author: SHANNON, Justice.

text:
    FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF BRECKENRIDGE, TEXAS, Appellant, v. L. Alvis VANDYGRIFF, Savings and Loan Commissioner of Texas, et al., Appellees.
    No. 12870.
    Court of Civil Appeals of Texas, Austin.
    Jan. 24, 1979.
    Rehearing Denied Feb. 21, 1979.

      Robert B. Burns, Jr., John J. McKay, Austin, for appellant.
    John L. Hill, Atty. Gen., Thomas M. Pol-lan, Asst. Atty. Gen., Austin, for L. Alvis Vandygriff.
    Larry E. Temple, Austin, for Graham Sav. & Loan Assn.
   SHANNON, Justice.

Appellee, Graham Savings and Loan Association, filed an application with the Savings and Loan Commissioner of Texas to establish a branch office in Breckenridge, Stephens County, Texas. The Commissioner, after hearing, entered an order approving the application.

Appellant, First Federal Savings and Loan Association of Breckenridge, Texas, one of three protestants before the Commissioner, filed suit in the district court of Travis County to set aside the Commissioner’s order. The Commissioner and Graham filed answers in which they questioned, by special exception, the jurisdiction of the district court to entertain the cause for the reason that First Federal did not file a motion for rehearing with the Commissioner. After hearing, the district court entered an order dismissing appellant’s cause for want of jurisdiction.

In defense of that judgment, appellees Graham Savings and the Commissioner rely upon the Administrative Procedure and Texas Register Act, Tex.Rev.Civ.Stat.Ann. art. 6252-13a (Supp.1978). The relevant provisions of that Act relating to appeals from administrative orders are set out below:

“Sec. 16(c) A decision is final, in the absence of a timely motion for rehearing
“(e) Except as provided in Subsection (c) of this section [not applicable], a motion for rehearing is a prerequisite to an appeal. A motion for rehearing must be filed within 15 days after the date of rendition of a final decision or order . ” (Emphasis added)

First Federal never filed a motion for rehearing with the Commissioner. Because the filing of a motion for rehearing is a prerequisite to an appeal of the Commissioner’s order to district court under the Act, the district court properly dismissed First Federal’s administrative appeal for want of jurisdiction. Texas State Board of Pharmacy v. Kittman, 550 S.W.2d 104 (Tex.Civ.App.1977, no writ); Hurlbut v. State Board of Insurance, 555 S.W.2d 180 (Tex.Civ.App.1977, no writ); Tex. Alcoholic Bev. Commission v. Lancaster, 563 S.W.2d 380 (Tex.Civ.App.1978, no writ); Mahon v. Vandygriff, Docket No. 12,905, Tex.Civ.App. Austin, Jan. 10, 1979 (not yet reported).

First Federal claims that its suit in district court was not only an administrative appeal, but also was a proceeding in equity to set aside the administrative order. First Federal claims that Graham Savings practiced extrinsic fraud “. . .in connection with its application for a branch office .” before the Commissioner. For that reason, First Federal argues that the district court should have considered and passed on its contentions of fraud or, alternatively, the district court should have remanded the cause to the Commissioner to receive additional evidence pursuant to art. 6252-13a, § 19(d)(2).

A judgment obtained by extrinsic fraud may be vacated by a court of equity. U. S. v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93 (1878); Crouch v. McGaw, 134 Tex. 633, 138 S.W.2d 94 (1940); State v. Wright, 56 S.W.2d 950 (Tex.Civ.App.1933, no writ); 3 Freeman, Judgments, §§ 1231,1233 (5th ed. 1925). Generally, the mode for obtaining equitable relief from a judgment obtained by extrinsic fraud is by bill of review. See Crouch v. McGaw, supra. Appellant claims that the rule applicable to judgments pertains likewise to administrative orders. There is general authority to support appellant’s position. “Fraud vitiates even the most solemn judicial proceedings, at least to such extent as to render them subject to attack in a court of equity, and likewise vitiates the proceedings of any administrative tribunal created for the purpose of determining the rights of parties, whether committed by the administrative agency itself or by one of the parties to the administrative proceedings, at least where no method of direct review is available.” 2 Am. Jur.2d Administrative Law § 492 (1962).

We have found no case in Texas where an administrative order obtained by extrinsic fraud was vacated by a court of equity. Nothing in the Administrative Procedure and Texas Register Act contemplates such action. Even so, the Supreme Court has recognized the maxim that equity will not suffer a right to be without a remedy. Chandler v. Welborn, 156 Tex. 312, 294 S.W.2d 801 (1956); Miers v. Brouse, 153 Tex. 511, 271 S.W.2d 419 (1954). This Court has considered, in general, the equitable powers of the district court in the review of administrative proceedings in First Savings & Loan Ass’n. of Del Rio, Tex. v. Lewis, 512 S.W.2d 62 (Tex.Civ.App.1974, writ ref’d n. r. e.). [“The jurisdiction to review the orders of the Commissioner is vested in the district court of Travis County, a court with equitable powers. And though the district court must act within the bounds of the statute, it may draw upon its general equity powers and adjust its relief to the exigencies of the case in accordance with equitable principles governing judicial action.”] Since a court of equity may vacate a judgment for extrinsic fraud, surely that court may vacate an administrative order for extrinsic fraud. We have concluded that the district court, sitting as a court of equity, is empowered to set aside an administrative order obtained by extrinsic fraud.

Appellant’s claim of extrinsic fraud is based upon the following pleaded facts. After the Commissioner granted Graham’s application for a branch office, Graham, pursuant to agency rules, filed application with the Commissioner to change the street location of its newly acquired branch office. In response, First Federal filed a protest with the Commissioner to the proposed change.

First Federal also amended its petition in the district court suit to complain of the proposed site change. Appellant complained that Graham had never intended to remain at the original location approved by the Commissioner, but instead had planned, upon approval of the branch, to apply for a change of location more competitive with appellant. First Federal did not learn of Graham’s intention until more than fifteen days after the entry of the Commissioner’s order. According to First Federal, the agency rules permitting a change of office location for a branch are less stringent than are the rules governing the original establishment of a branch. First Federal maintains that Graham was attempting to obtain a branch office at the second location where it probably could not have met the heavier burden had it initially applied for its branch office at that site.

Appellees’ brief asserts that subsequent to the district court’s dismissal of the administrative appeal, the Commissioner, after hearing, granted Graham’s application for change of location. First Federal filed an administrative appeal of that order asserting the above fraud argument as one ground for invalidation of the order. That suit is presently pending in district court.

First Federal’s pleading, viewed most favorably to the pleader, Gulf, Colorado & Santa Fe Railway Co. v. Bliss, 368 S.W.2d 594 (Tex.1963), does not show extrinsic fraud. As the Supreme Court wrote in Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950):

“Fraud in its relation to attacks on final judgments is either extrinsic or intrinsic. Only extrinsic fraud will entitle a complainant to relief because it is a wrongful act committed ‘by the other party to the suit which has prevented the losing party either from knowing about his rights or defenses, or from having a fair opportunity of presenting them upon the trial. Such, for instance, as where he has been misled by his adversary by fraud or deception, did not know of the suit, or was betrayed by his attorney. In other words, fraud which denied him the opportunity to fully litigate upon the trial all the rights or defenses he was entitled to assert. ‘Intrinsic fraud’ in the procurement of a judgment is not ground, however, for vacating such judgment in an independent suit brought for that purpose. And within that term is included such matters as fraudulent instruments, perjured testimony, or any matter which was actually presented to and considered by the trial court in rendering the judgment assailed.’ ” (Emphasis supplied by Supreme Court)

Graham applied to establish a branch office at one location in Breckenridge. Graham did nothing to prevent First Federal from fully presenting its opposition to the application. First Federal pleaded that Graham acted in bad faith because it failed to reveal any plan or intent to seek a later relocation to a different site seven blocks away. Taking First Federal’s pleading to be true, Graham’s intent to try to relocate later does not constitute extrinsic fraud. All that Graham sought at the Commissioner’s hearing was permission to establish a branch office at 1116 West Walker Street. The only authorization granted by the Commissioner was the right to establish a branch at that place. Even if Graham harbored the intent to try to relocate some seven blocks away at a later time, it could not do so except in accordance with the rules of the Savings and Loan Department. Those rules required a new application and a new hearing which could be, and as we understand, was contested by First Federal.

The district court dismissed the administrative appeal for want of jurisdiction for the reason that no motion for rehearing was filed to the Commissioner’s order. We affirm that part of the judgment. We have held that the district court had the authority to entertain First Federal’s claim that the administrative order should be set aside for extrinsic fraud. We also have held on appeal that First Federal’s pleading did not state extrinsic fraud. We are of the opinion, however, that First Federal is entitled to an opportunity to replead extrinsic fraud, if it can. See Texas Department of Corrections v. Herring, 513 S.W.2d 6 (Tex.1974). We remand the cause of action in equity to the district court. If First Federal repleads and still fails to state extrinsic fraud, then the district court may dismiss the cause upon special exception.

Affirmed in Part and Reversed and Remanded in Part.

      . The preferable method to question jurisdiction is by plea to the jurisdiction rather than by special exception. Appellant made no complaint of the use of special exceptions.


source: Caselaw Access Project

license: Public Domain

text:
    NUECES COUNTY HOSPITAL DISTRICT, d/b/a Memorial Medical Center of Corpus Christi, Appellant, v. TEXAS HEALTH FACILITIES COMMISSION et al., Appellees.
    No. 12906.
    Court of Civil Appeals of Texas, Austin.
    Jan. 24, 1979.
    Rehearing Denied Feb. 21, 1979.

      Duane F. Emmert, McGinnis, Lochridge & Kilgore, Austin, for appellant.
    John L. Hill, Atty. Gen., Carla J. Cox, Asst. Atty. Gen., Austin, for Texas Health Facilities Commission.
    Fred E. Davis, David M. Davis, Davis, Davis & Sharp, Austin, for Spohn Hospital of Corpus Christi.
   SHANNON, Justice.

Appellant Nueces County Hospital District, doing business as Memorial Medical Center of Corpus Christi, appeals from the judgment of the district court of Travis County which affirmed an order of appellee Texas Health Facilities Commission. The Commission’s order granted the application of appellee Spohn Hospital for a certificate of need authorizing the purchase and installation of a computerized tomographic whole body scanner. In another order the Commission denied Memorial’s application for a certificate of need for a similar scanner. We will affirm the judgment of the district court.

For purposes of this opinion it is accurate to state that Spohn filed an application with the Commission on April 7, 1977, to purchase a scanner to be placed and operated in the hospital in Corpus Christi. Memorial filed its application on May 6, 1977, with the Commission for a similar scanner to be placed and operated at its hospital. Pursuant to its rules, the Commission joined the applications as “potentially competing applications” and proceeded to consider the applications in a single hearing.

The parties presented evidence to the Commission pertaining to the need in the Corpus Christi community for a body scanner. The position of the parties before the agency was that there was need for two scanners, one at each hospital.

After entry of the Commission’s orders, Memorial filed an administrative appeal in the district court of Travis County. In its petition Memorial attacked both the order approving Spohn’s application and the order denying its own application. Pursuant to Spohn’s motion, the district court severed that part of the administrative appeal complaining of the approval of Spohn’s certificate from that part complaining of the denial of Memorial’s certificate, and entered judgment affirming the Commission’s approval of Spohn’s certificate. More specifically, the district court concluded in its judgment that the Commission’s order granting the requested authority to Spohn was supported by substantial evidence and was not arbitrary or capricious. It is that judgment now under consideration in this appeal.

After severance of Spohn’s cause from that of Memorial, the primary task of the district court in the severed cause was to determine whether the Commission’s approval of Spohn’s certificate was supported by substantial evidence. Upon appeal, the main issue presented for review is whether the district court correctly determined that the Commission’s approval of Spohn’s certificate was supported by substantial evidence.

An appeal from an order of the Commission is governed by the substantial evidence rule. A statement of the law relating to judicial review of agency orders is found in a recent opinion of this Court, Mutual Building and Loan Association v. Lewis, 572 S.W.2d 771 (Tex.Civ.App.1978, no writ), and need not be repeated.

The district court correctly concluded that there was substantial evidence in support of the Commission’s order approving the Spohn application. In fact, during the agency hearing, Memorial’s position was that there was substantial evidence to support approval by the Commission of certificates for both Spohn and Memorial. For example, Dr. Franz J. Hallermann, Memorial’s witness, testified on cross-examination, “We need two scanners and we need them badly. We need one at Spohn and we need one at Memorial.” At least four other of Memorial’s witnesses testified to the same effect. Memorial is hardly in a position now to claim that there is not substantial evidence to support the Commission’s order approving Spohn’s certificate.

Memorial complains that the district court erred in entering the order of severance. Texas R.Civ.P. 41 provides that, “[a]ny claim against a party may be severed and proceeded with separately.” A severance is appropriate if a controversy involves two or more separate and distinct causes of action, each of which might constitute a complete lawsuit within itself. Hall, Severance and Separate Trial in Texas, 36 Texas L.Rev. 339 (1958). An examination of the transcript shows that the administrative appeal involved two or more separate and distinct causes of action and was therefore subject to severance. In its petition Memorial pleaded:

“The first cause of action alleged herein is a suit for judicial review of the order of the Texas Health Facilities Commission dated December 8, 1977, granting a certificate of need to Spohn Hospital.
“This second cause of action is one for judicial review of the order of the Commission dated December 8, 1977, which denies Plaintiff [Memorial] authority to purchase, install and operate a computerized whole body tomographic scanner at its medical center in Corpus Christi, Tex-

Moreover, trial courts have broad discretion in the matter of severance of causes, and an order of severance will not be disturbed on appeal except for abuse of discretion. Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677 (1956); Hamilton v. Hamilton, 154 Tex. 511, 280 S.W.2d 588 (1955). Appellant has not shown abuse of discretion.

Memorial complains by point of error three that the district court should have reversed the Commission’s order approving Spohn’s certificate for the reason that the Commission failed to give notice to the parties that their applications would be considered “mutually exclusive.”

The Commission, before hearing and presentation of evidence relative to community need, could hardly know that concurrently filed applications would be mutually exclusive of one another. Only after hearing and consideration of the evidence could the Commission determine that the community would need a body scanner. If there were such a need in the community, the Commission would be then in a position to determine how many scanners were needed.

Even so, under the circumstances, Memorial knew or should have known that the Commission could conceivably grant only one application for a scanner. Commission Rule 902(c) enables the Commission to join “potentially competing” applications for one hearing. Under the authority of its rule, the Commission notified Spohn and Memorial that the applications had been joined as “competing applications.” In pleadings filed with the agency Memorial alleged that its application was “competing in nature” with that of Spohn. After the Commission’s joinder of the applications, Spohn filed a motion for severance. Memorial answered the motion for severance and urged that Spohn’s motion be denied and that “. . . the competing applications proceed to hearing together . . . ” (Emphasis added) Knowing that the Commission might grant only one application, Memorial had ample opportunity to respond to that possibility by presenting evidence and by arguing to the Commission that its application should be favored over Spohn’s. Point of error three is overruled.

The district court’s affirmance of alleged arbitrary action by the Commission in the denial of Memorial’s certificate is the subject of other points of error. Memorial complains that there was no evidence that only one scanner was needed. Memorial also claims error in that the Commission made no findings as to why Memorial’s certificate was not granted. These points of error are overruled because the denial by the Commission of Memorial’s certificate was not treated by the judgment presently on appeal. We understand that there is an appeal now pending involving the judgment of the district court in the phase of the suit which considered the Commission’s denial of Memorial’s application. Should the questions posed by these points be presented in that appeal, they will be considered at that time.

The judgment is affirmed.

Affirmed.


author: ROBINSON, Chief Justice.

text:
    Billie Sue GAYLER, Appellant, v. Donald Eugene RENFRO, Appellee.
    No. 8924.
    Court of Civil Appeals of Texas, Amarillo.
    Jan. 24, 1979.

      Miller & Miller (John H. Tull, Jr.), Amarillo, for appellant.
    Fitzjarrald & Poole (J. 0. Fitzjarrald), Amarillo, for appellee.
   ROBINSON, Chief Justice.

Plaintiff, Billie Sue Gayler, instituted suit to set aside a ruling of the Industrial Accident Board awarding death benefits under the Workers’ Compensation Act for the death of her son, Donald David Gayler. One-half of the total benefits was awarded to plaintiff Billie Sue Gayler; the remaining half was awarded to Donald Eugene Renfro, the deceased’s father. Plaintiff sought recovery of the one-half benefits awarded the father. The trial court, in an interpleader suit by the insurance carrier, entered judgment that plaintiff take nothing and the father recover his one-half benefits. Plaintiff appeals. Affirmed.

The evidence was stipulated to by the parties. The natural parents of the deceased are plaintiff, Billie Sue Gayler, and Donald Eugene Renfro. (Donald Eugene Renfro is defendant in interpleader and will be referred to in this opinion as defendant.) Plaintiff and defendant were divorced in 1953. Deceased did not see his father after the age of seven years. Deceased had never married.

Deceased was killed on February 26,1976. On April 26, 1976, the first claim for workers’ compensation benefits was filed. This claim listed only Billie Sue Gayler under “names and addresses of beneficiaries.” The final paragraph of the claim contained the recitation: “This claim for compensation, with respect to such injury and because of the death of the deceased, is made in behalf of and for each and all of the legal Beneficiaries of the deceased, as well as by and for the undersigned, he herein acting for himself and such legal Beneficiaries.”

It is stipulated that the claim was settled by a compromise settlement agreement. At the first pre-hearing conference on July 11, 1976, one-half of the total death benefits was awarded to plaintiff pursuant to the agreement. Above the endorsement on the check issued by the insurance company to plaintiff as payment under the settlement agreement was written: “Endorsement of this draft by the parties below does not waive any portion of any benefits as yet unpaid, if any, relating to said claim.”

On July 30, 1976, plaintiff filed the second claim for workers’ compensation benefits. This claim listed Billie Sue Gayler and Donald Eugene Renfro as beneficiaries, but recited that it was filed only on behalf of Billie Sue Gayler. On January 28, 1977, the second pre-hearing conference was held and the Board ordered one-half of the total benefits be paid to Donald Eugene Renfro. This order was made final at the formal hearing.

Plaintiff gave notice that she would not abide by the ruling of the Board, and filed suit against the insurance carrier to recover the one-half benefits ordered paid to defendant. The insurance carrier, the original defendant, filed an interpleader action and tendered the one-half of the benefits still in question into the registry of the court. Judgment was rendered for the insurance company on its interpleader suit. No complaint is made of that action. Plaintiff appeals from the portion of the judgment finding that defendant was the proper beneficiary of the disputed one-half of the benefits.

Plaintiff contends that Donald Eugene Renfro failed to file a claim with the Industrial Accident Board within the required time. The workers’ compensation statute requires that, where injury resulted in death of the employee, a claim for compensation must be filed by his beneficiaries within six months after his death. Tex. Rev.Civ.Stat.Ann. art. 8307, § 4a (Vernon 1967).

A claim for compensation filed with the Industrial Accident Board, in the form prescribed by law, gives the Board full jurisdiction to determine all issues of fact and law arising on the claim and brings before the Board all statutory claimants. Commercial Standard Ins. Co. v. Austin, 128 S.W.2d 836, 838 (Tex.Civ.App.-Beaumont 1939, writ dism’d judgmt cor.); Traders & General Ins. Co. v. Boysen, 123 S.W.2d 1016, 1027 (Tex.Civ.App.-Beaumont 1939, writ dism’d judgmt cor.). The statute does not require that each beneficiary file a claim; a claim filed by one beneficiary on behalf of himself and other beneficiaries is sufficient to invoke the jurisdiction of the Board. Pruitte v. Ocean Accident & Guarantee Corp., 40 S.W.2d 254, 258 (Tex.Civ.App.-Texarkana), rev’d on other grounds, 58 S.W.2d 41 (Tex.Comm’n App.1933).

The Board acquires jurisdiction over a beneficiary when two factors are satisfied: (1) knowledge by the Board of the beneficiary’s existence, and (2) a timely claim filed on behalf of that beneficiary or on behalf of all beneficiaries. See Texas Employers’ Ins. Ass'n v. Williams, 57 S.W.2d 218 (Tex.Civ.App.-Dallas 1933, no writ); Traders & General Ins. Co. v. Boysen, supra; Federal Underwriters Exchange v. Walker, 134 S.W.2d 388 (Tex.Civ.App.-Austin 1939, writ dism’d by agr.). See also Security Union Ins. Co. v. Reed, 42 S.W.2d 494 (Tex.Civ.App.-Beaumont 1933, no writ); Consolidated Underwriters v. Adams, 140 S.W.2d 221 (Tex.Civ.App.-Texarkana 1940, writ dism’d judgmt cor.).

In the case at bar the first claim was tendered on behalf of all the beneficiaries, the second informed the Board who the beneficiaries were. The jurisdictional requirements were satisfied.

We overrule plaintiff’s next contention that there is no evidence to support a finding that the defendant is entitled to one-half of the death benefits. Death benefits, under the workers’ compensation statute, are paid to parents without regard to the question of dependency. Tex.Rev.Civ. Stat.Ann. art. 8306, § 8a (Vernon Supp. 1978-1979). It is undisputed that Donald Eugene Renfro was the natural father of deceased.

There is another reason why plaintiff cannot recover. The execution, filing, and approval of the compromise agreement between plaintiff and Twin City Fire Insurance Company bars further recovery by her. It is well established that a compromise settlement agreement, when approved by the Board, is binding upon the parties to it unless and until the agreement is lawfully set aside. Moore v. Lumbermen’s Mutual Casualty Co., 533 S.W.2d 171, 173 (Tex.Civ.App.-Amarillo 1976, writ ref’d n. r. e.). The bar arose at the time the compromise was approved; therefore, we overrule the plaintiff’s contention that the language written above her endorsement on the check pursuant to the settlement prevented the settlement from being a bar to future recovery.

The foregoing holdings are dispositive of this appeal. We do not reach plaintiff’s remaining points of error. The judgment of the trial court is affirmed.


author: HUGHES, Justice.

text:
    Carol COLLINS, Appellant, v. RYON’S SADDLE & RANCH SUPPLIES, INC., Appellee.
    No. 18048.
    Court of Civil Appeals of Texas, Fort Worth.
    Jan. 25, 1979.
    Foster & Garrett and John B. Foster, Arlington, for appellant.
    McDonald, Sanders, Ginsburg, Phillips, Maddox & Newkirk and Sam J. Day, Fort Worth, for appellee.
   OPINION

HUGHES, Justice.

Carol Collins has appealed a judgment granting a temporary injunction against her and in favor of Ryon’s Saddle & Ranch Supplies, Inc.

We affirm.

Collins, who worked for Ryon from December 3, 1976 to January 17, 1978, as a designer of custom made western wear, left Ryon to work for Dickson-Jenkins, a competitor of Ryon. Ryon sued Dickson-Jenkins and Collins for unfair trade practices, conspiracy, violation of fiduciary duties and wrongful appropriation. After a temporary injunction hearing before the trial court, the court granted the temporary injunction prayed for by Ryon as to Collins but denied as to Dickson-Jenkins. This injunction prohibited Collins from soliciting or contacting directly or indirectly all persons who placed orders with Ryon during Collins’ term of employment.

Ryon’s complaint is that Collins created for herself a file of customers’ orders which had their addresses, detailed measurements and other details; that she took these Xeroxed order copies with her to Dickson-Jenkins for contact and sale purposes.

Collins admitted to taking 69 such order copies to use in contacting Ryon’s customers and did, in fact, contact some. Patricia Wheeler, a worker who left with Collins to work for Dickson-Jenkins, testified that Collins had a stack of such orders of three or four times as many as 69. Elizabeth Penwright, a visitor at Dickson-Jenkins, testified to seeing five or six times as many as 69.

Wheeler testified also that when she went to work at Dickson-Jenkins, under Collins’ supervision, she used the Ryon orders to contact Ryon customers to persuade them to order from Dickson-Jenkins. Some Ryon customers placed orders with Dickson-Jenkins through Collins.

Collins, in her four points of error, avers that trial court abused its discretion in that: Point I, Collins is no longer employed by Ryon; Point II, the injunction issued exceeds the scope of findings of the court since no customer lists or orders were in evidence other than the 69; Point III, because there is no evidence that the customer orders and lists were trade secrets; and Point IV, because there was no showing that claimed past acts of contacting customers would recur.

We overrule all four of Collins’ points of error.

When no findings of fact or conclusions of law are filed, as here, we must consider the facts in the light most favorable to upholding the order of the trial court. International Union of Operating Engineers v. Cox, 148 Tex. 42, 219 S.W.2d 787 (1949). There being no clear abuse of discretion shown in this case, its order must stand. Arrow Chemical Corporation v. Anderson, 386 S.W.2d 309 (Tex.Civ.App.—Dallas 1975, writ ref’d n. r. e.). Even though no written contract is involved, an employee cannot use confidential information or trade secrets acquired while working for her former employer. Johnston v. American Speedreading Academy, Inc., 526 S.W.2d 163 (Tex.Civ.App.—Dallas 1975, no writ); Welex Jet Services, Inc. v. Owen, 325 S.W.2d 856 (Tex.Civ.App.—Fort Worth 1959, writ ref’d n. r. e.).

“Trade secret” as defined in 4 Restatement of Torts § 757 (1939):

“b. Definition of trade secret. A trade secret may consist of any formula, pattern, device or compilation of information which is used in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. It may be a formula for a chemical compound, a process of manufacturing, treating or preserving materials, a pattern for a machine or other device, or a list of customers. . . . ” (Emphasis Added.) Hyde Corporation v. Huffines, 158 Tex. 566, 314 S.W.2d 763, 776 (1958).

The information contained in the customer orders does give Ryon an advantage over competitors. Trial court had ample cause to grant the temporary injunction. There was testimony to indicate Collins used her position of confidence at Ryon’s to abuse same by pirating Ryon’s files with the obvious intent to use it to her advantage.

On the basis of the testimony, trial court was authorized to conclude that a continuation of the use of such information was probable. This, even though Collins had indicated an intention to refrain. Alamo Title Company v. San Antonio Bar Association, 360 S.W.2d 814 (Tex.Civ.App.—Waco 1962, writ ref’d n. r. e.).

Since there is evidence of three to four times and five or six times as many orders (by two witnesses) in Collins’ hands, in addition to the 69 orders exhibited in evidence, the trial court was within its discretion in enjoining Collins as to all customers during her period of employment with Ryon. This would be to insure that Collins could not benefit from breach of the confidential relationship. Elcor Chemical Corporation v. Agri-Sul, Inc., 494 S.W.2d 204 (Tex.Civ.App.—Dallas 1973, writ ref’d n. r. e.).

We hold Collins is sufficiently apprised by trial court’s order and that it is not so broad as to amount to such a denial of her rights as to cause an improper imposition upon her.

Affirmed.


author: BISSETT, Justice.

text:
    Ramiro GARZA, as next friend for his minor son, Hugo Garza, Appellant, v. EDINBURG CONSOLIDATED INDEPENDENT SCHOOL DISTRICT et al., Appellees.
    No. 1399.
    Court of Civil Appeals of Texas, Corpus Christi.
    Jan. 25, 1979.

      Preston Henrichson, Henrichson & Smith, Edinburg, for appellant.
    William J. Quackenbush, Ronald D. Zipp, Pena, McDonald, Prestía & Zipp, Edinburg, Paul D. O’Leary, O’Leary, Sanchez & Benton, Brownsville, for appellees.
   OPINION

BISSETT, Justice.

In this appeal from a summary judgment for Edinburg Consolidated Independent School District, defendant below, the issue before this Court is whether the doctrine of governmental immunity should bar a common law negligence suit by a high school student against a school district for injuries received while playing football. We hold that it should.

The case at bar arises out of a negligence suit brought by Ramiro Garza, as next friend for his minor son, Hugo Garza, against the Edinburg Consolidated Independent School District, three football coaches and a football trainer, all of whom were employees of the defendant school district at the time in question. The plaintiff, a member of the Edinburg High School’s freshman football team, alleged that he was injured during the 1975 football season as the result of negligent supervision, instruction, and coaching by the school district’s employees. The defendants moved for a summary judgment on the ground that they were protected from suit under the doctrine of governmental immunity. The plaintiff answered this motion by contending that the school’s football program constituted a proprietary activity, and thus did not enjoy governmental immunity. The trial court, after considering the parties’ summary judgment evidence, concluded that the defendants were immune from liability under the provisions of Tex.Rev.Civ.Stat.Ann., art. 6252-19, the “Texas Tort Claims Act”. We agree.

Summary judgment was rendered in favor of the coaches and the trainer on May 8, 1978. Plaintiff has not appealed from that judgment. This appeal is limited to the summary judgment which was rendered in favor of the Edinburg Consolidated Independent School District on May 24, 1978.

The material facts are not in dispute. Plaintiff, a student at the Edinburg High School during the scholastic year 1975-1976, was injured while playing football in the fall of 1975. At the time of his injury, he was a member of the school’s freshman football team. The interscholastic football program at Edinburg High School is voluntary, non-credit, and completely extra-curricular. Football practice at the school was conducted before and after regular school hours.

The true purpose of summary judgments is the elimination of patently unmeritorious claims or untenable defenses. Swilley v. Hughes, 488 S.W.2d 64, 68 (Tex.1972). In our opinion, the case at bar illustrates quite plainly an unmeritorious claim. The law is well settled in this state that a school district is an agency of the state and, while exercising governmental functions, is not answerable for its negligence in a suit sounding in tort. Barr v. Bernhard, 562 S.W.2d 844 (Tex.1978). The plaintiff seeks to avoid the preclusive effect of this established doctrine on his cause of action against the school district by arguing that this Court should declare a high school’s interscholastic football program to be a proprietary activity.

In Braun v. Trustees of Victoria Independent School District, 114 S.W.2d 947 (Tex.Civ.App.—San Antonio 1938, writ ref’d), the court stated:

“Appellant attempts to compare an independent school district with a city or town and cites cases involving the liability of cities and towns. There is quite a distinction between a school district and a city or town. Cities and towns exercise a dual function, to wit, governmental and proprietary, while a school district is purely a governmental agency and exercises only such powers as are delegated to it by the state. It performs no proprietary functions which are separate and independent of its governmental powers.”

Similarly, in Treadaway v. Whitney Independent School District, 205 S.W.2d 97 (Tex.Civ.App.—Waco 1947, no writ), the court stated:

“The question is whether the school district was, at the time and question, functioning as a governmental agency or was acting in a proprietary capacity, as contended by plaintiffs. .
******
There are many respects in which a city can act in a proprietary capacity, but it is hard to imagine how a school district could act in such a capacity, the purpose for which it is created being purely governmental, and when carrying out the functions for which it was thus created it could only act as an agent of the state.”

The courts of this State have long ago laid down the rules for determining whether a particular activity by the State, a city, a school district or other agency of the State, is governmental or proprietary. See generally, as well as the authorities cited, Sarmiento v. City of Corpus Christi, 465 S.W.2d 813 (Tex.Civ.App.—Corpus Christi 1971, no writ). As a general rule, 1) activities which are carried on pursuant to the State’s obligation for the general welfare of the public generally, or which are voluntarily assumed for the benefit of the public at large rather than for the primary benefit of its residents, are performed in a governmental capacity and as a governmental function; 2) activities which are performed which are primarily for the benefit of the inhabitants of the affected entity or agency are proprietary in nature.

Our public school system is not of mere local concern, rather, it is statewide in scope. A school district is an integral part of the statewide public school system, and its activities, including its participation in the state interscholastic football program, as is the case here, even though performed within the territorial limits of the district, does not render those activities local in nature. Instead, the effect and importance of such activities is statewide, and such activities are performed for the benefit of all the people in this State. See Mumme v. Marrs, 120 Tex. 383, 40 S.W.2d 31 (1931); Treadaway v. Whitney Independent School District, supra.

Plaintiff contends that the recreational and financial aspects of the defendant school district’s football program constitute the football program an activity that is proprietary in nature. We agree with plaintiff that the school district’s football program is both voluntary and extra-curricular; we further agree that the program is financed in considerable proportion from gate receipts collected at games; and, we also agree with plaintiff that the vast majority of those attending the games is made up of persons who reside within the territorial limits of the Edinburg Consolidated Independent School District. However, these facts do not make the football program essentially either recreational or profit-motivated. The primary purpose of the football program is the educational benefit accruing to the students involved in the program. Nothing could be more in tune with the governmental function of school districts. The aspects asserted by plaintiff do not make the football program of the defendant school district an activity that is proprietary in nature. We hold that a public high school’s interscholastic football program is, as a matter of law, a governmental function of the school district.

Plaintiff’s points of error are overruled. The judgment of the trial court is AFFIRMED.


author: HALL, Justice.

text:
    LEDFORD’S PERFORMANCE CENTER, Appellant, v. David RHODEN, Appellee.
    No. 6006.
    Court of Civil Appeals of Texas, Waco.
    Jan. 31, 1979.
    Rehearing Denied Feb. 22, 1979.
    Frank B. McGregor, Hillsboro, for appellant.
    Jim Meyer, Dunnam, Dunnam & Dun-nam, Waco, for appellee.
   HALL, Justice.

Appellee David Rhoden filed this suit against appellant Ledford’s Performance Center seeking treble damages and attorneys’ fees under the Deceptive Trade Practices Act (V.T.C.A., Bus. & C. § 17.41 et seq.) upon pleadings of false, misleading, and deceptive representations and warranties allegedly made by appellant in the course of its repair of appellee’s Chevrolet Corvette automobile. Trial to a jury resulted in a judgment on the verdict in favor of appellee for $2,575.83. We affirm the judgment.

Appellant seeks reversal under three points of error asserting (1) that certain special issues in the court’s charge did not submit ultimate fact questions to the jury, and (2) that the court erred in failing to give certain instructions to the jury. Those complaints must be overruled because appellant has brought forward only a partial statement of facts. A complaint that the court erroneously gave or refused to give an instruction, or that it erroneously submitted or failed to submit a special issue, ordinarily cannot be reviewed without a complete statement of facts. Schrader v. Garcia, 516 S.W.2d 690, 691 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n. r. e.); Duffey v. Hanes, 474 S.W.2d 621, 623 (Tex.Civ.App.—Dallas 1971, writ ref’d n. r. e.); 4 Tex.Jur.2d (Rev.1974), Part 1, p. 235, Appeal and Error, Civil Cases, § 393. There are no exceptions to the application of that rule in our case.

Additionally, appellant did not object to the failure of the court to give the instructions about which complaints are now made, nor did it tender the instructions for inclusion in the charge. Accordingly, those complaints are waived. Rule 279, Vernon’s Tex.Rules Civ.Proc.; State v. Harrington, 407 S.W.2d 467, 479 (Tex.Sup.1966).

The judgment is affirmed.


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Gene DAVIS et ux., Appellees.
    No. 8931.
    Court of Civil Appeals of Texas, Amarillo.
    Jan. 31, 1979.
    Rehearing Denied Feb. 26, 1979.

      Underwood, Wilson, Sutton, Berry, Stein & Johnson, H. C. Pipkin, Amarillo, for appellant.
    Lovell, Lyle, Renfer, Minkley & Moore, Jim Duvall, Dumas, for appellees.
   ROBINSON, Chief Justice.

This is a suit on an automobile accident insurance policy issued by defendant, State Farm Mutual Automobile Insurance Company, to plaintiffs, Gene Davis and wife, Marie Davis, for death benefits on their son, James Rodney Davis, deceased. The policy in question excluded James Rodney Davis by name from insurance coverage during such time as he was operating an automobile. The sole issue at trial was whether James Davis was the driver of the car involved in the accident. The jury found that he was not the driver and the trial court rendered judgment for plaintiffs. Defendant appeals, challenging the legal and factual sufficiency of the evidence to support the jury finding. Affirmed.

Plaintiffs have the burden of proving that the loss was not within the exclusion of policy coverage. Travelers Indemnity Co. v. McKillip, 469 S.W.2d 160, 162 (Tex.1971); Hardware Dealers Mutual Insurance Co. v. Berglund, 393 S.W.2d 309, 311 (Tex.1965). In determining the legal sufficiency of the evidence we must consider only the evidence which supports the jury’s findings and disregard all evidence to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). In determining whether there is factual sufficiency of the evidence we must consider and weigh all of the evidence in the case. If in light of all the evidence the finding is not manifestly unjust, the point of error is overruled. Id. at 823; In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).

In the case before us the only evidence was circumstantial. An ultimate fact may be conclusively shown by wholly circumstantial evidence. Prudential Insurance Co. of America v. Krayer, 366 S.W.2d 779, 780 (Tex.1963). The jury is the judge of the facts and circumstances proven and may also draw reasonable inferences and deductions from the evidence adduced. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273, 276 (1958). The circumstances relied on must have probative force sufficient to constitute a basis of legal inference, they must be reasonably satisfactory and convincing, and they must not be equally consistent with the nonexistence of the ultimate fact. Mobile, Inc. v. Cone, 457 S.W.2d 175, 176 (Tex.Civ.App.—Tyler 1970, writ ref’d n. r. e.). The plaintiffs’ burden of proof is a preponderance of the evidence. This rule does not require the quality of absolute certainty nor does it require that the plaintiffs exclude every other possibility. McMillen Feeds, Inc. of Texas v. Harlow, 405 S.W.2d 123, 130 (Tex.Civ.App.—Austin 1966, writ ref’d n. r. e.). To so hold would impose upon them the burden of establishing their case beyond a reasonable doubt. Bock v. Fellman Dry Goods Co., 212 S.W. 635, 636 (Tex.Com.App.1919, judgmt adopted). All that is required is that the circumstances point to the ultimate fact sought to be established with that degree of certainty as to make the conclusion reasonably probable. McMillen Feeds, Inc. of Texas v. Harlow, supra, at 130; see Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792 (1951).

The evidence adduced shows that on October 1, 1976, Danny McMillan, Bud Ruck and Loretta Croutch joined decedent James Davis in the parking lot of The Depot Restaurant in Dumas, Texas. The four got into James’ Volkswagen automobile and rode around from 10:00 or 10:30 p. m. to 12:30 a. m. Danny and Bud alternated as drivers. James did not drive but sat with Loretta in the back seat. Loretta left the group first. When Danny got out at The Depot around 12:30 a. m. Bud started driving again and James moved to the front passenger seat. At approximately 12:35 a. m., David Davis, James’ brother, saw Bud driving James’ Volkswagen. As David drove up behind the Volkswagen, James stuck his head out of the passenger side of the car and waved at him. David turned to go home and last saw them as they were leaving the city limits of Dumas, around 12:40 a. m., traveling north on U.S. Highway 287 about fifty-five miles per hour.

About fifty-five minutes later, 1:35 a. m., the Volkswagen, southbound on U.S. Highway 287, was involved in a head-on collision with a tractor-trailer rig, at a point four miles sought of Stratford, Texas, and approximately thirty-two miles north of Dumas, Texas. The Volkswagen crossed the center line of the highway into the northbound lane of traffic. The right front of the Volkswagen impacted with the right front corner of the tractor-trailer rig, shearing off its right front wheel. The main remnant of the Volkswagen was knocked about 211 feet in a northeastern direction after impact, its top, hood, wheels, right side and door torn off and the car completely crushed. Both James and Bud were killed and their bodies thrown from the car. James’ body was found seventeen feet off the east edge of the highway between the point of impact and the main remnant of the Volkswagen, ninety-six feet southeast of the Volkswagen. Bud’s body was found in the northbound lane of the highway, 121 feet northwest of the Volkswagen. There is photographic evidence from which the jury could conclude that James’ body was more severely mangled than Bud’s body.

The two Highway Patrol troopers and the Deputy Sheriff of Sherman County who investigated the accident testified at trial that they each observed with a flashlight a patch of brown hair, about the size of a silver dollar, impaled on the end of the steering column. The steering column had been mashed to the floor. One of the troopers picked up this piece of brown hair for closer inspection and then laid it down somewhere in the car. James had brown hair, Bud had bleached blond hair. None of the officers observed any blond hair in the car.

The Volkswagen wreckage was taken to Stratford around 5:00 a. m. and later that day hauled to Dumas on a dolly by James Batts, the uncle of James Davis. Batts testified that in cleaning the wreckage he found: (1) a large piece of scalp with brown hair, three or four inches in diameter, on the passenger side of the car, in the back, stuck against the side of the car; (2) three teeth, which he recognized as James’ teeth, still joined in a piece of bone, in the back passenger side; (3) a big chunk of blond hair on the post on the driver’s side of the vehicle; and (4) a lot of brown hair on the tape deck which he found in the back passenger side.

After hearing this evidence the jury found that James Davis was not the driver of the Volkswagen at the time of the collision. An appellate court may not substitute its judgment for that of a jury on a disputed issue of fact. Royal v. Cameron, 382 S.W.2d 335, 340 (Tex.Civ.App.—Tyler 1964, writ ref’d n. r. e.). Our duty is to determine whether the evidence is legally sufficient to support submission of the issue to the jury and factually sufficient to support the jury finding. Applying the appropriate standards we conclude that there is some evidence to support the submission of the issue to the jury. After a careful consideration of all the evidence we are of the opinion that the evidence is not factually insufficient to support the jury finding.

Each of appellant’s points of error is overruled. The judgment of the trial court is affirmed.


author: SPURLOCK, Justice.

text:
    Kathy LINCOLN, Individually and as next friend of her daughter, Kelly Lincoln, Appellant, v. MID-CITIES PEE WEE FOOTBALL ASSOCIATION, Appellee.
    No. 18146.
    Court of Civil Appeals of Texas, Fort Worth.
    Feb. 1, 1979.

      Jacobs, Taylor & Cocanower and S. C. Cocanower, Fort Worth, for appellant.
    Maynard & Farris and David F. Farris, Fort Worth, for appellee.
   OPINION

SPURLOCK, Justice.

This is an appeal from the denial of a temporary injunction.

Kelly Lincoln is an eight year old female who played tackle football on the Pirate’s team, in one of the Mid-Cities Pee Wee Football Association’s leagues during its 1977 football season. Pee Wee is a nonprofit Texas corporation which operates football leagues for youths in the Hurst-Euless-Bed-ford area of Tarrant County, Texas. Kelly was one of four females who played during the 1977 season. She played without injury and was rated by her coach as an average player.

After the 1977 season ended, Pee Wee’s board of directors, consisting primarily of the coaches, voted to change the league’s structure. It decided to restrict participation in the existing leagues to male players, and to form a separate league for female players. Prior to the start of its 1978 season, Pee Wee held registration for all players. Because only eight females signed up to play in the girl’s league, Pee Wee dropped it. However, it continued to limit participation in the existing leagues to males only.

Kelly, through her mother as next friend, instituted this action against Pee Wee seeking temporary and permanent injunctions to enjoin Pee Wee from excluding her, or alternatively to enjoin Pee Wee from the free use of public school facilities. Pee Wee teams practice and play games on fields it constructed and maintains on property owned by the Hurst-Euless-Bedford Independent School District. The trial court held a hearing to show cause why Pee Wee should not be temporarily enjoined from excluding Kelly from participation until a final hearing is held on whether she is entitled to a permanent injunction or other relief. The trial court rendered an order denying her a temporary injunction. She appeals this denial.

Kelly claims that Pee Wee’s refusal to allow her to play in the male’s league violates Tex.Const. art. 1, § 3a. This provision is commonly referred to as the Texas Equal Rights Amendment (ERA). The purpose of Kelly’s request for a temporary injunction was to allow her to play in the league during the 1978 season while her petition for permanent injunction and other relief was pending. Because the season ended before this case was submitted for our consideration, we inquired upon oral argument whether questions concerning the propriety of trial court’s denial of the temporary injunction were moot.

Pee Wee indicated that it would not change its policy of excluding females from participation in its existing leagues. Kelly indicated that she will want to play football during the 1979 season. We note the possibility exists that her petition for permanent injunction, which is still pending, may not be litigated to a final judgment by the time the 1979 season begins. Further, this case presents substantial constitutional questions in which there is presently much public interest. For these reasons we are convinced that this appeal is not moot.

Tex.Const. art. 1, § 3a provides:

“Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin. This amendment is self-operative.” (Emphasis added.)

A cause of action for sex discrimination under the amendment has two basic elements. One, that the action alleged to be discriminatory denies equality because of sex. Two, that this action occurred under the law. Pee Wee freely admits that Kelly is denied the opportunity to play solely because she is female. Therefore, because of its admission no question concerning whether the discrimination is based on sex is raised and it needs no further discussion. The problem is whether Pee Wee’s action is “under the law”.

Kelly claims that the trial court abused its discretion in refusing to grant a temporary injunction because it erred in holding that Pee Wee’s action was private conduct not encouraged by, enabled by, or closely interrelated in function with state action. Her position is that the trial court erroneously required her to prove state action when none is required by the Texas ERA. She correctly points out that the concept of state action was derived from the 14th amendment to the United States Constitution. The 14th amendment is obviously directed at the states in that it provides, “No State shall make or enforce any law . . .” It is well settled that the 14th amendment applies only where state action exists and does not apply to purely private conduct.

Kelly further notes that the Texas ERA is not specifically directed to the state or any particular entity, or individual. Therefore, she would have us construe “under the law” broadly enough to cover the facts of her case. This raises the issue of what is the proper construction of the amendment vis-a-vis state action.

Basic to this issue is the inquiry of what intent the legislature and citizens of this state had when the amendment was adopted and ratified. The question presented is what degree of governmental involvement or activity, if any, did they intend to require before the ERA would be applicable. A threshold question concerning the proper construction of the amendment is whether the Texas ERA was intended to enable our state government to go further in proscribing discriminatory activity than the federal government may under the 14th amendment. Or, was the Texas ERA intended merely to attempt to bring together and hopefully simplify the laws concerning proscription of discrimination in this state while still relying on the traditional federal approach.

Clearly “under the law” covers all actions of governmental entities. However, we do not believe that applicability of the amendment is or should be limited to only those cases involving sex discrimination via a statute, ordinance, or official policy. We believe such a construction was unintended and is too narrow. However, at the other extreme is the broadest construction of the amendment, abolishment of all sex discrimination, public and private. Here “under the law” is read in the most expansive context to enable the state the fullest use of its police power to socially engineer sex discrimination out of existence. This construction necessarily assumes that this state possesses the requisite police power to enforce such socialization of its citizens. We express no opinion on the validity of this assumption because we do not believe that “under the law” should be so broadly construed.

We do not believe “under the law” covers purely private conduct. We do not believe the Texas Era proscribes purely private sex discrimination. It is our opinion that the legislature and citizens of this state desired to distill the myriad of federal doctrines concerning discrimination into a single simplified guarantee of sexual equality in governmental and public affairs. We cannot believe that by enacting the amendment they intended to have their private conduct regulated by the state. Private sex discrimination in many instances could be based upon what the individual perceives to be the proper role for men and women in society. Thus the private conduct could be considered an expression of the individual’s social, moral, cultural, and religious beliefs. While reasonable minds can and do differ, and many are quite emotional on this subject, it is certainly not for this court to hold that such private conduct is illegal absent a clear expression of intent from the legislature and the citizens of this state.

Had the amendment been intended to proscribe private conduct, we believe this proscription could and would have been clearly expressed to apply to all discrimination, public and private. This the legislature and citizens of Texas did not do. Rather, they guaranteed equality “under the law”. This indicates to us that they intended to adopt the policy of sexual equality in the area of government and public affairs.

In a brief opinion the court of civil appeals in Junior Football Association of Orange v. Gaudet, 546 S.W.2d 70 (Tex.Civ.App.—Beaumont 1976, no writ), construed “under the law” under almost identical facts. It reversed the trial court’s grant of a temporary injunction which would have allowed a young female to play football in a boy’s league until the female reached puberty. The court construed “under the law” as follows:

“The words ‘under the law’ in the above article of the Texas Constitution require that the discrimination complained of is state action or private conduct that is encouraged by, enabled by, or closely interrelated in function with state action.”

We believe this construction of “under the law” reaches an appropriate middle ground between extreme constructions of the amendment. It is our opinion that this construction most closely reflects the intent of the amendment. It guarantees equality in public affairs and in some cases when private conduct becomes so aligned with state function or involvement that it would be unreasonable to conclude that it is purely private discrimination. Yet, this construction does not have the courts and governmental agencies of this state dictating the private actions and relationships of its citizens which apparently reflect their fundamental beliefs. Far be it from this court to conclude that such beliefs are right or wrong.

We readily recognize that adoption of this construction of the amendment will result in the courts having to make some very difficult decisions in the future on whether a certain set of facts show state action or sufficient state involvement. We are convinced our task would be far easier if we were to adopt one of the more extreme constructions of the amendment. If we construed the amendment as applying only when sex discrimination occurs via a statute, ordinance, or official policy, or as proscribing all sex discrimination, public and private, we could probably avoid difficult factual questions from arising. However, it is not our own convenience with which we are concerned. It is the intent of the legislature and citizens of this state as to how they are to be governed on this issue which guides our decision.

In construing the amendment as requiring state action or sufficient state involvement so as to make it unreasonable to conclude that the action is purely private discrimination, we must inquire whether the private conduct is encouraged by, enabled by, or closely interrelated in function with state action. A showing that one of these situations exists would indicate that it is probably unreasonable to conclude that the action is purely private discrimination. We believe such a showing requires proof of some active rather than passive state involvement. The words encourage, enable, and function denote action. We distinguish situations where the state is merely passively involved — for example, the mere segregated use of public facilities where the state has no cause to inquire whether or not there is sex discrimination. The state’s basic function is to serve the public at large regardless of its citizens’ beliefs which may or may not result in private sex discrimination. The state, by enacting its Texas ERA, adopted the policy not to deny equality in its affairs because of sex. We conclude that purely private sex discrimination is not violative of the Texas ERA.

Anticipating that this court might so conclude, Kelly claims that state action has been shown and that the trial court’s conclusion to the contrary is an abuse of discretion because its conclusion is against the great weight and preponderance of the evidence. Because this is an appeal from the denial of a temporary injunction pending final hearing and disposition, the merits of Kelly's case are not before us for review. We believe it necessary to clarify the law in this area to assist the parties upon final hearing. The only question for review is whether the trial court abused its discretion. We find no such abuse.

The trial court was bound to follow Gau-det, supra. The situation Kelly presents is almost identical to the facts in Gaudet. Therefore, it is certainly not an abuse of discretion for the trial court to conclude that no readily apparent basis for distinguishing this case from Gaudet exists and to follow it in denying Kelly a temporary injunction. Because the record in the case is still developing and we cannot presume that the evidence adduced at the show cause hearing will be the same as that developed at a full trial on the merits, we express no opinion nor comment on the evidence.

All of the appellant’s points of error presented in complaint of the order of the trial court have been severally considered. Each is overruled. The order of the trial court is affirmed.

       For detailed analysis on possible constructions of the Texas ERA see Schoen, The Texas Equal Rights Amendment in the Courts — 1972-1977: A Review and Proposed Principles of Interpretation, 15 Hous.L.Rev. 537 (1978).


author: SUMMERS, Chief Justice.

text:
    LAKEWAY COMPANY, Appellant, v. Alfonso D. BRAVO Del Villar et al., Appellees.
    No. 1243.
    Court of Civil Appeals of Texas, Tyler.
    Feb. 1, 1979.
    Rehearing Denied Feb. 22, 1979.

      Mike Willatt, Fisher & Willatt, Austin, for appellant.
    Barry Bishop, Clark, Thomas, Winters & Shapiro, Austin, for appellees.
   SUMMERS, Chief Justice.

This appeal is from a summary judgment granted in favor of appellees.

Appellees, Sr. and Sra. Bravo, citizens of Mexico, brought suit against appellant, Lakeway Company, for specific perform-anee of a contract for sale of land, that is for delivery of a deed to the property in question, and Lakeway Company counterclaimed for $8,188.45, the balance which it alleged was due as purchase money under the contract.

Both appellees and appellant filed their respective motions for summary judgment. The trial court granted the appellees’ motion for summary judgment and denied the appellant’s motion, from which action appellant has appealed. We affirm.

By a written contract (drawn by Lake-way and executed in both Spanish and English versions) dated July 31, 1976, the Bravos contracted to buy and Lakeway Company agreed to sell a certain Lakeway lot located in Travis County, Texas. The contract stipulated the total purchase price in the following manner “US$25,820.00 (MEX$322,750.00).” The down payment was described to be “US$5,000.00 (MEX$62,500.00).” At the time the contract was signed, the Bravos paid, by check, the down payment of 62,500 Mexican pesos which was equivalent to $5,000.00 (U.S.). This down payment in pesos was accepted by Lakeway.

On August 18, 1976 (which was a Saturday), Lakeway received Mr. Bravo’s check drawn on Banco National de Mexico payable to Lakeway Company in the amount of 260,250 pesos, at that time the equivalent of U.S. $20,820.00. This was for the second and final payment under the contract. Lakeway deposited the check at its Austin bank on Monday, August 20, 1976, and the check was honored and cleared the Banco National de Mexico on August 30,1976. On August 31, 1976, the Mexican government devaluated the peso. Because of the devaluation, the exchange of pesos for U.S. dollars yielded only $12,631.55, $8,188.45 less than the original U.S. dollar amount for the second payment. Lakeway retained both the down payment and second payment but refused to convey title to the property in question, claiming that the Bravos had not made full payment.

Appellant has predicated its appeal upon two points of error which contend that the trial court erred (1) in granting summary judgment in favor of appellees, and (2) in refusing to grant summary judgment in favor of appellant.

The contract provided that it is to be interpreted in accordance with the laws of Texas and the United States of America, and the provisions pertinent to this appeal provide that:

“1. Seller [appellant] agrees to sell and Buyers [appellees] agree to buy for a total purchase price of US$25,820.00 (MEX$322,750.00) the following described property in Lakeway Section 18, as recorded in Plat Book 3, Page 385 of Travis County clerk records, Lot Number 2060.
“2. Buyers have paid US$5,000.00 (MEX$62,500.00) as a down payment and agree to pay to the seller, at 1200 Lake-way, Austin, Texas 78746, U.S.A. the balance within . . . (15) days of the date of this contract. Seller agrees to notify Buyers in writing of the total amount due in Mexican pesos if a change in the official exchange rate occurs prior to such payment.
“3. When the total purchase price is paid, Seller agrees to convey said property to Buyers by a general warranty deed, subject to all subdivision restrictions and covenants and easements of record (including those recorded in the deed records of Travis County, Texas for the section in which this homesite is located). Also, Seller agrees to furnish Buyers with a policy of title guaranty insurance covering said property.”

Appellant contends that the intention of the parties, as set forth in the contract, was for a total purchase price of $25,820.00; that how that was paid, whether in dollars or pesos, was immaterial so long as the result to seller was the required number of dollars; and that the peso figure in parenthesis was simply for the convenience of the buyer to let him know how many pesos would be required to buy the property. It urges that this intention is supported by the fact that the contract provides that “Seller agrees to notify Buyers in writing of the total amount due in Mexican pesos if a change in the official exchange rate occurs prior to such payment.” We agree with these contentions.

In its conclusion, however, appellant takes the position that when the Bravos delivered the check on August 18,1976, that Lakeway accepted the check not only on the condition that it be honored but also on the condition that it produce the required number of dollars. We disagree. As pointed out by appellees, the amount of dollars for the purchase price was absolute, but the amount of pesos could vary if seller gave written notice to buyers of a change in the official exchange rate prior to payment (pursuant to paragraph 2 of the contract). Appellees further respond that the mode of payment could be in dollars or pesos; that the down payment was in pesos with no objection from Lakeway; that on August 18, 1978, the Bravos delivered to Lakeway their check drawn upon their Mexican bank payable to Lakeway Company in the amount of 260,250 pesos; that there had been no change in the exchange rate and that such amount was the correct amount due for the final payment under the contract; that such check was received by Lakeway without objection; that when one takes a check, the check is accepted with one condition, and one condition only, that is that the check be honored for payment; and that once the check is honored and paid in due course the payment relates back and becomes absolute as of the date of the delivery of the check to payee. We agree.

In the instant case a check payable in the correct amount of pesos for final payment under the contract was delivered to Lakeway by the Bravos on August 18, 1976; such check was received by Lakeway without objection; said check was honored and cleared appellees’ bank account on August 30, 1976, prior to the devaluation of the peso which occurred on August 31,1976; and when honored and paid in due course, the payment became absolute and related back to the date of delivery of the check on August 18, 1976; and as of said date of delivery it produced the specified value in dollars and satisfied the terms of the contract.

When a check is accepted as conditional payment and is paid in due course, it is generally held that the payment thereon becomes absolute and relates to the date of delivery of the check. Muldrow v. Texas Frozen Foods, Inc., 157 Tex. 39, 299 S.W.2d 275, 277 (1957); Texas Mutual Life Ins. Ass’n v. Tolbert, 134 Tex. 419, 136 S.W.2d 584, 590 (1940); Texas Business and Commerce Code, sec. 3.802(a)(2), V.T.C.A.; 70 C.J.S. Payment § 24, p. 235; 60 Am.Jur.2d, Payment, sec. 11, p. 618.

We further disagree that any problem was caused by the late payment on August 18, 1976, instead of on August 15, 1976. There was no change in the exchange rate and there is no pleadings or evidence showing any loss by reason of the late payment.

In light of what we have held above we do not believe that the cases cited in appellant’s brief regarding optional payments or the case of Guaranty Trust Co. of New York v. Henwood, 307 U.S. 247, 59 S.Ct. 847, 83 L.Ed. 1266 (1939), are applicable to the case at hand.

The judgment of the trial court is affirmed.


author: PER CURIAM.

text:
    Robert Gregory GROGAN, Co-Administrator of Estate of Donnie Clyde Grogan, Deceased, et al., Appellants, v. COMMONWEALTH of Kentucky, Appellee. Robert Gregory GROGAN, Co-Administrator of Estate of Donnie Clyde Grogan, Deceased, et al., Appellants, v. CITY OF SOUTHGATE, Kentucky, Appellee.
    Supreme Court of Kentucky.
    Jan. 16, 1979.
    Rehearing Denied Feb. 27, 1979.
    William 0. Bertelsman, Bertelsman & Bertelsman, Newport, G. Wayne Bridges, Covington, for appellants.
    A. J. Jolly, Jolly, Johnson, Blau & Parry, Newport, Robert F. Stephens, Atty. Gen., Victor Fox, Asst. Atty. Gen., Frankfort, for appellees.
   PER CURIAM.

On May 28, 1977, a fire at the Beverly Hills Supper Club in the City of Southgate, Kentucky, resulted in a great number of deaths and personal injuries. Shortly thereafter numerous injured parties and personal representatives of those who had lost their lives filed damage suits in the Campbell Circuit Court. In all of these actions, which in due course were consolidated, the City of Southgate and the Commonwealth of Kentucky were named as defendants. The plaintiffs now appeal from separate judgments dismissing the actions, on the pleadings, as to the city and the Commonwealth. Each of the two appeals is submitted on an agreed statement under CR 75.15 and has been briefed and argued accordingly.

We shall discuss the city case first, because its resolution disposes of the Commonwealth case without requiring consideration of the sovereign-immunity question.

It was settled in Haney v. City of Lexington, Ky., 386 S.W.2d 738, 742 (1964), that the doctrine of sovereign immunity no longer protects municipal corporations in this state from tort liability. Later, however, in City of Louisville v. Louisville Seed Company, Ky., 433 S.W.2d 638 (1968), it was made clear that cities are different creatures from natural persons, private corporations, and other suable entities, and that the fundamental bases for tort liability are not necessarily the same for all of them in all situations.

As observed in Frankfort Variety, Inc. v. City of Frankfort, Ky., 552 S.W.2d 653, 655 (1977), our most recent opinion on the subject, “a city’s relationship to individuals and to the public is not the same as if the city itself were a private individual or corporation, and its duties are not the same. When it undertakes measures for the protection of its citizens, it is not to be held to the same standards of performance that would be required of a professional organization hired to do the job. If it were, it very well might hesitate to undertake them. . A city cannot be held liable for its omission to do all the things that could or should have been done in an effort to protect life and property.”

Broadly speaking, the theory on which the city’s liability is premised is that it failed to enforce laws and regulations, including its own, establishing safety standards for the construction and use of buildings within its corporate limits, and that its failures in this respect were a substantial factor in causing the tragedy. In other words, the charge is that the city did not enforce a law or laws designed for the safety of the public and that its taxpayers must therefore bear a loss occasioned by someone else’s failure to comply with the law.

Though appellants indulge the facile assumption that under similar circumstances a private individual would be liable at common law, we do not believe that the common law, as applied to individuals, offers any reasonably comparable analogy. There is, of course, the familiar principle that one who undertakes the care of another, or of his property, even though it be voluntary and without consideration, owes him the duty of reasonable care. But in the enactment of laws designed for the public safety a governmental unit does not undertake to perform the task; it attempts only to compel others to do it, and as one of the means of enforcing that purpose it may direct its officers and employes to perform an inspection function. The failure of its officers and employes to perform that function “does not constitute a tort committed against an individual who may incidentally suffer injury or damage, in common with others, by reason of such default.” City of Russellville v. Greer, Ky., 440 S.W.2d 269, 271 (1969).

The law that applies to this case has been carefully considered, clearly enunciated, and firmly settled in City of Louisville v. Louisville Seed Company, Ky., 433 S.W.2d 638 (1968); City of Russellville v. Greer, Ky., 440 S.W.2d 269, 271 (1969); and Frankfort Variety, Inc. v. City of Frankfort, Ky., 552 S.W.2d 653, 655 (1977). These precedents do not restore the doctrine of sovereign immunity, nor do they evince a retreat toward it. Haney v. City of Lexington, Ky., 386 S.W.2d 738, 742 (1964), erased the arbitrary distinction between governmental and proprietary activities, thus extending a city’s exposure to tort liability into the realm of “governmental functions,” but it did not purport to create new torts. As it happens, the existence of the sovereign-immunity doctrine served to prevent a normal development of common-law tort principles in the field of municipal liability until recent times, and the subject cannot reasonably be covered by fitting it out with a ready-made suit of clothes borrowed from the law of torts as it applies to individuals and private corporations. They simply are not the same animals.

In Modlin v. City of Miami Beach, Fla., 201 So.2d 70 (1967), a shopper in a retail store was killed when an overhead storage mezzanine collapsed upon her. In a wrongful-death suit against the city in which the store was located the complaint alleged negligent inspection by the city during construction of the building. Conceding that the residue of municipal immunity theretofore retained in an earlier opinion did not apply, a divided court nevertheless held that there was no tort liability: “It is a well recognized principle of tort law that a fundamental element of actionable negligence is the existence of a duty owed by the person charged with negligence to the person injured. . . . However, there is also a doctrine of respectable lineage and compelling logic that holds that this duty must be something more than the duty that a public officer owes to the public generally. . . It is evident that under this principle the respondent city’s inspector would not have been personally liable . Therefore, the city is not liable under the rule of respondeat superior.” Id., at 201 So.2d 75, 76.

We cite this line of reasoning by the Florida court not because we find it a satisfactory answer, but in order to illustrate that even by resort to common-law logic the appellants have no case against the city. We acknowledge, however, that a legal problem of this magnitude should not be resolved by the tricks of mechanical logic. The answer must find its source in conscious. public policy, and the fundamental policy-viewpoint on which this court has settled during the 15 years since Haney v. City of Lexington, Ky., 386 S.W.2d 738 (1964), is that a government ought to be free to enact laws for the public protection without thereby exposing its supporting taxpayers (including, of course, those yet unborn) to liability for failures of omission in its attempt to enforce them. It is better to have such laws, even haphazardly enforced, than not to have them at all.

What we have said thus far with regard to the city’s responsibility applies with equal force to the Commonwealth. There being no basis for tort liability, the question of governmental immunity becomes irrelevant. The answer to the argument that federal constitutional rights are violated by any result that has the effect of shielding governmental bodies from liability that would attach except for their status is that the principles articulated in our previous cases and applied here do not have that effect. To the contrary, that status would be the only basis for holding a city or state liable, because only a governmental entity possesses the authority to enact and enforce laws for the protection of the public. Hence it is that in delineating the areas and extent of public responsibility we are dealing with a subject quite apart and different from the world of individual and corporate relationships. There being no reasonable basis for comparison, there can be no discrimination.

The judgments are affirmed.

All concur.