author: BELL, Chief Justice.

text:
    PACIFIC FINANCE CORPORATION et al., Appellants, v. Martha M. RUCKER et vir, Appellees.
    No. 14385.
    Court of Civil Appeals of Texas. Houston.
    June 17, 1965.
    Rehearing Denied July 8, 1965.

      Carey Williams, Houston, for appellant.
    W. James Kronzer, W. W. Watkins and Bill Allen, Houston, Hill, Brown, Kronzer, Abraham, Watkins & Steely, Houston, of counsel, for appellee.
   BELL, Chief Justice.

The trial court, based on a jury verdict, rendered judgment in favor of appellees for $35,531.00 against Pacific Finance Loans, Pacific Finance Corporation and Joe Darrell Jackson. The damages resulted from injuries suffered by Mrs. Rucker on September 19, 1961, when an automobile driven by Joe Darrell Jackson, the agent of Pacific Finance Loans, collided with the automobile which she was driving. Pacific Finance Corporation was held liable on the theory of joint venture.

The charge of the court submitted issues only inquiring of the agency and scope of employment of Jackson by Pacific Finance Loans, joint venture between Pacific Finance Loans and Pacific Finance Corporation and agency and scope of employment of Jackson for the joint venture. No issues on negligence or proximate cause were submitted to the jury because Jackson judicially admitted liability. The contention of the appellants, other than Jackson, is that the court erred in overruling their exceptions to the court’s charge for failure to submit such issues because the admission made by Jackson was not an admission by the two corporate defendants who had pled a general denial.

By their Second Amended Original Petition filed June 13, 1963, appellees sued the appellants and other corporations. The theory of recovery was that Jackson ran into the rear end of Mrs. Rucker’s automobile while it was stationary. Specifically there were allegations of negligence in failing to keep proper lookout and proper control; in driving at an excessive rate of speed; in failing to make proper and timely application of brakes; and in failing to swerve the automobile.

Jackson by his amended answer filed on May 20, 1963, in answer to appellees* first amended petition, admitted the collision “was his fault and was proximately caused by his negligence” and that he was, therefore, liable for such damages as proximately resulted to appellees. He contested the amount of damages.

The two corporate appellants filed their First Amended Original Answer on July 30, 1963. They pled a general denial. All of the appellants were at all times, while they were parties to the suit, represented by the same attorneys.

During voir dire examination of the jury panel, appellants’ counsel made the following statements, among others that are not here material:

“My name is Carey Williams. I represent the defendants. (Emphasis ours unless otherwise indicated)

“This case started out first by suit filed against Joe Darrell Jackson. He has authorized me and I have filed a pleading to tell you that we make a judicial admission this collision was his fault, no excuse for it. He was negligent. He is sorry, but that does not change the fact he is liable for it * * * >y

“Sometime after the suit was filed Plaintiffs’ attorney filed an amended petition in which he named seven corporate defendants.

“My question is, is there anybody on this panel that is going to be influenced * * in your decision as to who is liable or for how much money just because Plaintiffs’ attorney has chosen a whole bunch of finance and insurance companies, whether or not he makes a case against them.

“The insurance companies, I will say this * * * deny they have anything to do with it. They deny they are liable in any way, that Joe Darrell Jackson was working for them, but they named the insurance company as a defendant.

“You going to make them prove it?

“As to the named defendants, suppose at some time they prove one is liable, I don’t think he can prove it * * * suppose he did, would that make a difference in this case, just because you think one corporate defendant is liable.”

Following these statements a member of the panel asked, “You said he was working for what company?” Counsel then proceeded to answer:

“He admitted he is personally liable for the injuries, whatever damages sustained * * *.

“Under the rules, plaintiff has the burden of making his case. They were not there, don’t have personal knowledge. They deny generally. That means to make the plaintiff proof (sic) any liability on any of them.

“That is their position. I represent all of them. Filed separate pleadings for the corporate defendants and Mr. Jackson. He admits it. The others will deny it.”

During trial Mr. Watkins, attorney for appellees, was reading the deposition of Jackson. The part he read dealt with the issue of course and scope of employment. Counsel for appellees then stated this:

“I believe the rest of this deposition pertains to how the accident happened. They have admitted it was his fault. That is all of that deposition I would offer.”

This statement was unchallenged by anyone for appellants.

Later during trial, when appellants’ counsel was on the witness stand being asked questions concerning the whereabouts of Jackson upon whom appellees were seeking to serve a subpoena, the following questions and answers were given:

“Q. Did you tell him (Jackson) you wanted him to be available to be here some time today?
“A. That I wanted him.?
“Q. Yes.
“A. No, he admitted it was his fault. He doesn’t know about damages as far as he is concerned. All we are trying it on is how much and he says he doesn’t know that.
“Q. Was he on the job for Pacific Finance ?
“A. Well, I guess he had been.
“Q. We are trying it on that.
“A. Yes.
“Q. That is the real contest here and the only contest when you get to it.
“MR. WILLIAMS: Object to that question. It asks for a question of law. The Court will instruct the jury on the law.”

The objection was sustained.

In the argument for appellants their counsel said this:

“I didn’t conceal anything. Joe Darrell Jackson hasn’t concealed anything. He has answered every question asked of him; he has not tried to take the position that this accident wasn’t his fault. He has admitted it was his fault. What more can a man do? What does he want? When a man comes in and says, ‘Yes, sir, it was my fault, but I don’t think I caused that much damage,’ that’s all Joe Darrell Jackson has said, and what more can he say? Is that being unreasonable, unfair, quibbling of pussy-footing? That’s the first case I have ever been in where I have admitted my client was liable, and then been accused of pussy-footing. That’s about as flat-footed as you can get, ‘Yes, it was my fault.’ ”

We have reached the conclusion that the judicial admission was made only on behalf of Jackson, the individual defendant, and when all that was said and done is analyzed it is clear counsel was not making such admission on behalf of the corporate defendants, but to the contrary was insisting that appellees prove negligence and proximate cause as against the corporate defendants.

Appellees emphasize that during voir dire examination appellants’ counsel stated, “We make the judicial admission” and that when appellees’ counsel finished reading the part of Jackson’s deposition he desired to offer, which included nothing on liability, he stated, “I believe the rest of this deposition pertains to how the accident happened. They have admitted it was his fault.” They say this particularly shows counsel was making the admission for all of his clients. Such a conclusion is not required. The most that can be said favorable to appellees is that it results at least in equivocation. However, it seems to us, when we note the context in which counsel in voir dire said “we make” the admission, he was referring to Jackson and himself as Jackson’s attorney. This construction is strengthened when the other occurrences on voir dire, which we have described, are considered because the other occurrences clearly show the corporate defendants were denying liability and were requiring proof of negligence and proximate cause. When appellees’ counsel said, “They have admitted liability” he was reading the deposition of the individual defendant. The corporate defendants had a general denial on file and on voir dire had made the position clear that they were requiring appellees to prove liability, so we fail to see where appellants were under any further duty to speak and deny appellees’ counsel’s statement. Where another person makes an out-of-court statement against the interest of a person that such person heard such statement does not become an admission unless such person is under a duty to dispute it. We see no reason for a different rule in in-court statements, but here there was no duty to further deny. Appellees also urge that when counsel for appellants were testifying he stated, “All we are trying it on is how much and he says he doesn’t know that.” This statement followed questions of counsel as to whether he had told Jackson he wanted him in court and then the statement by counsel, “No, he has admitted it was his fault.” Considering the entire occurrence we feel the most reasonable construction is that as far as Jackson was concerned the case was being tried on damages.

Of course, a judicial admission is absolutely binding on the party making it. However, the admission made by one of the parties, to be binding on the other parties, must in some manner be adopted by such other parties. We are of the view the corporate appellants had not adopted the admission. The matter is complicated by all parties being represented by the same attorney. However, we think here counsel made relatively clear he was speaking only for Jackson.

If it be said that at least one reasonable construction to be put on the total of the expressions is that it was an admission by all, we still think it cannot be held to be a judicial admission binding on the other defendants because in order for it to be a judicial admission the statement must be deliberate, clear and unequivocal. Griffin v. Superior Insurance Company, 161 Tex. 195, 338 S.W.2d 415.

Appellees urge further there was no error in failing to submit such issues to the jury because appellants failed to call Jackson to testify or introduce any evidence rebutting some evidence of negligence that was introduced.

We fail to find in the record any evidence of probative force that can be considered against the corporate defendants that raises the issues. The only evidence alluded to by appellees is the statement by Mrs. Rucker to her doctor to the effect that she received her injuries as a result of her automobile being struck from the rear. Such was clearly hearsay and of no probative effect. Further, the mere fact that her automobile was struck from the rear does not raise an issue of negligence or establish such. Whether an automobile being struck from the rear raises an issue of negligence or establishes it as a matter of law depends on all the facts and circumstances of the particular case.

The failure of corporate defendants to call Jackson can be of no comfort to appellees. In the first place, while we strongly suspect that Jackson was at the time of trial an employee of appellants, we do not think the evidence creates more than a suspicion. If we assume, however, that he was an employee, the failure to call will not supply proof of a fact. If there is evidence of probative force in the record sufficient, if believed, to establish a fact, the failure by a party to call such an employee may be considered in evaluating the existing evidence. Dunn Brothers Pipe Line Contractors v. Caldwell, 224 S.W.2d 765 (CCA), no writ hist. The failure to call certainly constitutes no judicial admission. That Jackson may have been under the control of defendants common counsel would at the most call for the application of the rule stated in the Dunn case.

The case of Bayou Drilling Company v. Baillio, 312 S.W.2d 705 (CCA), writ ref., n. r. e., does not support appellees’ position here in the light of all facts here. There we merely held that where one party to the suit testified to facts entitling him to recover and such testimony was clear, unequivocal and consistent, and the corporate officers of the opposing party were shown to have had knowledge of the transaction and were present and heard such testimony and they did not testify and no other evidence contradicted the witness’s testimony, the facts testified to by the party were established and an instructed verdict was proper. In such case, however, the mere failure of the corporate representatives familiar with the facts to testify did not supply proof of probative force to raise an issue.

Appellant Pacific Finance Corporation complains there was no evidence of probative force to raise the issues of joint venture with Pacific Finance Loans. Jackson was undoubtedly shown to be an employee of Pacific Finance Loans on the date of the accident. In view of the fact we are reversing and remanding the case as to these two corporate appellants, we need only say that the evidence does not raise the issue of joint venture as of the date of the collision. The testimony relating to joint venture referred to an indefinite time though obviously at a date long subsequent to the accident.

The other complaints made by the corporate appellants are of incidents that need not occur on retrial. We, therefore, do not pass on or discuss them.

Appellant Jackson seeks reversal because of this argument of appellees’ counsel:

“Now on pain and anguish I have no magic formula for its value, nor does anyone else. I will say this, that there is not enough money in all of Texas to cause me to voluntarily assume a great deal of pain in my neck and back, even if I were assured by the Almighty that at any given moment He could wave His wand and do away with it. Certainly there would not be enough money in the entire world to cause me to bargain for a lifetime of pain.”

Counsel objected that this did not state the measure of damage and was not in accord with the instructions of the court. The court stated: “The jury has the charge and will be guided thereby.” The court refused to instruct the jury to disregard the remarks.

We do not think the argument was objectionable, but if it was it was of the curable type and any error was cured by the instruction of the court. Karotkin Furniture Co. v. Decker, 50 S.W.2d 795 (Com.App.).

While a medical witness was testifying for Mrs. Rucker he stated that on October 30, 1961, when she came to him she complained bitterly of low back pain. He added that by that time a diagnosis of pregnancy had been established. He further stated, “it was my feeling that it was more due to — as a result of this accident than it was due to pregnancy.” He then stated on November 7, 1961 Mrs. Rucker was seen by him with respect to her back and Mrs. Rucker told him that Dr. Hill who was taking care of her concerning her pregnancy reassured her that her pregnancy was progressing satisfactorily and her backache had nothing to do with the pregnancy.

Appellants’ counsel objected this statement of the assurance by Dr. Hill was unresponsive and hearsay. The objection was overruled. In the light of the record, this presents no reversible error.

The other complaints of Jackson could but bear on the issue of his liability and he has judicially admitted he is liable. They could in no way affect the question of damages.

It is obvious there has not been full development of the case as to Pacific Finance Corporation and Pacific Finance Loans. For the errors above pointed out, we reverse and remand the case as to them.

The judgment of the trial court against Joe Darrell Jackson is affirmed.


source: Caselaw Access Project

author: CLAYTON, Justice.

license: Public Domain

text:
    Leonard VICKERSTAFF, Appellant, v. Barbara VICKERSTAFF, Appellee.
    No. 5695.
    Court of Civil Appeals of Texas. El Paso.
    May 26, 1965.
    Rehearing Denied June 23, 1965.
    Second Motion Denied July 14, 1965.

      Lee Arnett, Odessa, for appellant.
    Garland Casebier, Midland, for appellee.
   CLAYTON, Justice.

Appellee filed suit in the District Court of Midland County, Texas, asking for a divorce from appellant on the grounds of cruel treatment, for a division of property of the parties and attorney’s fees. No children are involved. The trial court granted the divorce and divided the community and separate estates of the parties and awarded appellee her attorney’s fees. From said judgment this appeal is taken.

The appellant has grouped his points of error, and we will attempt to follow that grouping. Group One covers Points Nos. One, Two and Three, that there is no evidence, or insufficient evidence of cruel treatment of such a nature as to entitle appellee to a divorce, and the decision of the court was unsupported by full and satisfactory evidence. These points are overruled. This cause was tried before the court without a jury, and the court specifically found that “defendant was guilty of such excesses and cruel treatment toward plaintiff as to render their further living together insupportable.” Without attempting to set out the testimony in detail, the above finding of fact is amply supported in the evidence and justifies the court’s conclusion as a matter of law that the appel-lee was entitled to a divorce from the appellant.

The next group of points, including Points Four through Six, relates to the court’s finding that appellant and appellee were only temporary residents of New York between August 10, 1959 and January 23, 1962, the appellant maintaining that there is no evidence, and insufficient evidence, to support such finding, but that as a matter of law the parties were actually domiciled in New York during that period of time. Residence is a lesser included element within the technical definition of domicile. While residence signifies living in a particular locality, domicile means living in that locality with the intent to make it a fixed and permanent home. 21 Tex.Jur.2d 62, Domicil, § 2. While living in Texas before going to New York the parties bought a home in Midland, Texas, where they both worked. Appellant was offered a position in New York by his employer, Templeman, and they left Midland for New York about August 10, 1959 and remained in New York until about January 23, 1962, at which time they returned to Texas. Appellant testified that at the time he left Midland he anticipated that the New York job would be a permanent one, and that he did not have in the back of his mind that some day he might return to Midland for “retirement or something of that sort”, even though he was very fond of Midland. However, he wrote a number of letters to his brother-in-law covering the period of time from August, 1959 to January of 1962, in which he used such expressions as: “We do not feel it wise to sell the house as something may well go wrong with the Temple-man deal * * * Should that happen, we can always come back here and start all over again”; referring to appellee he writes: “ * * * she wants to know why in hell we don’t move back to Texas while we are at it. Good question- — may do yet”; and “Barb is whooping for joy at the thought of being back in her own home”; again, “ * * * if not, I’ll go into semi-retirement in Midland for awhile to enjoy our house and see if this little Texas town is really as fascinating as Barb and I feel it is”; and “ * * * if this does not result in a change of job, then Barb and I will likely take off back to Texas and semi-retirement.” From these expressions it cannot be said that the parties in this cause were living in New York with “the intention to make it a fixed and permanent home” and we must uphold the trial court’s finding that appellant and appellee were only temporary residents of New York between August, 1959 and January, 1962. This conclusion, we believe, is not at variance with the holding in Prince v. Inman, 280 S.W.2d 779 (Tex.Civ.App., 1955; n. w. h.), cited by appellant. Points of Error Four through Six are overruled.

Group Three of appellant’s Points of Error encompasses Points Seven through Twenty-six, and charge the court with error in determining the status of the properties of the parties as separate and community property. Also, Group Four of Points, consisting of Points Twenty-seven through Thirty, attack the court’s determination of the status of properties. All these points have in common the assertion that there is no evidence, or insufficient evidence, to support the court’s findings. We have said in The Travelers Ins. Co. v. Charles Cecil Miller, Tex.Civ.App., 390 S.W.2d 284:

“ * * * Appellant makes the dual assertion that there is no evidence to support this finding, or that the evidence is insufficient to support it. When such dual assignment is made, we must first dispose of the ‘no evidence’ contention by looking only to the evidence favorable to such finding. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. This is a question of law as distinguished from a question of fact, and thus its determination requires either affirmance or rendition, rather than remand for a new trial. Being a question of law, it is reviewable by the Supreme Court. A determination of the question of the sufficiency of the evidence is said to be a fact question in which courts of civil appeals are final, and such a determination calls for either affirmance or remand for new trial — never rendition— and it is determined by looking to all of the evidence to see if it is factually too weak to support the finding made by the jury.”

Keeping in mind the admonitions contained in the foregoing quotation, we must also make note of the following data in treating these points: The parties were married in Canada, where both were living and working, on September 1, 1958; they were separated on August 23, 1962, while living in Texas; in the meantime, appellant had moved to Midland, Texas in January, 1959, where he had lucrative employment by January 15, 1959; appellee joined him in Midland, Texas on March 10, 1959, where they bought a home on April 8, 1959, which they owned until divorced; from August 10, 1959 to January 23, 1962, they lived and worked in New York, returning to Midland therefrom.

With the exception of the home of the parties there is no real property involved in the rights of either party. The appellant lists some 115 transactions in securities by one or the other, or both, of the parties, — stocks, accumulative and mutual funds, bonds and debentures, and a note. Appellant here contends that transactions Nos. 1 through 18 took place in Canada and under Canadian law constituted ' his separate property. Also, that transactions Nos. 26 through 96 took place while the parties were domiciled in New York, a common-law state, and became solely the properties of the husband under New York law. We have heretofore treated and rejected the matter of a domiciliary status of the parties in New York. In his argument under this point, appellant claims: “The burden of proof was clearly upon Plaintiff (appellee) to establish her rights to any of the property acquired in these transactions. This burden has not been met.”

Appellee counters with the following “fundamental principles of law which govern rights of married people in property acquired before, during and at the time of dissolution of marriage:

“First’. When a divorce is sought in Texas, then all the property of the parties at the time of dissolution of the marriage is presumed to be community property, and the burden of proving the contrary is on the party who seeks to establish that all or any part of such property is such party’s separate property.
“Article 4619, V.A.C.S.;
“1 Speer’s Marital Rights in Texas, Fourth Edition, page S7S, sec. 393.
“Second: There is a presumption that all property acquired during the marriage is community.
“1 Speer’s Marital Rights in Texas, Fourth Edition, p. 576, Sec. 393 and the numerous authorities cited under Note 8 on p. 576.
“Third: Money paid for the purchase of property acquired during marriage is presumed to be community property unless the contrary is proved by clear and convincing evidence.
“Lindemood v. Evans, Tex.Civ.App. (1942), 166 S.W.2d 774, 1942, writ refused;
“Cook v. Cordray, Tex.Civ.App., (1960), 333 S.W.2d 461, no writ history
“The presumption applies to all property acquired by either spouse during marriage, however and from whatever source it may be acquired, whether real or personal, and will make a prima facie case until overcome by evidence. In the absence of proof that property was acquired with separate property, it should be adjudged to be community property, irrespective of the name in which the title stands.
“1 Speer’s Marital Rights in Texas, Fourth Edition, pp. 576-577, Sec. 393; and p. 581, Sec. 395.
“Fourth: Where separate and community property are commingled, the burden of proof is on the one contending that portions of such property are his separate property, and any doubt as to the character of the property must be resolved in favor of the community.
“1 Speer’s Marital Rights in Texas, Fourth Edition, p. 575, Sec. 393;
“Hodge v. Ellis, Tex.Civ.App., (1954), 268 S.W.2d 275, affirmed, in part 154 Tex. 341, 277 S.W.2d 900.
“Fifth: The marital rights of persons married in other countries who may remove to this State shall, in regard to property acquired in this State, during the marriage, be regulated by the laws of this State.
“Article 4627, V.A.C.S.
“Sixth: Rent either from separate or community property is community.
“Colden v. Alexander, 141 Tex. 134, 171 S.W.2d 328 (1943).
“Seventh: Dividends on separately owned stock paid in cash or property is community property.
“1 Speer’s Marital Rights in Texas, Fourth Edition, p. 632, Sec. 427, and authorities cited under Note 12.”

Appellee then painstakingly points out the failure of appellant to trace his claimed separate assets used in the numerous transactions he has listed. As particularly applicable to the circumstances here, appel-lee quotes from Lindemood v. Evans, 166 S.W.2d 774 (Tex.Civ.App., 1942; wr. ref.), as follows:

“ * * * As was said in Chapman v. Allen, 15 Tex. 278, 283:
“ ‘ * * * The presumption that property purchased during the marriage is community property is very cogent; and can only be repelled by clear and conclusive proof that it was [purchased] with the individual money or property of one of the partners. Where the property has not been preserved in specie or in kind, but, as in this case, has undergone mutations and changes, it is indispensable, to maintain its separate character, that it be clearly and indisputably traced and identified.’ ”

To comment on the numerous separate transactions involved before us would unduly enlarge this already lengthy opinion. We believe it will suffice to say that, applying the many legal principles detailed above to the record in this case, we have been unable to determine where either the trial court’s findings of fact or conclusions of law have been in error, nor has he evidenced any abuse of discretion. Groups Three and Four of Points are overruled.

Relative to the matter of abuse of discretion, appellant presents his Fifth Group of Points, Nos. Thirty-one through Thirty-seven. These charge the court with abuse of discretion in the division of property of the parties, in awarding attorney’s fees and in his adjudication of income tax liability. The appellant calculates that the entire estate of the parties amounts to $142,383.70, out of which the court awarded $49,996.36 to appellee, plus an additional $5,000.00 for attorney’s fees, making a total of $54,996.63. We believe that the court’s division of the property of the parties has been sufficiently treated heretofore and was found to be “just and right”, and in conformity with Art. 4638, Vernon’s Ann.Civ.St.

On the matter of attorney’s fees we do not propose to dwell. We understand this to be an area in which the court has considerable latitude. That there is an apparent variance between the pleadings and the proof on the subject we view as immaterial, since this point does not appear to have arisen, by objection to testimony or otherwise, until this appeal was taken and will therefore be considered as waived. Rule 67, Texas Rules of Civil Procedure.

The trial court adjudged the appellant liable for any additional tax that might be exacted by reason of the parties’ joint income tax return. Since this would amount to a community debt, there is precedent for so ruling. See Hughes v. Hughes, 259 S.W. 180 (Tex.Civ.App., 1924; wr. dism.) : “It was not error for the court, in exercising his discretion in dividing the property, to require the husband to pay the debts of the community.” See also, Manning v. Benham, 359 S.W.2d 927, 930 (Tex.Civ.App., 1962 ref., n. r. e.). Group Five of Points is overruled.

All points of error having been weighed and overruled, the judgment of the trial court is in all things affirmed.

MEMORANDUM OPINION

Appellant’s Motion for Rehearing in the above styled and numbered cause is overruled.

Appellant’s Motion for Supplemental Findings is likewise overruled. This is a divorce case, one in which the Texas Supreme Court does not have jurisdiction of an application for writ of error (Article 1821, T.R.C.S.), and therefore the rules do not require findings of fact by the Court of Civil Appeals (Rule 453, T.R.C.P.). We decline to make supplemental findings, since to do so would not assist appellant in the further prosecution of his case.


author: DUNAGAN, Chief Justice.

text:
    The ESTATE of Norman M. GARRETT, Deceased, Appellant, v. Jack GAY, Appellee.
    No. 145.
    Court of Civil Appeals of Texas. Tyler.
    June 17, 1965.
    Rehearing Denied July 15, 1965.
    W. C. McClain, McClain & Harrell, Conroe, for appellant.
    Marvin Jones, Jones, Watkins & Gay, W. Newton Barnes, Dallas, for appellee.
   DUNAGAN, Chief Justice.

Venue is the only issue in this appeal. The suit was filed in Dallas County by Jack Gay, against the defendant Bettye Byrd, individually and as executrix of the Estate of Norman M. Garrett, Deceased, to establish a money judgment against the estate, as against Bettye Byrd, individually. The Estate of Norman M. Garrett, Deceased, filed its plea of privilege to be sued in the County of Montgomery, where said estate is being administered. The court overruled the plea of privilege filed by the Estate of Norman M. Garrett, Deceased, to be sued in Montgomery County, the county of its residence, and apparently holding Subdivisions 4 and 29a of Article 1995 applicable.

This appeal lies from a judgment of the 101st Judicial District Court of Dallas County, Texas, overruling a plea of privilege filed by the Estate of Norman M. Garrett, Deceased, in the above cause. There are no findings of fact or conclusions of law filed by the court, and nothing is found in the record to disclose the basis of the court’s ruling except one statement of the court contained in the order, reading:

“The stipulation of the parties having been submitted to the Court, together with the pleadings in the cause, and the Court being fully advised, and being of the opinion that the Plea of Privilege, as filed herein by the Defendant, Estate of Norman M. Garrett, Deceased, should be in all things overruled.”

Jack Gay filed suit in the District Court of Dallas County, Texas, against Bettye Byrd, individually and as executrix of the Estate of Norman M. Garrett, Deceased. Bettye Byrd is a resident of Dallas County and the Estate of Norman M. Garrett, Deceased, is a resident defendant of Montgomery County, Texas, where said estate is being administered. The only plea of privilege filed was a plea of the Estate of Norman M. Garrett, Deceased, alleging its right and privilege to be sued in Montgomery County, Texas.

Plaintiff alleged in his petition that heretofore, on or about the 15th day of August, 1961, plaintiff and defendant entered into an oral contract by the terms of which plaintiff would represent the defendant, Bettye Byrd, individually and as executrix of the Estate of Norman M. Garrett, Deceased, in all matters pertaining to said estate where defendant was interested or involved, either individually or as executrix of said estate, and agreed to pay plaintiff the reasonable and customary charges for the services to be rendered by the plaintiff under said contract.

The plaintiff further alleged that until on or about May 15, 1964, plaintiff performed such legal services as requested by the defendant and as were reasonable and necessary for her, individually and as executrix of said estate, and that the reasonable value and customary fee for such services so rendered by plaintiff was in the sum of $5,000.00. That defendant had failed to pay for said services and that written demand was duly made for the services, but the defendant had failed and refused to pay such fees or any part thereof.

The Estate of Norman M. Garrett, Deceased, contends that the venue as to it in this cause lies in Montgomery County, Texas, under and by virtue of Article 1995, Subsection 6, Vernon’s Ann.Civ.St, which reads:

“Executors, administrators, etc. — If the suit is against an executor, administrator or guardian, as such, to establish a money demand against the estate which he represents, the suit may be brought in the county in which such estate is administered.”

The plaintiff seeks to maintain venue under Subsections 4 and 29a of Article 1995, V.A.C.S. in Dallas County, Texas.

The venue hearing was duly held and judgment entered by the trial court overruling the plea of privilege of the Estate of Norman M. Garrett, Deceased.

The appellant brings forward two Points of Error. First, contending that: “The trial court erred in overruling defendant’s plea of privilege for the reason that the plaintiff failed to prove a cause of action against the resident defendant, Bettye Byrd, as required by Subdivision 4 of Article 1995.”

This case was submitted to the trial court upon the stipulation of the parties, together with the pleadings in the case. Such stipulation of the parties and the pleadings constitute all the evidence adduced during said hearing. The stipulation of the parties was as follows:

(1) That Bettye Byrd, the defendant, is a resident of Dallas County, Texas; that

(2) Bettye Byrd is one of the executors of the Estate of Norman M. Garrett, Deceased ; that

(3) She was a resident and an executor of the estate at all times pertinent to the plaintiff’s cause of action; that

(4) The amount of the plaintiff’s claim as sued for is within the jurisdiction of this court and is against Bettye Byrd and the estate; that

(5) The suit is a claim for services rendered by the plaintiff for the defendant, Bettye Byrd and the estate; and that

(6) No payment has been made for the services sued for.

Perhaps the leading case in Texas construing Section 4 of Article 1995 is Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300. Under the holding in that case, it is incumbent upon one seeking to hold venue in the county where suit is brought to allege and prove a cause of action against the resident defendant. That case has now become the settled law of this state and has been followed consistently since its rendition. Steele Advertising Agency, Inc. v. Walton, 233 S.W.2d 867 (Tex.Civ.App.) 1950, no writ history; Houseman v. Mahin, opinion delivered by the Supreme Court on May 19, 1965, 390 S.W.2d 732; Hammonds v. Houston Electric Co., 169 S.W.2d 765 (Tex.Civ.App.) 1943, no writ history; Admiral Motor Hotel of Texas, Inc. v. Community Inns of America, Inc., 389 S.W.2d 694 (Tex.Civ.App.) 1965, no writ history. Thus, it was incumbent upon appellee to prove a bona fide cause of action against the resident defendant of Dallas County where suit was filed. This he failed to do.

The burden rested upon the plaintiff to establish by a preponderance of the evidence the following: (1) Proof of an agreement between himself and the resident defendant, Bettye Byrd; (2) Contents of the agreement; (3) Performance of the agreement by plaintiff; (4) The reasonableness of the fee; (5) That demand has been made for payment of the services sued for, and (6) Defendant’s failure and refusal to pay same.

The stipulation in this case failed to establish either of these requirements. While it is stipulated that no payment has been made to plaintiff, there is no proof that demand has been made of defendant for the payment of the amount sued for, or any part thereof, and that pursuant to such demand, defendant failed and refused to pay.

The case at bar is analogous to the case of Gilley v. Morse, 375 S.W.2d 569 (Tex.Civ.App.) 1964, no writ history, wherein it was held that appellees failed to prove by competent evidence that they had, in fact, a bona fide cause of action against the resident defendants and ordered the case transferred to the county of the residence of the appellant. Also see Wood v. Self, 362 S.W.2d 188 (Tex.Civ.App.) 1962, no writ history.

It is our opinion that the stipulation entered into between the parties failed to meet the burden of proof required of plaintiff-appellee to prove a cause of action against the resident defendant, Bettye Byrd, which is necessary to maintain venue in Dallas County under Exception No. 4 of Article 1995, V.A.C.S.

Appellant next, by his Point of Error No. 2, says: “The trial court erred in overruling the plea of privilege and sustaining venue under Subdivision 29a because this subdivision is not applicable unless both defendants were non-residents of Dallas County, Texas.” With this contention we agree. Exception 29a “Applies only when no defendant resides or is domiciled in the county of suit.” Houseman v. Mahin, supra; Tarrant v. Walker, 140 Tex. 249, 166 S.W.2d 900; Shaver v. Hughes, Tex.Civ.App., 214 S.W.2d 176; Community Public Service Co. v. James, 167 S.W.2d 588 (Tex.Civ.App.) 1943, ref., w. m.; Pioneer Building & Loan Ass’n. v. Gray, 132 Tex. 509, 125 S.W.2d 284, 1939; Biggers v. State of Texas, 358 S.W.2d 188 (Tex.Civ.App.) 1962, writ refused, Tex., 360 S.W.2d 516.

The judgment of the trial court is reversed and it is ordered that the cause as to the Estate of Norman M. Garrett, Deceased, be transferred to a district court of Montgomery County, Texas.


author: PHILLIPS, Justice.

text:
    HOME INDEMNITY COMPANY et al., Appellants, v. Ima Jean GILES, Appellee.
    No. 11320.
    Court of Civil Appeals of Texas. Austin.
    June 30, 1965.
    Allison, Clark & Baker, Wm. F. Baker, Corpus Christi, for appellants.
    Byrd, Davis & Eisenberg, Marion S. Roberts, Jr., Austin, for appellee.
   PHILLIPS, Justice.

The plaintiff below and appellee here, Ima Jean Giles, was involved in an automobile collision in Austin, Texas. The Home Indemnity Company, appellee’s liability carrier and the appellant here, employed the Ted H. Heaton Company to make an investigation of the accident. The Heaton Company assigned one of its employees, Robert E. Carswell, Jr., to the task. Carswell interviewed the appellee, made pictures of appellee’s ear and of the scene of the collision. Later further investigation was made which included taking from the assured (appellee) a statement designated as a supplemental proof of loss.

When the investigation was complete, the information obtained as well as the original of the investigator’s report were sent to appellant Home Indemnity Company. At that time copies of the investigation were retained in the file of the Ted H. Heaton Company but later the copies were also forwarded to the company. Appellee contends that these later copies, or the remainder of the file, were sent to the appellant at its request as a result of appellee’s requesting a copy of the file. Appellant refused to comply with this request of ap-pellee.

Appellee brought suit against the Home Indemnity Company and Robert E. Cars-well, Jr., wherein she asks that the court order appellant company and Carswell to deliver to her possession true copies of statements, photographs and/or other information obtained by defendants in the investigation of the accident, or in the alternative that she have judgment against each defendant, jointly and severally, for at least $1000 plus interest and costs as- damages for the withholding of such information.

The trial court held that appellee was entitled to the information contained in the report and ordered the appellants to allow the appellee access to the file so that copies of the investigation could be made at appellee’s expense and ordered the appellants to retain possession of the file so that appellee might have access to it in the future.

We affirm this judgment.

Appellants’ attorney admits that appellee is entitled to the information contained in the file and we so hold; however, they have predicated their points of error on certain findings of fact and conclusions of law filed by the trial court, at their request, in support of the judgment. We need not pass on the correctness of these findings and conclusions as we deem the judgment of the court correct and his reasons therefor are not material here. Maher v. Gonzalez, Tex.Civ.App., 380 S.W.2d 764.

We affirm the judgment of the trial court.

Affirmed.


text:
    AMERICAN EMPLOYERS INSURANCE COMPANY, Appellant, v. EL PASO VALLEY COTTON ASS’N et al., Appellees.
    No. 5715.
    Court of Civil Appeals of Texas. El Paso.
    June 23, 1965.
    Rehearing Denied July 14, 1965.

      Hardie, Grambling, Sims & Galatzan and A. R. Grambling, El Paso, for appellant.
    Channell, Owen, Dwyer & Steinberger, El Paso, for appellees.
   CLAYTON, Justice.

This is an appeal from a judgment of the trial court, sitting without a jury, in the amount of $10,000.00 in favor of the appellees, plaintiffs in the trial court. The appellee corporation is a farming association, the appellee Talley is a user-member thereof, and the other appellees are officers and directors and user-members of the association. The association contracts, for the benefit of its user-members, Mexican National farm laborers under the terms of the Migrant Labor Agreement of 1951, as amended, between the United States and Mexico. Included among those contracted was one Juan Romero Estrada, who was injured while working for Talley, the user-member. Appellant had insured appellees against certain liability in connection with the employment of such laborers, in accordance with the provisions of the Migrant Labor Agreement, Standard Work Contract. Section 3(a) of the contract provides for the payment of not less than certain benefits for death, permanent and total disability (in the amount of $1,000.00) and certain specified losses as contained in a table of benefits, and “expenses for hospital, medicines, medical and surgical attention and other similar services and benefits relative to occupational risks”. The latter proviso was unlimited as to amount of liability. A Joint Interpretation of this contract of August, 1954 by the parties to the Agreement, contained the following clause: “A worker may, consistent with the provisions of Article 3, assert his common law right to seek damages for personal injuries or diseases in excess of the amounts guaranteed in said Article”. The appellant paid medical expenses for the injured employee, Estrada, in the amount of $5,000.00, and $1,000.00 for total, permanent disability. Estrada sued appellees in Federal court, claiming liability of appellees as employers in the total amount of $115,-000.00, being $60,000.00 for present and future medical expenses, $40,000.00 for loss of earnings and $15,000.00 for pain and suffering. The insurance policy issued by appellant to appellees contained several endorsements. Endorsement No. 1 contained the following language: “Insurance is afforded subject to limits of liability stated below against loss resulting from the obligations assumed by the insured under Article ‘3A’ of Standard Work Contracts (Migrant Labor Agreement of 1951, as amended) * * *

“Limits of Liability: $5,000.00 each person”.

Under Endorsement No. 2 the “following insuring agreement” was added to the policy:

“EMPLOYER’S LIABILITY: To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages, including damages for care and loss of services, because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any legally contracted Mexican National Farm Laborer of the insured while engaged in the employment of the insured and caused by accident during the period of this policy and within the United States of America. * * *
“The limit of the Company’s Liability under this endorsement shall be:
“$50,000.00 each person * * * ”

Endorsement No. 42a increased the limits of Employer’s Liability coverage to $100,000.00-per person.

Appellant’s attorney filed answers for the appellees in Estrada’s suit in Federal court and appellant’s Superintendent, Frank Kirby-Smith, sent each of the appellees an explanatory letter dated April 12, 1961, reciting:

“Our attorneys are defending this suit for you gentlemen, and the El Paso Valley Cotton Association, as we wrote an insurance policy to the El Paso Valley Cotton Association covering braceros which it employs. We have paid out $5,000.00 for medical and hospital expenses, which is the maximum under our policy. We have also paid out $1,000 to the Plaintiff, Juan Romero Estrada, for damages, under the provisions of our policy * * * It is our opinion that the policy which we wrote to the El Paso Valley Cotton Association does not cover the damages asserted by Plaintiff in this suit for medical or hospital expense, as we have heretofore paid out the full amount which we are obligated to pay for medical and hospital under the terms of the policy.
“However, under the employer’s liability coverage section of the policy we are obligated to defend that portion of the suit seeking to recover a judgment against you for $40,000 for loss of wages and $15,000 for pain and suffering. We are also bound to satisfy any judgment which may be rendered against you for loss of wages and pain and suffering, which in this case combined amount to $55,000 * * *
“We wish to advise you that by filing Answer to this suit, we do not waive any of the provisions of the policy, and do not extend its coverage. Our attorneys are capable, and will give this matter their careful attention, but if any of you gentlemen desire to have attorneys of your choice assist in the defense of this suit at your expense, it will, of course, be agreeable to us for you to employ such attorneys * * * ”

Subsequently appellant wrote appellees three further letters relative to coverage of the injured employee. Excerpts from these letters are as follows:

“This is to advise that this Company has paid medical expenses approaching $4000 on this case. The limit of our liability for such expense is $5000 5|í íjí í¡{ t>
“I make reference to my letter of 11-25-60 on the referenced case. At that time I advised you that the limit of our liability in this case was $5000 * * *
“This is to advise you that this Company has now paid $5000., in medical expenses for the treatment of this worker.”
******
“This is to advise that the policy of insurance from which this worker’s expenses have been paid has a limit of $5000 * * *
“This Company will not be responsible for medical care for Romero Estrada in excess of our $5000 policy limit.”

No other grounds for denying liability were asserted by appellant until its answer was filed in this cause.

After receipt of the appellant’s letter of April 12, 1961, appellees arranged for the services of their present attorney, Frank Owen III, to represent them. Appellant and appellees’ attorneys consulted with each other, and appellant’s attorney advised ap-pellees’ attorney that he thought the Federal case could' be settled for $20,000.00, and since a trial of the case might result in a judgment for $60,000.00 for medical expenses, for which he claimed that appellees would be liable, and in a judgment for $55,000.00 for common law liability for which the appellant would be liable, appellant’s attorney suggested that in the event of a $20,000.00 settlement, a payment of $10,000.00 thereon by appellees and $10,000.-00 by appellant would be fair. Appellees’ attorney replied that he felt that the appellant should pay the full amount of the settlement but finally agreed to contribute under the suggested division of settlement provided appellees did not waive any of their rights. Pursuant to this position, appellees’ attorney, Owen, delivered to attorney for appellant the following letter:

“November 10,1961
“Mr. Allen Grambling
Attorney for American Employers Insurance Company
El Paso Natural Gas Building
El Paso, Texas
Dear Mr. Grambling:
Handed herewith is the check of El Paso Valley Cotton Association, Check No. 3422, General Fund, dated 11/10/61, signed by R. L. Skov, and payable to Juan Romero Estrada and Joseph J. Roybal and Ernest Guinn, his attorneys, in the sum of $10,000.00, as full and final settlement in the case of Juan Romero Estrada, Plaintiff versus El Paso Valley Cotton Association, Lester Roy Talley, et al, Civil Action No. 2269, in the United States District Court for the Western District of Texas, El Paso Division.
The foregoing check is given by way of contribution as per our understanding and agreement in order that settlement -of said cause can at this time be reached as to liability of the parties, whatever it may be, to Juan Romero Estrada.
Said check and contribution, however, is so delivered and paid with the express understanding that the El Paso Valley Cotton Association, Inc. does not waive any rights whatsoever it may have under the terms of general liability Policy No. GL 1633560, with American Employers Insurance Company, together with all of the endorsements thereto, as well as any other policies which may have been in force on the date of the accident in said cause, whether such rights be contractual or otherwise, at law or in equity.
It is the contention of the El Paso Valley Cotton Association, Inc. and the position of the undersigned that your client, American Employers Insurance Company, is liable for the entire amounts paid to Juan Romero Estrada, being the sum of $20,000.00, in addition to $6,000.00 previously paid by said company, although $10,000.00 of such settlement is hereby paid by our client. We therefore take this means of reserving the right to try the matter of interpretation of the aforesaid insurance policies, together with all endorsements, in order to determine the extent of coverage and liability thereof. By the payment of the aforesaid contribution, we do not waive any of our rights.
We shall file suit for the determination of the liabilities of the parties and you agree to a prompt answer, * * ”

Appellant’s attorney accepted the terms of this letter, as follows: “Accepted this 10th day of November 1961” signed “Allen R. Grambling, Attorney for American Employers Insurance Company”. The $20,000.-00 settlement was then effected and Estrada signed a full release, acknowledged before one of his attorneys, which recited that the settlement was not to be construed as an admission of liability but merely a compromise to avoid litigation, and recognized appellees’ position that the accident complained of by Estrada was proximately caused by his own negligence and not by the negligence of appellees or any of them. The Federal case brought by Estrada was then dismissed with prejudice and there followed this suit by appellees against appellant seeking to recover the $10,000.00 paid out on the settlement, plus attorneys’ fees.

The trial court entered judgment awarding appellees the $10,000.00 but refused attorneys’ fees, and this appeal resulted.

Appellant’s first two points of error relate to a contract defense. Paragraph 12 of the insurance policy involved in this lawsuit reads as follows:

“No action shall lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy, nor until the amount of insured’s obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the company.”

Appellant maintains that judgment should not have been rendered for appellees “for the reason that the amount of Appellant’s [appellees’?] obligation to pay” under the undisputed evidence had not been finally determined, either by trial or by written agreement of the three parties. Point Four reiterates this position, stating that neither the trial court nor any other court had found that the insured had incurred any liability to the injured employee, Estrada, other than contract liability under Article 3(a) of the Standard Work Contract of the Migrant Labor Agreement, and that appellant’s policy limits of $5,000.00 for such contract liability had been fully paid and satisfied. Point of Error No. Five is that there is no evidence to show that any liability other than contract liability had been incurred by appellees and that this liability had been fully paid up to the policy limits. Appellee, in a cross point, asserts error on the part of the court in denying attorney fees, to which appellant replies in a supplemental brief.

On these points the trial court made a number of Findings of Fact and Conclusions of Law, which the writer has attempted to group by subject matter rather than numerically:

“FINDINGS OF FACT
“V.
“Mr. A-llen Grambling negotiated the settlement with the Attorneys for JUAN ROMERO ESTRADA and the Insurance Company refused to pay over $10,000.00 in settlement on the basis that the policy did not afford coverage.
“VI.
“The suit by JUAN ROMERO ESTRADA was settled for $20,000.00 on November 10, 1961, with the American Employers Insurance Company paying $10,000.00 and the Plaintiffs paying $10,000.00. The Plaintiffs paid such sum on written agreement with the Defendant’s agent.
“VII.
“On November 10, 1961, Frank Owen III, the Attorney for the Plaintiffs wrote a letter (Plaintiffs’ Exhibit 14) to Mr. Allen Grambling, Attorney for the Defendant, tendering payment of the $10,000.00 and reserving all rights to file suit against the Insurance Company to determine coverage of the policy. This letter was accepted without qualification, condition or reservation by the Defendant through its Attorney Mr. Allen Grambling.
“IX.
“The policy of insurance No. GLMN1633S60 (Plaintiffs’ Exhibit 6)
was in full force and effect at the time JUAN ROMERO ESTRADA was injured and the limits were $100,000.00 per person and $1,000,000.00 per accident.
“XIV.
“That on November 10, 1961, $20,-000.00 was paid to JUAN ROMERO ESTRADA at which time JUAN ROMERO ESTRADA executed a release (Defendant’s Exhibit 2).”
“IIL
“Mr. Frank Kirby Smith on behalf of the Defendant wrote the Plaintiffs on April 12, 1960, (Plaintiffs Exhibit 7) and advised the Plaintiffs that the Company had paid $5,000.00 on medical coverage and that the insurance policy in question did not cover medical payments in excess of $5,000.00. He further advised that in accordance with the terms of the policy that the insurance company’s attorneys would defend the case though the insureds could retain attorneys if they chose.
“VIII.
“The Defendant by the actions of its agents waived any policy defenses that might have been available to it.
“IV.
“After receipt of the letter from Mr. Frank Kirby Smith on behalf of the Defendant (Plaintiffs Exhibit 7) the Plaintiffs retained counsel to represent their interest.
“XII.
“The Defendant’s attorneys had a conflict of interest in defending the Plaintiffs in the law suit brought by JUAN ROMERO ESTRADA because of the position taken by the Defendant regarding the coverage afforded by its policy.
“XIII.
“Reasonable attorneys fees in this cause would be $2,000.00.”
“CONCLUSIONS OF LAW
“I.
“That the Defendant by entering into this Settlement Agreement as shown by the letter from Owen to Grambling on November 10, 1961, was estopped from raising any policy defenses in a subsequent suit other than the reason given for denying coverage.
“II.
“If the Insurance Company did not waive its rights by accepting the letter from Owen to Grambling (Plaintiffs’ Exhibit No. 14) it waived its right to assert policy defenses by denying full coverage of the policy in the letter of Frank Kirby Smith of April 12, I960 (Plaintiffs’ Exhibit 7).
“VI.
“The Defendant having unconditionally paid $10,000.00 in settlement of the suit by Estrada is bound by that settlement and cannot raise policy defenses in this suit by the Plaintiffs to determine the coverage of the policy.
“IX.
“The letter from Mr. Owen to Mr. Grambling (Plaintiffs Exhibit No. 14) which was signed by the Defendant’s attorney constituted a settlement insofar as the Defendant is concerned and is binding on the Defendant, but is not binding as a final settlement on the part of the Plaintiffs because of the reservation made.
“X.
“The letter (Plaintiffs’ Exhibit No. 14) from Mr. Owen to Mr. Grambling which was signed and accepted by Mr. Grambling for the American Employers Casualty Company constituted a written agreement between the Company, the insured and the claimant, since the claimant adopted such agreement by signing of the release.
“HI.
“That the Plaintiffs by payment of $10,000.00 to the Defendant did not waive any rights to determine coverage of the policy.
“V.
“That the Policy limits of Plaintiffs’ Exhibit No. 6 were sufficient to cover the full $20,000.00 settlement made with JUAN ROMERO ESTRADA.
“VII.
“A construction of the policy as a whole shows that it provided full coverage with regard to the claims of JUAN ROMERO ESTRADA.
“VIII.
“The Coverage of Endorsement Number 2 was not limited by any other endorsement of the policy (Plaintiffs Exhibit No. 6).
“IV.
“That because of the offer to defend the Plaintiffs and {he subsequent representation and negotiation of settlement in the suit brought by JUAN ROMERO ESTRADA by the Defendant’s attorneys the Plaintiffs are not entitled to attorneys fees.”

In reviewing the trial court’s findings of fact and conclusions of law, we must bear in mind that this case was tried before the judge of the trial court without a jury, thus making the trial judge the trier of facts, to which facts as found he applied the law. “The trial court’s findings of fact and conclusions of law should be construed together and, if possible, to be in harmony with the judgment and to support it; and in determining whether the findings are supported by any evidence of probative value we should give credence only to the evidence favorable to the findings, disregarding all evidence to the contrary”, Nathan v. Hudson, 376 S.W.2d 856, 862 (Tex.Civ.App., 1964; ref., n. r. e.), citing Brown v. Frontier Theatres, Inc., 369 S.W.2d 299, 301 (Tex.Sup.).

As to the points of error founded upon contract defenses, and particularly upon Paragraph 12 of the insurance policy involved herein, quoted above, the court made several findings of fact, including VIII,. that the defendant by the actions of its agents waived any policy defenses that might have been available to it, and in his conclusions of law again asserts waiver and estoppel against appellant and further concludes that the action of appellant’s attorney in signing and accepting the letter from Owen, on behalf of appellees, to Grambling, for the American Employees Casualty Company, constituted a written agreement between the company, the insured and the claimant, since the claimant adopted such agreement by signing the release, thus complying with the terms of Paragraph 12 of the insurance policy, which was found to provide full coverage with regard to the claims of Estrada. (Findings IX, V, VII and VIII). As to waiver and estoppel, we quote from 45 C.J.S. Insurance § 707, p. 677:

“Where the company denies liability or refuses to pay a loss on a specified ground, it is estopped to assert other grounds relieving it from liability of which it had full knowledge where insured has acted on its position as announced and suffered resultant detriment, or, as the rule is sometimes more broadly stated, when one specific ground of forfeiture is urged against a policy of insurance, and the validity thereof denied on that ground alone, all other grounds are waived.”

This rule is also set out in 18 A.L.R.2d § 31, Liability Insurance, where in the footnote on page 491 is stated:

“The rationale of this rule is that when a party to a contract refuses to perform and bases its refusal on one ground it will be held to have waived all other grounds and to be estopped when suit is brought from setting up other grounds for its refusal.”

See also Texas cases cited to the text, and American Employers’ Ins. Co. v. Brock, 215 S.W.2d 370, 375 (Tex.Civ.App., 1948; ref., n. r. e.), and Western Casualty & Surety Company v. Lund, 132 F.Supp. 867, 870 and footnote 871 (U.S.Dist., W.D.Okla., 1955). Concerning these points of error, we find the court’s findings amply supported by the evidence, and his conclusions founded upon the law,- and, accordingly, we overrule Points of Error Numbers One through Five.

Taking up appellees’ cross point citing error on the part of the trial court in denying attorney fees, we see that in the trial court’s finding No. XIII, reasonable attorney’s fees would amount to $2,000.00, but the court concludes as a matter of law, in Conclusion No. IV, that because of appellant’s offer to defend appellees and the actual negotiation of the settlement with Estrada by the appellant’s attorney, appellees were not entitled to recover attorney’s fees. We overrule this cross point, albeit with some degree of reluctance. It cannot be denied, under the record, that the question of hiring a personal attorney by appellees was presented in the letter of Kirby-Smith as agent of the appellant to the appellees. It will be recalled that it was in this letter that appellant denied any further contract liability for medical expenses, but . admitted its commitment to satisfy any judgment which might be rendered against appellees for loss of wages and pain and suffering, which in the Estrada suit amounted to $55,000.00. This confronted appellees with a conflict of interest on the part of the appellant, and the court so found. This situation undoubtedly prompted ap-pellees to secure their own counsel. Nevertheless,, we. find no authority which would allow appellees to recover attorney’s fees under the circumstances, and appellees have cited us to none. Appellant, in the letter referred to, was careful to point out that the employment by appellees of an attorney to assist in the defense of the Estrada suit would be at the expense of appellees, and we believe this must be the case. The cross point is overruled.

Having overruled all of appellant’s points of error and appellees’ cross point, the judgment of the trial court is affirmed.


author: HUGHES, Justice.

text:
    Charles W. ROBERTSON et ux., Appellants, v. CENTENNIAL PROPERTIES OF AUSTIN, INC., et al., Appellees.
    No. 11315.
    Court of Civil Appeals of Texas. Austin.
    June 23, 1965.
    Rehearing Denied July 14, 1965.

      John S. Wade, Austin, for appellants.
    Brown, Sparks & Erwin, Jack Sparks, Austin, for appellees.
   HUGHES, Justice.

This suit was by Charles W. Robertson and wife, Barbara J. Robinson, against Centennial Properties of Austin, Inc., A. P. Dooley, R. E. Eggling, E. W. Jackson, Sr., E. B. Moody, R. H. Porter and W. L. Thompson, to recover damages occasioned by the death of their son, Larry Charles Robertson, then aged eight years and one month, who on March 25, 1963, drowned in a pond located on property owned by defendants.

Trial was to a jury and, after plaintiffs rested their case, defendants made motions for an instructed verdict in their behalf which the trial court granted and rendered judgment accordingly.

We will, in determining the propriety of the instructed verdict, view the evidence in the light most favorable to appellants. We will indulge against the instruction every inference that may properly be drawn from the evidence. And, if the record reflects any testimony of probative force, either direct or circumstantial, in favor of appellants, we will hold the instruction improper. White v. White, 141 Tex. 328, 172 S.W.2d 295, and cases therein cited. We will also discard all testimony adverse to appellants. Texas Employers’ Ins. Association v. Humphrey, Tex.Civ.App., 140 S.W.2d 313, Amarillo, writ ref.

Bearing in mind these rules, we have concluded to state and discuss the facts favorable to appellants separately as they relate to each of the elements essential to the cause of action pleaded by appellants. They allege as follows:

“Defendants were on March 25, 1963, the owners of a tract of land north of Steck Avenue and west of Fran-wood Street on the northwest edge of Austin, Texas, said tract of land being more specifically described in volume 2572, page 582 of the Travis County Deed Records. On said tract of land there is a man-made waterhole which is approximately a quarter mile from Franwood Street which is in a community with many small children.
IV.
Centennial Development Company of Austin purchased an interest in the above mentioned tract of land on January 15th, 1963, and at that time, it was apparent that the town had extended over into the area near the waterhole and was apparent that small children were playing around the waterhole. Defendants knew or should have known that the waterhole was an attractive nuisance and that there was a good possibility that some child would drown in said waterhole.
V.
On March 25th, 1963 Plaintiff’s deceased son, Larry Charles Robertson, age eight years was playing with other children around said waterhole when his foot slipped on a slippery rock and he fell into the waterhole and drowned, as a result of defendants’ failure to eliminate said nuisance, or put an adequate fence around same.”

With respect to these allegations we quote from the case of Eaton v. R. B. George Investments, 152 Tex. 523, 260 S.W.2d 587, the legal requirements relative thereto:

“We have set out the procedural developments in the various stages of the case because we are convinced that they demonstrate that the parties to the cause and the courts below have failed to appreciate and evaluate fully the opinion of this court in the case of Banker v. McLaughlin, 146 Tex. 434, 208 S.W.2d 843, 847, 8 A.L.R.2d 1231. Whatever may have been the rule in this state prior to the Banker decision, it is now clear that a landowner cannot escape liability for bodily harm to trespassing children caused by a structure or other artificial condition maintained on his land by simply establishing that such structure or other artificial condition was not unusually attractive to children. In the Banker case this court approved and adopted the rule laid down in Volume 2, p. 920, Sec. 339 of the Restatement of the Law of Torts wherein it is said:
‘A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land, if
(a) the place where the condition is maintained is one upon which the possessor knows or should know that such children are likely to trespass, and
(b) the condition is one of which the possessor knows or should know and which he realizes or should realize as involving an unreasonable risk of death or serious bodily harm to such children, and
(c) the children because of their youth do not discover the condition or realize the risk involved in in-termeddling in it or in coming within the area made dangerous by it, and
(d) the utility to the possessor of maintaining the condition is slight as compared to the risk to young children involved therein.’
See also Prosser on Torts, Sec. 77, pp. 620-625.
[2] In the Restatement comment on Clause (a) above it is said: ‘It is not necessary that the defendant should know that the condition which he maintains upon his land is likely to attract the trespasses of children or that the children’s trespasses shall be due to the attractiveness of the condition.’ Just so also this court said in the Banker case that ‘The element of attraction is important only in so far as it may mean that the presence of children was to be anticipated’; and again: ‘It is of course immaterial also whether the dangerous condition be in close proximity to a path or highway, as is held in some cases, since that fact merely bears on whether the presence there of members of the public is reasonably to be anticipated. Whether the dangerous condition is an “attractive nuisance” is also merely a circumstance bearing on the same question’ ; and again, quoting from Prosser on Torts, 1941, p. 619: “‘The better authorities now agree that the element of ‘attraction’ is important only in so far as it may mean that the trespass is to be anticipated, and that the basis of liability is merely the foreseeability of harm to the child” ’; and again: ‘nor is it important for what purpose a person (impliedly invited) enters premises on which a dangerous condition is maintained, provided his presence there is reasonably anticipated. Nor is it important, for the same reason, whether the dangerous condition is visible from traveled ways.’”

We will first discuss the evidence, or at least some of it, regarding condition (a) supra.

Since the attractiveness of a pond to children has a bearing on whether it should be anticipated that children would be in its vicinity, we insert a picture of the pond in which Larry drowned.

There is evidence that more water was in the pond on March 25, 1963, than is shown by this picture which was taken at a later date.

The evidence shows that this pond was a half to three-quarters of a mile from the nearest residence. It could not be seen from such residence; in fact, it could not be seen by a person on foot at a distance of more than 50 or 75 yards.

The pond was easily accessible by car and by foot; there being a trail leading to it. There was a fence on one side of the pond, but children nine or ten years of age had little trouble in getting through it. Some times the older children would help the smaller ones through the fence.

We quote from the testimony of Tony Hatch, who was ten years of age at the time of trial:

“Q About how many times had you been to this water hole before Larry drowned?
A About twenty times.
Q Have you ever fallen in this hole?
A Yes.
Q How many times have you fallen in?
A Around five,
Q About five times?
A Yes.
Q Did you see any other kids fall in this water hole?
A Yes.
Q About how many kids have you seen fall in that water hole?
A Around ten.
Q How many kids in the neighborhood were going down to this water hole before Larry drowned?
A I don’t know. A lot of them.
Q You say a lot of them had?
A Yes.
Q How many would be there on a given time when you went down there; usually several people or kids were with you?
A Yes, usually around seven.
Q Usually about seven down there?
A Yes.
Q What did you do at that water hole?
A We would fish in it and throw rocks in it and different junk.
Q What else, if you can think of anything else that you did?
A We made rafts and floated them and we made boats, little toy ones that floated.
Q You fished and you made rafts and you made boats?
A Yes.
Q Did you do anything else?
A No. We went swimming sometimes.
0 What were the ages of the children that were going down there?
A Sixteen, some of them, and some of them were six.
Q You say from six to sixteen then were the ages of them?
A Yes.”

Michael Steven Lackey, age 10 testified;

“Q Had you ever been to this place before Larry drowned?
A Yes sir.
Q About how many times do you think you had been there?
A About three.
Q How long had you known about this water hole ?
A About a month.
Q When you went down there did you go with some other boys ?
A Yes sir.
Q About how many of you would go down there at a time ?
A Two.
Q You and one other or two others?
A Two others.
Q Do you recall who they were ?
A Craig Draper and Tony Hatch.
Q Mike when you were down there did you ever see anybody fall in that swimming pool ?
A No sir.
Q Did you ever fall in it?
A Yes sir.
Q How many times did you fall in it?
A Once.
Q Can you swim?
A Yes sir.
Q Did you swim out all right?
A Yes sir.
Q Did you have your clothes on when you went in ?
A Yes sir.
Q Now were there any other boys down there when you and Tony and Craig went down there — were there any other boys there when you got there?
A No sir.
Q Did any others come while you were there?
A No sir.
Q Just the three of you there at those times?
A Yes sir.
Q Who told you about it, do you know?
A A boy down the street from us named Mike Buss.
Q How long had he known about it, do you know?
A No sir.
Q Mike did you have any trouble getting to the water hole?
A No sir.
Q There was not any fence there that gave any problem to you?
A There was a fence, but we took another way. There was a road that led to the pond.
Q Can you tell us how you got there ?
A I live on Briarwood and I went down Steck Avenue and there is a creek that we went — we walked down the dirt road to the pond and at the dirt road you kind of go up a hill and then you go down the hill and you are at the pond.
Q Did you have to go through any fence that way?
A No sir.
Q Do you know if most of the kids in the neighborhood knew about this water hole ?
A Most everybody in the neighborhood did.
Q Did the parents all know about it too?
A No sir.
Q Is it a pretty deep water hole?
A Yes sir.”

One of appellants testified:

“Q You and other boys did gather around water holes at times I presume?
A Oh yes, I was fairly normal.”

This witness also testified that although he had been to the pool he could not tell how deep it was. There is evidence that at the rock ledge shown in the above picture the pond is at least ten feet deep.

The owners of the property on which the pond was located were aware of its existence. There is no evidence that any warning signs were posted or that any protective measures were taken by them with respect to the pond except that there was a fence as above noted.

We believe this feature of the case is controlled by the opinion in Banker v. McLaughlin, 146 Tex. 434, 208 S.W.2d 843, 8 A.L.R.2d 1231. There a pit containing water was located about 200 yards from a residence and the general surroundings of the pit were described as follows:

“One could ‘get to it (the pool) without any trouble’; about the pit ‘there was quite a bit of * * * vegetation, and quite a bit of grass’; that there was a truck ‘road or trail’ out there; people went ‘back in there to have picnics’; it was ‘open’ there, ‘all except some small bushes and grass’; about ‘the scene of this pit’ there were ‘small bushes, where the trucks ran over them and beat them down’; there were ‘no trees’ right at the hole or ‘around it’; in the ‘spring and summer’ there would be ‘wild flowers and things like that growing there.’ Defendant himself testified that the pool was accessible to those located where plaintiff was ‘if they wanted to wade through grass and weeds and brush.’
The waterhole itself is designated on the plat. The bank ‘down to the water * * * was straight off, then it had a sharp incline to the bottom’; the bank ‘was pretty slanting, and whenever I stepped off in there I slid on to the bottom; it (the water) came up to my chin’; the water was ‘well over the head of a child five or six years old’; when I (one of the searchers for the child) ‘got there it (the pool) was full of water’; were no outlets to it, however; ‘the banks were a straight off drop.’ ”

The Court, under these facts, held that a jury finding that the owner of the property knew or should have known that children of tender years played about or swam in the pit, was sustained by evidence.

About the only factual differences between Banker, a drowning case, and this case is, there the distance from a residence to the pool was 200 yards, whereas, here it is at least 900 yards, and there the pit was not shallower than S feet to 8 feet, whereas, here the pond was shallow at one end.

We believe these are both evidentiary matters and that they require no conclusive finding. As to distance, it is “accessibility” which is really important. The fact that one end of the pond was shallow is of relative unimportance. An eight year old boy does not drown in water of wading depth unless there are other contributing factors.

We believe that fulfillment of requirement (b) above is patent under the decision in Bankers. There it was said, in referring to the pit which has been described in the quoted excerpt from that case, “That it was dangerous to children is not open to question under the record.” Any time children of tender years who cannot swim play, unattended by adults, near an unguarded pond which is beyond their depth, they engage in an extremely dangerous pastime.

Condition (c), above, relates to the age of the child and its appreciation of the danger in playing around the pond. The child who drowned in Banker was five years and ten months, and the Court sustained a finding that because of its tender age it did not realize the risk involved in going into the pool. In Massie v. Copeland, 149 Tex. 319, 233 S.W.2d 449, a drowning case, the Court held, as a matter of law, that a hoy fourteen years of age who was normal, healthy and robust was capable of understanding and appreciating the dangers in swimming in the muddy waters of the pit. The Court there quoted the following from Vol. 65, Negligence, p. 469, § 29 (11), C.J.S.:

“ ‘While there is no definite age fixed at which a child ceases to be entitled to the protection of the attractive nuisance doctrine, the great majority of cases in which it has been applied have involved children of less than ten years of age, and it has been considered that it cannot be applied to a child of the age of fourteen or over, at least in the absence of some showing of a lack of the mental development, which, is ordinarily found in children of that age or of a very exceptional state of facts.’ ”

In Larnel Builders, Inc. v. Martin, 105 So.2d 580, Fla.Dist.Ct. of App., 3rd Dist., the attractive nuisanee doctrine was applied in behalf of the father of a seven year old boy who slipped or fell into a pool of water and drowned.

The evidence is that Larry was an obedient son. He helped about the house. He was ambitious. “He was not athletically inspired but he liked to play the sports as best he could.” In school, he made a little above average grades.

It is our opinion that under the law as we understand it and the facts of this case it cannot be said, as a legal conclusion, that Larry Robertson, aged 8 years and 1 month, was capable of realizing and appreciating the dangers and risks involved in playing about the pond located on appellees’ property.

We are also of the opinion that a question of fact exists regarding requirement (d) above.

The only utility which this pond has or has had to appellees is furnishing water for stock.

In 1953 the individual appellees purchased a 254-acre tract of land in northwest Austin, Travis County, for resale at a profit. The pond in suit was located on this tract. Later the corporate appellee acquired 54 acres of the larger tract, the pond being on the land so acquired.

One of the original purchasers, Mr. Ernest W. Jackson, testified that he was a part owner of Steck Company when Steck Company moved to Steck Avenue. The pond is about one-half mile from Steck Avenue.

We quote from Mr. Jackson’s testimony:

“A In answer to your question, we had no intention of doing the subdividing ourselves. We were going to hold it until somebody might come along who wanted to subdivide it. We had no intentions of going into the subdivision business.
Q You bought it as a holding group with the intent to hold it until prices went up ?
A Hoping to realize a profit, yes.
Q Did you anticipate that the town would grow into that area ?
A Oh we did not know, back in 1952. We realized when we put a plant out there that it probably would get more valuable. We had no idea of what might happen though.
Q You were aware in 1962 that the town was developing and growing into that area were you not?
A Oh yes.
* * * * * *
Q Other than holding this property and waiting for it to go up in value so you could sell the land or part thereof, did you put this land to any use?
A Well we did rent it to two or three different people for grazing. I believe a person named McNeil rented it awhile to graze some horses. They were running a riding stable. They rented it because we had water on it. I believe we rented it three different times because we were told there was a tank up there. That is all the information we had on it, that there was a tank up there and we could rent it and it would be good grazing property and we rented it out for grazing I believe three different times.
Q When was the last time it had been rented for grazing purposes ?
A I believe I have that information here, just a moment. I believe the year of 1960 was the last time it was rented for grazing. We were on the point of renting it again in 1961 but the man who was going to rent it decided not to and I believe 1960 was the last year we used it for grazing.
‡ * * ‡ H? *
A * * * On the two occasions we rented it the renters said they needed some fence to hold the stock. They wanted to run the fence wire up to take in that stock underpass under the railroad and go across to the west side of the railroad and they agreed to put the fence across there and run it across to take in the water hole so they would have water and there was about sixty acres there, and so they did put in a fence at their own expense to keep their stock on that side. That was a provision in the lease.”

The annual rental was $5.00 per acre for 63 acres.

We quote from the testimony of appellant regarding the nature of the pond:

“Q What did you find that indicated to you that it was a man-made water hole?
A It is very similar to a stock tank in the rural areas. I have seen a number of these. Some type of machinery has built a wall in a U shape to catch the watershed and rains as they come along during the years and I feel sure in view of the type of terrain it was a man-made object.
Q Mr. Robertson you testified that in your opinion the water hole we have been testifying about is a man-made water hole. Specifically I would like to ask you in your opinion is this pond artificial or natural ?
A I would say artificial.
Q In your opinion is the water supplied naturally or artificially ?
A I don’t know whether it is — I would say the rain would be the main producer of the water.”

Appellee, Mr. Jackson, testified, when asked if there was any practical way to eliminate the water hole, “Well I guess you could do it if you put several hundred carloads of dirt in there but you would have a spring. You would have a mudhole.”

Appellees’ surveyor witness, Mr. Claude F. Bush, Jr., testified:

“Q Now Mr. Bush in making that survey and going upon the ground out there you have observed the water hole have you not?
A Yes sir.
Q Have you ever found it to be dry ?
A Well I have never seen it completely dry. I mean I have seen it two or three times on different occasions surveying out there.
Q Has it always had water out there ?
A It had some water in it.
Q Now is it fed by springs or what causes the water out there?
A I don’t know just exactly what the source of the water or how it gets there exactly.
Q Mr. Bush you measured from a mound of dirt up there. What was that mound of dirt ?
A It was the top of the levee around the tank.
Q Was it a dirt dam?
A A dirt dam, yes sir.
Q Obviously pushed up there with a bulldozer or something for the purpose of catching water?
A Yes sir.”

We believe that the jury was entitled to draw an inference that if a bulldozer had pushed up dirt to make the pond, a bulldozer could push it away and thus easily destroy the pond.

This evidence is sufficient, in our opinion, to present an issue of fact regarding the utility of the pond as compared with the danger of maintaining it.

The judgment of the trial court is reversed and this cause is remanded.

Reversed and remanded.


author: CADENA, Justice.

text:
    BLOND LIGHTING FIXTURE SUPPLY COMPANY, Appellant, v. Donald D. FUNK et al., Appellees.
    No. 14389.
    Court of Civil Appeals of Texas. San Antonio.
    June 2, 1965.

      Vaughan & Vaughan, San Antonio, for appellant.
    Morriss, Boatwright, Lewis & Davis, Frank D. Masters, San Antonio, for appel-lees.
   CADENA, Justice.

This is an appeal from a summary judgment rendered against appellant, plaintiff below.

The suit was filed by appellant, Blond Lighting Fixture Supply Company, against Lance Electric, Inc., a Texas corporation, Lance E. Williams, Donald D. Funk and Wm. Matera. The trial court entered judgment in favor of appellant against Lance Electric, Inc., but granted the motions for summary judgment of appellees, Funk, Ma-tera and Williams, and entered judgment that as to them appellant take nothing. Lance Electric, Inc., did not appeal from the judgment against it.

Appellant, Blond Lighting Fixture Supply Company, will be referred to herein as plaintiff. Lance Electric, Inc., will be designated as the corporation. Appellees, Donald D. Funk, William Matera and Lance E, Williams, will be referred to collectively as defendants, and individually as Funk, Matera and Williams.

Plaintiff’s suit was on an open account to recover for goods sold and delivered to the corporation, and for attorneys’ fees. Plaintiff sought judgment against the corporation and against the defendants individually. It alleged that the goods were delivered to the corporation “at the special instance and request” of the corporation. The petition alleged that Williams and Funk were incorporators of the corporation and members of its original board of directors, and that Matera “has taken over said CORPORATION and is either the Receiver for such CORPORATION or Trustee for the creditors of such CORPORATION.” The petition contained no other allegations which might serve as the basis for imposing liability on the defendants.

In response to plaintiff’s motion, all books and records of the corporation were deposited in the registry of the trial court and are part of the record on this appeal.

Defendants filed separate motions for summary judgment, reciting in substance that the pleadings and the corporate records showed that there was no genuine issue of material fact with reference to the liability of defendants. Matera further stated, under oath, that he had never been the receiver of the corporation or trustee for its creditors.

In response to these motions, plaintiff filed what it labeled its “Opposition to Defendants’ Motions for Summary Judgment.” So far as relevancy to the questions presented in this appeal is concerned, the only affidavit filed by plaintiff was that of one of its counsel of record, consisting of recitals from the records of the corporation. The contents of this affidavit will be revealed as we discuss the question of the individual liability of the defendants.

We dispose, at the outset, of the assertion made by plaintiff in its brief to the effect that it “was dealing with defendant corporation, a new corporation, on the strength of its officers, directors and backers.” Plaintiff’s pleadings contain no such allegation, and there is nothing in the record which would tend to support this statement.

The Liability of Wm. Matera

Most of plaintiff’s complaints are directed toward the course of dealings between the corporation and Matera. Its attorney’s affidavit recites that the corporate records show that Matera was present at every directors’ and shareholders’ meeting; that at the organizational meeting of the board of directors Matera was named assistant secretary, with authority to co-sign checks and to assist the president, Williams, in borrowing money for the corporation’s operations; that at a shareholders’ meeting held on August 8, 1960, resolutions were adopted requiring the prior written approval of Matera before any new jobs could be undertaken by the corporation and before the corporation could incur any new “liabilities for material or labor”; that at a shareholders’ meeting held on September 12, 1960, Matera suggested that the corporation could perhaps be liquidated with a loss of only $6,000.00, and that if Williams would perform the work under Matera’s direction and put up one-half of the loss, the work could be done. At this meeting, after Williams had refused to “indicate his acceptance of this suggestion,” he was removed from his positions as president and member of the board of directors.

The affidavit of plaintiff’s counsel asserts that “great quantities of money were owed to the corporation” by Matera, and that these, “apparently,” remained unpaid. The affidavit also points out that on September 22, 1960, the corporation’s check No. 922, in the sum of $1,400.00, payable to plaintiff, was signed by Funk, the secretary-treasurer, and subsequently marked “void.” Thereafter, on October 4, 1960, the corporation’s check No. 923, in the amount of $4,344.98, payable to Matera, was signed by Funk.

Plaintiff’s counsel further swore that Matera paid $1,000.00 for stock in the corporation; that no other shareholder except Williams paid for his stock, and that the stock paid for by Matera was “apparently issued in someone else’s name.”

From the above recitals from the corporate records, plaintiff’s counsel concludes that Matera, an officer of the corporation, was the “custodian of the assets” of the corporation, with the duty and obligation of “controlling the purse strings of the corporation,” and that in August, 1960, “he assumed full control of the corporation.”

As can be seen, plaintiff presented nothing to substantiate its allegation in its petition that Matera was receiver of the corporation or trustee for its creditors. There is, therefore, no basis for holding Matera liable either as receiver or trustee. Nor can he be held liable as a director. Plaintiff has not shown that Matera was ever a director, and the corporate records establish that he was not.

An examination of the corporate records on which plaintiff relies reveals that plaintiff is mistaken in its assertion that Matera owed “great quantities of money” to the corporation. The record reflects that on February 12, 1960, Matera and the corporation entered into a contract under which the corporation was to do certain electrical work on a project for which Matera was the general contractor. Under the contract, the corporation was to receive $69,435.00 from Matera for the work. There is nothing to indicate that this price was not fair and reasonable. In fact, the total cost of the work done by the corporation under this contract was in excess of $72,000.00, and the books indicate that the corporation received this amount from Matera. There are, as the opposing affidavit states, other entries showing other amounts owing to the corporation by Matera. But, contrary to plaintiff’s conclusion that these debts “apparently” had not been paid, the records show that the corporation received all money due it from Matera. An examination of the corporate books reveals that, in fact, the corporation actually received sums from Matera which exceeded by more than $1,000.00 his total indebtedness to the corporation.

With reference to the check in the amount of $4,344.98 which was issued to Matera in October of 1960, after a check payable to plaintiff (and other checks payable to other creditors, including the law firm which represented the corporation) had been voided, subsequent entries reveal that this sum was disbursed in payment of debts of the corporation. These facts were directly stated, with references to the relevant entries in the corporate books, in one of the affidavits offered in support of the motions for summary judgment, and plaintiff has offered nothing which denies even in a general way the accuracy of these facts.

Even if Matera did pay for capital stock of the corporation which, as the opposing affidavit says, “apparently” was issued in the name of someone else, this would impose no liability on Matera. If he was in fact a stockholder who had chosen to have the stock registered in the name of another, he had fully paid for his stock. Under Art. 2.21(A), V.A.T.S. Business Corporation Act, a subscriber to stock is under no obligation to the corporation or to its creditors other than the obligation to pay to the corporation the full amount of the consideration for such shares.

The Liability of Williams and Funk

The charter of the corporation was approved by the Secretary of State on January 20, 1960. Williams and Funk were two of the original incorporators. The Articles of Incorporation recite that the corporation shall be authorized to issue 100 shares of voting common stock, of a par value of $10.00 each, and 1,900 shares of non-voting common stock, each having a par value of $10.00.

The corporate records show that Williams was issued 19 shares of voting stock and 79 shares of non-voting stock. One share of voting stock and one share of non-voting stock were issued to Funk. One of the incorporators, who was also a director, was issued 79 shares of voting stock and 19 shares of non-voting stock, while another incorporator, the wife of Williams, also a director, received one share of voting stock and one share of non-voting stock. Neither of these last two shareholders is a party to this suit. No other stock was issued by the corporation at any time.

Since the affidavit of plaintiff’s counsel states that Williams paid for his stock, there is no basis for holding Williams liable under Art. 2.21(A), V.A.T.S. Business Corporation Act.

The minutes of the organizational meeting of the board of directors show that Williams, who was elected president, presented a duplicate deposit slip showing that $2,000.00, representing the full par value of all 200 shares of stock issued, had been deposited in the bank. Further, the affidavit of plaintiff’s counsel states that Williams paid $1,000.00 for his stock, and that Matera had paid $1,000.00 for capital stock issued by the corporation. It is thus undisputed that the corporation received full payment for every share of stock issued. Whether Funk paid for his two shares personally, or whether they were paid for by Matera as a gift to Funk, or whether they were paid for by Matera and held by Funk for the benefit of Matera is irrelevant.

It is conceded that Williams and Funk served as directors and officers of the corporation. But plaintiff’s opposing affidavit states no facts which might form the basis for imposing liability on the directors. The liability imposed on directors by Art. 2.41 of the Texas Business Corporation Act is a liability to the corporation, not to its creditors. Even if the facts were such as to impose liability on Williams and Funk under the statute, it would avail plaintiff nothing. Plaintiff seeks no recov~ery for or on behalf of the corporation or its creditors. It seeks recovery solely for its own benefit. See 14 Tex.Jur.2d, Corporations, p. 487, § 395.

In the absence of a showing of special facts creating directorial liability, the general rule that a director is not liable to the creditors of the corporation is applicable. 14 Tex.Jur.2d, Corporations, p. 466, § 363.

Plaintiff asks that this Court “pierce the corporate veil” in order to impose personal liability on Williams and Funk. It should be pointed out that Williams and Funk, together, owned only 20% of the voting stock, and there is no showing that they in any way controlled the two persons who owned the other 80%. Nor is there any showing that these other shareholders, at any time, were guilty of any fraud or wrongdoing.

The rule governing the application of the “piercing” doctrine was well stated by Judge Pope, speaking for this Court, in Atomic Fuel Extraction Corp. v. Estate of Tom Slick, Tex.Civ.App., 386 S.W.2d 180, 191, as follows:

“ * * * Hanson v. Bradley, 298 Mass. 371, 10 N.E.2d 259, states the law which the trial court correctly applied :
“ ‘The right and the duty of courts to look beyond the corporate forms are exercised only for the defeat of fraud or wrong, or the remedying of injustice. In the present case we have a corporation formed without substantial capital, relying on borrowing money * * *. The plaintiff dealt with that corporation. There is nothing to show that he was deceived. The fair inference is that he knew the worthlessness of the corporation with which he had contracted, * *
“The Texas decisions follow the same rule. Pace Corporation v. Jackson, 155 Tex. 179, 284 S.W.2d 340; Staacke v. Routledge, 111 Tex. 489, 241 S.W. 994; Noblitt v. Barker, Tex.Civ.App., 97 S.W.2d 1010; Seymour Opera-House Co. v. Wooldridge, Tex.Civ.App., 31 S.W. 234, 235. Accord, Farrier v. Hopkins, 131 Tex. 75, 112 S.W.2d 182.”

Plaintiff presents nothing to indicate that the corporation was formed as a means of perpetrating fraud, or that it was operated as a mere tool or business conduit of another corporation or as the alter ego of an individual, or that the corporate form is being used as a means of evading existing obligations, or that the corporation was used to circumvent a statute, or to protect crime or justify wrong. Under these circumstances, there is no justification for disregarding the corporate entity. See Houston-American Life Ins. Co. v. Tate, Tex.Civ.App., 358 S.W.2d 645, 656, no wr. hist.

Plaintiff complains of the failure of the trial court to ascertain which material facts existed without substantial controversy, and which material facts were actually controverted in good faith. In support of this point of error plaintiff relies on Rule 166-A(d), T.R.C.P. But that rule contemplates such action by the trial court only when judgment is not rendered on the whole case, so that a trial is to follow. Here, the judgment that plaintiff recover from the corporation and that it take nothing against the individual defendants, disposed of all parties and all issues in the case. Rule 166-A(d) is, therefore, inapplicable.

There being no error, the judgment of the trial court is affirmed.