author: NYE, Justice.

text:
    TEXAS FARM BUREAU MUTUAL INSURANCE COMPANY, Appellant, v. B. B. CARNES, Appellee.
    No. 245.
    Court of Civil Appeals of Texas. Corpus Christi.
    May 18, 1967.
    Rehearing Denied June 22, 1967.

      M. W. Meredith, of Keys, Russell, Watson & Seaman, Corpus Christi, for appellant.
    Donald A. Edwards, of Cullen, Mallette, Maddin, Edwards & Williams, Victoria, for appellee.
   OPINION

NYE, Justice.

Appellee Carnes brought this suit on a fire insurance policy against Texas Farm Bureau Mutual Insurance Company, the appellant. The insurance company insured a cotton picking machine of Carnes against various risks, including loss by fire. A rubber stamped endorsement in red ink was placed on Carnes’ yellow colored insurance policy, which was called “Endorsement No. 10.” This endorsement provided that the “cotton pickers insured under this policy are limited to custom farming within a radius of 50 miles from the principal place of garagement.” Carnes garaged his cotton picker in Victoria, Texas. In September of 1963, while the policy was in force, Carnes engaged in custom farming near Clay, Texas, about 150 miles from Victoria when the cotton picking machine was damaged by fire. The insurance company and Carnes could not agree on the amount of damage, whereupon Carnes brought suit on the policy. The insurance company defended primarily on two grounds, both of which would deny Carnes any recovery under his policy. First, that the “Endorsement No. 10” was breached by Carnes and therefore Carnes cannot recover. Second, in any respect because Carnes failed to file a sworn proof of loss as required by the policy, this too bars recovery.

Carnes contends that the breach of “Endorsement No. 10” cannot be urged as a defense, because such a provision is made unenforceable by Art. 6.14 of the insurance code. Art 6.14 reads as follows:

“No breach or violation by the insured of any warranty, condition or provision of any fire insurance policy, contract of insurance, or applications therefor, upon personal property, shall render void the policy or contract, or constitute a defense to a suit for loss thereon, unless such breach or violation contributed to bring about the destruction of the property.”

It is undisputed that Carnes breached “Endorsement No. 10” in that he was doing custom farming more than fifty miles from the principal place of garagement. The jury found that the breach of such provision in the policy did not, however, contribute to the fire loss on Carnes’ cotton picker. This finding is not contested on appeal.

It is the insurance company’s position that Carnes’ breach of “Endorsement No. 10” could not have contributed in any way to the loss and therefore under the cases construing Art. 6.14 this statute does not apply. It is the company’s further contention that this endorsement either limits the coverage or is a warranty and not merely a representation or a statement and therefore the breach of such provision is material to the risk and therefore bars recovery.

The plain language of the statute would seem to bring “Endorsement No. 10” within its purview. This endorsement reads in full:

“Subject to all other terms and conditions of the policy to which this endorsement is attached it is understood and agreed by and between the Company and the Named Assured that in consideration of the premium paid, the combines and/or cotton pickers insured under this policy are limited to custom farming within a radius of 50 miles from the principal place of garagement.”

The statute deals with personal property (here a self-propelled cotton picking machine) ; Endorsement No. 10 is either a warranty, condition or provision contained in a fire insurance policy; and a provision contained in the endorsement was breached. However, the breach did not contribute to bring about the loss of the property, therefore : Appellee Carnes argues, the company should not be permitted to assert such breach as a defense.

The courts have interpreted this statute so that it affects only those warranties, conditions and provisions in policies, the breach of which might have contributed to bring about the loss, but which, as a matter of fact, did not. McPherson v. Camden Fire Ins. Co., 222 S.W. 211 (Tex.Com.App.1920, Judgment approved by Supreme Court); Providence-Washington Ins. Co. v. Levy & Rosen, 222 S.W. 216 (Tex.Com.App. Sec. A 1920, holdings approved) ; Aetna Ins. Co. v. Waco Co., 222 S.W. 217 (Tex.Com.App. Sec. B 1920, holdings approved). The McPherson case above cited is the leading and controlling case interpreting Art. 6.14 and is a joint holding of both sections of the Commission of Appeals. The holdings approved by the Supreme Court have never been modified or overruled. Both parties to this appeal cite it as authority for their contentions. An analysis of this decision and others becomes necessary for the proper determination of this appeal.

The original act (Gen.Laws 1913, p. 194, 33rd Leg., Sayles’ Civil Statutes, article 4874a) sometimes called the “anti-technical” statute, provided in its emergency clause that the statute was passed to prevent fire insurance companies from avoiding liability for loss and damage to personal property under technical and immaterial provisions of the policy of insurance where the act of breaching such provision did not contribute to bring about the loss. In “Sec. 3” of the act, it stated that “Whereas, under the existing laws, insurance policies and contracts may be defeated upon purely technical provisions and defenses that in no way affect the merits of the claim against the insurance company, and such defenses have been upheld to the extent of making it almost impossible for an insurance policy upon personal property to be collected by suit, creates an emergency * * *« etc. Following the passage of this act there developed a marked split among the several courts of civil appeals as to its interpretation and applicability. At least three of the courts of civil appeals held that the act applied to all promissory warranties, conditions and agreements. On the other hand at least three other intermediate appellate courts reasoned that there seems to be a class of insurance policy clauses to which the application of the test of non-contribution to a loss (this being the only test set out by the Legislature in the Act) seemed illogical, since obviously the violation of some such clauses could never contribute to the loss. The Commission in the McPherson case acknowledges that the language in the body of the Act is broad enough to apply to all warranties, conditions and provisions. In order to justify holding that it does not apply to some clauses in the fire insurance policies, the Commission turns to the title of the Act wherein the phrase “ * * * immaterial provisions * * * ” is found. This shows, the Commission reasons, that the Legislature did not intend to reach all provisions in the insurance policies. In other words, the court limited the application to that class of fire insurance policy provisions, the breach of which might have contributed to bring about a loss by fire, but which did not. If the cancellation clause in a policy was a material provision and the violation of which could not from the very nature of the provision contribute to bring about the destruction of the property, the statute (Art. 6.14) would have no application. See Citizens State Bank v. American Fire & Casualty Co., 5 Cir., 198 F.2d 57. The McPherson case suggests that each individual case must be examined after the loss has occurred to determine whether the breach of the provision can be interposed as a defense. One test that seems to have merit as to whether or not the provision was material to the insurance risk, would be whether or not the insurance company would decline the insurance altogether or refuse to accept it unless it received a higher premium. See St. Paul Fire & Marine Ins. Co. v. Huff, Tex.Civ. App., 172 S.W. 755. Using these tests we find that our courts have held that the following provisions were material and the breach of such provisions could not have contributed to the loss and therefore the statute would have no application:

(1) The three-fourths value clause; (2) the co-insurance clause; (3) the incumbrance clause (McPherson v. Camden Fire Ins. Co., supra); (4) the “Iron Safe” or “record warranty” clauses (Philadelphia Underwriters Agency v. Driggers, 111 Tex. 392, 238 S.W. 633, Sup.Ct. 1922); (5) provisions that are against other, concurrent, or additional insurance; (6) provisions that require that the insured be the sole and unconditional owner; (7) representations to the effect that the insured had never been refused other insurance; (8) representations that the insured property was fully paid for; (9) provisions requiring the insured to submit to examination after the loss; (10) requirements that the insured furnish a certificate of a magistrate, or a notary public, as a part of the proofs of loss; (11) provisions or conditions that the policy shall be void if the insured, prior to loss, is informed that foreclosure proceedings have been commenced; and (12) to provisions that limit the time within which to commence suit to two years and a day after cause of action arose (Holston v. Implement Dealers Mut. Fire Ins. Co., 5 Cir., 206 F.2d 682 at 685); 32 Tex.Jur. 2d, pp. 384-387, § 228; also 24b Tex.Jur., pp. 398-402, § 178, and cases cited therein supporting the above provisions. The McPherson case (supra) lays down the rule whereby the above provisions are not affected by the statute (Art. 6.14). The rule is:

“ * * * no promissory warranties, conditions, or provisions of a fire policy, the breach of which could in no event contribute to bring about the loss of the property insured, are within the purview of the act invoked. * * * ”

The provisions which are applicable to the anti technical statute fall within the rule laid down by the Court of Civil Appeals in Commonwealth Ins. Co. of New York v. Finegold, 183 S.W. 833, quoted with approval by the Supreme Court in the McPherson case, supra:

“ * * * The statute, we think, has reference to only those warranties and provisions in policies, the breach of which might have contributed to bring about the loss, but which in fact did not, and was passed, we think, with the sole purpose of preventing insurance companies from escaping liability for the violation of a provision of the policy where the breach could have, but in fact did not, contribute to bring about the destruction of the insured property. * * * ”

The court used as examples, provisions in fire insurance policies restricting the use of gasoline storage, acetylene, gas, the limiting of the amount of calcium carbide, benzine, etc., that are permitted to be stored on and in the vicinity of the insured property. 32 Tex.Jur.2d 228, pp. 384-386.

In a rather recent Federal case, the district and appellate courts had the opportunity to construe this Texas statute (Art. 6.14 Insurance Code) and the Texas law (the McPherson case, supra) and its application to a fire insurance policy. The Federal courts had before them a situation somewhat analogous to the case before us. Although the case was reversed on other grounds the court considered the breach of a clause contained in a fire insurance policy, the effect of which was that a boat (personal property) owned by the insured was restricted to private use only. This clause was breached by the commercial use of the boat by the insured, but the breach of the provision did not contribute to the loss, although it could have. The court said:

“ * * * It is obvious from the evidence in this case that Plaintiffs’ (insureds’) use of the Wanderer (boat) commercially had nothing whatsoever to do with its destruction by fire. That being true, Plaintiffs’ breach of the warranty to the effect that the Wanderer would be used only for private use, under the provisions of said Art. 4930 (now Art. 6.14 Insurance Code) and the construction of that statute given by the courts of the State of Texas, is not available to the Defendant (insurance company) as a defense. (Citing McPherson v. Camden Fire Ins. Co. (Tex.Com.App.) 222 S.W. 211; Citizens State Bank of Dickinson, Texas v. American Fire & Casualty Co. (5th Cir.) 198 F.2d 57, 59; Holston v. Implement Dealers Mutual Fire Ins. Co. (5th Cir.) 206 F.2d 682, 685; Trinity Universal Ins. Co. v. Daniel (Tex.Civ.App.) 202 S.W.2d 266; and Springfield Fire & Marine Ins. Co. v. K. M. A. Fuel Oil Co. (Tex.Civ.App.) 78 S.W.2d 1053.” (Parenthesis supplied). Wilburn Boat Co. v. Fireman’s Fund Insurance Co, 199 F. Supp. 784, U.S.Dist.Ct.1960, Eastern Dist. of Texas.

The case was appealed to the United States Court of Appeals, 5th Circuit. This particular holding of the Federal District Court was approved. The appellate court said:

“The District Court, applying Texas law, held (A) that the use of the Wanderer to carry passengers for hire was no defense based on breach of the warranty against such use because the breach warranted against did not contribute to bring about the destruction of the vessel within the meaning of Article 6.14 of the Texas Insurance Code; * * *
“In view of the clear language of the statutes, and recognizing the undoubted uniform application of the law by the Texas courts to the effect to be given to warranties, we find that neither of the first two breaches of warranty can be urged as a defense. We find, therefore, that in finding against the defenses of breach of warranty arising from parts numbered 1 and 2 above, the trial court followed the Texas law.”

Fireman’s Fund Insurance Co. v. Wilburn Boat Co., 300 F.2d 631, 1962, 5th Circuit.

The appellant contends that the statement contained in “Endorsement No. 10” is a warranty. The Supreme Court of Texas in construing whether a statement in an insurance policy was a warranty, said:

“ * * * that for a statement in a policy to constitute a warranty, the parties must have intended that the policy stand or fall on the literal truth or the falsity of the statement.” Lane v. Travelers Indemnity Company, 391 S.W.2d 399 (Tex.Sup. 1965).

The Supreme Court then quoting from a former opinion, said that:

“ * * * A warranty in an insurance contract is a statement made therein by the assured, which is susceptible of no construction other than that the parties mutually intended that the policy should not be binding unless such statement be literally true. * * * [Phoenix Assur. Co. v. Munger Imp. Cotton-Mach. Mfg. Co., 92 Tex. 297, 49 S.W. 222 at 225, Supreme Court (1898)].”

The court goes on to say that in determining whether a particular statement is a warranty or only a representation, the entire policy will be considered and construed to prevent a forfeiture. Citing authorities. Lane v. Travelers Indemnity Company, supra.

“Endorsement No. 10” has no express declaration that it is a warranty. The endorsement is not a limitation of coverage, for in order to be a limitation, the language used must be positive and unequivocal, not as to a condition for insuring the property but as to the insurance coverage afforded by the insurer. See Firemen’s Ins. Co. v. Alonzo, 246 S.W. 82, (Tex. Comm’n App.1923, opinion adopted). Here the policy of fire insurance does not contain any provision that it is to be effective only if this endorsement (No. 10) is complied with. It does not contain a statement to the effect that a violation of this endorsement will render the policy void. There is no word in the endorsement or anywhere in the insurance policy that fire insurance coverage does not extend and/or will cease beyond fifty miles from the principal place of garagement. This endorsement is no more than an agreement. It is not a limitation of coverage or a warranty. If the insured had been doing custom farming beyond the fifty mile limitation and because of such extra work, or hazards, or for any cause that might have been found by the jury to exist, that caused or contributed to the fire, then “Endorsement No. 10” would have been applicable. The jury’s answer that “Endorsement No. 10” was material to the risk does not constitute a complete defense to the insurer nor does the appellant make any such point on this appeal. Almost any representation can be material. It is obvious that a fact can be material to the risk without its contributing to bringing about the destruction of the insured property. Fireman’s Fund Insurance Co. v. Wilburn Boat Co., supra, 300 F.2d at p. 644. As was said in Inter-Ocean Insurance Company v. Ross, 315 S.W.2d 71, 73, 74 (Tex.Civ.App. Ft. Worth, 1958) : “ * * it does not disprove that a fact may have been material to the risk because it had no actual subsequent relation to the manner in which the event insured against did occur.” Since the use to which it was being put at the time of the loss did not contribute to the fire, Art. 6.14 is applicable. Austin Building Co. v. National Union Fire Ins. Co., 403 S.W.2d 499 (Tex.Civ.App., Dallas, 1966 ref’d n. r. e.). The article, being a remedial statute, is to be liberally construed. Even if “Endorsement No. 10” was considered to be ambiguous it would have to be resolved in favor of coverage. 13 Apple-man Insurance Law and Practice, § 7401. Construing the provision in such a way as to prevent a forfeiture we hold that the breach of this endorsement could have contributed to the loss but did not. Lane v. Travelers Indemnity Co., supra. This endorsement is not in any way similar to those provisions where the courts have held that the breach of which could not have contributed to the loss. Appellant’s first and fourth points are overruled.

Appellant’s fifth point complains of the trial court’s entering judgment in favor of Carnes where Carnes failed to file a sworn proof of loss as required by the policy and there was no waiver or estoppel as to such condition. Quoting substantially from appellant’s brief the facts developed and undisputed are as follows: Carnes’ cotton picker burned on the night of September 6, 1963. Carnes drove back to Victoria that night and the next morning he called the insurance company’s agent to report the fire. The insurance company’s adjuster took Carnes’ statement on September 10, 1963. About October 2, 1963 the insurance company’s adjuster called Carnes to advise that the covered cotton picker had been examined. Within the next few days the adjuster contacted Carnes and offered to have a dealer in Snook, Texas (near the site of the fire) fix the picker at a cost of some $5,200. A day or two later the adjuster-offered to have the picker repaired at a cost of some $5,400, or to pay that amount to-Carnes. The adjuster testified that he then-offered Carnes a tractor and basket which were the major parts of the picker, but Carnes declined, stating he wanted $8,000. Carnes stated that unless he got a better-offer he was going to turn the claim over to his attorneys. These negotiations were in late October, 1963. Within a few days Carnes did turn the claim over to his attorneys. This was done within some two months after the fire. After that there was-no more contact between Carnes and any representative of the insurance company.

No proof of loss form was furnished to Carnes and he was not requested by the insurance company to file a proof of loss. Carnes was not asked to supply any information other than the statement which had been taken by the adjuster a few days after the fire. However, the adjuster believed that he had told Carnes that a proof of loss would have to be filed when the case was settled. The case was not settled and no mention was made of what must be done if the claim was not settled.

When negotiations ended between the adjuster and Carnes the only dispute was the amount of the loss. The adjuster never denied Carnes’ claim. Apparently the adjuster did not learn of “Endorsement No. 10” until after the suit against the insurance company had been filed. The policy required as a condition that a sworn proof of loss be filed within ninety days after any loss occurred. There were no requests for a special issue nor were there any findings that the proof of loss was waived. It is appellant insurance company’s contention that the filing of a proof of loss, unless waived, was a prerequisite to Carnes’ suit upon the policy. Citing Commercial Union Assur. Co. v. Preston, 282 S.W. 563 (Tex.Sup.1926). In view of the fact that it was undisputed that the adjuster told Carnes that he would have to file a proof of loss when the case was settled and this event having not occurred, we hold that the company’s knowledge of the loss and undisputed conditions existing prior to the time suit was filed was sufficient evidence not contradicted to conclusively establish that the company waived the proof of loss. Employers Mut. Cas. Co. of Des Moines, Iowa v. Nelson, 351 •S.W.2d 278 (reversed on other grounds); 32 Tex.Jur.2d pp. 589-599, § 385. See also Anchor Casualty Company v. Bowers, 385 S.W.2d 568, 570 (Tex.Civ.App. — Houston 1964), (reversed on other grounds 393 S.W. 2d 168 and 170, Sup.Ct.).

As additional reasons for overruling appellant’s fifth point see Art. 5546, Vernon’s Ann.Tex.St. This statute renders void provisions in a contract of insurance that require notice to be given as a condition precedent to the right to sue thereon where the stipulation is unreasonable or fixes the time within which notice is required to be given at a less period than ninety days. See Taber v. Western Union Telegraph Co., 104 Tex. 272, 137 S.W. 106, 34 L.R.A..N.S., 185 (1911); Fire Ass’n of Philadelphia v. Richards, Tex.Civ.App., 179 S.W. 926. We have considered appellant’s other points. They are overruled.

Judgment of the trial court is affirmed.

GREEN, C. J., not participating.


source: Caselaw Access Project

author: GRISSOM, Chief Justice.

license: Public Domain

text:
    AETNA CASUALTY AND SURETY COMPANY, Appellant, v. Ida Scott DOBBS et al., Appellees.
    No. 4170.
    Court of Civil Appeals of Texas. Eastland.
    May 26, 1967.

      Lewright, Dyer & Redford, Cecil D. Redford, Dudley B. Foy, Jr., Corpus Christi, for appellant.
    James DeAnda, Corpus Christi, for ap-pellees.
   GRISSOM, Chief Justice.

Ida Scott Dobbs and William E. Scott, individually and as representatives of the. estate of Anna May Scott, deceased, sued Aetna Casualty and Surety Company. They alleged that the “defendant is a foreign insurance company and the Commissioner of Insurance of the State of Texas is its attorney for service of legal process.” Citation was issued and directed to be served on Aetna Casualty and Surety Company “by serving its attorney for service, the Commissioner of Insurance of the State of Texas.” The officer’s return shows the citation was served on “Aetna Casualty and Surety Company, by delivering to Clay Cotton, Insurance Commissioner State of Texas as agent for service.” The citation and the officer’s return were filed with the Clerk on August 24, 1966. On September 14, 1966, the court rendered a default judgment against said insurance company for $14,933.00. It recited that the defendant, though duly served with process, wholly made default. Aetna Casualty and Surety Company did not appear in the trial court but it has timely removed the case to this court by petition for writ of error. Such procedure constitutes a direct attack on said judgment. Texaco, Inc. v. McEwe, Tex.Civ.App., 356 S.W.2d 809, 812.

Appellant says the essence of the Issues presented is the fundamental constitutional question of whether it can be deprived of its property on a record which does not show that it has been accorded due process of law. Absent valid service of process the court did not have jurisdiction to render a money judgment against appellant. Without such jurisdiction an award of appellant’s money to appellee was made without due process of law. In Roberts v. Stockslager, 4 Tex. 307, 309, our Supreme Court held that the statutory provisions as to the mode of service and the fullness of the return were as plain as they were imperative; that the statutes prescribed the mode by which the court could acquire jurisdiction over the person of the defendant and, as this was necessary to give validity to its judgment, such regulations should be strictly enforced. It held that notice in the form prescribed by statute was essential to jurisdiction of the court and, where the defendant did not appear, it was the duty of the court to ascertain before proceeding with the case whether the defendant had been legally brought within judicial cognizance in relation to the subject matter pending before the court.

Appellant says that, because our State and Federal Constitutions make valid service of process prerequisite to validity of a state court judgment against a foreign corporation, Texas courts have been careful in scrutinizing such judgments to lay down fundamental safeguards to ensure that such defendants, who have suffered a default judgment to be rendered against them, be not deprived of their property without due process of law.

In McKanna' v. Edgar, Tex.Civ.App., 388 S.W.2d 927, 928, our Supreme Court said that the established law in Texas required that the record affirmatively shows strict compliance with the mode of service provided by statute and that there were no presumptions of such service in a direct attack upon such a default judgment. It held that in such a case as this there were no inferences of the essential jurisdictional facts but that they must affirmatively appear on the face of the record and that the plaintiff had the burden of making sufficient allegations to bring such a defendant within the provisions of the statutes prescribing the method of service of process on it. It held that a return showing service on the Secretary of State could not supply the missing jurisdictional facts upon which such service must depend. The Supreme Court announced the rule that a plaintiff seeking to obtain service upon a non-resident defendant sufficient to support a default judgment must plead facts which show that such defendant is within the classification of non-residents upon which the statute authorizes service. Appellant says, and we think correctly, that such rule is a logical extension of the doctrine that in personam jurisdiction over a non-resident must affirmatively appear on the face of the record for a default judgment against him to stand on direct attack. The pleadings, citations and return must show a strict compliance with the mode of service provided by statute. The question is whether this record affirmatively shows that service has been had in strict accord with a state law providing therefor. Unless the record first affirmatively shows that the foreign corporation defendant is one upon whom the Legislature of Texas has authorized service of process, it cannot affirmatively show strict compliance with a statutory mode of service provided for such a defendant.

Appellant says the record is insufficient to support the default judgment in two respects, to-wit:

(1). It does not show the jurisdictional facts necessary to determine whether the Legislature has authorized service of process on this appellant and

(2). It does not affirmatively show that service was had in strict compliance with the mode provided by statute.

It further contends that jurisdiction not being apparent on the face of the record the default judgment cannot stand. In support thereof it cites Anglo Mexicana de Seguros, S.A. v. Elizondo, Tex.Civ.App., 405 S.W.2d 722, (Wr. ref. n.r.e.); McKanna v. Edgar, supra; State Mortgage Corporation v. Traylor, 120 Tex. 148, 36 S.W.2d 440 and Levy v. Roper, 113 Tex. 356, 256 S.W. 251. We sustain said contentions and the points under which they are presented.

There are several statutes providing for service on a foreign corporation which are not related to the business of such a corporation. There are articles of the Insurance Code fixing the mode of service on specific types of insurance companies. We think it is clear that appellees failed to allege jurisdictional facts requisite to an affirmative showing that any of such statutes authorized service on such a Company as the appellant or that there was compliance with the mode of service prescribed for it. Appellees did not allege or prove what statute fixed the mode of acquiring in personam jurisdiction over appellant, or that they complied therewith. Appellees alleged only that (a) the defendant was a foreign insurance company and that (b) the Commissioner of Insurance was its attorney for service of process. Citation was issued to be served upon Aetna Casualty and Surety Company “by serving its attorney for service, the Commissioner of Insurance of the State of Texas.” The return shows service on “Aetna Casualty and Surety Company, by delivering to Clay Cotton Insurance Commissioner State of Texas as agent for service.” No statute and no appointment of the named official is pointed out as making said official appellant’s agent for service.

Article 3.65 of the Insurance Code, V.A. T.S. requires that any “foreign company,” defined by Sec. 6 of Art. 3.01 of the Code as a foreign life, accident or health company, engaged in or desiring to do business in Texas, file a written power of attorney with the “Board of Insurance Commissioners”, appointing the Chairman of said Board as its agent for service. The Board of Insurance Commissioners was changed to State Board of Insurance by Article 1.02(a) and (c) of the Insurance Code. Appellees pointed out no statute giving the court jurisdiction to render a money judgment against appellant by service on the Commissioner of Insurance, nor do they show that such an appointment was actually made.

Appellees did not allege that Aetna Casualty and Surety Company was a foreign life, health or accident insurance company engaged in or desiring to do business in Texas. They did not allege that it had filed a written power of attorney with the State Board of Insurance appointing its Chairman as its agent for service of process. They failed to affirmatively show by either allegation or evidence that the Legislature granted any right of service of process on such a non-resident defendant as Aetna Casualty and Surety Company under any statute. Appellees had the burden of pleading and proving jurisdictional facts in order to confer jurisdiction over appellant. The Chairman of the State Board of Insurance required to be appointed by the “foreign company” dealt with in Article 3.65 is a different person from “the Commissioner of Insurance of the State of Texas”, alleged by appellees to be appellant’s “attorney for service of process.” Article 1.02(d) of the Insurance Code provides that “the Governor” shall appoint from among the members of the State Board of Insurance a Chairman, who shall be known as the Chairman of the State Board of Insurance. Article 1.09(a) of the Insurance Code provides that “[t]he Board shall appoint a Commissioner of Insurance”. It is thus demonstrated that the Chairman of the State Board of Insurance is appointed by the Governor. The Commissioner is appointed by the State Board of Insurance. Therefore, appellees’ allegations that the Commissioner of Insurance was Aetna’s attorney for service and that they procured service on the “Insurance Commissioner of the State of Texas” does not show compliance with the mode of service provided for in Article 3.65 as amended by Art. 1.02(d), to-wit, service upon the “Chairman of the State Board of Insurance” as agent and attorney in fact for accepting service under a written power of attorney filed with the “State Board of Insurance”, nor does it show any statutory provision for service on appellant or that it complied therewith.

We agree with appellant’s contention that appellees failed to prove that the “Commissioner of Insurance” or the “Insurance Commissioner of the State of Texas” or “Clay Cotton” was the agent of Aetna for service. Under such circumstances, our conclusion is controlled by the decision in Anglo Mexicana de Seguros, S. A. v. Eli-zondo, Tex.Civ.App., 405 S.W.2d 722, 724, (Ref. N.R.E.), wherein substantially the same question was presented. There the Corpus Christi court had before it a petition for writ of error to set aside a default judgment rendered against a Mexican Casualty Company. The insurance company attacked that judgment upon the ground that the record did not affirmatively show valid service. The situation there presented is shown in the opinion by Judge Sharpe, as follows:

“Defendant’s contention that the record herein does not affirmatively establish that service of process was made on it in accordance with the applicable statute is well taken and must be sustained. Absent such a showing, the trial court was without jurisdiction and the default judgment is void.
Art. 8.24(d), Insurance Code, V.A.T.S., provides two methods for service of legal process upon a Mexican Insurance Carrier of the kind involved here: (1) by serving the agent, which the Carrier is required to designate, (2) alternatively, in the event process cannot be served upon the designated agent, service may be made upon the Chairman of the Board of Insurance Commissioners of Texas. The latter is a different official than the Insurance Commissioner of the State of Texas. The alternative method of service is not actually involved in this case.
Plaintiff alleged that appellee ‘was a foreign insurance company, duly authorized to do business in the State of Texas, and upon whom service may be had by serving J. M. Nutt, Commissioner of Insurance of the State of Texas, 1110 San Ja-cinto, County of Travis, City of Austin, Texas.’ The return on the citation states that it was served on ‘Anglo Mexicana de Seguros, S. A. by delivering to J. M. Nutt, Insurance Commissioner of State of Texas, as agent for service.’ ”

The court held the default judgment was void, saying at page 725:

“It is well settled that in order to obtain jurisdiction over a foreign corporation, the record must show a strict compliance with the provided method of service of process. Whether the person served was in fact the agent for service of process must be affirmatively established before default judgment can be proper. White Motor Company v. Loden, 373 S.W.2d 863 (Tex.Civ.App.1964, n. w. h.); Investors Diversified Services, [Inc.] v. Bruner, 366 S.W.2d 810 (Tex.Civ.App. 1963, wr. ref., n. r. e.); Texaco, Inc. v. McEwen, 356 S.W.2d 809 (Tex.Civ.App.. 1962, wr. ref. n. r. e.); Sharp & Dohme, Inc. v. Waybourne, 74 S.W.2d 413 (Tex. Civ.App.1934, n. w. h.). In the last cited case the court held that a default judgment against a foreign corporation should be vacated unless there was proof, independent of the allegations in the petition, the citation, and the statement in the sheriff’s return, to show service on some officer or agent of the corporation designated by the applicable statute. The record herein fails to establish that the Insurance Commissioner of the State of Texas has been designated by defendant as its agent for service.”

That case was substantially identical to this one so far as the allegations relative to service and the return are concerned. This record not only fails to affirmatively show a strict compliance with any statutory method of service on a foreign corporation, it does not even show the jurisdictional facts requisite to invoke jurisdiction over Aetna under any methods for service provided by any statute. The record does not show affirmatively that “Clay Cotton, Commissioner of Insurance” was the agent for service of process upon Aetna, as required by the Elizondo decision, where the court was told what statute prescribed the persons who might be served with such process. Such requirement is more compelling here, where the record does not even show the facts requisite to determine what statute is applicable.

Aetna contends, and we think correctly, that this same analysis and conclusion must be made with respect to Article 9.19 of the Insurance Code, which requires certain foreign corporations engaged in or desiring to do business in Texas to file a power of attorney appointing the Chairman of the Board its agent or attorney in fact for service. See Article 10.24 of the Insurance Code, requiring foreign fraternal benefit societies to file a power of attorney designating the Chairman as its agent for service as a condition precedent to being licensed, and Article 15.14 of the Insurance Code, which make the same requirement of foreign mutual companies. Statutory references to the Board of Insurance Commissioners and the Chairman of that Board were changed to the State Board of Insurance and Chairman of the State Board of Insurance by Article 1.02(c) of the Insurance Code.

Appellees did not allege that Aetna was any of such companies. The appellees did not offer any proof that Aetna was such a company. They did not make any proof of the filing by Aetna of any appointment of an agent for service under any statute. They did not prove that “Clay Cotton, Insurance Commissioner State of Texas” was, in fact, Aetna’s agent for service.- By reason thereof, this record does not support the default judgment, under any of said statutes. Appellees failed to plead or prove the jurisdictional facts showing that Aetna was subject to service under any statute or that service was had in accord with any statute. The record fails to affirmatively show jurisdiction by virtue of service of process by compliance with any modes prescribed by any statute. We could, as Aetna does, continue to show other statutory provisions for service of process which were not shown to be either applicable or to have been complied with. This is not necessary because the record fails to affirmatively show jurisdiction of the trial court by virtue of service of process in compliance with any statutory mode of service. As stated in the Elizondo case, “It is well settled that in order to obtain jurisdiction over a foreign corporation, the record must show a strict compliance with the provided method of service of process. Whether the person served was in fact the agent for service of process must be affirmatively established before default judgment can be proper * * Since this record fails to show a strict compliance with any mode of service of process upon a foreign company and fails to show that “Clay Cotton” “Insurance Commissioner State of Texas”, was in fact Aetna’s agent for service of process, the default judgment must be set aside because the record fails to affirmatively show jurisdiction over Aetna.

Appellant goes still further and demonstrates that under the general statutes of Texas providing modes of service of process on foreign corporations that the record fails to show that the person served was, in fact, the agent for service of process. Without discussing such statutes, we think the same analysis and conclusion must be applied to them. The same is true with reference to similar provisions in the Texas Business Corporation Act.

We conclude that appellees did not (1) plead or prove facts conferring jurisdiction over Aetna under any statute prescribing a mode for service of process on a foreign corporation; (2) did not plead or prove facts showing that the service of process was had in compliance with any mode of service so provided and (3) did not prove that “Clay Cotton, Insurance Commissioner of the State of Texas, as agent for service” was in fact the agent for service upon Aetna. We conclude that the record fails to affirmatively show compliance with any mode of service prescribed by any statute for service of process upon such a defendant as Aetna. Without such showing the default judgment is void.

The judgment is reversed and the cause is remanded.


author: LANGDON, Justice.

text:
    Herbert GRAY et al., Appellants, v. GULF OIL CORPORATION, Appellee.
    No. 16841.
    Court of Civil Appeals of Texas. Fort Worth.
    June 16, 1967.

      King & Massey and Marion L. Massey, Fort Worth, for appellants.
    Cantey, Hanger, Gooch, Cravens & Scarborough and Estil Vance, Jr., Fort Worth, for appellee.
   OPINION

LANGDON, Justice.

This appeal is from an order sustaining a plea of privilege. The appellant, Herbert Joe Gray, a minor age 13, was injured in an accident which occurred in Hood County on a farm owned by his father, Herbert Gray, when he was struck by a falling diesel fuel storage tank. Virgil Bird, driver of a bulk tank truck, owned by W. R. Summers, a Gulf Oil Products dealer, had mistakenly put gasoline in the diesel fuel storage tank owned by Mr. Gray and with the assistance of Herbert Joe Gray was draining the tank when the accident occurred.

In the process of draining it, the storage tank had been tilted forward and a block had been placed by appellant, Herbert Joe Gray, under the cross-bar of the tank stand to prevent its falling. The testimony was conflicting regarding whether or not the stand or platform of the storage tank was resting against the truck. Bird testified that it was resting against the truck. Appellant, Herbert Joe Gray, stated initially that there was some space between the truck and the stand. Subsequently, he stated that he was not sure whether or not there was any space between the two.

Bird had been present at the location of the accident for approximately thirty minutes and the tank had been tilted at least ten minutes when the accident occurred. The brakes of the truck were set and the truck’s motor was not running. The truck was absolutely still, except for the possible vibrations resulting from Bird’s movements on the truck. Bird testified that the truck could not have moved backwards, but instead only forward, if it moved at all, and he had no knowledge of any movement by the truck. The appellant, Herbert Joe Gray, testified he had no knowledge of any movement by the truck. Bird testified that both of the front legs of the tank were on the ground, that it seemed to be sitting pretty steady, and that he had no idea that the tank was going to fall. There was no testimony or other evidence introduced at the plea of privilege hearing regarding the actual cause of the fall of the tank. Both Bird and appellant, Herbert Joe Gray, denied any knowledge of the actual cause of the fall. Bird shouted a warning to appellant, Herbert Joe Gray, just as the tank began falling, and the latter started to run but was unable to avoid being struck by the tank.

Appellants, Herbert Joe Gray and Herbert Gray, testified that Bird stated after the accident that it was his fault. Bird was not present at the plea of privilege hearing and therefore did not testify in person at that time. His deposition, in its entirety, was introduced into evidence. It reflected that the attorneys for appellants did not ask Bird any questions regarding such statement. The only evidence at the hearing regarding such a statement was provided by appellants’ testimony.

The appellants have relied upon the following allegations of negligence against Bird, allegedly an employee of Summers: Failure to (1) scotch the wheels of the truck; (2) to set or to (3) properly set its emergency brake; (4) failure to warn that the storage tank was falling; (5) or that it was resting against the truck; (6) to keep a proper lookout; (7) in placing the minor in a position of peril; (8) in tilting the tank, and (9) in leaning the tank so as to support it against the truck.

Both Bird and Summers reside in Hood County, Texas. The residence and principal place of business of appellee Gulf is Harris County, Texas. Alleging that Bird and Summers are employees and agents of Gulf, the appellants seek to sustain venue of their cause against Gulf under Subdivision 4 of Article 1995, Vernon’s Ann.Tex. St.

In 1 McDonald Texas Civil Practice, 434 (1965), § 4.10.2: “Under exception 4 the venue facts are: (I) one defendant resides in the county of suit; (II) the party asserting his privilege is at least a proper party to the claim against the resident defendant; and (III) the plaintiff has a bona fide claim against the resident defendant.” The same text at page 441 spells out the requirement of Paragraph III above, as follows: “(III) The plaintiff must plead and prove by a preponderance of the evidence each element of a bona fide claim against the resident defendant, which must be the same claim asserted against him in the controverting affidavit. This must be established by extrinsic evidence, and the petition itself is not probative on the issue. * * * It has been held that this venue fact is not established when the plaintiff, though able to prove that some one or more of the defendants had been guilty of misconduct causing damage, was unable to identify the resident defendant as being at fault.”

In Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 (1936), the Texas Supreme Court at page 1304 spells out the requirements necessary to sustain venue under Subdivision 4.

The single assignment of error is not based on insufficient evidence or that the court’s decision is contrary to the overwhelming weight and preponderance of the evidence. Thus, the single question to be resolved by this court is whether or not the appellants have conclusively alleged and proven, as a matter of law, every material fact issue required of them in order to maintain venue of their suit against the appellee in Hood County, Texas, under said subdivision. The appellants have demonstrated only that there was some evidence in the record as to necessary fact issues upon which the trial court might or could have sustained venue in Hood County. This is not sufficient to justify a reversal. No findings of fact were requested and none were made or filed by the trial court.

We affirm.

“The dominant purpose of our venue statutes is to give a person who has been sued the right to defend such suit in the county of his residence, except under well-defined exceptions.” Meredith v. McClendon, 130 Tex. 527, 111 S.W.2d 1062, 1064-1065 (1938). In the latter case the Texas Supreme Court in essence stated that to deprive a defendant of such right the case filed against him must clearly come within one of the exceptions contained in the statute. See also Rogers v. Fort Worth Poultry and Egg Co., 185 S.W. 2d 165 (Tex.Civ.App., 1944, no writ hist.).

“ * * * the burden rests upon the plaintiff to allege and prove that the case comes within the exception.” A. H. Belo Corporation v. Blanton, 133 Tex. 391, 129 S.W.2d 619, 621 (1939).

Actual proof in the usual way is required and a mere prima facie showing of a cause of action is not sufficient. Renger v. Boland, 134 S.W.2d 443 (Tex. Civ.App., 1939, no writ hist.); Farmer v. Williamson, 131 S.W.2d 973 (Tex.Civ. App., 1939, no writ hist.).

The trial court in sustaining Gulf’s plea of privilege has impliedly found that the appellants failed to meet the burden of alleging and proving that the case comes clearly within the exception (Subdivision 4).

This court, in reviewing the action of the trial court, is required to test it under the rule that, “If discarding all adverse evidence and giving credit to all evidence that is favorable to the successful party, and indulging every reasonable conclusion that is favorable to him, a trier of the facts might have found in his favor, then it is to be concluded that there is evidence to support the finding.” Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97.

“ * * * where there are no findings of fact, all fact issues will be resolved in favor of the trial court ruling if there is any ground or probative evidence supporting it. And in determining the sufficiency of the evidence as a matter of law to support the ruling of the trial court, the reviewing court will disregard all adverse evidence and give credit to all evidence that is favorable to the successful party, indulging every reasonable conclusion that is favorable to him.” 60 Tex.Jur.2d 163, § 244 ; 4 Tex.Jur.2d 405, § 840.

“Presumptions may be indulged on appeal respecting orders or rulings on pleas of privilege. In the absence of a contrary showing on the record, the reviewing court will presume in favor of the regularity of an order sustaining or overruling such a plea.” 60 Tex.Jur.2d 166, § 245.

Under this record there was evidence upon which the court could have concluded that the truck did not move and thus the allegations of negligence and proximate cause based upon failure to set or properly set the emergency brakes or to scotch its wheels were not established. The same is true as to the allegations of proper lookout and failure to warn because Bird did warn the minor and the fact of the warning presumes maintenance of proper lookout, otherwise he would not have observed the tank falling and issued the warning. The evidence was conflicting as to whether the storage tank was against the truck for support. Since it must be presumed that the court found it was not, then it follows that failure to warn as to such alleged condition was not negligence. Under this record the court could have concluded that if Bird did state the accident was his fault, that he was referring to his mistake in placing the gasoline in the diesel fuel tank and there was no allegation of negligence based upon this mistake. The trial court was justified under this record in concluding that Bird was not negligent in respect to any of appellants’ allegations. As above reflected there was no testimony or other evidence on the hearing as to what actually caused the tank to fall.

“In a nonjury case, the trial court is the judge of the credibility of witnesses and the weight to be given their testimony, and findings of the court are entitled to the same weight and conclusiveness on appeal as the verdict of a jury. * * *

“Where there is probative evidence to support the findings and judgment, they are controlling on the reviewing court and will not be disturbed, even though the evidence is conflicting and the appellate court might have reached a different conclusion. * * *

“In determining whether trial court findings are sufficient as a matter of law, or in determining whether the findings are supported by any evidence of probative value, the reviewing court will give credence only to the evidence favorable to the findings, and will disregard all evidence to the contrary. * * *

“Generally, a reviewing court will not disturb implied findings in a nonjury case * * *.” 4 Tex.Jur.2d 398, § 839.

“The power of the court of civil appeals in reviewing the fact findings of the trial court, in a plea of privilege case is the same as in any other appealed case.” 4 Tex.Jur.2d 405, § 840.

“The court, as trier of the facts, was, of course, the sole judge of the credibility of the witnesses and the weight to be given their testimony. * * * The court was not bound by testimony of any one witness but could accept all, part, or none thereof, or he could accept part of the testimony of one witness and part of another, or draw his own deductions from all the evidence.” Denton v. Bennett, 364 S.W. 2d 857, 858 (Tex.Civ.App., 1963, Ref. n. r. e.).

The testimony of an interested witness, even though uncontradicted, presents only a fact issue to be determined by the factfinder who passes upon the credibility of the witness. James T. Taylor, etc. v. Arlington Ind. School Dist., 160 Tex. 617, 335 S.W.2d 371 (1960). See also Houston E. and W. T. Ry. Co. v. Runnels, 92 Tex. 305, 47 S.W. 971, 972 (1898).

Reference is again made to 1 McDonald Texas Civil Practice, 434 (1965), § 4.10.2, supra, wherein the three venue facts under exception 4 are set out. The first of these has been established since it is undisputed that both Bird and Summers reside in the county of suit. Holding as we do that appellants have not established the fact of a bona fide claim against the resident defendant as is required by venue fact III renders unnecessary any discussion of venue fact II as to whether Gulf is a proper party to the claim against the resident defendants.

The appellants’ contention that the trial court erred in sustaining Gulf’s plea of privilege and in failing to hold that venue lies against it in Hood County, Texas, under exception 4, is overruled and the judgment of the trial court is affirmed.


author: DAVIS, Justice.

text:
    Louie WELCH et al., Appellants, v. John W. OVERTON et al., Appellees.
    No. 7807.
    Court of Civil Appeals of Texas. Texarkana.
    May 9, 1967.
    Rehearing Denied May 30, 1967.

      Wm. A. Olson, City Atty., Homer T. Bouldin, Trial Supervisor, Houston, for appellants.
    Will Sears, Sears & Burns, Houston, for appellees.
   DAVIS, Justice.

Plaintiffs-appellees, John W. Overton, William E. Averyt and Paul B. Kennedy, sued defendants-appellants Louie Welch, Mayor of the City of Houston, Henry Kriegel, Director of the Treasury and Treasurer of the City of Houston, Roy B. Oakes, City Controller of the City of Houston, A. T. Krook, Director of Public Utilities of the City of Houston, W. B. Barfield, Clerk of the Corporation Courts of the City of Houston, and the City of Houston, a Municipal Corporation. In plaintiffs’ verified petition, they alleged that they were the holders of classified civil service positions of the City of Houston; that they were unlawfully discharged, or laid-off, by Mayor Welch in violation of Art. Va of the Charter of the City of Houston. The parties will be referred to as plaintiffs and defendants.

Plaintiffs prayed for judgment for their restoration to the employment under the civil service laws, for their salary, for a writ of mandamus compelling Defendant Welch to set aside his order dated January 22, 1962, discharging them 'from their employment and commanding him to direct that all administrative action be taken to restore each of the plaintiffs to their respective positions, and for a writ of mandamus against each of the defendants requiring them to issue vouchers and warrants to pay plaintiffs their salaries from the date of discharge.

Plaintiffs also sought a writ of injunction enjoining and restraining Defendant Welch from terminating each plaintiffs’ employment with the City of Houston, except in strict accordance with the provisions of Section 3 of Art. Va of the City Charter of the City of Houston.

Plaintiffs also sought judgment against the City of Houston determining and declaring that the orders made by Defendant Welch on January 22, 1964, were wholly null and void and ineffective to separate the plaintiffs from their civil service employment with the City of Houston and determining and declaring that each plaintiff is entitled to be paid the salary appertaining the salary to his position from and after January 29, 1964.

Plaintiffs alleged in their sworn petition that only the City Council, when acting in good faith, was empowered to abolish their civil service positions and that no such abolition had ever taken place.

Plaintiffs’ petition was filed in the District Court on February 27, 1964. Defendants only filed a general denial on March 11, 1964. On October 17, 1965, defendants filed their first amended original answer in which they filed a general denial, special denials and a special answer.

The case was tried before a jury. During the trial, after the plaintiffs had offered all of their evidence, the defendants asked leave of the court for permission to file their trial amendment No. 1 in which they sought to allege the provisions of an excerpt from the “1958 Code of Ordinances of the City of Houston Charter, 8 Civil Service, Art. II, Rules, Section 8-88, ‘What Constitutes a Lay-off’ Section 8-88 reads as follows:

“When a position is abolished through re-organization of a department or reassignment of duties, or is discontinued by reason of lack of work or funds, or other good cause, the incumbent of that position shall be so notified and at the stated time his salary and work shall cease. This shall constitute a layoff. It shall be for reasons not reflecting discredit upon the employee and the department head shall so notify the employee in writing at least five days in advance of the layoff, and a copy of the layoff notice forwarded promptly to the director. A suspension, dismissal, or discharge shall not constitute a layoff and vice versa. Every layoff shall be subject to review of the commission.” Emphasis added.

The trial court denied the request and the defendants excepted. After all the plaintiffs’ evidence was in and Mayor Welch had testified for defendants, the defendants requested permission to file their trial amendment No. 2, in which they pled Ordinance 64-1289. The ordinance was passed on July 14, 1964, and approved by Mayor Welch on July 14, 1964. This case was called for trial on June 21, 1966, almost two years after this ordinance was passed. The defendants were given permission to dictate a motion to file trial amendment No. 2 in the absence of the jury. The following took place:

“THE COURT: Mr. Bouldin, you may go on and dictate whatever motion you want to dictate.
“MR. BOULDIN: Now come defendants herein and with leave of the Court first had filed their trial amendment to their first amended answer and would thereby show the Court, in addition to the matters set forth in said first amended original answer, and also in addition to the first defendants’ trial amendment, the following:
“In the alternative, the defendants would show and by Ordinance No. 64-1289, which is as follows (see Defendants’ Exhibit No. 2 herein) was duly enacted by the City Council of the City of Houston, Texas, said ordinance being No. 64-1289, dated July 14, 1964, passed by the Council on July 14,1964, and approved by the mayor of the City of Houston on the 14th day of July 1964; that said ordinance, or its contents, was duly passed by the City Council of the City of Houston, Texas, and was approved by the mayor of the City of Houston, Texas.
“Wherefore, defendants pray that this trial amendment, with the leave of the Court, be filed and that this motion or leave to file such trial amendment be granted by the Court. The defendants, each and all, now move the Court to allow the filing of such trial amendment.
“Wherefore, defendants pray that said motion be granted and that plaintiffs take nothing herein and that defendants go hence without day and recover all costs on their behalf expended.”

After the motion was dictated, arguments were presented to the court in which it was pointed out by plaintiffs’ counsel that it had been almost two years since the purported ordinance was passed and he told the trial court that it injected an issue that was decided in City of San Antonio v. Wallace (1960), 161 Tex. 41, 338 S.W.2d 153. He tried to point out to the court that the pleading came too late. Be that as it may, the record goes on to show:

“THE COURT: Gentlemen, do you have a stipulation concerning the oral dictation of defendants’ motion for leave to file trial amendment?
“MR. SEARS: Yes, sir. The record may show that the plaintiffs have no objection to the defendants’ trial amendment No. 2, having been dictated into the record instead of being filed in writing, provided the court reporter transcribes it within reasonable time, counsel signs it and we are furnished a copy.
“THE COURT: Is that stipulation agreeable?
"MR. BOULDIN: Yes, sir.
“I would like for the record to show, or the reporter in drawing it up to show our last trial amendment as No. 2. We have two in the record. I want to be sure that it is clearly identified.
“THE COURT: Defendants’ motion for leave to file Trial Amendment No. 2 is granted, and subject to the stipulation the reporter will reduce it to writing and make it a part of the record in the case.
“MR. SEARS: To the action of the Court in granting the leave we formally except, Your Honor.”

Apparently, the court reporter never did transcribe the pleadings, attorneys for defendants never did sign them, they were not filed with the District Clerk, nor brought forward in the transcript, and counsel for plaintiffs were never furnished a copy. Trial Amendment No. 2 cannot be considered by this court. Rule 45, Texas Rules of Civil Procedure; Rule 57, T.R.C. P.; Needham v. Cooney (Tex.Civ.App. 1915), 173 S.W. 979, err. ref.; Early v. Burns (Tex.Civ.App.1940), 142 S.W.2d 260, err. ref.; Rio Grande Oil Company v. Barker (Tex.Civ.App.1924), 257 S.W. 967, n. w. h.

The defendants filed a motion for instructed verdict when the plaintiffs rested their case and another motion when all the evidence was in. Both motions were overruled. The plaintiffs filed a motion for the court to withdraw the case from the jury and render judgment in their favor because there were no questions of fact to be decided and the whole case rested upon a proposition of law. This motion was granted. The defendants have perfected their appeal and bring forward 8 points of error.

By their points 1 through 6, defendants say the trial court erred in overruling their motion for instructed verdict because there is no evidence, or insufficient evidence, that any of the defendants unlawfully violated any charter provision of the City of Houston by laying off the plaintiffs from their civil service positions; that the evidence conclusively shows that there was substantial evidence to support the finding of the Civil Service Commission in upholding the action of defendant Mayor Welch, and because the evidence showed Mayor Welch acted in good faith for efficiency and economy and for the best interest of the City of Houston.

Mayor Welch took office on January 2, 1964. On January 16, 1964, defendant Kriegel wrote two letters, identical in content, the first addressed to defendant Bar-field, and the other addressed to defendant Krook. In neither of these letters was any mention made of a job or position ■being abolished. Barfield and Krook, as department heads, were simply directed by Kriegel to notify the plaintiffs that they were no longer on the payroll after January 17, 1964, by virtue of instructions from Mayor Welch.

On January 22, 1964, Mayor Welch wrote letters to each plaintiff, in identical wording, except for the positions that were held by the three plaintiffs. The letter written by Mayor Welch to plaintiff Overton will serve as an example:

“CITY OF HOUSTON
Inter Office Correspondence
“TO Mr. John W. Overton From Mayor
Date January 22, 1964
Subject Elimination of job
“A careful review of the Corporation Courts Department organization with your Director, Mr. W. B. Barfield, has led us to the conclusion that your position is to be abolished through re-organization of the department, involving the re-assignment of your duties to other members of the department. This is being done in the interest of more effecient and economical operation of the department.
“Accordingly, you were notified verbally on Friday, January 17, 1964, that your job was abolished as of the close of business on that date and that your employment would be terminated coincident with elimination of your job.
“Under Section 8-88 of the City Code, you are entitled to a written notice of lay-off five days in advance of actual termination of employment. Therefore, you will be paid through January 29, 1964, five working days after this written notice was delivered to you.
“Your employment records with the City will indicate that your lay-off resulted from re-organization of the department as contemplated by Section 8-88 of the City Code so as not to affect adversely your employment opportunities with the City of Houston.
/a/ Louie Welch
Mayor”

These letters were probably the result of studying the charter requirements for removal of civil service employees from their positions. The plaintiffs exhausted their administrative relief by appealing to the Civil Service Commission. It is an admitted fact that the City of Houston is a “Home Rule City”, and the plaintiffs were civil service employees and held positions duly created by ordinance of the City of Houston. Only the City Council of the City of Houston had the power, when acting in good faith and under the conditions and restrictions set down by law, to abolish any office or position. The City Council had not abolished any of the three positions held by the plaintiffs. There was no charge of malfeasance or misfeasance against either one of the plaintiffs shown in the letter by Mayor Welch. Each of the plaintiffs denied, under oath, the truth of Mayor Welch’s statement concerning the termination of their employment and the ostensible reasons given therefor. Plaintiffs charged that Mayor Welch’s assertion that the “job was abolished” was nothing but a sham and a pretense in an effort to illegally circumvent the Civil Service provisions of the City Charter. Mayor Welch never filed with the Civil Service Commission a statement of the suspension of the plaintiffs giving the reasons therefor. The Civil Service Commission upheld the action of Mayor Welch. The plaintiffs then filed their suit in the District Court.

The defendants have not cited an article of the Constitution or Statutes, a provision of the City Charter, nor a decision to uphold the action of Mayor Welch in abolishing these positions and discharging the employees. It was shown by the evidence that two forms were issued on January 30, 1964, to plaintiffs Averyt and Kennedy showing that they had been “discharged”. Hiram T. Downard, Jr., Director •of the Civil Service Department, had the forms changed to show that Averyt and Kennedy were “laid-off”. In the first form that was issued, it showed that the duties of Averyt and Kennedy had been “assigned to others”. The other form showed the “lay-off” would be “due to re-organization •of the department involving the re-assignment of the employees’ duties to other employees of the department”. Be that as it may, Mayor Welch did not have the authority to “lay off” the civil service employees. Section 8 of Article VII of the City Charter of the City of Houston reads as follows:

“The City Council shall, consistent with the provisions of this act, have power to establish any office that may in its opinion be necessary or expedient for the conduct of the city’s business or government, and may fix its salary and define its duties; provided, however, that all offices established by the Council shall be subject to discontinuance or be abolished by the Council at any time, and any incumbent of any office, except the Controller, may be removed at any time by the Mayor, with or without the concurrence of the Council; and in no case shall any officer or employee of the city be entitled to receive any compensation or emolument of any office which may be abolished, or from which he may be removed, except for services rendered to the date when the office was abolished or the incumbent removed.” Emphasis added.

See Bryan v. Sundberg (1849), 5 Tex. 418; Crosthwait v. State (1940), 135 Tex. 119, 138 S.W.2d 1060; Taylor v. Goodrich (1897), 25 Tex.Civ.App. 109, 40 S.W. 515; Gabel v. City of Houston (1867), 29 Tex. 335; City of Austin v. Thompson (1949), 147 Tex. 639, 219 S.W.2d 57; Foster v. City of Waco (1923), 113 Tex. 352, 255 S.W. 1104. Only the City Council of Houston, while acting in good faith, under the provisions of the Constitution of the State of Texas, the Civil Statutes and the Charter of the City of Houston, may abolish the position of a classified position of the Civil Service employees by an ordinance duly enacted.

The trial judge, Hon. Warren P. Cunningham, in withdrawing this case from the jury and rendering judgment for the plaintiffs, had this to say:

“I have ruled in accordance with the law of Texas that when a civil service system has been established in a city such as the City of Houston that the mayor has no authority to abolish any civil service position. I am convinced that the law of Texas requires an ordinance passed by City Council abolishing the position.”

(Note: There is an interesting article by Hon. Trueman O’Quinn, now Associate Justice of the Third Court of Civil Appeals in Austin, formerly City Attorney of Austin, on the “History, Status, and Function of Cities, Towns and Villages”, Title 28 of Vernon’s Civil Statutes that appears in Volume 2A, pages XIII to XXXVIII.)

The defendants take the position in their brief that the case of City of San Antonio v. Kneupper (1960), 161 Tex. 153, 338 S. W.2d 121, and City of San Antonio v. Wallace (1960), 161 Tex. 41, 338 S.W.2d 153, are not in point. Although these cases involve policemen and were decided under the provisions of Art. 1269m, Vernon’s Ann.Civ.St., the holdings of the Supreme Court are direct in point in these cases. The policemen and the civil service employees in this case, all were civil service employees. The law as announced in the Kneupper and Wallace cases is in point here. We hereby cite these cases in support of our holdings.

Under the pleadings, it was the duty of the defendants to prove the action taken was legal. This, they could not do. It was also the defendants duty to prove that they acted in good faith and for the efficiency, economy and best interest of the City of Houston. This, they did not do. For the witnesses to merely state that the action was taken for the efficiency and economy and best interest of the City of Houston is not sufficient. The defendants should have proved that the jobs were not necessary, that they could be operated for less money by other employees and that it would be more satisfactory to the public in general. The plaintiffs offered the evidence by the City Controller from the annual report, which showed that for the year 1963, the total revenues collected amounted to $71,679,164.87. That the total expenditures amounted to $68,654,036.38, leaving a balance (or surplus) of $3,025,128.49. That in the year 1964, the total revenues collected amounted to $74,579,162.46. The total expenditures amounted to $76,470,473.79, leaving a deficit of $1,891,411.33. Therefore, the total expenditures for the City of Houston for the year 1964, (the year the civil service employees were laid off) amounted to $7,816,437.41 more than it amounted to for the year 1963, while the employees were working. The points of error are overruled.

By their 7th and 8th points of error, defendants say the trial court erred in denying the motion for request to file their trial amendment No. 1, and refusing to let them file the same. They only cite the cases of Shaw v. Tyler Bank and Trust Company (Tex.Civ.App.1955), 285 S.W.2d 782, w. r., n. r. e. and Galaviz v. Langdeau (Tex.Civ.App.1961), 352 S.W.2d 352, n. w. h. in supporting of their contention. These cases are not in point. Section 8-88 of the City Charter of the City of Houston was a part of the same when the employees were laid off. If they had wanted to rely upon it, they should have pled it long before. But Section 8-88 does not either expressly, or impliedly, confer upon the Mayor of the City of Houston the right to “abolish”' a position or “lay off” a civil service employee. Even if the defendants had been permitted to plead the ordinance, it would not have availed them anything. Rule 66, T.R.C.P., and the authorities cited thereunder. The points are overruled.

Many of the facts alleged by the plaintiffs in their sworn petition for mandamus were not specially denied by the defendants. A general denial is not sufficient and such facts are admitted. City of Houston v. Freedman (Tex.Civ.App.1956), 293 S.W.2d 515, err. ref., n. r. e.; Town of Pearsall v. Woolls (Tex.Civ.App.1899), 50’ S.W. 959, n. w. h.; Burglmeister v. Anderson (1924), 113 Tex. 495, 259 S.W. 1078; City of San Antonio v. Routledge (1907), 46 Tex.Civ.App. 196, 102 S.W. 756, err. ref. The pleadings were held to be insufficient in Donna Irrigation District v. West Coast Life Insurance Company (Tex.Civ. App.1937), 103 S.W.2d 1091, n. w. h.

The judgment of the trial court is affirmed.


author: GREEN, Chief Justice.

text:
    ROBERTSON TANK LINES, INC., et al., Appellants, v. J. A. SAWYER, Appellee.
    No. 285.
    Court of Civil Appeals of Texas. Corpus Christi.
    May 31, 1967.
    Rehearing Denied June 29, 1967.

      James W. Mehaffey, of Keith, Mehaffey & Weber, Beaumont, for appellants.
    Fred Galindo, of Hardy, Galindo & Sharpe, Brownsville, for appellee.
   OPINION

GREEN, Chief Justice.

This is a common law damage suit for personal injuries alleged to have been sustained by plaintiff-appellee in a collision between his car and a tank truck owned by defendant-appellant Robertson Tank Lines, Inc. and being driven in the course of his employment by its employee, defendant-appellant Briones. After the parties had closed their evidence, the case was duly submitted to the jury on issues of negligence of the defendants, contributory negligence of plaintiff, and damages. The jury, after due deliberation, announced to the court that they were ready to report. Thereupon, the jury being in open court, with the judge, the parties and their counsel present, the court asked the jury whether they had reached a verdict, to which the foreman replied that they had, and the verdict, signed by the foreman, was delivered to the court and the answers to all issues read aloud in open court. There was no request for a poll of the jury. After having read the answers, the trial court without accepting the verdict and before excusing the jury, retired into a consultation room with the attorneys for both parties to discuss with them the matter of a possible conflict in certain answers.

The jury had answered all issues of contributory negligence favorable to plaintiff. All issues of primary negligence of the defendants were answered favorably to defendants except that the jury found from a preponderance of the evidence, in answer to special issues eleven, twelve and thirteen, that (11) defendant truck driver on the occasion in question failed to timely apply the brakes of the truck, (12) which failure was negligence, and (13) which negligence was a proximate cause of the collision in question.

In answer to issue No. 21, the jury found from a preponderance of the evidence that immediately prior to the collision in question Briones, the truck driver was faced with a sudden emergency, and, to issue No. 22, that acting upon such sudden emergency Briones thereafter used the degree of care which a person of ordinary prudence would have used under the same or similar circumstances, taking into account the existence of such, sudden emergency. The term “sudden emergency” was defined to mean “an emergency which arises suddenly and unexpectedly, without having been proximately caused by any negligence on the part of Felix Briones and which called for immediate action on his part without time for deliberation.”

In the conference between the court and counsel, the attorneys for plaintiff argued that there was no irreconcilable conflict between the answers to issues 11, 12, and 13 on the one hand, and issues 21 and 22 on the other, while defense counsel contended that there was such conflict. We copy from the judgment the specific findings of the court as to what next occurred:

“The Court was of the opinion at that juncture of the trial that since there might be a conflict in the findings of the verdict in its then form and since the Jury was still in the Jury Box available for further determination, the Jury’s attention should be called to the apparent conflict between its Answers to said Special Issues Numbers 11, 12, and 13' and Special Issues Numbers 21 and 22 for the Jury’s further deliberations. The Court was further of the opinion at that time that, in the absence of objection by the parties, the referral of the verdict to the Jury for further deliberations could be done without prejudice to any of the rights of the respective parties and that a full study of the legal points involved with respect to the verdict in its then form and as finally received and filed could be postponed for later decision in the Final Judgment as Plaintiff and Defendant might be entitled to rights or judgment by virtue of either of the findings of the jury.
“The Court then and there communicated his opinions and suggested procedure to the attorneys for the Plaintiff and Defendant and, no objection being made, the Court and attorneys then returned to the Courtroom and the jury was instructed by the Court that there was a conflict between Special Issues 11, 12, and 13, and Special Issues 21 and 22, and the Court and counsel then retired from the jury deliberating room, which was held in the courtoom and the jury proceeded to deliberate further upon said Special Issues and thereafter announced to the Court that they were ready to return a verdict and the verdict was returned and filed as follows:”

All answers previously made were unchanged except the answer to special issue No. 13, which was changed from “we do” to “we do not”, so that the jury answered that they did not find from a preponderance of the evidence that the negligence of the truck driver in failing to timely apply the brakes was a proximate cause of the collision. Accordingly, this verdict did not find any negligence of defendant to be the proximate cause of the collision.

This verdict was delivered in open court by the foreman to the court, the answers to issues 11, 12, 13, 21 and 22 were read aloud in open court, there was no request to poll the jury, the jury was discharged, and the verdict was delivered by the court to the clerk for filing, and is incorporated in the court’s judgment.

Both parties filed motions for judgment, defendant’s motion being based on the verdict as finally accepted and filed by the court, and plaintiffs styled a motion for judgment non obstante veredicto, asking for judgment on the jury’s answers as originally brought in. The court overruled defendant’s motion, and granted plaintiffs, stating as his reasons therefor “ * * * because the Court is now of the opinion that there was no conflict in the Answers contained in the verdict as originally delivered to the Court, that Plaintiff would have been entitled to Judgment upon such original verdict and the Plaintiff did not waive his right to such judgment by the Court’s action in requesting further Jury deliberations as above set out.”

“It is, therefore, ORDERED that Defendant’s Motion for Entry of Judgment on the Verdict is hereby overruled; and Plaintiff’s Motion for Judgment Non Obstante Veredicto is hereby granted.”

The appellants by their first ten points of error take the three-fold position:

(1) There is, and there can be, only one verdict. At any time until the Court receives the verdict, and the parties have an opportunity to poll the jurors, there is no verdict, and the jury may change its answers to the Special Issues.
(2) Whether or not there was conflict in the answers as initially returned by the jury, the Court did not commit error by sending the jury back for further deliberations.
(3) Once the jury did change its answers, and once the verdict was received, the Court was under a duty to enter a judgment thereupon as a ministerial act; even if the Court committed error by sending the jury back, it was improper to cure that error by granting a motion for judgment non obstante veredicto.

The findings of the jury that the defendant truck driver was guilty of negligence proximately causing the coilision in response to issues 11, 12, and 13 were not in irreconcilable conflict with its findings of sudden emergency, issues 21 and 22, and absent findings that the emergency constituted the sole proximate cause of the collision the specific findings of negligence override the general emergency finding, and the emergency issues should have been disregarded in rendering judgment. Stephens v. McCarter, Tex.Civ.App., 355 S.W.2d 93, n. w. h.; Prasek v. Dudley, Tex.Civ.App., 395 S.W.2d 876, writ ref. n. r. e.; Missouri Pacific Railroad Company v. Young, Tex. •Civ.App., 403 S.W.2d 898, n. w. h.; Mrs. Baird’s Bakeries, Inc. v. Roberts, Tex.Civ. App., 360 S.W.2d 850, writ ref. n. r. e.

However, in deciding whether the judgment entered should be permitted to stand, the question before us is not whether the trial court erred in sending the jury back for further consideration, but is whether the ■answers of the jury as originally returned into court became and constituted the final verdict of the jury upon which the court was justified in rendering judgment.

In De Busk v. Cadenhead, 346 S.W. 2d 145, 148, Tex.Civ.App., wr. ref. n. r. e., the court stated the rule as follows:

“ * * * A verdict does not become an official act and effective in law until it is received and accepted by the Court, and before this time and up to the time of tender and acceptance, any juror may dissent therefrom.”

See, also, Lee v. Galbreath, Tex.Civ.App., 234 S.W.2d 91, n. w. h.; Wheeler v. Oxford, Tex.Civ.App., 321 S.W.2d 188, n. w. h.; State v. Finch, Tex.Civ.App., 349 S.W.2d 780, n. w. h.; Sharp v. Reynolds, Tex.Civ. App., 395 S.W.2d 725, n. w. h. Rule 294, Texas Rules of Civil Procedure.

The trial court did not accept the verdict as originally returned by the jury, and until the court did receive and accept the verdict, any juror could dissent therefrom. Counsel for the appellee did not raise any objections to the action of the trial court in returning the charge to the jury for further deliberation with instructions of a conflict in certain of their answers as heretofore stated. The case therefore was still with the jury, and the facts show that, prior to any acceptance of a verdict by the court, the jurors did change their minds as to issue No. 13. The verdict as finally returned, containing no findings of negligence of the defendant proximately causing the collision, was accepted and ordered filed by the court. There can be only one final verdict in a trial, and in our judgment the final verdict in this case was the one which was received and accepted by the trial court, and ordered filed by him.

We hold that the court erred in rendering judgment for plaintiff-appellee, and that such judgment should be reversed.

Although we have heretofore stated that the matter of error of the trial court in sending the jury back for further consideration of their verdict is not decisive on the issue of reversal, we do believe that it should be considered in deciding whether the case should be rendered for appellant, or remanded for new trial. The improper instructions given the jury that there was a conflict between their answers to issues 11, 12 and 13 on the one hand, and issues 21 and 22 on the other may very likely have led to the change in the jury’s answer to issue 13. We feel that in the interest of justice to all parties, the cause should be remanded for a new trial. Dahl-berg v. Holden, 150 Tex. 179, 238 S.W.2d 699 (1951); Rule 434, Texas Rules of Civil Procedure.

We have considered all points of appellant of factual insufficiency of the evidence to support the findings of the jury in answer to certain special issues specified in such points, and overrule same. Since the judgment is to be reversed, we see no reason to discuss these points in further detail, other than to state that we find the evidence to be factually sufficient to support the jury’s findings, and that such findings are not against the great weight and preponderance of the testimony.

Reversed and remanded.


author: RENFRO, Justice.

text:
    The AETNA CASUALTY AND SURETY COMPANY, Appellant, v. Wallace D. CURLEE, Appellee.
    No. 16843.
    Court of Civil Appeals of Texas. Port Worth.
    June 16, 1967.

      Simon, Crowley, Wright, Ratliff & Miller, and Harold A. Mueller, Fort Worth, for appellant.
    George Busch, Fort Worth, for appellee.
   OPINION

RENFRO, Justice.

Judgment, based upon jury findings, was rendered in favor of plaintiff for total and permanent benefits.

Defendant’s first point claims error on the part of the court “in entering its judgment in favor of plaintiff for total and permanent benefits because there is no evidence to support such jury finding”; and in point two it contends the court erred in entering judgment for total and permanent benefits because “such jury finding of total and permanent incapacity is so clearly contrary to the overwhelming weight and preponderance of the evidence that it is manifestly unjust.”

Eleven issues were submitted to the jury. All issues were answered favorably to plaintiff (except unanswered conditionally submitted issues).

It will be noted that defendant’s points of error do not refer to a particular issue, or error, as contemplated by Rule 418, Texas Rules of Civil Procedure, and is therefore a general assignment of error. Under authority of Rule 418 and Texas Employers Ins. Ass’n v. Hawkins, 369 S.W.2d 305 (Tex.Sup., 1963), and Missouri-Kansas-Texas Railroad Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931 (1956), we could, as plaintiff requests by counterpoint, refuse to consider the points.

Defendant’s argument, however, makes it clear that it believes plaintiff should not be allowed total and permanent benefits because he was at time of trial earning more as a Baptist pastor than he was earning as a stock clerk at the time of the injury. We overrule plaintiff’s counterpoint and will consider defendant’s contentions as presented and briefed.

Plaintiff testified: prior to moving to Fort Worth in August, 1964, he had worked as a truck driver for five years and had been pastor of a church in Illinois for seven years. In 1963 he underwent a laminectomy for removal of a ruptured disc, but recovered and had no limitation in his movements. He registered at Southwestern Baptist Seminary for special courses in September, 1964. In October, 1964 he was employed by Great Atlantic and Pacific Tea Company as a stock clerk. His work consisted mainly of physical labor. On February 20, 1965, as he picked up a box of drugs, he hurt his lower back. Although in pain, he continued to work for a week. He went to Dr. Fred Sanders, who x-rayed him, then sent him to a hospital. Bed rest and traction were applied but the pain continued. After a myelogram, surgery was performed on his back for a spinal fusion. He remained in the hospital about two weeks. After returning home he wore a brace for sometime and reported to the doctor at intervals. In June of 1965 he became pastor of the First Baptist Church of Forest Hill. His duties are the regular ministerial duties of a church pastor— preaching, performing wedding ceremonies and burying the dead, etc. He is still a part-time student at the Seminary. The only manual effort required in his work is bending or stooping to a file cabinet and in immersing converts. In bending or moving around his back is aggravated. His pain is eased to some extent when he takes exercises and applies heat. He is not able to do anything that requires lifting or stooping. He does not think his condition is improving. Since the injury he has “char-ley horses” or knots in his legs. Every night, one to three times, the pain from such knots awaken him and the pain is so intense he must “bound out of bed” and stand up to ease the pain. He had no such trouble before the injury. His salary as pastor is $70.00 per week, plus a housing allowance. His salary is in excess of his salary at A. & P. His purpose in life is to be a pastor. He cannot return to the kind of work he was doing at the time of his injury. There is a definite limitation on his ability to move, bend, stoop, etc. He does not believe he could ever in the future hold a job like the job he was doing before the injury; his back is not getting any better. If he, for any reason, found it necessary to leave the ministry he could not return to a job requiring physical labor because of his back condition. Getting in and out of cars aggravates his back. As an aftermath of a bowel blockage sustained in the hospital following the operation, he still passes blood, and he still takes medicine for that ailment. He is further restricted and hindered in his pastoral duties through the necessity of taking frequent rests during the day. Dr. Fred Sanders, called as a witness by the defendant, testified: he is a medical doctor specializing in the practice of orthopedic surgery. He first saw plaintiff March 2, 1965. He sent plaintiff to the hospital that same day. On the 10th of March a fusion of the fourth lumbar and fifth lumbar vertebrae was carried out, utilizing bone from plaintiff’s iliac crest. Fusion, as was done, means welding together the two vertebrae, the purpose being to stabilize that area. Plaintiff remained in the hospital 17 days. He saw plaintiff at intervals until September 13, 1965. He is of the opinion plaintiff would have a permanent general performance disability, approximately ten to fifteen per cent of the body as a whole. Based on his conception of the duties of a minister he thinks plaintiff will not be prevented from performing such duties. He does not know of any employer who would hire plaintiff in the condition his back is in now (date of trial 10-26-1966). That condition is permanent. He noted on the hospital records “under the exposure of the L 4-5 interspace, a large extruded disc was removed after a great deal of difficulty and mobilizing of the nerve root.” In his opinion plaintiff’s incapacity is permanent and total in that plaintiff cannot get a job doing the usual, ordinary task of a workman.

The court in its charge defined Total Disability in substantially the same manner as approved in Texas Employers’ Ins. Ass’n v. Mallard, 143 Tex. 77, 182 S.W.2d 1000 (1944).

Defendant did not object to the definition, nor did it object to any of the issues submitted.

The evidence summarized above and the hospital records which were in evidence fully support the jury findings of total and permanent incapacity as defined in the charge, and such findings are not against the overwhelming weight and preponderance of the evidence.

The fact that plaintiff has continued to work and earn money, and at the same rate of pay, or more, as before the injury does not establish conclusively that he has not suffered loss of earning capacity. Texas General Indemnity Co. v. Hernandez, 388 S.W.2d 334 (Tex.Civ.App., 1965, no writ hist.).

Defendant relies upon Texas Employers’ Ins. Ass’n v. Moran, 261 S.W.2d 855 (Tex.Civ.App., 1953, writ dism.); Texas Employers’ Ins. Ass’n v. Vineyard, 3Í6 S.W.2d 156 (Tex.Civ.App., 1958, no writ hist.); and Fidelity & Casualty Co. of New York v. Burrows, 404 S.W.2d 353 (Tex.Civ.App., 1966, ref., n. r. e.), for its contention that the jury findings are against the great preponderance of the evidence.

It is difficult to find any two cases that are exactly the same, and quite often each workmen’s compensation case must be decided upon its own peculiar facts. Fidelity & Casualty Co. of New York v. Burrows, supra. The facts in this case, as shown in the record, are so dissimilar to the facts in the above cited cases that the holdings therein are not applicable, and certainly not controlling in the instant case.

It is established in Texas that if a claimant’s capacity and efficiency to work are not the same as before the injury he is entitled to compensation regardless of the fact that he was paid, after the injury, as much or more than he earned prior to or at the time of the injury. 63 Tex.Jur. 2d 20, § 140.

In Trinity Universal Ins. Co. v. Scott, 342 S.W.2d 348 (Tex.Civ.App., 1961, ref., n.r.e.), this court, through Chief Justice Massey, wrote: “The primary question posed on this appeal is whether or not, under the Texas Workmen’s Compensation Act, Vernon’s Ann.Tex.St., Art. 8306 et seq., an injured workman may secure a valid judgment for total and permanent disability when he is at time of the trial actually earning money in excess of the wages upon which his weekly compensation is calculated.

“We do not consider this to be an open question in view of prior decisions upon the matter.” The opinion then lists 41 cases in support of the holding that a judgment will not be reversed merely because there is evidence in the record showing that the disabled employee is in fact working and earning money, regardless of the amount of money being earned; that such proof constitutes a part of the factual evidence which may and should be taken into consideration by the jury in answering the issues upon incapacity or disability, but does not, as a matter of law, preclude the award of compensation even for total and permanent disability.

Plaintiff is fortunate in that he can substantially perform the duties of a Baptist pastor, but his good fortune does not excuse defendant from compensating him for the loss of capacity and efficiency to work as contemplated by the Workmen’s Compensation Law.

Plaintiff, by counterpoint, requests that damages in the amount of ten per cent of the judgment be assessed against defendant as provided for by Rule 438, T.R. C.P. The penalty authorized by the rule should not be assessed against an appellant, even though the appellate court finds that the appeal is without merit, in the absence of a showing that the appeal was taken for delay and there was no sufficient cause for taking such appeal. Ollok v. United Heat Treating Co., 318 S.W.2d 785 (Tex.Civ.App., 1958, no writ hist.); Jackson v. Hexter, 372 S.W.2d 570 (Tex.Civ.App., 1963, no writ hist.).

Even though we have found against defendant on the merits, we cannot say, without considerable doubt, that the appeal was taken for delay. Plaintiff’s counterpoint is overruled.

Judgment of the trial court is affirmed.

Affirmed.