author: WALTER, Justice.

text:
    HEUSINGER HARDWARE COMPANY, Appellant, v. FIRST NATIONAL BANK OF SAN ANTONIO, Appellee.
    No. 3728.
    Court of Civil Appeals of Texas. Eastland.
    March 8, 1963.
    Rehearing Denied May 10, 1963.

      Bradford F. Miller, San Antonio, for appellant.
    Carl Wright Johnson and Alfred W. Offer, San Antonio, for appellee.
   WALTER, Justice.

Heusinger Hardware Company filed suit against First National Bank of San Antonio for breach of contract. Heusinger alleged that the Bank cashed checks payable to it amounting to $6,627.50, with unauthorized endorsements thereon, Heusinger’s motion for a summary judgment was denied. The court sustained the Bank’s special exceptions to plaintiff’s pleadings. Heusinger declined to amend and the court dismissed its case.

Heusinger has appealed from such order and contends the court erred in refusing to grant its motion for a summary judgment and in sustaining such exceptions.

We must assume, in passing on the sufficiency of the exceptions, that the allegations of fact are true. State v. Clark, 161 Tex. 10, 336 S.W.2d 612, (Supreme Court.) Rule 45, Texas Rules of Civil' Procedure provides: “That an allegation be evidentiary or be . of legal conclusion-shall not be ground for objection when fair notice to the opponent is given by the allegations as a whole.”

In its original petition Heusinger sought recovery on thirty-six checks cashed by ap-pellee Bank signed by its customers on banks other than the appellee. Twenty-three of the checks had been cashed by appellee Bank more than two years prior to the time suit was filed.

A summary of Heusinger’s allegations in its original petition is as follows: It had been a depositor with the Bank for many years. Its arrangement with the Bank was evidenced by a written contract. On or about January 22, 1951, the Bank required it to furnish a resolution designating the officers who were authorized to sign, endorse and cash checks on its behalf. “A duly authenticated copy of said resolution was delivered to the Bank and accepted by the Bank as evidencing the terms of the depository contract between plaintiff and defendant * * A portion of said resolution is as follows:

“RESOLUTION AUTHORIZING SIGNING OF CHECKS ETC.
“TO FIRST NATIONAL BANK OF SAN ANTONIO, SAN ANTONIO, TEXAS
“I, the undersigned, do hereby certify, that the following is a complete, true and correct copy of certain resolutions of the Board of Directors of Heusinger Hardware Company a corporation duly organized and existing under the laws of the State of Texas which resolutions were duly adopted at a duly called meeting of the said Board, held on January 22, 1951, a quorum being present, and are set forth in the minutes of the said meeting; that I am the keeper of the corporate seal and of the minutes and records of this Corporation; and that the said resolutions have not been rescinded or modified.
“ ‘RESOLVED: That the FIRST NATIONAL BANK OF San Antonio be and it is hereby designated as a depositary for the funds of this corporation ; that said funds shall be withdrawn from said depositary on the checks of this corporation, signed by any of the following officers of this corporation ; that all of them are authorized to endorse and cash checks and drafts for and on behalf of this corporation, except as may be otherwise stated herein.
“ ‘(Please type below the names of the Authorized
Signatory Officers and their Titles.)
“Edward W. Heusinger President and Treasurer
“E. F. G. Heusinger Vice-President
“Stephen A. O’Brien Secretary.’ ”

At the request of the Bank, it also furnished specimen signatures of the officers named in the resolution who were the only persons authorized to sign, endorse and cash checks in its behalf. Under the depository contract the Bank was obligated to recognize and honor only the designated persons set out in the resolution in cashing checks payable to it.

The Bank accepted and cashed the thirty-six checks payable to it “without any endorsement thereon by any of the officers of plaintiff duly authorized to endorse and cash checks on behalf of plaintiff. That none of said checks bore the endorsement of plaintiff in any manner or by any person whatsoever. That no endorsement appears on any of said checks and there is no indication thereon as to the identity of the person or persons to whom defendant paid the proceeds of said checks.” None of the cash paid out by the Bank on such checks was received by Heusinger and none of its authorized officers presented the checks to the Bank. Appellee Bank collected from the drawee banks the full amount of said checks. “That the defendant holds said funds in trust for plaintiff, because said funds are the property of plaintiff, as is well known to defendant, and defendant should be required to pay over and deliver said funds to plaintiff, or credit same to plaintiff’s account and enter them as a liability of defendant on plaintiff’s ledger account.”

After the court sustained the Bank’s exception to twenty-three of said checks on the ground that they show as a matter of law to be barred by Article 5526, Vernon’s Ann.Tex.Civ.St. the two year statute of limitation, Heusinger filed its first amended petition and sought recovery on those checks which had been cashed by the Bank within two years prior to the time suit was filed. The allegations in the amended petition are substantially the same as those in the original petition except that in the amended petition it sought recovery on only thirteen checks and pleaded that the Bank acted in bad faith in cashing the checks.

Heusinger contends it had a written contract with the Bank and that Article 5527, V.A.T.C.S., the four year statute of limitation, is applicable. Heusinger also contends the four year statute of limitation as set in motion by Article 342-707 of the Banking Code of 1943 is applicable. Article 5527 provides, in part, “actions for debt where the indebtedness is evidenced by or founded upon any contract in writing” shall be commenced within four years after the cause of action shall have accrued. When a contract of two parties is reduced to writing and signed by one party and accepted by the other it is sufficient to impose upon it the character of a written contract. Clegg v. Brannan, 111 Tex. 367, 234 S.W. 1076, (Supreme Court.)

We have concluded that Heusinger has pleaded a cause of action against the Bank, for an indebtedness founded on a written contract. The resolution which was executed at the request of the Bank provided that Edward W. Heusinger, President and Treasurer, E. F. G. Heusin-ger, Vice-President and Stephen A. O’-Brien, Secretary, were authorized to endorse and cash checks for Heusinger “except as may be otherwise stated herein.” No exception is stated. This provision excluded all persons except the three named and was indirect notice that a fourth individual could not endorse and cash its checks.

The appellee was not the drawee bank on any of the checks. A collecting bank which accepts a check on another bank on a forged or unauthorized endorsement acquires no title thereto and holds the proceeds when collected from the drawee bank for the rightful owner. Fidelity & Deposit Company of Maryland v. Fort Worth National Bank, 65 S.W.2d 276, (Tex. Commission of Appeals.)

Appellant’s point that the court erred in overruling its motion for a summary judgment cannot be sustained. In its motion Heusinger says “The following facts are plead, are established by depositions or admissions and are undisputed.” In its motion we find allegations such as “an official of defendant bank testified * * * ” and “the defendant’s teller Mrs. Carr admitted * * * ”, “the witness D. E. Scholl testified by deposition * * * ”, “the executive vice-president of defendant bank, G. T. Smothers, testified * * We are unable to find in the motion a definite clear allegation setting forth the evidence which is relied upon in support of the motion. The order overruling the motion does not state what evidence or whose depositions were considered in passing on the motion, however, we are assuming in passing on this point that the courl considered all the evidence which was ón file at the time the motion was heard.

In its motion for summary judgment, it was Heusinger’s theory that its bookkeeper, James F.- Jolly, cashed the checks without authority from the company and without delivering the proceeds of said checks .to Heusinger. We find attached to Heusin-ger’s request for admissions . an exhibit ■which is a resolution of Heusinger’s board of directors, the material portions of this exhibit are copied above in this opinion. The Bank admitted that the exhibit was a true copy of the Instrument which had been furnished the Bank on or about January 22, 1951; that the Bank had such resolution in its possession, and that the exhibit contained the only resolution furnished the Bank by Heusinger and that by the terms <of the resolution the bookkeeper, James F. Jolly, was not authorized to endorse and cash checks for Heusinger. There were fifty-seven requests for admissions and the Bank’s reply to those requests not admitted were denied or its reply amounted to no ■ answer.

Stephen A. O’Brien, Secretary-Treasurer .of Heusinger, testified by deposition and was asked the following: “In other words, it is possible that Jolly could have gone to the bank and taken a check, any one of these checks on which suit has been brought, and cashed it, and brought the money back, and put it in the cash box, and left it there for a day or two, and then taken the money out? That is possible, isn’t it, as far as anyone knows, except Jolly?” and he answered -“Yes, sir.” There was other evidence in O’Brien’s deposition which would make a fact issue on the question of whether or not Heusin-ger received the proceeds of these checks.

In its .reply brief Heusinger says - “In any case the Plaintiff is not required to show that it did not receive the proceeds of these- checks, although the evidence does conclusively show this fact. 'The foirden is on the Defendant hank. to show, if it can, that Plaintiff received the proceeds.” In support of this statement Heusinger cites the . case of Pierce Petroleum Corporation v. Guaranty Bond State Bank, Tex.Civ.App., 22 S.W.2d 520, (no writ history.) In the case of Fidelity & Deposit Company of Maryland v. Fort Worth National Bank, 65 S.W.2d 276, (Tex. Commission of Appeals), we find that the Commission of Appeals overruled Pierce Petroleum Corporation v. Guaranty Bond State Bank. Also, we think the cases can be distinguished on the facts. Heusinger pleaded “that none of the cash paid out by defendant on said checks was ever received by plaintiff.” If Heusinger’s bookkeeper cashed these checks at the bank and returned the proceeds of the checks to Heus-inger, Heusinger would have suffered no loss even though the bookkeeper was not authorized to endorse and cash its checks. If he did endorse and cash them and returned the proceeds thereof to its cash box or otherwise, it would not be entitled to a summary judgment against the Bank. Regardless of which party had the burden of proving this material issue, we have concluded that the evidence reveals a contested issue of fact. Heusinger attempted to establish other elements of its case on the hearing for a summary judgment by its officers Heusinger and O’Brien. They were interested witnesses. The testimony of these interested witnesses would no more than raise a fact issue to be determined by the jury. James T. Taylor and Son, Inc. v. Arlington Independent School District, 160 Tex. 617, 335 S.W.2d 371, (Supreme Court). It is the dirty of the court hearing a motion for summary judgment to determine if there are issues of fact to. be tried and not to weigh the evidence and determine its credibility. Any doubt existing concerning the propriety of such motion must be resolved against the moving party. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, (Supreme Court.)

We have held that the court erred in sustaining the Bank’s exceptions to Heusin-ger’s pleadings. The judgment is therefore reversed and the. cause is remanded.


source: Caselaw Access Project

author: DIXON, Chief Justice.

license: Public Domain

text:
    Bobby MORROW et al., Appellants, v. B. F. DANIEL et ux., Appellees.
    No. 16157.
    Court of Civil Appeals of Texas. Dallas.
    April 12, 1963.
    Rehearing Denied May 10, 1963.

      McMahon, Smart, Sprain, Wilson & Camp, and J. M. Lee, Abilene, and Bradford D. Corrigan, Jr., Dallas, for appellants.
    Odeneal & Odeneal, Dallas, for appel-lees.
   DIXON, Chief Justice.

This is an appeal from an order overruling a plea of privilege whereby appellants Stim-O-Stam Enterprises, Inc., and its President and Directors, individually, seek to have a cause of action against them transferred from Dallas County to Taylor County for trial.

Appellees, B. F. Daniel and wife, contend that venue’ properly lies in Dallas County under Subdivisions 7,’ 23 and 29a of Art. 1995, Vernon’s Ann.Civ.St.

FACTS

In September 1960 Stim-O-Stam Enterprises, Inc., was organized with appellants Bobby Morrow, as President and Norman O. Fitzgerald, Myrl Greathouse, Moses McCook and Oliver Jackson as Directors. Its purpose is to market a product “called Stim-O-Stam,” which is said to have the effect of reducing muscle soreness and muscle fatigue, and add endurance for athletes. The corporation has its principal office and domicile in Abilene, Taylor County, Texas. All the individual appellees reside there.

The central figure in the fraudulent acts here involved is one M. W. Nunn, though he is not a party to the suit. The undisputed evidence shows that Nunn perpetrated a fraud against appellees in inducing them to purchase certain shares of corporation stock.

It is conceded by appellees that appellants had no actual knowledge of Nunn’s wrongful conduct until some time after the fraud had been committed. However appellees contend that Nunn’s fraud must be imputed to the Corporation and its President and each of its Directors individually under the principles of respondeat superior, or agency, or negligence.

Nunn was not officially Secretary of the Corporation, but he was acting as Secretary. He was permitted to sell stock in the Corporation and accept payment and sign checks on the Corporation’s bank account alone without the joint signature of anyone. He had sold considerable stock in the Stim-O-Stam Enterprises, Inc. He not only defrauded appellees of $18,000, but defrauded the Corporation itself of at least $40,000.

In March 1961 Nunn several times contacted appellant B. F. Daniel in Dallas for the purpose of selling appellant stock in Stim-O-Stam Enterprises, Inc. On one occasion Bobby Morrow was present. Daniel consulted his lawyer, who determined by inquiry from the proper authorities in Austin that Stim-O-Stam Enterprises, Inc. had been duly incorporated and that Bobby Morrow was President. On March 10, 1961 in Dallas, Texas Nunn presented a financial statement to appellant Daniel showing a net worth of Stim-O-Stam Enterprises, Inc. of more than $60,000, as of February 1, 1961, which statement Nunn swore to before a notary public upon the attorney’s insistence.

Daniel agreed to buy thirty-six shares in Stim-O-Stam Enterprises, Inc. for $18,000. Nunn had certificates with him, but they were not signed by the President, Bobby Morrow. So Nunn departed for Abilene, Texas purportedly to obtain Morrow’s signature to the certificates after which he would return to Dallas to close the deal.

Nunn returned to Abilene but he did not obtain Morrow’s signature to the stock certificates he had shown Daniel and his lawyer. Instead he returned these certificates to Morrow and' told Morrow that Daniel had changed his mind and had decided not to buy the stock. Thereupon Morrow voided the certificates and placed them in the Corporation Stock book. Nunn then forged Morrow’s name on some certificates of stock in a new and entirely different corporation named Stim-O-Stam, Inc.

It must be emphasized that Stim-O-Stam Enterprises, Inc. and Stim-O-Stam, Inc., though their names are similar, are not the same. They are not in any way related. Stim-O-Stam, Inc. was a corporation secretly organized by Nunn without the knowledge of Bobby Morrow or the Directors of Stim-O-Stam Enterprises, Inc. Somehow Nunn obtained a charter for his corporation, which is described by the parties hereto as a “phony” corporation. We shall hereinafter refer to Stim-O-Stam Enterprises, Inc. the true corporation, as Enterprises.

Nunn returned to Dallas and presented Daniel with the certificates of stock in Stim-O-Stam, Inc., the “Phony” corporation. These were the certificates to which Morrow’s name had been forged. Nunn told Daniel he had submitted these certificates to Daniel’s attorney, who had approved them. This was false. Daniel’s attorney had not seen the false certificates. Daniel did not notice the change in the corporate name on the certificates.

Daniel had only $8,000 cash available at the time, so he could not pay the entire $18,000 in cash. But he had a farm in Den-ton County worth $32,800 clear of debt. Nunn informed Daniel that the corporation could accept only cash in payment — it could not accept real estate as whole or part payment for the corporation stock. It was then agreed that Daniel would deed his farm to Nunn at a price of $32,800 payable $10,000 in cash and the execution by Nunn of his note payable to Daniel in the amount of $22,800. The $10,000 cash payment was not actually to be made by Nunn to Daniel. Their agreement was that Nunn, himself out of his personal funds, would add the $10,000 to the $8,000 cash paid by Daniel and the total of $18,000 would then be paid to Enterprises for the shares of stock supposedly purchased by Daniel.

The evidence shows that Daniel agreed to open and did open a bank account for Nunn at Republic National Bank at Dallas, Texas, depositing the $8,000 to Nunn’s credit. Nunn drew $4,000 out of this account at one time and $2,000 at another time, which sums he deposited to the credit of Enterprises, in its bank accounts, one account being in Abilene, Texas, the other in Houston, Texas. But Nunn immediately checked the $6,000 out of Enterprises’ accounts and used the money for his own purposes.

Thus, appellee Daniel, instead of acquiring $18,000 worth of stock in Enterprises was left holding worthless stock in a different and worthless corporation — Stim-O-Stam, Inc. the “phony” corporation.

OPINION

In their first, second, fifth and sixth points on appeal appellants contend that there was no evidence, or there was insufficient evidence to show any misrepresentation by Nunn as to the net worth of Enterprises; and there was no evidence or insufficient evidence to show that any fraud attributable to Enterprises was committed in Dallas County as required by Subd. 23, Art. 1995, V.A.C.S.- in order to retain venue in Dallas County.

' In support of these points appellants claim that the financial statement exhibited to Daniel in Dallas, Texas on March 10, 1961 is true and correct in showing that Enterprises had a net worth of more than $60,000 as of February 6, 1961. This document is a condensed, one page statement, not authenticated except by Nunn’s affidavit.

Appellants’ contention is refuted by the undisputed facts. Sometime after discovery of Nunn’s fraud the parties attempted to compose their differences. Appellants furnished appellee with a financial statement dated April 30, 1961. This statement must be accepted as correct since it was prepared by certified public accountants employed by Enterprises. It was a somewhat detailed statement, being seven pages in length. It covers operations of Enterprises over a period of seven months preceding April 30, 1961. This includes February 6, 1961, the date of the statement presented to .Daniel. The April 30,1961 statement shows a net worth of only $15,145.87.

We have concluded that since the statement of April 30, 1961 must be accepted as correct, it necessarily follows that the statement of February 6, 1961 was false. Considerations of space forbid a detailed comparison of the two statements. Suffice it to say that computations based on corporation stock sales, merchandise sales, inventory, accounts receivable and operational expenses shown by the statement of April 30, 1961, demonstrate conclusively the falsity of the statement of February 6, 1961.

It is not disputed that Nunn was acting within the scope of his authority a a agent for Enterprises when on March 10, 1961 in Dallas he induced Daniel to agree to purchase 36 shares of stock in the latter corporation. The evidence supports a finding that the exhibition of the false statement of February 6, 1961, vouched for by Nunn, was a moving cause in inducing Daniel to so agree. So we must conclude that a fraud was perpetrated by Nunn in Dallas on March 10, 1961 while acting in the course of his employment as agent for Enterprises. Appellant Enterprises’ first, second, fifth and sixth points are overruled.

The substance of appellants’ third and fourth points is that there is no evidence or there is insufficient evidence to show that Nunn was acting as agent for Enterprises, when he exchanged stock certificates and delivered the false certificate to appellee Daniel.

We agree with' appellants. Nunn was acting solely for himself when he substituted the certificates. He misrepresented the facts to his principal. Notice and knowledge of the fraudulent switch in the certificates was not brought home to appellants until after the exchange had taken place. Under the circumstances appellees failed to prove agency with reference to the exchange of the certificates. Our holding finds support in these cases: Smith v. M System Food Stores, 156 Tex. 484, 297 S.W.2d 112; Hilgenberg v. Elam, 145 Tex. 437, 198 S.W. 2d 94; National Life & Accident Ins. Co. v. Ringo, Tex.Civ.App., 137 S.W.2d 828; American National Ins. Co. v. Denke, 128 Tex. 229, 95 S.W.2d 370, 107 A.L.R. 409; Western Weighing & Inspection Bureau v. Armstrong, Tex.Com.App., 288 S.W. 119; Binder v. Millikin, Tex.Civ.App., 201 S.W. 239. Appellants’ third and fourth points are sustained.

Appellee argues that Enterprises benefited from the fraud perpetrated by Nunn, therefore became a party to his fraud. Appellants in their seventh point take the opposite view. It is true that of the $8,000 obtained by Nunn from Daniel, $6,000 was deposited in the bank accounts of Enterprises, part in Abilene and part in Houston, Texas. But there is no evidence that appellants knew of such deposits until later. And Enterprises received no benefit from the deposits, for Nunn immediately checked out the money and used it for his own purposes. We sustain appellants’ seventh point.

In their eighth and ninth points appellants insist that there is no evidence to show that the individual appellants, Morrow, as President of Enterprises, and Fitzgerald, Greathouse, McCook and Jackson, as Directors, committed any fraudulent act or participated in or knew of Nunn’s fraud until after the event.

Appellants’ position is well taken. It is conceded that these individual appellants knew nothing of Nunn’s fraud until after-wards. But appellee says that they were negligent in employing Nunn and allowing him to sign checks on the company’s bank accounts without a joint signature of anyone. We make no findings as to whether this constitutes negligence. We simply say that if it was negligence, said negligence took place in Abilene, Taylor County, and in Harris County, not in Dallas County, Texas. Not having occurred in Dallas County such negligence could not serve to retain venue in Dallas County. Appellants’ eighth and ninth points are sustained.

In their tenth point the individual appellants say that they are not necessary parties to this , cause of action therefore venue as to them cannot be maintained in Dallas County under Subd. 29a. of Art. 1995, V.A.C.S. ■ '

We agree with appellants. . Appellee sought a joint and several judgment against appellants as joint tortfeasors. Under the circumstances the individual appellants are not to be considered necessary parties as contemplated by Subd. 29a, Art. 1995, V.A.C.S. Muncy v. General Motors Corp., Tex.Civ.App., 357 S.W.2d 430; Lewis Boggus Motors, Inc. v. Hill, Tex.Civ.App., 340 S.W.2d 957; Harrington v. North American Union Life Ins. Co., Tex.Civ.App., 308 S.W.2d 580; Union Bus Lines v. Byrd, 142 Tex. 257, 177 S.W.2d 774; Moreland v. Hawley Independent School Dist., 140 Tex. 391, 168 S.W.2d 660; Tarrant v. Walker, 140 Tex. 249, 166 S.W.2d 900. The tenth point of the individual appellants is sustained.

In their eleventh and twelfth points appellants complain that it was error to permit the introduction into evidence of unauthenticated copies of the checks for $4,000 and $2,000 signed by Nunn and deposited to the accounts of Enterprises. Also to permit introduction of an unauthenticatéd bank statement showing the deposit of $8,000 by Daniel in the Republic National Bank of Dallas and the subsequent withdrawal of $6,000 by Nunn.

If the introduction of these instruments was error, it was harmless error. In sustaining appellants’ seventh point we held that Enterprises did not benefit from the $6,000 deposited to its account by Nunn, for he immediately withdrew the money and used it for his own purposes. The eleventh and twelfth points are overruled.

The judgment insofar as it overrules the plea of privilege of Stim-O-Stam Enterprises, Inc. is affirmed. The judgment insofar as it overrules the pleas of privilege of appellants Bobby Morrow, Norman O. Fitzgerald, Myrl Greathouse, Moses Mc-Cook and Oliver Jackson is reversed and that portion of the cause of action is remanded to the trial court with directions to sustain the pleas of privilege of said individual appellants.

Affirmed in part and reversed in part.

      . In oral argument it was stated that Nunn is now in a penitentiary in Arkansas for fraudulent conduct in matters which have no connection with this ease.

      . Statement of February 6, 1961 shows:
      Surplus of February 6, 1961. $10,029.44
      (Surplus could only have come from:
      a. Selling merchandise at a profit, or
      b. Paid in surplus)
      Statement of April 30, 1961 shows:
      a. A loss on operations at April 30, 1961. Assuming that this loss had not all occurred at February 6, 1961, there could have been no profit at that date. Total sales to April 30, 1961, were only $3,606.82. If sales were all profit (which is impossible), the profit could only be . $ 3,606.82
      b. Paid in surplus at April 30, 1961, was only $1,800.00. If this had been paid in at February 6, 1961, the surplus would only be . $ 1,800.00
      Surplus as of February 6, 1961 could not possibly have been more than. $. 5,406.82


author: ARCHER, Chief Justice.

text:
    NORTHEAST TARRANT COUNTY WATER AUTHORITY (formerly Haltom City Water Authority), Appellant, v. BOARD OF WATER ENGINEERS et al., Appellees.
    No. 10900.
    Court of Civil Appeals of Texas. Austin.
    April 24, 1963.
    Rehearing Denied May 15, 1963.

      Garrett & Garrett, Fort Worth, for appellant.
    Will Wilson, Atty. Gen., Houghton Brownlee, Jr., Asst. Atty. Gen., Clark, Thomas, Harris, Denius & Winters, Mary Joe Carroll, Austin, for appellees.
   ARCHER, Chief Justice.

In this suit appellant seeks to set aside the order of May 30, 1960, and to obtain a writ of mandamus requiring the Board of Water Engineers to permit appellant to enter into negotiations for storage space in the Grapevine Reservoir and to reinstate appellant’s application on its docket and hold a hearing thereon.

Appellant, Northeast Tarrant County Water Authority (formerly Haltom City Water Authority) is a “governmental agency and a body politic and corporate” created by Article 8280-173, Vernon’s Ann. Tex.St. The Board of Water Engineers is a public administrative agency, created by legislative action in 1913, for the purpose of conserving the public waters and promoting the most beneficial use thereof. The statutes pertaining to the powers and duties of the Board of Water Engineers are contained in Chapter 1, Title 128 of Revised Civil Statutes. For convenience appellee Board of Water Engineers is sometimes referred to herein as “Board.”

Appellee Trinity River Authority of Texas, sometimes referred to in the record as “intervenor,” is a “governmental agency of the State of Texas and a body politic and corporate”, created by Article 8280-188, V.A.T.S. The territory of T.R.A. includes the territory of appellant. It is a primary purpose of this agency to promote the conservation and beneficial use of the public waters.

Grapevine Reservoir is located in the upper portion of the Trinity River Basin in Tarrant and Denton Counties, Texas. The River and Harbor Act approved March 2, 1945, 59 Stat. 10, provided-for this and other reservoirs as part of a comprehensive plan of improvements for navigation, flood control and allied purposes.

The Board filed a “Plea to the Jurisdiction and in Abatement” in answer to appellant’s suit, and asserted that the action was, in fact, an appeal from the order of August 10, 1959, and not an appeal from the order of May 30, I960, so that the action had not been filed within the 120 day period provided by Section (12) of Article 7477.

Trinity River Authority intervened over the objection of appellant.

The Trial Court carried the pleas' to the jurisdiction and in abatement along with the case, and heard evidence. It entered a “take nothing judgment” denying appellant all relief requested. In its findings of fact and conclusions of law, the Trial Court found certain facts, most of which are not in dispute. The disputed findings are specifically referred to in appellant’s points which follow.

In its Conclusions of Law, the Trial Court found that the case was an appeal from the Order of August 10, 1959, not timely filed, and, in effect, sustained ap-pellee’s Plea to the Jurisdiction.

. The Court further found that mandamus did not lie and that all actions of both appellees were supported by substantial evidence.

The appeal is predicated on ten points and are to the effect that the Trial Court erred in finding that there is an active project of the U. S. Army Corps of Engineers which will utilize all of the navigation storage space in Grapevine Reservoir is contrary to the evidence and the existing state and federal laws concerning priority in appropriation of waters, and in finding that .the intervenor did conduct certain negotiations with the U. S. Army Corps of Engineers into the acquisition by plaintiff of the navigation and sedimentation storage in Grapevine Reservoir * * * is contrary to the undisputed evidence, and that the Court lacked jurisdiction to apply-the Substantial Evidence Rule to a matter within the primary jurisdiction of the Board of Water Engineers and upon which the administrative agency has heard no evidence and made no determination on the merits; in holding that the orders of the Board were based upon substantial evidence.

In holding that the Board had authority to reject an application because of the applicant’s failure to have a contract for storage (extant) space in the reservoir of another, in holding that the action filed by appellant was an appeal from the Board’s orders of August 10, 1959, rather than from the order of May 30, 1960, in holding that mandamus did not lie to compel the action of the Board sought by appellant, because appellant was entitled to affirmative action designating- appellant as an agency to negotiate for storage, and because the Board’s order of August 10, 1959 delegating some of its duties to T.R.A. was void.

We believe that the judgment of the Trial Court was correct.

The Court found that there is, and at all times material to this suit, there was, an existing active project of the U. S. Army Corps of Engineers which will utilize all of the navigation storage space in the Grapevine Reservoir, and we believe that such finding is not contrary to the evidence, 'or the laws concerning priority in appropriation of waters.

Then too, appellant had been designated by the Legislature as an agency authorized to negotiate with Federal authorities for. storage space in - reservoirs, and there was no need for the Board to confer any further authority.

There can be no question but that the appeal is from the order of the Board of Water Engineers dated August 10th, 1959, and that the appeal was not prosecuted within the time fixed in Article 7477, V.A.C.S., Sec. (12) which provides, in part:

“Any person affected by any ruling, order, decision, or other act of the Board, may, within one hundred and twenty (120) days after the date on which such act is performed, or, in case of a ruling, order, or decision, within one hundred and twenty (120) days after the effective date thereof, file a petition in an action to review, set aside, modify, or suspend such ruling, order, decision, or other act. * * * ”

■ There is no dispute as to the facts in this case concerning relevant dates, and the filing by appellant of its application to the Board for a permit to appropriate 48,000 acre feet of water per annum with necessary storage space to be acquired in Grapevine Reservoir. This application was rejected. At the time of such rejection there was pending before the Board the application of the City of Grapevine and the application of Tarrant County Water Control and Improvement District No. I, and both of these applications were rejected.

Appellant, on March 8, 1960, wrote a letter to the Board making two requests, (1) that the rejected application for a permit be reinstated, and (2) that Trinity River Authority’s authority as the Board’s agent be revoked and that appellant be authorized to conduct the negotiations with the Federal authorities. These requests were denied on May 30, 1960. This suit was filed on July 1, 1960 as a purported appeal from the order of May 30, 1960.

It was too late to raise the matters involved in the order of August 10, 1959, because of the time limitation in Article 7477.

The Board does not contend that its plea to jurisdiction extends to and is good as the allegations in appellant’s action for mandamus against it to require it to set aside its previous order designating the Trinity River Authority as the agent to deal with the Federal authority, and to require the Board to designate appellant as the proper agent, but does contend that the limitation period in Article 7477 is jurisdictional.

The Board Rule 205.4 is valid and reasonable. The Board is given rule-making power by Article 7531, which provides that the Board shall adopt rules and regulations, etc.

Rule 205.4 reads:

“205.4 STORAGE IN ANOTHER’S RESERVOIR: A permit is required to appropriate State waters for storage in the reservoir of another person. Permission of the reservoir ■owner must he obtained, as well as a permit to divert and use the water from such reservoir.”

It is reasonable for the Board to require any applicant who wishes to use another’s reservoir to show that he has consent to use such.

Valid rules and regulations passed and promulgated pursuant to statute have the force and effect of legislation, Texarkana & F. S. R. Co. v. Houston Gas & Fuel Co., 121 Tex. 594, 51 S.W.2d 284 (1932), and Article 7531, V.C.S. specifically provides that such rules shall “be binding upon all persons affected by such provisions.”'

The Trial Court properly refused to order by writ of mandamus that the Board revoke its prior order designating the Trinity River Authority as the agency to deal' with Federal authorities for the acquisition of storage space in Grapevine Reservoir.

' We believe that the actions of the Board' and that of the intervenor were reasonably supported by substantial evidence.

The evidence reasonably supports the Trial Court’s finding that there was and is an existing active project of the U. S. Army Corps of Engineers which will utilize all of the navigation storage space in Grapevine Reservoir.

James A. Cotton, a consulting Engineer for Trinity River Authority of Texas, testified in part:

“Q Did you ever discuss this matter with any official of the Corps of Engineers ?
“A Yes, about September, I believe, in 1959, I discussed the matter with Colonel Walter Wells, at that time the District Engineer of the Fort Worth District, who had jurisdiction over the Grapevine project.
“Q That was in September of 1959?
"A To the best of my recollection, yes, sir. It was after the Authority had been designated by the Board of Water Engineers to negotiate with the Corps.
“Q What did Col. Wells tell you?
“A Well, the important things that he told me was, first of all, that the Corps would not under any circumstances consider a contract on the siltation or sedimentation storage. That they would not enter into a contract for that space. I asked him about the navigation storage, and he advised that they would enter into negotiations for that space- as a result of the 1958 Act, I believe, which authorized him to dc so.
He said that in the past they had not been willing to consider a contract on the navigation storage; that they had been requested many times in the past, and always refused, but in view of the 1958 Act, he felt like they would be required to negotiate for the conservation storage. He advised me that any contract that was entered into with the Trinity River Authority, or any one else, on the navigation storage would clearly specify that the use was temporary and at such time as it was determined it was needed for navigation, that the Government would reclaim the storage and use it for navigation purposes.
“Q Now, you are familiar with the Grapevine project, are you not?
“A Yes, I am.
“Q Will you please state the basis of your familiarity with that project?
“A Well, it has got a rather long history. I was employed by the Corps of Engineers at the time the Grapevine project was planned and built. Since 1949 I have been in private practice, and I have made exhaustive studies of that for the Trinity River Authority and for the City of Dallas.
“Q Would you please state for the record the quantities of water and the allocation thereof that are presently in Grapevine Reservoir?
“A At the present time, the allocations, as testified here yesterday, I believe, by Mr. Rady, the City of Dallas owns 85,000 acre feet of the conservation storage. Park Cities have the right to use 50,000 acre feet of the conservation storage, and the City of Grapevine 1,250 acre feet, and there is retained by the Federal Government 25,000 acre feet of the conservation storage for navigation purposes. In addition to this storage, there is a substantial amount of flood control storage — as I recall, some 230,000 acre feet. I think the figure has already been entered into the testimony.
“Q Based upon what Col. Wells told you and your knowledge of the Grapevine Reservoir, will you please state what you reported to Mr. Carpenter as a result of these investigations ?
“A Well, I was forced to advise Mr. Carpenter that I did not consider the Grapevine Reservoir a suitable —or the navigation storage in Grapevine Reservoir under those conditions, a suitable water supply for Haltom City.
* * * * * *
“Q Will you explain a little bit more in detail as to why you considered the supply to be not feasible because of the navigation storage?
“A Well, I believe that Col. Wells correctly advised me when he stated that any contract executed with the Authority or anyone else would have the provision in it that upon a determination by the Corps that the water was needed for navigation purposes, the Government would take the storage back and use it for navigation purposes.
“Q And that constituted an interrupti-ble supply, did it not ?
“A Yes.
“Q Is that suitable for municipal and domestic purposes ?
“A In my judgment, I do not think it is, and that is what I advised Mr. Carpenter, that it was not. Now, you have to realize that there is a navigation project on the Trinity River at this time.
“Q Is that an existing proj ect ?
“A It is an existing project.
“Q That is authorized by Congress?
“A It is authorized by Congress and partly constructed.
“Q What portions of it are constructed ?
“A That portion from the Houston Ship Channel and Galveston Bay to the City of Anahuac. Now, at that time when that part was constructed, about two years ago when that part was constructed— Well, longer than that, maybe three years ago, construction was suspended due to the existence of a salt water problem. The navigation channel had increased the salt content in the Lower Trinity River, which is extensively used for rice irrigation and some industrial use.
“The Corps of Engineers has completed a study, and are recommending to the Congress the authorization and construction of what is called the Wallaceville Project or Salt Water Barrier Project, which would be a low dam near the mouth of the Trinity River, containing locks, and this project was determined to be necessary to eliminate this salt water intrusion problem.
“There is every reason to believe that that project will be constructed in the next few years, but with respect to the use for municipal use of this navigation storage, under a contract where it can be reclaimed for navigation, the problem could be even more serious. At any time we have a period of prolonged low flow in the Trinity River, even under present conditions, there is a salt water intrusion problem which is recognized to be caused certainly to some extent by the navigation project.
“That problem could be lessened or mitigated by the release of water from an upstream reservoir to increase the flow during such periods of time, so in my judgment it would be possible at any time that we have prolonged drouth and extended period of low flow, that this water in Grapevine Reservoir and also that in the Benbrook Reservoir could be called upon for navigation purposes to mitigate the salt water problem in the Lower Trinity River in connection with the navigation project, and certainly it will be called upon as soon as this salt water barrier project is completed.
“Q All right, then, sir, by way of summary, there is an existing navigation project on the Trinity River at the present time, isn’t there ?
“A Yes, sir.
“Q And under present day conditions, it is entirely possible that navigation water would have to be used in connection with that navigation project? '
“A Yes.”

Mr. Cotton’s testimony in this respect was not disputed.

There can be no question but that inter-venor did conduct certain negotiations with the U. S. Army Corps of Engineers for the purpose of securing for plaintiff navigation and sedimentation storage, and the court’s finding to this effect is supported by the record, in the evidence of Mr. Cotton.

We believe that the Trial Court was correct in holding that mandamus did not lie to compel the Board to appoint appellant as its agent to deal with the Federal authorities in negotiating for storage in Grapevine Reservoir.

The selection by the Board of one agency to deal with Federal authorities in federal reservoirs is a discretionary matter which may not be compelled by mandamus.

In Lacy v. State Banking Board, 118 Tex. 91, 11 S.W.2d 496 (Tex.Comm.App., 1928) one statement of the rule is as follows:

“The writ of mandamus is a legal writ applicable alike in legal or equitable proceedings. But 'its issuance is most frequently determined upon equitable principles. (Omitting citations) But whatever the technical nature of the writ, under all the authorities such extraordinary writ will not issue to compel a public officer to perform an act, unless a clear right to such performance in favor of the relator is shown and likewise a correspondingly clear legal duty of such officer to perform is shown. In other words, mandamus to compel the performance of an official act will not issue where the act sought to be commanded involves an official discretion, but only where such act is ministerial in its nature.”

The Board of Water Engineers is not required to make findings of fact in orders rejecting an application to appropriate water.

Article 7503, V.A.C.S., authorizes the Board to reject applications if it finds any one or more of certain conditions to exist.

(1) That there is no unappropriated water in the source of supply;
(2) That existing water rights or vested riparian rights would be impaired ; or
(3) That the proposed use would be detrimental to the public welfare.

Courts will presume all controverted fact issues as found in favor of the order entered, and the Board has not violated any unequivocal, unconditional present duty to appellant. Gulf Land Co. v. Atlantic Refining Co., 134 Tex. 59, 131 S.W.2d 73; Southwestern Greyhound Lines, Inc. v. Railroad Commission, 208 S.W.2d 593 (Tex.Civ.App.) er. ref. N.R.E.

In City of McAllen v. Daniel, 147 Tex. 62, 211 S.W.2d 944, in which the Court held:

“The remedy of mandamus issues only where the duty to be enforced is an unequivocal, unconditional present duty.”

The selection by the Board of intervenor as an agent to negotiate with Federal authorities for the acquisition of storage space was discretionary in nature.

The Trial Court found in findings of fact Nos. 15 and 16, that intervenor was created for the purpose of conservation and beneficial utilization of the storm, flood and unappropriated flow waters of the Trinity River watershed and comprises all of the territory contained within the counties of Dallas, Tarrant, Ellis, Navarro, and Chambers, and portions of the counties of Anderson, Freestone, Henderson, Houston, Kaufman, Leon, Madison, Polk, San Jacinto, Trinity, Walker and Liberty.

“16. The plaintiff’s territorial jurisdiction is limited to the city of Haltom City, Tarrant County, Texas, and annexed territory, if any, within Tarrant County, Texas.”

It has been the policy of the Corps of Engineers of the U. S. Army to call upon the State Board of Water Engineers to designate some single agency with which the Corps shall deal in negotiations concerning storage space in Federal reservoirs. Mr. Cotton, who has had a great deal of experience with the Corps of Engineers, testified as follows:

“Q. Will you state whether or not it is the policy of the Corps of Engineers, if you know, that it will not deal with more than one agency at a time?
“A. That is certainly their preference. They always request if it is at all possible that they be permitted to deal with just one agency. Now, in this particular case, the Corps had been in the past contacted about this navigation storage by the City of Dallas, Irving, Grand Prairie, Arlington, Hal-tom City, the Tarrant County Water District, and perhaps others, and under circumstances of that kind the Corps always asks the Board of Water Engineers to designate an agency with whom it shall deal, and otherwise they feel it would be a presumption on their part that they could be criticized for trying to appropriate water in effect by selecting one agency.”

The judgment of the Trial Court is affirmed.

Affirmed.


author: STEPHENSON, Justice.

text:
    Carmen C. BROWN, Appellant, v. Albert G. VIGEON, Appellee.
    No. 6590.
    Court of Civil Appeals of Texas. Beaumont.
    April 25, 1963.
    Rehearing Denied May 22, 1963.

      Adams & Browne, Beaumont, for appellant.
    Keith, Mehaffy & Weber, Beaumont, for appellee.
   STEPHENSON, Justice.

This is an action for damages arising out of an automobile collision. Judgment was rendered for defendant based upon the answers of the jury to the special issues. The parties will be designated here as they were in the trial court.

The collision occurred in the City of Beaumont at an intersection controlled by a traffic light. The plaintiff was driving in a southerly direction about midway in a funeral procession and defendant was driving in an easterly direction. All of the evidence showed the ’traffic light was red from plaintiff’s standpoint, at the time she entered the intersection.

The jury found: That defendant did not fail to keep a proper lookout. That defendant was not operating his car at an excessive rate of speed. That plaintiff did not run the red light by direction of a police officer, and that such action was a proximate cause of the collision. That plaintiff failed to keep a proper lookout, but that was not a proximate cause of the collision. That the accident was the result of an unavoidable accident.

Plaintiff contends the trial court erred in-refusing to submit special issues relating to “proper control” on the part of the defendant, and argues the jury may have found these issues favorably to the plaintiff. Plaintiff further contends such findings would have been in conflict with the finding of “unavoidable accident”, and therefore plaintiff is entitled to have this case reversed and remanded.

If the court had submitted issues on “proper control” on the part of defendant,, and the jury had found favorably to the plaintiff, we would have the situation involved in Bradford v. Arhelger, 161 Tex. 427, 340 S.W.2d 772, in which case the Supreme Court held there was a fatal conflict. In that case the jury found negligence on the part of both plaintiff and defendant,, as well as unavoidable accident.

The plaintiff plead the following acts of negligence on the part of defendant:

1. In failing to maintain a proper lookout;
2. In failing to have the vehicle which he was operating under proper control;
3. In operating said 1952 Chrysler automobile at an excessive rate of speed under the circumstances then obtaining;
4. In failing to turn the said 1952 Chrysler automobile to the side immediately prior to colliding with the 1953 Plymouth;
5. In failing to apply the brakes of the vehicle in time to stop prior to colliding with plaintiff’s vehicle;
6. In failing to yield the right-of-way;
7. In failing to stop his vehicle for a funeral procession.

Plaintiff requested issues only on “proper lookout” and “excessive speed” which were submitted by the court, and “proper control”, which was refused. Plaintiff contends “proper control” in this case would have included “turning to the side”, “timely application of brakes”, and “failure to yield right-of-way”. Rule 279, Texas Rules of Civil Procedure, requires a trial court to ■submit the controlling issues. Plaintiff having plead “proper control”, if there was evidence raising such issue, then the court erred in not submitting it.

We find the following evidence in this record: The defendant testified that one-half block from the traffic light it was red; that he saw no cars cross the intersection before his light turned green; that 75' to 125' from the intersection his light turned green. A part of the cross-examination of defendant was as follows:

“Q. Now, as you proceeded on Dou-cette, how close to the intersection were you when you realized there was something there and that probably a collision was imminent?
“A. Thirty-five feet or so.
“Q. Thirty-five feet back from the intersection ?
“A. Right. I believe that’s when I applied my brakes.
“Q. Did you apply your brakes?
“A. Yes, sir.”

Defendant further testified that he applied his brakes and laid down 32 feet of skid-marks; that plaintiff’s car was right in the middle of the intersection when his car arrived at the intersection. Further cross-examination of defendant was as follows:

“Q. Was there anything on this vacant lot to have kept you from turning over, driving on the vacant lot to avoid the collision?
“A. A ten-inch curb.
“Q. You mean you would have had to jump a ten-inch curb?
“A. And I would have had to hit— at the time I applied my brakes there was a telephone post on the corner. I don’t remember how many feet to the corner there but there was a telephone post sitting on the corner there.
“Q. But to your right, considering the direction you were travelling, considering there was a vacant lot and nothing on the vacant lot, was there, to keep you from driving on there ?
“A. I would have to answer no to that.”

There is an absence of proof that defendant failed to timely apply his brakes. The evidence showed defendant first saw the plaintiff’s automobile at 35 feet, and his automobile laid down 32 feet of skid-marks. This constitutes no evidence of negligence in this respect. The evidence shows conclusively that plaintiff drove through a red light. The finding of the jury that plaintiff did not run the red light at the direction of a police officer, established the fact that defendant had the right-of-way. The only evidence on the issue of failure to turn to the right came from the defendant. He testified he was prevented from turning to the right by a ten-inch curb and a telephone pole. There is no evidence to contradict this testimony. While the jury would be free to disbelieve the defendant’s testimony, there is no evidence that the opposite of what he said is true, that is, that there was no curb and no telephone pole. Safeway Stores, Inc. v. White, 162 Tex. 473, 348 S.W.2d 162.

The hubs of this case were wheth- ■ er or not defendant was travelling at an excessive rate of speed, and whether he was keeping a proper lookout. Findings on these two issues, speed and lookout, are not necessarily conclusive as to whether a driver had his car under proper control. However, speed may be the only constituent element of proper control, depending upon the circumstances of each case. In this case, we believe that if proper control was in the case, the constituent element was speed. Where the only factual basis for the submission of proper control is the rate of speed, this issue being submitted, the issue of proper control is submitted. Triangle Cab Co. v. Taylor, Tex.Civ.App., 190 S.W.2d 755.

Judgment affirmed.


author: WILSON, Justice.

text:
    Ellen Collene DOUGLAS et vir, Appellants, v. HARTFORD ACCIDENT & INDEMNITY COMPANY, Appellee.
    No. 4133.
    Court of Civil Appeals of Texas. Waco.
    May 2, 1963.
    Rehearing Denied May 16, 1963.
    Davis, Phelps, Liles, Norton & Gray, Will Gray, Houston, for appellants.
    Butler, Binion, Rice & Cook, John L. McConn, Jr., Houston, for appellee.
   WILSON, Justice.

Appellant appeals from judgment on a jury verdict awarding workmen’s compensation for 74 weeks of partial incapacity, the jury having found no total incapacity. His points are that the findings are contrary to the overwhelming preponderance of the evidence, and they are not supported by the evidence.

The chief contention is that since it is undisputed that appellant sustained an injury by lifting a tray of dishes on the date the jury found partial incapacity began, and since it is undisputed she was hospitalized in pelvic traction during the succeeding ten days, she was totally incapacitated at least for that period; and the jury was not authorized to find otherwise.

There was evidence to show appellant was sent to the hospital by a physician who had treated her for many years; that prior injuries and unrelated physical conditions had .required his treatment of her for back pain such as she complained of on the trial, and for which he had previously prescribed traction. There was evidence from which the jury was authorized to believe that the injury made the basis for the present action was not the consideration upon which the doctor prescribed traction thereafter, although the jury found her prior injuries and condition were not the sole cause of her partial incapacity. There were no obj ections to the charge which included in the definition of total incapacity the element of ability to procure and retain employment; and the total incapacity issue included the element of producing cause. Under the evidence presented the jury was not required to find any period of total incapacity. Hood v. Texas Indemnity Ins. Co., 146 Tex. 522, 209 S.W.2d 345, syl. 3.

There was evidence which would have authorized the jury to find a greater extent and duration of incapacity; there was evidence which would have supported lesser findings.

We have examined appellants’ other points with the entire record, and the points are overruled.

Affirmed.


text:
    Woodrow W. PHILLIPS et al., Appellants, v. J. Howard DINWIDDIE, d/b/a Dinwiddie Distributing Service, Appellee.
    No. 4121.
    Court of Civil Appeals of Texas. Waco.
    April 25, 1963.
    Rehearing Denied May 16, 1963.
    Joe Moss, Houston, for appellants.
    Solito, Vetrano & Murr, Peter S. Solito, Houston, for appellee.
   WILSON, Justice.

Defendants appeal from a temporary injunction restraining them from engaging in business in competition with plaintiff, who operated a circular and hand-bill distribution service in Houston. Defendants had been employed by plaintiff as field supervisors under a written contract which provided that they would not engage in nor solicit advertising for a similar competing business during a limited time within Houston and other specified cities after their employment terminated. There is evidence to show that within a week after their employment by plaintiff terminated they were engaged in the same business, performing “substantially the same duties,” as employees of plaintiff’s competitor, also a former employee of plaintiff.

Defendants contend the trial court abused its discretion in granting the temporary injunction because the proof failed to show the territorial area in which defendants were performing any prohibited services for their new employer, or that they were performing any prohibited services for him, or that they were performing any services in Houston. It is said that although there was evidence defendants had made “good will” calls on, or solicited business for their new employer from plaintiff’s customers at specified addresses and named streets, the evidence failed to show these locations were in Houston or other prohibited areas.

Although the streets and addresses where defendants engaged in competitive business are not identified as being in Houston, Texas, their business calling cards stated the location of their new employer’s distributing service was located in Houston. One defendant testified that “after you have been at this a long time, and after a fellow gets as good at it as you are, there are lots of territories you can work without ever looking at a map in Houston,” if he goes over it enough times. Defendants admitted they used the same route patterns they had used while employed by plaintiff, and that some of the stores they are now delivering for were formerly plaintiff’s customers. Plaintiff's competitor testified his business was located-in Houston, and “it would help to know the city” in directing defendants, for them “to know where to go in the City of Houston,” without reading the map. This competitor, defendants’ present employer, left plaintiff’s employment a few months before defendants’ employment ceased.

Defendants state that they were merely “driving a truck” for plaintiff’s competitor, and should not be enjoined from pursuing such gainful occupation. The court did not restrain defendants from driving a truck. He enjoined them from engaging in a competing business, whether it be by transporting circulars for distribution on a competitor’s truck as field supervisors of distribution crews, or otherwise. Although defendants described themselves as "truck drivers” at the hearing, their own admissions show this lacked much of being the extent of their activities. Plaintiff was required only to adduce evidence tending to show a probable right and a probable injury, and no clear abuse of discretion is shown. Janus Films, Inc. v. City of Ft. Worth, Tex., 358 S.W.2d 589; Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517, 519. Appellants’ points are overruled. Affirmed.


text:
    AETNA LIFE INSURANCE COMPANY, Appellant, v. Mrs. Margaret S. EILERS, Appellee.
    No. 4136.
    Court of Civil Appeals of Texas at Waco.
    April 25, 1963.
    Rehearing Denied May 16, 1963.

      Fouts, Moore, Williams & Caldwell, Joe E. Coleman, Houston, for appellant.
    Nowlin Randolph, Houston, for appellee.
   WILSON, Justice.

Insurer complains of order overruling' its motion for summary judgment and sustaining that of the beneficiary, resulting in judgment for the sum alleged to be due on a life insurance policy, 12% damages- and attorney’s fees. The initial question is-whether the policy permitted insurer to include interest “accrued”, but not yet “due and payable”, in computing insured’s indebtedness secured by the policy so as to reduce the amount available for an automatic premium loan.

Insurer issued a $4000 policy of ordinary life insurance dated December 5, 1946. A premium of $27.72 was payable quarterly thereafter. The premium due September 5, 1961 was never paid. The effective automatic extended insurance clause provided that on default in payment of premium the insurance would be continued automatically as extended term insurance from the premium due date for the sum insured during the period fixed in a schedule, for the corresponding cash or loan value; “except that if there is any indebtedness against the policy the extended term insurance shall be for the sum insured less the indebtedness and for such a period as the cash value less the indebtedness will purchase.”

The effective automatic premium loan clause provided that the amount of any premium not paid before the end of the grace period would automatically be loaned by the company in payment of such premium and charged as an indebtedness secured by the policy “subject to interest from the end of the grace period on the same terms as prescribed for loans”, if total indebtedness did not exceed the tabulated policy loan value. If loan value was insufficient, the automatic extended term insurance provision became applicable.

The material interest terms prescribed for loans, referred to in the foregoing clause, were:

“The loan shall bear interest at the rate of five per cent, per annum from the date the loan is granted and charged on the books of the Company. Interest shall accrue from day to day and shall become a part of the indebtedness as and when it accrues. Interest shall be due and payable at the end of each policy year except that if any amount of indebtedness is repaid, or otherwise liquidated, on a date other than the anniversary date of the policy, interest which has accrued for the portion of the current policy year on such amount shall immediately be due and payable.”

On December 5, 1960 the total indebtedness against the policy was $866.90. At the end of the next grace period thereafter an automatic quarterly premium loan of $27.72 was made, as had been consistently done for several years. When the premium payable September 5, 1961 became in default, the 1961 interest accrued on the indebtedness to the end of the grace period, October 6, added to the principal indebtedness, made the unconsumed cash or loan value balance insufficient to meet the $27.72 September premium due. The insurer applied the remaining balance to purchase of extended insurance for the term from September 5 to November 18, 1961. Insured died November 21, 1961, the extended insurance having terminated three days before. The beneficiary says that although interest had “accrued” as the interest provisions for loans in the policy says, it was not then “due and payable” under that clause; and the insurer was not permitted to collect it in advance before the policy anniversary date of December 5 so as to reduce the available automatic premium loan value below $27.72 required to pay the quarterly premium due.

Art. 3.44, Insurance Code, Vernon’s Ann.Tex.Civ.St., requires policies of life insurance to provide that the insurer may deduct from the loan value any “existing indebtedness”, and that “existing indebtedness to the company on the policy” shall be deducted from the reserve in establishing the net value of a stipulated form of insurance in event of default in premium payment. The insurer’s policy did this. It provided interest should accrue from day to day and should “become part of the indebtedness as and when it accrues Having become part of such indebtedness when it accrued, the fact that the interest had not matured by being “due and payable” did not prevent its application as indebtedness under the extended insurance and automatic premium loan provisions, and in our opinion it was properly included in computing the amount of indebtedness.

Appellee cites no authority for the position the accrued interest was not “indebtedness” until the anniversary date, and we have found none, construing similar policy provisions. The Supreme Courts of Massachusetts, Georgia and Alabama have decided the precise question as we do in Reynolds v. Nothwestern Mut. Life Ins. Co., 298 Mass. 208, 10 N.E.2d 70, 73, 113 A.L.R. 603; Phoenix Mut. Life Ins. Co. v. Feeney, 193 Ga. 836, 20 S.E.2d 256; Equitable Life Assur. Soc. v. Brandt, 240 Ala. 260, 198 So. 595, 603, 134 A.L.R. 555. See also Sims v. Penn Mut. Life Ins. Co., 89 Ga.App. 650, 80 S.E.2d 499, 501; Baker v. Equitable Life Assur. Soc., 288 N.Y. 87, 41 N.E.2d 471, 472; 6 Couch, Insurance 2d, Sec. 32.249, pp. 481, 482; 3 Appleman, Insurance, Sec. 1936, p. 568.

Neither party has cited Walsh v. Aetna Life Ins. Co., 352 Pa. 429, 43 A.2d 102, 160 A.L.R. 620 (1945). It would militate against insurer and support appellee’s contention, except for the fact the policy there omitted the very provision which makes the case inapplicable, and which distinguishes it from the present contract. Aetna there urged that appellee’s position here would compel it to carry an unsecured loan. The court replied, “the company, experienced in such matters, should have provided for such a contingency' in clear and unequivocal language or required the interest to be paid in advance.” Texas Insurance Code, Art.. 3.44, Sec. 6 requires the policy shall contain a provision' that, in computing “existing indebtedness” the company “may collect interest in advance” on the loan to the end of the policy year. Insurer did not take full advantage of this statutory authorization in the present policy, but it did do exactly what the Pennsylvania court suggested in the quoted reply : it provided interest should accrue from day to day and become a part of the indebtedness as and when it accrues, nothing impliedly similar to which was in the Walsh case policy.

Appellee urges that insurer waived the provision that interest became part of the indebtedness as it accrued because its loan records show interest entries only on December 5, the anniversary date, for each of the preceding eleven years. So long as the policy reserve was adequate there was no necessity for, or accounting propriety in doing otherwise. The contingency that total indebtedness equalled or exceeded and exhausted the net loan value, after' deducting an unpaid premium, had never previously arisen. There was no waiver. Waiver could not exist until an occasion arose for intentional relinquishment of a known right. Ford v. Culbertson, 158 Tex. 124, 308 S.W.2d 855, 865; Texas & Pacific Ry. Co. v. Wood, 145 Tex. 534, 199 S.W.2d 652.

Appellee seeks to defend the judgment on the ground appellant failed to notify insured it was taking action which would result in automatic extended term insurance which would terminate November 18, 1961. If notice was necessary, the record presented might be said to make an issue of fact as to whether it was given, thus precluding summary judgment for ap-pellee in any event. Insurer’s affidavits attached copies of correspondence shown to have been written and mailed to insured on August 1, 1961 calling attention to the fact that there would not be sufficient value to pay the September 5th premium by loan, and that remittance would be necessary before end of the grace period to keep the policy in force; and on October 18, enclosing reinstatement application forms. Appellee’s affidavit recited she “had no recollection of seeing any envelopes” from insurer other than the September 5th premium notice, and that “to the best of my knowledge no further correspondence was received”, until the time of insured’s death.

We find no requirement in the policy, however, for such notice. The only notice requirement relates to non-payment of interest, providing it “shall render the policy null and void thirty-one days after notice shall have been mailed.” Appellee cites cases, here inapplicable, concerning requirements for notice of cancellation, but none supporting the contention that a notice default in premium payment would effect automatic extended term insurance was required. The contract itself made the extended term available “automatically”, that is, self-operative at a predetermined point agreed upon. Art. 3.44, Insurance Code, requires the policy to secure a stipulated form of insurance in event of default in premium payment; to stipulate the amount, term and method of computing reserve; and to provide that in default of premium “the value of the policy shall be applied to the purchase of other insurances.” This the policy did.

The brief time intervening between termination of automatic extended coverage and insured’s death makes this case one in which we confess caution approaching reluctance in yielding to the compulsion of the unambiguous terms of the contract, the statute, and decided cases. The same result must follow here as if the intervening time had been weeks or months instead of days, for identical principles must be applied to such cases in the future. Although no authority is cited which supports appellee’s notice theory, we have done extensive research. It was thought American Nat. Ins. v. Brown, 58 Ga.App. 70, 197 S. E. 658 (1938), discussed 129 A.L.R. 1108, might afford analogous authority for ap-pellee’s view. We find, however, the Supreme Court of Georgia directly overruled that case in General American Life Ins. Co. v. Butts, 193 Ga. 350, 18 S.E.2d 542, 545, 140 A.L.R. 677 (1942), holding in the same situation that since there was no policy provision requiring notice, the insurer had no such obligation. So held the Supreme Court of Tennessee in Mills v. National Life Ins. Co., 136 Tenn. 350, 189 S.W. 691; and the Court of Appeals of Georgia in Sims v. Penn Mut. Life Ins. Co., 89 Ga.App. 650, 80 S.E.2d 499, 500.

Since the judgment must be reversed, appellant’s other points which, if sustained, would require remand, become immaterial. We are directed by Rule 434, Texas Rules of Civil Procedure to render the judgment which should have been rendered on appellant’s motion for summary judgment, that plaintiff take nothing, since both parties made such motions. Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396, 400; Gulf, Colorado & Santa Fe Ry. Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492, 496; Catholic Charities, etc. v. Harper, 161 Tex. 21, 337 S.W.2d 111, 115. Reversed and rendered.


author: BROADDUS, Presiding Judge.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION, Respondent, v. Lelia Mae ANDERSON and George Anderson, Appellants.
    No. 23650.
    Kansas City Court of Appeals. Missouri.
    April 1, 1963.
    Harry T. Limerick, Jr., James A. McGee, Columbia, for appellant.
    Robert L. Hyder, Samuel C. Ebling, Jefferson City, for respondent.
   BROADDUS, Presiding Judge.

This is a proceeding brought by the State Highway Commission, the respondent, to condemn certain land belonging to defendants for road purposes. The suit was instituted in the Circuit Court of Boone County on February 6, 1961. Commissioners were appointed by the court to view the property and to assess net damages to the defendants. On February 20, 1961, the Commissioners reported the net damages to defendants at $7325. Exceptions were duly filed to this report and the cause was tried before a jury resulting in a verdict for $3775. Judgment was entered on said verdict. A motion for new trial was duly filed by defendants and overruled by the trial court. This appeal followed.

In this proceeding the State Highway Commission sought to condemn 4.85 acres of land from a 40 acre tract belonging to the appellants located about six miles east of Columbia on Highway 40 at the intersection of Route Z, being the principal intersection between Columbia and Kingdom City. The appellants’ 40 acres was bounded on the south by old Highway 40, a concrete pavement, and on the west by a blacktop known as Highway Z connecting the highway with Centralia and towns to the north. The appellants had access the entire length of their property on the south on old Highway 40 and the entire length of their property on the west on Highway Z. The 40 acres lies in a level or very gently rolling area. The proposed condemnation condemns the property in the southwest corner of appellants’ 40 acre tract beginning about 250 feet west of the east boundary line on the south side of appellants’ property, westward to Route Z and northward along Route Z to within about 250 feet of the north boundary line of said tract, beginning as a narrow strip, increasing in width rounding the southwest corner and then decreasing in width along Route Z, comprising 4.85 acres. The new highway being a limited access highway, the condemnation proceeding took from the appellants the right of ingress and egress to the highway of all the south boundary line lying along old Highway 40, along their 40 acre tract except the east 300 feet and all access along Route Z except approximately the north 250 feet. An overpass was built at the intersection of Route Z and proposed Highway 70 with the accompanying ramps which interfered with the view of the property from the new highway.

The appellants’ witnesses testified that the appellants’ property was ideally situated for commercial purposes; that the property was ideally located for a motel or large filling station or for a subdivision into acre tracts; that they had inquiries from people wanting just such tracts for development in this area. On cross-examination one of the witnesses testified that the Shell Oil Company was locating in the territory; that all four of appellants’ witnesses were persons engaged in the sale of rural properties for years. The appellant George Anderson testified on cross-examination that he had been offered $4000 for two acres in the southwest corner.

The appellants’ witnesses testified as to the value of the property before condemnation as follows: Appellant George Anderson $21,000 or $22,000, Earl Sprague $18,-000, Berryman Allen $20,000, Maurice Brown $19,000, George Peak $20,000. As to the value after the condemnation of the approximate 35 acres left, the appellant George Anderson testified $10,000, Earl Sprague testified $7500 to $8000, Berryman Allen $10,000, Maurice Brown $7500, George Peak $12,675. The difference in these figures ranged from $7325 to $11,000 net damage. All of the witnesses testified that after the condemnation that appellants’ land could not be sold as commercial property.

The respondent’s witnesses each testified that they did not consider this property as commercial property and considered it only as farm land. The witnesses for the respondent testified as to the value before the condemnation as follows: James Tucker at $10,775, Harry Gentry $10,825, Jack Blay-lock $11,375. They testified that after the condemnation the approximate 35 acres would be worth, James Tucker $8550, Harry Gentry $8525, Jack Blaylock $9275, making a net damage of from $2100 to $2300. Mr. Tucker further testified that he appraised for loan companies and that he had never sold a farm in Boone County. Mr. Gentry testified that he principally dealt with city property; that he had sold no farms during the past year. Jack Blay-lock testified that he appraised for the State Highway Commission; that he had been a real estate broker for a little over a year and he had sold no farms in the past year.

Both appellants’ and respondent’s witnesses testified that they had no listings east of Columbia to the Callaway County line along Highway 40. Part of the witnesses testified that they had buyers for commercial property in this vicinity but could obtain no listings east of Columbia along Highway 40 to Route Z or from Route Z to the Callaway County line.

The evidence shows the sale in February 1959 of an 80 acre farm for $27,500 a half mile east of the Anderson property which had no access to Highway 40 and was not on intersecting highways. Evidence was offered concerning the Tekotte farm sold in 1960 for $30,000 containing 141.17 acres located on a gravel road ¾ of a mile south of the junction of Highway 40 and Route Z. Also evidence as to the Rene property containing 68.45 acres sold January 28, 1957 located on the northeast corner of gravel road and Highway 40 for $23,000.

Appellants’ initial complaint is that the trial court erred in overruling their motion for new trial on the ground that the verdict was against the weight of the evidence. The assignment lacks merit. As stated in the case of Roush v. Alkire Truck Lines, Inc., 245 S.W.2d 8, 10 (Mo.Sup.):

“We do not weigh the evidence in this action. We determine only whether the trial court abused its discretion in overruling plaintiff’s motion for new trial on the ground of inadequacy of verdict.”

And in Romandel v. Kansas City Public Service Co., Mo.Sup., 254 S.W.2d 585, 590, our Supreme Court also stated:

“But, apart from those facts, an assignment that the verdict is against the weight of the evidence is a ‘matter to be decided solely by the trial court.’ Stokes v. Wabash R. Co., 355 Mo. 602, 197 S.W.2d 304, 306 [2].”

The appellants rely upon the case of State ex rel. and to Use of Piepmeier v. Camren, 226 Mo.App. 100, 41 S.W.2d 902. In that case the trial court filed a memorandum opinion indicating that it felt that the motion for new trial should be sustained, but overruled it based upon the erroneous assumption that the trial court did not have the authority to grant a new trial on the basis that the verdict was excessive. The appellate court properly held that the trial court erred in overruling the motion. This is certainly not the situation in the case at bar.

The other two cases cited by appellants deal with situations wherein the trial court sustained a motion for new trial.

There has been no showing of any abuse of discretion on the part of the trial court in this case.

The primary argument advanced by appellants, that the verdict is against the weight of the evidence, is founded upon the wide divergence in the expert opinions propounded by the witnesses for the respective parties. In Missouri Public Service Co. v. Hunt, Mo.App., 274 S.W.2d 27, 31, the plaintiff sought to condemn a right-of-way for an electric transmission line over a strip of defendant’s vacant property. The-expert witnesses for the landowner testified to net damages ranging from $6583.33 to' $9187.50. The expert witnesses for the-condemnor testified to net damages ranging: from $250 to $350. The jury returned a verdict in the sum of $1250. In ruling on the point that the verdict of the jury was grossly inadequate this court stated:

“The final point urged by the defendants is that the verdict of the jury is grossly inadequate. They point out the great disparity between the estimates of the expert witnesses of plaintiff and those of the defendants. Such disparity is not a sound reason for an appellate court to disturb the verdict in a condemnation case. One qualified witness to the larger estimate is substantial evidence. Empire District Electric Co. v. Johnston, [241 Mo.App. 759] 268 S.W.2d 78; City of St. Louis v. Buselaki, [336 Mo. 693, 80 S.W.2d 853] supra. We find no grounds that would justify our interference with the jury’s determination of the amount of damages.”

Also, in Empire District Electric Company v. Johnston, 241 Mo.App. 759, 268 S.W.2d 78, 83, the Springfield Court of Appeals stated:

“Plaintiff’s final assignment is that the verdict was excessive and that a remittitur should be ordered. Although ‘the appellate courts may in a proper case, interfere where the damages in condemnation are grossly excessive or inadequate’, City of St. Louis v. Buselaki, 336 Mo. 693, 80 S.W.2d 853, 857 (9), it has been held repeatedly that an award of damages supported by substantial evidence will not be disturbed. City of St. Louis v. Schopp, 325 Mo. 480, 30 S.W.2d 733, 734(1); Prairie Pipe Line Company v. Shipp, [305 Mo. 63] supra, 267 S.W. [647] loc. cit. 650 (4), and cases there cited. A judgment in a condemnation proceeding should not be disturbed ‘because of a disparity in the testimony of witnesses or even because of a seeming preponderance of the evidence one way or another’, City of St. Louis v. Gerhart Realty Co., 328 Mo. 103, 40 S.W.2d 661, 665(12); and, it has been held specifically that the opinion of one qualified witness as to the extent of damage ‘would constitute substantial evidence’. City of St. Louis v. Buselaki, supra, 80 S.W.2d loc. cit. 857(7).”

Although appellants raised no objection to the qualifications of respondent’s witnesses they state in their brief that these witnesses were uninformed and did not know the value of the property involved. Respondent’s witnesses were experienced real estate brokers, two resided in Columbia, the other in Fulton. These three gentlemen gave an accurate description of appellants’ farm indicating its terrain, the amount of tillable land and improvements. They testified to comparable sales of property in the area which they felt indicated an approximate value of $200 per acre for appellants’ farm; that there was no commercial development and no demand for commercial land in the area of appellants’ farm, and for that reason they had considered the highest and best use of appellants’ tract to be farm land, as it had been consistently used for the previous 20 years. They further testified as to the exact basis of arriving at their valuation before and after the taking and each explained in detail the factors taken into account in determining the final damage.

Certainly appellants cannot seriously contend that the verdict was not supported by substantial evidence by the mere fact that the verdict was approximately $1000 higher than the evidence of respondent, while being approximately $4000 less than the lowest appraisal of the appellants. Surely a jury does not have to return a verdict in the exact amount of the appraisals presented by the landowner or the con-demnor.

Appellants also contend that the trial court committed error in refusing their offer to prove by one of the jurors that the amount of the verdict was determined by the quotient method. It is the settled rule in this State that a juror will not be permitted to testify as to what transpired in the jury room in making up the verdict. McFarland v. Bellows, 49 Mo. 311; Philips v. Steward, 69 Mo. 149.

Finally appellants assert that it was error to give Instruction No. 2 on behalf of respondent. This identical instruction has been approved by our appellate courts in the following cases: State ex rel. State Highway Commission of Mo. v. Hartman, 226 Mo.App. 604, 44 S.W.2d 169, 171, 172; State ex rel. State Highway Commission v. Stoddard Gin Co., Mo.App., 62 S.W.2d 940, 941; State ex rel. State Highway Commission v. Farmer’s Estate, Mo.App., 68 S.W.2d 721, 724; State ex rel. State Highway Commission v. Lindley, Mo.App., 96 S.W.2d 1065, 1073.

Finding no error in the transcript prejudicial to appellants, the judgment is affirmed.

All concur.