author: POPE, Justice.

text:
    Theodore R. FLAIZ et al., Appellants, v. Jack Bernard MOORE, Sr., et al., Appellees.
    No. 13850.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 3, 1962.
    Rehearing Denied Jan. 31, 1962.
    J. G. Hornberger, Laredo, for appellants.
    Elmore H. Borchers, R. J. Goodman, Laredo, for appellees.
   POPE, Justice.

This is an action upon a foreign transitory tort brought in Texas by nonresident plaintiffs against non-resident defendants. It is a pure case of forum non "conveniens. The trial court sustained a plea to the jurisdiction and dismissed the action. Plaintiffs have appealed. Plaintiffs, Theodore R. Flaiz and wife, and Henry Benson and wife, are residents of Maryland. Defendant Jack Bernard Moore, Sr., is a resident of Arkansas, and defendant Jack Bernard Moore, Jr., is a resident of Oklahoma, where he was served with non-resident notice. The action is for personal injuries sustained in an automobile collision which occurred in the State of South Dakota. Plaintiffs filed suit in Webb County, Texas, and served Jack Moore, Sr., while he was temporarily in Texas.

Whether a court has jurisdiction over a foreign tort and, if it has, whether it should exercise it, are confusing and troublesome problems. Stumberg, Foreign Created Rights, 8 Tex.L.Rev. 173, 184, et seq.; Stumberg, Conflicts of Laws, 9 Tex.L.Rev. 21, 35. At least a part of the confusion in the law arises out of a failure to distinguish the party problem from the subject matter problem. The questions suggested by the two problems are different. The problem with respect to parties calls for an examination of the ext.ent of the party contact with the forum. The problems with respect to the subject matter require decisions whether the imported foreign law is substantive or adjective law, whether the forum’s judicial machinery is capable of handling the foreign law, and whether the foreign law is offensive to the forum’s public policy.

Mr. Justice Cardozo, in the celebrated case of Loucks v. Standard Oil Co., 224 N.Y. 99, 120 N.E. 198, 201, observed this difference between the problems. He first decided the matter of party contact with the forum by stating, “Sometimes we refuse to act where all the parties are nonresidents * * *. That restriction need not detain us; in this case all are residents.” He next considered whether “the cause of action in its nature offends our sense of justice or menaces the public welfare.”

What is the extent of the party contact with the forum? Logically, this should be the first determination, for if the nexus between the parties and the forum is so tenuous and ephemeral that the forum, Texas in this instance, has no interest and no Constitutional obligation, its refusal to exercise its jurisdiction is the end of the matter, and discussion about the strangeness of the foreign law becomes immaterial. The second problem is never reached. It is in connection with the party situation that the doctrine of forum non conveniens had its origin. It was applied in Scottish Courts during the seventeenth century, and was devéloped into a settled rule of practice during the next century. American Courts independently developed the rule sometime later. Barrett, Forum Non Conveniens, 35 Cal.L.Rev. 380, 386-388. Its original application was limited to instances in which all parties were non-residents. In this country it was applied to similar instances, as where the parties were all aliens. Rea v. Hayden, 3 Mass. 24, 25 (1807); Great Western Ry. Co. of Canada v. Miller, 19 Mich. 305 (1869); Barrett, supra, p. 387.

When all parties are non-residénts, a court in the exercise of a guarded discretion may refuse to exercise jurisdiction, although it has what Justice Holmes called physical power over the parties. McDonald v. Mabee, 243 U.S. 90, 91, 37 S.Ct. 343, 61 L.Ed. 608. It may do this by considering the convenience to the parties and the court. Mr. Justice Jackson, in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055, wrote about such a fact situation and dismissed the action. In doing so he stated that the doctrine of forum non conveniens presupposes at least two forums in which the defendant is amenable to process. Accord, Koster v. (American) Lumbermens Mutual Cas. Co., 330 U.S. 518, 67 S.Ct. 828, 839, 91 L.Ed. 1067. In the Gilbert case, where the action was dismissed, the parties were non-residents of the forum. In Hughes v. Fetter, 341 U.S. 609, 71 S.Ct. 980, 95 L.Ed. 1212, decided a short time later, where dismissal was error, the parties were all residents of the forum. Currie, The Constitution and the “Transitory” Cause of Action, 73 Harvard L.Rev. 36, 62, 76. The party connection with the forum, therefore, is significant, and was historically the primary consideration and basis for the court’s application of the doctrine. 2 Harper & James, The Law of Torts, § 30.1.

Forum non conveniens is recognized in Texas. Forcum-Dean Company v. Missouri Pacific Railroad Company, Tex.Civ.App., 341 S.W.2d 464. The early case of Morris v. Missouri Pac. Ry. Co., 78 Tex. 17, 14 S.W. 228, 9 L.R.A. 349, distinguished cases in which the contacts between the party and the forum were absent, from those in which the contacts were strong. In commenting upon transitory actions between non-residents, the Court there said, “these facts would justify the court in refusing to entertain jurisdiction.” Mr. Justice Fly of this Court, also stated, in a case involving non-residents, “ * * * had the district court, in the- exercise of a sound discretion, refused to entertain jurisdiction of the case at all, this court would not have felt called upon to review its action.” Southern Pac. Co. v. Graham, Tex.Civ.App., 34 S.W. 135; 21 C.J.S. Courts § 77. This is the classic view which culminates in the Gilbert case, where Mr. Justice Jackson lists the criteria of public and private conveniences which a court may weigh in refusing jurisdiction.

Some courts have declined jurisdiction if one of the parties is a non-resident. The question, however, is still the strength of the contact between the forum and the parties. Texas has stayed close to the original meaning of the doctrine, partywise. Texas has refused to dismiss upon principles of forum non conveniens when there is even a slight connection between the parties and the forum, as in cases where one of the parties is a resident of Texas, or is doing business in Texas, or has a permit to do business in Texas. Conques v. Louisiana Western Ry. Co., Tex.Civ.App., 295 S.W. 935, affirmed Tex.Com.App., 10 S.W.2d 975; St. Louis & S. F. Ry. Co. v. Hale, Tex.Civ.App., 153 S.W. 411, affirmed 109 Tex. 251, 206 S.W. 75; El Paso & S. W. Co. v. Chisholm, Tex.Civ.App., 180 S.W. 156; Southern Pacific Co v. Allen, Tex.Civ.App., 106 S.W. 441; Southern Pacific Co. v. Craner, Tex.Civ.App., 101 S.W. 534, 535; Sorkin v. Houston, E. & W. T. Ry. Co., Tex.Civ.App., 53 S.W. 608; Western Union Telegraph Co. v. Phillips, Tex.Civ.App., 21 S.W. 638. Corporate contact with the forum has been sufficient if the corporation does business in or has a permit to do business in Texas. Allen v. Bass, Tex.Civ.App., 47 S.W.2d 426; Southern Pac. Co. v. Godfrey, Tex.Civ.App., 107 S.W. 1135; Missouri, K. & T. Ry. Co. of Texas v. Godair Commission Co., Tex.Civ.App., 87 S.W. 871; Missouri, K. & T. Ry. Co. of Texas v. Kellerman, Tex.Civ.App., 87 S.W. 401; Atchison, T. & S. F. Ry. Co. v. Keller, Tex.Civ.App., 76 S.W. 801; Southern Pacific Co. v. Graham, Tex.Civ.App., 34 S.W. 135; 48 A.L.R.2d 819, 824. In the case of private corporations, certain Texas statutes settle . the matter of party contact. H. Rouw Co. v. Railway Exp. Agency, Tex.Civ.App., 154 S.W.2d 143; 20 Tex.L.Rev. 609. In contrast with the discretionary powers of the court in the pure forum non conveniens situation when all parties are non-residents, we can deduce this rule, which applies when either the plaintiff or defendant is a resident, “a different problem is present as to both the power to refuse and the policy of refusing to entertain jurisdiction than when neither party is a resident or a citizen.” 14 Am.Jur., Courts, § 233; 48 A.L.R.2d 808; 32 A.L.R. 26; Blaustein v. Pan American Petroleum & Transport Co., 174 Misc. 601, 21 N.Y.S.2d 651, 706. Because the Texas Courts have held to the original meaning and application of the doctrine of forum non conven-iens with respect to parties, some writers have looked to Texas cases where the contacts were stronger and where the doctrine was not historically applicable, and have erroneously concluded that Texas has rejected the rule entirely. Barrett, The Doctrine of Forum Non Conveniens, 35 Cal.L.Rev. .380, 388; 48 A.L.R.2d 811.

If a court concludes that the party contact is too thin to justify the court to ■exercise its jurisdiction, that is reason to dismiss the case. If, however, the party contact is sufficiently strong to justify the court to retain jurisdiction, the court will then look to the subject matter involved in the foreign tort and may still find reasons for a dismissal. If Texas has been slow to ■enlarge upon the original meaning of foreign non conveniens as applied to parties, it has been in the forefront in refusing jurisdiction based upon the strangeness of the foreign law. Since it is the foreign law which is applied in a transitory tort action, Texas has closed its courts to foreign cases when it deems the Texas judicial machinery inadequate to the nature of the foreign law. Mexican National Ry. Co. v. Jackson, 89 Tex. 107, 33 S.W. 815, 31 L.R.A. 276; Slater v. Mexican Nat. R. Co., 194 U.S. 120, 24 S.Ct. 581, 48 L.Ed. 900; El Paso & Juarez Traction Co. v. Carruth, Tex.Com.App., 255 S.W. 159; Carter v. Tillery, Tex.Civ.App., 257 S.W.2d 465; Johnson v. Employers Liability Assurance Corporation, Tex.Civ.App., 99 S.W.2d 979, 983. It will close its courts if it considers the foreign law offensive to the Texas public policy. State of California v. Copus, 158 Tex. 196, 309 S.W.2d 227, 67 A.L.R.2d 758. See, Cuba R.R. Co. v. Crosby, 222 U.S. 473, 478, 32 S.Ct. 132, 56 L.Ed. 274; Dainow, Policy Problems in Conflicts Cases, 35 Tex.L.Rev. 759; Paulsen, Foreign Law in Texas Courts, 33 Tex.L.Rev. 437; Stumberg, Conflict of Laws, 9 Tex.L.R. 21; 11 Am.Jur., Conflicts of Law, § 6. In making this determination, courts exercise less discretion than they do in determining the earlier question of party contact with the forum. Here the matter is controlled by the precedents on conflicts of law cases, the same as in any other field of the law. 2 Goodrich, Conflict of Laws (3rd Ed. 1949) 11-12. The test is not so much one of convenience as it is whether the foreign law is “substantially the same right of action” as that offered by Texas. De Harn v. Mexican National Ry. Co., 86 Tex. 68, 23 S.W. 381. Stated otherwise, is the foreign statutory law “materially different from the law of this state in relation to the same subject?” Mexican Nat. R. Co. v. Jackson, 89 Tex. 107, 33 S.W. 857, 859, 31 L.R.A. 276; St. Louis, I. M. & S. R. Co. v. McCormick, 71 Tex. 660, 9 S.W. 540, 1 L.R.A. 667; Texas & Pacific Ry. Co. v. Richards, 68 Tex. 375, 4 S.W. 627. Applied to this case, the defendants urge that the trial court correctly dismissed the case because it would require Texas to apply the statutory South Dakota Law with respect to comparative negligence, which has been condemned in Texas. Blakesley v. Kirchner, Tex.Com.App., 41 S.W.2d 53, 55; Missouri, K. & T. Ry. Co. of Texas v. Rodgers, 89 Tex. 675, 36 S.W. 243; McDonald v. International & G. N. Railway Co., 86 Tex. 1, 22 S.W. 939; International & G. N. R. Co. v. Garcia, 75 Tex. 583, 13 S.W. 223. See, Stumberg, Conflicts of Laws, 9 Tex.L.Rev. 21, 35. Texas has, however, applied the doctrine m maritime actions under the Texas Wrongful Death Act, Vassallo v. Nederl-Amerik Stoomv Maats Holland, Tex., 344 S.W.2d 421, 424; and to actions under the Federal Employers’ Liability Act. Thompson v. Robbins, 157 Tex. 463, 304 S.W.2d 111. See, 2 Beale, The Conflict of Laws, § 385.2; 9 Stayton, Texas Forms, § 5038, p. 444; 11 Am.Jur., Conflicts of Law, § 189; 32 A.L.R. 801; 48 A.L.R.2d 1268.

Looking at the first of the principles suggested, we learn that this case is one of the classic instances in which all parties are non-residents. It is a case of the original forum non conveniens as historically developed. That fact at once distinguishes those cases in which one of the parties had a stronger connection with the forum, as well as those cases which would require us to compare the virtues of the foreign and the forum law. The trial court did not abuse its discretion in dismissing the action. 14 Am.Jur., Courts, § 234.

The judgment is affirmed.

        . “If the combination and weight of factors requisite to given results are difficult to forecast or state, those to be considered are not difficult to name. An interest to be considered, and the one likely to be most pressed, is the private interest of the litigant. Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforcibility of a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum, ‘vex,’ ‘harass,’ or ‘oppress’ the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. But unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.
      “Factors of public interest also have place in applying the doctrine. Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.” Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055; 48 A.L.R.2d 816.

      . SDC 1960 Supp. “47.0304-1. Comparative negligence. In all actions brought to recover damages for injuries to a person or to his property caused by the negligence of another, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery when the contributory negligence of the plaintiff was slight and the negligence of the defendant was gross in comparison but the contributory negligence of the plaintiff shall be considered by the jury in the mitigation of damages in proportion to the amount of contributory negligence attributable to the plaintiff; and all questions of negligence and contributory negligence shall be for the jury.”


source: Caselaw Access Project

author: ARCHER, Chief Justice.

license: Public Domain

text:
    BRAZOSPORT SAVINGS & LOAN ASSOCIATION et al., Appellants, v. Jimmy PHILLIPS et al., Appellees.
    No. 10943.
    Court of Civil Appeals of Texas. Austin.
    Jan. 3, 1962.
    Rehearing Denied Jan. 24, 1962.
    R. W. Lindsey, Rosenberg, Peareson, Scherer & Roberts, Richmond, McKay & Avery, Charlie D. Dye, Austin, for appellants.
    Will Wilson, Atty. Gen., Fred Werken-thin, Asst. Atty. Gen., Clark, Thomas, Harris, Denius & Winters, Mary Joe Carroll, Austin, for appellees.
   ARCHER, Chief Justice.

This is an appeal from a judgment of the District Court of Travis County, Texas, denying appellants any relief on their petition for a judgment (1) declaring the action of the Banking Commissioner in granting a charter and certificate of authority to American Savings and Loan Association to be void, (2) permanently enjoining the individual defendants from doing business under such authority and the Commissioner from permitting them to engage in a savings and loan business, and (3) in the alternative, for a declaratory judgment declaring the action of the Commissioner to be void.

The subject matter of this litigation has been before this Court at a prior date, in Brazosport Savings and Loan Association v. Phillips, Tex.Civ.App., 326 S.W.2d 567. The Supreme Court granted a writ of error and reversed the judgment of this Court and its opinion is found in Brazosport Sav. & Loan Ass’n v. American Sav. & Loan Ass’n, Tex., 342 S.W.2d 747. The Court there held:

“In accordance with prior decisions of this and other courts with which we agree, we believe that petitioners possess a valuable and vested property right in their franchises. Petitioners’ allegations of fact that this right has been infringed upon by the action of the Commissioner must be taken as true in view of the procedural status of the case. Therefore, we hold that petitioners are entitled to an opportunity to prove their allegations that the Commissioner’s action was illegal or without support in substantial evidence, and to appropriate relief if this be proved. Such an opportunity is afforded to petitioners by the due process clauses of the Constitution of this state and of the United States. Vernon’s Ann.St. Const. Art. I, § 19; U.S.C.A.Const. Amend. 14.”

The case was tried and the judgment hereinabove was rendered and the case is before this Court on appeal.

The appeal is founded on 13 points assigned as error in the trial of the case and are that the Court erred in upholding the validity of the charter and certificate of American, because the Commissioner acted in violation of the rules and applicable law by relying on ex parte evidence and such conduct was arbitrary, capricious, unreasonable and unlawful; that the action of the Commissioner was based on secret and ex parte evidence; that the application and articles of American filed with the Commissioner were not properly verified and were contrary to the provisions of Art. 881a-29, Vernon’s Ann.Civ.St. Sec. 2.1 of the Rules and the Commissioner’s jurisdiction was never properly invoked; that the application on behalf of American failed to comply with the rules of the Building and Loan Section of the Finance Commission of Texas and the Banking Commissioner because the same were not accompanied by the required statements, exhibits, maps and other data, properly verified in sufficient detail to enable the Commissioner to pass on the proposed charter; that the manner in which the Commissioner accepted and filed the application and substitute application of American and granted the same constituted arbitrary action and a denial to appellants of due process; because the Commissioner did not give proper consideration to the competitive and damaging effect upon existing associations; that the granting of the application was in violation of Section 2.4 of the departmental rules requiring the Commissioner to file a written memorandum of his reasons for granting the charter; in construing Article 881a-l et seq. and the rules as authorizing the Commissioner to grant the charter because appellants were not afforded due process; that the Commissioner acted upon insufficient evidence or competent evidence in granting the charter; in upholding the action of the Commissioner in considering evidence heard in other proceedings and in considering evidence by witness Crews in testifying from D. Ex. 2 captioned “A Survey Report Prepared for Federal Home Loan Bank, etc/' because such constituted hearsay testimony; and finally, in admitting in evidence P. Ex. 27, a Field Investigation Report, such being ■hearsay.

The first five points are grouped together and briefed as such.

The prime question or questions to be determined under the Supreme Court’s judgment is whether. the Commissioner’s action in- granting the charter was illegal • or without support in substantial evidence. .If the action was 'illegal we need go no .-further," and w.e.-shall determiné this question first. The burden was on appellants to prove that the Commissioner’s action was ■ illegal or that the Commissioner did not a'c-•quire jurisdiction to-hear the application. .-

. Rules and Regulations, for Building ■ and Loan Associations had .been promulgated .by the -Building and Loan Section of the Finance Commission of Texas and the Banking Commissioner of Texas and were • in effect, one of which reads -as follows: ■

“Chapter 2.',N?w .Charter Applications
“2.1 When articles of incorporation of a new association are presented to the Banking Commissioner- for his approval,- such articles shall be accom--panied by the proposed By-Laws of the association and staternents, exhibits, maps and other data, properly verified, which shall be sufficiently -detailed and comprehensive to enable the Commissioner to pass upon the proposed charter as to (1) the character, responsibility and general fitness of the persons named in the articles; (2) whether the public convenience and advantage will be promoted by allowing such proposed association to be incorporated and engage in business, taking into consideration (a) that insurance of the accounts of the proposed association has been applied for and that such insurance will probably not be refused by the Federal Savings and Loan Insurance Corporation, (b) that such proposed association will have and maintain independent quarters with a ground-floor location or its equivalent, (c) that such proposed association will have qualified, full-time management, and (d) the adequacy of the initial capital and surplus of the proposed association; and (3). whether the population of the neighborhood of such place and in the surrounding country affords a reasonable promise of adequate support for the proposed association.”

On September 26, 1958 the individual defendants filed with 'the Commissioner certain Articles -of Association . and Application for Charter -for American Savings and .Loan Association — .Lake Jackson, Texas, which wag; received/by the Commissioner -and held by him without fixing a hearing •thereon within ten -days, as required by .Rule 2.1. Thereafter the said defendants superseded and amended their Articles and .Application by instruments dated-October 27, 1958, and filed these instruments with the Commissioner.on or about October 31, 1958. ' ' '

This amended application was not accompanied with supporting data as provided by the rule, and it is from approval of this application that the appeal is taken.

■The hearing was had on December 15, 1958 and was attended by appellants as adversaries and protested.

As is presented in appellants’ first point of error, appellants contend that the charter and certificate of American was granted in an adversary proceeding upon the strength of secret and ex parte evidence, in violation of departmental rules and applicable law, and was arbitrary, capricious, unreasonable and unlawful; by further assignment appellants say that the said application and articles of American filed'were not properly verified and the jurisdiction of the Commissioner was never properly invoked and further that the application and articles were not accompanied by the required statements, exhibits, maps and other data properly verified, sufficiently detailed and comprehensive to enable the Commissioner to pass upon the proposed charter.

The amended application for a charter was not accompanied with nor was there filed with it such supporting data, verified or otherwise as required by the rule, consequently protestants were deprived of reasonable opportunity to know of the claims, allegations and proposed proof of applicants until the public hearing began, and were denied a fair and reasonable opportunity to prepare to meet the claims of applicants.

The application and articles filed with the Commissioner contained a jurat affixed thereto, executed by Elizabeth B. Bice, a notary public for Brazoria County, Texas, who is shown to be one of the incorporators of the association and a stockholder and as such is interested in the charter and the certificate sought.

In response to request for admissions the Commissioner admitted:

“(14) Admits that at the time the application and articles dated October 27, 1958, were presented to me on October 31, 1958, same were not accompanied by any statements, exhibits, maps and other data, properly verified.
“(15) Admits that at the time the application and articles dated October 27, 1958, were presented to me on October 31, 1958, same were not accompanied by any data sufficiently detailed and comprehensive to enable me, as Commissioner, to pass upon the proposed charter as to the matters set forth in item (1), Item (2), (2) (a), (2) (b), (2) (c) and (2) (d), and Item (3) of Section 2.1 of the Rules and Regulations appearing as Exhibit A attached to the request for Admissions, except that data and information pertaining to the matters set forth in Section 2.1 of the Rules and Regulations are included in the Application and Articles of Association.”

It was admitted by the Commissioner that:

“(16) Admits that one of the primary purposes of the Rules and Regulations of January 29, 1958, is to afford a public hearing at which all evidence for and against an application for a savings and loan application will be presented.
“(22) Admits that prior to my action in granting approval of application and articles for American Savings & Loan Association the Proponents thereof did not at any time submit to me any verified (by acknowledgment or affidavit) statements, exhibits, maps and other data pertaining to Elements (1), (2) and (3) prescribed in Rule 2.1.”

In the opinion of the Supreme Court, Brazosport Sav. & Loan Ass’n v. American Sav. & Loan Ass’n, Tex., 342 S.W.2d 747, the Court held:

“The rules and regulations for building and loan associations, as set forth in Article 881a-2, V.A.S.C., require that applications and articles be accompanied by certain data, properly verified and sufficiently detailed and comprehensive, to enable the Commissioner to pass upon a proposed charter. By the same article the Commissioner is charged with the duty of determining the character and fitness of the incorporators, and ascertaining ‘whether the public convenience and advantage will be promoted by allowing such proposed building and loan association to be incorporated and engaged in business, and whether the population in the neighborhood of such place and in the surrounding country affords a reasonable promise of adequate support for the proposed building and loan association.’ ”

Basing our opinion on the record as a whole and the judgment of the Supreme Court, we are of the opinion that the action of the Commissioner in holding the hearing under the circumstances and in granting the charter and certificate to American was illegal.

The judgment of the Trial Court is reversed and judgment is here rendered can-celling the charter and certificate of authority issued to American Savings and Loan Association, and enjoining the transaction of business thereunder.

Reversed and rendered.

RICHARDS, J., not sitting.


author: RENFRO, Justice.

text:
    Walter L. JONES, Appellant, v. Brunner JOHNSON et al., Trustees, Appellees.
    No. 16277.
    Court of Civil Appeals of Texas. Port Worth.
    Jan. 5, 1962.
    Rehearing Denied Feb. 2, 1962.
    W. J. Durham, Dallas, for appellant.
    Flowers & Flowers, and John Flowers, Fort Worth, for appellees.
   RENFRO, Justice.

The appellant Jones appealed from a judgment which enjoined him from interfering with appellee Smith in the discharge of Smith’s duties as pastor of the Lake Como Church of God in Christ and from interfering with the appellee trustees in the discharge of their duties as trustees of said church.

The appellant contends the question of who is pastor of the church is an ecclesiastical question over which the court has no jurisdiction.

The trial court filed seven pages of findings of fact in thirty-eight numbered paragraphs. The findings cover the controversy from its inception in the local church through the meeting of the General Assembly of the Church of God in Christ held in Memphis, Tennessee in December, 1960. Included in the findings were:

“3. The Church of God in Christ is a non-congregational church and is governed by a body consisting of pastors of the various churches, superintendents of the districts, bishops of state, special commissioners, and a General Assembly, that govern and establish the doctrine of the Church.

“4. The official manual of the Church of God in Christ contains the Constitution, Articles of Religion, Rules of Order, and all governing matters of said Church.

“6. The Lake Como Church of God in Christ, of Fort Worth, Tarrant County, Texas, is a part of the Church of God in Christ, and as such, is subject to, and governed by the parent Church and the rules and regulations as set out in their manual, and is not governed by its congregation.

“10. That Bishop F. L. Haynes, as the Bishop of the State of Texas, Northeast of the Church of God in Christ, had the sole and only right to appoint, remove, and transfer pastors of the Church of God in Christ in Texas Northeast, and in particular, the Lake Como Church of God in Christ.

“12. That the Bishop of the State has the exclusive and only right to appoint, transfer, and remove the pastors of the Lake Como Church of God in Christ, and he may do so with, or without cause.

“18. That on February 19, 1960, Bishop F. L. Haynes appointed Elder D. L. Smith as pastor of the Lake Como Church of God in Christ, Fort Worth, Tarrant County, Texas.

“19. On March 16th, Bishop R. E. Ranger appointed Elder Walter L. Jones pastor of the Lake Como Church of God in Christ.

"20. That such appointment by Bishop Ranger of Elder Jones was invalid in that Bishop Ranger had no authority to make such appointment.

“22. That, subsequently, Bishop' F. L. Haynes revoked the appointment of Elder Walter L. Jones as pastor of the Lake Como Church of God in Christ.

“24. That on September 13, 1960, Special Commissioners met in Detroit, Michigan, and certified a resolution adopted in said meeting, wherein the Special Commissioners affirmed the appointment of Elder Walter L. Jones.

“25. That, subsequently, Elder D. L. Smith made an appeal from such Commissioners’ decision to the General Assembly of the Church of God in Christ, and said meeting of the General Assembly of the Church of God in Christ was held in Memphis, Tennessee, in December, 1960.”

The court found that the National Judiciary Committee of the church concluded the appointment of Smith by Bishop Haynes was valid and so reported to the Elder’s Council of the General Assembly and such report was adopted by a majority vote of such Council; that until the action of the General Assembly is approved or disapproved by the Special Commissioners it stands as the final action of the Church; that said action has not been disapproved by the Special Commissioners.

Where rules and regulations are made by the church functionaries or by long and established custom and usage, they will be enforced by civil courts if not in conflict with some civil law bearing upon the subject of such rules and regulations. Schumann v. Dally, Tex.Civ.App., 29 S.W.2d 422; Alexander v. Bowers, Tex.Civ. App., 79 S.W. 342.

The findings set out above, as well as those omitted herein, are supported by either undisputed or contradictory evidence. The trial court concluded:

“1. That the Church of God in Christ, and the Lake Como Church of God in Christ, as a part of said Church, is a non-congregational Church, and the only authority that this Court has is to uphold the final action that had been taken within such Church and not to- interfere with the internal organization of such Church.

"2. That the last legal action taken by the Church of God in Christ was the affirming of the appointment of Elder D. L. Smith as pastor of the Lake Como Church of God in Christ, Fort Worth, Tarrant County, Texas.

“3. Upholding the last action of the Church of God in Christ, the court concludes as a matter of law that Elder D. L. Smith is the pastor of the Lake Como Church of God in Christ and is entitled to his injunction against the defendant.”

We concur in the conclusions reached by the trial court and overrule the point of error.

Appellant’s remaining points claim error on the part of the court in failing to make certain findings. Some of the findings requested were found adversely to appellant, and are supported by the record. The others, if found, would not have required the court to render a judgment other than the one rendered.

The judgment is affirmed.


author: McDONALD, Chief Justice.

text:
    Earl FOSTER, Appellant, v. Jimmy H. HARVILL and Leroy Grant, Appellees.
    No. 3939.
    Court of Civil Appeals of Texas. Waco.
    Jan. 11, 1962.
    Rehearing Denied Feb. 1, 1962.

      Carl Waldman and John T. Lindsey, 13eaumont, for appellant.
    Marcus & Weller, Orgain, Bell & Tucker, Beaumont, for appellee.
   McDONALD, Chief Justice.

This is an appeal from an instructed verdict that plaintiff take nothing (against 2 •separate defendants).

Plaintiff Foster was a passenger in a car driven by defendant Grant. Defendant Grant was proceeding east on Highway 36S. Defendant Harvill was proceeding north on Highway 347. Defendant Har-vill’s car struck the car driven by defendant Grant, and in which plaintiff Foster was a passenger. Plaintiff Foster was injured.

Plaintiff brought suit against defendant Grant, alleging that Grant was guilty of negligence and gross negligence in failing to keep a proper lookout, in failing to keep his automobile under proper control, and in driving at an excessive rate of speed under the facts and circumstances.

Plaintiff brought suit against defendant Harvill, alleging that Harvill was guilty of negligence in driving at excessive speed; in failing to keep a proper lookout; in failing to keep his automobile under proper control; and in failing to yield the right of way to the automobile in which plaintiff was riding.

At the close of the evidence, the Trial Court instructed verdict that plaintiff take nothing as to both defendants. Plaintiff appeals, contending:

1) The Trial Court erred in refusing to permit plaintiff to file trial amendment in the alternative that plaintiff and defendant Grant were on a joint enterprise.

2) The Trial Court erred in granting instructed verdict for defendant Grant because the evidence raised an issue of fact for the jury as to the gross negligence of 'defendant Grant in failing to keep a proper lookout, in failing to keep his automobile under proper control, and in driving at an excessive rate of speed under the facts and circumstances.

3) The Trial Court erred in granting instructed verdict for defendant Harvill because the evidence raises an issue of fact as to the negligence of defendant Harvill as to speed, proper lookout, proper control, and failure to yield right of way.

We revert to plaintiff’s 1st contention that the Trial Court erred in refusing to permit plaintiff to file trial amendment in the alternative that plaintiff and defendant Grant were on a joint enterprise. Plain- . tiff went to trial on his second amended ■original petition in which he charged defendant Grant with “gross negligence.” Plaintiff Foster, as a guest, could not recover against defendant Grant, except for “gross negligence.” At the close of the plaintiff’s evidence, plaintiff Foster offered a trial amendment in which he alleged that he and Grant were on a “joint enterprise.” The Trial Court overruled such motion. If the parties were on a joint enterprise, plaintiff could recover from defendant Grant for ordinary negligence.

There is no evidence in the record to raise an issue of joint enterprise between plaintiff Foster and defendant Grant. Moreover, plaintiff Foster so concedes in his brief in this court. The point is overruled.

Plaintiff’s 2nd contention is that the Trial Court erred in granting instructed verdict that plaintiff take nothing as to defendant Grant. The evidence reflected that the car driven by defendant Harvill crashed into the right side of the car driven by defendant Grant. When the collision occurred, the car driven by Grant was almost across the intersection. The collision occurred about midnight and the weather was foggy. There was a stop sign confronting the Grant car at the intersection. Plaintiff charges Grant with gross negligence in failing to keep a proper lookout, in failing to keep his automobile under control, and in driving at an excessive rate of speed, under the facts and circumstances.

For plaintiff, as a passenger, to recover against the driver Grant, he must prove “gross negligence.” Gross negligence is the heedless and reckless disregard of the rights of others, and includes the element that it is the conscious indifference of the consequences of one’s actions. Rowan v. Allen, 134 Tex. 215, 134 S.W.2d 1022; Gill v. Minter, CCA, Er.Ref., 233 S.W.2d 585. Plaintiff himself testified that defendant Grant stopped at the stop sign, “and looked and wasn’t nobody coming and we started across.” We think that as a matter of law, gross negligence was not raised and that the Trial Court properly granted the instructed verdict that plaintiff take nothing as to defendant Grant. The contention is overruled.

Plaintiff’s 3rd contention is that the Trial Court erred in granting instructed verdict that plaintiff take nothing as to defendant Harvill. Defendant Harvill contends that there was no evidence to show him guilty of negligence proximately causing the collision; and that because plaintiff attempted to file the trial amendment alleging that plaintiff was on a joint enterprise with defendant Grant (and introduced defendant’s pleading to this effect) that plaintiff has made a judicial admission that he was on a joint enterprise, in which event defendant Grant’s negligence is imputed to plaintiff Foster, barring a recovery as a matter of law.

Plaintiff alleged that defendant Harvill was guilty of negligence proximately causing the collision as to speed, proper lookout, proper control, and failure to yield the right of way. The record reflects (viewed most favorably against the instructed verdict) that defendant Harvill was driving 50 miles an hour on a foggy night in a 40 mile speed zone; that he did not see the Grant car until it was 15 feet in front of him on the highway; that he veered to his right 3 or 4 feet but was unable to avoid the collision. We think the record raises issues as to defendant Harvill’s negligence proximately causing the collision.

Defendant Harvill contends that plaintiff’s introduction of the defendant’s pleading that his mission was a joint enterprise with defendant Grant, and his attempt to file trial amendment to such effect, constitutes a judicial admission that he was on a joint enterprise with defendant Grant and that Grant’s negligence is imputed to plaintiff as a matter of law.

If the foregoing be true, we still do not think that the record herein establishes negligence on the part of Grant proximately causing the collision, as a matter of law. The jury should have been allowed to pass on this issue. Contention 3 is sustained.

The judgment of the Trial Court granting instructed verdict that plaintiff take nothing as to deféndant Grant is affirmed; and the judgment granting instructed verdict that plaintiff take nothing as to defendant Harvill is reversed and cause as to defendant Harvill is remanded. Costs of appeal adjudged 1/2 against plaintiff Foster, and ,½ against defendant Harvill. Affirmed in part and reversed and remanded in part.


author: CLAYTON, Justice.

text:
    Otto L. DAVIS and W. J. Shields, Appellants, v. RINEHART OIL NEWS COMPANY, Appellee. Otto L. DAVIS and W. J. Shields, Appellants, v. Keith ANDERSON, Appellee.
    Nos. 5541, 5542.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 10, 1962.
    Bill Hart, Midland, for appellants.
    Milton L. Bankston, W. B. Browder, Jr., Stubbeman, McRae, Sealy & Laughlin, Midland, for appellees.
   CLAYTON, Justice.

These two cases are companion injunction suits with prayer for damages filed on May 4, 1961 in the District Court of Midland County by the appellants against the respective appellees, which cases were consolidated in the trial court on hearing for issuance of temporary injunction. Cause No. 5541 in this court was docketed as No, 15,825 in the trial court, and cause No. 5542 was numbered 15,826 in the trial court. In each application for temporary injunction appellants contended that the appellees, each of whom published individual oil news reports' in' competition with that published by appellants, were taking, using and republishing items from appellants’ publication, and asked that they be restrained from so doing in any form or way. Upon hearing, temporary injunction was denied, from which order of- the court the appellants brought this appeal.

The only witness appearing at the hearing was Otto L. Davis, one of the appellants. He testified that he and appellant W. J. Shields, were in partnership in the publication of a specialized oil news report entitled “New Locations”, the primary purpose of which was to acquaint the oilfield supply companies of the West Texas and Southeastern New Mexico area with new drilling locations and activities, and further, with the name of the operator, the drilling contractor when known, and the status of the location. There are three issues of the publication — two from Midland, Texas which are placed in the mail on Saturday of each week, and the third mailed from Hobbs, New Mexico on Tuesday of each week. The information for these publications, relative to location notices,-is obtained from records of the Texas Railroad Commission offices in Midland and San Angelo, Texas, and from the State Oil Conservation Commission offices and the United States Geological Survey offices in Hobbs and Artesia, New Mexico. Appellant Davis testified that the balance of the information contained in his publications, such as relates to the drilling contractor, status of the operation, etc., is gathered by contact with the particular oil operators involved in the new locations. He further related that appellee Rinehart Oil News Company published Ira Rinehart’s Oil Report (Ira Rinehart’s Location Service), and appellee Keith Anderson published the Anderson Oil Report, which were publications similar to “New Locations” and disseminated in ap-proximataely the same area.

• In the petitions filed by appellants against each of the appellees, practically identical allegations asserted that on or about June 7, 1957 each appellee began willfully to obtain copies of appellants’ reports by fraudulent and secret means and had taken certain information from such reports and had, since said date, used various information obtained by appellants at the expense of appellants for the use of each of the appellees in his respective report. In support of these allegations, appellant Davis introduced as his Exhibit One a copy of his publication for West Texas Railroad Commission District 8 covering the period from April 17 to April 24, 1961, consisting of seven pages. As Exhibit Two he introduced a “dummy” copy of page 2 of Exhibit One in which the name of a drilling contractor had been changed from the record name of “Ray Smith Drilling” to an imaginary name of “Mabee Drilling”. This dummy copy of Exhibit One with the substituted name of “Mabee Drilling” on page 2, had been prepared by appellants for and sent to only one unidentified subscriber to appellants’ report. As far as we are able to ascertain from the record, no attempt was made by Davis to show that this particular item of misinformation had fallen into the hands of appellees by “fraudulent and secret means” or otherwise, or had been used by either of appellees in his respective report.

However, as his Exhibit Three, appellant Davis introduced a copy of “New Locations” for southeast New Mexico for the period of April 19 to April 26, 1961 in which (on page 2 of said Report) appeared the name of Kincaid & Watson as the drilling contractors for a McCoy & Stevens location in Eddy County, New Mexico. Kincaid & Watson are described by Davis as the actual drilling contractors. In Exhibit Four, made up in all other respects as a true issue of this publication for the same area and period of time, the name of the drilling contractor on this location was listed under the fictitious name of Donnelly Drilling Company. This was done, Davis states, at his instruction, and was sent to one (unidentified) customer only.

In appellants’ Exhibit Five, a copy of Ira Rinehart’s Location Service for April 27, 1961, the same item of misinformation as to the drilling contractor on the McCoy and Stevens location appears. In appellants’ Exhibit Six, consisting of a copy of a page from the Anderson Oil Report for the same date and location, the incorrect name of Donnelly as the drilling contractor appears.

The obvious purpose of this testimony and these exhibits was to show that appel-lees had, in fact, by “fraudulent and secret means” taken certain information obtained by appellants at their expense and converted the same to appellees’ own use. It is this alleged practice that appellants sought to enjoin. No testimony was offered by appellees in their behalf.

At the conclusion of the hearing the trial court entered identical orders denying the appellants’ applications for temporary injunctions in each case.

Appellants present in this court several “Assignments of Error” which properly should have been designated Points of Error. For purposes of clarity in this opinion, however, reference will be made to appellants’ “assignments” as Points of Error. Since most of them relate to the merits of the controversy in respect to appellants’ rights to recover in damages for the alleged usurpation of their property, and do not relate to the rights of injunctive relief, which was the subject matter of the hearing, only the latter rights will be considered here. Miller v. Texsteam Corp., Tex.Civ.App., 327 S.W.2d 465. Appellants’ Points of Error numbers One, Two and Three are accordingly overruled.

Appellants’ Point of Error number Four ■reads as follows: “The trial court erred in refusing to grant the temporary injunction to maintain the status quo pending the trial of the case on the merits.”

It must be observed at the outset that the only evidence adduced by appellants in support of their application for temporary injunction was that in each of appel-lees’ publications, published the day after that of appellants, the same item of misinformation contained in appellants’ “dummy” copy was inserted. This “dummy” copy was prepared for, and sent to, one of appellants’ subscribers. This subscriber is unnamed in appellants’ testimony, and no connection between him and either of the ap-pellees is disclosed. We feel that this evidence falls short of that necessary to support appellants’ allegations that appellees had willfully and by fraudulent and secret means taken information from appellants’ report, or that such information had been obtained by appellants at their expense.

But what impresses us most in connection with this Point of Error relative to maintaining the status quo between the parties is the assertion in appellants’ petitions that the alleged wrongful practice of appellees had begun on or about the 7th day of June of 1957, and had continued since said date up to and including the filing of the petitions herein on May 4, 1961. If, under these circumstances, the order of the trial court refusing to grant a temporary injunction had disturbed the status quo, such order would in all likelihood, have been error on the court’s part. 24—A Tex.Jur. (Rev.) 29, Injunctions, fl!5; Burge v. Dallas Retail Merchants Ass’n, Tex.Civ.App., 257 S.W.2d 733. However, we feel that the trial court’s orders in the instant cases preserved, rather than changed, the status quo between the parties, until a determination of all issues between them could be had by a trial on the merits.

The trial court is clothed with broad discretion in determining whether or not to issue a temporary injunction to preserve the rights of the parties pending a final trial of the case, and when that discretion is exercised its order should not be overturned unless the record discloses a clear abuse of discretion. Texas Foundries, Inc. v. International Moulders & Foundry Workers’ Union et al., 151 Tex. 239, 248 S.W.2d 460 (and cases therein cited).

Finding no such abuse of discretion on the part of the trial court, appellants’ Point of Error Number Four is overruled, and the order of the trial court in each of the consolidated cases is affirmed.


author: COLEMAN, Justice.

text:
    W. L. EUBANKS, Jr., et al., Appellants, v. PURITAN CHEMICAL COMPANY, Appellee.
    No. 13800.
    Court of Civil Appeals of Texas. Houston.
    Jan. 4, 1962.
    Rehearing Denied Jan. 25, 1962.

      Warren P. Cunningham, Jr., Houston, for appellants.
    Bernard Kay, Shapiro, Corman & Gold-faden, Houston, for appellee.
   COLEMAN, Justice.

Puritan Chemical Company, appellee, sued W. L. Eubanks, Jr. and Kemco Chemical Company, a corporation, appellants, for a permanent injunction restraining the violation of covenants against competition contained in a contract of employment between Eubanks and appellee. After trial before the court without a jury, a permanent injunction was issued and this appeal resulted.

The principal question raised by appellant Eubanks is his contention that the covenant against competition was not reasonable in that the area in which competition was forbidden was too extensive.

Eubanks was employed by appellee in the dual capacities of salesman and district sales manager. The general territory over which he served as sales manager comprised some 89 counties in Texas and eleven parishes in Louisiana. In some of these counties and parishes appellee had no sales representatives and no accounts. The sales territory in which Eubanks was authorized to act as salesman was confined to the counties of Galveston, Brazoria, Fort Bend, Matagorda, Wharton and Harris. While at various times Eubanks had salesmen working under his supervision, the bulk of the sales were made by him in his sales territory.

The parties are in agreement that this contract should be construed under and be governed by the law of the State of Georgia because of a contract provision to that effect, and have filed proper requests with the trial court that it take judicial notice of the applicable Georgia court decisions and law. The contract further provides:

“VIII. B. Therefore, in consideration of the premises and for one dollar ($1.00), cash in hand paid, receipt of which is hereby acknowledged, and the SECOND PARTY’S employment under the terms of this agreement, the SECOND PARTY does expressly covenant and agree that during the term of his employment under this contract and for a period of three (3) years immediately following the expiration or termination of such employment:
“1. He will not within said time, for himself or on behalf of any other person, persons, partnership or corporation, solicit orders for sanitary and maintenance chemicals, supplies and equipment, for distribution to governmental, institutional, industrial and commercial consumers within the territory hereinafter defined.
“2. He will not within said time in any way, directly or indirectly, for himself or on behalf of or in conjunction with any other person, persons, partnership or corporation solicit, divert or take away any of the customers or patronage of PURITAN’S business hereinabove described within the territory hereinafter defined.
“3. He will not within said time, directly or indirectly, for himself or on behalf of others, engage in the business, or any phase thereof, of developing, manufacturing and purchasing sanitary and maintenance chemicals, supplies and equipment, and marketing such products to governmental, institutional, industrial and commercial consumers within the territory hereinafter defined.”

Appellant Eubanks resigned his employment with Puritan and admitted that subsequently he violated the covenants against competition by soliciting former customers of Puritan and by establishing and engaging in a business in competition with Puritan in the territory defined in the employment contract.

Paragraph IV. A. set out by name the Texas counties and Louisiana parishes contained in the general territory. Paragraph IV. B. set out by name the counties contained in the sales territory. The contract also contained the following provisions:

“VIII. C. The territory referred to in this section shall include:
"1. All of the territory set forth in Paragraph IV-B of this contract.
“2. All of the territory set forth in Paragraph IV-A of this contract.
“3. Any territory which is hereafter assigned to the SECOND PARTY by written contractual change or designation.
“4. Any territory not presently assigned to the SECOND PARTY, but which was assigned as his territory under any prior contract of employment with PURITAN.
“5. Any territory to which the SECOND PARTY is transferred by mutual consent of the parties whether or not such agreement is evidenced in writing.
“D. Notwithstanding anything herein to the contrary, the restrictive covenants set forth in this section shall not be deemed to apply to any area for a period of more than three (3) years from the date on which such area ceased to be a part of the territories assigned to the SECOND PARTY.
“E. Each restrictive covenant here-inabove set forth is separate and distinct of every other restrictive covenant set forth in this section, and in, the event of the invalidity of any such covenant the remaining obligations shall be deemed independent and divisible. The parties agree that the inclusion of all the territories hereinabove set forth is reasonable and is necessary for the protection of PURITAN. If, however, the inclusion of all of said territories should be deemed too extensive and therefore unreasonable, each numbered paragraph under Paragraph
VIII-C above shall be considered as; separate and divisible, and to the extent necessary to make the territory reasonable, shall be eliminated in the inverse order from which each is stated.”

The injunction issued by the trial court was confined in its application to the counties named in the contract in paragraph IV.

B.

The tests to be applied in determining the-validity of such contracts were determined' by the Supreme Court of Georgia in Rakestraw v. Lanier, 104 Ga. 188, 30 S.E. 735,. where the Court said:

“ * * * But if, considered with reference to the situation, business, and objects of the parties, and in the light of all the surrounding circumstances, with reference to which the contract was made, the restraint contracted for1 appears to have been for a just and honest purpose, for the protection of the legitimate interests of the party in whose favor it is imposed, reasonable as between them, and not specially injurious to the public, the restraint will! be held valid. The true test, therefore, of the validity of such a contract,, is whether it is supported by a sufficient consideration, and whether the restraint is reasonable.”

This case has been quoted from or cited by the Supreme Court of Georgia in an unbroken line of cases. Hood v. Legg, 160 Ga. 620, 128 S.E. 891; Orkin Exterminating Company v. Dewberry, 204 Ga. 784, 51 S.E.2d 669; Turner v. Robinson, 214 Ga. 729, 107 S.E.2d 648; Wake Broadcasters, Inc. v. Crawford, 215 Ga. 862, 114 S.E.2d 26.

Whether or not a particular restraint is unreasonable is a question of law for the court. Hood v. Legg, supra. The principal factors to be considered in determining the reasonableness of a territorial restraint are set out in Orkin Exterminating Co. v. Dewberry, supra, where the Court states:

“In any event, it covers territory in which the employer has never engaged in business; and the territorial scope of such a contract is not made more reasonable by the fact that the employer entertains the hope that some day its business may extend to every city within the State. Such a contract is ‘unreasonable,—not necessary for the protection of the party in whose favor the restraint was imposed, oppressive to the party restrained, and opposed to the interests of the public’. Rakestraw v. Lanier, supra [104 Ga. 188, 30 S.E. 741]. Accordingly, it is contrary to public policy and void.”

The territorial limits in which appellants were restrained from competing with appellee by the trial court are clearly reasonable under the decisions of the Supreme Court of Georgia. Black v. Horowitz, 203 Ga. 294, 46 S.E.2d 346; Aladdin, Inc. v. Krasnoff, 214 Ga. 519, 105 S.E.2d 730; Turner v. Robinson, 214 Ga. 729, 107 S.E.2d 648.

Appellants say that since the contract is indivisible and that since other territories were described in paragraph VIII. C., 2, 3, 4 and 5, the prohibition against competition unduly restricted Eubanks without necessity and rendered the contract void. Such cases by the Supreme Court of Georgia as Thomas v. Coastal Industrial Services, Inc., 214 Ga. 832, 108 S.E.2d 328, Wake Broadcasters, Inc. v. Crawford, 215 Ga. 862, 114 S.E.2d 26, and Orkin Exterminating Co. v. Newberry, 204 Ga. 784, 51 S.E.2d 669, lend support to this contention. Appellants contend that this Court should not, under the guise of interpretation, write a new contract for the parties.

The contract provides that the various territorial provisions should be independent and divisible. The Supreme Court of Georgia has enforced contracts restraining competition, even though one or more provisions were unreasonable, where a divisible provision of the contract, which was reasonable, prohibited the conduct restrained. Hood v. Legg, 160 Ga. 620, 128 S.E. 891; Aladdin, Inc. v. Krasnoff, 214 Ga. 519, 105 S.E.2d 730. To sustain the action of the trial court in this case it' is not necessary to rewrite the contract, but merely to apply an unambiguous provision of the contract. 13 Tex.Jur.2d § 213; Spinks v. Riebold, Tex.Civ.App., 310 S.W.2d 668, writ ref.

The trial court also enjoined Kemco Chemical Company, Inc. This corporation was not a party to the contract. However, the trial court found, on sufficient evidence:

“XIV.
“That on July 1, 1960, being a date after suit against Defendant, W. L. Eu-banks, Jr. for temporary and permanent injunction had been filed, Kemco' Chemical Company, a corporation, was incorporated to engage in a business contemplated to compete with the business of Plaintiff. That Defendant, W. L. Eubanks, Jr. was instigator of the corporation and was one of the original incorporators, first President and a Director and the Registered Agent of the said corporation. That the abortive attempt by Defendant, W. L. Eubanks, Jr. to transfer his interest and equity in the corporate business to his wife was predicated upon a note in amount of $1045.76 executed by Mrs. Eubanks to Defendant, W. L. Eubanks, Jr., her husband. Mrs. Eubanks had never had her disabilities of coveroture removed.
“XVI.
“That Defendant, W. L. Eubanks, Jr. did transfer and make available to' said Defendant corporation all of the trade secrets and confidential information and date peculiar to Plaintiff’s business which he had theretofore acquired, and that the Defendant, Kemco Chemical Company, a corporation, at time of trial on permanent injunction did engage and was engaging and competing with Plaintiff in the sanitary and maintenance supply and equipment business as defined and described in said restrictive covenants.
“XVIII.
“That Defendant, :W. L. Eubanks, Jr. did in fact manage and control said Defendant corporation at all times pertinent hereto.
“XIX.
“That Defendant, Kemco Chemical Company, a corporation, is and was at all times pertinent to this suit, the alter ego of the Defendant, W. L. Eubanks, Jr. and that the Defendant, W. L. Eu-banks, Jr. continued at all times perti-. nent hereto to do business and engage in activities in the name of said Defendant corporation in violation of the restrictive covenants aforesaid.
“XX.
“Defendant, Kemco Chemical Company, a corporation, with knowledge and notice of said restrictive covenants contained in said contract, by and through its officers and directors, is aiding and abetting and did so aid and abet Defendant, W. L. Eubanks, Jr. in violating said restrictive covenants.
“XXI.
“That Defendant, Kemco Chemical Company, a corporation, is using and did use up to time of trial Plaintiff’s trade secrets and other confidential business methods and information received from Defendant, Eubanks, Jr. in the operation of its sanitary and maintenance chemicals and supplies business.”

The Supreme Court of Georgia has held in a case where a corporation was not a party to the contract that it was error to enjoin the corporation where there was no evidence that the corporation was aiding or abetting such an employee. Turner v. Robinson, 214 Ga. 729, 107 S.E.2d 648.

From a casual reading of the opinion, Puritan Chemical Company v. Crown Chemical Company, 214 Ga. 296, 104 S.E. 2d 457, would seem to be direct authority for appellants’ position, but on careful consideration it appears that after the court had held in the same case, Kessler v. Puritan Chemical Co., 213 Ga. 845, 102 S.E.2d 495, that the plaintiff’s pleadings were insufficient, an amended petition was filed which added nothing of significance to the previous pleading. The court then held that their previous decision became the law of the case. The force of the Kessler case is diminished by reason of the fact that the same court, in Aladdin, Inc. v. Krasnoff, 214 Ga. 519, 105 S.E.2d 730, held:

“Where, as here, the two restrictive covenants are divisible, the first, which is valid, may be enforced even though the second is invalid. Hood v. Legg, 160 Ga. 620(4), 128 S.E. 891; Kessler v. Puritan Chemical Co., 213 Ga. 845, 102 S.E.2d 495. The petition stated a cause of action as to the first covenant, that the employee would not enter a described type of business for a two-year period within a defined territory; and, this being true, it also stated a cause of action against the defendant Bernard Cristal, who, it was alleged, had knowledge of such restrictive covenants and was aiding and abetting the defendant Krasnoff in such violation. Luke v. DuPree, 158 Ga. 590, 124 S.E. 13; National Linen Service Corp. v. Clower, 179 Ga. 136, 175 S.E. 460; Kirshbaum v. Jones, 206 Ga. 192, 56 S.E.2d 484.”

The appellants have attacked certain of the findings of fact filed by the trial court on the ground that they are conclusions of law. Rule 296, Texas Rules of Civil Procedure, provides that conclusions of law and findings of fact be stated separately. This rule is directory only and a failure to follow the provisions of the rule is not reversible error. Rule 434, T.R.C.P.; McAshan v. Cavitt, 149 Tex. 147, 229 S.W.2d 1016. The findings attacked contain the court’s conclusions on mixed' questions of law and fact and may be considered by this Court. Clay v. Richardson, Tex.Civ.App., 290 S.W. 235, error dism.

The final complaint is that certain findings of fact are supported by no evidence. Disregarding the evidence favorable to appellants, and considering only the testimony, together with the implications to be drawn therefrom, supporting the findings of the court, this assignment cannot be sustained.

The judgment of the trial court is affirmed.


text:
    Sidney VAN ZANDT et ux., Appellants, v. FORT WORTH PRESS et al., Appellees.
    No. 16268.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 5, 1962.
    Rehearing Denied Feb. 2, 1962.
    Stone, Parker, Snakard, Friedman & Brown, and John G. Street, Jr., Fort Worth, for appellants.
    Morgan & Shropshire and Cecil A. Morgan, Fort Worth, for appellee Fort Worth Press.
    Irvin W. Shelman, Fort Worth, for ap-pellees Roy J. Hyde and Herman F. Zim-mer.
   RENFRO, Justice.

Appellees’ motion for rehearing is granted and our opinion of December 1, 1961, is hereby set aside.

The Fort Worth Press obtained judgment on sworn account against Roy J. Hyde, Herman F. Zimmer, and Sidney Van Zandt and wife, Lavora Van Zandt. The Van Zandts appeal.

Appellants were owners of the Van Zandt Place Addition. They contracted with Hyde to develop and promote the Addition and sell lots therein. They agreed to spend a reasonable amount for advertising. Hyde employed Zimmer on straight salary to prepare and place advertisements for the overall program. Hyde, through Zimmer, contracted with the Press to run a series of advertisements promoting the Van Zandt Place Addition. The Press ran ads from August 9 to October 25, 1959. The ads were not paid for; hence this suit.

The jury found that Hyde' and Zimmer were agents of the appellants in contracting with the Press, and that the appellants agreed to reimburse Hyde for all advertising so contracted by him with the Press.

The appellants do not attack the findings but contend that the Press cannot recover against them because Zimmer was not licensed under the Texas Real Estate License Act, Art. 6573a, Vernon’s Ann. Tex.C.S., hence the contract between Zim-mer and the Press was void and unenforceable.

The appellant's do not contend that Hyde did not have a proper license under said Act.- Hyde employed Zimmer, whose duty, in so far as this controversy is concerned, was to prepare advertising for the promotion of the Addition in question and see that such ads were inserted in various advertising media. In dealing with the Press he acted in the capacity of an advertising specialist and not as a real estate dealer. His name did not appear in any of the material submitted to the Press and he did not sell or offer to sell real estate. His contract with the Press was n.ot an offer or an attempt to sell real estate to the. Press. The contract with the Press, which was made in behalf of Hyde, was to advertise property which Hyde, appellants and others were to offer for sale. There is no evidence that Zimmer at any time was expected to sell or offer to sell any of the lots owned by appellants. His compensation did npt depend upon sales of the lots but, as heretofore stated, he was paid a straight salary for his services, which services consisted of preparing and submitting copy to the newspaper in behalf of his employer. Zimmer in this suit was a defendant, not a plaintiff seeking to recover compensation growing out of a sale of real estate. The Press, as plaintiff, was not seeking to recover anything by reason of a sale or offer to sell real estate. It simply sued for payment of an advertising debt created by Hyde and Zimmer for the appellants. The contract between Zimmer and the Press in no wise contravened the provisions of the Real Estate License Act.

In our original opinion we held that the Press was not entitled to recover attorney’s fees. A majority of the court has concluded, however, that the evidence is sufficient to support the award of attorney’s fees under provisions of Art. 2226, V.T.C.S., for personal services rendered appellants by employees of the Press. Harris v. Corpus Christi Broadcasting Co., Inc., Tex.Civ.App., 333 S.W.2d 475.

The judgment of the trial court is affirmed.

Affirmed.


author: HUNTER, Presiding Judge.

text:
    BYERS BROS. REAL ESTATE & INSURANCE AGENCY, INC., a Corporation, Respondent, v. H. Howard CAMPBELL and Suburban Realty Company, Inc., a Corporation, Appellants.
    No. 23428.
    Kansas City Court of Appeals. Missouri.
    Dec. 4, 1961.

      Robert E. Coleberd, Hale, Coleberd, Kincaid & Waters, Liberty, for appellants.
    Thaine Q. Blumer, Blumer & Wright, Kansas City, for respondent.
   HUNTER, Presiding Judge.

This is an action for damages by plaintiff-respondent, Byers Brothers Real Estate and Insurance Agency, a corporation, for conspiracy to defraud plaintiff of his $400.-00 earned real estate commission under an exclusive real estate contract, against defendants-appellants, Suburban Realty Company, Inc., a corporation, and its employee, H. Howard Campbell. Plaintiff dismissed with prejudice as to the defendants, Mr. and Mrs. Browning, having compromised and settled its claim with them for $300.00.

On the first trial plaintiff received a verdict for $100.00 actual and'$4,500.00 punitive damages. The trial court sustained defendants’ motion for a new trial and this court affirmed because of the error committed by plaintiff in reading an unsigned deposition to the jury. See, Byers Bros. Real Estate & Ins. Agency, Inc. v. Campbell, Mo.App., 329 S.W.2d 393.

On the second trial plaintiff received a verdict for $100.00 actual and $7,500.00 punitive damages. The trial court entered judgment accordingly, and this second appeal resulted.

The controversy arose as a result of the efforts of the Brownings to sell their house located in Clay County, Missouri. By a written contract dated April 8, 1957, they employed plaintiff company to sell the house agreeing “ * * * that the Owner hereby appoints (plaintiff) as the sole and exclusive Agent for the sale of said property, at a price and terms as follows: ($8,750.00) or at any other price and terms with the consent of the Owner.

“This exclusive agency contract is irrevocable for a period of (30 days) days from the date hereof.

“If the property be sold or otherwise disposed of by anyone while this contract is in effect, the Owner agrees to pay the Agent a commission of Five (5) per cent on the gross amount of the sale, * *

Shortly thereafter (before April 16) and within the 30 day exclusive period defendant Campbell brought a Mr. and Mrs. Hughes to look at the house and they wanted to buy it. Mr. Browning testified Mr. Campbell told the Brownings that he had a buyer who would pay cash and that he had his name on a contract. Mr. Browning then advised Mr. Campbell that he and Mrs. Browning had given the sale of the property exclusively to another company, naming plaintiff company. “Q. So you told Mr. Campbell it was a 30-day exclusive, from April 8, 1957, and Mr. Campbell told you they would have the deeds dated after the expiration of Byers Brothers’ contract? A. Yes, that is what he said.” “ * * * he told me they would postpone the final signing of the contract. * * * Q. After you executed this contract with the Hugheses, (on April 16, 1957) did Byers Brothers send any men by with prospective purchasers? A. Yes. Q. What did you tell them about this sale to the Hughes? A. Well, I didn’t tell them. Q. Did you show the house to the prospective purchasers? A. Yes. This Mr. Campbell told me not to — he told me to go ahead and show it just as little as possible and not to tell. Q. Mr. Campbell said not to tell Byers Brothers of the contract that you signed with the Hughes? A. Yes. * * * Did you ask him if you would have to pay Byers Brothers a commission ? A. He said we wouldn’t.”

Defendant Campbell’s testimony was substantially in accord. He admitted Mr. Browning told him, “Well, Mr. Campbell, we listed the house on an exclusive basis with another realty firm.” He then reported this to Mr. Kuhn, president and principal stockholder of Suburban Realty Company, Inc., and Mr. Kuhn told him to go ahead and sell it anyhow. Mr. Kuhn in his testimony did not deny knowledge of the situation, and admitted he instructed defendant Campbell what to do.

During the 30-day exclusive agency period plaintiff, not knowing that the sale of the house had already been contracted frequently advertised it in the newspaper and on numerous occasions took prospective buyers to the house to show it. On such occasions either Mr. or Mrs. Browning would be present. On one occasion it took a prospective purchaser, Mr. Waters, to Mr. Browning, who first stated he would sell to Mr. Waters upon certain conditions, but upon those conditions being immediately agreed to, refused and said he would sell only on additional conditions to which Mr. Waters also agreed. Then, according to the testimony of Mrs. Waters, he proceeded to discourage and insult Mr. Waters by asking numerous questions. “ * * * he (Browning) started discussing the house, the roof was leaking and I don’t know what all. Then he was very rude to my husband. * * * he asked him where he worked, then he asked how old he was, how much he made, how long he’d been employed with the company, if he bought the property did he think he could keep up the payments. * ⅜ * And several questions like that.” Then Mr. Browning increased his terms again and Mr. Waters was discouraged and did not agree to them. The Brownings never revealed to plaintiff or Mr. Waters that they had already contracted to sell their house to the Hugheses for $8,000.00.

Some two weeks later plaintiff learned of the earlier sale to the Hugheses and that the Brownings had paid a 5% sales commission on the $8,000 sales price to defendant Suburban Realty Company. Defendants refused to pay any commission to plaintiff.

As their first point defendants assert the trial court erred in submitting the issue of punitive damages to the jury for the reason the case relates purely to the breach of a contract, and punitive damages are not recoverable in an action for a breach of contract. The difficulty with the contention is that the action is not one for damages for breach of contract but is premised on the alleged executed conspiracy of the defendants to sell the house under circumstances of secrecy and in such a manner as to defraud plaintiff of the $400.00 real estate commission it was entitled to receive under the terms of the contract. The evidence supports plaintiff’s charge that the defendants with the intent of securing for themselves the commission for the sale of the Brownings’ house conspired with the Brownings to defraud the plaintiff of the commission due plaintiff under the terms of the contract by concealing from plaintiff the fact a sale had been made within the exclusive period through such acts as post-dating various papers, by discouraging other potential buyers produced by plaintiff within the exclusive period, by conspiring to conceal and by concealing from plaintiff the fact that it was entitled to a commission and by receiving plaintiff’s commission and retaining it.

The general subject has been well covered by our Supreme Court in Rosen v. Alside, Inc., Mo., 248 S.W.2d 638, 643. “A civil conspiracy is an agreement or understanding between two or more persons to do an unlawful act, or to use unlawful means to do an act which is lawful. Shaltupsky v. Brown Shoe Co., 350 Mo. 831, 168 S.W.2d 1083; Seegers v. Marx & Haas Clothing Co., 334 Mo. 632, 66 S.W.2d 526. Strictly speaking, there has been no distinct form of writ or action of conspiracy; but the action sounds in tort, and is of the nature of an action on the case upon the wrong done under the conspiracy alleged. 11 Am.Jur., Conspiracy, § 53, p. 584; 15 C.J.S. Conspiracy § 21, pp. 1031-1033. The gist of the action is not the conspiracy, but the wrong done by acts in furtherance of the conspiracy or concerted design resulting in damage to plaintiff. Shaltupsky v. Brown Shoe Co., supra; Medich v. Stippec, 335 Mo. 796, 73 S.W.2d 998; Seegers v. Marx & Haas Clothing Co., supra; Kansas City v. Rathford, 353 Mo. 1130, 186 S.W.2d 570. A combination for the purpose of causing a breach of contract has been held to be an unlawful conspiracy. A person who by conspiring with another or by collusive agreement with him assists him to violate his contract with a third person and to obtain the benefit of that contract for himself commits an actionable wrong.”

As stated in the Rosen case, supra, conspiracy does not ordinarily give rise to a civil action unless something is done pursuant to it, which without the conspiracy, would create a right of action against the defendants generally. In the case before us it is the fraud that occurred. Fraud was practiced upon the plaintiff to its damage. And it is the general rule that punitive damages are recoverable in any action of tort involving the commission of fraud. 15 Amjur., Damages, Sec. 272, page 708. Thus, although it is the general rule that damages for breach of contract are limited to the pecuniary loss sustained, where the breach is occasioned by and but a part of an executed conspiracy to defraud and the action sued on is for the tort — the fraud committed, exemplary damages may ensue. See, Hart v. Midkiff, Mo., 321 S.W.2d 500, 508(13); 25 C.J.S. Damages § 120, p. 716; Prosser, Law of Torts, 2nd Ed., Chapter 22, pp. 744—745; Louis Schlesinger Co. v. Rice, 4 N.J. 169, 72 A.2d 197. We rule the action before us is one of conspiracy to defraud, essentially sounding in tort, and as such may carry with it the assessment of punitive damages.

The remaining reasons defendants give in support of their contention that punitive damages do not lie go in the main to the question of whether a submis-sible case of conspiracy to defraud was made. Most of these were treated in our earlier opinion, Byers Bros. Real Estate & Insurance Agency, Inc. v. Campbell, Mo.App., 329 S.W.2d 393. Since the facts presented on the second trial are substantially the same as those on the first trial, what we there said became the law of the case. The evidence is sufficient to make a submissible case of conspiracy to defraud. It is of no avail to now argue the jury should have come to a different conclusion where the evidence, as here, viewed in its light most favorable to plaintiff, together with the permissible inferences therefrom, supports the verdict. This is especially true of defendants’ contention that there is no evidence to show they did anything to prevent a sale to a prospective purchaser who was ready, able and willing to purchase according to the contract terms. Twice defendants stated their terms to Mr. Waters but upon his agreeing to them the defendants made additional requirements.

Nor is there merit to defendants’ contention that in submitting its Instruction 4A instructing the jury the actual damages were $100.00 any admission by plaintiff that its action was for breach of contract. According to plaintiff’s evidence it was defrauded of its $400.00 commission and other defendants settled their liability by paying $300.00. The instructions, including No. 4A, were drawn on the tort theory of a conspiracy to defraud which was accomplished.

Defendants also charge error in the giving of Instruction No. 1 for the reason the instruction required, among numerous others, the jury to find 2(a) “Brownings avoided the telephone calls of plaintiff’s salesman King, if so,” 2(b) “Brownings avoided an appointment with King and Waters at plaintiff’s office” and 2(c) “that in furtherance of said conspiracy, if so, Brownings discouraged a sale to the Waters by advising them of a leak in the roof” when there was no evidence to support such findings.

Plaintiff’s Instruction No. 1 required in the conjunctive the finding of many facts supportive of its charge of conspiracy to defraud. One portion read “ * * * and that in furtherance of said conspiracy, if any, you find the Brownings first agreed to a sale to the Waters but then refused to consummate such a sale, if so, and that in furtherance of said conspiracy, if so, Brownings discouraged a sale to the Waters by advising them of a leak in the roof, if so, and if you further find plaintiff to have been defrauded of a sales commission and thereby damaged, if you so find. * * ” The circumstances under which the Waters were told of a leak in the roof so large they had to catch the water “in buckets” considered with the evidence that the Brownings had not told King of a leak prior to that time, and King did not see a leak, provide a sufficient evidential basis for a finding that the motive of the Brown-ings in telling of the leak in the manner and to the extent they did was to discourage a sale to the Waters. Fraud and fraudulent motive are sometimes difficult to prove for fraud is seldom perpetrated openly or disclosed to witnesses. Frequently the proof, of necessity, consists of circumstantial evidence and the reasonable inferences therefrom. The evidence and its reasonable inferences amply supported this submission.

Considering 2(b), there was evidence that King, plaintiff’s agent, had arranged for the Brownings to meet with him and Mr. Waters at King’s office. King and Waters waited 30 minutes beyond the appointment time, and then Mr. Browning called and said he couldn’t make it. Defendants argue this is not evidence “Browning avoided an appointment with King and Waters at plaintiff’s office.” This evidence combined with the evidence that defendant Campbell had instructed Browning to show the house as little as possible, and, the other mentioned evidence of conspiracy provides a sufficient basis for the submission of the questioned item. Plaintiff was entitled to submit its instructions not only on the direct evidence but also on the reasonable inferences that it might bear.

As to Point 2(a), it is true that when Mr. Browning was asked, “Q. Did you try to avoid their telephone calls and their contacts?” he answered, “No, we were there all the time.” However, in view of other evidence the jury may not have believed Mr. Browning’s answer. The evidence was that plaintiff’s salesman King tried many times “to contact” Browning after April 16, 19S7, but found it “hard to do”. It was a week after King had arrangements to show Mr. Waters the house that he could contact Mr. Browning. The questioned finding was perhaps a possible inference from the facts. Certainly it was sufficient to premise a finding Browning tried to avoid “their contacts”. Whether such avoidance includes telephone calls is an incidental matter, surplusage and not a finding concerning an essential fact. It was just one item of many submitted in the conjunctive. Assuming there is no direct evidence to support that single item we cannot fairly say its conjunctive submission constituted such error as to necessitate a reversal of the case. While it is well-settled law that it is error to give an instruction which has no evidence to support it, not all errors are prejudicial so as to require a reversal. Cf. Wolf v. Kansas City Tire & Service Co., Mo.App., 257 S.W.2d 408, 414(12). Looking to the entire instruction, as we must, we are convinced that the error was not prejudicial to defendant, but, rather, if anything, unnecessarily added to plaintiff’s burden.

Defendants’ final contention is that the trial court erred in giving plaintiff’s Instruction No. 2, the punitive damage instruction, because (1) it directs the jury “if you find from the evidence that the acts and things done by the defendants were willfully and maliciously done” without hypothesizing such acts and things or referring to other instructions that hypothesized them; and (2) it fails to tell the jury the assessment of punitive damages is discretionary.

Defendants cite Luikart v. Miller, Mo.Sup., 48 S.W.2d 867, 871, where the court in discussing a punitive damage instruction worded differently from that before us stated, “The jury should have been instructed as to what 'act and representations in question’ which they might find were willful and malicious would authorize punitive damages.” We agree that this is the rule. The instructions when read as a whole must clearly instruct the jury on that subject and not give the jury a roving commission to guess what acts or things are meant. While Instruction No. 2 does not within itself hypothesize the acts and things referred to, they were set out in detail in the conjunctive in Instruction No. 1, which closed by directing the jury that if it found them from the evidence “your verdict should be for the plaintiff against both defendants”. The first sentence of Instruction No. 2, stated, “The court instructs the jury that if you find for the plaintiff, and if you further find from the evidence that the acts and things done by the defendants were willfully and maliciously done, then, in addition to the actual damages, you may assess against the defendants by way of punishment for such wrongful acts exemplary or punitive damages. * * * ” It is fundamental that the instructions must be read as a whole. If when read as a whole the instructions are sufficient to make it clear to the jury what is intended by the submission there can be no merit to- the contention that an instruction which did not repeat that which was properly submitted in another instruction is reversibly erroneous. In Hall v. Martindale, Mo.App., 166 S.W.2d 594, 604, in disposing of a contention simi'.ar to the one before us the court stated: “ * * * even though one particular instruction might be looked upon as incomplete if read without regard to the other given instructions, it nevertheless suffices if its partial view is supplemented by the Other instructions so that the whole are consistent and harmonious.” We believe the jury, as reasonable men, understood the acts and things referred to were those detailed in the conjunctive in Instruction No. 1, which the jury was required to find before it could consider any damages under Instruction No. 2. Additionally, Instruction No. 1 itself required a finding that each act of defendant Campbell submitted in the instruction was committed with the intent to defraud plaintiff. Under these circumstances, we find no reversible error. However, the instruction is no model for future use and the problem presented here should not recur. See, Pogue v. Rosegrant, Mo.Sup., 98 S.W.2d 528, 533; Hart v. Midkiff, supra, 321 S.W.2d p. 509.

Finally, we rule Instruction No. 2 in using the word “may” did advise the jury that any allowance of punitive damages was discretionary with the jury, and that it did not have to grant punitive damages. An accepted dictionary definition of “may” is “permission”. Permission to do a thing is not a requirement or order that it be done. In State ex rel. Kennen v. Fidelity & Deposit Co., 94 Mo.App. 184, 67 S.W. 958, 963, the court discussed an instruction on permissive interest. The instruction provided, “ * * * to which you may add 6% interest * * *. ” The court ruled “But it did in fact leave the allowance of interest to the discretion of the jury, and, if the defendants were not satisfied with the instruction, they should have asked for a more definite direction.” Cf. Dickensheet v. Chouteau Mining Co., 200 Mo.App. 150, 202 S.W. 624. We find no merit in defendants’ final contention.

The judgment is affirmed.

All concur.