author: NYE, Chief Justice.

text:
    James Patton DAVIS, Appellant, v. Jose R. MORENO et al., Appellees.
    No. 1374.
    Court of Civil Appeals of Texas, Corpus Christi.
    March 8, 1979.

      Stephen P. Dietz, Ewers, Toothaker, Ewers, Abbott, Talbot, Hamilton & Jarvis, McAllen, for appellant.
    M. Loyd Seljos, Judin, Ellis & Barron, McAllen, for appellees.
   OPINION

NYE, Chief Justice.

This is a personal injury suit arising out of an automobile intersection collision. The suit was instituted by Jose R. Moreno and his son, Ruben Hugo Moreno, against James Patton Davis. After a non-jury trial, the trial court entered judgment awarding damages to Jose Moreno for the reduction in the market value of his vehicle and for medical expenses and lost wages incurred on behalf of his son. The trial court also awarded damages to Ruben Moreno for physical pain and suffering. Defendant Davis perfected his appeal to this Court.

The plaintiffs alleged that on the date of the accident in question, Ruben Moreno was driving a pickup truck owned by his father which was struck by a vehicle owned and operated by the defendant. The petition contained allegations of the defendant’s negligence and proximate cause. The plaintiffs also alleged, in essence, that a ■doctor’s examination conducted two days after the accident revealed that plaintiff Ruben Moreno was found to have an enlarged spleen; that the enlarged spleen was either caused by the accident in question or was so aggravated by it to such an extent that his normal work activities had to be restricted for several weeks; and that as a proximate result of the collision in question, he sustained physical pain and mental suffering. In accordance with these allegations, plaintiffs prayed for damages.

Defendant Davis filed a general denial and also specifically alleged that the personal injuries of Ruben Moreno were the result of his previously existing enlarged spleen and “that the accident in question in no way aggravated or contributed to the plaintiff’s pre-existing disease or condition.”

At the close of the evidence in non-jury trial, the trial court entered judgment awarding Ruben Moreno the sum of $1,500.00 and his father the sum of $1,173.00. In support of its judgment, the trial court filed numerous findings of fact, in relevant parts, as follows: 1) that immediately prior to the collision in question defendant was negligent; 2) that such was the proximate cause of the collision in question and of the resulting personal injuries and damages; 3) that plaintiff son received bodily injuries; 4) that due to such injuries, he lost wages in the sum of $750.00; 5) that due to the injuries he experienced physical pain and that $1,500.00 would fairly compensate him for such physical pain; 6) that plaintiff father expended $323.00 in medical care and drugs on behalf of the minor son; and 7) that plaintiff father’s pickup truck was decreased in value by $100.00 as a result of the occurrence in question.

The defendant timely filed a request for additional and amended findings of fact and conclusions of law. In his motion, the defendant requested the trial court to add the following finding: “that prior to the collision in question, Ruben Hugo Moreno (plaintiff son) had an enlarged spleen.” The defendant also requested the trial court to amend five of its findings of fact. These requested additional and amended findings of fact were not acted upon by the trial judge. During oral argument, the defendant stated his theory of the case to be that all of the plaintiffs’ injuries and damages, (other than damages to the automobile), were attributable to the plaintiff’s enlarged spleen and not to the accident in question. In support of this theory, the defendant brings forward nine interrelated points of error on appeal.

His major appellate complaint (point of error one), is that the trial court erred in refusing to find that prior to the collision in question, Ruben Moreno had an enlarged spleen. Although this point of error complains only of the refusal of the trial court to make this specific finding, defendant’s general supporting arguments also attack the trial court's failure to adopt his five proposed amended findings. Defendant argues that the trial court’s refusal to make the particular finding as requested “. . . constitutes a finding in and of itself and is tantamount to a finding against the requested contention.” Citing Thompson v. Lee Roy Crawford Produce Co., 149 Tex. 357, 233 S.W.2d 295, 297 (1950); Sauer v. Johnson, 520 S.W.2d 438, 441 (Tex.Civ.App.—Austin 1975, writ ref’d n. r. e.). As we understand defendant’s supporting arguments under this point, his position is that the trial court’s judgment must be reversed because: 1) the trial court found, in effect, no aggravation of a pre-ex-isting condition; and 2) there is no evidence, or in the alternative, insufficient evidence (points of error two through eight), to support the trial court’s specific findings that the accident alone caused the plaintiff son’s injuries or damages. Implicit in defendant’s supporting arguments is the assumption that the requested findings constituted controlling, material issues in this case. The first point of error is without merit.

As a general rule, the trial judge, upon proper request, is only required to make findings on ultimate, controlling and material issues. He is not required to make findings upon matters which are adequately covered by findings already made, upon evi-dentiary matters, or upon every other controverted issues of fact. T. Anchor Corp. v. Travarillo Assoc., 529 S.W.2d 622 (Tex.Civ.App.—Amarillo 1975, no writ); Moore v. Campbell, 254 S.W.2d 1018 (Tex.Civ.App.—Austin 1953, writ ref’d n. r. e.); Wade v. Taylor, 228 S.W.2d 922 (Tex.Civ.App.—Amarillo 1950, no writ); Plaza Co. v. White, 160 S.W.2d 312 (Tex.Civ.App.—San Antonio 1942, writ ref’d).

In Dallas Railway & Terminal Co. v. Ector, 131 Tex. 505, 116 S.W.2d 683 (1938), our Supreme Court held, in effect, that the existence of a pre-existing condition is not a controlling issue in a personal injury suit based upon negligence. The court stated:

“No purpose would have been served by submitting an issue to the jury on the disputed fact question of whether Mrs. Ector was suffering from a prior kidney disorder. An answer to that question would have determined nothing.”

When raised by the evidence, the defendant in a jury tried case is entitled to request and receive an instruction in conjunction with the damage issue which affirmatively instructs the jury to exclude all damages resulting solely from the pre-exist-ing condition and/or to allow damages connected to a pre-existing condition only to the extent that the occurrence in question resulted in an aggravation of such pre-ex-isting condition. See Dallas Railway Co. v. Ector, 131 Tex. 505, 116 S.W.2d 683 (1938); Dellinger Inc. v. McMillon, 461 S.W.2d 471 (Tex.Civ.App.—Corpus Christi 1970, writ ref’d n. r. e.); 1 Texas Pattern Jury Charges, §§ 11.11, 11.12 (1969). Where the evidence in a non-jury trial raises the issue of a pre-existing condition, the trial judge presumably allows recovery only for damages to the extent that the occurrence in question caused an aggravation of such condition.

Even if the existence of a pre-exist-ing condition should be considered a controlling issue in this case, the trial court did not err in failing to comply with appellant’s request for additional and amended findings because the matters of which defendant now complains were adequately covered by the findings already made by the trial court. Here, the trial judge filed findings of fact which encompassed each controlling issue generally applicable to negligence cases. See Westinghouse Electric Corp. v. Pierce, 153 Tex. 527, 271 S.W.2d 422, 425 (1954); Wichita Falls & Oklahoma Ry. Co. v. Pepper, 134 Tex. 360, 135 S.W.2d 79, 82 (1940); 1 Texas Pattern Jury Charges, § 3.01 (1969). The trial court also found that Ruben received “bodily injuries” in the collision in question. This finding is generally a controlling issue only in instances where the existence of .the injury is controverted in the evidence. See Texas & Pacific Railway Co. v. Van Zandt, 159 Tex. 178, 317 S.W.2d 528, 530 (1958). We are of the opinion that the trial court’s findings, and particularly this latter finding, adequately encompass any injury Ruben sustained by reason of the collision in question, including any injury considered to be an aggravation of his pre-existing condition. It was unnecessary, therefore, for the trial judge to make additional or amended findings to this effect.

There are additional reasons why the trial court did not err in failing to amend its findings in accordance with defendant’s requests. The evidence in this ease shows that Ruben suffered bruises and contusions on his left side. He experienced pain in his left side and leg immediately after the accident. This pain, which continued after the accident, prompted Ruben to seek medical attention. The physician’s x-rays of Ruben revealed an enlarged spleen. The only medical testimony in the record is to the effect that: 1) the enlarged spleen, in all medical probability, was a pre-exist-ing condition; 2) the trauma Ruben sustained in the collision created imminent danger of a delayed rupture of his spleen; and 3) Ruben’s treating physician ordered him to restrict his activities for 90 days as a necessary precaution to the increased danger of a rupture caused by the trauma Ruben sustained in the collision in question.

The defendant offered no evidence to refute the virtually uncontroverted testimony of Ruben, his parents, and the treating physician concerning Ruben’s injuries and the resulting aggravation of his pre-existing condition. Since the defendant offered no evidence to rebut this prima facie showing, there is no medical testimony in the record to support defendant’s contention that the pre-existing condition was not aggravated by the occurrence in question. A separate finding otherwise was unnecessary and uncalled for. See Minor v. Gross, 478 S.W.2d 597 (Tex.Civ.App.—Tyler 1972, writ ref’d n. r. e.). In addition, the defendant’s requested finding improperly focused upon the aggravation of Ruben’s pre-existing condition as a sole basis for awarding damages to the exclusion of allowing damages for pain and medical expenses resulting (solely) from other injuries he received in the collision in question which were not attributable to his pre-existing condition or to any aggravation of that condition. See Missouri Pacific Railroad Co. v. Harkins, 346 S.W.2d 910 (Tex.Civ.App.—Eastland 1961, writ ref’d n. r. e.). Appellant’s point of error one is overruled.

In points of error two through eight (briefed together with defendant’s first point of error), the defendant attacks particular findings of fact filed by the trial court on legal and factual sufficiency grounds. He argues that the injuries of which plaintiff complains were attributable solely to his enlarged spleen. We have carefully examined the entire record in this case, and conclude there is evidence to support each of the trial court’s findings and that such findings are not against the great weight and preponderance of the evidence. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.Sup.1965); Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359, 363 (1957); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). Appellant’s points of error two through eight are hereby overruled.

The defendant in point of error nine attacks that portion of the trial court’s judgment which awarded damages for lost wages on the basis that such recovery is not supported by the pleadings. Our disposition of the first eight points of error also disposes of this point.

The judgment of the trial court is hereby affirmed.


source: Caselaw Access Project

author:
      McCLOUD, Chief Justice.
      RALEIGH BROWN, Justice,

license: Public Domain

text:
    Sydell BERMAN et al., Appellants, v. CITY PRODUCTS CORPORATION et al., Appellees.
    No. 5064.
    Court of Civil Appeals of Texas, Eastland.
    March 8, 1979.
    Rehearing Denied April 12, 1979.

      Harold B. Berman, Toby L. Gerber, Berman, Fichtner & Mitchell, Dallas, Johnny M. Moore, Mays, Moore, Dickson & Roberts, Sweetwater, for appellants.
    Stanley P. Wilson, Abilene, Joseph L. Rand, Chicago, Ill., Jack Sayles, Abilene, Charles R. Griggs, Nunn, Griggs, Beall & Wilks, Sweetwater, for appellees.
   McCLOUD, Chief Justice.

The controlling question in this antitrust case is whether a husband, who signs a lease agreement containing a covenant restricting competition, owns a “property interest” in the premises leased, if the premises are owned by his wife as her separate property.

Plaintiff, City Products Corporation, and intervenors, Z. S., Inc., and Zeno R. Smith, sued defendants, Sydell Berman, individually, and Sydell Berman and First National Bank in Dallas, as Independent Executors of the Estate of Max Berman, deceased (Berman), Perry Brothers, Inc., Freda Levy, a widow, I. A. Loeb and wife, Fannie Loeb, Morris Siegel and wife, Helen Siegel, William Sheridan and wife, Hattie Sheridan, and A & I Levy Estates, a limited partnership, seeking an injunction and damages, resulting from an alleged violation of a protective covenant contained in a lease agreement. Defendants Berman and Perry Brothers answered that the protective covenant violated the Texas antitrust statutes. Berman and Perry Brothers filed a counterclaim and cross-claim against plaintiff, in-tervenors,' and the other defendants. Ber-man and Perry Brothers sought actual and punitive damages resulting from a violation of the Texas antitrust statutes. Plaintiff and intervenors, City Products, Z. S., Inc. and Zeno R. Smith, and defendants, Freda Levy, I. A. Loeb and wife, Fannie Loeb, Morris Siegel and wife, Helen Siegel, and William Sheridan and wife, Hattie Sheridan, were granted partial summary judgments as to the claim for damages asserted by Berman and Perry Brothers. I. A. Loeb died during trial and the court severed the claims asserted against and by him. Following a jury trial, the court rendered judgment enjoining defendants, Berman and Perry Brothers, from leasing or permitting to be used, for a variety store, a certain building owned by Berman and leased to Perry Brothers. The jury found punitive, but no actual, damages. The court awarded City Products $30,000, and Z. S., Inc., $15,000, punitive damages against Perry Brothers. The partial summary judgments were merged into and became a part of the final judgment.

Perry Brothers and Berman have appealed. We reverse and render in part, and reverse and remand in part.

City Products is the “Tenant” of a building located at 185 East Second Street in Colorado City. For several years, a “Ben Franklin” store has been located in the building. The current franchisee-subtenant is intervenor, Z. S., Inc., whose president and principal stockholder is intervenor, Zeno R. Smith.

The original lease agreement contained the following “protective” covenant:

That the landlord will not, during the term hereof, or any renewal or extension hereof, lease or permit to be used, any portion of the building in which the demised premises are situated or any portion of any other building or premises controlled by the landlord located within one thousand (1,000) feet of the herein demised premises, for any business similar to the business of the Tenant, that is to say, for any variety store, or any business conducted under the name of a five and ten cent store, five cents to one dollar store or similar name. (Emphasis added)

On January 4, 1971, the conditions of the original lease, as amended, were ratified, and the term of the lease was extended to April 30, 1980, by a supplemental agreement. The supplemental agreement designated as “Landlord” the following: “Freda Levy, a widow, I. A. Loeb and Fannie Loeb, his wife, Morris L. Siegel and Helen Siegel, his wife, William Sheridan and Hattie Sheridan, his wife, and Max Berman and Sydell Berman, his wife, a Limited Partnership, doing business as A & I Levy Estates.” Each of the named parties signed the agreement as a “General Partner.” No limited partnership existed. Helen Siegel and Hattie Sheridan, wives of Morris Siegel and William Sheridan, respectively, had each inherited an interest in the leased premises. It is undisputed that all parties who signed the lease as “Landlord,” other than Morris Siegel and William Sheridan, owned an interest in the premises.

Across the street from the “Ben Franklin” building is the “Max Berman” building. On September 6, 1974, Max Berman and wife, Sydell Berman, owners of the Max Berman building and part owners of the Ben Franklin building, leased the Max Ber-man building to Perry Brothers. The Max Berman building is located within 1,000 feet of the Ben Franklin building. The jury found that the premises were used by Perry Brothers as a “variety store.”

Perry Brothers and Berman argue that the protective covenant, copied above, contained in the lease agreement, which is the basis of the suit filed by plaintiff , and inter-venors, is void. We agree.

Texas statutes prohibit “trusts, monopolies, and conspiracies in restraint of trade.” Section 15.02, Business and Commerce Code, provides:

(b) A “trust” is a combination of capital, skill or acts by two or more persons to
(1) restrict, or tend to restrict, trade, commerce, aids to commerce, the preparation of tangible personal property for market or transportation, or the free pursuit of a lawful business; .
(3) prevent or lessen competition in (A) the manufacture, transportation, sale or purchase of tangible personal property;
(7) refrain from engaging in business, or from buying or selling tangible personal property, partially or entirely in this state.

Section 15.04 of the Business and Commerce Code expressly provides that a “trust,” as defined in Section 15.02 is illegal and an agreement violating such prohibition is “void and unenforceable in law or equity.”

It is clear that the purpose of the protective covenant in issue is to prevent or lessen competition with the “Tenant” in the sale of tangible personal property. The provision violates the statutory prohibitions, unless it fits within an exception. Plaintiff and intervenors contend the protective covenant is valid since all parties signing the agreement as general partners have “an interest” in the property.

Our Supreme Court in Schnitzer v. Southwest Shoe Corporation, 364 S.W.2d 373 (Tex.1963) discussed the exception urged by plaintiff and intervenors. In Schnitzer, two owners of adjoining buildings, Schnitzer and his father-in-law, Alpard, agreed to operate their separately owned properties as an integral unit and were interested in developing the properties into a shopping center. Schnitzer leased the premises he owned to Southwest Shoe Corporation. The lease contained a provision giving Southwest Shoe exclusive right to sell shoes in the building located on Schnitzer’s premises and in buildings of other owners who joined Schnitzer in ratifying the exclusive occupancy provision. Alpard, who owned no interest in the Schnitzer premises, ratified the exclusive occupancy restriction by signing the lease with Schnitzer. Thereafter, Alpard leased the premises he owned to a lessee who leased to a subtenant who sold shoes as a part of his business. The Supreme Court noted that Alpard had “an interest” in the Schnitzer property, but held that he owned no “property interest” in the premises, and the protective covenant was void. The court stated:

The clear purpose of the contract between Schnitzer, Alpard and Southwest was to create and carry out restrictions in the free pursuit of the business of selling shoes on the premises owned by Schnitzer and Alpard, and, to that extent, to prevent or lessen competition with Southwest in the sale of that merchandise. Unless the contract of the parties comes within some recognized exception to the statutory prohibition, it is in violation of the statute as a matter of law.
The rigidity of our anti-trust, monopoly and restraint of trade statutes has undoubtedly been softened in certain exceptional situations. See State v. Gulf Refining Co., Tex.Civ.App., 279 S.W. 526, 530, writ refused, and cases there cited. One of the exceptional situations is that in which an owner, lessor or one in control of premises agrees with another person that the other person shall have an exclusive right or privilege in or on the premises or that the other person will sell on the premises only the products or merchandise of the owner or lessor. Fort Worth & D.C. Ry. Co. v. State, 99 Tex. 34, 87 S.W. 336, 70 L.R.A. 950; Celli & Del Papa v. Galveston Brewing Co., Tex.Com.App., 227 S.W. 941; Edwards v. Old Settlers’ Ass’n., Tex.Civ.App., 166 S.W. 423, writ refused; Redland Fruit Co. v. Sargent, 51 Tex.Civ.App. 619, 113 S.W. 330, no writ history; Cox v. Humble Oil & Refining Co., Tex.Com.App., 16 S.W.2d 285. For discussions of cases of this type, see 3 T.L.R. 349-362; 6A Corbin on Contracts 62, § 1389; 90 A.L.R. 1449. Contracts or agreements of this character are upheld when they are collateral or incidental to a lawful lease or grant of premises in which the lessor or grantor has a property interest. (Emphasis added)

After stating that it is the duty of courts to enforce statutes as written by the Legislature, the court added:

If the agreement before us related only to the premises owned and leased by Schnitzer the exclusive right given Southwestern would be valid as collateral and incidental to the lease of Schnitzer’s premises. But if two landowners may validly enter into this type of agreement with a lessee of premises of one only, so could a dozen or all in a given area. We are unwilling thus to extend this exception to the anti-trust laws. .

In Kroger Company v. J. Weingarten, Inc., 380 S.W.2d 145 (Tex.Civ.App.—Houston 1964, writ ref’d n.r.e.), the court held that a restrictive agreement was void because one of the signers, Sharp, owned no “property interest” in the premises in question. Sharp was unquestionably vitally “interested” in the premises which were owned by a corporation, Center Corporation, whose stock was owned by two irrevocable trusts established for Sharp’s daughters. When Center Corporation purchased the premises, Sharp personally guaranteed payment of a $794,000 note. Also, Sharp and his wife had loaned Center Corporation a substantial amount of money. The court noted that Sharp had no “vendible” interest in the premises and that the agreement imposed restrictions upon property whether owned or later acquired by Center or Sharp. The court said:

All of the stock in Center Corporation was owned by the two irrevocable trusts which had been established for Sharp’s daughters with Bank of the Southwest as trustee. It is true that the trustee generally approved sales and leases and other transactions recommended to the trustee by Sharp or his righthand man, Tucker. It is equally true, however, that Center Corporation was not required to follow their recommendations or suggestions with respect to such business matters.

The court added:

It is our view that Sharp never had any “property interest” in Center Corporation, the leasehold or the Kroger tracts. By reason of his affection for his daughters he naturally had an interest in the welfare of Center Corporation and in the Trusts and in the development of Oak Forest Addition generally. He had guaranteed payment of a large note executed by Center Corporation and he and his wife had lent money to the corporation. This, however, did not give him a property interest in the corporation or in the property of the corporation. Not until a default should occur in the payment of such note, and Sharp is required to make good his guarantee of payment, will he become subrogated to the foreclosure rights of the mortgagee or acquire any sort of property interest in the corporation’s property.

In distinguishing between an “interest” in property, and the owning of a “property interest,” the court said on motion for rehearing:

[Sharp] had no legal control over such corporation or property interest therein. He acted for the corporation in various business matters and the corporation usually stamped its approval on what he did. In one sense he acted as an agent of the corporation in various transactions having to do with the property belonging to the corporation. He did not, however, act as an agent of the corporation with respect to his own property or that of Realty Corporation, nor did he act as an agent for Center Corporation when it executed by its vice president, Mr. Weintraub, the lease and the restrictions agreement.

In Karam v. H. E. Butt Grocery Company, 527 S.W.2d 481 (Tex.Civ.App.—San Antonio 1975, writ ref’d n.r.e.), Schnitzer and Kroger were distinguished as follows:

Neither Schnitzer nor Kroger is in point. The exceptions relating to restrictive covenants made as incidents of transactions involving the transfer of interests in land are applicable only where the use-limiting promise is made by either the transferor or transferee and relates to land owned by the covenantor or to land in which he has an interest. The vice in both Schnitzer and Kroger lay in the fact that covenant in question attempted to restrict use of land owned by one who was neither a transferor, as grantor or lessor, or transferee, as grantee or lessee, in the transaction to which the restriction was incidental. .

We think it is clear that neither Morris Siegel nor William Sheridan, who signed the lease in question, owned a “property interest” in the premises. Helen Sie-gel and Hattie Sheridan owned as their “separate property” an interest in the premises. Tex.Const. art. 16, § 15; Tex. Family Code Ann. § 5.01. The respective women had the sole management, control, and disposition of their separate property interest in the premises. Tex.Family Code Ann. § 5.21. We do not consider the classification of the rents and revenues from the property to be controlling; however, we note that Helen Siegel and Hattie Sheridan had the sole management, control and disposition of the rents and revenues from the premises. Tex.Family Code Ann. § 5.22. Morris Siegel and William Sheridan did not sign the lease as agents or in any representative capacity. Morris Siegel and William Sheridan signed the supplemental lease agreement as “General Partners” of a nonexistent limited partnership.

It is true that Morris Siegel and William Sheridan, as husbands, respectively, of Helen Siegel • and Hattie Sheridan, had “an interest” in the Ben Franklin building, as did Alpard in Schnitzer and Sharp in Kroger. But neither husband owned a “property interest” in, or legally “controlled,” the premises. It is obvious from Schnitzer and Kroger that legal control is required.

We hold that Morris Siegel and William Sheridan owned no “property interest” in the Ben Franklin building when they signed the agreement. By signing the agreement, they contracted to restrict competition in connection with a lease where they owned no property interest in the premises. The restriction affected not only property they presently owned, but also property they might acquire in the future. If their marriages should terminate, the agreement could improperly restrict property they might thereafter acquire. We think the protective covenant, made the basis of plaintiff’s and intervenors’ suit, is void and unenforceable.

Plaintiff and intervenors contend that all defendants are estopped, as found by the jury, to contend that any party who signed the lease as “Landlord” did not own or claim a partnership interest in the Ben Franklin building. We disagree. We note that Perry Brothers, the only defendant charged with punitive damages, could not be estopped since it did not sign the lease. More significantly, Section 15.04(b) of the Business and Commerce Code expressly states that an “agreement violating the prohibition against a . trust . is void and unenforceable in law or equity.” Furthermore, as a general rule, an agreement that is void as against public policy or because prohibited by law, cannot, as between the parties, be rendered valid by invoking the doctrine of estoppel. Farha v. Elam, 385 S.W.2d 692 (Tex.Civ.App.—Fort Worth 1964, writ ref’d n. r. e.); Perkins v. Lambert, 325 S.W.2d 436 (Tex.Civ.App.—Austin 1959, writ dism.). Also, we do not think that the doctrine of estoppel can be invoked to “nullify” the property ownership requirement, since the Texas antitrust statutes are for the benefit of the general public. See Missouri Pacific Railroad Company v. American Statesman, 552 S.W.2d 99 (Tex.1977). The agreement in the instant case is prohibited by law because a party having no “property interest” has agreed to restrict competition in violation of the Texas antitrust statutes.

Plaintiff’s and intervenors’ contention that Berman and Perry Brothers engaged in a civil conspiracy was based upon the premise, as disclosed by the pleadings and special issues submitted, that the protective covenant contained in the lease of the Ben Franklin building was valid. We have held it is void. No unlawful purpose was accomplished by the leasing of the Max Berman building, to Perry Brothers. No unlawful means were used. The parties did not engage in an actionable civil conspiracy. Carruth v. First National Bank of Fort Worth, 544 S.W.2d 678 (Tex.Civ.App.—Eastland 1976, writ ref’d n. r. e.).

We hold that the trial court erred in granting summary judgments in favor of City Products (plaintiff), Z. S., Inc. and Zeno R. Smith (intervenors), Freda Levy, Fannie Loeb, Morris Siegel and wife, Helen Siegel, and William Sheridan and wife, Hattie Sheridan (Levy defendants), in connection with the claim of Berman and Perry Brothers for damages resulting from an alleged violation of the Texas antitrust laws.

City Products and intervenors contend there is no private cause of action for a violation of the Texas antitrust statutes. We disagree. North Texas Gin Co. v. Thomas, 277 S.W. 438 (Tex.Civ.App.—Dallas 1925, writ ref’d); Frels v. Consolidated Theatres, 134 S.W.2d 369 (Tex.Civ.App.—San Antonio 1939, writ dism. jdgmt. cor.); Texas Public Utilities Corporation v. Edwards, 99 S.W.2d 420 (Tex.Civ.App.—Austin 1936, writ dism’d); 38 Tex.Jur.2d Monopolies, Combinations, etc. § 26.

The authors, Dan Moody and Charles B. Wallace, in an article discussing enforcement of Texas antitrust laws, state:

Violations of the antitrust laws may be punished by the State of Texas by civil and criminal sanctions, and persons who have been damaged by such violations may maintain actions for the recovery of the damages sustained by them as a result of such violations. (Emphasis added)

Leading Article, Texas Antitrust Laws and Their Enforcement — Comparison with Federal Antitrust Laws, 11 Sw.L.J. 1 (1957).

Levy defendants argue the court properly granted the summary judgment against Berman, because Berman, who signed the Ben Franklin building lease agreement, was in pari delicto with the Levy defendants. That defense would not bar recovery for damages incurred after Berman withdrew from the illegal arrangement. Gaines v. Carrollton Tobacco Board of Trade, Inc., 386 F.2d 757 (6th Cir. 1967); Connecticut Importing Co. v. Frankfort Distilleries, 101 F.2d 79 (2d Cir. 1939); Victor Talking Mach. Co. v. Kemeny, 271 F. 810 (3d Cir. 1921); Note, Antitrust Laws, The In Pari Delicto Doctrine Is Not a Defense to a Private Antitrust Action If the Parties Are Not Equally Responsible for the Violation, 47 Tex.L.Rev. 322 (1969); Comment, In Pari Delicto and Consent as Defenses in Private Antitrust Suits, 78 Harv.L.Rev. 1241 (1965).

The summary judgment proof fails to establish as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the cause of action for damages filed by Berman and Perry Brothers. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970).

That portion of the trial court’s judgment awarding summary judgment to City Products, Z. S., Inc., Zeno Smith, Freda Levy, Fannie Loeb, Morris Siegel and wife, Helen Siegel, and William Sheridan and wife, Hattie Sheridan, is reversed and remanded. The judgment in all other respects is reversed and rendered.

RALEIGH BROWN, Justice,

dissenting.

I dissent. I cannot agree that the execution of the lease agreement by Morris Sie-gel and William Sheridan, whose wives owned a property interest in the premises, made the protective covenant void.


author: PRESLAR, Chief Justice.

text:
    FURR’S, INC., Appellant, v. Manuel HERNANDEZ, Appellee.
    No. 6813.
    Court of Civil Appeals of Texas, El Paso.
    March 14, 1979.
    Rehearing Denied April 11, 1979.
    Kemp, Smith, White, Duncan & Hammond, Joe Lea, Jr., Taffy D. Bagley, El Paso, for appellant.
    Richard Yetter & Associates, P. C., Richard Yetter, El Paso, for appellee.
   OPINION

PRESLAR, Chief Justice.

In this venue case, the Defendant/Appellant appeals the overruling of its plea of privilege to be sued in the county of its residence. We reverse and render judgment that the cause of action be transferred to Lubbock County, Texas.

This suit was brought to recover damages for a dog bite suffered by Appellee while he was standing in the check-out line of Appellant’s grocery store. Appellee relied on Subdivisions 9a and 23 of Article 1995, Tex. Rev.Civ.Stat.Ann. We are of the opinion that Appellee has failed to meet his burden of proving negligence under Subdivision 9a and of proving a cause of action under Subdivision 23 in that his cause of action is based on negligence.

Appellant has points of error that there was no evidence and insufficient evidence to support the trial Court’s presumed finding of negligence and proximate cause. We sustain the no evidence points. In this connection, we are unable to agree with Appellee’s assertion of the law that his burden was simply to prove a prima facie case. There are courts of civil appeals opinions to that effect. There are others to the contrary, but the controlling law comes from the Supreme Court of Texas and can be found in the cases of Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91 (1935), and Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97 (1953). In the latter case, the court reviewed and reiterated its holdings in the Compton v. Elliott case, and in answer to certified questions held that in a venue hearing the plaintiff has the same burden of proving a cause of action as on a trial on the merits and that a prima facie case, as such, is not the test, but if there is no other evidence to the contrary, a prima facie showing would suffice. The court explained that review by a court of civil appeals was the same for venue as for trial on the merits and that rendition should occur where there is no evidence and remand where the evidence was factually insufficient. Thus, there is no prima facie rule controlling or applicable to venue hearings that makes such hearings different from a conventional trial on the merits. If the plaintiff prevails on a prima facie showing, it must be because there is no evidence to the contrary and not because of some prima facie evidence rule.

The evidence in this case is that Appellee was standing in line at the checkout counter of the Appellant’s store when he saw a loose dog in the store, saw two employees, “bag boys,” chasing the dog; the dog approached him from behind, ran between his legs and he moved suddenly, and when he moved the dog bit his hand. Appellee did not know how the dog got into the store or how long he had been there; he described him as a stray; and he said that the bag boys were chasing him to get him out of the store. He testified: “[T]he dog was scared because they were chasing him.” And further: “When I moved, he got my hand, he was paranoid, the dog.” And: “[T]he dog was scared because they were chasing him and I guess he had never gotten into the store before, . . .”

From that evidence, we are unable to find negligence on the part of the owner of the premises toward his invitee. It cannot be said that the act of the employees in trying to remove the dog from the store was not that of a reasonable and prudent person. Did their method of removal, then, amount to negligence? Were they negligent, not acting as reasonable and prudent persons when they chased him to remove him from the store? Would a reasonably prudent person in seeking to remove a dog from the premises chase a dog and cause it to become scared and paranoid? An element of negligence, of course, is foreseeability. Could the sack boys foresee that chasing him would cause him to become scared and paranoid, and that the normal and probable consequence would be an injury similar to that inflicted on Appellee? We think it safe to assume that the boys could foresee that the dog would be scared by being chased, but paranoid is a different question. Webster’s Third New International Dictionary, 1971, describes paranoid as one afflicted with paranoia or paranoid schizophrenia. The first choice definition given paranoia is: “[R]are, chronic nondet-eriorative psychosis characterized chiefly by systematized delusions of persecution or of grandeur that are commonly isolated from the mainstream of consciousness and that are usu[ally] not associated with hallucinations.” There is nothing in the record to indicate that these bag boys have any special training in psychology or otherwise which would equip them to foresee that all of this would happen if they chased the dog.

Aside from our own analysis of the facts regarding negligence, there are several cases which by analogy are persuasive here. On the question of whether it was negligence to chase the dog, analogous is the case of Carson v. Knight, 294 S.W. 539 (Tex.Com.App.1927). A calf escaped through a gate with a broken hinge. Attempts by one employee to “bulldog” the calf and its pursuit by another employee served only to infuriate the animal which then injured the plaintiff. The trial court’s findings of negligence and proximate cause were reversed by the Commission of Ap-

peals. We reason by analogy that if it is not negligence to chase a calf to the point of its being infuriated and causes injury, then it is not negligence to chase the dog until it is scared and paranoid and causes injury. On the element of foreseeability, the case of Texas & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S.W. 162 (1896), is analogous. There, cattle were being held for shipment in a pen of the railway company which had a defective latch on the gate. While the plaintiff, owner of the cattle, was attempting to overcome the defective latch with a rope, the cattle were frightened by a passing train and charged through the gate injuring the plaintiff and a number of the cattle. In a suit for injuries to both himself and his cattle, the plaintiff recovered judgment. The judgment was allowed to stand for injuries to the cattle but was reversed as to injuries to the plaintiff. The court held that the defective latch was known to the defendant, that it was foreseeable that cattle would escape and could suffer injury, but it was not foreseeable that injury would occur to the plaintiff/owner. Following that case on foreseeability and proximate cause is Union Stock Yards v. Peeler, 37 S.W.2d 126 (Tex.Com.App.1931). An angry steer broke the gate and injured the plaintiff. No recovery was allowed because, said the court, proximate cause in its “legal sense” required the injury to be foreseeable. In our case, it might be foreseen that chasing a dog in a store would cause him to topple merchandise or run into people. It could not reasonably be foreseen that it would cause him to bite. Appellee’s reliance on Zuniga v. Storey, 239 S.W.2d 125 (Tex.Civ.App.—San Antonio 1951, writ ref’d n. r. e.), is misplaced. That case involves a rodeo bull which was made mean by the owner for rodeo performances, was known to be mean by the owner, and whose owner was thus negligent in allowing it to escape confinement. That is a case of responsibility of the owner of a vicious animal. Our ease is the responsibility of an owner for the condition of his premises. Judge Norvell specifically distinguishes the above cases of Texas & P. Ry. Co. v. Bigham, Union Stock Yards v. Peeler, and Carson v. Knight in his opinion in Zuniga v. Storey. They had no application there, but they are applicable to our case by analogy, and Zuniga v. Storey is not.

The judgment of the trial Court is reversed and judgment here rendered that the cause be transferred to the proper court of Lubbock County, Texas.


author: OSBORN, Justice.

text:
    GREAT OIL BASIN SECURITIES CORPORATION, Appellant, v. UNION NATIONAL BANK OF LITTLE ROCK, ARKANSAS, Appellee.
    No. 6767.
    Court of Civil Appeals of Texas, El Paso.
    March 14, 1979.
    Rehearing Denied April 11, 1979.

      Smith, Baker, Field & Clifford, Inc., Edward R. Smith, Lubbock, Dean Carlton, Dallas, Max E. Ramsey, Odessa, for appellant.
    Griffin Smith, Little Rock, Ark., Shafer, Gilliland, Davis, Bunton & McCollum, Inc., Lucius D. Bunton, Odessa, for appellee.
   OPINION

OSBORN, Justice.

This is the third and perhaps final round of a main event which has continued for a period of eight years over a promissory note and deed of trust. The results of the first two rounds are recorded in McAdoo v. Union National Bank of Little Rock, Arkansas, 535 F.2d 1050 (8th Cir. 1976), and McAdoo v. Union National Bank of Little Rock, Arkansas, 558 F.2d 1313 (8th Cir. 1977). Neither side was a clear winner in the early rounds; thus, each side seeks a final blow that will end the confrontation once and for all. If we were to sustain a plea of limitations as a defense to the note itself, as urged herein, neither the debt, nor the lien given to secure it, could ever be revived from such a blow. But, we do not sustain either that contention or the contention that recovery on the note is barred by the compulsory counterclaim rule. Instead, we give full faith and credit to the judgment entered in the United States District Court in Arkansas and on that basis affirm the summary judgment of the trial Court in this, the third round between the parties.

As noted from the published report of the first round, suit was originally brought in federal court in the Northern District of Texas as a stockholders’ derivative action against Great Oil Basin Securities Corporation (GOBSC). Thereafter, Union National Bank of Little Rock, Arkansas was made a third party defendant. Venue requirements resulted in the case being transferred to the Eastern District of Arkansas in January, 1972. That suit sought, insofar as the Bank was concerned, a declaratory judgment invalidating a promissory note executed by GOBSC in favor of the Bank on August 26, 1969, in the principal sum of $500,000.00 and being payable on or before August 26, 1970. The note was secured by a deed of trust lien on a shopping center in Odessa, Texas. The minority stockholders asserted that the note was invalid because (1) the officers who executed it had no authority to bind the corporation for such a loan; (2) that the loan was usurious, and (3) because of a violation of security laws.

As somewhat of a preliminary to the main event, the Trustee posted notices for sale of the property under the terms of the deed of trust when the note was first in default. Suit was filed in district court in Ector County, Texas, and a temporary injunction granted restraining and enjoining the foreclosure sale. In April, 1972, the attorneys agreed to dismiss without prejudice the litigation pending in Ector County and also agreed that “any foreclosure shall be only by judicial decree in the pending litigation in Little Rock.” The case was not dismissed but was in 1978 consolidated with the suit subsequently filed in Ector County in May, 1977.

In the first trial in federal court in February, 1975, the jury found that there was no violation of the securities laws, that the loan was not usurious, and that the officers that executed the note had authority to bind GOBSC in connection with the loan. On February 25, 1975, the trial Court entered findings of fact and order for judgment which recited: “All defenses available to Great Oil Basins Securities Corporation against Union National Bank of Little Rock are concluded by the judgment to be entered herein and the validity and applicability of the note and deed of trust are established in favor of the bank.” Judgment was entered for the Bank on the same day decreeing that the note is “a valid obligation” of GOBSC and that the deed of trust was a first lien on the described property and “is enforceable by foreclosure in Texas.” Thus, the issue of the “validity” of the note and deed of trust had been decided in favor of the Bank.

On appeal the issues of authority and usury were affirmed, the security law violation was not raised and the Bank had prevailed. But the case was remanded as to the issue of foreclosure with the issue of limitations on the right of foreclosure under Article 5520, Tex.Rev.Civ.Stat.Ann., being recognized as a possible bar to such relief. Apparently at that time no money judgment had been sought and no plea of limitations of the debt itself has ever been raised, although the validity of the note was certainly before the court.

On remand, the trial Court entered a nunc pro tunc judgment decreeing that the note “is a valid obligation” of GOBSC and finding that the unpaid principal of such obligation as of February 27, 1975, was $386,544.16, together with accrued interest in the amount of $33,340.27, and with interest accruing at the rate of $95.31 per day. The judgment further decreed that the deed of trust became a first lien on the property described and that the Bank “have judicial foreclosure on the deed of trust and sale of the real estate to satisfy the obligation as provided by law.” By separate order, the case was transferred to the Western District of Texas for implementation of the foreclosure sale.

Back on appeal, the order of transfer was reversed and vacated. But the court in its opinion said:

We have given careful consideration to the contentions of the plaintiffs, and we are convinced that the district court did not err either in 1975 or 1976 in determining that the Great Oil Basin note is a legal and binding obligation of that company and that it is secured by a valid deed of trust on the shopping center in Odessa. We are also satisfied that no error was committed by the district court in 1976 in determining in terms of dollars and cents the amount of Great Oil Basin’s obligation, and in decreeing that as of February 27, 1975 the Bank was entitled to judicial foreclosure of its deed of trust in Texas.

In May, 1977, GOBSC filed suit in Ector County seeking again to restrain a foreclosure sale and in such pleading asserted that both the debt and power of sale were barred by limitations. The Bank answered and filed a cross-action seeking a judgment for the amount claimed to be owed to it by GOBSC. The answer to the cross-action alleged the debt was barred by Article 5527, Tex.Rev.Civ.Stat.Ann., among other defenses. It also asserted the Bank was barred from recovery because it had failed to assert a compulsory counterclaim in the first suit in Ector County where the temporary injunction had been originally granted. Both GOBSC and the Bank filed motions for summary judgment. The trial Court granted the Bank’s motion and denied the motion of GOBSC. It entered judgment for the sum of $386,544.16 plus interest of $113,226.51, plus a daily accrual of $105.90 until paid, and ordered that execution issue.

By its first and third points of error, the Appellant, GOBSC, asserts that the trial Court erred in granting judgment to the Bank and in denying its motion for summary judgment because the note was barred by the statute of limitations. The note became due and payable on August 26, 1970. The cross-action in this suit seeking judgment for the amount due was filed on August 4, 1977. Of course, this was more than four years after a cause of action on the note accrued, as provided for actions for debt evidenced by a contract in writing. Article 5527, Tex.Rev.Civ.Stat.Ann.

But before we can say the debt is barred, we must look to the prior litigation and determine the effect of the earlier judgments in the federal court in Arkansas. At no time did the Bank seek a money judgment for the amount of the note. Instead, the stockholders and corporation sought a declaratory judgment that the note as originally made was invalid. They lost. Thus, we have a 1975 judgment that the note was valid and that judgment is entitled to full faith and credit. When the judgment was affirmed in part in 1976, the appellate court recognized, but did not decide, the issue of whether foreclosure under the deed of trust was barred by limitations under Article 5520, Tex.Rev.Civ.Stat.Ann.

The nunc pro tunc judgment entered on November 12, 1976, decreed that the note “is a valid obligation.” In affirming that judgment, in July, 1977, the court of appeals concluded that the Bank “has a valid in personam declaratory judgment * *” The trial Court’s order providing that: “The substantive rights of the parties have been adjudicated. * * was affirmed.

Courts do not favor trying cases piecemeal. As noted in 34 Tex.Jur.2d Judgments sec. 501: “A final valid judgment is, subject to certain qualifications, conclusive of every matter that the parties might have litigated and had decided as incident to the subject matter of the litigation, and of every matter coming within the legitimate purview of the original action. This rule applies to both of the parties and covers matters of defense as well as of offense. * * * What the principle actually means is that a judgment is conclusive of all matters, both offensive and defensive, * * * that might have been brought forward for determination by the exercise of reasonable diligence, and that the judgment will operate as an absolute bar to any subsequent suit based on such matters, whether the matters in question were actually presented for adjudication and passed on or not.” That same test in Section 502 notes that a defendant is prevented from splitting his defenses, and that if more than one defense is available they must all be presented in the same trial; and if the defendant fails to do so “the judgment will be as conclusive as to the defenses omitted as it is to those actually set up, and preclude the defendant from making any subsequent claim or demand that is founded on an issue that would have been litigated had he properly presented his version of the controversy, $ ⅛ ⅝ JJ

When this case was first tried in February, 1975, the note was more than four years past due. If limitations was a valid defense it could have been asserted in February, 1975, and the case disposed of on that basis. Having tried to avoid liability on some grounds and lost, new and additional defenses should not be sustained in a new and different court after the first court declared the obligation to be valid. Cliett v. Hammonds, 305 F.2d 565 (5th Cir., 1962). The nunc pro tunc judgment having declared the note a valid obligation as of February 27, 1975, and having determined the amount of principal and interest owed thereon, and that part of the judgment having been affirmed, it is entitled to full faith and credit when sued upon in Texas. Huselby v. Allison, 25 S.W.2d 1108 (Tex.Civ.App.—Amarillo 1930, writ dism’d). In that case, the parties in a suit involving promissory notes and a deed of trust had a question raised as to the effect of a judgment on the notes in an earlier federal court case. In disposing of the question as to the effect of that earlier judgment, the court said:

The attack upon that judgment and its binding effect in this case is collateral and is an ineffectual attempt to reopen that case and have the state courts declare that, at the time the judgment was entered against Carr, the rights of plaintiff were barred either by the statute of limitations or because of plaintiff’s failure to prosecute its action with due diligence under the doctrines of laches and stale demand. Carr made no defense to the merits, and we must presume he had none. As said by the Supreme Court in Crane v. L. & H. Blum, 56 Tex. 325; ‘The good of society and the preservation of rights and good order require that when once the rights of the parties have been determined by the ultimate tribunal provided by law for their adjudication, the same should pass from the field of strife forever. Any other rule would fill the court with causes which have once been determined, and render all rights of property uncertain and the most solemn judgments a mockery.’ Montgomery v. Huff (Tex.Civ.App.) 11 S.W.2d 237; Davis v. Cox (Tex.Civ.App.) 4 S.W.2d 1008. The judgment of the federal court being final, is as conclusive of questions of law as upon questions of fact. Long v. Martin (Tex.Civ.App.) 260 S.W. 327; Cotton v. Rhea, 106 Tex. 220, 163 S.W. 2. If the federal court judgment was erroneously entered, it is a judicial error which can not be corrected through a collateral attack upon the judgment in this action. Pring v. Pratt (Tex.Civ.App.) 1 S.W.2d 441; Perkins v. Dunlavy, 61 Tex. 241; Mansel v. Castles, 93 Tex. 414, 55 S.W. 559; Montgomery v. Huff, supra, and authorities cited.

Thus, when the Bank sued in Texas and attached to its pleadings and motion for summary judgment copies of the judgments and opinions of the federal court litigation, it established a right to the summary judgment as granted by the trial Court. Points of Error Nos. 1 and 3 are overruled.

The Appellant further asserts in points of error 2 and 4 that the Bank cannot now recover because it was required under the compulsory counterclaim rule to assert any claim it had on the note in the original suit filed in Ector County in 1970. As noted earlier, that suit was never dismissed, and in January, 1978, the suit filed in May, 1977 was consolidated with the suit filed in 1970 and thus the Bank’s cross-action upon which it has now obtained relief was and is a pleading in the 1970 case. In effect, the cross-action ultimately became a counterclaim in the first suit which was never dismissed but later consolidated with the 1977 suit. Points of Error Nos. 2 and 4 are overruled. The judgment of the trial Court is in all things affirmed.

      .& 2. Emphasis added.


author: MASSEY, Chief Justice.

text:
    Ammie CARTER, Jr., Appellant, v. REPUBLIC INSURANCE COMPANY, Appellee.
    No. 18074.
    Court of Civil Appeals of Texas, Fort Worth.
    March 15, 1979.
    Rehearing Denied April 12, 1979.

      Colbert & Berliner, and Joe Colbert, Austin, for appellant.
    Fanning & Harper, and Don D. Martin-son, Dallas, for appellee.
   OPINION

MASSEY, Chief Justice.

The appeal is from a “take nothing” summary judgment for which the defendant had moved. The case was one in which Ammie Carter, Jr., as plaintiff, had brought suit against Republic Insurance Company, as defendant, for benefits claimed by Carter to be due under contractual provisions of a certain insurance policy issued to him, as the insured, by Republic, the insurer.

We affirm.

December 11,1974 Carter was involved in an automobile collision. As a result Carter sustained personal injuries. By reason of his injuries Carter claimed to have incurred expenses in excess of $12,500.00. Under Republic’s interpretation of the insurance contract it owed Carter $2,500.00. Carter claimed more was owed, and it was for that amount denied him that he sued.

The type of insurance involved is Personal Injury Protection coverage, in insurance circles commonly termed “PIP”, and hereinafter likewise so termed.

Copying from the policy in question the material contractual provisions are as follows:

“243. PERSONAL INJURY PROTECTION ENDORSEMENT
“FAMILY AUTOMOBILE POLICY
“In consideration of the premium for this endorsement, the Company agrees with the named insured, subject to all of the provisions of this endorsement and all of the provisions of the policy except as modified herein, as follows:
“PERSONAL INJURY PROTECTION “INSURING AGREEMENT
“In accordance with the provision of Article 5.06-3 of the Insurance Code of Texas and all Acts amendatory or supplementary thereto, the Company will pay: “(1) the named insured . . . who sustains bodily injury, caused by accident, in a motor vehicle accident,.."
“(1) all reasonable and necessary medical expenses incurred for services furnished,
“during the period of such injured person’s disability.
“LIMITS OF LIABILITY
“Regardless of the number of persons insured, policies or bonds applicable, vehicles involved or claims made, the total aggregate limit of liability for all benefits of every kind for loss or expense incurred by or on behalf of any one person who sustains bodily injury as the result of one accident shall not exceed the limit of liability set out in the schedule of this endorsement. . . . ”

The necessity for policy language construction would not have arisen if only one automobile had been insured thereby. It would obviously have involved only Carter’s entitlement to $2,500.00 in “loss or expense incurred ... as the result of any one accident”. Necessity for construction did arise because Carter had insured five automobiles under the policy, and had paid as a part of the premium for the entire policy a specified premium for PIP coverage. The total premium paid to secure PIP coverage for all five automobiles amounted to $92.00, no specification having been made as to premium for any considered individually.

Under the circumstances occasioning Carter’s having incurred reasonable and necessary medical expenses as result of his injuries on December 11,1974, Republic conceded its liability for the payment of “benefits for loss or expense incurred” amounted to $2,500.00. It paid this amount. Carter considered that because he had paid for PIP coverage under a single policy for coverage of five automobiles — with no particular amount assessed as the premium for any single one of them but the single premium amount of $92.00 for covering all five vehicles — the limit of liability of Republic under the policy was increased. Carter’s theory is that $2,500.00 should be considered as contracted to be multiplied five times with consequent “limit of liability” under the policy contract the figure of $12,500.00. In other words the posture of Carter in the lawsuit was one in which he sought an additional $10,000.00 plus reasonable and necessary attorney’s fees in the enforcement of Republic’s liability for payment of that which was owed (in excess of what had been paid). (There was no prayer for imposition of 12% penalty.)

In 1973 and effective that year the Legislature enacted what is now to be found as Tex.Ins.Code Ann. art. 5.06 — 3, “Personal Injury Protection Coverage”, in which certain provisions will be noticed, as follows:

In (a) was provided that coverage provided by the Article should be applicable unless the insured named in the policy rejected it in writing.
In (b) was provided that the protection provided was the payment to, among others, the named insured in the policy “up to an amount of $2,500.00”.
In (d)(2) was provided for payments to be made subject to limitations; and the enumerated limitations included the following:
“[I]n no event shall the aggregate benefits payable to any person exceed the maximum limits prescribed in the policy.”

It will be presumed that absent attack, and none was made by Carter’s pleadings or summary judgment evidence, that the policy is in conformity with law and provisions of the Insurance Commission of the State of Texas. Carter is to be restricted to theories upon which his case was tried in a consideration of his appeal. From quotations made hereinabove, is to be noticed that by the policy in question there was provision that the limit of liability of Republic was stated to be $2,500.00 for each person. The only person with whom we are concerned was the named insured. He has contracted to be limited to the collection of no more than $2,500.00 under the circumstances, and that amount may not be enlarged (upon any legal theory presently recognized).

Furthermore, the identical question has been ruled upon in the case of Guerrero v. Aetna Cas. & Sur. Co., 575 S.W.2d 323 (Tex.Civ.App.—San Antonio 1978, no writ). The San Antonio court rejected the contention that there might be a “stacking” of the PIP coverage endorsement to Texas insurance policy contracts. The holding in Guerrero was correct. See also E. York, “ ‘Stacking’ Uninsured Motorist Protection, Medical Payments, and Personal Injury Protection Coverages in Texas”, 7 St. Mary’s L.J. 837, 845-849 (1975).

The trial court did not err in granting the “take nothing” summary judgment in denial of Carter’s claim.

Judgment is affirmed.


author: JAMES, Justice.

text:
    W. C. WYLIE et ux., Appellants, v. Bette REED, Trustee, a Co-Partnership, Appellee.
    No. 5932.
    Court of Civil Appeals of Texas, Waco.
    March 22, 1979.
    Rehearing Denied April 12, 1979.

      Leo J. Hoffman, Strasburger & Price, Dallas, Jack T. Life, Life & Bolding, Athens, for appellants.
    James W. McCartney and Ben H. Rice, Vinson & Elkins, Houston, James W. Bradford, Jr., Angleton, Hugh D. Reed, Fair-field, for appellee.
    F. H. (Hastings) Pannill, Sr. and Charles L. Morgan, Jr., Pannill & Morgan, Inc., Huntsville, for amicus curiae.
   OPINION

JAMES, Justice.

This is an appeal from a second summary judgment. Plaintiff-Appellee Bette Reed, Trustee, a co-partnership, brought this suit against Defendant-Appellants W. C. Wylie and wife Iva Jack Wylie for a declaratory judgment to the effect that as between Reed and the Wylies, the Wylies have no ownership of the coal and lignite deposits in a certain tract of 223.385 acres of land located in Freestone County, nor of the royalty fuiids attributable to the coal and lignite removed from the tract in question.

Prior to a former appeal of this case, to wit, on November 19, 1975, the trial court entered a summary judgment in favor of Reed against the Wylies with respect to the ownership of coal and lignite which “may” be mined or removed from the tract in question by open pit or strip mining methods. This court reversed and remanded the first summary judgment, holding in effect that the judgment was not supported by proper summary judgment proof. Wylie v. Reed (Waco CA 1976) 538 S.W.2d 186. The Supreme Court of Texas affirmed the judgment of this Court of Civil Appeals and held that Reed was not entitled to a summary judgment. Reed v. Wylie (Tex.1977) 554 S.W.2d 169.

Reed is the owner of the granted surface estate of the tract in question, whereas the Wylies are the owners of one-fourth of the minerals in and to said tract by virtue of a mineral reservation in a 1950 deed. By a deed dated September 30, 1950, the Wylies conveyed the tract in question to James F. Baker. That deed contained the following reservation:

“In addition to the above and foregoing exception there is hereby excepted and reserved to the Grantors herein a one-fourth (¼) undivided interest in and to all oil, gas and other minerals on and under the land and premises herein described and conveyed; and it is hereby expressly agreed and understood that Grantors herein, their heirs and assigns shall have, and they hereby have the right of ingress and egress for the sole and only purpose of mining and operating for oil, gas and all other minerals, on and under said land, and to produce, mine, save and take care of said products, and to take all usual, necessary and convenient means for working, preparing and removing said minerals from under and away from said land and premises.”

All of the interest conveyed by this deed to James F. Baker is now owned by Bette Reed, Trustee, Plaintiff-Appellee herein. Specifically, Baker and wife conveyed the tract in question to one Stewart by deed dated December 15,1953; then Stewart and wife conveyed the subject tract to one Garrett by deed dated November 25, 1955; then Garrett, joined by his children, conveyed to Plaintiff-Appellee Bette Reed, Trustee, the tract in question by deed dated February 22, 1974. All of said deeds subsequent to the Wylies-to-Baker deed specifically excepted the one-fourth mineral reservation in favor of the Wylies described in the Wylies-to-Baker deed. Therefore, this controversy is between the Wylies on the one hand, and Reed on the other, as to whether the Wylies retained the ownership of a one-fourth interest in coal and lignite in this tract of land by virtue of the reservation in the Wylies-to-Baker 1950 deed hereinabove referred to.

At the time of the first summary judgment, the lignite mining upon the tract in question had just begun. Strip mining operations were begun upon the subject tract in October 1975 and were completed in May 1977. Therefore, at the date of the second summary judgment now appealed from, to wit, March 28,1978, the strip mining operations upon the tract in question had been completed.

After the first appeal, Plaintiff-Appellee Reed again moved for a summary judgment, contending in effect that the coal and lignite deposits were “at the surface” of the tract in question, so that Plaintiff-Appellee Reed is entitled to judgment as a matter of law as surface owner to all of the coal and lignite therein. Said motion for summary judgment is supported by the affidavit and oral deposition of Ted Mayo, Civil Engineer and Fuel Superintendent of Texas Utilities Generating Company, which company conducted the strip mining operations, as well as the affidavits of F. S. Hill, Vernon C. Doctorman, and Roger Steward.

Mayo’s affidavit recites that he has personal knowledge of the location of the lignite beds upon the subject tract of land, and of the strip mining of said tract; that said land was strip mined beginning in October 1975 and ending in May 1977, with the recovery of 1298.62 acre feet of lignite from said tract; that there were two seams of lignite underlying the tract, one seam beginning at about twenty (20) feet below the surface of the ground and continuing at that depth while on this property; whereas the other seam ranged from twenty (20) feet below the surface to a depth of eighty (80) feet below the surface; the lignite seams dip in a uniform fashion and in a general southeast direction at one to two degrees or approximately 100 feet per mile; that generally, the lignite found at depths of less than 15 feet is low quality, weathered lignite called “smut,” and this is true on the Reed tract; that below 15 feet is the hard, minable lignite. In Mr. Mayo’s affidavit he stated he had seen at least three outcrops of lignite in Freestone County, the nearest ones being within ⅛ mile and 2 miles, respectively, from the tract in question. However, in his deposition Mr. Mayo testified that he had seen one outcrop of lignite exposed at the surface upon the tract in question, same being in a natural gulley located in the northeast comer of said tract, said outcropping being located in the bottom of said gulley about 20 to 25 feet below the top bank thereof.

F. S. Hill’s affidavit showed that he had personal knowledge of ten specific outcrops of lignite in Freestone County, specifically locating same, none of which were located on the tract in controversy.

Vernon C. Doctorman by affidavit stated that from 1925 to 1943 he was employed as a mining engineer in connection with lignite mining operations at Malakoff, Texas, and at other places in Texas, and that he knows “of his own knowledge that strip mining is a method that has been used successfully in Texas since 1925 to extract lignite.”

Roger Steward’s affidavit states that to his knowledge for the past 50 years there has been no oil or gas well drilled on the subject tract, nor any mining thereupon until Texas Utilities Generating Co. began to strip mine lignite in 1975.

The gist of Reed’s contention based upon the above-summarized summary judgment proof is, that there can be no factual issue as to the depth of the lignite on the tract, and there can be no factual issue as to the process of production used by Texas Utilities Generating Co., to extract the coal and lignite from the property; and since as a matter of law the coal and lignite lay “at the surface” of the land, no further proof is necessary to establish ownership by Plaintiff Reed as against the claim by the Wylies under their mineral reservation.

Defendants Wylie by their First Amended Original Answer pleaded not guilty, general denial, assertion that, they are the owners of the coal and lignite in question to the extent of their ¼⅛ mineral reservation in the 1950 deed to Baker, and title thereto by virtue of the 5, 10, and 25 year statutes of limitation; in addition thereto, the Wylies filed a cross-action against Reed seeking a reformation of their 1950 deed to Baker based upon mutual mistake concerning the ¼⅛ mineral reservation hereinabove quoted. That is to say, Wylies allege that it was the clear intention of the Wylies, Baker, and the attorney who prepared the 1950 deed that the ¼⅛ mineral reservation by the Wylies would and did include coal and lignite at whatever depth, and regardless of whatever method would be used to mine and remove same.

Reed in her answer to the Wylie cross-action pleaded that she was a bona fide purchaser of the tract in question without notice of any mistake or specific intent alleged by the Wylies in their cross-action; and in addition thereto, Reed pleaded the 4 year statute of limitations to the Wylie cross-action for reformation of the 1950 deed.

Defendants Wylie also filed a “Response in Opposition to the Reed Second Motion for Summary Judgment,” attached to which were affidavits of Mr. and Mrs. Wylie (themselves), R. C. Lamb, James F. Baker, Tommie Willard, Alton Coates, Kenneth Coates, Jim S. Fryer, Hugh E. Fryer, John Douglas Fryer, and Bowlen Bond.

The affidavit of R. C. Lamb states that he has been a professional engineer for 30 years with wide experience in lignite mining activities in Texas; that originally lignite was mined almost exclusively by an underground mining operation, using the room and pillar method, with entry by either shaft or slope method, all underground; that less than 10% of all lignite mines operated in Texas prior to 1940 were surface or strip mines; that underground mining was common in Freestone, Anderson, and Henderson Counties in Texas; that due to lack of market demand, all lignite mines in Freestone County ceased to operate during the period from the early 1940⅛ to the early 1960’s, and at no time during the periods mentioned is there any record of surface or strip mining for lignite in Freestone County; that the underground mining operations for lignite in the above-named three counties were located from 15 to 24 miles from the Reed, tract in controversy. Mr. Lamb defines the terms “outcrop” and “subcrop” concerning lignite deposits, saying, “an outcrop occurs when the lignite seam is at the surface or is only obscured by soil from a high level such as a bank with a shallow cover of 3 to 4 feet.” Then he says, “A subcrop occurs when the lignite seam is well below the surface. This condition is the result of a seam ending abruptly at an underground location at a depth of 5 feet or greater, having an overburden cover of that depth.” Lamb goes on to state, “it is my professional opinion that no coal or lignite outcrops ever existed on the Reed tract,” and further, “that the coal and lignite underlying the Reed tract could have been commercially and feasibly mined on September 30, 1950, by shaft or slope mining in a manner so as not to consume or deplete the surface estate.”

The affidavits of Tommie Willard, Alton Coates, Kenneth Coates, Jim S. Fryer, Hugh Fryer, and John Douglas Fryer state in effect that each of them have known the Reed tract for many years, and each stated that he never saw any outcropping of coal or lignite on the surface of the Reed tract. Jim S. Fryer and Hugh Fryer stated that there was local shaft mining for lignite near Donie in the southwest part of Freestone County which ceased sometime prior to 1950; and that all coal and lignite mining that was done in Freestone County had been done by the shaft method until 1974.

Moreover, the Wylies presented affidavits by themselves, James F. Baker, and Attorney Bowlen Bond which in effect showed that the parties clearly intended that the reservation by the Wylies in the 1950 deed to Baker would and did include all coal and lignite located upon and in the tract in controversy. The Wylies’ summary judgment proof further showed that in 1949 the Wylies executed a mining lease to Roger Steward covering the tract in question wherein the lessee was permitted to strip-mine the lignite thereupon, which lease was amended by an instrument executed by the Wylies in 1964 covering the ¼⅛ mineral interest owned by the Wylies. Said original lease and amended lease had each been seasonably filed for record in Freestone County.

The trial court granted a summary judgment in favor of Plaintiff-Appellee Reed to the effect that Reed is the owner of all the coal and lignite located upon the tract in question, as well as the owner of the royalty funds held by Texas Utilities Generating Co. for the payment of all the coal and lignite removed from said property. In said judgment it was recited that “the depth of lignite on the Reed tract is established without substantial controversy and that coal and lignite outcrops or is exposed on the surface at numerous places in the area of the land involved; and that on the land in question the coal and lignite lay in shallow parts of the formation within 22 feet of the surface; so that the Court holds that the coal and lignite deposits were at the surface of the land in question and that Plaintiff has shown as a matter of law that the Defendants’ mineral reservation did not include the coal and lignite on this land _” Said summary judgment also held that the Defendants Wylie take nothing on their cross-action for reformation of the 1950 deed to Baker.

Defendant-Appellants Wylie complain of the summary judgment, asserting the existence of genuine issues as to material facts which would preclude Reed’s entitlement to a judgment as a matter of law. We sustain these contentions, and hold that the summary judgment was improvidently granted, and thereby reverse and remand the cause for trial upon the merits.

The duty of the court hearing the motion for summary judgment is to determine if there are any issues of fact to be tried, and not to weigh the evidence or determine its credibility, and thus try the case on the affidavits. Rule 166-A, Tex. Rules of Civil Procedure; Gulbenkian v. Penn (1952), 151 Tex. 412, 252 S.W.2d 929, 931. Summary judgment should be granted, and if granted, should be affirmed only if the summary judgment record establishes a right thereto as a matter of law. Gibbs v. General Motors Corp. (Tex.1970) 450 S.W.2d 827; Harrington v. Young Men’s Christian Assn. of Houston (Tex.1970) 452 S.W.2d 423. The burden of proof is on the movant, and all doubts as to the existence of a genuine issue as to a material fact are resolved against him. In other words, the evidence must be viewed in the light most favorable to the party opposing the motion. All conflicts in the evidence are disregarded, and the evidence which tends to support the position of the party opposing the motion is accepted as true. Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co. (Tex.1965) 391 S.W.2d 41, 47. Also see Whitten v. Metro Bank of Dallas (Waco CA 1977) 556 S.W.2d 383, no writ.

Applying the foregoing rules to the case at bar, as we must, we are of the opinion and hold that the summary judgment record before us presents genuine issues of material fact, thereby precluding summary judgment.

Our Supreme Court in the former appeal of this case has laid down certain rules of law which we believe throw light upon and furnish guidance in the appeal now before us. Reed v. Wylie (Tex.1977) 554 S.W.2d 169. For example, at page 172, the Court says:

“Acker v. Guinn (Tex.1971, 464 S.W.2d 348) stands for the rule that a substance is not a 'mineral’ if substantial quantities of that substance lie so near the surface that the production will entail the stripping away and substantial destruction of the surface. That being the circumstance, and there being no contrary affirmative expression in the instrument, it controls the construction of the instrument as to the same substance at all depths.

“It is improper therefore to declare that the surface owner is entitled to only so much of the substance as may be produced by strip mining or pit mining. We are not dividing the right to produce the substance; we are construing the instrument of conveyance to ascertain the ownership of the substance. Furthermore, the rule of construction does not favor the surface owner simply because it is shown that the substance ‘may’ be produced by strip or pit mining. Instead, the surface estate owner must prove that, as of the date of the instrument being construed, if the substance near the surface had been extracted, that extraction would necessarily have consumed or depleted the land surface.”

Here, the Supreme Court clearly states that the surface owner (Reed) must prove that as of September 30, 1950, the date of the instrument being construed, if the lignite near the surface had been extracted, that extraction would necessarily have consumed or depleted the land surface. Does the summary judgment proof now before us show this as a matter of law? We think not. Nowhere in Reed’s summary judgment proof is there any showing that the only method of mining the lignite would consume or deplete the surface. The proof is, that this was in fact the method employed to mine the lignite, but there is no proof that no other feasible method was available. Indeed, the summary judgment proof on the Wylie side is to the effect that in earlier times in the vicinity of and prior to 1950, that most lignite mining in the Freestone County area of Texas was done by shaft or underground methods, and that this was a feasible method of mining the Reed tract in 1950. Under the record before us, we cannot say as a matter of law that if the lignite had been mined on the tract in question in 1950, that such mining would necessarily have consumed or depleted the land surface.

Next, 554 S.W.2d on page 173, the Supreme Court holds: “If lignite lies at the surface of the land, no further proof would be required to establish the title of Reed to the lignite as against Wylie’s claim under the 1950 reservation.” (emphasis supplied). Plaintiff-Appellee contends that it has met its burden by proof as a matter of law that the lignite lies at the surface of the land, and that by use of the term, “the land” is meant land in the vicinity of the Reed tract, and not confined just to the Reed tract alone. We do not agree. On page 173 of the Supreme Court’s opinion, the Court makes it clear that it is referring to the “land being conveyed.” Here again the summary judgment proof is conflicting, concerning whether the lignite lies “at the surface” of the Reed tract. Reed’s proof showed with particularity the location of the lignite, which showed it generally at depths ranging from 20 to 80 feet below the surface of the Reed tract, with one outcropping in a gulley in the northeast corner of the tract. To the contrary, Wylie’s proof by several witnesses showed that there were no outcroppings of lignite at the surface of the Reed tract. Under the record before us, we cannot say as a matter of law that the summary judgment proof shows conclusively the existence of lignite at the surface of the, Reed land.

As stated before, the Wylies filed a counterclaim for reformation of the 1950 deed to Baker based upon mutual mistake as to the legal effect of the language used in the Vith mineral reservation, contending that the parties concerned intended that said mineral reservation would and did include all coal and lignite at whatever depth and however mined. Affidavits of the Wylies, Baker, and Attorney Bowlen Bond were filed showing these facts in opposition to Reed’s motion for summary judgment. Without discussing the ramifications of this cross-action, suffice it to say that we believe the record on its raises material fact issues which would cause a summary judgment to be improper.

For the reasons herein stated, we hereby reverse and remand the cause for trial on the merits.

REVERSED AND REMANDED.