author: CHAPMAN, Justice.

text:
    Glen W. PHILLIPS, Appellant, v. SUNTEX OIL & GAS COMPANY et al., Appellees.
    No. 7703.
    Court of Civil Appeals of Texas. Amarillo.
    April 3, 1967.
    Rehearing Denied May 8, 1967.

      Gibson, Ochsner, Harlan, Kinney & Morris, John E. Morrison, Jr., Amarillo, for appellant, Sansing & Sansing, Higgins, of counsel.
    Lemon, Close & Atkinson, Edward L. Atkinson,' Perryton, for appellees, Gordon Llewellyn, Dallas, of counsel.
   CHAPMAN, Justice.

This is a suit by Glen W. Phillips seeking a declaratory judgment construing an oil and gas mineral lease executed by him and his wife, Gladys L. Phillips, to Paul M. Haywood on July 18, 1955, on the west half, the northeast quarter, and the south half of the southeast quarter of Section 1163, Block 43, H. & T. C. R. R. Co. Survey of Lipscomb County.

If the named lease was valid and subsisting at the institution of the suit and at all material times herein the leasehold estate created thereby was owned by ap-pellee, Suntex Oil & Gas Company, Paul M. Haywood and Lorene Haywood, Texas Bank and Trust Company of Dallas, Texas, and John B. Stigall, Jr., as Trustee for said bank and trust company. Suntex, as the oil company will be hereinafter referred to, was the owner of the working interest, the Haywoods were owners of certain overriding royalty interests carved out of the leasehold estate created by said lease, and the bank and trust company and John B. Stigall, Jr., as Trustee, were the owners of certain lien and security interests covering the leasehold estate created by the lease.

A motion for summary judgment was granted by the trial court in favor of the named defendants, and Glen W. Phillips has appealed.

The Phillips’ lease to Haywood of July 18, 1955, of 560 acres, more or less, provided for a primary term of ten years, with the customary delay rental clause. Rentals were tendered to the depository bank and accepted on or before the eighteenth day of July of each year during the primary term. On July 17, 1965, appellant and his wife Gladys L. Phillips, by proper instrument extended the primary term of the described lease ten days, to July 28, 1965, at 12:00 o’clock midnight.

The rights of the parties appear to depend essentially upon the construction and application of Paragraphs 2 and 5 of the original lease from appellant and his wife to Haywood on July 18, 1955. There is no contention concerning the ten-day amenda-tory extension of the primary term to July 28, 1965, thus making the last named date the primary term expiration date. Paragraphs 2 and 5 are as follows:

“2. Subject to the other provisions herein contained, this lease shall be for a term of Ten (10) years from this date (called ‘primary term’) and as long thereafter as oil, gas or other mineral is produced from the land hereinabove described.
⅜ ⅜ ‡ ⅝ ⅜; ⅜
“5. If prior to discovery of oil, gas or other mineral on said land Lessee should drill a dry hole or holes thereon, or if after discovery of oil, gas or other mineral all wells thereon should become incapable of producing for any cause, this lease shall not terminate if Lessee commences operations for additional drilling or for reworking within sixty (60) days thereafter or (if it be within the primary term) commences or resumes the payment or tender of rentals on or before the rental paying date next ensuing after the expiration of sixty (60) days from date of completion of dry hole or cessation of production. If at the expiration of the primary term there is no well upon said land capable of producing oil, gas or other mineral, but Lessee has commenced operations for drilling or reworking thereon, the lease shall remain in force so long as operations are prosecuted with no cessation of more than thirty (30) consecutive days, and if they result in the production of oil, gas, or other mineral, so long thereafter as oil, gas or other mineral is produced from said land.”

On July 18, 1965, Suntex initiated operations by re-entry into a well drilled under a previous lease only to the Tonkawa Formation, cleaning out the old hole to 3,415 feet subsurface, and then drilling by due diligence to a subsurface depth of 6,330 feet. This well is referred to in the record as Suntex No. 1 Phillips. At said depth the well was determined on July 27, 1965, to be unproductive, and on said date plugged.

Appellees’ motion for summary jugment, supported by affidavits of Gordon Llewellyn, president of Suntex, and Paul M. Haywood, field representative in charge of its Lipscomb County area, show that on July 28, 1965, being the last day of the primary term, the drilling rig was dismantled and laid down at the Suntex No. 1 Phillips Well location and sometime between 9:00 p. m. that day and 7:00 a. m., July 29, 1965, removed from such location. Haywood’s affidavit also shows he erected a fence around the slush pit between July 29, 1965, and August 2, 1965, of Suntex No. 1 Phillips. Haywood’s affidavit also shows Suntex’s drilling contractor, Unit Drilling Company, moved a drilling rig onto the location of the Suntex No. 2 Phillips Well on said lease on August 27, 1965, and commenced the installation and erection thereof. The well was spudded on August 28, 1965. Thereafter, operations were conducted with diligence to 6,410 feet and completed on September 20, 1965, as a well capable of producing gas or gas and condensate in paying quantities.

By instrument designated, “Answer Of The Plaintiff Glen W. Phillips To Suntex Oil And Gas Company’s Paul M. Haywood’s And Lorene Haywood’s Motion For Summary Judgment,” sworn to by its Amarillo attorney, appellant denied the drilling rig was laid down, dismantled and removed on July 28 and July 29, 1965, and denied any operations whatever were conducted by Suntex between the time the Suntex No. 1 Phillips Well was plugged on July 27, 1965, and August 27, 1965.

Shut-in gas royalties were tendered to the depository bank on September 13, 1965, and again tendered into the registry of the court on November 26, 1965. Initial delivery of gas from the Suntex No. 2 Phillips Well was made on April 26, 1966, and it was still continuing its production in paying quantities on the date of hearing in the trial court.

Under the record before us, we hold the trial court properly granted the summary judgment. Rule 166-A-(b), V.A.T.R., provides, inter alia, that a party against whom a declaratory judgment is sought “ * * * may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.”

Section (e) provides:

“ * * * Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits.” (All emphases added).

The affidavits made by Messrs..Llewellyn and Haywood appear to comply with the formal requirements so far as showing them competent to testify to at least the material matters about which they were swearing. The former stated in his affidavit that he was president of Suntex, all records of the company are maintained at the corporation’s principal office at 908 South-land Center, Dallas, Texas, under his direct control and supervision and that all factual matters set forth in the affidavit are within his personal knowledge or have been obtained from the records of Suntex maintained in the ordinary course of its business.

Mr. Haywood’s affidavit shows it was his duty to supervise the work of the independent contractor performed upon the oil and gas leases owned by Suntex in Lipscomb County; that he personally supervised the subject lease; that the Suntex No. 1 Phillips was plugged and abandoned on July 27, 1965; that the drilling rig was dismantled, laid down, and moved from the location sometime between July 28, 1965, at 9:00 p. m. and July 29, 1965, at 7:00 a. m.; that he constructed and erected a fence around the slush pit at the location between July 29, 1965, and August 2, 1965; and that operations were commenced on Suntex No. 2 Phillips on August 27, 1965, under the subj ect lease.

Appellant admits by brief there is no fact issue involved in the construction of the lease but he made no move for summary judgment, made no affidavit denying appellees’ motion for summary judgment and affidavits in support thereof, and took no deposition. The factual matters constituting the answer heretofore mentioned, made by appellant’s Amarillo attorney denying any operations between the plugging of the hole on July 27, 1965, and August 27, 1965, would not in our opinion ■ be admissible in evidence. “ * * * affidavits must be made by competent affiants with personal knowledge of the statements in them, which statements must be so worded that if given on the witness stand they would be admissible in evidence.” Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396 (1958). See also Chumchal v. Natural Gas Pipeline Co. of America, 381 S.W.2d 690 (Tex.Civ.App.—Corpus Christi, 1964, no writ); DuBose v. Parkdale Plaza Company, 408 S.W.2d 324 (Tex.Civ.App.—Corpus Christi, 1966, writ ref’d n.r.e.); Farmers State Bank v. First State Bank of Liberty, 317 S.W.2d 768 (Tex.Civ.App.—Waco, 1958, no writ); Gaston v. Copeland, 335 S.W.2d 406 (Tex.Civ.App.—Amarillo, 1960, writ ref’d n.r.e.); Sparkman v. McWhirter, 263 S.W.2d 832 (Tex.Civ.App.—Dallas, 1953, writ ref’d).

In our opinion the answer sworn to by appellant’s Amarillo attorney does not comply with the plain wording of Rule 166-A-(e), V.A.T.R., by showing affirmatively that the affiant is competent to testify to the matters stated therein. In Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948 (I960) the Supreme Court of Texas has held: “When facts entitling the moving party to prevail have been established by affidavits, deposition testimony or admissions, the motion for summary judgment will not be denied merely because the opposite party has alleged matters which, if proved, would require that a different judgment be rendered. * * * If the defendants expected to defeat the motion for summary judgment * * * it was incumbent upon them to come forward with ‘evidence’ *■ * As we view the answer to the motion for .summary judgment it is no more than allegations.

Obviously, the statements of fact made by appellant in a pleading and sworn to by his attorney, living and maintaining his office more than 100 miles from the lease, would not be admissible unless the attorney was present on the grounds and observed the lack of any operations from July 27, 1965, to August 27, 1965. In the absence of his personal presence at the lease site his personal knowledge in connection therewith could only be hearsay and inadmissible. His fiat nowhere states facts by which he had such personal knowledge, such as we believe is required by the cases cited in the two previous paragraphs and the plain wording of Rule 166-A-(e).

If facts asserted in an affidavit in the form made and through the wording used could not raise a fact issue so as to preclude summary judgment, Gaston v. Copeland, supra, then an answer to a motion for summary judgment lacking the same quality could not do so. Therefore, we must look to the other summary judgment evidence. The instrument just discussed would constitute a summary judgment component, Rule 166-A-(c), but in our opinion would not constitute summary judgment evidence such as to contradict affidavits which show affirmatively that the affiants are competent to testify to the facts stated therein; that the facts stated would be admissible in evidence on the trial of the case concerning which they were made, and which affidavits show the parties making them to be entitled to a judgment summarily rendered.

Haywood’s and Llewellyn’s affidavits taken together show Suntex No. 1 Phillips was plugged and abandoned as a well on July 27, 1965, but that operations continued at the well site by lowering, dismantling and moving the drilling rig from July 28, 1965, to 7:00 a. m., July 29, 1965, and that from July 29, 1965 to August 2, 1965, Haywood constructed a fence around the slush pit.

The habendum clause provides: “Subject to the other provisions herein contained, this lease shall be for a term of Ten (10) years * * * and as long thereafter as oil, gas or other mineral is produced * * ”

The stipulation for a term of ten years and ten days characteristic of this lease “ * * * is thus both modified and enlarged by the recital that it is subject to the other lease provisions, and is required to yield to any and all other provisions which affect the duration of the lease.” Stanolind Oil & Gas Co. v. Newman Brothers Drilling Co., 157 Tex. 489, 305 S.W.2d 169 (1957). This being true, “* * * the lease may be kept in force after the end of the primary term * * * by the operation of its other provisions.” Stanolind, supra..

The first sentence of Paragraph 5, as applicable to the facts of our case, provides: “If prior to the discovery of oil, gas or other mineral on said land, Lessee should drill a dry hole * * * thereon * * * this lease shall not terminate if Lessee commences operations for additional drilling * * * within sixty (60) days thereafter.”

Even if it should be said arguendo that the activities of July 28 and 29, 1965, in dismantling and moving the rig and the construction of the fence around the slush pit between July 29, 1965, and August 2, 1965, did not constitute “drilling operations” within the meaning of the lease, when Suntex No. 1 Phillips was plugged and abandoned as a dry hole on July 27, 1965, the dry hole clause became operative, giving Suntex a sixty-day period in which to commence additional drilling operations. This it elected to do and Suntex No. 2 Phillips was commenced on August 27, 1965, well within the sixty-day period. However, various activities preliminary to actual spudding of a well have been held to constitute “drilling operations,” such as selection of a drill site, placing timbers on the ground to be used in drilling operations, leveling the well location, and moving bulldozers and maintainers to selected well sites and the digging of pits and reservoirs. Guleke v. Humble Oil & Refining Co., 126 S.W.2d 38 (Tex.Civ.App.—Amarillo, 1939); Texas Co. v. Curry, 229 S.W.2d 643 (Tex.Civ.App.—Fort Worth, 1921); McCallister v. Texas Co., 223 S.W. 859 (Tex.Civ.App.—Fort Worth, 1920, writ ref’d); Petersen v. Robinson Oil & Gas Company, 356 S.W. 2d 217 (Tex.Civ.App.—Houston, 1962); Whelan v. R. Lacy, Inc., 251 S.W.2d 175 (Tex.Civ.App.—Texarkana, 1952, writ ref’d n. r. e.).

By the same token it would appear “drilling operations” are not concluded until the rig and other equipment are dismantled and moved off the location and the cleaning process connected with the drilling operations performed, such as fencing the slush pit.

Our Supreme Court in Stanolind said: “ * * * the sixty-day clause can be effective only if the lease is in force at the time of the occurrence of the event which renders it operative.” The event which rendered it operative in the sentence under discussion was the drilling of the dry hole prior to discovery of oil, gas or other mineral.

As was-the case in Stanolind, the sixty-day clause deals with only two fact situations. The first is where a dry hole or holes are drilled prior to the discovery of oil or gas. The second is where after discovery of oil or gas, production ceases from any cause. The second clause is not applicable here. The Supreme Court of Texas in Stanolind held that the sentence comparable to our first sentence in Paragraph 5 provides that in either of the two fact situations mentioned the lease may be kept in force by additional drilling begun within sixty days. The Court then stated: “By necessary implication the lease may be kept in force by the additional drilling or reworking operations in either fact situation whether occurring within or after the end of the primary term.”

The construction we have given to the lease in question is an equitable construction and gives the parties who have obviously spent considerable money on delay rentals and in seeking production an opportunity to save their lease. We believe a holding that it did not terminate will not do violence to any established legal principle. As a matter of fact, we believe our case is so analogous to St. Louis Royalty Co. v. Continental Oil Co., 193 F.2d 778 (5th Cir., 1952) and Stanolind it requires no application of equity to affirm the trial court.

We still have left the appellant’s first two points, which urge error of the trial court in sustaining the motion for summary judgment despite his plea in abatement “ * * * at a time which necessary and indispensable parties had not been made parties to the action.” At the time appellant filed this suit on November 1, 1965, and issues had been joined by answers of all parties, Harry R. Staley and Flossie B. Staley owned ¾6 mineral interest in the 80-acre tract constituting the north half of the southeast ⅛ of the subject section and the leasehold estate under an oil and gas lease previously executed by appellant and his wife to them on August 5, 1959, covering the 80 acres.

On March 15, 1966, the Staleys executed an assignment in favor of Suntex whereby the August 5, 1957, oil and gas lease from appellant and wife to them covering the 80 acres was assigned to Suntex pertaining to gas and condensate down to and including the base of the Tonkawa Formation. In said assignment they reserved an overriding royalty of ⅛ of ⅝ of all gas and condensate produced from the assigned formations. Appellant and wife by instrument dated February 1, 1966, ratified, adopted and confirmed the August 5, 1957, lease as the same covers the rights assigned to Suntex.

On March 15, 1966, the Staleys executed a gas and condensate lease dated February 1, 1966, to Suntex covering the ¾6 mineral interest owned by them in the 80-acre tract as to gas, condensate and associated hydrocarbons down only to the Tonkawa Formation, reserving unto themselves ⅛ of the % royalty in addition to the customary ⅛. On March 15, 1966, they also executed a designation of gas unit whereby they unitized their 80 acres interest covering the August 5, 1957, mineral lease and February 1, 1966, gas and condensate lease with the remainder of that section. Additionally, the plaintiff, the Staleys and Northern Natural Gas Company entered into an agreement to permit the sale of gas during the period of this litigation. Pleadings of appellees sworn to by one of their counsel show that the Staleys were represented by appellant’s attorneys in the stated negotiations and instruments. Some of the instruments were long and involved but a study of them indicates that in the event appellant prevails in this suit to terminate the lease title to the 80 acres will automatically revert and vest as it was on November 1, 1965, the date suit for termination was filed. It therefore follows that, the instruments and negotiations which created the unitization and provided for the sale of gas during the pendency of this suit were negotiated and drafted in the light of the pending litigation.

The Staleys owned no interest in the Phillips No. 1 Suntex Well at the beginning of this litigation. The instruments show they will participate in production from said well only if appellees retain the July 18, 1955, lease and the producing well. A study of the record requires no indulgence of intendments favoring the summary judgment in order to find the Staleys consented to participate on the conditional basis just related, were well aware of the litigation, and contracted in reference thereto. This case thus appears to us to be distinguishable from the “parties” questions in Belt v. Texas Co., 175 S.W.2d 622 (Tex.Civ.App.—Amarillo, 1943, writ ref’d) and Veal v. Thomason, 138 Tex. 341, 159 S.W.2d 472 (1942) and thus not controlled by those cases. If our interpretation of the lease is upheld by the Texas Supreme Court the Staleys could not be adversely affected. If we are not upheld, they will still be in the same position they were when the litigation was initiated, subsequent to which they negotiated and signed the only instruments that give them any right whatever to be parties to this litigation and at a time they were obviously conscious of its existence. In either event, they are in better position by not having been made parties in that they are free of legal fees and any other possible expense incident to the litigation.

Considered both from legal and equitable principles, we believe the case was properly disposed of by the trial court. The judgment is affirmed.

      . The lease was held to terminate in Rogers v. Osborn, 152 Tex. 540, 261 S.W.2d 311 (1953), because neither of the two fact situations existed .which authorized keeping it in force by additional drilling or reworking operations begun within sixty days.


source: Caselaw Access Project

author: DIXON, Chief Justice.

license: Public Domain

text:
    STANDARD ACCIDENT INSURANCE COMPANY, Appellant, v. EMPLOYERS CASUALTY COMPANY, Appellee.
    No. 16935.
    Court of Civil Appeals of Texas. Dallas.
    July 14, 1967.
    Rehearing Denied Sept. 29, 1967.

      W. Richard Bernays, of Touchstone, Bernays & Johnston, Dallas, for appellant.
    Gordon H. Rowe, Jr., of Gardere, Porter & DeHay, Dallas, for appellee.
   DIXON, Chief Justice.

This suit was brought to determine which of two insurance companies afforded primary coverage for a defendant in a personal injury suit.

On October 23, 1959 James R. Bailey, an employee of Johnson Foundation Drilling Company, was injured within the course of his employment. The job of the Johnson Company, a subcontractor in the construction of an apartment building, was to drill foundation holes and to pour concrete into casings in the holes.

.Cade Carter and George Miller, partners, doing business as Carter & Miller Steel Erectors, were owners of a motor crane which they leased to the Johnson Company together with an operator for the crane, one Matt Venable, an employee of Carter & Miller. It was the alleged negligence of Venable in maneuvering the crane and its boom, with bucket attached, which caused the accident. Carter & Miller were the named insureds in a liability policy issued by appellee Employers Casualty Company.

Carter & Miller were notified by Venable, their employee, of Bailey’s injury on the same date it occurred. Nevertheless they did not report the accident to their insurance carrier, Employers Casualty Company, until July 7, 1960 — more than six months after Bailey’s injury. The notice was sent then only after they, Carter & Miller, had received a letter dated June 15, 1960 from Bailey’s attorneys referring to his injury and suggesting they refer the matter to their insurance carrier or their attorneys.

Dallas Concrete Company owned a ready-mix concrete truck, with revolving drum, which transported concrete to the construction site. On the occasion in question a chute had been lowered from the rear of the truck, and concrete had been caused to flow down the chute to a large bucket attached to the boom on the motor crane operated by Venable, employee of Carter & Miller. The bucket of concrete was being carried by the crane and boom to the casing into which the concrete was to be poured. Bailey was riding on the bucket when the bucket struck the casing and Bailey was caused to fall to the ground.

Dallas Concrete Company, owner of the ready-mix concrete truck, had comprehensive insurance on its truck evidenced by a policy with Standard Accident Insurance Company. This policy contained provisions to the effect that (1) use of the truck included loading and unloading thereof; (2) when an accident occurred written notice thereof was to be given to the insurance company or any of its authorized agents “as soon as practicable”; (3) should a claim be made or a suit brought against the insured the latter should immediately forward to the insurance company every demand, notice, summons or other process received by the insured or its representative; and (4) no action should lie against the insurance company unless as a condition precedent thereto, the insured should have fully complied with all the terms of the policy.

On May 3, 1961 Bailey filed suit against Carter & Miller for damages for his injury allegedly caused by the negligent operation of Carter & Miller’s crane by Venable, their employee.

On May 26, 1961 Carter & Miller — more than nineteen months after the accident— for the first time sent notice to Standard Accident Insurance Company of Bailey’s injury. The letter of notification was really composed for Carter & Miller by an agent of Employers Casualty Company, their insurance carrier, though it was typed on Carter & Miller’s letter head and signed by Miller. In this letter Carter & Miller stated:

“We have just learned that the policy of insurance which you carry on Dallas Concrete Company provides coverage for Carter and Miller Steel Erectors and their employees for the accident which occurred on October 23, 1959 at 111 Continental while we were unloading the truck owned by Dallas Concrete with their permission.
“The attached citations and petitions were served on us on May 9, 1961. Please file a timely answer and otherwise defend and protect our interests.”

On May 29, 1961 Standard Accident Insurance Company returned the citation and petition and informed Carter & Miller that their letter of May 26, 1961 was the first notice Standard Accident Insurance Company had received of Bailey’s accident, and that the company declined to file an answer for Carter & Miller, or to defend them.

Employers Casualty Company thereafter undertook the defense of their named insured and on January 3, 1962 Bailey’s suit against Carter & Miller was compromised and settled for the sum of $9,000. The insurance company paid its attorneys $700 as their fee for handling the case.

Some time in 1962 after the above settlement was consummated Employers Casualty Company sued Standard Accident Insurance Company for indemnity for the $9,700 paid out by the former in defending Bailey’s suit against Carter & Miller.

On December 16, 1966 following a non-jury trial judgment was rendered in favor of Employers Casualty Company against Standard Accident Insurance Company for $9,700 plus interest. In connection with said judgment the court found that (1) on the occasion in question Dallas Concrete Company’s truck was being unloaded and, (2) that notice was “timely given” within the contemplation of the insurance policy issued by Standard Accident Insurance Company.

Our Supreme Court in a case in which the facts were similar to the facts here has held that a ready-mix concrete truck was being unloaded within the meaning of a comprehensive insurance policy, hence the owner of the truck was liable to a person injured in connection with the operation of a crane. Travelers Ins. Co. v. Employers Casualty Co., 380 S.W.2d 610 (Tex.1964). Because of the above holding appellant here does not seriously contend that its comprehensive policy issued to Dallas Concrete Company does not afford coverage to Carter & Miller.

But appellant does seriously contend in six points of error that in view of the undisputed evidence it must be held as a matter of law that Carter & Miller failed to give notice to appellant of Bailey’s accident “as soon as practicable”, as required by the insurance policy issued by appellant to Dallas Concrete Company; therefore the judgment by the court should be reversed and judgment rendered for appellant.

Compliance with the notice provision was a condition precedent to the right of Carter & Miller to recover under Dallas Concrete Company’s comprehensive policy. New Amsterdam Casualty Co. v. Hamblen, 144 Tex. 306, 190 S.W.2d 56 (1945); Klein v. Century Lloyds, 154 Tex. 160, 275 S.W.2d 95, 97 (1955); Kellum v. Pacific National Fire Ins. Co., 360 S.W.2d 538 (Tex.Civ.App., Dallas 1962, writ ref’d n. r. e.).

When the evidence and all reasonable inferences based on the evidence are undisputed the question of the adequacy of notice is a question of law. Klein v. Century Lloyds, 154 Tex. 160, 275 S.W.2d 95, 97 (1955).

In support of its points of error appellant cites us to Houck v. State Farm Mutual Automobile Ins. Co., 394 S.W.2d 222, 224 (Tex.Civ.App., Beaumont 1965, writ ref’d n. r. e.) "(rule applied not only to named insured but also to additional insureds called “third party donee beneficiaries”); Kellum v. Pacific National Fire Ins. Co., 360 S.W.2d 538 (Tex.Civ.App., Dallas 1962, writ ref’d n. r. e.) (delay of one year held breach of notice provision as a matter of law); Trinity Universal Ins. Co. v. Weems, 326 S.W.2d 302 (Tex.Civ.App., Austin 1959, no writ) (3½ months’ delay held to be breach as a matter of law); National Surety Corp. v. Diggs, 272 S.W.2d 604 (Tex.Civ.App., Fort Worth 1954, writ ref’d n. r. e.) (104 days’ delay a breach as matter of law); Klein v. Century Lloyds, 154 Tex. 160, 275 S.W.2d 95 (1955) (delay of 31 days); New Amsterdam Casualty Co. v. Hamblen, 144 Tex. 306, 190 S.W.2d 56 (1945).

In the Kellum case above cited, this court held as a matter of law that lack of knowledge of coverage and lack of knowledge that a claim could be made are not good excuses for failure to comply with provisions of a policy concerning notice.

Appellee contends that undér the circumstances the court’s finding that the notice was timely is amply supported in the testimony and this court is bound by the finding.

Appellee argues that in passing on the sufficiency of notice there is a basic distinction between the duties of a named insured and an “omnibus insured”, as were Carter & Miller in regard to appellant. A named insured is the one who purchases the policy, presumably has it in his possession and is deemed to know the contents of the contract he made. On the other hand an “omnibus insured” under a comprehensive policy stands in the position of a third party beneficiary of a contract to which he is not a party, but is a stranger. Consequently ap-pellee points out that it has been held that to exclude him from his rights he must have knowledge of the contract and its contents, and that his duty to give notice to the “omnibus” insurance carrier is excused until such time as a reasonably prudent person similarly situated would have discovered the existence and contents of the “omnibus contract”.

In support of the view above stated ap-pellee cites Appleman, “Insurance Law and Practice”, Vol. 8, pages 54 and 87, and Allstate Ins. Co. v. Darter, 361 S.W.2d 254 (Tex.Civ.App., Fort Worth 1962, no writ) and National Surety Corp. v. Wells, 287 F.2d 102 (5th Cir.1961). The opinions in the two cases above cited quote with approval from Appleman. In the Darter case the question was declared to be a fact issue on which a jury made a finding favorable to the “omnibus insured”.

Appellee further argues that a factor to be taken into consideration in excusing Carter & Miller and appellee, their insurance carrier, for not giving appellant notice sooner was the uncertain state of the law as determined by judicial pronouncements at the time of the accident. On May 20, 1960 in a venue case the Austin Court of Civil Appeals held that the insurance carrier of an owner of a concrete mixer truck under circumstances similar to this case did not afford omnibus coverage to an injured person whose situation was similar to that of Bailey here. Travelers Ins. Co. v. Employers Casualty Co., 335 S.W.2d 235 (Tex.Civ.App., Austin 1960, writ ref’d n. r. e.). When the case came up on appeal on the merits the Dallas Court of Civil Appeals on June 28, 1963, following the holding of the Austin court in the venue appeal, held that the injured person was not covered by the truck owner’s “omnibus” policy. Travelers Ins. Co. v. Employers Casualty Co., 370 S.W.2d 105 (Tex.Civ.App., Dallas 1963, writ granted). In reversing the holding of the Dallas Court of Civil Appeals our Supreme Court said:

“The judgment of the trial court was affirmed by the Court of Civil Appeals at Dallas, which held that the accident did not arise out of the unloading of the truck within the meaning of the policy issued by Employers. 370 S.W.2d 105. A similar conclusion had previously been reached by a majority of the Court of Civil Appeals at Austin in the appeal from the order sustaining Employers’ plea of privilege. Travelers Ins. Co. v. Employers Casualty Co., Tex.Civ.App., 335 S.W.2d 235 (writ ref. n. r. e.). On the basis of the authorities cited by the parties at that time, it was then our opinion that the policy issued by Employers did not protect Borders. In view of our refusal to grant a writ of error in the earlier appeal, the Court of Civil Appeals at Dallas naturally felt it was bound by that decision. Upon further consideration and in the light of the additional authorities now cited by the parties, we have concluded that Borders was covered by the automobile liability policy under the facts of this case.” The Travelers Ins. Co. v. Employers Casualty Co., 380 S.W.2d 610 (Tex.Sup.1964).

Appellee has seized on the above quoted portion of the Supreme Court’s opinion as a basis to argue that since the Supreme Court was of the opinion until June 17, 1964 that an injured person situated similarly to Bailey was not covered by the truck owner’s omnibus policy, Carter and Miller are to be excused for not knowing on October 23, 1959 that they did have coverage under the omnibus policy of Dallas Concrete ■ Company, hence are to be excused for not sooner giving notice to appellant.

After a careful consideration of the record we have concluded that it must be held as a matter of law that Carter & Miller did not give Standard Accident Insurance Company notice of Bailey’s accident “as soon as practicable”, as required by the comprehensive policy issued to Dallas Concrete Company, the owner and operator of the ready-mix truck. We have reached this conclusion for these reasons:

1.Carter & Miller knew of the accident immediately after it happened, having been informed of it by their employee, Venable, on the day it occurred.

2. There is no evidence that they made any investigation or inquiry into the circumstances regarding the accident and their possible liability. They merely assumed that they were not involved since Bailey was not their employee — this though they knew that their equipment while operated by their employee, Venable, was the cause in fact of Bailey’s injury.

3. It is undisputed that Carter & Miller did not give notice to their own insurance carrier, Employers Casualty Company, until more than six months after the accident, and then only after they had received a letter from Bailey’s attorneys.

4. It is undisputed that Carter & Miller did not give notice to Standard Accident Insurance Company (under whose comprehensive policy issued to Dallas Concrete Company Carter & Miller were “additional insureds”) for more than nineteen months after the accident to Bailey.

5. The fact that neither Carter nor Miller quite finished his high school education, as shown by the evidence, is not an excuse for their failure to give notice as required by the insurance policy. Both of them were experienced business men, having been in business for themselves for a number of years. They cannot be considered under the evidence as being so naive and unknowing in the ways of the business and commercial world as to justify their failure to do anything about the accident, or to make inquiry about it, or to give notice sooner to one or both of the insurance carriers here involved.

6. Carter and Miller, both of whom tes-^ tified by deposition, stated that they knew that most contractors carry liability insurance on their equipment and that they assumed that Dallas Concrete Company did so, though they made no inquiry in order to learn whether Dallas Concrete Company actually did carry such insurance.

7. The confused state of the law as shown by the three judicial opinions referred to by appellee cannot' be used as an excuse by Carter & Miller for their failure to give notice to appellant “as soon as practicable”. The two opinions of the Courts of Civil Appeals were decided in May 1960 and June 1963, respectively, many months after the accident to Bailey. The Supreme Court opinion was decided several years after the accident. Consequently Carter & Miller at or near the time of the accident could not possibly have known of or relied on any of the named appellate court decisions.

We sustain appellant’s points charging that Carter & Miller’s failure to give notice to appellant until more than nineteen months after the accident was a breach of the notice provision of the policy as a matter of law; therefore we hold that ap-pellee is not entitled to recover.

The judgment of the trial court is reversed and judgment is here rendered that appellee take nothing.

Reversed and rendered.


author: BARRON, Justice.

text:
    James C. JONES, Appellant, v. Judge H. BLACKMON et al., Appellees.
    No. 7.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Oct. 4, 1967.
    Rehearing Denied Oct. 25, 1967.

      John Holloway, Houston, for appellant.
    Baker, Botts, Shepherd & Coates and F. Walter Conrad and Finis E. Cowan, Houston, for appellees.
   BARRON, Justice.

This is a personal injury action brought by appellant, James C. Jones, plaintiff below, against Judge H. Blackmon and Clemis Colquitt, appellees. Appellees were longshoremen who were loading equipment owned by Texas Gulf Sulphur Company. The accident occurred at the Port of Houston on November 18, 1958. Harris County Houston Ship Channel Navigation District obtained a favorable summary judgment which was affirmed on appeal. See Jones v. Texas Gulf Sulphur Co., et al, 397 S.W. 2d 304 (Tex.Civ.App.) refused, n.r.e. On remand as to the Port Commissioners, the trial court severed plaintiff’s cause of action as to the two longshoremen appellees, severed the remaining defendants and granted summary judgment as to each. There was no appeal from such action. Immediately prior to the accident, the appellees were moving a substructure, about 20 to 30 feet long, seven feet high and seven feet wide (testimony as to the size varying), using fork lifts. The work was being done by appellees under the direction of their foreman, Tom Boudreaux, when a flange protruding from the side of the substructure struck the mud pump and knocked it into the toolhouse, injuring the appellant, Jones, by crushing his leg between the mud pump and tool house. Appellant was a truck driver for Pr.ather Truck line, dispatched to the scene to move oil field equipment, when the accident occurred. Jones sought damages against Blackmon and Colquitt, jointly severally, for $165,000.00.

Trial as to these appellees was to a jury. The jury found against appellant upon his primary negligence issues, finding that the conduct of the appellee fork lift operators was not negligent; that appellant, James C. Jones, was not contributorily negligent; that the conduct of Tom Boudreaux, ap-pellee’s foreman, was negligence and the sole proximate cause of the accident. The jury found damages in the sum of $9,000.00.

Thé record is voluminous. Forty-six points of error are included in appellant’s brief. The points of error will be grouped for purposes of this opinion.

The judgment of the trial court denying recovery is first attacked by appellant by points one through eight on grounds of no evidence, insufficiency of the evidence a„J that it is against the great .weight and preponderance of the evidence as to Special Issues 1 and 4. Issue number 1 inquires whether Blackmon caused the substructure to move to his right so as to collide with the mud pump due to the manner in which he operated the fork lift. Issue number 4 inquires whether Colquitt caused the substructure to move to his left in like manner. The jury answered “we do not” to both issues. Issues numbered 2, 3, 5 and 6, dealing with negligence and proximate cause as to each party, conditionally submitted, were, of course, not answered.

The appellees were operating fork lifts and attempting to move the substructure. Colquitt was on the south end of the same and Blackmon was on the north end. There were other pieces of oil field equipment nearby to Blackmon’s right. Colquitt was hooked in straightforward toward Blackmon. The equipment which caused the injury was near the south end of the substructure on the right of Blackmon. Tom Boudreaux, an experienced longshoreman, the gang foreman of a five-man team moving the equipment was in charge of the moving of the substructure. He gave signals to the two appellees as to when and how to grasp and move, and when he gave the two motor drivers the signal to go straight on and move forward with the heavy equipment, they moved it five or six feet. At this time Jones was struck and the moving stopped. A flange was sticking out on the side of the substructure and it had scuffed another piece of machinery. In turn the machinery which the substructure had struck pinned appellant’s leg. Bou-dreaux did not see the equipment turn or twist, but it appeared to move straight. The distance between the edge of the substructure and the edge of the pump was about 1 to 1½ feet, and the flange on the equipment being moved was six to eight inches protruding therefrom. He further testified that neither Blackmon nor Colquitt were able to see the details concerning the narrow spaces, nor were they able to do anything from a safety standpoint other than follow Boudreaux’s directions or signals; that the appellees were not expected to .check on the clearance of the equipment being moved with reference to other pieces of equipment; that they (the drivers) were supposed to do exactly what the foreman told them to do, and that this procedure was necessary and customary in this type of work; that the foreman would fire a driver who attempted to check the clearances before moving the equipment, because they operated as a team and it is necessary that they respond to signals or orders for the safety of the gang ; that it is essential that appellees as operators of heavy equipment respond immediately to the orders of their foreman. The witness testified that they were working over old asphalt with ripples in it, and that it was not smooth; that one motor would pick up one end and the other motor would pick up the other end of the equipment. The ap-pellees could see only the structure being moved “right in front of him, that is all”; that under these circumstances it is possible for appellees to let the equipment drift over a few inches one way or the other and not be aware of it. The testimony of Boud-reaux, as well as other testimony in the record, is clear that the appellee fork lift operators by necessity could not see exactly what they were doing without direction from the foreman and that the appel-lees were wholly dependent upon the foreman’s giving the signals so far as safety is concerned. All of the facts taken together constitute a sufficient basis for the jury to find that the manner in which Col-quitt and Blackmon operated the fork lifts was not negligence and did not cause the structure to hit the mud pump. There is ample evidence in the record to support the theory that Boudreaux’s conduct was the sole proximate cause of the accident.

It is elementary that the burden of proof is on the appellant to prove by a preponderance of the evidence that acts forming the basis of negligence, negligence and proximate cause exist. Whether given acts constitute negligence is essentially a jury question to be determined by independent consideration of facts in each case. Weingarten v. Brockman, 135 S.W.2d 698 (Tex.Sup.1940); Blanks v. Southland Hotel, 149 Tex. 139, 229 S.W.2d 357, 360 (1950); Plata v. Gohman, 359 S.W.2d 163, 164 (Tex.Civ.App.1962), error ref., n.r.e.; 40 Tex.Jur.2d, p. 699, Section 160. While we concede that the evidence would have supported favorable findings by the jury for appellant, the jury was not bound to do so. Gulf, C. & S. F. Ry. Co. v. Gascamp, 69 Tex. 545, 7 S.W. 227 (1888). For negligence to be a matter of law, the conduct of appellees must appear so opposed to the dictates of common prudence that it could be said, without hesitation or doubt, that no careful person would have committed or permitted the act or acts. See Ice Service Co. v. Scruggs, 284 S.W.2d 185, 189 (Tex.Civ.App.1955), error ref., n.r.e., and cases cited. We hold that the findings by the jury on the issues involved were authorized under the evidence. It was within the exclusive province of the jury to make such findings.

Moreover the findings of the jury to issues 1 and 4 are based upon sufficient evidence and not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. See Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.Law Rev. 361, 365-6 (1960), and cases cited.

What we have said with regard to issues 1 and 4 above is applicable to issues 7, 8, 9 and 11. Special issues numbers 9 and 11 asked whether the failure of Blackmon and Colquitt to inspect the west side of the substructure was negligence. The jury found on each issue that it was not negligence. ’In addition to conflicts throughout the testimony and conflicts in inferences reasonably drawn from the testimony, the fact that Boudreaux’s action in directing this whole transaction and in assuming responsibility for the job apparently impressed the jury to the extent that unfavorable findings were made' against appellant. This is alone sufficient to sustain the jury’s findings. We overrule appellant’s points of error 9 through 20.

Appellant attacks the jury’s defensive findings in response to issues 17 and 18 on the same grounds as stated above. The issues inquire of the jury whether, just before the occurrence in question, the supervisor (or foreman), Boudreaux, failed to check on the clearance between the substructure and the mud pump, and whether such failure, if any, was the sole proximate cause of plaintiff’s injuries. Both issues were answered favorable to appellees. Boudreaux testified that he did not position himself nor any member of his crew so as to observe the clearance between the substructure and mud pump once the movement began; that he positioned himself far enough back so he could se'e both fork lifts, and, after he had given the signal to start moving the machinery, neither he nor any of the other men working under his direction moved to a position where they could observe the clearance between the substructure and the mud pump as the substructure moved toward it. The failure of Boudreaux to position himself so that he could monitor clearance between the substructure and mud pump movement clearly occurred just before the occurrence in question — the accident. We hold that this, with other facts stated above, constitutes some evidence and sufficient evidence to support the jury findings to issues 17 and 18 on the authorities cited above.

Moreover, the special issues relating to appellees’ primary negligence were answered in favor of appellees. In that case any error in the manner of submitting sole proximate cause issues, or whether there was evidence or sufficient evidence to support them, becomes harmless. Brown & Root v. Haddad, 142 Tex. 624, 180 S.W.2d 339, 342 (Tex.Sup.1955); Webb v. City of Lubbock, 380 S.W.2d 135, 137 (Tex.Civ.App.1964), error ref., n.r.e.; Hammon v. Texas & New Orleans Railroad Co., 382 S.W.2d 155, 160 (Tex.Civ.App.1964), error ref., n.r.e.

Appellant contends that the trial court erred in admitting, over objections, evidence that Blackmon and Colquitt were relying upon Boudreaux safely to move the structure, and that such testimony tended to exclude appellees from their legal duty to keep a proper lookout; that such was direct testimony concerning what constitutes the standard of care customarily exercised by foremen in movement of heavy equipment, and that testimony that Boudreaux had selected appellees because of their reputations and ability for properly performing their duties wrongfully tended to bolster the credibility of appellees. Appellant asserts that the admission of such testimony was reversible error. We believe that the trial court’s rulings were proper. This testimony was relevant under the circumstances, and the trial court did not abuse its discretion. Appellees were under no non-delegable duty to inspect the work-site. The only duty assumed by appellees was to act as reasonably prudent persons under the same or similar circumstances. The fact that Boudreaux failed to maintain adequate clearance does not make the appellee workmen responsible for his negligence. The workmen were not required to anticipate negligent conduct on the part of the foremen. Texas & N. O. R. Co. v. Brannen, 140 Tex. 52, 166 S.W.2d 112, 114 (1942), opinion adopted. Appellees are under no legal duty to interrupt each step of the work and double check the foreman for safety. See De Winne v. Allen, 277 S. W.2d 95, 98, (Tex.Sup.1955). And workmen may testify as to the general competency of their fellow workmen. Postal Tel. Cable Co. of Texas v. Coote, 57 S.W. 912 (Tex.Civ.App.) error ref. These are relevant evidentiary points and are admissible testimony. There is no evidence in the record that appellees in the performance of this work were, in the opinion of any witness, careful, non-negligent, prudent or the like. We overrule appellant’s contentions. See also Rule 434, Texas Rules of Civil Procedure.

By point 41, appellant contends that reversible error was committed, because on page 1 of the charge the court indicated that the defendant was “Texas Gulf Sulphur Co., et al”, a part of the original style of the case. But appellant made no objection to the charge on this ground as required by Rule 272, T.R.C.P. Failure to object to any undesirable portion of the charge results in waiver of the objection. Edwards v. Strong, 147 Tex. 155, 213 S.W. 2d 979, 981 (1948); Gale v. Spriggs, 346 S.W.2d 620 (Tex.Civ.App.) error ref., n. r.e. Especially is this true where a clerical error is involved.

Appellant asserts that conflict in the answers of the jury to defensive issues 18 and 20 is reversible error, and that the trial court was not empowered to render a judgment on such findings. We overrule this contention. As stated above, appellant failed to secure findings favorable to him on primary negligence, and he is not entitled to a verdict for that reason alone. In issue 18 the jury found that the failure of Boudreaux to check on the clearance between the substructure and the mud pump just before the occurrence in question was sole proximate cause of plaintiff’s injuries. In issue 20 the jury found that the failure of Boudreaux to arrange for adequate clearance between the edge of the substructure and the machinery was the sole proximate cause of the injuries. Since, however, the jury found in response to issues 1, 4, 9 and 11 that the appellees were not guilty of primary negligence, any conflict between the sole proximate cause findings in issues 18 and 20 is immaterial and should be disregarded. A conflict in jury findings will not prevent the rendition of judgment and will not require a mistrial unless the findings, considered separately and taken as true, would compel the rendition of different judgments. Texas & Pacific Railway Co. v. Snider, 321 S.W. 2d 280, 282 (Tex.Sup.1959).

After both parties had rested, the trial court granted appellees’ motion to file a trial amendment, over the objections of appellant, to plead Boudreaux’s failure to obtain adequate clearance as being the sole proximate cause of the accident. Appellant contends that he had consistently objected to introduction of evidence based on lack of pleadings and had not tried such issues by consent. In the first place, under authority cited above, there is no reversible error in such action since the primary negligence findings were negative. The theory upon which appellant tried this case could not have afforded surprise to appellant in our opinion. Appellant had pleaded that “(4) defendants failed to maintain sufficient competent supervisors on the dock area to supervise the loading operation; (5) and, that such supervisors present at the time to complete the loading operations failed to use such degree of care as necessary to care for the safety of persons located on the dock area in consideration of the handling of the merchandise in question; * * * ” On October 18, 1966, during trial of the case, the trial court permitted appellees to amend to include a general allegation of sole proximate cause, and the trial court stated in the open court to all parties that if appellants’ counsel wanted to withdraw his announcement of ready he would grant it. Otherwise he would overrule appellant’s motion in opposing the trial amendment. The appellant declined the trial court’s offer. At the conclusion of the evidence appellees were granted a trial amendment alleging failure of Boudreaux to move the pump and the tool house so as to allow more adequate clearance for the movement of the substructure. Allowance of trial amendments under either Rule 66 or 67, T.R.C.P., are clearly within the trial court’s sound discretion. Standard Accident Insurance Co. v. Mize, 378 S.W.2d 686 (Tex.Civ.App.), no writ; Vermillion v. Haynes, 147 Tex. 359, 215 S.W.2d 605, 609 (1948). And when the opposite party does not ask for a postponement upon the filing of the amendment, the trial court does not ordinarily abuse his discretion in granting it. American Casualty & Life Insurance Co. v. Parish, 355 S.W.2d 781, 783 (Tex.Civ.App.), no writ. While after the expiration of eight years since the occurrence of the accident this question is not entirely free of doubt, we believe the trial court was within his sound discretion by such rulings. Viewing the pleadings of the appellant, the issues and the facts as they developed, the trial judge did not abuse his discretion in allowing trial amendments under the circumstances. We overrule appellant’s contention.

We have carefully reviewed and considered the remaining points of error of the appellant, and we find that none of them present reversible error. Rule 434, T.R.C.P. They are each overruled.

We accordingly affirm the judgment of the trial court.


author: PARKER, Justice.

text:
    Douglas C. WAGSTAFF, Appellant, v. CITY OF GROVES, Appellee.
    No. 6898.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 21, 1967.
    Rehearing Denied Oct. 18, 1967.
    William W. Selman and Alvin E. Wiggins, Beaumont, for appellant.
    Keith, Mehaffy & Weber, Beaumont, Earl Black, Port Arthur, Donald R. Hallmark, Houston, for appellee.
   PARKER, Justice.

Summary judgment was entered that Douglas C. Wagstaff and intervenor, Liberty Mutual Insurance Company, take nothing against the City of Groves by their suit for damages sustained by Wagstaff by injuries to him resulting from negligence of the City. Wagstaff as an employee of Ryder Truck Lines, Inc. was paid compensation under the Workmen’s Compensation Act by the insurance company, carrier of Workmen’s Compensation Insurance for the employer. Plaintiff will be called appellant and City of Groves will be called appellee.

On April 22, 1965 Wagstaff was an employee of Ryder Truck Lines, Inc. when he was injured while delivering a tank load of caustic soda by truck to the plant of City of Groves. Two city employees placed a ladder against a tank, helped him hook up his hose over the tank and left for lunch. When the caustic soda was unloaded, Wag-staff disconnected the hose upon and from the ladder furnished and placed by the City. Descending, the ladder slipped back out from under him’and he was injured when falling 18 feet to the ground. He notified his employer of his injury, was taken to a hospital, given emergency treatment, sent home, and worked for 2½ months. Thereafter, about October, 1965, it was discovered he had a damaged disc and an operation was immediately performed. In August 1965 he employed an attorney who filed his claim for workmen’s compensation benefits with the Industrial Accident Board. On October 6, 1965 written notice to the City of Groves was given of Wagstaff’s claim against it. The charter of the City of Groves contained a provision requiring the giving of written notice of any injury within 60 days from the date of an accident injuring a person as a condition precedent to the recovery of damages for such personal injury. Summary judgment was entered because Wagstaff did not comply with such charter provision.

Wagstaff’s sole point of error contends:

“The trial court erred in sustaining defendants motion for summary judgment because a city charter providing a 60 day notice provision as a condition precedent to bringing a suit in a subrogation case, would be pre-empting the workmen's compensation law, and a denial of due process.”

The notice provision in the charter of the City of Groves is a condition precedent before a suit can be maintained against the City for such injury in the ordinary injury case. Phillips v. City of Abilene, 195 S.W.2d 147 (Eastland Civ.App.1946, wr. ref’d); Hallman v. City of Pampa, 147 S.W.2d 543 (Amarillo Civ.App.1941, wr. ref’d); City of Terrell v. Howard, 130 Tex. 459, 111 S.W.2d 692 (Tex.Com.App.1938, opin. adopted by S.Ct.).

Article 8307, Section 6a provides:

“Sec. 6a. Where the injury for which compensation is payable under this law was caused under circumstances creating a legal liability in some person other than the subscriber to pay damages in respect thereof, the employé may at his option proceed either at law against that person to recover damages or against the association for compensation under this law, but not against both, and if he elects to proceed at law against the person other than the subscriber, then he shall not be entitled to compensation under this law. If compensation be claimed under this law by the injured employé or his legal beneficiaries, then the association shall be subrogated to the rights of the injured employé in so far as may be necessary and may enforce in the name of the injured employé or of his legal beneficiaries or in its own name and for the joint use and benefit of said employé or beneficiaries and the association the liability of said other person, and in case the association recovers a sum greater than that paid or assumed by the association to the employé or his legal beneficiaries, together with a reasonable cost of enforcing such liability, which shall be determined by the court trying the case, then out of the sum so recovered the association shall reimburse itself and pay said cost and the excess so recovered shall be paid to the injured em-ployé or his beneficiaries. The association shall not have the right to adjust or compromise such liability against such third person without • notice to the injured employé or his beneficiaries and the approval of the board, upon a hearing thereof. [Acts 1917, p. 269.]”

Wagstaff exercised his option to first proceed’for his benefits under the Workmen’s Compensation Act. On November 5, 1965 the award was made to Wagstaff by the Industrial Accident Board with his notice of appeal mailed November 8, 1965. Subsequently, he settled his claim for workmen’s compensation benefits against Liberty Mutual Insurance Company, the workmen’s compensation carrier for Ryder Truck Lines, Inc. The instant suit was then filed by Wagstaff against the City of Groves on December 11, 1965. Liberty Mutual Insurance Company later intervened to recover its subrogated interest in the amount of $6,372.25.

City of Groves is a home rule city existing under Article 11, Section 5 of the State Constitution, Vernon’s Ann.St. Its charter powers are plenary subject to the limitation that its charter and ordinances shall contain nothing inconsistent with the State and Federal Constitutions or the general laws enacted by the Legislature. Janus Films, Inc. v. City of Fort Worth, 354 S.W.2d 597 (Tex.Civ.App.1962, wr. ref’d n. r. e.); City of Austin v. Clendennen, 323 S.W.2d 158 (Tex.Civ.App.1959, wr. ref’d n. r. e.). In the latter case on page 159 the court referred to and commented on its opinion in City of Austin v. Powell, 321 S.W.2d 924 (Tex.Civ.App.1959, wr. ref’d n. r. e.), which held that a proceeding for compensation benefits is not a common law action for damages, and notice of claim provision of Austin City Charter was not applicable to a claim for workmen’s compensation where the city had elected to insure all of its employees under the Workmen’s Compensation Act. The comment in City of Austin v. Clenden-nen, supra, is;

“In City of Austin v. Powell, [Tex.Civ App.,] 321 S.W.2d 924, we held that Art. XII, Sec. 7 of the Austin city charter was not applicable to a claim for workmen’s compensation for the reason that the claim was not against the city in its capacity as employer but in its capacity as insurer.”

In State ex rel. Rose v. City of La Porte, 386 S.W.2d 782, 785 (S.Ct.1965), referring to a Home Rule City, the court held, “The governing body of a city is not required to look to the Legislature for a grant of power to act. Such power is given by the Constitution. The governing body only looks to the Acts of the Legislature to ascertain if it has placed any limitations on the power to act as granted by Article XI, Section 5.”

In City of Sweetwater v. Geron, 380 S.W.2d 550, 552 (S.Ct.1964), it was held that when the Legislature limits the broad power granted to home rule cities by the Constitution, Art. XI, Section 5, its intention to do so should appear with unmistakable clarity.

The rule of construction we should follow in passing upon appellant’s point of error is set forth in the above opinions by the Supreme Court and as set forth in City of Beaumont v. Fall, 116 Tex. 314, 291 S.W. 202, as follows:

“Of course, a general law and a city ordinance will not be held repugnant to each other if any other reasonable construction leaving both in effect can be reached. In other words, both will be enforced if that be possible under any reasonable construction, just as one general statute will not be held repugnant to another unless that is the only reasonable construction. Chief Justice Phillips has laid down the test for determining the repugnancy of two general statutes in the case of Cole v. State, [ex rel. Cobolini,] 106 Tex. 472, 170 S.W. 1036.”
“Though they may seem to be repugnant, if it is possible to fairly reconcile them, such is the duty of the court. A construction will be sought which harmonizes them and leaves both in concurrent operation, rather than destroys one of them.” Cole v. State ex rel. Cobolini, 106 Tex. 472, 170 S.W. 1036.

Wagstaff has been paid for his injuries the full compensation provided by the Act. His right of recovery at common law for injuries negligently inflicted upon him by the City of Groves was a property right belonging to him. The cause of action, burdened by right of Liberty Mutual Insurance Company to recoup itself for the compensation paid, belonged to him, not because of any provision of the Compensation Act, but by virtue of common law right. Independent-Eastern Torpedo v. Herrington, 95 S.W.2d 377, 379 (Comm. of App.1936, opin. adopted by S.Ct.). His cause of action at common law was not barred by the Act.

Art. 8307, Sec. 6a by its treatment of the action against the third party tort-feasor only provided that the employee’s right at common law against the third party tort-feasor could not be maintained until after settlement of the workmen’s compensation claim, if the employee elected first to sue under the Compensation Act. No new cause of action or property right in Wag-staff against City of Groves was created by Art. 8307, Sec. 6a.

A reasonable construction of both the charter provision and the statute would leave both in effect. There is nothing inconsistent about requiring an injured party to give the notice of injury required by the charter provision even though it was his intention to proceed first against the compensation insurance carrier. There is no logical reason why a person suing a city for damages for negligence should be in a better position if he has a compensation claim, than one who has not, so far as the requirement for “notice” is concerned.

In 37 Tex.L.Rev. there is a discussion by Allan H. McCoid styled “The Third Person in the Compensation Picture: A Study of the Liabilities and Rights of Non-Employers”, and on page 430, citing Texas cases, his analysis is as follows:

“Although the Texas statute speaks in terms of optional remedies, the courts have recognized that the injured worker owns his right of action against the third person subject only to the right of the insurer to indemnification from the proceeds of the action for the amounts paid to the worker. Having pursued his remedy against the third party, the worker is specifically precluded from recovery of compensation by the language of the act, but if the compensation is first obtained, the action against the third party is not barred. The amount of compensation benefits is to be paid to the insurer from the recovery, but the jury is not informed of the existence of compensation nor the amount of benefits.”

The notice of injury provision in the Charter of the City of Groves is not in conflict with or repugnant to Art. 8307, Sec. 6a, V.A.C.S. Wagstaff nor anyone for him complied with notice provision in such charter. Not having complied with this provision, appellant could not maintain his suit. Appellant’s point of error is overruled.

Judgment of the trial court affirmed.


author: GREEN, Chief Justice.

text:
    Charles F. VOIGT, Appellant, v. CITY OF CORPUS CHRISTI, Appellee.
    No. 332.
    Court of Civil Appeals of Texas. Corpus Christi.
    Sept. 28, 1967.
    Rehearing Denied Oct. 19, 1967.
    Wallace P. Woodruff, Corpus Christi, for appellant.
    Office of Isaac M. Singer, City Atty., by Walter Chastain, Asst. City Atty., Corpus Christi, for appellee.
   OPINION

GREEN, Chief Justice.

This is an appeal from a summary judgment for the defendant, in which the sole issue is whether the trial court properly applied the doctrine of municipal immunity from tort liability.

Plaintiff sued the City of Corpus Christi for damages for personal injuries allegedly sustained by his wife, and property damage to his car. Aside from allegations as to parties and damages and the prayer, his First Amended Original Petition, being his trial pleading, reads as follows:

“II.
“At approximately 8:45 A.M. on May 11, 1965, Plaintiff’s wife was proceeding West on Lipan Street, and she was driving a 1960 Plymouth automobile owned by Plaintiff. Plaintiffs minor daughter was also riding in the car at the time of the accident. At the intersection of Lipan and Tancahua, and while she was crossing the intersection, she was struck by a car driven by Mrs. Viola Palmer. Mrs. Palmer’s car was proceeding South on Tancahua and hit Plaintiff’s car on the right side. After the impact Plaintiff’s car was knocked into another car driven by Gilberto Delgado Munoz which had been proceeding down Lipan in an easterly direction. An investigation of the accident by City police officers established that the traffic light was malfunctioning and inoperative. Further, the records indicate that the City Police Department had notice of the malfunctioning light prior to 7:08 A.M., at which time the Police Department advised the Traffic and Street Department of such malfunctioning light.
“III.
“Notice of Plaintiff’s claim was provided to the Defendant pursuant to and substantially in accordance with the provisions of the Charter of the City of Corpus Christi.
“IV.
“Under the provisions of Article 1175 VATS Defendant had and has exclusive control and power over the streets and highways of said City, and the exclusive power to abate and remove encroachments or obstructions thereon, and to prevent the encumbering thereof in any manner. That notwithstanding this exclusive jurisdiction and at a time when the Defendant should have known that the hours from 7:00 A.M. until 9:00 A.M. carry the maximum traffic load, Defendant’s employees failed to take action to protect the users of the public streets from said malfunctioning light. No action was taken to place a policeman or other employee to direct traffic; no action was taken to remove or repair the traffic light until some time after subject accident which occurred at approximately 8:45 A.M. Said collision was brought about and caused to occur directly and proximately by the negligence of Defendant in the foregoing acts of commission and omission.”

Defendant’s motion for summary judgment raised the defense of governmental immunity as a matter of law. Plaintiff’s answer denied that its cause of action was based on any negligence of defendant while in pursuance of a governmental function, and in an affidavit sworn to by plaintiff’s attorney, stated that “Plaintiff’s claim against the City rests upon the negligence of the City in failing to furnish an employee, warning signal or the necessary repairs to the mal-functioning traffic light located at the above intersection. Plaintiff’s cause of action lies in Such inaction and the delay in repairing said mal-func-tioning light and not in the fact of the light mal-functioning itself.”

The trial court held that plaintiff’s case as alleged was based solely upon a governmental function of the city as a matter of law, and entered the summary judgment for defendant. Plaintiff has duly appealed from such judgment. We affirm.

Appellant’s only point of error reads:

“The Trial Court was in error in holding that Appellants’ claim was based solely upon a governmental function of the City of Corpus Christi, Texas, and, thus, nonactionable.”

When performing a strictly governmental function, a municipality is not liable in damages for the torts of its employees, agents, or officials. City of Austin v. Daniels, 160 Tex. 628, 335 S.W.2d 753, 81 A.L.R.2d 1180; Luvaul v. City of Eagle Pass, Tex.Civ.App., 408 S.W.2d 149, wr. ref. n. r. e., and authorities cited. The regulation and control of traffic, including the use of traffic control lights, in and by a city is a governmental function as a reasonable exercise of police power. City of Austin v. Daniels, supra; City of Abilene v. Woodlock, Tex.Civ.App., 282 S.W.2d 736, wr. ref.; Parson v. Texas City, Tex.Civ.App., 259 S.W.2d 333, wr. ref.; Baker v. City of Waco, Tex.Civ.App., 129 S.W.2d 499, n. w. h.; Presley v. City of Odessa, Tex.Civ.App., 263 S.W.2d 293, writ ref. n. r. e.; Burchett v. City of Stanton, Tex.Civ.App., 262 S.W.2d 952, n. w. h.

On the other hand, the maintenance of streets is a proprietary function. A city is under a duty to maintain its streets in a reasonably safe condition, and negligence in the performance of this function renders the city liable for resulting injuries, even though the unsafe condition is caused by the improper location of a governmental function instrumentality or the failure to properly guard such instrumentality so as to render it reasonably safe. City of Austin v. Schmedes, 156 Tex. 416, 279 S.W.2d 326, 52 A.L.R.2d 680; Crow v. City of San Antonio, 157 Tex. 250, 301 S.W.2d 628; City of Austin v. Daniels, supra; Kling v. City of Austin, Tex.Civ.App., 62 S.W.2d 689, n. w. h., cited with approval in Daniels and in Crow.

Plaintiff, in order to have plead a valid cause of action against city, was required to allege facts showing that the collision was caused by a breach by city of a proprietary function, in this instance, the function of properly maintaining the streets at this intersection in a reasonably safe condition. Such proprietary function would not include the duty of maintaining a system of traffic lights at the intersection, or directing traffic through it, since the regulation of traffic lights and of traffic is a governmental function. Authorities cited above, In Schmedes, Crow, Daniels and Kling, supra, all of which except Schmedes are cited and relied upon in his brief by plaintiff, the defendant cities were held liable by reason of unwarned of obstructions, such as incomplete improvements, a rope stretched across the street, fresh wet slippery paint to mark parking places, or a fire plug in a service station driveway, being placed in the street. In each instance, it was held that the city had violated the proprietary function of maintaining the street in a reasonably safe condition because of such dangerous, unsafe obstructions, following the rule of law as stated in Parson v. Texas City, supra, and by the Supreme Court in a quotation from Parson in Crow v. City of San Antonio, supra, as follows:

“When a city, in the exercise of its governmental function of controlling traffic, uses means that constitute a dangerous physical obstruction of the street, it commits an affirmative wrong for which recovery will be allowed.” Authorities cited.

In the present case, there were no allegations in plaintiff’s petition of the use by city of any means constituting a dangerous physical obstruction of the streets at the intersection where the accident happened. The only allegations in plaintiff’s petition of city’s negligence concerned the conduct of city in connection with the governmental function of regulation and control of traffic because city failed to take action to protect the users of the street from the malfunctioning light in that it failed to place a policeman or other employee to direct traffic and it failed to remove or repair the traffic light before the accident happened.

Plaintiff in his brief made reference to his car entering the intersection on a green light, and that investigation showed that the lights were “hung” on the green signals. In Parson v. Texas City, supra, writ ref., the lights had been “hung” on green for several days, of which city had notice, but the city was held not liable for an accident caused thereby.

However, the statements of plaintiff in his brief concerning these lights being “hung” on the green signal, or a dangerous condition in the street being caused thereby is not warranted by the record. There is no pleading to that effect, The only reference in the transcript to a green light is contained in plaintiff’s attorney’s affidavit where he states that the light was green when plaintiff’s wife entered the intersection. Such statement even though under oath can not be considered by us for any purpose, since it is clear from the affidavit that it is made from hearsay and is of no probative value. Crain v. Davis, Tex., 417 S.W.2d 53; Box v. Bates, 162 Tex. 184, 346 S.W.2d 317; Chumchal v. Natural Gas Pipeline Company of America, Tex.Civ.App., 381 S.W.2d 690.

Defendant city’s motion having been directed to plaintiff’s pleadings is closely analogous to a special exception challenging the sufficiency of plaintiff’s pleadings as a matter of law. Assuming the truth of all material facts alleged, we hold that no cause of action was stated by plaintiff when confronted with defendant’s plea of governmental immunity; and even though due proof should be made of the pleaded facts, the court would be required to give an instructed verdict for de- ' fendant; hence, the summary judgment was properly rendered. 30 Tex.Law Review, 285, 297; Schroeder v. Texas & Pacific Ry. Co., Tex.Civ.App., 243 S.W.2d 261, cited with approval in Heien v. Crabtree, Tex., 369 S.W.2d 28, 31, and in dissenting opinion of Chief Justice Calvert in Southwestern Fire & Casualty Company v. Larue, Tex., 367 S.W.2d 162, 164, 165.

Judgment affirmed.

       Although the writ of error table does not reflect any action on an application for writ of error in Presley, the Shepard’s Texas Citations, Supplement 1949-1963, on page 568 shows writ ref. n. r. e. This is confirmed by Justice McGill’s concurring opinion in Burchett v. City of Stanton, Tex.Civ.App., 262 S.W.2d 952, 953.


author: KLINGEMAN, Justice.

text:
    HUMBLE OIL & REFINING COMPANY et al., Appellants, v. WESTSIDE INVESTMENT CORPORATION, Appellee.
    No. 14589.
    Court of Civil Appeals of Texas. San Antonio.
    Sept. 20, 1967.
    Rehearing Denied Oct. 18, 1967.

      Frank L. Heard, Jr., Houston, Lager-quist, Shaw & Davis, San Antonio, for appellants.
    Johnson & Christopher, Pat Legan, San Antonio, for appellee.
   KLINGEMAN, Justice.

Suit for specific performance by Humble Oil & Refining Company, herein referred to as Humble, against Westside Investment Corporation, herein referred to as Westside, based upon a written option and contract for sale of real estate. A real estate salesman, Marvin H. Mann, intervened, seeking recovery of a commission in connection therewith. Each party filed a motion for summary judgment. The court granted the motion of defendant, Westside, and overruled the motion of plaintiff, Humble, and intervener, Marvin H. Mann.

Westside and Humble entered into a written option agreement on April 5, 1963, wherein Humble, for the sum of $50.00, was given a 60-day option to purchase the real estate described therein. This option provided that the offer was irrevocable.

The only question before the Court is whether Humble validly exercised its option to purchase within the 60-day period provided in the option contract.

On May 2, 1963, Humble mailed a letter to Westside which stated:

“Humble Oil & Refining Company hereby exercises its option to purchase Lots 19, 20, 21, 22 and 23, Block 2, Lack-land Heights Subdivision, in or near the City of San Antonio, Bexar County, Texas, granted in Option and Purchase Contract dated April 5, 1963. As additional inducement for Humble to exercise its option to purchase, you have agreed that all utilities (gas, water, sewer and electricity) will be extended to the property prior to the closing of the transaction. The contract of sale is hereby amended to provide that Seller shall extend all utility lines to the property before the date of closing.
“Please sign and return one copy of this letter in the space indicated below to signify your agreement to the amendment to the purchase contract.”

Thereafter, on May 14, 1963, within the 60-day period, Humble mailed to Westside another letter reading as follows:

“Humble Oil & Refining Company hereby notifies you of its intention to exercise the option granted in Option and Purchase Contract dated April 5, 1963 covering Lots 19, 20, 21, 22, and 23, Block 2, Lackland Heights Subdivision, in or near the City of San Antonio, Bexar County, Texas. The exercise of said option is not qualified and you may disregard the proposed amendment to the contract suggested in letter dated May 2, 1963 from the undersigned as Agent and Attorney-in-Fact for Humble Oil & Refining Company addressed to West-side Investment Corporation.”

In the option agreement dated April 5, 1963, Westside did not agree to bring utilities to the site, and there is nothing in the record pertaining to such utilities except the reference thereto in Humble’s letter of May 2, 1963.

Appellee contends that, as a matter of law, Humble rejected the offer by its letter of May 2, 1963, and such offer could not be revived by a subsequent unconditional acceptance.

Appellants’ two points of error are:

First Point: “The trial court erred in holding that Humble’s letter of May 2, 1963 had the effect of terminating the option contract.”

Second Point: “Humble timely exercised the option granted to it in the contract of April S, 1963.”

Appellants concede that a mere offer is terminable by a conditional acceptance or counter offer, but contend forcibly that an option to purchase, based upon a valid consideration, providing for the exercise thereof within a stated period of time, is basically different in law from a mere offer, and such option agreement is an enforcible contract, distinct from the cqntract to which the option relates, and is not modified, abandoned or terminated in any manner or with less formalities than required to enter into a binding contract in the first place.

It is well settled and appellee concedes that where there is an option to purchase supported by a valid consideration, the offerer cannot revoke or terminate such option during the time fixed in the option. Restatement of the Law of Contract, Vol. 1, §§ 46 and 47; 17 C.J.S. Contracts § 1(1), pp. 542-543. The material question to be determined by this Court is whether the offeree can, during the term of such an option agreement reject the offer, or do some act which in law constitutes a rejection, and thereafter, during the term provided in such option, make an unconditional acceptance which would be effective.

An acceptance of an offer must be unconditional and unequivocal, so that without any additions or variations it is identical to the terms of the offer. 13 Tex. Jur .2d, Contracts, § 27 (1960); Thompson on Real Property, Vol. 8A, § 4445, pp. 267-268; Williston on Contracts, 3rd Ed., Vol. 1, §§ 72, 73. An examination of Humble’s letter of May 2, 1963, shows that it is not an unconditional and unqualified acceptance of the offer contained in the option contract of April 5, 1963, in that it provides that all utilities will be extended to the property prior to the closing of the transaction by Westside, and that “The contract of sale is hereby amended to provide that Seller shall extend all utility lines to the property before the date of closing.” Such conditional acceptance by Humble amounted to a rejection of the original offer. Moore Bros. v. Kirkpatrick, 172 S.W.2d 135, (Tex.Civ.App.—Eastland 1943 no writ); Liquids Dispatch Line v. Texas Power & Light Co., 6 S.W.2d 169, (Tex.Civ.App.—Dallas 1928, writ ref’d); 13 Tex.Jur.2d, Contracts, § 27 (1960); 91 C.J.S. Vendor & Purchaser § 10, p. 854; Thompson on Real Property, Vol. 8A, § 4445, pp. 267-268; 55 American Jur., Vendor & Purchaser, § 39, p. 508; Best Realty Corp. v. Luftig, City Ct., 234 N.Y.S.2d 462 (N.Y.1962); Butsch v. Swallow, 78 Ind.App. 101, 134 N.E. 877 (1922); Bourdieu v. Baker, 6 Cal.App.2d 150, 44 P.2d 587 (1935); Masonic Temple Co. v. Adams, 106 Ohio App. 23, 153 N.E. 2d 198 (1958).

Humble, however, contends that even if such letter of May 2, 1963, be construed as a conditional acceptance, that it would not terminate the option agreement, and that it could thereafter, during the term provided in the option agreement, make an unconditional acceptance which would be valid and effective. We are not in agreement with Humble’s contention. An option is a mere right of election, acquired by one under a contract, to accept or reject a present offer within the time therein fixed. State v. Clevenger, 384 S.W. 2d 207 (Tex.Civ.App—Houston 1964, writ ref’d n. r. e.); 55 Am.Jur., Vendor & Purchaser, § 27, p. 493; Williston on Contracts, 3rd Ed., § 61b, p. 199; Galbraith v. Buffalo Marketing Co., Inc., 128 Misc. 79, 217 N.Y.S. 737 (Sup.Ct.N.Y.1927) aff’d 222 App.Div. 792, 226 N.Y.S. 816; Morris v. Goldthorp, 390 Ill. 186, 60 N.E.2d 857 (1945); Seeburg v. El Royale Corp., 54 Cal.App.2d 1, 128 P.2d 362 (1942). In Williston on Contracts, 3rd Ed., Vol. 1, § 77, pp. 251-252, it is stated: “A conditional acceptance is, therefore, itself a counter-offer and rejects the original offer, so that thereafter even a purportedly unqualified acceptance of that offer will not form a contract.” See also: Beaumont v. Prieto, 249 U.S. 554, 39 S.Ct. 383, 63 L.Ed. 770 (1919); James v. Darby, 100 F. 224 (8th Cir.1900); Bartholf v. Hautala, 22 Misc.2d 46, 194 N.Y.S.2d 660 (Sup.Ct.N.Y.1959); Jones v. Moncrief-Cook Co., 25 Okl. 856, 108 P. 403 (1908); Thompson on Real Property, Vol. 8A, § 4446, p. 273; 13 Tex.Jur.2d, Contracts, § 35 (1960).

Appellants rely heavily on Best Building Co. v. Sikes, 394 S.W.2d 57 (Tex.Civ.App.—Ft. Worth, 1965, writ ref’d n. r. e.) and Moore v. Kirgan, 250 S.W.2d 759 (Tex.Civ.App.—El Paso, 1952, no writ). Such cases are distinguishable on their facts from the case on appeal. Best involved a contract giving the building company separate and distinct options, one relating to a tract of land called Tract 2-B, and the other to a tract called Tract 3. The option rights to Tract 3 was contingent upon the prior acquisition and development of Tract 2-B. Prior to the exercise of the option relating to Tract 2-B, the optionee discovered a purchaser for a portion of Tract 3, and some negotiations were carried on between the optioner and optionee relative to the acquisition of Tract No. 3, which were fruitless. In September of 1961, the optionee filed a suit ■ against the optioner for specific performance of the contract, without reference to distinction to be made between the separate option rights thereunder as to Tract 2-B and Tract 3. Subsequently, in January, 1962, the optionee made a proper written acceptance of the option offer as to Tract 2-B, and upon the offerer’s refusal to convey such tract, instituted suit for specific performance or for damages for defendant’s breach. The court held that the exercise of the option as to Tract 2-B was valid and timely. The Court, however, in its opinion pointed out that the offeree’s notification of acceptance in January, 1962, was the first and only proper attempt to exercise any right of option.

Moore v. Kirgan, supra, was a suit to specifically enforce an option to convey real estate, which option was a part of a lease contract supported by consideration. Among other things, optioner-lessor contended that the option had been abandoned because optionee-lessee had requested the lessor to grant a new lease and make improvements on the premises. Thereafter, during the term of the lease, the husband of lessee wrote a letter which purportedly was an unqualified exercise of the option to purchase. The Court in its original opinion held that such option had not terminated and granted specific performance. The Court in its opinion stated that lessor testified that she had refused to make a new lease or to make improvements, and that lessee’s request that she do so could have no bearing on the lease, including the option. On motion for rehearing, the Court set aside its former judgment which had granted specific performance and reversed and remanded such cause.

It is our conclusion that Humble’s letter of May 2, 1963, constituted a counteroffer and rejection of Westside’s offer, and terminated such offer, and that Humble’s attempted unconditional acceptance thereafter had no effect and did not form a contract. The judgment of the trial court is affirmed.


author: NYE, Justice.

text:
    SUNSET BRICK & TILE, INC., et al., Appellants, v. Carl W. WESSELS and Irwin L. Baggett, Appellees.
    No. 333.
    Court of Civil Appeals of Texas. Corpus Christi.
    Sept. 28, 1967.

      Lipscomb Norvell, Jr., of Benckenstein & Norvell, Beaumont, for appellants.
    J. Mike Willatt, of Carroll, Matthews & Willatt, Houston, for appellees.
   OPINION

NYE, Justice.

This is a plea of privilege case. Carl W. Wessels and Irwin L. Baggett filed separate suits in Matagorda County against defendants Sunset Brick & Tile, Inc. and Daniel V. Leazer for personal injuries alleged to have been received by them in an automobile-truck collision near Palacios, Matagor-da County, Texas. The cases were consolidated for trial.

The appellants filed pleas of privilege. In response thereto Wessels and Baggett filed controverting affidavits asserting venue was maintainable in Matagorda County under subsection 9a of article 1995 against both defendants and section 23 of article 1995, Vernon’s Ann.Tex.Rev.Civ.Stat. as to corporate appellant Sunset Brick & Tile, Inc. Trial was to the court without the aid of a jury. The trial court overruled appellants’ pleas of privilege without making any findings of fact or conclusions of law.

The test on appeal from an order overruling a plea of privilege as to the evidence is the same as in any other civil case. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91, 95 (Tex. Comm’n App.—1935). It has been universally held by our appellate courts that in order to maintain venue under subsection 9a of article 1995, the plaintiffs must allege and prove facts that an act or omission of negligence of the defendant or his servant, agent or representative, acting within the scope of the employment proximately caused plaintiffs’ injuries and that such negligence occurred in the county where the suit was filed. It is also a fundamental rule that when a case is tried without a jury and where no findings of fact or conclusions of law are requested of or filed by the trial judge, the judgment should be affirmed if there is sufficient evidence to support it upon any lawful theory and every issue sufficiently raised by the evidence must be resolved in support of the judgment. Henderson v. Willmon, 407 S.W.2d 24 (Tex.Civ.App. — Texarkana, 1966 wr. dism.) ; 3B Tex.Jur. § 873, p. 278.

Appellants in four points contend that the court erred in overruling their pleas of privilege to be sued in Gonzales County, Texas, the county of their residence and/or residence of their registered agent because there was no evidence that the defendants were guilty of negligence which proximately caused appellees’ damage.

Our duty in this connection is to examine the record in the light of appellants’ points of error and determine if the evidence is legally sufficient to support the trial court’s judgment. If, discarding all adverse evidence and giving credit to all evidence that is favorable to the plaintiffs and indulging every legitimate conclusion favorable to the plaintiffs which might have been drawn from the facts proved, a trier of the facts might have found in their favor, then there is sufficient evidence to support the finding. Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97, 99 (1953). See this court’s opinion in Frick v. Duge, 413 S.W.2d 750 (Tex.Civ.App.—Corpus Christi 1967, n.w.h.) and Sunset Brick & Tile, Inc. v. Miles, 417 S.W.2d 93 (Tex.Civ.App.—Corpus Christi 1967).

The statement of facts shows that the collision in question occurred March 17, 1965, at approximately 5:30 in the morning. On this particular occasion five men were riding in an automobile driven by Alfred L. Bushong on Highway 35 on their way to work in the oil fields. It was dark and was misting rain. The defendants’ loaded brick truck was proceeding in the same direction about a quarter of a mile outside of the city of Palacios, Texas. The automobile in which the appellees were riding collided with the back of appellants’ truck. The record shows that the plaintiffs’ car was trav-elling at a speed of approximately 45 to 53 miles per hour. The defendants’ truck trav-elling in the same direction was estimated to be going between 10 and 30 miles per hour. The plaintiffs alleged negligence generally, contending principally that appellants’ truck had no lights on it at the time of the collision, and that the reflectors were dirty and unoperative.

Vincent, one of the passengers was riding in the right rear seat of the car and was watching the road ahead when he first saw the truck. He testified that when he first saw the truck it was 30 feet in front of him and he did not see any lights on the back or side of the trailer. The driver of the car and the front seat passenger Wessels saw the truck at about the same time. Wessels estimated that the truck was about 40 feet away when he first saw it; that he was looking ahead and saw the truck but saw no lights on it. The driver of the car immediately applied the brakes and the collision then followed.

The truck driver, Daniel Vernon Leazer, was an employee of appellant Sunset Brick & Tile, Inc. and was working in the course and scope of his employment at the time of the accident. He stated that he had been having trouble with his trailer lights early that morning; that a wire located midway along the trailer had worn through where it rested upon a cross-piece and that he had had to fix this and replace the fuse which had been blown out before leaving the brickyard. After the collision the highway patrolman investigating the accident checked over the trailer and found that the same fuse that had been replaced that morning was again blown out. The defendant truck driver gave a statement to the highway patrolman following the collision in which he admitted the possibility of the trailer lights being out at the time of the collision. There was testimony by the truck driver that he had not checked the reflectors on the trailer that morning and he admitted that it was hard to keep them clean in wet weather. Appellees Wessel and Bag-gett testified that they had suffered injuries as a result of the collision made the basis of their suit.

We hold that there is legally sufficient evidence that a cause of action arose in Matagorda County so as to support the judgment of the trial court and to maintain venue in that county, not only under subsection 9a of article 1995 but also as to the corporate appellant under section 23 of article 1995. Appellants’ points are overruled.

Judgment of the trial court is affirmed.


author: DAVIS, Justice.

text:
    Walter C. SMITH, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee.
    No. 7835.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 3, 1967.
    Rehearing Denied Oct. 24, 1967.
    Harold B. Stone, Kelsoe & Stone, Dallas, for appellant.
    Royal H. Brin, Jr., W. Richard Davis, Strasburger, Price, Kelton, Martin & Unis, Dallas, for appellee.
   DAVIS, Justice.

Plaintiff-appellant sued defendant-appel-lee for alleged injuries under the “uninsured motorist coverage” of an automobile policy as the result of an accident that occurred on March 8, 1965, when the automobile in which appellant was riding was struck in the rear end by a car driven by one Leroy Pearson. Appellant was in a car, which belonged to the City of Dallas, and being driven by Paul Lee Bently. The first written notice given to appellee was by a letter dated November 17, 1965, and received November 19, 1965, by appellant’s attorney. On November 19, 1965, a casualty claim supervisor of appellee, by letter, “Registered Return Receipt Requested” notified appellant that it was denying any liability because of his “failure to give written notice of the accident as soon as practicable and for other reasons”.

The deposition of appellant was taken in which he admitted that more than eight months had passed after the accident occurred (March 8, 1965) before any “written” notice was given to appellee, (November 19, 1965). The insurance policy was plead and was in evidence.

Appellee filed a motion for summary judgment. Then, appellant filed a motion for summary judgment. They alleged in their motion that there was “no material issues of fact to be decided by the court or a jury” and that each was entitled to a judgment as a matter of law.

The motions were heard on December 8, 1966, and judgment was “entered” on December 13, 1966, in which appellant’s motion was overruled and appellee’s motion was sustained. Appellant has perfected his appeal and brings forward five points of error.

By his five points, appellant says the trial court erred: (1) in not holding that he timely gave notice as soon as practicable under the uninsured motorist provision after the accident; (2) in failing to recognize that he gave timely notice and offered “occasion and legal” excuse for the delay; (3) failing to recognize his offer to arbitrate; (4) in sustaining appellee’s motion on the notice question for the reason that want of notice was not specially pleaded under oath; and, (5) in failing to submit to the jury the question that the appellee had waived the right to complain of late notice.

Appellee challenges each point of error. The policy provides that “written” notice “shall be given by or for the insured to the company or any of its authorized agents as soon as practicable”. The attorney for appellant admitted in the letter that he wrote appellee on November 17, 1965, that “the claim has not been reported to you before now”. The casualty claim supervisor notified appellant by letter “registered return receipt requested” on November 19, 1965, that appellee was denying any coverage under the policy because of appellant’s failure to give written notice of the accident as soon as practicable, more than eight months after the accident. He swore to this fact and it was attached and made a part of ap-pellee’s motion for summary judgment. Appellant did not plead nor prove in the deposition, or by affidavit any good reason or legal excuse for his failure to do so. Klein v. Century Lloyds, (1955) 154 Tex. 160, 275 S.W.2d 95; National Surety Corporation v. Diggs, Tex.Civ.App., (1954) 272 S.W.2d 604, W.R.,N.R.E.; Lane v. Anchor Casualty Company, (1962), Tex.Civ.App., 355 S.W.2d 90, N.W.H.; Allen v. Western Alliance Insurance Co. (Tex.Sup.Ct.1961), 349 S.W.2d 590; Comeau v. Phoenix Assurance Co. of New York (1966), 350 Mass. 769, 215 N.E.2d 175; and, Aetna Insurance Company v. Durbin, Tex.Civ.App., 417 S.W.2d 485.

We have carefully considered all the other points and find them to be without any merit. The points are overruled.

The judgment of the trial court is affirmed.