author: PRESLAR, Justice.

text:
    Hazel Pauline PORTER, a feme sole, Appellant, v. Willie Ann GARNER et vir, Appellees.
    No. 5673.
    Court of Civil Appeals of Texas. El Paso.
    Jan. 20, 1965.
    Rehearing Denied Feb. 10, 1965.
    Lawrence L. Fuller, Turpin, Kerr, Smith & Dyer, Midland, for appellant.
    Buehler & Buehler, San Antonio, for appellees.
   PRESLAR, Justice.

Inter-pleader suit by Sam Houston Life Insurance Company to determine the proceeds of a life insurance policy. The insured, Eric D. Porter, sought to change beneficiary under the policy from his sister, Willie Ann Garner, to his former wife, Hazel Pauline Porter. Following his death, both claimed the proceeds of the policy, and the insurer brought this suit against both, paid the proceeds of the policy into the registry of the court, and sought its discharge from liability. From a judgment of the court, sitting without a jury, in favor of the original named beneficiary, Willie Ann Garner, this appeal is taken by Hazel Pauline Porter. The insurer, Sam Houston Life Insurance Company, was discharged and is not a party to this appeal.

We hold that the change of beneficiary was effective and judgment should have been rendered for Hazel Pauline Porter.

The policy of insurance provided:

“CHANGE OF BENEFICIARY— Any beneficiary may be changed by sending to the Company, at its Home Office, a written notice in due form signed by the Insured and accompanied by this policy. Such change will take effect only when endorsed on this policy by the Company and shall then relate back to and take effect as of the date of said written notice whether the Insured be living at the time of said endorsement or not, * * * ”

The insured, Eric D. Porter, while a patient in the hospital for surgery on a leg, caused the following letter to be written over his signature on August 15 and mailed to the insurer:

“I hereby request that as of this date August 15, 1962 at 11:30 a. m. the beneficiary of my insurance policy #19451 be changed from Willie Ann Garner, Sister, to Hazel Porter, Ex-wife.”

Upon receipt of the letter, the insurer sent the insured its Form FI06, for change of beneficiary, and requested that it be completed and returned to them with the policy of insurance. The surgery was performed on August 16, and on August 21 Form F106 was completed by Eric Porter and handed to one W. L. Schneider for mailing, which was done the same day. Schneider testified that he neglected to mail the policy with the form, and his testimony is in conflict as to whether the policy was handed to him by the insured with Form F106 or whether he was to get it from the desk drawer of the insured, to which he had access. Death came to the insured on August 23rd from a heart attack while he was still confined to the hospital. Form F106 reached the insurance company’s home office on August 24th, and on September 11th the policy reached such office, it having been mailed to them by the ex-wife, Hazel Porter.

W. L. Schneider was employed as an agent for the Sam Houston Life Insurance Company and had sold the policy in question to Eric D. Porter. He also was employed by Eric D. Porter as a bookkeeper and he testified that during the time of Mr. Porter’s confinement he attended to Porter’s business affairs and brought his mail to the hospital. The parties attach much importance to whether Schneider was the agent of the insurer or the insured, and the trial court found that he was the agent of the insured; that he was negligent in failing to mail the policy, and that such negligence was imputed to his principal. We find it unnecessary to pass on the question, for it has no bearing on the case if we are correct in our disposition of it.

We sustain appellant’s point of error number Nine, which attacks the court’s finding and conclusion that the insured did not substantially comply with the requirements of the policy relative to a change of beneficiary. Contractual provisions for change of beneficiary both identical and similar to the one in this policy have been before the courts many times, and the rule is well established that the test is not strict compliance, but rather whether there was substantial compliance with the provisions. Price v. Supreme Home of Ancient Order of Pilgrims, 285 S.W. 310 (Tex.Com.App.) ; Garabrant v. Burns, 130 Tex. 518, 111 S.W.2d 1100; Kelley v. McDonald, Tex.Civ.App., 83 S.W. 2d 414 (wr. dism.) ; Kotch v, Kotch, 151 Tex. 471, 251 S.W.2d 520; Creighton v. Barnes, 152 Tex. 309, 257 S.W.2d 101; Fidelity Union Life Ins. Co. v. Methven, 162 Tex. 323, 346 S.W.2d 797. We are of the opinion that what was done here was substantial compliance, if not in fact actual compliance, with the terms of the policy. The parties to the policy of insurance contracted that to effect a change of beneficiaries two things must be done — the insured should give written notice in due form, and he should send in the policy for endorsement. Both were done, although the policy was eighteen days behind the notice. But the fact is that both did reach the home office. There is no requirement in the contract of insurance as to the time when these requirements are to be complied with. There is the provision that the endorsement shall relate back and be effective as of the date of the written notice, “whether the Insured be living at the time of said endorsement or not.” This provision distinguishes this case from those in which the entire transaction had to he completed in the insured’s lifetime, and it also makes the eighteen-day lag in time of little consequence. Some significance should be attached to the fact that the insuring party to the contract was satisfied that the requirements were met, for the change of beneficiary was endorsed on the policy. It should also be noted that the insurer pleaded such endorsement, attached the endorsed policy and the written notice (Form F106) to its pleadings as exhibits, and the parties stipulated that such petition, together with all of the exhibits and attachments thereto, were true and correct statements of all of the facts and matters stated therein and to which the same alluded and pertained.

In determining the question of substantial compliance there can be no hard and fast rule, but each case must be decided on the basis of what was done. Prior decisions offer guidance, and these are well summarized by the Supreme Court in Fidelity Union Life Insurance Company v. Methven, 162 Tex. 323, 346 S.W.2d 797 (1961). Discussing Garabrant v. Burns, 130 Tex. 518, 111 S.W.2d 1100; Kotch v. Kotch, 151 Tex. 471, 251 S.W.2d 520; Creighton v. Barnes, 152 Tex. 309, 257 S.W.2d 101; and Scherer v. Wahlstrom, Tex.Civ.App., 318 S.W.2d 456 (writ refused), Chief Justice Calvert said:

“In Garabrant v. Burns the insured wrote a letter in which he stated that he wished certain named relatives to be the beneficiaries of his policy. He died before any action was taken by the insurer. Decision of the case went off entirely on our holding that the letter did not meet policy requirements as an application for change of beneficiary. In Kotch v. Kotch the insured mailed an application for change of beneficiary to his employer but there was no evidence that the application had been forwarded to the insurer. The insured died before any action was had on the application. We held that the mere mailing of the application, with no attempt to obtain and send in the policy as required by the policy, did not constitute substantial compliance with the requirements to effect a change of beneficiary. In Creighton v. Barnes we held that a statement in a will that the testator-insured was making certain life insurance policies payable solely to his wife did not effect a change of beneficiaries in the policies because it did not constitute substantial compliance with the policy requirements. In Scherer v. Wahlstrom we approved the holding of the Court of Civil Appeals that a mere indication of an intention to change the beneficiary and receipt of proper forms for making application therefor, which forms remained unexecuted at the time of the insured’s death, did not constitute substantial compliance with policy requirements for effecting a change of beneficiary.”

These are the leading cases most nearly like the one before us, in which it was held there was not substantial compliance, and a comparison of them with this case strengthens our conclusion that what was done in this case amounted to substantial compliance.

This disposition of the case makes it unnecessary to consider the other points of error of the appellant.

The judgment of the trial court is reversed, and judgment is here rendered for appellant, Hazel Pauline Porter.


source: Caselaw Access Project

author: CLAYTON, Justice.

license: Public Domain

text:
    V. F. KNICKERBOCKER d/b/a Knickerbocker Operating Co., Appellant, v. HALEY TRANSPORTS, INC., Appellee.
    No. 5688.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 30, 1964.
    Tom Parker, Midland, for appellant.
    Clyde Vinson, San Angelo, for appellee.
   CLAYTON, Justice.

Appellee filed suit against appellant on open account for services rendered in the amount of $1,741.42 plus interest and attorney’s fees. During the presentation of evidence to the jury the trial court withdrew the case from the jury and thereafter heard further evidence and rendered judgment against appellant in the amount of $1,350.00 with interest and attorneys’ fees. Such judgment recites:

“ * * * plaintiff’s attorney offered in evidence the deposition of the defendant, who had not appeared in court, and while such deposition was being offered the Court deeming the testimony too involved for submission to the jury, withdrew the case from the jury, discharged the jury and proceeded to hear the rest of the testimony, and defendant after the deposition had been read, appeared in person and testified and both parties resting, the Court having heard the arguments of counsel thereupon finds for the plaintiff in the principal sum of $1,350.00 with interest at six percent per annum from Jan-nary 1, 1961, plus $500.00 reasonable attorney’s fee with interest at six percent per annum from date hereof, and all costs of Court, for which let execution issue.
“To which action of the Court defendant duly excepted and gave notice of appeal to the Court of Civil Appeals at El Paso, Texas.”

The record shows that while appellee’s attorney (Mr. Vinson) was on the witness stand, reading from appellant’s deposition, the following transpired:

“THE COURT: Gentlemen, this Court wants to make this statement These proceedings are a farce to tress-pass upon this Court’s time and this jury’s time under the conditions. Neither one of these parties here are not interested enough, I presume; the witnesses are not here; we are reading from a mass of data here that no jury could decipher intelligently under any conditions, neither can this Court de-ciper it intelligently. The Court feels that this is a classic example of a case being ill-prepared and this Court is going to dismiss this jury at this time, and will take the matter itself and try to work something out intelligently in the matter. This case is not ready to be presented to a jury; this Court under no conditions could ever draft any special issues of any intelligence in the state of the record, so I feel that this Court is not going to ask this jury to remain here any longer. The Court will take the case from the jury and will decide it.
“MR. VINSON: Would you mind retiring the jury and let us discuss the case?
“THE COURT: I won’t retire the jury. I am going to dismiss the jury. The Court has made these statements and the Court will take the case itself and see if I can come up with something. This jury will be dismissed.
Thank you very much for your attention, Ladies and Gentlemen. Thank you.
“(The jurors, being dismissed by the Court, retire from the courtroom).
“THE COURT: Proceed with putting on your evidence, Mr. Vinson. The Court then will make its decision. Would you go ahead?
“MR. PARKER: Your Honor, may we have just two or three minutes?
“THE COURT: Yes. I think this money is owed, all of it or substantially part of it.”

The court having heard further evidence, entered judgment as stated above, and appellant took this appeal based on the sole point of error that the trial court erred in withdrawing the case from the jury during the presentation of appellee’s evidence and in “directing a verdict” for appellee. This is not what was done by the trial court, but in contemplation of law, there is no difference between the action of a court in peremptorily instructing a verdict and then rendering judgment on such verdict, and the action of a court in dismissing the jury and rendering judgment. Cline v. Insurance Exchange of Houston, 154 S.W.2d 491 (Tex.Civ.App., 1941); affirmed 140 Tex. 175, 166 S.W.2d 677. But in either case the court must find as a matter of law that there is insufficient evidence under the pleadings to raise an issue to go to the jury. Id.; McDonald, Texas Civil Practice, Jury Trial: General, Vol. 3, sec. 11.25, p. 1025; 56 Tex.Jur.2d 537, sec. 194, Trial. See also In re Price’s Estate, 375 S.W.2d 900 (S.Ct., 1964) at p. 904.

We can accord a sympathetic understanding to the desire of a trial court, when actually confronted with a situation such as is described in the present case, to speed up proceedings and save everyone’s time and efforts by withdrawing the case from the jury. But we feel that this was done prematurely here. The evidence in this case was not all before the court Ap-pellee had not finished with its evidence and appellant had been given no chance to put on his evidence at the time the case was withdrawn from the jury, and there is nothing in the record to indicate what such evidence might be, or that the court could anticipate that no fact issues would be raised. And although the trial court may have been motivated in taking the action that it did by a sincere desire to conserve time and efforts, “ * * * we cannot sanction the denial of the right to a trial by jury in any case where it reasonably appears to be guaranteed by the provisions of our Constitution, although the public interest would be served by a speedy adjudication of the issues involved and trial by jury would necessarily involve considerable delay.” Hatten v. City of Houston, 373 S.W.2d 525, 533 (Tex.Civ.App., 1963, ref. n. r. e.).

Appellee contends that if any error was committed by the Court in discharging the jury, such was harmless error. In the case of Wm. D. Cleveland & Sons v. Smith, 102 Tex. 490, 119 S.W. 843, the Texas Supreme Court in 1909 stated the following:

“The Court of Civil Appeals properly held that the trial court committed error in denying to plaintiffs in error a trial by jury upon their proper demand. The point is sufficiently discussed in the opinion of Chief Justice Pleasants. Having held thus, the Court of Civil Appeals refused to reverse the judgment of the trial judge, rendered upon a hearing without a jury, because it was thought no injury was done, inasmuch as the court would have been justified upon the evidence in instructing a verdict against the plaintiffs in error if a jury had been allowed. We think this is not a sufficient answer to the complaint. There were questions of fact in the case upon which plaintiffs in error were entitled by both the Constitution and the statute to have a jury pass. The trial court, in order to render the judgment, had to find facts which it was the right of the plaintiffs in error to have only a jury find; and such findings cannot support a judgment thus erroneously rendered. The following authorities are in point: American Mtg. Co. v. Hutcheson [Hutchinson], 19 Or. 334, 24 Pac. 515; In re Robinson’s Estate, 106 Cal. 493, 39 Pac. 862; Hinchley [Hinchly] v. Machine, 15 N.J.Law, 476; Swasey v. Adair, 88 Cal. 179, 25 Pac. 1119; Chasteen v. Martin, 81 N.C. 51.
“Whether or not the trial court might properly have instructed a verdict, had the case been tried before a jury, with evidence the same as that adduced before him, may admit of grave doubt; but, however that may be, it cannot be assumed, for the purpose of avoiding the effect of the denial of the right to a jury, that, had it been allowed, the evidence would have been the same in all respects as that before the judge. We think it clear that, if such an error can ever be cured by such a reason, it would only be when it is clear beyond peradventure that there were no facts to be found from evidence.”

We feel that the foregoing statement is peculiarly applicable to the case at hand, especially in view of the fact that the court, in stating that “I think this money is owed, all of it or substantially part of it” indicated that he would have to pass on questions of fact. Nor can it be said here that there were no facts to be found from evidence “beyond peradventure”. We have found no authority later than the Cleveland case which is at variance with the pronouncement in that case, and we believe it to be controlling here. Therefore, under such authority and because it is our opinion that the interests of justice and the parties themselves will be better served, we feel compelled to sustain appellant’s point of error and to reverse and remand this case to the trial court for new trial.

Reversed and remanded.


author: NORTHCUTT, Justice.

text:
    Gerald WEAVER et ux., Appellants, v. William D. SWOFFORD, Appellee.
    No. 7428.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 4, 1965.
    Rehearing Denied Feb. 8, 1965.
    W. Hugh Harrell, Lubbock, for appellants.
    Crenshaw, Dupree & Milam, Lubbock, for appellee.
   NORTHCUTT, Justice.

This was a suit brought by Gerald Weaver and wife, Leila Weaver, as plaintiffs, against William D. Swofford, as defendant, for damages arising from an automobile accident which occurred at a street intersection in Lubbock on July 21, 196Z. The jury convicted each driver of negligence. The plaintiffs filed their motion for judgment non obstante veredicto and the defendant filed his motion for judgment upon the verdict of the jury. The trial court refused the plaintiffs’ motion and granted judgment that the plaintiffs take nothing from the defendant. From that judgment the plaintiffs perfected this appeal. The plaintiffs will hereafter be referred to as appellants and the defendant as appellee.

Appellants present this appeal upon three assignments of error. By appellants’ first assignment of error it is contended the court erred in not sustaining appellants’1 motion for judgment non obstante veredicto’ for the reason the trial court did not disregard the jury’s answers to Special Issues 18 and 19 for the reason there was no evidence before the jury that Mrs. Weaver failed to keep a proper lookout and. that the same was a proximate cause of the collision; that there was insufficient amount of evidence before the jury that Mrs. Weaver failed to keep a proper lookout and that the same was a proximate cause of the collision; and in not disregarding the-jury’s verdict to Special Issues 18 and 19 when it was contrary and/or against the overwhelming weight and preponderance of the evidence so as to be manifestly unjust. Appellants’ second point is to the same effect as their first point except that neither the judgment nor the answers to Special Issues 18 and 19 were supported by any evidence; insufficiency of the evidence; and against the overwhelming weight and preponderance of the evidence so as to be manifestly unjust. We will consider both points together.

The jury held in this case that both parties were negligent and that such negligence was a proximate cause of the injuries. We are of the opinion under the undisputed evidence in this case up to about the time of the accident in question neither of the parties saw the other. Mr. Swofford was proceeding in a northerly direction on 29th Street and Mrs. Weaver was proceeding in a westerly direction on the Brownfield Highway. Mr. Swofford testified the accident took place in the outside lane of traffic on the Brownfield Highway; that Mrs. Weaver was in the outside lane of traffic and that he was about to leave the intersection when his automobile was struck. Appellants’ Exhibit One shows it to be true that Swofford was about to leave the intersection when struck. Mrs. Weaver stated there was nothing to obstruct her vision between the intersection where Swofford said he stopped before crossing the Brownfield Highway and a point three hundred yards east down the Brownfield Highway. Immediately after the accident Mrs. Weaver asked Swofford where he came from. Swofford testified Mrs. Weaver told him there at the accident that she did not see him and he told her he didn’t see her. There was evidence that Mrs. Weaver could have missed Swofford by turning to the left. In considering and weighing all of the evidence, we cannot say the verdict is so against the great weight and preponderance as to be manifestly unjust. In Re King’s Estate, 150 Tex. 662, 2-14 S.W.2d 660. Under this record, Mrs. Weaver could have seen Swofford if she had been keeping a proper lookout as she stated she could see that far when she was some three hundred yards back. We think the case of De Winne v. Allen, 154 Tex. 316, 277 S.W.2d 95, is in point here where it is stated:

“It does not, however, necessarily follow that as a matter of law Mr. DeWinne kept a proper lookout. Every person proceeding along or across a public street is under the duty at all times to maintain a proper lookout for his own safety, and may not proceed blindly and in disregard of dangers that might reasonably be anticipated to exist. Blunt v. H. G. Berning, Inc., Tex.Civ.App., 211 S.W.2d 773, wr. ref. Brown v. Dallas Ry. & Terminal Co., Tex.Civ.App., 226 S.W.2d 135, wr. ref.”

Our conclusion from the undisputed evidence is that had Mrs. Weaver looked she must have seen Swofford’s automobile since she stated she could see down the road she was traveling for some three hundred yards. Had she looked she must have seen the Swofford automobile. Lackey v. Gulf, C. & S. F. Ry. Co., Tex.Civ.App., 225 S.W.2d 630; and Joe D. Hughes, Inc. v. Moran, 325 S.W.2d 829 (N.R.E.). See also Watts v. Dallas Railway & Terminal Co., Tex. Civ.App., 279 S.W.2d 400, where it is stated:

“The foregoing testimony portrays another of these all too frequent inter-sectional collisions of motor vehicles; and while the fault of defendant’s bus operator must be admitted, appellants strenuously argue the absence or insufficiency of evidence raising any issue of negligence chargeable to Mrs. Watts. Applicable generally to the record as made are the following principles of law: (1) ‘A motorist approaching intersection controlled by traffic signals and having a stop sign on the intersecting highway cannot close his eyes to approaching automobiles from his right and left and must use ordinary care in keeping a proper lookout for his own safety regardless of the signal lights and signs that are placed at the intersection.’ Todd v. La Grone, Tex.Civ.App., 234 S.W.2d 99, syl. 2. (2) ‘A modern traffic signal system at intersection does not relieve driver of a vehicle of the duty of maintaining an adequate lookout on entering an intersection to determine whether the conditions at or near the intersection are such as may affect his safety.’ Edson v. Perry-Foley Funeral Home, Tex.Civ.App., 132 S.W.2d 282, syl. 1. (3) ‘Courts are without authority to set aside jury verdicts particularly on questions of negligence and proximate cause in damage suits upon conflicting facts. The undisputed facts must be ample and clear and the circumstances most exceptional to justify such action.’ Volkmer v. Curlee, Tex.Civ. App., 261 S.W.2d 870, 872. (4) ‘Negligence is a question of fact, which must be submitted to the jury, not only where there is sufficient testimony as to the actual facts to leave a reasonable doubt, but also where the inferences which might be fairly drawn from the facts are not certain and invariable, and might Jead to different conclusions in different minds. Dougherty v. Robb, Tex.Civ.App.1928, 5 S.W.2d 582, error dismd. per Mr. Chief Justice Fly.’ 30-B Tex.Jur., Negligence, Note 16, p. 424, sec. 162. (5) ‘It is always the duty of every adult to exercise ordinary care for his own safety, inclusive of the duty of keeping a proper lookout. Whether or not a plaintiff exercised due care is ordinarily a question for the jury. Texas & P. Ry. Co. v. Day, 145 Tex. 277, 197 S.W.2d 332, 333.’ ”

For convenience in discussing appellants’ third point of error we set out appellants’ point three in full as follows:

“The Court committed fundamental error in not sustaining plaintiffs’ motion, exceptions and objection to exclude medical records of doctors and hospital records of the doctors who were present in Lubbock on the day of the trial on the basis that the best evidence was by the doctors and plaintiffs were not afforded an opportunity to cross-examine the best evidence being that by the doctors; and, the Court admitting medical records of a deceased doctor over objection by the plaintiffs of their inability to cross-examine. (Germane to S. of F., pp. 188, 240, and 246).”

Mrs. Montgomery who testified as to the hospital records testified she was in charge of the hospital records; that the hospital had in the medical library folders of hospital records of each time that Mrs. Weaver had been confined to the hospital; that the records were kept in the regular course of business for the hospital; that the entries were made by the people whose duty it was to make them; that the entries were made at or about time they showed to have been made and that the records were made by employees or representatives of the hospital who had the duty to make the entries and they had knowledge of the matters they were setting out in the records. We think the records of the hospital admitted herein were admissible under Article 3737e, Vernon’s Ann.Tex.Civ.St., and think the following cases hold contrary to appellants’ contention: Travis Life Insurance Company v. Rodriquez, Tex.Civ.App., 326 S.W.2d 256, approved 160 Tex. 182, 328 S.W.2d 434 by the Supreme Court; Skillern & Sons, Inc. v. Rosen, Tex., 359 S.W. 2d 298; State Automobile Casualty Underwriters v. Reagan, Tex.Civ.App., 337 S.W. 2d 522. Appellants’ first, second, and third points of error are overruled. We have carefully considered this entire record and find no reversible error. Judgment of the trial court is affirmed.


author: DENTON, Chief Justice.

text:
    G. E. MILLER et al., Appellants, v. Ralph D. CERCY et al., Appellees.
    No. 7422.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 18, 1965.
    Rehearing Denied Feb. 15, 1965.
    Lumpkin, Watson, Dunlap & Smith, Amarillo, for appellants.
    Robinson & Fotheringham, Amarillo, for appellees.
   DENTON, Chief Justice.

This suit was brought by appellants for the alleged breach of a written contract. G. E. Miller & Company, by its president, G. E. Miller, contracted in writing to sell forty per cent (40%) of the corporate stock of Radio Station KBUY of Amarillo, Texas, to Ralph D. Cercy and C. Paul Henson. Cercy and Henson filed a cross action seeking a recovery of three promissory notes which were executed as part of the sales transaction. Upon plaintiffs’ motion, the trial court appointed a master in chancery as authorized by Rule 171, Texas Rules of Civil Procedure. The master filed two reports which were approved, confirmed, and adopted by the trial court. Based upon the master’s reports the trial court entered judgment for appellees, defendants below, for the sum of $4,406.88 and assessed the fee of the master in chancery of $1,915.49 against the plaintiffs.

The contract sued upon was executed on July 28, 1961, and by its term was to become effective August 1 of that year. Appellants agreed to sell appellees forty per cent (40%) of the stock of Radio Station KBUY for the sum of $20,000.00 and other stated consideration. Cercy and Henson went into possession and operation of the radio station, and Cercy was designated as the station’s general manager for a period of one year. The appellees were to receive no salary but were to receive up to ninety per cent (90%) of each month’s net profit for services rendered. Upon taking over the management of the station on August 1, 1961, Cercy and Henson executed their note in the amount of $20,000.00 payable to G. E. Miller & Company on or before July 31, 1962. On the same date G. E. Miller, as president of Radio Station KBUY, executed a $2,500.00 note payable to Cercy and Henson on or before five years from that date. The latter note bore interest at the rate of six per cent (6%) per annum payable at the end of each year. This note contained' the following provision :

“It is understood and agreed that the failure to pay any installment of principle or interest of this note shall at the election of the holders of this note, mature said note and it shall at once become due and payable.”

On August 10, 1961 and September 29, 1961, Cercy, acting in the capacity of general manager and vice president of the radio station, executed notes in the amount of $2,500.00 and $5,000.00 respectively, payable to Cercy and Henson on demand. The latter two notes represented money placed into the station’s treasury for working capital.

On June 1, 1962, appellants filed their original petition in this cause. Several amended petitions and answers were filed prior to the appointment of John Sander-son, a licensed attorney and certified public accountant as master in chancery on July 25, 1963. The order of reference appointing the master spelled out in some detail the duties to be carried out by the master in making his report. He was ordered, among other things, to compile an itemized list of outstanding accounts receivable as of July 31, 1961; debts, notes and accounts payable as of July 31, 1961; debts subsequently paid by the radio station; accounts receivable as of July 31, 1962; accounts payable as of that date; to compile a list of advertisers and amounts owed during the year involved; debts of the station incurred by Cercy and Henson; and amounts withdrawn by the said Cercy and Henson. The master in chancery was further instructed to determine whether or not fraud had been committed by any of the parties; whether either of the parties committed any acts constituting a breach of the contract; whether there was a want of consideration for the written contract; whether or not there was a novation of the contract; estoppel; whether or not an oral contract was made between the parties to replace the written contract as pleaded by appellees; and to determine the nature and extent of any damages sustained by the plaintiffs or defendants.

The master’s report was returned into court and filed October 7, 1963. The trial court confirmed and approved the report on October 29, 1963. On November 4, 1963, plaintiffs below filed objections to the report which were leveled primarily at the assessment of the master’s fees against plaintiffs; failure of the master to determine the accounts receivable as of July 31, 1962; and the contention the report was incomplete. On November 11, 1963, after a hearing thereon, the trial court entered an order to resubmit certain matters to the master. An agreement, entered in the form of an order of the court and approved by counsel of all parties, provided for the waiver of a trial by jury and agreed the trial court should treat the master’s report as a jury verdict and enter judgment thereon. The agreed order contained the following language:

“the Court here now resubmits the matters heretofore referred to the Master in Chancery, and orders and dijrects the said Master to make his findings according to generally accepted accounting and auditing principles, regardless of the fact it may not be possible in his opinion to make such findings as an auditor, that he •still may find and shall find the facts to the best of his ability as an auditor and as Master in Chancery, and that the parties then agree they will be bound by such findings of fact.”

The master’s second report filed January 3, 1964, ratified and affirmed the first report •except as so modified by the second report; it further found the accounts receivable of Station KBUY amounted to $32,841.89 •on July 31, 1962; and that plaintiffs below owed defendants the sum of $3,267.30. After notice and hearing the trial court entered judgment which confirmed and approved the master’s findings as findings of fact of the court and awarded defendants below damages of $3,267.30, plus $1,139.58 as attorneys fees for the collection of the unpaid balance of the notes above described, together with the assessment of the master’s fee against plaintiffs. Upon the motion of plaintiffs the trial court filed findings of fact and conclusions of law which substantially tracked the findings of the master in chancery. The plaintiffs took no exception to the trial court’s findings and no additional findings were requested.

Appellants in effect challenge the trial •court’s judgment which approved the master in chancery’s report on the grounds the report departed from the court’s instructions and agreement of the parties; in failing to enforce the written contract; in failing to reform the three promissory notes; in assessing the master’s fee against appellants; the trial court abused its discretion in making its thirty-one findings of fact and ten conclusions of law; •and in failing to enter judgment for appellants for $8,866.69 as found by the master to have been wrongfully withdrawn by appellees from the radio station’s treasury.

The evidence before the trial court and the master’s report included numerous exhibits, oral depositions, and testimony. The evidence was voluminous and technical. There were apparently three sets of books maintained by the various parties: a general ledger and other records were kept by Miller in his Dallas office; a set of records kept by the radio station; and some records were kept by Cercy and Henson. The apparent incompleteness of the records, the number of separate records being kept, the manner in which the records were kept, and the practice of engaging in “trade-outs” of merchandise for the broadcast of commercials, which was not reflected in the records, made it most difficult for the master to compile a report according to generally accepted accounting principles. The report included an exhaustive list of accounts receivable as of July 31, 1961, and as of July 31, 1962; accounts and notes payable July 31, 1961; accounts and notes payable July 31, 1962; withdrawals by Cercy and Henson; amounts received by “Capri”, a corporation organized by Cercy and Henson as an affiliate advertising agency; a statement of income by the radio station for the twelve months ending July 31, 1962; and a computation of balances owed as between the parties. On October 29 the trial court’s order approving and confirming the master’s report recites that no objections to such report had been filed and proceeded to approve and adopt the report filed and set the master’s fee. Appellants received a copy of the master’s report by mail some two days after it was filed. On November 4, some twenty-three days after notice and six days after the report had been approved by the court, appellants filed objections to the master’s report. On November 11 all parties entered into an agreement in open court resubmitting aspects of the case to the master as set out above. This second report was filed January 3, 1964, and on January 10 appellants filed their motion to dismiss the second report contending it was in conflict with the terms of the written contract and the promissory notes. Further objections were filed on January 24 in which it was contended the report was incomplete and that the master’s conclusions were a departure from and in conflict with his findings.

The master’s first report which formed the general basis for his ultimate conclusions and findings was not timely objected to by appellants. Mason v. Prince, (Tex.Civ.App.), 120 S.W.2d 1087, (Writ Refused). In the absence of timely objection, the master’s report was binding upon appellants as a party to such proceedings. Richardson v. McCloskey, (Tex.Com.App.), 276 S.W. 680; Forman v. Irby, (Tex.Civ.App.), 115 S.W.2d 1229, (Writ Refused). Appellants do not contend the master’s report or the trial court’s findings were not supported by any evidence or are against the great weight and preponderance of the evidence. As we understand it, appellants’ primary contentions are that the reports were incomplete and that the master’s conclusions are in conflict with his findings. In the state of this record and in view of the conclusions of the master’s report under applicable rules of law, we are unable to agree. In our opinion the master’s report, adopted and approved by the trial court, was prepared according to the generally accepted accounting and auditing principles insofar as the condition of the records permitted and that such report and the trial court’s judgment are supported by substantial evidence.

Rule 171, T.R.C.P., provides for the appointment of a master in chancery in exceptional cases and for the awarding of reasonable compensation for such master to be taxed as costs of suit. Appellants contend it was error for the trial court to assess the master’s fee against said appellants. The reasonableness of the master’s fee is not questioned. The awarding or refusal of master’s fees are within the sound discretion of a trial court and are not reviewable upon appeal unless it clearly appears, from the record that there has been an abuse of such discretion. McGrew v. Britton, (Tex.Civ.App.), 206 S.W.2d 836, (Refused, NRE). A review of this record reveals no such abuse of discretion on the part of the trial court.

We have considered all points of error and find no reversible error. The judgment of the trial court is affirmed.


author: HUGHES, Justice.

text:
    Walter Lee KNAPP, Jr., et ux., Appellants, v. Vicki Gayle KNAPP, Appellee.
    No. 11256.
    Court of Civil Appeals of Texas. Austin.
    Jan. 20, 1965.

      Knudtson & Winget, Amarillo, for appellants.
    Gay & Meyers, and Black & Stayton, Austin, for appellee.
   HUGHES, Justice.

This appeal is prosecuted by Walter Lee Knapp, Jr. and wife, Deann Knapp, from an order overruling their pleas of privilege to be sued in Potter County and from an order, the material portion of which provides :

“It is therefore ORDERED, ADJUDGED AND DECREED by the court that cross-plaintiffs, Walter Lee Knapp, Jr., and Deann Knapp, their agents, employees, assigns and associates, be and they are hereby enjoined and ordered by this court, on all occasions and on each and every year hereafter, to return, at the ' expense of cross-plaintiffs, the children, Sheri Lynn Knapp and Dustin Lee Knapp, to the home of cross-defendant, Vicki Gayle Knapp, immediately upon the expiration of each and every two weeks’ visitation period, as granted and defined by the Domestic Relations Court of Potter County, Texas, in its judgment in Cause No. 8183, styled Walter Lee Knapp, Jr. v. Vicki Gayle Knapp, and said cross-plaintiffs, their agents, employees, assigns and associates, are further enjoined and ordered by this court, on all other occasions when said cross-plaintiffs take the children, or either of them, away from the home of cross-defendant, Vicki Gayle Knapp, to return both of said children to the home of cross-defendant before six o’clock p. m., on the same day that the children are taken.
“Subject to the foregoing, the motion for voluntary non-suit and dismissal of their cross-action by cross-plaintiffs Walter Lee Knapp, Jr. and Deann Knapp is hereby granted and the said cross-action is hereby dismissed without prejudice to cross-plaintiffá.”

These orders were entered May 6, 1964.

The background of this case is reflected by the following facts:

On September 5, 1963, appellee filed a petition for habeas corpus and attachment in the court below wherein she sought to regain custody of her two children of which custody she had been wrongfully deprived and upon which petition the trial court issued its order in accordance therewith and ordered a hearing in its courtroom on September 10, 1963, “at which time the court will hear evidence, if any there may be, as to why petitioner’s right to custody of the two said minors should not be enforced.”

This writ was executed in Potter County, the two children being surrendered by appellants to the officer serving the writ.

On September 9, 1963, appellants filed their pleas of privilege to be sued in Potter County. Subject to these pleas of privilege appellants filed an answer and cross action for a modification of the original divorce decree as to its custody provisions relating to these minors.

On September 10, 1963, appellee moved for and was granted a voluntary non-suit of its petition for habeas corpus and attachment, without prejudice to appellants’ cross action.

On September 10, 1963, appellee filed an answer and counterclaim to the cross action of appellants.

On October 10, 1963, the trial court overruled appellants’ pleas of privilege.

On December 20, 1963, the trial court granted appellee’s motion to dismiss her counterclaim filed on September 10, 1963.

An appeal was taken from the order of October 10, 1963, overruling appellants’ pleas of privilege to this court. We dismissed the appeal as moot. Knapp v. Knapp, Tex.Civ.App., 375 S.W.2d 359.

On February 18, 1964, appellee filed a motion requesting a hearing on any motion for “non-suit which may be filed by cross plaintiffs” in which she alleged and prayed as follows:

“I.
“The best interests and welfare of the children, Sheri Lynn Knapp and Dustin Lee Knapp, require that this cause be set for trial on the merits and thereafter disposed of without further delay.
“II.
“The attorney for cross-plaintiffs has advised the attorney for cross-defendant that cross-plaintiffs will request a non-suit if their counterclaim is set for trial on the merits. Cross-defendant would show that the best interest and welfare of the children require that the Court examine the over-all circumstances of custody prior to dismissing cross-plaintiffs’ counterclaim, and would further show that cross-plaintiffs have no right to a dismissal until after this Court has held such a hearing, if the Court deems same to be necessary or important under the circumstances.
“WHEREFORE, cross-defendant prays that this cause be set down for trial at the earliest possible date and, in the event cross-plaintiffs request a voluntary dismissal of their counterclaim, that the Court deny same pending a hearing to determine the best interests and welfare of the children in light of the over-all circumstances of custody.”

On February 24, 1964, appellants filed a motion to nonsuit their cross action previously filed on September 9, 1963.

On April 13, 1964, appellants filed the pleas of privilege involved in this appeal.

This case points up the problem and need for legislation discussed and suggested in Knollhoff v. Norris, 152 Tex. 231, 256 S.W.2d 79.

Here the parties, jockeying for what they must conceive to be a favorable venue or to avoid an unfavorable venue in which to litigate custody of the minor Knapp children have, on the one hand, willfully violated a judgment of the Court of Domestic Relations of Potter County and, on the other hand, have utilized an abortive writ of habeas corpus to restore the status quo. Neither of these stratagems is advisable or commendable. They should not be employed.

However deplorable the result maybe, the Courts are bound by the venue statutes and, until changed by the Legislature, must enforce them as written.

Knollhoff, supra, holds that a suit in the form of habeas corpus but the real purpose of which is to adjudicate the custody of a minor child is a civil suit subject to our venue statutes. The same holding is made in Shaver v. Shaver, 383 S.W.2d 259, Waco C.C.A. Thus, it appears that if .appellee had not dismissed her habeas corpus suit, the trial of it would have been ■transferred to Potter County. It is also the law that taking a nonsuit under these ■circumstances is an admission that the plea ■of privilege is good and that upon the same suit being refiled the court is obligated to transfer the suit to the County of the defendant’s residence. Baucom v. Hy-Lay Hatcheries, Inc., 355 S.W.2d 754, Waco C.C.A. It follows that if appellee by her pleading filed February 18, 1964, and from which we have quoted, has, in substance, refiled the previously dismissed custody (habeas corpus) suit, then the court should have transferred it to Potter County.

The pleading filed by appellee is artfully drawn and while it does not request any relief for herself it can safely be said that if the court granted her request that it “examine the over-all circumstances of custody” she did not expect to suffer as a result.

It is our conclusion that this pleading put in issue the custody of the Knapp minor children and that, under the authorities above cited, such controversy should have been transferred to the Court of Domestic Relations of Potter County.

We are also of the opinion that the court erred in enjoining appellants from violating the judgment of the Domestic Relations Court of Potter County in Cause No. 8183, on the docket of such court, it appearing from the record that appellants are residents of Potter County. The Judge of the trial court was a non-resident Judge within the meaning of Article 4643, Vernon’s Ann.Tex.Civ.St. Ex parte Coffee, 160 Tex. 224, 328 S.W.2d 283. No attempt was made to comply with this Article. Neither was the injunction made returnable to Potter County as required by Art 4656, V.T.C.S.

Appellee cites and relies upon the decision in McClendon v. McClendon, 289 S.W.2d 640, Fort Worth C.C.A., no writ history, as sustaining the authority of the trial court to issue the injunction against appellants.

In that case the court held that a nonsuit in an action for divorce, division of property and custody of four minor children did not deprive the court of jurisdiction to grant temporary custody of the children to the County Probation officer.

The trial court here did not enter any custody order. It entered a purely injunc-tive decree. It did nothing but order obedience to the Potter County judgment. The injunction was not ancillary to any other relief granted. It was the only relief granted. For these reasons, McClendon, in our opinion, is inapplicable, and the injunction falls clearly within the statutes above cited.

We also believe it appropriate to state that we have implicit confidence in the Court of Domestic Relations of Potter County, and we have no doubt but that it will enforce its judgment in this case as long as it is in effect.

The injunction issued by the trial court is dissolved. .

The issues raised by appellee’s pleading of date February 18, 1964, are ordered transferred to the Court of Domestic Relations of Potter County.

Injunction dissolved.

Pleas of privilege sustained.


author: PARKER, Justice.

text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. D. C. MOORE, Appellee.
    No. 6688.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 31, 1964.
    Rehearing Denied Jan. 27, 1965.
    Strong, Pipkin, Strong & Nelson, Beaumont, for appellant.
    Raymond L. McDermott, Mabel Grey Howell, Houston, for appellee.
   PARKER, Justice.

Appellee D. C. Moore, as a surviving but only dependent brother of Grady L. Moore, deceased, sued Travelers Insurance Company under the Workmen’s Compensation Act for the death of Grady L. Moore, who died on December 31, 1960, as the result of injuries sustained in the scope of his employment with Texas Hotshot Company. The parties stipulated on all matters except the question of dependency. The trial court submitted this issue to the jury. The trial court entered judgment on the verdict in favor of the appellee.

The only issue submitted to the jury, including the definition of the term “dependent”, is as follows:

“Do you find from a preponderance of the evidence that D. C. Moore was a dependent, as that term is herein defined, of Grady L. Moore, deceased, at the time of his death?
“Answer ‘YES’ or ‘NO’.
“ANSWER YES.
“By the term ‘dependent’ as used in this issue is meant a person who relied in whole or in part on the assistance he received for support from the deceased, whether labor, services or things of value, as a part of his income or means of living.”

Appellant, by its first two points of error, contends that, as a matter of law, appellee was not dependent upon his brother at the time of his death within the meaning of the Workmen’s Compensation Act of the State of Texas, and that at the close of appellee’s evidence, the trial court should have given an instructed verdict in favor of appellant.

Appellant’s 3rd point will be considered first, it being:

“The Trial Court erred in submitting Special Issue No. 1 of the Court’s Charge and the accompanying instruction over Appellant’s objections for the reason that same did not properly submit the controlling issue nor properly instruct the jury on the law applicable to the case.”

Appellant objected to Special Issue No. 1 of the court’s charge and particularly to the accompanying instruction for the reason that the trial court omitted from the instruction the phrase “in a substantial way” and included the language “as a part of his income”. Appellant tendered a definition of “dependency” as follows:

“By the term ‘dependent’ is meant a person who relied, in whole or in part, upon the contributions or the labor of the deceased in a substantial way for aid and assistance toward the living or support of the dependent.”

Stanaland v. Traders & General Ins. Co. (1946), 145 Tex. 105, 195 S.W.2d 118, 122, cites with approval Lumbermen’s Reciprocal Ass’n. v. Warner (Tex.Com.App., Sec. A, 1922), 245 S.W. 664, holding that it was not necessary to include the clause “in a substantial way”. The trial court’s definition of “dependency” is in harmony with the further statement of the Supreme Court in the Stanaland Case, supra, as follows:

“In the Hinkle case [Tex.Civ.App., 187 S.W.2d 122], supra, in which this Court denied the application for the writ, the Court of Civil Appeals correctly said [187 S.W.2d 124]: ‘The Court charged the jury, in effect, that defendants in error must show that they were dependent, in whole or in part, upon the labors of the deceased for support. Support is a very flexible term and includes something more than the bare necessities of life. It includes also the ordinary comforts and conveniences which are reasonably appropriate to the parties’ station in life — such as were actually being enjoyed by them at the time of and prior to their son’s death. * * * If the parents were dependent, in whole or in part, upon for labors or contributions of the deceased son for such support, they were, we think, dependents within the meaning of the law.’ (Emphasis supplied by the Court).”

The controlling issue was properly submitted under a proper instruction to the jury. Appellant’s 3rd point is overruled.

The deceased had been living with the appellee and his wife for twenty-five (25) years, maintaining and repairing things about the home, allowing appellee and his wife to use his automobile, and paying them $40 a month for room and board, plus $50 a month contribution to their support. About August, 1960, this $50 was increased to $100, which was being contributed to appellee and by him used to pay for necessities such as groceries, utility bills, etc., using what was left over to assist in purchasing equipment for a boiler-making shop. Appellee and his wife could have lived without this support by Grady L. Moore, but they could not have lived as they did live without the contributions made by the deceased, Grady L. Moore, which contributions they had relied and depended upon at the time of his death. Excluding the $140 a month Grady L. Moore was paying to them, the other income of appellee and his wife at the time of his brother’s death was some $300 per month. The evidence supports the answer of the jury. Appellant’s points of error 1 and 2 are overruled.

Judgment of the trial court is affirmed.


author: PER CURIAM.

text:
    Mrs. Irene NELSON et al., Appellants, v. BLANCO INDEPENDENT SCHOOL DISTRICT et al., Appellees.
    Motion No. 13153.
    Court of Civil Appeals of Texas. Austin.
    Jan. 25, 1965.
    Moursund & Ferguson, Johnson City, for appellants.
    Cofer, Cofer & Hearne, Austin, for ap-pellees.
   PER CURIAM.

On the 20th day of January, 1965 there was had a hearing on the motion of appellants in Cause No. 11,280 for an injunction pendente lite restraining appellees from compelling appellants to pay taxes under the assessment and levy made by the Blanco Independent School District for the year 1964, at which hearing appellants and ap-pellees appeared by their respective attorneys and arguments were heard and the Court, after a consideration of the motion the Court on this the 25th day of January, 1965, is of the opinion that an injunction should be and is granted restraining the ap-pellees from compelling or attempting to compel appellants and each of them to pay taxes under the levy, assessment and evaluations for the year 1964.

Any of the appellants may pay any and all taxes assessed against them voluntarily.

This writ is issued in accordance with Article 1823, Vernon’s Ann.Civ.St. to enforce and protect the jurisdiction of this Court pending final disposition of the case on appeal.

The suit of appellants was to enjoin ap-pellees, temporarily and permanently, from enforcing or attempting to enforce the assessment or equalization of taxes against them by the Assessor-Collector of Texas and the Board of Equalization of the Blan-co Independent School District, such District, Board, Assessor-Collector and one W. W. Hall being parties defendant, under allegations that the assessment of such taxes were arbitrary, capricious and made pursuant to an unlawful scheme for the assessment of taxable values in such district for the year 1964. The suit was in behalf of all other persons similarly situated.

The trial court sustained a plea to its jurisdiction and rendered judgment that the appellants take nothing by their suit. An appeal to this Court from such judgment has been duly perfected and is now pending and we have jurisdiction of it.

The Courts have held that a timely suit for injunction is the proper remedy under the circumstances alleged by appellants: City of Arlington v. Cannon, 153 Tex. 566, 271 S.W.2d 414.

The taxes involved in this suit will become delinquent on February 1, 1965. Thereafter the District will be free, if not duty bound, to use all authorized procedures for the collection of delinquent taxes, which could result in a flurry of suits.

We are not authorized in an original proceeding to issue writs of injunction based wholly on equitable grounds. We are authorized to issue writs of injunction to protect or enforce our jurisdiction. The law is well stated in Madison v. Martinez, 42 S.W.2d 84, Dallas C.C.A., as follows:

“ * * * if the effect of the refusal of the trial court to continue in force the restraining order is to destroy the subject-matter of the appeal, and thereby prevent the effective operation of any judgment this court might render,, the jurisdiction of this court would be unlawfully invaded, through the means of the destruction of the subject-matter of the appeal, and the power to issue a proper writ to prevent such condition rests in this court.”

See also an excellent opinion on the same subject by Chief Justice Bell in Lee v. Lee, 355 S.W.2d 255, Houston C.C.A.

“No principle is better settled than that a court will protect its jurisdiction by preserving the subject-matter of the litigation in order to make its decrees effective.” City of Dallas v. Wright, 120 Tex. 190, 36 S.W.2d 973, 77 A.L.R. 709.

The subject matter of this appeal is appellant’s right to have heard and granted their petition for injunctive relief against an unlawful assessment and equalization of their taxes. The effectiveness of our decision in this appeal, if favorable to appellants, will be destroyed if the tax scheme, alleged to be unlawful, is presently put into effect. An accomplished act cannot be enjoined.

No bond is required of appellants as a condition to the issuance of this injunction as it is issued under authority of Art. 1823, supra, for the purpose of protecting our jurisdiction, the statute requiring no bond. See Bowlen v. Bowlen, 1 S.W.2d 355, Fort Worth C.C.A.; Ex parte Lee, 127 Tex. 256, 93 S.W.2d 720.

Nothing done hereby or said herein should be taken or construed as an expression of opinion by us upon the merits of this appeal.

Injunction granted.


author: BARROW, Justice.

text:
    Lloyd MOONEY et al., Appellants, v. CITY OF SAN ANTONIO et al., Appellees.
    No. 14301.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 13, 1965.
    Rehearing Denied Feb. 3, 1965.
    Jandt & Jandt, Seguin, for appellants.
    Sam S. Wolf and J. Bruce Aycock, San Antonio, for appellees.
   BARROW, Justice.

This suit was instituted by sixteen taxpayers of the City of San Antonio who were engaged in a business of operating a wrecker service, against the City of San Antonio and Charlie Alvarado, d/b/a Alvarado Brothers Garage, seeking to enjoin enforcement of a penal ordinance enacted by the City on December 12, 1963, which ordinance prohibited a wrecker operator from handling, on or over the streets and ways of the City, any vehicle which had been abandoned or involved in a collision, unless the operator was directed to do so by the Chief of Police or his authorized representative.

It was alleged by appellants that the purpose and effect of this ordinance was to give the City a monopoly on the wrecker business, in that by an ordinance enacted on December 5, 1963, the City accepted the bid of Alvarado Brothers to provide wrecker service to the City for the removal from the public streets and ways of the City of all vehicles which had been abandoned, involved in a collision, or were illegally parked. It was further alleged that on January 9, 1964, a written contract was entered into between the City and Alvarado Brothers whereby charges for this service were set, out of which fees the City was to receive 25% of the gross receipts.

The trial court sustained City’s plea to the jurisdiction that appellants’ petition did not show a justiciable interest, and dismissed the suit without prejudice. No evidence was heard. Appellants have perfected this appeal on the single point that their pleading on its face alleges a justi-ciable cause of action.

It is settled law that courts of equity will not restrain the enforcement of a penal ordinance, unless it is shown to be absolutely void and that irreparable injury will be done to vested property rights of plaintiff by its enforcement. State v. Logue, 376 S.W.2d 567 (Tex.1964); Crouch v. Craik, 369 S.W.2d 311 (Tex. 1963) ; Kemp Hotel Operating Co. v. City of Wichita Falls, 141 Tex. 90, 170 S.W.2d 217; City of Dallas v. Harris, Tex.Civ. App., 157 S.W.2d 710, wr. ref.

It is our opinion that appellants have not alleged any vested property rights in the use of the streets and ways of the City and therefore it is unnecessary to pass upon the validity of the penal ordinance or the contract between the City and Alvarado Bros. In State v. Logue, supra, it was said: “If either one of the requirements of equitable relief in this type of situation — void law and irreparable injury to property rights— is lacking, the courts of equity have no jurisdiction to entertain such suit.” See also, Kemp Hotel Operating Co. v. City of Wichita Falls, supra.

Appellants alleged that for several years prior to the enactment of the ordinance complained of, they were engaged in the business of operating wrecker service for the benefit of owners of vehicles which are normally upon the streets and highways of the State of Texas, and that it is a lawful business. There is no allegation, however, of any vested right of appellants to use the streets and ways of the City of San Antonio for the purpose of carrying out this business. In the absence of such an allegation, appellants fail to show any threatened invasion of a vested property right. The trial court therefore properly dismissed this suit for want of jurisdiction. State v. Logue, supra; Kemp Hotel Operating Co. v. City of Wichita Falls, supra; Ex parte Sterling, 122 Tex. 108, 53 S.W.2d 294; Liegl v. City of San Antonio, Tex.Civ.App., 207 S.W.2d 441, wr. ref.; City of Ballinger v. Boyd, Tex.Civ. App., 173 S.W.2d 363, no wr. hist.

The judgment is affirmed.

      . “Sec. S-18. Removing wrecked or abandoned vehicles without permission of police.
      “(a) It shall be unlawful for any person, in the operation of an automobile wrecker on the public streets and ways of the Oity of San Antonio, and not having been directed to do so by the Chief of Police of the City of San Antonio or his authorized representative, knowingly to move, tow, haul or otherwise transport in, on or over the public streets and ways and of the City of San Antonio any vehicle which has been abandoned or which has been involved in a collision.
      “(b) Any person violating the provisions of this section shall be deemed guilty of a misdemeanor and shall upon conviction be punished by a fine not exceeding $200.00. (Ord. No. 31977, §§ 1, 2, 12-12-63).”


text:
    AETNA CASUALTY & SURETY COMPANY, Appellant, v. Wilbert C. MOORE, Appellee.
    No. 6717.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 31, 1964.
    Rehearing Denied Jan. 27, 1965.

      King, Sharfstein & Rienstra, Beaumont, for appellant.
    Carl Waldman, Beaumont, for appellee.
   PARKER, Justice.

Wilbert C. Moore sued Aetna Casualty & Surety Company for compensation under the Workmen’s Compensation Act for an injury to his back sustained while working for E. I. du Pont de Nemours & Company. Upon a jury verdict, judgment was entered in favor of Wilbert C. Moore for total and permanent disability. Wilbert C. Moore will be referred to as appellee and Aetna Casualty & Surety Company will be referred to as appellant.

The jury found that appellee was injured on or about the 12th day of December, 1961, thereby sustaining total disability beginning on the date of the injury, and in answer to Special Issue No. 5 found that such total disability would be permanent. Appellant’s first and second points of error are as follows:

1. The Court erred in overruling Appellant’s Amended Motion for New Trial for the reason that Appellee, having admitted that he drew fourteen weeks of unemployment compensation upon the representation that he was available for work, able to work, and willing to work, he was not as a matter of law totally disabled during such period of time and the jury’s finding in Special Issue No. 5 -that Appellee’s total disability was permanent should have been set aside.
2. The Court erred in overruling Appellant’s Amended Motion for New Trial for the reason that Appellee, having admitted that he drew fourteen weeks of unemployment compensation upon the representation that he was available for work, able to work, and willing to work, it would be contrary to the public policy of Texas to permit Appellee to collect Workmen’s Compensation benefits upon the representation that he was physically unable to work during such period, and for the same period, to collect unemployment compensation upon the representation that he was able to work.

On the printed claim forms of Texas Employment Commission, in unsworn statements, appellee represented that he was available for work, able to work and willing to work from May 9, 1962 to August 9, 1962. Upon such representations appellee was paid unemployment compensation for such period of time. Appellant has no plea of estoppel of any kind. Appellee was not judicially estopped to deny his unsworn statements to Texas Employment Commission above referred to. Long v. Knox, 155 Tex. 581, 291 S.W.2d 292 (1956). Since appellant is not in privity with Texas Employment Commission and has no plea of estoppel, it cannot urge equitable or quasi-estoppel as precluding appellee from asserting his rights to workmen’s compensation in the instant suit as being inconsistent with his admissions in the former proceeding to obtain unemployment compensation. Swilley v. McCain, Tex., 374 S.W.2d 871, 875 (1964), and cases cited therein.

Not being precluded from so doing, appellee could and did deny his former statements to Texas Employment Commission. In the present suit, appellee testified that he was totally and permanently disabled to work from the date of his injury on December 12, 1961. There was ample probative evidence, including medical, supporting appellee’s sworn testimony in the court below denying and contradicting appellee’s former unsworn statements to the Texas Employment Commission. These disputed fact issues were properly submitted to the jury because it was the province of the jury, not the court, to determine whether the first or last testimony of appellee was true. Texas Employers’ Ins. Ass’n v. Davis, 228 S.W.2d 257 (Tex.Civ.App., 1950, err. ref.), and authorities cited therein.

Texas Employment Commission may have a cause of action against appellee to recover money it paid him by way of unemployment compensation, but the Legislature has not authorized appellant to bring such a suit for such agency of the State of Texas. Neither did the Legislature intend that appellant should have the benefit of money ap-pellee reecived as unemployment compensation or it would have provided therefor in the Workmen’s Compensation Law. Further, referring to appellant’s Point 2, we consider the public policy of this State as to such claimed error is as announced in the authoritative decisions of the Supreme Court of Texas including those cited herein. Our conclusion therefrom is that Point 2 is without merit. Points 1 and -2 are overruled.

In Special Issue No. 5 the jury finding is that appellee’s total disability will be permanent. The testimony of Dr. Williams and Dr. Sharky, as well as lay witnesses, furnish evidence that appellee was totally disabled on the 12th day of December, 1961, and that such disability is permanent. Appellant’s Point of Error No. 3 contending there is no evidence to support the finding of permanence in disability is overruled. Considering all the evidence, such finding of the jury in Special Issue No. 5 is not so contrary to the great weight and preponderance of the evidence as to be manifestly wrong and unjust. Appellant’s Point of Error No. 4 is overruled.

The finding of the jury in Special Issue No. 7 is that appellee had not and did not sustain any partial disability. Appellant’s Point of Error No. 5 is that there is no evidence to sustain the jury finding in Special Issue No. 7. Appellant makes the same argument under this Point of Error as it previously made under Points of Error Nos. 1 and 2. Also, appellant cites Texas Employers’ Ins. Ass’n v. Moran, 261 S.W.2d 855 (Tex.Civ.App.). In that case the evidence clearly shows that during an eleven-month period Moran obtained a new job after passing a pre-employment physical examination, doing the same work and earning three times as much as he had before his accident. In the instant case, appellee had been a journeyman painter prior to his injuries, which requires bending, stooping and command of the body in all positions. After the injury, he was employed for a short period of time doing lighter work. Further, he had to hire a helper to do some of the usual tasks of a workman he was unable to do as a result of his injury. His income from such lighter work was substantially less than he had earned previous to his injury. Dr. Williams’ testimony clearly shows ap-pellee was totally disabled as distinguished from partially disabled from the time of his injury on December 12, 1961. The evidence in this case is very different from that upon which the opinion was written in Texas Employers’ Ins. Ass’n v. Moran, supra. Appellant’s Point of Error No. 5 is overruled. Considering all the evidence, the jury finding in Special Issue No. 7 is not so contrary to the great weight and preponderance of the evidence as to be manifestly wrong and unjust Argonaut Insurance Company v. Shawver, 375 S.W.2d 510 (Tex.Civ.App., 1964, err.ref. n. r. e.), and cases cited. Appellant’s Point of Error No. 6 is overruled.

The judgment of the trial court is affirmed.


text:
    Georgia Leary NEILL, Appellant, v. James Palmer NEILL et al., Appellees.
    No. 11257.
    Court of Civil Appeals of Texas. Austin.
    Jan. 20, 1965.
    Rehearing Denied Feb. 10, 1965.
    David L. Tisinger, Harry Pollard, Austin, for appellant.
    Brown, Sparks & Erwin, Will G. Barber, Austin, Johnson, Bromberg, Leeds & Riggs, Edward L. Wilson, Dallas, R. Dean Moorhead, Austin, for appellees.
   ARCHER, Chief Justice.

This is an appeal from a summary judgment denying appellant a Bill of Review.

The appeal is predicated on seven points as follows:

“1. The error of the Court in granting the motion for summary judgment upon the ground that this is a collateral attack when this suit is filed in the same Court, within the proper time, and has all of the original parties before it.
“2. The error of the Court in granting the motion for summary judgment on the ground that this is a collateral attack when the suit was filed in the same Court specifically as ‘ * * * a Bill of Review in equity.’
“3. The error of the Court in granting the motion for summary judgment on the ground that this is a collateral attack because of a failure to join children and a trustee who were not parties to the original suit.
“4. The error of the Court in granting the motion for summary judgment upon the ground that extrinsic fraud could not be established.
“5. The error of the Court in granting the motion for summary judgment because of the negligence on the part of Appellant.
“6. The error of the Court in granting the motion for summary judgment upon the ground that Appellant can not have ‘piecemeal rescission.’
“7. The error of the Court in granting the motion for summary judgment insofar as the stock of Western Pipe Line Constructors, Inc. is concerned and in determining as a matter of law that such was the separate property of James Palmer Neill.”

Appellant observes that in this appeal all presumptions of fact are in her favor and that all adverse evidence be discarded and every legitimate presumption indulged in appellant’s favor.

Appellant made James Palmer Neill and Mrs. Geraldine C. Johnson Neill, “who - claims to be the present lawful wife of James Palmer Neill” defendants, and did not make anyone else parties.

“This suit is brouht as a Bill of Review in equity:
“(1) to review, to vacate and cancel as void in whole or in part, and to modify and reform, a purported final judgment of the 98th District Court of Travis County, Texas, dated and filed April 20, 1953, in Cause No. 95,121, entitled Georgia Leary Neill vs. James P. Neill, * * *
“(2) to vacate and cancel the property settlement contract, dated March 16, 1953, executed by and between Georgia L. Neill and James P. Neill, insofar as such contract: (a) provides that the shares of capital stock of Western Pipe Line Constructors, Inc., then in the name of James P. Neill, are or were his separate property, * * * ”

Plaintiff alleged that the property settlement was grossly unfair because: “plaintiff was fraudulently deceived, misled, imposed upon, and induced by Neill and his attorney to execute said contract and agree to such provisions, in reliance upon various false representations and fraudulent misrepresentations made to plaintiff by Neill and his attorney concerning the true and actual nature, extent, and value of the properties * * * j>

Further pleadings were made of fraudulent concealment, etc. Pleadings were also made that prior to the entry of the judgment, the Trial Court “did not hear any competent evidence or testimony by which the Court could determine anything concerning the nature, character,’extent, location, or value of the community property of plaintiff and Neill, or could make a fair, just, and equitable division thereof, and such judgment did not purport to be and was not a true and independent decree or adjudication of the Court concerning the respective rights of the parties to the property acquired during their marriage.”

The contract of property settlement was set out in the petition but we do not insert such herein.

Three children were born of the marriage between appellant and Mr. Neill. At the time of the making of the property settlement, a trust agreement with assets of $225,-000.00 was to be established for the benefit of the three children with trustees appointed and extensive requirements imposed on Mr. Neill, and such trust has been carried on.

Appellant filed this suit on April 17, 1957, about four years after the divorce decree had been entered, and prayed that:

“(1) that each of the defendants be duly and properly cited and required to appear and answer herein as provided by law;
“(2) that the Court enter forthwith an order requiring and directing defendant, James Palmer Neill, to file herein on a day certain to be fixed by the Court sworn itemized inventories and an accounting as set forth- in’ paragraph No. 15, above;
“(3) alternatively, that the Court appoint a competent, disinterested accountant authorized to examine and audit all records and data of Neill and to file herein a written report of such audit, showing the infó'rmátion ' described and set forth in paragraph No. 15, above;
“(4) that upon final hearing hereof the purported final judgment'of the Court dated April 20, 1953, in Cause No.’ 95,-121, in the 98th District Court of Travis County, Texas, be set aside as wholly void, and that the Court enter a new judgment granting plaintiff a lawful divorce from defendant, James Palmer Neill, on the grounds of cruel treatment, awarding plaintiff custody of their minor children, and making such division of the properties acquired during the marriage of plaintiff and Neill as the Court may deem equitable and proper, but equal to at least one-half of the value of all community properties of plaintiff and Neill, and that the Court enter all such orders as shall secure and protect plaintiff in receiving such properties or the monetary value thereof;
“(5) that the property settlement contract dated March 16, 1953, executed by plaintiff and Neill be cancelled and set aside insofar as it provides that the shares of capital stock of Western Pipe Line Constructors, Inc., in the name of James P. Neill, or the proceeds therefrom, were or are his separate property, and insofar as it divides and sets aside specified community properties to the respective parties as the separate properties of each and divests each party of all right, title, and interest in and to the properties thereby set aside to the other.”

By agreement of the parties the question of the validity of the decree dissolving the marriage was severed from the question of property and a separate trial was had on the question of the validity of the divorce. The decree of divorce was upheld and no appeal was taken from that judgment.

Appellees contend that since all persons whose interest would be or might be affected by setting aside or modifying the judgment in question were not made parties to this suit, appellant’s attack upon such -judgment is collateral and not direct, and that since no ground sufficient to ’sustain a collateral attack was alleged, the granting of appel-lees’ motion for summary judgment was correct; that since the beneficiaries of the trust were not parties to this suit, the summary judgment was proper and that appellant was negligent as a matter of law, based on her admissions; that since appellant has pleaded only intrinsic fraud and an attack on a prior judgment can be had, the action of the court was correct; that since appellant assertedly seeks to set aside only a part of the prior judgment and property settlement, a piecemeal rescission cannot be had; and finally, that the Oklahoma law bars appellant from contending that the stock of Western Pipe Line Constructors, Inc. was community property, the granting of appellees’ motion for summary judgment with respect to such stock was correct.

We believe that appellant’s suit is a collateral attack upon the prior judgment and not direct, and that since the beneficiaries and trustees were not made parties, the trial court correctly granted the motion for summary judgment.

It is to be observed that appellant’s pleadings on which she went to trial herein, prayed that the April 20, 1953 judgment “be set aside as wholly void,” and that the trial court enter an order “making such division of the properties acquired during the marriage of plaintiff and Neill as the court may deem equitable and proper.”

“The prayer is deemed an essential part of the petition, and determines the character of the decree which the court acting within its jurisdiction over the subject-matter is called upon to render.” Ortiz Oil Co. v. Railroad Commission, Tex.Civ.App., 62 S.W.2d 376, no writ history. Pure Oil Co. v. Reece, 124 Tex. 476, 78 S.W.2d 932.

In the Pure Oil Co. case it was held:

“One of the tests in determining whether an attack on a judgment is direct or collateral is whether all the parties to be affected thereby are before the court. If all such parties are not before the court, the attack at best can only be classed as collateral.”

In Hunt v. Ramsey, 162 Tex. 133, 345 S.W.2d 260, the Court declared:

“The rule * * * is that all parties whose interests are such that they would be, or might be, directly and materially affected are necessary parties; and if joined, the attack is direct— otherwise the attack is a collateral one [citing Pure Oil and other authorities]. “The reason for the general rule * * is given in the alternate statement of the rule: all parties whose interests are, or may be, directly and materially affected by a review or modification of the judgment, should be before the court.”

In Kieke v. Cox, Tex.Civ.App., 300 S.W. 2d 309, no writ history, the Court said:

“Moreover, the child of [the subsequent marriage] is vitally interested in this action — her legitimacy, her right to support by her father, and her heir-ship are all at stake. In an attempted direct attack on a judgment, unless all persons who may be directly and materially affected are made parties, the attempted attack is not direct but collateral.”

The trust created for the benefit of Mrs. Georgia Leary Neill and the three children provided for payment out of net income monthly to Mrs. Neill for her life, with small percentages to be paid for each of the children as they become 21 years old, and a capital fund in cash and property aggregating $275,000.00.

Appellee Neill bound himself to make other further payments for the benefit of the children.

It is apparent that if the property settlement as provided in the agreement and in the judgment could be set aside, the children would suffer losses of money and inconveniences and be affected.

The judgment complained of by appellant is not void and a collateral attack cannot prevail. 34 Tex.Jur.2d 252-255.

We believe that the appellant was negligent in delaying an attack on the prior judgment.

In Johnson v. Templeton, 60 Tex. 238 our Supreme Court held:

“It will not be sufficient to show that injustice has been done by the judgment sought to be enjoined. It must further distinctly and clearly appear that this result was not caused by any inattention or negligence on the part of the person aggrieved, and he must, among other matters, show a clear case of diligence and of merit to obtain the interference of a court of equity, in his behalf at such a stage of the case.”

In Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950), the Court reiterated this requirement of diligence, saying:

“Although the bill of review' is an equitable proceeding, before a litigant can successfully invoke it to set aside a final judgment he must allege and prove: (1) a meritorious defense to the cause of action alleged to support the judgment, (2) which he was prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence of his own * * * Because it is fundamentally important in the administration of justice that some finality be accorded to judgments, these essentials have been uniformly recognized by our courts; therefore, bills of review seeking relief from judgments ‘are always watched by courts of equity with extreme jealousy, and the grounds on which interference will be allowed are narrow and restricted’; and the rules are not to be relaxed merely because it may appear in some particular case that an injustice has been done.”

In her deposition appellant testified that she had read the property settlement dated March 16, 1953 which had been fully explained to her, and that she understood its terms and was satisfied with it and signed the contract and would not have done so if it had not been agreeable; that Mr. Ben Powell did not by act or representation induce her to do so, and did not make any false statements; that Mr. Powell said he thought the contract was fair.

The appellant further testified that Mr. Neill never made any representation false or otherwise concerning the nature, extent or value of the property acquired during their marriage, or any representation to her about his assets or properties, or about the terms and provisions of the property settlement agreement, or whether she was getting at least half of their community property, and never told her anything about the value of the Western Pipe Line stock and she never asked about the value of that stock.

Appellant testified that she knew Mr. George Marsh and Mr. Charles LeNoir and that they each had full information concerning the financial affairs of Mr. Neill and herself, and knew that by asking she could have obtained full information concerning such affairs; that no one fraudulently concealed anything from her.

On the hearing on the divorce held on April 20, 1953, the appellant and her attorney of record and a friend, Mrs. Hall, were present and were told by her attorney in the presence of the District Judge that unless she was completely satisfied with the property settlement not to go forward with the divorce action, and appellant responded that she was completely satisfied, and in reply to a question from the trial judge she said she fully understood the settlement, was satisfied with it and wanted the judge to approve it and asked that the divorce decree be entered.

We believe the actions and conduct of appellant in failing to seek information if she did not have such is a bar to the relief that she seeks in this Bill of Review suit.

Donnelly v. Donnelly, Tex.Civ.App., 289 S.W. 110, er. dism. Burguieres v. Farrell, 85 S.W.2d 952, er. dism. w. o. j.

In Hoyt v. Hoyt, Tex.Civ.App., 351 S.W.2d 111, er. dism., the court stated:

“It must appear: (1) That the former judgment was not caused by any negligence on him who seeks to set it aside, but that diligence was used to prevent it; * * * ”

Rule 166-A provides that a summary judgment may be granted upon the basis of “depositions and admissions on file.”

Appellant pleaded intrinsic fraud and not extrinsic fraud. Neither a collateral nor a direct attack upon a prior judgment can be based upon intrinsic fraud. State v. Wright, Tex.Civ.App., 56 S.W.2d 950, n. w. h.

In Crouch v. McGaw, 134 Tex. 633, 138 S.W.2d 94 (1940), the Supreme Court made the following statements, citing this Court’s decision in the Wright case and quoting therefrom:

“Fraud is classified as intrinsic or extrinsic. Included in the term ‘intrinsic fraud’ are false testimony, fraudulent instruments, and any fraudulent matter that was presented and considered in rendering judgment. Intrinsic fraud does not furnish a ground, in an independent suit brought for that purpose, for setting aside a judgment. Fraud must be extrinsic to justify the setting aside of a judgment, and must be collateral to the matter tried, and not something which was actually or potentially in issue in the trial; unless the presentation of such defense was prevented by fraud, accident or act of the opposing party, without fault or negligence of the party against whom the judgment was rendered.” Schnautz v. Stelfox, Tex.Civ.App., 235 S.W.2d 473, mand. overr.

In Kuper v. Kuper, Tex.Civ.App., 336 S.W.2d 819, er. dism., the former wife sought a Bill of Review on the grounds that her husband had defrauded her concerning the value of 2,211 shares of insurance company stock, the Court said:

“Where Mrs. Kuper had been given proper notice of the divorce suit, had not been prevented from full participation therein, had an opportunity to present her case to the court and to protect herself from any fraud attempted by Mr. Kuper, the fraud, if any, perpetrated under such circumstances is intrinsic. This applies especially where she secured the divorce and had the court to approve the property settlement and a showing that she and her attorneys made investigation as to the value of the property; that she relied upon the report received from the party she secured to make the investigation and, that she did not rely on what Mr. Kuper told her about the value of the stock. This clearly shows appellant was not prevented by any acts of appellee from fully informing herself as to the true value of the stock in question.
“Applying the foregoing rules of law, it is apparent that if any fraud was practiced upon appellant herein it was not extrinsic in nature. She secured the judgment for divorce and had the property settlement approved by the court after making her own investigation and was not relying upon any representations made by the appel-lee. In other words, the apellant was asking the trial court to set aside a judgment that she caused to be entered after she had secured independent information from her attorney and a stock broker of her own selection as to the value of the stock and not because of any false representations made to her by appellee. We think the case of Bankston v. Bankston, Tex.Civ.App., 251 S.W.2d 768 (mandate overruled) is directly in point here.
“Examination of the entire record herein makes it clear, we think, that the summary judgment was proper in this case.”

Appellant cites cases such as McMurry v. McMurry, 67 Tex. 665, 4 S.W. 357, in which case the wife was out of the State without funds to return for the trial and was not present.

Kuehn v. Kuehn, Tex.Civ.App., 259 S.W. 290, er. dism., was an original suit to set aside a separation agreement and deed thereunder and not a Bill of Review suit.

Appellant in her brief takes the position that all she wants is one-half of the stock of Western Pipe Line Constructors, and leave undisturbed all portions of the prior divorce decree and all other portions of the property settlement agreement. This is not the purport of her pleadings.

Partial rescissions are prohibited and must be in toto and not awarded in part. 10 Tex.Jur.2d 479. Ashby v. Gibbon, Tex.Civ.App., 69 S.W.2d 445, n. w. h.

The record in this cause is long. We have been afforded well prepared briefs and the case was adequately explained and presented in the briefs, and we have carefully considered the record as a whole.

Appellant was afforded an adequate opportunity -to ascertain all of the circumstances surrounding the divorce decree and the property rights and the settlement thereof in the agreements reduced to writing in advance of the trial of the case, and having elected to make the agreement and having been advised of her rights even on the day of trial, she expressed satisfaction. She cannot, at the late date of the filing of the suit and on the date of the final hearing, be heard to complain.

The judgment of the trial court is af-fi rmed.

Affirmed.


author: MURRAY, Chief Justice.

text:
    UNITED SERVICES LIFE INSURANCE COMPANY, Appellant, v. Joan Flores DELANEY, Appellee.
    No. 14360.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 6, 1965.
    Rehearing Denied Feb. 3, 1965.

      Boyle, Wheeler, Gresham, Davis & Gregory, San Antonio, for appellant.
    Horace P. Shelton, Jr., San Antonio, for appellee.
   MURRAY, Chief Justice.

At the present time there are two cases pending in the United States Court of Appeals, Fifth Circuit, which call for an interpretation of an insurance policy. The clause to be interpreted in the first case, United Services Life Ins. Co. v. Joan Flores Delaney, reads as follows :

“If this policy shall become a claim of death of the insured due to any service, training, travel, flight, ascent or descent in, on, or from any species of aircraft at any time, except death resulting from travel as a passenger on an aircraft owned and operated by the United States Government or as a passenger on a scheduled passenger air service regularly offered between specified airports, the liability of the company under this policy shall be limited to the premiums paid hereunder or to the then net reserve at time of death, if greater; any provision in this policy to the contrary notwithstanding.” (Emphasis added.)

The clause in the other case, Paul Revere Life Ins. Co. v. First National Bank in Dallas, is somewhat similar.

The exact question to be decided, stated briefly, is, does the word “passenger” include the “pilot” of the plane.

The trial courts in deciding this question said they were following Warren v. Continental Casualty Co., Tex.Civ.App., 248 S.W.2d 315, and Continental Casualty Co. v. Warren, 152 Tex. 164, 254 S.W.2d 762, and held that it did.

In speaking of these two cases, the United States Court of Appeals, Fifth Circuit, had this to say:

“The two appeals are to be decided by the law of Texas, by which the insurance contracts are to be construed and from which the meaning of the contracts is to be determined. The guidance of the dim light of the Texas decisions leaves the meaning of the questioned clauses obscure. Without further enlightenment any judgment we might pronounce would be ‘a forecast rather than a determination.’ Railroad Commission of Texas v. Pullman Company, 312 U.S. 496, 499, 61 S.Ct. 643, 644, 645, 85 L.Ed. 971. The Supreme Court has ‘increasingly recognized the wisdom of staying actions in the federal courts pending determination by a state court of decisive issues of state law.’ Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058, reh. den. 360 U.S. 940, 79 S.Ct. 1442, 3 L.Ed.2d 1552. It is appropriate that this Court stay its hand until the courts of the State of Texas shall have declared the law of the State of Texas which is applicable to and controlling in the disposition of these appeals. Each of the appellants can, and should, promptly initiate a proceeding in a Texas court seeking a declaratory , judgment for the determining of the meaning of the pertinent clauses of the respective insurance contracts, with a review of such judgment by a court of last resort of the State of Texas.
“An order will be entered in each of the appeals staying further proceedings in this Court until the courts of Texas shall have been afforded an opportunity to determine the issues to be submitted. This Court will retain jurisdiction for the purpose of taking such further action as may be required.”

In keeping with this instruction, appellant instituted a suit in the District Court of Bexar' County, seeking a declaratory judgment upon the question involved. The trial court held that it did not have jurisdiction to render such a declaratory judgment and dismissed the cause, hence this appeal.

We are here very frankly told that this same lawsuit has been tried in the United States District Court for the Western District of Texas, 201 F.Supp. 25, and a final judgment rendered. An appeal was taken to the United States Court of Appeals, Fifth Circuit, and a panel of that Court, one judge dissenting, rendered an opinion, 308 F.2d 484, affirming the judgment of the United States District Court, and the case is still pending in the Circuit Court upon a motion for a rehearing. That Court has now stayed its own hand, as here-inbefore stated.

The trial court, under all the facts and circumstances existing in this case, properly held that it had no jurisdiction and dismissed the cause. The Uniform Declaratory Judgments Act, Art. 2524-1, Vernon’s Ann.Civ.Stats., does not give to the courts of this State any jurisdiction that they did not theretofore have, except that “No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for.” Cowan v. Cowan, Tex.Civ.App., 254 S.W. 2d 862. While this Act does authorize Texas Courts to render declaratory judgments, it does not authorize such courts to render advisory opinions. California Products, Inc. v. Puretex Lemon Juice, Inc., 160 Tex. 586, 334 S.W.2d 780. After this case has been tried in the Federal Court and taken by appeal to the U. S. Court of Appeals, Fifth Circuit, and while the case is still pending in that Court on motion for a rehearing, that Court cannot give jurisdiction of the cause to the District Court of Bexar County, simply by staying its own hands, and at the same time retaining jurisdiction of the cause.

We can readily understand the desirability of a decision of the Supreme Court of a State, on the part of the Circuit Court, where it is required to follow the law of the State in deciding such questions as we have here, but until the law-making power of this State authorizes such decisions the Courts of this State do not have jurisdiction to render them.

The judgment of the trial court is affirmed.