author: RALEIGH BROWN, Justice.

text:
    Gilbert D. RAMONE, Appellant, v. Paul MANI, M. D., et al., Appellees.
    No. 4837.
    Court of Civil Appeals of Texas, Eastland.
    Dec. 12, 1975.
    Rehearing Denied Jan. 8, 1976.
    John Allen Chalk, Rhodes, Doscher, Chalk & Heatherly, Abilene, for appellant.
    George S. Finley, Smith, Davis, Rose, Finley & Hofmann, San Angelo, Marvin S. Sprain, Abilene, for appellees.
   RALEIGH BROWN, Justice.

The opinion and judgment dated November 14, 1975, is withdrawn and the following opinion is substituted therefor.

This is a medical malpractice personal injury case. Gilbert D. Ramone alleged a sponge was left in his body during surgery by Dr. Paul Mani. Mani made Hendrick Memorial Hospital a third party defendant seeking contribution and indemnity alleging Hendrick’s settlement with Ramone entitled him to a release or proportionate reduction of any verdict. The jury found (1) Dr. Mani left a sponge in Ramone but was not negligent in so doing, (2) Dr. Mani was negligent in failing to make an x-ray within a reasonable time after surgery and this proximately caused Ramone’s damages, (3) the nurses of Hendrick failed to make a correct count of the sponges, (4) they were not the borrowed employees of Dr. Mani, (5) the nurses were employees of Hendrick, and (6) $42,300 in damages. The trial court entered judgment against Dr. Paul Mani for $21,150 applying the doctrine announced in Palestine Contractors, Inc., v. Perkins, 386 S.W.2d 764 (Tex.1964). Ramone appeals.

Ramone argues the court erred in holding Hendrick a joint tort-feasor with Dr. Paul Mani. He contends the court could not find as a matter of law the failure of the nurses to make a correct count of the sponges was negligence and a proximate cause of his injuries nor was there any evidence or sufficient evidence to support a jury finding the nurses failed to make a correct count of the sponges. Ramone also urges there was no evidence or insufficient evidence to support the findings the nurses were the employees of Hendrick and not the borrowed employees of Dr. Mani.

Texas follows the rule an operating surgeon may be held liable for the negligence of an assisting nurse in the general employment of a hospital when the alleged acts of negligence are done while the nurse is under the direct control or supervision of the surgeon. Webb v. Jorns, 488 S.W.2d 407 (Tex.1972); Harle v. Krchnak, 422 S.W.2d 810 (Tex.Civ.App. — Houston (1st Dist.) 1967, writ ref. n.r.e.), and McKinney v. Tromly, 386 S.W.2d 564 (Tex.Civ.App.— Tyler 1964, writ ref. n.r.e.). This results from an application of the “borrowed servant” rule which is stated in McKinney:

“The early case of Western Union Telegraph Co. v. Rust, 55 Tex.Civ.App. 359, 120 S.W. 249, err. ref., recognized the rule that one can be in the general employ of one master and the special employee of another at the same time; and if the special master has the right of control, he is liable for the negligence of the servant.”

If the nurses, however, were acting as servants of the hospital, and not as borrowed servants of Dr. Mani, at the time of a negligent incorrect sponge count, the hospital would be liable under the doctrine of respondeat superior.

The jury found the nurses were the employees of Hendrick, and not the borrowed employees of Dr. Mani. Ramone has challenged such findings. Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex.1974), said:

“When a party asserts that there is no evidence to support jury findings, we must review the evidence in its most favorable light, considering only the evidence and inferences which support the findings, and rejecting the evidence and inferences contrary to the findings. Butler v. Hanson, 455 S.W.2d 942 (Tex.1970); Langlotz v. Citizens Fidelity Insurance Company, 505 S.W.2d 249 (Tex.1974).”

Physicians, permitted to do surgery at Hendrick, have nothing to do with the assignment of personnel to the operating room. All of the personnel, except the anesthesiologist, are employed directly by the hospital. Personnel may be replaced during surgery at the direction of the hospital without the consent of the surgeon. Prior to surgery, the operating room is prepared by hospital personnel, including the supplying of all equipment and supplies. In surgical procedures established by Hendrick, nurses are directed how, when and how many times to count sponges.

Applying the rule announced in Martinez, we disagree with the challenge of Ramone. Further, we have carefully considered the entire record and hold that such findings are -not factually insufficient. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Although we have been cited no Texas case making this distinction, other jurisdictions following the “borrowed servant” rule in assessing liability as between the surgeon and the hospital for the conduct of nurses assisting the surgeon but generally employed by the hospital have recognized a distinction in the type of service or act performed by the nurse.

In considering the counting of sponges by a nurse assisting in surgery, the Louisiana court in Danks v. Maher, 177 So.2d 412 (La.App. (4th Cir.) 1965), said:

“In our opinion the counting of laparot-omy squares in the instant case was not an act requiring the exercise of a particular skill or discretion acquired or developed by special training. It was an act which could have been done by an unskilled or untrained employee and it did not involve the exercise of any professional judgment. We conclude that the incorrect count was not a medical mistake; it was an administrative or nonprofessional mistake from which liability on the part of the hospital can result.”

A Florida court in Buzan v. Mercy Hospital, Inc., 203 So.2d 11 (Fla.App. (3rd Dist.) 1967), followed with approval the Tennessee court in Rural Education Association v. Bush, 42 Tenn.App. 34, 298 S.W.2d 761 ((Middle Section) 1956), which stated:

“When a nurse acts under the orders of a private physician in matters involving professional skill and decision, she is absolved from liability for her acts. Many acts of a nurse, however, do not result from orders of the physician. Fúrnishing proper personnel and equipment for an operation are duties of a hospital. The selection of proper sponges was the duty of the Hospital. Counting the sponges so as to see that no sponge was left in the body of the patient required no special professional skill or decision of the surgeon. Indeed, Dr. Schuler, relied upon the sponge count of the nurse.”

See also: 29 A.L.R.3d 1065.

The evidence supports the finding the nurses failed to make a correct count of the sponges. Martinez v. Delta Brands, Inc., supra. After reviewing the entire record we hold such finding is not factually insufficient. In re King’s Estate, supra.

If the nurses were the employees of Hendrick, not the borrowed employees of Dr. Mani, and their negligent conduct proximately caused the damages to Ramone, Hendrick would be a joint tort-feasor with Dr. Mani.

Ramone properly objected the the omission of the elements of negligence and proximate cause in conjunction with the submission of the issue inquiring as to the nurses’ failure to make a correct count of the sponges. Rule 279, T.R.C.P. He argues the court erred in holding as a matter of law such failure was negligence and a proximate cause of his injuries.

Dr. Mani urges the court was correct in not submitting the elements of negligence and proximate cause contending from a procedural point the case at bar is in identical posture to Harle v. Krchnak, 422 S.W.2d 810 (Tex.Civ.App.—Houston (1st Dist.) 1967, writ ref. n.r.e.). We disagree.

The court in Harle considering the negligence of the nurses in failing to properly count the sponges said in part:

“It is undisputed that the nurses assisting the doctor made a mistake in counting the sponges, . . “. . . There is no evidence that one or more of the sponges had come apart. As presented to the court the evidence simply showed that the sponges were not counted correctly . . “. . . There is no evidence that the count was necessarily hurried. The only reasonable conclusion to be drawn from the evidence detailing how the count was made, and the circumstances under which it was made, is that the circulating nurse was guilty of negligence in failing to properly count the sponges.”

In the present case there is evidence the nurses made a correct sponge count at the time of the surgery. Dr. Mani made a second opening in search of a lost ureter stone without the knowledge of his scrub nurse. The loss of the ureter stone and the request of Dr. Mani that all operating room personnel search for the stone created confusion and distraction during the surgery. When the sponge was taken from Ramone’s body it was in three parts.

The court in Mid-Tex Development Company v. McJunkin, 369 S.W.2d 788 (Tex.Civ. App. — Dallas 1963, no writ), said:

“Ordinarily questions of negligence and proximate cause are fact issues, but sometimes when the material facts are undisputed they become questions of law. Texas & N. O. R. Co. v. Burden, 146 Tex. 109, 203 S.W.2d 522; Safeway Stores Inc. of Texas v. Brigance, Tex.Civ.App., 118 S.W.2d 812.”

It is stated in Hammon v. Texas & New Orleans Railroad Company, 382 S.W.2d 155 (Tex.Civ.App. — Tyler 1964, writ ref. n.r.e.) cert. den., 382 U.S. 832, 86 S.Ct. 73, 15 L.Ed.2d 76:

“. . . Generally, the question of whether or not there is negligence is one of fact. It is only in the clearest cases, where the facts are undisputed, and are such that reasonable minds can draw but one inference or conclusion therefrom, that a court is justified in finding the existence of negligence as a matter of law. Fort Worth & D. Ry. Co. v. Barlow, Tex.Civ.App., 263 S.W.2d 278; Houston Belt & Terminal Company v. Chance, Tex.Civ.App., 332 S.W.2d 430.”

After a careful consideration of the facts in the case at bar, we hold reasonable minds could draw different conclusions or inferences as to whether the nurses were negligent in counting the sponges and the submission of negligence and proximate cause for the jury’s determination was required.

By cross points, Dr. Mani urges that if the verdict should not be reduced by 50 percent, the jury’s answers to special issues inquiring as to the damages Ramone has suffered as a result of loss of earnings and expenses incurred for drugs, medicine, physician fees and hospital expenses are against the great weight and preponderance of the evidence. We disagree. In re King’s Estate, supra.

The judgment is reversed and the cause remanded.

On Motion for Rehearing

We disagree with the contention of Ra-mone that the surgeon is exclusively liable during surgery for the negligent acts of all operating room personnel, who are general employees of the hospital. Ramone argues that under the “Captain of the Ship” theory the surgeon is exclusively responsible for all operating room personnel assisting in the surgery. We conclude Texas follows the “borrowed servant” doctrine holding the surgeon liable for the negligent acts of personnel under the surgeon’s direct control or supervision. McKinney v. Tromly, 386 S.W.2d 564 (Tex.Civ.App. — Tyler 1964, writ ref. n.r.e.). In appropriate cases, operating room personnel assisting in the surgery may be “borrowed servants” as a matter of law.

There is reference in our opinion that other jurisdictions following the “borrowed servant” rule in assessing liability as between the surgeon and hospital employees assisting the surgeon during surgery recognize a distinction in the type of service or act performed. While such cases were mentioned, in the instant case, the “right of control” test as recognized in Texas and not the “nature of the task performed” test was applied.

The nurses’ alleged failure to make a correct count of the sponges was submitted to the jury without the issues of negligence and proximate cause. Ramone properly objected to such omission and contends Doctor Mani has thus waived such ground of defense. We disagree.

The court in Friedman v. Powell Electrical Manufacturing Co., 456 S.W.2d 758 (Tex.Civ.App. — Houston (1st Dist.) 1970, no writ), in considering a like problem said:

. . Here the ground of recovery was submitted to the jury. The submission was incomplete and defective. In such a case the proper judgment is to reverse and remand for a new trial. Praetorian Mutual Life Insurance Co. v. Sherman, 455 S.W.2d 201 (Tex.1970); Hicks v. Matthews, 153 Tex. 177, 266 S.W.2d 846 (1954).”

We find nothing in the record to cause us to change the judgment heretofore entered. The motion for rehearing is overruled.


source: Caselaw Access Project

author: STEPHEN F. PRESLAR, Chief Justice.

license: Public Domain

text:
    Robert E. McKNIGHT, Appellant, v. Marie Eugenie Bourg McKNIGHT, Appellee.
    No. 6441.
    Court of Civil Appeals of Texas, El Paso.
    Feb. 11, 1976.
    Rehearing Denied March 10, 1976.

      Turpin, Smith & Dyer, Irby L. Dyer, Midland, for appellant.
    Stubbeman, McRae, Sealy, Laughlin & Browder, Milton L. Bankston, Austin, Stubbeman, McRae, Sealy, Laughlin & Browder, W. B. Browder, Jr., Midland, for appellee.
   OPINION

STEPHEN F. PRESLAR, Chief Justice.

This is a divorce action in which the husband appeals that portion of the judgment dividing the property of the parties. Questions on appeal involve abuse of discretion of the trial Court in a division of the property and the proper disposition of partnership property. We reverse and reform the judgment in part and affirm the judgment in part.

The controlling law in this case is Section 3.63, Tex.Family Code Ann., formerly Article 4638, which provides: “In a decree of divorce or annulment the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.” It is well settled, under this provision of the Family Code and its predecessor statute, Art. 4638, that the trial court is vested with broad discretion when effecting a division of the property of parties to divorce proceedings. An equal division is not required. Williams v. Williams, 160 Tex. 99, 325 S.W.2d 682 (1959). It is equally well established that this discretion will not be disturbed on appeal unless it is clear that the trial court has abused its discretion. Weaks v. Weaks, 471 S.W.2d 454 (Tex.Civ.App. — Beaumont 1971, writ dism’d); Mozisek v. Mozisek, 365 S.W.2d 669 (Tex.Civ.App.- — Fort Worth 1963, writ dism’d). The cases are legion which determine the question of whether there was nor was not an abuse of discretion; it would serve no purpose to cite those eases here for each case must be decided on its own facts and circumstances.

In general, the division was that the wife received that which she claimed as separate property which had come to her from her father’s estate and consisting of cash, stocks, and bonds, all in the total of some $526,000.00. The husband was given what was undisputedly his separate property consisting of a one-fourth interest in some twelve vacant tracts dedicated as drill sights in the City of Odessa, a one-third interest in three ranches in Jeff Davis County and a one-eighth interest in a ranch in Crane County, all subject to outstanding purchase price mortgages. The husband also received the family home, which was a gift from his father. These ranch properties were operated by a partnership consisting of the husband, his sister, and father. There was a joint bank account, and there were bank accounts claimed as separate property by the husband in the sum of some $72,000.00. Additionally, there was a dispute as to whether bank shares of the value of some $166,000.00 were the separate property of the husband. These disputed items were given to the wife; she received all bank accounts standing in her name or the husband’s name, and one-half of the bank account of the ranch partnership. Additionally, she was given the cash surrender value of life insurance policies on the husband, one-fourth of all the cattle and other livestock owned by the ranch company partnership (to be divided in kind), a share of stock in the Odessa Country Club Membership, the 1972 Buick station wagon, household goods and furnishings in the family home. In addition to the debts he was ordered to pay, the husband was also ordered to pay $9,750.00 of the wife’s attorney’s fees, $600.00 per month child support, the $9,500.00 cash surrender value of the insurance policies, and any income tax liability and other taxes accruing during the marriage.

The statutory obligation imposed on the courts to divide the property fairly is coupled with a provision that it be done with due regard to the rights of the parties and “any children of the marriage.” This Court is of the opinion that the trial Court abused its discretion in regards to the rights of the children of the marriage.

There were seven children of the marriage; one was married at the time of the divorce and six were still in the home. The custody of one child was awarded to the wife and the husband was ordered to pay $600.00 per month child support. The other five children are with the husband, three being awarded to him and the other two being above eighteen years of age and free to choose. Even though these two are above mandatory custody and child support orders, their rights are involved so far as the property division is concerned. The statute speaks of “any” children of the marriage. These two girls are in college and entitled to stay there and be supported under the circumstances of this family’s wealth. The abuse of discretion results from the fact that the children are the obligation of the husband, yet he is stripped of all cash, a portion of his livestock, left a business to operate but no funds to operate it with, and ordered to pay debts. The day-to-day expense of five children requires cash or a readily available source of cash; if the criteria of $600.00 per month for one child is right, then the husband will need $3,600.00 per month or $43,000.00 per year for the six.

Thus, the children are left in the custody of a father with no cash funds and who, if he acquires any cash, must pay obligations ordered by the Court under threat of execution; they have a house but the mother has the furniture; there is a showing in the record that the husband received some $16,-000.00 in a prior year from oil royalties but the record is silent as to how regular that happens, and what the future of it is. Otherwise, he is left to make a living for the children from the ranching business but has been stripped of a portion of the livestock and left with no capital to operate. He must look to the ranching business, and probably in the long run it will provide, but for the present, it will not meet the needs of the children. At the time of trial, there was a severe drought, cattle prices were down, it was the middle of the year yet they were still having to feed livestock, and some $50,000.00 had been borrowed for operations. True, the drill sights in Odessa could be sold or ranch properties could be sold, although they are burdened with mortgages, but this would be a one-shot operation for current support. The situation of these parties does not require it; that situation is such that there is no need to kill the goose that lays the golden egg, that is, sacrifice income producing property for current living expenses. The wife has income from stocks and bonds and some oil royalty; she testified that she is receiving 11% interest on $115,000.00 in Certificates of Deposits; she will have $600.00 a month child support, and only herself and the one child to care for.

The ranching interest had been for many years operated as a partnership, with the husband owning a one-half interest, his sister a 20% interest, and his father a 30% interest. The trial Court ordered a division of the partnership property in kind, awarding the husband ranch equipment and giving the wife one-half of the partnership bank account of $42,862.00; the Court then prescribed a detailed procedure for dividing the livestock with the wife having first choice and the husband then selecting the second choice of stock for himself and then making a double selection for the partnership or the other two partners. In this, we think the Court erred. Under the Texas Uniform Partnership Act, the rights of a divorcing spouse of a partner can attach only to his partnership interest and not to the specific properties of the partnership. The Uniform Partnership Act, Article 6132b, Tex.Rev.Civ.Stat.Ann., provides:

“Sec. 28-A. (1) A partner’s rights in specific partnership property are not community property. (2) A partner’s interest in the partnership may be community property. (3) A partner’s right to participate in the management is not community property.”

Section 28-B, “Effect of Death or Divorce on Interest in the Partnership,” provides in part:

“Sec. 28-B. (1)(A) On the divorce of the partner, the partner’s spouse shall, to the extent of such spouse’s interest in the partnership, be regarded for purposes of this Act as an assignee and purchaser of such interest from such a partner.”

The bank account, livestock and ranch equipment of the partnership, “McKnight Ranch Company,” are properties belonging to the partnership entity. Under Section 28-A of the Act, then, the husband had no specific partnership property which could be divided by the Court. There is yet another reason why this award of specific partnership property to the wife was error. That is, that the other partners were necessary parties to any attempted division in kind of property in which they had an interest. That part of the judgment awarding any partnership property including, but not limited to, the bank account of McKnight Ranch Company, the cattle and other livestock, or ranch equipment is reversed. The wife has no land, and thus no need for cattle; on the other hand, this is the husband’s principal business on which the children are dependent for support. Judgment is here rendered that the husband, Robert E. McKnight, recover one-half interest in the partnership known as McKnight Ranch Company.

The Court imposed on the husband the obligation to pay any federal income taxes which were incurred during the marriage, and that any refund of such income tax would be shared 50-50. The nature of the properties owned by the wife were such that a sale of them by her during the marriage would impose a tremendous tax burden on the husband. For instance, one year they sold some of her drilling company stock and some bank stock and the family incurred an income tax liability of $95,-000.00 in that year. The trial of this case was in August but the marriage was not dissolved until the entry of judgment on October 15, 1974. The interim provides the possibility for a tax free disposition of the properties of the wife and a resulting tax burden on the husband which could strip him of the means to support the children of the marriage. That part of the judgment decreeing that the husband pay any income tax incurred during the marriage is reversed. Judgment is here rendered that the parties share equally, 50-50, any income tax liability incurred during the marriage, and likewise, that they share 50-50 any refund of such tax.

To further correct what we have found to be an abuse of discretion in that the childrens’ provider was left without cash or working capital, we propose to give the husband cash and some debt relief. That portion of the judgment awarding all cash on deposit in any bank or savings and loan institution is reversed, and judgment is here rendered that all cash in any bank or savings and loan institution, including Certificates of Deposit, in the name of Marie Eugenie Bourg McKnight is awarded to her; all cash on deposit in any bank or savings and loan institution, including Certificates of Deposit, standing in the names of the parties jointly or in the name of Robert E. McKnight, excepting the McKnight Ranch Account, is awarded one-half to Marie Eugenie Bourg McKnight and one-half to Robert E. McKnight as such accounts stood on August 15, 1974.

That portion of the judgment awarding the wife the cash surrender value of the husband’s life insurance policies is reversed, and judgment is here rendered that the ownership and cash surrender value of any policies of life insurance standing in the name of Robert E. McKnight or owned by him are awarded to him.

The judgment of the trial Court is reformed by the reversal and rendition of judgment as to the specific items above set out. In all other things, the judgment is affirmed.

OSBORN, J., not sitting.


author: OSBORN, Justice. PRESLAR, Chief Justice

text:
    NATIONAL INSURANCE UNDERWRITERS, Appellant, v. Norma Jean GLOVER et al., Appellees.
    No. 6470.
    Court of Civil Appeals of Texas, El Paso.
    Feb. 11, 1976.
    Rehearing Denied March 10, 1976.
    Little & Little, Jack N. Little, Big Spring, Lord, Bissell & Brook, Terry W. Backus, Hugh C. Griffin, Chicago, III, for appellant.
    Warren Heagy, Ken Griffin, Odessa, for appellees.
   OPINION

OSBORN, Justice.

This case arises from a declaratory judgment suit brought for the purpose of determining coverage under an aviation policy. The Appellant issued its policy of liability insurance to Bill Rogers Trucking Co., Inc. of Odessa, Texas, effective March 1, 1972. The policy provided coverage to Wm. 0. Rogers, President of the Company, while flying a single engine Piper aircraft. At 11:20 A.M. on December 9,1972, Rogers and his two passengers, Burlón E. Glover and Ray Eugene Rives, were killed when the plane crashed in bad flying weather near Quemado, Texas, while on a flight from Odessa to Eagle Pass. After the survivors of the two deceased passengers sued Mr. Rogers’ estate and the Trucking Company for damages arising from the crash, this suit was filed to determine questions of coverage under the policy for this particular flight. Upon an agreed statement of facts, with exhibits, the trial Court concluded that there was coverage for the flight and entered judgment for the survivors of the deceased passengers. We reverse and render.

On December 9, 1972, Rogers planned to take Glover and Rives fishing near Eagle Pass. At 7:55 A.M., Rogers called the Midland, Texas, F.A.A. Flight Service Station for a weather briefing for a flight from Odessa to Eagle Pass, and stated his departure would be in three or four hours. He received the following information:

“At 7:00 a. m. the weather at Midland and Del Rio was indefinite 100 feet obscuration, with visibility of ½ mile and fog. Cotulla was reporting an indefinite ceiling of 100 feet obscuration with ¾ mile visibility and light drizzle and fog. San Angelo’s report indicated an indefinite ceiling of “zero” with the sky obscured and fog. The area forecast AIR-MET indicated ceilings below 1000 feet with visibility less than two miles. The “Clouds and Weather” section of the area forecast for the period from 7:00 a. m. to 7:00 p. m. was as follows: ‘Over Texas, portions except west of Pecos River, generally ceilings of 300 foot to 800 foot overcast with visibility at one to three miles and light drizzle and fog and occasional near “zero” conditions . . .’ The Del Rio 091111 terminal forecast indicated ceiling 300 feet obscuration, visibility 2 miles with fog variable to ceiling 100 feet obscuration with ½ mile visibility with fog.”

Rogers had a private pilot’s license which required that he fly visual flight rules (VFR). He was not permitted to fly instrument flight rules (IFR). The crash occurred at a point that was outside controlled airspace, as defined by F.A.A. Regulations. F.A.A. Regulation 91.105(b)(3) provides that no person may operate an aircraft under visual flight rules (VFR) outside controlled airspace, unless flight visibility is at least one statute mile. F.A.A. Regulation 91.105(a)(5) provides that no person may operate an aircraft under visual flight rules (VFR) outside controlled airspace at an altitude of 1,200 feet or less above the surface, unless the aircraft is clear of clouds.

By mid-morning, the weather had cleared somewhat in the Midland-Odessa area and the aircraft departed from Odessa at 9:20 A.M. under conditions which permitted the flight to commence under visual flight rules. At the time of departure, Del Rio, near the route of flight, had a ceiling of 100 feet with visibility of only ½ mile with fog. According to the accident report prepared by the National Transportation Safety Board, the weather at the time and place of the accident was cloudy with fog and a ceiling of 200 feet with ½ mile visibility. The total distance of the flight was 204 statute miles. As shown by a weather map, which is an exhibit to the agreed statement of facts, approximately the first one-third of the flight was in VFR conditions, approximately the next one-third was in probable IFR conditions and approximately the last one-third was in definite IFR conditions.

The parties have stipulated that Wm. O. Rogers was negligent:

In operating the airplane under conditions which required an instrument pilot rating;
“In failing to communicate with the various ground communication stations in the Del Rio, Eagle Pass area to ascertain the weather conditions existing in that area; “In operating the airplane at an altitude which was dangerously low to the surface;
“In failing to return to Odessa or other alternate airports where the VFR weather existed;
“In flying into an area wherein the weather was such that IFR Flight Rules existed with full knowledge of the existing inclement weather conditions.”

It was further stipulated that those negligent acts were each a proximate cause of the death of Glover and Rives.

The policy provides in Part I — paragraph I — Coverage A — for bodily injury liability and under that provision, the company agrees:

“To pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of: A — bodily injury, sickness or disease, including mental anguish or death at any time resulting therefrom, sustained by any person including or excluding occupants as specified in the declarations; * * *.” (The declarations provide coverage for occupants).

The exclusions applicable to Part I provide: “This policy does not apply under Part I: (h) under Coverages A, B and C to any aircraft, while in flight,

(3) whenever the pilot operating the aircraft is not qualified in accordance with the requirements specified in Item 6. ‘Pilots’ of the declarations.”

The above referred to Item 6 “Pilots” on the declarations page provides as follows:

The single issue presented in this appeal is whether Wm. 0. Rogers was “properly rated” for the flight on December 9, 1972. If not, then Appellant contends that the exclusion noted above applies and no coverage is afforded as to the accident made the basis of this suit. The trial Court concluded that there was coverage, as a matter of law, but that Court made no findings of fact and recited in the judgment that “ * * * none are to be implied in support of this judgment.” Such recital seems proper since all facts were stipulated; there was no conflicting evidence and no issue as to the credibility of witnesses or the weight to be given certain testimony.

In Mang v. Travelers Insurance Company, 412 S.W.2d 672 (Tex.Civ.App. — San Antonio 1967, writ ref’d), the Court considered a provision in a life insurance policy which excluded from its coverage injuries occurring during flight in an aircraft, except while the insured was a passenger in an aircraft “operated by a duly licensed or certificated pilot.” At the time of the accident, the aircraft was operated by a student pilot, who by Federal Aviation Regulations was prohibited from carrying passengers. In affirming a summary judgment for the defendant insurance company, the Court said:

“ * * * Contracts of insurance are to be construed as are other contracts, giving consideration to all parts of the instrument. United American Ins. Co. v. Selby, 161 Tex. 162, 338 S.W.2d 160, 84 A.L.R.2d 367 (1960). (i ⅜ * *
“ * * * The only reasonable interpretation of the provision in question is that which gives it the effect of limiting liability to those cases where the air travel of the insured takes place under circumstances which reduce, to a considerable extent, the risks incident to such travel. It would, we think, be unreasonable to hold that the provision here involved, which limits coverage to passengers traveling in an aircraft piloted by a duly licensed or certificated pilot, contemplates anything other than situations where a passenger-carrying aircraft is being operated by a pilot whose training, ability and experience are such as to entrust to his care not only his own safety and that of the aircraft, but the safety of passengers as well.”

A policy exclusion very similar to the one now before the Court, and involving the same carrier in this case, was before the Court in Bequette v. National Insurance Underwriters, Inc., 429 F.2d 896 (9th Cir. 1970). That case also involved a coverage question arising out of a plane crash in which the pilot and two passengers were killed. The pilot did not have the ratings required to carry passengers. The policy in that case also had an exclusion if the pilot operating the aircraft was not qualified in accordance with the pilot provisions, which required “appropriate ratings required for the flight involved, * * Both the trial and appellate courts held that the exclusion clause was unambiguous and that there was no coverage.

In Woods v. Insurance Company of North America, 38 Cal.App.3d 144, 113 Cal. Rptr. 82 (Ct.App. 1st Dist., Div. 2, 1974), the Court in discussing an exclusionary clause said:

“ * * * ‘properly certified and rated’ when read with the immediately following phrase ‘for the flight and aircraft’ can only reasonably be interpreted to refer to the pilot’s flight proficiency and skill. In the FAA regulations, the term ‘rating’ refers specifically to the types of aircraft, or equipment category or a class or a particular skill such as instrument rating, multi-engine rating, etc.” (Emphasis added).

Thus, if “properly rated” has reference to the pilot’s flight proficiency and skill, such as an instrument rating, such a rating is required where one operates “the airplane under conditions which require an instrument pilot rating.” And in this case, the parties have stipulated such as the first ground of negligence upon the part of Rogers. Since Rogers and his passengers were killed while flying in IFR weather, and Rogers was not rated for flight during IFR conditions, under the exclusion there was no coverage.

Appellees urge that although IFR weather conditions existed in the Odessa area at the time of the weather briefing, by the time the flight began VFR conditions prevailed at Odessa and thus there was coverage for the flight. Even the Appellees do not suggest that there would have been coverage had the flight commenced at 7:55 A.M. when Rogers received the weather briefing and IFR conditions prevailed at Odessa, although that would be the effect of the rule urged in the dissenting opinion. Instead, Appellees rely upon National Insurance Underwriters v. King Craft Custom Products, Inc., 368 F.Supp. 476 (D.Ala.1973), aff’d 488 F.2d 1393 (5th Cir.1974). The facts in that case are very much like the ones in our case, with one important exception. In the King Craft case, the pilot was told that the weather at his destination was suitable for VFR flying. After the flight began, the weather changed to IFR conditions. In our case, the pilot only received one weather briefing which indicated the exact type of weather he was to ultimately encounter, namely IFR conditions, and it was stipulated that Rogers was negligent “in flying into an area wherein the weather was such that IFR flight rules existed with full knowledge of the existing inclement weather conditions.”

As noted in the King Craft case, there may be reasons for denying application to the policy exclusion concerning being “properly rated” where the pilot takes off believing he is properly rated at the take-off sight, at the destination sight and all along the route in-between. Those reasons do not exist where the pilot is given a weather briefing which indicates that the conditions at his destination are such that he is not rated to fly into that type of weather and yet, with full knowledge of such inclement weather conditions, he commences the flight and travels approximately one-third of the flight in definite IFR conditions before attempting, as Mr. Rogers did, to turn around and avoid such conditions. Unfortunately, that decision came too late.

The policy defines “in flight” as being from the time the aircraft moves forward in taking off, while in air, and until the aircraft completes its landing. Rogers was thus required to be “properly rated” at all time during the flight, i. e., from the beginning to the end. Clearly, he was “properly rated” when he took off under VFR conditions at Odessa. Just as clearly, he was not “properly rated” when he crashed in IFR conditions near Quemado. In between, his coverage must necessarily be determined by whether at any given time he was flying in VFR conditions for which he was properly rated, or IFR conditions for which he was not properly rated. Ranger Insurance Company v. Rogers, 530 S.W.2d 162 (Tex. Civ.App. — Austin 1975, writ pending).

Rogers requested only one weather report, and was advised that at 7:00 A.M. at Del Rio, the nearest reporting station to his destination, the weather was “indefinite 100 feet obscuration, with visibility of ½ mile and fog.” The Del Rio forecast was “indicated ceiling 300 feet obscuration, visibility 2 miles with fog variable to ceiling 100 feet obscuration with ½ mile visibility with fog.” The forecast proved accurate and the weather at 11:05 A.M. and at 12:00 Noon at Del Rio continued cloudy with fog, with a ceiling of 200 feet and visibility of ½ mile. In this case, the pilot did not encounter unexpected weather, and the weather did not change during the flight. Instead, as stipulated in the record, the pilot knowingly flew into IFR conditions for which he was not rated and about which he had been advised before the flight commenced. Under those circumstances, there was no coverage under his liability policy.

The judgment of the trial Court is reversed and judgment is here rendered for the Appellant.

PRESLAR, Chief Justice

(dissenting).

It is a matter of regret that I am driven to disagree with the learned opinion of the majority, but I would affirm the judgment of the trial Court.

I would construe the policy to mean that the exclusion upheld by the majority applies only where there is a violation of the pilot’s rating as distinguished from a violation of F.A.A. Flight Regulations. Under the stipulated facts of this case, the pilot was not in violation of his rating.

The cases cited by the majority support the proposition that the exclusion applies where there is a violation of the pilot’s rating. In Mang v. Travelers, supra, cited by the majority, the exclusion applied because the one operating the aircraft was not licensed to carry passengers; he was in violation of his license or rating in that he was only a student pilot; in Bequette v. National Insurance Underwriters, Inc., cited by the majority, the pilot did not have a commercial license but was carrying passengers for hire. Clearly, he was in violation of his rating, and the Court said: “Since it was uncontroverted that Fouche, who was carrying passengers when the accident occurred, did not have the ratings required to carry passengers, the District Court held that the policy did not provide coverage for the accident. We affirm.” In Woods v. Insurance Company of North America, from which the majority quotes, the question was whether the pilot was properly certified and rated because his medical certificate had expired prior to the flight. The pilot did have a proper rating and the Court held that not having the medical certificate current did not exclude coverage — that he was a properly certified and rated pilot for the flight. In our case, the pilot was not in violation of his certificate. Pilot ratings are a very definite thing; they are a governmental license to do certain things and what the holder can and cannot do is well known to those having the ratings. As noted from the cases cited, a student cannot carry passengers; one who does not have a commercial rating cannot carry passengers for hire; and in the case before us, the pilot having the rating of a private pilot is not eligible to make an instrument flight.

My difference with the majority turns on the fact that I do not think he was in violation of his rating. This, because he was not attempting to make an instrument flight. An instrument flight rating is a separate and distinct rating which, among other things, entitles one to fly blindly without being able to see land but to base his course and operation of the aircraft purely from sounds coming to him from radio reception. The pilot is flying blind, depending only one his ears — what he hears from the instruments as to which operation of the controls to make. Rogers, the pilot in this case, was not attempting to do that. He was not attempting to fly instruments. He was flying visual, attempting to see the ground. That, he was qualified and rated to do. When the weather fell below the visual flight regulations of the F.A.A., he was in violation of those regulations but he was not in violation of his rating. His rating did not change each time he passed through a cloud; neither did the coverage under this policy change each time the weather conditions changed from visual flight conditions to IPR flight conditions. I cannot believe that the parties to this contract of insurance intended that the coverage would go on and off each time the weather conditions changed. The construction which the majority gives the policy makes for uncertainty and should be construed against its author.

In arriving at the intent of the parties to the contract, I think the situation is analogous to the rental of an automobile. There, the rental agency asks only if you have a license to operate the automobile and they rely on that license, not on your judgment or skill in the operation of the automobile. Here, the policy relies on the licensing of the pilot; if he is rated to do certain things, then there is coverage while he is doing those things. The licensed automobile driver may be negligent and may violate the traffic laws; likewise, the pilot may violate the P.A.A. Regulations, that is, fly in bad conditions or use bad judgment, and may be negligent, but that does not end the coverage. So it is here; our pilot may have used bad judgment; he may have violated the P.A.A. Flight Regulations in flying in the type of weather that he did, but he did not violate his rating; he did not attempt an instrument flight.

In our construction of this policy, we must bear in mind that the provision under consideration is an exception or exclusion from coverage. The well-settled general rule is that exceptions, limitations and exclusions to insurance agreements require a narrow construction on the theory that the insurer, having affirmatively expressed coverage through broad promises, assumes a duty to define any limitations upon that coverage in clear and explicit terms. 13 J. Appleman, Ins.L. & P., § 7387, Supp.1970; Roach v. Churchman, 431 F.2d 849 (8th Cir. 1970); Ranger Insurance Company v. Culberson, 454 F.2d 857 (5th Cir.1971). In our case, if the insurer wished to suspend coverage in the event of any violation of F.A.A. Flight Regulations, then it should have specifically said so in the policy.

I would affirm the judgment of the trial Court.


author: PEDEN, Justice.

text:
    Arthur G. HENDRICKS, Appellant, v. Laura Jean HENDRICKS, Appellee.
    No. 16646.
    Court of Civil Appeals of Texas, Houston (First Dist.).
    Feb. 11, 1976.
    Rehearing Denied April 8, 1976.
    Ronald L. Palmer, Randall A. Hopkins, Houston, for appellant; Baker & Botts, Houston, of counsel.
    Michael S. Thorne, Houston, for appellee.
   PEDEN, Justice.

The plaintiff appeals from the denial, after a non-jury hearing, of his petition for a declaratory judgment whereby he sought to nullify the alimony portion of a Kentucky divorce decree. He says the statute under which the Kentucky court awarded alimony is unconstitutional because it is discriminatory on the basis of sex and that alimony is against the public policy of Texas.

In response to Mr. Hendricks’ petition, his former wife filed a counter-claim asking the Texas court to give the Kentucky judgment full faith and credit and to give her a judgment for the delinquent alimony to the time of trial. The evidence consisted of answers to interrogatories, requests for admissions and a stipulation of facts. The trial court held for Mrs. Hendricks on both the plaintiff’s petition and on her counterclaim. We affirm.

We have paraphrased these findings of fact and conclusions of law set out in the trial court’s judgment:

1) the “final decree” of the Kentucky court is regular on its face; 2) the Kentucky court is one of general jurisdiction; 3) it had jurisdiction over the divorce in question; 4) the Kentucky decree is entitled to full faith and credit; 5) that decree does not order alimony but merely incorporates, approves, and ratifies an agreement for support of Mrs. Hendricks and the children of the parties as part of the division of community property; 6) the agreement in question has a lawful subject matter, recites a consideration, was signed by both parties, and was submitted to the court by Mr. Hendricks; 7) the Kentucky decree is a valid, subsisting judgment; 8) the agreement is a contract, valid on its face, and Mrs. Hendricks is entitled to the delinquencies due under it and to each subsequent payment as it shall accrue; 9) Mrs. Hendricks is not deceased; 10) she has not ceremonially remarried, and all children born of the marriage have reached age 18.

The appellant presents eleven points of error. The first is:

“The trial court erred in according ‘full faith and credit’ to the alimony portion of the Kentucky ‘final decree’ and in awarding a money judgment for accrued alimony because the Kentucky statute (now repealed) under which the Kentucky court awarded alimony was unconstitutional and, thus, the Kentucky court lacked jurisdiction to make such alimony award and that portion of the ‘final decree’ is therefore void.”

The statute in question provided:

“Art. 403.060 (Kentucky Revised Statutes) Disposition of property — Restoration of Maiden Name.—
(1)If the wife does not have sufficient estate of her own she may, on a divorce obtained by her, have such allowance out of that of her husband as the court considers equitable; but no such allowance shall divest the husband of the fee simple title to real estate.
(2) Upon final judgment of divorce from the bonds of matrimony, each party shall be restored all the property, not disposed at the beginning of the action, that he or she obtained from or through the other before or during the marriage and in consideration of the marriage.
(3) . . .
(4) . . . ”

The appellant contends that this Kentucky statute was unconstitutional because it authorized a court to grant alimony only to a woman. He says this classification and discrimination based upon sex is contra to the equal protection afforded by the Fourteenth Amendment to the United States Constitution, which requires any statutory classification of citizens to bear a rational relationship to the statute’s objectives. He asserts that the Supreme Court of the United States has strongly suggested that sex is a “suspect classification,” which is presumed to violate the equal protection clause unless some compelling state interest is demonstrated to justify the inherently suspect classification, citing Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973). He also cites Wiegand v. Wiegand, 226 Pa.Super. 278, 310 A.2d 426 (1973). In that case the Pennsylvania Supreme Court declared that since the adoption of the Equality of Rights Amendment to the Pennsylvania Constitution certain statutes that limited to women certain rights in divorce cases were no longer constitutional under Pennsylvania law.

The appellant says the State of Kentucky recognized this infirmity by repealing Art. 403.060 and enacting a statute allowing either spouse alimony under proper circumstances, Art. 403.140(l)(d), Ky.Rev.Stat.

The alimony provision of the decree was agreed upon by the parties. An interlocutory decree was first entered. It made this reference to a written agreement of the parties disposing of all disputed issues:

“5. The agreement executed between the parties and filed of record herein shall be, and hereby is, by reference made a part of this interlocutory order, said agreement having been executed and filed of record on the 19th day of December, 1967.”

The final judgment, entered on March 15, 1968, contained this recital:

“2. The Agreement between the plaintiff and the defendant, filed in this action on December 19, 1967, is made part of and incorporated in this Final Decree, the same as if fully written in words and phrases into the Final Decree.”

The agreement of the parties dated December 19, 1967, contained this recital: “ . . . The parties hereto desire to, and do hereby, dispose of, by compromise settlement, all issues of every kind and nature growing out of . the present marriage, the . . . pending action for divorce . . . including . . . issues to (sic) property, alimony, support and maintenance . . . ” It then explicitly provided for the payment of alimony.

We are not convinced that the Kentucky statute in question was unconstitutional. In Murphy v. Murphy, 232 Ga. 352, 206 S.W.2d 458 (1974), the only issue decided by the Georgia Supreme Court was that it must reverse the holding of the trial court that Georgia statutes providing for the granting of alimony to the wife but not to the husband “are unconstitutional because they violate the constitutional provisions of the Fifth and Fourteenth Amendments of the United States Constitution and . . . the Constitution of the State of Georgia.” The United States Supreme Court denied certiorari on April 21, 1975.

There are other reasons why we overrule the appellant’s first point of error but we will not prolong this opinion by stating them. The appellant’s second and third points are also based on his position that the Kentucky statute was unconstitutional and they are also overruled.

The appellant complains in points of error 4, 5 and 6 of the trial court’s failure to limit its recognition of the foreign judgment to the basis of comity and says the court erred in enforcing the judgment because the payment of alimony is against public policy of the State of Texas.

When the wife’s right to alimony payments under a divorce decree of a sister state has become absolute and vested under the original alimony decree and the accrued amount is not subject to modification, the decree is entitled to full faith and credit in Texas courts. Stout v. Stout, 214 S.W.2d 891 (Tex.Civ.App.1948, writ refused); Gard v. Gard, 150 Tex. 347, 241 S.W.2d 618 (1951); Comment by Charlie D. Dye, 38 Texas Law Review 82 (1959).

In points of error 7 and 8 the appellant complains that the trial court erred in awarding a money judgment for accrued alimony. He says the Kentucky court lacked jurisdiction because under Art. 403.-060 Ky.Rev.Stat., alimony was to be ordered only if the divorce was obtained by the wife. He also says the court erred in failing to find who obtained the divorce.

It was Mr. Hendricks who obtained it. We hold that the Kentucky court was entitled to honor the parties’ agreement as to alimony, but even if it was not, such error would not be jurisdictional and thus subject to this collateral attack. Although the parties stipulated in the trial court in Texas that the authority of the Kentucky court to award alimony was derived from Article 403.060 of the Kentucky statutes, it is clear that in addition to such statutory authority the Kentucky court could, and apparently did, accept the parties’ agreement as to “all issues.”

The appellant next challenges the trial court’s finding that the Kentucky final decree does not order alimony but merely incorporates, approves and ratifies an agreement for the support of Mrs. Hendricks. In his tenth point of error the appellant says the trial court erred in entering the judgment based on any contract claim or right of appellee, because no contractual claims or pleadings were before the trial court so he was never afforded any opportunity to present his defenses to a contractual claim. The appellant’s last point of error complains about the trial court’s having purported to enter the judgment in question based on a contract claim of the The appellant next challenges the trial court’s finding that the Kentucky final decree does not order alimony but merely incorporates, approves and ratifies an agreement for the support of Mrs. Hendricks. In his tenth point of error the appellant says the trial court erred in entering the judgment based on any contract claim or right of appellee, because no contractual claims or pleadings were before the trial court so he was never afforded any opportunity to present his defenses to a contractual claim. The appellant’s last point of error complains about the trial court’s having purported to enter the judgment in question based on a contract claim of the

We overrule these points. Although we disagree with the trial court’s fifth finding, that the Kentucky decree did not order alimony, we hold that it does not constitute reversible error. Rule 434, Texas Rules of Civil Procedure. We conclude from an examination of the pleadings and the evidence before the Texas trial court that both pleadings and evidence support the contract claim. Further, we think our rulings on the appellant’s other points are dispositive of these last three.

Affirmed.


author: OSBORN, Justice.

text:
    CITY OF SAN ANTONIO, Appellant, v. SAN ANTONIO INDEPENDENT SCHOOL DISTRICT et al., Appellees.
    No. 6513.
    Court of Civil Appeals of Texas, El Paso.
    Feb. 20, 1976.
    Rehearing Denied March 10, 1976.
    Crawford B. Reeder, First Asst. City Atty., Matthews, Nowlin, MacFarlane & Barrett, James D. Baskin, Jr., Jon C. Wood, W. Roger Wilson, San Antonio, for appellant.
    Harvey L. Hardy, San Antonio, for appel-lees.
    Ted Butler, Crim. Dist. Atty., Civil Section, Robert C. Story, Asst. Crim. Dist. Atty., San Antonio, for intervenors.

      Vinson, Elkins, Searls, Connally & Smith, J. Evans Attwell, Pieter Meade Schenkkan, Houston, for Houston Natural Gas Corp.
   OPINION

OSBORN, Justice.

This is an appeal from a judgment in a non-jury trial where the record consists of pleadings, admissions, and a stipulation as to exhibits and a stipulation as to testimony. There is no statement of facts, but the transcript is over 400 pages. The case involves fuel cost adjustment charges added on to the gas and electric bills of customers of a public utility and also a percentage charge collected on the gross revenues of the utility. Suit was filed by twelve independent school districts located in Bexar County, with Bexar County and the Bexar County Hospital District as intervenors. The City of San Antonio, owner of the public utility, was defendant in the trial Court and is Appellant in this Court.

The trial Court held that the fuel adjustment clause and the gas adjustment clause contained in the gas and electric rate ordinances passed by the City Council of San Antonio, and applicable to all gas and electric rate schedules, are invalid on the ground that the City Council, by including those clauses in the gas and electric rate, delegated legislative rate regulatory authority to the personnel of the city-owned gas and electric utility. The trial Court enjoined the future collection of all fuel and gas adjustment charges without specific approval by the City Council, and awarded damages to the Appellees in an amount equal to all fuel and gas adjustment charges paid by them for a period from four years prior to the filing of the suit to the date of judgment.

The trial Court also held that the gas and electric rates as applied to Appellees were illegal to the extent that they generate revenue which permits benefits to the City of San Antonio, in services and money for its General Fund, holding that such services and payments to the City are void because they are a sales tax from payment of which Appellees are exempt. The trial Court further enjoined the City from charging and collecting such amounts from Appellees and granted Appellees damages equal to such payments paid into the City’s General Fund for the period from four years prior to the filing of the suit to the date of the judgment.

By its First Point of Error, the Appellant contends the trial Court erred in holding that the fuel adjustment clause in the City Ordinance constituted unlawful delegation of regulatory authority to set gas and electric rates and was therefore unconstitutional. We agree.

The City of San Antonio owns its gas and electric systems, having purchased them in 1942 pursuant to Articles 1111-1118, Tex. Rev.Civ.Stat.Ann. In accordance with such Statutes and in order to obtain funds to finance the purchase of the systems, the City entered into a Trust Indenture contract for the issuance of electric and gas revenue bonds. Pursuant to Article 1115, Tex.Rev.Civ.Stat.Ann., the'management of the gas and electric systems was by the terms of the Trust Indenture placed in the hands of a five-member board called the City Public Service Board of San Antonio. The City Council of San Antonio, in the exercise of its legislative authority, sets and regulates the rates charged for gas and electric service. Kousal v. Texas Power & Light Co., 142 Tex. 451, 179 S.W.2d 283 (1944). In the exercise of its rate regulatory authority, the City Council in April, 1965, and in June, 1974, passed Ordinances providing schedules of rates for each class of gas and electric customer of the City systems and defines the classifications of gas and electric service to which the various rates apply. Each of said Ordinances also contains a fuel adjustment clause applicable to the electric rate schedule and the gas rate schedule.

In September, 1973, the Railroad Commission entered an Interlocutory Order giving Lo-Vaca Gathering Company, the principal supplier of gas to the City, the benefit of an interim rate of 5$ per MCF of gas, plus Lo-Vaca’s weighted average cost of gas. This has resulted in the City paying much higher rates for gas received from its supplier. As the purchase cost of gas by the City has increased, such increase has been reflected in the City’s gas and electric charges as a result of the fuel adjustment clauses in the City Ordinances. This has resulted in some customers’ bills being increased two or three times more than the basic utility charge because of the fuel adjustment charge.

The City Council does not conduct a public hearing prior to the monthly billings of customers and does not formally approve each monthly fuel cost adjustment in rates. The fuel adjustment clauses are contained in the ordinance and operate automatically based upon supply and fuel costs and were enacted to obviate the necessity for monthly public hearings. The Appellees contend that since hearings are not held by the City Council to establish each and every fuel adjustment change in rates, as may be required based upon the supply and cost of fuel, that there has been an unlawful delegation of the rate-making authority by the lawfully constituted authority, the City Council, to an unlawfully constituted authority, the City Public Service Board of San Antonio.

Fuel adjustment escalator clauses have been adopted by various types of public utilities nationwide in the past several years. Those clauses have been attacked on numerous grounds, including an unconstitutional delegation of authority. Almost without exception, the clauses have been upheld. The leading case is City of Norfolk v. Virginia. Electric and Power Company, 197 Va. 505, 90 S.E.2d 140 (1955). In that ease, the Supreme Court of Virginia said:

“The proposed escalator clause is nothing more or less than a fixed rule under which future rates to be charged the public are determined. It is simply an addition of a mathematical formula to the filed schedules of the Company under which the rates and charges fluctuate as the wholesale cost of gas to the Company fluctuates. Hence, the resulting rates under the escalator clause are as firmly fixed as if they were stated in terms of money.”

It was also contended in that case that the escalator clause resulted in a denial of procedural due process of law to the consumers because there was no public notice and hearing on each occasion when the actual rate was increased. With regard to that contention, the Court said:

“In the instant case there was sufficient notice to the public that the Commission would hold a formal hearing on the application of the Company to determine whether it was just and reasonable to insert the escalator clause into its filed schedules. The City appeared and participated in the proceedings, and after an investigation by the Commission and a full hearing, the Commission found as a fact that the proposed escalator clause was ‘just and reasonable’, a finding which the record does not warrant us in reversing. Consequently, the requirements of procedural due process have been fulfilled in this ease.”

The decision by the Virginia Court was followed by the Supreme Court of Illinois in City of Chicago v. Illinois Commerce Commission, 12 Ill.2d 607, 150 N.E.2d 776 (1958). In that case, it was contended that the automatic adjustment clause was against the public interest and that the action of the Commission in adopting the clause exceeded its statutory power. In denying such contention, the Court said:

“Under the common, as well as the statutory definition, it is clear that the statutory authority to approve rate schedules embraces more than the authority to approve rates fixed in terms of dollars and cents. The present automatic adjustment clause is a set formula by which the price of natural gas to the ultimate consumer is fixed by inserting in the formula the wholesale price of natural gas as established by the FPC.”

The Court in that case quoted extensively from the opinion by the Virginia Supreme Court and noted that as early as 1954 sixty-five gas distributing companies in twenty-six states had adjustment clauses in their rate schedules based on the cost of purchased gas, and twenty-two companies in twelve states had adjustment clauses based on either cost of purchased gas or fuel to manufacture gas.

The reasoning set forth in those two Supreme Court cases in the 1950’s has now been adopted by the highest court of other states which have passed upon fuel adjustment escalator clauses. See United Gas Corporation v. Mississippi Public Service Commission, 240 Miss. 405, 127 So.2d 404 (1961); City of El Dorado v. Arkansas Public Service Commission, 235 Ark. 812, 362 S.W.2d 680 (1962); City of Akron v. Public Utilities Commission, 5 Ohio St.2d 237, 215 N.E.2d 366 (Ohio 1966); Public Service Company of New Hampshire v. State, 113 N.H. 497, 311 A.2d 513 (1973); Maestas v. New Mexico Public Service Commission, 85 N.M. 571, 514 P.2d 847 (New Mexico 1973).

Following the Virginia and Illinois cases, the Attorney General of Texas on November 20,1975, in Opinion No. H-741, concluded “A municipality does not necessarily surrender its governmental power when it grants an automatic rate adjustment to a public utility pursuant to an adequate objective formula if it is based upon readily ascertainable costs controlled by the impersonal forces of the marketplace.” In our case, there seems to be no question but that the cost which the City of San Antonio pays to its principal supplier of gas is at a rate set by the Texas Railroad Commission, the agency having responsibility for control of production, supply and cost of intrastate gas at the marketplace in San Antonio and throughout the State. Art. 6053, Tex.Rev. Civ.Stat.Ann.

The City Public Service Board of San Antonio has no authority or discretion to change the rates or the formula in the fuel adjustment clauses and it does not perform any legislative function in the rate-making process. The fact that the Public Service Board does determine when and how much gas to buy does not give it any rate-making authority, and in making the decision as to gas purchases the Board only acts to meet the needs required by the customers of the city-owned utilities.

We conclude that fuel adjustment escalator clauses are a legitimate and valid procedure in the operation of a public utility. Such clauses greatly reduce the necessity for expensive and time consuming public hearings at which rates must be set high enough to meet future inflationary cost, and yet they protect the consumer when costs are reduced. At the same time they protect the utility in a legitimate operating expense which includes cost of an essential fuel, and do so in a method which shortcuts the time lag between changes in cost and the payment of compensation for utility services. Unfortunately for the consumer, all of the changes during the past several years have been in an upward spiral, but this factor alone does not make the device used invalid or unconstitutional.

Having concluded that the Ordinances under attack are not invalid, we sustain the Appellant’s First Point of Error and hold that the trial Court erroneously invalidated the fuel adjustment charges and improperly awarded damages based upon its determination of the invalidity of those clauses and improperly enjoined the future collection of charges under such clauses. Such conclusion makes it unnecessary for us to consider the Second Point of Error.

By its Third Point of Error, the Appellant contends that the trial Court erred in holding that a sales tax was imposed by operation of a bond indenture formula which permitted the City to recover from revenues of the utility system for general City purposes a percent of gross revenues, and in holding that the Appellees are exempt from such tax. We agree.

The above mentioned Trust Indenture provides for a prior lien on the properties and all revenues of the gas and electric systems for payment of bonds issued to purchase the utility system, and the Indenture as amended also provides in detail for the application of the revenues of the City gas and electric systems. Article V, § 5, of the Indenture, provides for a payment from the utility system revenues, after paying cost of operation and principal and interest on the bonds, to the General Fund of the City of San Antonio an amount based upon the value of the system’s fixed capital assets located within the City limits, as a reimbursement for the loss of taxes which the City would receive were the utility system privately owned. Section 6, as amended in 1960, provides that, after meeting operating and Bond Fund requirements, additional payments are to be made to the City’s General Fund from the remaining revenues sufficient to reimburse the City for all money which has been paid to the Board of Trustees during such fiscal year for gas and electric services of the systems used by the City for municipal purposes during such fiscal year, and for an additional payment to the City of a cash sum which, when added to the reimbursements for taxes and utility services and the amount expended annually for additions to the street and traffic lighting, will amount to 14% of the system’s gross revenues. The trial Court has held that the benefits not exceeding 14% of the gross revenues of San Antonio’s city-owned gas and electric utility which inure to the City, in municipal utility services and cash transferred to the General Fund, constitute a sales tax and that Appel-lees as governmental bodies are exempt from paying that portion of their gas and electric charges which constitute such tax.

Assuming, without the necessity of making a determination, that the 14% charge is a sales tax, as found by the trial Court, we conclude that the Appellees are not exempt from such a tax and therefore we sustain the Appellant’s Third Point of Error. Basically, the Appellees claim their exemption under that provision of Art. 8, § 2, of the Texas Constitution which states, in part, that “ * * * the legislature may, by general laws, exempt from taxation public property used for public purposes; * It is further contended that such constitutional provision is statutorily mandated under the provision of Article 7150, § 4, Tex. Rev.Civ.Stat.Ann., which with regard to property that shall be exempt from taxation states:

“All property, whether real or personal, belonging exclusively to this State, or any political subdivision, thereof, * *

It should be noted that the constitutional provision appears to refer to ad valo-rem taxes. 54 Tex.Jur.2d, Taxation, § 67, at 213. In State v. City of El Paso, 135 Tex. 359, 143 S.W.2d 366 (1940), suit was brought against a political subdivision of the State, a city, to recover taxes, penalties and interest upon gasoline alleged to be payable under the motor fuel tax laws of this State. In denying the claimed exemption, the Court noted that under the motor fuel tax law it is evident that the tax levied for use of motor fuel in this State and the tax levied for sale of motor fuel are the same, and that the use of motor fuel without actual first sale in this State is still a statutory sale. Thus, the Court concluded that the City of El Paso which purchased fuel in New Mexico for use upon the public highways of this State was required to pay a user tax thereon. In reaching this result, the Court said:

“In this instance we think that beyond any doubt our motor fuel tax laws tax the first actual sale of motor fuel in this State, regardless of whether or not it is sold to a city.”

Undoubtedly, the 14% charge increased the net revenues of the City from the operation of the city-owned gas and electric utility, but it was not an ad valorem tax. Instead, it was a part of the total charge for a utility service and there is no contention nor proof that such charge was excessive or prohibitive to the utility consumers such as Appellees.

Since the entire charge made by the City for utility services was a charge for services rendered and did not constitute an attempt to provide a tax in lieu of ad valorem taxes, nor an attempt to reimburse one taxing authority from another taxing authority solely for the loss of a tax base, Appellees’ Crosspoints One and Two are overruled. The authorities cited, Lower Colorado River Authority v. Chemical Bank & Trust Co., 144 Tex. 326, 190 S.W.2d 48 (1945); San Antonio Independent School District v. Board of Trustees of the San Antonio Electric & Gas System, 204 S.W.2d 22 (Tex.Civ. App. — El Paso 1947, writ ref’d n. r. e.) are distinguishable.

By their last Crosspoint, Appellees contend that the addition of the 14% charge on the fuel adjustment charges was invalid and in effect results in a substantial windfall profit for the City as a result of the substantial fuel adjustment charges which have been made in recent years. While we can readily agree with Appellees’ position as to the effect the 14% charge has had by reason of the fuel adjustment charges, that appears to be a matter for determination by the rate-making authority, i. e., the City Council. The Council has now taken action to correct, at least in part, the inequity which may have resulted. Nevertheless, the charges resulting from the 14% charge being collected on the fuel adjustment charge were not invalid. Crosspoint Three is overruled.

Having concluded that the 14% charge was not a tax from which Appellees are exempt, and having sustained Appellant’s Third Point of Error, we hold that the trial Court erroneously awarded judgment for recovery of such charges and erroneously enjoined future collection of such charges. Such conclusion makes it unnecessary for us to consider the last Point of Error.

The judgment of the trial Court is reversed and judgment is here rendered for the Appellant.

      . On a closely related issue, See: Railroad Commission of Texas v. City of Austin, 524 S.W.2d 262 (Tex. 1975).


author: KLINGEMAN, Associate Justice.

text:
    R_ K_ M_, Appellant, v. The STATE of Texas, Appellee.
    No. 15526.
    Court of Civil Appeals of Texas, San Antonio.
    Feb. 25, 1976.
    Rehearing Denied April 14, 1976.
    John Compere, Groce, Locke & Hebdon, San Antonio, for appellant.

      Ted Butler, Crim. Dist. Atty., San Antonio, Lawrence R. Linnartz, Gerald R. Zwer-nemann, Douglas C. Young, Asst. Dist. At-tys., San Antonio, for appellee.
   KLINGEMAN, Associate Justice.

This is an appeal from an order of the 131st District Court of Bexar County, Texas, sitting as the juvenile court, wherein the Court waived its jurisdiction over appellant as a juvenile, certified him as an adult for the purpose of adult criminal proceedings, and transferred him to the 187th Criminal District Court of Bexar County, Texas.

Appellant, R. K. M., was approximately 15 years, 11 months old at the time of the alleged offense, and at the time of the hearing waiving jurisdiction he was over 17 and under 18 years of age. He is presently over 18 years of age. He is charged with the commission of two felonies, robbery and murder with malice. Shortly after the occurrence of the alleged offenses, appellant was picked up and placed in juvenile detention and an attorney was appointed to represent him on October 2, 1973. On October 10, 1973, a motion to certify and transfer the cause was filed by appellee in the juvenile court of Bexar County, Texas. The motion alleged that appellant had committed two offenses against the penal laws of this State of the grade of a felony, and requested that the juvenile court waive its jurisdiction over appellant and certify him as an adult. A trial was held, and on August 6, 1974, the trial court entered its order waiving jurisdiction and certifying appellant as an adult for criminal proceedings. This Court, on March 12, 1975, reversed and remanded the cause to the trial court. See R. K. M. v. State, 520 S.W.2d 878 (Tex.Civ.App. — San Antonio 1975, no writ). Subsequently, on March 31, 1975, appellee filed a second motion to certify and transfer the cause. On June 26, 1975, the hearing was conducted, and on June 27, 1975, an order was entered again waiving jurisdiction and transferring appellant to the District Court for adult criminal proceedings.

Appellant asserts by his first point of error that the case should be reversed because the State confined him in the juvenile detention facility without having a detention hearing at the expiration of the maximum 10 day interval in violation of Section 54.01(h) of the Texas Family Code, thereby violating appellant’s right to due process of law under the Texas Family Code and the 14th amendment to the U. S. Constitution.

It is undisputed that appellant was placed in the Bexar County Juvenile Detention Center on October 2, 1973, and remained there until November 3,1973, at which time he was released. During such period of time, detention hearings were held on October 2,1973, October 4,1973, and October 26, 1973. It is clear that more than 10 days transpired between the second detention hearing and the third detention hearing.

Appellant contends that since the statutory provisions concerning the length of time of detention were not complied with, the entire proceedings should be considered as void and of no force and effect. He argues that this is true for the following reasons: (a) it was a violation of due process; (b) although juvenile statutes are to be liberally construed to enable the courts to protect the juvenile, they are to be strictly construed insofar as it may result in the restraint of a child’s liberty, because then the proceeding is criminal in nature.

Appellant has cited no case, nor have we found any, construing this particular provision of the Family Code. However, in support of his due process argument and his contention that the statute should be strictly construed against the state and in favor of the appellant, appellant cites and relies on such cases as In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966); Felder v. State, 463 S.W.2d 272 (Tex.Civ.App.—Houston [14th Dist.] 1971, writ ref’d n. r. e.); Collins v. State, 429 S.W.2d 650 (Tex.Civ.App.—Houston [14th Dist.] 1968, no writ); Leach v. State, 428 S.W.2d 817 (Tex.Civ.App.—Hous-ton [14th Dist.] 1968, no writ). The thrust of appellant’s contention is that in a proceeding which seeks to deprive a defendant of his liberty, the defendant is guaranteed all of the privileges and immunities he would have if it were a criminal proceeding. We have no disagreement with this contention, nor with the holdings in the above cited cases.

It should be pointed out that appellant was given a detention hearing on the same day he was placed in the Bexar County Juvenile Detention Center, and that during the approximate period of one month that he was in the detention center, he was given three detention hearings. It must also be noted that during all of this period of time, and up to the present time, he was represented by able and competent counsel. There is nothing in the record to indicate that at any time during the period of time he was being detained that any complaint was made with regard to the detention hearings. The record does not reveal that any habeas corpus proceedings were ever instituted. Moreover, such point of error was not brought up at any stage of the proceedings in the first waiver and transfer hearing, nor was it brought to this Court in appellant’s previous appeal. See R. K. M. v. State, supra. On this appeal, appellant had not alleged that he was prejudiced by the failure to accord him a detention hearing during the period in question, or that the absence of such a hearing rendered the subsequent proceedings against him unfair. While we do not condone the failure of the State to strictly comply with the 10 day provision of the Family Code, we cannot see that such failure, under the record before us, in any way prejudices appellant’s defense, or in any way affected his rights on the herein appeal.

Under the record, we do not regard the absence of the one detention hearing as a violation of due process. There is nothing in the record to show that the failure to hold such a hearing affected any subsequent proceedings. Even if we regard this as a criminal proceeding, and recognize that appellant is entitled to all of the rights and privileges of an adult in this regard, it is to be noted that generally an illegal detention in a criminal case concerning an adult, does not void a subsequent conviction. Gurstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 855, 43 L.Ed.2d 54 (1975); Erdelyan v. State, 481 S.W.2d 843 (Tex.Crim.App.1972); Klechka v. State, 429 S.W.2d 900 (Tex.Crim.App. 1968), cert. denied, 393 U.S. 1044, 89 S.Ct. 672, 21 L.Ed.2d 592 (1969).

Under the record before us, appellant is not entitled to have the order of the juvenile court overturned solely because the provision of Section 54.01(h) was not complied with in one instance. Appellant’s first point of error is overruled.

By his second and third points of error, appellant contends that this case should be reversed because there is no evidence supporting the trial court’s finding that juvenile jurisdiction should be waived over appellant, and that there is insufficient evidence supporting such finding.

Section 54.02(f),' Texas Family Code, sets up six criteria or considerations which the juvenile court must examine to determine whether to waive its original jurisdiction. Such criteria are as follows:

(1) whether the alleged offense was against person or property, with greater weight in favor of transfer given to offenses against the person;
(2) whether the alleged offense was committed in an aggressive and premeditated manner;
(3) whether there is evidence on which a grand jury may be expected to return an indictment;
(4) the sophistication and maturity of the child;
(5) the record and previous history of the child; and
(6) the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedures, services, and facilities currently available to the juvenile court.

We have carefully read and considered all of the evidence, and such evidence will be hereinafter summarized in some detail. From an examination of such evidence, it cannot be said that there is no evidence to support the trial court’s finding, and clearly there is some evidence to support such finding. Appellant’s “no evidence” point of error is overruled.

Nine witnesses testified. Such witnesses include two psychologists, who must be considered as expert witnesses; three witnesses who testified with regard to the details of the alleged offenses; and four lay witnesses.

The material portions of the testimony may be summarized as follows:

Dr. Betty Lou Schroeder is the Bexar County psychologist. She testified that she had performed psychological evaluations on over 500 juveniles, and over 8,000 adults. Before joining the County, she was in private practice. Dr. Schroeder testified that she had done a psychological evaluation of appellant shortly after the alleged offenses, and in connection therewith, had done a battery of tests. She stated that in her opinion appellant had an unsocialized aggressive reaction of adolescence, and that the tests showed he had at least low average intelligence. She further testified that the tests and clinical observations done on appellant indicated that he had sociopathic trends, and that he exhibited a very strong oppositional trend, deep suspicion, hostility, and resentment.

Dr. Schroeder stated that appellant is sophisticated in the terms of average maturity for a young man and was able to cope with his particular environment on a mature adult level; that at the time she examined him he had the maturity of an adult within his cultural setting. She further stated that in her opinion he is an adult.

Dr. Schroeder testified as to the various available training and rehabilitation facilities she had visited, and stated that none of these facilities would be appropriate for appellant’s rehabilitation, and that appellant’s interests would best be met with behavioral modification techniques, which, in her opinion, are only available to the juvenile courts here in a very limited way. She also pointed out that the available facilities do not afford much security, and that the runaway possibilities are very apparent.

Dr. James O. Sherman is a Bexar County child psychologist, and has held such position since April 1, 1975. He has tested approximately 75 children since he has been a Bexar County child psychologist. He examined and evaluated appellant on June 3, 1975. He testified that he administered numerous tests to appellant and that on the basis of such tests and his observations, he was of the opinion that there was no psychiatric disfunction, and no signs of brain damage. He testified that on the Wechsler Adult Intelligence Scale appellant had a verbal score of 48, which is equivalent to an IQ rating of 94, and a performance score of 43, which is equivalent to an IQ of 92; that this is in the average range of intelligence.

He testified that in his opinion appellant is not a mature person for his age, and that in his opinion, he should be treated as a juvenile, and that he believes this to be true because he is an adolescent. He stated that appellant is a high external individual who sees himself as being controlled by forces beyond himself, and that he reverts to the mother figure for decisions. He further stated that he is dependent and shows a great deal of underlying hostility.

In response to questions from the court, Dr. Sherman said that he could not conceive of any youngster that should be treated as an adult, or anyone 16 years of age who should be treated as an adult.

Three lay witnesses testified with regard to appellant’s maturity, sophistication, and progress. One was a juvenile probation officer, two were with Healy-Murphy Learning Center. In general, they testified that appellant does not act like an adult; that he is not mature; that many of his acts are childish; and that in their opinion, he should not be considered or treated as an adult. They further testified that appellant is doing well and making good progress at Healy-Murphy Learning Center, and that he is receptive to counseling.

The other witnesses who testified were the police officer who found the body of the murder victim; Dr. Santos, who performed the autopsy; and one of the participants in the alleged offenses. All testified with regard to the alleged offenses, and their testimony pertains to Sub-sections 1, 2, and 3 of Section 54.02(f) of the Texas Family Code. Such testimony sufficiently supports the trial court findings in these categories.

It also appears from the testimony of one of the case workers at the Bexar County Juvenile Department, that appellant was first referred to the Juvenile Department on June 4, 1973, which is approximately 3½ months prior to the alleged offenses here involved, and that on June 28, 1973, he was adjudicated on charges of unlawfully carrying a pistol (pertinent to Sub-section 5, Section 54.02(f)).

It is seen that the thrust of appellant’s complaint pertains to Sub-sections 4 and 6.

The rule is well established in this State that an appellate court will not disturb the findings of the trier of the facts on conflicting evidence where there is some evidence to support such finding and verdict, unless such finding and verdict is so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust. Foley Brothers Dry Goods Co. v. Settegast, 133 S.W.2d 228, 233 (Tex.Civ.App. — Galveston 1939, writ ref’d); Highsmith v. Tyler State Bank & Trust Co., 194 S.W.2d 142 (Tex.Civ.App. — Texarkana 1946, writ ref’d). It is elementary that the trier of the facts is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547 (1962); Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273 (1958); Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194 (1952); Romer v. Gruver State Bank, 474 S.W.2d 578 (Tex.Civ. App. — Eastland 1971, no writ).

The trial court saw and heard the defendant and the witnesses, and had an opportunity to observe their appearance, conduct, and demeanor to evaluate the respective qualifications of the witnesses, and to pass on their credibility. This Court cannot substitute its opinion as to the credibility of the witnesses and the weight to be given their testimony for that of the trial court, as this is the sole province of the trier of the facts. Under the record before us, we cannot say that the trial court’s finding and verdict is such as to shock the conscience, or that the conclusion reached was clearly wrong, or was the result of some passion, prejudice or improper motive, or was against the great weight and preponderance of the evidence. The trial court’s finding and judgment is sufficiently supported by the evidence. Appellant’s points of error number 2 and 3 are overruled.

The judgment of the trial court is affirmed.

      . Section 54.01(h) reads as follows: A detention order extends to the conclusion of the disposition hearing, if there is one, but in no event more than 10 days. Further detention orders may be made following subsequent detention hearings. Subsequent detention hearings may be waived in accordance with the requirements of Section 51.09 of this code, but each detention order shall extend for no more than 10 days.

      . Sub-sections 4 and 6, Section 54.02(f) Texas Family Code: (4) the sophistication and maturity of the child; (6) the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedures, services, and facilities currently available to the juvenile court.

      . It is sometimes stated that the verdict must be such as to shock the conscience of the court, or show clearly that the conclusion reached was wrong, or was the result of some passion, prejudice or improper motive.


author: PER CURIAM.

text:
    Hubert TRIAL, d/b/a Old Fort Trading Post, Appellant, v. Don McCOY, Appellee.
    No. M10980.
    Court of Civil Appeals of Texas, El Paso.
    Feb. 25, 1976.
    Rehearing Denied March 17, 1976.
    Lonnie W. Duke, San Antonio, for appellant.
    Schwartz & Earp, Larry H. Schwartz, El Paso, for appellee.
   OPINION

PER CURIAM.

This is an attempted appeal from an order overruling Appellant’s plea of privilege. Appellee has contested the Appellant’s request for extension of time to file the transcript and statement of facts. The contest is sustained; the request for extension of time is overruled and the appeal is dismissed.

The judgment of the trial Court overruling the plea of privilege was signed and entered on January 5, 1976. Appellant deposited cash in lieu of appeal bond with the District Clerk and the Clerk’s certificate showing the deposit on January 26, 1976. This was timely filed under the 20-day requirement of Rule 385(a) Tex.R.Civ.P., as January 25 was a Sunday and the Appellant was permitted the extra day by Rule 4, Tex.R.Civ.P. The Appellant then, on February 2, 1976, filed in this Court of Civil Appeals his Motion for Extension of Time to File Statement of Facts and Transcript. The Appellee contests on the ground that good cause is not shown by the motion and that, in fact, good cause does not exist as required under Rule 385(b).

More than the question of good cause is presented. The time limits imposed by Rule 385(b) are mandatory and jurisdictional. State v. Gibson’s Distributing Company, 436 S.W.2d 122 (Tex.1968). The rule states “that upon the filing of a motion in the appellate court within such twenty-day period, or within five days thereafter, showing good cause therefor, such court may grant a reasonable extension of time in which to file such record * * *.” The twenty-fifth day from the judgment overruling the plea of privilege was Friday, January 30, 1976. The motion requesting extension was three days late. We have no jurisdiction to grant the motion or to consider the appeal. Williams v. Pitts, 151 Tex. 408, 251 S.W.2d 148 (1952); Cattle Land Oil Co. v. Willis Drilling Company, Inc., 509 S.W.2d 383 (Tex.Civ.App. — Corpus Christi 1974, no writ).

Regardless of the above, there is a failure of good cause under the rule. The Appellant’s direction to the District Clerk to prepare the transcript was not filed until January 26, 1976. The Appellant was notified on January 27,1976, that the transcript was ready. Any extension aside, January 26 was the last regular day when it was due for filing in the Court of Civil Appeals. No excuse is shown for this delay in ordering the transcript. Pledger v. Ools, 476 S.W.2d 854 (Tex.Civ.App. — Amarillo 1972, no writ).

The court reporter certifies that he was requested on January 21, 1976, to prepare the statement of facts, and he then had only two full working days to complete it before it was due in the Court of Civil Appeals; that he could not complete the statement of facts and perform his other duties as court reporter within the short period of time. Again, there is a failure to answer the preliminary question of whether the request for the record was made within a reasonable time after the entry of judgment appealed from. The purported showing of good cause is defeated. Garza v. State, 503 S.W.2d 415 (Tex.Civ.App. — Corpus Christi 1973, no writ); Pledger v. Ools, supra; Sommer v. Richardson, 420 S.W.2d 742 (Tex.Civ.App. — Eastland 1967, no writ); Reynolds, Texas Rules of Civil Procedure 385 and 386: Whether to Extend the Definitive Time for Filing the Appellate Record, 4 Tex.Tech.L.Rev. 1 at 8.

The question is asked if Rule 21c, Tex.R.Civ.P., effective January 1, 1976, has changed the rules relating to the good cause showing under Rule 385. The test under Rule 386 is no longer that of showing good cause why the record could not be timely filed but is now one where the motion must “reasonably explain” the timely failure to file. Rule 21c speaks generally when it refers to the failure of a party to timely file a transcript and statement of facts in the Court of Civil Appeals and Rule 386, as now amended on January 1, 1976, has been changed to conform to Rule 21c. Rule 385(d) has also been changed but in the face of Rule 21c, Rule 385(b) has not been changed. Rule 385(d) in its changes regarding appeals of temporary injunctions specifically refers to the retention of the time for filing transcripts and statement of facts as presently provided in Rule 385(a) & (b). Because of the urgency of the interlocutory order appeals permitted by Rule 385, and the changes noted, it is the holding of this Court that Rule 21c does not apply to transcripts and statement of facts filed under Rule 385, and that the showing of good cause is still mandatory for any reasonable extension of time.

The Motion for Extension of Time to File the Transcript and Statement of Facts is denied and the appeal is dismissed.