author: DOUGHTY, Justice.

text:
    REPUBLIC NATIONAL LIFE INSURANCE COMPANY, Petitioner, v. Velma L. HEYWARD, Respondent.
    No. B-5621.
    Supreme Court of Texas.
    April 14, 1976.
    Rehearing Denied May 5, 1976.

      Cobb, Thurmond & Bain, Earle Cobb, Jr. and J. W. Dewbre, San Antonio, for petitioner.
    Oliver S. Heard, Jr., San Antonio, Thomas S. Goggan, III, Austin, for respondent.
   DOUGHTY, Justice.

Velma L. Heyward was the named beneficiary of a group life insurance policy issued by Republic National Life Insurance Company and insuring the life of her husband, Bennie T. Heyward. She brought this suit to recover benefits under an accidental death rider to the policy. At the close of plaintiff’s evidence the trial court instructed a verdict for Republic. The Court of Civil Appeals has reversed and remanded. Tex.Civ.App., 527 S.W.2d 807. We affirm the judgment of the Court of Civil Appeals.

The pertinent provisions of the accidental death rider are as follows:

If a person, while insured under this Section of the Group Policy, sustains an injury effected solely through external, violent and accidental means and as a result thereof, directly and independently of all other causes, suffers a loss specified below within ninety days following the date of such injury, the Company, subject to all provisions of the Group Policy, will pay
(a) the Principal Sum for loss of life;
⅜ # ⅜ ⅜ ⅜
Benefits shall not be payable for any loss to which a contributing cause is
(e) participation in or as the result of the commission of a felonious act.

The evidence introduced by plaintiff reveals that Bennie Heyward died on September 23,1973, from multiple gunshot wounds. The Medical Examiner’s Report shows that there were five gunshot wounds in his body, two entering from the front and three from the back; in addition, there were multiple lacerations on his head and back made by a sharp object, possibly a knife. One 357 magnum bullet was recovered. The Medical Examiner’s Report concluded that the manner of death was homicide. The Medical Examiner testified that in his opinion insured was intentionally shot by another.

Plaintiff’s proof showed that at the time of his death Bennie Heyward was an employee of the City of San Antonio and was covered by the above Group Policy with the accidental death rider. Republic paid the basic $3,000.00 life insurance benefits to plaintiff, but refused to pay the additional $12,000.00 under the accidental death provisions.

Portions of the depositions of James Edda Anderson and Oscar M. Anderson were introduced into evidence. They both testified that they lived at 311 Vine Street (the place where insured’s death occurred, according to the death certificate), but they refused to answer any other questions on the ground that their answers might tend to incriminate them.

Antone Dykes, an ordained minister, testified that he was acquainted with insured, and that his reputation for being a law-abiding citizen and a peaceful person was good.

Based on the above evidence the trial court directed a verdict for the insurance company. Republic contends that the directed verdict was proper because plaintiff failed to produce any evidence that Bennie Hayward died from injuries “effected solely through . . . accidental means,” and alternatively because there was no evidence that “a contributing cause” of death was not “participation in or as the result of the commission of a felonious act.”

I.

The first issue presented by Republic’s points of error is: does the above evidence, construed most favorably to plaintiff, raise a question of fact as to whether Bennie Heyward’s death was accidental under the terms of the policy? Republic admits that the policy in question was in force at the time of insured’s death. Republic also admits that plaintiff’s evidence raised a fact issue as to whether insured’s injuries were effected solely through violent and external means as those terms were used in the policy. Republic denies, however, that insured’s injuries were “effected solely through . . . accidental means.” No definition of the term “accidental means” is provided by the policy. Republic contends that, under the Texas eases defining similar provisions, a death is not effected solely through accidental means if it results from injuries intentionally inflicted by another.

In Releford v. Reserve Life Insurance Co., 154 Tex. 228, 276 S.W.2d 517 (1955), insured died from injuries intentionally inflicted by his wife. Insured’s policy provided indemnity against loss of life “resulting from accidental bodily injuries.” Reversing the Court of Civil Appeals’ judgment for the insurance company, this Court held that the court below had applied the wrong test to determine liability under the policy. The Per Curiam opinion states, at page 518:

In reaching its conclusion the Court [of Civil Appeals] seems to have given controlling weight to its finding that “viewed from the standpoint of Velma Releford” the deceased was making an unlawful assault upon her and she was acting “in her own self-defense.” As stated in the Hutcherson case [Hutcherson v. Sovereign Camp, W.O.W., 112 Tex. 551, 251 S.W. 491 (1923)], the test of whether the killing is accidental within the terms of an insurance policy is not to be determined from the viewpoint of the one who does the killing, but rather from the viewpoint of the insured. If from his viewpoint his conduct was such that he should have anticipated that in all reasonable probability his wife would kill him, his death was not accidental; if from his viewpoint his conduct was not such as to cause him reasonably to believe that she would probably kill him, then his death was accidental. This was the jury question under the facts in this case. [Emphasis added]

This test (referred to below as the Hutch-erson test) has been consistently followed in Texas to determine whether death intentionally caused by another is accidental within the meaning of an insurance policy. Seaboard Lite Insurance Co. v. Murphy, 134 Tex. 165, 132 S.W.2d 393 (1939); Spencer v. Southland Life Insurance Co., 340 S.W.2d 335 (Tex.Civ.App.—Fort Worth 1960, writ ref’d); National Life & Accident Insurance Co. v. Hodge, 244 S.W. 863 (Tex.Civ.App.—Texarkana 1922, no writ); Great American Reserve Insurance Co. v. Sumner, 464 S.W.2d 212 (Tex.Civ.App.—Tyler 1971, writ ref’d, n. r. e. ); Ritchie v. John Hancock Mutual Life Insurance Co., 521 S.W.2d 367 (Tex.Civ.App.—Waco 1975, no writ). Under the Hutcherson test, Bennie Heyward’s death might be accidental even though it resulted from injuries intentionally inflicted by another.

Republic contends, however, that the Hutcherson test does not apply where the policy covers death “by accidental means” rather than “accidental death.” Republic cites numerous Texas cases which distinguish between coverage for accidental death and coverage for death by accidental means; Republic argues that under these authorities, where death results from the actions of another person, the death is not by accidental means unless the actor did not intend to inflict the fatal injuries. We disagree.

First, Republic cites no Texas authority, nor have we found any, for the proposition that injuries are not effected through accidental means merely because the assailant intentionally inflicted them. To the contrary, several Texas courts have applied the Hutcherson test to situations similar to the case at hand under very similar policy provisions. In Texas Prudential Insurance Co. v. Turner, 127 S.W.2d 563 (Tex.Civ.App.—Beaumont 1939, writ dism’d), insured died from gunshot wounds received in an affray. Insured’s life insurance policy obligated insurer to pay double indemnity if insured’s death resulted from bodily injury sustained “solely through external, violent and accidental means.” The Court of Civil Appeals, applying the Hutcherson test, held that insured’s death was not sustained through accidental means because insured, “by his conduct on the occasion in question, provoked the difficulty with Garrett under conditions which would have led a reasonably prudent man to believe that Garrett would shoot him if he continued the assault.” 127 S.W.2d at 566.

In Life & Casualty Insurance Co. v. Martinez, 299 S.W.2d 181 (Tex.Civ.App.—San Antonio 1957, no writ), the insured was shot by a police officer while fleeing from the officer. The court reversed and remanded for a new trial a judgment for the beneficiaries of insured’s accident insurance policy, on the ground that the trial court did not apply the correct test to determine whether the insured’s death was accidental. The policy in question covered death “from violent, external and accidental means.” Citing Releford, supra, the court stated that the determination of whether the death was by accidental means must be determined from the viewpoint of the insured, and that the evidence presented a question of fact “whether insured, from his viewpoint, should have anticipated that in all reasonable probability the policeman would kill him if he did not stop.” 299 S.W.2d at 183.

See also Perry v. Aetna Life Insurance Co., 380 S.W.2d 868 (Tex.Civ.App.—Tyler 1964, writ ref’d, n. r. e.); National Life and Accident Insurance Co. v. Knapp, 430 S.W.2d 84 (Tex.Civ.App.—Houston [14th Dist.] 1968, writ ref’d, n. r. e.); Great National Insurance Co. v. Legg, 444 S.W.2d 324 (Tex.Civ.App.—El Paso, 1969, writ ref’d, n. r. e.); American National Insurance Co. v. Garrison, 97 S.W.2d 534 (Tex.Civ.App.—Eastland 1936, writ dism’d); Georgia Casualty Co. v. Shaw, 197 S.W. 316 (Tex.Civ.App. —Galveston 1917, writ dism’d); Metropolitan Life Insurance Co. v. Ray, 105 S.W.2d 377 (Tex.Civ.App.—Texarkana 1937, no writ); Stevenson v. Reliable Life Insurance Co., 427 S.W.2d 945 (Tex.Civ.App.—San Antonio 1968, no writ); Old National Life Insurance Co. v. Holley, 216 S.W.2d 676 (Tex.Civ.App.—Fort Worth 1949, no writ), and Aetna Life Insurance Co. v. Hagemyer, 53 F.2d 636 (5th Cir. 1931), cert. denied, 285 U.S. 542, 52 S.Ct. 314, 76 L.Ed. 934 (1932).

Although Praetorian Mutual Life Insurance Co. v. Humphrys, 484 S.W.2d 413 (Tex.Civ.App.—Fort Worth 1972, writ ref’d, n. r. e.) has some language to the contrary, we believe that the result in that case is supportable on other grounds. In Humphrys insured was killed by a burglar when he unexpectedly came upon the burglar in his home. Insured’s policy covered death by accidental means, but it also excluded coverage when death resulted from injuries intentionally inflicted by another person. This exclusionary provision, which is not present in Mr. Heyward’s policy, clearly excluded Mr. Humphrys’ death from coverage.

While the above cases are not controlling, they do indicate that a distinction between “accidental death” and “death by accidental means” has not been recognized where insured has died from injuries intentionally inflicted by another. In both “accidental death” and “accidental means” policies, the test applied has been the Hutcherson test: whether, from the viewpoint of the insured, he should have reasonably anticipated that his conduct would probably bring about his own death.

Several other jurisdictions which recognize a distinction between “accidental death” and “death by accidental means” also apply the Hutcherson test, or a similar rule, where the insured has died at the hands of another. In fact, the Hutcherson test appears to be accepted by almost all jurisdictions to determine whether a homicide was accidental within the meaning of an insurance policy. See Annot., 49 A.L.R.3d 673 (1973).

More important, however, we believe that a real distinction between the terms “accidental death” or “accidental injury” and “death by accidental means” is no longer recognized in Texas. The purported distinction between these terms originated in United States Mutual Accident Ass’n v. Barry, 131 U.S. 100, 9 S.Ct. 755, 33 L.Ed. 60 (1889). The Supreme Court in Barry affirmed the trial court’s judgment that internal injuries suffered by an insured when he jumped from a platform were injuries “effected through external, violent and accidental means.” The Court gave the following definition of “accidental means”:

. [I]f a result is such as follows from ordinary means, voluntarily employed, in a not unusual or unexpected way, it cannot be called a result effected by accidental means; but that if, in the act which precedes the injury, something unforeseen, unexpected, unusual, occurs which produces the injury, then the injury has resulted through accidental means. 131 U.S. at 121, 9 S.Ct. at 762, 33 L.Ed. at 67.

Numerous Texas cases, following the reasoning of the Supreme Court in Barry, have recognized a distinction between “accidental death" and “death by accidental means.” In Bryant v. Continental Casualty Co., 107 Tex. 582, 182 S.W. 673 (1916), this Court held that death from sunstroke was death by accidental means within the meaning of the insurance policy. Citing Barry, we stated, at 182 S.W. 675-676:

The word “means” is employed in the policy in the sense of “cause”; the phrase, “due to accidental means,” is one of qualification; and the purpose of its use in the ordinary accident policy is to limit the liability of the insurer to injuries effected by an accidental cause, as distinguished from those which are merely accidental in their result. ... In the numerous adjudicated cases upon the subject, therefore, it is determined that where by the terms of the contract the risk insured against is an injury effected by “accidental means,” the element of accident must consist in that which produces the injury, rather than the mere fact that an injury occurs.

This Court again recognized a distinction in International Travelers’ Ass’n v. Francis, 119 Tex. 1, 23 S.W.2d 282 (1930). There we held that death from an infection resulting from the pulling of a wisdom tooth was caused solely and exclusively by “external, violent and accidental means” within the meaning of the policy. This Court there quoted with approval from Cooley’s Briefs on Insurance (2d ed.) Vol. 6, p. 5234, as follows:

“Whether or not the means is accidental is determined by the character of its effects. Accidental means are those which produce effects which are not their natural and probable consequences. The natural consequence of means used is the consequence which ordinarily follows from its use — the result which may be reasonably anticipated from its use, and which ought to be expected. The probable consequence of the use of a given means is the consequence which is more likely to follow from its use than it is to fail to follow. An effect which is the natural and probable consequence of an act or course of action is not an accident, nor is it produced by accidental means. It is either the result of actual design, or it falls under the maxim that every man must be held to intend the natural and probable consequence of his deeds. On the other hand, an effect which is not the natural or probable consequence of the means which produced it, an effect which does not ordinarily follow and cannot be reasonably anticipated from the use of such means, an effect which the actor did not intend to produce and which he cannot be charged with the design of producing, is produced by accidental means. It is produced by means which was neither designed nor calculated to cause it. Such an effect is not the result of design, cannot be reasonably anticipated, is unexpected, and is produced by an unusual combination of fortuitous circumstances; in other words, it is produced by accidental means.” 23 S.W.2d at 284-285.

Another leading Texas case is Hanna v. Rio Grande National Life Ins. Co., 181 S.W.2d 908 (Tex.Civ.App.— Dallas 1944, writ ref’d). In Hanna, insured died from an overdose of sulfanilamide. Insured’s policy provided for payment of double indemnity in event of death from bodily injury sustained solely through external, violent and accidental means. In her suit the beneficiary alleged that the overdose of the drug was by mistake, and alternatively that because of unknown elements in both the drug and the system of the insured, a fatal reaction to the drug ensued, causing insured’s death. The trial court granted defendant’s motion for judgment on the pleading, holding as a matter of law that the petition did not state a cause of action. The Court of Civil Appeals reversed and remanded for trial. The court recognized that:

Many jurisdictions hold that if the means which cause an injury are voluntarily employed in the usual and intended way, the resulting injury, even though it be entirely unusual, unexpected and unforeseen, is not produced by accidental means; in short, that the means, as well as the result, must be accidental; [citations omitted]. Other State authorities, however, apply to the term an interpretation of somewhat broader scope. It is stated in 1 C.J., p. 427, viz.: “Where the effect is not the natural and probable consequence of the means which produce it — an effect which does not ordinarily follow and cannot be reasonably anticipated from the use of the means, or an effect which the actor did not intend to produce, and which he cannot be charged with a design of producing — it is produced by accidental means.” At least since International Travelers’ Ass’n v. Francis, 119 Tex. 1, 23 S.W.2d 282, 284, our Supreme Court has been committed to the latter or more liberal rule. 181 S.W.2d at 909-910.

See also International Travelers’ Ass’n v. Bettis, 120 Tex. 67, 35 S.W.2d 1040 (1931); International Travelers’ Ass’n v. Marshall, 131 Tex. 258, 114 S.W.2d 851 (1938). This test has become the accepted test in Texas for determining whether an injury or death resulted from accidental means.

Although Texas courts have continued to recognize at least in form a distinction between “accidental death” and “death by accidental means,” as the definition of the term “death by accidental means” has become more inclusive any real distinction between the two terms has disappeared. This confusion was well documented by the dissenting opinion in Pan American Life Insurance Co. v. Andrews, 161 Tex. 391, 340 S.W.2d 787 (1960). In Andrews, the insured died by reason of a cerebral thrombosis allegedly resulting from a psychic trauma induced by watching his office being destroyed by fire. Insured was covered by two policies, both of which provided coverage for death as a consequence of bodily injuries “effected solely through external, violent and accidental means.” This Court reversed the trial court’s judgment for the beneficiary and rendered judgment for the insurance company on both policies. The decision contains three opinions: the majority opinion; a concurring opinion by one justice; and the dissenting opinion, in which three justices concurred. The majority held that there was no evidence that insured had died from bodily injuries effected through external means, and thus never reached the question of whether insured had died through accidental means. The dissenting opinion concludes that the death was indeed by external and violent means, thus reaching the question of whether the death was by accidental means. After an exhaustive review of Texas cases on the subject, the dissenting justice concludes:

From the cases reviewed it clearly appears that the distinction once generally recognized between “accidental death” and “death produced by accidental means”, as those terms are used in insurance contracts, no longer exists in this state. 340 S.W.2d at 802.

We agree with this conclusion. It is not necessary for us to repeat here the Andrews dissenting opinion’s analysis of Texas cases construing “accidental means”; the reader is referred to that opinion for a more complete review. Suffice it to say here that these cases fail to reveal any real difference between the court’s treatment of the terms as applied to the facts of the particular case.

The problems created by attempting to distinguish between accidental death and death by accidental means are not unique to Texas. There is a wide divergence of authority in other jurisdictions on the question, well documented in Annot., 166 A.L.R. 469 (1947). The author of this annotation lists twenty-three states as recognizing a distinction between “accidental death” and “accidental means,” and ten states as regarding the terms to be legally synonymous. Subsequent to the writing of this annotation, however, at least two jurisdictions have repudiated the distinction formerly recognized in those states, and four jurisdictions considering the question for the first time have refused to recognize any distinction. And in those jurisdictions which still recognize the distinction, its application is sometimes far from clear.

One other case illustrates the confusion caused by the attempt to distinguish between “accidental death” and “death by accidental means”: Landress v. Phoenix Mutual Life Insurance Co., 291 U.S. 491, 54 S.Ct. 461, 78 L.Ed. 934 (1934). In Landress, the Court held that death resulting from sunstroke was not death caused by external, violent and accidental means. In his dissent, Justice Cardozo states:

The attempted distinction between accidental results and accidental means will plunge this branch of the law into a Ser-bonian Bog. “Probably it is true to say that in the strictest sense and dealing with the region of physical nature there is no such thing as an accident.” [Citations omitted] On the other hand, the average man is convinced that there is, and so certainly is the man who takes out a policy of accident insurance. It is his reading of the policy that is to be accepted as our guide, with the help of the established rule that ambiguities and uncertainties are to be resolved against the company. [Citations omitted] The proposed distinction will not survive the application of that test.
291 U.S. at 499, 54 S.Ct. at 463-464, 78 L.Ed. at 938.

Texas courts have waded through Justice Cardozo’s Serbonian bog, and we are now convinced that the terms “accidental death” and “death by accidental means,” as those terms are used in insurance policies, must be regarded as legally synonymous unless there is a definition in the insurance contract itself which requires a different construction. These terms in an insurance contract should be given their ordinary and popular meaning according to the understanding of the average man; the court’s guide should not be the technical meaning of the words used, but rather the intention of the parties as inferred from the contract as a whole. A fine distinction between means and results would never occur to an average policyholder, and the insurer should not be able to escape liability by resort to such a technical definition. If the insurer wishes to distinguish between accidental results and injuries caused by accidental means, he should do so expressly, so as to give the policyholder clear notice of any limitations of liability which the insurer wishes to impose by use of the latter term. We therefore hold that injuries are “accidental” and within the coverage of an insurance policy — whether the policy speaks in terms of “accidental injuries” or “injuries effected through accidental means” — if, from the viewpoint of the insured, the injuries are not the natural and probable consequence of the action or occurrence which produced the injury; or in other words, if the injury could not reasonably be anticipated by insured, or would not ordinarily follow from the action or occurrence which caused the injury.

Applying this rule to the facts of the present case, it necessarily follows that, where an insured’s injuries are caused by the intentional acts of another, the injuries are nevertheless accidental within the terms of an insurance policy covering death by “accidental means” if from the insured’s viewpoint his conduct was not such as to cause him to reasonably believe that it would result in his injury. We believe that a person insured against injury effected through accidental means would consider himself insured against such a casualty, since the very purpose of such insurance is to provide indemnity against any fortuitous, unexpected, or undesigned injury. If a policyholder is struck by a car, can it be reasonably said that the means of injury are any less accidental, as regards the purpose of his accident policy, because the driver of the vehicle intended to injure him? We think not. In either case the purpose of the policy is the same — to insure against such an unexpected and unusual occurrence.

II.

Republic contends that the trial court’s directed verdict was correct — even under the Hutcherson rule — because plaintiff failed to prove a prima facie case of coverage under the accident provisions of the policy. Specifically, Republic argues that plaintiff failed to raise a question of fact whether insured’s death was by accidental means, because plaintiff produced no evidence that insured did not provoke his assailant and thereby bring his death upon himself. Republic contends that the Court of Civil Appeals erroneously placed upon it the burden of proving that insured should have reasonably foreseen that his death would probably result from his actions.

The burden of proof was upon plaintiff to prove that insured died from injuries “effected solely through external, violent and accidental means” in order to recover under the policy. International Travelers’ Ass’n v. Marshall, 131 Tex. 258, 114 S.W.2d 851 (1938). Plaintiff contends that her evidence showing death by violent and external means raises a presumption that death was by accidental means, and that this presumption raises an issue of fact whether the death was accidental, at least until defendant introduces evidence to the contrary. Republic does not deny that plaintiff has produced some evidence that insured’s death was by violent and external means, but Republic does deny that this evidence raises a fact issue as to whether insured’s death was accidental.

We have held that evidence of death by violent and external means raises a presumption that insured did not commit suicide. Combined American Insurance Co. v. Blanton, 163 Tex. 225, 353 S.W.2d 847 (1962). This presumption does not constitute evidence in itself or shift the burden of proof; it merely raises an issue of fact as to whether insured’s death was not by his own hand. The presumption “disappears” when evidence to the contrary is introduced. Prudential Insurance Co. of America v. Krayer, 366 S.W.2d 779 (Tex.1963).

A presumption of accidental death from evidence of death by violent and external means has been recognized by some Texas courts — even where the evidence conclusively showed that the cause of death was not suicide. In Georgia Casualty Co. v. Shaw, 197 S.W. 316 (Tex.Civ.App. —Galveston 1917, writ dism’d), insured was killed from a gunshot wound received in an affray. The policy covered injuries effected through violent, external and accidental means. The Court of Civil Appeals affirmed a trial court judgment in favor of the beneficiaries, holding that there was some evidence that insured’s death was caused by external, violent and accidental means. The Court stated, at page 318:

It is further true that the burden upon the whole case to make out their case as pleaded was upon appellees, and that it never shifted from them to appellant; but we think this burden was met by their proof that the death of the insured was caused by external and violent means, and that, as between them and the insurer, a presumption of law then arose that such death was caused by accidental means; . . . [Citations omitted]

See also Home Benefit Ass’n v. Briggs, 61 S.W.2d 867 (Tex.Civ.App.—Waco 1933, no writ); Black v. Continental Casualty Co., 19 S.W.2d 69 (Tex.Civ.App.—Austin 1929, no writ); Aetna Life Insurance Co. v. Hegemyer, 53 F.2d 636 (5th Cir. 1931), cert. denied, 285 U.S. 542, 52 S.Ct. 314, 76 L.Ed. 934 (1932); Mutual Life Insurance Co. of New York v. Sargent, 51 F.2d 4 (5th Cir. 1931), and Massachusetts Bonding and Insurance Co. v. Santee, 62 F.2d 724 (9th Cir. 1933). This presumption has been recognized by the majority of American jurisdictions. Annot., 12 A.L.R.2d 1264 (1950).

There is no evidence in the case before us that insured provoked his assailant or that he was the aggressor in the incident which resulted in his death. Unless some evidence to the contrary is produced, we think it is reasonable to presume that insured did not act in such a way that he should have reasonably known his actions would probably result in his death. The law assumes that one’s natural instinct is to avoid injury and preserve his own life. We therefore hold that plaintiff’s evidence raised an issue of fact whether insured’s death was accidental.

III.

Finally, Republic contends that the limitation in the policy excluding coverage where a contributing cause of the loss is “participation in or as the result of the commission of a felonious act” should apply in this case, because insured’s death was the result of a felonious assault by his assailant. The Court of Civil Appeals held that insured must have been participating in or committing a felonious act for this limitation to be applicable. We agree. The fact that insured is killed by another, without more, does not bar recovery under this limitation. There is no evidence in the record that insured was engaged in a felonious act at the time of his death. While the burden of proof was upon plaintiff to show that the exclusion was not applicable, Sherman v. Provident American Insurance Co., 421 S.W.2d 652 (Tex.1967), we believe it is reasonable to presume that insured’s death was not caused by his participation in a felonious act until some evidence to the contrary appears. In the criminal law, one is presumed to be innocent of criminal conduct until proven guilty beyond a reasonable doubt. Even though the burden is still on the beneficiary to prove that insured was not engaged in criminal conduct which led to his death, he must be presumed innocent of any criminal conduct until some evidence to the contrary is produced. See New York Life Insurance Co. v. Veith, 192 S.W. 605 (Tex.Civ.App.—San Antonio 1917, no writ). Like the presumption against suicide, this presumption of innocence would entitle the jury to find, absent any evidence to the contrary, that insured’s death was not ex-eluded from coverage under this limitation of the policy. The trial court’s instructed verdict was therefore improper.

The judgment of the Court of Civil Appeals is affirmed.

      . See, e. g., Aetna Life Insurance Co. v. Beasley, 272 Ala. 153, 130 So.2d 178 (1961), in which the Alabama Supreme Court recognized a distinction between “accidental death” and “death by accidental means,” but held that the determination of whether a homicide was by accidental means must be made from the viewpoint of the insured. The Delaware Supreme Court has recently reaffirmed a distinction between accidental death and accidental means in Chelly v. Home Insurance Co., 285 A.2d 810 (Del.Superior Ct.1971), affirmed 293 A.2d 295 (Del.1972); but in Maneval v. Lutheran Brotherhood, 281 A.2d 502 (Del.Superior Ct.1971), the court held that whether a death was by accidental means must be determined from the viewpoint of the insured. In National Life & Accident Insurance Co. v. Jones, 260 Ky. 404, 86 S.W.2d 139 (1935), the Kentucky Supreme Court distinguished between accidental death and death by accidental means, but held that the death of insured by gunshot wound received in an affray was nevertheless by accidental means if his death was the unintended and undesigned result of his own actions. See also Hutton v. States Accident Insurance Co., 267 Ill. 267, 108 N.E. 296 (1915); Freeman v. Commonwealth Life Insurance Co., 149 Ind. App. 211, 271 N.E.2d 177 (1971), affirmed, 259 Ind. 237, 286 N.E.2d 396 (1972).

      . See Gaskins v. New York Life Insurance Co., 235 La. 461; 104 So.2d 171 (1958); Beckham v. Travelers Insurance Co., 424 Pa. 107, 225 A.2d 532 (1967).

      . See INA Life Insurance Co. v. Brundin, 533 P.2d 236 (Alaska 1975); Knight v. Metropolitan Life Insurance Co., 103 Ariz. 100, 437 P.2d 416 (1968); Gulf Life Insurance Co. v. Nash, 97 So.2d 4 (Fla. 1957); and Scott v. New Empire Insurance Co., 75 N.M. 81, 400 P.2d 953 (1965).

      . See, e. g., Cox v. Prudential Insurance Co., 172 Cal.App.2d 629, 343 P.2d 99 (1959); Caldwell v. Travelers Insurance Co., 305 Mo. 619, 267 S.W. 907 (1924); Linden Motor Freight Co. v. Travelers Insurance Co., 40 N.J. 511, 193 A.2d 217 (1963); Perrine v. Prudential Insurance Co., 56 N.J. 120, 265 A.2d 521 (1970); Hammer v. Mutual Benefit Health & Accident Ass’n, 158 Ohio St. 394, 109 N.E.2d 649 (1952). See also footnote 1, supra.

      . Note that the opposite result was reached under very similar circumstances by this Court in Bryant v. Continental Casualty Co., supra, even though the courts allegedly applied the same test.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    HOUSTON CHRONICLE PUBLISHING COMPANY, Petitioner, v. CITY OF HOUSTON et al., Respondents.
    No. B-5773.
    Supreme Court of Texas.
    April 28, 1976.

      Liddell, Sapp, Zivley & Brown, W. Robert Brown, Robert J. King and Charles H. Waters, Jr., Houston, for petitioner.
    Jonathan S. Day, City Atty., Houston, John L. Hill, Atty. Gen., David Kendall, Jr., First Asst. Atty. Gen., Austin, for respondents.
   ON APPLICATION FOR WRIT OF ERROR

PER CURIAM.

The Houston Chronicle filed this action seeking an interpretation of the Texas Open Records Act, Tex.Rev.Civ.Stat.Ann. art. 6252-17a (supp.1975). The trial court held that sections 3(a)(1), 3(a)(8), 6(1), 6(15), and 14(a) of the Act were unconstitutional and held that the Act does not provide a lawful basis for the withholding of police records. The court of civil appeals reversed the trial court’s holdings that the stated provisions were unconstitutional, but also ordered the disclosure of certain kinds of records. 531 S.W.2d 177. The Houston Chronicle has filed an application for writ of error, insisting that all of the police records must be disclosed. The City of Houston and the other defendants have not complained of the judgment of the court of civil appeals.

There are three different kinds of police records in controversy: Offense Reports, Personal History and Individual Arrest Records, and administrative records. Offense Reports compile information concerning a specific crime. The information sometimes includes the names and description of any suspects, names of persons arrested for this particular crime, name and description of the complainant, place, of the crime, names of witnesses, a detailed description of the offense, the police officer’s evaluation of the witnesses or suspect, synopsis of confessions and police laboratory reports. Personal History and Individual Arrest Records contain information on particular persons suspected of crimes. They contain the suspect’s name and personal data including a mug shot, marital status and names of relatives. The primary purpose of the Personal History and Individual Arrest Record is to list chronologically all of the offenses for which the person has ever been arrested; however, the final disposition of the charge is not always noted. The third kind of record, broadly categorized as administrative records, consists of three kinds of documents, Arrest Sheets, Show-Up Sheets, and the Blotter. In general, these three records include such information as the name, age, race of one arrested, the place of the arrest, the offense charged, and the name of the arresting officer. The Houston Chronicle claims that the press is entitled to all information contained in Offense Reports and Personal History and Arrest Records pursuant to the Texas Open Records Act or, in the alternative, that the press has a constitutional right of access to such information.

The court of civil appeals held that the Houston Chronicle was entitled to the information contained in the administrative records. The court denied any right of access to the Personal History and Individual Arrest Records. The court also held that upon constitutional grounds and independent of the Open Records Act, the Houston Chronicle was entitled to certain information contained in the Offense Reports which that court identified as “the offense committed, location of the crime, identification and description of the complainant, the premises involved, description of the weather, a detailed description of the offense in question, and the names of the investigating officers.” The court’s decision requiring disclosure of the designated parts of the Offense Reports was grounded upon the First Amendment to the United States Constitution and the eighth section of Article I of the Texas Constitution and not upon the Texas Open Records Act.

We agree with the opinion of the court below that neither the Texas Open Records Act nor the United States or Texas Constitutions requires disclosure of the complete records sought by the Houston Chronicle, and we therefore refuse the Chronicle’s application for writ of error, no reversible error. Since the City of Houston has not filed an application for writ of error complaining of the court of civil appeals’ judgment, it is the opinion of the majority of the court that we reserve the question as to whether the press and public have a statutory or constitutional right to obtain all of the information which the court of civil appeals has held to be public information.


author: STEAKLEY, Justice. SAM D. JOHNSON, Justice

text:
    LOWER NECHES VALLEY AUTHORITY, Petitioner, v. Oscar MURPHY et al., Respondents.
    No. B-5723.
    Supreme Court of Texas.
    May 12, 1976.
    Mehaffy, Weber, Keith & Gonsoulin, O. J. Weber, Beaumont, for petitioner.
    Provost, Umphrey, Doyle & McPherson, Walter Umphrey and Jon B. Burmeister, Port Arthur, for respondents.
   STEAKLEY, Justice.

This is a suit instituted by Oscar Murphy and wife, as next friends and natural guardians of Wendell Keith Murphy, a minor, Respondents, against Lower Neches Valley Authority (LNVA). The suit was brought under the Texas Tort Claims Act for personal injuries suffered by Wendell. The trial court granted summary judgment for LNVA. The Court of Civil Appeals reversed the judgment of the trial court and remanded the case for a trial on the merits. 529 S.W.2d 816 (Tex.Civ.App.). We disagree with the Court of Civil Appeals and reverse and render judgment for LNVA.

LNVA is a governmental entity that operates a network of canals approximately 175 to 200 miles in length. The summary judgment record reveals that Wendell sustained serious bodily injuries when he dived into a LNVA canal and struck his head on a hump or mound of clay on the bottom of the canal. The waters of the canal are consistently muddy and the humps of clay on the bottom are not visible. Wendell was fourteen years old at the time of the accident and is at least of average intelligence for his age.

The testimony of Wendell on deposition is crucial. He stated that he had been swimming in the portion of the canal where the accident occurred on previous occasions and knew the area well. In particular, Wendell testified that he knew there were humps of clay on the bottom of the canal and that he knew the danger they presented.

All parties, together with the courts below, have treated Wendell as enjoying the status of a licensee and as not having the status of a trespasser when swimming and diving in the canal at the time the accident occurred. We will assume without deciding that such was his status.

• In State v. Tennison, 509 S.W.2d 560 (Tex.1974), we defined the nature of the duty owed to a licensee by a unit of government:

It is well settled in this State that if the person injured was on the premises as a licensee, the duty that the proprietor or licensor owed him was not to injure him by willful, wanton or gross negligence. Carlisle v. J. Weingarten, Inc., 137 Tex. 220, 152 S.W.2d 1073 (1941); Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950); McKethan v. McKethan, 477 S.W.2d 357 (Tex.Civ.App.1972, writ ref. n. r. e.); Bass v. Cummings, 415 S.W.2d 438 (Tex.Civ.App.1967, writ ref. n. r. e.); Buchholz v. Steitz, 463 S.W.2d 451 (Tex. Civ.App.1971, writ ref. n. r. e.). An exception to the general rule is that when the licensor has knowledge of a dangerous condition, and the licensee does not, a duty is owed on the part of the licensor to either warn the licensee or to make the condition reasonably safe. Gonzalez v. Broussard, 274 S.W.2d 737 (Tex.Civ.App.1954, writ ref. n. r. e.).

LNVA, as the movant for summary judgment had the burden of establishing as a matter of law that there were no genuine issues of fact as to one or more of the essential elements of the asserted cause of action, i. e., that no fact issue stands in the way of judgment in its favor. Betty L. Cook, et al v. Brundidge, Fountain, Elliott & Churchill, 533 S.W.2d 751 (Tex.1976); Guidry v. Neches Butane Products Co., 476 S.W.2d 666 (Tex.1972); Torres v. Western Casualty & Surety Co., 457 S.W.2d 50 (Tex. 1970); Glenn v. Prestegord, 456 S.W.2d 901 (Tex.1970); Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.1970).

The Court of Civil Appeals recognized that Wendell’s deposition testimony established that he knew “there were humps and lumps on the bottom of the canal between a foot and a foot and a half high” in the area of his dive; but, said the Court, “the deposition also shows that he did not know the humps or lumps were at the exact spot where he dived in.” (italics added). So the Court of Civil Appeals concluded that it was not shown “as a matter of law that Wendell knew about the dangerous condition which resulted in his injury.” 529 S.W.2d at 819. In their reply brief “Respondents submit that each hump or lump of clay in itself constituted a dangerous condition”; that “there is a fact question present as to whether or not Wendell . did realize that there were humps of clay in the location where he dove”; that “it is unclear whether Wendell . . . knew of various humps of clay away from the bank, or if the only humps of clay he was aware of were the humps that he referred to as ridges that ran out from the bank.”

As before noted, the rule stated in State v. Tennison, supra, is that a licensor is under the duty of not injuring a licensee by willful, wanton or gross negligence; but that an exception to this rule is that when the licensor does have knowledge of a dangerous condition, and the licensee does not, a duty is owed on the part of the licensor to either warn the licensee or to make the condition reasonably safe. There is no claim that LNVA was guilty of willful, wanton or gross negligence. The Court of Civil Appeals misapplied the exception in holding that the dangerous condition was not the presence of humps of clay in the area of Wendell’s dive, of which Wendell had full knowledge, but was the exact hump that Wendell struck; and, further, that LNVA owed Wendell the duty to either warn him of this particular hump of clay or take reasonable measures to make it safe for Wendell’s dive. In our view, the dangerous condition was the existence in the muddy waters of humps of clay which could be injuriously encountered when diving into the water. Wendell had the same knowledge of this condition that LNVA could have had, i. e., that there were dangerous humps of clay in the canal where he was swimming and into which he dived. LNVA could not have known the particular hump of clay Wendell would encounter just as Wendell did not know, and LNVA’s duty did not extend to warning Wendell of, or making safe, each and every hump of clay in the canal, including the one in question. It being shown by the summary judgment record that as a matter of law LNVA violated no duty owed to Wendell, the trial court correctly sustained LNVA’s motion for summary judgment.

The reliance of Oscar Murphy, et al, Respondents, upon Gonzalez v. Broussard, 274 S.W.2d 737 (Tex.Civ.App.1954, writ ref’d n. r. e.) is misplaced. The injured party there was precluded from recovering because he proved by his own testimony that he had all the knowledge that he could have received had he been warned by the licensor; Broussard was not rested on the fact that the injured child had actually seen the rock over which he stumbled. See also Buchholz v. Steitz, 463 S.W.2d 451 (Tex.Civ.App.1971, writ ref’d n. r. e.) where reference is made to the more liberal rule of the Restatement (Second) Torts, § 342. Even under this more liberal rule, a comment to this section states that a licensee is not entitled to expect that the possessor will warn him of conditions that are perceptible to him, or the existence of which can be inferred from facts within his present or past knowledge.

The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.

SAM D. JOHNSON, J., writes concurring opinion in which REAVLEY, J., joins.

SAM D. JOHNSON, Justice

(concurring).

This writer would adopt the rule of liability for the possessor of land to a licensee recited in Section 342 of the Restatement (Second) of Torts. The duty of an owner-occupier of land should be extended accordingly. Concurring Opinion, State v. Tennison, 509 S.W.2d 560, 563 (Tex.1974).

Even under the Restatement rule, however, this writer would reach the result of the majority.

REAVLEY, J., joins in this concurring opinion.

      . Q Now with respect to these humps that you told me about, you knew that they were there when you dived in?
      A Yes, sir.

      Q You knew the humps were in there where you were diving?
      A Yes, sir.
      Q And that some places you had to be careful or you would hit them?
      A Yes, sir.

      Q What you hit was a hump, wasn’t it?
      A Yes, sir.

      Q You were familiar with the fact that the humps were there?
      A Yes, sir.
      Q And that you had to miss them or you could have some bad trouble?
      A Yes, sir.

      Q And you knew that you had to be careful there or that very thing would happen, didn’t you?
      A Yes, sir.

      Q Wendell, in the swimming training you had had before, was one of the things that they taught you was to be sure of the bottom where you were diving in, particularly if you were diving into a stream or something other than a swimming pool where you could see the bottom?
      A I have been told that, yes.

      Q Well, you knew there were humps there, did you not?
      A That there were humps there, yes, sir.
      Q And you knew you had to avoid them?
      A Well, the humps that I mostly knew about were the ones right around — closer in to the bank, and they were like ridges that ran out.
      Q Well, you knew you had to be careful of humps when you dived in in that area, didn’t you?
      A Yes, sir.

      . The Restatement (Second) Torts, § 342, would impose liability on a possessor of land when he “knows or has reason to know” of a dangerous condition and the licensee does “not know or have reason to know of the condition and the risk involved.” The elements called for by this rule are not present here and for this reason no opinion is expressed concerning its adoption.


author: ONION, Presiding Judge.

text:
    Don SELLERS, Appellant, v. The STATE of Texas, Appellee.
    No. 50830.
    Court of Criminal Appeals of Texas.
    May 19, 1976.
    Donald W. Rogers, Jr., Houston, Court appointed on appeal, for appellant.
    Carol S. Vance, Dist. Atty., and James C. Brough and Michael Maguire, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ON APPELLANT’S MOTION „ FOR REHEARING

ONION, Presiding Judge.

Our opinion on original submission is withdrawn and the following is substituted in lieu thereof.

The appellant appeals from a robbery by assault conviction. The punishment was assessed by the jury at twenty (20) years. The offense was shown to have occurred on March 18, 1973. The indictment was presented on April 12, 1973.

On rehearing it is called to our attention that the indictment in the instant cause contains the same fundamental defect as that found in Lucero v. State, 502 S.W.2d 128 (Tex.Cr.App.1973), in that it fails to allege “to whom the property allegedly taken belonged.” See also Bouie v. State, 528 S.W.2d 587 (Tex.Cr.App.1975); French v. State, 531 S.W.2d 613 (Tex.Cr.App.1975); Arline v. State, 529 S.W.2d 73 (Tex.Cr.App.1975); Ainsworth v. State, 531 S.W.2d 613 (Tex.Cr.App.1975); Batro v. State, 531 S.W.2d 614 (Tex.Cr.App.1975).

The appellant’s motion is granted, the order of affirmance is withdrawn, and the judgment is reversed and the cause remanded.


author: AKIN, Justice. GUITTARD, Justice

text:
    Staley W. MIMS et al., Appellants, v. Wilford J. BOHN, Appellee.
    No. 18761.
    Court of Civil Appeals of Texas, Dallas.
    March 11, 1976.
    Rehearing Denied April 8, 1976.

      John C. Biggers, Rick W. Hightower, Big-gers, Lloyd, Biggers, Beasley & Amerine, Dallas, for appellants.
    Gerald R. Coplin, Passman, Jones, Andrews, Coplin, Holley & Co., Dallas, for appellee.
   AKIN, Justice.

This is an appeal from an order overruling defendants’ pleas of privilege. Plaintiff seeks to sustain venue in Dallas County under Tex.Rev.Civ.Stat.Ann. art. 1995(4) (Vernon 1964).

The principal question is whether plaintiff introduced sufficient evidence to support a finding of a civil conspiracy to deprive plaintiff of certain stock and cash dividends against defendants Southland Life insurance Company and Southland Financial Corporation, the Dallas County residents.

Wilford J. Bohn sued his former wife Carolyn Mims Bohn, her parents, Staley W. Mims and Oralie Mims, and the two South-land companies for damages in Dallas County alleging that the defendants conspired to wrongfully deprive him of his Southland Financial Corporation stock and the accrued cash dividends on this stock. In the same suit, plaintiff sued his ex-wife, as principal, and Travelers Indemnity Company, as surety, on a bond naming plaintiff as payee for damages resulting from the alleged wrongful issuance of an injunction enjoining defendants Southland Financial Corporation and Southland Life Insurance Company from delivering to plaintiff the stock and accrued dividends held by defendants Southland. The injunction was obtained ancillary to an action for a bill of review seeking to set aside the final judgment awarding the stock to plaintiff. This action was also alleged to be in furtherance of the conspiracy to deprive plaintiff of the use of his Southland stock. The defendants Mrs. Bohn and Mr. and Mrs. Mims each filed a plea of privilege to be sued in Houston County. These pleas were controverted by plaintiff who alleged that they were co-conspirators and, therefore, proper parties. After hearing, the trial court entered its order overruling the pleas of privilege and sustaining venue in Dallas County. Defendants Mr. and Mrs. Mims and Mrs. Bohn appeal. We affirm.

Article 1995(4) provides: “If two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides.” [Emphasis added.] In addition to proving that one defendant is a resident in the county of suit, Texas courts have engrafted two additional requirements, which are: (1) Plaintiff must allege a joint cause of action against the resident and nonresident defendants or a cause of action so intimately connected with the action proved against the resident defendant that joinder is proper to avoid multiplicity of suits; and (2) plaintiff must introduce evidence at the venue hearing to establish a cause of action against the resident defendant. Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 (1936); Houston Sash & Door Co. v. Davidson, 509 S.W.2d 690, 692-93 (Tex.Civ.App.—Beaumont 1974, writ ref’d n. r. e.). Since it was stipulated that South-land Life Insurance Company, Southland Financial Corporation, and Travelers Indemnity Company are Dallas County residents and since defendants Mrs. Bohn and the Mims are proper parties to the alleged civil conspiracy against plaintiff, the only question for determination is whether plaintiff proved by a preponderance of the evidence a cause of action for civil conspiracy against the resident defendants Southland. Since Southland Life insurance is a wholly-owned subsidiary of Southland Financial Corporation, we consider them as one entity for the purpose of this appeal and will refer to them collectively as “Southland.” Consequently, to prove a conspiracy for venue purposes under subdivision (4), plaintiff must also prove that at least one of the appellants conspired with Southland.

A civil conspiracy is “a combination by two or more persons to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means.” Great National Life Insurance Co. v. Chapa, 377 S.W.2d 632, 635 (Tex.1964). All conspirators are jointly and severally liable for wrongful acts done in furtherance of the conspiracy. State v. Standard Oil Co., 130 Tex. 313, 107 S.W.2d 550, 559 (1937). This is true even though one of the conspirators enters into the conspiracy at a later time. Id. at 560. In International Bankers Life Insurance Co. v. Holloway, 368 S.W.2d 567, 581 (Tex.1963), the Supreme Court quotes from Jernigan v. Wainer, 12 Tex. 189, 193 (1854):

When men enter into conspiracies, they are not likely to call in a witness . In such eases the injured party must necessarily have recourse to circumstantial evidence. For it is only by the inferences and deductions which men properly and naturally draw from the acts of others in such cases, that their intentions can be ascertained. They are not likely to proclaim them in the hearing of witnesses. [Emphasis added.]

The Holloway court also quotes Whitmore v. Allen, 33 Tex. 355, 357 (1870): “A conspiracy may be proven as well by the acts of the conspirators, as by anything they may say, touching what they intended to do.” [Emphasis added.] A conspiracy may be established, therefore, by proof which shows a concert of action or other facts and circumstances from which the natural inference arises that the wrongful, overt acts were committed in furtherance of a common design, intention, or purpose of the conspirators. Texas Public Utilities Corp. v. Edwards, 99 S.W.2d 420 (Tex.Civ.App.—Austin 1936, writ dism’d).

Since appellants attack the order of the trial court on no evidence and insufficient evidence points, we review the evidence indulging every reasonable inference in favor of the trial court’s order. E. g., James v. Drye, 159 Tex. 321, 320 S.W.2d 319, 323 (1959).

Prior to his marriage to defendant Carolyn Bohn, plaintiff owned no Southland stock. All Southland stock, except 86 shares given to plaintiff by defendants Mr. and Mrs. Mims, were gifts to Carolyn Bohn by her grandmother and by her parents, Mr. and Mrs. Mims. Carolyn Mims Bohn gave the stock to him before he filed for divorce on July 5, 1966.

In October 1966, while the divorce suit was pending, defendant Mr. Mims, in the presence of defendants Mrs. Mims and Mrs. Bohn, told plaintiff that he would never receive one penny of the money represented by the Southland stock and that “they” would do whatever was necessary to prevent plaintiff from obtaining the stock. In addition, Mr. Mims engaged during the protracted divorce litigation in placing as much financial pressure on plaintiff as possible. For example, on October 20, 1972, Mims advised plaintiff that he had purchased plaintiff’s note in the amount of $11,340 payable to the Franklin Bank of Houston, Texas, and demanded payment in full of the note. This note had been executed by plaintiff to secure funds to continue making payments on real estate owned by the parties to the divorce action. Furthermore, Mims attempted to foreclose on 216 acres of land in Houston County and posted the property for sale. Plaintiff was compelled to pay $696 to Mims to prevent foreclosure. Moreover, plaintiff had attempted to sell this 216 acres but was unable to do so because of threats made by defendants Mims and Bohn.

The litigation between plaintiff and his former wife included three jury trials, in all of which defendant Staley Mims appeared as a witness for his daughter regarding ownership of the Southland stock. In December 1967, after the first judgment awarding the stock to plaintiff, Mrs. Bohn’s attorney notified Southland that Mrs. Bohn was claiming title to all Southland Life Insurance Company stock standing in the name of Wilford J. Bohn except a few shares given Mr. Bohn by Staley W. Mims and wife Oralie B. Mims.

Prior to this notification plaintiff had been receiving periodic cash dividends. In February 1968, plaintiff made demand by letter upon defendant Southland for payment of certain withheld dividends and 575 shares of Southland Life stock, representing stock dividends on the stock standing in plaintiff’s name. Southland refused to issue these stock dividends to plaintiff. After receiving this letter, Southland notified plaintiff in January 1968 that it would not deliver cash and stock dividends that accrued in January 1968.

On January 3, 1972, a second letter was written by defendants’ attorney calling Southland’s attention to the fact that in the corporate reorganization Southland Life Insurance stock would be exchanged for stock in Southland Financial Corporation and that holders of Southland Life Insurance stock were to surrender their Southland Life Insurance Company stock for two shares of Southland Financial Corporation for each share of Southland Life surrendered. Again defendants’ attorney made claim for Mrs. Bohn to the stock standing in the name of plaintiff “except a few shares given Mr. Bohn by Staley W. Mims and wife, Oralie B. Mims.” This letter also states: “You are given this notice in order that Mrs. Bohn’s rights may be protected, and so that you may take the steps necessary to protect yourselves.”

By letter of January 7, 1972, plaintiff delivered all of his shares of the Southland Life Insurance Company to be exchanged in accordance with the reorganization agreement. Plaintiff instructed Southland to deliver his new certificates to him personally or by certified mail and again made demand that the certificate representing 575 shares previously withheld by Southland Life Insurance Company be delivered to him. In this letter he advised defendant Southland that refusal to deliver the certificate “may well be and probably is conversion and would subject Southland Life Insurance Co. to liability and damages, is without basis at law, and is over my strongest protests.” He continued: “I have advised, moreover, that there is no lawful injunction prohibiting same or other lawful basis for refusing to deliver said certificate to me, and I again request that said certificate, or its exchange certificates be delivered to me without delay.” On January 11, 1972, plaintiff met personally with the corporate attorney of Southland and reiterated these demands. Southland refused to comply. Southland did, however, give plaintiff a receipt dated January 11, 1972, acknowledging receipt of the certificates of Southland Life Insurance Company capital stock received by them for conversion into Southland Financial Corporation common stock with the following notation: “These certificates are being held in addition to the new Southland Financial Corporation certificate pending outcome of certain litigation contesting title to said certificates.” On February 1, 1972, plaintiff received a letter from Southland transmitting a photocopy of a stock certificate showing 3,706 shares standing in the name of Wilford J. Bohn and reiterating that Southland was withholding delivery of all certificates “pending final resolution of ownership.”

A final resolution of ownership was determined by a judgment rendered on December 20, 1972, which awarded the disputed shares to plaintiff as his separate property. No further appeal was taken. After this judgment became final, plaintiff by letter dated February 2, 1973, addressed to Southland’s attorney, demanded payment of accrued cash dividends for the years 1968 through 1972 in the total amount of $12,-966.25 together with interest thereon at the rate of six percent from the date accrued because of the “unlawful and wrongful retention” of these funds. In this letter plaintiff also detailed all of the certificates by number withheld from him by Southland and again made demand that the withheld Southland Financial Corporation certificates be issued immediately to him. Again, on February 3 or 4, 1973, plaintiff met personally with the corporate attorney for Southland and tendered a certified copy of the judgment of December 20,1973, together with a certificate from the district clerk of Harris County showing that no appeal had been taken from this judgment. Plaintiff’s demands for his stock certificates and accrued cash dividends were again refused by Southland. The reason given by South-land’s attorney this time was because “Mrs. Bohn’s attorney had filed a claim under the UCC.”

On February 7, 1973, Southland’s corporate attorney wrote a letter to Mrs. Bohn stating that Southland would have no alternative but to deliver the certificates and the accrued cash dividends to Mr. Bohn unless within thirty days from February 7, 1973, that Mrs. Bohn either obtain an injunction prohibiting Southland from delivering the stock and cash to Mr. Bohn or furnish Southland with an indemnity bond in the principal amount of not less than $250,000. This letter appears to have been written for the purpose of invoking Tex. Bus. & Comm.Code Ann. § 8.403(b) (Vernon 1968) which provides:

The issuer may discharge any duty of inquiry by any reasonable means, including notifying an adverse claimant by registered or certified mail . . and that the transfer will be registered unless within thirty days from the date of mailing the notification, either
(1) an appropriate restraining order, injunction or other process issues from a court of competent jurisdiction; or
(2) an indemnity bond sufficient in the issuer’s judgment to protect the issuer and any transfer agent, registrar or other agent of the issuer involved, from any loss which it or they may suffer by complying with the adverse claim is filed with the issuer. [Emphasis added.]

This act by defendant Southland seems unusual because no duty of further inquiry existed after receipt of the final judgment. Indeed, the “inquiry” almost amounts to legal advice.

Nevertheless, plaintiff waited three days after the expiration of the thirty-day notice given Mrs. Bohn by Southland. Then on March 12, 1973, at 9:45 o’clock a. m., plaintiff and his attorney personally appeared at the office of Southland’s attorney and again demanded delivery of the stock and accrued cash dividends. Southland’s corporate attorney immediately refused to honor this demand. He gave no reason for his refusal. Plaintiff’s attorney forthwith wrote a letter to Southland’s corporate attorney to confirm both the time and fact of the demand and the refusal of Southland to comply. We see no reasonable justification for this refusal. A reasonable inference may be drawn that Southland’s corporate attorney knew that Mrs. Bohn’s attorney was in the process of obtaining a temporary restraining order in Harris County pursuant to Southland’s “suggestion” of February 7. Indeed, a temporary restraining order was signed by the domestic relations court of Harris County on March 12, 1973, restraining defendant Southland from either issuing the stock certificates or delivering the cash dividends to plaintiff. This temporary restraining order was ancillary to a suit for a bill of review to set aside the final judgment of December 12, 1972, and was conditioned, however, upon Mrs. Bohn’s filing a good and sufficient bond in the sum of $200,000. This bond was not filed until March 14, 1973, at 2:30 o’clock p. m. The principal on this bond was Mrs. Bohn with defendant Travelers Indemnity Company as surety.

Certainly, this is evidence from which the trial court could draw a reasonable inference that Southland had entered into a civil conspiracy with defendants Mims and Bohn to deprive plaintiff of the use and benefit of the stock and the cash dividends accrued.

Thereafter, the trial court in Harris County entered a temporary injunction enjoining Southland from issuing the stock to plaintiff and enjoining plaintiff from disposing of the stock. The bond to protect Southland from liability was amended to also include plaintiff as a payee for damages in the event that the temporary injunction was determined to be wrongfully issued. Plaintiff appealed. Bohn v. Bohn, 498 S.W.2d 267 (Tex.Civ.App.—Houston [14 Dist.] 1973, writ dism’d). On July 18, 1973, the Court of Civil Appeals for the Fourteenth Supreme Judicial District reversed the order of the trial court granting the injunction and dissolved the injunction holding that Mrs. Bohn had not met the requirements for a bill of review and, consequently, was not entitled to the injunction. Although she filed a writ of error with the supreme court, which was finally denied on February 27, 1974, for want of jurisdiction, Mrs. Bohn took no action to stay the judgment of the court of civil appeals dissolving the injunction.

On October 23, 1973, plaintiff made written demand for his certificates, which as a result of another stock dividend in early 1973, amounted to 11,500 shares and for the accrued cash dividends being withheld by Southland which amounted to $15,841.25. In this demand plaintiff reiterated that the retention of the stock and funds by South-land was wrongful and was without legal justification, and he suggested that South-land was a willing party to the actions of defendants Mims and Mrs. Bohn to keep plaintiff from obtaining his lawful shares. In this letter plaintiff emphasized that certain of these shares were never disputed by Mrs. Bohn throughout the years of litigation. Yet again, Southland refused to comply although under no legal restraint. On March 3, 1974, after denial of a writ of error by the supreme court, plaintiff demanded that Southland deliver his stock and accrued cash dividends. Finally, on April 15,1974, defendant Southland partially complied; however, Southland failed to deliver 200 shares together with $1,475 in accrued cash dividends on these shares, all of which were claimed by plaintiff. South-land sought to justify this action because it contended that the December 20, 1972, judgment was unclear as to ownership of these shares. Although plaintiff maintained that the judgment of December 20, 1972, is clear concerning ownership of these certificates, he nevertheless filed a motion for judgment nunc pro tunc in the domestic relations court of Harris County. On May 22, 1974, the domestic relations court of Harris County rendered its order denying the motion for judgment nunc pro tunc without hearing, finding the judgment clear and devoid of clerical error. The judgment clearly stated that all shares in the name of plaintiff, Wilford J. Bohn, on June 1,1967, or on October 18,1971, are his separate property together with all accrued cash dividends, stock dividends, whether issued or not except for 100 shares in the court’s registry and 100 shares represented by certificate number 61922, awarded to Mrs. Bohn. Included were all shares withheld including those never in dispute.

Thereafter, in response to an inquiry by plaintiff concerning the additional 200 shares of Southland Financial Corporation claimed by him together with the accrued cash dividends thereon, Southland advised plaintiff on January 17, 1975, that it had previously issued these shares together with the accumulated cash dividends to Carolyn Mims Bohn on August 26, 1974. No notice was given plaintiff under § 8.403(b) prior to issuance of the stock to defendant Mrs. Bohn such as Southland had given Mrs. Bohn in February 1978, when confronted with a certified judgment. Southland asserts as justification for this action the May 22,1974, order denying motion for judgment nunc pro tunc. This order as noted, supra, simply found that a nunc pro tunc order was unnecessary. We see no reasonable justification for this action by Southland. Again, a reasonable inference may be drawn by the trial court that this action was evidence in furtherance of a conspiracy to deprive plaintiff of the use and benefit of his stock. Certainly, if defendant Southland had doubt as to the ownership of these shares it should have complied with § 8.403(b). Indeed, the action here of defendant Southland is not indicative of a mere innocent stakeholder. Southland gave Mrs. Bohn more than the fullest protection of the law on the one hand, and, on the other, completely disregarded the interests of plaintiff by advising him after the fact that they had issued the disputed stock to Mrs. Bohn. Under § 8.403 the issuer may discharge any duty of inquiry by any reasonable means; the reasonable means may be a suit for a declaratory judgment interpleading interested adverse parties and tendering the stock and accrued dividends into the registry of the court for determination of ownership. The “may” contained in § 8.403(b) is discretionary. But where an issuer exercises the option in favor of a party as it did after the judgment of December 20, 1972, was final in favor of Mrs. Bohn, and, fails to act under the same or even more compelling circumstances in the same matter to the other party, it is reasonable to infer that South-land was in truth and fact conspiring with defendants Mims and Mrs. Bohn to deprive plaintiff of his property. It is only from reasonable inferences and deductions that may be drawn from the acts and conduct of a person that his intentions may be ascertained. Jernigan v. Warner, supra; International Bankers Life Insurance Co. v. Holloway, supra. These actions of defendant Southland are without legal justification or excuse and the natural consequence of these acts are oppressive of plaintiff’s rights. An action for civil conspiracy lies if the acts of the conspirators are without legal justification or excuse and if the natural and necessary consequence of the act is the oppression of an individual. Great National Life Insurance Co. v. Chapa, supra at 635.

We conclude, therefore, that there was sufficient evidence of acts and conduct by Southland, the Mims and Bohn, for the trial court to conclude for the purpose of venue that they had entered into a conspiracy to deprive plaintiff of not only his stock and dividends but other property as well. Certainly, the evidence here is far more than a scintilla; consequently, we hold that plaintiff sustained his burden in proving a cause of action by a preponderance of the evidence of a civil conspiracy against the resident defendant Southland and the nonresident defendants Mims and Mrs. Bohn so as to sustain venue in Dallas County.

This holding, of course, is only for the purpose of determining venue of the action of plaintiff against the Mims and Mrs. Bohn. The Southland Companies were not involved in the venue hearing and are not parties to this appeal. Consequently, no adjudication of the conspiracy charge has been made against them either in the trial court or in this court.

Affirmed.

GUITTARD, J., dissents.

GUITTARD, Justice

(dissenting).

I do not believe that the evidence in this record shows such a concert of action between the Southland Companies and the nonresident defendants as to justify the inference of a conspiracy. Consequently, I would reverse the trial court’s order and sustain the pleas of privilege.

      . A nonresident defendant is a proper party under subdivision 4 if there exist common questions of fact. Von Scheele v. Kugler-Morris General Contractors, Inc., 532 S.W.2d 375 (Tex.Civ.App.— Dallas, 1975); Angelo v. Chemical Bank and Trust Co., 529 S.W.2d 783, 787 (Tex.Civ.App.—Dallas 1975, writ dism’d). Here the nonresident defendants are proper parties because the very essence of civil conspiracy is concerted action by multiple parties, all of whom are jointly and severally liable. Consequently, joinder is proper.

      . See Bohn v. Bohn, 420 S.W.2d 165 (Tex.Civ.App.—Houston [1st Dist.] 1967, writ dism’d); Bohn v. Bohn, 455 S.W.2d 401 (Tex.Civ.App.—Houston [1st Dist.] 1970, writ dism’d); Bohn v. Bohn, 498 S.W.2d 267 (Tex.Civ.App.—Houston [14th Dist.] 1973, writ dism’d).

      . The attorney representing Mrs. Bohn in the divorce action also represented Mr. and Mrs. Mims on a plea of intervention in the divorce case asserting ownership of certain personal property.


author: AKIN, Justice.

text:
    David L. SLOAN, et al., Appellants, v. Sam PASSMAN, Appellee.
    No. 21156.
    Court of Civil Appeals of Texas, Dallas.
    March 11, 1976.
    Rehearing Denied April 8, 1976.
    For Dissenting Opinion, see 538 S.W.2d 1.

      David L. Hatch, Sessions, Sessions, Neill, Scucchi & Hatch, Dallas, for appellants.
    Shannon Jones, Jr., Passman, Jones, Andrews, Coplin, Holley & Co., Dallas, for appellee.
   AKIN, Justice.

This is a motion filed by appellant seeking to extend under Tex.R.Civ.P. 21c the time for filing the transcript beyond sixty days from the date of judgment as required by Tex.R.Civ.P. 386.

Rule 386 provides:

In appeal or writ of error the appellant shall file the transcript . . . with the clerk of the Court of Civil Appeals within sixty days from the rendition of the final judgment or order overruling motion for new trial, or perfection of writ of error. [Emphasis added.]

We construe this language as mandatory rather than directory. This language is modified, however, by rule 21c, which provides that the court of civil appeals may permit late filing of the transcript when a motion to extend the time is filed within fifteen days after the sixtieth day from the date of judgment, provided, however, that a “reasonable explanation” is offered for the delay.

The question is whether a reasonable explanation, pursuant to rule 21c, for the failure to file within the sixty days specified by rule 386 includes reasonable diligence during the entire sixty-day period or whether reasonable explanation refers only to the time after the receipt of the transcript from the clerk. We hold that it means a reasonable explanation for the entire sixty-day period. Estate of Harris v. Air Force Valley Foundation, Motion No. A3638 (Tex.Civ.App.—San Antonio, January 28, 1976, not yet reported). Our holding here is supported by Patterson v. Hall, 430 S.W.2d 483 (Tex.1968) where the court construed “the good cause” test under rule 386, prior to its amendment effective January 1, 1976, to extend to the entire sixty-day period. Accord Wigley v. Taylor, 393 S.W.2d 170 (Tex.1965). By substituting a “reasonable explanation” for the “good cause test,” the supreme court merely relaxed the standard required, but did not eliminate the requirement of diligence during the sixty days.

Judgment was rendered on December 4, 1975. By letter dated January 15, 1976, appellant requested that the district clerk prepare the transcript. No explanation is offered for this forty-two day delay. Since we hold that “reasonable explanation” extends to the entire sixty-day period, this unexplained forty-two day period is conclusive.

In so holding, we do not construe the term “reasonable explanation” as giving this court absolute discretion to permit late filing. Instead, this language limits our discretion to a determination of whether the explanation offered for failing to timely file is reasonable. This is true because the implicit requirement of promptness and diligence was not deleted from the Texas Rules of Civil Procedure. For example, Tex.R. Civ.P. 376 requires that the appellant shall promptly file with the clerk a copy of the written direction to prepare the transcript. Parks-Davis Auctioneers, Inc. v. L & W Tong Service, Inc., 496 S.W.2d 679 (Tex.Civ.App.—Corpus Christi 1973, no writ).

Since an appellant seeking a motion for an extension of time is required to set forth a reasonable explanation for not timely filing the transcript (21c), it is also implicit that an appellant is required to reasonably explain his actions or inactions during the entire sixty-day period, including a reasonable explanation for an extraordinary delay in requesting preparation of the transcript.

To hold as appellants would have us do would permit appellants to unreasonably delay requesting preparation of transcripts, thus abusing the orderly and timely disposition of appeals.

Assuming, however, that reasonable explanation does not extend to this unexplained forty-two day lapse of time, we will review the explanation offered by appellant after receiving the transcript to determine whether it is reasonable. On January 29, 1976, a Thursday, five days before the last date for filing, appellant received the transcript from the district clerk. Instead of filing the transcript immediately with the clerk of the court of civil appeals, appellant chose to take it back to his office to determine if the correct documents were included and to ascertain the accurate time for filing it. These reasons are not valid excuses because: (1) The time for filing the transcript was apparent from the date of judgment contained in the transcript, and (2) there was no immediate necessity for determining whether the correct documents were included because any omission in the transcript could be remedied by motion to supplement after the record was filed. Tex.R.Civ.P. 404, 428.

Appellant’s attorney directed his secretary on either January 29 or 30 (the specific date is uncertain from the affidavit) to file the transcript with this court. However, the secretary so instructed, terminated her employment on January 30 in preparation for marriage. Affiant does not state whether he knew of the approaching departure and impending marriage of his secretary. He does state, however, that he is now aware that she was not capable of performing her duties because she was extremely preoccupied with her marriage plans. He avers that the other secretary in the office also left her employment on January 30 to have a baby. Again, he fails to state whether this departure date was unanticipated. The departure of the latter secretary is immaterial because there is no showing that she was also instructed to file the transcript. Since appellant’s attorney made his secretary his agent to file the transcript, he cannot now complain of her failure so to do. McGovern v. Smith, 518 S.W.2d 254 (Tex.Civ.App.—San Antonio 1974, no writ).

Although affiant attorney states that the attorney of record in this cause was out of town from January 26 until after the motion for extension of time had been filed, no explanation is offered why other attorneys in appellants’ firm could not have filed it.

Furthermore, although appellants’ attorney does not so state, presumably he was in his office on January 30 and could have filed the transcript by mail or in person. Tex.R.Civ.P. 5. He does state, however, that he was ill on January 31, February 1 and 2, and did not return to his office until noon on Tuesday, February 3, when he discovered that the transcript had not been filed. On February 4, he tendered it for filing together with a motion for extension of time alleging these facts as a reasonable explanation for the delay.

Consequently, even if we construe that reasonable explanation need only be made for the time after receipt of the transcript, we hold that the explanation offered is not a reasonable one.

Motion denied.

GUITTARD, J., dissenting.

      . Prior to January 1, 1976, rule 386 authorized a court of civil appeals to extend the time for filing the transcript and statement of facts when motions are made within seventy-five days after final judgment is rendered or a motion for new trial overruled, showing “good cause” to have existed within the sixty-day period why the transcript and statement of facts could not have been filed within the sixty-day period.


author: CLAUDE WILLIAMS, Chief Justice.

text:
    BEST INVESTMENT COMPANY et al., Appellants, v. Donald H. WHIRLEY et ux., Appellees.
    No. 18818.
    Court of Civil Appeals of Texas, Dallas.
    March 24, 1976.
    Rehearing Denied May 6, 1976.

      W. Bruce Monning, Wynne & Wynne, Wills Point, for appellants.
    Lawrence Fischman, Chris Weil, Weil, Craig & Fischman, Dallas, for appellees.
   CLAUDE WILLIAMS, Chief Justice.

This is an interlocutory appeal by Best Investment Company and B. J. Wynne from an ex parte order appointing a receiver. Donald H. Whirley and wife filed their verified petition in which they alleged that on July 25, 1975, they had recovered a judgment against Joe A. Irwin in the sum of $34,960 which said judgment had become final and had not been superseded. They sought (1) an ex parte appointment of a receiver to take possession of Joe A. Irwin’s property so that it would be available to pay the judgment and (2) a temporary restraining order enjoining transfer of Irwin’s property. On Friday, October 3, 1975, the judge of the 160th District Court of Dallas County, Texas, without notice to Best Investment Company or B. J. Wynne, appointed a receiver. Best and Wynne appeal only from that part of the judgment appointing a receiver ex parte. We reverse because (1) the record fails to show great emergency and imperious necessity for immediate appointment of a receiver; (2) no specific lien on the property is shown to exist; and (3) inadequacy of other remedy has not been shown.

Since the receiver was appointed ex parte and without notice of any kind to Best and Wynne, neither of whom were parties to the original suit, we must look to the allegations of fact contained in the Whirley petition to determine the propriety of the order granted in such a peremptory fashion. In such petition, verified by Whirley’s attorney, after alleging the finality of the judgment against Irwin, it was alleged that such judgment constitutes a lien upon the real property of Irwin in Dallas County in that an abstract thereof was duly recorded in the abstract of judgment records in said county on October 1, 1975. It was further stated that Irwin purports to be the owner of substantial property, real and personal, consisting of real estate, notes secured by real estate, contract rights and choses in action arising out of sales or transfer of real estate, and capital stock evidencing his ownership in Best Investment Company. It is stated that legal title to much of the real estate owned by Irwin is in the name of Best Investment Company who holds such legal title for the benefit of Irwin. It is further stated that Best Investment Company is also the payee and obligee of some of the above described notes, contract rights and choses in action. On or about September 18, 1975, pursuant to Tex.R.Civ.P. 621a the Whirleys commenced the oral deposition of Irwin ancillary to and in aid of the judgment theretofore obtained against Irwin, for the purpose of discovering assets of Irwin subject to execution and satisfaction of the judgment. Although subpoenaed and served with a subpoena duces tecum to produce books of accounts and records, deeds, muniments of title and other evidence or indicia of ownership of property, real or personal, Irwin failed and refused to comply with such subpoena duces tecum on the date set but did agree to return on October 1, 1975, to produce the documents demanded. On such date, Irwin appeared but did not produce all of the documents and books of accounts and records required by the subpoena duces tecum. On that occasion defendant Irwin stated that he had transferred or was in the process of transferring all of his property, or interest in property to defendant Wynne for the benefit of Wynne and the wife of defendant Irwin, and purported in consideration of legal and other services to be rendered by defendant Wynne. It was then alleged that any transaction between Irwin and Best, as transferors, and Wynne as transferee, “made or contemplated are not in the regular course of business, are done secretly, constitute a transfer of the entire assets of Irwin, for inadequate consideration, and in contemplation of the pending litigation between plaintiffs and defendant Irwin and the consequences of the judgment rendered therein and are and were with the intent on the part of defendant Irwin to hinder, delay or defeat plaintiffs in the satisfaction of their judgment against defendant Irwin” so that such transactions are fraudulent and void as to plaintiff. Plaintiffs ask that a receiver “be appointed to take physical custody of the capital stock of Irwin in Best Investment Company, as well as all notes, contract rights, ehoses in action owned by Irwin, legally or beneficially, whether standing in his name or in the name of Best Investment Company, and receive from each obligor thereon all sums that may become due, and take such other action as the court may prescribe for the preservation of such property for the benefit of the parties as their interest may appear.”

As the part of their petition for injunc-tive relief, the Whirleys alleged that the property sought is intangible and evidenced only by notes, contracts and similar documents and, as such, such property may be easily concealed, transferred or placed beyond the jurisdiction of the court. Therefore, they requested an injunction, ex parte, to enjoin Best and Wynne to deliver possession of the personal property and refrain from making any transfer of such property.

Relying solely on these allegations, the trial court immediately and without notice appointed a receiver and authorized and directed such receiver to make demand upon Irwin, Best and Wynne to produce and deliver to him “all notes, contracts, contract rights, or accounts and ehoses in action and other muniment of title or indi-cia of ownership thereof with respect to which the defendant Joe A. Irwin and/or the defendant Best Investment Company is or was the obligee . . . It was further ordered that Irwin, Best and Wynne be ordered and directed to immediately deliver into the possession and custody of the receiver named all “notes, contracts, contract rights, ehoses in action and any muniment of title or other indicia of ownership thereof with respect to which the defendant Joe A. Irwin and/or Best Investment Company were or are the obligees . . . .” Irwin, Best and Wynne were restrained and enjoined from transferring, secreting and encumbering or placing beyond the jurisdiction of the court any property, real, mixed or personal, now or previously standing in the name of Irwin and/or Best Investment Company.

The statutory authority for the appointment of a receiver in Texas is found in Tex.Rev.Civ.Stat.Ann. art. 2293 (Vernon 1971) which provides:

Receivers may be appointed by any judge of a court of competent jurisdiction of this State, in the following cases:
(1) In an action by a vendor to vacate a fraudulent purchase of property; or by a creditor to subject any property or fund to his claim; or between partners or others jointly owning or interested in any property or fund, on the application of the plaintiff or any party whose right to or interest in the property or fund or the proceeds thereof is probable, and where it is shown that the property or fund is in danger of being lost, removed or materially injured.

Appellants have mounted a constitutional attack upon our statute contending that the appointment of a receiver without notice violates the due process laws of the Fourteenth Amendment to the Constitution of the United States. In view of our holding, subsequently announced, that the trial court was in error in granting the application for appointment of receiver ex parte we do not reach the constitutional question.

It has been judicially determined that the right to appointment of a receiver ex parte and without notice rests within the trial court’s discretion. Such discretion, however, is subject to judicial review. Corsicana Hotel Co. v. Kell, 66 S.W.2d 760 (Tex.Civ.App. —Dallas 1933, no writ); Ellis v. Filgo, 185 S.W.2d 739 (Tex.Civ.App.—Dallas 1945, no writ); and Shell Oil Co. v. Turnbow, 142 S.W.2d 559 (Tex.Civ.App.—Texarkana 1940, no writ).

In recognition of the fact that appointment of a receiver without notice is one of the most drastic actions known to law or equity and should be exercised with extreme caution and only where great emergency or imperative necessity requires it, our courts have uniformly been reluctant to grant such harsh relief. Morris v. North Fort Worth State Bank, 300 S.W.2d 314 (Tex.Civ.App.—Fort Worth 1957, no writ). It has been held that appointment of receivers on ex parte application is to be made only in exceptional and extreme cases, Solomon v. Mathews, 238 S.W. 307 (Tex.Civ.App.—Amarillo 1922, no writ); and that appointment of receiver without notice to adverse party is one of the most drastic remedies known to the court and should be exercised only in extreme eases where right thereto is clearly shown and only then in exercise of great caution by the courts when the status of the property cannot be maintained and rights of applicants protected pending a hearing by a restraining order or temporary injunction or any less drastic remedy. Head v. Roberts, 291 S.W.2d 483 (Tex.Civ.App.—Fort Worth 1956, no writ); Marion v. Marion, 205 S.W.2d 426 (Tex.Civ.App.—San Antonio 1947, no writ); Wilkenfeld v. State, 189 S.W.2d 80 (Tex.Civ.App.—Galveston 1945, no writ); Keep 'Em Eating Co. v. Hulings, 165 S.W.2d 211 (Tex.Civ.App.—Austin 1942, no writ); Great Eastern Oil Co. v. Lewis, 49 S.W.2d 527 (Tex.Civ.App.—Dallas 1932, no writ); Hunt v. State, 48 S.W.2d 466 (Tex.Civ.App.—Austin 1932, no writ). A receiver may be appointed without notice or opportunity for adverse party to be heard only in extreme cases wherein there is great emergency and imperious necessity for immediate appointment, Johnson v. Williams, 109 S.W.2d 213 (Tex.Civ.App.—Dallas 1937, no writ); Ames v. Ames, 64 S.W.2d 1067 (Tex.Civ.App.— Eastland 1933, no writ); Bankers’ Life & Loan Ass’n v. Cremona, 66 S.W.2d 762 (Tex.Civ.App.—Dallas 1933, no writ).

The policy underlying the requirement of urgent necessity is succinctly illustrated by the author’s comments in Chagra and Wolfram, Liens and Equity Rules in a Creditor’s Application for a Receiver in Texas, 40 Tex.L.Rev. 649, 661 (1962):

Where the appointment has been made ex parte (i. e., on the trial judge’s consideration of the creditor’s petition alone, and without affording the debtor notice of an opportunity to be heard), the trial court must accept the verified pleadings as true. Room for abuse obviously exists here and the courts have consequently required that the creditor show an ‘urgent necessity’ justifying the summary appointment.

The petition here not only asks for the appointment of a receiver ex parte but also asks for the granting of a temporary restraining order which would protect the applicants from any alleged or potential disposition of the property in question. This injunctive relief was granted and is still effective. No appeal has been taken from that phase of the order. There is no allegation that the property is about to be removed beyond the jurisdiction of this court. Absent allegations of urgent and imperious necessity and allegations to negate an adequate remedy, we hold that it was error to appoint the receiver ex parte.

Appellants contend that the trial court erred in appointing a receiver since the petition demonstrated that the Whirleys were not lien creditors as required by Tex. Rev.Civ.Stat.Ann. art. 2293(1) (Vernon 1971). The petition alleges that the Whir-leys obtained a judgment against Irwin which has not been satisfied nor has it been superseded. It asks that a receiver take custody of only the “capital stock, notes, contract rights, choses in action owned by defendant Irwin.” The petition does not allege that the Whirleys have a lien on this property sought to be seized. The only mention made of any security interest relates to an abstract of judgment lien against Irwin’s real property located in Dallas County. There are no allegations in the petition to the effect that the real property owned by Irwin, and upon which an abstract of lien has been placed, would not be sufficient to satisfy the judgment obtained against Irwin.

The statute authorizing the appointment of a receiver was originally enacted in 1887. In 1890, the supreme court in Carter v. Hightower, 79 Tex. 135,15 S.W. 223, 224, in an opinion by Mr. Justice Gaines, held that the act must be construed as applying only to the funds and property upon which the creditor has a lien for the satisfaction of his debt. The court said: “The words, ‘by a creditor to subject any property or funds to his claim,’ are to be limited to some particular fund or property belonging to a debtor upon which the creditor has a specific lien.”

The rule announced by the supreme court in Carter v. Hightower, has been universally recognized by both courts and commentators faced with the propriety of appointing a receiver upon application of a general creditor or one without a specific lien on the property sought to be seized. Parr v. First State Bank, 507 S.W.2d 579 (Tex.Civ.App.—San Antonio 1974, no writ); Trevino v. Graves, 418 S.W.2d 529 (Tex.Civ.App.—Houston [1st Dist.] 1967, no writ); Pelton v. First National Bank, 400 S.W.2d 398 (Tex. Civ.App.—Houston 1966, no writ); Greenland v. Pryor, 360 S.W.2d 423 (Tex.Civ.App.—San Antonio 1962, no writ); Waples-Platter Co. v. Mitchell, 12 Tex.Civ.App. 90, 35 S.W. 200 (1895, writ ref’d); Murphy v. Argonaut Oil Co., 23 S.W.2d 339 (Tex.Comm’n App.1930, jdgmt. adopted); Comment, 40 Texas L.Rev. 649 (1962). In Waples-Platter Co. v. Mitchell, in which writ of error was refused by the supreme court, this court held that an asserted lien interest of a creditor in property fraudulently transferred did not rise to the dignity of a lien for the purpose of the receivership statute. In the opinion, Justice Rainey wrote:

If the disposition of the property was fraudulent, such would not authorize the appointment of a receiver. It would give the creditors only such remedies as exist in other cases. They could proceed by judgment and execution, or by attachment or garnishment, and subject the property to the payment of the debt through one of those modes. ... It is a well-known principle that equity will not afford relief if the legal remedy is adequate and complete; and it seems to be well settled that, as a general rule, the aid of a receiver will be denied for the protection of contract or general creditors before judgment. High, Rec. §§ 403a, 404, 407. And, even after judgment is obtained, equity will not always interfere to afford relief.

In Pelton v. First National Bank, the creditor applying for receivership had obtained a money judgment against the creditor and also had a lien upon certain farm machinery. The judgment ordered the lien foreclosed but the creditor alleged that sale of the property covered by the lien would be insufficient to discharge the judgment and, therefore, asked for a receiver to be appointed to take an acreage allotment owned by the debtor. The court of civil appeals reversed the appointment of receiver to take the property not covered by a lien and in doing so reasserted the rule announced by the supreme court in Carter v. Hightower. In Greenland v. Pryor, supra, the facts reveal that Pryor was a secured creditor only with respect to a deed of trust lien on land owned by the debtor. Justice Pope, writing for the San Antonio Court of Civil Appeals, pointed out that the deed of trust lien did not extend to or include the crops on the property and, applying the rule of Carter v. Hightower, held that: “A creditor, to be entitled to a receivership, is one who has a specific lien upon some specific fund or property belonging to debtor. In other words he must be a secured creditor.” The court held that the appointment of a receiver on property not secured by a lien was erroneous.

In Murphy v. Argonaut Oil Co., supra, while upholding a receivership involving real and personal property as requested by a judgment creditor, the court specifically noted that prior to the receivership the judgment had been filed and recorded in the county where the real property was located, a writ of garnishment had been served on the bank where the personal property was located thereby creating a lien.

We observe no reason why the rule of Garter v. Hightower should not be applicable to the facts and circumstances here presented. The Whirleys admittedly have affixed a judgment lien upon certain real property owned by Irwin in Dallas County. Nowhere do they allege that the sale of this property in satisfaction of their lien would not satisfy the judgment obtained against Irwin. Nor is it alleged anywhere in the petition that they have a lien of any kind or character against the personal property sought to be seized and placed in the hands of a receiver. In this state of the record we hold that the appointment of a receiver was improper and such order must be vacated.

During oral argument before this court counsel for appellees contended that the proper relief which should have been sought by appellants in this case would have been a motion to vacate the appointment of a receiver. There is no merit to this contention. Our courts have uniformly held that a motion to vacate, filed under such circumstances, constitutes a waiver of irregularities in the original appointment. Ramsey v. Oliver, 246 S.W.2d 332 (Tex.Civ.App.—Dallas 1952, no writ); Batchelor v. Pacific Finance Corp., 202 S.W.2d 857 (Tex.Civ.App.— Dallas 1947, no writ); Lacey v. Dayton Rubber Manufacturing Co., 270 S.W. 916, 917 (Tex.Civ.App.—San Antonio 1925, writ dism’d).

In summary, we hold that the facts and circumstances presented do not justify the granting of the harsh and stringent remedy of the appointment of a receiver without notice. This is not the case where property is about to be destroyed or transported out of the state beyond the jurisdiction of the courts of Texas and, therefore, calling for immediate action. The courts of our state as well as the courts of the United States are becoming increasingly aware of the necessity for granting due process to every person regardless of age, color, or religious preference. It is only in extreme and urgent cases of emergency that due process should be denied and a receiver appointed ex parte to seize and take possession of property of others, especially those who were not parties to the original litigation. No such extreme emergency is shown to exist in the application presented to the district court. No reason is shown why the application could not have been set down for prompt hearing within a few days and the appellants given a reasonable opportunity to appear to show cause why the receivership should not be granted. For these reasons, and the reasons set forth above, we hold that the trial court erred in appointing the receiver without notice. Such order of appointment is vacated.

Reversed and receivership dissolved.

AKIN, J., concurs in result only.