author: GREEN, Chief Justice.

text:
    Margaret E. STRAUCH, Appellant, v. COASTAL STATES CRUDE GATHERING COMPANY, Appellee.
    No. 365.
    Court of Civil Appeals of Texas. Corpus Christi.
    Feb. 8, 1968.
    Rehearing Denied Feb. 29, 1968.

      George Strauch, Houston, for appellant.
    W. T. Blackburn, Corpus Christi, for ap-pellee.
   OPINION

GREEN, Chief Justice.

Appellant Margaret E. Strauch, plaintiff below, filed suit alleging a continuing trespass on her property by the unlawful construction thereon by appellee in 1965 of a pipe line, seeking damages of $1400.00, and also asking for a declaration by the court that a pipe line right of way easement did not authorize the construction by defendant of additional pipe lines across her land. Ap-pellee, defendant in the trial court, answered that it was not guilty of any trespass because the subject pipe line right of way easement granted the right to construct the pipe line installed by appellee across appellant’s land. Appellant propounded two sets of interrogatories to appellee, the sworn answers to which were filed in the record, and on the basis of the pleadings, the right of way deed attached as an exhibit to plaintiff’s petition, and’ the interrogatories and sworn answers on file, each party filed a motion for summary judgment, each alleging in her or its respective motion that there was no genuine issue of any material fact. On June 6, 1966, the court rendered a partial summary judgment on the issue of liability favorable to plaintiff, but an attempted appeal by Coastal States was dismissed by this Court on the ground that such partial judgment was interlocutory and non-appealable. Coastal States Crude Gathering Company v. Strauch, Tex.Civ.App., 410 S.W.2d 945, n. w. h. After the mandate had been received by the district clerk, defendant filed its second motion for summary judgment together with a stipulation that in the event the court should hold that Coastal States did not have the right to construct the 1965 pipe line across plaintiff’s land, her damages as a result of defendant’s trespass would be the maximum sued for, to-wit, $1,400.00

Following a hearing, the trial court in effect set aside the interlocutory order of June 6, 1966, denied appellant’s motion for summary judgment, and rendered judgment sustaining appellee’s second motion, and held that appellee Coastal States was entitled as a matter of law under the subject right of way easement grant to install the additional 1965 pipe line across plaintiff’s land and that plaintiff was not entitled to damages as alleged by her. Plaintiff has appealed from that order.

The relevant portions of the right of way grant executed in 1942 by the then owner of the land to Sinclair Refining Company read as follows:

“RIGHT OF WAY
“FOR AND IN CONSIDERATION OF THE SUM OF THIRTY-NINE & 50/100 — DOLLARS, to the grantors paid, the receipt of which is hereby acknowledged, A. F. SCHULZE ALBERT A. SCHULZE herein called Grantors, hereby grant unto SINCLAIR REFINING COMPANY, a Maine corporation, hereafter called Grantee, the right to lay, maintain, inspect, operate, repair, replace, and remove a pipe line for the transportation of crude petroleum, oil, gas, the products or by-products of each thereof and also water, and further the right to erect, install, maintain, inspect, operate, repair and remove telegraph and telephone lines and equipment and apparatus therefor, if grantee desires to do so, to be used in connection with any pipe line owned by said grantee on, over and through the following described land. * * *
“And for an additional consideration of One Dollar ($1.00), the receipt of which is hereby acknowledged, said grantors hereby grant unto said grantee the right at any time to lay, maintain, operate, repair, replace, or remove an additional pipe line or pipe lines alongside of said first pipe line for the transportation of crude petroleum, oil, gas, the products or byproducts of each thereof, and also water on, over and through said land and grantee agrees to pay grantors for each additional pipe line placed on said land by it the sum of $39.50 on or before the time grantee commences to construct such pipe line on, over and through said land; said additional line or lines to be laid subject to the same rights, privileges and conditions as the original line.
“Grantee has the right to change the size of its pipes, the damage, if any, in making such change to be paid by the said grantee.
“ * * * the terms, conditions and provisions of this contract shall extend to and be binding upon the heirs, executors, administrators, personal representatives, successors and assigns of the parties hereto.”

This instrument was filed for record with the County Clerk of Refugio County, Texas, wherein the land is located, on February 15, 1943, and was duly recorded in the deed records of that county.

Sinclair laid the first pipe line, an 8 inch line, across this land in 1943. Appellee Coastal States by mesne assignments became the owner of the easement rights in 1964, and in 1965 constructed a 12 inch pipe line across the land approximately 15 feet to the east and parallel with the first line for the purpose of transportation of crude oil. Plaintiff in the meantime had acquired title to the land involved.

There was no issue of fraud or deceit raised in appellant’s pleadings, and the principal issue on this appeal is as to the proper construction to be placed upon the provisions copied above from the subject easement grant.

Appellant assigns, as grounds for reversal, five points of error as follows:

POINTS OF ERROR
FIRST POINT OF ERROR
The Trial Court erroneously ruled that the Appellant could not recover damages for the installation of the second pipeline on appellant’s land.
SECOND POINT OF ERROR
The Trial Court should be reversed because the Language of the Easement created an Interest obnoxious to the Rule Against Perpetuities.
THIRD POINT OF ERROR
The Trial Court should be reversed because the broad and indefinite language of the easement grant having left the rights of the parties uncertain, their rights were defined and made certain by a course of usage.
FOURTH POINT OF ERROR
The Trial Court should be reversed because the right to install additional pipelines was not assignable.
FIFTH POINT OF ERROR
The right to install additional pipelines was either abandoned or not assigned.

Since, as shown by the statement and argument of appellant under the first point, it is all inclusive of the other four specific alleged errors, we shall proceed to discuss and pass on points 2, 3, 4 and 5.

Appellant contends by her second point that since the language of the easement grant purports to create a separate optional right (supported by separate consideration) to acquire additional servient land in the future, and since this is a future interest which is not bound to vest within twenty-one years, the interest is void as violating the rule against perpetuities. Appellee answers that the rights granted in the right of way easement to construct additional pipe lines were vested rights, which became vested at the time of the grant, and thus do not constitute an option and do not violate the rule against perpetuities.

Most of the reported multiple line rights cases have dealt with this same argument by the landowner that a grant of the right to construct additional pipe lines at a later time was an option that was void as being contrary to the rule against perpetuities. The courts have uniformly held against this contention. Phillips Petroleum Company v. Lovell, Tex.Civ.App., 392 S.W.2d 748, wr. ref., n. r. e.; Williams v. Humble Pipe Line Company, Tex.Civ.App., 417 S.W.2d 453, n. w. h.; Baker v. Tennessee Gas Transmission Co., Tenn., 250 S.W.2d 566; Hamilton v. Transcontinental Gas Pipe Line Corp., Miss., 110 So.2d 612; Babler v. Shell Pipe Line Corp., D.C.,E.D.Mo., 34 F.Supp. 10; Belusko v. Phillips Petroleum Company, 7th Cir., 308 F.2d 832; Vandiver v. Transcontinental Gas Pipe Line Corporation, U.S.D.Ct. Ga., Athens Div., 222 F.Supp. 731; Caruthers v. Peoples Natural Gas Co., 155 Pa. Super. 332, 38 A.2d 713; Sorrell v. Tennessee Gas Transmission Company, Ky.Ct.App., 314 S.W.2d 193; Texas Eastern Transmission Corporation v. Carman, Ky.Ct.App., 314 S.W.2d 684.

We quote from Sorrell, supra, as follows:

“It is next maintained the agreement in controversy violates the rule against per-petuities. This rule is in these words as set forth in Gray’s The Rule against Per-petuities, Section 301 (4th Ed.): ‘No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest.’ It is apparent from a casual reading of this language that the rule is not involved with the possession and enjoyment of an interest but with its vesting. As has been shown, the instrument with which we are concerned grants present rights and subjects the land described therein to an immediate servitude. It is true that the owner of the easement is not limited as to the time in which it may make full use of its rights. This, however, does not mean that its rights have not vested. Many types of easements which are granted in perpetuity are not exercised immediately, or within any limited time; yet it has never been suggested that the non-use of the rights granted, either in whole or in part, affects their validity. See Restatement of the Law of Property, Chapter 27, Section 399, Comment g, page 2341. Nor does the circumstance that a payment is to be made when the easement is used prevent it from being a present right. See Gray, supra, Section 279.”

See also, on validity and construction of multiple lines grant, Coastal States Crude Gathering Company v. Cummings, Tex.Civ.App., 415 S.W.2d 240, wr. ref. n. r. e.

We hold that the grant of the right at any time to lay and maintain an additional pipe line or pipe lines alongside of the first one for the purposes mentioned did not constitute a mere option but created an expansible easement with vested rights not affected by the rule against perpetuities. Appellant’s second point of error is overruled.

In the statement and argument under her third point, supra, appellant contends that the language of the easement grant is indefinite as to the number, location, size, physical limits of the easement, and time when additional lines would be installed, and that because of such indefiniteness the course of usage (22 years between the installation of the first line and the second) fixed the number of pipe lines at one and the size of the pipe to eight inches. Appellant supports her contentions by five cases, Houston Pipe Line Company v. Dwyer, Tex.Sup.Ct., 374 S.W.2d 662; Winslow v. City of Vallejo, 148 Cal. 723, 84 P. 191, 5 L.R.A.,N.S., 851; City of Pasadena v. California-Michigan Land & Water Co., 17 Cal.2d 576, 110 P.2d 983, 133 A.L.R. 186; Tennessee Public Service Co. v. Price, 16 Tenn.App. 58, 65 S.W.2d 879; Belusko v. Phillips Petroleum Co., S.Dist.Ill., 198 F.Supp 140, affd., 7th Cir., 308 F.2d 832. We do not find the decisions cited to be controlling over the fact situation here presented.

The courts have held that the failure to spell out all of the terms in an easement with respect to the construction of additional pipe lines does not render ambiguous or un-enforcible the rights granted. Crawford v. Tennessee Gas Transmission Co., Tex.Civ.App., 250 S.W.2d 237, wr. ref.; Lone Star Gas Co. v. Childress, Tex.Civ.App., 187 S.W.2d 936, n. w. h.; Vandiver v. Transcontinental Gas Pipe Line Corporation, supra; Sorrell v. Tennessee Gas Transmission Company, supra. Quoting again from Sorrell:

“There are, of course, elements of indefiniteness in every instrument which simply grants certain rights of use with respect to a tract of land and does not specify that those rights are to be exercised over any particular portion of the property. Then, too, the quantity of land which may be used by the grantee for constructing and maintaining its line or for ingress and egress is not customarily specified in the type of easement under consideration and these matters may likewise be said to be left uncertain. The great weight of authority is, however, that such grants are nevertheless valid. See 17A Am.Jur., Easements, Sec. 101, p. 711; 28 C.J.S. Easements § 80, p. 760.”

The Belusko case cited by appellant is clearly distinguishable on the facts There, the easement grant recited a lump sum consideration for the laying of the first pipe line, as follows:

“For And In Consideration of the sum of Fifty & No/100 Dollars ($50.00) in hand paid, the receipt of which is hereby acknowledged, * * * ”

Then the clause providing for the laying of additional pipe lines contains the following provision:

“Should more than one pipe line be laid under this grant, at any time, an additional consideration, calculated on the same basis per lineal rod as the consideration hereinabove recited, shall be paid for each line so laid after the first line.”

The district judge assigned three reasons for holding the instrument invalid for indefiniteness, none of which applies to the instrument we are construing. The principal ground given by him, and the only one expressly touched on by the circuit court of appeals in affirming the judgment (supra) was that no consideration “per lineal rod” of pipe, and no standard by which such consideration is to he determined, is recited in any part of the instrument.

There is no such problem in the subject pipe line right of way easement, because here the consideration to be paid for each additional pipe line is clearly and unmistakably spelled out, and the instrument in definite language expressly granted the right to lay etc. the additional pipe line alongside of the first line.

City of Pasadena v. California-Michigan Land & Water Co., supra, cited by appellant involved an inquiry by the court as to whether or not the easement was exclusive. Appellee does not contend that it has an exclusive easement, and that issue is not before us.

The instrument in the present case granted the right to lay, maintain, inspect, operate, repair, replace and remove a pipe line for the purposes stated therein, and also, in a separate paragraph to at any time lay, maintain, operate, repair, replace, or remove an additional pipe line alongside of the first one. It proceeded to give, by express language, the right to grantee to change the size of its pipes.

The right to lay only one pipe line was granted in Houston Pipe Line Company v. Dwyer, supra. The company was not granted the right to remove and replace it by larger size pipe; and the court in construing the provisions of the easement grant held that the easement rights became fixed and certain when the company constructed its 18 inch line, and it was not authorized several years later to remove such line and replace it with a substantially larger pipe line. In our case, as will be noticed by comparison of the two instruments, grantee was given additional rights the omission of which in Dwyer was especially commented on in the opinion. Certainly the grant in the present case does not evidence that it was the intent of the parties that grantee or its assigns, in the laying of an additional pipe line would be limited to the eight inch size of the pipe first laid; indeed it expresses an intention quite to the contrary. See Knox v. Pioneer Natural Gas Company, Tex.Civ.App., 321 S.W.2d 596, wr. ref. n. r. e., distinguished on the facts in Dwyer, supra; Weaver v. Natural Gas Pipeline Company of America, 27 Ill.2d 48, 188 N.E.2d 18.

As stated in Phillips Petroleum Company v. Lovell, Tex.Civ.App., 392 S.W.2d 748, p. 751, wr. ref. n. r. e.:

“We do not consider Houston Pipe Line Company v. Dwyer, Tex.Sup., 374 S.W.2d 662, nor Winslow v. City of Vallejo, 148 Cal. 723, 84 P. 191, 5 L.R.A.,N.S., 851, relied on by appellees, as being analogous to the instant case on the facts. The former involved a single line grant and the latter a single installation grant. Neither is applicable to a multiple line grant such as those in the instant case.”

See, also, Coastal States Crude Gathering Co. v. Cummings, Tex.Civ.App., 415 S.W.2d 240, 243, wr. ref. n. r. e.

The factual situation in Tennessee Public Service Co. v. Price, supra, involves an attempt by the power company to enlarge and relocate, in accordance with blue prints unknown to grantor and his assigns and kept in the New York office of power company, an indefinite easement after its limits had been defined years earlier by practical construction of the parties, and is in no way comparable to the present case.

We have given careful consideration to the language in each paragraph of the easement grant here in litigation, and find nothing so indefinite or ambiguous as to create an uncertainty of construction or a material fact issue on the record before us. No issue of unreasonableness in the size of the second pipe line is raised by the record. We overrule appellant’s third point.

Under her fourth point, appellant asserts that the right to install additional pipe lines under the easement grant was personal to the original grantee (Sinclair) and was not assignable. The right given to construct additional pipe lines was not a mere personal right in the original grantee, hut was a vested right under the grant, as heretofore decided. Pipe line right of way-easements are assignable. Williams v. Humble Pipe Line Company, Tex.Civ.App., 417 S.W.2d 453, 455, n. w. h.; Standard Oil Co. v. Buchi, 72 N.J.Eq. 492, 66 A. 427; Geffine v. Thompson, 76 Ohio App. 64, 62 N.E.2d 590. The rights under the subject grant were expressly made assignable by the provisions of the instrument, which provided that “the terms, conditions and provisions of this contract shall extend to and be binding upon the * * * successors and assigns of the parties hereto.” The fourth point is overruled.

In her fifth point and the statement thereunder, appellant says that the right to install additional pipe lines was not assigned by the original grantee, Sinclair, but that only the existing pipe line was assigned, and that any, rights as to additional pipe lines were abandoned.

The easement grant from Schulze who owned the land then, to Sinclair Refining Company was executed in 1942. Sinclair constructed its line across the land in 1943. In May, 1962, according to the undisputed facts in evidence, Sinclair by written instrument duly recorded in the records of the county clerk of Refugio County, where the land is situated, conveyed to Coastal States Petrochemical Company, its successors and assigns, a large number of right of way grants, expressly including the one in litigation. These right of way grants and contracts, including the one in issue, were assigned and conveyed by this latter named company to appellee by written instrument, duly recorded, dated September 18, 1964. We hold that all rights of the original grantee under said instrument were duly assigned to and acquired by ap-pellee. Williams v. Humble Pipe Line Co., supra.

The only evidence, if such it may be asserted to be, of abandonment relied on by appellant is the fact that no other line was constructed between 1943, the date of the installation of the first one, and 1965, when the line complained of was constructed. Thus, for its claim of abandonment, appellant relies solely on the fact of the passage of 22 years.

The passage of time alone does not constitute an abandonment of vested rights. Dallas County v. Miller, 140 Tex. 242, 166 S.W.2d 922, 924(2, 3), op. adopted by Sup.Ct.; Adams v. Rowles, 149 Tex. 52, 228 S.W.2d 849; Perry v. City of Gainesville, Tex.Civ.App., 267 S.W.2d 270, 274, wr. ref. n. r. e.; Nonken v. Bexar County, Tex.Civ.App., 221 S.W.2d 370, wr. ref. n. r. e.; Williams v. Humble Pipe Line Co., supra; 21 Tex.Jur.2d 178, Easements, § 49. An essential element of abandonment is an intention to abandon, which must be established affirmatively by facts showing an intent to abandon. There were neither pleadings nor evidence of such an intention in the trial court hearing.

A cursory reading of many of the multiple lines rights cases heretofore cited will show that they involved easements which had been assigned, and wherein there had been a passage of time between the execution of the grant and the installation of the additional pipe line of from five to thirty-five years, without a holding that the easement rights were not assignable, or that there had been an abandonment of the rights under the grant.

We have thoroughly considered each of appellant’s points of error, and the statements and argument thereunder and overrule them. When the subject easement grant is carefully examined from its four corners, the intention to grant the right to construct the additional pipe line installed by appellee in 1965 is clearly spelled out.

Judgment affirmed.

      . The damages sued for were concerned with the disputed right to construct the pipe line and were not with respect to damage to the surface caused by the construction or operations. Payment for this latter type of damages was expressly provided for in the instrument.

      . This is questioned in appellant’s 5th point of error.


source: Caselaw Access Project

author: PEDEN, Justice.

license: Public Domain

text:
    Dale L. SONNIER, Appellant, v. Ray RAMSEY, Individually and d/b/a Ramsey Truck Lines, Appellee.
    No. 15214.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    Feb. 8, 1968.
    Rehearing Denied March 7, 1968.

      Nipper & Knox, James E. Knox, Houston, for appellant.
    Alice Giessel, Houston, Talbert, Giessel, Barnett & Stone, Houston, of counsel, for appellee.
   PEDEN, Justice.

Plaintiff was a “side-rider” or passenger in an ambulance that ran into the side of a large truck in an intersection as the truck was going east on Market Street on a green traffic light. The ambulance had entered the intersection going south on Federal Road on a red traffic light, and each vehicle had been proceeding straight ahead. The trial judge ruled that the ambulance was on an authorized emergency trip at the time.

A take-nothing judgment was entered on the jury verdict which included findings that the driver of defendant-appellee’s truck did not fail to keep a proper lookout and did not fail to yield the right of way; that the ambulance driver was negligent in several ways each of which was a proximate cause of the collision; that plaintiff-appellant and the ambulance driver were engaged in a joint venture and that the monetary value of appellant’s damages was zero.

Appellant’s first point of error complains of the trial judge’s refusal to submit his requested special issue “A” asking whether the truck driver’s failure to look to the left prior to entering the intersection was a proximate cause of the collision.

We will consider his first point together with his second point, that the court erred in submitting Special Issue No. 1, and his third point, that there is no evidence to support the jury’s answer to Issue No. 1. Appellant’s first three points are based on his contention that the evidence conclusively shows as a matter of law that the truck driver failed to discharge his duty to keep a proper lookout. In passing on this point we consider the evidence in the light most favorable to the finding of the jury in its answer to the lookout issue which was submitted. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

Special Issue No. 1 submitted in the trial court asked whether at the time and on the occasion in question Mr. Bentle, the truck driver, failed to keep a proper lookout, and the second issue was a predicated one, asking whether such failure, if any, was a proximate cause of the collision.

The truck driver, Mr. Bentle, testified that he did not look to his right or left down Federal Road before entering the intersection because he was watching his light and the traffic ahead, and also that both lanes of traffic on Federal Road were stopped. (His meaning is not clear; Federal Road carried four lanes of traffic.) He testified he did not look to his left until he heard the siren; that by then the ambulance was about 20 to 30 feet away from him and that both vehicles were already in the intersection. Further, that the streets were still wet from an earlier rain; that he was heading east on Market Street (also a four-lane street in Houston); that he had been driving in his right-hand lane on Market Street until he approached its intersection with Federal Road, when he started moving his truck into the left one of his two lanes. He was slowing down for a red light when he saw that the traffic signal controlling traffic moving straight ahead on Market Street had turned green. This occurred when he was about SO or 60 feet from the intersection. There is evidence that his truck was noisy. He said the window on his side of the truck was down, but the jury was entitled to believe his testimony that he heard no siren until it was too late to avoid the collision. There were no physical obstructions to visibility to his left as he approached and entered the intersection, and his eyes were about seven feet above the street as he sat in the cab of his truck. The accident happened at about 2:30 p. m.; there was no evidence of fog, smoke or rain and the ambulance had several (he said “about forty”) red lights burning when the truck driver first saw it.

The law seems to be settled in Texas that a driver who enters an intersection with the protection of a traffic signal or a stop sign is not bound to anticipate that other drivers who are required to stop will engage in negligent or unlawful • acts, but that he cannot close his eyes and proceed blindly and in disregard of dangers which might reasonably be anticipated to exist. DeWinne v. Allen, 154 Tex. 316, 277 S.W.2d 95, is often cited for this principle. In Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273 (like DeWinne, a stop sign case), the DeWinne case is cited as authority for the rule: “Although not required to anticipate negligent or unlawful conduct on the part of others, she was not entitled to close her eyes to that which was plainly visible and which would have been observed by a person of ordinary prudence similarly situated.”

Appellee has cited one case, Duncan v. Durham, Tex.Civ.App., 356 S.W.2d 377, n. w. h., in which it was held as a matter of law that a truck driver who entered an intersection on a green light but had apparently not looked down the cross street, had not failed to keep a proper lookout. The holding seems to be founded on the truck driver’s explanation that he was watching a woman and child caught in the intersection by a red light. No such excuse or explanation was offered in the instant case. No pedestrians were mentioned and Mr. Bentle said his truck and the ambulance were the only two vehicles at or near the intersection which were moving.

Many Texas cases have held that ordinarily it is for the jury to decide under the circumstances of the case whether the driver kept such a lookout as a person of ordinary prudence in the exercise of ordinary care would have kept under the same or similar circumstances. Lewis v. Martin, Tex.Civ.App., 120 S.W.2d 910, writ ref.; Intges v. Dunn, Tex.Civ.App., 311 S.W.2d 877, writ ref., n. r. e.; Watts v. Dallas Railway & Terminal Co., Tex.Civ.App., 279 S.W.2d 400, writ ref., n. r. e.; Edson v. Perry-Foley Funeral Home, Tex.Civ.App., 132 S.W.2d 282, err. dism., judgm. cor.; Tidy Didy Wash, Inc. v. Barnett, Tex.Civ.App., 246 S.W.2d 303, err. ref., n. r. e.; Henderson v. Smith, Tex.Civ.App., 354 S.W.2d 429, n. w. h.; Texas & Pacific Ry. Co. v. Day, 145 Tex. 277, 197 S.W.2d 332.

We believe that the inferences and conclusions which might properly be drawn by a jury from Mr. Bentle’s assertion that “both lanes” on the intersecting street were stopped raise a fact issue as to his lookout; the jury could have taken this to be a reference to both the lanes on Federal Road which were on his left.

We overrule appellant’s first point of error, because we hold that there was sufficient evidence to require the trial court to submit to the jury the question of whether the truck driver failed to keep a proper lookout. For the same reasons, we overrule appellant’s second point, that the trial court erred in submitting Special Issue No. 1, and his third point that there was no evidence to support the jury’s answer to that issue.

After examining all the evidence, we sustain appellant’s fourth point, which asserts that the jury’s answer to Special Issue No. 1 is so against the great weight and preponderance of the evidence as to be wrong. The facts in the instant case are unusual in that the truck driver clearly and repeatedly admitted that he looked neither to his right nor his left before entering the intersection.

In addition to the evidence as stated above, the record shows that Mr. Bentle said he was going approximately 25 miles per hour when he entered the intersection; that he did not apply his brakes before the collision; that there was nothing to obstruct his vision and that he had a clear view.

The police officer who made an investigation at the scene of the accident testified that he concluded that the point of impact was 23 feet into the intersection on Market Street and that the ambulance had gone 25 feet into the intersection on Federal Road. He said that Market is 41 feet wide and Federal is 69 feet wide. There is an esplanade in the center of Federal Road. Thus it seems likely that the two lanes for southbound traffic on Federal Road did not contain stopped vehicles because the point of impact indicates that the ambulance was probably in the southbound lane nearest the esplanade as it approached and entered the intersection.

There was testimony that four to six red warning lights on the front of the ambulance had been burning for four blocks when the intersection was reached and that two sirens had been in operation for two blocks. The owner of a filling station at the southwest corner of the intersection said he heard the siren and then got up to look; he then saw the ambulance as it approached from about 600 feet away. Its red lights were burning, and as it approached it was moving at about 30 miles per hour. He also testified that there was another filling station on the northwest corner of the intersection and that as the truck approached to about 100 feet from the intersection one could see 300 feet northward on Federal Road.

The jury answered Issue No. 1 “We do not”, so it did not answer the second issue, a predicated issue inquiring as to proximate cause. Mr. Bentle testified that under the conditions that existed (speed, wet pavement, no load on his trailer), he could have stopped his truck in 20 or 30 feet. Based on the evidence of Mr. Connor and Mr. Bentle, if Mr. Bentle had looked to his left at any point between 100 feet and about 40 feet from the intersection he probably could have at least slowed down enough to have avoided a collision some 23 feet farther on Market Street.

In his fifth and sixth points appellant says there is no evidence and insufficient evidence to support the submission of and answer to the issue concerning Mr. Bentle’s failure to yield the right of way. It is not necessary for us to rule on these points in view of our rulings on the others in this appeal.

Appellant’s seventh point complains that the court erred in submitting Special Issue No. 21 concerning joint venture between the plaintiff and the ambulance driver because there is no evidence which can be the basis of an affirmative finding. His eighth point asserts that there is no evidence to support the jury’s finding of joint venture. His ninth point contends that the jury’s answer to Issue No. 21 is against the great weight and preponderance of the evidence.

We will try to set out all the evidence adduced on these points. The ambulance driver, a Mr. Dusek, testified that the plaintiff was employed by the same company as he was; that plaintiff’s job was as side-rider; and that as driver he (Dusek) was in charge of the ambulance. He said he thought plaintiff was there because the law required two people to ride in ambulances. He related that when the accident happened plaintiff was acting as his side-rider and that as such plaintiff “had the duties of locating the scene of the accident on the maps and aiding the driver in keeping a lookout for lights and other vehicles.”

Plaintiff, Dale Sonnier, testified that he had first gone to work for the ambulance company about two hours before the accident, that his compensation was to consist of room and board plus a $5.00 commission each timé they went out in the ambulance and brought somebody back in it. He had a commercial driver’s license but not a chauffeur’s license. He said he had had no experience in ambulance work, was not qualified in first aid and understood his job was as a trainee, to ride with an ambulance driver and take his training from him.

He stated that on the day of the collision he was in the ambulance house when the telephone rang; Mr. Dusek took the call and while still talking told Mr. Sonnier to start the ambulance motor and get it ready. He did so, turned on a switch which he thought operated the lights and stepped out of the ambulance to make sure they were working.

He testified that Dusek then came out and jumped in on the driver’s side while he (Sonnier) got in on the right side. Mr. Dusek told Mr. Sonnier to work the sirens after they got away from the hospital and pointed out the buttons which made them operate. Sonnier then began operating the sirens. Mr. Sonnier related that he saw Mr. Bentle’s truck and yelled, “Watch out for that truck.” He testified that it was the first time he had been in the ambulance.

Dr. Wilson, who treated the plaintiff, was asked if he had seen or heard of the plaintiff before the accident and testified: “Well, ^now, I had heard of him. I knew him. He was an ambulance driver, I believe.” We find no other evidence touching on the question of whether Dusek and.Son-nier were engaged in a joint venture.

In Bonney v. San Antonio Transit Co., 160 Tex. 11, 325 S.W.2d 117, it is pointed out that a joint enterprise exists when a driver and an occupant of an automobile have not only a joint interest in the object and purpose of the enterprise] but also an equal right, express or implied, to direct and control the conduct of each other in the operation of the conveyance. (Citing El Paso Electric Co. v. Leeper, Tex.Com.App., 60 S.W.2d 187 and Straffus v. Barclay, 147 Tex. 600, 219 S.W.2d 65).

Viewing the evidence in the light most favorable to the finding of the jury in response to Issue No. 21, we hold that there was some evidence to support the submission of such issue, so we overrule appellant’s seventh and eighth points. Taking the evidence as a whole, we find that the jury’s answer to Issue No. 21, finding that plaintiff and the ambulance driver were engaged in a joint venture, was against the great weight and preponderance of the evidence. We believe there is sufficient evidence to demonstrate that Mr. Sonnier and Mr. Dusek had a joint interest in the object and purpose of their enterprise, but that the evidence is insufficient to support a finding that Sonnier had an equal right, express or implied, to direct and control the conduct of Dusek in the operation of the ambulance. He was a raw recruit who didn’t know his duties or how to perform them. We think the great weight of the evidence shows that he was expected to aid the driver but did not have an equal right to direct and control his conduct.

Appellant’s tenth and last point states that the jury’s answer of zero to Issue No. 22, the damage issue, is not based on any evidence and is manifestly wrong and unjust.

The evidence is undisputed that plaintiff received a serious injury to his left leg. It required major surgery, three hospitalizations and the wearing of a cast for many months. The hospital records show that he received many medications for pain, and his medical expenses were over $2,000.00. He was unable to work for a number of weeks.

Mr. Sonnier testified that so far as he knows his leg was not injured by the original impact but by its having been run over by the wheels of Mr. Bentle’s truck after he was thrown- from the ambulance by the impact. Appellee contends that since the damage issue inquires as to damages proximately caused by the collision, the jury was justified in finding that he suffered no damages. We think there was no break in the chain of causal connection.

We sustain appellant’s tenth point on the ground that the jury’s answer is not supported by any evidence. Lowery v. Berry, 153 Tex. 411, 269 S.W.2d 795.

Appellee’s reply point six states that the trial court correctly entered judgment that plaintiff take nothing because the jury found in answers to Special Issues Nos. 10 and 11 concerning plaintiff’s failure to fasten his seat belt that plaintiff was guilty of contributory negligence proximately causing his injuries.

The issues as submitted and the answers given were as follows:

SPECIAL ISSUE NO. 10
“Do you find from a preponderance of the evidence that a person of ordinary prudence in the exercise of ordinary care, acting under the same or similar circumstances as those that faced the plaintiff, Dale Sonnier, would have fastened the seat belt prior to the collision in question ?
“Answer ‘We do’ or ‘We do not’.
“To which the Jury answered ‘We do’.
“If you have answered Special Issue No. 10 ‘We do’, and only in that event, then answer:
SPECIAL ISSUE NO. 11
“Do you find from a preponderance of the evidence that the failure of Dale Sonnier to fasten such seat belt was a proximate cause of the injuries, if any, sustained by him in the occurrence in question ?
“Answer ‘We do’ or ‘We do not’.
“To which the Jury answered ‘We do’.
SPECIAL ISSUE NO. 12
“Please state from a preponderance of the evidence what you find to be the percentage, if any, of the injuries sustained by Dale Sonnier on the occasion in question that is attributable to his failure to fasten the seat belt?
“Answer by stating the percentage, if any.
“To which the Jury answered ‘5%’.”

We are not aware that any appellate court in Texas has written on the' question of the legal effect of findings such as these.

We overrule appellee’s reply point six. If there is a duty to use a seat belt (which decision is reserved for a future case), we believe the seat belt question should be considered in connection with damages rather than liability. We agree with a suggestion made by Messrs. Jerry Walker and David Beck, members of the Houston Bar, in an article entitled “Seat Belts and The Second Accident” in the Insurance Counsel Journal for July, 1967, at page 355, that the matter be regarded in mitigation of damages rather than contributory negligence.

The failure to use a seat belt may contribute to the cause of the injury, but almost never to the cause of the accident. This sounds in damages, not liability.

The analogy to the duty to minimize the consequences is not complete, because such duty arises after the accident, but we think the problem more closely related to damages than to liability.

For the reasons stated, this cause is reversed and remanded to the Trial Court for a new trial.


author: TIREY, Justice.

text:
    Lirma D. FOSTER et al., Appellants, v. Samuel DeWitt SMITH, Appellee.
    No. 4684.
    Court of Civil Appeals of Texas. Waco.
    Jan. 11, 1968.
    Supplemental Opinion Feb. 1, 1968.
    Rehearings Denied Feb. 8 and 29, 1968.

      James O. Mullin, Waco, for appellants.
    Walter S. Smith, Jr., Waco, for appellee.
   OPINION

TIREY, Justice.

This suit was initiated by Lirma D. Foster against Samuel DeWitt Smith in the Superior Court of the State of California in the County of San Mateo. Pertinent to this discussion the original complaint set out that Smith resided at 710 Turner Street, Waco, Texas, and that during their marriage Samuel DeWitt, Jr., was born to them on March 9, 1955; that the father refused to support the son, and that by reason of such default the County of San Mateo was forced to furnish support for the benefit of the child and had furnished up to the present time approximately $514.40, and that it would continue to do so at the rate of $69.00 per month. The petition asked that San Mateo County be reimbursed and that Smith be ordered to pay $100.00 per month plus any additional sum that the county might deem reasonable. Upon the filing of the petition the Judge of the Superior Court of California entered an order directing the Clerk to submit to the proper officer in the State of Texas certain documents in triplicate and certified copies of the complaint to the proper court in McLennan County, State of Texas. These papers were duly authenticated and sent to the 19th Judicial District Court of McLennan County, and upon receipt thereof Judge Logue had the cause docketed in his court and issued an order requiring defendant Smith to appear at 2 o’clock on the 15th day of June 1967, to show cause why he should not be ordered to contribute a proper sum to the support of his minor child and to reimburse the County of San Mateo for the care of such minor child, and that he be required to furnish a cash deposit or bond as required by the County. Notice was duly issued to defendant Smith and he appeared with counsel, but did not file an answer. On August 25, 1967, the cause was tried before the Court without a jury and the Court in its judgment, among other things, recited that defendant Smith owes the duty to support his minor child and ordered the defendant to pay into the registry of this court the sum of $15.00 per week until the child reaches the age of 18 years, or until further orders of the court.

The judgment denied plaintiff all other relief, to which judgment plaintiff excepted and gave notice of appeal to this court.

Plaintiff appeals on 2 points, contending that the material facts relied on by plaintiffs for recovery are admitted.

While defendant was not served with a conventional civil citation, the nature of the action is nevertheless a civil case. And defendant filed no answer as required by Rule 45 Texas Rules of Civil Procedure; but did appear in person with counsel.

A defendant appearing in a civil case, but saying nothing in bar, impliedly confesses judgment and waives all errors of pleading and proof. Thornhill v. Elskes, Tex.Civ.App., 381 S.W.2d 99 (nre); O’Quinn v. Tate, Tex.Civ.App., 187 S.W.2d 241 (Er.Ref.); Spivey v. Saner-Ragley Lumber Co., Tex.Com.App., Adopted, 284 S.W. 210.

It is our view that the judgment must be reversed; and that the ends of justice would be best served by a general remand. Buchanan v. Jean, 141 Tex. 401, 172 S.W.2d 688.

Reversed and remanded.

SUPPLEMENTAL OPINION

On further consideration of the above cause we find that neither appellants nor appellee assailed the judgment of the Trial Court which found that defendant Smith owes the duty to support his minor child and ordered him to pay into the registry of the court the sum of $15.00 per week until the child reaches the age of 18 years, or until further orders of the court.

Therefore, it is our duty to affirm the foregoing order of the Trial Court fixing the support order, and the Court of its own motion affirms the judgment of the Trial Court in this respect, and reverses and remands the cause in all other respects.

Modified in part and affirmed and reversed and remanded in part.


author: McDONALD, Chief Justice.

text:
    J. William SMITH, Appellant, v. Harold G. WAITE, Appellee.
    No. 4653.
    Court of Civil Appeals of Texas. Waco.
    Jan. 11, 1968.
    Rehearing Denied Feb. 15, 1968.

      Norman A. Zable, Dallas, for appellant.
    David G. Copeland, Waco, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiff from summary judgment that plaintiff take nothing in a suit for breach of contract based on a written franchise agreement.

The record on summary judgment reflects that plaintiff Smith operates “Smitty’s Pancake House” in Seattle, Washington, and entered into a franchise agreement with defendant Waite whereby plaintiff granted defendant the right to operate in Waco as “Smitty’s Pancake House.” Such agreement prescribed the design and fixtures of the operation; provided Waite should use ingredients as specified by Smith’s formula; and that Waite should use Smith’s Menu format, and sell certain syrups and preserves furnished by Smith. Waite was given an exclusive terriotory to operate under Smith’s trademark as “Smitty’s Pancake House,” in Waco, Texas.

The franchise purchase price was $2,-000. cash, plus $150. per month, or 2% of the monthly gross, whichever was greater.

The contract provided that in event of breach “Smith may declare all installment payments due and to become due during the period of the franchise immediately due, said total amount to be computed on the basis of fixed minimum monthly payments herein specified and may recover the same from Waite, such recovery to constitute monetary liquidated damages herein.”

The contract was dated 17 August, 1961, and provided: “This franchise shall continue for a period of 10 calendar years * * *

In January, 1964, defendant discontinued operating as “Smitty’s Pancake House” under the franchise, and discontinued sending plaintiff monthly payments.

Plaintiff filed suit against defendant, alleging breach of the franchise agreement and prayed for liquidated damages in the amount of $12,150. ($150. per month for the time the franchise had to run); attorneys’ fees; and $734.26 alleged to be unpaid royalty payments as of the time defendant ceased operation under the franchise.

Defendant answered, pleading among other things, that the contract sued on was in violation of the anti-trust laws and anti-monopoly laws of Texas and the United States.

Both plaintiff and defendant moved for summary judgment. The trial court overruled plaintiff’s motion for summary judgment, and granted defendant’s motion for summary judgment that plaintiff take nothing. Such judgment concluded that the contract’s provisions for acceleration of monthly payments was a “penalty provision, unreasonable and in violation of the principles of just compensation, and that same should not be enforced by this court;” and further concluded the contract violative of the anti-trust laws of the State of Texas, and therefore unenforceable.

Plaintiff appeals on 4 points, contending:

1) The trial court erred in finding the damages provision of the contract a penalty, as there was no pleading to support such a finding.
2) The trial court erred in finding the contract violative of the anti-trust laws of the State of Texas, as the contract must be interpreted under federal law.
3) The trial court erred in overruling plaintiff’s motion for summary judgment because defendant breached the contract.
4) Alternatively, the trial court erred in denying plaintiff damages of $734-26.

Plaintiff’s 1st contention is that the trial court erred in finding the damages provision of the contract a penalty because such was an affirmative defense, and defendant waived his right to such defense by not pleading same. Rule 94, Texas Rules of Civil Procedure requires a defendant to plead any matter constituting an avoidance or affirmative defense. Defendant did not plead that the provision constituted a penalty and was unenforceable. We think the trial court was therefore not authorized to find that such provision constituted a penalty.

Plaintiff’s 2nd contention is that the trial court erred in finding the contract violative of the Texas Anti-Trust Laws.

The franchise agreement does not violate the Texas Anti-Trust Laws. The owner of a patent, copyright or trademark may franchise out by contract the right to use such patent, copyright or trademark. Coca Cola Co. v. State, 225 S.W. 791, Tex.Civ.App. (nwh); Shaddock v. Grapette Co., 259 S.W.2d 231 Tex.Civ.App. (nwh).

The trial court erred in granting summary judgment for defendant, for which reason we must reverse.

Plaintiff further complains in his 3rd and 4th contentions that the trial court erred in not granting his motion for summary judgment, and alternatively that the case should be remanded to determine plaintiff’s actual damages. We overrule contention 3, and conclude that the ends of justice will be better served if the judgment is reversed and the cause is generally remanded. Buchanan v. Jean, 141 Tex. 401, 172 S.W.2d 688.

Reversed and remanded.


author: BARRON, Justice.

text:
    Don SHEPHERD, Appellant, v. ERIC SCHUSTER CORPORATION, Appellee.
    No. 64.
    Court of Civil Appeals of Texas. Houston (14th Dist.).
    Jan. 31, 1968.
    Rehearing Denied Feb. 28, 1968.

      Pete P. Navarro, Robert O. Campbell, Campbell & Lilly, Houston, for appellant.
    Leonard Z. Finger, Brown & Pettit, Houston, for appellee.
   BARRON, Justice.

Eric Schuster Corporation, a manufacturer of picture frames and moldings, brought this suit against Don Shepherd to recover the contract price of $3,373.75 for about 400 picture frames shipped to and allegedly accepted by Actino Galleries, Inc., under two guaranty agreements signed by Don Shepherd. Actino Galleries, Inc., hereinafter called Actino, was an insolvent corporation domiciled in New Jersey at the time and Don Shepherd was a stockholder therein who was interested in the success of Actino, but who did not actively participate in the business. Eric Schus-ter Corporation, referred to herein as Schuster, alleged that Actino had failed to pay for such merchandise and suit was consequently filed against the alleged guarantor, Shepherd, for the amount due.

Shepherd is appellant here and Schuster is appellee. Actino was insolvent and not subject to location. It is not a party to this suit. On a jury verdict the trial court rendered judgment for Schuster for $3,138.81 with interest at 6% per annum from January 1, 1963 to the date of judgment, making a total of $3,901.95. Judgment was rendered on January 30, 1967, and Shepherd has timely perfected his appeal from the judgment below.

The facts show that Schuster sold to Actino the 400 picture frames from April 12 to April 24, 1962 on credit, and that the agreed price was $3,578.49. Actino paid $205.68, leaving the balance for which Schuster alleges Don Shepherd is liable under his written guaranties. The guaranties are as follows:

“January 31, 1962
“Eric Schuster Corporation
45 Wood Street
Paterson 4, New Jersey
Attention: Mr. George Stiefel
Gentlemen:
“This will confirm my telegram of today, in which I personally agreed to guarantee credit account of Actino Galleries, Inc., up to a maximum of $4,000.00. If you need further information, please do not hesitate to call on me.
Very truly yours,
/s/ Don Shepherd
Don Shepherd”

The second guaranty was as follows:

“March 14, 1962
“I, Don Shepherd, hereby guarantee payment in full to Eric Schuster Corp. for merchandise which will be delivered to Actino Galleries, Inc. and is described by their order #1912, which order is not to exceed $3,500.00.
Signed
/s/ Don Shepherd”

Shepherd answered with a plea of partial or total failure of consideration, and subsequently filed a pleading containing a general denial and plea of limitations, the latter plea being abandoned. The evidence shows that Actino did receive the merchandise, but that some of it was defective. On February 14, 1962, Actino placed order number 1912 with Schuster. Some delay in filling the order was occasioned by the fact that Schuster insisted on specific guaranties in addition to the general guarantee of $4,000.00 to the credit account theretofore executed by Shepherd. Following the receipt of the second guaranty from Shepherd dated March 14, 1962, Schuster proceeded to manufacture the merchandise and shipped the order to Ac-tino in two parts. Actino claimed that the shipments were sent out to customers immediately upon receipt, and that within about two weeks Actino received complaints and some of the merchandise was returned. The nature of the complaints and the reason for the return of the merchandise was a disputed issue, Schuster claiming that defective prints themselves and the delay in receiving the picture prints until after the Christmas season was the cause, while Shepherd claimed that defective frames and moldings were the cause of the returns. Schuster admitted that in an order of such size or amount, small defects will occur. George Stiefel, appel-lee’s representative, testified that the defects were minor and that he agreed to correct the defects at Schuster’s cost. He testified that $50.00 to $75.00 would take care of the matter, hut in order that good faith be shown by Actino, a partial payment of $1,000.00 should be made on the account. Prior to this order, Schuster had received a check from Actino for other merchandise and that check was not paid. There is ample evidence in the record which shows that Actino was incapable of paying for merchandise and that the officials of that company had no intention of paying for it as agreed. Steifel testified that the usual 30 days given on such an account did not apply to Actino because of past unfavorable dealings with the company.

Sworn pleadings and depositions of appellant, Don Shepherd, were introduced into evidence showing that Shepherd, in another action pending in Harris County District Court, styled Herst Litho Inc. v. Don Shepherd (an action for the prints), had stated and testified under oath that the cause of the delay and the trouble which ensued in connection with the return of the pictures by various customers, was occasioned by defective prints and late deliveries thereof, leaving the inference that the mounting and framing of the pictures by Schuster was not the cause of a failure to sell the pictures as claimed by Actino and Shepherd.

The evidence shows that in spite of the above objections to the quality of the merchandise shipped, Actino retained the frames and moldings. Of the first 100 frames sold by Actino, the firm received a total of about $2,500.00 from sales to various customers. No report or accounting was given to Schuster. When Actino ceased to do business a short time later, the remaining pictures and frames were moved to California and wound up in the hands of a new company, Gallery Novala. They were never returned or shipped back to Schuster. Schuster contacted Shepherd a number of times regarding the account, but Shepherd refused to pay and took the position that the frames were defective and that he did not owe the debt.

The trial court submitted four special issues to the jury. The jury found that Schuster had not substantially performed the contract to sell the merchandise; that the frames were so defective as to affect their marketability; that the sum of $234.00 was required to correct defects in the frames so as to render them marketable; and that after discovering the defects, Ac-tino Galleries accepted the shipment of frames and retained them.

Both guaranties set out verbatim above are absolute guaranties and the natural inference is that payment is agreed to be made by the guarantor at the time when the debt becomes due, and not that payment is to be made on condition that the debt cannot be collected from the principal by the exercise of due diligence. Austin v. Guaranty State Bank, 300 S.W. 129 (Tex.Civ.App.), no writ history; El Paso Bank & Trust Co. v. First State Bank, 202 S.W. 522 (Tex.Civ.App.), no writ history; McGhee v. Wynnewood State Bank, 297 S.W.2d 876 (Tex.Civ.App.) ref., n. r. e; 27 Tex.Jur.2d 283. The only limitation in the guaranties was one of maximum amount, and the demand and action were within those figures.

When one person assumes to answer for the debt of another by guaranteeing payment of a debt or account in writing, his liability upon such undertaking can be fixed and preserved only by a strict compliance with the terms of the guaranty, and if the creditor and principal debtor vary in any substantial degree in the terms of the contract, then a new contract has been formed, upon which the guarantor is not bound. Jarecki Mfg. Co. v. Hinds, 295 S.W. 274 (Tex.Civ.App.), writ dismd, 6 S.W.2d 343; Straus-Frank Co. v. Hughes, 138 Tex. 50, 156 S.W.2d 519, 521, opinion adopted; Southwest Sav. Ass’n v. Dunagan, 392 S.W.2d 761, 766 (Tex.Civ.App.), ref., n. r. e.

In this case Shepherd guaranteed the account and payment thereof when he knew that Actino probably could not pay promptly as agreed. The agreements of guaranty were unconditional, and while Actino, by its conduct, might have rescinded the contract of sale by returning the merchandise, it did not chose to do so, but retained it. The evidence shows that Actino actually sold about $2,500.00 worth of the framed prints to its own advantage and kept, if not secreted, the remainder thereof without attempting to return them for re-cission of the sales contract. So far as this record is concerned, Actino or its successor still has possession of the pictures and frames if it has not sold the remainder. The seller, Schuster, may maintain an action against Shepherd for the price even though the goods have proven to be defective in one way or another, if they were duly accepted by the buyer, as the jury in this case found. 51 Tex.Jur.2d 22; and see Kaplan Co. v. Wiley, 33 S.W.2d 289, 291 (Tex.Civ.App.), writ ref.; American Nat. Bank v. American Loan & Mortgage Co. (Comm.App.), 228 S.W. 169, 172; 13 Tex.Jur.2d, Sec. 72, p. 214. The buyer, on the other hand, has the right to retain the goods and sue, by way of offset or damages. Aultman & Taylor Co. v. Hefner, 67 Tex. 54, 2 S.W. 861 (Tex.Sup.); O’Con v. Hightower, 268 S.W.2d 321 (Tex.Civ.App.), writ ref.; 51 Tex.Jur.2d 31, 33, pp. 95-101. In such event the contract is affirmed by the buyer and only the amount of seller’s recovery is at issue. In this case liability for the sale of the merchandise was established at $3,138.81, which the guarantor refused to pay and which was within the1 limits of his written guaranties. Further, appellant had notice of the entire transaction and took no action whatsoever with regard to the guaranties.

Both guaranties were in existence- and in effect at all material times. The fact that an additional guaranty was provided does not prove that the original continuing guaranty was destroyed. It must be shown that the later guaranty was intended and accepted as a substitute for the former. 38 C.J.S. Guaranty § 80; Warner v. First Nat. Bank of Waco, 369 S.W.2d 651 (Tex.Civ.App.), no writ hist. In any event, we hold that the second guaranty was sufficient to impose liability upon appellant. The issue, if it was a fact issue, was defensive and no issues were requested by appellant for submission to the jury. Rule 279, Texas Rules of Civil Procedure.

As we view this case in connection with the guaranties delivered by appellant, there was no variance in the terms of credit accounts or in order 1912 which exceeded $3,500.00. Liability was established at a lesser sum. The guaranties contemplate that a lesser sum is permissible. Actino had the option to return the merchandise and rescind the contract if it was serious in its claim that the goods were materially defective and unusable. Shepherd had no interest in the order directly, his interest being payment for value received by Actino so long as the purchase did not exceed certain amounts of money. We distinguish this case from Jarecki Mfg. Co. v. Hinds, supra, where the guaranty was payment for five thousand feet of wire line which was not to cost over $1,050.00 (21‡ per foot), a specific and fixed guaranty. Delivery of 4,500 feet of wire at a cost of 21¾^ per foot was made. The court in Jarecki held that the variance in footage and cost was fatal to the guaranty. But in the instant case, the credit account of Actino and payment for property described in order number 1912 was guaranteed, at a maximum of or not to exceed certain sums. The sums here were indeterminate and the cost was permissibly below the maximum stated in the guaranty. Actino received all of order number 1912, repaired the frames which were not suitable, and kept or sold them. The trial court allowed an offset for the cost of the repairs. We do not believe this case falls within the strict rule of Jarecki because of the differences stated above, and because appellant knew the facts and advised with officials of Actino during the transaction as an interested stockholder in an insolvent corporation.

Appellant complains that the trial court in rendering judgment for a sum of money which represents the difference between the original agreed contract price and the cost of repairing the defective merchandise was error. However, special issue number 3 was in favor of appellant and the burden of proof was upon him to prove and furnish evidence from which the jury could determine the extent to which a warranty or consideration had failed. The only evidence in the record on this point is the cost of repairing the merchandise. The issue was defensive. Celotex Corp. v. Fisher, 288 S.W.2d 319 (Tex.Civ.App.), no writ hist.; Allison Ranch Co. v. Angelo Auto Electric, 145 S.W.2d 645 (Tex.Civ.App.), writ dismd. There was no timely objection or exception made to the submission of the special issues as to form or substance and consequently appellant has waived any complaint. McCullom v. McClain, 227 S.W.2d 333 (Tex.Civ.App.), no writ; O’Conner v. Gragg, 161 Tex. 273, 339 S.W.2d 878, 885 (Tex.Sup.); 3 Tex.Jur.2d, p. 401 et seq. Under the circumstances here, no error was committed by the trial court. Paul v. Johnson, 314 S.W.2d 338, 341 (Tex.Civ.App.), writ dismd.; 17 Tex.Jur.2d 160.

We have examined each complaint of appellant and we find the evidence sufficient to support the trial court’s judgment.

Affirmed.


author: BELL, Chief Justice.

text:
    McKee CATON et ux., Appellants, v. George P. KELLEY et al., Appellees.
    No. 15221.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    Feb. 8, 1968.
    Rehearing Denied March 7, 1968.

      Kelley, Looney, McLean & Littleton, Rogers Kelley, Edinburg; and Barrow, Bland & Rehmet, Sidney Farr, Houston, for appellants.
    Butler, Binion, Rice, Cook & Knapp, Frank J. Knapp, Frank J. Knapp, Jr., Houston, for appellees.
   BELL, Chief Justice.

This is an appeal from the action of the trial court in granting the defendants’ motion for summary judgment and rendering a judgment that the plaintiffs take nothing.

The suit was filed by McKee Catón and his wife, Grace Catón, against George P. Kelley and Original Kelley’s to recover damages resulting to Mrs. Catón from injuries she received when she slipped and fell on the floor of the restaurant operated by Mr. George Kelley which is located on South Main Street in Houston. The evidence shows that she received a broken ankle and she contends that a back condition which she already had was aggravated by the fall. The fall occurred about the 17th of January, 1964.

The record before us consists of the parties’ pleadings, the defendants’ motion for summary judgment, the plaintiffs’ reply to the motion for summary judgment, to which reply is attached an affidavit of Mr. R. D. Smith, and the depositions of Dr. and Mrs. Catón, George P. Kelley, and an employee of Mr. Kelley’s at the restaurant by the name of Paul Chefchis. The basic theory of recovery is that there was some foreign substance on the floor of the restaurant and that Mrs. Catón stepped on the foreign substance causing her to slip' and fall.

We must review rather extensively the testimony to determine whether or not there is any evidence from which an inference of negligence on the part of Kelley’s representatives can be inferred that was the proximate cause of the alleged injury. We must view that evidence most favorably to the plaintiffs who were resisting the motion for summary judgment because the burden is on the movant in a summary judgment case to show that there was no issuable material fact under the evidence. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929.

Mrs. Catón, as well as Dr. Catón, testified that they together with Mr. and Mrs. R. D. Smith went to the Original Kelley’s Restaurant on Main, Street at about 8 p. m. on the day in question. They entered the restaurant from the Main Street side and were seated near the back of the restaurant. There is a passageway or aisle that leads-from the Main Street entrance back to the table where they were seated. They walked to their table without incident, but they made no particular observation with regard to the condition of the floor of the aisle or the area around the table where they sat. Other patrons of the restaurant on that night also used the aisle and no other patrons were seen to have slipped, nor is there any evidence of anyone else having slipped either that evening or at any other time. The floor consisted of a covering of vinyl. The Catons and their friends remained at the restaurant until about 10 p. m. When they had finished their dinner at about this time, they started back down the same aisle over which they had made their entry, toward the cashier’s position, but just after leaving the table Mrs. Smith being in the lead, Mrs. Catón being behind her, followed in order by Mr. Smith and Dr. Catón, Mrs. Catón slipped and fell on the floor breaking her left ankle. The testimony of Mrs. Catón shows that about 1916 she had polio and since that time has had weak muscles in her left leg though it appears that she needed no walking aids. She testified that on the night in question she had on low heeled shoes with neolite heels and soles. She wore this type of shoe though it was not a prescription shoe, because this gives a better balance than a high heeled shoe that is worn by many women. She testified that this was not the first fall that she had had, but that in about the fifty years since she had had polio she would say she had fallen about fourteen times. It appeared, however, from the testimony that she was accustomed to climbing mountains, and walking around in the yard at her home in McAllen that was irrigated and that frequently became soft and then when the soil dried out there were holes or depressions that were left by the yardman. All of her falls were not described but the specific ones that we recall are an un-designated number that occurred in her yard, the nature of which we have described, one that occurred on the sidewalk in Oklahoma City when she caught her heel In a crack in the sidewalk, and one that she experienced at her home when she was walking backward and fell against a chair. Mrs. Catón admitted that her left leg was not as strong as her right leg and that she walked with a slight limp, which was caused by what was referred to as a “drop” on the left side as a result of the polio. She had no built-up shoe. Mrs. Catón stated that just after leaving the table and as she was proceeding toward the cashier her right foot slipped from under her and both feet went out in front of her, and she fell on her left foot which had in some manner turned up under her. She stated definitely that the slipping, however, was with the right foot. After she fell she lay there on the floor and Dr. Catón told her to remain there, and she did remain there probably around IS minutes. While she was there someone brought a napkin or a towel and placed it under her head. In a while she was removed from the restaurant and taken to the hospital.

Mrs. Catón testified that the lights in the restaurant were sufficient for a person to see where they were going though they were, as is true in many restaurants, more subdued than the lights used in an office. She testified she was watching where she was going and she was always careful because of the weakness in her left leg to watch where she was walking, and she could see this evening to walk without any difficulty. She testified that she did not know whether there was any water on the floor where she slipped. When asked whether she observed any water either before or after she fell, she stated that she didn’t see any water. She also stated she didn’t see any foreign substance like food on the floor. She made no complaint to the management about the condition of the floor. On entering the restaurant and proceeding to the table she didn’t notice anything out of the ordinary about the floor in the area over which she proceeded. She stated that to the left of the place where she slipped there was a pantry that the waitresses came to and went from. Immediately after stating that she stepped with her right foot and slipped, she stated: “There was something slick.” Up until the time she fell she had noticed nothing that would cause a person to fall. She also stated she didn’t feel anything that would cause anyone to fall. She didn’t see any foreign substance on the floor. She didn’t see any spilled food; she saw nothing but the normal vinyl floor. She stated that while she was lying on the floor she observed no foreign substance, but at the same time she said, “I wasn’t in that condition.”

Mrs. Catón stated that she was not aware of any foreign substance being on her shoe or her foot, but she also stated, “I didn’t look for any.” She further stated that while she had the shoes and had worn them since the accident it was more than six months before she looked at the shoes. She did not see any foreign substance on the shoes when she later looked at them. She stated also that there was no water on the floor after she fell but if there had been water there she mopped it up when she fell because it was not wet when she got up. She found no evidence on her garments or anywhere of any grease or oil or any foreign substance. When asked if up until the time she fell there was any condition of the floor that was unusual, she stated, “I had not observed any.”

Dr. Caton testified substantially as did Mrs. Caton concerning the weakness in the muscle on the left side that controls the left foot. He also described substantially as did she the specific falls she had previously had that we have above mentioned. Further testimony by Dr. Caton showed that in 1963 Mrs. Caton had a slipped disc and that the right leg at the time was placed in traction. He said, however, that so far as he could see she had completely recovered from this latter difficulty. When Mrs. Caton fell in the restaurant he told the people not to move her, that he was a doctor and would do what was necessary. He stated he would determine when he thought she should be moved. He meant by this that he would have her moved after she had recovered from the shock. He did not know at this time that her left ankle had been broke. He testified substantially the same as did Mrs. Caton about their having entered the restaurant and having traversed the same aisle as they entered that they were using when they started to leave and when Mrs. Caton fell. Other people in the restaurant that night also used the same area as did the Catons and the Smiths. As they were leaving he saw Mrs. Caton when she was falling. After she fell and while she was on the floor she complained of her back and leg. Her left leg was twisted up under her. He observed no foreign substance on the floor such as food or water. In fact he stated, “I observed nothing.” When asked if it wasn’t true that so far as he could tell it was simply a vinyl covered floor and he did not know what caused his wife to fall, he answered, “I had made no examination of it.” All he knew was that his wife fell, and she told him that her right foot slipped. On the night of the accident he made no complaint to anyone about the condition of the floor. When asked the question, “You saw nothing about the floor to complain about, did you, sir?” he answered, “I wasn’t paying any attention to the floor.”

Attached to the plaintiffs’ reply to the defendants’ motion for summary judgment is an affidavit by Mr. Smith, who was with the Catons. Among other things the affidavit contains this statement:

“Just a few minutes after she had fallen, while she was still lying there on the floor, the waitress who had waited on our table brought a towel or tablecloth or something to put under Mrs. Caton’s head. At that time this waitress told me the floor was slippery and that earlier in the evening she herself had slipped twice and almost fallen in that same place on something that she said had been spilled on the floor there earlier that night. I noticed that the floor of the restaurant was very slick.
“It seemed to me that she slipped on something that was on the floor and not simply on the floor itself, because she went down so fast that she didn’t have a chance to catch herself. I didn’t have time to catch her, although I tried.”

The deposition of Mr. Paul Chefchis showed that he was the manager of the Corsiana Room of the South Main restaurant where the accident occurred. He gave a description of the room which showed that just a short distance, probably about 10 feet, from the place where Mrs. Caton fell there was a door to what is referred to as the “pantry”. The waitresses would make their entry into and from this pantry when they were going to the kitchen to obtain food which was to be served the patrons. Also through this door the employees who removed the dishes from the tables after the patrons had finished their meals would make their entry and go to the room where the dirty dishes were taken for washing. Mr. Chefchis did not see Mrs. Caton fall, because he was in another room adjoining that in which she fell. He stated, however, that he came into the room just after Mrs. Caton had fallen and it was between 9:30 and 10 o’clock p.m. Mrs. Caton was lying on the floor. She was a “little towards Main Street, towards the pan try when she fell.” He and the other manager there, Mrs. Florence Austin, went up to where Mrs. Caton was lying. He did not remember how long she remained on the floor before she left but it was something less than 30 minutes, probably between 15 and 30 minutes. Mrs. Caton was being attended to and the witness left Mrs. Austin in charge of the matter and went on into the room where he worked. The evening had been quite a busy one, and probably a hundred people had been served. The witness did not know what caused Mrs. Caton to fall. No one there at the scene told him how she came to fall. He did hear somebody say that she had just come from the hospital or had had polio, and from that he concluded that her ankle must have given way, causing her to fall. He inspected the floor where she fell and he didn’t find anything on the floor; the floor was not dirty. He looked around on the floor right after he approached where Mrs. Caton had fallen while she was still lying there and he didn’t see anything around there. He did not, of course, see the floor under her while she was there. Since she was being attended to he went on back to the room where he worked, but later inspected the floor at probably around 10:30 o’clock when Mr. Kelley, the owner, came to the place. This was from 30 minutes to an hour after the accident had occurred. He passed his hand over the floor and could find no dirt on the floor. In fact, he was unable to find any foreign substance on the floor where she had fallen.

Mr. Chefchis then told about the system of cleaning the room each day. He testified that the floor was mopped each morning before 11 o’clock. It was mopped with a wet mop and only cold water was used in wetting the mop. No soap was used nor was any kind of detergent used. In the afternoon about 3 or 4 o’clock the floor was swept to remove anything that had been spilled or any papers or cigarettes or other substances that had accumulated during the day. There was no further sweeping or mopping of the floor until the next morning when the process above was repeated. He stated that once in a while there would be an accident and food would be spilled in the aisle but this happened very seldom. He stated he did not see any spilled food in the aisle where Mrs. Catón fell and when he checked for it there was none. When he checked he found no water or oil on the floor. There was no wax on the floor because the floor was never waxed. He stated that on each day a little food was dropped around the various tables where people might be eating. This is one of the reasons • that on each day at mid-afternoon they sweep the whole floor. He had never known of anyone slipping on the floor and he had been there for five years, and he had never heard of anyone slipping on the floor. While he had never seen.any people spill water on the floor he had heard that this sometimes occurred. He had never seen a waitress spill water on the floor but he had heard that that sometimes did happen.

Mr. George Kelley, the owner of the restaurant, arrived at the scene of the accident around 10l:30 in the evening. He knew nothing about the accident, and his testimony consisted largely of a description of the room and what he observed when he arrived. He stated that the room was mopped each morning with cold water and that no detergent or soap was ever used on the vinyl floor covering. He stated that this was the only time that the floor was cleaned and his testimony and Mr. Chefchis’ conflicted in this regard. He stated that he was shown the table near which Mrs. Catón had fallen and he examined the floor and it was clean. The floor was never waxed. He testified that no one had, to his knowledge, ever slipped on the floor at the restaurant, nor had he ever heard of anyone slipping. The vinyl covering had been there on the floor for some five or six years. Nowhere in his testimony, or any other witnesses’ testimony, was there shown to be any break or other imperfection in the flooring. Mr. Kelley stated that before putting the vinyl covering on the floor they used to have carpeting but the carpeting got too messy from the various things that might be spilled from time to time on the carpeting, and they removed the carpeting and substituted the vinyl. The vinyl flooring at the restaurant was not particularly shiny but it was clean. It was not, and never got, slick.

The appellees contend that the judgment of the trial court sustaining their motion for summary judgment should be sustained because nowhere in the testimony is there evidence that at the time of Mrs. Caton’s fall there was any foreign substance on the floor and there was, therefore, no evidence of any negligent act that could have been the proximate cause of Mrs. Caton’s fall. The appellants’ position is that there may have been no direct evidence of any foreign substance on the floor, but circumstances are shown that reflect that from time to time each day food or water, cigarette stubs and paper are spilled or deposited on the floor and this, plus the above quoted portion of Mr. Smith’s affidavit, is sufficient to circumstantially show that at the time of Mrs. Caton’s fall there was something that had been spilled on the floor that caused her to slip. In this connection appellants stress also that she slipped with her right foot, as some of the testimony does reflect, and that her feet went out in front of her. Appellants rely heavily on the statement of Mr. Smith as to what the waitress who had waited on his party said at the time she came to place a towel or napkin under Mrs. Caton’s head, and the portion of this statement that they particularly rely upon is that the waitress stated that earlier that evening she herself had slipped twice and almost fallen in that same place on something that she said had been spilled on the floor there earlier that night. Also, of course, the appellants rely upon the testimony which shows that foreign substances, including water and food, are each day dropped on the floor and though no one saw a foreign substance on the floor where Mrs. Catón fell, when all circumstances are considered there could have been a substance there and in fact such was likely.

The evidence as to the presence of any foreign substance on the floor at the time and place that Mrs. Catón fell is but circumstantial. However, of course, a case of negligence and proximate cause may be established by circumstantial evidence. The evidence in this case as to the presence of any foreign substance is very meager. We are, however, of the view that when you consider all of the facts and circumstances testified to concerning water and food and other substances being spilled on the floor each day; that the room is not swept after-four o’clock in the afternoon, and when you consider the res gestae statement of the. waitress who waited on the Catons’ table,, there is evidence from which a jury could infer that there was a foreign substance and this substance was what Mrs. Catón slipped on.

We need not lengthen this opinion by-analyzing all of the testimony. We are inclined to think that without the res gestae-statement of the waitress, as testified to by-Mr. Smith, there would be no dispute in the evidence that would raise a fact issue. However, her statement is such that the jury-might infer that immediately before the fall at the place where Mrs. Caton fell there was. a slippery substance on the floor; that this was known to the appellees because the knowledge of their employee would be imputed to them and that there had been sufficient time to have cleaned the substance from the floor.

Each case must, of course, be considered in the light of the facts peculiar to it. The appellees urge that in all of the cases cited by appellants there was actually found to be a foreign substance at the place where the party had fallen. We have read all of the cases and such seems to be correct, with the exception possibly of the case of J. Weingarten, Inc. v. Brockman, 134 Tex. 451, 135 S.W.2d 698, Tex.Com.App., opinion adopted, and even in the Brockman case a condition was shown to exist but there was no direct evidence to show that the condition that could have caused the fall in fact caused the fall. However, immediately following the fall of the plaintiff in the Brockman case, the manager of the store stated that the plaintiff was the fifth or sixth lady who had fallen there. The Commission of Appeals, recognizing that the testimony was very meager, found some evidence from which a jury might infer that the manner in which the sidewalk was constructed was negligent, particularly in the light of the res gestae statement of the manager of the store. The court also said that the statement of the manager constituted notice to the defendant of the existence of the condition and the fact that other persons had fallen there to be some evidence of probative force that the condition was the cause of the fall.

No useful purpose would be served by citing or noticing the cases relied upon by the appellants or the appellees. We notice the Brockman case because of the principles there stated and the fact that it is factually more nearly comparable to this case than are the other cited cases.

Judgment of the Trial Court is reversed and the cause is remanded for trial.


author: COLEMAN, Justice.

text:
    Geneva FIELDS, d/b/a Fields Funeral Home, Appellant, v. UNIVERSAL LIFE AND ACCIDENT INSURANCE COMPANY, Appellee.
    No. 15059.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    Feb. 15, 1968.
    Rehearing Denied March 7, 1968.

      Herschel B. Cashin, of La Marque, for appellant.
    Dibrell, Dibrell & Greer, G. William Rider, of Galveston, for appellee.
   COLEMAN, Justice.

ON REMAND FROM SUPREME COURT

This is a suit to cancel an insurance policy. The question to be determined is whether such a suit filed by an insurance company within two years after the policy was issued amounted to a contest within the meaning of the incontestable clause contained in the insurance policy where citation was issued promptly, but was not served until after two years had elapsed from the date of the policy.

The policy was issued on May 22, 1961. The insured died April 16, 1963. A claim for benefits under the policy dated April 20, 1963, was presented to the Company signed by the beneficiary, Willie Taylor, in which his address was shown as 3309 De Soto Street, Houston, Texas, On May 18, 1963, the Insurance Company received an instrument signed by Willie Taylor authorizing and directing it to pay from the proceeds of the policy in question, and another policy, the sum of $713.00 to Fields Funeral Home. This instrument was signed and acknowledged before a notary public in Galveston County, Texas.

This suit was filed at 4:25 o’clock p. m., May 21, 1963, in a County Court of Dallas County, Texas. It named both Willie Taylor and Fields Funeral Home defendants. Citations were prepared in the office of the Dallas County Clerk, and transmitted by mail to appellee’s attorney in Dallas, who received them on May 22 or 23, 1963. They were mailed to the Sheriffs of Harris and Galveston Counties, and were received May, 24, 1963, two days after the second anniversary date of the policy. Because of improper service, the citation directed to Willie Fields, d/b/a Fields Funeral Home, was quashed pursuant .to motion filed June 12, 1963, by an order reciting he “shall be deemed to have entered his appearance at 10:00 a. m. on the Monday next after the expiration of twenty days following the date of this order * * * ” This date fell on August 5, 1963.

Willie Taylor was not found in Harris County and the citation was returned. He was later located in Galveston County and the citation was served' subsequent to June 5, 1963.

On plea of privilege, this cause was transferred to the County Court at Law No. 2, Galveston County, Texas. The case was tried to a jury, but at the conclusion of the evidence the trial court withdrew the case from the jury and rendered judgment for the plaintiff Insurance Company.

The policy of insurance in question provides : “ * * * this Policy shall be incontestable after two years from its date * *

Article 3.44 of the Insurance Code of Texas, V.A.T.S., provides, in part:

“No policy of life insurance shall be issued or delivered in this State * * * unless the same shall contain provisions substantially as follows:
“(3) That the policy * * * shall be incontestable not later than two years from its date, except for non-payment of premiums; * *

In Trevino v. American Nat. Ins. Co., 168 S.W.2d 656 (Tex.Com.App. 1943, opinion adopted), the Court said:

“The language of the incontestable clause and of the statute (Sec. 3, Art. 4732) in the use of the words ‘contested’ and ‘incontestable’ contemplates and intends to require the institution within the specified period of a'proceeding in court to cancel the policy on account of original invalidity or the filing, within that period in a suit brought on the policy, of an answer setting up a ground of original invalidity to defeat recovery. American Nat. Ins. Co. v. Welsh, Tex.Com.App., 22 S.W.2d 1063, Tex.Civ.App., 3 S.W.2d 946; Southern Surety Co. v. Benton, Tex.Com.App., 280 S.W. 551; Humpston v. State Mutual Life Assur. Co., [of Worcester, Mass.,], 148 Tenn. 439, 256 S.W. 438, 31 A.L.R. 78; Mutual Reserve Fund Life Ass’n v. Austin, 1 Cir., 142 F. 398, 73 C.C.A. 498, 6 L.R.A., N.S., 1064.”

In Patton v. American Home Mut. Life Ins. Co., 143 Tex. 373, 185 S.W.2d 420 (1945), the Supreme Court quoted the excerpt from the opinion in Trevino v. American Nat. Ins. Co. appearing above, and said :

“It is our opinion that insurer’s defense of fraud was not authorized by Article 5049 and that such a defense was precluded by the incontestable clause of the policy for the reason that the same was not presented in court within the stipulated period of two years.”

In Patton the court equated the words “presented in court” with “filing in a suit brought on the policy”. When an answer is filed in a pending suit, it is clear that a “contest” has begun. It is somewhat less clear that a “contest” is begun merely by filing a suit.

In Travelers Insurance Company v. Brown, 402 S.W.2d 500 (Tex.Sup.1966), a suit was brought on a “voluntary Compensation Endorsement” to a policy of insurance. This endorsement provided benefits similar to those available under the Workmen’s Compensation Act to injured employees. It contained a provision that if “any person shall commence any proceeding at law, in equity or in admiralty except for such payment, seeking damages from the insured * * * the Company’s liability * * * is thereupon terminated.” The plaintiff, unaware of the compensation endorsement, filed a suit for damages and, later, a claim for compensation benefits. Prior to the trial of this case, the damage suit was dismissed. In this opinion the Court said:

“The meaning ascribed to ‘commence’ by the dictionary is not the only reasonable meaning of the word when it is used to refer to the beginning of a legal proceeding. It has different meanings in different jurisdictions, and even different meanings in different legal proceedings in the same jurisdiction. See 1 Am.Jur. 2d 646-650, Actions, §§ 126-130; 1 C.J.S. Actions § 129, pp. 1396-1404 ; 7A Words and Phrases, pp. 397-438; 1 Tex.Jur.2d 545-548, § 39. By way of example that the dictionary meaning is not the only meaning, the Supreme Court of the United States held in Herb v. Pitcairn, 325 U.S. 77, 65 S.Ct. 954, 89 L.Ed. 1483, 1487-1488 (1944), that a suit was ‘commenced’ within the limitation provision of the Federal Employers’ Liability Act ‘when instituted by service of process issued out of a state court.’
“Decisions of courts of other jurisdictions may be put aside. In spite of the wording of Art. 1971, Vernon’s Texas Civil Statutes, which was repealed when incorporated in Rule 22, this Court has often held that the commencement of a suit or action requires something more than the mere filing of a petition. In Russell v. Taylor, 121 Tex. 450, 49 S.W.2d 733, 737 (1932), we recognized that ‘the mere physical filing of a petition’ without ‘a bona fide intention * * * to obtain service and prosecute the suit’ was not sufficient to abate a second suit involving the same parties and issues. See also V. D. Anderson Co. v. Young, 128 Tex. 631, 101 S.W.2d 798, 800 (1937). We held in Owen v. City of Eastland, 124 Tex. 419, 78 S.W.2d 178, 179 (1935), that the mere filing of a petition ‘is not all that is required to “commence” a suit within the meaning of Art. 5529 which requires that certain suits ‘be brought within four years next after the right to bring the same shall have accrued.’ See also Ricker v. Shoemaker, 81 Tex. 22, 16 S.W. 645 (1891). In August Kern Barber Supply Co. v. Freeze, 96 Tex. 513, 74 S.W. 303, 305 (1903), we recognized that ‘[t]he issuance of citation in a justice’s court is the commencement of the suit,’ but we held that ‘[t]he issuance of process which cannot possibly bring the defendant before the court cannot be considered the .commencement of a suit.’ These cases are not cited as controlling authority in the instant case but as illustrating that the mere filing of a petition does not always fulfill even statutory requirements for ‘commencement’ of a suit.”

The policy behind the requirement that insurance policies must contain incontestability clauses was stated by Chief Justice Cardozo of the Court of Appeals of New York in these words:

“Repudiation is, indeed, an act too uncertain, one resting too often in biased recollection, to be accepted as the equivalent of ordered battle in the courts. The value of a clause declaring a policy incontestable lies to no slight degree in the definiteness of the protection accorded to the holder. The good that it promises is in part a state of mind. After the lapse of two years the insured is no longer to be harassed by the fear that the policy will be avoided by interested witnesses asserting in later days that there was a disclaimer long ago. After a like lapse the beneficiaries are no longer to be subjected to the risk of forfeiture through notices or warnings that may be hard to disprove when the insured is in his grave. Alike for insured and for beneficiaries, there is to be the peace of mind that is born of definiteness and certainty. The clause, in effect, if not in form, is a statute of limitations, established by convention, and like the statute is directed to remedies in court * *
“A contest, then, begins when the insurer avoids, or seeks to avoid, the obligation of the contract by action or defense. If the insured or the beneficiary is plaintiff, suing to declare the policy in force or to recover money due, the contest takes its start when the insurer serves an answer disclaiming liability. If insured and beneficiary hold back, preferring to wait till the time for contest- has expired, the point of beginning is the time when the insurer sues in equity to declare the policy annulled.” Killian v. Metropolitan Life Ins. Co., 1251 N.Y. 44, 166 N.E. 798 (1929).

In Owen v. City of Eastland, 124 Tex. 419, 78 S.W.2d 178 (1935), the court said:

“Our courts uniformly hold that the mere filing of suit on a claim does not interrupt the running of limitation. 28 Tex.Jur. p. 192 et seq. It is to be observed that the various decisions there referred to deal with limitation statutes which, in terms, provide that the suit shall be ‘prosecuted’ as well as ‘commenced.’ However, it has been said, in effect, that the mere filing of the plaintiff’s petition is not all that is required to ‘commence’ the suit, within the meaning of the statutes of limitation, ‘but there must also be a bona fide intention that the process shall be served at once upon the defendant Ricker v. Shoemaker, 81 Tex. 22, 16 S.W. 645, 647. This accords with the well-recognized design of statutes of limitation. At an early day it was held that such statutes are ‘statutes of repose to quiet titles, to suppress frauds, and to supply the deficiencies of proof arising from the ambiguity, obscurity and antiquity of transactions’; and the rule was laid down that limitation statutes should ‘receive such interpretation consistent with their terms as would defeat the mischief intended to be suppressed, and advance the policy and remedy they were designed to promote.’ Gautier v. Franklin, 1 Tex. 732. This, in effect, has been repeated in later cases. Harrison Machine Works v. Reigor, 64 Tex. 89; Howard v. Windom, 86 Tex. 560, 26 S.W. 483. See, also, 17 R.C.L. p. 664. Taking these pronouncements as a guide, no reason occurs for ascribing to the instant statute a design in any respect different from that of the others. It is hardly reasonable to suppose that, in passing this statute, the Legislature considered that the mere filing of the suit within the prescribed time would expel the evil which the statute was designed to reach. It is far more reasonable to conclude that the intention was to afford means by which the defendant in the suit may be relieved of disproving the merits of the claim asserted against him, where, through the fault of the plaintiff, he is not called to defend until the means of disproving same is presumably lost through lapse of time.”

This case was filed late in the afternoon of the last day of the period within which the policy could be contested. It was filed in a court which had jurisdiction of the controversy, although not the court having venue of the cause. It was filed too late for personal service to be secured on the defendants within the contestable period, but there is no evidence that appellee lacked a bona fide intention that process issue and be served without unreasonable delay. See Ricker v. Shoemaker, 81 Tex. 22, 16 S.W. 645 (1891). Process was issued the following day and was immediately forwarded to the officers for service. Delay in securing service followed, but the delay of some twenty days was not, under the circumstances, unreasonable.

The Supreme Court interpreted the contract in Travelers Insurance Company v. Brown, supra, to provide that the liability of the insurer terminated if a suit for damages is commenced, and held that the purpose of the provision could be satisfied without interpreting the words “commence any proceedings at law” to mean merely filing a petition, which might be withdrawn without prejudice to the Insurance Company. It then held that the workman does not “commence proceedings” within the meaning of the contract “until citation is issued and served on the defendant or he enters a voluntary appearance for the purpose of defending the suit.”

In that case, however, the court recognizes that Rule 22, Texas Rules of Civil Procedure, reading, “A civil suit * * * shall be commenced by a petition filed in the office of the clerk,” not only prescribes how a suit shall be commenced, but it may also govern when it is commenced.

This case more nearly resembles the cases involving the statutes of limitation, and, we think, should be governed by the doctrine established by the Supreme Court in those cases. The purpose of the limitation contained in the policy under consideration as required by the Insurance Code is properly implemented by a decision that an appropriate suit be filed within the contestable period and that citation be issued and served with reasonable promptness thereafter. Gautier v. Franklin, 1 Tex. 732 (1847); Owen v. City of Eastland, supra; Ocean Accident and Guaranty Corp. v. May, 15 S.W.2d 594 (Tex.Com.App.1928); Parker v. Progressive Life Insurance Co., 235 S.C. 96, 110 S.E.2d 5 (1959); Densby v. Acacia Mut. Life Ass’n, 64 App.D.C. 319, 78 F.2d 203 (1935).

The judgment of the Trial Court is affirmed.