author: ARCHER, Chief Justice.

text:
    C. J. KREGER et al., Appellants, v. The BOARD OF TRUSTEES OF GEORGETOWN INDEPENDENT SCHOOL DISTRICT, Appellees.
    No. 11099.
    Court of Civil Appeals of Texas. Austin.
    May 29, 1963.
    Rehearing Denied June 19, 1963.

      Ashton, Allen & Smith, L. Hamilton Lowe, Austin, for appellants.
    William S. Lott, Georgetown, for ap-pellee.
   ARCHER, Chief Justice.

This is an appeal from a judgment denying the injunctive relief sought by appellants C. J. Kreger and wife, Jacquelyn Kreger, C. E. Harris, Jr. and wife, Zenita Harris, Wendell Osborn and wife, Alice C. Osborn, Norman W. Spellmann and wife, Betty B. Spellmann, Harvey E. Miller and wife, Ara Belle Miller, Donel Scroggins and wife, Audrey May Scroggins, Clark Davis, Gordon B. Wolcott and wife, Elizabeth Wolcott, E. C. Girvin and wife, Virginia L. Girvin and George E. Nelson, in a suit by them as tax paying property owners residing within the Georgetown Independent School District to restrain the Board of Trustees from expending funds of the District for an alleged illegal purpose, to-wit: the erection and maintenance of buildings and facilities for the school system for segregated use.

The appeal is founded on three points assigned as error and read:

"First Point: The error of the Trial Court in refusing to restrain the Ap-pellees from expending any funds belonging to the Georgetown Independent School District for the purpose of constructing any building or other facility which is designed and planned to provide segregated schools within the District, where such segregation is based solely upon the race or colo,r of the students segregated.
“Second Point: The undisputed evidence and the judicial admissions of the Appellees establish the fact that the District will, unless restrained, proceed to expend funds belonging to the District for an illegal purpose; towit, the construction and maintenance of a system of racially segregated schools, and the Trial Court erred in refusing to enjoin such illegal expenditures.
“Third Point: In denying the injunc-tive relief sought by the Appellants, the Trial Court abused his discretion and such error requires a reversal of the judgment below.”

The points are submitted together.

Appellants take the position that the ultimate issue is:

“May a public school district legally expend its funds for the construction of a racially segregated system of public free schools with the design and purpose of perpetuating such a system in defiance of the constitutional prohibition against racial discrimination in such schools?”

Georgetown has a population (1960 census) of 5,218 with an enrollment in white schools of 1,064 and 165 colored children and of which latter group 40 or 45 are in high school.

A bond issue in the amount of $525,000 was authorized by an election on July 7, 1962, for the purpose of the “purchase, construction, repair and equipment of public free school buildings within the limits of such district and the purchase of the necessary sites therefor.”

The Board made plans to erect a new junior high school for white pupils exclusively, and to expand the white high school facilities, to which Negro children are not admitted, and to erect an entirely new segregated Negro high school.

There can be no question but that the school board plans two separate school systems, according to the testimony of members of the Board who testified respectively that they were going to build a segregated system, a school on the west side for Negroes exclusively to be a twelve grade school.

The members testified that they so told the voters of their plans prior to the election, and would not be willing to erect any of the buildings in the plan, if enjoined from building the west side school. One member testified that it was the purpose to build a dual system and could not integrate without complying with Article 2900a, Vernon’s Ann.Civ.St. and intended to have segregated schools unless ordered to integrate by court order or by vote.

The superintendent of schools testified that he did not enroll Negro students in the white schools because the Board had not authorized him to do so, and that it was against the law to do so.

Appellees take the position that the number of school buildings and the selection of sites are matters vested by law in the Board, and that the expenditure of funds for the construction of school buildings is not illegal and that the court did not abuse its discretion in denying the injunction.

The testimony shows that the Board will abide by a court order directing integration or by a majority vote of the voters in favor of abolishing the dual school system.

Appellees say that whether Article 2900a, V.A.C.S., is constitutional or not is of no concern in this case, and could not be decided here, and that the statute was in the book and that the members of the Board felt bound by it, but were complying with the wishes of the people more than they were with the provisions of the statutes.

We do not believe that the Board can legally expend the large sum of money provided by the bond issue authorized for the purpose as contended for. We recognize the power and authority conferred on school trustees by Articles 2749 and 2772, V.A.C.S., to control and manage schools.

The prime question as we view it is the propriety and legality of the expenditure of funds for the construction of school buildings for use as racially segregated system of public free schools with the avowed design and purpose of perpetuating such a system.

There can be no question but that Article 2900a is unconstitutional as declared to be by our Supreme Court in McKinney v. Blankenship, 154 Tex. 632, 282 S.W.2d 691. It was there stated:

“To the extent that these constitutional and statutory provisions require segregation of white and Negro students in the public schools they are unconstitutional and void and cannot stand as a bar to the expenditure of public funds in integrated schools.”

In an opinion of the Attorney General of Texas, No. WW-1490, December 10, 1962, in which the authorities are reviewed, it was held that Article 2900a is unconstitutional.

In the case of Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, it was held the doctrine of “separate but equal” had no place in the field of education.

As testified to by the Board members the purpose of the location of the school buildings is to avoid integration therein and to maintain separate schools.

J. D. Thomas, secretary of the Board of Trustees, testified:

“A We were going to build a segregated system.
“Q And you were going to have the colored, the Negroes, in one building, and one building only?
“A Yes, sir.”

At a meeting of the Board on April 30, 1962, the following statements are taken from the minutes:

“Dr. Gaddy raised the question of integration and asked how the board as a whole felt.
“Mr. Wolf suggested the board vote as to how it wishes to integrate.
“Mr. Doering expressed his feelings about the matter of integration and his personal observations.
“The question of how many buildings we plan to build was brought up by Dr. Gaddy. Mr. Wolf replied by making a motion that we plan to build a junior high for grades 6-7-8 and a colored school grades 1-12 on West Side. Ihms seconded the motion. Dr. Gaddy wanted to know plans for integration if and when the time comes. Wolf said he would add to his original motion, if and when integration came it would be on a transfer basis. A vote was taken, motion carried S to 1. Dr. Gaddy voting against.”

Mr. Thomas further testified:

“Q Mr. Thomas, do you think from your ad in the Sun, that all the people in the Georgetown Independent School District were informed that you intended to continue segregation of your public schools ?
“A Yes, sir, I think so.
“Q You think that they all knew that, without exception?
“A Yes, sir.
“Q And that was your intent and purpose, to inform them that you intended to continue segregation in Georgetown School District?
“A Yes, sir.
******
“Q Counsel asked you a moment ago if you intended — the Board intended to continue segregation by building this West Side School for all colored and these others for all white. Now, would you state that it would be the Board’s intention to continue that from now on, or just until such time as this district is legally integrated.
“A Until this district is legally iifte-grated.”

Carl Doering, president of the Board, testified:

“Q And you intend to build that school for segregated school system; is that correct?
“A At the time being, yes, sir.
******
“Q Now, is the plan to build, is this your plan, or is this the understanding of the plan that you have, that you will build a twelve-grade school system on the west side for Negroes?
“A Yes, sir.
“Q And you don’t intend to do anything else?
“A No, sir.
“Q And if you can’t do that, you don’t intend to spend any of this money ?
“A No, sir.
“Q If the court restrains you from building that building, then you would be — you would feel that you were duty-bound, under your plan, not to do anything?
“A We outlined it to the voters, and they passed the bond issue on that particular reason, and I am not going to tell the public one thing and turn around and do the opposite.
“Q Are you telling me that it is your opinion, or that you say the voters voted on it because it was a segregated school system, and they wouldn’t vote on anything else?
“A No, sir, I didn’t say that. I said we presented our whole plan, we outlined the whole plan, and they had it before them, and I don’t think there is anybody that didn’t understand it
"Q Did you tell them that this was a Negro school over there on the west side?
“A The brochure and newspaper advertisement said it replaced the old Carver System.
“Q And that would imply that it was going to be a Negro School?
“A Certainly.
“Q And nothing else?
“A I would think so.
“Q And that is what you intend to have down there ?
“A Yes, sir.
******
“Q Now, Mr. Doering, is there any reason that you know of for not integrating the schools?
“A At this time?
“Q At this time.
“A Yes, sir.
“Q What is that reason?
“A There are only two ways that a school district can integrate, and one is by petition, voters vote on it, and the other way, by Federal Court order.
“Q Now, why do they have to vote on integration ?
“A I don’t know.
“Q Is it because of 2900a, a statutory provision?
“A I suppose.
“Q You what?
“A I assume it is; I don’t know.
“Q You have told me that, have you not?
“A I don’t remember whether I told you.
“Q You did tell me that the reason that you couldn’t integrate was because of 2900a, that you would be personally fined if you did?
“A Yes, sir, that’s right.
“Q You did tell me that, didn’t you?
“A I don’t know whether I told you; I have told somebody.
“Q You have told other people, then?
“A Yes, sir.
“Q And that is the main reason that you can’t integrate these schools?
“A Yes, sir.”

Jay Wolf, a member of the Board, testified :

“Q Mr. Wolf, did you vote at a meeting to call a bond issue?
“A Yes, sir.
“Q Did you vote to put in the paper certain articles saying that you would build certain schools in this district?
“A I did.
“Q Did you intend by that to imply to the people, or convey to the people that you were going to build a dual system of education facilities in this community?
“A Yes, sir; that’s right.
“Q And that is your intent and purpose?
“A That’s right.
“Q Now, you don’t have any other intention?
“A No other intention.
“Q And you haven’t changed or modified it?
“A Not a bit
"Q In your mind, and you don’t ever intend to change or modify it?
“A I would accept the direction of higher authorities; that would be the only way I would change my mind.”

There was testimony from other members of the Board of like tenor to that of those members from whose testimony we have quoted excerpts and we see no need to quote from such.

We reiterate that the Board has the powers, duties and responsibilities as are conferred on school trustees and we are not in any manner imposing on such when done in a legal manner and for a legal purpose.

In Gomillion v. Lightfoot, 364 U.S. 399, 81 S.Ct. 125, 5 L.Ed.2d 110, it was held:

“When a State exercises power within the domain of state interest, it is insulated from federal judicial review. But such insulation is not carried over when state power is used as an instrument for circumventing a federally protected right.”

In Barr v. Thompson, Tex.Civ.App., 350 S.W.2d 36, no writ history, the Court said:

“Equity looks to the substance and not the shadow, to the spirit and not the lettér. It seeks justice rather than technicality, truth rather than evasion, common sense rather than quibbling.”

In N. A. A. C. P. v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405, it was held that “A State cannot foreclose the exercise of constitutional rights by mere labels” and in a concurring opinion Justice Douglas stated : “The fact that the contrivance used is subtle and indirect is not material to the question. ‘The Amendment nullifies sophisticated as well as simple-minded modes of discrimination.’ ”

We believe that the trial court had the power and the duty to restrain the unlawful spending of the money. Crow v. Burnet Independent School Dist., Tex.Civ.App., 304 S.W.2d 439, er. ref. n. r. e.

As was stated in Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84:

“The fact that the written words of a state’s laws hold out a promise that no such discrimination will be practiced is not enough.”

Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5.

The judgment of the Trial Court is reversed and judgment is here rendered enjoining defendants from expending any funds belonging to the Georgetown Independent School District for the purpose of constructing any building or other facility which is designed, planned or calculated to provide segregated schools within the Georgetown Independent School District where such segregation is based solely upon the race or color of the students segregated.

Reversed and rendered.


source: Caselaw Access Project

author: RENFRO, Justice.

license: Public Domain

text:
    UNIVERSAL LIFE & ACCIDENT INSURANCE COMPANY, Appellant, v. S. T. MURPHY, Appellee.
    No. 16428.
    Court of Civil Appeals of Texas. Port Worth.
    May 24, 1963.
    Rehearing Denied June 14, 1903.

      Storey, Armstrong & Steger, and Paul S.Adams, Jr., Dallas, for appellant.
    Sol Gordon, and Lattimore & Lattimore, and H. S. Lattimore, Fort Worth, for ap-pellee.
   RENFRO, Justice.

On April 8, 1957, Universal Life & Accident Insurance Company issued a policy of industrial life insurance in the principal sum of $500.00 to Mary Lois Murphy. Thereafter the policy lapsed for nonpayment of premiums, but was renewed on February 23, 1959. The insured died January 20, 1960.

This suit was instituted by the beneficiary on April 3, 1961, and on April 28, 1961, defendant filed an answer and a cross-action to cancel the policy because of misrepresentations made by the insured concerning her health.

The jury found that the insured was in good health both on the date of the issuance of the original policy and on the date of renewal and represented to defendant that she was in good health. There were further findings that the representation was false and material but was not wilfully made for the purpose of inducing the Insurance Company to issue the policy. Similar findings were made as to consultation with doctors, high blood pressure, and whether she stated in the application for renewal that she was then in good health.

Defendant contends it is entitled to a reversal because of irreconcilable conflict in the jury’s answers and because the trial court disregarded answers to several issues favorable to defendant.

By counterpoint the plaintiff argues that since the defense of misrepresentation and the cross-action were filed more than two years after the policy was renewed, such defense was not available to defendant.

Article 3.44, Insurance Code, V.A.T.S., provides that “* * * the policy, or policy and application, shall constitute the entire contract between the parties and shall be incontestable not later than two years from its date, except for non-payment of premiums * *

The contestable period applies to a renewal policy as well as to the original policy. Perry v. Bankers Life and Casualty Co., Tex.Civ.App., 362 S.W.2d 213.

Defendant seeks to avoid the effect of Art. 3.44 by the following stipulation made in the trial court: “It is stipulated that in Cause No. 15556—C, styled S. T. Murphy against Universal Life And Accident Insurance Company, was filed in the 17th District Court of Tarrant County, Texas,, on February 24th, 1960, in which the parties were the same identically to the parties in this suit, and in said suit, the Defendant, Universal Life And Accident Insurance Company filed a cross action against S. T. Murphy and Harold Baker, doing business as Baker Funeral Home, to cancel the policy of life insurance involved in this case; and such suit to cancel said policy of insurance was filed by Universal Life And Accident Insurance Company on March 18th, 1960, with the District Clerk of Tarrant County, Texas, and the cross defendants were served forthwith with citations in said cross action.”

The prior suit and defendant’s cross-action were dismissed.

It was held in National Life & Accident Ins. Co. v. Wigley, Tex.Civ.App., 96 S.W.2d 154, that an insurer could contest the validity of a life policy in an action instituted by the beneficiary more than two years after the policy was issued where defense of invalidity had been raised in prior action instituted within the two year period wherein the beneficiary had taken a nonsuit in the original action.

The defense of misrepresentation, however, even if filed within the two year period, is not available in a suit brought after the two year period if the defense was voluntarily withdrawn, or waived, in the prior suit. Powell v. Mutual Life Ins. Co., 313 Ill. 161, 144 N.E. 825, 36 A.L.R. 1239; New York Life Ins. Co. v. Hurt, 10 Cir., 35 F.2d 92.

The stipulation merely shows that a cross-action was filed by defendant in the former suit. Although the plaintiff could take a nonsuit in his action on the policy he obviously could not nonsuit the defendant’s cross-action. There is nothing in the stipulation to indicate that defendant objected to the dismissal of the cross-action in the prior suit, or took an appeal therefrom. There is no intimation in the stipulation that defendant was prevented by plaintiff or the court from pursuing its cross-action to judgment. It must follow that defendant, in so far as the stipulation reveals, voluntarily withdrew the cross-action in the prior suit or it waived the matters set up in the cross-action.

In view of the record we hold that Art. 3.44 barred defendant from asserting the defense of false representations in the instant suit.

In the event we are mistaken in holding that the defense of false representations was not available to defendant in the instant case, we nevertheless think the judgment should be affirmed.

The jury found that none of the representations were made wilfully for the purpose of inducing the defendant to issue the policy. Although the jury found that some representations were false, there were no findings that the insured knew or should have known such representations to be false.

In order to avoid a policy of insurance because of misrepresentation, the burden is on the insurer to plead and prove, not only that the answers made by the insured were false or untrue,, but that the insured knew, or should have known, that they were untrue, and that he made them wilfully and with the intention of inducing the insurer to issue him a policy. Clark v. National Life & Accident Ins. Co., 145 Tex. 575, 200 S.W.2d 820; American Central Life Ins. Co. v. Alexander, Tex.Com.App., 56 S.W.2d 864; Doyle v. Great Southern Life Ins. Co., Tex.Civ.App., 126 S.W.2d 735, affirmed 136 Tex. 377, 151 S.W.2d 197; General American Life Ins. Co. v. Martinez, Tex.Civ.App., 149 S.W.2d 637; American Nat. Ins. Co. v. Green, Tex.Civ.App., 96 S.W.2d 727; Provident Life & Accident Ins. Co. of Chattanooga v. Flowers, Tex.Civ.App., 91 S.W.2d 847; 46 C.J.S. Insurance § 1319, pp. 435-437; Krayer v. Prudential Ins. Co. of America, Tex.Civ.App., 360 S.W.2d 844, reversed on other grounds, Tex., 366 S.W.2d 779; Golden State Mutual Life Ins. Co. v. Pruitt, Tex.Civ.App., 357 S.W.2d 812; Pioneer American Ins. Co. v. Meeker, Tex.Civ.App., 300 S.W.2d 212.

Judgment affirmed.

LANGDON, J., not participating.


author: GRISSOM, Chief Justice.

text:
    BIG “D” AUTO AUCTION, INC., Appellant, v. Harley HIGHTOWER, Appellee.
    No. 3801.
    Court of Civil Appeals of Texas. Eastland.
    May 17, 1963.

      J. Alex Blakeley, Dallas, for appellant.
    Eades & Eades, Dallas, for appellee.
   GRISSOM, Chief Justice.

Harley Hightower sued Big "D” Auto Auction, Inc. for damages to his automobile while it was in the possession of the auction company for sale. Judgment was rendered for Hightower. The auction, company has appealed.

It was undisputed that Hightower’s Cadillac was delivered to the auction company in good condition and damaged while in the possession of said bailee. Appellant bailee contends the court erred in overruling its exception to the bailor’s pleading because Hightower failed to allege specific acts of negligence of the bailee, or facts sufficient to apprise defendant of the proof required to meet plaintiff’s allegation of negligence. Plaintiff alleged a bailment of his automobile to defendant for hire and that while it was in the sole custody and under the control of the defendant bailee, it was damaged by reason of the negligence of the defendant. A bailor makes out a prima facie or presumptive case of negligence against a bailee by proving the bailment and that he delivered his property to the bailee in good condition and that it was damaged while in the possession of the bailee. Said facts establish prima facie the negligence of the defendant bailee. Trammell v. Whitlock, 150 Tex. 500, 242 S.W.2d 157, 159. Under such a situation, to avoid a right to an instructed verdict for the bailor, it is incumbent upon the bailee to produce evidence that the damage was not caused by its negligence. The bailor could not allege specific act of negligence of the defendant. He could not know what caused the damage to his property while it was in the custody of the bailee. It would be unreasonable to require the bailor to allege specific acts of negligence of the bailee when he is not required to prove specific acts of negligence to make out a case. The court did not err in overruling appellant’s exceptions to appellee’s petition. Mecom v. Vinton, Tex.Civ.App., 191 S.W. 763, 764; Huie v. Lay, Tex.Civ.App., 170 S.W.2d 823, 826.

Appellant contends the court erred in holding there was evidence of negligence of the defendant which proximately caused the damage to appellee’s automobile; erred in holding that appellee met the required burden of proof that a proximate cause of the injury was the negligence of the defendant because appellant introduced evidence that negligence of a third party was a proximate cause of the damage to appellee’s automobile and the bailee auction company was entitled to judgment in the absence of evidence of specific acts of negligence of the bailee. There was evidence that Mrs. Tune drove her automobile on appellant’s lot to sell it and stopped where she had theretofore been instructed by appellant to stop it; that the automobiles on said lot for sale were ordinarily lined up and numbered by appellant; that appellee’s Cadillac was not so parked by the auction company but was parked so that if Mrs. Tune’s automobile continued forward, unless it hit the left front thereof, it would strike Hightower’s Cadillac broadside; that when Mrs. Tune stopped her Buick and alighted therefrom her car rolled down the incline on appellant’s lot towards High-tower’s car; that she attempted to stop her car but it knocked her down and continued rolling towards appellee’s Cadillac and, finally, struck and damaged it.

We think the court had the right to conclude from the evidence that the injury to Hightower’s car was caused by appellant’s negligence. See Callihan v. Montrief, Tex.Civ.App., 71 S.W.2d 564, 570, (W.R.); Carothers v. Moore, Tex.Civ.App., 183 S.W.2d 987; Skrobarcek v. Raborn Chevrolet Co., Tex.Civ.App., 45 S.W.2d 1110.

All of appellant’s points have been considered. They are overruled. The judgment is affirmed.


author: COLLINGS, Justice.

text:
    James H. COKER et al., Appellants, v. WESCO MATERIALS CORPORATION, Appellee.
    No. 3811.
    Court of Civil Appeals of Texas. Eastland.
    May 10, 1963.
    James C. Tubb, Dallas, for appellants.
    Strasburger, Price, Kelton, Miller & Martin, Dallas, for appellee.
   COLLINGS, Justice.

James H. Coker and James B. Tuggle brought separate suits against Wesco Materials Corporation for the alleged breach of employment contracts. The cases were consolidated and the motion of the defendant for a summary judgment was granted. Coker and Tuggle have appealed.

Appellants present one point of error in which it is contended that the court erred in sustaining the motion for summary judgment of Wesco Materials Corporation, hereinafter referred to as Wesco. Appellants urge that the pleadings, depositions and affidavits before the court presented questions of fact concerning the existence of appellants’ alleged causes of action.

In the pleadings of appellants it is contended that each of them was employed by Wesco for a period of one year at specified salaries to perform certain duties. The contracts of employment were in letter form, signed or countersigned by Thomas L. Amis, Vice-President of Wesco. Wes-co’s pleading contained a general denial and further allegations that appellants had breached their contracts of employment in that they failed to render satisfactory performance and that willful conduct by appellants detrimental to the welfare of Wesco necessitated termination of their employment. Wesco filed a motion for summary judgment alleging that there was a provision in the employment contracts to the effect that appellants’ employment was contingent upon satisfactory performance on •their part; that the performance of Tuggle and Coker was not satisfactory to Wesco and that no bona fide issue of fact existed upon which appellants could show a right to recover; that the record was undisputed that the performance of appellants was not satisfactory to Wesco. In support of Wes-co’s motion for summary judgment it filed and submitted certain depositions and affidavits. Appellants duly replied to the motion.

The contracts of employment relied upon by appellants are included in the record and by their express terms are contingent upon satisfactory performance by appellants Coker and Tuggle. The depositions and affidavits presented by Wesco show that Wesco contends it was not satisfied with the performance of Coker and Tuggle. Appellants contend that any dissatisfaction on the part of Wesco and its directors was feigned and without basis or justification. They contend and the record shows that everything they did as employees was known of and approved by Mr. Tom Amis, Vice-President and General Manager of Wesco, under whom they worked and who was instrumental in their employment. The general rule in such cases is that the employee may question the honesty and good faith of his employer’s dissatisfaction, and that a feigned dissatisfaction is not sufficient justification to avoid the continuation of a contract of employment. The question of good faith thus may become a question of fact, the burden of proof being upon the employee to show that the claimed dissatisfaction is not in good faith. Golden Rod Mills v. Green, Tex.Civ.App., 230 S.W. 1089; Dallas Hotel Co. v. Lackey, Tex.Civ.App., 203 S.W.2d 557; 56 C.J.S. § 32, p. 418; 35 Am.Jur. 464; Atlas Torpedo Co. v. United States Torpedo Company, Tex.Civ.App., 15 S.W.2d 150.

The record presents most unusual and peculiar circumstances concerning appellants’ employment and connection with ap-pellee Wesco Corporation. It is undisputed that appellants were employed by the corporation in November 1960, as Assistant Directors of Industrial Engineering for a period of one year at an annual salary of $10,000.00. The record further shows that in April of 1961, Mr. Pickens, the President of Wesco, and its Board of Directors discovered that a secret group had developed among some of its officers and employees. The group was confined principally to the marketing department. It is undisputed that this group of employees had come under the influence of and gave its allegiance to a man by the name of Higginbotham, who was neither officer, director, stockholder nor employee of the corporation and of whose existence the President and Board of Directors had no knowledge whatever. Hig-ginbotham purported to be a psychologist and business consultant and apparently was able to exert considerable control over those who came under his influence. Through Mr. Amis who was an officer in the company, Higginbotham was able to bring about the employment of men of his choice, in all a total of about 15 employees, including Mr. Robinson who was made an official in charge of the marketing division. In this manner Higginbotham acquired considerable control over the activities of the company. The members of this group referred to themselves as the marketing team. Each of them paid Higginbotham $50.00 per week out of their salaries for his instructive sessions. During a portion of the time they paid him an additional $25.00 per week for the purpose of hiring a private detective to shadow the President of the company. These employees of Wesco furnished Higginbotham with full confidential information of Wesco’s sales/costs, production, financial condition and other private facts concerning the corporation. All of this was done without the knowledge of or authority from the Chairman of the Board of Directors, the President, or the controlling stockholders of the corporation. It was, however, done with the knowledge and approval of Amis, who was Vice-President and General Manager of the corporation. The business decisions of this group were dictated by Higginbotham. It is undisputed that Higginbotham instructed such employees, including Coker and Tuggle to reimburse themselves for the $25.00 payments to be used for shadowing the President by padding their expense accounts. Appellants Coker and Tuggle denied that they padded their expense accounts in this connection but admitted that they made such payments to Higginbotham and that other employees of appellee did so reimburse themselves. Higginbotham admitted the receipt of these $25.00 payments and, when he was confronted with Wesco’s knowledge of the fact, returned them to Wesco by a Cashier’s check in the amount of $2,775.00. It is undisputed that appellants and the other employees who were under the control of Higginbotham were instructed by him to conceal from Wesco’s President, Chairman of the Board, Board of Directors and controlling stockholders all facts concerning him. They were instructed to refer to Hig-ginbotham only through the use of a code name “Roy Edwards.” The record shows that when this situation was discovered by Wesco and confirmed by investigation such officers and employees, including Coker and Tuggle, were discharged. The discharging of the employees was done by the President of the corporation under the express authority and direction of a resolution of the Board of Directors.

There are many elements which properly bear upon satisfactory performance by an employee. In some types of work the personal taste, feeling, sensibility and individual judgment of the employer is highly material. In other types of employment mechanical ability and utility in relation to which recognized standards are available is the principal consideration. In Isbell v. Anderson Carriage Company, 170 Mich. 304, 136 N.W. 457, it was stated concerning the first mentioned type of employment that since the matter was personal to the employer it was therefore “his right to say whether he was satisfied or not” and that it should not be left to another to say that he ought to be satisfied.

In Hardison v. A. H. Belo Corp., Tex.Civ.App., 247 S.W.2d 167, (No writ history), it was stated as follows:

“Actually claimed, in short, is that the parties have entered into one of those familiar ‘satisfaction’ contracts; i. e., an agreement under which the employee undertakes to render services satisfactory to the employer and to which a different principle of law is clearly applicable. 6 A.L.R., Annotations, p. 1502. Under a contract to render satisfactory services it is not required that a reasonable ground for discharge should exist on part of the employer. It is merely necessary that he be honestly dissatisfied with the employee’s work; in other words, that such dissatisfaction is real and not pretended.”

In the instant case Wesco’s dissatisfaction with appellants involves a fact situation and elements of satisfactory performance which are entirely different from those involved^ in the above cited cases. Wesco’s dissatisfaction concerns the matter of appellants loyalty as employees of the corporation. Any employer has the right to expect loyalty from its employees. The evidence is undisputed that Coker and Tug-gle knew that their actions as heretofore set out were not in accordance with the wishes of the President and Board of Directors of Wesco, but on the contrary their efforts were to please Higginbotham, and they kept many things secret from such top management. Without doubt Wesco is justified in its contention that appellants were disloyal. It is no defense for appellants to show that Amis and Robinson, who held official positions in the corporation were likewise disloyal to the management and encouraged appellants in such disloyalty. The evidence is undisputed that appellants were not loyal. The top management of Wesco says that it is dissatisfied with the performance of its employees Coker and Tuggle. There is no evidence or circumstances in the record which shows or tends to show that Wesco’s dissatisfaction with such disloyalty is feigned and that Wesco is in fact satisfied with the performance of appellants. In our opinion there is no disputed fact issue in the case to be determined by a fact finding body and the trial court properly entered a summary judgment for Wesco Materials Corporation.

The judgment is affirmed.


author: MURRAY, Chief Justice.

text:
    TEXAS RESERVE LIFE INSURANCE COMPANY, Appellant, v. Modena DEES, Appellee.
    No. 14051.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 20, 1963.
    Rehearing Denied May 8, 1963.
    Second Motion for Rehearing Denied June 12, 1963.
    Morriss, Morriss, Boatwright & Lewis, San Antonio, Huson & Bissett, Refugio, for appellant.
    Hill, Brown, Kronzer, Abraham, Watkins & Steely, Houston, Scanio & Teer, Refugio, for appellee.
   MURRAY, Chief Justice.

This suit was instituted by appellant, Texas Reserve Life Insurance Company, against appellee, Modena Dees, to cancel a life insurance policy issued by appellant upon the life of R. B. Dees, hereinafter referred to as insured, in which appellee was named beneficiary. Cancellation was sought upon the grounds that insured was not in good health in accordance with the provisions of the policy at the time of its delivery to him, and that in the application for insurance insured made false statements about his physical condition, which statements were relied on by appellant in issuing the policy in question. Appellee answered and filed a cross-action seeking a recovery upon the policy, 12% penalty and attorney’s fees. Upon a jury verdict, the trial court rendered judgment in favor of appellee as prayed for in her cross-action, from which judgment appellant has prosecuted this appeal.

The jury answered Special Issues Nos. 1, 2, 8 and 14, as follows:

No. 1. That insured was in good health on the date the policy was issued, to-wit, July 22, 1959.

No. 2. That the negative answer of insured in his application for insurance, dated April 2, 1959, to the question, “Have you ever had any disease of the heart?” was not false.

No. 8. That the answer “Yes” to the question “Are you now in good health?” made in the application of R. B. Dees to the Insurance Company dated April 2, 1959, was not false.

No. 14. That insured’s answer “No” to the question, “Are there any circumstances known to you which might affect your state of health ?” made by him in the application for insurance on April 2, 1959, was not false.

Subsidiary issues relating to the above issues were conditionally submitted and were therefore not answered.

Appellant’s first contention is that the trial court erred in not granting it a judgment non obstante veredicto. Its motion was based upon the contention that there was no evidence to support the jury’s answers to Issues Nos. 1, 2, 8 and 14, and that the matters inquired about were conclusively established as being just the opposite to the answers of the jury.

The policy provided that it was not to become effective unless delivered to insured while he was alive and in good health. Appellant contends that on July 22, 1959, insured had a bad heart condition and was therefore not in good health. The evidence shows that on January 19, 1959, insured went to the office of Dr. Williford of Corpus Christi for a check-up and, after an examination, was told by Dr. Williford that he was suffering with arteriosclerotic heart disease with angina pectoris. In May, 1959, insured again visited Dr. Williford, who confirmed his former diagnosis and advised that insured was suffering with arteriosclerotic heart disease with angina pectoris. On October 13, 1959, insured again saw Dr. Williford professionally. Dr. Williford continued his diagnosis and advice of arteriosclerotic heart disease with angina pectoris. On January 14, 1960, insured was found dead in the street behind the post office in Woodsboro, where he resided.

Before the policy was issued to insured on July 22, 1959, he was told by insurer that he would have to be given a physical examination by Dr. Arch C. Koontz of Woodsboro, Texas. Insured was examined by Dr. Koontz on June 8, 1959, at which time, in answer to an inquiry as to whether he had ever had a blood test, X-ray, basal metabolism, electro-cardiograph or health examination, he stated that in 1958 he had a “check-up.” Insured was 5 feet, 11:½ inches in height, and weighed 158 pounds on the day he was examined by Dr. Koontz.

Lay witnesses who were in a position to know, testified that during 1958 and 1959, and until his death in January, 1960, insured was in apparent robust health, working hard and never losing a day from work on account of sickness. He held not only one job but two. He worked for the Union Producing Company, and after hours as a self-employed plumber. He worked hard, climbing under houses and connecting plumbing. He never complained of shortness of breath or of pains in his chest. He was a strong man.

His visit to Dr. Williford was made at the suggestion of his daughter because he was suffering with bronchitis, and he thought while there it would be well to have a check-up. Dr. Williford gave him a prescription for nitroglycerin pills to be taken by him in case he should have chest pains. He had some of these pills on his person at the time of his death, but no one ever saw him take one of the pills.

A death certificate was admitted in evidence, showing insured’s death was caused by “Coronary Occlusion,” but this certificate was improperly admitted because the Justice of the Peace who made it, admitted that it was based upon hearsay, and the certificate was not signed by the State Registrar, and therefore was not admissible under the provisions of Rule 54a of Art. 4477, Vernon’s Ann.Civ.Stats. Armstrong v. Employers Casualty Co., Tex.Civ.App., 357 S.W.2d 168, 170; Folse v. Monroe, Tex.Civ.App., 190 S.W.2d 604; Universal Life & Accident Ins. Co. v. Ledezma, Tex.Civ.App., 61 S.W.2d 165; Washington National Ins. Co. v. Chavez, Tex.Civ.App., 106 S.W.2d 751.

Both the Justice of the Peace and Dr. Williford ultimately testified that they did not know the cause of insured’s death. Dr. Arch C. Koontz, who gave insured a physical examination before the policy was issued, and who viewed the body of insured and pronounced him dead was not called as a witness. The record fails to show that insured’s death was caused by the heart condition found to have- existed by Dr. Williford at the time he gave insured the “check-up” on January 19, 1959. A fact issue was raised as to whether insured was in good health on July 22, 1959, when the policy of insurance was delivered to him. The jury’s finding that he was in good health was not so against the great weight and preponderance of the evidence as to be clearly wrong. Coxson v. Atlanta Life Ins. Co., 142 Tex. 544, 179 S.W.2d 943; Vann v. National Life & Accident Ins. Co., Tex.Com.App., 24 S.W.2d 347.

Appellant relies strongly upon the cases of Lincoln Income Life Ins. Co. v. Mayberry, 162 Tex. 492, 347 S.W.2d 598, and Texas Prudential Ins. Co. v. Dillard, 158 Tex. 15, 307 S.W.2d 242. These two cases are distinguishable from the Coxson and Vann cases, in that in both of them it was conclusively shown that the cause of death of the insured was the disease with which insured was indisputably seriously afflicted at the time the policy was issued.

In the case at bar the evidence is sufficient to support the findings of the jury in answer to Issues Nos. 2, 8 and 14, and they are not so against the great weight and preponderance of the evidence as to be clearly wrong.

The trial court did not err in defining the term “good health” in connection with Special Issue No. 1, and in failing and refusing to submit the definition of “good health” as tendered by appellant. The definition given by the trial court is as follows:

“In connection with the above Special Issue, you are instructed that ‘good health’ does not mean perfect health; but rather it means a state of health free from any disease that affects the general soundness and healthfulness of the system seriously, that is, that the Insured be not afflicted with a disease or bodily infirmity of a substantial nature, which affects the Insured’s general health and which clearly and materially increases the risk to be assumed by the Insurer.”

This definition was not subject to the objection made by appellant to the effect that it placed a more onerous burden upon it than is required by law. Sovereign Camp, W. O. W. v. Derrick, Tex.Civ.App., 64 S.W.2d 982; Vann v. National Life & Accident Ins. Co., supra.

The trial court did not err in entering judgment for the statutory penalty and attorney’s fees, because there was no finding that appellant had just cause for refusing to tender the face amount of the policy within thirty days after demand for payment was made. In the first place, the parties stipulated that such a jury finding was unnecessary, and in the second place, the burden of securing a favorable finding was on appellant. Reserve Life Ins. Co. v. Ross, Tex.Civ.App., 356 S.W.2d 393, 394; Art. 3.62 Vernon’s Ann.Ins.Code.

The judgment is affirmed.

On Motion for Rehearing.

Appellant earnestly argues that the jury’s finding, to the effect that insured’s answer, in his application for insurance, that he had never had any disease of the heart, was not false, was so against the great weight and preponderance of the evidence as to be clearly wrong. We adhere to our original holding, and, in addition to what we said in our original opinion, add the following:

There was one medical witness, and he testified, in addition to those matters stated in the opinion, that he gave certain tests in making his diagnosis. He said that Dees’ heart beat faster after exercise, but there was evidence that this was normal not only for a man forty-nine years old but also for a younger man. The doctor’s records reflected that the heart “Sounds of good quality.” He prescribed no rest, hospitalization, or that Dees quit his work. His records showed that the patient “has had no true episodes of angina, although he has had a couple of episodes marked by a little shortness of breath, at which time he immediately stopped and found some relaxation.” He testified that the electrocardiogram demonstrated no evidence of heart damage. He said that arteriosclerosis comes with advancing age and that he would expect to find some arteriosclerosis in the coronary arteries of any man of Dees’ age. He stated that many persons who have had angina on occasions will go for years with no further sign of recurring angina. In our opinion, from all the evidence, the jury was within its province in concluding that Dees’ condition was like that to which all men forty-nine years of age are heir to.

Appellant’s motion is in all things overruled.


text:
    R. J. ROSE, Appellant, v. W. O. LOVE et al., Appellees.
    No. 11082.
    Court of Civil Appeals of Texas. Austin
    June 5, 1963.

      Robert I. Wilson, Kerrville, for appellant.
    James C. Larsen, Victoria, for appellees.
   ARCHER, Chief Justice.

This is an appeal from a judgment based on a jury verdict against appellant, in an action by appellees to recover rent for the months of March, April, May, June, July, August, and a part of February, 1961, aggregating $1250.00, and for $200.00 as liquidated damages.

The lease agreement was made between Victoria Real Estate Co., a corporation, and R. J. Rose covering a lot or tract of land in Victoria, Texas, for a period of five years at a monthly rental of $200.00.

Among the provisions of the lease is No. 5, reading as follows:

“This lease is not subject to assignment or transfer, or to the subleasing of all or any part thereof by Lessee without the written consent of Lessor. However, it is expressly provided that should Lessee obtain from Lessor consent in writing for the assignment hereof in its entirety, then Lessee shall thereby be relieved of all duties, obligations and payments hereunder provided for.”

The property covered by the lease was conveyed to W. O. Love and C. E. Erwin, the appellees and the lease was also assigned to appellees on January 7, 1961.

Appellant contends that he assigned the lease to Harry J. Coryell on December 13 (12), 1960, and the said H. J. Coryell paid $1000.00 in cash and obligated himself to pay $500.00 on March 1, 1961, and the further sum of $1500.00 in monthly installments of $45.64 each commencing April 1, 1961, and that the Victoria Real Estate Co. agreed to such assignment by a letter dated December 13, 1960, as follows:

“December 13, 1960
“Mr. R. J. Rose
“Victoria, Texas
“Dear Mr. Rose:
“Reference is here made to that certain lease agreement between you and the undersigned firm, dated December 13, 1960.
“You have advised us that you may conclude to dispose of your Hill Country Barbecue business, early in 1961, in which event you will wish to transfer the lease covering premises described in paragraph I, to Harry J. Coryell, who is, at this time, connected with the operation of said business.
“Pursuant to the provisions of paragraph V of that certain lease agreement between you and the undersigned, dated December 13, 1960, this is to advise that the assignment of your lease agreement to Harry J. Coryell, is agreeable with this company, if accomplished on or before June 30th, 1961.
“Yours very truly,
“VICTORIA REAL ESTATE CO.
“/s/ By H. A. Jamison “President”

At the bottom of appellant’s copy of the lease agreement there is a statement as follows:

“Victoria, Texas
“May 1, 1961
“I hereby assign and set over the above lease agreement to Harry J. Coryell without recourse on me.
“/s/ R. J. Rose
“Accepted:
“Harry J. Coryell”

We have carefully considered the record in this case and have concluded that there was no fact issue to submit to the jury.

Mr. Jamison consented to an assignment of the lease agreement to Harry J. Coryell if accomplished on or before June 30th, 1961, and there is no denial of the assignment of the lease agreement to Coryell by Rose on May 1st, 1961.

The judgment of the Trial Court will be reformed so as to allow a recovery against R. J. Rose for rents accruing prior to May 1, 1961, which would be for the months of February, March and April less $150.00 paid, or a sum of $450.00 with 6% interest from August 7th, 1962.

In view of our decision it is unnecessary to discuss other phases of the case.

Costs are taxed against appellees.

The judgment is reformed as stated and as reformed, affirmed.

Reformed and as reformed, affirmed.


author: PHILLIPS, Justice.

text:
    Frank T. WILSON, Appellant, v. Mrs. Charles SCRUGGS et al., Appellees.
    No. 11105.
    Court of Civil Appeals of Texas. Austin.
    May 29, 1963.
    Rehearing Denied June 26, 1963.
    Elbert R. Jandt, Seguin, for appellant.
    Clinton G. Brown, San Antonio, for ap-pellees.
   PHILLIPS, Justice.

This is an appeal brought by Frank T. Wilson, from a temporary injunction issued by the Trial Court restraining him from acting as a director and officer of the Comal Broadcasting Company, and further an appeal from the dissolution of a temporary injunction hereinafter described.

At the time the litigation now before this Court was instituted and at the present time, the stock of the Comal Broadcasting Company was owned as follows: Mrs. Charles Scruggs, 40 shares; Claude W. Scruggs, 20 shares; Frank T. Wilson, 20 shares; and A. W. Stewart, 20 shares. The Scruggs family, appellees herein, are the majority stockholders with a total of 60 shares.

Appellant Wilson was president and a director of the Comal Broadcasting Company and A. W. Stewart was secretary and director of the Company when the appellees became dissatisfied with the way the Company was being operated. The appellees called a stockholders meeting for December 17, 1962. Appellant and Stewart contended that the meeting had been improperly called and refused to attend. Appellees, being the majority stockholders, held the meeting in the absence of appellant and Stewart and elected themselves, one Sherry Hill and one Norma Jo Hill as directors. On this same day these new directors held a directors’ meeting and elected Qaude Scruggs, President, Mrs. Charles Scruggs, Vice-President, and Norma Jo Hill, Secretary-Treasurer.

After the abovementioned meeting was held, appellant obtained a temporary restraining order restraining the directors and officers elected at the December 17th meeting from acting as directors and officers of the Company. This temporary restraining order was replaced by a temporary injunction that was dissolved by the Trial Court in the judgment now before this Court. Appellant, in this appeal, contends that this injunction should be reinstated.

On January 11, 1963, another stockholders’ meeting was held pursuant to a notice sent all the stockholders by Mr. Stewart, the secretary. All of the stockholders attended this meeting. Appellant acted as chairman and Stewart acted as secretary.

Appellant contends that at this meeting he, Stewart, Sherry Hill and Norma Jo Hill were elected directors. Appellees contend that they (Mrs. Charles Scruggs and Claude W. Scruggs), Sherry Hill and Norma Jo Hill are the directors. This is the question to be decided by this Court.

Appellant and the directors he urges as valid did not hold a directors’ meeting, however, appellees and their claimed directors did hold a meeting and elected Claude W. Scruggs, President, Mrs. Charles Scruggs, Vice-President and Mrs. Sherry Hill, Secretary-Treasurer.

Subsequent to the stockholders’ meeting of January 11, appellees obtained a temporary restraining order against appellant restraining him from acting as an officer and director of the company. This temporary order was carried forward as a temporary injunction, and it is from this injunction that appellant also appeals.

There is no dispute in that the stockholders’ meeting held January 11 was valid. Consequently, for the purpose of this appeal, we do not pass on the validity of the prior meeting held in December.

Appellant urges his election as director on the theory that he and Stewart cumu-lated their votes. By this he means, since the bylaws of the company allowed one vote per share of stock, he and Stewart, in addition to their one vote per share could have another vote per share for each officer of the corporation they were entitled to vote for but did not. In' other words, in addition to the vote per share which they used in voting for themselves, they also had a vote per share for each of two directors. Under the theory of cumulating votes, by failing to vote for either of the two directors, they could apply these additional votes to themselves. By this method appellant and Stewart had 80 votes each while the appellees had only 60 votes each under the one vote per share rule.

In his findings of fact and conclusions of law, the Trial Court found that the articles of incorporation of the company were silent as to cumulative voting. The Trial Court also concluded that the Comal Broadcasting Company became subject to the provisions of the Business Corporation Act, Septem-her 6, 1960, Art. 9.14, subd. E, Vernon s Civil Statutes.

An amendment to the Business Corporation Act passed in 1957, now designated as Art. 2.29, subd. D(2), V.C.S. and applicable to corporations becoming subject to the Act subsequent to the date of this amendment, forbids cumulative voting unless specifically authorized by the articles of incorporation and that in voting for directors a shareholder votes the number of shares held. Prior to this amendment the law allowed votes to be cumulated unless expressly prohibited by the articles of incorporation.

Thus the Trial Court correctly held that inasmuch as appellant and Stewart were forbidden by law to cumulate their votes, appellees prevailed in the election of directors held January 11, 1963, and that the officers elected by these directors are the legal officers of the Comal Broadcasting Company.

The judgment of the Trial Court dissolving the injunction sought by appellant after the December meeting and granting the injunction appealed from is affirmed.

Affirmed.


author: WALTER, Justice.

text:
    Mary CARROLL, Appellant, v. COLLINS TEXAS CREDIT UNION, Appellee.
    No. 3791.
    Court of Civil Appeals of Texas. Eastland.
    May 23, 1963.
    Clemens, Knight, Weiss & Spencer, San Antonio, for appellant.
    Clarence Bentley, Dallas, for appellee.
   WALTER, Justice.

Collins Texas Credit Union filed suit against Donald D. Carroll and Mary Carroll on a promissory note and for foreclosure of a chattel mortgage.

The court overruled Mary Carroll’s plea of privilege. She has appealed contending the court erred in overruling her plea of privilege because (1) there is no evidence of the non-residence of Donald D. Carroll, a co-defendant (2) no evidence that the chattels sought to be foreclosed upon were in Dallas County and (3) no evidence of a written promise to pay in Dallas County.

Collins controverted the appellant’s plea of privilege and alleged that subdivisions 3, 5 and 12 of Article 1995 of Vernon’s Ann.Tex.Civ.St. applied. We find the rule of venue stated by our Supreme Court in Goodrich v. Superior Oil Company, 150 Tex. 159, 237 S.W.2d 969, 972, as follows: “The general rule of venue is, of course, that a defendant shall be sued in his own county, and however many and important are the exceptions contained in the statute, an equal doubt between the exception and the rule is to be resolved in favor of the rule. Stated differently, the application of the exception must clearly appear.”

We have concluded that there is no support in the evidence for the order overruling appellant’s plea of privilege on the theory that her co-defendant resided without the state or that his residence was unknown within the meaning of said subdivision number 3 or on the theory that the suit was for a foreclosure of a lien on chattels located in Dallas County under subdivision 12.

Subdivision 5 of said Article 1995 provides: “If a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.”

The note signed by appellant does not contain any words which could be construed as a promise to pay in Dallas County. The chattel mortgage has the following provision:

“TO HAVE AND TO HOLD the same unto said mortgagee, said mortgagees personal representative, successors and assigns forever.

“Provided, and these presents are upon the express conditions, that if said mortgagor shall well and truly pay or cause to be paid to said mortgagee said sum above mentioned, with interest thereon, in accordance with the terms of his certain promissory note bearing even date herewith, signed by said mortgagor, payable to said mortgagee or order as follows; to-wit: 3500.00 Dollars with interest on the unpaid balance at the rate of one % per month payable in monthly installments of 3500.00 Dollars, the first payment to be made on the 7 day of March, 1961, and a like amount every thereafter until the full amount has been paid, said above payments to be paid at the offices of Collins Texas Credit Union, 1937 Irving Blvd. Dallas Dallas, (address) (City) (County) Texas. (State)”

The description of the note in the mortgage asserts that the note provides for payment in Dallas County. This is a misdescription of the note because it has no such provision. The mortgage contains no promise to pay in Dallas County but only misdescribes the note as so providing. The misdescription does not constitute an express promise to pay in Dallas County.

We have concluded that the court erred in overruling appellant’s plea of privilege. The judgment is reversed and the cause remanded.


author: McDONALD, Chief Justice.

text:
    Donald G. ROMEIKE, Appellant, v. HOUSTON INDEPENDENT SCHOOL DISTRICT, Appellee.
    No. 4125.
    Court of Civil Appeals of Texas. Waco.
    June 6, 1963.
    Billy E. Lee, Houston, for appellant.
    Bracewell, Reynolds & Patterson, Joseph Jaworski, Houston, for appellee.
   McDONALD, Chief Justice.

Plaintiff Romeike sued defendant Houston Independent School District for $4200 which he alleged was due him for the 1958-1959 school year. Plaintiff and defendant made a contract in May 1958 whereby plaintiff was employed for the 1958-1959 school year. After the signing of the contract, but before its effective date, plaintiff purchased a liquor store in an adjoining school district, with the announced intention of operating it during the summer vacation period, but of employing an operator during the school year. Defendant learned that plaintiff owned the liquor store, and in June 1958 its administrative officials demanded that plaintiff either get out of the liquor business, or resign his teaching position. The Board of Education of defendant school district enacted a written regulation on July 28, 1958, that employees of the school district shall not be commercially involved in the liquor traffic. However, prior to July 28, 1958, and prior to May, 1958, and for many years it had been the operational policy of the school district that teachers could not participate in the liquor business. On 3 occasions teachers had been found to own or work in a liquor store; were called in, and in all 3 instances discontinued connection with the liquor business.

Plaintiff did not get rid of his liquor store and was on September 2, 1958 suspended without pay; and was on January 26, 1959 dismissed from the school system. Plaintiff appealed to the Board of Education of defendant school district, to the State Commissioner of Education, and to the State Board of Education, losing all appeals.

Trial was before the Court, which after hearing, entered judgment that plaintiff take nothing.

Plaintiff appeals, contending the Trial Court erred in holding that defendant school district had legal justification for discharging him.

Plaintiff concedes that the regulation of the Board passed on July 28, 1958, prohibiting teachers from engaging in the liquor business, is a legal exercise of power, but contends that it was passed after he entered into his contract in May, 1958; and cannot be applicable to his contract because of the United States and Texas Constitutions. Article I, Section 10 of the United States Constitution provides:

“No State shall * * * pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts * * * ”;

and Article I, Section 16 of the Texas Constitution, Vernon’s Ann.St., provides:

“No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.”

Plaintiff’s contract with defendant school district was by its terms “subject to the rules and regulations of the Board of Education of Houston Independent School District * * *.” The record reflects that the Board had had an operational policy against teachers being involved in the liquor business for many years and that the resolution passed on July 28, 1958 was simply a codification of existing rules and that it was passed in order to “clarify”, and “so there would not be further problems”. At least 3 teachers in the past had been called in and advised to get out of the liquor business or resign, pursuant to the existing policy, and all of- them complied by severing their connection with the liquor business. Plaintiff’s temporary suspension and dismissal were procedurally accomplished in accordance with established procedures (Sec. 12:38 and Sec. 12:39 of the Rules and Regulations of the Houston Independent School District), and we are concerned here only with the question of whether legal justification existed.

The general rule is that regulations and operational policies adopted by a school board prior to making a contract with a teacher form a part of the contract, and the teacher’s employment is subject thereto. Arlington Ind. School Dist. v. Weekley, CCA (n. r. e.) 313 S.W.2d 929.

Since the record reflects that it was the school district’s policy that a teacher be not involved in the liquor traffic, prior to the date of the plaintiff’s contract, plaintiff’s point and contentions thereunder are overruled.

The Weekley case, supra, further holds:

“It also seems to be the law that a regulation adopted after a teaching contract is made becomes a part of it and the employment is subj ect thereto”; citing: Houghton v. School Committee of Somerville, 306 Mass. 542, 28 N.E.2d 1001; Appeal of Board of School Directors of Cass Township, Schuylkill County, 151 Pa.Super. 543, 30 A.2d 628; Board of School Directors of Ambridge Borough School District, Beaver County v. Snyder, 346 Pa. 103, 29 A.2d 34; School City of East Chicago v. Sigler, 219 Ind. 9, 36 N.E.2d 760, 136 A.L.R. 1149.

The judgment of the Trial Court is affirmed.


author: WILSON, Justice.

text:
    PERRY NATIONAL BANK, Appellant, v. John R. EIDSON et al., Appellees.
    No. 4139.
    Court of Civil Appeals of Texas Waco.
    June 13, 1963.
    Rehearing Denied June 27, 1963.
    Abney, Hammett & Lynch, Lampasas, Andrew Campbell, Hamilton, for appellant.
    Rawlings, Sayers, Scurlock & Eidson, Ft. Worth, for appellees.
   WILSON, Justice.

Appellees’ action sought judgment for title and possession of land and stock certificates. The complete nature of the case and a summary of much of the evidence adduced on the present trial is detailed in the opinions on the former appeal, Eidson v. Perry National Bank, Tex.Civ.App., 327 S.W.2d 683; Perry National Bank v. Eidson, 161 Tex. 340, 340 S.W.2d 483. To reduce opinion length, unnecessary repetition of those facts will be omitted.

In a non-jury trial the court rendered judgment on findings to the effect that conveyances of the land and assignment of the stock to the bank were to secure Eidson’s indebtedness to the bank, evidenced by his note, on which the bank made specified credits of receipts from an oil and gas lease it made on the land; that similar subsequent receipts should be so credited; that the bank held possession of the stock as pledgee, not having notified Eidson of any repudiation of the pledge contract. There was no foreclosure of the pledgee’s lien by public or private sale, and it was found there was no sale of stock to the bank or any transfer in satisfaction of indebtedness. The court determined the action was not barred by limitation; that Eidson did not have notice of any claim of ownership by the bank, and did not intentionally waive or relinquish rights to redeem the stock; that estoppel did not exist; that Eidson’s possession and management of the land was not permissive, but of right. After fixing accounting rights, applying credits and computing interest, the court awarded to the bank the tendered balance due on the indebtedness; and to ap-pellees, title to the land, proportionate to Eidson’s corporate stock interest.

Appellant says the findings and judgment are contrary to the overwhelming preponderance of the evidence. On the former appeal the writer expressed the dissenting view that this court was not there authorized to set aside jury findings favorable to the bank on those grounds. The whole court in the present appeal is of the opinion the trial court’s findings are not contrary to the overwhelming preponderance of the evidence. Although there was evidence from which contrary findings could be made, we are unable to sustain these points, or appellant’s other points that there was no evidence to support the determinations.

There was presented evidence additional to and different from that on the previous trial. Under it appellant again contends appellees are equitably estopped, that Eid-son ratified his deed to the land and waived and relinquished his rights to redeem the stock, having elected to receive benefits of his conveyance and having acquiesced in the bank’s claim. Appellant introduced additional evidence of declarations against interest by Eidson, including those made in connection with his application to re-amortize the Federal Land Bank loan, and correspondence and negotiations leading to the boundary agreement previously discussed. This new evidence, though strengthening appellant’s evidentiary position, does not authorize reversal.

If appellant intends a new contention that the boundary agreement constituted a ratification, rather than a basis for estoppel by deed, that point is foreclosed against it by the Supreme Court’s opinion, 340 S.W.2d 483, 486, above, for the contention was squarely presented by the writer’s previous dissent, and the new evidence, although fortifying it, did not alter the status and effect of the agreement as being inconclusive.

It is said recitals in the approved final report of Eidson’s sister, as temporary administratrix of his estate, that she “does not know” of any other assets, claims or debts of the estate than those listed, and “she believes” all other debts have been paid, are conclusive against and bind ap-pellees. The administratrix was not a party to this suit. We hold the recitals do not have this effect. Texas Probate Code, Sec. 261, V.A.T.S.; Koppelmann v. Koppelmann, 94 Tex. 40, 57 S.W. 570, 572; Republic National Bank v. Fredericks, 155 Tex. 79, 283 S.W.2d 39, 48.

All points have been fully considered and are overruled.

Affirmed.


author: BELL, Chief Justice. COLEMAN, Justice.

text:
    Corydon Merriman ASHBY, Jr., Appellant, v. John William STEVENSON, Appellee.
    No. 14225.
    Court of Civil Appeals of Texas. Houston.
    June 20, 1963.
    Rehearing Denied June 27, 1963.

      Solito, Vetrano & Murr, Peter S. Solito, Houston, Bill Waltrip, Beaumont, of counsel, for appellant.
    Thomas J. Graham, Houston, for appel-lee.
   BELL, Chief Justice.

This is an appeal from a judgment refusing to dissolve a temporary injunction.

On January 26, 1962, appellee filed an alienation of affection suit against appellant and ancillary to that suit sought an order enjoining appellant from communicating in any way with appellee’s wife. Appellee’s wife had filed suit for divorce against him. On February 1, 1962, after hearing, the trial court granted the relief prayed for and enjoined appellant from in any manner communicating with appellee’s wife. The injunction was to remain in effect until further orders of the court, or until the final determination of the alienation of affection suit, or until the final termination or dissolution of the bonds of matrimony between appellee and his wife.

On December 12, 1962, appellee filed his cross-action for divorce against his wife. As grounds for divorce appellee relied principally on the improper relationship between his wife and appellant. The divorce case came on for trial on December 18, 1962 and on trial before a jury, the jury, on December 20, 1962, found favorably to appellee as to grounds for divorce, but favorably to his wife as to the issue of custody of their children.

On March 6, 1963, appellant filed his motion to dissolve the injunction. As grounds for dissolution appellant asserted a change in conditions of such a nature as have in fact destroyed the harmonious marriage relationship that the injunction was designed to preserve. The fact of the filing of the cross-action, the trial of the divorce case and the rendition of a divorce judgment by the court, though there had been no written draft of the judgment signed, are all alleged. Too, it was alleged the alienation of affection suit had never been set for trial though it had been on file since January, 1962. Further, it is alleged appel-lee made constant threats against appellant and his wife to have them both punished for alleged violations of the order. One affidavit for complaint filed by appellee’s counsel charging appellant with six violations was made a part of the motion. The affidavit reflects appellant had previously been held in contempt.

Trial on the motion to dissolve was had on March 11, 1963. The evidence introduced consisted of a copy of appellee’s cross-action, a copy of the court’s charge and the jury’s answers to the issues,, and the court’s docket entry showing judgment “rendered as per stipulation entered in record.” Oral testimony was offered through appellee’s attorney. The testimony reflected that the trial of the divorce case consumed three days. The evidence in the divorce suit largely related to the affair between appellant and Mrs. Stevenson. Appellee in effect had testified in the divorce case that because of his wife’s continued association with appellant even since the injunction was granted, he could not live with her. Counsel for appellee testified his client’s position had always been that if his wife quit running around with appellant he would like to effect a reconciliation. The evidence showed that appellant admitted he and Mrs. Stevenson had continued to associate, in violation of the injunction. At the time of the hearing of the motion to dissolve, counsel for appellee had been instructed to file a motion for new trial in the divorce case and if it was overruled to appeal the entire case. The judgment in the divorce case had not been entered by the court at the time of the hearing on the motion to dissolve.

Appellant was called to the stand by appellee’s counsel as an adverse witness. He testified he was married and had three children. Questions with regard to his feeling for and relationship with Mrs. Stevenson were not permitted to be answered.

Appellant predicates his appeal on the assertions that the evidence shows such changed conditions that an injunction cannot serve to preserve the status quo that existed when it was issued because the harmonious marriage relations between ap-pellee and his wife, which the injunction was designed to preserve, have in fact been destroyed since the issuance of the injunction. He says the injunction should have been dissolved also because of the ill use made by appellee of the injunction. The position is that there is no chance of reconciliation. Appellant asserts appellee merely wants to maintain the injunction to use it to punish appellant.

Whether a temporary injunction should be dissolved is a matter addressed to the sound discretion of the court and his action will not be disturbed unless he has clearly abused such discretion.

In determining whether the trial court abused his discretion we must view the matter in the light of the facts as they existed at the time the trial court acted.

We have reached the conclusion that we cannot say, in the light of the facts the trial court had before it, that there was an abuse of discretion in refusing to dissolve the injunction.

This case involves the preservation of marital relations and thus the preservation of the home. In this case the preservation of the home is doubly important because small children are involved. The trial court had before him a situation where the marital relationship between appellee and his wife had been apparently destroyed because of acts on the part of appellant. The purpose of the temporary injunction, when issued, was to aid appellee in preserving and re-establishing in fact a sacred relationship that was at least apparently being destroyed by appellant. When the motion to dissolve was heard the marital relationship had not been finally legally terminated. While a judgment for divorce in favor of appellee, because of appellant’s relationship with ap-pellee’s wife, was rendered, no draft of the judgment had been signed. The judgment, though rendered, had not by the passage of time become final. Too, appellee had the right to file a motion for new trial. While we do not feel appellee would have the legal right to obtain a new trial as to the divorce for which he asked (Lotz v. Lotz, 185 S.W.2d 481, C.C.A.), the time that would probably be entailed in finally disposing of the motion for new trial could be viewed as additional opportunity for wounds to heal and within which appellee and his wife could seek to effect a reconciliation. While the chance of reconciliation, in the light of what we have recited above, might seem remote, certainly it would not be as unlikely if appellant is not permitted to intervene. While it is difficult to understand how, after extreme unpleasantness that is characteristic of divorce proceedings, husband and wife sometimes become reconciled, experience teaches us they do. Even though the chance be remote, hope of its realization should be given every encouragement. Certainly the courts should give their aid, where legally possible, to the maintenance of an environment that is conducive to reconciliation. Appellee’s position is that despite his wife’s past indiscretions he wishes to forgive them and to preserve the home. Time is a great healer. It affords opportunity for tempers and passions to cool and an opportunity for that sober second thought.

We judicially know that appellee has now perfected his appeal to this court in the divorce case. While as above stated, we do not think appellee here, who is appellant there, is in a position to successfully attack a divorce judgment favorable to him, he has perfected his appeal as to the whole case, including that part of the judgment awarding custody of the children. It is legally possible, by the agreement of the parties, to ask this Court to reverse and remand the case for the purpose of having the trial court enter an agreed judgment which could be one of dismissal of the divorce proceedings. Rule 387a, Texas Rules Civ.Proc.

Appellant urges in effect that the harmonious marital relations have actually been destroyed and appellee merely wants to keep the injunction in force to punish appellant by filing contempt charges against him. What appellant really wants is to be unharnessed so he can without legal restraint pursue his courtship of appellee’s wife. Appellee seeks only the continued opportunity to realize his hope of preserving his home. Appellant has adequate protection from punishment. He need only obey the valid orders of the court.

The judgment of the trial court is affirmed.

COLEMAN, Justice.

I respectfully dissent. The evidence recited in the majority opinion demonstrates a change of condition requiring the trial court to weigh the evidence as of the date of the trial to determine whether or not an injunction was proper under the circumstances. It seems to be conceded that the only purpose of the injunction was to encourage reconciliation. After the injunction had been in force for several months, appellee filed a cross-action for divorce alleging that his wife had pursued toward him since the 4th day of November, 1961, a course of unkind, cruel and immoral conduct such as rendered their further living together as husband and wife completely insupportable. The injunction has been in force for more than a year. Both appellee and his wife appeared before the Court of Domestic Relations asking for a divorce. Appellee testified that because of his wife’s conduct he could no longer live with her as her husband. The evidence negatived the existence of any progress toward reconciliation during the previous year. The purpose of the injunction was to prevent interference with the marital relationship. It could be presumed as a matter of law that irreparable injury would result from such interference. However, appellee’s testimony, together with the fact that he asked for and was granted a divorce, even though it was not final at the time of this hearing, conclusively rebuts this presumption. No other evidence supports an implied finding of probable injury to appellee if the injunction is not continued in force. The trial court’s action in continuing the injunction constituted an abuse of discretion. Camp v. Shannon, Tex.Sup., 348 S.W.2d 517.


author: STEPHENSON, Justice.

text:
    TEXAS & NEW ORLEANS RAILROAD CO., Appellant, v. E. R. ADAMS, Appellee.
    No. 6622.
    Court of Civil Appeals of Texas. Beaumont.
    May 30, 1963.
    Rehearing Denied June 19, 1963.
    Keith, Mehaffey & Weber, Beaumont, for appellant.
    Orgain, Bell & Tucker, Beaumont, for appellee.
   STEPHENSON, Justice.

This is a common law action for damages to recover the stipulated damages to a dump truck, resulting from a truck-train collision. Judgment was for plaintiff based upon a jury verdict. The parties will be designated here as they were in the trial court.

Defendant contends there was no evidence to support the finding of the jury, that no warning signal was given by the engineer as the train approached the crossing at which the collision occurred., This is a question of law to be tested on appeal by considering only the evidence favorable to the verdict and disregarding all other evidence. The truck driver testified. he did not hear a bell or a whistle. That the windows on the truck were down. That he had never had any trouble with his hearing. The plaintiff testified he was situated somewhere in the neighborhood of six or seven hundred feet from the place of the collision at the time, and that he did not hear any type of whistle or bell. Defendant contends this constitutes no evidénce to support a finding of the jury that no whistle was blown or bell rung. The rule in reference to this type of testimony is set forth in Texas & N. O. R. Co. v. Foster, Tex.Civ.App., 266 S.W.2d 206, as follows:

“The testimony that they did not hear the whistle or bell, given by witnesses who were so situated as to render it reasonably probable that they would have heard them in the existing circumstances if they had been sounded, while negative in its nature, was evidence which is recognized as having probative value to establish that the whistle and bell were not sounded. And since it was evidence having probative value, the weight to be given it was, in our opinion, a matter for the jury to determine.”

The evidence in this case raised an issue for the jury to determine. The testimony shows one of the witnesses was driving the truck involved in the collision, with the windows down, and that he had no hearing defects. These circumstances indicate that it is reasonably probable he would have heard a bell ring or a whistle blow if they had been sounded.

Defendant also contended the evidence was insufficient to support the finding of the jury as to no warning signal. In determining this point, we must consider all of the evidence, both favorable and contrary to the verdict.

The engineer testified that he gave a signal as the train approached the crossing. This signal was to blow the whistle two longs, a short and a long. That the train was fifteen or twenty feet from the crossing when he finished the last long blast. The engineer also testified the bell was ringing as the train crossed the crossing. The only other person to testify was Lillie V. Gibson, a disinterested witness. She was working inside a frame building situated about one city block from the crossing at which the collision occurred. The building in which she worked was air-conditioned and the windows were closed. She heard the train whistle, raised her head and about the same instant, heard a crash. About twenty or thirty minutes later she went to the scene of the collision and saw the wreck. She did not remember hearing a bell. The jurors were the triers of facts, and were the judges of the credibility of the witnesses. The conflict in the testimony was resolved by the jurors in favor of the witnesses for plaintiff. The verdict of the jury is not so against the weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.

The jury answered “no” to a special issue inquiring whether the truck driver attempted to cross the railroad tracks in question without first ascertaining it could be done with safety. Defendant contends this answer is in conflict with the uncontra-dicted evidence. The truck driver was asked what precautions he had taken to ascertain whether a train was coming, to which he answered:

“I just drove up there and you couldn’t see whether a train was coming or not. I was easing on across. After I got on the track, there the train was.”

The evidence showed the visions of both the truck driver and the engineer on the train were obscured by freight cars standing on a second track between them. When the truck driver was asked if he looked before crossing the track, he answered:

“I looked the best I could. You could see the box cars and that was all.”

He was asked if he listened for a train, to which he answered:

“I was listening, but I didn’t hear whether one was coming or not.”

When asked if he heard a bell or a whistle, he replied:

“No, I didn’t hear a bell or whistle or nothing.”

This was a defensive issue and the burden of proof was upon the defendant. The evidence shows the truck driver did everything the law requires him to do before starting across the track. He looked and he listened. The law does not require him to take any additional precaution. He was not obligated to stop, get out of his truck and walk up to the track before crossing. Chicago, Rock Island & Gulf R. Co. v. Zumwalt, Tex.Civ.App., 226 S.W. 1080.

The jury found, in answer to special issue #7, that the engineer sounded a warning signal at the crossing immediately prior to the time the truck driver attempted to cross the tracks in question. There is no point, or even a suggestion that this issue is in conflict with the finding that the engineer failed to give a warning as the engine approached the crossing in question. Apparently everyone in the suit, including the jury, considered these questions as inquiring about different times. The jury then found the truck driver did not fail to heed the signal inquired about in special issue #7. Defendant contends there was no evidence and insufficient evidence to sustain this last answer.

The truck driver testified that he eased out on the tracks, and after he got across one, he saw the train coming, so he accelerated, trying to get across, but he didn’t have time. Apparently the jury felt the truck driver heeded the warning signal given immediately prior to his attempt to cross the track, by accelerating his truck. Applying the rules of law required of us mentioned in connection with Defendant’s first two points of error, both of these points are overruled.

Judgment affirmed.