author: BARRON, Justice.

text:
    GRAND LEADER DRY GOODS COMPANY, Inc., Appellant, v. Kathryn M. CAVENESS et vir, Appellees.
    No. 61.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Jan. 24, 1968.
    Rehearing Denied Feb. 21, 1968.

      E. R. Berry, Berry & Smither, Huntsville, for appellant.
    Richard L. Stone, Stone & Stone, Jacksonville, for appellees.
   BARRON, Justice.

This is a damage suit filed by Kathryn M. Caveness and husband, Buster Caveness, against Grand Leader Dry Goods Company, Inc., for injuries sustained by Mrs. Caveness by reason of the alleged negligence of the defendant, on April 21, 1965. On a jury verdict on special issues, the trial court rendered judgment for plaintiffs for $9,070.00.

The jury found: Mrs. Caveness did sustain such injury; Mrs. Bradshaw, a store employee, was negligent in falling over a filing cabinet drawer in the store; in leaving the drawer pulled out the defendant was negligent; the filing cabinet was located where it could not be used with safety and such was negligence; defendant failed to furnish plaintiff a safe place to work and as such was negligent; plaintiff’s injuries were not the result of an unavoidable accident. The jury also found that each act of negligence was a proximate cause of the injuries sustained by Mrs. Caveness.

The facts are somewhat unusual. Mrs. Caveness and Mrs. Bradshaw were each saleswomen or clerks employed by and working in Grand Leader Dry Goods Company, Inc. store at Huntsville, Texas. For several years prior to the accident, the store owned and used a display counter near the wall of the store, behind which was a filing cabinet near the end of the counter. The evidence shows that the filing cabinet was approximately 18½ inches in back of the display counter when the drawers of the cabinet were closed, leaving only a narrow space through which employees could pass while working. On the day of the accident, the top drawer of the cabinet had been left open causing the passageway to become almost blocked. The top of the drawer left open was approximately 2⅝⅛ feet from the floor. It had been left open either by a janitor in the employ of the store or by Mrs. Bradshaw herself, who seldom used the filing cabinet but who had used it that day. Mrs. Bradshaw, while walking in back of the display counter a short time later, suddenly fell over the open filing cabinet. Her leg was caught between the top drawer and the display counter, causing both legs to be pinned or wedged. The drawer, or the drawer and the counter, severely cut her leg and apparently severed an artery causing profuse bleeding. While Mrs. Bradshaw was apparently helpless and her legs caught between the cabinet and the counter, and while she was lying face-up over the top drawer, Mrs. Caveness ran to help her. From plaintiff’s testimony, the only thought she had was to try to move the display counter, which was a heavy one, weighing several hundred pounds. She did succeed in moving the counter enough to free Mrs. Bradshaw from the wedged condition she was in, but in doing so, she severely injured her back, which in turn caused pain in her hip and the right leg. Extended hospitalization and treatment were required. Emergency treatment was given to Mrs. Bradshaw and she was immediately taken to the hospital. No attack is made upon the amount of damages sustained by Mrs. Caveness and found by the jury.

The evidence shows that Mrs. Caveness, prior to the accident, had discussed the matter of the narrow space caused by the filing cabinet, and that she had told the manager of the store, Louie Cohn, that the counter was too close to the wall for safety.

The record further shows that the defendant store was within the provisions of the Workmen’s Compensation Act and that it had about five employees, but that the defendant had no policy of Workmen’s Compensation. Therefore, under the terms of Art. 8306, Secs. 1 and 4, defendant was deprived of its defenses such as contributory negligence, negligence of a fellow servant and assumed risk. Sears Roebuck & Co. v. Robinson, 154 Tex. 336, 280 S.W.2d 238 (Tex.Sup.); Grace Mfg. Co. v. Arp, 311 S.W.2d 278, 282 (Tex.Civ.App.), writ ref., n. r. e.

The defendant-appellant attacks the judgment of the trial court and the findings of the jury (omitting certain points of error on assumed risk and the fellow servant rule), on the grounds that the jury findings of negligence are not sustained by the evidence and that the jury was guilty of misconduct. We take the first point regarding negligence to mean and to include proximate cause since defendant argues the point both ways. We believe it is clear enough that defendant contends that as a matter of law, the injuries to Mrs. Caveness could not have been proximately caused by the negligence of the defendant as found by the jury.

The law is settled that the evidence must show negligence and must also show that such negligence was a proximate and not a remote cause of the resulting injuries. The evidence must justify the conclusion that such injury was the natural and probable result thereof. In order to justify such a conclusion, the evidence must justify a finding that the party committing the negligent act or acts ought to have foreseen the consequences thereof in the light of the attendant circumstances. In spite of the above rule of law, it is not required that the particular accident complained of should have been foreseen. All that is required is that the injury be of such a general character as might reasonably have been anticipated; and that the injured party should be so situated with relation to the wrongful act that injury to him or to one similarly situated might reasonably have been foreseen. Carey v. Pure Distributing Corp., 133 Tex. 31, 124 S.W.2d 847, 849 (Tex.Sup.) ; Missouri-Kansas-Texas R. Co. of Texas v. McLain, 126 S.W.2d 474 (Tex. Sup.); Motsenbocker v. Wyatt, 369 S.W.2d 319, 323 (Tex.Sup.).

It will be recalled that the jury found that Mrs. Bradshaw’s falling over the drawer was negligence, and that such act as a proximate cause of Mrs. Kathryn Caveness’ injuries. Mrs. Bradshaw was an employee of defendant acting within the scope of her employment at the time, and her acts and conduct were the acts and conduct of defendant. Especially is this true in a case against a non-subscriber under Workmen’s Compensation. Art. 8306, Secs. 1 and 4. We believe that this factual situation meets the test of proximate cause, and that Mrs. Caveness’ actions in going to the rescue of Mrs. Bradshaw under the circumstances is something that might reasonably be foreseen by the negligent defendant and is a natural and probable consequence of defendant’s negligence. Under the undisputed evidence, it would have taken an unreasonable person to stand by and do nothing under the circumstances. Mrs. Caveness’ actions were natural and humanitarian and under no theory could her conduct be considered reckless or rash. Longacre v. Reddick, 215 S.W.2d 404 (Tex.Civ.App.), Mand. Overruled; Reddick v. Longacre, 228 S.W.2d 264, 269 (Tex.Civ.App.), writ ref., n. r. e. No new force had been set in motion which, coupled with the condition created by the fall, resulted in injury to plaintiff. The occurrence was but a single event. The defendant negligently created a situation which provoked the rescue effort and the rescuer’s resulting injury was something that might well have been foreseen or anticipated. See Kelley v. Alexander, 392 S.W.2d 790, 792 (Tex.Civ.App.), writ dismd.; Keystone-Fleming Transport, Inc. v. City of Tahoka, 315 S.W.2d 656, 663 (Tex.Civ.App.), writ ref., n. r. e.; 40 Tex.Jur.2d, p. 633, Sec. 117. The law favors conduct such as that shown by the plaintiff in this case. Wichita Falls Traction Co. v. Hibbs, 211 S.W. 287 (Tex.Civ.App.), no writ history.

The facts concerning the above incident were sufficiently pleaded by plaintiff. However, there was no specific issue submitted to the jury which dealt with plaintiff’s conduct in attempting to assist Mrs. Bradshaw. We believe, however, that the jury’s findings that Mrs. Bradshaw’s negligent fall was a proximate cause of Mrs. Caveness’ injuries is sufficient under the definition of proximate cause and the law pertaining thereto in a case against a non-subscriber for the reasons stated above. In any event, under Rule 279, Texas Rules of Civil Procedure, when no objection or request is made, issues referable to those found by the jury but omitted are deemed to have been found by the court in such manner as to support the judgment. Sinclair Refining Co. v. Winder, 340 S.W.2d 503 (Tex.Civ.App.), writ ref.; Strauss v. LaMark, 366 S.W.2d 555, 557 (Tex.Sup.). If issues were omitted, we believe the above rule applies here.

Moreover, the facts concerning Mrs. Caveness’ conduct were clear, positive and undisputed. There is no possible inference from the evidence that plaintiff was impelled to act other than to free Mrs. Bradshaw from a position of imminent peril.

What we have said above would apply to the remaining liability issues found by the jury in favor of plaintiffs.

Defendant contends that the jury was guilty of misconduct in discussing whether or not defendant had insurance and in hearing the foreman of the jury state that if he had a store manager who had not taken out insurance he would fire the manager. We overrule defendant’s contention. Evidence concerning insurance was before the jury, unobjected to, that defendant did not have insurance. See Dallas Transit Co. v. Newman, 380 S.W.2d 818, 822 (Tex.Civ.App.), writ dismd.; and see 56 Tex. Jur.2d 444-445. The testimony was given by Louie Cohn, president of defendant corporation. Further, the statement was made before actual deliberation, it was not discussed, and some of the jurors did not hear it. We see no reversible error. Rules 327 and 434, T.R.C.P.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: HUGHES, Justice.

license: Public Domain

text:
    Rev. F. H. BUGH et al., Appellants, v. Orville Charles WORD, Jr., et ux., Appellees.
    No. 11571.
    Court of Civil Appeals of Texas. Austin.
    Jan. 24, 1968.
    Rehearing Denied Feb. 14, 1968.

      Sneed, Vine, Wilkerson & Selman, Louis Scott Wilkerson, Austin for appellants.
    Maloney, Black & Hearne, Thomas Black, Austin, for appellees.
   HUGHES, Justice.

The parties to this suit are Reverend F. H. Bugh and wife, Pearl A. Bugh, and Mabel Pearl Minson Johnson, daughter of Rev. and Mrs. Bugh, appellants, and Orville Charles Word, Jr. and wife, Margie L. Word, appellees. The suit was instituted by appellees for declaratory judgment that a deed from Rev. and Mrs. Bugh dated June 1, 1962 to appellees conveying 114 acres, more or less, out of the Morris Baxter Survey No. 67, F. A. Collier Survey and W. M. Heronymus Surveys Nos. 800 and 801, in Travis County, included a 2.5 acre tract, called the Point, and that a subsequent deed from the Bughs to Mrs. Johnson purportedly conveying the Point passed no title and was void.

Appellants filed answers and counterclaims in which they denied that the Point passed under the June 1st deed and in the alternative, that if it did so pass then this was the result of a mutual mistake by the parties to such deed; that it was the result of a unilateral mistake on the part of the Bughs “and was directly induced by the misrepresentations and other actions” of appellees who “assured and represented to counterclaimants by word, act and deed, either personally or through their authorized agents, at the time said Contract of Sale and Deed were executed that said 2.5 acres were expressly excluded from said conveyance;” that the Bughs relied on such representations and that such misrepresentations caused the mistake made in the description in the deed. They prayed for reformation of the deed to exclude the Point, or, in the alternative for rescission.

Trial was to a jury which made these findings:

(1) The inclusion of the Point in the June 1st deed was a mistake on the part of the Bughs.

(2) Mr. Word, at the time the deed was signed, did not know that Rev. Bugh did not intend to convey the Point.

(3) Mr. Word did not represent prior to the execution of the deed, through acts or conduct, that the Point was excluded from the deed.

(4) Mike Levi, a realtor, did represent to Rev. Bugh prior to the execution of the contract of sale and deed that the Point was excluded from the sale; that Rev. Bugh relied upon the truth of such representations in executing the contract and deed and that such representations were a material inducement to him in executing the contract and deed.

(5) Mike Levi did not make such representations to induce Rev. Bugh to execute the contract and deed.

(6) Mike Levi had apparent authority to represent Mr. Word as his agent during the negotiations leading to the execution of the contract and deed.

(7) Rev. Bugh, prior to execution of the deed failed to advise Mr. Word personally that he did not intend to convey the Point, that this was negligence on the part of Rev. Bugh which was a proximate cause of the mistake made by him.

These findings were received by the trial court and based on them and the law and the undisputed evidence judgment was rendered construing the June 1st deed to convey the Point, removing the deed from the Bughs to Mrs. Johnson as a cloud on the title of appellees to the Point and decreeing that appellants take nothing by their counterclaims.

Appellants do not contend here that the trial court erred in construing the June 1st deed as conveying the Point. We make the following statement only in order that the testimony of witnesses later adverted to may be better understood.

The June 1st deed conveyed 160.2 acres with certain property excluded, one of the exclusions being stated in this language:

“Save and except the land and lots heretofore subdivided as Perry’s White Cliffs according to map or plat of record in Book 7, Page 156, Plat Records of Travis County, Texas, containing approximately 16 acres of land;”

The 2½ acre Point is adjacent to the Perry’s White Cliffs subdivision and is separated from the other acreage conveyed to the Words by the subdivision. The Point was shown to be no part of the subdivision but Mike Levi, who drew the June 1st deed, testified that he believed the words “land and lots,” excluded the Point from the conveyance, and he so advised Rev. Bugh.

Appellants’ first point of error is that the trial court erred in refusing to reform the June 1st deed so as to exclude the Point under the jury findings that Mike Levi had apparent authority to act as the agent of Mr. Word and that since Mr. Levi represented to Rev. Bugh prior to the execution of the contract and sale that the Point was excluded from the sale, Mr. Word was bound by such representation, Rev. Bugh having been induced thereby and having relied thereon.

It is our opinion that there is no evidence to support the finding of the jury that Mike Levi had apparent authority to represent Mr. Word in the negotiations leading to the execution of the contract of sale and June 1st deed.

Before reciting the evidence relating to this point, we will dispose of the contention made by appellees that there was no pleading to support submission of this issue to the jury.

The pleading of appellants, as shown above, alleged only that Mr. Word, personally or through “authorized agents” made the representations that the Point was excluded from the contract and deed.

There is a difference between the apparent or ostensible authority of an agent and the authority of an apparent or ostensible agent.

An apparent or ostensible agent is no agent, although upon establishing the elements of estoppel the purported principal may be estopped to deny the agency. Agency 2 C.J.S. § 23g, p. 1050.

There was no pleading that Mike Levi was an apparent or ostensible agent, the only pleading was that Mr. Word acted through “authorized agents.”

There were no exceptions to the pleadings, no objections to the evidence and no exceptions to the Court’s charge on the ground that the pleadings did not allege that Mike Levi was an apparent or ostensible agent of Mr. Word. Under these circumstances, this issue was tried by consent. VI Texas Bar Journal, p. 77, question 88; (opinion of Committee on interpretation of rules of civil procedure); Zorola v. Bishop and Son, 401 S.W.2d 713, Tex.Civ.App., San Antonio, writ ref. n. r. e., Stephens v. Anderson, 275 S.W.2d 869, Tex.Civ.App., Austin, writ ref. n. r. e.

An “apparent” or “ostensible” agent is one whom the alleged principal, either intentionally or by want of ordinary care, induces a third person to believe to be his agent, although he has not, either expressly or by implication, conferred authority on him. This relationship is based on estoppel, and it must arise from words or conduct of the principal alone. The acts or words of the agent are not to be considered in determining the existence of this relationship. Minneapolis-Moline Company v. Purser, 361 S.W.2d 239, Tex.Civ.App., Dallas, writ ref. n. r. e.; Gibbins Inc. v. McMillan, 383 S.W.2d 94, Tex.Civ.App., El Paso, writ ref. n. r. e.

Bearing in mind the law as stated, we will examine the evidence to determine what Mr. Word did to constitute Mike Levi, his apparent agent, as the jury found.

In the mid-1950s Mr. Word moved to Austin and became a next door neighbor of the father of Mike Levi, a real estate agent. Mr. Word was interested in acquiring some land. He occasionally consulted with Levi’s father with regard to real estate matters, knowing that he owned some land in the area, and asked him “to be on the lookout for land for me to buy.”

Prior to the events here in question, Mr. Word had looked at different tracts of land in company with both Mike Levi and his father and at land in company with only Mike Levi.

Sometime in the early part of 1962, Mike Levi noticed a “For Sale” sign with Rev. Bugh’s telephone number which he had placed on the gate in the fence on his most southern boundary. Mike Levi talked with Rev. Bugh, and at that time Rev. Bugh told Mike Levi approximately what he wanted for the land.

On this occasion Rev. Bugh told Mike Levi the Point was not for sale.

Later Mike Levi took Mr. Word to view the property. They did inspect part of the property and a house located on it. They did not go on the White Cliffs subdivision nor to the Point which is northeast of the subdivision. Subsequently, Mr. Word, alone, went to the Bugh property and to the Point.

A short time prior to March 10, 1962, on his way to view this property, Mr. Word gave Mike Levi a check for $2,000.00 and authorized Mr. Mike Levi to take it to Rev. Bugh and tell him that he “would take the property being offered.”

Mr. Word also testified:

“Q Mr. Word, who did the negotiatings with Mr. Bugh?
A The negotiation, Mr. Mike Levi acted as, I presume, the go-between, if that is negotiating.
Q Did you tell Mr. Levi not to go and negotiate with Mr. Bugh?
A I told him not to make any deals, other than for all of the land. There was something said only about the house, at one time.
Q So you gave him some instructions on what you wanted. Correct?
A All of the land, yes, sir.”

Rev. Bugh cashed the $2,000.00 check before March 10th, 1962.

Mr. Mike Levi prepared a contract of sale in which he was named as agent for Rev. Bugh and made arrangements to meet Rev. Bugh at the Austin National Bank. At this meeting Rev. Bugh read the contract and asked Mike Levi if the Point was excluded and upon being assured that it was, he signed it. Regarding this meeting, Rev. Bugh testified:

“Q Did you notice in the contract that that Mr. Levi is described as your agent? Did you notice that?
A No, I didn’t notice that he was, that part of it. He came, as I understood, representing Mr. Word.
Q Well, did he tell you he was representing Mr. Word? All he ever told you was that he had a friend who wanted to buy some land?
A He came and said that Mr. Word had given him this contract, signed, to present to me, and had put up $2,000.00 earnest money, and I thought from that, I just took it from that that he was representing Mr. Word in trying to get some land for Mr. Word.
Q But, he didn’t tell you he was representing Mr. Word?
A I don’t know that there was any discussion on that.
Q And the contract that he came with says that you are acting through the undersigned and duly authorized agent, you, F. H. Bugh, doesn’t it? And you read that, didn’t you, Mr. Bugh?
Q Well, if I did, I didn’t pay much attention to that, but I wasn’t thinking about who was representing who. I was thinking about what the contract said about selling the land.
******
Q You had not been assured by Mr. Word about anything?
A Not by Mr. Word, no, but I took it that Mr. Levi was representing Mr. Word, and what he said was correct.
Q And you took it that Mr. Levi was representing Mr. Word, just because Mr. Levi had called you and told you that he had a friend that wanted to buy some land. Is that right?
A How is that?
Q You took it that Mr. Levi was representing Mr. Word just because Mr. Levi called you and said he had a friend that wanted to buy some land?
A That is correct.”

The evidence is conflicting as to when this contract was signed by Mr. Word. He stated that it was signed in the home of Rev. Bugh when they first met on March 10, 1962, the date the contract bears. Mike Levi testified that the contract “probably” had Mr. Word’s signature on it when he met with Rev. Bugh at the Austin National Bank..

Whether the contract had been signed by both parties before their first meeting at the home of Rev. Bugh is in doubt but the parties agree that at such meeting there was no discussion of whether the Point was included in or excluded from the contract.

Mr. Word testified at length regarding the meeting in the Bugh home when the provisions of the contract were settled. Only Rev. Bugh, Mr. Word and Mike Levi were present on this occasion. Some of the discussion resulted in changes in the contract which show to have been handwritten. As stated, there is no contention that the Point was discussed at this meeting.

Whether the contract was signed before or at the meeting in the Bugh home is not material here. It is certain that it was signed by both parties no later than the time of such meeting and that it was signed before the occasion when the parties and others met in the Bugh home to discuss the deed, if they did so meet, and before they met to execute the deed.

The rights of the parties to the March 10 contract were fixed when it was signed by them. It is on this date that we must appraise the evidence to determine its legal sufficiency to sustain the jury finding that Mike Levi was the apparent or ostensible agent of Mr. Word in this transaction.

We are unable to find that Mr. Word said anything or did anything known to Rev. Bugh which would constitute reasonable grounds upon which he could predicate a belief that Mike Levi was his agent and that he, Mr. Word, would he responsible for his misdeeds.

Mike Levi knowing that Mr. Word was interested in buying some land saw a for sale sign on some property giving a telephone number. Levi talked with Rev. Bugh who owned the land. Whether Mr. Word was mentioned in this conversation is not shown.

Mike Levi came to Rev. Bugh with a contract probably signed by Mr. Word wherein Mike Levi was described as the agent of Rev. Bugh and in which Mr. Word agreed to buy the described property upon the terms stated.

Rev. Bugh, Mike Levi and Mr. Word met to go over this contract. Some changes were written in. There is no evidence that Mike Levi did any negotiating for Mr. Word.

Unless we are willing to hold that a real estate broker who draws a contract describing himself as agent for a seller of land and procures the signature of a buyer to such contract constitutes the broker the agent of the buyer so as to be responsible for the misrepresentations of the broker to the seller, then we must hold that there is no evidence to sustain the finding that Mike Levi was the apparent or ostensible agent of Mr. Word. We are not willing to so hold. To do so would upset normal, routine real estate transactions and would place them all in jeopardy.

We quote from Goode v. Westside Developers, Inc., 258 S.W.2d 844, Tex.Civ.App., Waco, writ ref. n. r. e., the rule regarding the apparent authority of an admitted real estate broker:

“Furthermore, the doctrine of apparent authority of an agent to bind his principal ordinarily has no application to transactions involving the sale or conveyance of land. Vol. 2, Tex.Jur. p. 451, Sec. 55 and authorities. This is so because, among other reasons, a real estate agent or broker is not usually regarded as a general agent but is considered as only a special agent whose authority is limited to finding a purchaser for his principal and as a general rule he does not have the power or authority to consummate the contemplated sale. Loma Vista Development Co. v. Johnson, 142 Tex. 686, 180 S.W.2d 922; Donnan v. Adams, 30 Tex.Civ.App. 615, 71 S.W. 580 (er. den.).”

A priori, it seems to us, the creation of an ostensible or apparent agent should not be permitted in real estate transactions. This is the import of the decisions which hold that one dealing with a real estate broker has a duty to inquire into his authority. First Texas Joint Stock Land Bank v. Holloway, 77 S.W.2d 301, Tex.Civ.App., Amarillo, n. w. h., Hearn v. Hanlon-Buchanan, 179 S.W.2d 364, Tex.Civ.App., Fort Worth, writ ref. w. m.

In this case, Rev. Bugh did not inquire of either Mike Levi or Mr. Word either as to the fact of the agency alleged or the extent of his authority.

We overrule point one.

Appellants’ second and last point is that if they are not entitled to a reformation of the deed to exclude the Point, they are entitled to have the transaction rescinded under jury findings (1), (4) and (6), supra.

We have held that there is no evidence to support finding (6) relating to the apparent authority of Mike Levi to act as agent for Mr. Word. The remaining issues will not support a decree for rescission of the contract and deed when considered with jury findings (7, supra) convicting Rev. Bugh of negligence in not advising Mr. Word personally that he did not intend to convey the Point which negligence was the proximate cause of the mistake made by Rev. Bugh. See 10 Tex.Jur.2d, Cancellation of Instruments, Secs. 36 and 37. Point two is overruled.

Finding no error, the judgment of the trial court is affirmed.

Affirmed.


author: TUNKS, Chief Justice.

text:
    Leonard RODGERSON, Appellant, v. Sherman LaFOLLETTE, Appellee.
    No. 63.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Jan. 24, 1968.
    Rehearing Denied Feb. 21, 1968.
    Frederick W. Robinson, Houston, for appellant.
    David J. Beck, Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, for ap-pellee.
   TUNKS, Chief Justice.

This is an automobile collision case. The plaintiff, appellant, is Leonard Rodgerson. The defendant, appellee, is Sherman La-Follette. The trial was to a jury. The facts are as follows:

On December 11, 1964, just before 7:30 a. m., the defendant was driving in an easterly direction on South Loop (also called U. S. 610) in Houston, Texas, when the motor of his car, for some unknown reason, stopped. He was able to get his car over to the right-hand curb, where he left it. The point at which he left his car parked was about one-half way between South Main Street and Fannin Street. When he left his car he did not post any warning that it was stationary — he did not leave his parking lights on, nor raise the cover to the trunk on his car, nor raise the hood of his car. Soon thereafter, the plaintiff’s wife, who lived in Missouri City, Texas, was driving her car to work. From her home she drove north on South Main Street to a point where it intersected South Loop. There she was stopped by a red light. When she stopped, she was in the right-hand traffic lane on South Main and was the first car in line at the intersection. When her light turned green she made a right turn into South Loop and drove in an easterly direction. There were three lanes for eastbound traffic on South Loop. When the plaintiff’s wife turned on to South Loop, she turned into the right-hand curb lane and continued driving in that lane. There was no traffic immediately ahead of her in that lane but there were cars to her left in the other eastbound lanes and cars following her in her lane.

South Loop at the point in question is within the limits of the City of Houston. It runs in a generally easterly and westerly direction. It is a thoroughfare. There are three lanes for traffic in each direction. The east and west bound lanes are divided by an esplanade. There is a curb along the south side — the right-hand side for east bound traffic. At the time it was newly constructed, there were neither any residences nor business establishments adjacent to the south side of the street. The only openings in the curb were for entrances into the Domed Stadium. There were no posted parking restrictions. The posted speed limit at the point in question was 45 m. p. h. The street in that area is straight and there are no physical obstructions to vision.

On the morning in question it had been raining and was still misty. The street was wet. The visibility was such that the plaintiff’s wife and at least some of the other drivers had their lights on.

As plaintiff’s wife proceeded east on South Loop, she remained in the right-hand curb lane — the lane in which the defendant’s car was parked. She was driving at a speed of 35 to 45 m. p. h. When she first saw the defendant’s car, she did not realize that it was stationary. When she realized that the defendant’s car was not moving, she applied her brakes to slow down and attempted to turn into the lane at her left. At the time of first seeing the defendant’s car, she was far enough from it that, but for the traffic to her left, she could have pulled around the parked car. She discovered that she could not so turn because of the traffic in the lane to her left. She pushed her brake pedal “all the way to the floor board.” When she so applied her brakes, her car skidded 40 to 45 feet and struck the rear of the defendant’s car. By the force of the impact, the defendant’s car was knocked east on South Loop for a distance not established by the evidence. The plaintiff’s car stopped at the point of impact.

In the collision the plaintiff’s wife sustained personal injuries for the treatment of which plaintiff incurred medical expense and the plaintiff’s car was damaged. There was evidence from which the jury could have fixed the amount of the plaintiff’s damage.

These facts were developed by the evidence offered by the plaintiff. At the close of plaintiff’s testimony, the defendant made a motion for instructed verdict on the ground that there was no evidence of negligence on the part of the defendant which was a proximate cause of the collision and on the ground that the evidence showed as a matter of law that the collision was proximately caused by the negligence of the plaintiff’s wife. The trial court granted the defendant’s motion, withdrew the case from the jury and rendered judgment for the defendant. The plaintiff has perfected his appeal from that judgment.

The appellant contends that under the evidence the jury could have found that the defendant was negligent in failing to give some warning to other motorists driving east on South Loop that his car was parked. The defendant argues that there is no evidence to sustain a jury’s finding that the defendant’s failure to warn was negligence. He argues that the absence of any parking restriction made his parking lawful and precluded its being negligent.

The question here involved is sometimes treated as two questions: first, did the defendant, under the circumstances, have any duty in connection with the giving of a warning and, second, was there any evidence that, in failing to give a warning, the defendant failed to exercise that degree of care that a person of ordinary prudence, in the exercise of ordinary care, would have exercised under the same or similar circumstances. Both are questions of law. Webb v. City of Lubbock, Tex.Civ.App., 380 S.W.2d 135, writ ref., n. r. e.; “No evidence” and “insufficient evidence” Points of Error, Robert W. Calvert, 38 Texas L.Rev. 361 (1960). While fact situations may exist in which there are plain distinctions between the two questions, in this fact situation the line, if any, separating them is so indistinct as to be meaningless. The defendant had a duty to warn only if the situation was such that he, in the exercise of ordinary care, should have given a warning. Since he admittedly gave no warning he was negligent if he had a duty to give a warning. Thus the two questions — existence of the duty and the question of negligence are really one and the same question. Prosser “The Law of Torts,” p. 206, Sec. 36; 65 C.J.S. Negligence § 4(2) page 485.

It is admitted that the defendant, in parking his car, did not violate any statute or ordinance. Appellee argues that, since the matter of parking on streets is a subject of statutory control and that defendant’s conduct complied with the regulations exercising such control, he then, as a matter of law, was not negligent in parking his car at the time and place in question. It may be true that the defendant had a right to park his car where he did and when he did. It is also true that he was under no statutory duty to warn other motorists. This does not mean that the defendant had no common law duty to warn motorists of the presence of his parked car. There are many cases holding that one driving at a speed at which he, under the statute, has a right to drive, nevertheless, violates a common law duty to drive more slowly. There, the very act which is, itself, legal under the statutes constitutes a breach of a common law duty. Billingsley v. Southern Pac. Co., Tex.Civ.App., 400 S.W.2d 789, writ ref., n. r. e.; Traylor v. Brentzel, Tex.Civ.App., 218 S.W.2d 261, no writ history. In fact, the appellee here,, in support of the second ground for his motion for instructed verdict, argues that the plaintiff’s wife was guilty, as a matter of law, in driving too fast though it is admitted that she was driving within the applicable speed limit.

There are other situations in which one may do something that is lawful under the statute, but the doing of which gives rise to a common law duty, the breach of which is negligence. Thus, one lawfully entering a controlled intersection when his light is green has a duty to keep a proper lookout. Warren v. Dikes, Tex.Civ.App., 404 S.W.2d 946, no writ history; Strawder v. Pantoja, Tex.Civ.App., 372 S.W.2d 246, writ ref., n. r. e.; Watts v. Dallas Ry. & Terminal Co., Tex.Civ.App., 279 S.W.2d 400, writ ref., n. r. e. A similar duty is imposed on a pedestrian having a statutory right of way over motorists. Lane v. Dallas Transit Co., Tex.Civ.App., 331 S.W.2d 821, writ ref., n. r. e.; Lofland v. Jackson, Tex.Civ.App., 237 S.W.2d 785, writ ref., n. r. e.; Brown v. Dallas Ry. & Terminal Co., Tex.Civ.App., 226 S.W.2d 135, writ ref.

We are of the opinion that, though the defendant had the statutory right to park his car at the time and place in question, he had a common law duty to warn other motorists that it was parked if an ordinary prudent person, in the exercise of ordinary care, would have anticipated and foreseen that, in the absence of such a warning, a collision might occur.

In examining the record to determine whether there was any evidence from which the jury could have found that the defendant was negligent in failing to warn of the fact that his car was not moving, we are required to consider the evidence in its most favorable light in support of the plaintiff’s position, to consider only the evidence and the inferences therefrom which support that position and to reject that evidence and those inferences which are contrary thereto. Biggers v. Continental Bus System, Inc., 303 S.W.2d 359, Texas Sup.

Conforming to the above stated rule, we review the evidence and the inferences therefrom in this record as follows: South Loop was a heavily traveled thoroughfare. The lane in which defendant’s car was parked was one ordinarily used by moving vehicles — it was not a parking lane. Because of the absence of residences or businesses in the area, motorists could not be expected to anticipate that there would be cars parked on the street. The visibility was poor. The street was wet. The traffic was heavy.

Under those facts we believe that there was some evidence from which a jury could have found that a person of ordinary prudence in the defendant’s position would have, in the exercise of ordinary care, either raised the hood or the trunk cover of his car or left his parking lights on. The very fact that the automobiles are equipped with parking lights indicates an acceptance of the proposition that there may be situations wherein it is necessary to warn that a car is parked rather than moving.

We are also of the opinion that the evidence failed to show, as a matter of law, that Mrs. Rodgerson was guilty of negligence which proximately caused the collision. In answer to that question, we are governed by the same rule as to the review of the evidence as that which we applied in determining that there was some evidence of negligence on the part of the defendant. The evidence must be reviewed in the light most favorable to the plaintiff.

Our holding in this case is not to be construed as a holding that there is always a common law duty to warn of the presence of a car lawfully parked on a city street. Our holding is, rather, that the particular circumstances surrounding the lawful parking of a car on a city street may be such that a reasonably prudent person, in the exercise of ordinary care, would foresee that in the absence of a warning, a motorist might collide with his parked car. Under those circumstances, he has a duty to warn and his failure to warn may constitute negligence.

The questions of the sufficiency of the evidence to sustain a jury finding to the effect that the defendant was guilty of negligence which proximately caused the collision and to sustain a jury finding that the plaintiff’s wife was not guilty of such negligence is not before us. We therefore express no opinion on those questions. We hold that on each of them there was some evidence to support a jury finding favorable to the plaintiff.

The judgment of the trial court is reversed and the case is remanded for another trial.

Reversed and remanded.


author: PARKER, Justice. STEPHENSON, Justice PARKER, Justice. STEPHENSON, Justice

text:
    MILLWRIGHTS LOCAL UNION NO. 2484 and Carpenters District Council of the Sabine Area, Appellants, v. The RUST ENGINEERING CO., Appellee.
    No. 6972.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 7, 1967.
    Rehearing Denied Jan. 9, 1968.

      Stephenson, Thompson & Morris, Orange, for appellants.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, for appellee; Tommy Duke, Houston, of counsel.
   PARKER, Justice.

This is an appeal from a temporary injunction obtained by The Rust Engineering Co., as petitioner, against the defendants, Carpenters District Council of the Sabine Area and Vicinity and Millwrights Local Union No. 2484. Such judgment and order provide:

“It is also ORDERED, ADJUDGED AND DECREED that the Defendants, Carpenters District Council of the Sabine Area and Vicinity and Millwrights Local Union No. 2484, their officers, agents, members, representatives, servants, employees and those persons in active concert or participation with them be temporarily enjoined from, and that they shall desist from establishng and/or maintaining any picket or picket line at or adjacent to the entrances of The Rust Engineering Construction project located near Orange, Orange County, Texas, so long as an object and/or effect of such picket and/or picket line is to directly or indirectly to secure the disregard, breach or violation of valid subsisting collective bargaining ‘agreements between the Plaintiff and/or its subcontractors and the representatives of their emjijoyees in violation of Section 4 of Article 5154d of the Revised Civil Statures [sic] of the State of Texas.”

The plaintiff will be referred to as “Rust” and the respective defendants will be referred to as “Carpenters Union” and “Millwrights Union.”

First, we will consider the temporary injunction granted as against Carpenters Union. The trial court granted a temporary restraining order against both unions on November 3, 1967. This was a Friday. On Friday, November 3, 1967, the Honorable Ward Stephenson, attorney for Millwrights Union, requested the court to accelerate the hearing on the temporary injunction to Monday, November 6. This was done by the court. At the time of the hearing on temporary injunction, the trial court had no jurisdiction of Carpenters Union for the reasons hereinafter set forth.

RULE 681: Temporary Injunctions: Notice
No temporary injunction shall be issued without notice to the adverse party.
RULE 124: No Judgment Without Service
In no case shall judgment be rendered against any defendant unless upon service, or acceptance or waiver of process, or upon an appearance by the defendant, as prescribed in these rules, except where otherwise expressly provided by law or these rules.

The Carpenters Union was not served with citation, did not accept or waive process or make an appearance by any pleadings as prescribed in the Texas Rules of Civil Procedure. D. H. Sartain, Jr. was served with citation together with a copy of plaintiff’s verified petition. He was a member of the Carpenters District Council, a delegate to the District Council and such Council, upon his request, authorized him to establish the pickets in question. He was not an officer in Carpenters Union. There is a bystander’s affidavit stating that Mr. A. B. Wheeler, David Sumrall and Mr. Sartain were present in the courtroom at the time the hearing was had. Wheeler was President of the Carpenters Union. Nevertheless, it cannot be said that the Carpenters Union is bound by the judgment of temporary injunction. The Carpenters Union was interested in the result of this litigation, but did not actively participate in the hearing or control the proceedings by anything in the record. There is no conclusive evidence to authorize this court to hold the trial court had acquired jurisdiction of the Carpenters Union under the principle set forth in American Indemnity Co. v. Fellbaum, 114 Tex. 127, 263 S.W. 908, 910, 37 A.L.R. 633, and Bragdon v. Wright, Tex.Civ.App., 142 S.W.2d 703. For this reason the judgment of temporary injunction against the Carpenters' Union is reversed and remanded. The Carpenters Union gave notice of appeal and filed its appeal bond in the trial court. Under Rule 123 T.R.C.P., the Carpenters Union shall be presumed to have entered its appearance to the term of the trial court in which the mandate of this court shall be filed.

The foregoing disposes of Carpenters Union. The remainder of this opinion is limited to the temporary injunction against Millwrights Union.

Rule 385(d) provides:

Where the appeal is from an order granting or refusing a temporary injunction * * * the cause may be heard in the Court of Civil Appeals * * * on the bill and answer and such affidavits and evidence as may have been admitted by the judge of the court below. * * *

In this suit, plaintiff filed its petition verified by affidavit and containing a plain and intelligible statement of the grounds for relief, complying with Rule 682 T.R.C.P. Such petition is not only a pleading but is an affidavit to be considered by the trial court on the application of Rust for temporary injunction. The word “affidavit” means the same thing in Rule 385(d) as it does in Rule 682.

On this appeal, this court recognizes the principles clearly stated by the Supreme Court of Texas in Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517, on page 519 (1961) as follows:

The purpose of a temporary injunction is to preserve the status quo of the subject matter of a suit pending a final trial of the case on its merits. James v. E. Weinstein & Sons, Tex.Com.App., 12 S.W.2d 959, 960. A trial judge therefore has broad discretion to grant or to deny a writ when the pleadings and the evidence show a probable right of recovery in the applicant and a probable injury to him if the writ is not granted. Transport Co. of Texas v. Robertson Transports, [Inc.,] 152 Tex. 551, 261 S.W.2d 549. A necessary corollary of that rule is that a trial judge abuses his discretion if he grants a writ when the evidence fails to furnish any reasonable basis for concluding that the applicant has a probable right of recovery. To furnish a reasonable basis for the conclusion the evidence need not establish that the applicant will finally prevail in the litigation, Transport Co. of Texas v. Robertson Transports, [Inc.,] supra, but it must, at the very least, tend to support a right of recovery. Southwestern Greyhound Lines, Inc. v. Railroad Commission, 128 Tex. 560, 99 S.W.2d 263, 109 A.L.R. 1235.

Rust’s original petition is verified and in affidavit form containing allegations as follows :

“II.
“The United Brotherhood of Carpenters & Joiners of America, AFL-CIO, Millwrights Local Union No. 2484, and Carpenters District Council of the Sabine Area and Vicinity are affiliated labor organizations and unincorporated associations and have their duly authorized agents and representatives engaged in representing and acting for and on behalf of employee members in Orange County, Texas and vicinity, and are the exclusive bargaining representatives of all employees employed by the Plaintiff in Orange County, Texas and vicinity, engaged in any work over which the jurisdiction of the Defendants, United Brotherhood of Carpenters & Joiners of America, AFL-CIO and Millwrights Local Union No. 2484 is recognized by the Building and Construction Trades Department of the AFL-CIO.
“III.
“At all times material hereto, Rust Engineering Company has been engaged in the construction of a paper mill near Orange, Texas, pursuant to a contract with the Owens-Illinois Company. In pursuance of the obligations of Rust Engineering Company, it has entered into various agreements of subcontract with other corporations and organizations to perform certain portions of the construction work for the Owens-Illinois Paper Mill.
“IV.
“In pursuance of the contract between Rust Engineering Company and the Owens-Illinois Company, the Plaintiff and its subcontractors have employed approximately thirteen hundred (1,300) craftsmen represented by various labor organizations including the Defendants herein.
“V.
“Rust Engineering Company, on or about June 24, 1960, entered into a collective bargaining agreement with the International Brotherhood of Carpenters & Joiners of America, AFL-CIO, such contract which according to its provisions has been renewed from year to year and is currently in effect and is binding upon all Defendants named herein. The aforesaid collective bargaining agreement has been and will continue to be and remain in full force and effect under its terms.
“VI.
“Among other things, the aforesaid collective bargaining agreement provides as follows:
‘The Employer agrees that there will be no lock-out and the Union agrees that there will be no stoppage of work or any strike of its members either collectively or individually until said dispute or misunderstanding has been referred to the International Office of the Union and the Home Office Representative of the Employer.’
“VII.
“For approximately one year Plaintiff has been a dues paying Specialty Member of the Constructors Association of the Sabine Area, hereinafter referred to as ‘CASA’. At all times material hereto, Plaintiff has by virtue of its membership in said CASA, been subject to the provisions of that collective bargaining agreement between the Sabine Area Construction Committee of said CASA and the Carpenters District Council of the Sabine Area and Vicinity representing Millwrights Local Union No. 2484, Defendants herein, executed on or about May 5, 1967. Among other things, the aforesaid collective bargaining agreement provides as follows:
‘There shall be no stoppage of work because of any proposed changes to this Agreement or any disputes over matters relating to this Agreement.’ ”

The foregoing allegations are undisputed. The collective bargaining agreement of May 5, 1967 was before the trial court. Also the collective bargaining agreement of June 24, 1967 was before the court. The allegations in Paragraph IV are undisputed. Rust further alleges in its verified petition:

“VIII.
“Since on or about 10:00 p. m. on Thursday, November 2, 1967, and continuing to date, Defendants United Brotherhood of Carpenters & Joiners of America, AFI^CIO; Carpenters District Council of the Sabine Area and Vicinity ; and Millwrights Local Union No. 2484, acting singularly and in concert, deliberately, willfully and intentionally breached, conspired and combined to breach, and encouarged [sic], induced, obtained, ordered and permitted breaches of the aforesaid collective bargaining agreements by establishing pickets at the entrances to the Plaintiff’s construction project for Owens-Illinois in violation of the aforesaid collective bargaining agreements. The aforesaid illegal actions by the Defendants, and each of them, continue hnd will continue unless restrained by this Court, thereby causing immediate, substantial and irreparable injury, loss and damage to the Plaintiff. At all times material hereto, the Plaintiff has, and continues to, fully abide by and comply with all of the various obligations and responsibilities under the aforesaid collective bargaining agreements.
“IX.
“As a direct and proximate result of the aforesaid illegal actions by Defendants, United Brotherhood of Carpenters & Joiners of America, AFL-CIO; Carpenters District Council of the Sabine Area and Vicinity; and Millwrights Local Union No. 2484, on or about 10:00 p. m. on Thursday, November 2, 1967, and continuing to date, there has been a cessation of the construction on the said Owens-Illinois Paper Mill project by the employees of the Plaintiff and by the employees of other contractors working on the Owens-Illinois Paper Mill project.
“X.
“By such actions, the said Defendants have violated Article 5154d of the Revised Civil Statutues [sic] of the State of Texas in that they have formed an obstacle to the free ingress to and egress from the place of business of the Plaintiff and its subcontractors; and picketed for the purpose of and have induced persons and all other employees working at said construction site, including Plaintiff’s subcontractors’ employees not to enter the said premises in violation of the respective collective bargaining agreements pertaining to said persons, employees and subcontractors’ employees.”

Mr. Sartain testified the pickets were placed under authority of the District Council by him. The pickets are not placed without authority of the District Council. Pickets don’t go up unless the District Council authorizes them. Signs were placed up. They were Millwrights signs with Mr. Sartain’s name on them. After a temporary restraining order was issued and served upon Mr. Sartain at 4:00 p. m. on Friday afternoon, he consulted his attorney, Mr. Stephenson. Upon the advice of Mr. Stephenson, he removed three or four Millwrights at the plant, one of them on the picket line walking the picket, telling them to refrain from picketing and to stay back completely away from the picket line. Referring to Paragraphs IX and X of plaintiff’s petition, it is plain that the purpose of the picketing was to cause their own union and other unions to violate their collective bargaining contracts and not pass the picket lines. The legislature of the State of Texas in Section 4, Article 5154d, V.A. C.S. declares this to be unlawful. This is a public policy of the State of Texas which is supplemented by other statutes and decisions of the Supreme Court of Texas. There is no evidence of any argument between unions or any argument between Rust and any union, or between subcontractors under Rust and any union.

In the Statement of Facts, Mr. Stephenson, as attorney for the Millwrights, stated to the court:

“Now, at the outset I should like to tell the Court on behalf of the Millwrights there is no dispute over the Agreement and there is no request that the Agreement be changed. We have no dispute which would come within this latter Contract and Agreement which I referred to, which incidentally was signed on the 4th day of May, 1967. (Emphasis ours)
“In this particular Agreement, which is the Local agreement, there is set out a schedule of wages to be paid, and it sets out that as of this time millwright journeyman receive $5.08 an hour, millwright foremen, $5.58, and millwright general foremen, $5.83; then it provides for certain percentages of increase.
“There has only been two pickets, properly picketing.”
Rust, in its verified petition, further alleged :
“XI.
“The agreement between Rust Engineering Company and the Owens-Illinois Company requires the completion of all said construction by the Plaintiff not later than a certain date and the Owens-Illinois Company will incur substantial damage if the construction is not completed by that date. As a result of the cessation of work and construction of the said paper mill project directly and proximately caused by the aforesaid illegal actions by the Defendants, the Plaintiff anticipates and therefor alleges that unless the Defendants are immediately restrained by this Court it may reasonably anticipate that said construction will not be completed within the time as required by the contract between the Rust Engineering Company and the Owens-Illinois Company and that such illegal actions by the Defendants will therefore result in immediate, substantial and irreparable injury, loss and damage to the Plaintiff. D. H. Sartain, Jr. is an agent and representative of one of the Defendants and may be found for service at 213 S. Market Street, Orange, Texas.
“XII.
“The total value of the existing contract between The Rust Engineering Company and the Owens-Illinois Company is in excess of Fifty-Eight Million Dollars. If employees represented by the Defendants herein are not required to report and/or return to the construction project and Defendants, Carpenters District Council of Sabine Area and Vicinity and Millwrights Local Union No. 2484, are not required to remove this illegal picket, the entire construction will continue to be halted. Unless immediately enjoined by this Court, the aforesaid illegal actions by the Defendants will result in irreparable injury to the Plaintiff, the exact amount of which the Plaintiff is unable to ascertain, but damages in excess of Twelve Thousand Dollars ($12,-000.00) per day have resulted and will continue to result from a complete cessation of work on the Owens-Illinois Paper Mill project. Damages have resulted and will continue to occur before notice can be served upon the Defendants and a hearing held by this Court upon the Plaintiff’s application for a temporary injunction.
“The Defendants are wholly unable to respond in damages of the magnitude involved in this case and accordingly, immediate, substantial and irreparable injury, loss and damage will result to the Plaintiff unless said illegal actions by the Defendants are immediately restrained and enjoined by this Court.
“XIII.
“For all of the foregoing reasons, the Plaintiff has no adequate remedy at law and requests restraint by this Court of the Defendants’ illegal actions which are prejudicial to them. Under the principles of equity and the provisions of Article 5154d of the Revised Civil Statutues [sic] of the State of Texas, the Plaintiff is entitled to relief herein prayed for.”

The allegations in Paragraphs XI, XII and XIII are not disputed. Millwrights Union has urged that the trial court had no jurisdiction to hear this matter according to the decision of the U. S. Supreme Court in Ex parte George, 371 U.S. 72, 83 S.Ct. 178, 9 L.Ed.2d 133 (1962). Reading this opinion, the opinion of the Supreme Court of Texas reported in 163 Tex. 103, 358 S.W.2d 590, it is clear that George was a member of the National Maritime Union of America, which union was engaged in a labor dispute with the American Oil Company. In the instant case, all parties agree that the collective bargaining agreement between Rust and Millwrights is valid and subsisting. Ex parte George is not applicable to the instant case.

The jurisdiction of the trial court to grant the temporary injunction has not been pre-empted by Federal law. In Smith v. Evening News Ass’n, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962) it was held that since the suit was brought upon a collective bargaining agreement, the State Court had jurisdiction and action was not preempted by Federal law even though the act complained of constituted an unfair labor practice. The existence of this exception to the pre-emption doctrine was reiterated by the Supreme Court in Local 100, of United Ass’n of Journeymen and Apprentices v. Borden, 373 U.S. 690, 693, 83 S.Ct. 1423, 10 L.Ed.2d 638 (1963).

There was no violence in the picketing. There was no mass picketing. It was peaceful picketing but it loses its protection under the constitutional guaranty of free speech because one of its purposes was contrary to public policy. Public policy of Texas is expressed in Section 4 of Article 5154d V.A.T.S., other general laws of the State of Texas and authoritative decisions of courts of this State. In Hughes v. Superior Court of the State of California, etc., 339 U.S. 460, 70 S.Ct. 718, 94 L.Ed. 985 (1950), the Supreme Court unanimously upheld a state court order enjoining peaceful picketing against the contention that the injunction was invalid because it infringed the constitutional right of free speech. See also International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers Union, Local 309 v. Hanke, 339 U.S. 470, 70 S.Ct. 773, 94 L.Ed. 995 (1950).

Cain, Brogden & Cain, Inc. v. Local Union No. 47, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, 155 Tex. 304, 285 S.W.2d 942 (1956), involved a suit by a contractor for injunctive relief against picketing. The district court granted the injunction and the appellate court vacated the order. In reversing the ruling by the Court of Civil Appeals and reinstating the temporary injunction, the Texas Supreme Court indicated as follows:

“It is now well settled that peaceful picketing loses its protection under the constitutional guaranty of free speech if one of its purposes is contrary to public policy. N.L.R.B. v. Denver Bldg. & Const. Trades Council, 341 U.S. 675, 71 S.Ct. 943, 95 L.Ed. 1284. Moreover, it matters not whether the public policy violated be declared by the legislature * * * or by the courts, as it was in the Ritter’s Cafe, the Hughes and the Hanke cases.”

In the Cain case, Carpenters and Joiners Union etc. v. Ritter’s Cafe, 149 S.W.2d 694 (Tex.Ct.Civ.App.1941) is approved. Also see Office Employees International Union Local No. 129 v. Houston Lighting & Power Co., 314 S.W.2d 315 (Tex.Ct.Civ.App.1958, writ ref., n. r. e.).

There is nothing in the record contrary to the allegations of Rust except hearsay evidence, or ambiguous uncertain testimony, indefinite as to who or what was actually involved.

In its finding of fact, the trial court found as a fact the statements of fact alleged in the verified petition of Rust. The conclusions of law of the trial court were:

1. This court has jurisdiction of the cause in question in the light of decisions of the Supreme Court of the United States and in particularly Smith v. Evening News Assn., 371 U.S. 238 [195], which rejected the holding of San Diego Building Trades Council v. Garmon, where the conduct of the Defendants is in breach of a valid collective bargaining contract, even though such conduct might be an unfair labor practice.
2. Defendants, Carpenters District Council of the sabine area and vicinity, and Millwrights Local Union No. 2484 were engaging in picketing which directly breached their collective bargaining agreement with the Plaintiff and were inducing the breach of collective bargaining agreements between other employers and the designated bargaining representatives of their employees in violation of Section 4 of Article 5154d of the Revised Civil Statutes of the State of Texas, and the state court decisions interpreting such statute.
3. Plaintiff has fully abided by and complied with all of the various obligations and responsibilities under the collective bargaining agreements with the Defendants.
4. Since the Defendants did not deny by pleading or otherwise this specific and controlling allegations of the verified petition, especially those pertaining to the irreparable harm being incurred by the Plaintiff, I find that Plaintiff does not have an adequate remedy at law and would continue to incur such loss and damage unless the Plaintiff were granted the relief prayed for in its petition.

We agree with the trial court’s conclusions of law. This court holds the pleadings and the evidence show a probable right of recovery in the applicant, Rust, and a possible injury to it if the temporary injunction had not been granted. No abuse of discretion on the part of the trial judge is shown by his granting the temporary injunction.

The judgment of the trial court granting a temporary injunction as against the Millwrights is affirmed. The temporary injunction against Carpenters Union is disposed of as hereinbefore set forth.

STEPHENSON, Justice

(dissenting).

I respectfully dissent:

I have concluded that the law in this state is that peaceful picketing cannot be restrained unless such picketing is unlawful or against public policy. As it was said by the Supreme Court of Texas in Cain, Brogden & Cain, Inc. v. Local Union 47 etc., 155 Tex. 304, 285 S.W.2d 942: “No injunction which prohibits lawful picketing may stand; only unlawful picketing may be enjoined.”

There is no evidence in this record to show any evidence or mass picketing. There is no evidence in this record to show the picketing is against public policy such as the cases involving secondary boycotting or an attempt to force an employer to hire union labor. The only argument made that the picketing is unlawful is that it is in violation of Article 5154d, Sec. 4, V.A.C.S., which reads as follows:

It shall be unlawful for any person, singly or in concert with others, to engage in picketing, the purpose of which, directly or indirectly, is to secure the disregard, breach or violation of a valid subsisting labor agreement arrived at between an employer and the representatives designated or selected by the employees for the purpose of collective bargaining, or certified as the bargaining unit under the provisions of the National Labor Relations Act.

The only evidence of a dispute between the Millwrights and Rust Engineering Co. is that Rust had employed people other than Millwrights to do Millwright work. Even though it is suggested by counsel that this is a matter of sub-standard wages, I do not so construe it. In any event, there is no evidence that the “purpose” of this strike is to “secure the disregard, breach or violation of a valid subsisting labor agreement,” even though the “effect” of the strike may result in such end. I do not think it was the intention of the legislature that Article 5154d, Sec. 4 have such meaning, as the word “purpose” must be given some significance. If this statute was intended to have the meaning suggested, then it would have been a simple matter to merely state that one union cannot picket as long as another union has a labor agreement with the same employer.

There are two contracts contained in the supplemental transcript which the trial judge says were tendered in evidence. The first contract is between The Rust Engineering Company and the United Brotherhood of Carpenters and Joiners of America. The second contract is between the Carpenters District Council of the Sabine Area and Vicinity and Sabine Area Construction Committee. I find no evidence of a contract between Rust Engineering Company and the Millwrights, nor do I find evidence of a contract between Rust Engineering Company and any other labor union which picketing could affect.

I also have concluded that if there was a contract between the parties compelling arbitration of disputes, and a no-strike clause, that alone does not mean that the picketing was “unlawful” or “against public policy.” The terms “breach of contract” and “unlawful” do not have the same meaning. It is not necessary for this court to pass upon the question of breach of contract as that question is not before us. Assuming there is a clear breach of the contract, it does not follow that injunction to restrain such breach would automatically follow. There is no evidence that petitioner does not have an adequate remedy at law for damages based upon a breach of contract. There being no evidence to support the action of the trial court, such judgment should be reversed and rendered and the injunction dissolved.

ON MOTION FOR REHEARING

PARKER, Justice.

Lengthy oral argument was had upon Motion for Rehearing. Because of contentions urged thereon by Millwrights Union, the original opinion is clarified by (a) and (b) below:

(a) Where it is stated the respective defendants will be referred to as “Carpenters Union” and “Millwrights Union”, we would make it plain that by “Carpenters Union” we are referring to Carpenters District Council of the Sabine Area and Vicinity.

(b) In Local 100 of United Association of Journeymen and Apprentices v. Borden, 373 U.S. 690, on page 693, 83 S.Ct. 1423, on page 1425, 10 L.Ed.2d 638, it is, by footnote 3, that Smith v. Evening News Ass’n holding is reiterated and distinguished, to-wit:

3. 49 Stat. 452, as amended, 29 U.S.C. §§ 157, 158. We do not deal here with suits brought in state courts under § 301 or § 303 of the Labor Management Relations Act, 61 Stat. 156, 158, 29 U.S.C. §§ 185, 187, which are governed by federal law and to which different principles are applicable. See, e. g., Smith v. Evening News Assn., 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246.

Referring to Rule 385, Section d, and Rule 682, T.R.C.P., discussed in the majority opinion, we would supplement this by the following:

In Vol. 6, Texas Practice, Lowe & Archer on page 363, Section 348, Hearing on Temporary Injunction, it is stated:

The hearing on application for temporary injunction may be on the pleadings alone, unless the material allegations of the complaint are denied under oath, in which case, proof of the allegations in the petition must be made. This proof may sometimes be made by supporting affidavits, but the trial court in its discretion may refuse to consider such affidavits and may require proof by testimony and evidence proffered in court as in other civil trials. The proof required to sustain the grant of a temporary injunction need not be conclusive as on final hearing, but is deemed sufficient if it reflects, prima facie, the existence of a probable right and a probable irreparable injury if the writ is not granted.

Cited thereunder is McAmis v. Gulf, C. & S. F. Ry. Co., 184 S.W. 331 (Tex.Civ.App.1916, writ ref.). On page 333, the court held:

Such verified allegations of fact on preliminary hearing, in the absence of an answer, affidavits, or oral testimony, controverting same, are sufficient basis for the issuance of the writ. The rule is thus stated:
“Except on final hearing for a perpetual injunction the bill or complaint itself, when properly verified, may be used as an affidavit as to the facts properly stated therein, and frequently the bill alone, when so verified, may be a sufficient basis for the issuance of a temporary injunction if it contains allegations of fact sufficient, if taken as true (as they will be before answer), to authorize the issuance of an injunction. * •* * ” 22 Cyc. 942.

In Daniel v. Kittrell, 188 S.W.2d 871 (Tex.Civ.App.1944, writ ref’d w. o. m.), the court held as follows:

Although a temporary restraining order must be granted or denied upon the verified complaint of the complaining party alone, the application for an injunction, whether temporary or permanent, may be granted or denied upon the pleadings of both parties and upon such evidence, if any, as may be adduced upon the issues drawn by the pleadings.

Lee v. Howard Broadcasting Corporation (Tex.Ct.Civ.App.1957) 305 S.W.2d 629 (no writ hist.).

It is clear from the authorities and the rules that in hearings on applications for temporary injunction ex parte affidavits are admissible and that “a verified petition and a responsive sworn answer thereto are to be taken together as evidence on a hearing for a temporary injunction.” 24-A Tex.Jur., Injunctions, Section 138, p. 228. Rule 385(d), Texas Rules of Civil Procedure. (Emphasis supplied.) We have no doubt of the right of a trial court under proper circumstances to decide fact issues on application for temporary injunction on the basis of sworn pleadings considered as affidavits — each case to stand on its own bottom. (Above emphasis is that of Chief Justice Gannon.)

The above case was cited by Justice Pope in Littlejohn v. Finder (Tex.Ct.Civ.App.1961) 348 S.W.2d 237 (no writ hist.) :

Littlejohn contends that the court erred in considering only the pleadings and affidavits and in not hearing evidence. See, Lee v. Howard Broadcasting Corporation, Tex.Civ.App., 305 S.W.2d 629.

The motion for rehearing herein states “that there was no evidence submitted, ambiguous or otherwise, so now [sic] could there have been anything contrary to the allegations of Rust ?” Further, in the motion for rehearing, it is stated the trial court took away from them the right to be heard and that no chance was given to them to be heard. We do not agree with either contention. Mr. Sartain was on the stand. No question was asked him as to the reason for the picketing, only as to the picketing. He placed the pickets and withdrew them. It cannot be said that the trial court refused to hear evidence on the reason for the picketing. It was the responsibility of the parties to call witnesses and question them. Sartain of Millwrights Union was asked no question about any dispute.

Upon the hearing in the instant case, the attorney for Millwrights Union elected to take the initiative, dictated into the record an answer which the court authorized him to swear to and file. Most of the terms of the collective bargaining agreements were incorporated in his answer. As part of his answer he stated:

Now, at the outset I should like to tell the Court on behalf of the Millwrights there is no dispute over the Agreement and there is no request that the Agreement be changed. We have no dispute which would come within this latter Contract and Agreement which I referred to, which incidentally was signed on the 4th day of May, 1967. (Tr. 36, 2-9)

Counsel for Millwrights Union has asserted the collective bargaining contracts, appearing in full on this appeal in a supplemental transcript, were not before the trial court. We disagree. We quote from the statement of facts:

On the second point as to the defense raised by Mr. Stephenson on behalf of the Union regarding wages, I have checked now with the Company, there has been no grievance filed, there has been no discussion concerning wages. We were without any knowledge of this whatsoever, but even in the face of that, even if there were such a dispute, the no-strike clause in this contract is very clear in that it indicates that there shall be no stoppage of work because of any proposed changes to this agreement of any disputes over matters relating to this agreement. Even if there is or possibly might be a wage dispute such as described by Mr. Stephenson on behalf of the Union, the Union was still in violation of this contract and in violation of Section 6 regarding the no-strike clause.
THE COURT: What is the grievance procedure under the contract, for my information ?
MR. DUKE: Your Honor, I will give you a copy. I have several copies. (Tendering contract to the Court).
THE COURT: It has to do with hiring someone else to do the millwrights’ work.
MR. STEPHENSON: No, sir, if they were paying the same wage, we would have no complaint.

It is clear most terms of the collective bargaining agreement were agreed upon in the verified petition and verified answer. Full copies were before the court without objection. Millwrights Union in no manner challenged the statement that Rust never had knowledge of any demand by “Millwrights Union” and had no opportunity to negotiate before the picketing. Under such conditions, picketing was not justified. North East Texas Motor Lines, Inc. v. Dickson et al. (1949), 148 Tex. 35, 219 S.W.2d 795, 11 A.L.R.2d 1065.

In granting a temporary injunction, the purpose is to maintain the status quo until a final hearing could be had on issues. It is not an adjudication of merits as upon final hearing. Temporary injunction, ordinarily, is not a substitute for, nor does it serve the same purpose as, a hearing on the merits. The trial court did not abuse its discretion in granting the temporary injunction as to Millwrights Union.

Motion for rehearing overruled.

STEPHENSON, Justice

(dissenting).

I respectfully dissent further as follows:

All of the cases cited in the majority opinion as supporting the action of the trial court in entering judgment granting the injunction are “status quo cases.” The case pending before us is not a “status quo” case. This trial court disposed of all of the issues pending and left nothing to be determined later. This is not a trespass to try title case, in which one party is restrained from cutting the timber until the issue of title could be determined. This is not a case in which the trial court decided there was a “probable right” and a “probable injury” and entered an order to maintain the status quo until the case could be decided on its merits. These were the merits of this case which the trial court finally determined without giving either party an opportunity to offer evidence.

I would distinguish a case which disposes of all of the issues, from one in which there is an order pendente lite, and require a trial court to hear more than the sworn pleadings and ex parte affidavits before entering a final judgment as was done in this case. In this type of case, a “clear right” to the relief sought must be shown as in a permanent injunction. James v. E. Weinstein & Sons (Tex.Com.App.) 12 S.W.2d 959; Perry v. Stringfellow, 134 Tex. 328, 134 S.W.2d 1031; McMurrey Refining Co. v. State, Tex.Civ.App., 149 S.W.2d 276.


author: RENFRO, Justice.

text:
    Mrs. Clyde HAMILTON et al., Appellants, v. WAPLES-PLATTER COMPANY et al., Appellees.
    No. 16891.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 2, 1968.
    King & Massey, and Marion L. Massey, Fort Worth, for appellants.
    Brown, Day & Crowley, and M. Hendricks Brown, Fort Worth, for appellees.
   OPINION

RENFRO, Justice.

This is an appeal by plaintiffs from a judgment based on a directed verdict in favor of defendants.

Plaintiffs are Mrs. Clyde Hamilton and Charles E. Gilroy, parents of Michael David Gilroy. Defendants are Waples-Platter Company and Jerry A. Snyder, Jr.

It was alleged that on December 27, 1965, at 7:45 P.M., Michael David Gilroy, age 15, was riding his Honda motorbike in an easterly direction in the South lane of Loop 820 in Forest Hills, Tarrant County, when suddenly and without warning a huge International tractor and trailer overtook and collided with young Gilroy, passing over his body, causing fatal injuries which resulted in his death. That the collision occurred about two hundred feet west of the Hartman Lane overpass on Loop 820.

The petition alleged that Snyder, acting in the scope and course of his employment as an agent, servant and employee for Wap-les-Platter Company, was guilty of the following acts of negligence, each of which was a proximate cause of the injuries sustained by Gilroy: 1, in failing to keep a proper lookout; 2, in traveling at a speed which was greater than was reasonable under the terms and conditions existing immediately prior to the collision; 3, in failing to timely apply his brakes; and 4, in failing to turn to the left immediately prior to the collision. The petition closed with prayer for damages in the sum of $21,389.-80.

The defendants’ answer consisted of a general denial, a plea that the occurrence complained of was caused solely by one or more vehicles which struck and ran over Gilroy prior to the time defendants’ vehicle may have had any contact with either the motorbike or Gilroy’s body; and that neither defendant was responsible in any manner for the accident. Seven acts of contributory negligence were also charged against Gilroy.

At the conclusion of the plaintiffs’ evidence, the court sustained defendants’ motion for instructed verdict.

The plaintiffs-appellants base their appeal on the alleged error of the court in granting defendants’ motion for instructed verdict and in excluding plaintiffs’ exhibit No. 3, a photograph.

By deposition, the defendant Snyder testified the incident occurred around 8:45 P.M., on December 27, 1965. He was returning to Fort Worth from Waco where he had made deliveries during the day. He turned off Highway 81 from Waco onto Loop 820, his destination being the Company’s warehouse in Richland Industrial Park. As to his approach to the Hartman overpass, he was asked, “You tell me when you first saw anything unusual in front of you?” He answered, “Just, back just before you get to the bridge, it looked like something, you know how paper or something will look like it flies from something, that is what it looked like. And then when I got to the bridge, might near to the bridge, I seen this other one, immediately I started applying my brakes, started slowing down, but I could not slow down fast enough. I went over the cycle.” He did not know whether he ran over the body, but if he did it was because the body was already in the road. He never did see the body until after he had stopped the truck and walked back to the cycle. The thing that looked like paper came from under the truck in front of him. He did not know whether it was the cycle or the body that came from under the truck ahead. His lights illuminated the truck ahead sufficiently for him to see it was a van type truck. After stopping, he and another truck driver, who had come from behind him, went back to the overpass. The cycle was laying in the approximate middle of the bridge in the left lane of the main traveled portion of the road. The body was laying very near or on the center line just west of the bridge. He did not know whether the following truck ran over the body.

The witness Roy W. McDonald testified by deposition: He entered Loop 820 from Highway No. 81; he was behind Snyder on the Loop; he was approximately.' one-quarter mile behind Snyder when Snyder reached the bridge in question. He was driving a Montgomery Ward truck; “Well, whenever I come up over the Forest Hill Overpass, well, they was stopped * * * this truck that was in front of me, I seen his brake lights come on, and I am not sure, but I think there was a car running right along the side of me. Now, I couldn’t * * * the car might have been ahead of him. Then, his brakes went on, then I went on up there, and I see the obstacle laying in the road. I don’t know what it was. And just as I got where my lights picked it up, I swerved over to the left hand and looked over my * * * from my right fender and still couldn’t make out what it was, and I pulled on across the overpass, * * *. He (Snyder) was over on the right.” He asked Snyder what was laying in the road. Snyder answered, “ T don’t know, but I hit it.’ ” There was a bob-tail truck following immediately behind witness. “This kid down there in the street. He was rolled up whenever I saw him; but, whenever I got back to him, he was straightened out.” The cycle was over on the left shoulder; the body was in the right hand lane about twelve feet off the viaduct. The boy was dead when he reached him. Witness “sure don’t” know who ran over him first. He was travelling about 40-45 miles per hour prior to reaching the scene; Snyder probably was running 5 miles per hour faster.

Witness Charlie Smith, police officer of the City of Forest Hill, testified: On the occasion in question he was about two blocks west of the scene of the accident, talking to the driver of a pickup truck; from his position he could not see the scene of the accident; he did not hear any noise from that direction; he received a radio call to go investigate; the boy’s body was just west of the Hartman Street bridge, the bike was in the middle of the bridge, about 140 feet apart; there were 33 feet of skid marks to the body, 84 feet beyond the body; at that time of the evening Loop 820 had considerable truck traffic going both east and west and you saw a lot of big van trucks, most of them going east; the posted speed limit is 55 maximum, 40 minimum; the cycle was on the left walkway across the bridge, it appeared to have been knocked to the left above that area; he was told by both McDonald and Snyder that the bob-tail truck did not stop. Snyder told him he had felt something under his truck, had stopped and gone back to see what it was.

There is evidence in the record that Gil-roy was wearing a green jacket and blue jeans. The Honda was black.

Dr. Feliks Gwozdz, Chief Deputy Medical Examiner in the Medical Examination Office for Tarrant County, testified: He examined Gilroy's body December 28, 1965, and determined death to have occurred at 8:04 P.M. of the 27th. There was a large fracture beginning at the right side of the neck. This part of the body showed particular markings consistent with the mark of an automobile tire. There was a massive fracture of the cranial bones and massive contusion to the brain itself and this fracture and contusion to the brain was considered to represent the immediate cause of death. There was abrasion of the skin, on the right shoulder and the left inguinal which is the lower left abdomen. The left femoral bone was fractured, as well as the right lower leg and the right knee joint. The head wound showed the marks of no more than one set of tires. However, a number of different tires had passed over the body. It is unlikely the same tire caused all the body injuries.

Defendants based their motion for instructed verdict on the grounds there was no evidence of probative force to support any finding of negligence on the part of defendants proximately causing the occurrence, and there was no evidence that Snyder struck Gilroy while he was operating the Honda, or that he even struck Gilroy while he was lying in the street.

In the judgment the court found “ * * as a matter of law the plaintiffs’ testimony wholly failed to support his pleadings and wholly failed to raise any issue of negligence, or that the death of the said minor deceased was due to any conduct on the part of the defendants; * *

On appeal plaintiffs argue that from the testimony as a whole the jury could have found that Snyder never did see Gilroy as the boy came up on Loop 820, collided with him, rolling him under the truck and causing his death, or even if the boy was in the road after having fallen off his bike or being hit by another vehicle, the actual death was caused by Snyder passing over the head of the boy, therefore the jury could have found that Snyder failed to keep a proper lookout.

After a careful study of the entire record we find we must agree with the court that there was no competent evidence of probative force to show that defendants’ truck caused the injuries to young Gilroy. We must also agree that the record failed to show evidence that Snyder was guilty of any act of negligence on the occasion in question.

When the case is taken from the jury, the appellate court is required to review the evidence in the light most favorable to the party against whom the motion is directed and indulge in every reasonable inference therefrom favorable to such party, and disregard all evidence which is favorable to the moving party and which is not of a conclusive nature. Abrams v. Brent, 362 S.W.2d 155 (Tex.Civ.App., 1962, ref., n. r. e.); Fireman’s Fund Insurance Co. v. Martinez, 387 S.W.2d 443 (Tex.Civ.App., 1965, ref., n. r. e.).

Applying the above rule to the evidence in this case, we are forced to conclude that a finding of negligence and proximate cause on the part of the jury would have been based on guess or speculation. We might guess or speculate that Snyder’s conduct caused the unfortunate death of the boy. But placing responsibility on one person for the death of another person should be based on more than “guess” or speculation.

Plaintiffs, in point two, claim the court erred in excluding their photograph Exhibit No. 3.

There was considerable discussion among the attorneys and the court concerning the introduction of photograph exhibits. Beginning on page 96 of the statement of facts, however, the record reflects the following :

“The Court: All right. Here is what I am going to do. I am going to admit that •one, and refuse this one.
“Mr. Massey: Okay. Note our exception.
“The Court: Okay. No. 3 is in.
“Mr. Massey: We offer 3,4, 5, and 6, and 4 has been excluded ?
“The Court: Yes. * * *
“Mr. Massey: Officer, I hand you what has been marked as Plaintiffs’ Exhibit No. 3, and I will ask you to identify and orient us there in that photograph, please, sir.”

The officer, using the photograph, testified at considerable length. Later, counsel asked, “Officer, the photograph there that I have previously asked you about, Plaintiffs’ Exhibit 3, which portion of the body is closest to the camera here ? ” On cross-examination the witness was again questioned about Exhibit 3.

Obviously Exhibit No. 3 was admitted in evidence. Plaintiffs’ point is without merit.

The judgment of the trial court is affirmed.

Affirmed.


author: CLAUDE WILLIAMS, Justice.

text:
    Aline SWINFORD, Appellant, v. ALLIED FINANCE COMPANY OF CASA VIEW, Appellee.
    No. 17007.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 26, 1968.
    Rehearing Denied Feb. 16, 1968.

      Jerry M. Hyde, Arlington, for appellant.
    John D. Crawford, of Locke, Purnell, Boren, Laney & Neely, Dallas, for appellee.
   CLAUDE WILLIAMS, Justice.

Allied Finance Company of Casa View brought this action against Aline Swinford and Weldon Glenn Swinford seeking judgment for the unpaid balance of a promissory note and also for the foreclosure of a chattel mortgage on certain personal property given as security for said note. The defendant Weldon Glenn Swinford was subsequently dismissed from the action. Defendant Aline Swinford filed her plea in abatement alleging the pendency of bankruptcy proceedings in the United States District Court for the Northern District of Texas involving the same indebtedness and security. She also filed numerous special exceptions, followed by a general denial. Plaintiff filed its motion for summary judgment in due form and supported by proper affidavit. Defendant failed to appear and answer or otherwise controvert the summary judgment motion. Upon hearing, the trial court overruled the plea in abatement and sustained the motion for summary judgment. Aline Swinford appeals from such judgment. We affirm.

Appellant earnestly contends that the trial court was in error in rendering a summary judgment wtihout considering and ruling upon appellant’s special exceptions to appellee’s pleading. It is true that appellant filed four special exceptions complaining of appellee’s original petition, same presenting questions concerning the pend-ency of the bankruptcy proceedings, cover-ture of appellant, and lack of necessary party. However, the record is entirely silent and does not disclose that appellant at any time presented said exceptions to the trial court and secured the court’s ruling thereon. Under such condition of the record we hold that all such special exceptions were waived.

This court, speaking through Mr. Justice Bateman, in Cook v. Jaynes, 366 S.W.2d 646 (Tex.Civ.App., Dallas 1963), stated the rule:

“We make the same disposition of appellant’s point that the summary judgment should not have been granted until appellant’s special exceptions had been acted upon. We agree that the proper, orderly manner for trial courts to dispose of such matters is to pass on objections to pleadings before rendering judgment, but there is nothing in this record to indicate that appellant called these exceptions to the trial court’s attention or requested action thereon. If he did not do so, the exceptions were waived. Rule 90, Vernon’s Texas R.C.P.”

To the same effect see 3 Tex.Jur.2d, § 117, p. 386; 45 Tex.Jur.2d, § 187, p. 748; Wilson v. Clarke Floor Machine Co., 380 S.W.2d 768 (Tex.Civ.App., Eastland 1964) ; and White v. Allstate Ins. Co., 386 S.W.2d 601 (Tex.Civ.App., Beaumont 1965, writ ref’d n. r. e.).

We have examined each of the special exceptions and find that the same are without merit so that any possible error on the part of the court in failing to pass upon the same would be harmless. Rule 434, Vernon’s Texas Rules of Civil Procedure.

Appellant next contends that the trial court erroneously granted summary judgment against her because of the dismissal of Weldon Glenn Swinford. This argument is based upon the proposition that at the time the note sued upon was executed by her she was the wife of Weldon Glenn Swinford; that subsequently they were divorced and in the decree of divorce it was adjudged that all community debts were to be paid by the husband, Weldon Glenn Swinford. She argues, therefore, that Weldon Glenn Swinford became the principal obligor upon the note sued upon and, perforce Art. 2088, Vernon’s Ann.Civ.St. of Texas and Rule 163, T.R.C.P., the court could not properly dismiss him from the action. Appellant’s contention cannot be sustained.

The only way we can ascertain the facts concerning the marital status of the parties as well as the divorce proceedings is from the certified copy of the divorce decree attached to defendant’s answer.

The note sued upon is standard in form and provides that the signers thereof were jointly and severally obligated to pay same. Both Aline Swinford and Weldon Glenn Swinford signed the note and thereby became joint obligors. Assuming the parties were man and wife at that time and were subsequently divorced and the judgment of the divorce court imposed liability upon the husband for the indebtedness, yet, such action could have no legal effect upon the rights of the holder and owner of the note. Appellee is not shown to have been a party to or had any notice of the divorce action or the judgment rendered therein. It is well settled that the rights of any owner in property, aside from the exempt property, are, in a very important sense, subordinate to the rights of his creditors. The court in a divorce action has no power to disturb the rights which creditors lawfully have against the parties. As stated in 3 Speer’s Marital Rights in Texas, § 840, p. 201:

“In truth, however, the partitioning of the community property is not a disposition of it at all. There is no change of owners, but a mere ascertainment and separation of the interests theretofore exercised in common. It remains subject to the demands of creditors, and the wife receiving and appropriating property in the partition that would otherwise be liable to creditors, becomes personally liable, to the extent of the property so received, for the payment of the debts.”

Since appellant was a principal obligor on the note she may be sued either alone or jointly with Weldon Glenn Swin-ford, the other principal obligor, and it was not error for the court to dismiss one and allow recovery against the other. Art. 1986, V.A.C.S.; Shield v. First Coleman Nat. Bank of Coleman, 160 S.W.2d 277 (Tex.Civ.App., Austin 1940, affirmed Sup. Ct.1942, 140 Tex. 117, 166 S.W.2d 688). Not being the only principal obligor on the note, Weldon Glenn Swinford was not an indispensable or necessary party to the action.

Appellant next contends that the original petition was fatally defective on its face and therefore summary judgment was improper. Appellant argues that it was fundamental error for the court to enter judgment upon the petition which failed to allege that appellant was not a feme covert at the time of execution of the note sued upon or that the contractual consideration was actually furnished for necessaries for herself, or her separate estate. By a 1963 amendment of Art. 4626, V.A.C.S., it is expressly provided that a married woman shall have the same powers and capacity as if she were a feme sole, in her own name, to contract and be contracted with, sue and be sued, and all her separate property, her personal earnings and the revenues from her separate estate which are not exempt from execution under the laws of Texas shall thereafter be subject to her debts and be liable therefor, and her contracts and obligations shall be binding on her. The Legislature, in 1963, also repealed Art. 4623 (House Bill 403, Ch. 472, p. 1188, Act of 58th Legislature Regular Session) which dealt with property being subject to the payment of debts contracted by the wife except those contracted for necessaries furnished her or her children. Therefore, when the note in question was executed by appellant in this case on January 27, 1965 she was subject to the amended law which imposed liability upon her as a feme sole.

Appellant’s identical contention was advanced and rejected in Kitten v. Vaughn, 397 S.W.2d 530 (Tex.Civ.App., Austin 1965).

Appellant’s next contention, to the effect that the trial court, by entering summary judgment in this case, interfered with the bankruptcy proceedings in the United States District Court contrary to statute, is likewise without merit and must be overruled for several reasons. It is apparent from the information contained in the various special exceptions as well as the plea in abatement that appellant herself was not a party to the bankruptcy proceedings pending in the federal court. Weldon Glenn Swinford, the other principal obligor on the note sued upon, was a party to the bankruptcy proceedings. The property incorporated in the chattel mortgage sought to be foreclosed in this action was listed by Weldon Glenn Swinford in the bankruptcy schedule.

It is settled law that a discharge in bankruptcy is personal to the bankrupt and does not have the effect of canceling or releasing the liability of a person jointly liable for a debt. 11 U.S.C.A. § 34; Bradley v. Straus-Frank Co., 414 S.W.2d 504 (Tex.Civ.App., Dallas 1967). Moreover, the record reveals that the bankruptcy court, acting through the trustee in bankruptcy, specifically abandoned and disclaimed all right, title and interest to the assets involved in this lawsuit. In view of these facts, apparent in this record, no possible conflict of jurisdiction is apparent which would vitiate the action of the state court in proceeding to summary judgment.

In a number of points appellant complains of the action of the trial court in proceeding to hear her plea in abatement, and overruling same, without giving her notice of the hearing. It is true that the judgment of the court does not affirmatively state that notice was given appellant prior to the hearing of the plea in abatement. We find it unnecessary to comment further upon the question of lack of notice of the hearing for the simple reason that even if we assume that the court was in error in failing to give notice of the hearing on the plea in abatement such error is not shown to have resulted in any harm or damage to appellant. This for the reason that the plea in abatement, as above demonstrated, is without merit, as a matter of law.

Appellant’s argument that the court erred in not giving her notice of the hearing of the summary judgment is without merit. The judgment itself recites due notice of the motion and setting thereon and also recites that such motion was not controverted.

The record in this case is abundantly clear that appellant had due notice of the motion for summary judgment and made no attempt to controvert such motion as provided by Rule 166-A, T.R.C.P. No question of due order of pleading is involved nor would appellant have waived or abandoned any rights asserted by virtue of her plea in abatement and special exceptions had she proceeded to file controverting affidavit or other opposition to the motion. She elected to remain silent and not appear at the hearing. At such hearing the burden of proof was definitely upon appellee to establish the nonexistence of issuable facts. Ap-pellee did this by introducing extrinsic evidence in support of its position thereby demonstrating its right to recover. Under such circumstances the judgment is proper. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952); Gulf, C. & S. F. Ry. Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492 (1958); Sessions Co. v. W. A. Sheaffer Pen Co., 344 S.W.2d 180 (Tex.Civ.App., Dallas 1961); Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948 (1960); and Burnett v. Cory Corporation, 352 S.W.2d 502 (Tex.Civ.App., Dallas 1961).

We have carefully considered all of appellant’s points and find the same to be without merit and are overruled.

The judgment of the trial court is affirmed.