author: CHADICK, Chief Justice. DAVIS, Justice.

text:
    TEXAS LIQUOR CONTROL BOARD, Appellant, v. Robert E. LONGWILL, d/b/a Club Apache, Appellee.
    No. 7639.
    Court of Civil Appeals of Texas. Texarkana.
    June 22, 1965.
    Rehearing Denied July 20, 1965.

      Waggoner Carr, Atty. Gen., Howard M. Fender and Brady S. Coleman, Asst. Attys. Gen., Austin, for appellant.
    Horace G. Goodrich, Dallas, for appellee.
   CHADICK, Chief Justice.

This is an appeal from the judgment rendered by a district court in a proceeding to set aside the order of the Administrator of the Texas Liquor Control Board cancelling a private club registration permit. The Texas Liquor Control Board’s second motion for rehearing is granted and both opinions of this court heretofore filed are withdrawn and the following opinion ordering reversal and rendition of the trial court judgment is substituted.

The Administrator of the Texas Liquor Control Board on the 14th day of April, 1964, following a hearing, ordered the permit of Club Apache canceled. An appeal from this action of the Administrator was perfected to a district court of Dallas County. In the course of the District Court hearing the Judge presiding said: “I am going to go with the Attorney General and rule that that part of the statute giving a Trial de novo as unconstitutional. Now, then, we have an examination into whether or not the administrator had substantial evidence before him when he made his ruling or whether he acted arbitrarily, unreasonably, or capriciously, are those the words generally used ? ” At the end of the hearing a decree was entered “that the Administrator’s order canceling the license and privilege to do business of plaintiff * * *, is a nullity, and * * * said action of the administrator of the Liquor Control Board of the State of Texas be and it is hereby set aside and held for naught”.

The Texas Legislature in 1961 created a regulatory and licensing system for private clubs where alcoholic beverages are stored and consumed by an act which is codified as Article 666-15 (e) of the Texas Liquor Control Act (Vernon’s Ann.Texas Penal Code). The directions pertaining to review on appeal contained in Subdivision 7a of the Article appear to be in conflict. The subdivision provides that on appeal from the Texas Liquor Control Board’s (or its Administrator’s) order canceling a permit trial in the District Court shall be de novo under the rules regulating ordinary civil suits, that the court will consider only such evidence as would be proper if the case on appeal was one appearing in the first instance in the district court, and that the Substantial Evidence Rule shall have no application in the proceedings of the district court. These directions clearly command that “a full civil trial on the facts as well as the law” will be had in the district court, in the sense that a de novo trial is defined in such cases as Zurich General Accident & Liability Ins. Co. v. Rodgers, 128 Tex. 313, 97 S.W.2d 674 (1936); S. Shultz & Bro. v. W. S. Lempert, 55 Tex. 273 (1881); and Lone Star Gas Co. v. State, 137 Tex. 279, 153 S.W.2d 681 (1941).

However, paragraph (d) of Subdivision 7a reading as follows: “The order, decision or ruling of the Board or Administrator may be suspended or modified by the District Court pending a trial on the merits, but the final judgment of the District Court shall not be modified or suspended pending appeal” assumes and impliedly directs that the orders of the Board or Administrator are to continue in effect during the appeal process unless suspended or modified by the District Court pending a trial on the merits. Giving effect to this provision is inconsistent with a trial de novo as just discussed according to Southern Canal Co. v. State Board of Water Engineers, 159 Tex. 227, 318 S.W.2d 619 (1958), where Chief Justice Calvert said: “The sine qua non of a de novo trial as that term is used to describe a retrial of a matter or controversy theretofore tried by another tribunal is the nullification of the judgment or order of the first tribunal and a retrial of the issues on which the judgment or order was founded. When jurisdiction of the second tribunal attaches, the judgment or order of the first tribunal is not merely suspended, but is nullified. Examples of that type of trial are found in our statutes applicable to appeals from Justice Court judgments and from awards made by the Industrial Accident Board.” Very recently in Chemical Bank & Trust Co. v. Falkner, Tex., 369 S.W.2d 427 (1963), citing Southern Canal Co. supra as authority, it was said: “An appeal under the substantial evidence rule negatives any idea that the Board’s order approving the application is vacated or nullified by the filing of the appeal. Southern Canal Company v. State Board of Water Engineers, 159 Tex. 227, 318 S.W.2d 619”.

These incompatible directions of Subdivision 7a appear to be equally material and seem to require the district court when hearing the appeal to treat the order of the Board or Administrator as being simultaneously both valid and null. In this case is the de novo trial in the District Court to be one in which the district court examines the proof before it to decide whether or not the evidence reasonably supports the Administrator’s order cancelling Club Apache’s private club registration permit, or is the trial to be de novo as that term is defined in Zurich General Accident & Liability Ins. Co. v. Rodgers, 128 Tex. 313, 97 S.W.2d 674? A solution is to be found in the approach suggested in Scott v. Texas State Board of Medical Examiners, Tex., 384 S.W.2d 686 (1964), where it is said: “The validity of a full de novo appeal requirement turns on the nature of the act of the administrative agency contemplated by the statute to which the appeal requirement refers”.

Before enactment of Art. 666-15 (e) in 1961 the courts on several occasions held that cancellation of a Liquor Control Board Permit by the Board or its Administrator was. an administrative function, and that on appeal from the agency proceeding to the District Court the reasonableness of the order was the question to be determined. Review of the agency order in the District Court, these cases hold, is governed by the “Substantial Evidence Rule”, that is, the evidence adduced in the reviewing court is to be examined to determine if it reasonably supports the order in question. See Texas Liquor Control Board v. Warfield, 110 S.W.2d 646 (Tex.Civ.App.1937 no writ) ; Texas Liquor Control Board v. Jones, 112 S.W.2d 227 (Tex.Civ.App.1937 no writ); Texas Liquor Control Board v. Lanza, 129 S.W.2d 1153 (Tex.Civ.App.1939, writ dism’d, Judg. cor.); Lowe v. Texas Liquor Control Board, 255 S.W.2d 252 (Tex.Civ.App.1952 no writ) ; and Texas Liquor Control Board v. Raspante, 308 S.W.2d 136 (Tex.Civ.App. 1957 no writ). In State v. Bush, 151 Tex. 606, 253 S.W.2d 269 (1952), a case where application for renewal of a retailer’s permit to sell wine and beer had been denied, the Supreme Court said:

“The filing of an application for a license and the hearing and action thereon is not a civil or criminal cause. The power and authority granted to the Board, Administrator and County Judge with regard to issuance, denial, cancellation or supervision of such permits is merely the exercise of an administrative function and duty imposed by the Act. Jones v. Marsh, 148 Tex. 362, 224 S.W.2d 198; State v. De Silva, 105 Tex. 95, 145 S.W. 330; Bradley v. Texas Liquor Control Board, Tex.Civ.App., 108 S.W.2d 300, no writ history; Texas Liquor Control Board v. Jones, Tex.Civ.App., 112 S.W.2d 227, no writ history; Texas Liquor Control Board v. Floyd, Tex.Civ.App., 117 S.W.2d 530, no writ history.” (Emphasis added).

Subdivisions 7 and 10 of Art. 666-15(e) lists the grounds upon which the Board may cancel or suspend private club registration permits. Subdivision 7 reads:

“7. The Board or Administrator may cancel or suspend for a period of time not exceeding sixty (60) days, after notice and hearing, any Private Club Registration Permit or any renewal of such Private Club Registration Permit, upon finding that the per-mittee club has:
“(a) Sold, offered for sale, purchased or held title to any liquor whatsoever so as to constitute an open saloon as defined in Section 3 of the Texas Liquor Control Act.
■“(b) Refused to allow any authorized agent or representative of the Texas Liquor Control Board or any peace officer to come upon the club premises for the purposes of inspecting alcoholic beverages stored on said premises or investigating compliance with this Act or any provision of the Texas Liquor Control Act.
“(c) Refused to furnish the Board or its agent or representatives when requested any information pertaining to the storage, possession, serving or consumption of alcoholic beverages upon club premises.
“(d) Permitted or allowed any alcoholic beverages stored on club premises to be served or consumed at any place other than on the club premises.
“(e) Failed to maintain an adequate building at the address for which said Private Club Registration Permit was issued.
“(f) Caused, permitted or allowed any member of a club in a dry area to store any liquor on club premises except under the locker system.
“(g) Caused, permitted or allowed any person to consume or be served any alcoholic beverages on the club premises at any time on Sunday between the hours of 1:15 a. m. and 1:00 p. m., or any other day at any time between the hours of 12:15 a. m. and 7:00 a. m.
“(h) Violated any provision of the Texas Liquor Control Act or this Act.”

while Subdivision 10 is in this language, to-wit:

“Any permittee who violates or assists, aids or abets any violation of this Act or any provision thereof shall subject such permit to suspension or cancellation in accordance with the provisions of the Texas Liquor Control Act.”

This, Subdivision 10, can refer only to Art. 666-12 of the Texas Liquor Control Act, empowering the Board to cancel or suspend permits when it is found that any of a long list of acts or omissions have occurred. Clearly Subdivision 10 adds all of the grounds for suspension and cancellation found in Art. 666-12 to the grounds for suspension and cancellation listed in Subdivision 7, Art. 666-15 (e). Among the grounds for cancellation enumerated in Art. 666-12 are: “(6). That the place or manner in which the permittee conducts his business is of such nature which, based on the general welfare, health, peace, morals, and safety of the people and on the public sense of decency, warrants the cancellation or suspension of the permit.”

By the quoted paragraph in Art. 666-12 the Legislature conferred a far ranging discretionary power upon the Board. The legislative intent appears to be that the Board may cancel a permit when it finds from evidence admitted at a proper hearing that the continued operation by a permittee under a particular permit will be inimical to the public welfare, health, peace, safety, etc. The conduct, or particularities thereof, repugnant to the general welfare, etc., which will justify cancellation is not specified. The legislature delegated its authority to the Board so that the Board might use its insight and discernment in these broad fields. It is true, as reference to the Texas Liquor Control Act will disclose, that numerous acts and omissions specified by the legislature as comprising grounds for cancellation are listed in Art. 666-12 and 666-15(e), but the act does not limit cancellation to those alone, the listed acts or omissions are in addition to the grounds the Board is empowered to select by paragraph (6) of Art. 666-12 as a basis for cancellation.

The following extract from Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 29 S.Ct. 67, 53 L.Ed. 150, was quoted in Key Western Life Ins. Co. v. State Board of Insurance, 163 Tex. 11, 350 S.W.2d 839 (1961), and is referred to with approval in other opinions by the Supreme Court. In Prentis it is said; “A judicial inquiry investigates, declares, and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation, on the other hand, looks to the future and changes existing conditions by making a new rule, to be applied thereafter to all or some part of those subject to its power”. In his Administrative Law Treatise, Vol. 1, p. 287-288, Sec. 5.01, Professor Kenneth C. Davis comments that this definition has produced unsatisfactory practical results and suggests the following as a better rule, to-wit: “These various difficulties are avoided by saying simply that adjudication resembles what courts do in deciding cases, and that rule making resembles what legislatures do in enacting statutes. Then particular problems of classification can be resolved by keeping an eye on the consequences of the particular classification.” Very recently the Supreme Court of Texas in Scott v. Texas State Board of Medical Examiners, 384 S.W.2d 686 (1964), at p. 690 said: “An important consideration is whether the administrative action called for by the empowering legislative act involves public policy or is policy-making in effect, or whether the action concerns only the parties who are immediately affected”. Prior to the last mentioned case the Supreme Court in Davis v. City of Lubbock, 160 Tex. 38, 326 S.W.2d 699 (1959), said: “The authority to decide whether the continued existence of particular conditions in an area is detrimental to the public health, safety, morals or welfare of the people who inhabit it, or the community surrounding it, * * * is a legislative prerogative which may be exercised only by the Legislature itself or on its behalf by an agency to which it has delegated it.”

The Board’s exercise of the power conferred upon it to establish standards of conduct required of permittee is legislative in nature. This policy-making aspect of the Board’s cancellation procedure stamps the function of the Board in this field as administrative rather than judicial. The conclusion that the Board’s action in cancelling Club Apache’s permit is an administrative act necessitates the further conclusion that a review of its order may only be made to determine whether substantial evidence supports it. And as previously suggested is in harmony with all cancellation cases decided since 1937. The legislative direction for review of a different character conflicts with the provisions of Sec. 1, Art. II, Texas Constitution, Vernon’s Ann.St., dividing the functions of government and is void. Chemical Bank and Trust Company v. Falkner, Tex., 369 S.W.2d 427 (1963); Kost v. Texas Real Estate Commission, 359 S.W.2d 306 (Tex.Civ.App.1962, writ refused); Southern Canal Company v. State Board of Water Engineers, 159 Tex. 227, 318 S.W.2d 619 (1960).

The trial judge apparently attempted to apply the substantial evidence rule, as he understood it, to the evidence adduced in court, but he mistakenly concluded that the evidence would not support the Administrator’s order. Substantial evidence was introduced in the district court that would reasonably and plausibly support findings that Club Apache sold beer in a dry area in violation of the Liquor Control Act and that the Club served liquor to customers for beverage purposes in such way as to constitute it an “open saloon” as that term is defined in Art. 666-3(a). The judgment of the trial court is reversed and judgment rendered that appellee take nothing by its suit.

FANNING, J., concurs in the opinion.

DAVIS, J., dissents.

DAVIS, Justice.

I dissent.

The opinions handed down on April 20, 1965, and on May 25, 1965, have been withdrawn, and I dissent.

This suit resulted in an appeal by plaintiff-appellee, Robert E. Longwill, d/h/a Club Apache, against defendant-appellant, Texas Liquor Control Board, because appellant had previously canceled the ap-pellee’s private club registration permit permanently, that was situated in a dry area in Dallas County, Texas. The ap-pellee alleged that he was issued the private club permit for one year, which actually began on Septemebr 1, 1963, and expired on August 31, 1964. Appellee alleged that he had acquired the permit in the manner and form as prescribed by law. He further alleged that all the prerequisites required by law, including the necessary inspection and reports preliminary to the issuance of said license, or permit, had been legally obeyed. He further alleged that on February 13, 1964, a search warrant was issued to the appellant or its agent and employees to search and seize all alcoholic beverages found upon the premises of appellee; that appellant, its agents and employees, did enter the premises of appellee and search and seize a quantity of alcoholic beverages, together with all records of appellee, including tax records, records of all members’ names and addresses comprising the membership of said club, payroll records, etc. That a hearing was had before the Administrator of the Texas Liquor Control Board on April 13, 1964, to cancel appellee’s license; that at such hearing the Administrator proceeded to accept ex parte statements on the matter before him from persons not present or subject to cross-examination, and without giving the appellee the right to cross-examine them. After the hearing, the Administrator of appellant found that the permit issued to appellee should be permanently canceled. The appellee further alleged that the Administrator of appellant did not predicate his findings upon substantial evidence, and that he acted arbitrarily, unjustly, capriciously and illegally in permanently canceling the appellee’s permit as a private club. He further alleged that the permanent cancellation of his private club permit actually injured and damaged his property rights, and that he had been irreparably injured and damaged by the acts of the appellant and was in dire peril of losing his means of livelihood by such order.

The Private Club Permit was issued under Article 666-15(e), Texas Penal Code, effective September 1, 1961. Art. 666-15 (e), Sec. 1, subd. 7 reads as follows:

“The Board or Administrator may cancel or suspend for a period óf time not exceeding sixty (60) days, after notice and hearing, any Private Club Registration Permit or any renewal of such Private Club Registration Permit, upon finding that the permittee club has:
“(a) Sold, offered for sale, purchased or held title to any liquor whatsoever so as to constitute an open saloon as defined in Sec. 3 of the Texas Liquor Control Act.
“(b) Refused to allow any authorized agent or representative of the Texas Liquor Control Board or any peace officer to come upon the club premises for the purposes of inspecting alcoholic beverages stored on said premises or investigating compliance with this Act or any provision of the Texas Liquor Control Act.
“(c) Refused to furnish the Board or its agent or representatives when requested any information pertaining to the storage, possession, serving or consumption of alcoholic beverages upon club premises.
“(d) Permitted or allowed any alcoholic beverages stored on club premises to be served or consumed at any place other than on the club premises.
“(e) Failed to maintain an adequate building at the address for which said Private Club Registration Permit was issued.
“(f) Caused, permitted or allowed any member of a club in a dry area to store any liquor on club premises except under the locker system.
“(g) Caused, permitted or allowed any person to consume or be served any alcoholic beverages on the club premises at any time on Sunday between the hours of 1:15 a. m. and 1:00 p. m., or any other day at any time between the hours of 12:15 a. m. and 7:00 a. m.
“(h) Violated any provision of the Texas Liquor Control Act or this Act.”

There has been only one appeal from an order canceling a private club permit under Art. 666-15(e), which appeal was dismissed because the question had become moot. State v. Pool Side Club (Tex.Civ.App.), 360 S.W.2d 923, N.W.H. The record shows that the permit in this case has been renewed for another year. Since the order canceling the permit was made permanent, the rule on the points have been brought forward.

Appellant brings forward three points of error. It contends the trial court erred in holding the testimony adduced against ap-pellee through affidavits at the administrative hearing was a denial of due process and constituted no evidence; in holding that appellant proved no violation of any statute under the Liquor Control Act in the District; and, in not holding that the order canceling the appellee’s private club permit was legally supported by substantial evidence and in setting aside and holding for naught said order.

The evidence shows that the appellee owns the building in which the private club is situated, and that the same is mortgaged. It shows that he has in his employ from one to four waitresses; that he can legally make charges for mixing and serving drinks; that one of the parties who made the affidavit that was submitted to the Administrator of appellant was the guest of another member; that he returned on two or three occasions, ordered drinks, and he was charged for the mixing and serving of the drinks, on the theory that he was a guest of the other member, and just as other members were charged. The evidence shows that the other man who made the affidavit entered the club, made application for membership, and paid $5.00 for a one year membership. The evidence shows that the appellee asked him if he had a bottle of liquor, and the man told him that he did not. The evidence further shows that the man told appellee that he only intended to drink a beer. The appellee told him, in effect, that he could be his guest, and he would take a chance. The waitress waited upon him and served him a beer as a guest, and he paid her the service charge. There is no evidence that will show any violation of any law whereby the appellant could permanently cancel the private club permit.

Appellee contends that he appeared before the Administrator in Austin in an effort to cross-examine his accusers, wherein they sought to cancel his private club permit. Appellant says that neither of the accusers were present at the hearing and did not submit themselves for cross-examination. It may be true that this Administrative Agency has established rules of admitting evidence by affidavit only and are not bound by the rules of evidence that govern judicial proceedings. There are cases that hold that evidence may be presented in the form of affidavit only. 1 T.J.2d 668, Sec. 26 and the cases cited therein. In a. case like the one presented to this court, such action seems to be contrary to every rule of the common law and democratic principles. If the parties who made the affidavit had appeared before the Administrator at the time of the hearing, so that appellee or his attorney could have cross-examined them, they could have shown that there was no violation of the law whatever. In 2 Davis Administrative Law Treatise 38, Sec. 11.02 entitled “Must the Deciding Officers Hear the Witnesses Testify?”, is quite an interesting discussion. It points out that there are four Morgan cases that have reached the U. S. Supreme Court. In the First Morgan case, Morgan v. United States of America, 298 U.S. 468, 56 S.Ct. 906, 80 L.Ed. 1288, in an administrative proceeding, Chief Justice Hughes held that: “The one who decides must hear.” In the Fourth Morgan case, United States of America v. Morgan, 313 U.S. 409, 61 S.Ct. 999, 85 L.Ed. 1429, Justice Frankfurter, in speaking of the evidence admitted at the administrative hearing, said: “Doubts and difficulties incapable of exact resolution confront judgment.” The Supreme Court of the United States has consistently held that administrative proceedings have a quality resembling that of judicial proceedings.

Appellant takes the position that the license that was issued to the appellee is only a privilege and is not property or a property right. The license being issued by an agency of the state, although it may be a privilege to exercise a right that they would not be allowed to exercise without it, it is property in the sense of being a thing of value that can lawfully be acquired and held. 36 T.J.2d 589, Sec. 3, and cases cited therein. Webster’s Dictionary defines a privilege as “an exceptional law made in favor of or against any individual from privus, separate, peculiar, and lex. legis, a law. A right, immunity, benefit, or advantage enjoyed by a person or body of persons beyond the common advantages of other individuals; the enjoyment of some desirable right, or an exemption from some evil or burden; a private or personal favor enjoyed; a peculiar advantage; as, the privilege of genius. Synonym: Advantage, prerogative, immunity, franchise, right, claim, liberty.” (Emphasis added.) Webster further defines privilege as: “To grant some particular right or exemption to; to invest with a peculiar right or immunity; as, to privilege representatives from arrest. To exempt from censure or danger; to place in a condition of privilege.” (Emphasis added.)

There is a long discussion in 2 Davis Administrative Law Treatise 250, Ch. 15 in an article entitled “Evidence”. By Sec. 14.15, p. 328, it says a person shall have the right to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct close examination as may be required for a full and true disclosure of the facts. Such was not allowed in the ease at bar.

Art. 666-15 (e), subd. 7a. reads as follows:

“An appeal from any order of the Board or Administrator under this Section refusing, canceling or suspending a permit or license may be taken to the District Court of the County in which the aggrieved licensee or permittee, or the owner of involved real or personal property may reside. The proceeding on appeal shall be de novo under the same rules as ordinary civil suits, with the following exceptions, which shall be considered literally, viz:
“(a) All appeals shall be perfected and filed within thirty (30) days after the effective date of the order, decision or ruling of the Board or Administrator.
“(b) Such proceedings shall have precedence over all other causes of a different nature.
“(c) All such causes shall be tried before the judge within ten (10) days from the filing thereof, and neither party shall be entitled to a jury.
“(d) The order, decision or ruling of the Board or Administrator may be suspended or modified by the District Court pending a trial on the merits, but the final judgment of the District Court shall not be modified or suspended pending appeal.
“(e) The District Court may consider any evidence and only such evidence as would be proper if the case were one appearing in the first instance in the District Court and it shall arrive at its decision independently of the proceedings below. The Substantial Evidence Rule shall have no application in the proceedings of the District Court.”

Appellant undertook to sustain the permanent cancellation of appellee’s permit because of the alleged sale by appellee of beer and liquor in such a manner as to constitute the club an open saloon. The suspension or cancellation of a private club permit must depend upon fact issues made by proof of actual occurrences prior to the hearing before the administrative agency. In the case of such cancellation, an appeal must be taken to the district court. In the district court, according to the statutes, the trial must be de novo and the substantial evidence rule does not apply. Scott v. Texas State Board of Medical Examiners (Tex.Sp.Ct.), 384 S.W.2d 686, citing Key Western Life Insurance Co. v. State Board of Insurance (Tex.Sp.Ct.), 350 S.W.2d 839. It seems that the Legislature by enacting the provisions of Art. 666-15 (e), Subd. 7a, PC, as to trial de novo was trying to follow the mandate as laid down by Chief Justice Calvert in Southern Canal Co. v. State Board of Water Engineers (Tex.Sp.Ct.), 318 S.W.2d 619. I would hold that this provision of the Article is not unconstitutional.

The findings of fact by the trial judge are supported by the evidence. I would overrule the points of error., and the judgment of the trial court would be affirmed.

      . Reference hereafter to either the Texas Liquor Control Board or Administrator should be understood generally to refer to both.


source: Caselaw Access Project

author: PARKER, Justice.

license: Public Domain

text:
    LOWER NECHES VALLEY AUTHORITY, Appellant, v. CITY OF BEAUMONT et al., Appellees.
    No. 6767.
    Court of Civil Appeals of Texas. Beaumont.
    June 3, 1965.
    Rehearing Denied July 7, 1965.

      Keith, Mehaffy & Weber, Beaumont, for appellant.
    King, Sharfstein & Rienstra, George T. Camp, Beaumont, for appellees.
   PARKER, Justice.

Kenneth H. Cox and some eighty other home owners filed suit for damages against Lower Neches Valley Authority alleging that various negligent acts and omissions of Lower Neches Valley Authority had resulted in extensive flood damage to their homes. The only defendant to their suit was Lower Neches Valley Authority. The latter availed itself of Rule 38, Texas Rules of Civil Procedure, and joined as cross-defendants therein the City of Beaumont, Texas, and J. K. Hurley and Cecil Bordages, from whom Lower Neehes Valley Authority sought contribution at law. Lower Neches Valley Authority undertook settlement negotiations with Kenneth H. Cox and the other original plaintiffs resulting in Lower Neches Valley Authority, on its sole responsibility, voluntarily paying such original plaintiffs $95,766.84. After such payment, Lower Neches Valley Authority amended its pleadings against the City of Beaumont, J. K. Hurley and Cecil Bordages seeking contribution from them under Article 2212, Vernon’s Ann.Rev.Civ.St.Tex., and not otherwise, for the voluntary payments made by Lower Neches Valley Authority to Kenneth H. Cox and the other original plaintiffs. The trial court sustained appellees, namely, the City of Beaumont, J. K. Hurley and Cecil Bordages — exceptions to the amended cross-action of Lower Neches Valley Authority. Lower Neches Valley Authority refused to amend, whereupon the trial court dismissed its suit for contribution. Kenneth H. Cox, et al., will be called the “original plaintiffs”. The Lower Nech-es Valley Authority will be called “LNVA” or appellant. The City of Beaumont, J. K. Hurley and Cecil Bordages will be called appellees or by name.

In its pleadings, LNVA alleges:

“The plaintiffs sought by this lawsuit more than Four Hundred Thousand Dollars ($400,000.00). Surveying all of this, LNVA undertook settlement negotiations with counsel for the plaintiffs in this case, and invited counsel for the City to participate therein, but City’s counsel refused so to participate. At the conclusion thereof LNVA entered into an agreement with each of the several plaintiffs herein for a total consideration of Ninety Five Thousand Seven Hundred Sixty Six and 84/100 Dollars ($95,766.84). Each of the agreements between LNVA and the plaintiffs is not attached hereto. However, Exhibit B is a copy of one of such agreements, which with the exception of the name of the parties and the amount of money is in all things identical to each of the other agreements between LNVA and the plaintiffs in this case. The sum of Ninety Five Thousand Seven Hundred Sixty Six and 84/100 Dollars ($95,766.84) has been paid by LNVA to the plaintiffs in accordance with the agreement.”

Exhibit “B” simply sets forth a settlement agreement for such total sum of money in exchange for a covenant not to sue LNVA or further prosecute any suit against it executed by each of the original plaintiffs. Further, in entering into such covenant not to sue each original plaintiff recognized that LNVA did not admit that it was guilty of any act, wrong or omission proximately causing any injuries or damages to original plaintiffs and that such settlement agreement should never be construed as an admission of liability by LNVA.

LNVA did not allege and did not admit that it was legally liable unto the original plaintiffs. LNVA did not admit in its pleadings that it was a tort feasor within the meaning of Article 2212. LNVA does not allege that its liability has been adjudicated. The voluntary settlement made with the original plaintiffs by LNVA did not discharge the liability of appellees to the original plaintiffs. LNVA alleged that it paid a definite amount of money to the original plaintiffs but it in no place alleges that it paid to the original plaintiffs more or less than its share or proportion of the damages sustained by original plaintiffs.

Appellant’s points of error 1-5 asserted error on the part of the trial court in sustaining appellees’ special exceptions to such cross-action of LNVA as a whole because:

(a) LNVA fails to allege and admit that it was legally liable unto the original plaintiffs and fails to allege and admit that it was a tort feasor within the meaning and purview of Article 2212 jointly and severally liable with other alleged tort feasors unto the plaintiff.
(b) LNVA fails to allege that it paid to the original plaintiffs more than its share or proportion of the damages sustained by said plaintiffs.
(c) LNVA fails to allege that it was legally adjudicated to be liable unto the original plaintiffs and thereby compelled to pay certain amounts unto said original plaintiffs.
(d) It is apparent therefrom that the amounts paid by LNVA to the original plaintiffs were by way of settlements voluntarily agreed to by LN VA and the provisions, of Article 2212 do not provide for or encompass a recovery by LNVA against other alleged tort feasors for amounts expended in settlement of a controversy, but said article is applicable only where a judgment is rendered against LNVA and it was thereby compelled to discharge the full amount of said judgment.
(e) It is apparent from the allegations therein and the exhibits attached thereto that the settlement made by LNVA with the original plaintiffs did not discharge and release the liability, if any, of your cross-defendant to the original plaintiffs, and consequently your cross-defendant could still be liable unto said original plaintiffs inasmuch as LNVA obtained only from the original plaintiffs a so-called covenant not to sue LNVA and did not obtain or secure from the original plaintiffs a release of all alleged joint tort feasors who might be liable unto the plaintiffs.

Kenneth H. Cox and the other original plaintiffs obtained no judgment against LNVA prior to being paid by LNVA. An able discussion of Article 2212, when its application to a voluntary settlement is involved, is to be found in Brown & Root v. United States, 92 F.Supp. 257, opinion by Judge Ben Connally of June 26, 1950, affirmed by the Fifth Circuit June 27, 1952, 198 F.2d 138. Referring to Article 2212, R.C.S.T., Judge Connally on page 263 of his opinion analyzed such statute as the Texas courts have construed it in the following language:

“ * * * In such case, where all defendants were before the court, and each had equal right to defend, the one defendant who, through the option or capricious choice of the plaintiff, was compelled to pay, might recover his pro rata share of the loss from each of the remaining solvent defendants. But the cases have extended the doctrine beyond the words of the statute. If the plaintiff sues only one defendant, such defendant may implead the others. Lottman v. Cuilla, Tex.Com.App., 228 S.W. 123. The Texas Supreme Court has gone further, and stated that the second defendant need not be a party to the original suit. The defendant who is held in judgment there may, in a separate action, pursue and recover contribution from his joint wrongdoer. Union Bus Lines v. Byrd, 142 Tex. 257, 177 S.W.2d 774. Thus, had there been a judgment rendered against Brown & Root, Inc. after a contested trial, that defendant might in this independent action seek contribution from the Government under the terms of the Texas statute. But such was not the case. In each instance after the three cases were filed in the State Court, a voluntary settlement agreement was entered. Neither the liability of Brown & Root, Inc. nor the damages sustained by the various plaintiffs was determined by any Court. Brown & Root, Inc. simply purchased its peace. Article 2212 makes no provision for recovery by one alleged to be liable to the plaintiff against his alleged joint tort-feasor under such circumstances. Cases cited above show such recovery is not recognized on common law principles. To permit recovery of contribution under these circumstances would extend the meaning of Article 2212 far beyond its terms and beyond the interpretation placed upon it by the Texas Courts, 10 Tex.Juris., Contribution, p. 544. I am not inclined to do further violence to the terms of the statute. If it is desirable that contribution be permitted under such circumstances, the Legislature should so provide. Baylor University v. Bradshaw, Tex.Civ.App., 52 S.W.2d 1094 at page 1103, affirmed, Tex.Com.App., 84 S.W.2d 703. (Emphasis added.)”

Appellant’s points of error 1-5 are each and all overruled.

Having overruled appellant’s points of error 1-5, appellant’s points of error Nos. 6, 7 and 8 become immaterial to a disposition of this case and are not passed on.

Judgment of the trial court is affirmed.

ON MOTION FOR REHEARING

In its Motion for Rehearing appellant urges: “The holding of this court conflicts with the decision of the Eleventh Court of Civil Appeals in Callihan Interests, Inc. v. Duffield, 385 S.W.2d 586 (1965).” The Supreme Court refused writ of error.

In Callihan Interests, Inc. v. Duffield, supra, the original plaintiffs, Box et al., recovered from Callihan Interests, Inc., in the District Court of Callahan County the sum of $18,500.00. Contemporaneously with the entry of such judgment such sum was paid to the original plaintiffs. Such sum was paid under the judgment. In the instant case the original plaintiffs by judgment did not recover any damages in any amount from LNVA, and were not paid any amount under such judgment which adjudicated “that the plaintiffs herein, and each of them shall have and recover nothing of and from Lower Neches Valley Authority.”

In Callihan Interests, Inc. v. Duffield, supra, the judgment for $18,500.00 was for all damages incurred by original plaintiffs with Callihan Interests, Inc., recovering from and being paid by way of contribution by two of the third party defendants, namely Bridwell Oil Company and W. J. Ful-wiler, Jr., the sum of $800.00 each. This was not true in the instant case. The covenants not to sue LNVA only made by the original plaintiffs herein, Cox et al., and under which they were voluntarily paid by LNVA outside of court and prior to any judgment in no manner discharged the liability, if any, of appellees herein to original plaintiffs.

In Callihan Interests, Inc. v. Duffield, supra, the judgment of the District Court of Callahan County was for “$18,500.00 against Callihan and awarding Callihan judgment against Bridwell and Fulwiler each for $800.00 contribution with provision that judgment should not release the cause of action asserted by Callihan against Duf-field. * * * ” Duffield was not before that court because he had filed a plea of privilege to be sued in Taylor County* and, by agreement, the third party complaint of Callihan as to Duffield only was transferred to Taylor County. Duffield filed a motion for summary judgment in Callihan’s third party proceeding against him in the District Court of Taylor County subsequent to the judgment in Callahan County for Box et al. v. Callihan Interest, Inc., above discussed. Callihan was not permitted to pursue his action for contribution against Duffield in the District Court of Callahan County. No such situation is present in the instant case.

Further, in the instant case LNVA by its pleading makes no showing that by its voluntary settlement' it paid more than its fair share of the damages sustained by original plaintiffs, Cox et al. By the covenants not to sue executed by LNVA and the original plaintiffs LNVA expressly stated it did not admit any liability to them. In Callihan v. Duffield, supra, the judgment discharged all liability of all joint tort-feasors to the original plaintiffs, Box et al.

We find no conflict between the decision of the Eleventh Court of Civil Appeals in Callihan Interests, Inc. v. Duffield, supra, and our opinion herein. In the Callihan Interests, Inc. v. Duffield, supra, the court held: “The statute created a cause of action for the benefit of one tort-feasor who, by paying a judgment, discharged the liability of his joint tort-feasor.” In that case one tort-feasor did pay a judgment discharging the liability of his joint tort-feasors. In the present case LNVA did not pay a judgment discharging the liability of appellees.

Appellants’ Motion for Rehearing is overruled. The judgment of the trial court remains affirmed.

We have styled the case as in the heading, but it is one and the same case appealed from the District Court of Jefferson County, Texas, under the style on the Transcript as No. D-73972, Lower Neches Valley Authority et al. v. Kenneth H. Cox.


author: NYE, Justice.

text:
    UPPER VALLEY AVIATION, INC., Appellant, v. Ward FRYER, Appellee.
    No. 12.
    Court of Civil Appeals of Texas. Corpus Christi.
    June 29, 1965.
    Rehearing Denied July 29, 1965.

      Cox & Wilson, by Bascom Cox, Brownsville, Rankin, Kern, Martinez & de la Garza, by H. H. Rankin, Jr., McAllen, for appellant.
    Kelley, Looney, McLean & Littleton, by Ralph Alexander, Edinburg, for appellee.
   NYE, Justice.

This is a suit for damages brought by the owner of an airplane, Upper Valley Aviation, Inc., against Ward Fryer, the pilot. Ward Fryer, hereinafter called ap-pellee, rented a small single-engine private plane from the appellant Upper Valley Aviation, Inc., in McAllen, Texas, for the purpose of flying to Washington, D. C. It was stipulated that the relationship between the parties to this suit was that of bailor and bailee. On the return trip from Washington, the appellee crash-landed in Alabama. The case was tried before a jury. In response to special issues submitted and answered, the jury exonerated the appellee from negligence and found that the appellant was contributorily negligent. From a judgment entered that appellant take nothing, its appeal to this Court has been perfected.

In January of 1961, appellee and his wife decided to attend the inauguration of President Kennedy in Washington, D. C. He rented the airplane, a Piper Comanche 250, from appellant. The appellee flew to Washington in gradual stages, stopping in Austin, Texas, Memphis, Tennessee, Cincinnati, Ohio, and Baltimore, Maryland. They did not experience any difficulty on their trip back East. The airplane was a low wing single-engine aircraft, equipped with two wing type tanks holding thirty gallons of gasoline each. Immediately after he landed at Friendship Airport near Washington, the appellee ordered the gasoline tanks filled, and observed the attendant placing the gasoline in the tanks.

After the inauguration ceremonies, ap-pellee and his wife started their return trip to McAllen, Texas. Prior to take-off, ap-pellee made a routine check of his plane, including checking the landing gear, the oil, draining the gasoline sump and checking the gasoline gauges to determine the amount of fuel on board. Because of crowded conditions at the airport, appellee had some difficulty in getting full weather information on winds aloft before departure, but was able to get sufficient information to know that flying to his destination was safe. He did, however, get complete weather data by radio after he was airborne and away from the Washington area. Appellee filed his flight plan while in flight, stating that he had six hours of fuel on board and that his estimated time en route was five hours. Although he had planned to stop overnight at New Orleans, he knew that he would probably have to stop en route to gas the plane. He had not determined the exact stopping place en route, however, he intended to go as far as he could safely, with the fuel supply that he had on board. As is customary for pilots flying this type of aircraft, the appellee switched from one tank to the other while flying, to keep the aircraft trimmed properly. Otherwise one wing would be heavier than the other because of more fuel in one tank than in the other. When approximately one hundred and twenty miles from Montgomery, Alabama, appellee decided that he would fly on to Montgomery and land there for refueling. He checked his gas gauges and noticed that the left tank had about three gallons of gasoline left, and the right tank indicated half full. He used the remaining gas in the left tank and then switched over to the right tank. Shortly thereafter, the engine quit and the aircraft crashed about forty-three miles from Montgomery, Alabama. The plane was virtually demolished, although the appellee and his wife escaped serious injury. At the time the airplane crashed, the right hand gas gauge indicated that the right tank was almost half full of gasoline. Later it was determined that the aircraft was completely out of gas.

Appellant’s first and second points complain that the trial court erred in overruling their motion for instructed verdict and their motion for judgment non obstante veredicto. Appellant’s points three through thirteen complain that the trial court erred in submitting to the jury over appellant’s objection Special Issues 9, 10, 11, 12, 13, 14, 15, and 16, because there was no evidence and/or no evidence upon which the minds of reasonable men could differ to sustain the submission of such special issues.

The jury was asked the general issue (Special Issue No. 1) as to whether or not the crash in question was caused by the ap-pellee’s negligence. The jury answered “No”. Special Issue No. 3 inquired whether or not on the occasion in question ap-pellee failed to visually determine by inspection of the gas tanks the adequacy of the supply of fuel of said plane for his proposed return flight from Friendship Airport en route toward New Orleans, Louisiana. The jury answered “No” in response to this issue. Issue No. 6 requested by appellant was whether or not appellee flew the plane with an insufficient supply of gasoline for his return trip from Friendship Airport en route toward New Orleans. The jury answered “No”. In other issues the jury convicted the appellant of contributory negligence. ■ They found that the plane in question was not in good condition when delivered to appellee (Special Issue No. 9); that appellant furnished ap-pellee with a plane with a defective gas gauge (Special Issue No. 10); which was negligence (Special Issue No. 11) ; and a proximate cause of the crash (Special Issue No. 12). Further, the jury found that the appellant knew, or should have known, of the defective gas gauge (Special Issue No. 13); that appellant failed to warn ap-pellee of such defective gas gauge (Special Issue No. 14); that such failure was negligence (Special Issue No. 18); and that such negligence was the proximate cause of the crash in question (Special Issue No. 16).

Appellant contends that there was no evidence of any probative value offered by the appellee to show that the crash could have been caused by other than his fault. Appellant argues that where the airplane was delivered to the appellee as bailee in good condition and returned in a damaged state, the law presumes the bailee’s negligence or other fault to be the cause. This presumption, referred to and discussed in Trammell v. Whitlock, 150 Tex. 500, 242 S.W.2d 157, which cites with approval the opinion of Judge Leonard Hand in Alpine Forwarding Co. v. Pennsylvania R. Co., Cir.Ct. of App., 2nd Cir., 60 F.2d 734, casts on the bailee the duty of at least producing some evidence showing how the property was injured or that however that was, it was not due to his neglect in order to vitiate the presumed negligence. This presumption, on which the bailor may rely, is a mere rule for the conduct of the trial. It puts upon the bailee the risk of a directed verdict if he does not meet it, but it does no more. Once he has introduced some evidence, the presumption disappears from the case and the evidence must be regarded by the jury as in an ordinary case to determine whether on the preponderance of the evidence the bailee was negligent. Falls Church Airpark Co., Inc. v. Mooney Aircraft, Inc., 254 F.2d 920, 5th Cir., 1958; Mustang Aviation, Inc. v. Ridgway, Tex.Civ.App., 231 S.W.2d 677 (1950) ; Callihan v. Montrief, Tex.Civ.App., 71 S.W.2d 564, err. ref.; Beck v. Lasater, Tex.Civ.App., 286 S.W.2d 957, ref. n. r. e., 8 Tex.Jur.2d, § 26, p. 102, Aviation; 8 Tex.Jur.2d § 50, p. 264, Bailment. The record clearly shows that evidence was introduced to explain the damage to the aircraft and that the appellee was not negligent or at fault in connection therewith. The record indicates that the appellant chose at the outset of the trial, as the first witness, to call the appel-lee under the adverse party rule and to interrogate him extensively as to how the accident occurred. It was the testimony of the appellee and later in the trial, his wife, that the gas gauge indicated that the plane still had approximately one fourth of its total fuel supply available at the time of the crash. There was no evidence that ap-pellee was responsible for causing the defective condition of the gas gauge.

Appellant’s points of no evidence require the reviewing court to look at the evidence favorable to the verdict. The rule of whether reasonable minds could differ applies, and applies only, to the question of whether the evidence as a matter of law requires a conclusion contrary to the verdict. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The record of this case shows that the trial lasted more than two weeks. The statement of facts was therefore rather voluminous. The evidence discloses that the defective gas gauge was reported to the appellant several months prior to the use of the plane by the appellee. A certain pilot, Sherman Ihde, flew the same airplane on a long distance flight and observed that one of the gas gauges was defective in that when the recording needle dropped to an indication of approximately half full, it stopped recording at that point and did not register the correct amount of fuel. His recollection was that it was the right hand wing tank gas gauge. The witness Ihde reported it to the Chief Pilot of the appellant company, who did not signify that anything was going to be done to correct the defect. Appellant’s manager and vice president stated that to their knowledge nothing was done to check such defective gauge nor was any repair made to it. There was evidence that this type of defect would not show up unless a pilot was switching tanks and travelling a long distance without refueling. Evidence indicated that no other pilot had flown this plane on a long distance flight between the time witness Ihde flew the plane and the appellee.

Appellee testified that he observed the refueling of the plane at the time he landed at Friendship Airport; that he had visually checked the gas gauges prior to departure and that he had sufficient fuel supply to make the trip en route toward New Orleans. He stated he would stop en route to gas the plane. When he crash-landed, some forty-three miles from Montgomery, Alabama, his gas gauge indicated that he had ample fuel to make a fuelling stop at Montgomery, Alabama, had the gauge functioned properly.

Appellant seeks to establish appellee’s liability by contending that as a matter of law he was guilty of negligence (a) in failing to look into his gasoline tank before taking off from Baltimore, (b) in failing to make proper investigation of the weather en route, including winds aloft (the record indicated a strong head wind) and (c) in failing to plan for an alternate airport or destination, all in violation of the Federal Aviation Agency Air Regulations. None of these specific acts of negligence were plead by appellant and no special issues were requested on the two latter acts. Both the appellee and his wife admitted that they did not open up the fuel caps and look inside the gasoline tanks prior to leaving Friendship Airport. However, Special Issue No. 3, submitted by the appellant, could have been construed as to whether or not the appellee failed to adequately determine the gasoline supply en route toward New Orleans. Appellee did visually check the gas gauges and he did visually observe the filling of the tanks. Several witnesses, although the testimony was conflicting, testified that it was not the custom of pilots flying this type of aircraft to visually inspect the gasoline within the tank prior to take-off. We have carefully reviewed the regulations cited by appellant and none of these regulations require that a pilot make a visual inspection of the fuel tank prior to flight. Such regulations must be strictly construed and are not to be extended by construction beyond the plain import of their terms. 53 Tex.Jur.2d § 198, p. 304.

The regulations in effect state that the pilot should “visually inspect the airplane and/or determine that: * * * the fuel tanks are full or at a safe level of proper fuel.” (Emphasis supplied.)

Appellee testified extensively about getting sufficient weather information, both prior to his departure and by radio during his trip. He also testified that he considered that there were numerous alternate airports between Washington and New Orleans and that he had taken into account and proposed to refuel at Montgomery, Alabama, as an alternate airport. The aviation rules only require that a consideration of such alternate airport be taken into account by the pilot. We do not find that appellee was negligent as a matter of law.

Appellant argues that the aircraft in question had been inspected by a Federal Aviation Agency inspector just the day prior to appellee’s departure. Appellant contends that this exonerates him from contributory negligence because the government inspector would not have approved the aircraft had it not been in good condition. We disagree with appellant’s contention. The evidence of the inspection was only a part of the evidence as a whole to be considered by the jury in determining the condition of the airplane. There was no evidence offered by the appellant of the nature of such inspection. It would be a reasonable conclusion that can be drawn from the evidence, that the defect in the gas gauge, once established, and not corrected, would not be readily ascertainable without subjecting the aircraft and the gauge to the same type of conditions that would reveal such defect. There was no evidence that this was done.

Appellant further contends that appellee was negligent as a matter of law in that he voluntarily relinquished his pilot’s license for a sixty-day suspension, admitting thereby his negligence. Appellee testified, without objection, that he had three alternatives, one of which was to surrender his license for sixty days, at which time he would receive it back, or to go to the expense of hiring an attorney and fight the suspension. He chose the surrender of his license as being only slightly inconvenient. Whether a breach of an administrative regulation is negligence per se or only evidence of negligence may be largely a matter of procedural import. The question of whether a person has been guilty of negligence is ordinarily a question for the jury. Where there is a failure to perform a duty prescribed by law it may be negligence as a matter of law and if the act or omission was proved without dispute there would be no question for the jury. McCormick & Ray on Evidence, 1 Tex.Prac. § 5. However, we do not have this situation here. We believe that the charge made by the Federal Aviation Agency and the answer given by the appellee here, does not amount to a conclusive admission but would only, at most, be some evidence of his negligence to be considered by the jury along with the other evidence in the case. C. F. Smith v. United States, 287 F.2d 299, 5th Cir.

Although appellant’s points are no evidence points, many of his arguments concern the sufficiency of the evidence. After giving the record as a whole careful consideration, we find that there is ample evidence to support the verdict and judgment of the court. Appellant’s points one through thirteen are overruled.

Appellant’s fourteenth point complains that the trial court erred in refusing to grant its motions for new trial on the grounds of jury misconduct because the jury in its deliberations discussed that ap-pellee must be guilty of “undue and excessive negligence” which had to be proved “beyond a reasonable doubt,” in addition to the fact that “a lot of insurance” was involved in the case.

During the hearing on the motion for new trial, juror Windham admitted that he had made some statement during jury deliberations, to the effect that he did not believe that appellee was guilty of excessive or undue negligence, and that appellee’s negligence had not been proved beyond a reasonable doubt. When asked about this statement during the hearing on the motion for new trial, juror Windham stated: * * * “I was called to the carpet real quick by three people. One lady sat across the table, the foreman and Mr. Adamsen. I had not hardly got through saying it and I realized I had said something wrong. I verified that remark. I don’t remember what it was in the charge, and I said I didn’t mean it in that sense of the word. I said that was my phrasing.” The record indicates that the foreman, Mr. Shull, called him down and said under the court’s charge such statements were not to be considered and that his statements were in error. The foreman stated that he admonished the jury not to consider the same. It is apparent from the record that these statements when made by juror Windham were made as error of phraseology. It was his way of paraphrasing the instructions of the court. Juror Windham simply misconstrued a portion of the court’s charge and stated an erroneous interpretation to the other members of the jury. It was held in Whited v. Powell, 155 Tex. 210, 285 S.W.2d 364 that:

“ * * * an express misconstruction of the court’s charge, which does not bring to the attention of the jury law or facts outside the record, should not be regarded as jury misconduct within the meaning of Rule 327.”

Although the statement was made more than once and before the jury answered any of the issues, juror Windham was immediately rebuked and the charge was rechecked and the correct instructions as to the preponderance of the evidence were re-read to the jurors. We conclude that this was not misconduct and that Wind-ham’s statements amounted to nothing more - than a misinterpretation of the court’s charge. Compton v. Henrie, 364 S.W.2d 179, Sup.Ct.1963. See also, Adams v. Houston Lighting & Power Co., 158 Tex. 551, 314 S.W.2d 826; Pete-Rae Development Co. v. State, Tex.Civ.App., 353 S.W. 2d 324, (1962, ref., n. r. e.). See Generally: Pope: “The Mental Operations of Jurors”, 40 Tex.Law Rev. 849, and cases cited therein.

Juror Adamsen testified in the hearing on the motion for new trial, that he had stated during the jury deliberations that there was “lots of insurance involved in this case.” The foreman immediately admonished the jury not to consider the same and that they were not to consider the fact that insurance was involved. During the trial, appellant’s general manager and vice-president voluntarily referred to the fact that the airplane in question was covered with insurance. The word “insurance” was mentioned three different times by the appellant’s own witness. The foreman of the jury, Mr. Shull, testified that the incident when insurance was mentioned, was, when they got to Special Issue 17 or 18 (the issues that had to do with the cash market value or salvage value) and the jury had already answered all of the special issues concerning negligence and contributory negligence.

We hold that the mention of insurance under this fact situation did not constitute such misconduct as would require a reversal of the judgment based on the jury verdict. Putman v. Lazarus, 156 Tex. 154, 293 S.W.2d 493 (1956); Pittman v. Baladez, Tex.Civ.App., 304 S.W.2d 601 (1957), reversed on other grounds, 158 Tex. 372, 312 S.W.2d 210.

We have given careful consideration to the record on the motion for new trial and do not find that there was any material act of misconduct on the part of the jury that resulted in probable injury to the appellant. Rule 327, Texas Rules of Civil Procedure.

Appellant’s point fourteen is overruled.

Judgment of the trial court is affirmed.


author: DENTON, Chief Justice.

text:
    STEEPLE OIL & GAS CORPORATION et al., Appellants, v. J. D. AMEND, Appellee.
    No. 7469.
    Court of Civil Appeals of Texas. Amarillo.
    May 31, 1965.
    Rehearing Denied June 28, 1965.
    Henry Klepak, Dallas, for appellants.
    Simpson, Adkins, Fullingim & Hankins, Amarillo, for appellee.
   DENTON, Chief Justice.

This suit was instituted by Steeple Oil & Gas Corporation and Raymond A. Baur against J. D. Amend seeking to recover gas well equipment, reasonable rental value of the equipment, and the costs of drilling a gas well. Appellee, J. D. Amend, filed his motion for summary judgment. The trial court granted a partial summary judgment in favor of appellee on all issues except the reasonable value and/or reasonable rental value of appellant’s gas well equipment. The latter issue was severed from the primary cause of action and is not involved in this appeal.

The material facts are undisputed. Amend, as lessor, executed an oil and gas lease to appellant’s predecessor on April 10, 1957, for a primary term of six months. A gas well was completed and capped prior to August 1, 1957, well within the primary term. Paragraph Two of the lease provided :

“Subject to the provisions herein contained, this lease shall be for a term of six months from this date (called ‘primary term’) and as long thereafter as oil and gas are produced from said land or land with which said land is pooled hereunder.”

The lease also contained a “shut-in” clause. On August 9, 1957, appellants paid Amend $640.00 shut-in royalty in accordance with the terms of the lease. This payment extended the life of the lease for one year. In September of 1958 Amend filed suit against appellants in the District Court of Sherman County, Texas, and alleged the oil and gas lease terminated because of the failure of appellants to produce gas or pay the shut-in royalty. The District Court of Sherman County entered judgment declaring that the lease terminated on August 10, 1958. This court affirmed that judgment of the trial court in 337 S.W.2d 809, (Refused, NRE), and that judgment has become final. The present suit was filed by appellants in the 108th District Court of Potter County seeking the relief set out above.

Appellants’ single point of error contends the trial court erred in granting a partial summary judgment which denied appellants the right of reimbursement for the costs of drilling the gas well. They take the position appellee chose to terminate the lease agreement and thereby unjustly enriched himself by acquiring the benefits of a producing gas well at no cost to himself. As we understand it, appellants urge that since Amend chose to bring the original suit to cancel the oil and gas lease rather than sue for the shut-in royalty, rules of equity should apply to require Amend to reimburse appellants for the drilling costs. Appellants concede there is no Texas case directly in point, and we have found none.

In support of their position appellants rely principally upon Phillips v. Coast, 130 Pa. 572, 18 A. 998, by the Pennsylvania Supreme Court. In that case the defendant mistakenly drilled an oil well on the plaintiff’s land and plaintiff brought suit for statutory ejectment to recover the possession of land upon which the defendant had mistakenly drilled the well. The case involved adverse possession assumed by the defendants by mistake. In allowing the defendants to recover the “cost of the well and appliances” the court based its ruling on the premise the defendants “in the most perfect good faith, expended their money in sinking this well.” The court in invoking equity held that if the plaintiffs had been in possession of the land they would have had to expend the same amount to have enjoyed the benefits they then had as a result of defendants mistakenly drilling on their land. In our opinion this case is not controlling. The questions of mistake, good faith, the right to possession, and adverse possession are not involved. The same distinctions are found in other cases cited and relied on by appellants. Such a case is Sequatchie Coal Co. v. Sunshine Coal & Coke Co., 25 Tenn.App. 604, 166 S.W.2d 402. There the defendant mistakenly opened a coal mine on plaintiff’s land thinking the mine was on its own property. In answer to plaintiff’s suit to enjoin defendants from trespassing or mining coal from their land, defendants filed a cross-bill seeking to recover the value of the improvements made by them. The court held the placing of improvements upon another’s land in good faith as a result of a mistake “complainants should not in equity have the benefit of these expenditures by the defendants for nothing.” In the present case there is no question of good faith or mistake. Another case relied on by appellants is Mulholland v. Jolly, (Tex.Civ.App.), 17 S.W.2d 1109, (Error Refused). In that case the defendant in the trespass to try title action took possession of the land under a forged deed and in good faith made valuable improvements on the land. In holding the defendant was entitled to reimbursement for the improvements, the court invoked the rules of equity and said:

“In all cases where the deed apparently is legal and purports to convey the land, the party who acts in good faith on such instrument and enters in possession and makes the improvements in justice and equity should be entitled to a recovery.”

Such is not the situation in the case at bar. These and other cases relied on by appellants do not involve the same type of interests or estate as found here. The present case does not involve a situation where possession has been acquired by mistake or under a forged or otherwise void instrument.

This court recently handed down a decision in a case in which the lessee of an oil and gas lease sought in a cross-action to recover for compensation for valuable improvements represented by expenses of drilling and equipping a gas well. Thoreson v. Grady L. Fox et al., Tex.Civ.App., 390 S.W.2d 308. Although we upheld the lessee’s recovery of such improvements, the case has several distinguishing features from the case at bar. In Thoreson the lessor and land owner sued in trespass to try title and to cancel the oil and gas lease. An additional count alleged lessor had no adequate remedy at law to prevent lessee from removing the casing and destroying or damaging the well; thus, invoking the court of equity for relief to prevent on offset recovery for good-faith improvements placed on the premises by the lessee. Although it was held the lessee held a determinable fee, as in this case, the jury found the lessee did not believe the lease required actual production within the 240 days named in the lease. We held there was evidence to support this jury finding. Thus, the lessor invoked equity for relief and there was a jury finding of good faith on the part of the lessee that the lease had not expired. These factors, together with the unique language of the oil and gas lease, clearly distinguishes the Thoreson case from the case under consideration.

The oil and gas lease under consideration gave appellants, the lessees, a determinable fee which could have continued “as long thereafter [the six months primary term] as oil and gas are produced”; or it could terminate through the operation of limitations expressed in the lease. Waggoner Estate v. Sigler Oil Co., 118 Tex. 509, 19 S.W.2d 27; Freeman v. Magnolia Petroleum Co., (Com.App.), 141 Tex. 274, 171 S.W.2d 339, (Opinion Adopted); Gulf Oil Corp. v. Reid, 161 Tex. 51, 337 S.W.2d 267. The Supreme Court has held that upon cessation of production after the termination of the primary term the lease automatically terminates. Freeman v. Magnolia Petroleum Co., supra; Watson v. Rochmill, 137 Tex. 565, 155 S.W.2d 783, 137 A.L.R. 1032. In the prior suit between these same parties this court held the appellants’ “lease had lapsed” for the failure to timely pay the shut-in royalty as provided for in the lease. This failure to timely pay the shut-in royalty had the effect of stopping gas production, thus terminating the oil and gas lease. The determinable fee may end upon the happening of certain contingencies or conditions such as cessation of production. Upon the happening of this limitation there is no forfeiture since the estate automatically expires under its own terms. Duke v. Sun Oil Co., (Fifth Circuit), 320 F.2d 853; Texas Co. v. Davis, 113 Tex. 321, 254 S.W. 304, 255 S.W. 601; Caruthers v. Leonard, 254 S.W. 779, (Com.App.). We therefore conclude appellants’ contention that appel-lees had an election of remedies and that the equitable rule against forfeiture should be invoked has no application to the facts of this case. Appellee’s orginal suit was not an action of cancellation of the lease hut one to declare the lease forfeited or terminated.

Having determined appellants acquired a determinable fee estate and that such estate automatically terminated under the terms of the lease by the failure to timely pay the shut-in royalty, we must decide the primary question of whether or not appellants are entitled to reimbursement of their expenditures involved in the drilling and equipping of the gas well expended prior to the termination of the lease. Appellee concedes appellants have the right under Paragraph Eight of the lease to remove the casing and other fixtures placed thereon by them. This issue, together with the equipment’s rental value, has been severed and remain to be adjudicated by the trial court.

When an oil and gas lease terminates, as was judicially determined in this case, the rights of the lessee come to an end. Upon such termination the lessors became the owners of the mineral estate conveyed by the lease. Waggoner Estate v. Sigler Oil Co., supra. Although no Texas case has directly passed on the issue presented, analogous property rules should be considered. In Elam v. Parkhill, 60 Tex. 581, the wife took the property under her deceased husband’s will. She received a life estate with the condition that if she married a man with more than one child such estate would immediately terminate. As a life tenant burdened with this condition, the court held “she would not be entitled to a recovery against the remainder-man for the value of any improvements that she might put upon the land during her occupancy.” Although the life estate in the Elam case was not a determinable fee in the strict sense, we think the analogy is clear. It is also well settled that a life tenant is not entitled to reimbursements for improvements expended during the tenure of his estate. Phelps v. Thurber Brick Co., (Tex.Civ.App.), 62 S.W.2d 596; Sargeant v. Sargeant, 118 Tex. 343, 15 S.W.2d 589; Sparks v. Robertson, (Tex.Civ.App.), 203 S.W.2d 622. (Error Refused) ; Collett v. Collett, (Tex.Civ.App.), 217 S.W.2d 60, (Refused, NRE).

Appellants are seeking equitable relief in the form of reimbursement for drilling costs and well equipment expended prior to the termination of the oil and gas lease. The lease terminated upon their failure to timely pay the shut-in royalty. As stated by Judge Brewster in Freeman v. Magnolia Petroleum Co., supra, “For their failure to do so they have only themselves to blame.” “The lease lapsed as a matter of law when they so failed * * The failure to timely pay the shut-in royalty resulted in the lease automatically terminating. In effect, production ceased. As we have said appellee’s original suit to cancel or terminate the lease was not a suit for forfeiture. There was nothing to forfeit because the lease by its very terms had ceased to exist. Amend’s suit was for the purpose of declaring it so. Having failed to comply with the conditions the appellants, as lessees, imposed upon themselves; they are not in a position to be reimbursed for their drilling costs.

By counter points appellee has brought forward pleas of res adjudicata and two-year statute of limitations relating to the previous suit filed in Sherman County. These counter points become immaterial in view of our disposition of this case. However, in our opinion, these counter points are without merit.

The judgment of the trial court is accordingly affirmed.


author: CHAPMAN, Justice.

text:
    PHILLIPS PETROLEUM COMPANY, Appellant, v. John Hunt LOVELL, a Minor, et al., Appellees.
    No. 7473.
    Court of Civil Appeals of Texas. Amarillo.
    May 31, 1965.
    Rehearing Denied June 28, 1965.
    Wm. J. Zeman and Lloyd G. Minter, Bartlesville, Okl., C. J. Roberts and C. Rex Boyd, Amarillo, for appellant.
    Lovell & Lyle, Dumas, for appellees.
   CHAPMAN, Justice.

This is a summary judgment case in which the trial court summarily awarded judgment for the plaintiffs below, James R. Lovell and Louva H. Lovell, acting in the capacity as guardians of the estate of the landowner, John Hunt Lovell, a minor, against Phillips Petroleum Company. The parties will be hereinafter referred to as appellant or Phillips and as appellees.

Appellant owns and holds two rights-of-way grants executed by John H. Hunt, predecessor in title of John Hunt Lovell, to Phillips in 1944 and 1946 respectively, covering a half-section of land in Sherman County, Texas.

For the consideration shown in the instrument of $5.00, the 1944 instrument provided:

“John H. Hunt, a single man, hereby grants unto Phillips Petroleum Company, a corporation, its successors and assigns, the right to lay, maintain, inspect, erect, operate and remove a pipe line, or pipe lines and accompanying telephone and telegraph lines over, through, upon, under and across the following described land in Sherman County, State of Texas, to wit: S/2 of Sec. 28, Block 2, G H & H R. R. Survey.
“Telephone line of construction shall follow section line.
“Grantee agrees that, if at any time or times any such pipe line or pipe lines shall be laid, Grantee shall pay to Grantor in addition to the consideration hereinabove stated, the sum of fifty cents per rod.
“Grantee agrees to pay for damages to growing crops or to fences of Grantor.
“The provision of this contract shall not apply to pipe lines laid on or across the above described land under rights granted by any other contract, lease or conveyance.
“Executed this 24th day of April, 1944.”

The 1946 grant was essentially the same except that therein “and appurtenances” was added in the granting clause following “or pipe lines;” and telegraph lines was added to telephone lines therein with respect to the provision for erection on section lines. The next paragraph in each instrument provides as follows, except that the italicized words were not included in the 1944 grant:

“Grantee agrees that, if at any time or times, any such pipe line or pipe lines shall be laid by Grantee, its successors or assigns, Grantee, its successors or assigns shall pay to Grantor, in addition to the consideration herein-above stated, the sum of fifty cents per rod for each separate line so laid. The rights granted herein may be assigned in whole or in part.”

It is undisputed in the record that each grant was valid, then in effect, had been since their inceptions, and that Phillips’ rights thereunder predate those of the minor landowner, appellees, and the agricultural tenant.

Prior to 1962, Phillips had, under its rights-of-way grants, installed three pipe lines across the land, one in 1944 and two in 1950 without incident. Each time the agreed additional payment of fifty cents per rod was made and accepted and pipe line construction damages paid. Then in 1962, acting under its previous grants, Phillips installed a loop on the line previously installed in 1944. Tenders were made by appellant in August and September 1962 in like amount under the 1944 and 1946 grants respectively as payment for the 1960 loop and was, by the guardians, refused. Next the line was installed across the land. On January 2, 1963, a check was transmitted to the guardians and the agricultural tenant for damages for pipe line construction and refused.

The question to be decided is whether the language of the 1944 or 1946 rights-of-way instruments created multiple line grants with the right in the future to expand the servitude by the payment of the additional fifty cents for each rod expanded and expenses for injuries to crops and fences.

“It is elementary that unless the deed be ambiguous, it is the duty of all courts to construe the deed within its four corners. In such construction the court seeks the intention of the parties as shown by the deed.” Ulbricht v. Friedsam, 159 Tex. 607, 325 S.W.2d 669.

It is so elementary it requires no citation of authority to say that a landowner in fee has a right to lay a pipe line or pipe lines on his land at any time, and having such right he may convey such right to another

The instruments granted to Phillips the right to “lay, maintain, inspect, erect, operate and remove a pipe line, or pipe lines * * * over, through, upon, under and across” the described land, the 1946 grant adding “and appurtenances” to the clause “or pipe lines.” Thus, the right is given in each instrument to lay, etc., multiple lines by the use of the plural “or pipe lines.” Then follows in the instruments the provisions that “if at any time or times, any such pipe line or pipe lines shall be laid * * * Grantee shall pay to Grantor, in addition to the consideration hereinabove stated, the sum of fifty cents per rod.” The 1946 grant included the Grantee’s successors or assigns and added to the language of the 1944 grant wherein it said, “the sum of fifty cents per rod” the language “for each separate line so laid,” making it read, “Grantee, its successors or assigns shall pay to Grantor, in addition to the consideration hereinabove stated, the sum of fifty cents per rod for each separate line so laid.” (All italics in this opinion are ours unless otherwise stated).

“ * * * courts must construe the deed so as to give effect to all parts thereof and will harmonize all provisions therein and not strike down any part of a deed unless there is an irreconcilable conflict.” Cockrell v. Texas Gulf Sulphur Company, 157 Tex. 10, 299 S.W.2d 672.

Thus, Phillips obtained the perpetual easement right, with its attendant obligations to pay the sum of fifty cents per rod “for each separate line so laid,” and the resulting damages to crops or fences of Grantor. To hold otherwise would be to strike down the language “or pipe lines,” “or times,” and “for each separate line so laid” and the provision requiring the additional fifty cents per rod payment above the original consideration shown.

In Crawford v. Tennessee Gas Transmission Co., Tex.Civ.App., 250 S.W.2d 237 (writ refused) the Beaumont Court of Civil Appeals had before it a controversy between an owner of a multiple line easement and the surface owner concerning easement rights. That easement granted a right to lay additional “pipe lines” “at any time” with the provisions for payment of one cent per lineal rod for such additional lines. Two subsequent installations were made following the first in 1944. The surface owner was restrained by the trial court from interfering with the construction of the third line. Our Supreme Court by stamping “Writ Refused” on the application for writ of error approved the intermediate court’s holding that: “Since the agreement is full and states the use to be made of the right of way granted, any attempt by the courts to limit the appellee to a certain portion of the land would alter the stated purpose for which the grant was made.” For us to hold in the instant case that the plural language “pipe lines” was intended by the parties to mean only those laid in 1944 under that grant or in 1950 under the 1946 grant would be to completely disregard the language providing: “at any time or times” and the provision for payment of the designated amount per rod for the laying of a pipe line or pipe lines at any time or times.

We are not unmindful of the language used in Belusko v. Phillips Petroleum Co„ decided by the intermediate U. S. appellate court, 7th Circuit, 308 F.2d 832, wherein additional consideration was provided “on the same basis per lineal rod as the consideration hereinabove recited.” That instrument was held indefinite and uncertain with respect to the claimed right to lay a second line because “no standard by which such consideration is to be determined, is recited in any part of the instrument.”

The easement deed provided for a consideration of $50.00 that the Grantor granted the right to “lay * * *, remove and relay a pipe line, or pipe lines” but simply failed to provide an additional consideration for more than one line, even though the grant later stated the consideration for additional lines would be “calculated on the same basis per lineal rod as the consideration hereinabove recited.” There just was no consideration per lineal rod “here-inabove recited.” Such is not true in the instant case, wherein fifty cents per rod was specifically provided for each separate line so laid.

We do not consider Houston Pipe Line Company v. Dwyer, Tex.Sup., 374 S.W.2d 662, nor Winslow v. City of Vallejo, 148 Cal. 723, 84 P. 191, 5 L.R.A.,N.S., 851, relied on by appellees, as being analogous to the instant case on the facts. The former involved a single line grant and the latter a single installation grant. Neither is applicable to a multiple line grant such as those in the instant case.

Other jurisdictions have held language similar to our own to be multiple line grants giving the right in the future to expand the servitude by the payment of further consideration for such expansion. Hamilton v. Transcontinental Gas Pipe Line Corp., 236 Miss. 429, 110 So.2d 612; Baker v. Tennessee Gas Transmission Co., 194 Tenn. 368, 250 S.W.2d 566; Sorrell v. Tennessee Gas Transmission Company, Court of Appeals of Kentucky, 314 S.W.2d 193.

Where an easement was granted in 1856 in the state of Oregon to conduct water across land with the right “to bring all the water that may be required to run the mills thereon, and all other mills or machinery that may at any time or times be placed upon the * * * premises * * * ” and a suit was brought more than fifty years later to enjoin the easement owner from expanding the waterway, the Supreme Court of Oregon held: “We are aware of no rule of law, and there is none, prohibiting the grant of an easement to take effect or to be enjoyed in the future * * Patterson v. Chambers’ Power Co., 81 Or. 328, 159 P. 568.

It is true that in each of the instruments involved in the gas pipe line cases just cited the word “additional” was used in connection with other lines to be installed. We do not believe the exact same language must be employed in order for the instrument to constitute a multiple line grant. The test is whether under the four-corners rule the instrument shows the intent of the parties to a multiple line grant. The instruments here under consideration, particularly the 1946 instrument, does so in our case by the language employed and the definite consideration provided “for each separate line so laid.”

We also hold the rights granted to construct “each separate line so laid” conveyed a present right, a conveyance in praesenti, to lay a pipe line, or pipe lines at any time or times, just as the instrument provided, and that the provision for payment in the future for the subsequent line or lines is not subject to the rule against perpetuities. Sorrell v. Tennessee Gas Transmission Co., supra; Restatement of Law, Property, Sec. 393, Comment j, page 2321 and Sec. 399, Comment a, page 2341; Caruthers v. Peoples Natural Gas Co., Superior Court of Pennsylvania, 155 Pa.Super. 332, 38 A.2d 713. In the last cited case the court said:

“Leading text writers agree that the rule against perpetuities is applicable to easements: Gray, Rule against Per-petuities, 4th Ed., §§ 314-316; Lewis on Perpetuities, pp. 619, 620; Foulke, Perpetuities in Pennsylvania, § 366. But a presently vested expansible easement must be distinguished from an option to acquire future additional servitudes. The present grant of a right to cut timber or mine coal or make use of a right of way, with a provision for payment if and when the easement is expanded, does not run counter to the rule. * * * ‘Nor does the circumstance that a payment is to be made when the easement or profit is used, prevent it from being a present right * * *.’ ”

The question of damages was properly reserved by the trial court to be tried after the disposition of the matters now before us.

We believe, and so hold, that the trial court should have refused appellee’s motion for summary judgment and granted appellant’s motion on the questions before us. The judgment is reversed and rendered in accordance with this conclusion.

      . The “consideration” there referred to was with reference to more than one line.


author: DIXON, Chief Justice.

text:
    W. E. CHALKLEY, Appellant, v. Robert F. ASHLEY et al., Appellees.
    No. 16581.
    Court of Civil Appeals of Texas. Dallas.
    June 25, 1965.
    Van Ballew, Dallas, for appellant.
    June R. Welch, Dallas, for appellees.
   DIXON, Chief Justice.

W. E. Chalkley has appealed from a summary judgment against him in the amount of $999.93 in favor of appellees Ashley and Welch, attorneys at law. The judgment is for the reasonable value of legal services rendered and for monies advanced to appellant by appellees. Also included in the judgment is the amount of $128 as attorney’s fee incurred by appellees in employing another attorney to bring this suit.

Suit was filed October 1, 1964. Appellant answered November 6, 1964 by general denial. On November 9, 1964 appellees filed their motion for summary judgment. Hearing on the motion was set for December 4, 1964.

The hearing was held December 4, 1964. Appellees offered two affidavits in support of their motion for summary judgment. The factual recitations in these affidavits are sufficient to make out a case in favor of appellees. Appellant, though he appeared at the hearing by attorney, had not filed any opposing affidavits, therefore ap-pellees’ affidavits must be accepted as true. Summary judgment was accordingly rendered in favor of appellees on December 4, 1964.

The only complaints made by appellant in two points on appeal are that he was not given notice ten days in advance of the hearing as required by Rules 21a and 166-A(c), Texas Rules of Civil Procedure.

In the transcript on appeal there appears a copy of an affidavit by appellant’s attorney. But this affidavit was filed with the County Clerk on January 7, 1965, thirty-four days after the rendition of judgment on December 4, 1964.

In his belated affidavit and in his brief appellant says that on November 10, 1964 appellees mailed to appellant’s attorney a registered letter, return receipt requested, notifying him of the setting of the hearing for December 4, 1964. Appellant’s attorney was out of the city when the postman attempted to deliver the letter, so delivery was not made. The attorney did not return to the city until December 1, 1964. Meantime appellees’ registered letter had been returned to appellees by the Post Office Department. It is undisputed that the letter had been sent to the last known and correct address of appellant’s attorney as shown on appellant’s pleading filed November 9, 1964.

Appellant further says that upon his return to his office on December 1, 1964, he found two unregistered letters from ap-pellees. One dated November 23, 1964 contained copies of appellees’ affidavits supporting their motion for summary judgment. The other dated November 30, 1964 advised appellant’s attorney that the hearing was set for December 4, 1964.

When the motion came on for hearing on December 4, 1964 appellant appeared by his attorney and announced not ready for trial. But he did not comply with Rule 166-A(f), T.R.C.P. by filing with the trial court an affidavit that he could not “for reasons stated present by affidavit facts essential to justify his opposition * * And he did not file with the trial court a motion for a continuance of the hearing to permit affidavits to be obtained.

There is no merit in appellant’s two points on appeal. His affidavit asserting that he had received less than ten days’ notice of the hearing cannot be considered because it was not filed until thirty-four days after judgment had been rendered on December 4, 1964.

Further, appellant’s attorney was actually notified several days before the hearing and appeared at the hearing in appellant’s behalf. By not filing the affidavit referred to in Rule 166-A(f) and by not filing a motion for a continuance on December 4, 1964 appellant waived any right to complain that he had received less than ten days’ notice.

Still further, appellees complied with Rule 21a by mailing on November 10, 1964 a registered letter of notification to appellant’s attorney at the attorney’s address as shown on “Defendant’s Original Answer” filed November 6, 1964.

Appellant’s two points on appeal are overruled. The judgment of the trial court is affirmed.

Affirmed.

      . The attorney who represents appellant on this appeal did not represent him prior to or at the hearing on the motion for summary judgment.