author: DIXON, Chief Justice.

text:
    Albert R. EVANS, Appellant, v. GENERAL INSURANCE COMPANY OF AMERICA, Appellee.
    No. 16477.
    Court of Civil Appeals of Texas. Dallas.
    April 9, 1965.
    Rehearing Denied May 14, 1965.

      W. Newton Barnes, Dallas, for appellant.
    Harris, Ball & Davis, Arlington, for ap-pellee.
   DIXON, Chief Justice.

Appellee General Insurance Company of America, hereinafter called General Insurance, brought this suit against Albert R. Evans, Morris W. Hussey and Shar Trucking, Inc., hereinafter called the Company. Appellee sued for and was awarded a declaratory judgment that it is under no obligation to defend Shar Trucking, Inc. or Morris Hussey in a personal injury suit brought against them by Evans.

Shar Trucking, Inc. is a corporation engaged in hauling sand, gravel and other materials. It is the insured in a policy of liability insurance issued by General Insurance. Hussey, a truck driver, is an employee of Shar Tracking, Inc. Evans is President of Shar Trucking, Inc.

On August 22, 1960 Evans, President of the Company, was injured when struck by a Company truck operated by Hussey on the storage lot where the Company’s trucks were kept and its office was located. Thereafter Evans sued the Company and Hussey for damages for personal injuries allegedly caused by Hussey’s negligent operation of the truck.

In its amended petition and trial amendment appellee General Insurance alleges that it is under no duty to defend the suit of Evans against the Company and Hussey because (1) Evans is an employee of the Company and the insurance does not apply to an employee with respect to an injury by another employee; (2) under the exclusions of coverage named in Sec. (g) of the policy the insurance does not apply to bodily injury of an employee of the insured arising from his employment; and (3) appellant Evans is a majority stockholder in the Company, therefore Evans and the Company are one and the same and Evans as party plaintiff cannot be allowed to bring suit against himself, which he is attempting to do when he sues the Company, his alter ego.

In his brief appellant Evans says (and it is not contradicted by appellee) that after General Insurance filed this suit for declaratory judgment he, Evans, dismissed his suit for personal injuries against the company and Hussey, and filed a cross-claim in this suit for his damages. On motion of appellee the cross-claim was severed from this suit. Following severance General Insurance filed its amended petition for declaratory judgment and Evans filed his second amended answer.

After a nonjury trial of appellee’s suit for declaratory judgment the court rendered judgment declaring that General Insurance does not owe a duty to defend the damage suit filed by Evans against the Company and Hussey.

The insurance policy in question was never introduced in evidence, nor is a copy of it attached to appellee’s amended petition. In a supplemental transcript there is a copy of an insurance policy which is described in the index as “Insurance Policy attached to Plaintiff’s Original Petition as Exhibit ‘A’ However, the original petition is not shown anywhere in the record.

In his brief appellant Evans says, “Since the trial court and this court do not have before them the full text of the insurance policy in question we are constrained to accept the allegations of paragraphs V and VI of the Amended Petition for Declaratory Judgment as being the only provisions thereof pertinent to this case.”

Paragraphs V and VI, above referred to, of the amended petition of appellee General Insurance are as follows:

“V.
Plaintiff would show the court that under the provisions of Section III of said policy of insurance, Plaintiff is relieved of the duty to defend on the policy in that such provision provides, in effect, that insurance for other than the named insured (Shar Trucking, Inc.) does not apply to an employee with respect to an injury to another employee, and that, therefore, under the fact situation presented in said suit on file, Defendants do not fall within the ‘definition of insured’.
“VI.
Further, Plaintiff would show the court that said policy provides (Exclusions, Sec. (g)) that the policy does not apply to bodily injury of an employee of the insured arising from his employment.”

Another important document which was not introduced in evidence and is not shown in the record anywhere is Evans’ petition setting up his cross-claim which was severed from this suit and which contains the allegations that furnish the basis of Evans’ suit for damages against the Company and Hus-sey. As we shall later point out the nature of Evans’ suit and the duty of General Insurance to defend it will depend on the allegations in the petition setting up the cross-claim.

OPINION

In his first point on appeal Evans says the court erred in ruling that Evans, President of the Company, was an employee hy virtue of such office within the meaning of the policy. Appellee General Insurance in its first counterpoint says that the court did not err in so ruling.

We agree with appellant. In Paragraphs V and VI of its petition for declaratory judgment appellee pleads that the insurance coverage does not apply when an employee causes an injury to another employee, or an injury to an employee of the insured arising from his employment. But the record before us fails to disclose that there is any provision in the policy to the effect that the insurance coverage does not apply when an employee negligently causes an injury to an officer of the corporation who is acting at the time in his capacity as an officer and not as an employee of the insured.

The mere fact that a person is an officer of a corporation does not mean that by virtue of his status as an officer he must also be regarded as an employee. In Horne Motors, Inc. v. Latimer, Tex.Civ.App., 148 S.W.2d 1000 the secretary-treasurer of a corporation was also employed as a bookkeeper. He was injured due to the negligence of an employee of the corporation. The facts showed that at the time of his injury he was acting in his capacity as an officer of the corporation, not as an employee. It was held that he had a right to sue the corporation. We think the case is authority for our holding that though a person may be an officer or an employee of a corporation, or both, he is not as a matter of law an employee by virtue of the fact that he is an officer. Appellant’s first point on appeal is sustained.

In his second point on appeal appellant says that the court erred in finding that the injury of Evans arose from his employment within the meaning of the policy, there being no evidence to support such finding.

Again we agree with appellant. Our Supreme Court in the recent case of Heyden Newport Chem. Corp. et al. v. Southern Gen. Ins. Co., Tex., 387 S.W.2d 22, has held that “in determining the duty of a liability insurance company to defend a lawsuit the allegations of the complainant should be considered in the light of the policy provisions without reference to the truth or falsity of such allegations and without reference to what the parties know or believe the true facts to be, or without reference to a legal determination thereof.”

The Supreme Court in the above case expressly approved and quoted from Maryland Casualty Co. v. Moritz, Tex.Civ.App., 138 S.W.2d 1095, as follows:

“ Tn the instant case, the issue involved depends not upon ultimate liability, established after trial on the merits, of the insurer for the damages sustained; but upon the provision of the policy wherein the insurer bound itself to defend any suit against the insured alleging damages within the terms of the policy even though such suit may have been groundless, false or fraudulent. In such instance, in testing the liability of the insurer to defend, the proof is not material. Liability depends upon the allegations of the plaintiff’s petition.’ ” (Emphasis added)

As we have said, the petition of Evans in his suit against the Company is nowhere shown in the record before us. We have no way of knowing what his allegations are in that suit which is the severed cross-claim referred to heretofore. The burden was on appellee General Insur-anee in its suit for declaratory judgment to show by Evans’ petition in his damage suit against the company that Evans had alleged a suit which did not come within the terms of the policy.

We do not consider the evidence in this case material in view of the holding in the Heyden Newport Chemical case above referred to. Nevertheless, we have examined the statement of facts. We find no evidence that would support a finding that Evans was acting as an employee rather than as an officer at the time he was injured. Appellant’s second point is sustained.

In his third point appellant asserts that the court erred in finding that the suit by Evans against the Company is against public policy, therefore General Insurance has no duty to defend the Company. General Insurance in answering this point argues that the Company is merely the alter ego of Evans and he will not be allowed to sue himself.

Our Supreme Court long ago held that a contract, not in itself immoral, nor in contravention of any law, cannot be contrary to public policy. Miller v. Roberts, 18 Tex. 16, 20 (1856). It has also been held that to be contrary to public policy a contract must involve the interest of others than the parties to the contract. St. Regis Candies v. Hovas, 117 Tex. 313, 3 S.W.2d 429, 433 (Comm. of App., opinion adopted); Reef v. Mills Novelty Co., 126 Tex. 380, 89 S.W.2d 210; Crutchfield v. Associates Investment Co., Tex.Civ.App., 376 S.W.2d 957. Since the petition for cross-claim is not shown in the record there is no basis for our holding that Evans alleged a contract contrary to public policy. And an examination of the statement of facts discloses no evidence that the contract here involved is contrary to public policy.

Appellee contends that since Evans testified that he owns 70 per cent and his wife 10 per cent of the corporation stock, the Company is the alter ego of Evans himself, consequently he will not be permitted to sue himself, as he is attempting to' do by his suit against the Company. There is no showing in the record before us that the Company is merely Evans’ alter ego.

The fact that a majority or even all of a corporation’s stock is owned by one person does not of itself constitute the corporation the alter ego of such person, or destroy the corporation as a separate entity, or render such person the legal owner of the corporation’s property. Commonwealth of Massachusetts v. Davis, 140 Tex. 398, 168 S.W.2d 216, 224. Of course in a certain sense, as restricted by law, the owner or owners of a majority stock control the legitimate operation of the corporation within the limits of its corporate purposes and functions. But unless the owner or owners of all or nearly all of the corporation stock themselves ignore the corporate entity, or the corporation is shown to be a mere fiction or false front set up by the owner or owners of all or nearly all of the corporation stock to conceal his or their fraudulent business operations individually the corporate entity will not be pierced or ignored in order to hold such stockholders accountable under the alter ego doctrine. See 14 Tex.Jur.2d 128-134 and cases there cited. Appellant’s third point is sustained.

We have concluded that the judgment should be reversed. However, under the circumstances we do not believe that we should render judgment in favor of appellant. Perhaps in another trial the insurance policy in question and the petition in Evans’ damage suit against the Company, that is, Evans’ severed cross-claim, will appear in the record. Then a better analysis of Evans’ suit will be possible to determine whether it is the kind of legal action which General Insurance is obligated to defend under the terms of its policy.

Reversed and remanded.


source: Caselaw Access Project

author: BATEMAN, Justice.

license: Public Domain

text:
    DALLAS TRANSIT COMPANY, Appellant, v. W. J. HAMMER, Jr., Appellee.
    No. 16489.
    Court of Civil Appeals of Texas. Dallas.
    April 30, 1965.
    Rehearing Denied. May 28, 1965.

      Turner, Atwood, Meer & Francis, and Dean Carlton, Dallas, for appellant.
    Helm, Jones & Pletcher, and George E. Pletcher, Houston, for appellee.
   BATEMAN, Justice.

The appellee W. J. Hammer, Jr., recovered a judgment of $25,000 against the appellant Dallas Transit Company for bodily injuries sustained in a collision on April 30, 1962 between appellant’s bus and an automobile operated by appellee.

The undisputed facts were that appellant’s bus was going South, and appellee was going North, on the Houston Street Viaduct in Dallas. There is a fairly sharp turn in this viaduct near the north end. The two vehicles began negotiating this turn at about the same time, the bus turning to its right and the automobile to its left. It was raining heavily. This viaduct has two traffic lanes on each side of the center line. Appellee’s car was in the inside northbound lane. As the bus approached the turn it moved from its outside lane partly into its inside lane, the driver thinking it necessary to do so to make the turn. As the two vehicles neared each other, the bus skidded into the left side of appel-lee’s car. No evidence was offered to explain why the bus skidded except that it was said that the wet street was slippery. The bus driver lost control of the bus as soon as it started skidding.

The jury found in answer to special issues that: (1) the appellant’s bus traveling on the wrong side of the road was negligence, (2) which was a proximate cause of the collision; (3) appellant’s bus driver failed to maintain such control of the bus as would have been maintained by a person of ordinary prudence in the exercise of ordinary care under the same or similar circumstances, (4) which failure was a proximate cause of the collision; (S) the collision was not the result of an unavoidable accident; (6) at the time and just before the collision the bus did not skid suddenly and unexpectedly; and (8) the appellee’s damages were $25,000.

Appellant presents thirty-three points of error on appeal, which are divided into five groups and will be so considered and disposed of by us.

The first group consists of Points 1 through 6. It is asserted therein that Special Issues Nos. 1, 2, 3 and 4 are global in nature and in reality constitute a general charge. The first and fourth points of error assert that for that reason there was error in the submission of these four issues; the third and sixth points assert error in the awarding of judgment on such findings; and the second and fifth points say that the court erred in overruling appellant’s motion for judgment non obstante veredicto.

The second and fifth points of error are overruled. The facts that these issues may be objectionable as to form, and the findings in response thereto insufficient to support a judgment for the plaintiff, do not entitle the defendant to a judgment.

The first, third, fourth and sixth points, however, are sustained. Special Issues Nos. 1 and 3 are gobal in nature and so vague, general and indefinite as to constitute a general charge. Appellant was thus deprived of that submission of the case on special issues guaranteed to it by Rule 277, Vernon’s Texas Rules of Civil Procedure.

Just a few days before this case was tried, the Fort Worth Court of Civil Appeals decided the case of Pitts v. Barclay, 377 S.W.2d 750, in which it was held that a special issue submitting the question of whether the driver of a motor vehicle failed to keep the same under “proper control” (defined as “such control that a person of ordinary prudence would have kept under the same or similar circumstances”) amounts to a general charge and a global submission of negligence, subject to objection on those grounds, and that “a favorable finding thereto returned (and to the appended issue on proximate cause) cannot alone, in and of itself, support a plaintiff’s judgment in a case where the defendant has objected to the issue on that ground.” Our Supreme Court affirmed on February 17, 1965 in Barclay v. C. C. Pitts Sand & Gravel Co., 387 S.W.2d 644, wherein it was said: “In our opinion an inquiry concerning proper control simply has no place in the charge when appropriate objection is made by the party against whom it would otherwise be given.” See also Kainer v. Walker, Tex.Sup.1964, 377 S.W.2d 613.

Appellee reminds us that the last sentence of Rule 277, T.R.C.P. authorizes the submission of a case on a general charge if good cause is shown therefor, and argues that the circumstances of this case present such “good cause” as entitled him to the submission of the case on a general charge. We do not agree with appellee. Although he had alleged six specific acts of negligence on the part of appellant, he apparently made no effort to prove any of them; all he proved was that appellant’s bus, being driven around a curve in the rain, skidded out of control and collided with his automobile, which was in its proper lane. His inability to prove negligence on the part of appellant does not give him the right to ask the jury to speculate that the happening of the accident must necessarily presuppose negligence as the cause thereof. Rankin v. Nash-Texas Co., 129 Tex. 396, 105 S.W.2d 195, 199.

It was held in Dallas Transit Co. v. Tolbert, Tex.Civ.App., 337 S.W.2d 617, 620, wr. ref. n. r. e., that an operator who has lost control of his vehicle is not responsible for what happens thereafter unless his loss of control was caused by negligence in the management of the vehicle. Appellee recognizes this as the correct rule but attempts to distinguish the Tolbert case from this case by showing, inter alia, that in the Tolbert case there was ample evidence that the driver was not negligent in failing to regain control, while in this case, “there is no evidence excusing the admitted loss of control by Defendant, or his presence in the wrong lane, both of which caused the accident.” Likewise, there is no evidence convicting appellant’s driver of negligence in permitting the bus to go out of control. Appellant was under no duty to excuse “the admitted loss of control”; the burden was on appellee to prove that the loss of control was proximately caused by appellant’s negligence.

Special Issue No. 1 was as follows:

“Do you find from a preponderance of the evidence that at the time and on the occasion in question the Dallas Transit Company’s bus traveling on the wrong side of the road was negligence as that term has been defined for you ?”

The jury answered “We do.” In the light of the aforesaid holding in the Tolbert case, and the undisputed evidence that the bus crossed the center line of the pavement after it had gone out of control, it is our holding that the special issue inquiring as to whether traveling on the wrong side of the road was negligence was just as objectionably global in nature as the proper control issue. It permitted the jury to speculate as to the cause of the bus being on the wrong of the road and to find the defendant guilty of negligence generally, the same as would be authorized if the case had been submitted on a general charge.

Appellant’s first, third, fourth and sixth points of error are sustained.

Points of error 7 through 12 comprise the second group submitted by appellant and are based upon the alleged deficiency of pleading. Points 7, 9, 10 and 12 assert that the court erred in submitting Special Issues Nos. 1 and 2, and in awarding judgment for appellee, because there is no pleading, and alternatively insufficient pleading, to support such submission and judgment. These points are sustained. Nowhere in appellee’s petition do we find any allegation to the effect that the presence of appellant’s bus on the wrong side of the road, or its traveling on the wrong side of the road, was negligence on the part of appellant or its driver. If appellee had intended to establish liability of appellant on such a charge of negligence, appellant was entitled to fair notice thereof. Rule 47, T.R.C.P. Appellant’s objections to these issues should have been sustained, and we sustain the points of error complaining of the trial court’s failure to do so.

“Where the plaintiff elects to specify in his pleadings the particular acts of negligence of which he complains, he will be restricted in his proof to the acts specifically alleged. And, where he alleges generally that the injury was the result of negligence, and then specifically sets up the acts of negligence relied on, the evidence will be confined to the specific allegations of negligence, and the general allegations will be controlled by the specific acts averred.” 40 Tex.Jur.2d, Negligence, p. 655, § 137.

Except in cases where issues not raised by pleadings are tried by express or implied consent (Rule 67, T.R.C.P.), it is elementary that the court’s judgment must be supported by the pleadings as well as the evidence. Government Employees’ Credit Union v. Jaquez, Tex.Civ.App., 318 S.W.2d 134, wr. ref. n. r. e.; Denton County Electric Co-Op., Inc. v. Burkholder, Tex.Civ.App., 354 S.W.2d 639, 644, wr. ref. n. r. e.

Points of error 8 and 11 complain that the trial court erred in overruling its motion for judgment non obstante veredicto because of this deficiency in pleading. This deficiency did not entitle appellant to a judgment; merely to have the judgment against it set aside. These points are overruled.

The third group of appellant’s points of error consists of Points 13 through 27. With the exception of Points 14, 17, 21, 24 and 27, they assert, in various ways, that there was no evidence, and alternatively that there was insufficient evidence, to warrant the submission of Special Issues 1, 2, 3 and 4 and awarding judgment to appellee upon those findings. These points are sustained. All of the witnesses agreed that the bus was out of control before it crossed the center line, and appellee does not dispute this. Moreover, there was no evidence of any act or omission by the bus driver which caused the bus to go out of control and cross the center line. Appellee concedes in his brief that the evidence does not raise any specific act of negligence which is embraced within the “proper control” issue. That being true, no liability is shown. Dallas Transit Co. v. Tolbert, 337 S.W.2d 617, wr. ref. n. r. e.; 60 C.J.S. Motor Vehicles p. 703, § 298.

Points 14, 17, 21 and 24 assert error in overruling appellant’s motion for judgment non obstante verdicto because of the lack of evidence and insufficient evidence to support the findings in response to Special Issues Nos. 1, 2, 3 and 4. These points are overruled. A defendant is not necessarily entitled to a judgment merely because there is no evidence, or insufficient evidence, to support certain special issues which have been submitted. No point is presented to us asserting error in overruling the defendant’s motion for judgment n. o. v. because there is no evidence of any negligence on its part.

Point of error No. 27 asserts error in awarding judgment to appellee because the finding that the collision was not an unavoidable accident was so against the overwhelming weight and preponderance of the evidence as to be manifestly unjust. This point is not briefed and is considered waived. Rule 418, T.R.C.P.; Thigpen v. Locke, Tex.Supp.1962, 363 S.W.2d 247; Yates v. Del Rio Wool & Mohair Co., Tex.Civ.App., 374 S.W.2d 341.

The 28th and 29th points comprise the fourth group presented by appellant and assert that the trial court erred in submitting Special Issues Nos. 1 and 3 because the submission thereof constituted comments by the court on the weight of the evidence by assuming that the bus was voluntarily on the left side of the road and assuming erroneously a duty on the part of appellant to regain control of a vehicle admittedly out of control. We have already held that these issues lack support in the pleadings and the evidence and that the findings in response thereto are insufficient to support the judgment. We are now asked to hold also that the mere submission of the issues constituted comments by the court on the weight of the evidence. We are unable to follow appellant’s reasoning on these points and overrule the same.

The fifth group of points of error consists of Points 30, 31 and 32. Points 30 and 31 assert error in overruling appellant’s motion in limine to strike, and in admitting, certain portions of the deposition testimony of Dr. H. A. Mattson “because the objectionable portions were unresponsive, immaterial and prejudical.” However, the only ground urged in the trial court for striking this testimony was that it was unresponsive. As it is not permissible on appeal to enlarge the grounds of objection specified in the trial court, 3-A Tex.Jur., Appeal and Error, p. 212, § 165, the points of error will be considered as restricted accordingly. Mere unresponsiveness of the answer of a witness, if the testimony is otherwise admissible and relevant, will not ordinarily constitute a ground for reversal. McCormick & Ray, Texas Law of Evidence, Vol. 1, p. 460, § 582.

It would unduly lengthen this opinion to set forth the testimony coming under this attack. Suffice it to say that we have carefully examined the testimony in question and, while much of it is not entirely responsive to the questions asked, it was all relevant and doubtless would have been admissible if this objection had been voiced when the questions were propounded, giving the appellee’s attorney an opportunity to rephrase the questions. Appellant has not carried the burden of showing such harm from the rulings complained of as to warrant reversal, and we overrule Points of Error 30 and 31. Rule 434, T.R.C.P.

Point 32 asserts excessiveness of the verdict. As the case is being reversed and remanded for a new trial on other grounds, we deem it unnecessary to express an opinion on this matter.

Appellant argues that we should render judgment in its favor because there was no evidence to support any of the issues on the question of liability. However, we feel that the case has not been fully developed and that it was tried on an erroneous theory and, accordingly, we reverse the judgment and remand the case for a new trial. Jackson v. Hall, 147 Tex. 245, 214 S.W.2d 458.

Reversed and remanded.


author: COLLINGS, Justice.

text:
    Herman L. SANDERS et al., Appellant, v. M. H. WORTHINGTON, Appellee.
    No. 3538.
    Court of Civil Appeals of Texas. Eastland.
    April 30, 1965.
    Rehearing Denied May 28, 1965.

      Joel W. Cook, Houston, for appellant.
    Jesse A. Pardue, Williams, Lee & Lee, Jesse J. Lee, Joseph W. Cash, Houston, for appellee.-
   COLLINGS, Justice.

This is a suit in trespass to try title. The District Court disregarded a jury finding in favor of the defendants relative to the ten year statute of limitations and rendered judgment non obstante veredicto for the plaintiff Worthington. The defendants and an intervenor appealed. On a former hearing of the appeal we affirmed the judgment. Our Supreme Court reversed the judgment and remanded the cause to this court for disposition of points questioning the sufficiency and great weight and preponderance of the evidence on the question of the ten year statute of limitation.

Appellants claim under the ten year statute of limitations, as material to the question here under consideration, was and is based upon the possession and use of the property by Paddock as a tenant under Williamson and his successor Mrs. Anderson. Paddock held a lease from Williamson for about nine years beginning January 14, 1943, and continuing under subsequent leases until December 31, 1952. Holt, who held a lease from Williamson from 1938 through 1942 discontinued his possession of the land on January 1, 1942, and moved away. Paddock, who had previously been in possession of the land, but not as a tenant of Williamson, again moved his cattle upon the land. Atkins, an employee of Paddock, testified that Paddock told him prior to the time he moved his cattle on the land that he had subleased the land from Holt for the remainder of 1942, and that after 1942 he would lease it directly from Williamson. We held in our former opinion that Atkins’ testimony concerning the landlord-tenant relationship for the year 1942 was hearsay and constituted no evidence of probative force to show that Paddock was a tenant of Williamson during that period; that, since Paddock’s possession could not be tacked to that of Holt, any possession of Paddock prior to the date of his lease in January, 1943, did not inure to the benefit of Williamson and that Williamson’s possession was therefore for less than the ten year statutory period.

Our Supreme Court reversed that judgment holding that we erred in finding that the testimony of Adkins was inadmissible, holding that there was some evidence in support of the jury finding in appellant’s favor on the ten year limitation issue, and holding that the trial court should have rendered judgment for the defendants on the basis of the jury’s answer to special issue number 5. The Supreme Court then remanded the cause to this court with instructions to pass upon crosspoints in which appellee asserts that the answer to special issue number 5 to the effect that appellant Nancy W. Anderson and her predecessors had acquired title to the land under the ten year statute of limitations is contrary to the overwhelming weight of the evidence and that the evidence is insufficient to support such finding. Reference is made to our former opinion, 349 S.W.2d 115 and the opinion of our Supreme Court, 382 S.W.2d 910, for detailed statement of the facts and we feel that no useful purpose would be served in restating them. We have examined the entire record in accord with the proper rule of law in such cases including the evidence which appellee contends shows that the nature of Holt’s possession was such that it did not inure to the benefit of Williamson’s claim of adverse possession. After such consideration of the record it is our opinion that the finding of the jury in answer to special issue number 5 is not against the great weight and preponderance of the evidence, and that the evidence is sufficient to support such finding.

The judgment of the trial court is therefore reversed and judgment is rendered for appellants.


text:
    Mable RICHARDSON, Appellant, v. Asher THOMPSON et al., Appellees.
    No. 16481.
    Court of Civil Appeals of Texas. Dallas.
    April 16, 1965.
    Rehearing Denied May 28, 1965.
    Bill M, McKnight and Charles Ben Howell, Dallas, for appellant.

      Dee J. Kelly, Fort Worth, Waggoner Carr, Atty. Gen., and Hawthorne Phillips, Stanton Stone, J. C. Davis, Dean Arring-ton, Asst. Attys. Gen., Austin, for appellees.
   DIXON, Chief Justice.

Mrs. Mable Richardson, a blind person, plaintiff in the trial court, has appealed from a summary judgment adverse to her in her suit for damages against the Executive Director and the members of the Texas State Commission for the Blind in their individual capacities.

The suit was originally brought against the Commission and its Executive Director in their official capacities as well as against them individually. On motion of appellees the two causes of action were severed.

The action against the Director and Commission in their official capacities was in the nature of an attempted appeal from an order of the Commission denying Mrs. Richardson a license to operate a vending stand and refusing to place her in charge of a Commission owned stand located in the Terminal Annex Post Office in Dallas, Texas. The trial court held that appellant had no right to appeal from the decision of the Commission and dismissed her suit. On appeal the judgment was affirmed. Richardson v. Alsup, Tex.Civ.App., 380 S.W.2d 923 (writ refused).

In the suit against the Director and members individually, which is the cause now before us on appeal, Mrs. Richardson sues individually and as community survivor of her husband, James A. Richardson, deceased. In this suit Mrs. Richardson alleges that Lon E. Alsup, Executive Director, and himself a blind person, and the members of the Commission individually violated-her rights under 42 U.S.C.A. § 1983 and the First and Fourteenth Amendments to the Constitution of the United States by arbitrarily and unlawfully denying her a license to operate a vending stand and refusing to place her in charge of the stand in the Terminal Annex Post Office.

Appellant’s husband, James A. Richardson, a blind person, operated the stand in controversy from 1938 until his death in 1961. Originally he had been the owner, but in 1946, some time after the creation of the Texas State Commission for the Blind, James A. Richardson sold his property to the Commission and thereafter operated the stand as a licensee of the Commission.

The contract between James A. Richardson and the Commission dated September 25, 1945 among other things provides that the right to operate the stand shall be personal only to the operator and may be terminated at any time by the Commission. The contract also provides that the Commission is to furnish necessary equipment and initial stock subject to certain terms, among them being the following: (a) operator is not to represent himself as owner of the business or to part with possession of any part of the property; (b) he is not to alter the equipment without consent of the Commission; (c) he is to surrender the equipment at any time to the Commission in good order and condition; and (e) upon termination of the operator’s employment all equipment and stock remains the property of the Commission.

Soon after the death of James A. Richardson in 1961 Alsup, the Commission’s employed Executive Director, dispatched R. C. Womack, a subordinate employee, to take temporary charge of the stand and to take an inventory pending arrangements for its permanent assignment to some blind person duly licensed as an operator by the Commission.

Mrs. Richardson was reluctant to surrender possession to Womack, as she desired to operate the stand herself as her husband’s successor. Womack then talked to Alsup at Austin, Texas by long distance telephone and received instructions to take over the stand at once as Mrs. Richardson did not have a license to operate a vending stand. After some discussions Mrs. Richardson finally allowed Womack to take possession of the stand. Within a few days a blind person named Goodman was chosen as the permanent operator of the stand.

On August 29, 1961 Mrs. Richardson telegraphed the Commission that she desired to operate the stand. She was informed that the position had been filled and that the next meeting of the Commission would be held on September 16, 1961 in Austin, Texas.

At the hearing in Austin Mrs. Richardson appeared with counsel and put on evidence seeking to have a license issued to her to operate the stand in the Dallas post office. The Commission issued a formal order denying her application.

Since Mrs. Richardson claims that the Commission members acted unfairly in denying her application we deem it advisable to quote the order in full:

“Mrs. Mable Richardson’s application for a license to operate a vending stand under the Business Program of the State Commission for the Blind was considered by the Commission at its regularly scheduled meeting on September 16, 1961. The Commission, after hearing the evidence presented to it by and on behalf of Mrs. Richardson, makes the following findings of fact with regard to her application: No formal application was presented to the Commission by Mrs. Richardson requesting a license to operate a vending stand under the Commission’s program other than by telegram. No certificate as required by the regulations and statutes was presented as to Mrs. Richardson’s qualifications to be licensed by the Commission. The Commission finds further that the vending stand for which Mrs. Richardson has applied is not available, since such vacancy was filled on August 25, 1961, by the Commission. On the basis of these facts the Commission rules that is unable to license Mrs. Richardson at this time. The Commission recommends that Mrs. Richardson make a formal application as required by law at which time on the basis of the evidence presented before the Commission, it is felt that such license could be granted. And the Commission states that once licensed, Mrs. Richardson’s name would be considered for placement in a vending stand along with other qualified licensees in Dallas area or any other area suitable to her. Signed, Asher Thompson, Chairman.”

After the issuance of the above order Mrs. Richardson filed this suit against Director Alsup and the members of the Commission.

The record before the trial court and before us consists of the pleadings of the parties, affidavits, exhibits, answers to requests for admissions and the testimony of Mrs. Richardson at an earlier plea of privilege hearing.

OPINION

In three points on appeal Mrs. Richardson asserts that (1) she has stated a cause of action; (2) appellees failed to comply with Rule 166-A, Texas Rules of Civil Procedure in order to entitle them to a summary judgment; and (3) the court erred in refusing to consider a statement of facts from the public hearing before the Commission.

Mrs. Richardson claims that she’ has stated a cause of action for damages under 42 U.S.C.A. § 1983. That statute provides that every person who under color of any statute, etc. of any state subjects any citizen to the deprivation of any rights, privileges or immunities secured by the Constitution and laws shall be liable to the party injured in an action at law, suit in equity or other proceeding for redress.

In her petition Mrs. Richardson alleges that Director Alsup deliberately and arbitrarily excluded her from consideration as operator of the vending stand in the Dallas Post Office Annex; that he was prejudiced against her because she had been active in various organizations for blind persons; had been outspoken in seeking improved' procedures by speaking and writing to various persons, including legislators; and the members of the Commission acted unfairly and arbitrarily in denying her application.

We need not concern ourselves here with the question of whether Mrs. Richardson in her petition has alleged a cause of action. Pleadings are not evidence of the truth of their own allegations. The very purpose of summary judgment proceedings is to pierce the pleadings and to determine by evidence whether there is any genuine issue of material fact in the case. If the undisputed facts disclose that there is no genuine issue of material fact the moving party is entitled to judgment as a matter of law. Rule 166-A, T.R.C.P.; Reese v. Davitte, Tex.Civ.App., 255 S.W.2d 1015, 1017.

In this case the undisputed facts disclose that appellees, the moving parties, are entitled to judgment notwithstanding the allegations in Mrs. Richardson’s petition. That being so we see no need to determine whether her petition alleges a cause of action, since the answer to that question cannot determine our decision.

A study of the whole record convinces us that Mrs. Richardson’s second point on appeal is without merit. In reaching this conclusion we have carefully considered the undisputed facts and the statutes, rules and regulations, both State and Federal, governing the licensing of blind persons by the Texas State Commission for the Blind.

Articles 3207a, 3207b, 3207c and 678d, Vernon’s Ann.Civ.St. are the pertinent State statutes in this case. They provide for the creation and operation of the Commission. The duties of the Commission are to establish a vocational rehabilitation program for the blind; to cooperate with, enter into agreements with, and to adopt methods of administration of the Federal Government in carrying out such agreements; to provide rehabilitation services for blind residents who make application and who are found to be eligible under the terms of any agreement between the State and Federal Governments; and to provide for each licensed blind person a vending stand, equipment and initial stock of suitable articles to be vended provided that the ownership of equipment shall remain the property of the Commission.

In 1955 the Commission applied for and received designation under the Randolph-Sheppard Vending Stand Act, 20 U.S.C.A. § 107 as a state licensing agency for the operation of vending stands for blind persons on Federal or other property. The State’s application provided that (1) all of the merchandise and equipment in a vending stand should be furnished by the state agency; (2) all right, title and interest in a vending stand should be owned by and title maintained by such state agency; (3) licenses may be issued only to blind persons who are certified as qualified under the Rehabilitation Division of the State Blind Commission; and (4) no person could operate a vending stand without a license.

Part 403 of Title 45, Code of Federal Regulations pertains to the issuance and the terms for issuing licenses. We quote in part from it:

“403.6 * * * The rules and regulations of the licensing agency shall further provide: (a) Objective criteria for licensing qualified applicants, * * *. Such criteria shall also include provisions to assure that licenses will be issued only to persons who are determined by the licensing agency to be:
(4) Certified by the State vocational rehabilitation agency as qualified to operate a vending stand.” (Emphasis supplied) Fed.Reg\, Saturday, April 9, 1955.

The record shows without dispute that appellant had not been certified as qualified by the Vocational Rehabilitation Division of the Commission to operate a vending stand. She admits that she holds no license to operate a vending stand and did not hold a license at the time of her husband’s death. She admits she has not made a formal application to receive a license.

In view of the undisputed facts it is clear that Mrs. Richardson had no property rights in the vending stand in question. Richardson v. Alsup, Tex.Civ.App., 380 S.W.2d 923. She was not eligible to receive a license. The Executive Director and the Commission would have violated the statutes, rules and regulations both State and Federal if, in the face of the undisputed facts, they had issued a license to Mrs. Richardson.

The general rule is that public officers and employees are not personally liable to individuals for acts performed within the scope of their duties. Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019; Gregoire v. Biddle et al, 2 Cir., 177 F.2d 579; Morgan v. Sylvester, D.C., 125 F.Supp. 380, (aff. 2 Cir., 220 F.2d 758); Simons v. O’Connor, D.C., 187 F.Supp. 702; Pridgen v. Giles, Tex.Civ.App., 267 S.W.2d 187; Morris v. Nowotny, Tex.Civ.App., 323 S.W.2d 301. Alsup, the Director, is a public officer. Art. 3207c, Sec. 3, V.A. C.S. He was doing his duty as a matter of law when he sent Womack, a Commission employee, to take over the Commission owned stand, pending permanent arrangements for its future operation by a licensed operator. The Commissioners were doing their duty as a matter of law when they denied Mrs. Richardson’s application.

The Commission’s order is certainly not unreasonable or harsh. In fact it is almost a promise that Mrs. Richardson will be granted a license and a vending stand in the Dallas area will be provided for her if she will only comply with the prerequisites for the issuance to her of a license. Appellant’s second point is overruled.

We see no error in the exclusion from the record of the so-called testimony before the Commission at the hearing on September 16, 1961. A transcript of said testimony has been sent up along with the record in this appeal. We have read the transcript. It is replete with hearsay statements, irrelevant remarks, statements by unsworn persons, immaterial exhibits and evasive answers. The Commission is not a judicial tribunal. It does not limit its hearings by judicial rules of evidence. On the other hand, a court trial is to be governed by evidence admissible in court of the events constituting the basis for a cause of action. State v. St. Louis S. W. Ry. Co. of Texas, Tex.Civ.App., 165 S.W. 491; Lone Star Gas Co. v. State, 137 Tex. 279, 153 S.W.2d 681; Railroad Comm. v. Rau, Tex.Civ.App., 45 S.W.2d 413; Miller v. Tarry, Tex.Civ.App., 191 S.W.2d 501.

However, if we be mistaken in the above holding we must still overrule appellant’s third point for the exclusion of the evidence was harmless. Rule 434, T.R.C.P. The testimony in question brings out nothing to change the decision in this suit. In substance the same testimony, so far as it is relevant, is shown in Mrs. Richardson’s testimony at the hearing on the plea of privilege. Appellant’s third point is overruled.

The judgment of the trial court is affirmed.


author: RENFRO, Justice.

text:
    A. J. WOOD, Jr., Appellant, v. PARKER SQUARE STATE BANK, Appellee.
    No. 16628.
    Court of Civil Appeals of Texas. Fort Worth.
    May 7, 1965.
    Rehearing Denied May 28, 1965.
    Prothro & Sellers, and Lee Sellers, Wichita Falls, for appellant.
    Nelson, Montgomery & Robertson, and Ernest Robertson, Wichita Falls, for ap-pellee.
   RENFRO, Justice.

Suit was instituted by Wood against Parker Square State Bank to establish priority of certain liens upon real estate. Both parties moved for summary judgment. Defendant’s motion was granted.

In his two points of error plaintiff contends the court erred in rendering judgment for defendant and refusing to enter judgment for plaintiff.

On August 1, 1962, defendant loaned to Lincoln Enterprises, Inc., the sum of $125,-000, evidenced by a promissory note payable in five annual installments. The note was secured by a first lien on 34.6 acres of land in Wichita County, evidenced by deed of trust of same date which was duly recorded.

The deed of trust provided it would secure, in addition to the amount represented by the note, “all other indebtedness which may accrue and become owing in the future either as maker, endorser, guarantor or surety, (direct or contingent)' and all interest charges and attorney’s fees thereon, and all extensions and renewals thereof”, and “this conveyance is made for the security and enforcement of the payment of said indebtedness and also to secure the payment of any and all other sums of money which may be advanced for or loaned to Grantors by the Beneficiary, his heirs or assigns.”

On January 23, 1963, plaintiff loaned to Lincoln Enterprises, Inc., the sum of $50,-000, and received a promissory note in that amount secured by a deed of trust covering the same land as the first lien held by defendant.

On October 3, 1963, Lincoln Enterprises executed a note in the sum of $21,248.46, payable to Wayne K. Horton ninety days after date, in renewal and extension of a prior note. The note represented funds advanced by Horton to Lincoln Enterprises over a period of several years. On October 26, 1963, defendant purchased the above note from Horton. Horton was an employee of defendant bank. At the time defendant purchased the Horton note it had notice of plaintiff’s note and second lien.

In January, 1964, defendant elected to foreclose its lien on the Lincoln Enterprises land. Defendant claimed its lien secured the Enterprises to Horton note as well as the original $125,000.

At the trustee’s sale, by agreement of the parties, plaintiff bought the land, paid defendant the balance due on the $125,000 note and placed in escrow, pending a judicial decision as to the rights of the respective parties, the sum of $21,980, being the sum then due on the Horton note.

On appeal plaintiff argues that Texas law does not support defendant’s position (and the trial court’s judgment) but, if it does, the courts should decline to follow such law.

The future indebtedness provisions in the Enterprises deed of trust to defendant are remarkedly ,similar to those presented to the court in Freiberg v. Magale, 70 Tex. 116, 7 S.W. 684 (1888). In that case the Supreme Court held: “But the appellee claims that the mortgage does not secure the debts for which the trustee sold the property; that the mortgage could not secure future debts, and, if it could, the future debts contemplated by the mortgage were to be of the same kind provided for in terms by the mortgage. A mortgage can be made to cover future debts, and such a mortgage will be good not only between the parties, but as to purchasers from the mortgagor with notice of the mortgage. A mortgage providing for the security of future debts puts persons dealing with the mortgagor in reference to the mortgaged property upon notice that such debts may exist and bind the property. They must inquire as to this fact, or purchase at their peril. 1 Jones, Mortg. §§ 364, 370-372; Lovelace v. Webb, 62 Ala. 271; Witczinski v. Everman, 51 Miss. [841,] 846. The present mortgage provides for the securing of future indebtedness. We do not think that the character of this indebtedness was limited. It was contemplated that debts should accrue by reason of the sale of goods, but not from this cause alone. The mortgage expressly provides that indebtedness of any kind shall be secured by it. It then, to place the matter beyond doubt, provides for debts to accrue in any other manner than had been already stated.”

The law as announced in Freiberg v. Magale has been followed or recognized as the rule in Texas in Law Sprinkle Mercantile Co. v. Hause, 184 S.W. 737 (Austin Civ.App., 1916, no writ hist.); Willis v. Sanger, 15 Tex.Civ.App. 655, 40 S.W. 229 (1897, refused); Jolly v. Fidelity Union Trust Co., 15 S.W.2d 68 (Fort Worth Civ.App., 1929, refused); First National Bank of Corsicana v. Zarafonetis, 15 S.W.2d 155 (Waco Civ.App., 1929, refused); Poole v. Cage, 214 S.W. 500 (Galveston Civ.App., 1919, refused); and F. Groos & Co. v. Chittim, 100 S.W. 1006 (CCA of Tex., 1907, no writ hist.).

Admittedly the rule laid down in Frei-berg is a minority rule in the states. It is recognized generally, however, as being the Texas rule. In 138 A.L.R. 576, sub. b, it is stated: “A few cases support the proposition that the lien of an advance made under a mortgage to secure optional future advances (of which mortgage subsequent persons had record or other sufficient notice) takes priority over an encumbrance intervening between the giving of the mortgage and the making of the advance, even though the mortgagee had actual notice or knowledge of the intervening encumbrance”, citing Texas cases. See also McKnight’s “Creditors’ Rights in Texas”, p. 411, by Charles O. Galvin; 39 Tex.Jur.2d 52, § 32.

It may well be, as plaintiff contends, that the Freiberg rule should be reexamined and a rule promulgated in keeping with the weight of authority as followed in other jurisdictions. That function, however, properly rests alone with our Supreme Court. It is not the function of courts of civil appeals to abrogate or modify an established rule of decision in this State. Stark v. American National Bank of Beaumont, 100 S.W.2d 208 (Beaumont Civ.App., 1936, refused); Grand Prize Distributing Co. v. Gulf Brewing Co., 267 S.W.2d 906 (San Antonio Civ.App., 1954, refused).

The judgment is affirmed.

Affirmed.


author: McDONALD, Chief Justice.

text:
    John H. SPILLYARDS and the Employer’s Liability Assurance Corporation, Ltd., Appellants, v. FERRIS BRICK COMPANY, Appellee.
    No. 4365.
    Court of Civil Appeals of Texas. Waco.
    April 29, 1965.
    Rehearing Denied May 27, 1965.
    James E. Gleeson, Ferris, for appellants.
    Spafford, Freedman, Hamlin, Gay & Whitham, Richard S. Geiger, Dallas, for appellee.
   McDONALD, Chief Justice.

This is an appeal from a summary judgment for plaintiff in a suit for recovery under the terms of a Labor and Material Payment Bond.

Plaintiff Brick Company instituted this suit: against defendant Spillyards (contractor for construction of Green Funeral Home) upon a sworn account for $934.32 due for brick delivered; and against defendant Employers as surety upon a labor and material bond issued for the benefit of claimants, and conditioned that Spillyards promptly pay for all labor and material used in construction of Green Funeral Home. Plaintiff alleged that it was a claimant furnishing materials for which it had not been paid.

Spillyards filed no answer. Employers answered by general denial. Thereafter plaintiff moved for Summary Judgment against both defendants pursuant to Rule 166A, Texas Rules of Civil Procedure. Plaintiff attached a certified copy of defendant Employers’ Labor and Material Payment Bond on file in the Ellis County Clerk’s Office (which reflected Employers would pay any furnisher of labor and material on the Green Funeral Home job, which after 90 days was not paid by contractor Spillyards). Plaintiff further attached the affidavit of its Vice President, T. C. Hooker, which stated affiant was competent to testify; had personal knowledge of the matters stated; that plaintiff had delivered to Spillyards, brick for use on Green Funeral Home job; that the balance due for such brick was $934.32; that the defendant Employers’ payment bond was on file in the Clerk’s office of Ellis County; and that more than 90 days had elapsed since the last brick delivery to Spillyards.

Defendant Employers filed a controverting motion, plea in abatement, and amended answer, which asserted, among other things, that a general denial was sufficient “to put the question in issue”; that defendant Spillyards was a bankrupt in Federal Court prior to the filing of the instant case, and plaintiff has a provable claim which should first be pursued in the Bankrupt Court; and that the bond issued by Employers was obtained by fraud on the part of Spillyards. Defendant Employers prayed that summary judgment not be granted; that the cause be held in abeyance until disposition of the bankruptcy proceeding; and that plaintiff take nothing against Employers.

Employers’ attorney made affidavit to all of the foregoing that “to the very best of his knowledge and belief every statement alleged * * * is true and correct * * * »

The Trial Court granted plaintiff’s motion for summary judgment against both Spillyards and Employers.

Employers appeals on 12 points, contending the Trial Court erred:

1) In granting plaintiff’s motion for summary judgment.

2) In not granting Employers’ plea in abatement.

Plaintiff’s motion and affidavit established that plaintiff was entitled to summary judgment against both defendants, unless defendants countered with affidavits (or depositions) which raised an issue of material fact. Spillyards filed no controverting plea. Employers filed opposition to plaintiff’s motion, amended answer, and a plea in abatement, and Employers’ attorney verified the matter set forth “to the very best of” his “knowledge and belief,” “is true and correct.” Rule 166A(e) requires that supporting or opposing affidavits shall be made on personal knowledge setting forth facts admissible in evidence, and show affirmatively that the affiant is competent to testify to the matters stated therein.

Employers’ attorney’s verification above does not constitute the matters so verified an affidavit as required by the rule, and is ineffectual to oppose plaintiff’s motion for summary judgment. Youngstown Sheet & Tube Co. v. Penn, Sup.Ct., 363 S.W.2d 230; Nagelson v. Fair Park Nat. Bank, CCA (n. r. e.), 351 S.W.2d 925; Farmers State Bank v. First State Bank, CCA, (n. w. h.), 317 S.W.2d 768; Sparkman v. McWhirter, CCA, W/E Ref., 263 S.W.2d 832.

When facts entitling the moving party to prevail have been established by affidavits, as in the instant case, the motion for summary judgment will not be denied merely because the opposite party has alleged matters in its pleadings which, if proved, would require that different judgment be rendered. Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948.

Employers was the surety for Spill-yards. Article 1987, Vernon’s Ann.Tex. Civ.St. provides that a surety may be sued alone where, among other things, his principal is actually or notoriously insolvent. Title 11 U.S.C.A. § 34, provides that the liability of a surety for a bankrupt shall not be abated by the discharge of such bankrupt.

All of defendant Employers’ points and contentions are overruled.

Affirmed.


author: BARROW, Justice.

text:
    Alfredo ALFRED, Appellant, v. EARL HAYES RENTS CARS & TRUCKS, Appellee.
    No. 14384.
    Court of Civil Appeals of Texas. San Antonio.
    May 12, 1965.
    Ollie Mayo, Richard Tinsman, San Antonio, for appellant.
    Charles W. Mohundro, Dallas, Theo. F. Weiss, San Antonio, for appellee.
   BARROW, Justice.

This is an appeal from an order entered by the County Court at Law No. 2 of Bexar County, Texas, dismissing appellant’s suit for want of jurisdiction. The question presented is whether an employee may waive all or part of his claim for liquidated damages which are authorized under Title 29, United States Code, § 216(b), and thereby keep the amount in controversy within the maximum jurisdiction of the county court

Appellant, Alfredo Alfred, brought this suit against appellee, Earl Hayes Rents Cars & Trucks, a Texas Corporation, to recover the sum of $512.00, allegedly due him for wages and overtime under the Fair Labor Standards Act of 1938, and $375.00 attorney’s fee. He further alleged that under this Act he was entitled to recover the sum of $512.00 as liquidated damages, “but Plaintiff here waives all but $112.50 of said liquidated damages and sues here only for $112.50 in liquidated damages.” The amount prayed for by appellant was thereby kept within the maximum jurisdiction of the county court. Appellee filed its plea to the jurisdiction and asserted that the amount in controversy was in excess of $1,-000.00.

A similar proposition was presented to the Supreme Court in Pecos & N. T. Ry. Co. v. Canyon Coal Co., 102 Tex. 478, 119 S.W. 294 (1909). There the plaintiff, in a suit filed in the Justice Court, asserted a prayer for $199.50, although the body of his petition demonstrated that he sustained a loss in excess of $200.00. The Court held that the amount in controversy was beyond the jurisdiction of the Justice Court and cited with approval the following rule from Burke v. Adoue, Tex.Civ.App., 22 S.W. 824: “When the amount to which the plaintiff appears, from his allegations, to be entitled, is a fixed sum, and is beyond that which the law has empowered the court to adjudicate, the plaintiff should not be permitted to enter a fictitious credit for the avowed purpose of giving jurisdiction.” See also Maryland Casualty Co. v. Overstreet, 61 S.W.2d. 810 (Com.App.1933); Hooper Lumber Co. v. Texas Fixture Co., 111 Tex. 168, 230 S.W. 141 (1921); McDonald, Texas Civil Practice, § 6.09. Appellant’s claim for liquidated damages equalled $512.00, which, together with other alleged damages, placed in controversy a sum in excess of $1,000.00.

At the hearing of the plea to the jurisdiction, appellant sought to file a trial amendment and abandon all his claim for liquidated damages. Under § 260 of the Act, supra, the court may, in its sound discretion, refuse to award liquidated damages, or may award less than the amount specified in § 216(b), if the employer shows to the satisfaction of the court that the act or omission giving rise to such action was in good faith, and the employer had reasonable grounds for believing that his action or omission was not a violation of the Act. See Rothman v. Publicker Industries, 3 Cir., 201 F.2d 618.

The Supreme Court of the United States has construed this Act as not permitting the employee to waive his right to liquidated damages. In Brooklyn Savings Bank v. O’Neill, 324 U.S. 697, 65 S.Ct. 895, 89 L.Ed. 1296, it was said: “We are of the opinion that the same policy considerations which forbid waiver of basic minimum and overtime wages under the Act also prohibit waiver of the employee’s right to liquidated damages.”

The trial court therefore properly refused to permit appellant to abandon his claim for liquidated damages. Appellant’s petition asserted a claim for damages in excess of $1,000.00, and the court properly dismissed the suit for lack of jurisdiction.

The judgment is affirmed.

      . See. 216(b) provides in part: “Any employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. * * * The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.”


author: ARCHER, Chief Justice. HUGHES, Justice

text:
    SOUTHWEST TITLE INSURANCE COMPANY, Appellant, v. STATE BOARD OF INSURANCE, Appellee.
    No. 11308.
    Court of Civil Appeals of Texas. Austin.
    May 5, 1965.
    Rehearing Denied June 2, 1965.
    Kuykendall & Kuykendall, Austin, for appellant.
    Waggoner Carr, Atty. Gen., Hawthorne Phillips, First Asst. Atty. Gen., Stanton Stone, Executive Asst. Atty. Gen., Joe R. Long, Ralph R. Rash, Asst. Attys. Gen., Austin, for appellee.
   ARCHER, Chief Justice.

Southwest brought this suit against Board seeking to set aside a Board order entered April 9, 1964, which affirmed a finding by J. N. Nutt, Commissioner of Insurance, that the value of the abstract plant owned by Southwest had a value of $100,-000.00. The trial court rendered a take nothing judgment.

The appeal is based on three points to the effect that the trial court erred in holding that Board approval as to the value of an abstract plant was required under Article 9.02, Insurance Code, even though (1) Southwest had deposited $100,000.00 in securities, (2) was not doing a trust business, and (3) the Directors of Southwest had deemed it necessary to invest in excess of 50% of its capital in an abstract plant, and the only evidence introduced showed that the value of the plant was at least $450,-000.00, and finally there was no evidence to support the Board’s finding of a value of $100,000.00.

It was stipulated that Southwest is a title insurance company organized under the laws of Texas, not authorized to engage in a trust business, and had on deposit with the Board $100,000.00 in securities, and increased its capital stock in January 1963 from $175,000.00 to $500,000.00 which was approved by proper authorities. The Board of Directors of appellant passed a resolution finding it was necessary to its business to invest in excess of 50% of its capital in an abstract plant; the Commissioner of Insurance on November 5, 1963 issued an order fixing a value of $100,000.-00 on appellant’s abstract plant, and an appeal from the order was taken to the Board which approved the action of the Commissioner.

The question presented under the first point of error is whether or not Southwest under the stipulations was required under Article 9.02, Insurance Code, V.A.T.S., to obtain approval by the Commissioner or of the Board as to the value of an abstract plant.

Appellee takes the positions that the judgment was correct because appellant failed to plead or prove a cause of action, and the Board had jurisdiction to approve the valuation of the abstract plant, and its action was supported by substantial evidence, and because appellant failed to prove it had invested any of its capital in an abstract plant beyond the original investnient.

Appellant asserts that it sought the approval of the Commissioner to fix the valuation of its abstract plant from $87,000.00 to $330,000.00, but urges that since it has complied with the provisions of Article 9.02, Texas Insurance Code, in maintaining a deposit of $100,000.00 in securities, it is not required to obtain the approval of the Commissioner nor the Board as to the valuation of the abstract plant in which it desires to invest in excess of 50% of its capital, but that the Commissioner and the Board have erroneously asserted that the valuation of such abstract plant must be approved by him and/or them.

Article 9.02 of the Texas Insurance Code provides:

“All corporations created and/or operating under the provisions of this chapter must have a paid up capital of not less than One Hundred Thousand ($100;000.00) Dollars. Any corporation organized under this chapter having the right to do a title insurance business may invest as much as fifty (50%) per cent of its capital stock in an abstract plant or plants, provided the valuation to be placed upon such plant or plants shall be approved by the Board of Insurance Commissioners; provided, however, that if such corporation is not doing a trust business as provided in subdivision 4, Article 9.01 of this chapter, and maintains with the Board the deposit of One Hundred Thousand ($100,000.00) Dollars, in securities as provided in Article 9.07 of this chapter, such of its capital in excess of fifty (50%) per cent, as deemed necessary to its business by its board of directors may be invested in abstract plants; and provided further, that no such corporation created and/or operating under the provisions of this chapter may either directly or through ownership of a portion of the capital stock of another corporation, or otherwise, hereafter own or acquire more than one abstract plant in any one county.”

Appellant has on deposit $100,000.00 in securities, was not doing a trust business and its Board had deemed it necessary to invest in excess of 50% of its capital in an abstract plant as provided by Article 9.02, but had not taken such action or fixed the amount it deemed necessary to invest.

On October 29, 1963 appellant filed its application for approval of value of. its Dallas County Abstract Plant from $87,-500.00 to $330,000.00.

On November 5, 1963 this application came on for consideration by the Commissioner of Insurance, who after hearing testimony in support of the application, found:

“Based upon the evidence presented at the hearing and the supplemental evidence submitted for consideration in connection with the amended application, the Commissioner finds that for annual statement purposes the abstract plant has a value of ONE HUNDRED THOUSAND DOLLARS ($100,000), there being no showing that any other plant had been acquired or that any additional capital investment had been made in such plant subsequent to the issuance of the original certificate of authority in 1952. THEREFORE, premises considered, the Commissioner of Insurance approves the application of SOUTHWEST TITLE AND INSURANCE CO., Dallas, Texas, to the extent of ONE HUNDRED THOUSAND DOLLARS ($100,000), for the increase in the value of the Company’s Dallas County abstract plant.”

Appellant took an appeal to the State Board of Insurance. On January 28, 1964 the Board took up for consideration the appeal from the action of the Commissioner and after a hearing approved the action of the Commissioner in fixing the value of the plant at $100,000.00.

On March 4, 1964 a motion for rehearing was granted and a further hearing was set for March 18, 1964.

On April 9, 1964 the Board entered its final order as follows:

“Subject Considered:
SOUTHWEST TITLE AND INSURANCE CO. Dallas, Texas
Appeal from action taken by the Commissioner under his Official Order No. 14820,t dated November 5, 1963

General remarks and official action taken

On this day, came on for consideration by the State Board of Insurance, the application of SOUTHWEST TITLE AND INSURANCE CO., Dallas, Texas, for an appeal from the official action of the Commissioner under his Official Order No. 14820, dated November 5, 1963, to the effect that a valuation of One Hundred Thousand Dollars ($100,000) should be placed upon the abstract plant of the Company for annual statement purposes.
The initial public hearing upon such application was held before the State Board of Insurance at 2:00 P.M. on January 16, 1964, in the offices of the State Board of Insurance, 1110 San Jacinto, Austin, Texas, and following such hearing the State Board of Insurance issued its Official Order No. 5916, dated January 28, 1964, approving the action taken by the Commissioner and denying the appeal of the applicant. The Board under Order No. 6000, dated March 4, 1964, granted the applicant’s motion for rehearing and withdrew its previous Order No. 5916. A further hearing was held upon such application before the State Board of Insurance at 2:00 P.M. on March 18, 1964, in the offices of the State Board of Insurance, 1110 San Jacinto, Austin, Texas, at which hearing SOUTHWEST TITLE AND INSURANCE CO. appeared by and through R. P. Stewart, Jr., President, and attorney F. L. Kuykendall, and presented written briefs, evidence and oral argument in support of the appeal from Commissioner’s Order No. 14820.
The record of the proceedings before the Commissioner for the approval of the valuation to be placed upon the abstract plajit of SOUTHWEST TITLE AND INSURANCE CO. and all exhibits and evidence presented at the hearing before the Commissioner of Insurance and at the initial hearing before the State Board of Insurance were incorporated into and made a part of the reopened hearing before the State Board of Insurance.
After having considered the record of the hearing before the Commissioner of Insurance and the evidence presented at such hearing and after having considered the evidence, testimony and oral argument presented at the hearings before the State Board of Insurance and the written briefs submitted at such hearings, the State Board of Insurance finds that:
(1) The Company has not shown that it has acquired any additional plants or has invested any of its capital stock in the abstract plant subsequent to the issuance of its original Certificate of Authority in 1952.
(2) A valuation of One Hundred Thousand Dollars ($100,000) should be placed on the Company’s abstract plant for annual statement purposes, such valuation being based upon appraisals of the abstract plant which were submitted by the Company in connection with its application for its initial Certificate of Authority dated December 4, 1952.
THEREFORE, premises considered, the State Board of Insurance is of the opinion and so finds that the official action taken or ruling made by the Commissioner is proper and correct and hereby approves Commissioner’s Official Order No. 14820, and the appeal by SOUTHWEST TITLE AND INSURANCE CO. from such Order is hereby, in all respects, denied.”

As noted the sole question presented under the First Point of Error is whether or not Southwest under the facts was required under Article 9.02 to obtain approval of the Commissioner or the Board as to the value of an abstract plant before it could invest in excess of 50% of its capital in such an abstract plant.

There is no way the Commissioner can fix or approve the valuation of the abstract plant until the appellant has actually invested the additional capital in the plant.

Appellant relies on the portion of Article 9.02 providing for the maintenance of $100,-000.00 in securities and not doing a trust business as creating an exemption from securing approval by the Board of Insurance Commissioners in investing its capital in excess of 50% in abstract plants.

The statute does not in so many words declare that it is not necessary to secure Board approval as to valuation.

There are a number of cases construing the meaning and effect of the words “provided, however,” such as Potter et al v. Robison, 102 Tex. 448, 119 S.W. 90; Knight et al v. Chicago Corporation et al, 144 Tex. 98, 188 S.W.2d 564; New Amsterdam Casualty Company v. Hamblen et al, 144 Tex. 306, 190 S.W.2d 56.

We recognize that the Board can exercise only the authority conferred upon it by law.

Commercial Standard Insurance Co. v. Board of Insurance Commissioners of Texas, Tex.Civ.App., 34 S.W.2d 343, er. ref.

Key Western Life Insurance Company v. State Board of Insurance, 163 Tex. 11, 350 S.W.2d 839.

We think that there can be no question according to the testimony, that the abstract plant is worth $450,000.00; however, there is no testimony that appellant has invested any money in the plant unless it be the general improvement and additions by way of records over the years under the terms of a lease agreement with Southwest Title and Abstract Company by the terms of which the abstract company agreed to keep and maintain the plant at its own expense.

Appellant’s president testified that since the plant was leased, no money had been invested in the plant.

Appellee takes the position that under Article 9.02 appellant can invest in excess of 50% of its capital in an abstract plant as may be deemed necessary by its board of directors but the valuation to be placed upon such plant must be approved by the Commissioner, and that there is no proof that since the purchase of the abstract plant in 1952 that any further investment has been made in the plant.

Appellee further contends that there is no justiciable controversy and that the judgment of the trial court should be affirmed, because no cause of action was alleged and no proof to show a cause of action, and that the Board had jurisdiction to approve or disapprove valuation.

Article 1302a, Vernon’s Ann.Civ.St., was enacted in 1929 and Section 2 of that statute reads substantially the same as Article 9.02 of the Code, down to the “provided, however,” clause. The caption of the 1929 statute declares that it is an act:

“ * * * regulating the amount of paid in capital of all corporations operating under this Act; * * * giving the Board of Insurance Commissioners exclusive control over corporations doing business hereunder ; requiring annual statements from and providing for examinations of such corporations; * * * ”

The 1933 act adds the “provided, however” clause and the caption recites as its purposes:

“An Act to amend Section 2, of an Act passed by the Legislature of Texas, February 26, 1929, House Bill No. 153, relating to title insurance business and the capital stock of corporations doing such a business; regulating the amount of capital stock of companies which may be invested in abstract plants; and declaring an emergency.”

We do not believe that the “provided, however” clause permits companies to place their own valuation upon their assets, since other provisions of the Code require the Commissioner to examine such companies with respect to solvency, and if a company could fix its own valuation without proof, its capital could be impaired.

Appellant invoked the jurisdiction of the Commissioner and the Board to approve the valuation, as it states mistakenly, but did offer such proof as it desired in the hearings.

If and when appellant invests in such abstract plant additional of its capital in an amount that would justify the Commissioner and the Board in approving a valuation of the plant in excess of the present valuation, doubtless an application for an increase in valuation would be given consideration and if justified a higher valuation would be made.

If the appellant does not desire an approval by the Commissioner of an additional investment, it is within the discretion of its Board to do so without authorization of the Commissioner.

The duty of the Board of Insurance Commissioners in regard to the valuation of assets are similar to those of the Banking Board where the public interest is at stake.

Brazosport Savings and Loan Association v. American Savings and Loan Association, 161 Tex. 543, 342 S.W.2d 747.

The second and third points are directed to the lack of substantial evidence to support the Board’s order fixing a value of $100,000.00 for the abstract plant.

As we have observed there was testimony fixing the value of the plant at a much higher amount. There was no evidence that appellant had invested any of its funds in the abstract plant since its original investment, but appellant alleged that it desired to invest, its capital.

No effort was made by appellant to prove ownership of the additions to the plant or to segregate the additions in value from the original plant cost, or the ownership thereof.

The burden of proof was on appellant to show that the Board had abused its discretion. This it failed to do.

The judgment of the trial court is affirmed.

HUGHES, Justice

(concurring).

Art. 9.07 of the Insurance Code, referred to in Art. 9.02 of the Code, provides, in part, that title insurance companies need deposit admissible securities amounting to only one-fourth of its authorized capital stock, such deposit never to exceed $100,-000.00.

Art. 9.02, copied in the Court’s opinion, authorizes title insurance companies generally to invest as much as 50% of their capital stock in an abstract plant or plants provided the valuation placed on such plant or plants shall be approved by the Board of Insurance Commissioners. By special proviso, Art. 9.02 provides that title insurance companies not doing a trust business and who maintain a deposit of $100,-000.00 with Board, not merely one-fourth of its capital stock, may, through its Board of Directors, invest its capital in excess of 50% in abstract plants. There is no requirement in this proviso that the company or its directors procure an approval of the valuation of such abstract plants by the Board as a condition to investing as much as 50% of its capital in.such plant or plants. I accept this proviso as it reads and would not imply or read into it any requirement not expressed. With this explanation, I concur in the Court’s opinion.


author: PHILLIPS, Justice.

text:
    TEXAS CRUSHED STONE COMPANY et al., Appellants, v. Wyatt Jefferson WEEKS, Appellee.
    No. 11297.
    Court of Civil Appeals of Texas. Austin.
    May 5, 1965.
    Rehearing Denied June 2, 1965.

      Fagan Dickson, Cofer, Cofer & Hearne, John D. Cofer, Austin, for appellants.
    Byrd, Davis & Eisenberg, Tom H. Davis, Austin, Brown, Kronzer, Abraham, Watkins & Steely, W. James Kronzer, Robert H. Roch, Houston, for appellee.
   PHILLIPS, Justice.

Plaintiff Weeks sued Texas Crushed Stone Company and E. B. Snead, its president in 1958 for damages for personal injuries received by Weeks when an airplane piloted by Snead crashed after an attempted landing at a private landing strip at a stone quarry operated by Texas Crushed Stone Company at Fairland in Burnet County, Texas.

From a judgment for damages awarded Weeks on a jury verdict, the Stone Company and Snead have perfected an appeal to this Court.

We affirm the judgment of the trial court.

Appellants’ first point of error is that there was an interlocutory judgment entered upon the jury trial of the separate issue as to settlement and agreement not to sue and such interlocutory judgment should have determined the case on the rendition of final judgment.

When this case went to trial, appellants, defendants below, plead as one of their defenses to Weeks’ cause of action an alleged accord and satisfaction and/or release. Weeks then filed a motion for summary judgment which was overruled.

Thereafter Weeks filed a motion to sever the matter as to the alleged accord and satisfaction and/or release and to try that issue separately. See Rule 174(b), Texas Rules of Civil Procedure. The trial court granted this motion.

On a hearing of this separate issue, the jury found that after the crash in question Weeks and Snead entered into an agreement that Weeks would not assert any claim for damage against the Stone Company or Snead arising out of the above-mentioned crash and that the Stone Company would pay his hospital and doctor bills and advance him a sufficient allowance to cover the difference between his workmen’s compensation, if any, he should be paid and his salary with his then employer. The jury among other issues not pertinent here found that Snead and the Company had not failed to make the agreed payments.

Judgment was entered in March of 1961 that a valid agreement existed in accordance with the abovementioned jury answers. No motion was ever filed by appellants requesting that Weeks’ case be dismissed or that final judgment against Weeks be entered and no action was ever taken by the court dismissing Weeks’ principal cause of action.

26 days after judgment, Weeks filed a motion for a new trial on the separate issue of agreement not to sue, which was overruled.

Weeks then gave notice of appeal to this Court, which appeal was dismissed.

In June of 1964, Weeks’ principal cause of action came to trial, at which time appellants did not request the court to dismiss this cause of action. Thereafter, the case was tried resulting in a jury verdict favorable to Weeks.

By Motion in Limine filed at the June, 1964 trial, and the order of the court thereon, the defendants therein (appellants) were instructed not to refer to their plea in bar, based on the agreement not to sue, or the separate trial thereon, or the verdict and judgment rendered thereon.

At the close of Weeks’ (plaintiff) testimony, appellants filed a trial amendment specifically pleading the interlocutory judgment on the separate issue. Then the appellants made a motion for an instructed verdict and renewed it at the close of testimony. These motions were overruled. Appellants then made a Motion Notwithstanding the Verdict and an Amended Motion for New Trial.

Weeks had also filed a Motion for Judgment, which requested the court to disregard certain issues. In this motion Weeks re-urged his motion for summary judgment regarding the severed issues; re-urged his motion for instructed verdict regarding the severed issues; maintained that there was no basis in law to support the entry of the interlocutory order based on accord and satisfaction and/or settlement, for the reason that no evidence was introduced showing any binding agreement was ever reached between the parties hereto for a release and/or accord and satisfaction or an agreement to bind Weeks from suing appellants herein.

Weeks further sought the court to disregard the interlocutory order because: the findings of the jury on special issues Nos. 1 and 2 in the hearing on the severed issue, and the interlocutory judgment entered thereon, do not establish with sufficient definiteness and certainty an agreement upon which Weeks can or could enforce or obtain affirmative relief; that there was no evidence to support the answers made to special issues Nos. 1 and 2 at the hearing on the severed issues; that the findings of the jury on the special issues submitted in the severed hearing and the interlocutory judgment entered thereon do not establish either accord and satisfaction or release; that as a matter of law the appellants breached any agreement or understanding that could constitute an accord or release; that the trial court erred in the trial of the severed issues for not sustaining Weeks’ objections to the charge on the severed issues; that the special issues submitted on the trial of the severed issues do not constitute a basis for judgment on behalf of the appellants, and taken as a whole they simply do not form any basis for any judgment that would be a bar to Weeks’ tort cause of action; that the court should have granted Weeks’ Motion for judgment non obstante veredicto after the jury answered the severed issues.

As stated above, the trial court entered judgment for Weeks and disregarded the answers to the prior special issues submitted in the trial on the severed issues. The court found in its judgment that said interlocutory judgment and special issues specified therein should be set aside and disregarded as presenting a basis for denying appellee (Weeks) relief.

The trial court had power to set aside the interlocutory order at any time prior to the finality of the judgment. Texas Land & Loan Co. v. Winter, 93 Tex. 560, 57 S.W. 39, 41 (1900); Wichita Falls & S.R. Company v. McDonald, 141 Tex. 555, 174 S.W.2d 951, 952 (1943); Kone v. Security Finance Co., 158 Tex. 445, 313 S.W.2d 281, 286 (1958); Kuehn v. Kuehn, 242 S.W. 719, 720 (Tex.Com.App.1922). Nor does the prior interlocutory order have any limiting effect on the final judgment actually entered. In Texas Land & Loan Co. v. Winter, supra, perhaps the leading Texas case, the Supreme Court stated:

“ * * * Notwithstanding the opinion previously expressed in the ruling on the exceptions, the court, when it came to finally dispose of the cause, had complete power to render such judgment as in its opinion the rights o.f the parties demanded; and, if such judgment was inconsistent with the order made upon the exceptions, the order must give way to the judgment, instead of limiting its effect. * * * ”

Since the trial court had the power to set aside this interlocutory order, and no record is before this Court regarding the facts relating to the severed issues, all presumptions must be in favor of the judgment for appellee. Houston Fire & Casualty Co. v. Walker, 152 Tex. 503, 260 S.W.2d 600, 603 (1953); Armstrong v. West Texas Rig Company, Tex.Civ.App., 339 S.W.2d 69, 73 (El Paso, 1960) writ ref., n. r. e.; Kavanagh v. Holcombe, Tex.Civ.App., 312 S.W.2d 399, 402 (Houston, 1958,) writ ref., n. r. e.; compare Dennis v. Hulse, 362 S.W.2d 308, 310 (1962), Supreme Court.

Apart from the insufficiency of the record, none of the cases cited by appellant in its brief are applicable to our situation. The main case relied upon by appellant is Locke v. Atchison, Topeka & Santa Fe R. R. Co., (10th Circuit) 309 F.2d 811. In that case an issue regarding release was severed from the main cause of action and tried to a jury. The jury found in favor of the defendant on the release. The trial court then entered judgment for the defendant and dismissed plaintiff’s cause of action. A final judgment was entered dismissing plaintiff’s cause of action and the plaintiff appealed. This is entirely different from the present case, because no final judgment was ever entered on the severed issue nor one dismissing appellee’s cause of action. The only final judgment entered was one in favor of appellee after the prior interlocutory order was set aside.

As stated by the Court in Kansas University Endowment Association v. King, 162 Tex. 599, 350 S.W.2d 11 (1961), there can only be one final judgment in a cause. See Rule 301, T.R.C.P. In the instant case the only final judgment is the one now before the Court, and without a Statement of Facts this Court must presume the trial court had a valid basis for setting aside.the prior interlocutory order.

In appellee’s motion several grounds were set forth as a basis to disregard the interlocutory order, and it must be presumed that the court found that said grounds were sufficient to set aside the interlocutory order. Houston Fire & Casualty Ins. Co. v. Walker, supra.

We overrule this point.

Appellants’ second point of error is that of the court in the manner of the submission of special issues 1, 3, 5, 7 and 15 because they are duplicitous and assume that the defendant (appellant Snead) committed the alleged negligent act.

We overrule this point.

We hold that these special issues are not multifarious or duplicitous, but are submitted in the standard form used for “lookout,” “speed,” or “application of brakes” that the Courts have approved in automobile cases.

Special Issue No. 1 inquires whether or not on the occasion in question the defendant failed to make such observation of his air speed indicator as would have been made by a person of ordinary prudence in the exercise of ordinary care under the same or similar circumstances.

Special Issue No. 3 inquires whether or not on the occasion in question the defendant approached for a landing at a rate of speed in excess of that at which a person of ordinary prudence in the exercise of ordinary care would have done under the same or similar circumstances.

Special Issue No. 5 inquires whether or not the defendant made a higher approach than would have been made by a person of ordinary prudence in the exercise of ordinary care under the same or similar circumstances.

Special Issue No. 7 inquires whether or not the defendant attempted to land further down the runway than a person of ordinary prudence in the exercise of ordinary care would have done under the same or similar circumstances.

Special Issue No. 15 inquires whether or not the defendant failed to change his flaps after he touched down in such a manner as would have been done by a person of ordinary prudence in the exercise of ordinary care under the same or similar circumstances.

The Courts have held that it is proper to submit the issues in the above form rather than submitting two separate issues. The case of Roy Lee Lumber Company v. Green, 299 S.W.2d 349 (Beaumont, 1959,) writ ref., n. r. e., held the following issue to be proper:

“Do you find from a preponderance of the evidence that on the occasion in question Willis King operated his truck more closely to the automobile of Thomas Green than a person of ordinary prudence in the exercise of ordinary care would have operated same ?”

The appellants in that case objected to said issue on the ground of duplicity, as in this case. The Court of Civil Appeals specifically holds that submitting the issue in the above form is proper. The San Antonio Court of Civil Appeals held in Lander v. Jordan, 87 S.W.2d 1109 that it was proper to submit a lookout issue in the following form:

“Do you find from a preponderance of the evidence that the plaintiff, at the time of or just prior to the injury, failed to keep such a lookout for his own safety as a person of ordinary care would have kept under the same or similar circumstances ?”

The Court of Civil Appeals in Vardilos v. Reid, 320 S.W.2d 419 held that the following issue is proper:

“Do you find from a preponderance of the evidence that Peter Vardilos failed to apply his brakes at a time that a person of ordinary prudence in the exercise of ordinary care acting under the same or similar circumstances would have applied his brakes ?”

The Supreme Court in the City of Fort Worth v. Lee, 143 Tex. 551, 186 S.W.2d 954, 159 A.L.R. 125, (1945), also indicates that it is proper to submit the lookout issue in the form submitted by the trial court in the instant case.

Appellant has not complained of the form of Special Issues Nos. 9, 11 or 13. Special Issue No. 9 inquires whether or not in not going around before he touched down the first time, E. B. Snead failed to use ordinary care. This issue refers to Snead’s failure to circle the field before landing. Special Issue No. 11 inquires whether or not in not going around before he touched down the second time, E. B. Snead failed to use ordinary care. Special Issue No. 13 asks whether or not E. B. Snead’s attempt to take off after using his brakes was a failure to use ordinary care.

The Supreme Court has specifically held that it does not matter whether some of the special issues are multifarious and comment on the weight of the evidence when there are other issues that the judgment may be predicated upon. Tex-Jersey Oil Corporation v. Beck, 157 Tex. 541, 305 S.W.2d 162, 68 A.L.R.2d 1062, (1957); Kelley v. Goodrum, 378 S.W.2d 935 (Houston, 1964). The Supreme Court used the following language in the Beck case:

“ * * * jn response to Special Issue No. 1 the jury found that the act of petitioners in storing oil in a tank which was not vapor proof was a proximate cause of the explosion and the deaths of Christine Beck, Lorenzo Beck and Elizabeth Beck. Petitioners’ Point 7 asserts that liability may not be predicated on the answer to special issue No. 1 because the issue was fatally defective in that it was multifarious and commented on the weight of the evidence and because the ordinance in question is invalid. Inasmuch as we have held that petitioners’ liability may be predicated on the jury’s answer to special issues 2, 3 and 4, the defects, if any, in special issue No. 1 and the invalidity of the ordinance become immaterial.”

Appellants’ third point of error is that there is no evidence to support the affirmative answers of the jury to special, issues numbers 1, 3, 5, 7, 9, 11 and 15 respectively.

These issues are as follows:

“SPECIAL ISSUE NO. 1: Do you find from a preponderance of the evidence that on the occasion in question E. B. Snead failed to make such an observation of his air speed indicator as would have been made by a person of ordinary prudence in the exercise of ordinary care under the same or similar circumstances ?
“SPECIAL ISSUE NO. 3: Do you find from a preponderance of the evidence that on the occasion in question E. B. Snead approached for a landing at a rate of speed in excess of that at which a person of ordinary prudence in the exercise of ordinary care would have done under the same or similar circumstances ?
“SPECIAL ISSUE NO. S: Do you find from a preponderance of the evidence that E. B. Snead made a higher approach than would have been made by a person of ordinary prudence in the exercise of ordinary care under the same or similar circumstances? “SPECIAL ISSUE NO. 7: Do you find from a preponderance of the evidence that on the occasion in question E. B. Snead attempted to land further down the runway than a person of ordinary prudence in the exercise of ordinary care would have done under the same or similar circumstances?
“SPECIAL ISSUE NO. 9: Do you find from a preponderance of the evidence that in not going around before he touched down the first time E. B. Snead failed to use ordinary care?
“SPECIAL ISSUE NO. 11: Do you find from a preponderance of the evidence that in not going around before he touched down the second time E. B. Snead failed to use ordinary care ?
“SPECIAL ISSUE NO. 15: Do you find from a preponderance of the evidence that on the occasion in question E. B. Snead failed to change his flaps after he touched down in such manner as would have been done by a person of ordinary prudence in the exercise of ordinary care under the same or similar circumstances?

Appellant Snead testified: “That he had complete control of the airplane; he did not know his air speed; that he landed too long; that he was flying too fast; that he made a too high and too fast approach to the air strip; that the airplane touched down about the middle of the strip; that it was easier to go around before the airplane touched- down the first time; that he did not change the flap settings; that he touched down farther down the runway than he normally liked; that he knew he should have touched down in the first one-third of the strip, but did not do so; that he came in too high and too fast; that he could have gone around after touching down the first time; that he recognized the flaps were not at the proper setting.”

Bruce Hallock, an expert witness, testified, among other things, to the following: “That a pilot under the circumstances of Snead should watch his air speed indicator ; that a pilot under the circumstances of this landing should not come in too high; that a pilot can tell readily whether or not he is too high; that if he came in too high and too fast, he should not land and circle around; that a thermal could cause a plane to bounce only if there was excessive air speed; that Snead could have taken off after he touched down the first time; that after he hit the brakes he should stay down; that flaps should be returned to their-off position; that flaps can be changed in a second or less; that the pilot is in complete control of the plane; that Snead could have landed safely on this strip if he used ordinary care.”

We overrule this point and hold that there is sufficient evidence to support the issues complained of.

Inasmuch as we have affirmed the trial court’s judgment as to specific acts of negligence on the part of the appellant Snead and the component elements thereto, it is unnecessary for us to discuss appellants’ fourth and fifth points of error, namely, that special issue 17 as submitted was a general charge; and if so intended, improperly submitted the case under the rule of res ipsa loquitur.

We affirm the judgment of the trial court.