author: CHAPMAN, Justice

text:
    Jack TREGELLAS, Appellant, v. JAKE’S CASING CREWS, INC., Appellee.
    No. 7325.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 17, 1964.
    Rehearing Denied March 16, 1964.

      Lemon, Close & Atkinson, Perryton, for appellant.
    Linn & Helms, Spearman, for appellee.
   CHAPMAN, Justice

This is an appeal from what the parties have referred to in their briefs and the court’s judgment calls a summary judgment.

Suit was filed by Jake’s Casing Crews, Inc. against Jack Tregellas for recovery of a set of trailer mounted tongs and motor and for damages. A writ of sequestration was issued causing the property to be held by the sheriff of Ochiltree County. Upon a trial before the court judgment was rendered for plaintiff below that it recover the equipment sued for and for costs of court.

Though motions for summary judgment were made by all parties, we have in the record a Q. and A. statement of facts just as in any other case tried before a fact-finding body. The record shows the case came on for trial before the court on one of the days of the regular December term. The defendant was called to the stand by the plaintiff and questioned as in any other trial before the court. Then the president of the plaintiff company was called to the witness stand, questioned and cross-examined for twenty-two pages in the statement of facts and then a third witness called and examined. Counsel for plaintiff-appel-lee then announced to the court that was all the evidence he had to offer other than the depositions of the parties. Each of the parties then rested and each in turn closed.

The statement of facts closes with the statement: “Pursuant to above and foregoing stipulation, and pursuant to agreement of counsel, original depositions of the parties accompany this statement of facts.” A careful search of the record before this court has produced no depositions but only a Q. and A. statement of facts of the testimony introduced before the court and the exhibits introduced during the interrogation of the witnesses.

Under this state of the record we are unable to see how this case may properly be considered an appeal from a summary judgment, with the burden of proof rules that must be borne by the beneficiary of a judgment summarily rendered. The judgment was not summarily rendered, but only after the testimony of three witnesses, examined and cross-examined.

Section (a) of Article 166-A of Texas Rules of Civil Procedure provides in part as follows:

“A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the adverse party has appeared or answered, move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof.”

Section (b) of the rule provides:

“A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.”

Section (c) provides in part as follows:

“The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that, except as to the amount of damages, there is: no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (All emphases shown herein are ours.)

Our Supreme Court in discussing Rule 166-A, Texas Rules of Civil Procedure, our summary judgment rule, has; spelled out the component parts constituting: the record of a summary judgment proceeding as follows:

“The record of a summary judgment proceedings then consists of the pleading whose office it is to outline the claims and defenses of the respective parties, the depositions and admissions on file and affidavits submitted either in support of or opposing the motion."

In the instant case we have neither admissions, affidavits nor depositions but only the pleadings and oral testimony of the witnesses as in any other case submitted upon a trial to the court without a jury. Therefore, calling the judgment a summary judgment would not make it one because it was not summarily rendered. It shows on its face not to have been rendered on the pleadings alone. It states it was rendered on “ * * * pleadings on file, the affidavits and depositions as well as testimony,” yet, we have no affidavits or depositions. Because there are no affidavits or depositions, we must then look to the pleadings and testimony, as in any other case submitted to the court without a jury.

Where, in a case submitted to the court without a jury no findings of facts or conclusions of law are requested, we, as the reviewing court, must test the validity of the judgment on the assumption that the trial court found every disputed fact in such a way as to support the judgment. Construction and General Labor Union, Local No. 688 v. Stephenson, 148 Tex. 434, 225 S.W.2d 958; Old Nat. Life Ins. Co. v. Guest, Tex.Civ.App., 163 S.W.2d 241 (error refused) ; Gray v. Moore, Tex.Civ.App., 172 S.W.2d 746 (error refused); Rolison v. Puckett, 145 Tex. 366, 198 S.W.2d 74; Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114.

The only point raised by appellant is that the trial court erred in granting “ * * * the plaintiff’s motion for summary judgment because there is a genuine issue of fact as to whether title passed from the plaintiff-appellee to Garber.” Thus, appellant admits there is a genuine fact issue as to whether title passed from appellee to Garber.

The president of appellee company, Mr. Jake Carter, testified in effect that he first rented the property to Mr. Garber for $25 per day for the days he used it; that he later accepted a check for the property; that in the event the check cleared the bank he was to give a bill of sale to Garber; that he gave him an instrument in order that Tie could buy tags, which the machinery must have in Texas; and that the bill of ■sale was never given because the check was returned because of insufficient funds.

On March 17, 1962, a rental agreement •on the machinery was made between appel-lee and Garber.

On March 30 Garber gave Mr. Carter his check for $50 for two days rent.

On April 19 appellant Tregellas discussed the purchase of the property with Garber and on the next day gave him his $2,000 check as down payment.

On April 23, 1962, appellant purchased the machinery from Garber, who produced a purported bill of sale from one by the name of Roy Whit.

On April 28, 1962, Garber gave appellee company a check for $5,450 for the machinery, which check was returned on May 9, 1962, unpaid for “insufficient funds.”

On May 11, 1962, the machinery was returned to appellee’s place of business, where it stayed until May 26, 1962.

On May 26, 1962, appellee rented the machinery to Carl Birkle for four days for $100 and Mr. Carter testified he never saw it again until he found it in Mr. Tregellas’ yard south of town.

On June 7, 1962, Garber gave Mr. Carter back the instrument introduced in the record as plaintiff’s exhibit three, which is as follows:

“TO WHOM IT MAY CONCERN
I, Jake Carter, president of Jake’s Casing Crews, Inc. sells and assigns the following equipment to Jack F. Garber in the amount of $10.00 and other due consideration.
One (1) set of Tubing Tongs Serial #3882 (with 1-2 3/8 and 1-2 7/8 jaws)
One (1) Trailer Serial # 422CW
One (1) Waukesha Motor Serial # 1085410
/s/ Jake Carter
/s/ Jack F. Garber
STATE OF KANSAS
COUNTY OF SEWARD
Before me appeared Jake Carter and Jack F. Garber this 28th day of April, 1962.
/s/ E. Singhisen
/Seal/ Notary
My commission expires March 24, 1965.”

The instrument showing a consideration of $10 and other due considerations signed by both parties, taken together with the testimony of Mr. Carter, was sufficient to show the title never passed from appellee company to Garber. Additionally, Garber’s purported sale to appellant was on April 23, 1962, five days before he made the purported purchase from appellee. Article 1429, Vernon’s Texas Penal Code, provides:

“Any person having possession of personal property of another by virtue of a contract of hiring or borrowing, or other bailment, who shall without the consent of the owner, fraudulently convert such property to his own use with intent to deprive the owner of the value of the same, shall be guilty of theft. iji í|í

Under the quoted statute we believe Garber was guilty of theft by bailee in selling the property while he had it under bailment. Therefore, Tregellas had no better title than that of a thief, which would not give him any title. McKinney v. Croan, 144 Tex. 9, 188 S.W.2d 144.

Even, arguendo only, we should be in error in placing the burden of proof, there still was not any genuine issue of fact in the case. Therefore, even if the judgment could be called a summary judgment, with every intendment resolved against it, it still was properly granted.

Accordingly, the judgment of the trial court is in all things affirmed.

ON MOTION FOR REHEARING

Since the foregoing opinion was announced on February 17,1964, appellant has requested leave of this court to file the depositions referred to in our opinion, giving as his reason therefor that they had not been included because of oversight. We believe under Rule 428 V.A.T.R. the granting of the request is discretionary with us and the depositions have been accepted as part of the record.

We still adhere to our original holding that at the time our opinion was announced the case could not have had the status of a summary judgment appeal because it was-appealed to us from a Q. and A. Statement of Facts only with examination and cross-examination of the witnesses placed on the witness stand as in any other trial before the court. One of the purposes of the summary judgment rule is to save the time of such trials.

With the depositions before us [summary judgment components] we have now studied the case from the standpoint of a summary judgment appeal with every intendment resolved against the judgment rendered. We still hold to the belief, as in our original opinion, that no fact issue was raised in the record. It is without question that the third party, Garber, made the attempted sale of the equipment to Tregellas at a time when it was under bailment to him. Under the authorities cited in our original opinion,, he was guilty of theft in disposing of it and Tregellas therefore acquired no better title than the thief had, which was no title. Additionally, the deposition of Mr. Carter is without contradiction that the instrument he gave Garber in the form of a bill of sale was only for the purpose of making it possible for him to purchase license tags for the machinery and that the bill of sale was to be made only after the check cleared. There is no deposition or affidavit statement from Garber or any other summary judgment evidence contrary to such stated intention.

Appellant urges Valley Stockyards Company v. Kinsel, Tex., 369 S.W.2d 19, as authority for his contention that a fact issue was raised in the record here. That case is so completely different on the facts to the record made in our case that we do not consider it furnishes any authority for the questions here.

Accordingly, the judgment of the trial court is in all things affirmed.

      . Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557.


source: Caselaw Access Project

author: HUGHES, Justice.

license: Public Domain

text:
    Leola HALLETT et vir, Appellants, v. Essie Lee PONDER, Appellee.
    No. 11149.
    Court of Civil Appeals of Texas. Austin.
    March 11, 1964.
    Rehearing Denied April 1, 1964.
    A. Jeff Kemp, Houston, for appellants.
    David Ball, Jr., Houston, for appellee.
   HUGHES, Justice.

This suit was brought to determine to whom the proceeds of an insurance policy, tendered into Court by the insurer, on the ¡life of L. B. Rason, who died November 21, .1961, in Harris County, should be paid.

Appellant, Mrs. Leola Hallett, a daughter, was named as beneficiary in the insurance policy, and her claim to its proceeds is based on this fact.

Appellee, Mrs. Essie Lee Ponder, who was unrelated to deceased, was named beneficiary of such policy in a change of beneficiary executed by decedent on November 18, 1961, and her claim is based on this fact.

In a non-jury trial, judgment was rendered sustaining the claim of Mrs. Ponder.

The group insurance policy under which the parties claim contained this provision regarding change of beneficiaries:

“CHANGE OF BENEFICIARY. The employee insured hereunder may designate a new beneficiary at any time by filing through the policyowner a written request for such change on forms furnished by the Company. The change shall be effective immediately upon receipt by'the Company of such written request.”

Regarding the execution and subsequent custody of the change of beneficiary form, Mr. David Ball, Jr., attorney for appellee testified:

“My name is David Ball, Jr., I am an attorney, at law in Houston and on or about November, 1961, Essie Lee Ponder, who I have known for several years, contacted me in regard to obtaining a change of beneficiary form from Great Southern Life Insurance Company in Houston, Texas, for a person known as L. B. Rason, explaining their prior relationship and further that he was hospitalized and asked me to come to the hospital and bring the necessary .forms.
“Several days later, approximately November IS, 1961, I obtained of beneficiary forms from the Home office of Great Southern Life Insurance Company and on that same date, I called a doctor, Dr. J. D. Bowles to the telephone to inquire about L. B. Rason. Dr. Bowles informed me that the mental condition of L. B. Rason was sound, he was of sound mind, but that he was very physically infirm, and that he would never leave the hospital before his death. But three days later on Saturday, November 18, 1961, I went to the Riverside Hospital, here in Houston, and talked both in the presence of Essie Lee Ponder and out of her presence, alone with L. B. Rason, concerning his expressed wish to change the primary beneficiary in his insurance policy from his daughter to Essie Lee Ponder.
“I satisfied myself as to their relationship from him and he had difficulty, due to his physical condition rather than from his mental state. He is in a very weak physical condition and had to be assisted in sitting up in the bed, that is a tray, portable tray, the type food is served on, was rolled up against the bed and the change of beneficiary form was signed on that table with the form being held that he was very weak and had difficulty in signing his name to the instrument.
“THE COURT: In your opinion, he was of sound mind?
“A In my opinion he was and I have discussed it with his doctor before I visited him.
“THE COURT: When did you deliver the change of beneficiary form to the company?
“A When I was notified several days later that he was deceased, I took it by.
“THE COURT: You recall the date?
“A I think December 12.
“THE COURT: You delivered it personally ?
“A Yes, I think to Mr. Williams, I had it in my possession all that time.”

The executed change of beneficiary form was stamped by the insurer, “Received December 12, 1961, Department of Policy Claims.”

The group insurance policy here involved was issued to Bluebonnet Express, Inc., referred to, in the policy, as “employer” and “policy holder.” Assuming, as we do, that the word “policyowner” in change of beneficiary provision, supra, is synonymous with the words “policy holder,” then there is no evidence that such executed change of beneficiary form was filed “through” Bluebonnet Express, Inc. The only filing done was, as above shown, with the insurer on December 12, 1961.

The only authorities cited by appellee to sustain the judgment below are: Brown v. Union Central Life Ins. Co., Tex.Civ.App., 72 S.W.2d 661, no writ history, Adams v. Adams, Tex.Civ.App., 78 S.W.2d 664, writ dism., both by the San Antonio Court of Civil Appeals, and Ferguson v. Knight, 264 F.2d 176, 5th Cir.

In Brown the policy provided that, “The insured shall have the right at any time to change the beneficiary, by written notice to the Company at the Home Office * *.” There was no policy provision stating when such change would become effective. The following excerpt from that case reflects its holding:

“We conclude that under this provision the letter written by A. V. Brown, on February 20, 1933, the day before his death, would be sufficient to accomplish a change of beneficiary if the evidence had further shown that A. V. Brown had done all in his power to accomplish this change, by placing this letter in an addressed envelope, properly stamped, and depositing it in the United States mail. The right of the insured to change the beneficiary at any time is clearly given to him, and where he does all. that he can do before his death to-accomplish such a change it should be-regarded as accomplished. The policy does not even require that the change-be indorsed upon the policy, but merely that notice be received at the home-office of the company. The fact that such notice arrived after the death: of the insured would not defeat the change where the insured had done-all in his power to accomplish this purpose.”

In Adams the policy provided that a¿ change of beneficiary should “take effect only when endorsed by the Company on. this Policy during the insured’s lifetime.”' The change of beneficiary application was-executed and delivered to the Company during the lifetime of insured but was-not endorsed on the policy until after his death. The Court sustained the validity of the change of beneficiary holding that the insured had done all that he reasonably could do to perfect the change and that it would be regarded as accomplished,, citing its previous decision in Brown, supra.

In our opinion, neither of these cases-is controlling or persuasive here. The-policy provision, as well as the facts required to show compliance therewith, im Brown are not comparable either to the-policy or the facts found here. In Adams-the insured had done all the policy required him to do before his death. The-Court very properly held that he was not chargeable with the default of the insurer.

The Federal case cited is not helpful and will not be discussed.

The law to be applied is recently and superbly stated by Associate Justice Renfro in Scherer v. Wahlstrom, 318 S. W.2d 456, Fort Worth Civil Appeals, writ ref., as follows:

“An insurer may make reasonable regulations in a policy, or in the constitution and by-laws which become a part of the policy, defining the method by which a member may change the beneficiary, and when the beneficiary is a third party, such regulations become a part of the contract, and, generally speaking, the right to change can be exercised in no other way, and while the insurer may waive compliance with regulations intended for its benefit, yet the beneficiary named has a right, by virtue of the contract, to require that a change be made substantially in accordance with the manner provided. Garabrant v. Burns, Tex.Com.App., 130 Tex. 518, 111 S.W.2d 1100. Although the right to name or substitute a beneficiary may be absolute in the insured, the method provided for making known to or advising the insurer of the purpose and wish of the insured becomes contractual and binding.
“[5] As between opposing claimants, even though the insurer takes no position on the restrictions, a purported change of beneficiary will be given effect only if the insured has substantially complied with them or done all he reasonably could have done in that behalf. Creighton v. Barnes, 152 Tex. 309, 257 S.W.2d 101; Beck v. Beck, Tex.Civ.App., 90 S.W.2d 284; Kotch v. Kotch, 151 Tex. 471, 251 S.W.2d 520.”

In that case the policy provided that a change of beneficiary could be made by filing a written request with the policy for endorsement at the home office of the Company and that “[s]uch change will take effect on the endorsement of the Policy by the Company and not before.” The insured wrote the Company stating that he wanted to change the beneficiary in his policy [who was designated therein as “Financee” but who married another person] to his father. Forms were sent to the insured by the Company, but he died before executing them or sending in the policy for endorsement. The change of beneficiary was held to be ineffective. From this opinion it is obvious that the intention of the insured is unimportant if he has not substantially complied with or done all that he could reasonably have done to comply with the provisions of the policy in this regard.

In Tips v. Security Life & Accident Co., 144 Tex. 461, 191 S.W.2d 470, the Court in holding ineffective an attempted change of beneficiary of an insurance policy stated:

“The method designated in the policies in the instant case is by filing with the company the written notice or request. There was no compliance, not even an attempted compliance, with that prescribed method. The insured executed the notices or requests but he did not file them with the company. He did not mail them. He did not even direct anyone to mail them. He kept them in his possession until he died nearly four years after he executed them.”

This holding is peculiarly applicable here for the reason that there is a comparable lack of effort or instructions by the insured for delivery of the executed change of beneficiary to the Company as required by the policy in order for such change to become effective.

In Kelley v. McDonald, 83 S.W.2d 414, Texarkana Civil Appeals, writ dism., a policy provision very similar to the one in Scherer v. Wahlstrom, supra, was involved. The insured wrote the Company a letter' requesting a change of beneficiary and enclosed it and the policy in an envelope properly addressed to the Company and stamped and placed the letter in a private box at the hotel where he was residing, the box being used to receive mail by patrons of the hotel. The letter found its way under a telephone directory and was not discovered or mailed until after the death of the insured. The change of beneficiary was held ineffective.

It is our opinion that the insured did not do or cause to be done all that he was required to do in order to effectuate a change in beneficiary of his policy.' That he did not comply with the policy requirements literally is conceded. We hold that he did not comply with them substantially and that he did not do all that he could have reasonably done to this end.

The judgment of the Trial Court is reversed and judgment is here rendered for appellant for the sum of $1250.00, the judgment for $250.00 for attorney’s fees for the insurer is left undisturbed. All costs are assessed against appellee.

Reversed and rendered.


author: MURRAY, Chief Justice.

text:
    Phillip A. STRAUCH, Appellant, v. William R. BORGMAN, Jr., Appellee.
    No. 14241.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 26, 1964.
    Rehearing Denied March 25, 1964.
    Terrell McKay, San Antonio, for appellant.
    Tafolla & Tafolla, San Antonio, for ap-pellee.
   MURRAY, Chief Justice.

This suit was instituted by appellant, Phillip A. Strauch, against appellee, William R. Borgman, Jr., for damages to appellant’s real property. The damages were caused by the entry of appellee upon the land of appellant and bulldozing down trees, scraping off top soil in places, and destroying grass and firewood already cut by appellant. The trial was to the court without a jury and resulted in judgment in favor of Strauch for the sum of $275.00. Strauch was dissatisfied with the amount of his recovery and prosecuted this appeal.

Appellant has based his appeal upon the following two points:

"FIRST POINT: The judgment as rendered does not award damages to Appellant (plaintiff below) in accordance with the law as generally and customarily applied in this State in like cases, considering the testimony in the case.
“SECOND POINT: The judgment as rendered makes no provision for the return to Plaintiff (Appellant here) of the top soil and firewood removed from his property, nor does it provide adequate compensation therefor.”

Appellant seems to take the position that he had established, as a matter of law, that the damages to his property amounted to the sum of $1,000.00 by his witness Michael E. Austin, a real estate man, who testified that he was a licensed and bonded real estate broker, licensed by the State of Texas; that he was familiar with the property values in San Antonio and surrounding areas; with the value of property on Blue Ridge Lane; that he had inspected the property of the Plaintiff which formed the basis of this suit; that the east portion of the lot had been bulldozed; trees, top soil and dead timber pushed into several piles; land denuded of top soil in many places; some piles of dirt and timber on plaintiff’s land and some on defendant’s land. He further testified that the value of the lot owned by plaintiff prior to the bulldozing was $2,000.00; that after such action the value was $1,000.00; that he had actually viewed the property in this area, not only that in controversy, but other property as well, and was thoroughly familiar with property values in that neighborhood. That he was handling two developments in that neighborhood, “OAKHA-VEN HEIGHTS and TIMBERLINE PARK.” That plaintiff’s loss was $1,000.00.

With this contention we cannot agree. The evidence of Austin is nothing more than his opinion of the value of the land before and after the bulldozing. There is no evidence as to the number of trees knocked down, or the amount of top soil and grass scraped off. Austin is not shown to have seen the land before it was bulldozed. His testimony is only opinion evidence and does not conclusively establish the amount of damages as a matter of law; it was introduced only to aid the trier of facts at arriving at the amount of damages. State v. Haire, Tex.Civ.App., 334 S.W.2d 488.

In 24 Tex.Jur.2d, p. 42, § 549, it is stated:

“Opinion testimony does not establish any material fact as a matter of law. It is not conclusive, but merely raises an issue of fact to be submitted to the jury, who, in determining the facts, are not bound by the opinions of the witnesses.”

In Coxson v. Atlanta Life Ins. Co., 142 Tex. 544, 179 S.W.2d 943, 945, it is said:

“The opinion testimony of experts, although persuasive, under most circumstances is not conclusive. It is peculiarly within the province of the jury to weigh opinion evidence, taking into consideration the intelligence, learning, and experience of the witness and the degree of attention which he gave the matter. The judgments and inferences of experts or skilled witnesses, even when uncontroverted, are not necessaifily conclusive on the jury or the trier of facts, unless the subject is one for experts or skilled witnesses alone where the jury or the court cannot properly be assumed to have, or be able to form, correct opinions of their own based upon the evidence as a whole and aided by their own experience and knowledge of the subject of inquiry. 22 C.J. 728, § 823; 32 C.J.S. Evidence § 567; Simmonds v. St. Louis, B. & M. Ry. Co, 127 Tex. 23, 91 S.W.2d 332; Houston Belt & Terminal Ry. Co. v. Vogel, Tex.Civ.App, 179 S.W. 268; Guinn v. Coates, Tex.Civ.App., 67 S.W.2d 621.”

There is no contention here that the judgment rendered is not supported by some evidence, or that it is so against the great weight and preponderance of the evidence as to be clearly wrong.

Appellant’s second point in effect contends that the judgment does not compensate him for the loss of top soil and firewood. We overrule this point. Certainly, the loss of top soil would be included in the damages to his land, and if the firewood is to be regarded as personal property there is nothing to show the amount of such firewood or the value thereof.

The judgment is affirmed.


author: HIGHTOWER, Chief Justice.

text:
    The STATE of Texas, Appellant, v. J. F. CHRISTIAN et al., Appellees.
    No. 6571.
    Court of Civil Appeals of Texas. Beaumont.
    March 5, 1964.
    Waggoner Carr, Atty. Gen., Austin, for appellant.
    Sexton & Owens, Orange, for appellees.
   HIGHTOWER, Chief Justice.

This is a condemnation suit brought by the State of Texas against J. F. Christian and certain of his lien holders to condemn 1.68S acres of land out of a 12.056 acre tract located in Orange County, Texas. The purpose of the taking was for the construction of a new controlled access highway, Interstate Highway 10. After the taking, the landowner Christian owned a remainder of 8.18 acres on the north side of the new highway and 2.191 acres lying between the south side of the new highway and the north side of U. S. Highway 90.

In reply to special issues submitted in accordance with those suggested in State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, the jury found the value of the land taken to be $4,000.00. It found values of the remaining property immediately before and immediately after the taking to be $61,-950.00 and $50,750.00, respectively; thus, a diminution in value to the remaining property of $11,200.00. State has appealed from the judgment of the trial court which was entered upon these findings of the jury. Its most serious contentions relate to the admission of evidence concerning the loss of trade to appellees’ business due to construction of the new highway. The following facts were developed by the evidence.

The business owned by appellees, Mr. and Mrs. J. F. Christian, was known as a truck stop. It was on the north side of U. S. Highway 90 just west of Orange, Texas, for several years prior to the filing of the condemnation suit. Their land has some 250 feet of frontage on U. S. Highway 90 and their property was some 2,000 feet deep. The highway property in front of the Christian tract was improved with a culvert and driveway extending substantially the full width of the frontage. The driveway led onto the Christian property where was located a well-constructed, two-story building which served as a cafe and filling station. A short distance to the west was located another building referred to as a wash and grease rack. The area immediately in front of these buildings was paved with a concrete ramp. The front of the cafe and filling station had doors and plate glass windows. To the rear was located the Christian residence, a garage and a small tenant house. Along the east side of the property extending northward some 700 or 800 feet was a strip of land 50 feet wide which had been dedicated for road purposes. At least a portion of the east side was paved where trucks could park.

When the new highway was built, it was located some 400 feet north of U. S. Highway 90 and behind the truck stop and residence buildings on the Christian tract. The only improvements within the taken area were a barn, a pond and fences. Behind the taken area is now the Christian’s north remainder extending some 1,400 feet back from the new highway.

At the time of the trial the new highway had been completed and opened to traffic and Highway 90 was still open and the access therefrom to the remaining southern portion of the Christian property had not been impaired. After the new highway was opened most of the traffic preferred to travel thereon rather than Old Highway 90. As a result of the loss of traffic on the old highway, appellees’ business suffered.

At the outset of the trial the court overruled State’s motion to suppress any evidence of appellees’ loss of business due to loss of traffic on Highway 90 by reason of the construction of the new highway. Throughout the testimony of the witness Hall, counsel for appellees consistently and repeatedly questioned him regarding the public’s preference to use the new highway instead of the old one. Just as consistently and repeatedly counsel for State was required to object to such questioning, informing the court that the questions and answers were inadmissible for several stated reasons, among them being that “it was an attempt to recover damages to which the appellees were not entitled.” All of State's objections were overruled by the court, and Hall was permitted to give his opinion that appellees’ remaining property had been damaged because of the preference of the public to travel the new instead of the old highway.

A review of other testimony is necessary in order to pass upon the questions of both admissibility and harm. The witness Brea-zeale was permitted to testify in substance as follows: He examined appellees’ property as a contractor, not as an expert appraisal witness. He had made a study of the cost of moving the tenant house, the residence and the garage and lining them up on the west side of the property facing east, setting them back on sills, hooking them all up to a septic tank and up to water, electricity and gas. The cost of this work would be $3,150.00. It would cost $2,150.00 to build a steel frame canopy on the back of the building facing the new highway like the one on the front facing the old highway. Laying concrete culverts along the new frontage, building driveways up to the houses lined up on the west side, removing a few pine trees, building a driveway from the northwest corner over to the east side to the northeast corner down the line on the east side then back to the west side of the service station would cost $8,150.50. Moving the electrical service from the rear (which would be the new front) to the side would be $650.00. Pouring a conCrete slab on the back side of the service station facing the new highway, the same as the one on the front of the service station, $1,920.00. Six billboard signs on the highway similar to Stuckey’s and Conn’s directing traffic to his location, $2,400.00. A new well, $895.00. Installing a concrete pipe at the access road from the west side to the east side, putting in four manholes and leveling it off with dirt (thus having a driveway on the new highway like the one on the old highway), $2,110.75. Rearranging doors and windows so that he could serve his customers from the back side of the building and draining the water off of the roof so that it would not seep down on the customers, $1,727.75. He stated that all of these alterations and additions, which totaled $23,150.00, were not depreciated but were for new construction which was necessary to bring the property back up to where it was before.

Mr. Davis, appellees’ only valuation witness, placed a value of $61,700.00 upon appellees’ remaining property immediately before the taking and $30,700.00 immediately after the taking; thus, a diminution in value or damage figure of $31,000.00. On voir dire and cross-examination of this witness, in an effort to establish that the opinion of Mr. Davis was based upon inadmissible matters, State elicited the following testimony: In arriving at the value of the remainder, Davis took into consideration the fact that the traveling public has a preference to travel over the new highway instead of the old one. He had heard Mr. Breazeale’s testimony. He had discussed the various parts of the $23,-150.00 improvement and remodeling job that Mr. Breazeale had outlined and had considered the same in trying to determine what it would take to conserve the highest and best use of the remaining property. The remaining property had decreased $31,-000.00 in value and $23,150.00 of that was due to the matters that Mr. Breazeale had detailed.

“Q. Mr. Davis, does the defendants’, Mr. and Mrs. Christian’s, south property have the same highest and best use now that it did before, after the taking as it did before ?
;Jc % * * ‡
“A. It could be used as the same thing before the taking, except that you do not have any appealing features to any traffic that is traveling on the new highway, you do not have any convenient access to it * * *
“A. And, therefore, in my opinion it would not be, unless he does spend some money to convert it back to its highest and best use and where it can be utilized to its highest and best use' — ■ a business cannot be profitable any longer on it.
“Q. In other words, it’s based on the traffic being on IH 10 instead of an Old Highway 90?
“A. Well, you have traffic on both of them. We still have some traffic on Old Highway 90, but you also have, I think, a majority of your traffic will now be on IH 10.
“Q. And that’s the reason you have been telling us that it needs to be converted ?
“A. It needs to be converted in order to still attract customers to the place of business, and so on.
“Q. Most of which are now on IH 10 instead of Highway 90?
“A. I would say the biggest majority of it is staying on IH 10.
“Q. Do truck drivers generally prefer to travel on IH 10 instead of Old Highway 90, is that what you are saying ?
“A. I think most of your truck travel will be on IH 10. You will have places where they will turn off IH 10 to get to a place they care to go to or care to cater or they care to trade with, but your travelling will mostly be done on IH 10.”

Whereupon State moved the court to strike all of the foregoing testimony relative to the inadmissible sum of $23,150.00, for improvements. The motion to strike was overruled. Numerous other assignments in State’s motion for new trial complained that the testimony relating to the $23,150.00 worth of improvements and the change of the traffic pattern on the old and new highways was inadmissible and prejudicial for one reason or the other.

The appellee Christian was permitted to testify in substance as follows: He had heard Mr. Breazeale’s testimony and it is his opinion that it is necessary to spend sums of money in keeping with those stated by Breazeale in order to continue utilizing his property at its highest and best use. In the past few years his truck drivers business has been heavy. At one time, before the construction of the new highway, he counted the trucks. They were lined up on both sides of the road, down each side of the station, all in front and back. There were 58 trucks there at 2:00 in the morning. If he spends the money that he thinks is necessary he can continue to hold these customers. He' had approximately 85% of the truck drivers on Highway 90 and believes that in a little time he can get them back.

The trial court should have sustained State’s motion to suppress any evidence of appellees’ loss of business due to the loss of traffic on Highway 90 by reason of the construction of the new highway, and it erred in admitting in evidence, over objection, the testimony of the witness Breazeale and others covering the cost of reconstructing the filling station, restaurant and premises in general so ap-pellees’ business would face the new highway as well as the old.

The recent Supreme Court decision, State of Texas v. Baker Bros. Nursery, Tex., 366 S.W.2d 212, has laid to rest any law or doubts to the contrary. That condemnation case also involved a limited access highway. Referring to Art. 6674w, Vernon’s Ann.Civ.St., which was enacted by the Legislature in 1957, the court adopted and quoted the following holding in Pennysavers Oil Co. v. State, Tex.Civ.App., 334 S.W.2d 546:

“The State has the right under the provisions of Art. 6674w, supra, and its police power, to provide for one-way traffic, no U turns, division barriers, no left or right turns, traffic lanes, speeding and parking regulations, circuitous routes; for the changing of highways generally, and is not responsible for loss of trade to abutting landowners as a result of the exercise of this police power, so long as it does not amount to a complete taking of the right of access.”

Essentially, appellees are in the position of seeking to recover damages for loss of trade to their business occasioned by the limited and inconvenient ingress and egress to their place of business due to the construction of the new highway. An individual whose property abuts a public way does not have a vested interest in the travel thereon. The testimony of Brea-zeale and particularly Davis informed the jury that appellees had suffered damages of $23,150.00 by reason of loss of business due to the construction of the new highway. There is no question but what ap-pellees’ business suffered severely by reason of said construction and the public’s preference to use the same, but such was damnum absque injuria. In legal contemplation there was actually no evidence to support the damage award.

In support of its contentions, appellees rely heavily on the cases of City of Dallas v. Priolo, 150 Tex. 423, 242 S.W.2d 176, and Milam County v. Akers, 181 S.W.2d 719, ref. w. m.

These cases are not in point inasmuch as neither of them approved recovery of damages for loss of trade to a business due to the public’s preference to travel a new highway or the public’s inclination to forego trade with a business because of the inconvenient ingress and egress to the same. Any implications that might exist in these decisions to the effect that damages are recoverable under the record of this case are considered overruled by the holding in Baker Bros. Nursery, supra.

It is not deemed necessary to consider State’s other points of error. Because the errors heretofore alluded to were reasonably calculated to cause, and did cause, the rendition of an improper judgment, the judgment of the trial court is reversed and remanded.


author: NORTHCUTT, Justice.

text:
    J. B. MARION d/b/a J. B. Marion and Company, Appellant, v. Herbert L. CADENHEAD and Max M. Bowers, Appellees.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 17, 1964.
    Rehearing Denied March 16, 1964.
    Edward W. Napier, Lubbock, for appellant.
    Allison, Mann & Allison, Levelland, for appellees.
   NORTHCUTT, Justice.

This is a suit for the breach of a written contract where the appellees, Herbert L. Cadenhead and Max M. Bowers, contracted to sell to appellant, J. B. Marion, individually and d/b/a as J. B. Marion and Company and appellant agreed to purchase the 1961 cotton crop of appellees at 30.40 cents per pound. The case was submitted to a jury upon special issues. The jury answers were favorable to appellees’ contentions and the trial court rendered judgment for the appellees. From that judgment appellant perfected this appeal.

A portion of the cotton harvested was accepted by the appellant but 108 bales of the cotton contracted for was refused by appellant. This appeal is perfected upon one assignment of error as follows:

“In an action for breach of contract to purchase cotton and plaintiff seller elects to sue for the difference between the contract price and the fair market value of the cotton, the burden is upon the plaintiff to plead, prove and secure a jury finding (1) that the fair market value of the cotton at the time and place of breach is less than the contract price and (2) what the fair market value was.”

It is to be noticed that appellees did not sue for the difference between the contract price and the market value but sued for the difference in the contract price and the best and most favorable price that appellees could secure for said cotton. The jury found appellees exercised ordinary care in selling the 108 bales of cotton in question. Mr. Cadenhead testified about contacting other cotton buyers and got various quotations on what cotton was selling for and that he got the best price he could find available.

The identical question raised here was brought forward in the case of Marion d/b/a J. B. Marion Company v. Bowers, Tex.Civ.App., 371 S.W.2d 575 where it was held as follows:

“It is well settled in this state that where a purchaser has wrongfully refused to accept delivery of property, the seller has a choice of three remedies. Waples v. Overaker, 77 Tex. 7, 13 S.W. 527; Leventhal v. Hollamon, (Tex.Civ.App.), 165 S.W. 6, (Error Refused); Avant v. Watson, 57 Tex. Civ.App. 304, 122 S.W. 586; Sour Lake Townsite Company v. B. Deutser Furniture Company, 39 Tex.Civ.App. 86, 94 S.W. 188, (Error Refused). In such a case the seller may hold the goods as the property of the buyer and sue for the contract price; or he may sell them at a fair sale and sue for the deficiency; or he may treat them as his •own and sue for the difference between the contract price and their market value bn the date fixed for delivery. White v. Matador Land & Cattle Company, 75 Tex. 465, 12 S.W. 866; Smith v. Ratliff, (Tex.Civ.App.), 157 S.W.2d 945; Gugenheim v. Hancock, (Tex.Civ.App.), 231 S.W.2d 935, (Refused, NRE); Clearview Louver Window Corp. v. Rubin Glass and Mirror Company, (Tex.Civ.App.), 284 S.W.2d 221, (Refused, NRE); 37A Tex.Jur., Sales, Section 267, page 552. “Appellees elected to pursue the second remedy outlined above by selling the rejected cotton at a fair sale and suing for the difference between the proceeds of the sale and the contract price.”

We are of the opinion and so hold the-case just cited and the authorities therein are determinative of the issue here involved and overrule appellant’s point of error. Judgment of the trial court is affirmed.


author: DENTON, Chief Justice.

text:
    William Hubert PHILLIPS, Appellant, v. AMERICAN GENERAL INSURANCE COMPANY et al., Appellees.
    No. 7324.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 17, 1964.

      Ray & Knudtson, Amarillo, for appellant.
    Culton, Morgan, Britain & White, Simpson, Adkins, Fullingim & Hankins, Amarillo, for appellees.
   DENTON, Chief Justice.

Appellant, William Hubert Phillips, brought this suit against American General Insurance Company, Fidelity & Casualty Company of New York, Leon Cox d/b/a Leon Cox Trucking, Gilvin-Terrill, Inc. and Panhandle Gravel, Inc., for personal injuries. Phillips first sought to recover for total and permanent disabilities under the Workmen’s Compensation Law; and alternatively, in the event he was not entitled to recover under workmen’s compensation, he sought damages against all defendants equal to a recovery under the Workmen’s Compensation Law, plus medical expenses, interest, and punitive damages. Punitive damages were sought on the ground of an alleged conspiracy between the various defendants to violate Article 911b, Vernon’s Ann.Civ.St., relating to regulation of motor carriers by the Railroad Commission. The trial court, without the intervention of a jury, entered judgment for all named defendants and Phillips perfected this appeal.

The facts are undisputed. The record contains no statement of facts, but the record contains findings of fact in addition to “Agreed Fact Stipulations” approved by counsel for all parties. From such findings and stipulations it can be determined Phillips was seriously injured on May 5, 19S9, while hauling a load of gravel from the pit of Panhandle Gravel, Inc. to a point in Randall County, Texas. The truck being driven by Phillips was owned by Floyd Bichsel; Phillips was not an employee of Leon Cox d/b/a Leon Cox Trucking because of an independent contractor relationship existing between Cox and Bichsel. The stipulation contains two written agreements previously entered into whereby Bichsel is designated as an independent contractor of Cox. The other instrument designates Cox as an independent contractor of Panhandle Gravel, Inc. Cox, Panhandle Gravel, Inc. and Gilvin-Terrill, Inc., had workmen’s compensation insurance for their own employees; and none of these defendants ever regarded Phillips as an employee. It was stipulated and so found by the trial court that Cox did not hold a permit or certificate of convenience in accordance with Article 911b when he was required to do so.

The trial court’s findings dealt only with defendant Cox and appellant brings forward no points of error directed at the court’s judgment in favor of defendants, American General Insurance Company, Gilvin-Terrill, Inc. and Panhandle Gravel, Inc. We are therefore without authority to pass upon the trial court’s judgment as it relates to these named defendants. Bichsel was not named a party to this law suit.

Appellant’s only point of error attacks the trial court’s judgment on the ground Cox was operating in violation of Article 911b by operating his gravel trucks as a contract carrier without a permit. It is appellant’s contention this violation abrogates the independent contractor relationship between Cox and Bichsel; thus the non-delegable duty which would have been created by the issuance of a permit to Cox would render Cox liable to appellant.

Appellant excepted to the judgment in compliance with the provisions of Rule 307, Texas Rules of Civil Procedure, which has the effect of claiming the court’s findings do not support the judgment. This same rule permits appellant to appeal without a statement of facts. In the absence of a statement of facts the appeal must be decided upon the transcript which includes the pleadings, stipulations, findings of facts, and judgment of the trial court. Dorman v. Cook (Tex.Civ.App.), 262 S.W.2d 744 (Dismissed) ; Southern Pine Lumber Company v. Smith (Tex.Civ.App.), 183 S.W.2d 471 (Refused, W.M.). It is therefore incumbent upon this Court to affirm the judgment of the trial court unless the pleadings, stipulations and findings of the trial court do not support the judgment.

Appellant contends that Cox, having operated his trucks without a permit as required by Article 911b, would not be relieved of his non-delegable duty to appellant. This contention is based on the alleged conspiracy between Cox and Bichsel, owner of the truck being driven by appellant at the time he was injured. Appellant strongly relies on Berry v. Golden Light Coffee Company, 160 Tex. 128, 327 S.W.2d 436; and Emerson v. Park (Tex.Civ.App.), 84 S.W.2d 1100 (Dismissed), to support his position. These and other cases cited are not in point. The Berry case involved a proven conspiracy between the truck owner and the owner of the goods being transported. Both the Berry and Emerson cases are authority for the well-settled rule that the holder of a certificate or permit to operate a motor carrier on the highways of the state may not delegate to another the rights conferred by such certificate or permit so as to release himself from liability to those injured by the negligence of the wrongfully delegated party. See also Wardlow v. Newberry (Tex.Civ.App.), 319 S.W.2d 437. The findings, stipulations and pleadings in this case do not bring it within this settled rule of law. Looking only to these instruments we can only conclude Phillips was not an employee of Cox but was an employee of Bichsel, the owner of the truck. There is no finding relative to a conspiracy entered into by any of the parties; nor is there a finding relative to whether Bichsel held a permit. The record is also silent as to whether or not Bichsel carried workmen’s compensation insurance or any other type of insurance. In the absence of a statement of facts every presumption must be indulged in favor of the trial court’s findings and judgment. Commercial Credit Corp. v. Smith, 143 Tex. 612, 187 S.W.2d 363, and cases therein cited. Under the facts and legal presumptions in this case, the fact Cox did not hold a certificate of convenience or a permit as required by Article 911b would not render him liable to appellant.

The judgment of the trial court is affirmed.

Affirmed.


author: CHAPMAN, Justice.

text:
    Melvin ADAMS, Appellant, v. Gertrude Callahan LYNCH, Appellee.
    No. 7334.
    Court of Civil Appeals of Texas. Amarillo.
    March 16, 1964.
    Hubert Roach, Aspermont, Dale Condron, Jay ton, for appellant.
    Evans, Pharr, Trout & Jones, Lubbock, for appellee.
   CHAPMAN, Justice.

The subject matter of this suit constitutes a landlord and tenant controversy between Mrs. Gertrude Callahan Lynch, plaintiff-appellee, and Melvin Adams, defendant-appellant, over the right of the landlord to dispossess the farm tenant. Mrs. Lynch contended she leased the land to Mr. Adams under an oral agreement for one year at a time and the latter contended he had a five year written lease. The case originated in the form of a trespass to try title with a stipulation of fee simple title in Mrs. Lynch. It was tried to a jury but after the evidence was completed the court took the case from the jury and rendered a judgment for Mrs. Lynch for title and possession.

Appellant pleaded that “* * * on'or about the fifteenth day of December, 1958, cross-plaintiff and cross-defendant entered into a written or oral contract of lease of the following described land situated in Crosby and Dickens Counties, Texas, to-wit:” (Emphasis added).

The lands were then described by metes and bounds. Then without having previously alleged any written memorandum such as to avoid Sections 4 and 5 of the Statute of Frauds and Fraudulent Conveyances, Article 3995 Vernon’s Ann.Tex, Civ.St. and the Statute of Conveyances, Article 1288, he alleged “ * * * the above mentioned memorandum is now lost, but cross-plaintiff will prove the execution and contents of said memorandum as above alleged.” He then alleged “ * * * the above mentioned memorandum or the Conservation Reserve Contract are a sufficient memorandum to constitute a valid contract for the lease of land for a period of more than one year.”

Appeal is perfected upon two points. The first asserts error of the court in sustaining a special exception to the failure of Melvin Adams to state a cause of action upon which the court could grant the relief requested. The second point asserts error of the court in sustaining appellee’s special exception to Adam’s allegation that “ * * the above mentioned memorandum or the Conservation Reserve Contract are sufficient memorandum to constitute a valid contract for the lease of land for a period of more than one year.”

The court further sustained exceptions to such allegations for the reason that they failed to set forth “ * * * such memorandum as written, oral, or otherwise, and is not sufficient in law to form the basis of the cause of action on the part of the cross-plaintiff in that same does not set forth the specific terms and conditions of the agreement.”

From the record we have before us we believe the trial court correctly sustained the exceptions to the pleadings. They first allege "a written or oral contract.” The contract could not have been both. They were not pleaded in the alternative. It was either written or oral. Nowhere else in the pleadings is written contract referred to. In several other places in the pleadings a “memorandum” is referred to but nowhere do the pleadings allege it was signed by Mrs. Lynch. The word “lease” was also used several times in the pleadings but nowhere does appellant allege a specific written lease signed by the parties. Contention is made that the agreement the two signed as producers with the United States Government on the Conservation Reserve Contract constituted a contract between the parties here for the period of the Conservation Reserve Contract. We have studied the contract and hold that it does not obligate Mrs. Lynch to a five-year contract with a specific tenant.

Under the statutes above cited appellant properly objected from the beginning to the introduction of any testimony concerning a written contract. The court stated he would carry the objections along until the evidence was in. After the evidence was in he then sustained the objections, took the case away from the jury and rendered the judgment heretofore referred to. We believe he was correct in doing so.

The Beaumont Court of Civil Appeals in the case of Pate v. Gallup, 195 S.W. 1151 (N.W.H.) has stated as follows:

“To our minds, the rule of evidence has long been settled that when original instruments, which would be admissible if the originals were produced in court and properly proven, are shown, by the testimony of the custodian thereof, to have been destroyed, the proper manner to prove its loss is: (1) To prove the loss or destruction of the original by the custodian thereof at the time of its loss, or destruction; (2) to prove its execution by some one who can testify of this own knowledge to the fact that it was executed by the person by whom it purported to be executed; and (3) if a witness can be produced who can testify that a copy of the instrument is a true copy, this should be done.”

No such predicate was laid in the instant case nor did the pleadings allege facts to justify proving such a predicate. In the case of McClendon v. Fire Association of Philadelphia, 278 S.W.2d 447 (N.W.H.), our court has held:

“ * * * before secondary evidence of the contents of a lost instrument is admissible, it must be shown that diligent search has been made in places where the instrument would be likely to be found and inquiries made of those who would be the proper custodians of it.”

There are no pleadings or evidence of this nature in the instant case. To the contrary Mrs. Vernon, the custodian of the file in the A.S.C.S. office containing the Conservation Reserve Contract between the parties here and the United States Government, testified that the file never contained any memorandum or written instrument between Mrs. Lynch and Melvin Adams; that she never heard of such document until Mr. Roach, one of the attorneys for appellant, inquired of her about it that morning; and that Mr. Adams never asked her to produce such instrument.

Accordingly, from the record before us we hold the trial court did not commit reversible error in the judgment rendered. The judgment of the trial court is affirmed.


author: BARROW, Justice.

text:
    H. M. SHELTON, Appellant, v. TEXAS STATE BOARD OF MEDICAL EXAMINERS, Appellee.
    No. 14247.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 26, 1964.
    Rehearing Denied March 25, 1964.
    Forrest A. Bennett, San Antonio, for appellant.
    Waggoner Carr, Atty. Gen., David M. Fender, Chas. B. Swanner, Asst. Attys. Gen., Austin, for appellee.
   BARROW, Justice.

This is an appeal from a temporary injunction issued against appellant under the provisions of the Medical Practice Act, Title 71, Chapter 6, Arts. 4495-4512, Vernon’s Ann.Civ.Stats.

It is stipulated that appellant is not licensed to practice medicine in the State of Texas as required by the Medical Practice Act, supra. At the time of the trial he was operating, in Bexar County, a business known and adyertised as “Dr. H. M. Shelton’s Health School.” An investigator for appellee testified that on April 11, 1963, appellant offered to treat the witness’ ulcer at this place of business. Appellant denied that he diagnosed or treated this witness or any patients at his “health school” where persons fasted to heal their ailments.

The trial court found that appellant was practicing medicine without a license and threatens to continue to do so unless enjoined. A temporary injunction was issued enjoining appellant, pending final hearing, from practicing medicine without a license as required by the Medical Practice Act, supra, and “particularly from publicly professing to be a physician and diagnosing, treating and offering to treat diseases and disorders and offering to effect cures thereof, and from diagnosing, treating and offering to treat diseases, disorders, physical deformities and injuries and offering to effect cures thereof, and charging therefor money or other compensation, without first complying with the provisions of the Medical Practice Act,” supra.

Appellant does not complain of the trial court’s finding that he was practicing medicine without a license in violation of law, but asserts in his sole point that the temporary injunction as granted by the trial court disturbed the status quo and was therefore an abuse of discretion.

It is well settled that the status quo to be preserved by a temporary injunction is “the last, actual, peaceable noncontested status which preceded the pending controversy.” 32 C.J. § 2, p. 21; 43 C.J.S. Injunctions § 2; Transport Co. of Tex. v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549; Lowe & Archer, Texas Practice, Injunctions, § 328. This rule does not permit the continuation of a violation of law.

In Rattikin Title Company v. Grievance Committee of State Bar of Texas, Tex.Civ.App., 272 S.W.2d 948, the Court recognized the status quo rule and said: “But in an injunction case wherein the very acts sought to be enjoined are acts which prima facie constitute the violation of expressed law, the status quo could never be a condition of affairs where the respondent would be permitted to continue the acts constituting that violation.” The Court held that when it is determined that the law is being violated, it is the province and the duty of the court to restrain it. See also, Famous Department Store v. State, Tex.Civ.App., 371 S.W.2d 76; City of Corpus Christi v. Lone Star Fish and Oyster Co., Tex.Civ.App., 335 S.W.2d 621 ; Gifford v. State, Tex.Civ.App., 229 S.W.2d 949.

It is our opinion that the trial court did not abuse its discretion in issuing the injunction pending trial on the merits.

The judgment is affirmed.


text:
    INTERNATIONAL UNION OF OPERATING ENGINEERS et al., Appellants, v. James M. CASIDA et al., Appellees.
    No. 7285.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 3, 1964.
    Rehearing Denied March 30, 1964.

      Mullinax, Wells, Morris & Mauzy, Dallas, L. N. D. Wells, Jr., Albert Levy and David R. Richards, Dallas, of counsel; Woll, Mayer & St. Antoine, Washington, D. C., Sam Houston Clinton, Jr., and Arthur Mitchell, Austin, for appellants.
    Albert Smith, Lubbock, W. L. McConnell, Amarillo, H. M. Hood and Jack Hood, Borger, for 28 appellees.
    C. J. Roberts and C. Rex Boyd, Amarillo, for Phillips Petroleum Co.
   DENTON, Chief Justice.

This suit for damages was brought by James M. Casida and 27 other former employee!; of Phillips Petroleum Company against the International Union of Operating Engineers, Local Union No. 351, an affiliate of that International Union, and •certain union officials. Appellees, plaintiffs "below, sought damages alleged to have been ■sustained by each of them by reason of ¡being discharged by Phillips Petroleum Company for carrying out certain orders of named union officials. The two union defendants impleaded Phillips Petroleum Company as a third party defendant. Prior to the submission of the case to the jury, plaintiffs took nonsuits as to the union officials. Phillips’ motion for summary judgment also was granted prior to the trial of the case on its merits. The jury awarded damages to the individual plaintiffs in varying amounts ranging from $24,-158.40 to $78,891.20 for an aggregate sum of $1,186,568.40. The trial court rendered judgment jointly against the unions in accordance with the jury verdict.

All 28 plaintiffs were employed by Phillips Petroleum Company and were members in good standing of Local 351 which was chartered by and affiliated with the International Union. Local 351 had been certified as the bargaining representative with Phillips by the National Labor Relations Board. It is undisputed that the activities here involved affected interstate commerce. The union contract with Phillips was to have expired May 1, 1958, but by written agreement it was extended two weeks to May 15 in order that negotiations could continue. Either party could terminate this supplemental agreement by giving twenty-four hours written notice. Further negotiations failed to produce an agreement and the union voted to strike. The strike was set for May 14, 1958, at 9:00 o’clock p. m. Notice of the union’s intention to strike was timely given to the company. The 28 plaintiffs together with 5 other union members, were employed by Phillips in the gasoline department, and in such capacity they were operators in several of the company’s gasoline plants. When the strike began these 33 operators began “shutting down” the plants contrary to orders of Phillips’ supervisors. For such action these 33 members were discharged by the company for insubordination. 28 of the 33 discharged employees brought this suit for damages.

The crux of appellees’ cause of action is that their carrying out of certain orders or instructions of certain alleged union officials to shut down the gasoline plants caused their discharge. Plaintiffs alleged union attorney Clinton advised union members prior to the strike, “When a strike is called, you are required by law to shut the plants down. The company can fire you, but they can’t make it stick, you will get your job back or one equal to its pay value.” These same orders were also alleged to have been given the union members by L. V. McCarthy, the local union’s business representative; by E. E. Looney, the local’s vice president; by C. V. Holley, a union member and the local’s chairman of the gasoline department; and by Joe W. Rigdon, the International Union’s representative. Plaintiffs’ pleadings, evidence, and the jury findings were to the effect these orders or representations were material, false, and relied on by each of the plaintiffs. They further alleged the union breached an implied agreement with the union members to properly represent them and to use at least ordinary care to inform them fairly and accurately concerning negotiations between the union and the company; the proper manner to carry out a strike; duties they owed to the employer in carrying out a strike; and the right of the company to discharge an employee who shuts down a plant contrary to employer’s instructions. Plaintiffs alleged “these covenants are inherent in the contractual relationship created when the plaintiffs joined the defendant unions and are implied by law.” They further allege “but for the aforesaid orders [by the union officials] these plaintiffs would not have shut the plants down and would not have lost their jobs.” The only relief sought by these union members is money damages. Each plaintiff voluntarily took his “withdrawal card” from the union, and they make no request for reinstatement into the union.

Appellant unions first challenge the State court’s jurisdiction, contending the subject matter of this case is within the exclusive jurisdiction of the National Labor Relations Board. This plea to the jurisdiction was overruled by the trial court and has been re-asserted here. The United States Supreme Court held in Local 100 of United Association of Journeymen v. Borden, 373 U.S. 690, 83 S.Ct. 1423, 10 L.Ed.2d 638 (1963): “Thus the first inquiry, in any case in which a claim of federal preemption is raised, must be whether the conduct called into question may reasonably be asserted to the subject to Labor Board cognizance.” In the same opinion the court uses the phrase “reasonably arguable” in determining whether the conduct complained of comes within the Board’s jurisdiction.

In the present case plaintiffs allege and the jury found that the instructions given by the union officials to plaintiffs were relied on by them, and that the carrying out of such instructions was the cause of their discharge by Phillips. Plaintiffs further allege and the jury found the named union officials entered into an unlawful conspiracy and gave the instructions above referred to in order to cause Phillips’ plants to be shut down. Plaintiffs contend by brief “The heart of their case lies in the defendant unions’ failure to perform common law duties to their members.” These alleged common law duties are described as the unions’ negligent and otherwise wrongful order to immobilize the plants in the face of clear and definite instructions to the contrary by supervisors of the employer. This is the basis of appellees’ contention that the State court has jurisdiction of this present suit. As we understand it, appellees urge that these alleged common law duties owed by the union to its members represent a matter concerning the relationship between the unions and their members, thus taking the activity complained of out of the jurisdiction of the National Labor Relations Board. The assertion by brief that appellees “are not charging defendants with having coerced them into participating in the strike, the picketting, or any other activity covered by the National Labor Relations Act.” (Emphasis added) is not consistent or compatible with the pleadings, evidence and jury finding. Admittedly, all plaintiffs took part in the strike vote, voluntarily struck and participated in the picketting which took place during the strike. The question of whether or not there was coercion by the union relative to “any other activity” must be decided in disposing of this jurisdictional question.

Relevant sections of National Labor Relations Act, commonly referred to as the Taft-Hartley Act, provides:

Sec. 157 [Sec. 7, 49 Stat. 452]

“Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a) (3) of this title.”

Sec. 158 (Sec. 8, 49 Stat. 452]

“(b) It shall be an unfair labor practice for a labor organization or its agents—
“(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 157 of this title: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules which respect to the acquisition or retention of membership therein; or (B) an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances.”

We have concluded the conduct alleged to have been committed by the union officials arguably comes within the protection afforded by Section 7 of the Act. Two recent decisions of the United States Supreme Court in Association of Journeymen v. Borden, supra, and Local No. 207, etc., Iron Workers Union v. Perko, 373 U.S. 701, 83 S.Ct. 1429, 10 L.Ed.2d 646, are controlling authorities on this question of preemption. See also San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775. Plaintiffs rely on International Association of Machinists v. Gonzales, 356 U.S. 617, 78 S.Ct. 923, 2 L.Ed.2d 1018, among other cases. But the court in Borden distinguished Gonzales on the ground that decision turned on the court’s conclusion that the suit was focused “on purely internal union matters, i. e., on relations between the individual plaintiff and the union not having to do directly with matters of employment, and that the principal relief sought was restoration of union membership rights.” In the Borden case, Borden, a member of a Louisiana local of the plumbers’ union, attempted to secure a job with a construction company in Dallas on a particular construction project. The company hired employees through union referrals. Borden was unable to obtain such a referral from the business agent of the defendant Dallas local even though Borden had clearance between the two locals and the company foreman had asked that Borden be sent to the job. Borden brought suit against the union in a Dallas State court seeking damages under the State law for the union’s refusal to refer him to the company. The union challenged the State court’s jurisdiction as was done in the present case. The United States Supreme Court held the State court had no jurisdiction since it was arguable that the union’s conduct either violated or was protected by the National Labor Relations Act. In so holding, the court used the following language: “The suit involved here was focused principally, if not entirely, on the union’s actions with respect to Borden’s efforts to obtain employment. No specific equitable relief was sought directed to Borden’s status in the union, and thus there was no state remedy to ‘fill out’ by permitting the award of consequential damages. The ‘crux’ of the action (Gonzales, 356 U.S., at 618, 78 S.Ct., at 924 [2 L.Ed.2d 1018]) concerned Borden’s employment relations and involved conduct arguably subject to the Board’s jurisdiction.” The court also rejected Borden’s contention that the suit for damages was one based on contract and tort, thus conferring the State court jurisdiction. In disposing of this contention, the court said: “It is not the label affixed to the cause of action under state law that controls the determination of the relationship between state and federal jurisdiction. Rather, as stated in Garmon, supra, 359 U.S. at 246, 79 S.Ct. at 780 [3 L.Ed.2d 775], ‘[o]ur concern is with delimiting areas of conduct which must be free from state regulation if national policy is to be left unhampered’. (Emphasis added.)”

Thus, in the present case the area of conduct complained of is the giving of the order to shut down the plants to the union members which resulted in their being discharged. Plaintiffs’ loss of employment with Phillips and their inability to obtain and retain similar employment is the crux of their cause of action. No equitable relief such as restoration of union membership rights is being sought. Section 7 of the Act protects employees in their engaging in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Section 8(b) (1) makes it an unfair labor practice for a labor organization or its agents “to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 157 of this title.” When the 28 union members shut down the Phillips gasoline plants on orders of the union officials, they were engaging in “concerted activities”. Under Section 7 these plaintiffs had “the right to refrain from any or all of such activities”. It is the alleged coercion by union officials that dictated the actions of the plaintiffs contrary to their specific right to refrain from such activity which forms the basis of plaintiffs’ complaint.

In the Perko case which also involved an alleged conspiracy to deprive the union member of the right to continue to work, the Supreme Court said: “As in Borden, the crux of the action here concerned alleged interference with the plaintiff’s existing or prospective employment relations and was not directed to internal union matters. * * * Thus there was no permissible state remedy to which the award of consequential damages for loss of earnings might be subordinated.” This and other holdings cited above are controlling under the pleadings, evidence, and jury findings in the instant case.

In determining this jurisdictional question we are not called upon, and we make no finding of the substantive question, that is, whether either the local or International Union was guilty of a violation of the Act. We do conclude, and so hold, that the subject matter of this case “arguably” comes within the jurisdiction of the National Labor Relations Board to deal with unfair labor practices. It therefore follows the State court is without jurisdiction to hear and determine the merits of this case and must defer jurisdiction to the Board.

In view of our conclusion that the State court is without jurisdiction, it becomes unnecessary to consider and pass on the remaining points of error presented in this voluminous record.

The judgment of the trial court is accordingly reversed and rendered.

Reversed and rendered.

      . 49 Stat. 452, as amended, 29 U.S.C. §§ 157, 158.


text:
    James Alfred KIRKLAND et al., Appellants, v. Beulah MARTIN et vir et al., Appellees.
    No. 7326.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 24, 1964.
    Rehearing Denied March 23, 1964.
    Knorpp & Slavin, Clarendon, for appellants.
    Hamilton & Deaver, Memphis, for ap-pellees.
   DENTON, Chief Justice.

This suit was brought by James Alfred Kirkland, Curtis Kirkland and Lealon Kirkland against their sister, Beulah Martin, and her husband and their niece, Georgia Lee Forkner, and her husband to cancel two deeds dated March 4, 1952, and May 27, 1959, executed by their mother, Linnie Kirkland, now deceased, in favor of Beulah Martin and a deed dated December 28, 1950, executed by the said Linnie Kirkland to Georgia Lee Forkner. Plaintiffs below alleged undue influence and fraud in the procurement of these two deeds. Defendant Martin’s motion for summary judgment based on estoppel by reason of a former judgment was granted by the trial court and appellants perfected this appeal.

George and Linnie Kirkland, husband and wife and parents of the Kirkland brothers and Mrs. Martin, executed a joint, mutual will on August 24, 1949. All property possessed by them was to pass to the survivor with full power to manage, sell, convey and dispose of the property given to such survivor. Upon the death of the survivor that will devised the west 25 acres of a 100 acre farm to Mrs. Martin together with personal property located in their home situated thereon and the farm machinery. The three sons were to share equally the east 75 acres. All other property not thereby disposed of was to pass equally to the four children. On May 11, 1950, George Kirkland died and his will was probated on May 31, 1950. Linnie Kirkland executed the three deeds on the dates named above subsequent to the probate of the will. Sometime after Linnie Kirkland’s death on October 13, 1961, the exact date not being shown in the record, plaintiffs filed suit in Hall County in Cause No. 4029 against Beulah Martin and her husband. This suit was pleaded in two counts: A formal trespass to try title to the two tracts of land previously deeded to Mrs. Martin; and a count seeking to cancel the two deeds on the ground of undue influence and fraud. On September 4, 1962, the trial court granted the defendants’ motion for summary judgment in Cause No. 4029 and entered a take-nothing judgment against the plaintiffs on the ground they had no justiciable interest in the property described. On October 30, 1962, after the judgment in Cause No. 4029 had become final, the same plaintiffs filed Linnie Kirkland’s will for probate in the County Court of Hall County and it was admitted to probate on November 12, 1962. Beulah Martin was duly appointed independent executrix of such will and after duly qualifying she listed only an undivided one-half interest in the west 25 acres of the 100 acre tract as the separate property of Linnie Kirkland in her inventory and appraisement. No appeal was taken from this judgment of the probate court. On December 18, 1962, the present case, Cause No. 4053, was filed by the plaintiffs below. This suit named Beulah Martin and husband and Georgia Lee Forkner and her husband defendants and sought cancellation of the three deeds previously mentioned. Defendant Georgia Lee Forkner and her husband filed a general denial after being personally served. On April 15, 1963, the trial court entered the judgment granting defendants Martins’ motion for summary judgment denying plaintiffs any relief as to the two tracts represented by the two deeds from Linnie Kirkland to Beulah Martin.

Georgia Lee Forkner and husband, J. S. Forkner, were not made parties to the suit in Cause No. 4029 nor was the deed of December 28, 1950, to Mrs. Forkner attacked in that case. That case dealt only with the two deeds executed and delivered to Mrs. Martin. Cause No. 4053 inter-pleaded both Mr. and Mrs. Martin and Mr. and Mrs. Forkner and an attack was made on all three deeds to-wit: the two deeds to Mrs. Martin and the one deed to Mrs. Forkner. Defendants Martins filed a motion for summary judgment in the latter case and based their motion on estoppel by reason of a prior judgment. The Forkners simply filed a general denial. The judgment entered by the trial court in Cause No. 4053, the instant case, did not specifically or by implication dispose of the claim against defendant Georgia Lee Fork-ner nor was there a severance as to the claim against her.

The court’s judgment, omitting portions not material here, was as follows:

“On this the 15th. day of April, 1963 came on to be heard the motion for a summary judgment, filed by the defendants Beulah Martin and Jack Martin, in the above-entitled and numbered cause wherein Alfred Kirkland, Curtis Kirkland, and Lealon Kirkland are plaintiffs, and Beulah Martin, Jack Martin, Georgia Lee Forkner and J. S. Forkner are defendants, and it appearing to the Court that such motion has been made in proper form and time * * * and the Court * * * finds that said summary judgment motion filed herein by the defendants Beulah Martin and Jack Martin is well taken and should be granted insofar as the same relates to the two tracts of land in Hall County, Texas, * * *
“It is accordingly ORDERED, ADJUDGED and DECREED by the Court that the plaintiffs Alfred Kirkland, Curtis Kirkland, and Lealon Kirkland take nothing by their said suit, as against the defendants Beulah Martin and Jack Martin, insofar as the suit of said plaintiffs related to the two tracts of land above-described and all relief requested in said motion for a summary judgment, except insofar as it relates to to the two tracts of land hereinabove described, is specifically refused.”

Ho reference whatsoever is made to the claim being asserted against the Forkners. That portion of the case is still pending in the trial court.

It is a well-established general rule that an appeal will lie only from a final judgment and that a judgment which makes no disposition of the case as to one of several defendants, or ' as to some of the issues involved, either expressly or by implication, is not a final judgment from which an appeal may be taken. Rule 301, Texas Rules of Civil Procedure; Davis v. McCray Refrigerator Sales Corp., 136 Tex. 296, 150 S.W.2d 377; Hill v. Wheat, (Tex.Civ.App.), 304 S.W.2d 599.

A judgment is appealable only when it disposes of all parties or disposes of some independent severed, severable interest, issue or right. Maxfield v. Dunagan, (Tex.Civ.App.), 254 S.W.2d 150; Harris v. Superior Ins. Co., (Tex.Civ.App.), 322 S.W. 2d 665. The judgment expressly limited its disposition to the two tracts of land represented by the deeds to Beulah Martin. The controversy between appellants and Mrs. Forkner was not disposed of. The granting of the summary judgment as to the Martins did not sever the suit so as to make the trial court’s action final or appealable. Pan American Petroleum Corp. v. Texas Pac. Coal & Oil Co., (Tex.Civ.App.), 320 S.W.2d 915, (Refused, NRE). The judgment was therefore interlocutory and is not appealable until the claim against Mrs. Forkner is either severed or finally determined. Gallaher v. City Transp. Co. of Dallas, (Tex.Civ.App.), 262 S.W.2d 807, (Writ Refused); Myers v. Smitherman, (Tex.Civ.App.), 279 S.W.2d 173.

Since the record discloses that there was no final or appealable judgment this Court is without jurisdiction and it is our duty to dismiss the appeal on our own motion. C. & L. Supply Co. v. Kinnerly, (Tex.Civ.App.), 258 S.W.2d 102; Harris v. Superior Ins. Co., supra.

The appeal is dismissed.


author: STEPHENSON, Justice.

text:
    HEYDEN NEWPORT CHEMICAL CORPORATION, NEWPORT INDUSTRIES DIVISION v. SOUTHERN GENERAL INSURANCE COMPANY.
    No. 6670.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 27, 1964.
    Rehearing Denied March 25, 1964.

      Barnes & Barnes, Beaumont, for appellant.
    John H. Benckenstein, Beaumont, for appellee.
   STEPHENSON, Justice.

This is a suit to recover the cost of defending a prior suit. In the prior suit Heyden Newport Chemical Corporation, Newport Industries Division, hereinafter referred to as “Newport Industries” was named as a defendant in an action brought to recover damages for the death of Sam Traylor. Raymond Pickering, also named as a defendant in such prior suit, carried an automobile liability insurance policy with the Southern General Insurance Company, hereinafter referred to as “Southern General”. Newport Industries demanded that Southern General furnish it a defense in. such prior suit claiming to he an additional insured under the omnibus provision of the policy covering Pickering. Southern General furnished Pickering a defense but. refused to defend Newport Industries. Newport Industries had a policy of insurance with The Insurance Company of North America, who furnished this defense and joined Newport Industries in the present suit as a plaintiff. A jury being waived, the trial court granted judgment for Southern General.

The allegations in the prior suit were, in part as follows:

“II.
“Defendant, Newport Industries, is. a turpentine refining business along-with other related items. The raw materials from which said turpentine- and other items are refined are old pine stumps that are full of resin and are sometimes referred to as ‘rich" and ‘litered’ stumps. The principal' source or supply of said raw materials, or stumps is from the pine woods of' Louisiana and East Texas. The stumps, are purchased from lumber companies, dynamited and removed from the-ground with bulldozers, loaded by men onto trucks, and hauled to Newport Industries by means of trucks. At all' material times herein, Defendant, Raymond Pickering was an agent for New-port Industries, and his job was to purchase said stumps in the field, and get the said stumps to Newport Industries, at Oakdale, Louisiana. Defendant Raymond Pickering was the owner of' many trucks, which were used to haul said stumps and had employees to load and haul said stumps. Defendant-Arthur Marks job was to drive a truck into the forest, load it with stumps,, and haul the stumps to Newport Industries in Oakdale, Louisiana.
* * * * *
“IV.
“Heretofore, to-wit: On or about the 16th day of February, 1961, at about 6:30 A.M., Sam Traylor, a husband and father of plaintiffs was wrongfully lrilled when a motor vehicle driven by defendant Arthur Marks, who was then and there in the course of his .employment with defendant Raymond Pickering, collided with his pick-up truck on Highway #63, approximately Seven (7) miles east of Jasper, Texas. The said collision, made the basis of this suit, was brought about by one or more of the negligent acts on the part of the said Arthur Marks as hereinafter set out with particularity * * * At the time of said collision made the basis of this suit, the driver of the vehicle, Arthur Marks, was within the scope of his employment with defendant Raymond Pickering, and at the time of said collision under the exclusive direction of defendant Raymond Pickering."

The policy of insurance contained the following provisions:

“II. Defense, Settlement, Supplementary Payments: With respect to such insurance as is afforded by this policy for bodily injury liability and for prop■erty damage liability, the company •shall:
'“(a) defend any suit against the insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent
'“III. Definition of Insured: (a) With respect to the insurance for bodily injury liability and for property dam.age liability the unqualified word ‘insured’ includes the named insured and, if the named insured is an individual, Tiis spouse if a resident of the same 'household, and also includes any person ■while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or such spouse or with the permission of either.”

Newport Industries and The Insurance Company of North America contend Southern General is legally responsible for the cost of defending the prior suit because of the allegations contained in the petition filed in such prior suit. It is urged that the allegations in such prior petition, and the terms of the insurance policy are the only factors to be considered in determining this question of liability. Newport Industries and The Insurance Company of North America rely upon the line of cases cited in Maryland Casualty Co. v. Moritz, Tex.Civ.App., 138 S.W.2d 1095, and Travelers Ins. Co. v. Newsom, Tex.Civ.App., 352 S.W.2d 888, to sustain this position.

Southern General contends a court must look further than just the pleadings and determine whether the known facts are different from the alleged facts. Southern General relies upon Massachusetts Bonding & Ins. Co. v. Roessler, Tex.Civ.App., 112 S.W.2d 275, and Trinity Universal Ins. Co. v. Bethancourt, Tex.Civ.App., 331 S.W.2d 943, to sustain its position. It is argued that neither the Moritz Case, supra, nor the Newsom Case, supra, are cases, in which the known facts are different from the alleged facts. It is further argued that inasmuch as both Newport Industries and Southern General knew that Pickering was not acting as the agent for Newport Industries at the time of the collision, and therefore knew Newport Industries was not legally responsible for the use of the truck, that this was the determining factor as to whether Newport Industries should be defended by Southern General. We do not find it necessary to pass upon the question as to whether or not a trial court may look further than the pleadings in order to determine whether or not an insurance company must defend a named insured, in order to dispose of this case.

The terms of the Pickering Insurance Policy provide that the additional assured must be legally responsible for the use of the automobile. This policy does not say the additional insured shall be anyone alleged to be responsible for the use of the automobile, but specifically places it upon legal responsibility. Both Newport Industries and Southern General knew there was no legal responsibility on the part of Newport Industries and therefore that Newport Industries was not an additional insured.

Southern General owed Newport Industries a duty to defend them if Newport Industries was “legally responsible” for the use of the automobile. The trial court in this case found that Newport Industries judicially admitted it was not “legally responsible” for the use of the automobile, and the trial court in the prior suit, in effect, sustained this position by an order of dismissal with prejudice.

Despite the apparent conflict in the cases cited above, we hold the Moritz and Newsom cases have no application to the facts existing in this present case. It is pointed out that in each of these cases, the person sued was the named insured, and the question of the omnibus provision was not involved. To qualify as an additional assured under an omnibus clause of an insurance policy containing a provision that the person sued must be legally responsible for the use of the automobile involved, the court must look further than the allegations in the petition filed, and must actually determine the question of legal responsibility. This is true because it is in accordance with the actual terms of the insurance policy itself.

Judgment affirmed.