text:
    Billie Darlene FREEMAN, Appellant, v. CROWN LIFE INSURANCE COMPANY, Appellee.
    No. 8642.
    Court of Civil Appeals of Texas, Texarkana.
    April 10, 1979.
    Rehearing Denied May 8, 1979.

      James J. Hultgren, Richard K. Berger, Hultgren, Jewell & Kolb, Dallas, for appellant.
    T. Michael Wilson, Jackson, Walker, Win-stead, Cantwell & Miller, Dallas, for appel-lee.
   CORNELIUS, Chief Justice.

Our task in this appeal is to decide whether the death of a person who is killed in an automobile collision while driving under the influence of intoxicating liquor is accidental within the meaning of a group life insurance policy insuring that person against accidental death.

The case was submitted to the district court on an agreed statement which stipulated these pertinent facts: Jackie W. Freeman was an employee of Affiliated Food Stores, Inc. At the time of his death there was in effect a group life insurance policy issued by appellee covering Affiliated’s employees. The policy provided life insurance benefits of $15,000.00 for Mr. Freeman, together with an additional $15,000.00 if he should die from accidental bodily injury. On the night of August 14, 1976, Mr. Freeman consumed alcoholic beverages at a lounge in Dallas. At about 1:45 a. m. he left the lounge and drove his pickup truck on North Masters Drive, a public street in Dallas. At or near the 2400 block of that street, his pickup collided with a parked tractor/truck. He sustained internal injuries in the collision which were, independent of all other sources, the direct cause of his death. At the time of the collision Mr. Freeman was intoxicated, his blood alcohol content being between .188% and .207%. The insurance policy did not contain any exclusion denying coverage either in the event the insured was intoxicated, or in the event he was engaged in an unlawful act.

Appellee paid the standard life insurance benefits to Mrs. Freeman, but refused to pay the accidental death benefit on the sole ground that Mr. Freeman’s voluntary act in driving while intoxicated rendered his death non-accidental. The district court agreed and denied Mrs. Freeman’s claim for the accidental death benefits.

The insurance policy provided that:

“If an employee while insured for this benefit sustains any accidental bodily injury which, independent of all other causes, is the direct cause of any loss shown in the Schedule of Losses and Benefits, . Crown Life will pay, subject to the provisions of this policy, the amount provided for such loss . . . ”.

Neither “accident” nor “accidental bodily injury” is defined in the insurance policy.

In a suit to recover accidental death benefits provided by an insurance policy, proof that the insured died by violent and external means raises a presumption that the death was accidental. Republic Nat. Life Ins. Co. v. Heyward, 536 S.W.2d 549 (Tex.1976); Prudential Insurance Company of America v. Krayer, 366 S.W.2d 779 (Tex.1963); Georgia Casualty Co. v. Shaw, 197 S.W. 316 (Tex.Civ.App.Galveston 1917, writ dism’d); 46 C.J.S. Insurance § 1317, p. 407; Annot., 12 A.L.R.2d 1264. The insurer then has the obligation to produce evidence to show otherwise. Home Benefit Ass’n. v. Briggs, 61 S.W.2d 867 (Tex.Civ.App.Waco 1933, no writ); 46 C.J.S. Insurance, § 1317, p. 409. If rebutted, the presumption passes out of the case and does not constitute evidence. Unrebutted, however, it constitutes prima facie proof that the death was an accident so as to bring the case within the coverage of the policy. Prudential Insurance Company of America v. Krayer, supra; 46 C.J.S. Insurance § 1317, p. 409.

The only evidence upon which appellee relies to rebut the presumption that Mr. Freeman’s death was accidental is the stipulation that at the time of the collision he was driving while intoxicated. It is contended that because such an act is a criminal act inherently involving substantial risk of harm, serious bodily injury and death are the readily foreseeable consequences of such conduct and are therefore not accidental within the contemplation of the insurance policy. To support its contention ap-pellee relies upon Hobbs v. Provident Life & Accident Insurance Company, 535 S.W.2d 864 (Tenn.App.1975), which held that the danger inherent in driving while intoxicated is so foreseeable that the death of a person while engaged in such conduct is not accidental within the meaning of an insurance policy. The majority rule is otherwise, however, and we agree with Professor Ap-pleman’s work which states:

“The contrary result is of course the better one. While drunken driving is dangerous (and should be prevented) the public still regards such an accident as ‘accidental’. To rule to the contrary is to deny the terminology the ordinary meaning given by the public. . . . ”
For cases following the majority rule see: Miller v. American Casualty Company of Reading, Pa., 377 F.2d 479 (6th Cir. 1967); Mozingo v. Mid-South Ins. Co., 29 N.C.App. 352, 224 S.E.2d 208 (1976); Union Central Life Insurance Company v. Cofer, 103 Ga.App. 355, 119 S.E.2d 281 (1961); Stats v. Mutual of Omaha Insurance Co., 73 D.L.R.3rd 324 (Ontario Ct.App.1976). See also, 1A Appleman, Insurance Law and Practice, § 467 (Supp.1978), and compare Sivley v. American National Insurance Company, 454 S.W.2d 799 (Tex.Civ.App.Amarillo 1970, writ ref’d n. r. e.). Mozingo v. Mid-South Ins. Co., supra, is especially close on the facts with the present case.

The exact question has not been decided in Texas, but from analogous cases involving the general question of whether an insured’s voluntary conduct renders a death non-accidental, we have been able to distill what we consider is and should be the rule in a case of this type. The mere fact that a person’s death may have occurred because of his negligence, even gross negligence, does not prevent that death from being an accident within the meaning of an accident insurance policy. It is only when the consequences of the act are so natural and probable as to be expected by any reasonable person that it can be said that the victim, in effect, intended the result and it was therefore not accidental. We think that is what our Supreme Court meant when it said in Hutcherson v. Sovereign Camp, W.O.W., 112 Tex. 551, 251 S.W. 491 (1923), that if the insured must have known or anticipated that his conduct would in all probability bring about his own death, the occurrence was not an accident. See also Releford v. Reserve Life Insurance Company, 154 Tex. 228, 276 S.W.2d 517 (1955). More is required than a simple showing that the insured could have reasonably foreseen that injury or death might result. As Justice Doughty said in Republic Nat. Life Ins. Co. v. Heyward, supra, the insured must have acted in such a way that he should have reasonably known his actions would probably result in his death. Unquestionably, driving while intoxicated is a serious violation of the law and an extremely dangerous act, but we do not believe it is such an act that one who commits it can be said to reasonably know that it will probably bring about his own death. Compare Great American Reserve Insurance Co. v. Sumner, 464 S.W.2d 212 (Tex.Civ.App.Tyler 1971, writ ref’d n. r. e.). As the court in Stats v. Mutual of Omaha Insurance Co., supra, said in discussing the trial judge’s erroneous conclusion that the insured’s death while intoxicated was not accidental:

“There is every justification for his description of her conduct as dangerous and grossly negligent and for his view that, in terms of the foreseeability of the reasonable man, she was greatly at fault. This is far different from finding that the insured actually and voluntarily ‘looked for’ or ‘courted’ the risk of the collision that killed her. 27 . . Accordingly, . the collision must be regarded as an accident and her death as resulting from ‘accidental bodily injuries’ within the meaning of the policy.”

Appellee also relies upon a line of decisions from Texas and other jurisdictions which hold that the deaths or injuries of persons which occur while such persons are engaged in the commission of serious crimes are not accidental within the meaning of insurance policies. See Ritchie v. John Hancock Mutual Life Insurance Co., 521 S.W.2d 367 (Tex.Civ.App.Waco 1975, no writ); Spencer v. Southland Life Insurance Company, 340 S.W.2d 335 (Tex.Civ.App. Fort Worth 1960, writ ref’d); Wright v. Western and Southern Life Insurance Co., 443 S.W.2d 790 (Tex.Civ.App.Eastland 1969, no writ); Guillory v. Aetna Life Ins. Co., 541 S.W.2d 883 (Tex.Civ.App.Beaumont 1976, writ ref’d n. r. e.); Carlyle v. Equity Benefit Life Ins. Co., Okl.App., 551 P.2d 663 (1976); DeMello v. John Hancock Mut. Life Ins. Co., 281 Mass. 190, 183 N.E. 255 (1932). We have no difficulty harmonizing those cases with the rule we have announced here. Each of them involved conduct on the part of the insured which, under all the circumstances, would probably produce his death. Some of the terms and phrases used in those cases are revealing, viz., that the insured’s death was “imminent and foreseeable,” and that his conduct was such that death was “invited” or “expected.” Thus, it is not the illegality of the act but the inevitability of the result which renders that result nonaccidental. Compare Kentucky Central Life Insurance Company v. Marvin D. Fannin, Docket No. 8952 (Tex.Civ.App.Amarillo, November 30, 1978) (unreported); Sivley v. American National Insurance Company, supra; and, Great American Reserve Insurance Co. v. Sumner, supra.

Upon public policy considerations, some courts have denied recovery of accidental death benefits where the insured was killed while in the commission of a serious crime, on the grounds that such a recovery would allow one to profit from his own wrong and would encourage crime. See Annot., 43 A.L.R.3d 1120; 1125, Sec. 3. But the weight of authority and the trend of recent decisions is to allow an innocent beneficiary to recover unless the policy was obtained in contemplation of the illegal conduct. Ibid, Sec. 4, p. 1126, et seq. See also Stats v. Mutual of Omaha Insurance Co., supra. Such a result does not violate the policy consideration first stated, because the beneficiary has been guilty of no wrongdoing. The second consideration is not valid, for as observed in Home State Life Ins. Co. v. Russell, 175 Okl. 492, 53 P.2d 562 (1936), it is unrealistic, to say the least, to assume that any significant number of policy holders would go out and seek death in unlawful pursuits in order to mature their policies.

Another rule reinforces our decision. An insurance policy is to be construed strictly against the insurer and its terms are to be given the normal and usual meaning ascribed to them by ordinary persons. Republic Nat. Life Ins. Co. v. Heyward, supra; Guardian Life Insurance Co. of America v. Scott, 405 S.W.2d 64 (Tex. 1966); United States Ins. Co. of Waco v. Boyer, 153 Tex. 415, 269 S.W.2d 340 (1954); Davis v. National Casualty Co., 142 Tex. 29, 175 S.W.2d 957 (1943); 32 Tex.Jur.2d Insurance, Sec. 58, p. 117; Sec. 60, p. 121. There is no doubt that the ordinary person who is insured by an accident insurance policy would consider his death in an automobile collision accidental even though at the time of the collision he may be intoxicated or otherwise negligent. If the appellee desired to exclude from coverage any death occurring in such circumstances, it could have easily done so by inserting in the policy an appropriate exclusion.

There is yet another reason why judgment should not have gone to the insurer. There is no proof or stipulation that Mr. Freeman’s intoxication had any causal relation to his death. For all the proof shows, his intoxication may not have contributed whatever to the collision. There may have been a steering failure, a blowout, or any number of other occurrences which caused the tragedy. Even as to policies containing express exclusions of benefits when the insured is intoxicated, a causal relation between the intoxication and the death must be shown in order to deny coverage. Harris v. Carolina Life Insurance Company, Fla., 233 So.2d 833 (1970); Ingle v. Sovereign Camp, Woodmen of the World, 204 Mo.App. 597, 216 S.W. 787 (1918). As noted earlier, the agreed statement of facts proved, prima facie, that Mr. Freeman died as the result of an accident. The burden then fell upon appellee to show that his death was not an accident. Even if we were to hold that the act of driving while intoxicated took the resulting death out of the realm of accident, the appellee has not produced any evidence to show that such intoxication did, in fact, cause or contribute to the death.

For the reasons stated we conclude that the agreed facts showed, prima facie, that Jackie W. Freeman’s death was caused by accidental bodily injury within the meaning of the insurance policy in question. Therefore, the judgment of the district court denying recovery under the accidental death benefit provisions of the policy was erroneous.

The judgment is reversed and judgment is here rendered awarding appellant, Mrs. Billie Darlene Freeman, the sum of $15,-000.00, plus interest at the rate of 6% per annum from August 15, 1976, to February 16, 1978, plus $1,800.00 as statutory penalty, with the attorney’s fees as found by the judgment below together with interest on the total recovery at the rate of 9% per annum from February 16, 1978, until paid.

      . 1A Appleman, Insurance Law and Practice, § 467, n. 76.25 (Supp.1978).

      . Tex.Rev.Civ.Stat.Ann. art. 5069-1.03; Combined Insurance Co. of America v. Kennedy, 495 S.W.2d 306 (Tex.Civ.App.Eastland 1973, writ ref'd n. r. e.); Duffer v. American Home Assurance Company, 512 F.2d 793 (5th Cir. 1975).

      . Tex.Ins.Code Ann. art. 3.62.

      . Tex.Rev.Civ.Stat.Ann. art. 5069-1.05; Nederlandsch-Amerikaansche Etc. v. Vassallo, 365 S.W.2d 650 (Tex.Civ.App.Houston 1963, writ ref'd n. r. e.); Givens v. Missouri-Kansas-Texas R. Co. of Texas, 196 F.2d 905 (5th Cir. 1952).


source: Caselaw Access Project

author: NYE, Chief Justice.

license: Public Domain

text:
    Gene GUYNN, Appellant, v. CORPUS CHRISTI BANK & TRUST, Appellee.
    No. 1360.
    Court of Civil Appeals of Texas, Corpus Christi.
    April 12, 1979.
    Rehearing Denied May 10, 1979.

      Anthony F. Constant, Carl C. Chase, Corpus Christi, for appellant.
    Robert C. Wolter, Wood, Burney & Wol-ter, Corpus Christi, for appellee.
   OPINION

NYE, Chief Justice.

The question presented by this appeal is whether the Honorable Walter Loughridge (Retired), sitting as visiting trial judge in the 105th District Court, committed reversible error by rendering judgment in total disregard of a settlement agreement reached by and between the parties. The settlement was dictated into the record pursuant to Rule 11, Texas Rules of Civil Procedure. A somewhat detailed factual statement is helpful in order to place the case in its proper procedural context, and to understand the parties’ appellate contentions.

Appellee Corpus Christi Bank & Trust (Bank) brought this suit to recover the unpaid balance due and owing on a promissory note, together with interest and attorney’s fees (contractual), against defendants International Equipment & Service Company, Inc. (IESCO), the maker of the note, and Ralph W. Hardin, Jack L. Whitson, and Gene Guynn, guarantors of the note. The Bank alleged that defendant IESCO executed a promissory note dated July 5, 1974, payable to the Bank for the principal sum of $89,861.00 payable with interest on or before sixty days from the date of execution and that the note had been renewed and extended to become due and payable on December 4, 1974. The Bank further alleged that the note was secured by: (1) three separate guaranty agreements executed by Hardin, Whitson and Guynn; and 2) a security interest in certain described couplings; as well as 3) all of the corporate maker’s accounts receivable. The Bank alleged that the collateral was seized after default and sold at a public sale for the sum of $30,000.00, leaving an unpaid principal balance as of October 17, 1975, of $66,-730.40.

The guarantors filed cross-actions seeking contribution and indemnity from each other and, in addition, from Claude E. Birge and Paul Emery, alleged shareholders and officers of IESCO, on the basis that Birge and Emery had agreed to share in equal portions any judgment recovered against the guarantors, Hardin, Whitson or Guynn. The guarantors also filed a counterclaim seeking, in addition to other relief, damages from the Bank because the Bank had allegedly sold the collateral for an unreasonable price. The Bank amended its pleadings to name Emery and Birge as additional defendants, seeking to claim, as a third party beneficiary, the benefits of any agreement among the defendants concerning liability for the payment of the debts evidenced by the note to the Bank.

Defendant Paul Emery did not answer and did not appear at the trial. The Bank, IESCO and all the individual defendants appeared and, through their attorneys of record, announced they had reached a settlement agreement disposing of some of the issues in the lawsuit. The following terms of the settlement were then dictated into the record:

(Attorney for appellee Bank): “. that the Defendant Whitson and the Defendant Hardin and the Defendant Guynn have agreed to pay Corpus Christi Bank and Trust sixty thousand dollars cash on or before January 18 at five o’clock P.M. at Corpus Christ, Texas. In consideration for the bank not further asserting its claims against them severally or jointly upon the note dated July 5, 1974, and for the same consideration to the bank, the Defendants Whitson, Guynn, and Hardin do not pursue any of their defenses, affirmative or negative, in their pleadings against the claims of Corpus Christi Bank and Trust, and the sixty thousand dollar settlement with those three guarantors would be the extent of their liability as to principal, interest, and attorneys’ fees, and we didn’t discuss court costs, but we won’t be that disturbed on it, and it is all conditioned on that amount of money in cash or its equivalent, as approved by me, being in the bank’s possession as the Court has suggested at five o’clock on January 18, 1978.
* * * * * *
The bank, in addition to that, will keep the couplings that they bid in the collateral for thirty thousand dollars, which credit has been allowed on the note, which would make the equivalent of receiving ninety thousand dollars if the couplings are worth thirty, which is highly speculative in my opinion, but that’s part of the consideration, and, further, as I understand it, those three Defendants would not contest the introduction of the promissory note, security agreement, and all written instruments relating to the bank’s claim.”

After the agreement was dictated into the record, the trial judge asked each party to the agreement whether or not he understood what had been dictated and whether the terms of the agreement were agreeable and acceptable. All of the parties responded affirmatively.

Thereafter, the attorneys for the respective parties requested Judge Loughridge to postpone the jury portion of the trial on the remaining issues in the case for two days until the due date of the guarantors’ settlement payment so that the cause could be tried in toto if the guarantors failed to raise the cash settlement payments. The trial judge refused. The attorneys for the respective parties then proceeded to determine what issues in the lawsuit remained for trial. The parties agreed that it remained for the Bank to prove up its prima facie case against IESCO and the defaulting defendant Emery, and that this part of the case would be before the trial judge sitting without a jury. The remainder of the issues, (as to whether there was to be contribution and indemnity between the various parties), would be tried to a jury.

The Bank then proceeded to present its evidence, including testimony that the principal and interest outstanding and unpaid on the note amounted to $76,680.69 as of the hearing date. The guarantors did not object to the Bank’s evidence and did not present any evidence in support of their affirmative defenses against the Bank, all in accordance with the settlement agreement. At the close of the Bank’s evidence, the trial judge stated:

“The Court will grant you judgment against the corporation for seventy-six thousand, six hundred, eighty dollars, sixty-nine cents plus ten per cent attorneys’ fees, and against Mr. Emery for a like amount.”

A discussion then ensued among the parties and the trial judge concerning the remaining issues to be tried before the jury. The record reflects some confusion as to the nature of the Bank’s participation, if any, in the remainder of the case. The defendant guarantors had pled an agreement among themselves plus Birge and Emery to share in the obligations of IESCO in the event of a default. The Bank, on the other hand, sought some affirmative relief from Birge and Whitson because the Bank had pled that it was entitled to receive the benefits of any agreement between the parties under a third party beneficiary theory. Toward the end of the courtroom discussion, the trial judge stated:

“You have an agreement dictated in the record, and it is enforceable, and the way to enforce it and get the bank out of the way of Mr. Birge is to go ahead and render judgment against these three men as guarantors on the amount proven up and then when you pay the sixty thousand dollars you can get a release and that lets the bank out and they can sit by and wait and see what you prove against Mr. Birge. They will ride your coattail on that feature of it. That is the way to solve it.
(Attorney for Bank): The Bank will so move, Your Honor.
(Judge Loughridge): If nobody is going to make the motion, the Court will do it on its own motion. Who are the guarantors, Guynn, Hardin, and Whitson? .
(Attorney for Bank): Yes, sir, where is the posture of International Equipment and Service Company?
(Judge Loughridge): You have a judgment against them and Mr. Emery also.
(Attorney for Bank): For how much?
(Judge Loughridge): Whatever amount you proved up.
(Attorney for Bank): Okay, sir.
(Judge Loughridge): The judgment against the guarantors is the same amount you proved up.
(Attorney for Bank): Jointly and severally?
(Judge Loughridge): Surely. Now you can sit behind these three guys and get a jury panel in here. Those three are Plaintiffs, and Mr. Yarbrough (the attorney for IESCO) is Defendant.
(Attorney for Bank): And the bank has no strikes, no comments?
(Judge Loughridge): No, nothing to do but just ride their coattails.
(Attorney for Bank): And we are not a party to the case?
(Judge Loughridge): No, we got you out of it pretty slick.”

After a jury was selected, evidence was submitted concerning whether or not there was an oral guaranty agreement among the five defendants. In response to a sole special issue, the jury refused to find that Hardin, Whitson, Guynn, Emery and Birge had mutually agreed that each of them would be equally responsible to each other for the note to the Bank. Thereafter, the trial judge entered a final judgment providing, in part, that:

“CORPUS CHRISTI BANK & TRUST have judgment against and recover of and from INTERNATIONAL EQUIPMENT AND SERVICE COMPANY, INC., a Texas corporation, RALPH W. HARDIN, GENE GUYNN, JACK L. WHITSON, and PAUL EMERY, jointly and severally, in the sum of $84,348.76 (being liquidated amounts of $76,680.69 unpaid principal and accrued interest to date hereof and $7,668.07 being collection (attorney’s) fees equal to ten percent (10%) of the unpaid principal and interest owing) together with interest from date hereof on such $76,680.69 thereof until paid at rate of ten percent (10%) per annum and with interest on $7,668.07 thereof until paid at the rate of nine percent (9%) per annum.”

The judgment did not mention the prior agreement which had been dictated into the record limiting the liability of the three guarantors to the sum of $60,000.00. The judgment provided that the guarantors would have a judgment against each other for indemnity and contribution and against Paul Emery for indemnity and contribution. The judgment, however, denied the guarantors indemnity and/or contribution as to defendant Birge. The only party to appeal the trial court’s order is guarantor Guynn.

In point of error two (original brief) and counterpoint two (reply brief), appellant contends, in effect, that the trial court erred when it arbitrarily and summarily granted a judgment against him in total disregard of the terms of the parties’ settlement agreement entered into pursuant to Rule 11, Texas Rules of Civil Procedure. We agree.

Rule 11 provides as follows:

“No agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as a part of the record, or unless it be made in open court and entered of record.” (Emphasis supplied).

In a judgment by consent, the terms must have been definitely agreed upon by all parties, and either reduced to writing, signed by all parties and filed among the papers of the case, or made in open court and dictated into the record. Leal v. Cortez, 569 S.W.2d 536 (Tex.Civ.App.—Corpus Christi 1978, no writ); McIntyre v. McFarland, 529 S.W.2d 857 (Tex.Civ.App.—Tyler 1975, no writ); Behrens v. Behrens, 186 S.W.2d 697 (Tex.Civ.App.—Austin 1945, no writ).

It is absolutely essential that the parties themselves agree upon all the terms and provisions of the agreed settlement. The trial court has no power to supply terms, provisions or essential details not previously agreed to by the parties. The trial court is without authority to render judgment which does not fall strictly within the terms of the agreement dictated into the record by the parties themselves. Matthews v. Looney, 132 Tex. 313, 123 S.W.2d 871, 872 (1939); Pope v. Powers, 120 S.W.2d 432 (Tex.Sup.1938); Leal v. Cortez, 569 S.W.2d 536, 538 (Tex.Civ.App.—Corpus Christi 1978, no writ). It is not sufficient that a party’s consent to an agreed judgment may have been given at one time or another, but rather, the consent must exist at the very moment the trial court undertakes to make the agreement a part of the record and judgment of the court. Burnaman v. Heaton, 150 Tex. 333, 240 S.W.2d 288 (1951); Leal v. Cortez, 569 S.W.2d 536 (Tex.Civ.App.—Corpus Christi 1978, no writ); Wilmer-Hutchins Independent School District v. Blackwell, 529 S.W.2d 575 (Tex.Civ.App.—1975, writ dism’d). Once the requisites of Rule 11, Texas Rules of Civil Procedure, have been satisfied, it is the ministerial duty of the trial court to then render judgment in strict accordance with the parties’ agreement. See Wright v. Allstate Insurance Co., 285 S.W.2d 376, 379 (Tex.Civ.App.—Dallas 1955, writ ref’d n. r. e.), and authorities cited therein. It has been aptly stated that:

“. . . the court would be entirely without authority to render any judgment other than that falling strictly within the terms of the stipulations. It was not for the court to determine whether the benefits to accrue from a particular stipulation might be had under some arrangement different from that stipulated. The powers of the judge, exercised by virtue of agreement of the parties, extend, we think, to entering only such judgment as was a literal compliance with the agreement.” Wyss v. Bookman, 235 S.W. 567, 569 (Tex.Com.App.1921, jdgmt. adopted; holding approved).

In this case, the parties entered into a settlement agreement whereby the liability of the guarantors of the note upon which the Bank sought judgment was fixed. The agreement was recited into the record and, thereafter, each party, in open court, stated and agreed that he understood the provisions of the settlement and that such provisions were agreeable to him.

After the settlement agreement was dictated into the record, remaining discussions concerned the severable issues which remained to be tried and the proper alignment of the parties in that contested portion of this suit. Nowhere in the record is there an express repudiation of the agreement by any party. The trial judge, in attempting to determine the remaining issues, again specifically recognized the validity and binding effect of the parties’ agreement.

The evidence which was introduced by the Bank to prove its prima facie case was only against the corporation and the defaulting defendant (Emery). Nevertheless, in total disregard and in direct contravention of the settlement agreement, the trial court rendered a joint and several judgment against the guarantors for an amount that exceeded by several thousand dollars the settlement agreed to by the parties. The trial judge’s later explanation for his version of the judgment entered was to the effect that the Bank should get a judgment for the full amount against the three guarantors jointly and severally, and if the guarantors paid the amount of the settlement two days later, the Bank could release them. The effect of the judge’s version would save the Bank the trouble of bringing suit on the contractual settlement judgment if the guarantors defaulted. This was obviously a better settlement for the Bank, but it wasn’t the agreement between the parties. We are of the opinion that the trial judge exceeded his authority and acted in total disregard of the settlement agreement which was binding on the parties and binding on the trial court.

We further disagree with the Bank’s contention that the judgment which was finally entered by the trial court was of itself a valid consent judgment. The Bank contends that appellant Guynn impliedly agreed to the terms of the judgment that was entered because, when the judge pronounced his decision in open court, Guynn did not object. It is equally consistent with our above ruling that, in order for the judgment that was entered by the trial judge to be considered as a valid consent judgment, the requirements of Rule 11, Texas Rules of Civil Procedure, must, again, be strictly followed. This was not done. The parties did not reach a second compromise agreement. There was no additional agreement in writing or stipulations dictated into the record. In addition, none of the parties had repudiated the settlement agreement at the time the judgment was announced in open court or at any time thereafter. No one on appeal contends that he did not agree with the settlement agreement as dictated into the record. A party cannot be bound without his express consent to a settlement agreement.

It is apparent to us from a complete reading of the record that the trial judge, (although he was aware of the settlement agreement and was of the opinion that it was binding), nevertheless took it upon himself to determine what the best interests of the parties were to be and to attempt to settle the suit to his own satisfaction. This conduct is not permissible and cannot be upheld on appeal.

As a general rule, where one party appeals from a judgment, a reversal as to him will not justify a reversal against other non-appealing parties. This rule, however, does not apply in cases where the respective rights of the appealing and non-appealing parties are so interwoven or dependent on each other as to require a reversal of the entire judgment where a part thereof must be reversed. See Lockhart v. A. W. Snyder & Co., 139 Tex. 411, 163 S.W.2d 385 (1942); Richards Manufacturing Company v. Aspromonte, 557 S.W.2d 543 (Tex.Civ.App.—Houston [1st Dist.] 1977, no writ); Bates v. First National Bank of Waco, 502 S.W.2d 181 (Tex.Civ.App.—Waco 1973, no writ); Dairyland County Mutual Ins. Co. v. Texas v. Martinez, 484 S.W.2d 785 (Tex.Civ.App.—El Paso 1972, writ ref’d n. r. e.). In this case, the trial court exceeded his authority by disregarding an otherwise valid settlement agreement between the parties.

Since the original agreed settlement is now impossible to perform because of the date limitation contained therein, we have no other recourse than to reverse the cause as to the Bank and as to the three named guarantors (Hardin, Whitson and Guynn) for a trial on the merits of the parties’ respective causes of action between themselves.

The judgment of the trial court is reversed and the cause is remanded.

      . For example, the following exchange occurred after the trial judge had orally pronounced judgment in favor of the Bank against only IESCO and Emery, and prior to the selection of the jury:
      “(Attorney for Bank): The bank’s position is still not clear in its Counsel’s mind, Your Hon- or. In the event settlement is not reached, we have no issue left to raise?
      (Judge Loughridge): I am assuming the settlement will be reached and that it is enforceable. It is dictated into the record and is enforceable and agreed to by all parties, and it is an enforceable settlement. If they don’t get the money by Wednesday afternoon, you can sue them and get judgment against them on it.
      (Attorney for Bank): That day?
      (Judge Loughridge): I don’t know how fast your courts work down here. I can tell you if it was in Bexar County it would be within five months. We try cases up there in five months from the date they are filed, most of them. You have an enforceable agreement, Counsel, and you just sit behind these guys and wait and see.
      (Attorney for Bank): I understood at one point you said if they did not, then Thursday you gave me judgment for the seventy-six thousand dollars plus attorneys’ fees.
      (Judge Loughridge): I didn’t say that.

      (Attorney for Bank): That is the
      (Judge Loughridge): The Court didn’t say that, and you have reached a judgment only against Mr. Emery and the corporation.”


author: DICKENSON, Justice.

text:
    Mrs. Orene ANDREWS, Appellant, v. The CITY OF DALLAS, Appellee.
    No. 5246.
    Court of Civil Appeals of Texas, Eastland.
    April 12, 1979.
    Charles J. Winikates, Dallas, for appellant.

      Jerry T. Steed, Asst. City Atty., Dallas, for appellee.
   DICKENSON, Justice.

The question presented is whether the City has established by summary judgment proof that it has no liability, as a matter of law, for the injuries and death of a motorist whose automobile hit a concrete foundation in the median of a divided roadway. The concrete foundation was the base upon which a left-turn signal was erected by City.

Plaintiff, Mrs. Orene Andrews (mother of deceased motorist) brought suit for herself individually and also as next friend for her minor grandson, Charles Martin Caldwell II (son of deceased motorist), alleging that City was negligent in the maintenance of its street and that this was a proximate cause of the personal injuries to, and death of, Charles Martin Caldwell (deceased motorist). The defendant City answered by a general denial, a plea that the deceased motorist’s negligent acts and omissions were proximate causes of the collision, a plea that no cause of action could be asserted by plaintiffs against City “ . . .as a matter of Texas law, since the construction, maintenance and operation of traffic control devices is a governmental function of the City of Dallas for which governmental immunity applies,” a plea of no duty to the deceased motorist “ . . . when he used such roadway in an unusual and extraordinary manner,” and a plea that no duty was owed because the left-turn signal was open and obvious as a matter of law. The trial court sustained City’s motion for summary judgment that plaintiffs take nothing. Plaintiff appeals. We reverse the summary judgment and remand the cause for trial on the merits.

The summary judgment proof shows that on August 16, 1975, at about 2:10 a. m., Charles Martin Caldwell was driving his vehicle in a westerly direction on Loop 12 and that his car hit the left-turn signal on the west side of the intersection of Loop 12 and Veterans Drive in the City of Dallas, Texas. There were no witnesses to the collision. The City Police found the car lying on its top and the concrete base of the traffic signal uprooted. Charles Martin Caldwell was unconscious, and he died a few hours later.

City agrees that the left-turn signal was installed by City on or about December 31, 1963, and that it had a raised concrete base extending 20 inches above the curb which was 6 inches above the roadway, making the concrete base 26 inches above street level. City also agrees that the concrete base was on a median which wa3 4 feet wide, and the concrete base was 6 inches from the traveled portion of the highway. In 1966, the City Traffic Engineer issued a directive to discontinue the construction of such high profile concrete bases for traffic control devices and to remove them when work was done at such a location. The speed limit at this location was 45 miles per hour. City produced its copy of the Manual on Uniform Traffic Control Devices which provides in part that: “ . . . Concrete bases for sign supports should be flush with the ground level,” and that: “ . Supports for post-mounted signal heads at the side of a street with curbs shall have a horizontal clearance of not less than two feet from the face of a vertical curb,” and that: “ . . . Any supports which cannot be located with the required clearances should be of the breakaway type or should be guarded if at all practical.” The parties agreed in writing that this material “can be used in the appellate court to determine whether there was error in granting of the Motion for Summary Judgment,” and the trial judge approved their agreement.

In 1968, City stopped the construction of raised concrete bases for traffic control devices and went to a design where the bases protrude only a few inches above the ground. City’s traffic engineer admitted in his deposition that the reasons for the change in design included “safety consideration” and that: “It is a consideration to present to the motorist an area that would be free of obstacles as he proceeds down the road.” It should also be noted that there were iron barrier buttons at the intersection which were 13⅝ inches in diameter and 4 inches in height.

Plaintiff contends that the trial court erred in sustaining City’s motion for summary judgment. We agree. The maintenance of the concrete traffic signal base was a proprietary function, and City has failed to establish that there are no factual issues as to its negligence being a proximate cause of the collision.

City relies upon Voigt v. City of Corpus Christi, 419 S.W.2d 445 (Tex.Civ.App.—Corpus Christi 1967, writ ref’d n. r. e.), for the proposition that:

The regulation and control of traffic, including the use of traffic control lights, in and by a city is a governmental function as a reasonable exercise of police power, (citing authorities)

The opinion in Voigt also points out:

On the other hand, the maintenance of streets is a proprietary function. A city is under a duty to maintain its streets in a reasonably safe condition, and negligence in the performance of this function renders the city liable for resulting injuries, even though the unsafe condition is caused by the improper location of a governmental function instrumentality or the failure to properly guard such instrumentality so as to render it reasonably safe, (citing authorities) (emphasis added)

Our Supreme Court stated in Crow v. City of San Antonio, 157 Tex. 250, 301 S.W.2d 628 (1957), that:

“When a city attempts to exercise its governmental functions in controlling traffic on a street and in such attempt uses means which constitute a dangerous physical obstruction thereon or therein, it has been held that it has committed an affirmative wrong and that an action for damages for injuries resulting therefrom may be maintained.” (citing authorities)

The Commission of Appeals stated in City of Waco v. Darnell, 35 S.W.2d 134 (Tex.Comm.App.1931, holdings approved) that:

In this connection we further hold that the municipal duty is not confined absolutely to keeping the street, or the traveled or improved portion thereof, in proper condition, and one injured by a defect or obstruction outside the street, or traveled or improved portion thereof, may still be entitled to recover if such defect or obstruction by reason of its proximity to the street, or traveled or improved portion thereof, renders it not improbable that such defect will result in injury to those using the street or traveled or improved portion thereof in the ordinary manner and while exercising due care. City of Dallas v. Maxwell, (Tex.Comm.App.) 248 S.W. 667, 27 A.L.R. 927; 47 C.J. page 1008, par. 1791.

City concedes in its brief that the general rule of law in Texas pertaining to the legal duty owed the traveling public for street and highway construction and maintenance by municipalities and governmental agencies is correctly stated in City of Dallas v. Maxwell, 248 S.W. 667 (Tex.Comm.App.1923, holding approved). The opinion in Maxwell states:

The general rule is that a municipality is charged with the duty of exercising ordinary care to so construct and maintain its public highways as to render them reasonably safe for ordinary travel. A breach of that duty imposes legal liability for all damages which are thereby proximately caused.
In the application of this doctrine it has been held in numerous cases that slight deviations from the traveled roadway . . . are not such unusual occurrences as should not as a matter of law be foreseen and guarded against, and that, where a condition exists which would render the street unsafe in the light of such occurrences, the duty rests upon the municipality to take reasonable precaution against injury which might ordinarily be expected to result therefrom. And such condition, to come within the purview of reasonable foresight, need not necessarily be confined to the street itself, but may arise by reason of its proximity to the street, which would render it not improbable that it would result in injury to those using the street in the ordinary manner and while exercising due care.
We are not unmindful of the obvious fact that motor-driven vehicles do become defective . . . that drivers are sometimes negligent, and accidents more or less serious result. In a sense all such occurrences are foreseeable. But, when not brought about by some defects in the highway, they are not incident to ordinary travel, and do not happen as a result of the ordinary use of highways — that use for which they are designed. When and where they may happen and the attendant consequences are matters of the barest chance and purest speculation. If in contemplation of law they were foreseeable, and therefore to be guarded against, then no limitations could be set to mark the bounds of a city’s duty in the construction and maintenance of its highways.
. this holding has no application to those cases in which some defect in the street was a contributing cause toward rendering the animal or machine uncontrollable.

It seems clear that City, as movant, has not discharged its burden under Tex.R. Civ.P. 166-A to establish that: “ ‘there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.’ ” Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970). There is a fact issue as to whether the City of Dallas exercised ordinary care in the construction and maintenance of the concrete foundation of the signal light in close proximity to the traveled portion of the street, and there is also a fact issue as to whether the iron barrier buttons in the street were defects which were a proximate cause of the occurrence.

Voigt, Crow, Darnell and Maxwell, supra, were all decided before the adoption of the Texas Tort Claims Act, Art. 6252 — 19, Tex. Rev.Civ.Stat.Ann. (1970). Section 6 of that Act provides that it is cumulative in its legal effect and not in lieu of any and all other legal remedies which the injured person may pursue.

City of Houston v. Jean, 517 S.W.2d 596 (Tex.Civ.App.—Houston (1st Dist.) 1974, writ ref’d n. r. e.) states:

The City was under a duty to warn or protect against any special defect such as an excavation or obstruction in the street or in such proximity to the street as to render travel unsafe, (citing authorities) (emphasis added)

See also, De Lahunta v. City of Waterbury, 134 Conn. 630, 59 A.2d 800 (1948); Breivo v. City of Aberdeen, 15 Wash.App. 520, 550 P.2d 1164 (1976); McKenna v. Volkswagenwerk Aktiengesellschaft, 558 P.2d 1018 (Haw.1977).

The summary judgment is reversed, and the cause is remanded for trial on the merits.


author: REYNOLDS, Justice.

text:
    Jay FIKES, Individually, and d/b/a Fikes and Associates, a Partnership, and d/b/a King’s Park Apartments, Appellant, v. Christopher McCandless TULL, Appellee.
    No. 9001.
    Court of Civil Appeals of Texas, Amarillo.
    April 16, 1979.

      Griffith & Brister, Bill H. Brister, Lubbock, for appellant.
    Miller, Miller & Tull, John H. Tull, Jr., Amarillo, for appellee.
   REYNOLDS, Justice.

The question is whether, and we hold that, recovery of statutory penalties for the retention of a tenant’s security deposit beyond the time allowed by statute is, in the absence of evidence of a reasonable excuse for delay, proper even though the deposit is eventually returned. Affirmed.

Appellee-tenant, Christopher McCandless Tull, giving both timely advance notice of his intention to do so and a forwarding address to which his $75 security deposit was to be sent, vacated, on 1 January 1978, the apartment he was leasing from appellant-landlord, Fikes and Associates. It was not until some fifty-three days later, on 23 February 1978, after Tull made several inquiries about the security deposit and retained an attorney that the deposit was actually returned. Tull cashed the check and, thereafter, filed this suit, seeking statutory penalties for Fikes’s bad-faith retention of the security deposit in violation of Tex.Rev.Civ.Stat.Ann. art. 5236e (Supp.1978).

A non-jury trial produced a judgment decreeing that Tull recover $800 from Fikes, consisting of: $150 in treble damages (three times the $75 deposit, less the $75 actually refunded); $100 statutory penalty; and attorney’s fees of $250. Findings of fact and conclusions of law were requested of and made by the court. Appealing upon four points of error, Fikes presents two basic contentions: (1) by accepting and cashing the $75 deposit return Tull either has no cause of action under Article 5236e or is estopped from asserting such; and (2) the court erred in finding bad faith.

Fikes’s first contention is refuted by the language of the statute itself. The statute establishes a remedy and penalty, not for the failure to return the security deposit, but for the bad faith retention of the deposit, section 4(a), more than thirty days after the tenant surrenders the premises, section 2(a), provided the tenant has given advance notice of surrender as required by the rental agreement, section 2(a), and has furnished a forwarding address, section 6(a). Cf. Edgar S. Daugherty, Etc. v. Morales, 556 S.W.2d 639, 640 (Tex.Civ.App.—Waco 1977, no writ) where the court held that Article 5236e provides for damages against a landlord who retains a security deposit in bad faith. Consequently, Tull’s acceptance and later cashing of the deposit return check neither vitiated his Article 5236e cause of action nor es-topped him from properly asserting such.

Fikes’s second contention is predicated on an excerpted, recorded dialectic which it reads as the trial court’s conclusion that bad faith exists as a matter of law once the thirty-day period has passed. Although the court’s cited comments are not so specific, Fikes is correct when he says the expiration of the thirty-day period does not of itself provide automatic recovery by the tenant as a matter of law. Section 4(c) provides:

Failure to return a security deposit within 30 days or failure to provide a written description and itemization of deductions within 30 days is prima facie evidence and a presumption that the landlord acted in bad faith.

This provision has been viewed as establishing an inference which permits, but does not compel, a fact finding of bad faith when rebutting evidence is offered; but in the absence of rebutting evidence, the presumption does compel a finding of bad faith. Wilson v. O’Connor, 555 S.W.2d 776, 780 (Tex.Civ.App.—Dallas 1977, writ dism’d).

The trial court arrived at the legal conclusion, without making an express factual finding of bad faith, that Fikes violated Article 5236e by wrongfully withholding and retaining in bad faith Tull’s security deposit. The failure to make a factual finding of bad faith, however, is not fatal to the cause for two reasons: (1) there is an implied finding of bad faith, and (2) the section 4(c) presumption of bad faith has not been rebutted.

The trial court made the following findings of fact: (1) Tull fulfilled all conditions precedent required by the lease for return of the security deposit; (2) he left with Fikes a letter stating his forwarding address; (3) the deposit was retained beyond the thirty-day period allowed by law; and, (4) in effect, no actual cause existed for retaining any portion of the security deposit. These findings have not been attacked and are therefore binding upon this court. Bilek v. Tupa, 549 S.W.2d 217, 220 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n. r. e.). These four findings plus a further finding of bad faith would allow a recovery under Article 5236e. Bad faith as an omitted unrequested element of the Article 5236e ground of recovery will be presumed found in support of the court’s judgment if there is evidence of such. Tex.R.Civ.P. 299; Allied Building Credits, Inc. v. Grogan Builders Supply Co., 365 S.W.2d 692, 695 (Tex.Civ.App.—Houston 1963, writ ref’d n. r. e.).

Tull gave more than thirty days notice of his intention to vacate the apartment he was leasing from Fikes and subsequently did so on 1 January 1978. The apartment manager sent a letter to Fikes and Associates dated 24 January 1978 stating that Tull’s apartment was clean and well kept and that he was entitled to a refund of his $75 deposit. After the thirty-day period had passed, Tull made repeated demands for the deposit but did not receive it until fifty-three days after he moved. Fikes made no claim that it was entitled to retain any portion of the security deposit to cover any damages or charges for which Tull may have been liable, and, in fact, gave no explanation or excuse whatsoever for the retention of the deposit beyond the statutory period of thirty days. Thus, the evidence supports an implied finding of bad faith.

Moreover, a finding of bad faith is compelled by the facts of this case. Section 4(c) establishes a presumption of bad faith when a security deposit is retained beyond the thirty-day period. A true presumption invokes a rule of law which compels the fact finder to reach a conclusion in the absence of contrary evidence. Farley v. M M Cattle Company, 529 S.W.2d 751, 756 (Tex.1975). Fikes, by failing to bring forth any evidence of reasonable excuse, has not rebutted the statutory presumption. A finding of bad faith is thereby compelled. Wilson v. O’Connor, supra, at 780.

Fikes’s four points of error are overruled. The judgment of the trial court is affirmed.

      . All sections cited are sections of Tex.Rev.Civ.Stat.Ann. art. 5236e (Supp.1978).


author: MASSEY, Chief Justice. HUGHES, Justice,

text:
    GULF INSURANCE COMPANY, Appellant, v. Mrs. Minnie O. BOBO, Mrs. Mary Lambert and Commercial Standard Insurance Company, Appellees.
    No. 18094.
    Court of Civil Appeals of Texas, Fort Worth.
    April 19, 1979.
    Rehearing Denied May 17, 1979.
    Simon, Peebles, Haskell, Gardner & Betty and Anne Gardner, Fort Worth, for appellant.
    Hudson, Keltner, Smith, Cunningham & Payne and Joe Bruce Cunningham, Fort Worth, for Bobo and Lambert.
    J. M. “Mike” Lee, Fort Worth, for Commercial Standard Ins. Co.
   OPINION ON REHEARING

MASSEY, Chief Justice.

Our prior opinion under date of March 8, 1979, is withdrawn. The following is substituted therefor.

Gulf Insurance Company has appealed from a judgment rendered against it in favor of Mrs. Mary Lambert and Mrs. Minnie 0. Bobo. The judgment was based on a jury verdict which in effect found David L. Havens to be an “additional insured” in a liability policy covering a pickup truck issued by Gulf Insurance Company to William C. Avett.

Affirmed.

Initially Lambert and Bobo had brought suit against Havens, Commercial Standard Insurance Company and Avett. Commercial Standard, who had uninsured motorist coverage on Bobo and Lambert, was severed out of such suit. Bobo and Lambert voluntarily dismissed Avett and proceeded to take a default judgment against Havens. Suit was altered to be against Gulf asserting that Havens was operating the pickup with Avett’s permission and was therefore an additional insured under Avett’s Gulf policy; that Gulf should pay the default judgment.

Bobo and Lambert, appellees herein, also have appealed that part of the judgment decreeing that they take nothing from Commercial Standard. Such appeal is contingent on a holding by this court that Havens was not an insured under the Gulf policy. Commercial Standard, in its brief, admits its liability to Bobo and Lambert if Gulf is released on this appeal.

The facts here are not in controversy. It appears that Avett owned a pickup truck which he decided to sell. Havens and Avett agreed that Havens should have the truck if he would pay Avett’s note at the bank. Avett told Havens: “Okay. You get some insurance on it and you can have it. We’ll get the papers fixed down at the bank.” Havens said: “All right.” Upon Havens’ showing Avett a receipt for insurance on the truck on February 12, 1974, Havens took the truck and Avett said: “Okay. It’s yours and we’ll get the papers changed and that’s it.”

Apparently Havens had made some sort of arrangements with State Farm Mutual Insurance Company. The matter is not clarified. Apparently, also, State Farm denied any coverage for Havens at any time material. Neither is this clarified. Obvious, however, is that State Farm was never made a party defendant by anyone at any time. Under these circumstances we are bound to view the case as one in which no possible insurance could apply in behalf of either Avett or Havens unless it was the policy of Gulf Insurance Company. (The Commercial Standard cover was by policy of Bobo and Lambert and was uninsured motorists cover; i. e., its coverage would be of concern to no one unless and until it be ascertained that there was no other applicable insurance in force.)

By the state of the pleadings as of time the case went to trial neither Avett nor Havens remained parties adversary. Avett was dismissed as a defendant; Havens had suffered default judgment against him which had become final. Though all the proceedings were under the same docket number and the case one more easy to understand had the matters on appeal been under a new suit filed after finality of the default judgment against Havens, yet would the fact that such did not occur be immaterial to the issues on trial below and on appeal in this court.

On February 14, 1974, the day before Havens and Avett were to get the papers fixed at the bank, Havens got drunk and drove the pickup into an automobile carrying Bobo and Lambert. Both ladies were injured.

Gulf urges in points of error 1, 2, 3, 4 and 6 that the trial court erred in not granting its motion for judgment notwithstanding the verdict because the evidence established as a matter of law that: Havens was not an additional insured under the Avett policy; the truck was not owned by Avett in the sense that he could grant or deny Havens use of it; Avett had no control over the truck such as would permit him to grant or deny Havens use of it; Avett retained no interest in the manner of use of the truck; and Havens was not using the truck with permission of Avett.

Also, Gulf urged in points of error 5 and 7 that the jury’s answers in special issues 1, 2 and 3 were so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong.

The jury found in special issue no. 1 that Avett retained an interest in the manner in which the truck was used; in special issue no. 2 that Havens was using the truck with the permission of Avett; and in special issue no. 3 that Havens was using the truck within the scope of such permission.

The undisputed facts in this case reveal that Avett sold and delivered possession of the pickup truck to Havens. Only the formality of “getting the papers fixed down at the bank”, on February 15, 1974, remained to make Havens’ equitable title a legal title. “What was formerly a mere bailment became a firm contract to sell as between the parties.” Rush v. Smitherman, 294 S.W.2d 873, 875 (Tex.Civ.App.—San Antonio 1956, writ ref’d).

Having lost his control and possession, “might [Avett] incur some liability due to the operation or use of the automobile” even though he no longer actually owned the “owned automobile”? Snyder v. Allstate Insurance Company, 485 S.W.2d 769, 772 (Tex.1972).

The only interest necessary to the validity of an automobile liability insurance policy is that the insured may incur liability because of the operation, maintenance or use of the automobile. Gulf Ins. Co. v. Winn, 545 S.W.2d 526 (Tex.Civ.App.—San Antonio 1976, no writ).

Of course, Avett was an “insured” by the Gulf policy of insurance; the question is whether Havens was also an additional insured. The applicable language of Gulf’s policy reads:

“HI Definition of Insured, (a) With respect to the insurance . . . the unqualified word ‘insured’ includes the named insured and, . . . also includes any person while using the automobile . . . provided the actual use . is by the named insured . or with the (his) permission . . . .”

Immaterial, as we view it, but fortifying the language quoted, is that found in an endorsement to the policy, viz:

“Schedule II 4(c) The following are insureds under coverages Bodily Injury Liability . . . :
(1) With respect to the owned automobile,
(i) the named insured and any resident of the same household,
(ii) any other person using such automobile with the permission of the named insured, provided his actual operation ... is within the scope of such permission, . . . .”

Gulf denied coverage of its policy from the time of its first knowledge of the event by which there might be contention that Havens was insured thereby. It was given all requisite notice and cooperation of Avett, and at all times conceded that Avett was covered. What Gulf did was contend Avett, but not Havens, to be the only person insured. This is mentioned in order to display that nothing involved in Gulf’s denial of liability was because of any failure on the part of Havens to cooperate. Havens was never requested to cooperate. Gulf contended that pursuant to the transaction of February 12, 1974 Avett could not deny Havens permission to use the truck because it was Havens’ truck, not Avett’s; thus Havens was not an additional insured under its policy.

It is true that several cases interpreting Texas law have recognized ownership as a requirement of coverage, but they involved policies which expressly provided that the named insured be the owner of the “owned automobile”. All of these cases dealt with policies issued prior to the change in policy provisions prescribed by the Texas Insurance Commission in 1963, which omitted all previous requirements of actual ownership from the definition of “owned automobile” and substituted therefor the language we have heretofore quoted from the Gulf policy. Ownership is immaterial.

That contained in the foregoing paragraph has been lifted from Snyder v. Allstate Insurance Company, 485 S.W.2d 769 (Tex.1972), as noticed beginning on page 771.

From the Snyder ease we must recognize that the state of the law is that if there is a “named insured” by the provisions of an automobile liability insurance policy, anyone using the vehicle prescribed to be insured by the policy with his consent, explicit or tacit, is an additional “insured” by the policy provisions. Further, that whether or not the “named insured” might have the erroneous belief that the user was not subject to instructions from him would be immaterial.

In the instant case Avett’s title to the truck persisted, though as already indicated the fact would be immaterial. At the time of the events giving rise to Haven’s liability, as result of his use of Avett’s truck, such use was with the consent of Avett, who was the “named insured” by the Gulf policy.

Under these circumstances there was no error in the judgment which established the liability of Gulf.

Judgment is affirmed.

HUGHES, J., dissenting.

HUGHES, Justice,

dissenting.

I respectfully dissent.

The key to whether the pickup in this case is covered under the omnibus clause hinges on whether or not Havens was using it with the permission of Avett. Certainly, Havens came into possession of it with permission of Avett, for it was then a bailment. When the sale was contracted, the status changed. With the sale, Havens acquired the right of possession as well as the power of possession, “without which the seller was in no position to give or withhold permission.” Weatherford v. Aetna Insurance Company, 385 S.W.2d 381, 383 (Tex.1964). (Emphasis ours.) Weatherford, supra, involved an insurance policy providing coverage for a “named insured”.

I would hold under the undisputed facts herein that Avett gave up the right, as well as the power, to possess the pickup, and therefore he was unable to give permission for its use.

I would sustain Gulf’s points of error 1, 2, 3, 4 and 6 and overrule points of error 5 and 7.

I would sustain points of error 1 through 5 advanced by Bobo and Lambert as appellants against Commercial Standard.

I would reverse the judgment of the trial court and render judgment that Bobo and Lambert take nothing from Gulf and that Bobo and Lambert have their recovery against Commercial Standard for the amounts stipulated between them (the said Bobo and Lambert and Commercial Standard).


author: MASSEY, Chief Justice.

text:
    Mary Ann BOUYER, Appellant, v. BUDDIES’ SUPERMARKETS, Appellee.
    No. 18093.
    Court of Civil Appeals of Texas, Fort Worth.
    April 19, 1979.
    Rehearing Denied May 17, 1979.

      Mikeska & Francis, and R. C. Joe Mikes-ka, Jr. and John R. Francis, Temple, for appellant.
    Piperi, Roberts & Morris, and Frank Roberts, Killeen, for appellee.
   OPINION

MASSEY, Chief Justice.

This appeal is from a take nothing judgment based upon the trial court having instructed the jury to return a verdict for defendant in a “slip and fall case”.

We affirm.

The event in question occurred in defendant Buddies Supermarkets “help yourself” grocery store, and at or near the display case where tomatoes were to be found. These tomatoes were on a display shelf which was in the form of a ramp, with the slope thereof to the outer rim. There was no evidence of the condition immediately prior to the time plaintiff Mary Ann Bouyer stepped on a tomato which was on the floor near the display. Its presence resulted in her fall and resultant injuries. Immediately following there was evidence of the state of the same. This raised as an issue to be tried by the jury the question of whether or not the defendant, through its agents, servants and employees, had negligently stacked an excessive number of tomatoes thereon and/or created negligently a state of the display so that it would be possible, perhaps even probable, that one or more tomatoes would be caused or permitted to roll off the table onto the floor. What was not raised by the evidence was the issue of proximate cause, in the essential part of such an issue bearing upon what has been termed “cause in fact”. Such, together with “foreseeability”, go to make up “proximate cause”. Proximate cause is not raised as an issue for the jury unless both elements are shown by the evidence.

By the briefs of the parties there is no doubt but that the propriety or impropriety of the trial court’s instructed verdict and judgment based thereon rests upon whether or not by plaintiff’s proof of the presence of defendant’s tomato upon the floor, and of the condition of tomatoes stacked on the shelf where they were displayed she had discharged the burden of proving “cause in fact”.

In other words:

Did plaintiff’s proof show that it was because the defendant had negligently stacked the tomatoes that her accident and injuries resulted?

The situation posed is “the next step beyond” the near-identical question decided by the Beaumont Court of Civil Appeals in Swan v. Kroger Company, 452 S.W.2d 793 (Tex.Civ.App.—Beaumont 1970, writ ref’d n. r. e.). In that case there was a display case on which (as observed after plaintiff’s fall) beans were negligently stacked. The question before the Beaumont court was whether that proof raised the issues of whether the super-market’s negligence amounted to proximate cause of plaintiff’s injuries. The evidence showed that when shoppers filled bags or containers with beans from the shelf, beans would sometimes drop to the floor, as well as the manner in which the beans were stacked. It was presence of beans on the floor which caused or resulted in a “slip and fall” by a customer. In our case nothing is shown of anything similar likely to occur when shoppers place tomatoes in bags or containers. By the very nature of these different things shoppers would be more likely to cause beans than tomatoes to fall upon the floor where presence might occasion for injury to others.

However, dislodgement and possibilities of dislodgement of tomatoes so that they might fall on the floor are presumed to have some frequency in the event there be no evidence to the contrary. In the instant case there was not such evidence. There are many items of produce displayed in grocery stores which might become dislodged by action of patrons of the store.

In Swan, supra, relative to the matter of beans, the court, after conceding the manner of their display to have raised the issue of negligence, wrote: (p. 796).

“But, we find no evidence that defendant’s stacking the beans too high was a cause in fact of this accident. There is nothing in the evidence which indicates the bean upon which plaintiff slipped, was on the floor because of the manner in which defendant stacked the beans.”

In the case before us the plaintiff insists that her evidence, albeit circumstantial, was sufficient to establish a state of facts upon which was raised all requisite issues. Her claim is that an inference permissible to be drawn was that because the tomatoes were negligently stacked the defendant store caused or permitted a tomato to be on the floor and to cause her to “slip and fall”.

In the case of Houston E. & W. T. Ry. Co. v. Boone, 105 Tex. 188, 191, 146 S.W. 533, 535 (1912), the court quoted with approval from Thompson’s Commentaries on the Law of Negligence, vol. 6, § 7863, as follows: “ ‘[A] verdict for negligence may be supported by inference; but such inference must be a logical, probable, and reasonable deduction from proved or conceded facts. Negligence cannot be a mere matter of conjecture, but must be fairly inferable from the evidence. This principle permits the admission of circumstantial evidence to contradict positive and direct testimony given by eyewitnesses. It is not incumbent upon the plaintiff, after proving an accident which implies negligence, to show the particular negligence, when from the circumstances it is not in his power to do so.’ ” (Of course, the author meant negligence on the part of the defendant who has been charged.)

In order to support a verdict in such a case the inference must be one which was fairly drawn upon evidence, upon both the issues of negligence and proximate cause, free and distinct from speculation and conjecture. In this case the defendant insists that in order to hold as plaintiff desires it would be necessary to found an inference upon an inference, something which is forbidden to be done in seeking evidence to support a judgment. We cannot comfortably identify the matter of proximate cause as an issue improper to be considered because of the inhibition against the stacking of inferences.

However, any evidence upon “cause in fact” (as a part of any proper proximate cause issue) must be established beyond the point of conjecture. It must show more than the possibility that it was because of the defendant’s negligent arrangement of its display that the tomato in question was caused or permitted to be on the floor. If no more be shown that would be to make it necessary for the jury to speculate upon the hypothesis that its presence was not through some act of a patron of the store (in the event the special issue on proximate cause be submitted).

We agree with the trial court that, by the evidence, to submit the case would be to require that the jury guess or speculate upon “cause in fact”. Such a submission has been consistently condemned and we cannot hold that the trial court erred by declining to require that the jury make the choice. Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 785 (1949). See also East Texas Theatres, Inc. v. Rutledge, 453 S.W.2d 466 (Tex.1970), discussing the “cause-in-fact element of proximate cause”.

We agree that the Beaumont Court’s decision in Swan, supra, was correct. Having so agreed we conclude there should be af-firmance of the judgment in this case.

Judgment is affirmed.