dyche v. Simmons, Tex.Civ.App., 264 S.W.2d 208, writ refused, n.r.e.; Ward v. Wingate, Tex.Civ.App.1955, 280 S.W.2d 938; Hawkins v. Collier, Tex.Civ.App.1951, 235 S.W.2d 528; Hunt v. Employers Reinsurance Corporation, Tex.Civ.App., 219 S.W.2d 483, error refused, n.r.e.'

Appellee having gone to trial upon his Second Amended Original Answer, there was not any pleading before the Court upon the trial upon the merits which raised an affirmative defense. Additionally, until he filed his Second Amended Original Answer he had no defensive pleading to the verified itemized sworn account sued upon, as required by Rule 185. When the trial court overruled the motion for summary judgment, the motion and answer thereto went out of the case so far as the merits were concerned. When appellee filed his Second Amended Original Answer it superseded his First Amended Original Answer. Hunt v. Employers Reinsurance Corporation, supra; Kelso v. Wheeler, supra; Pure Oil Company v. Fowler, 302 S.W.2d 461 (Tex.Civ.App.-Dallas, 1957, writ ref'd, n.r.e.); Hawkins v. Collier, 235 S.W.2d 528 (Tex.Civ.App.-Galveston, 1950, no writ).

Before the case proceeded to trial on its merits before a jury, appellant specifically called to the Court's attention the fact that the Second Amended Original Answer had superseded any pleading as to an affirmative defense, and moved the Court that any testimony concerning any portion of the transaction except as to whether the items sued for were received, the reasonable value thereof and whether paid or not; i.e., testimony concerning the spring overhaul which had been due in May and paid in October not be permitted in the presence of the jury, stating: 'To avoid undue interruption by continuous objection on the part of the Plaintiff when Defendant makes such attempts to offer any such evidence into the record, the Plaintiff now, therefore, moves the Court to instruct the Defendant to exclude and not in any way attempt to introduce any such evidence or information thereon.' To such motion made in limine the Court replied that he...