text:
    R. C. HILL, Appellant, v. The TRAVELERS INSURANCE COMPANY, Appellee.
    No. 7594.
    Court of Civil Appeals of Texas. Amarillo.
    March 14, 1966.

      Warren Burnett and Robert D. Pue, Odessa, for appellant.
    Crenshaw, Dupree & Milam, Lubbock, Brad Crawford and Cecil Kuhne, Lubbock, of counsel, for appellee.
   NORTHCUTT, Justice.

This is a workman’s compensation case brought by R. C. Hill, as plaintiff, against Travelers Insurance Company, as defendant, for incapacity resulting from an alleged injury on June 27, 1963, while working as an employee of Missouri Valley Constructors, Inc. in Lamb County, Texas. Plaintiff alleged that while rolling a twenty-inch pipe he came into an awkward position at which time he felt a sharp pain in his left shoulder and left arm. That as a result of the injury to the muscles, tendons, ligaments and nerves in his left shoulder and left arm he was totally disabled from performing the ordinary tasks of a workman to such an extent that he would be unable to obtain and retain employment during the ordinary task of a workman and that he was therefore totally and permanently disabled within the meaning of workmen’s compensation law of the State of Texas.

The case was submitted on special issues in response to which the jury found that the plaintiff sustained an accidental injury on June 27, 1963, and that plaintiff sustained total and permanent incapacity. The jury further found that any incapacity which plaintiff has had or now has was caused solely by the loss of the use of his left arm. It was stipulated that under the uncontro-verted evidence the plaintiff sustained a 20 per cent partial loss of the use of his left arm.

The trial court entered judgment on the jury verdict for compensation for 20 per cent permanent partial disability to his left arm. From that judgment the plaintiff, hereinafter referred to as appellant, perfected this appeal.

Appellant presents this appeal upon two assignments of error contending by his first point of error that the trial court erred in overruling appellant’s motion to disregard Special Issue No. 13 and the jury’s answers thereto and in failing to enter judgment for appellant for total and permanent disability since there was no evidence to support the submission of the issue or the answer thereto. By Point Two it is contended the trial court erred in overruling appellant’s- motion for a new trial since the jury answer to Special Issue 13 was so contrary to the great weight and preponderance of the evidence as to be manifestly wrong and unjust and was supported by insufficient evidence.

In considering the contention of no evidence we must consider whether there was any evidence of probative value which with inferences that may be properly drawn therefrom will reasonably support the verdict of the jury. The jury were the judges of the facts proved and also the inferences to be drawn therefrom provided such inferences were not unreasonable. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273; Lockley v. Page, 142 Tex. 594, 180 S.W.2d 616.

Special Issue 13 was as follows: “Do you find from a preponderance of the evidence that any incapacity which R. C. Hill has had or now has, if any, was caused solely by the loss of use of his left arm?” The jury answered the issue, “Yes.” Appellant pleaded that while he was rolling a twenty-inch pipe he came into an awkward position at which time he felt a sharp pain in his left shoulder and left arm and then pleaded damage to his left shoulder and left arm.

Appellant when asked what occurred in describing how he was injured testified as follows:

“Well, we were fabricating some 20-inch pipe for a tooling tower, and we had this pipe laying up on some steel horses, which is — most of you know what a sawhorse is, these were made out of steel. And my job was to weld a 20-inch 90, or an elbow, onto the 20-inch pipe. And this pipe was some 20 feet long and it was heavy schedule pipe, Schedule 60, I believe, which is heavier than ordinary pipe.
“And during this time when I was in the process of welding this ‘90’ on the pipe, well, the pipe had to be lowered to a different position, and I had a jack, screw jack, underneath the ‘90’ to hold it in a horizontal position, and I caught this ‘90’ and kicked the jack out, and when I did, I had more than I could handle. And I held on to it and I had this severe burning and ripping sensation in my shoulder, and I went ahead and got hold of it with both hands, and got it in position to how I wanted it, and I stopped and rubbed my shoulder for some time, and walked and got me a drink of water, and went on back to work.”

Appellant was hurt on June 27, 1963, and continued to work and first went to see a doctor on July 3. Appellant had trouble moving his arm and couldn’t lift anything over his head. After he went back to work he was limited in what he could pick up in the movement of his arm. At the time of the trial he was working in his regular kind of work making $4.35 an hour. His arm bothered him when he tried to clinch it. If he had to grab something there was a particular way he had to move his arm. When he is working his arm bothers him as well as his shoulder. Dr. Margo, who operated on appellant, testified: “After full recovery from the surgery, he will have some pain and disability, in my opinion, I would say it would be 20 per cent permanent part disability to the left arm.”

In considering appellant’s second point of error we must consider and weigh all of the evidence in the case and to set aside the verdict and remand the cause for a new trial if the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. There is no evidence that his shoulder was ever struck with anything. He held onto the pipe when he kicked the jack out from under the pipe and this testimony together with the testimony as to his arm and the testimony of Dr. Margo that the injury will result in 20 per cent permanent part disability to the left arm, we cannot say that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust.

We have carefully considered both of appellant’s points of error and overrule both of them. Judgment of the trial court is affirmed.


source: Caselaw Access Project

author: WERLEIN, Justice.

license: Public Domain

text:
    Lynn E. SMITH et al., Appellants, v. FIRST PASADENA STATE BANK, Appellee.
    No. 14698.
    Court of Civil Appeals of Texas. Houston.
    March 24, 1966.

      Engel & Groom, Rudy M. Groom, Houston, for appellant.
    C. B. Stephenson, Houston, Kamp, Las-well & Howard, Houston, of counsel, for appellee.
   WERLEIN, Justice.

This suit was brought by First Pasadena State Bank, formerly Pasadena State Bank, as endorsee and assignee of certain notes and collateral owned by Channelview State Bank, against Village Outboard Store, Inc., sometimes referred to herein as Corporation, and G. B. Hamby, Lynn E. Smith, F. M. Smith and H. N. Gilbert. The case was tried before the court without a jury. From the judgment of the court decreeing that appellee, First Pasadena State Bank, recover against the above named individuals, jointly and severally, the sum of $11,500.00 with interest at the rate of 6% per annum from October 19, 1960, and $1500.00 attorneys’ fees, only Lynn E. Smith and F. M. Smith have appealed. Appellee took a non-suit as to Village Outboard Store, Inc.

At the request of appellants, the trial court made and filed his findings of fact and conclusions of law as follows:

FINDINGS OF FACT

“1. On February 28, 1958, at Channel-view, Texas, Defendants, VILLAGE OUTBOARD STORE, INC., G. B. HAMBY, LYNN E. SMITH, F. M. SMITH, and H. N. GILBERT, signed, executed and delivered to CHANNELVIEW STATE BANK their promissory note due six (6) months after date providing for six (6%) per cent interest from date plus reasonable attorneys’ fees in the event of suit. Said note further provides, ‘The drawers and endorsers severally waive presentation for payment, protest, and notice of protest or non-payment of this note, and authorize the holder hereof to extend time of payment of same or any part thereof without impairing or changing our individual or joint liabilities.’ The sum of Three Thousand Five Hundred and No/100 ($3,500.00) Dollars was paid on this note.

“2. On January 9, 1959, VILLAGE OUTBOARD STORE, INC. signed, executed and delivered to CHANNELVIEW STATE BANK its promissory note in the amount of Twenty Six Thousand and No/100 ($26,000.00) Dollars due May 1, 1959, and providing for six (6%) per cent interest from date plus reasonable attorneys’ fees in the event of suit. This note was given in renewal and extension of the Fifteen Thousand and No/100 ($15,000.00) Dollar note executed February 28, 1958.

“3. G. B. HAMBY, LYNN E. SMITH and H. N. GILBERT were either officers or directors of VILLAGE OUTBOARD STORE, INC., a Texas corporation, at the time the above mentioned notes were made and executed.

“4. On October 19, 1960, the above mentioned notes were transferred for value to PASADENA STATE BANK, now FIRST PASADENA STATE BANK of Pasadena, Texas.

“5. The sum of One Thousand Five Hundred and No/100 ($1,500.00) Dollars is a reasonable attorney’s fee for the filing and prosecution of suit on the above mentioned notes.

“6. FIRST PASADENA STATE BANK filed suit on the above mentioned notes within four (4) years from February 28, 1958.”

CONCLUSIONS OF LAW

“1. FIRST PASADENA STATE BANK is the legal holder and owner of the above mentioned notes.

“2. G. B. HAMBY, LYNN E. SMITH, F. M. SMITH, and H. N. GILBERT are jointly and severally liable upon the above mentioned notes in the amount of Eleven Thousand Five Hundred and No/100 ($11,500.00) Dollars, plus six (6%) per cent interest on said amount from October 19, 1960.

“3. FIRST PASADENA STATE BANK is entitled to One Thousand Five Hundred and No/100 ($1,500.00) Dollars as a reasonable attorney’s fee.

“4. Suit upon the above mentioned notes is not barred by the Statute of Limitations.”

Appellants assert that the trial court erred in his findings Nos. 1 and 2, and also erred in failing to find that the $26,-000.00 note was accepted in lieu of or in payment of the $15,000.00 note dated February 28, 1958. The $15,000.00 note, which was introduced in evidence as Plaintiff’s Exhibit No. 1, bears the signatures of the four individuals hereinabove named as individuals on the face thereof under the printed name “VILLAGE OUTBOARD STORE, INC.” and contains the provisions set out in the court’s findings in paragraph 1 thereof, and shows that $3,500.-00 was paid and credited on the note, and that it, together with all collateral and endorsements securing the same, was assigned to Pasadena State Bank without recourse by Channelview State Bank on October 19, 1960.

The note in the sum of $26,000.00 dated January 9, 1959, which is described in paragraph 2 of the trial court’s findings of fact, was assigned on the same date and in the same manner as the $15,-000.00 note. It was not signed by any of the individuals above named as individuals, but was executed by the corporation by its president, G. B. Hamby, and its secretary, Lynn E. Smith, who with H. N. Gilbert were either officers or directors of the corporation. The court found that the $26,-000.00 note was given in renewal and extension of the $15,000.00 note. Appellant, Lynn E. Smith, testified that the renewal of said note was part of the consideration for the $26,000.00 note. His testimony supports the court’s finding. The $15,000.00 note bears on its face a stamp reading: “Renewed”, showing the date of renewal as January 9, 1959. It also shows on its face that $3,500.00 had been credited thereon, leaving a balance as of such time of $11,500.00 principal, which is the amount of the court’s judgment. In our opinion, the court’s findings of fact are amply supported by the evidence.

The evidence shows that the four persons named hereinabove signed the $15,-000.00 note as individuals without any limitation, and hence were liable thereon. F. M. Smith testified that he signed as an individual for the accommodation of the other three individual makers of the note. He did not sign for accommodation of the bank, and was not an accommodation maker for the bank, the payee in such note. Under Article 5933, Vernon’s Annotated Texas Civ.Statutes, Sec. 29, of the Negotiable Instruments Act, he, as well as the other three individual signers, was liable on the note to the holder for value, Channelview State Bank, even though such holder at the time of making the note knew that he was only an accommodations party for the other makers of the note. By signing as a maker of the note and lending his credit thereto, E. M. Smith, and the other makers of the note, became jointly and severally liable thereon as makers. Brinker v. First National Bank of Cleveland, Tex.Civ.App., 16 S.W.2d 965, 967, reversed on other grounds, Tex.Com.App., 37 S.W.2d 136. The court in that case said:

“It is only in those cases where the note is executed for the sole purpose of its negotiation by the payee in order that he may obtain credit thereby, and under an agreement that he is to provide for payment at maturity and indemnify the maker, that the instrument becomes in law accommodation paper for the payee. These principles are established by the following cases which in their facts are, if anything, stronger than the case at bar. (citing cases)”

See also Culberson v. Hawkins, Tex.Civ. App., 321 S.W.2d 140; Magill v. McCamley, Tex.Civ.App., 182 S.W. 22, writ ref.; 9 Tex.Jur.2d, p. 142, Bills & Notes, § 121.

The $15,000.00 note explicitly provides and authorizes the holder thereof to extend the time of payment of the same or any part thereof, without impairing or changing the individual or joint liabilities of the makers thereof. Under such provision no extension of the time of payment of the note would discharge F. M. Smith or any of the other makers of the note. It is our view that having consented in a written stipulation in the note to any extension of time of payment, he could not thereafter revoke that consent. While under Article 5932, Sec. 18 of the Negotiable Instruments Act, F. M. Smith and the other individual makers of the $15,000.00 note were not liable on the $26,000.00 note signed by the corporation since their names were not signed thereon as individuals, the execution and delivery of such note did not have the effect of releasing them from their primary liability on the $15,000.00 note. The evidence shows that in the extensions of the $15,000.00 note, such note and the indebtedness evidenced thereby were merely renewed and extended in the new notes, including the $26,000.00 note, and that such note was retained by the payee or its assignee, and was never shown to be paid or cancelled. F. M. Smith and the other individual makers of the $15,-000.00 note by signing the same agreed in advance to any extension of time subsequently granted for payment of the original obligation upon which they were all liable.

In Schwab v. Schlumberger Well Surveying Corp., 1946, 145 Tex. 379, 198 S.W. 2d 79, the court said:

“The giving of a new note for a debt evidenced by a former note does not extinguish the original indebtedness unless such is the intention of the parties. Such intention is never presumed. The burden of proving the discharge or novation is therefore upon him who asserts it. * * * In general the renewal merely operates as an extension of time in which to pay the original indebtedness. The debt is not thereby increased. It remains the same; it is in substance and in fact the same indebtedness evidenced by a new promise, (citing authorities) Hence, the new agreement made in behalf of the corporation did not create or incur a new debt within the meaning of the statute. It merely created new evidence of the existing indebtedness.”

In the instant case appellants have wholly failed to discharge their burden of showing that the $15,000.00 note and the indebtedness evidenced thereby was paid, discharged or cancelled, or that there was any novation in connection therewith, or that there was any intention of the parties to extinguish the original indebtedness. The evidence is just to the contrary.

The law is well settled that where renewal-notes are involved, the holder may sue either on the renewal note or on the original note. Chapman v. Crichet, 127 Tex. 590, 95 S.W.2d 360, 96 S.W.2d 64; Kern v. Smith, Tex.Civ.App., 164 S.W.2d 193, writ ref., w. m.; Hays v. First State Bank of Dell City, Tex.Civ.App., 377 S. W.2d 210, writ ref., n. r. e.

Appellants contend that appellee’s cause of action, alleged in its first amended original petition, which was filed March 19, 1965, was barred by the four year Statute of Limitations of the State of Texas. Appellee’s original petition was filed on November 3, 1961. In such petition the $15,000.00 note dated February 28, 1958, which was due six months after date, was not only alleged and described, but a copy thereof was attached to such petition as “Exhibit A”. It showed on its face the four individuals hereinabove named as makers thereof. Appellee thereafter in such petition alleged certain renewals and extensions, including the $26,000.00 note executed on January 9, 1959. It alleged explicitly that such note was a renewal note, renewing, rearranging and extending, but not extinguishing the original $15,000.00 note attached to such petition as Exhibit A. Appellee also alleged in such petition that the makers of said notes were at all times advised that their liability on the $15,000.00 note was not released, and that the extension for payment of said note did not impair or change their individual or joint liability. It is true that in paragraph II of said petition, appellee alleged that said named individuals signed the note individually guaranteeing the payment thereof to Channelview State Bank. Actually they signed as makers of the note, but in any event appellee prayed for judgment against all of the parties jointly and severally.

In appellee’s first amended petition, filed March 19, 1965, the same individual defendants were sued as makers, and/or accommodation makers, and/or drawers, and/or sureties, and/or guarantors, and/or endorsers of said $15,000.00 note. A copy of the same $15,000.00 note was attached to appellee’s amended petition, and the prayer was for recovery against all of the said parties jointly and severally for the amount due. The $15,000.00 note was sued upon in both petitions. We are of the opinion that appellee’s amended petition did not change its cause of action and that its action was not barred by limitation. Article 5539b, V.A.T.S., expressly provides that an amendment to a pleading shall not be subject to a plea of limitation where the amendment is not wholly based on or grows out of a new distinct or different transaction or occurrence. See Hallaway v. Thompson, 1950, 148 Tex. 471, 226 S.W. 2d 816; City of Houston v. Magness, 1963, Tex.Civ.App., 364 S.W.2d 702, 705, writ ref.

As shown by the record, there was an unpaid balance on the $15,000.00 note in the sum of $11,500.00, in which amount appellee was given judgment. The fact that the court in his conclusions of law concluded that the four named individuals were liable on both notes in such amount has resulted in no harm to appellants. They were clearly jointly and severally liable for the unpaid balance of $11,500.00 on the $15,000.00 note which was merely renewed and extended in the $26,000.00 note. Rule 434, Texas Rules of Civil Procedure.

Appellants assert, however, that the $26,-000.00 note was reduced by payments to $18,000.00 and that the court erred in not applying such payments aggregating $8,-000.00 to the unpaid balance on the $15,-000.00 note since it was the older indebtedness. The $26,000.00 note, dated January 9, 1959, shows that $1,596.48 was paid thereon on February 13,1959, and that $1,655.00 was paid thereon on March 18, 1959. The corporation executed certain notes in renewal and extension of the $26,000.00 note and the last such renewal note was in the sum of $18,000.00, thus indicating that a total of $8,000.00 had been paid on the $26,000.00 note. The $15,000.00 note was unsecured. When the balance of such note in the sum of $11,500.00 was renewed in the $26,000.00 note, the Channelview State Bank furnished the corporation additional money which together with such balance, made up the $26,000.00 note. The additional funds furnished went into the purchase of boats and motors under some sort of floor plan program, and the bank was given a chattel mortgage on everything on the floor, according to the testimony of appellant, Lynn E. Smith.

Neither the debtor corporation nor any of the individual makers of the $15,-000.00 note requested the bank to apply said payments to the $15,000.00 note, which was either merely renewed and extended in the $26,000.00 note or unaffected thereby. We are in accord with the general rule referred to by appellants in their brief, that when payments are made on a running account without either the debtor or the creditor having specified as to how the payments are to be applied, the law applies such payments to the oldest unpaid portion of the account. Aetna Casualty & Surety Co. v. Hawn Lumber Co., 128 Tex. 296, 97 S.W. 2d 460, 98 S.W.2d 167; Parker v. Center Grocery Company, Tex.Civ.App., 387 S.W. 2d 903. The general rule is not applicable under the facts of the instant case. Appellants contend, however, that the individual signers of the $15,000.00 note were merely guarantors, and hence were discharged by renewal of such note. They rely on the case of Phipps v. Willis, 11 Tex.Civ.App., 186, 32 S.W. 801, writ ref. The individual signers in the instant case were not guarantors. They were all makers of the $15,-000.00 note and were primarily liable thereon, as hereinabove stated.

In Texas Co. v. Schram, Tex.Civ.App., 93 S.W.2d 544, the court stated:

“The law is settled that where neither party has signified his purpose as to the application of payments by a debtor, the law will not apply such payments to the oldest items of indebtedness, if such application would work an injustice; and that in such cases the law makes the application which is in accord with justice and equity of the particular case.”

In Wischkaemper v. Massey, Tex.Civ. App., 70 S.W.2d 771, the court said that where a debtor is alone liable on one note and jointly liable on another note, payment by or for him should be applied to his individual debt. In the case at bar only the corporation was liable on the $26,-000.00 note, and for such reason the court properly applied the payments to such note. The court in Hutches v. J. I. Case Threshing Mach. Co., 1896, Tex.Civ.App., 35 S. W. 60, error ref., held that the proceeds from the sale of mortgaged property should be applied first on that part of the indebtedness on which the mortgagor alone was liable, and then to that part of the indebtedness upon which the debtor and another person were jointly liable.

In the instant case, since the debtors made no request for application of the payments to either note, the bank had the right to make the application and apparently did so. But if the bank did not make such application, then it was up to the court to do so. It should be noted that appellants pleaded merely that Village Outboard Store, Inc. paid the $15,000.00 note. They did not plead distinctly the nature of such payment and the several items thereof, as required by Rule 95, T.R.C.P. The trial court sustained appellee’s attempt to show that the $15,000.00 note was paid. There is no assignment of any error with respect to such ruling. It is our view that under the authorities hereinabove cited, the court properly applied the payments to the $26,000.00 note upon which only the corporation was liable. In any event, we cannot say that the application of the payments as made by the court was not in accord with justice and equity.

Appellants contend in their last point that the court erred in finding that $1500.00 was a reasonable attorney’s fee for the filing and prosecuting of the suit on the notes in question. Both the $15,-000.00 note and the $26,000.00 note provide for reasonable attorney’s fees in event of collection by law, or if placed in the hands of an attorney for collection. Testimony adduced at the trial was that $1500.00 was a reasonable fee. The court’s allowance of such fee is amply supported by the evidence.

Judgment affirmed.


author: STEPHENSON, Justice.

text:
    Elijah White RATCLIFF, Appellant, v. Watson WALKER et al., Appellees.
    No. 6811.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 17, 1966.

      Elijah W. Ratcliff, Livingston, Routt, Harper & McDonald, Houston, for appellant.
    Ross Hightower, Livingston, for appel-lees.
   STEPHENSON, Justice.

This is an action for damages because of false arrest and imprisonment. Trial was by jury and judgment rendered for defendants upon the findings of the jury. The parties will be referred to here as they were in the trial court.

Plaintiff filed in this court papers designated “Statement of Facts—Narrative Form” consisting of one and one-fourth pages. Plaintiff’s transmitted letter shows a copy was mailed to attorney of record for defendants and that said statement of facts had been submitted to the District Clerk. The clerk of this court notified all attorneys that the statement of facts, narrative form, had been filed. Such statement of facts was not authenticated by either the trial court or the attorneys for defendants. However, no objection to such statement of facts was filed within the 30 day period as provided by Rule 404, Texas Rules of Civil Procedure. The Supreme Court of Texas has passed upon this matter as follows:

“The failure of the statement of facts to be properly authenticated was, in our judgment, one of the ‘informalities in the manner of bringing a case into court’ contemplated by Rule 404; and thus it was incumbent upon the respondent to file his objections to it within the thirty-day period provided, otherwise the defect was waived.” Pacific Fire Ins. Co. v. Smith, 145 Tex. 482, 199 S.W.2d 486.

The two points of error relied upon by plaintiff in his brief are as follows:

“I. The court below erred in refusing to admit into evidence the transcription of an oral deposition of plaintiff.
“II. It is an abuse of judicial discretion for a trial court to admit into evidence, above a timely objection and exception, evidence which raises issues which are collateral to the ultimate issues being decided by such court, and which tend to prejudice the jurors.”

Neither of these points was properly raised so it could be passed upon by this court. The transcript filed in this court contains no motion for new trial, and no reference is made in the record of this case that a motion for new trial was filed. The judgment of the trial court shows this case was tried before a jury and that judgment was rendered upon the jury verdict. The law is clear that a motion for new trial was essential under the circumstances of this case. Rule 324, T.R.C.P.

Plaintiff having filed no motion for new trial, must show that the trial court erred in rendering judgment non obstante veredicto, or notwithstanding the finding of the jury on one or more special issues, or in failing to grant his motion for judgment on the verdict of the jury. Saldana v. Garcia, Tex.Civ.App., 275 S.W.2d 563. The plaintiff urges no such contentions in this case.

Judgment affirmed.


author: ARCHER, Justice. HUGHES, Justice

text:
    ALLSTATE INSURANCE COMPANY, Appellant, v. STATE BOARD OF INSURANCE, Appellee.
    No. 11367.
    Court of Civil Appeals of Texas. Austin.
    March 16, 1966.
    Rehearing Denied April 6, 1966.
    Osorio & Palmer, E. Eugene Palmer, Austin, for appellant.
    Waggoner Carr, Atty. Gen., Hawthorne Phillips, First Asst. Atty. Gen., T. B. Wright, Executive Asst. Atty. Gen., Paul W. Phy, John W. Fainter, Jr., Asst. Attys. Gen., Austin, for appellee.
   ARCHER, Justice.

This is a suit in which appellant Allstate Insurance Company challenged certain rules and regulations promulgated and adopted by the appellee State Board of Insurance which prohibited the charging of less than si:, per centum per annum simple interest on deferred insurance premium payments on all lines of insurance subject to the provisions of Chapter 5, Texas Insurance Code, 1951, as amended, V.A. T.S., written by insurance companies licensed to write insurance in Texas. For the sake of brevity, Allstate Insurance Company will be referred to as “Allstate” and the State Board of Insurance will be referred to as the “Board” hereinafter. Allstate contended that the Board is without authority to promulgate such rules and regulations and, therefore, the rules and regulations complained of herein are invalid.

The Board contends that it has clear statutory authority to promulgate the rules and regulations complained of herein, and that such rules and regulations are valid and reasonably supported by substantial evidence. Upon trial of this case below, the trial court ruled that the Board had authority to promulgate and adopt the rules and regulations complained of and denied Allstate the relief it sought in all respects.

The appeal is predicated on 13 points and are that the trial court erred in making conclusions of law Nos. 2 and 3 to the effect that the rules were valid, and in refusing a conclusion requested by plaintiff that the rules were invalid and beyond the scope of Chapter 5 of the Insurance Code and the authority granted therein, and refusing to grant appellant’s request for an amended conclusion of law that enforcement of the rules has resulted in violation of Art. 7426, Vernon’s Ann.Civ.St.; that a proper interpretation of Chapter 5 excludes methods of collecting premiums, in refusing to conclude that the extension of credit and charge of interest therefor do not as a matter of law constitute an “inducement in admitting into evidence certain exhibits and all testimony relating to competitive cutting of rates of interest on deferred premium payments, in making conclusion of law No. 2 because same is contrary to the Insurance Code, in making fact finding No. 14 because there is no substantial evidence to support such finding, and no substantial evidence to support findings Nos. 1, 2, 4 and 16, and the court erred in refusing appellant’s request for amended conclusions of law to the effect that the rules are discriminatory.

Appellee asserts that the holdings of the trial court are valid and authorized by the Insurance Code, and are supported by substantial evidence and not in violation of Article 7426, V.A.C.S., and are not discriminatory.

For a number of years it has been the practice of insurance companies to accept notes as evidence of indebtedness as payment for premiums in automobile, casualty and fire and other allied lines of insurance, which was approved by the State Board of Insurance and its predecessor.

The companies would accept premium notes and charged 6% interest until 1955 when the Attorney General ruled that the Board did not have authority to regulate the interest rate charged on deferred premiums on fire and allied lines of insurance. Thereafter companies charged different rates of interest on the unpaid balance on deferred premiums on all lines of casualty and fire insurance, of from 3% to 5% interest, until in 1959, when the practice became to charge 5%. Subsequently various insurance companies began making exceptions by reducing the rate of interest.

The rule involved particularly in this case is as follows:

“Text of Rules:
Unless otherwise specifically provided in this manual, no company or agent shall extend, guarantee or arrange for credit in any form at a rate of interest less than six percentum (6%) per annum simple interest applied to the unpaid balance of all premiums deferred to any agreed stipulated date or dates. The charging of any lesser rate of interest shall be considered an extension of credit as an inducement to insure with a particular company or agent and in violation of the provisions of the Texas Insurance Code, 1951, as amended, prohibiting rebates or unjust discrimination and is, therefore, prohibited. This rule, however, is not intended to affect the usual customary open accounts.”

Article 7426, V.A.C.S., is concerned with Trusts — Conspiracies against Trade.

The Board is charged by Articles 1.02(b) and 1.10(1), Texas Insurance Code with enforcing the insurance statutes. Butler v. American National Insurance Company, Tex.Civ.App., 235 S.W.2d 185, er. ref.

Administrative agencies may adopt and promulgate reasonable rules and regulations to and in the performance of specific statutory duties. Kee v. Baber et al., 157 Tex. 387, 303 S.W.2d 376.

Chapter 5 of the Insurance Code under which most companies writing automobile, casualty and fire and allied lines are subject which prohibits discrimination by insurers between insureds, prohibits rebates and the use of anything not in a policy, as an inducement to insure.

Articles 5.08 and 5.09, as amended, relate to automobile lines of insurance and make it unlawful for any insurer to contract with insured for any special favor, or any valuable consideration, or rebates not specified in the policy.

Article 5.20 is substantially as the prior Articles, with an added sentence: “Any violation of the terms of this article shall constitute unjust discrimination and shall constitute rebating * *

Article 5.41, which relates to fire and allied lines of insurance, provides that no company can give or sell, or purchase, as an inducement to insure, any stocks or other securities, or anything of value, not specified in the policy, and that the doing of any of the acts prohibited shall be deemed guilty of unjust discrimination.

Beginning in 1959 or 1960 some insurance companies began to charge different rates of interest to different insureds, on deferred premiums in order to retain old business or obtain new business. To prevent such discrimination and inducement, the Board promulgated and adopted Orders 6261, 6332 and 6432, hereinabove referred to.

Allstate appealed to the Board for a reconsideration of these rules, and after a full hearing the appeal was denied, and Allstate filed this suit challenging the rules and the authority of the Board to make such rules.

There can be no question but that under the provisions of Chapter 5 of the Insurance Code it is intended that all insureds having similar hazards be treated equally.

The duty and authority has been delegated to the Board to set premium rates, and to see that all companies writing insurance in Texas are solvent.

As may be observed, the heart of appellant’s case is that the State Board of Insurance did not have the authority to promulgate the rules in question.

The rules under attack were promulgated by the Board purported to be founded upon those provisions of the Insurance Code prohibiting rebating and discrimination, and such rules make the charging of a lesser rate of interest than 6% an extension of credit as an inducement to insure with a particular company or agent.

There are various rebating and discrimination provisions throughout the Insurance Code.

Article 5.08 makes it unlawful to grant special favors and inducements, and that any violation shall constitute unjust discrimination ; Article 5.09 makes the making of any distinction or discrimination in favor of insureds having a like hazard; Art. 5.20 prohibits rebates; 5.41 prohibits inducements; Article 5.42 concerns collection of premiums, and 21.14, Sec. 22, governs rebates and inducements by the activities of agents.

The evidence in this case dealt primarily with lines other than life insurance.

The two systems of time payment for ins .ranee are fairly uniform among all companies. Three and five year policies were sold for a premium note in the amount of the premium, with interest, executed by the insured and payable in two or three annual installments, one year and shorter time policies were carried as an account receivable in the amount of the premium and payable monthly and were mostly automobile. The longer term policies were fire, allied lines, homeowners, etc.

As concerns fire and allied lines and those covered by Arts. 5.52 and 5.53, appellant contends that the language of Art. 5.42 does not confer upon the Board authority to promulgate the rules.

Appellant cites an opinion No. S-179 dated October 20, 1955 by the Attorney General, holding that the Board had no authority to regulate the rate of interest charged on deferred premium payment, because the interest was not a part of the policy premium.

In Opinion No. C-167, October 25, 1963, the Attorney General affirmed the former opinion and held that the Board did not have the authority to promulgate such rules.

In Opinion No-. C-253, May 4, 1964, in which the former opinions, as well as Article 5.42 were not referred to, the Attorney General stated that the Board could adopt reasonable rules and regulations to prevent use of extension of credit as an inducement to insure with a particular company.

We do not believe that the Board has the legal authority to promulgate the rules regulating the minimum interest that may be charged on deferred premiums notes. Amarillo National Life Insurance Company v. Brown, Tex.Civ.App., 166 S.W. 658, er. ref; MacDonald v. Calkins, 31 Ariz. 161, 251 P. 458.

The rule of statutory construction of ejusdem generis is discussed in Stanford v. Butler, 142 Tex. 692, 181 S.W.2d 269, 153 A.L.R. 1054.

In Commercial Standard Insurance Co. v. Board of Insurance Commissioners, Tex.Civ.App., 34 S.W.2d 343, er. ref., the Court held that the Board had power to fix premium rates, but did not have the statutory authority to fix and regulate a single operating exercise.

The interest or service charge on premium financing is a part of the total cost of insurance as distinguished from the premium itself. The rules have the effect of abrogating Articles 7426 and 7429, V.A.C.S., which make certain combinations unlawful which have the effect “To fix * * * increase, or reduce * * * the cost of insurance * *

Since we do not believe the Board had the statutory authority to promulgate the rules, the Court erred in making Conclusion of Law No. 2, because it is contrary to the Insurance Code.

The Conclusions of Law are as follows:

“1. Plaintiff is a proper party with a litigable interest in the subject matter of this suit.
2. The premium note plan does not constitute an extension of credit and is subject to regulation by the State Board of Insurance as to interest rates because it is connected with the existence of the policy and the insurer has the right to cancel the policy in the event of default as to the deferred payment.
3. State Board of Insurance Board Orders Nos. 6261, 6332, 6432, and 6485 were validly issued and promulgated by said Board, acting within the scope of its authority as set forth in the Constitution of Texas, the Insurance Code, and the statutes of Texas, and said Board Orders are valid orders.
4.State Board of Insurance Board Orders Nos. 6261, 6332, 6432, and 6485 are reasonably suported by substantial evidence and are not arbitrary, capricious, or unreasonable.”

Additional Conclusions of Law are:

“1. The charging of different rates of interest and/or service charges to different insureds under deferred premium payment plans (if the same be legally extension of credit) is not a bona fide extension of credit as contemplated by Chapter 5 of the Texas Insurance Code, 1951, as amended.
2. The State Board of Insurance may validly promulgate uniform rates of interest and/or service charges to be charged and collected on deferred premium payment plans under the authority of the Constitution of the State of Texas, the Insurance Code of Texas, 1951, as amended, and the Statutes of the State of Texas.”

We do not believe that the findings of fact are reasonably supported by the evidence.

There were a number of witnesses called by the Board who testified as to the practice for insureds to have different service charges for insureds of the same class, and an exception to the rule of interest charges, the size of the premium involved would be considered, competition for business, whether another company was reducing interest rates to keep business and as a selling tool.

Appellant’s testimony was that the company charged one rate of interest on policies of more than one year and a service charge on annual policies, and that it had not lost business because of the promulgated rule.

The testimony was lengthy but since we do not believe the Board had the statutory authority to promulgate the rules we do not think it necessary to review such in more detail.

It is noted that in Art. 5.25 of the Code, the Board is given the exclusive power and authority to prescribe — rates of premiums and to amend such rates of premiums.

Art. 5.42 is as follows:

“Art. 5.42. Not Retroactive
The provisions of this subchapter shall not deal with the collection of premiums, but each company shall be permitted to make such rules and regulations as it may deem just between the company, its agents, and its policyholders; and no bona fide extension of credit shall be construed as a discrimination, or in violation of the provisions of this sub-chapter.”

The judgment of the trial court is reversed and judgment here rendered for appellant.

Reversed and rendered.

HUGHES, Justice

(concurring).

I adopt as a part of this opinion the following portion of an opinion prepared for the present Attorney General of Texas by Assistant Attorney General Dudley D. Mc-Calla October 25, 1963:

“On October 22, 1955, the then Attorney General issued Opinion No. S-179, summarized as follows:
‘The Board of Insurance Commissioners of the State of Texas does not have the authority to regulate the rate of interest charged on deferred premiums.’
Opinion No. S-179 is based upon those portions of Articles 5.25 and 5.42, Texas Insurance Code, quoted as follows:
‘Art. 5.25. Board Shall Fix Rates
The Board of Insurance Commissioners shall have the sole and execlu-sive power and authority and it shall be its duty to prescribe, fix, determine and promulgate the rates of premiums to be charged and collected by fire insurance companies transacting business in this State. Said Board shall also have authority to alter or amend any and all such rates of premiums so fixed and determined and adopted by it, and to raise or lower the same, or any part thereof, as herein provided.
‘Art. 5.42. Not Retroactive
The provisions of this subchapter shall not deal with the collection of premiums, but each company shall be permitted to make such rules and regulations as it may deem just between the company, its agents, and its policyholders ; and no bona fide extension of credit shall be construed as a discrimination, or in violation of the provisions of this subchapter.’

This opinion concludes by holding that the Board ‘does not have the authority to regulate the rate of interest charged by companies on deferred premiums, as the amount of interest charged is not a part of the policy premium determined by the Board, but constitutes a charge separate and apart from the policy premium. ‡ ‡ ‡ 9

We are not directed to any statute purporting to give the State Board of Insurance Authority to regulate the rate of interest to be charged on deferred premiums on fire insurance. On the contrary, Articles 5.25 and 5.26, Texas Insurance Code, give the Board authority to regulate premium rates, while Article 5.42 constitutes express legislative permission for the deferment of premium payments and the adoption of regulations by each insurance company concerning the collection of such premiums.

In the case of Commercial Standard Insurance Company v. Board of Insurance Commissioners, 34 S.W.2d 343 (Civ.App. 1930, error ref.), the issue before the Court was whether or not the Board had authority to promulgate an order fixing the amount of commissions which fire insurance companies might pay to their local agents. The Court noted the statutes controlling the regulation of fire insurance (now subchapter C of Chapter 5 of the Insurance Code) and stated that:

‘The statutes vest in said Board very extensive and exclusive powers over premium rates and provide for securing information on which to fix, alter, amend, or modify same.’

This is still true of these statutes. In the course of its opinion denying the Board’s authority to fix the amount of commission, the Court went on to hold as follows:

‘In all instances, however, such powers relate to fixing maximum premium rates; and nowhere is any express authority given by law to regulate or control any of the items, elements, or charges, entering into or going to make up the aggregate premium rate. * * these statutes, having undertaken in considerable detail to prescribe the powers and duties of the Board relative to such maximum rate only, without giving authority to them to fix or regulate the different elements of expense entering into that rate, must be construed as a legislative denial of such power.’

The Court further held:

‘The Board can exercise only the authority conferred upon it by law “in clear and unmistakable terms, and will not be deemed to be given by implication, nor can it be extended by inference, but must be strictly construed.” 51 C.J. 56; State v. Robinson (Tex. Sup.), [119 Tex. 302] 30 S.W.2d 297.’

Had the Legislature desired to confer authority upon the Board to regulate or specify interest rates charged upon deferred premiums, it easily could have been done so. Instead, Article 5.42 has not been amended since the release of Opinion No. S-179, some eight years ago.

In view of the foregoing authorities and in the absence of any language of the Insurance Code purporting to give the Board authority to regulate rates of interest upon deferred premiums, we affirm the holding of Opinion No. S-179 and respectfully advise you that the State Board of Insurance does not have the authority to promulgate the order set out in your opinion request.”

The Board in its brief herein makes this argument:

“A ‘bona fide extension of credit’ is not discrimination under Article 5.42. The overwhelming weight of the evidence before the Trial Court shows that the credit rating or standing of the insured was not a factor considered by companies or agents in reducing interest rates on deferred premiums. Time after time witnesses presented by the Board testified that the only factors considered were the competition for the business, the size of the premium or risk, and the value of the agency making the request for a reduced interest rate. With one exception, the credit standing of the insured was never mentioned as a factor which was considered in determining whether to reduce the rate of interest charged on deferred premiums except with regard to open accounts which are not covered by the questioned rules. There can be no ‘bona fide extension of credit’ when the credit standing of the person receiving such credit is not considered by any of the parties to the contract.”

The fallacy in this argument, as I see it, is that conceding the Board has authority to pass regulations requiring appraisement of the credit standing of the policyholder to give assurance that the extension of credit is bona fide, the rule of the Board, in question here, does not contain any such regulation or requirement. All that this rule does is to provide that the rate of interest on premium loans must be as much as 6% per annum. I am at a loss to understand how this provision can be said to regulate the bona fides of the loan. For the life of me, I cannot think of any reason for holding that all premium loans bearing 6% interest or more are bona fide extensions of credit and all premium loans bearing interest at the rate of less than 6% are mala fide extensions of credit.

Art. 5.42 of the Texas Insurance Code, copied above, is specifically applicable only to fire and allied lines of insurance and is not so applicable to automobile and casualty lines of insurance. For this reason, the Board contends that the rule in question, in any event, is applicable to the latter class of insurance.

Although our holding that the rule is invalid as to all classes of insurance is not so well fortified without the help of Art. 5.42, I find lack of statutory authority of the Board to enact this rule without consideration of Art. 5.42.

I concur in the opinion of the majority.


author: CLAYTON, Justice.

text:
    Craig GILLILAND, Jr., Appellant, v. PON LIP CHEW et al., Appellees.
    No. 5626.
    Court of Civil Appeals of Texas. El Paso.
    March 2, 1966.
    Gerald B. Shifrin and Samuel Wasaff, El Paso, for appellant.
    John B. Luscombe, Wellington Chew, El Paso, Harris & Ball, Arlington, for appel-lees.
   CLAYTON, Justice.

Appellee Pon Lip Chew sued appellant Craig Gilliland, Jr. and Rio Grande Produce Company, of which Gilliland was President, General Manager and Chairman of the Board of Directors, for damages for personal injuries suffered by Chew, a vegetable peddler, in connection with an alleged assault and battery committed by Gilliland upon him. Based upon jury answers to special issues, judgment was entered in favor of Chew. This court in its original opinion, Gilliland v. Pon Lip Chew, 381 S.W.2d 671, reversed and remanded for a new trial the judgment of the trial court for the court’s action in determining that there was a conflict in some of the jury’s answers, and in instructing the jury to retire to further deliberate their verdict. Thereupon the jury, upon further retirement, changed its original answers in certain respects. The result was a verdict upon which the trial court entered judgment for Pon Lip Chew in the amount of $35,-824.90.

This court took the view that there was no irreconcilable conflict in the jury’s original answers, and that the trial court erred in sending the jury back for further deliberations. We therefore reversed the trial court’s judgment and remanded the case for a new trial. The judgment of this court was reversed by the Texas Supreme Court in Pon Lip Chew et al., v. Gilliland, 398 S.W.2d 98, November 20, 1965, and the cause was remanded to this court for the purpose of passing upon the claimed exces-siveness of the verdict. We are instructed that if we determine, that the amount of the verdict is excessive, we shall enter judgment in accordance with the procedure set out in Rule 440, Texas Rules of Civil Procedure ; and if we determine that the amount of the verdict is not excessive, we shall render a judgment affirming the judgment of the trial court. The judgment of the trial court is hereby affirmed.

The jury’s answers to the damage issues are as follows:

"QUESTION NO. 3
“What sum of money, if any, if paid in cash now, do you find from a preponderance of the evidence would fairly and reasonably compensate Plaintiff for medical and hospital bills, if any, incurred up to the time of trial as a proximate result of the incident of May 10, 19bl, which is made the basis of this lawsuit. Answer by stating the amount, if any, in dollars and cents.
“In stating the amount, if any, to the foregoing question, you may take into consideration reasonable and necessary expenses, if any, as a proximate result of the incident and injuries incurred by Plaintiff for reasonable and necessary hospital and medical attention, including walking devices, back braces and any other doctors’ bills, if any, and none other.
“We answer $2689.90”

The amount found by the jury is the exact amount of bills and expenses incurred by the plaintiff up to the time of the trial as shown by the testimony in this case.

"QUESTION NO. 5
“What sum of money, if any, do you find from a preponderance of the evidence would fairly and reasonably compensate Plaintiff, Pon Lip Chew, for the reasonable and necessary medical expense, if any, which Plaintiff will incur in reasonable probability in the future for the injuries suffered by him, if any, as a proximate result of the occurrence in question? Answer in dollars and cents, if any.
“We answer $1335.00”

This answer seems in line with the testimony, outlined hereafter, with regard to future medical expense, life expectancy, etc.

"QUESTION NO. 6
“What sum of money, if any, if paid in cash now, do you find from a preponderance of the evidence would fairly and reasonably compensate the Plaintiff, Pon Lip Chew, for such injuries as have proximately resulted or will in reasonable probability proximately result in the future by reason of such injuries, if any, as you find from a preponderance of the evidence suffered by Pon Lip Chew as a proximate result of the occurrence of May 10, 1961, made the basis of this lawsuit, taking into account such of the following elements inquired about hereafter, which you find are established by a preponderance of the evidence and none other? Answer each of the inquiries by stating the amount, if any, in dollars and cents.
“(a) Such physical pain and mental anguish, if any, as you may find from a preponderance of the evidence he has sustained from May 10, 1961, to the date of this trial, proximately resulting from such injuries, if any, suffered on the occasion made the basis of this suit; and if you find from a preponderance of the evidence he will in reasonable probability sustain physical pain and mental anguish in the future beyond this date as a proximate result of the injuries if any, suffered on the occasion in question, then you may take that into consideration also. Answer in dollars and cents if any.
“We answer $15,000.
“(b) The reasonable cash value of the decrease, if any, in plaintiff’s ability to earn money as a proximate result of the incident in question, if any, which he has suffered from the date of the occasion in question to the time of this trial; and if you find from a preponderance of the evidence that in reasonable probability the Plaintiff will suffer in the future a decreased ability to earn money, if he has, as a proximate result of the injuries, if any, suffered on the occasion in question, then you may take that into consideration also. Answer in dollars and cents, if any.
“We answer $16,800”

The foregoing answers of the jury were the basis of the court’s entry of judgment in favor of Pon Lip Chew and against the defendant Craig Gilliland, Jr., in the amount of $35,824.90. Included in the statement of facts is the testimony of Dr. Zigmund W. Kosicki, an orthopedic surgeon, who examined and treated Chew, including X-rays and physio-therapy, up until the time of the trial. He found that Chew had suffered compressions of the twelfth thoracic vertebra and the first lumbar vertebra with fracture of the spinous process, requiring wearing of a back brace and medication for pain. He testified that Chew would probably have to “see me, oh, on an average of about four or five times a year for follow-up visits” and for continued measurement and fitting of the back brace about every two years. The doctor further testified that in his opinion, in reasonable probability further medical treatment, prescriptions, and so on would be approximately anywhere from $50 to $100 a year, and that the pain would continue and the medical advice and treatment which he had described would probably be required permanently; that besides pain there would be fatigue, inability to do heavy manual labor or to move about quickly and that in his opinion Chew would be permanently disabled from performing his duties as a vegetable peddler.

There was also testimony in the record from an attorney at law referring to a mortality table in 58 Corpus Juris Secundum 179 (Pocket Part), that a person of 63 years, the age of Chew at the time of his injuries, would have a life expectancy of 14.14 years. Chew testified that his income would be “somewhere, yearly, about twenty-four hundred or twenty-five hundred dollars, thereabouts”. Taking this testimony in company with that of Dr. Kosicki, we feel that the jury’s answer to Special Issue 6(b) is not out of line, or exorbitant. The jury’s answer to Special Issue 6(a), dealing with pain and mental anguish, is, of course, a fact question and cannot be gauged by any known hard and fast rule, but we have no reason to consider the answer excessive.

There was, of course, other medical testimony in the record, mainly from Dr. Hunter Vaughan, also an orthopedic surgeon who, at the request of the attorney for Rio Grande Produce Company, had examined the plaintiff, Chew, and taken X-rays of him in December of 1961 and had reviewed previous X-rays and the patient’s history relative to his injuries, and stated that in his opinion Chew had a maximum disability at that time of 25 per cent which is permanent, and that he saw no reason why Chew could not drive a truck in order to continue his occupation as produce peddler. However, reviewing the entire record, we feel that the answers of the jury as to damages were entirely supported by testimony, and that no reason exists why they should be determined to be excessive. As stated, therefore, in following the instructions of the Supreme Court, we find no reason to determine that the verdict of the jury is excessive, and feel that the judgment of the trial court based upon the verdict should be affirmed.

■ The judgment of the trial court in this cause is accordingly affirmed.

FRASER, C. J., not participating.


author: WILSON, Justice.

text:
    Willard I. BOSS, Appellant, v. PRINCE'S DRIVE-INS, Appellee.
    No. 4438.
    Court of Civil Appeals of Texas. Waco.
    March 10, 1966.
    Rehearing Denied March 31, 1966.
    Thompson, Hippard, Gibson, Korioth & Tita, Houston, for appellant.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Blake, Tartt and Jerry Wickliffe, Houston, for appellee.
   WILSON, Justice.

Judgment for defendant, operator of a drive-in eating establishment, was rendered notwithstanding jury findings that its negligence in failing to call the police proximately caused plaintiff customer’s injuries received in an assault by a third person.

Plaintiff drove his car upon defendant’s premises to order food. He was accompanied by his wife. He saw “a crowd of young fellows stand around, moving, milling around,” and saw a youth, Yosemite, whose clothes were wet, muddy and disheveled, and who appeared to have been involved in a fight. Plaintiff concluded that what he saw “could signify trouble of some sort, and immediately I decided to avoid the area and get as far away as I could”, he testified. He then moved his car toward the opposite end of the parking lot and ordered food. He parked next to another car occupied by a man. Plaintiff observed no further fighting, but “saw Yosemite back away from the group and run across the parking area.” After an interval (during which Yosemite testified he entered defendant’s cooking area and requested some employees to call the police) Yosemite came to the front of plaintiff’s car where he testified he was waiting for the police to arrive. A waitress asked Yosemite, “Can I help you, or is there anything we can do ?”

Two or three minutes later two young men (who the evidence shows had been fighting Yosemite), whom plaintiff had earlier seen talking to Yosemite, came to the front of the car and demanded that Yosemite pay them money due on a $13 gambling debt. Plaintiff testified he had then been on the parking area about 15 minutes. Yosemite offered to give them an “I. O. U.”, but the two men insisted on a cash payment. Plaintiff testified, “As things progressed they seemed to be working up to some sort of violence.” Using profanity and threats, the two began to push Yosemite. “I stepped out of the car, and it seemed to me maybe that some calm words by an older man would try to calm the situation down or there would be a fight, and I stepped out and said something like, ‘Look fellows, why don’t you forget about it; it is just about a little money and not worth causing any trouble about.’ ”

One of the men, Ainsworth, then wheeled on plaintiff and said, “What in the hell are you butting into this for?” Plaintiff cautioned that someone would call the police, and commented that “it would be stupid to start a fight about such a trivial sum of money.” “Are you calling me stupid?” asked Ainsworth, who said to Yosemite as he struck him, “I am going to give you something to remember me by.” Plaintiff thereupon asked Yosemite, “Why don’t you file assault charges, and I’ll testify for you.” Plaintiff immediately received a blow from Ainsworth, whose wristwatch fell to the ground. Yosemite fled. Plaintiff attempted to retrieve the watch, when he was struck again. Upon announcement by the waitress that the police were on the way, Ainsworth drove off with his friend. The police arrived two or three minutes later, plaintiff testified. The evidence shows they were called at 11:00 P.M. Plaintiff testified he had arrived approximately between 10:30 and 10:45.

Plaintiff testified that when he stepped from his car he knew he was “getting out between two cars where some boys were getting ready to start a fight”, and he “knew there was a risk that he would get hit”; that no one had said anything to him until he stepped out and initiated a conversation; that he knew if he interjected himself “into other peoples’ quarrels you run the danger and risk of being involved in it yourself”, and appreciated and knew the danger. He had no fear for the safety of himself or his wife. It was stipulated that “the danger that he might be struck by one of the participants at the time the argument took place on the outside of his car was known to and appreciated by plaintiff, and he voluntarily exposed himself to such danger.”

The jury found defendant’s manager failed to call the police prior to the time plaintiff was struck, which was negligence and a proximate cause. It also found that plaintiff acted as a reasonably prudent man in voluntarily intervening in the argument.

There is evidence from which it may be deduced that defendant’s manager knew the two men were fighting before plaintiff drove in, and that he did not then call the police. He testified the fighting stopped. There is evidence that the manager was preparing to call a wrecker to have a car which was left on the parking area removed when the waitress notified him of the fight at plaintiff’s car, and that he then called the police as soon as the telephone was available. Plaintiff estimated he was hit “at least ten minutes before 11” P.M., when the police received the manager’s call.

Plaintiff’s contentions are that judgment non obstante veredicto was improper because his voluntarily encountering a danger known and appreciated does not preclude his recovery since he was motivated by humanitarian impluses in attempting to assist Yosemite, and the jury found he acted as a reasonably prudent person. He says the “no duty” and volenti doctrines discussed in Halepeska v. Callihan Interests, Inc., Tex. Sup., 371 S.W.2d 368, are made inapplicable because he was engaged in rescue effort, which he urges as an exception to the Halepeska non-liability rules.

As the rescue doctrine may relate to and affect defendant’s liability, however, it is essential that the hazardous situation of the person toward whom plaintiff’s rescue efforts are directed result from breach of a duty defendant owes to the one sought to be rescued by plaintiff. American Law Inst., Restatement, Torts, Sec. 893.

In this case Yosemite, the person plaintiff now says he was attempting to rescue, was not an invitee on defendant’s premises. He was not a customer. He and a friend were going to another town to see some girls. The boys met at the drive-in parking lot where the friend left his car during the trip taken in Yosemite’s car. They returned about 10:15 or 10:20 to get the car. As his friend started to get out of Yosemite’s car, the latter found Ainsworth waiting for him and the fight ensued.

Yosemite occupied no better status toward defendant than that of a licensee to whom defendant owed no duty to prevent assaults by third persons for reasons personal to them. See Denison Light & Power Co. v. Patton, 105 Tex. 621, 154 S.W. 540, 45 L.R.A.,N.S., 303; Gulf Refining Co. v. Beane, 133 Tex. 157, 127 S.W.2d 169; Texas Cities Gas Co. v. Dickens, 140 Tex. 433, 168 S.W.2d 208; Carlisle v. J. Weingarten, Inc., 137 Tex. 220, 152 S.W.2d 1073; Hernandez v. Heldenfels, Tex.Sup., 374 S.W.2d 196. Plaintiff’s attempted rescue of Yosemite, therefore, did not constitute a justification which affected absence of defendant’s duty to plaintiff.

In our opinion, recovery is barred because defendant owed plaintiff no duty, the danger being fully known and appreciated. Plaintiff’s recovery is barred also because he deliberately and voluntarily exposed himself to the danger so known and appreciated, as a result of an intelligent choice; and there was no justification in law which would excuse his conduct barring recovery under the doctrine of volenti non fit injuria. Halepeska v. Callihan Interests, Inc. (Tex.Sup.1963) 371 S.W.2d 368, 378-380.

The judgment of the trial court was required for another reason: Defendant’s failure to call the police was not a proximate cause of plaintiff’s injuries; the element of causation is absent.

Although others were seated in cars in proximity to plaintiff, none got out or became involved, and no one else got hit. The participants had not spoken to plaintiff, and there is nothing to indicate they were aware of his presence. Plaintiff knew police officers were not present; he had warned that someone “would call” them if a fight ensued. As plaintiff concedes, his intervention in the quarrel precipitated his involvement in the affray. He anticipated the result. It was directly caused by his assumption of the role of intercessor and mediator which he knew was likely to provoke the combatants to injure him, and which he admits by his testimony would not have occurred but for his intercession. Without this moving and efficient cause the injury would not have occurred.

The judgment is affirmed.


author: MOORE, Justice.

text:
    D. T. HORN, Jr., Appellant, v. BUILDERS SUPPLY COMPANY OF LONGVIEW, Ltd., et al., Appellees.
    No. 152.
    Court of Civil Appeals of Texas. Tyler.
    Feb. 24, 1966.
    Rehearing Denied April 7, 1966.

      Harry S. Pollard, Austin (on rehearing only), L. F. Burke, Austin C. Hatch ell, Longview, for appellant.
    Earl Roberts, Roberts & Smith, Long-view, for appellees.
   MOORE, Justice.

This is an action for the dissolution of a limited partnership under the provisions of Texas Uniform Partnership Act, Article 6132b, Vernon’s Ann.Tex.Civ.St. Plaintiffs, Mrs. M. Clint Brown, H. L. Smith, R. H. Smith, Raymond Cupp and James B. Cockrell, partners and owners of 98.7% interest of a partnership known as Builders Supply Company of Longview, Ltd., brought this suit against D. T. Horn, Jr., the owner of the remaining 1.3% interest, alleging that the defendant Horn had been guilty of such conduct as to prejudicially affect the carrying on of the business, and otherwise had so conducted himself in matters relating to partnership business that it was not reasonably practical to carry on the business and partnership with him; they alleged that at various times prior to the filing of this suit, Horn had appropriated to his own use and benefit partnership funds in the sum and amount of $13,606.92 and had failed and refused to account therefor. Plaintiffs prayed for á dissolution of the partnership and also asked that the value of Horn’s interest be ascertained and that he be paid such amount for his interest in the partnership, less the sum of $13,606.-92 alleged to have been appropriated by him.

Defendant Horn denied that he had been guilty of any misconduct resulting in a breach of the partnership agreement. He alleged that he had complied with all of the terms and provisions of the agreement and stood ready and willing to continue with the partnership. By way of a counter claim, he sued for damages alleging that under the provisions of the agreement, he was promised a salary of $700.00 per month, but that the remaining partners had entered into a conspiracy and had wrongfully breached the agreement and terminated his salary as well as his expense account of $100.00 per month and because of such conspiracy and breach of the agreement on the part of plaintiffs, he suffered both actual and exemplary damages.

In a trial before a jury, facts were developed showing that on November 30, 1959, plaintiffs and defendant, by a written agreement, became partners in a limited partnership doing business under the name of Builders Supply Company of Longview, Ltd.

Under the provisions of the Articles of Partnership, James B. Cockrell and D. T. Horn, Jr. were designated as general partners, with all of the remaining members being limited partners.

In regard to the compensation to be paid the general partners, the Articles of Partnership contained this provision :

“In addition to the above, James B. Cockrell and D. T. Horn, Jr. shall draw a salary for their work in such amounts as might be agreed on from time to time by unanimous consent and agreement of all of the partners.”

Each of the general partners were full time employees of the business and drew a monthly salary. Horn’s salary was $700.-00 per month with an additional $100.00 per month as an expense account.

In June of 1962 serious difficulties arose between Horn and Cockrell involving the conduct of the business. Cockrell, one of the general partners and who was after referred by the other partners as the manager, advised Horn sometime during the month of July that his services were no longer needed and requested that he turn in his keys to the company automobile and vacate his office. This Horn refused to do, stating that Cockrell had no authority to terminate his employment with the company. Shortly thereafter, Horn entered the company offices and took from the safe the certificate of title to the company automobile used by him. He also took from the safe all of the abstracts of title to the company property and took them to his home. At the trial of this cause, he refused to turn them over to the company. He admits that even though he had no authority from any of the officials of the company, he took the company automobile to Houston, Texas, and on the return trip was involved in a collision and then, without the consent of the partnership, traded the wrecked automobile for a new automobile obligating the partnership for the difference. Upon learning that the company was attempting to sequestrate the automobile, he admits he secreted it and the company was finally forced to obtain possession through the courts.

He further admitted that on various dates prior to August 3, 1962, and on various other dates subsequent to August 3, he collected accounts due and owing the company in the amount of $13,606.92 and appropriated it to his own use and benefit.

On August 3, 1962, the partners held a called meeting which was attended by all members of the partnership, including Horn. At this meeting a motion was made that the salary and expense account of both Cockrell and Horn be terminated. All of the partners voted in favor of the resolution except Horn, who voted in the negative, taking the position that under the provisions of the Articles of Partnership, his salary could not be terminated unless there was a unanimous consent by all of the partners, and therefore since he did not consent, the company was without authority to terminate his salary prior to the expiration date of the Articles of Partnership on August 1, 1975. The company, nevertheless, terminated the salaries and expense accounts of both Cockrell and Horn, effective as of that date.

Despite the fact that his salary had been terminated, Horn continued to use the company automobile and continued to use the company’s credit card. He also continued to collect accounts due and owing the company and continued to appropriate the company funds to his own use and benefit. A few days prior to the date of the filing of this suit on October 26, 1962, Horn mailed the company an accounting, showing that he had collected the sum of $13,606.92 and also showing that he had applied a portion of the funds upon the salary which he claimed was due him, as well as paying himself a bonus and two paid vacations.

This suit followed shortly thereafter and in addition to a request for dissolution of the partnership also requested that D. T. Horn, Jr. be restrained from incurring further liability on behalf of the partnership.

In response to the following Special Issues as numbered in the Charge, the jury found, among other things, that: (3) defendant Horn had conducted himself in a manner relating to partnership business so that it was not reasonably practicable for the other partners to carry on business with him; (5) that the reasonable cash market value of his interest in the business was $9,409.63; (14) that the plaintiffs had conspired to breach the Articles of Limited Partnership; (15) that the acts of conspiracy of the plaintiffs in stopping the salary and expense account of Horn was a breach of the Articles of Partnership; (16) that the breach of the Articles of Partnership damaged Horn; (17) that such breach was a proximate cause of his damages; (18) that he had suffered damages in the sum and amount of $50,000.00.

Based upon the verdict, the trial court rendered judgment and also made the following findings:

(a)That defendant D. T. Horn, Jr. had conducted himself in a manner relating to the partnership business so that it is not reasonably practical for the other partners to carry on the business with him, and that such partnership should be dissolved as of October 23, 1964, the date of the verdict.

(b) That the present reasonable cash market value of the interest of D. T. Horn, Jr. in Builders Supply Company was $9,409.63.

(c) That based on the jury’s answer to Special Issues Nos. 14, 15, 16, 17 and 18 finding that the acts of conspiracy of the plaintiffs stopping the salary and expense account of D. T. Horn, Jr. was a breach of the Articles of Limited Partnership, proximately causing damages to D. T. Horn, Jr. in the sum and amount of $50,000.00, and that he should have and recover of and from the plaintiffs, jointly and severally, the sum of $50,000.00.

(d) That in accordance with the jury findings, Horn was entitled to recover $59,409.63.

(e) But since the undisputed evidence shows, and it was admitted by defendant D. T. Horn, Jr. that he withdrew from Builders Supply Company funds in the sum and amount of $13,606.92, which funds were not due and owing him and which belonged to the partnership, the court finds that D. T. Horn, Jr. is indebted to the partnership in such sum and amount, which amount should be deducted from the total amount of his judgment due and owing against the partnership.

(f) That irreparable harm and damage will result unless D. T. Horn, Jr. is permanently enjoined and restrained from creating any liabilities on behalf of the partnership and that he should be permanently enjoined and restrained therefrom.

(g) That the remaining partners have executed an agreement indemnifying him and saving him harmless from any and all liabilities of the Builders Supply Company, which is sufficient to meet the requirements of indemnity.

After giving the partnership credit for the $13,606.92 appropriated by Horn, the court rendered final judgment against the plaintiffs, j'ointly and severally, in the amount of $45,802.71.

Plaintiffs filed a motion for new trial which was overruled and thereafter perfected this appeal from that portion of the j'udgment granting defendant Horn damages in the amount of $50,000.00 based on his cross claim. Defendant Horn did not file a motion for new trial but gave notice of appeal from that portion of the j'udgment which dissolved the partnership and awarded him the sum of $9,409.63 in lieu of his interest therein. He also appealed from that portion of the j'udgment awarding the plaintiff a recovery of $13,606.92 for the partnership funds appropriated by him, as well as that portion of the judgment refusing to allow him to recover his salary at the rate of $700.00 per month from August 1, 1962, until the date of the judgment. Thus, we have both parties appealing; the defendant Horn appealing from the judgment rendered against him in the plaintiffs’ main suit, and the plaintiffs appealing from the judgment rendered against them on Horn’s cross action for damages.

At the outset we are confronted with the question of whether or not we have acquired jurisdiction over the appeal of appellant Horn. The matter was called to our attention by the Clerk of this court in accordance with Rules 388 and 389, Texas Rules of Civil Procedure. The judgment appealed from was signed and entered on the 25th day of November, 1964. Appellant Horn did not file a motion for new trial. Rule 386, T.R.C.P., provides, “In appeal or writ of error the appellant shall file the transcript and statement of facts with the clerk of the Court of Civil Appeals within sixty days from the rendition of the final judgment or order overruling motion for new trial, * * * ”

There is a provision for an extension of time by the Court of Civil Appeals; but no request for such extension was made and none was granted.

So, under Rule 386, the Transcript and Statement of Facts must have been filed within sixty days from the date of the judgment or within sixty days from the 25th day of November, 1964. The record in this cause was not filed until the 26th day of February, 1965, at which time it was filed by the plaintiffs. Thus, insofar as the appeal by defendant Horn is concerned, the record was not filed within the sixty day period provided by Rule 386. Our courts have repeatedly held that the foregoing requirements are mandatory and jurisdictional, and that the time limits therein prescribed cannot be waived, dispensed with or enlarged except upon the conditions set forth in the Rule. Eldridge v. Lake Whitney Enterprises, (Tex.Civ.App.) 231 S.W. 2d 466; Tydlacka v. Tydlacka, (Tex.Civ. App.) 277 S.W.2d 159. The fact that the plaintiffs filed a motion for a new trial and thus extended their time for the filing of the record did not inure to the benefit of Horn or otherwise excuse his failure to file the record within sixty days. Each appellant must base his appeal upon his own actions. Angelina County v. McFarland, (S.Ct.) 374 S.W.2d 417; Peurifoy v. Wiebusch, 125 Tex. 207, 82 S.W.2d 624; Neuhoff Bros., Packers v. Acosta, 160 Tex. 124, 327 S.W.2d 434. Consequently, since the record was not filed in this court within sixty days after the date of the judgment, and since this court has no legal authority or discretion in the matter, we are compelled to dismiss the appeal of D. T. Horn, Jr. for want of jurisdiction.

We turn now to the appeal of the plaintiffs attacking the judgment rendered in favor of D. T. Horn, Jr. upon his cross action. Plaintiffs have attacked the judgment on the cross action by assigning ten Points of Error contending, among other things, that the judgment is not supported by the evidence, and that the trial court erred in refusing to disregard the jury findings on Issues 14, 15, 16, 17 and 18 and in refusing to grant their motion for judgment non obstante veredicto. We sustain this contention.

While it is without dispute that the partnership in question was a limited partnership, organized and existing under the Uniform Limited Partnership Act, Article 6132a, we believe that the provisions of Article 6132b, known as the Texas Uniform Partnership Act, are likewise applicable because of Section 6(2) thereof which provides as follows:

“ * * * ⅛⅛ this Act shall apply to limited partnerships except in so far as the Statutes relating to such partnerships are inconsistent herewith.”

Section 18 of the Uniform Partnership Act, Part IV, Paragraph (1) (f) provides:

“(1) The right and duties of the partners in relation to the partnership shall be determined, subject to any agreement between them, by the following rules:
“(f) No partner is entitled to remuneration for acting in the partnership business, * * * ”

The law is clear that in the absence of an agreement to the contrary, a partner is not entitled to compensation beyond his share of the profits for services rendered by him in performing partnership matters. Horn contends, however, that the agreement set forth in the Articles of Partnership providing that he and Cockrell were to draw a salary as might be agreed upon from time to time by the unanimous consent of all the partners amounted to a contract to pay him a salary for the duration co-extensive with the life of the partnership itself and that such contract could not be terminated without the unanimous consent of all the partners, including himself. We are not in accord with this contention.

As we view this record, the evidence conclusively demonstrates that the conduct of the defendant in misappropriating the partnership funds and secreting its property prior to August 3, 1962, was such as to amount to a dissolution of the partnership provided the remaining partners elected to treat it as such. Article 6132a, Sec. 10(a) (4); Article 6132b, Sec. 31(2); 68 C.J.S. Partnership §§ 338, 349. By such conduct defendant placed himself outside the terms of the original agreement. By his default he violated the agreement and gave the plaintiffs cause to file a suit for dissolution. Defendant’s position that he was thereafter entitled to a salary, notwithstanding his fraud, is wholly untenable in a court of equity. By his fraud he put the partnership to an end insofar as he was concerned, and disqualified him from insisting that the remaining partners carry out their part of the bargain. The only right then remaining in the defendant was to be secure in the payment to him of the “value of his interest in the partnership at the dissolution,” less recoverable damages. Article 6132b, 38(2) (c) (I) (II); Herslof v. Sharpe, 249 Wis. 347, 24 N.W.2d 600; Vangel v. Vangel, 116 Cal.App.2d 615, 254 P.2d 919.

Aside from this, however, there is yet another reason why we believe the evidence fails to establish a cause of action. The agreement clearly contemplates that defendant would draw a salary only for his “work.” The agreement provides only for a contract of employment at the will of the parties, at a salary to be agreed upon from time to time in the future. As will be noted, the agreement in question is silent with respect to its intended duration. There is nothing in the agreement specifying the length of time defendant was to “work” for the partnership, nor is there anything in the agreement specifying how long the salary would be paid nor the amount thereof. The evidence fails to disclose any proof of any mutual understanding either as to a definite term or a reasonable time of the existence of the agreement. It is a reasonable conclusion that the parties deliberately and designedly refrained from binding themselves to any permanency and that it was intended to be subject to change depending upon the situation. Obviously, the partners could not have intended that their agreement should be perpetual, regardless of the fortunes of their business, the comparative activity of the various partners and other pertinent factors.

The general rule is that when a contract provides that one party shall render services to another, or shall “work” for another, but does not specify a definite time or prescribe conditions which shall determine the duration of the relationship, the contract may be terminated by either party at will. Where the tenure of employment is not conclusively shown by the contract, the presumption is that the employment is at will, and the party relying on such a contract must overcome the presumption by showing facts and circumstances establishing some tenure of employment. 38 Tex.Jur.2d, Sec. 8, page 142; Rosenfeld v. Rosenfeld, 390 Pa. 39, 133 A.2d 829, 66 A.L.R.2d 1013. As we view the record, defendant failed to present any evidence to overcome the presumption that the salary agreement in question was terminable at will and therefore failed to establish a cause of action for breach of contract.

Though not properly assigned as a cross point, defendant asserts in his brief that the judgment on his cross action is erroneous in that it failed to allow him his salary from the date of the termination thereof on August 3, 1962, until the date of the final judgment in addition to damages. In Vangel v. Vangel, supra, a similar contention was made. The partnership agreement there relied upon by the defendant was as follows :

“The parties shall from time to time agree upon a fixed amount to be drawn by each party by way of a drawing account, living expenses or wages.”

The court in overruling the defendant’s contention made the following observation which we think is likewise applicable here:

“ * * * examination of the quoted part of the partnership agreement clearly indicates that although the fixing of compensation for each of the partners was in the contemplation of the parties, it was cast in the form of an agreement reserving this matter for future determination. However, the parties were unable to reach an agreement on this deferred subject. Under such circumstances, ‘neither law nor equity provides a remedy for breach of an agreement to agree in the future.’ * * * ”

If an essential element of the contract is reserved for the future agreement of both parties, the promise can give rise to no legal obligation until such future agreement. Williston on Contracts, (1936) Vol. I, page 131. The amount of Horn’s salary was subject to future agreements. At the meeting on August 3, 1962, the parties were unable to unanimously agree and as a result there was no contract for the payment of salaries in any amount after such date and plaintiffs’ claim is therefore without foundation. The point is overruled.

Defendant Horn having failed to present any evidence which would entitle him to a recovery on his cross action, it follows that the trial court was in error in submitting the question of a breach of the contract to the jury and in refusing the plaintiffs’ motion for judgment non ob-stante veredicto. Consequently, that portion of the judgment granting defendant, D. T. Horn, Jr., $50,000.00 damages on his cross action must be reversed and rendered in favor of the plaintiffs.

That portion of the judgment which purports to finally award defendant the sum of $45,802.71 will be reformed so as to reflect that defendant, D. T. Horn, Jr., shall take nothing.

Since the plaintiffs recovered judgment of and from the defendant in the amount of $13,606.92 representing funds appropriated by him, while on the other hand defendant Horn recovered judgment of and from the plaintiffs for only $9,409.63 representing his interest in the partnership, it will be necessary to further reform the judgment so as to allow the plaintiffs to recover judgment against the defendant, D. T. Horn, Jr., for the difference, which amounts to the sum of $4,197.29, and it is so ordered. In all other respects, the judgment of the trial court is affirmed.

The judgment of the trial court is therefore reversed and rendered in part; reformed, and as reformed, affirmed.