text:
    SOUTHERN LIFE AND HEALTH INSURANCE COMPANY, Appellant, v. Merla Mae Chevis SIMON et al., Appellees.
    No. 6846.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 2, 1967.
    Rehearing Denied March 1, 1967.

      Barnes & Barnes, Beaumont, for appellant.
    George W. Brown, Jr., Beaumont, for appellees.
   PARKER, Justice.

Southern Life and Health Insurance Company issued a “Limited Accident Industrial Policy” to Austin Chevis (with his wife Merla Mae Chevis named as beneficiary). Chevis was accidentally killed. Merla Mae Chevis Simon (widow of the insured) and her husband, Joseph Simon, Jr., sued the insurance company to recover for the accidental death of the insured under the policy. The trial was before the court without a jury. Judgment was rendered for the full death indemnity provided by the policy, together with statutory penalty, interest and attorney’s fees. The insurance company in its appeal does not contest the award of interest, damages, statutory penalty and attorney’s fees if its primary liability under the policy is affirmed.

The policy itself provides:

“2. Or if the Insured shall by -collision of or any accident to any railroad passenger car, passenger steamship, public omnibus, street railway car, public taxicab, public automobile, public stage or public bus which is being driven or operated at the time by one regularly employed for that purpose, and inside of which the Insured is legally traveling; any private horse drawn vehicle or private motor driven automobile, inside of which the Insured is riding or driving, or any motor driven truck, inside of which the Insured is riding or driving, or if a street car motorman or street car conductor in addition to being cove(pd as an individual by all the above provisions of the Policy he shall also be covered, while actually operating a street car in the line of his employment when injured by collision of or accident to the street car which he is operating; or by any accident to any passenger-elevator, inside of which the Insured is riding as a passenger; provided, that in all cases referred to in this paragraph there shall be some external or visible injury on the said vehicle or elevator of the collision, or accident, provided that an injury to the tire on such vehicle shall not be considered an injury to the vehicle, and provided that this Policy does not cover Insured while riding in or on a motorcycle or in or on any side car or other attachment to a motorcycle — and provided that except as to railroad passenger cars, passenger steamships, street cars and elevators the collision or accident must occur on a public highway as heretofore defined.
“3. Should the Insured suffer any of the specific losses set forth below, the Company will pay the sum opposite such loss, and such payment shall be a full settlement under this Policy, which shall be delivered up for cancellation.

In the early morning of February 27, 1962, the longshoreman Austin Chevis was fatally injured on the “SS Lena Lucken-bach”. According to the Coast Guard Inspection Certificate the “Luckenbach” is certified to carry 12 passengers. Her passenger accommodations consist of 6 cabins, each equipped with private bathroom facilities with 2 pull-down bunks that serve as seats in the daytime and make into beds at night. The ship has a passenger lounge. The passengers eat their meals with the officers in the saloon messroom. Some recreational facilities are provided for the passengers. When she was in the inter-' coastal run and up until May of 1961 she always carried from 4 to 12 passengers. When the accident occurred there were no passengers aboard but all of the ship’s facilities for carrying passengers were intact and ready to receive passengers at that time. The charter party under which the vessel was then being operated had the right to carry passengers. The insurance company does not controvert that the “Luckenbach” “was equipped to be a passenger steamship” or that “she had been a passenger steamship” but does assign as error the court’s finding that she “was a passenger steamship”. This contention of the insurance company is based upon the fact that at the time of this accident the steamship was operating only as a freighter. No Texas authorities are cited by the insurance company in support of its contention. In Continental Cas. Co. v. Warren, 152 Tex. 164, 254 S.W.2d 762 (1953), a policy was construed which provided indemnity against loss resulting from injury sustained in consequence of riding as a passenger in an airplane. The question before the court was whether the death of an airplane pilot in an accidental crash of the plane under his control was a passenger and covered by the policy. The court concluded that the word “passenger” as used in the policy covered an occupant of the plane. The court said at p. 763:

“But for the fact that insurance policies are governed by the special rule of construction, which is a familiar part of our jurisprudence, we might, indeed, hold either that the interpretation against liability of the insurer should prevail or that, the policy being ambiguous, there is a fact issue as to what was intended. Yet the rule, of course, applies, and under it the insurer may not escape liability merely because his or its interpretation should appear to us a more likely reflection of the intent of the parties than the interpretation urged by the insured. The latter has to be no more than one which is not itself unreasonable. Lloyds Casualty Insurer v. McCrary, 149 Tex. 172, 179, 229 S.W.2d 605, 609. A related or subsidiary rule is ‘that exceptions and words of limitation will be strictly construed against the insurer.’ Providence Washington Ins. Co. v. Proffitt, 150 Tex. 207, 239 S.W.2d 379, 381. For all the particular considerations reasonably indicating that the pilot is not covered, there are yet others making it not unreasonable to say that he is, and that the insurer is therefore liable.”

and at p. 767:

“Since, therefore, the intent of the policy to exclude the pilot is not so certain as to make it wholly unreasonable to say that he was included, the judgment of the Court of Civil Appeals so holding should be affirmed and it is so ordered.”

The policy states that it will provide benefits only for injuries sustained “strictly in the manner hereinafter stated”, that the liability assumed is fixed by “various conditions, exceptions and limitations” to be “literally construed”, with none to be stricken out or ignored or disregarded in its interpretation, either on the ground that they are ambiguous or wholly or partially repugnant or for any other reason, but each is to be given its full and literal meaning.

The full and literal meaning of “passenger steamship” is finding out its true sense, employing the natural or usual construction and implication of the words. The “SS Lena Luckenbach”, when carrying freight only, is not just a freighter. It is also a passenger steamship. Under the policy and the decisions of the Supreme Court of Texas, in construing “passenger steamship” the fact the “Lena Luckenbach” was equipped to carry and had carried passengers cannot be disregarded. The trial court correctly found it was a passenger steamship, although designed and equipped for the dual purpose of carrying freight and passengers.

Paraphrasing Warren and Mutual Benefit Health and Accident Association v. Hudman, 385 S.W.2d 509 (Tex.Civ.App. 1964) at page 514:

If the insurance company had intended to limit its coverage to ships designed exclusively for the transportation of passengers it was incumbent upon it to so write in its policy. Not having done so, we hold this steamship is a passenger steamship within the meaning of the policy in the suit.

This interpretation is one which in itself is not unreasonable. The test in Continental Cas. Co. v. Warren, supra, is analyzed in United Services Life Ins. Co. v. Delaney, 308 F.2d 484 (5th Cir.) on page 487:

“The majority acknowledged that each of the arguments advanced by the dissenters had the appearance of validity, taking up each facet of the dissenting opinion and disposing of its arguments one by one. It emphasized repeatedly the” firmly established Texas rule that those who sell insurance policies and have the privilege of writing them had better use the clearest of language if they would escape liability to claimants who, under the common parlance of the layman, are able to bring themselves within the ambit of the risks insured against by any argument approaching reasonableness.”

The trial court correctly found as a fact that Austin Chevis was legally traveling aboard the “SS- Lena Lucken-bach”. The evidence is undisputed that Austin Chevis was killed by collision of or accident to the motor driven truck inside of which he was- riding or driving which was inside the ship when he was killed and that he was legally aboard the vessel. Driving this truck he was moving from point to point inside the ship. The policy does not state that the ship itself must have been traveling or -that the insured had to be a passenger on the ship if he was inside a motor driven truck, inside of which the insured is riding or driving.

The trial court correctly found as a fact that at the time Austin Chevis was killed the “SS Lena Luckenbach” was being operated by persons regularly employed for that purpose. Chevis was legally employed to drive the truck. The ship was in commission, her officers were aboard and in charge of and actually operating her. The ship’s officers and crew on board were regularly employed for that purpose, the number of crewmen being 45 including the officers. The deck crew had been called to secure the ship for sea. The ship had steam up. Electric power generated by an engine was being kept on the winches. The main engine was in the process of being readied for sailing time. At the time of the accident Chevis was driving a fork lift truck used in loading the ship on what is called the shelter deck, sometimes designated as the upper tween deck. A fork lift truck has four wheels. This device fell 14 feet through the hold and came to rest between the queen beam and the coaming. It was in that accident Chevis was killed. There was visible damage to the ship. The first queen beam was severely sprung with a resulting bow in the end of the ship. The hatch boards in the upper tween deck were broken. After the accident the lift truck was upside down, evidencing “some external or visible injury” to it. Chevis was visibly dead, the body resting upon some cargo. The body was placed in a basket and brought out of the hold. The trial court correctly found that: “at the time of the injuries which resulted in the death of the insured,” he was riding and driving a motor driven truck and was killed as a result of bodily injuries received by collision of and accident to a motor driven truck inside of which he was riding or driving.

The insurance company did not plead as a defense, which it now urges, an exclusion in the policy as to “injuries, either fatal or nonfatal, of which there is no visible contusion or wound on the exterior of the body of the insured causing death.” Such exclusion is a risk or cause coming within a particular exception to the general liability. Under Rule 94, Texas Rules of Civil Procedure, this defense was waived. No fraud is involved in this case. There is no question as to what caused the death of Chevis. There could be no simulated injuries with a person instantaneously killed under these circumstances. American Jurisprudence, Vol. 29A, p. 318, § 1172, and pp. 316, 317, § 1170. Visible is used in the broad sense of perceptible or evident. A contusion of the body is a disorganization of a part of it without breaking of the skin. It was evident and discernible Chevis was dead with his body disorganized. This provision in the policy in any event is inapplicable in a case involving instant death. Hawkinson v. Order of United Commercial Travelers, 20 S.W.2d 101, 103 and cited authorities (Tex.Civ.App. 1929, n. w. h.) ; Royal Casualty Co. v. Nelson, 153 S.W. 674, 676 (Tex.Civ.App. 1913, n. w. h.).

Chevis was killed “by collision of or any accident to” the motor driven fork lift truck, inside of which he was riding or. driving. There was some external or visible injury to the ship and to the truck, as a result of the accident. Both vehicles were being operated at the time of the accident by persons, respectively, regularly employed for that purpose. Chevis was legally traveling in the truck while legally aboard the ship. Since the collision or accident involved a passenger steamship, the policy did not require that it occur on a public highway for liability under the policy to be established. It would be most unreasonable to deny liability under the policy and the entire record.

Each and all of the points of error of Southern Life and Health Insurance Company are overruled.

Judgment of the trial court affirmed.


source: Caselaw Access Project

author: CLAUDE WILLIAMS, Justice.

license: Public Domain

text:
    Jack SCOTT, Administrator of Estate of Lolithia Pauline Scott, Appellant, v. INDUSTRIAL LIFE INSURANCE COMPANY, Appellee.
    No. 16848.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 27, 1967.

      George M. Elliott, of Brown, Elliott & Brown, Dallas, for appellant.
    J. L. Shook and John D. Crawford, of Locke, Purnell, Boren, Laney & Neely, Dallas, for appellee.
   CLAUDE WILLIAMS, Justice.

This appeal involves a policy of credit life insurance issued pursuant to Art. 3.53, Insurance Code, Vernon’s Ann.Civ.St. On March 3, 1964 Lolithia Scott, as owner of Park Cities Beauty Salon, executed a promissory note payable to Bank of Dallas in the sum of $3,517.68. The note was also personally signed by her son, Jack M. Scott, as comaker. For the purpose of securing the loan the Bank of Dallas, as issuing agent for Industrial Life Insurance Company, put in force credit life insurance in the amount of $3,000 under Group Policy No. G-2898 which had theretofore been issued by Industrial Life Insurance Company to the Bank of Dallas. Premium was paid by withdrawing funds from the account of Mrs. Scott. At the time of the consummation of the loan Mrs. Scott was under treatment for cancer from which she died on April 1, 1964. Following her death Jack Scott qualified as administrator of her estate and he, together with the Bank of Dallas, made demand upon Industrial Life Insurance Company for the proceeds of the credit insurance coverage. The insurance company denied liability, whereupon this action was instituted by Jack Scott, Administrator, against Industrial Life Insurance Company seeking judgment for the amount of the policy, statutory penalty and attorney’s fees.

The insurance company answered and denied that it was liable on its Group Master Policy No. G-2898 issued to the Bank of Dallas because such policy contained the following insuring condition:

“HI. INSURING PROVISIONS
* * *
“(7) No insurance shall take effect on the life of any Debtor who on the date his indebtedness is created is not alive and in sound health. The Company will refund any premium paid for any period not covered by the policy.”

The defendant contended that inasmuch as Lolithia Pauline Scott was not in sound health on the date her indebtedness to the bank came into being that such policy did not afford coverage. By way of cross-action against the administrator and also the Bank of Dallas, the insurance company, pleading the specific insuring health condition, above recited, sought cancellation of the insurance policy on the life of Lolithia Pauline Scott. It also alleged that the premium for such policy had been refunded.

The Bank of Dallas filed its answer in which it asserted that it was entitled to receive out of the recovery on the policy the first $3,000, plus interest and attorney’s fees and adopted the pleadings and prayer of the original plaintiff against the insurance company.

By trial amendment the administrator alleged that the insurance company had waived or, in the alternative, was estopped from asserting that Mrs. Scott, at the time the indebtedness was created, was not in sound health because the insurance company and its agent had failed to make inquiry concerning the health of the deceased and further had failed to apprise the deceased of the restriction on health contained in the policy.

During the trial of the case the defendant insurance company asked and obtained leave of the court to file a trial amendment in which it was alleged that the debtor, as defined in the credit insurance policy involved, was Jack M. Scott, a person younger than his mother, Lolithia Scott, both of whom were co-makers on the instrument creating the indebtedness of the Bank of Dallas. One of the insuring conditions contained in the policy was:

“III. INSURING PROVISIONS

The insurance company asked the court to render a judgment declaring that Jack M. Scott, the younger of the two debtors, to be the only insured.

In answer to the above contention the administrator, by trial amendment, contended that the insurance company had waived or, in the alternative, was estopped from asserting or relying upon the insuring condition for the reason that the insurance company failed to apprise the plaintiff of such condition, nor did the insurance company or its agents inquire with respect to such condition and that the plaintiff relied, and paid consideration therefor, upon the fact that the deceased, Lolithia Pauline Scott, was the insured in the contract “in that the said Lolithia Pauline Scott was the lone debtor of the obligation inasmuch as all consideration was paid to her and for her benefit.”

Following trial before the court without the aid of a jury, judgment was rendered denying the administrator and the Bank of Dallas any recovery. It was further ordered that the insurance company have judgment cancelling and holding for naught any insurance on the life of Lolithia Pauline Scott by virtue of Group Master Policy No. G-2898. From this judgment Jack Scott, Administrator of the Estate of Lolithia Pauline Scott, perfected an appeal. The Bank of Dallas has not appealed.

The trial judge filed comprehensive findings of fact and conclusions of law sustaining the judgment. In several of his points of error appellant administrator has challenged these findings and conclusions. The Supreme Court in Brown v. Frontier Theatres, Inc., 369 S.W.2d 299, reiterated the rule which governs us in considering appellant’s points which attack these findings and conclusions, as follows:

“In determining whether the trial court’s findings are supported by any evidence of probative value, we will give credence only to the evidence favorable to the findings and will disregard all evidence to the contrary. The findings of fact and the conclusions of law will be construed together; and if the findings of fact are susceptible of different constructions, they will be construed, if possible, to be in harmony with the judgment and to support it.”

By his first four points of error, briefed together, appellant contends that it was error for the trial court to permit appellee to file its trial amendment setting up a new defense to the effect that Jack Scott was, in fact, the named insured under the credit insurance policy and in finding as a matter of law that the condition in the policy precluded recovery by appellant on the death of Lolithia Pauline Scott.

Rule 66, Vernon’s Texas Rules of Civil Procedure, expressly authorizes the trial court to allow amendment to pleadings and even directs that the court shall do so freely when the objecting party fails to satisfy the court that the allowance of such amendment would prejudice him in maintaining his action. The discretion vested in a trial judge to permit the filing of trial amendments will not be disturbed absent clear evidence of abuse of such discretion. Vermillion v. Haynes, 147 Tex. 359, 215 S.W.2d 605; Gulf, C. & S. F. Ry. Co. v. Bliss, Tex.Sup.Ct., 368 S.W. 2d 594.

The record fails to disclose any abuse of discretion on the part of the trial judge in this instance. He permitted ap-pellee to amend and also granted leave to appellant to file a trial amendment in which he could reply thereto. Appellant did not ask for a postponement or continuance. Appellant’s contention in this regard is therefore without merit and is overruled. Great American Life & Health Ins. Co. v. Mayer, Tex.Civ.App., 373 S.W.2d 391.

The main thrust of appellant’s contention under these points seems to be that since appellee wrote a letter denying liability under the policy in question solely for the reason that Mrs. Scott was not in sound health that such company is deemed to have waived any other policy provisions or defenses and the trial court therefore should not have permitted the additional defense under the second quoted insuring condition relating to policy coverage to be asserted in its trial amendment. It should be noted that while this contention was advanced in oral objection to the filing of appellee’s trial amendment such was not urged in appellant’s trial amendment which did set forth other specific objections.

It is true, as now contended by appellant in his brief, that our courts have recognized the rule of law to the effect that where 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 considered waived. However, this rule is modified to the effect that it is inapplicable where the insured has not acted upon the company’s position of denial as announced and has not incurred expense or loss or detriment in consequence thereof. National Aid Life Ass’n v. Murphy, Tex.Civ App., 78 S.W.2d 223, 227; American Employers’ Ins. Co. v. Brock, Tex. Civ.App., 215 S.W.2d 370, 375. In Galveston County v. Hartford Fire Ins. Co., Tex. Civ.App., 231 S.W.2d 684, the court considered the rule here contended and after citing many authorities held that where the record failed to reveal that the insurance company’s denial of liability on a single issue caused or induced the assured to incur expense or trouble waiver would not apply. Our review of this record reveals no evidence to demonstrate the application of the rule sought to be applied by appellant.

In his brief appellant makes a statement that he relied upon the sole defense of appellee by allowing the claim of the Bank of Dallas against the Estate of Lolithia Pauline Scott and also permitting a judgment against the estate in favor of the bank. While these matters are alleged we find no evidence in the record to support the said allegations. Statements of counsel do not constitute evidence. Accordingly, we hold that ap-pellee’s denial did not constitute a waiver or estoppel to assert additional grounds of defense avoiding the policy.

We find ample evidence in this record to support the trial court’s finding and conclusion to the effect that Jack M. Scott was the insured under the contract of insurance sued upon rather than his mother, Lolithia Pauline Scott. The note introduced in evidence disclosed that it was signed by both the mother and her son, as co-makers. Mr. Donnell, an officer of the Bank of Dallas, testified that Jack M. Scott had signed the note with his mother and that Jack M. Scott was indebted to the bank. Obviously these facts disclose that there is more than one debtor to the bank for the obligation evidenced by the note. The policy contained an express insuring condition that there could not be more than one person to be insured on account of any one indebtedness. It also specified that where there were two debtors the youngest shall be the insured. These conditions are plain and unambiguous and must be enforced according to their terms. Ohio Oil Co. v. Smith, Tex.Sup.Ct, 365 S.W.2d 621.

In his fifth through tenth points of error appellant attacks the trial court’s findings and conclusions that appellee is not estopped, nor has it waived, reliance upon the policy provision with reference to sound health of the insured debtor. It is undisputed in this record that while James A. Donnell, an officer of the bank, was processing the loan for Lolithia Pauline Scott he made no inquiry as to her health and that neither he, nor any other employee or agent of the bank, made any representation about the health of Mrs. Scott to appellee insurance company. It is further undisputed that neither Jack Scott nor Lolithia Pauline Scott made any representations about her health to the appellee company; that no application for insurance was filed or filled out or required to be filled out by the Bank of Dallas on the life of Lolithia Pauline Scott; and that Lolithia Pauline Scott was never advised of the condition set out in the policy and that she was never supplied with either a copy of the policy or any other evidence thereof prior to her death on April 1, 1964.

Appellant contends that appellee is deemed to have waived the conditions asserted in subsections (3) and (7) of Paragraph III of the group insurance contract in force when Mrs. Scott borrowed the money from the Bank of Dallas and purchased the credit life insurance from appellee, and because of such waiver and in view of appellant’s otherwise full compliance with the terms of said policy, appellee should be estopped from denying liability.

Appellant relies upon well recognized authorities relating to forfeiture clauses in insurance contracts and also waiver of clauses in such contracts dealing with requirements preliminary to issuing policies. These cases have no controlling application to the facts here presented.

Appellee in this case does not assert a forfeiture of policy nor a breach of any policy requirements leading to the issuance of the policy. Appellee merely asserts and relies upon the well established rule of law that a contract of insurance, unambiguous in its terms, must be construed to give effect to the intention of the parties as expressed or apparent in the writing. Republic Nat’l Life Ins. Co. v. Spillars, Tex.Sup.Ct, 368 S.W.2d 92, 5 A.L.R.3d 957.

Appellant seeks to utilize the doctrine of waiver and estoppel to create a new contract between the parties. This he cannot do. In Great American Reserve Ins. Co. v. Mitchell, 335 S.W.2d 707, Tex. Civ.App., wr. ref., Justice Pope succinctly stated the applicable rule:

“Plaintiff’s claim and recovery run directly contrary to the settled Texas law of waiver and estoppel with respect to risks designated in an insurance policy. Waiver and estoppel may operate to avoid a forfeiture of a policy, but they have consistently been denied operative force to change, re-write and enlarge the risks covered by a policy. In other words, waiver and estoppel can not create a new and different contract with respect to risks covered by the policy. This has been the settled law of Texas since the decision in Washington Nat. Ins. Co. v. Craddock, 130 Tex. 251, 109 S.W.2d 165, 113 A.L.R. 854.”

The same rule was announced and applied by the late and lamented Justice Young of our court in Powell v. American Casualty & Life Co., Tex.Civ.App., 250 S.W.2d 744.

Since the trial court held, and we think rightfully so, that Mrs. Scott was not the real insured under the policy sued upon but rather her son, appellant’s contention relating to the policy provision of good health is of no consequence. In any event, we find no merit in appellant’s contentions presented.

By his last point appellant contends that the court erred in denying attorney’s fees and penalties. Since we have held that there was no legal basis for recovery on the policy sued upon in this case, it naturally follows that attorney’s fees are not properly recoverable.

We have carefully examined all of appellant’s points of error and finding the same without merit they are overruled and the judgment of the trial court is

Affirmed.


text:
    William E. GRACE, Appellant, v. Bennie Ray STARRETT et al., Appellees.
    No. 16844.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 20, 1967.
    Rehearing Denied Feb. 17, 1967.

      Neil Brans and Louis Wilson, of Brans, Higginbotham & Berry, Dallas, for appellant.
    Thomas Black of Maloney & Black, Austin, Hight, Bailey & Hight, Dallas, for ap-pellees.
   CLAUDE WILLIAMS, Justice.

Bennie Ray Starrett instituted this action individually and in behalf of his wife, Willie Mae Starrett, and as next friend for his minor daughters, Vickie Lea Starrett and Audrey Kay Starrett, against William E. Grace seeking to recover damages for both personal injuries and property damage sustained as a result of a collision between plaintiff’s automobile, driven by his wife, and an automobile driven by defendant. Trial was had with the aid of a jury which returned a verdict convicting defendant of negligence in several particulars which proximately caused the collision and exonerating plaintiff’s wife of contributory negligence. The total damages awarded by the jury amounted to $15,000 which the district judge reduced to a total of $13,100. Both parties agree that due to mathematical miscalculation the correct amount of the judgment should have been $12,100.

Defendant has appealed contending, in three points of error, that the judgment should be reversed because (a) the evidence is insufficient to support the verdict of the jury as to the amount of damages awarded; (b) that the trial court should have ordered a remittitur rather than reducing the amount of damages on his own motion; and (c) that plaintiff should not have been allowed to prosecute the-suit in behalf of his wife for her damages. We find no merit in any of these points and affirm the judgment, as modified.

Appellant makes no complaint concerning the issues of liability which were adjudged against him. Neither does he bring forward any assignments of jury misconduct. The main thrust of his attack upon the judgment is directed to the insufficiency of the evidence to support the various amounts of damages awarded the respective parties. Our resolution of the “insufficiency of the evidence” point has required us to examine the complete record in this case and evaluate the same in the light of the often repeated rule announced by our Supreme Court in In re King’s Estate, 150 Tex. 662, 244.S.W.2d 660, and elaborated by Chief Justice Calvert in his article, “ ‘No Evidence’ and ‘Insufficient Evidence’ Points of Error”, 38 Tex.L.Rev., p. 361.

The record reveals that appellee’s wife, Willie Mae, was twenty-six years old at the time of the trial and twenty-three years old at the time of the accident. Prior to the accident she was in good health and able to perform all of her household chores and duties. Since the birth of her first child she had remained at home but she was trained as a waitress and was capable of earning at least $60 per week in that trade. Prior to the accident she had no female troubles and bore her children normally and without difficulty. As a result of the collision she was wrenched from the steering, wheel and thrown under the dash of the automobile. She said she was “crushed and nervous and hurt and everything.” Immediately after the accident she was described as being hysterical, incoherent and “out of- her mind.” At the time of the collision she was approximately a month and a half pregnant and the night of the collision she suffered a miscarriage. Immediately after the impact she said she was “cramping and hurting” and started “spotting and flooding” which she explained was vaginal bleeding. She said that she still experienced trouble and had the same complaint in that area. She described the' condition as painful and it existed at the time of the trial. Such condition had interfered substantially with her household tasks and had definitely prevented her from seeking outside work as a waitress. Although she had carried and delivered her first two children in a perfectly normal manner, a pregnancy occurred between the time of the collision and the trial that was quite unusual in that the delivery was abnormal. Her doctor had advised her to “take it easy” and had administered pills which she said did not help her.

The jury awarded Mrs. Starrett the sum of $7,500 for her injuries but this amount was reduced by the court to $5,000, being the amount sued for by appellee.

Vickie Lea Starrett, appellee’s daughter, was five years old at the time of the accident and was sitting in the front seat of the car with her mother. Following the accident she was found in the street crying and suffering from a swollen and injured arm. Her face was skinned; her head was skinned and had a knot on it about the right temple. Several days later she became worse and her cuts and abrasions became infected. Shortly after the accident the little girl began having convulsions which she had never experienced prior to the accident. The mother took the little girl to a doctor who sent her to the Children’s Medical Center where a brain wave test was made. She was also examined by a doctor for her arm and fingers which had become swollen. She still has trouble with her arm. In December following the accident she was taken to a plastic surgeon who concluded that “it would be reasonable and probable that there had to be an operation on this condition of the arm” and that the total cost of the operation would be approximately $275. The doctor testified that the scar could be embarrassing to the child in her social life and that without the operation it would smooth out only slightly. Even with the operation he “could not assure them that it would be completely gone.” The mother testified that the little girl wakes up screaming in the night and despite her age and apparent normalcy she relapsed on her toilet training to the point that she “wouldn’t use the restroom at all” and is “still bad about it.”

The jury awarded the sum of $4,500 as damages to Vickie and also the sum of $400 for past and future medical expenses for her.

Audrey Kay Starrett, appellee’s daughter who was three years old at the time of the accident, was riding in the back seat of the automobile at the time of the collision and was thrown out of the back window and landed on the street. The child had a knot on her head and her face was bleeding. She was crying and skinned up. Her chest was mashed and as a result the child coughs and cries complaining of hurting. At the time of the trial the little girl “still has nightmares and cries a lot and is easier to take cold than she was on account of her chest.” At the time of the trial the child still had a knot on her head and to a lesser degree than Vickie has experienced the same trouble with toilet training.

The jury awarded Audrey Kay the sum of $1,600 damages for injuries and also $100 to her father for medical expenses.

Appellant sought to offer the testimony of the physician at Parkland Hospital who allegedly examined Vickie and Audrey immediately after the accident. The physician’s testimony was rather vague and he said, “I don’t remember this specific instance, we see some two hundred or three hundred patients a day.” He could not testify whether the injuries to the children were serious because there was no “adequate follow-up.” He described his examination as “a cursory one for emergency care only.”

As to damages to the automobile a witness who qualified on market value testified that immediately before the accident appel-lee’s automobile had a market value of $1,200 and immediately after the accident had a market value of $500. Appellant offered no testimony whatsoever to dispute this evidence. The jury awarded appellee the sum of $900 for automobile damage but this amount was reduced by the trial court to the sum of $500, being the amount claimed in the petition.

Appellant concedes that there is come evidence to support the damage verdict but earnestly contends that the testimony in support thereof is so weak and “the resultant findings thereon so excessive as to shock the conscience under such testimony and could lead one to think of nothing other than that the jury had ill will or prejudice or had in mind some type of punishment because of conduct on the part of defendant and appellant here.” However, appellant has brought forward no assignments complaining of jury misconduct based upon passion or prejudice or alleged ill will. We cannot agree with appellant that the damage judgments in this case are so excessive as to shock the conscience of the court.

In cases of this kind it has always been recognized that it is impossible for the complaining party to bring forward testimony supporting damages with mathemati-. cal certainty. The law requires only that the evidence be sufficient to enable the jury to estimate the loss or damages with reasonable certainty. As one court has so aptly phrased it:

“There has never been a fixed measure by which damages for pain and suffering can be gauged with any degree of certainty. Actually, the measure of damages in each case is a matter of opinion of the person or persons whose duty it becomes to fix those damages. Courts in most instances have always been reluctant to disturb the findings of a court or jury on such matters where there is any evidence to support it.” George C. Vaughan & Sons v. Dyess, Tex.Civ.App., 323 S.W.2d 261, err. dism.

This record reveals substantial evidence to support the jury’s award of damages. In such a case appellate courts are reluctant to interfere with such findings even though such court itself would have rendered a smaller verdict. Robinson v. Ashner, Tex.Civ.App., 357 S.W.2d 611, affirmed 364 S.W.2d 223; Texas & N. O. R. Co. v. Flowers, Tex.Civ.App., 336 S.W.2d 907; Houston & T. C. Ry. Co. v. McNamara, 59 Tex. 255.

By his second point appellant complains of the action of the trial judge in voluntarily reducing the jury’s award of damages to Willie Mae Starrett from $7,500 to $5,000 and in reducing the amount of automobile damages from $900 to $500. Appellant contends that the correct procedure would have been for the trial court to have required a remittitur pursuant to Rule 328, Vernon’s Texas Rules of Civil Procedure. We cannot agree with appellant. What the trial court really did was to comply with Rule 301, T.R.C.P., which specifically provides that the “judgment of the court shall conform to the pleadings, the nature of the case proved and the verdict, if any, and shall be so framed as to give the party all the relief to which he may be entitled either in law or equity.” The court recited in his judgment that the jury’s awards were being reduced to conform to the pleadings and evidence and this is precisely the case. Furthermore, even if it could be said that the trial court committed a procedural error the same is not shown to have resulted in the rendition of an incorrect judgment. Rule 434, T.R.C.P. Any complaint concerning a reduction of the jury’s award would come from appellee, rather than appellant. ■

In his third point appellant raises the novel proposition that since the passage of Art. 4626, Vernon’s Ann.Civ.St., effective August 24, 1963, which grants to a married woman the right to sue and be sued, the husband has been deprived of his historic right to bring an action in his own name for the wife’s personal injuries. Appellant cites no case which would enjoin appellee from bringing the action as he did but argues that unless the wife actually brings the suit, or joins therein, she might later assert another claim for. damages against appellant. We find no merit whatsoever in appellant’s contention and overrule the same. It has long been the law in Texas that the husband is the manager of the community estate and that damages recovered for the wife’s personal injuries are community property. Ellis v. City of San Antonio, Tex.Civ.App., 341 S.W.2d 508. We find nothing in Art. 4626, V.A.C. S. which would change or alter this rule of law.

As stated above, the judgment of the trial court must be modified so as to decrease the amount awarded appellee to the sum of $12,100. As so modified the judgment is

Affirmed.


author: FANNING, Justice.

text:
    W. H. AMES et al., Appellants, v. TEXAS GULF INDUSTRIES, INC., et al., Appellees.
    No. 7785.
    Court of Civil Appeals of Texas. Texarkana.
    Jan. 24, 1967.
    J. Edwin Smith, Houston, for appellants.
    Tom M. Davis, Baker, Botts, Shepherd & Coates, Houston, for appellees.
   FANNING, Justice.

W. H. Ames and Carl D. Smith, real estate brokers, doing business as Greater Houston Properties, sued Texas Gulf Industries, Inc., and Robert C. Lanier, for damages for alleged breach of an oral contract.

At the conclusion of plaintiffs’ evidence, the trial court withdrew the case from the jury and entered judgment that plaintiffs take nothing. Plaintiffs-appellants have appealed.

Appellants present five points on appeal where they contend to the effect that the trial court erred in withdrawing the case from the jury because (1) the action was not one for real estate commissions, (2) the action was not for an interest in real estate, (3) that the action was for compensation for personal services and damages for breach of an oral contract for the development and promotion of a real estate subdivision, (4) that the evidence raised the issue that the appellants entered into a valid and binding oral contract with Robert C. Lanier for the development, promotion and sale of land, and (5) that under the evidence the oral contract in question was not prohibited by the Statute of Frauds nor by the Real Estate Broker Act.

Plaintiffs-appellants’ pleading with respect to the alleged oral agreement was as follows:

“On or about August 9, 1963, the Plaintiffs and the Defendants entered into a contract agreement for the development, promotion and sale of approximately 1,929 acres of land in the Josiah Dunn Survey, Waller and Grimes Counties, Texas, and entered into a joint enterprise for this project. Under the agreement the Plaintiffs agreed to and did invest substantial monies and agreed to and did invest their skill, time, labor, judgment and enterprise. The Defendants invested the land involved.
“Under the agreement, contract and joint enterprise the Plaintiffs were to have 10 per cent of the gross proceeds of any sale of the land or any part thereof.”

Appellees’ position is in essence to the effect that appellants were real estate brokers who had no written promise, agreement or memorandum covering a commission as required by Vernon’s Ann. Tex.Rev.Civ.Stat. Article 6573a, § 28, and by their suit were attempting to recover a 10% commission for land they did not sell, by the device of applying a different nomenclature thereto, and that the undisputed evidence shows that appellants at all times material hereto were acting as real estate brokers, operating from their own office serving clients other than appellees, that the undisputed evidence shows that appellants were not employees of appellees, and that the undisputed evidence also shows that the elements to create a joint. venture under Texas Law were wholly lacking here, that appellants contributed nothing to the purchase price of the land, had no interest therein, and that under the undisputed evidence the trial court correctly sustained appellees’ motion for instructed verdict and correctly entered judgment for appellees.

Prior to August 9, 1963, the 1929 acres of land involved herein belonged to Walker, Griffin and Petty, residents of Montgomery County, Texas. Walker, a real estate broker, had an exclusive listing on the land and authorized appellants to sell it at $160.00 per acre. Appellants attempted to sell the land to various persons, including appellee Lanier. Following negotiations on August 9th and 10th, 1963, Lanier contracted to buy the property for $150.00 per acre. Later Lanier assigned his interest in the contract to Texas Gulf Industries, Inc., the other appellee, a corporation which was largely controlled by Lanier, its President and largest stockholder, and this corporation consummated the purchase on November 14, 1963. The corporation had notice of the alleged claims and demands of appellants.

Although appellants were instructed by the owners to try to sell the property for $160.00 per acre, they advised Lanier that they thought he could buy it for $150.00 per acre and appellants requested Lanier to pay them a 2½% commission. According to appellants, Lanier agreed to pay this commission, but this alleged agreement was not in writing. Lanier denied having made any agreement with appellants to pay them a 2½% commission.

The written purchase agreement with respect to the 1929 acres of land is signed by the three owners as seller, by Lanier as purchaser, and by appellant Ames for Greater Houston Properties, as agents. Article VIII of the agreement provides that appellants “are acting as seller’s agents in this transaction, and for such services * * shall be paid by seller a seller’s commission of two and one-half per cent (2½%) of the total purchase price to be paid under the terms hereof.” Neither this instrument nor any other written instrument provides for any commission to be paid by Lanier to appellants.

While the sale of the property was being discussed and before Lanier agreed to purchase it, Ames, Smith and Lanier considered the resale of the property. Appellants talked to Lanier about the possibilities and prospects of the land being resold by him under the Veterans Land Program for $350.00 per acre. Lanier testified to the effect that he told appellants to forget about their request for a 2½% commission incident to his purchase of the land, but that if they could sell the land under the Veterans Land Program for $350.00 per acre, and if appellants would cooperate with other brokers in selling the property and pay the advertising expense, he would pay them a 10% commission as the real estate agents with the understanding that no commission would be due appellants on such sales as Lanier might make to some of his friends. Appellants, on the contrary, contend to the effect that a verbal agreement was made by Lanier for them to have “a 10% working interest”, meaning 10% of the gross proceeds from the resale of the property. When asked what the difference was between the 10% that he and Smith claimed and a 10% commission, Ames testified: “I assume, sir, that at the moment it doesn’t involve anything more than a play on words, but we did not consider it a commission in the sense that we ordinarily just handle and sell a piece of property.”

It is clearly undisputed in the record that the alleged agreement was not reduced to writing, nor was there any memorandum evidencing the same signed by appellees, or either of them.

Article I of the original written purchase agreement between Lanier and the sellers of the 1929 acres, wherein appellants were real estate brokers and agents for the sellers, required Lanier to put up $10,000.00 earnest money and Article VIII provided that if the earnest money was forfeited, seller would pay appellants, as agents, 50% thereof. Lanier testified to the effect that when appellants first presented the purchase agreement to him, he told them that he would not agree to their getting $5,000.00 of the earnest money if he signed the agreement and thereafter did not go through with the purchase. Appellants agreed with Lanier that if the earnest money was forfeited, they would return to him the $5,000.-00 which they would get under Article VIII. Later that agreement was reduced to writing, signed by appellants and delivered to Lanier.

Appellant Ames testified to the effect that the agreement to waive appellants’ part of the earnest money in the event Lanier did not go through with the purchase was part of the inducement to get Lanier to agree to buy the land. The sale of the 1929 acres was consummated by Texas Gulf Industries, Inc., the corporation of which Lanier was President, hence the earnest money was not forfeited, and appellants received their commission from the seller for the sale of the land.

After Texas Gulf Industries, Inc., purchased the land in question, appellants did not make any sales of any portions of same. When Lanier had a prospective purchaser for the property he called appellants and told them of the prospect and gave them a specified period of time in which to produce a purchaser if they could. Appellants did not produce any purchaser or anyone willing to enter into a contract to purchase. Thereafter, Lanier personally sold all of the land for a profit. Appellants made demands for their alleged 10% prior to the closing of such sales and appellees have refused all of such demands.

After carefully reviewing and analyzing all of the evidence adduced by appellants we have reached the following conclusions:

1. The evidence is undisputed that appellants did not contribute anything toward the purchase of the 1929 acres in question.

2. The evidence is undisputed that appellants were real estate brokers and were not employees of appellees.

3. The evidence is undisputed that the control of all transactions concerning the disposition of the land was exclusively in Lanier and his corporation, and that appellants were not obligated to share any losses which Lanier or the corporation might sustain in acquiring, developing and thereafter disposing of the property.

4. The evidence is undisputed that neither Lanier nor appellee corporation signed any character of written agreement or memorandum covering a commission in favor of appellant real estate brokers, as required by Tex.Rev.Civ.Stat.Ann., Article 6573a, § 28.

It is clear that appellants not having contributed anything to the purchase price of the land in question owned no interest therein, and in fact they have not claimed, and do not claim, any interest in the land.

We hold that under the undisputed evidence in the record that appellants, who had no control over the disposition of the land and who were not obligated to share in any losses which Lanier or the corporation might suffer in the acquisition, development and thereafter selling or disposing of the land, were not joint adventurers with appellees in the acquisition, development and sale of the land. In this connection see the following authorities: Holcombe v. Lorino, 124 Tex. 446, 79 S.W. 2d 307 (1935); Luling Oil & Gas Co. v. Humble Oil & Refining Company, 144 Tex. 475, 191 S.W.2d 716 (1946); Brown v. Cole, 155 Tex. 624, 291 S.W.2d 704, 59 A.L.R.2d 1011 (1956).

It is our further view that the alleged oral agreement which appellants testified to, actually amounted to nothing more than a verbal listing with them, as real estate brokers, of the property in question, to be sold for a 10% commission, out of which appellants were to bear advertising, sales and some of the promotional expenses. We hold that such verbal agreement was not enforceable by reason of the provisions of Sec. 28 of Article 6573a, Tex.Rev.Civ. Stat.Ann., which reads in part as follows:

“No action shall be brought in any court in this State for the recovery of any commission for the sale or purchase of real estate unless the promise or agreement upon which action shall be brought, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith or by some person by him thereunder lawfully authorized.”

Also in this connection see the following authorities: Denman v. Hall, 144 Tex. 633, 193 S.W.2d 515 (1946); Jackson v. Key, Tex.Civ.App., 223 S.W.2d 717, writ ref’d (1949); Great Western Drilling Company v. Simmons, 157 Tex. 268, 302 S.W.2d 400 (1957).

The case of Berne v. Keith, Tex.Civ. App., 361 S.W.2d 592, writ ref’d, n. r. e. (1962), relied on by appellants, is not in point as appellants in this cause were not employees of appellees but were real estate brokers.

The case of Palmetto Lumber Company v. Gibbs, Tex.Civ.App., 52 S.W.2d 120 (1932), affirmed 124 Tex. 615, 80 S.W.2d 742, 124 Tex. 615, 82 S.W.2d 376, relied on by appellants, involved a joint venture and is not in point because under the undisputed evidence in the case at bar appellants and appellees were not joint adventurers.

The case of Newton v. Gardner, Tex. Civ.App., 225 S.W.2d 598, writ ref’d, n. r. e., (1949), relied on by appellants, involved a suit by plaintiff to obtain an interest in oil and gas leases. In such case the court held that there was an oral agreement between plaintiff and one of the defendants for future joint acquisition of leases in the defendant’s name, with an understanding that plaintiff would have an overriding royalty interest and such an agreement was not within the Statute of Frauds. This case is clearly distinguishable from the facts in the case at bar.

The case of Martin v. Morrison, Tex. Civ.App., 260 S.W. 893, writ dism’d, (1924), relied on by appellants, is distinguishable because it involved a joint venture, and as hereinbefore held in the case at bar, no joint adventure was involved here.

Finding that the trial court entered a correct judgment, said judgment is accordingly affirmed.

Affirmed.


author: BARROW, Chief Justice.

text:
    Jim MORRIS, Appellant, v. J. I. CASE CREDIT CORPORATION et al., Appellees.
    No. 14541.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 18, 1967.
    Rehearing Denied Feb. 23, 1967.

      Waitz, Bretz & Collins, San Antonio, for appellant.
    Trueheart, McMillan, Russell & Hoffman, San Antonio, for appellees.
   BARROW, Chief Justice.

Appellee J. I. Case Credit Corporation, alter ego of appellee J. I. Case Company, filed this suit to recover balances due it by its former franchised dealer, appellant, Jim Morris, d/b/a Industrial Machinery Company, under several written instruments of indebtedness and on an open account. Judgment was rendered non obstante vere-dicto, whereby appellee Case Credit recovered the sum of $103,836.57, together with interest, and attorneys’ fees in the sum of $729.97. The sum of $29,429.87 in possession of the District Clerk as the result of a’Judicial "sale;-under,trust receipts given Case Credit by Morris, was ordered delivered to Case Credit to be applied on this judgment.

Appellant, Morris, asserts by five points of error that under the undisputed evidence, as well as by the findings of the jury, the dealership contracts between Morris and the Case Company, together with the course of conduct between the parties, enabled Morris to obtain the exclusive right to sell Case machinery in Bexar and other counties in violation of the Texas Anti-Trust Laws, and hence all transactions were illegal, void and unenforceable.

A similar contention was asserted in Climatic Air Distributors of South Texas v. Climatic Air Sales, Inc., 162 Tex. 237, 345 S.W.2d 702 (1962), wherein the Supreme Court held that the granting and accepting of the exclusive right to sell a manufacturer’s product within a given territory is made a violation of the anti-trust laws and is void and unenforceable. The Court upheld a summary judgment denying the manufacturer recovery for the price of air-conditioning units sold to its distributor under such a contract. See also Patrizi v. McAninch, 153 Tex. 389, 269 S.W.2d 343 (1954); Ford Motor Co. v. State, 142 Tex. 5, 175 S.W.2d 230 (1943); Jackson Brewing Co. v. Clarke, Tex.Civ.App., 375 S.W.2d 352, writ ref’d n. r. e.; Grand Prize Dist. Co. of San Antonio v. Gulf Brewing Co., Tex.Civ.App., 267 S.W.2d 906, writ ref’d; 13 Baylor Law Review 295.

The Case Company (all references herein are to the parent corporation unless the Case Credit Corporation is specifically designated) is incorporated under the laws of Wisconsin for the purpose of manufacturing and selling machinery. Although it had manufacturing plants in several states, its home and general office was in Racine, Wisconsin. This case relates solely to the Company’s sales activities which were carried on through a vast and highly organized structure.

Case sold two types of equipment — agricultural and industrial — and each type had its own sales and service organization under a general manager. These two general sales managers were under Mr. Reid, Vice-President for Marketing, and he therefore had control over both organizations. Under Mr. Cody, who was general sales manager industrial, were several administrative and departmental assistants and three regional managers. Mr. McMaster was manager of Midwest Division, Industrial, which area included Texas, and as such directed the activities of the Case Company Industrial field organization in line with company policies, programs and sales objectives. Mr. Hodgson was one of eighteen District Managers Industrial in the United States, and his territory included all of south and southwest Texas. Among other duties, he was responsible for securing, establishing and developing a proper dealer organization to obtain a representative share of market potential. He was also responsible for proper reporting of field activities and programs on forms and other documents as required.

On March 23, 1961, Morris became a franchised dealer for Case. At this time Case dealer contracts were in four classifications, and Morris executed a heavy construction dealer industrial contract and a light construction dealer industrial contract with Case. Effective November 1, 1961, Case changed the form of its dealer contracts to reclassify its equipment into three classifications: agricultural, industrial and utility. Under this new classification, both the industrial and agricultural divisions could appoint utility dealers; and all dealers signed new contracts. On December 28, 1961, Morris signed two new contracts appointing him an industrial and utility dealer.

All accounts sued on by Case Credit Corporation relate to transactions occurring after December 28, 1961. Case urges that the rights of the parties must be governed solely by the terms of the December, 1961, contracts, which were never modified in writing, as required by their terms. The new industrial and utility contracts are somewhat similar, and the terms of each are contained- in booklets consisting of twelve printed pages plus four cover pages. One significant difference between the two contracts is Paragraph 13 in each. In the industrial contract the dealer covenants that he will employ adequate and competent sales and service personnel to enable him to attain the sales potential and uphold the good will and reputation of the Company “in the territory assigned to him as follows: See attached.” A letter from Morris, agreeing to work twenty designated counties and the counties enclosed thereby, is attached to the contract. In the utility contract the dealer covenanted to perform these acts “in Dealer’s trade area” and there is no list of counties attached to the contract. Morris does not contend that the December, 1961, contracts, by express terms, violate the Texas anti-trust statutes, but that these contracts are part of a course of conduct which enabled him to obtain exclusive territory.

In Ford Motor Co. v. State, supra, the Supreme Court held that any intentional course of conduct by the parties to a contract which accomplishes the result prohibited by our anti-trust laws, violates the same just as effectively as if it had accomplished such result by direct contract. Nor is this result avoided by a clause in each contract that any provision prohibited by the laws applicable in any state shall be ineffective to the extent of such prohibition. Patrizi v. McAninch, supra. We must, fore, examine this record to determine if there are findings, properly supported by pleadings and evidence, to establish that the parties entered into an intentional course of conduct to give Morris the exclusive right to sell Case products within a given territory in violation of the Texas antitrust laws.

The jury found that Hodgson and Morris pursued an intentional course of conduct which enabled Morris to obtain exclusive right to sell the Case Company line of industrial machines in Bexar County and certain other designated counties, and to sell its line of utility machines in Bexar County. It was further .found that Hodgson had apparent authority to act for Case when he pursued this course of conduct. Similar findings were made as to McMaster. The jury found, however, Reid, Vice-President of Case, did not have knowledge of the intentional course of conduct of either Hodg-son or McMaster, and did not answer the issue, conditionally submitted, as to whether Reid acquiesced in said course of conduct.

In Chastain v. Cooper & Reed, 152 Tex. 322, 257 S.W.2d 422, 427 (1953), the Supreme Court said: “The doctrine of apparent authority is based on estoppel, and one seeking to charge a principal through the apparent authority of an agent to bind the principal must prove such conduct on the part of the principal as would lead a reasonably prudent person, using diligence and discretion, to suppose that the agent has the authority he purports to exercise.” See also Pioneer Casualty Company v. Blackwell, 383 S.W.2d 216, 219, writ ref’d n. r. e.; Almar-York Co. v. Fort Worth National Bank, 374 S.W.2d 940, 943, writ ref’d n. r e. It is seen that the definition of “apparent authority” as submitted to the jury herein, substantially set forth the requisites which the Supreme Court found necessary in the Chastain case to charge a principal.

Case asserts at the outset the procedural complaint, properly preserved by its objection to the court’s charge, that there are no pleadings to support the submission of the issues relative to “apparent authority.” Nowhere in Morris’ pleading does he allege that Case is “estopped.” He does allege that the contracts were from time to time changed and varied by and through the duly authorized representatives of Case and Case Credit, acting within the scope of their apparent authority. Morris further alleged in detail the acts of the agents of Case which constituted the “intentional course of conduct” to give him an exclusive sales territory. In the absence of a special exception these allegations were sufficient to support the submission of issues of apparent authority.

The lengthy record in this case establishes that McMaster, Hodgson and Morris, primarily at the insistence of Morris, secured for Morris an exclusive distributorship for the industrial line throughout the San Antonio trade area defined by the counties listed by Morris, and that Morris became the only authorized dealer of the utility line for Bexar County. The evidence differs as to each line, and therefore each must be discussed separately.

Case urges that the terms of the March, 1961, contract were inadmissible and without probative force since all accounts sued on herein were incurred subsequent to execution of the December, 1961, contracts. These new contracts were executed for the purpose of reclassifying the equipment and not to change contractual terms then in existence. In response to a request for admission Case stated that it was necessary to change and revise its contracts to reclassify the groups of equipment into three categories. There is no provision in the new contracts requiring a change in relationship of the parties from that existing, and there is no evidence that there was at that time any change in their manner of operation. The trial court properly permitted the jury to consider the terms of the March, 1961, contracts.

The March, 1961, contracts expressly gave Morris a specific territory. Each provided that the designated equipment was “to be sold for industrial use only and for the territory of (twenty counties are listed) * * *.” Attached to each contract was a letter from Morris stating his desire and intention to represent Case in the area outlined by these twenty counties and the territory contained therein. Another provision of these contracts gave Case the right to withdraw any part of this territory upon Morris’ failure to properly function in same. This territory is the sáme as contained in Morris’ letter attached to and made a part of the December, 1961, industrial contract.

It is further seen by the course of dealings that this area was recognized as the exclusive territory of Morris for industrial equipment. The December, 1961, industrial contract contained a provision that in the event “Dealer resells goods purchased under the contract for direct delivery outside of Dealer’s territory, Dealer will pay to the Dealer in the territory in which delivery is made 5% of the Dealer list price.” This payment was for the latter’s assumption of warranty provisions. Mr. Mooney testified that he was the Case franchised dealer for the industrial line in the Corpus Christi trade area. Testimony was introduced that Mooney was forbidden by Hodgson from selling a machine to a San Antonio contractor and subsequently was required to return it to Corpus Christi. There was other testimony that Hodgson required Morris to remove an agent from Webb County, which was in Mooney’s territory, after Mooney complained.

Insofar as the industrial line is concerned, Case did not contend that it had any other dealer in the San Antonio trade area during the time in controversy. Reid was advised, early in 1962, by a Case agricultural dealer, that Morris had a newspaper ad published that Morris was the “exclusive dealer for Case industrial and utility equipment.” Reid advised the dealer in reply that the ad was false, in that said agricultural dealer had a utility franchise also “until his contract was terminated as of May, 1962.” There was no denial that Morris was the exclusive industrial dealer.

Insofar as the utility line is concerned, Morris was not given an exclusive distributorship by the contract of December, 1961, which was the only utility contract signed by him. As heretofore pointed out, Case provided that the utility line could be handled by both the agricultural and industrial divisions of its organizations. Morris repeatedly complained, through the industrial representatives (Hodgson and McMaster) that he could not compete with the agricultural dealers in sale of the utility line, and that without the utility sales he could not stay in business as an industrial dealer. Reid and other officials concerned with the overall direction of the Case Company were thereby forced to make the ultimate decision of whether there should be competition in the San Antonio area between the industrial and agricultural divisions on the utility line.

The Case decision, as stated by Reid in a letter of March 8, 1962, to an agricultural dealer whose utility line was can-celled effective May 8, 1962, was that it was absolutely vital that Case have industrial representation in the San Antonio area, and it was obvious that the heavy line could not live without the utility. Case determined that its future, at least in the San Antonio area, was in its industrial line rather than the agricultural line. The result was that the agricultural division can-celled the utility line of Spencer Bros. Equipment Co., although this San Antonio firm had for many years been one of its leading agricultural dealers, and had advised Reid that the cancellation of their utility contract would ruin the firm.

This cancellation left Morris as the exclusive industrial dealer in the San Antonio trade area and the only authorized utility dealer in San. Antonio. This fact was confirmed to Morris by a letter written by McMaster on the letterhead of the General Office in Racine, Wisconsin, with copy to Hodgson and Mr. Cody. This arrangement did not prove satisfactory to Morris, in that Mr. Brucks, who was a Case agricultural and utility dealer in Converse, Texas, commenced making utility sales in San Antonio and the San Antonio area by cutting the price under that quoted by Morris. Morris made many complaints through Hodgson and McMaster, and on one occasion Morris was given the amount of commission he would have earned on a sale which Brucks made to the San Antonio City Water Board. Finally, the utility contract of Brucks was cancelled in August, 1963. On January 23, 1964, McMas-ter wrote the purchasing agent of the City of San Antonio, advising that Morris was the only authorized dealer in the San Antonio area for distribution of Case industrial and utility products. A copy of this letter went to Reid, as well as to the general sales managers for both the agricultural and industrial divisions. On April 7, 1963, McMaster wrote Morris on the letterhead of the General Office, Racine, Wisconsin, advising that Bexar County had been assigned to the industrial division as their responsibility for the utility distribution.

Case urges that it is not responsible for the “course of dealings” by Hodg-son and McMaster with Morris as found by .the jury, in that the jury found that Reid did not have knowledge of same and no issue was submitted as to any other officer. This issue is unrelated to the defense of apparent authority, in that apparent authority as defined to the jury inquired of the conduct of Case. Rather, it relates to Morris’ defense of ratification. It cannot be said that the jury finding of apparent authority is without support in the evidence, in view of the many transactions herein-above enumerated which could only be performed in the general office of the Case Company and with the knowledge of Reid or other officials over both sales divisions. Hodgson was responsible for establishing and developing a proper industrial dealer organization. In this capacity he was the Case spokesman in San Antonio, and the record shows knowledge and acquiescence by Case, in that it carried out his request in cancelling the utility contracts of the agricultural dealers in Bexar County and left Morris as the only authorized dealer.

It is true that on December 31, 1963, Morris advised Reid that he did not expect Case to “build a wall around his area,” and in his reply of January 8, 1964, Reid assured Morris that there would continue to be “in line” competition. This competition was based on the fact that B rucks was able to buy utility machines from authorized dealers in other areas and deliver them in San Antonio. Bracks did this, however, without authority from Case. Neither Reid nor any other official over McMaster and Hodgson testified in this case.

When the record is considered under the “no evidence” test, as required to uphold Case’s judgment non obstante veredicto, there is evidence to support the issues that both Hodgson and McMaster, together with Morris, pursued an intentional course of conduct which enabled Morris to obtain the exclusive right to sell industrial machines in the San Antonio trade area and the exclusive right to sell utility machines in Bexar County; and that both Hodgson and McMaster had apparent authority from Case when each pursued this course of conduct. Marathon Oil Co. v. Hadley, Tex.Civ.App., 107 S.W.2d 883, writ dism’d. Such intentional conduct is prohibited by the Texas anti-trust statutes. Ford Motor Co. v. State, supra.

Case urges the Texas anti-trust laws have no application, since both the utility and industrial contracts provide that the goods purchased under the contracts are for resale at retail, and until full payment has been made therefor in cash to Case, title, ownership and right of property in such goods, together with right of possession in the event of default, shall be and remain in Case. Case urges that the anti-trust law applies only to outright sales, and therefore does not affect the transactions between it and Morris. See Barr v. Southwestern Wholesale Furniture & App. Co., Tex.Civ.App., 331 S.W.2d 343, no writ. It is seen on careful examination of the December, 1961, contracts that they are replete with references to the fact that the dealer purchased the goods from Case for resale and was not the agent of Case. Virtually every paragraph of these contracts contains language to that effect. Therefore, the reservation of title by Case was as security for the purchase price, and the transactions involved were sales and not shipments on consignment. Art. 5489, Vernon’s Ann.Civ.St. (repealed eff. June 30, 1966) ; Dallas Farm Machinery Co. v. Minneapolis-Moline Co., Tex.Civ.App., 324 S.W.2d 578; Grand Prize Distributing Co. of San Antonio v. Gulf Brewing Co., supra.

It is the clear policy of the Courts of this State to leave the parties where they find them when the transactions sued upon are based on conduct in violation of the anti-trust laws. 13 Baylor Law Review 295, and authorities there collected. We sustain appellant’s points that such conduct has been established by the jury’s verdict in this case. Appellant’s other points are immaterial.

The judgment of the trial court is hereby reformed to provide that the Clerk deliver the sum of $29,429.87, now in the registry of the court, to appellee Case Credit Corporation, and in all other respects the judgment is reversed and here rendered that the parties take nothing by their respective claims asserted herein. The costs of this appeal are taxed against the appellee Case Company.

      . Arts. 7426, 7428, 7437, Vernon’s Ann.Civ.St.

      . “By the term ‘apparent authority,’ as used in this charge, means such authority as a reasonably prudent person, using diligence and discretion, in view of the conduct of the J. I. Case Company, would naturally and reasonably suppose its employee to have.”

      . Rule 301, Texas Rules of Civil Procedure; Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206 (1950).


author: CHAPMAN, Justice.

text:
    MORRISON SUPPLY COMPANY, Appellant, v. M. W. HAMILTON & COMPANY et al., Appellees.
    No. 7677.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 30, 1967.
    Thorp A. Andrews, Robert C. Carson and Clyde M. Marshall, Jr., Fort Worth, for appellant.
    Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, James M. House, Amarillo, of counsel, for appellees.
   CHAPMAN, Justice.

This is a summary judgment case based on the contention in the motion for such judgment that the pleadings on file of plaintiff below, Morrison Supply Company, and the exhibits attached thereto as a part thereof show no genuine issue of fact against either of the defendants-ap-pellees as a matter of law.

Southwestern Bell Telephone Company and James O. Reynolds d/b/a Reynolds Plumbing & Piping Company were original defendants along with M. W. Hamilton & Company and Hartford Accident & Indemnity Company. The suit was severed and docketed separately as to the first two named defendants, who are not appellees here.

On July 21, 1964, Southwestern Bell Telephone Company, owners of Lots 8, 9 and 10, Block No. 138, Plemons Addition to the City of Amarillo, Potter County, Texas, entered into a construction contract with M. W. Hamilton & Company for the construction of a district office building on the named property. On the same day the construction company executed its performance and payment bond as principal, with Hartford Accident & Indemnity Company, as surety. It was agreed in the written contract that Hamilton would subcontract with James O. Reynolds d/b/a Reynolds Plumbing & Piping Company for the plumbing, heating, ventilating and air-conditioning, with the understanding that such subcontract had been approved by the telephone company.

To shorten this opinion and conform to the abbreviation designations of the parties, Southwestern Bell Telephone Company will be referred to hereafter as Telephone Company; M. W. Hamilton & Company as Hamilton; the bonding company as Hartford; James O. Reynolds d/b/a Reynolds Plumbing & Piping Company as Reynolds; and Morrison Supply Company as Morrison or appellant.

On August 13, 1964, under the requirement of Article 5472d, Vernon’s Ann. Texas Revised Civil Statutes, the contract and bond mentioned were filed for record with the county clerk of Potter County. On December 2, 1964, appellant, Morrison, sold some pipe, material and plumbing supplies to Reynolds for its part of the construction work in the building, which Morrison alleged totaled $7,537.69. It is for these materials Morrison seeks payment from Hamilton and Hartford.

On February 25, 1965, and April 8, 1965, Morrison for the first time notified Hamilton and Telephone Company respectively that Reynolds had not paid for the named materials. On the same date he notified Telephone Company; i. e., April 8, 1965, appellant filed an affidavit with the county clerk of Potter County claiming a lien on the building and land involved in the construction contract.

The only question before us is whether Morrison’s pleadings and the exhibits attached as part thereof raise a material fact issue, which, if found in its favor would entitle it to recover payment for the materials from Hamilton and Hartford.

The mechanic’s and material men’s lien laws applicable to this case may be found in Articles 5452, 5453 and 5472d, Chapter 382, S.B. 107, Page 863, titled “General and Special Laws of Texas 57th Legislature Regular Session 1961, First and Second Call Sessions 1961, and Volume 16 Vernon’s Ann. Texas Civil Statutes, Annotated at this writing in 1966 Cumulative Annual Pocket Part,” titled “Mechanics, Contractors and Material Men.” Article 5453, titled “Securing Lien” gives the requirements for perfecting a claim. Section 2 thereof provides the claim shall not be valid unless the claimant has complied with the applicable notice requirements thereafter set out, if such claimant is other than an original contractor, and that such notices shall be conditions precedent to the validity of such claims.

Subsection (1) under Section 2b provides if the claim consists of a lien claim arising from a subcontractor incurred debt, written notice by the claimant of the unpaid balance of such claim shall be made to the original subcontractor not later than 36 days after the 10th day of the month next following each month in which claimant’s material was delivered, except the instances of re-tainages provided in 2b “ * * * for which notices have been given in accordance with the preceding subparagraph,” which is 2a of Article 5453. Such notices are required to be sent “ * * * by certified or registered mail addressed to the owner, and where required by this article, to the original contractor, at their last known business or residence address.”

Hamilton and Hartford executed a payment bond as principal and surety respectively to protect Telephone Company’s lots from claims for labor or materials, as specified in Article 5472d. An examination of that article shows Morrison was required to give the same notices required in Article 5453. Section 1 thereof provides that where a written contract exists between the owner and original contractor and the contractor has furnished a bond in favor of the owner in a penal sum of not less than the total of the contract amount executed by the original contractor as principal, and a corporate surety (as here) conditioned for the prompt payment of materials, approved by the owner and filed in the office of the county clerk, such payment bond shall innure solely to all claimants either giving and filing the applicable notices and claims under Article 5453, or making claims provided for in Paragraph 4 of Article 5472d. (Emphasis added).

Section 4a provides for giving the original contractor all applicable notices of claims required by Article 5453, or to the corporate surety in lieu thereof.

It may thus be seen that both Articles 5453 and 5472d required that if Morrison furnished materials to anyone other than Hamilton, written notice in the manner provided must have been given to Hamilton (the original contractor) not later than 36 days after the 10th day of the month next following the month in which the materials were delivered. Since Morrison’s pleadings allege they were sold and delivered on December 2, 1964, to Reynolds, Morrison’s last day for giving notice to Hamilton was February 15, 1965, 36 days after January 10, 1965. Since such notice was not given until February 25, 1965, it was 10 days too late if Reynolds was a subcontractor of Hamilton under the pleadings and exhibits forming a part of Morrison’s pleadings.

Appellant contends its pleadings raise a genuine issue of a material fact as to whether Reynolds was something other than a subcontractor; i. e., he was a general contractor of Telephone Company with respect to the plumbing, heating, ventilating and air-conditioning; and that Hamilton was acting as Reynolds’ agent in executing the original contract with Telephone Company.

Article 5452, subd. 2, par. f, as amended Acts 1961, 57th Legislature defines a subcontractor as “ * * * any person or persons, firm or corporation who has furnished labor or materials or both as defined above to fulfill an obligation to an original contractor or to a subcontractor to perform all or part of the work required by an original contract.”

Appellant’s exhibit attached as part of its pleadings recites the construction contract is between Telephone Company and Hamilton as contractor. The contract form appears to be “The American Institute of Architects Standard Form Of Agreement Between Owner And Contractor” and is divided into articles covering different subjects in the contract.

Article 1, titled “Scope of the Work” requires the contractor to furnish all the materials and perform all the work shown on the drawings and described in the specifications.

Article 3 requires Telephone Company to pay Hamilton for performance of the contract and then recites the sum of $868,411.-83, which was the total amount of the construction. The drawings and specifications mentioned included the work done by Reynolds.

Article 7 made provisions for Hamilton to subcontract with two subcontractors, naming Reynolds as Base Bid No. 2 and the amount thereof, and an electrical company with the amount of its bid.

A separate part of the contract called “The General Conditions Of The Contract” in Article lc) defines subcontractor as only those having direct contract with the contractor and “ * * * includes one who furnishes materials worked to a special design according to the Drawings and Specifications” and excludes those who merely furnish material not so worked.

Article 36 of “General Conditions Of The Contract” provides the contractor shall not use a subcontractor to whom the owner or architect have reasonable objections, requires the contractor to be fully responsible to the owner and provides nothing contained in the contract documents “ * * * shall create any contractual relation between any subcontractor and the owner.”

The second paragraph of Section O of Article 37, “General Conditions Of The Contract,” exempts any obligation • of the owner to pay or to see to the payment of any sums of money to the subcontractors.

Additionally a letter to Hamilton, Morrison’s exhibit constituting part of its original petition, and not amended or in any manner retracted, calls Reynolds Hamilton’s subcontractor, and its secretary in the affidavit attached as an exhibit to the pleadings filed with the county clerk states:

“ * * * makes oath and says that the annexed is a true and correct statement of the services rendered and materials furnished James O. Reynolds, d/b/a Reynolds Plumbing & Piping * * * subcontractor of M. W. Hamilton & Co. * * * original contractor * * *
“And affiant makes further oath and says that the original contractor is M. W. Hamilton & Co. and that affiant’s principal furnished the services and materials to James O. Reynolds, sub-contractor * * *” (Emphasis added).

By such pleadings we hold Morrison judicially admitted Hamilton was the general contractor of Telephone Company and Reynolds was a subcontractor. 24 Tex. Jurs.2d 205, Evidence, Section 630; Kushner v. Rush, 347 S.W.2d 787, 789 (Tex.Civ. App.-Houston, 1961, writ dism’d); Taylor v. Catalon, 140 Tex. 38, 166 S.W.2d 102 (1942); Gammage v. Weinberg, 355 S.W. 2d 788 (Tex.Civ.App.-Houston, 1962, writ ref’d n. r. e.).

By a supplemental petition filed on the day of the hearing appellant pleaded Reynolds was an original contractor of Telephone Company with respect to its duties and that Hamilton was acting as agent of Reynolds in the execution of the original contract with Telephone Company and executed the bond on behalf of and for the benefit of Reynolds as well as itself.

Such contention argues, in effect, that the trial court was bound to hear evidence on the point and construe the contract and bond not shown to be ambiguous. Where such instruments are so worded as to be given certain and definite legal meanings or interpretations they are not ambiguous. Lewis v. East Texas Finance Co., 136 Tex. 149, 146 S.W.2d 977 (1941); Universal C. I. T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154 (1951).

. “This rule obtains even to the extent of prohibiting proof of circumstances surrounding the transaction when the instrument involved, by its terms, plainly and clearly discloses the intention of the parties, or is so worded that it is not fairly susceptible of more than one legal meaning or construction.” Lewis v. East Texas Finance Co., supra.

The contract and bond being unambiguous with respect to Hamilton being the original contractor and Reynolds the subcontractor for the services he performed toward the construction, “ * * * the meaning thereof is determined as a matter of law by the language used therein”. Tower Contracting Company v. Flores, 157 Tex. 297, 302 S.W.2d 396 (1957).

We also hold that the fact appellant was not a party to the contract did not preclude the parol evidence rule as being applicable to it. Its cause of action asserted against Hamilton and Hartford is based on the contract and bond. Since Morrison was in such privity with those instruments the parol evidence rule would be applicable to it. Kingsbery v. Phillips Petroleum Company, 315 S.W.2d 561 (Tex. Civ.App.-Austin, 1958, writ ref’d n. r. e.).

Believing no fact issue is shown in the record, the judgment of the trial court is affirmed.