author: SUMMERS, Justice.

text:
    SIDERIUS, INC., Appellant, v. WALLACE COMPANY, INC. and Texas Commerce Bank National Association, Appellees.
    No. 1137.
    Court of Civil Appeals of Texas, Tyler.
    May 31, 1979.

      J. Clifford Gunter, III, William Ikard, Bracewell & Patterson, Houston, for appellant.
    Jeffrey A. Davis, Grant Cook, Reynolds, Allen & Cook, Alvin M. Owsley, Jr., Baker & Botts, John E. Bagalay, Jr., Houston, for appellees.
   SUMMERS, Justice.

The instant case resulted from the consolidation of two lawsuits. The first suit was initiated by Melton Steel Company, hereinafter referred to as “Melton,” against Wallace Company, Inc., hereinafter referred to as “Wallace,” and Siderius, Inc., hereinafter referred to as “Siderius,” alleging breach of contract and interference with contractual relationships. Subsequently, Wallace brought a separate action to enjoin Texas Commerce Bank, hereinafter referred to as the “Bank,” from honoring a documentary draft presented by Siderius against a letter of credit which had been issued by the Bank at Wallace’s request for Siderius’ benefit. The two suits were consolidated by the trial court. Cross-actions were filed by both Wallace and Siderius; Wallace sought recovery from Siderius for fraudulently inducing it to enter into a contract with Sid-erius, and Siderius sought recovery from Wallace on grounds of breach of contract and from the Bank for wrongful dishonor of Siderius’ draft against the letter of credit.

Originally, Siderius was going to sell 5,000 net tons of foreign steel pipe to Melton for approximately $715.00 per net ton. Melton, in a back-to-back transaction, intended to then sell the same pipe to Wallace. This agreement was conditioned upon Wallace’s obtaining a letter of credit for Melton’s benefit for approximately $4.1 million. Wallace was unable to obtain the letter of credit, and as a result, the deal fell through. Siderius then approached Wallace and offered to sell the pipe to Wallace directly for $715.00 per net ton, conditioned on Wallace’s obtaining a letter of credit for Siderius’ benefit.

Based upon Wallace’s application, Texas Commerce Bank issued an irrevocable documentary letter of credit for Siderius’ benefit on August 1, 1974. The terms of the letter of credit specified that:

“GENTLEMEN:
WE HEREBY OPEN OUR IRREVOCABLE LETTER OF CREDIT IN YOUR FAVOR FOR THE ACCOUNT OF Wallace Company, Inc. — P.O. Box 2597— Houston, Texas 77001 FOR A SUM OR SUMS NOT EXCEEDING IN THE AGGREGATE THE SUM OF Three Million Seven Hundred Fifty-Three Thousand Seven Hundred Fifty and No/100 U.S. Dollars ($3,753,750.00). AVAILABLE BY YOUR DRAFTS ON us AT _sight_TO BE ACCOMPANIED BY:
-Commercial Invoice.
-Customs Invoice.
-Certificate of Origin.
-Packing List (Including Tallies) — Dock Delivery Order.
-Negotiable Insurance Certificate of Policy covering Marine and War risks including All Risk — Warehouse to Warehouse for 110% of full invoice value.
-Full set of On Board Ocean Bills of Lading to the order of Texas Commerce Bank National Association, Notify: W. A. Sammis, Wallace Co., Inc., Box 2597, Houston, Texas 77001, Telephone Number 713-675— 2661, showing ‘Freight Prepaid.’
EVIDENCING SHIPMENT from 1. Italian Port, 2. & 3. Israel Port to Port of Houston, Texas U.S.A., not later than November 30, 1974 of:
1. 2500 N.T. (⅛ 5%) 6⅝" O.D. X .280 Wall X 18.97 # API5LB ERW DRL BLK PE BEV DRL Steel Line Pipe to latest edition API Specifications.
2. 1500 N.T. ( ± 5%) 10¾" O.D. X .365 X 40.48 # ditto above except API 5L X — 42.
3. 1000 N.T. (± 5%) 12¾" O.D. X .375 X. 49.56 # ditto above except API 5L X — 42.
5000 N.T. TOTAL
******
DRAFTS MUST BE NEGOTIATED AND PRESENTED TO US ON OR BEFORE February 1, 1975. . . .
******
THIS CREDIT IS SUBJECT TO THE ‘UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (1962 REVISION), INTERNATIONAL CHAMBER OF COMMERCE, BROCHURE NO. 222.’ ”

On August 12, 1974, Wallace issued its purchase order for the three shipments of steel pipe described above which expressly stated that it was based on the letter of credit issued by the Bank. Siderius issued its sales confirmation on August 21, 1974, which noted that payment was to be by the letter of credit described above.

The terms of the letter of credit were amended by letters of amendment five times, each of which stated “ALL OTHER CONDITIONS REMAIN UNCHANGED.” The shipping deadlines for all three shipments of steel pipe, as specified originally in the letter of credit, were amended by agreement of the parties. In early November, 1974, Siderius requested an extension of the shipping deadline in regards to the pipe to be manufactured in Italy; Wallace consented. In order to reflect this modification, the letter of credit was amended on November 13, 1974, to allow the bills of lading pertaining to the Italian pipe to be dated no later than January 15, 1975. In addition, the expiration date of the letter of credit was postponed to February 28,1975. Subsequently, Siderius requested that the shipping deadline for the Israeli pipe also be extended. Wallace agreed, and the letter of credit was amended to change the shipping deadline for these portions of the pipe from November 30, 1974, to December 15, 1974. In late December or early January, a request was once again made by Siderius seeking a further extension for shipment of the Italian pipe. Wallace refused to agree to anymore extensions and the January 15, 1975, deadline remained in force. The two shipments of pipe manufactured in Israel were shipped, delivered in Houston, and Siderius’ first and second drafts on the letter of credit in regards to these two shipments were honored by the Bank. The dispute in the instant case pertains to the shipment of the portion of pipe manufactured in Italy.

The pipe in question was to be shipped from the Italian port of Ravenna on board the M/V Slavonija. On February 20, 1975, Siderius presented to the Bank a bill of lading and other documents along with the third draft for payment in an amount in excess of $1.8 million. The bill of lading was dated January 15, 1975, and on its face appeared to conform to the terms of the letter of credit. Wallace notified the Bank that it suspected that the bill of lading presented by Siderius in the third draft was fraudulent because the shipping requirements had not been met and informed the Bank that it declined to waive any defects. The Bank dishonored Siderius’ first presentation of the third draft on February 24, 1975, as nonconforming because the bill of lading was issued under and subject to a charter party, the insurance certificate was short, and the dock delivery order was improper. In addition, Wallace notified Sider-ius that it was rejecting the Italian pipe on the grounds that the shipment of such pipe failed to conform to the contract terms. It is undisputed that on January 15, 1975, the Slavonija had not yet arrived in the Italian port of Ravenna and did not reach that port until January 24, 1975. The loading of the pipe on board the Slavonija was not completed until January 29, 1975.

Although the letter of credit expired on February 28, 1975, Siderius returned to the Bank and made a second presentation of the third draft on March 7, 1975. A new dock delivery order and copy of the bill of lading with charter party language removed were submitted to the Bank by Sid-erius. The insurance certificate remained short and the bill of lading continued to be dated January 15,1975. Wallace refused to waive any defects, including late presentation, and the Bank dishonored Siderius’ second presentation of the third draft. Subsequently, Wallace applied for a temporary injunction in order to enjoin the Bank from honoring Siderius’ third draft because it was allegedly accompanied by false and fraudulent documents. On March 24, 1975, the trial court so enjoined the Bank. This injunction suit was consolidated with the suit initiated by Melton.

Trial was to a jury; however the Melton claim was settled during the trial. In response to the special issues submitted, the jury found that Siderius’ representation to Wallace that the entire order of 5,000 net tons of pipe would be shipped no later than November 30,1974, was a material factor in inducing Wallace to enter the contract, and that Wallace relied upon Siderius’ representation. (Special Issues Nos. 2 and 4) In addition, the jury found that by the terms used in the letter of credit, as originally agreed, Siderius and Wallace intended to require Siderius to have the Italian Pipe loaded on board no later than November 30, 1974; and by the terms of the letter of credit, as amended, Siderius and Wallace intended to require Siderius to have the Italian pipe loaded on board no later than January 15, 1975. (Special Issues Nos. 5 and 6) The jury refused to find that by the terms of the letter of credit, Wallace and Siderius intended that a received-for-shipment bill of lading acknowledging receipt of the goods for shipment issued by January 15,1975, would be sufficient to evidence shipment. (Special Issue No. 7) The jury also found that Wallace and Siderius intended in their agreement for time to be of the essence. (Special Issue No. 20)

In response to Special Issues Nos. 21, 22, and 23, the jury answered that the bills of lading presented to the Bank by Siderius represented that the Italian pipe was on board the ship in Ravenna on or before January 15, 1975, that such representation was false, and that Siderius knowingly and intentionally falsely represented the date the Italian pipe was on board the ship. In addition, the jury found that Siderius failed to act in good faith in arranging for shipment of the Italian pipe and in submitting documents to the Bank regarding that shipment. (Special Issue No. 6-A) The jury refused to find that Siderius performed or substantially performed its agreement with Wallace or that the documents presented to the Bank by Siderius in connection with the draft in question substantially complied with the letter of credit, as amended. (Special Issues Nos. 8, 8-A, and 11) The jury also refused to find that Wallace failed to act in good faith, that Wallace and the Bank conspired together to dishonor Sideri-us’ draft, or that the Bank waived any defects in the draft in question by acceptance of nonconforming documents accompanying Siderius’ first and second drafts. (Special Issues Nos. 20-A, 13, and 9) Finally, the jury refused to assess damages in favor of either Wallace or Siderius.

The trial court, on the basis of the jury’s verdict, entered a judgment that Wallace and Siderius take nothing in regards to their respective claims. Wallace has not appealed the portion of the judgment denying it recovery against Siderius. From this judgment, Siderius has perfected this appeal, predicated upon thirty points of error. The points of error complain of the trial court’s take nothing judgment in regards to both of Siderius’ theories of recovery, against the Bank for alleged wrongful dishonor under Section 5-114(a), Tex.Bus. & Com.Code Ann. (Tex.U.C.C.1968), and against Wallace for alleged breach of the contract of sale.

Generally, a letter of credit transaction involves at least three separate and distinct contracts; (1) the underlying agreement between the buyer and the seller, (2) the contract between the bank (the issuer) and the buyer (the customer) which precipitates the issuance of the letter of credit, and (3) the letter of credit itself which is the agreement between the issuer and the seller, the beneficiary of the letter of credit. Republic National Bank of Dallas v. Northwest National Bank of Fort Worth, 578 S.W.2d 109, 112 (Tex.Sup.1978); Venizelos, S. A. v. Chase Manhattan Bank, 425 F.2d 461, 464-5 (2d Cir.1970). One of the most material aspects of a commercial letter of credit is its separation and independence from the underlying contract of sale. The issuer is not to become embroiled in controversies and disputes between the buyer and seller. The issuer deals in documents and not merchandise. Section 5—114(a), supra; Republic National Bank of Dallas v. Northwest National Bank of Fort Worth, supra 578 S.W.2d at 114; Chase Manhattan Bank v. Equibank, 550 F.2d 882, 885 (3rd Cir. 1977); Courtaulds North America, Inc. v. North Carolina National Bank, 528 F.2d 802, 805 (4th Cir. 1975). Therefore, we shall address the points of error in connection with Siderius’ claim against the Bank for wrongful dishonor under the letter of credit separately from the points of error dealing with its claim against Wallace for breach of the contract of sale.

LETTER OF CREDIT

In the case at hand, we are presented with a documentary letter of credit; the issuer agrees to honor a timely draft accompanied by the documents specified in the letter of credit. The issuer deals only in documents and is not concerned with the merchandise which is the subject of the underlying contract between the buyer and the seller. If the beneficiary presents documents which precisely and strictly conform to the requirements of the letter of credit, the issuer must honor the draft. Section 5-114(a), supra; H. Ray Baker, Inc. v. Associated Banking Corporation, 592 F.2d 550, 553 (9th Cir. 1979); Chase Manhattan Bank v. Equibank, supra; Courtaulds North America, Inc. v. North Carolina National Bank, supra at 805-6. The rule of strict conformity is necessary because the issuer, dealing solely in documents, should not be required to examine the performance of the underlying transaction to determine if the terms of the letter of credit have been fulfilled.

An exception to this general rule, requiring an issuer to honor a draft which is conforming on its face, is found in Subdivision (b)(2) of sec. 5-114, supra. Under the limited circumstances established by section 5-114(b)(2), supra, the issuer has the option to honor or dishonor, or the customer may enjoin the issuer from honoring such a draft. United Bank Ltd. v. Cambridge Sporting Goods Corp., 41 N.Y.2d 254, 392 N.Y.S.2d 265, 360 N.E.2d 943, 948 (N.Y.1976); Dynamics Corporation of America v. Citizens and Southern National Bank, 356 F.Supp. 991, 996 (N.D.Ga.1973); Tex.Bus. & Com.Code Ann. sec. 5-114(b)(2), comment 2, supra. This rule has been recognized as a codification of the pre-code case law as articulated in Sztejn v. J. Henry Schroder Banking Corporation, 177 Misc. 719, 31 N.Y. S.2d 631 (N.Y.Sup.Ct.1941) and Old Colony Trust Company v. Lawyers’ Title and Trust Company, 297 F. 152 (2d Cir.) cert. denied, 265 U.S. 585, 44 S.Ct. 459, 68 L.Ed. 1192 (1924). It is undisputed that Siderius was not an innocent third party as defined in subsection (b)(1) of section 5-114, supra.

We shall first address the complaint raised by Siderius in its first point of error. Point of error no. 1 contends that the trial court erred in not granting Siderius a judgment on the verdict because, based upon the jury’s responses to Special Issues 10, 24, and 25, the Bank wrongfully dishonored Sideri-us’ third draft. This contention is absent of any merit. In Special Issue No. 10, the jury found that the Bank’s acceptance of the first and second drafts established a course of performance or course of dealings by which Siderius “believed that by making a same or similar presentation on February 20, 1975, it would be accepted.” The jury refused to find in Special Issue No. 24 that the omission of the charter party language from the bill of lading presented to the Bank on March 7, 1975, made such bill of lading incomplete. Special Issue No. 25 was conditionally submitted to the jury, conditioned upon an affirmative answer to Special Issue No. 24, and, as a result, was not answered by the jury.

Special Issue No. 10 refers to the first presentation of the third draft made on February 20, 1975. The jury’s affirmative answer does not entitle Siderius to a judgment against the Bank for wrongful dishon- or. Siderius argues that the Bank’s acceptance of the first and second drafts, which allegedly contained some defects, constituted an amendment of the letter of credit by course of performance or course of dealings. It is not necessary for us to address this argument to dispose of this point; therefore we will assume for the moment, without deciding, that the letter of credit was so amended. No special issue was requested or submitted regarding whether the documents presented by Siderius on February 20, 1975, were the “same or similar” to those presented earlier with the first and second draft. We deem the trial court to have made a finding, in support of its judgment that the documents accompanying the third draft were not the “same or similar” and there is probative evidence in the record to support such a finding. Reliable Life Insurance Company v. Torres, 509 S.W.2d 409, 411 (Tex.Civ.App.—Austin 1974, ref’d n.r.e.).

Special Issue No. 24 refers to the second presentation of the third draft made on March 7, 1975, seven days after the expiration date of the letter of credit. No allegations are made by Siderius nor does the record reflect that any extension of the February 28,1975, expiration date was ever considered or agreed upon by the parties. It is undisputed that Siderius’ second presentation of the third draft was untimely, and an issuer is under no obligation to honor a draft presented by the beneficiary after the expiration date of the letter of credit. Liberty National Bank & Trust Company v. Bank of America National Trust & Savings Association, 218 F.2d 831, 840-1 (10th Cir. 1955). Siderius was not entitled to a judgment on the verdict based upon Special Issues 10, 24, and 25, and point of error no. 1 is overruled.

Siderius asserts a number of points of error which all complain that the trial court erred by refusing to disregard the jury’s verdict or answers to particular special issues and grant Siderius a judgment non obstante veredicto against the Bank for wrongful dishonor of the third draft. Prior to addressing these points of error, a review of the familiar rules regarding points of this nature is appropriate.

A judgment non obstante vere-dicto may be rendered by the trial court only where a directed verdict would have been proper. The trial court was not authorized to grant Siderius a judgment non ob-stante veredicto unless Siderius was, as a matter of law, entitled to judgment. Rule 301, T.R.C.P.; Dittberner v. Bell, 558 S.W.2d 527, 531 (Tex.Civ.App.—Amarillo 1977, ref’d n. r. e.); Wagner v. Betts, 496 S.W.2d 190, 193 (Tex.Civ.App.—Tyler 1973, ref’d n. r. e.). A special issue finding may be disregarded where such finding has no support in the evidence or is immaterial. Eubanks v. Winn, 420 S.W.2d 698, 701 (Tex.Sup.1967); C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191, 194 (Tex.Sup.1966). In reviewing a trial court’s denial of a motion for judgment non obstante veredicto, the evidence must be considered in a light most favorable to the party against whom the motion is sought and every reasonable in-tendment deducible from the evidence is to be indulged in such party’s favor. Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547, 550 (1962). Where a finding has support in the evidence, the trial court may not render a judgment non obstante veredicto, even though the great weight and preponderance of the evidence is to the contrary. Gulf, Colorado & Santa Fe Railway Company v. Deen, 158 Tex. 466, 312 S.W.2d 933, 937, cert. denied, 358 U.S. 874, 79 S.Ct. 111, 3 L.Ed.2d 105 (1958); Newitt v. Camden Drilling Company, 552 S.W.2d 928, 931 (Tex.Civ.App.—Corpus Christi 1977, n. w. h.); American Produce & Vegetable Company v. Campisi’s Italian Restaurant, 533 S.W.2d 380, 383 (Tex.Civ.App.—Tyler 1975, ref’d n. r. e.). A negative finding by a jury in response to a special issue means that the party with the burden of proof failed to carry its burden in proving that fact. C. & R. Transport, Inc. v. Campbell, supra. The trial court cannot disregard a jury’s negative finding and substitute an affirmative finding unless the evidence conclusively establishes such affirmative finding. Bond v. Otis Elevator Company, 388 S.W.2d 681, 685 (Tex.Sup.1965); Brownsville & Matamoros Bridge Company v. Null, 578 S.W.2d 774, 780 (Tex.Civ.App.—Corpus Christi 1979, n. w. h.).

It is Siderius’ position that it complied with the terms of the letter of credit, as amended, and that its action for wrongful dishonor may not be defeated by the Bank’s allegations of fraud. Therefore, concludes Siderius, it was entitled to a judgment non obstante veredicto against the Bank for wrongfully dishonoring Siderius’ third draft. The Bank justifies its dishonor upon two grounds. First, the Bank argues that the documents tendered by Siderius with the third draft did not strictly conform to requirements of the letter of credit, as amended, and second, upon being notified by Wallace that fraudulent documents had been tendered by Siderius, the Bank had the option to honor or dishonor.

The letter of credit, as amended, required that the draft in connection with the Italian shipment be accompanied by a copy of an “on board” bill of lading dated no later than January 15, 1975. Article 18 of the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce (1962 Revision), states:

“Unless otherwise specified in the credit, Bills of Lading must show that the goods are loaded on board.
“Loading on board may be evidenced by an on board Bill of Lading, or by means of a notation to that effect dated and signed or initialled by the carrier or his agent, and the date of this notation shall be regarded as the date of loading on board and shipment.” [Emphasis added.]

The Carriage of Goods by Sea Act of 1936, 46 U.S.C.A. section 1303(7) (1970), states that after the goods are loaded on board, the bill of lading to be issued by the carrier shall be a “shipped” bill of lading. The bill of lading tendered by Siderius with its third draft expressly stated “SHIPPED in apparent good order . . .,” and the only date on the instrument was January 15, 1975. The terms of the letter of credit required that Siderius present a copy of the bill of lading showing that the Italian pipe was loaded on board the vessel no later than January 15, 1975. The bill of lading presented by Siderius represented that the pipe was so loaded, even though the ship had not yet arrived in the Italian port and wasn’t loaded until two weeks later.

In response to Special Issues Nos. 6 — A, 22, and 23, the jury found that Siderius failed to act in good faith in arranging for the shipment of the Italian pipe and in submitting the documents to the Bank in regards to that shipment, that the representations made in the bill of lading presented with the third draft were false, and that Siderius knowingly and intentionally falsely represented the date that the Italian pipe was on board the ship. A defense under section 5-114(b), supra, may present questions of fact, and the trial court properly submitted these issues, having been raised by probative evidence, to the jury. Dynamics Corporation of America v. Citizens and Southern National Bank, supra at 998; Marine Midland Grace Trust Company of New York v. Banco Del Pais, S.A., 261 F.Supp. 884, 890 (S.D.N.Y.1966).

Siderius argues that the Bank was foreclosed from asserting the fraud defense against the action for wrongful dishonor at the time of trial. By notifying Siderius that dishonor was based upon three specific defects (bill of lading subject to a charter party, insurance short, and improper dock delivery order), Siderius contends that the Bank waived all other defenses. Siderius chiefly relies on Barclays Bank D. C. O. v. Mercantile National Bank, 481 F.2d 1224 (5th Cir. 1973), cert. dismissed, 414 U.S. 1139, 94 S.Ct. 888, 39 L.Ed.2d 96 (1974).

The general rule, as applied to letters of credit, is that where an issuer formally places dishonor on a specific ground, the issuer is held to have waived all others. Barclays Bank D. C. O. v. Mercantile National Bank, supra at 1236; Bank of Taiwan, Ltd. v. Union National Bank of Philadelphia, 1 F.2d 65, 66 (3rd Cir. 1924). The rationale of the rule is that the issuer should not be allowed to lull the beneficiary into believing no problem exists with the documentation while there is still time for the beneficiary to cure and then assert the defect as a defense to an action on the draft once it is too late to remedy the defect. Barclays Bank D. C. O. v. Mercantile National Bank, supra at 1237; Dovemuehle, Inc. v. East Bank of Colorado Springs, N. A., 563 P.2d 24, 27 (Colo.Ct.App.1977). However, the application of the rule confining an issuer to its stated grounds for dishonor is limited to situations where the statements have misled the beneficiary who could have cured the defect but relied on the stated grounds to its injury. Flagship Cruises, Ltd. v. New England Merchants National Bank of Boston, 569 F.2d 699, 703 (1st Cir. 1978); Wing On Bank Limited of Hong Kong v. American National Bank and Trust Company of Fort Lauderdale, 457 F.2d 328 (5th Cir. 1972); Old Colony Trust Company v. Lawyers’ Title & Trust Company, supra at 156.

In the instant case, the ship arrived into the port of Ravenna after January 15, 1975. The lack of formal notification by the Bank of any fraud in the bill of lading did not prejudice Siderius or prevent cure on the part of Siderius. No cure was possible; therefore the Bank has not waived its right to assert fraud as a defense under section 5-114(b), supra, to Siderius’ action for wrongful dishonor.

In the alternative, Siderius asserts that the alleged fraud was insufficient to justify dishonor of the third draft. We disagree. The issuer of a documentary letter of credit, dealing in documents and not merchandise, must be able to rely on the accuracy and integrity of the documents presented by the beneficiary. Banco Espanol de Credito v. State Street Bank & Trust Company, 385 F.2d 230, 234 (1st Cir. 1967), cert. denied, 390 U.S. 1013, 88 S.Ct. 1263, 20 L.Ed.2d 163 (1968). In the instant cáse, the fraud related to the documents themselves and not the pipe which was the subject of underlying contract of sale; therefore the fraud was sufficient, upon notification by the customer, to give the Bank the option to honor or dishonor. Section 5-114(b), supra; Shaffer v. Brooklyn Park Garden Apartments, 250 N.W.2d 172, 180 (Minn.1977).

In addition to its defense under section 5-114(b), the Bank contends that it was justified in dishonoring Siderius’ third draft because the documents failed to strictly comply with the terms of the letter of credit. Unless Siderius strictly conformed to the requirements of the letter of credit, the Bank was not obligated to honor the draft. H. Ray Baker, Inc. v. Associated Banking Corporation, supra; Chase Manhattan Bank v. Equibank, supra. The jury, in Special Issue No. 11, refused to find that Siderius had substantially complied with the conditions of the letter of credit, as amended. Siderius failed to carry its burden of proving substantial compliance, let alone strict compliance. Since Siderius failed to conclusively establish that it strictly complied with the requirements of the letter of credit, the trial court correctly refused to disregard the jury’s negative finding.

Siderius was not entitled, as a matter of law, to a judgment against the Bank for wrongful dishonor of the third draft, and the trial court correctly refused to grant Siderius’ motion for judgment non obstante veredicto against the Bank. Siderius’ points of error nos. 2, 4, 6, 8, 9, and 10 are hereby overruled.

Siderius’ points of error nos. 3, 7, 14, 17, 23, 26, and 27 argue that the trial court erred in refusing to disregard the jury’s responses to particular special issues and render judgment for Siderius because such findings were against the great weight and preponderance of the evidence. A trial court may not render a judgment non ob-stante veredicto on factual insufficiency grounds. These points of error are without merit and are hereby overruled.

Siderius’ point of error no. 5 complains that the trial court erred in “denying Siderius’ motion for new trial because construction of the documents presented under a letter of credit is a question of law for the trial court, outside the province of the jury.” In response to Special Issue No. 21, the jury found that the bill of lading tendered by Siderius with the third draft represented that the pipe was loaded on board the vessel for shipment on or before January 15, 1975. We do not believe that the bill of lading was ambiguous; therefore construction of the bill of lading was a question of law for the trial court. The document was a shipped bill of lading which represented that the pipe was loaded on board on or before January 15, 1975. The error, though, on the part of the trial court in submitting this issue, in light of the jury’s answer, was harmless and does not justify reversal. Rule 434, T.R.C.P. Point of error no. 5 is overruled.

Siderius’ eleventh point of error contends that the trial court erred in failing to award damages of $1,719,987.10 to Siderius for the Bank’s wrongful dishonor of the third draft. In light of our disposition of Siderius’ earlier points of error, we need not address this point, and Siderius’ point of error no. 11 is overruled.

CONTRACT OF SALE

In addition to the theory of recovery alleging that the Bank was guilty of wrongful dishonor, Siderius asserted that Wallace was liable for breach of the contract of sale. On February 24, 1975, Wallace notified Sid-erius that it was rejecting the Italian pipe because the shipment of such pipe failed to conform to the contract term regarding the shipping date. Wallace argues that time was of the essence and that Siderius’ failure to have the Italian pipe loaded on board the vessel on or before January 15, 1975, was a material breach of the contract which justified Wallace’s rejection. The trial court submitted the issue to the jury, and the jury found that Wallace and Siderius intended for time to be of the essence in their agreement.

Siderius replies that the trial court erred in denying Siderius’ motion for judgment non obstante veredicto because, as a matter of law, time was not of the essence; whether time was of the essence was a question of law for the court, outside the province of the jury; even if time was of the essence, it was waived by Wallace as a matter of law; and, as' a matter of law, Siderius’ performance did not amount to a material delay. We conclude that the trial court correctly overruled Siderius’ motion for judgment non obstante veredicto.

The general rule is that time is not of the essence in a contract unless the parties expressly make it so, or there is something in the nature or purpose of the contract and the circumstances surrounding it wnich make it apparent that the parties intended that time be of the essence. Laredo Hides Company, Inc. v. H & H Meat Products Company, Inc., 513 S.W.2d 210, 216 (Tex.Civ.App.—Corpus Christi 1974, ref’d n. r. e.); McKnight v. Renfro, 371 S.W.2d 740, 745 (Tex.Civ.App.—Dallas 1963, ref’d n. r. e.). Whether or not time is of the essence is a question of fact for the jury unless the contract expressly makes time of the essence, or the subject matter of the contract is such that the court may take judicial knowledge of the fact that the parties obviously intended for time to be of the essence. Lockhart-Hutchens v. Bergstrom, 434 S.W.2d 453, 456 (Tex.Civ.App.—Austin 1968, ref’d n. r. e.); Shields v. Dunlap, 174 S.W.2d 642, 645 (Tex.Civ.App.—Eastland 1943, n. w. h.); Taylor Milling Company v. American Bag Company, 230 S.W. 782, 784 (Tex.Civ.App.—Austin 1921, n. w. h.). When time is found to be of the essence, performance by a party at or within the time specified is essential to his right to require performance by the other party. McKnight v. Renfro, supra; Von Harten & Clark, Inc. v. Nevels, 234 S.W. 676, 679 (Tex.Civ.App.—Amarillo 1921, n. w. h.).

In the instant ease, Wallace and Siderius did not expressly stipulate that time was of the essence in performance of their agreement. The purchase order issued by Wallace on August 12, 1974, described the shipments as “C.I.F. Duty Paid For Direct Discharge As Outlined In The Sales Order And Letter Of Credit.” Both the purchase order and Siderius’ sales confirmation, issued on August 21, 1974, anticipated the pipe to leave the mills in October, 1974, for arrival in the U.S.A. in November, 1974. The letter of credit, as previously discussed, required the pipe to be loaded on board the vessels no later than November 30,1974. It is undisputed that the original shipping deadline, as agreed upon in the purchase order and sales confirmation, was extended by a subsequent agreement of the parties, evidenced by the amendment to the letter of credit. The agreement, as amended, required the Italian shipment of pipe to be loaded on board ship no later than January 15, 1975. There is evidence in the record that Siderius offered Wallace a $75,000.00 reduction of the price of the Italian pipe in return for a further extension of the shipping date to January 31, 1975. Wallace refused to agree to any further extension. The record also reflects that during the period of time here in question, the prices of steel products and pipe underwent some dramatic fluctuations.

The fact that parties to a contract have entered into a new agreement extending the time for performance of the contract is evidence that the parties considered time to be material. Garrison v. Cooke, 96 Tex. 228, 72 S.W. 54, 56 (1903); 17A C.J.S., Contracts, section 504(1), p. 790. Where the subject matter of a contract is of a fluctuating or speculative value it is often held that the parties have intended for time to be of the essence. United Irrigation Company v. Carson Petroleum Company, 283 S.W. 692 (Tex.Civ.App.—San Antonio 1926, dism’d.); Von Harten & Clark, Inc. v. Nevels, supra. Upon reviewing the evidence in light of the rules previously discussed in this opinion, we conclude that there was evidence to support the jury’s finding that Wallace and Siderius intended that time be of the essence in their agreement. The trial court properly refused to disregard the jury’s finding.

On appeal, Siderius has claimed that Wallace waived time of the essence as a matter of law. No special issue regarding waiver of time is of the essence was submitted to the jury, and the record fails to show that any such issue was requested by Siderius. Waiver is a question of intention and is a question of fact where it is a matter of inference. Ford v. Culbertson, 158 Tex. 124, 308 S.W.2d 855, 865 (1958); Smith v. Hues, 540 S.W.2d 485, 489 (Tex.Civ.App.—Houston [14th Dist.] 1976, ref’d n. r. e.). The evidence fails to conclusively establish that Wallace waived time is of the essence, and Siderius has therefore waived this claim. Rule 279, T.R.C.P.

As a result of Siderius’ failure to perform within the time specified by the parties’ agreement, Siderius was not entitled to recover against Wallace for rejecting the nonconforming shipment. Siderius’ points of error nos. 18,20, 21, 22, and 24 are hereby overruled.

In light of our disposition of the points of error above, we need not address Siderius’ remaining points of error. We have reviewed appellant’s points of error and consider them to be without merit. The judgment of the trial court is affirmed.

      . The pertinent portions of letters of amendment nos. 1 ■ 3 provided as follows:
      Letter of Amendment No. 1
      “DELETE: Customs Invoice
      DELETE: Negotiable Insurance Certificate of Policy covering Marine and War risks including All Risk— Warehouse to Warehouse for 110% of full invoice value.
      ADD: Copy of negotiable Insurance Certificate of Policy covering Marine and War risks including All Risk — Warehouse to Warehouse for 110% of full invoice value now acceptable.
      ADD: Separate Bill of Lading for each size must be presented. Copy of non-negotiable Bill of Lading now acceptable.”
      Letter of Amendment No. 2
      “The reference ‘To the order of Texas Commerce Bank National Association’ is hereby deleted on the requirement for copy of non-negotiable Bill of Lading.”
      Letter of Amendment No. 3
      “The requirements for the Bill of Lading to show ‘Freight Prepaid’ and Notify: W. A. Sammis, Wallace Company, Inc., Box 2597, Houston, Texas 77001, Telephone Number 713-675-2661 are hereby deleted.”

      . Letter of Amendment No. 4 provided in part that:
      “1. On Item Number I only, Bills of Ladings must be dated not later than January 15, 1975.
      “2. Drafts must be negotiated and presented to us on or before February 28, 1975, on Item Number I only.
      “3. We hereby add this to the description of the letter of credit:
      1-65/8" ‘to be manufactured in Italy’
      2-103/*" ‘to be manufactured in Israel’
      3-123A" ‘to be manufactured in Israel’ ”

      . Letter of Amendment No. 5 provided in part that:
      “Shipping date on Items 2 and 3 is hereby extended to December 15, 1974.”

      . Subsection (a) of section 5-114, Tex.Bus. & Com.Code Ann. (Tex.U.C.C.1968), provides in part:
      “(a) An issuer must honor a draft or demand for payment which complies with the terms of the relevant credit regardless of whether the goods or documents conform to the underlying contract for sale or other contract between the customer and the beneficiary.” [Emphasis added.]

      . Subsection (b) of section 5-114, Tex.Bus. & Com.Code Ann. (Tex.U.C.C.1968), provides in part:
      “(b) Unless otherwise agreed when documents appear on their face to comply with the terms of a credit but a required document . is forged or fraudulent or there is fraud in the transaction
      (1) the issuer must honor the draft or demand for payment if honor is demanded by a . holder of the draft or demand which has taken the draft or demand under the credit and under circumstances which would make it a holder in due course (Section 3.302) . . . ; and
      (2) in all other cases as against its customer, an issuer acting in good faith may honor the draft or demand for payment despite notification from the customer of fraud, forgery, or other defect not apparent on the face of the documents but a court of appropriate jurisdiction may enjoin such honor.” [Emphasis added.]


source: Caselaw Access Project

author: McKAY, Justice.

license: Public Domain

text:
    TRAVIS BUILDERS, INC., Appellant, v. Buddy GRAVES, Appellee.
    No. 1254.
    Court of Civil Appeals of Texas, Tyler.
    May 31, 1979.

      Thomas M. Booker, Salmanson, Smith & Mouer, Austin, for appellant.
    Law Offices of James H. Arnold, Jr., Austin, for appellee.
   McKAY, Justice.

This appeal is a petition for writ of error to set aside a default judgment rendered against appellant.

Appellee brought suit against Travis Builders, Inc. (alleging it to be a Texas corporation) and Earl Wiley, alleging a constitutional mechanics’ and materialmen’s lien for plumbing materials and labor furnished on a new residence building, with an alternative plea for judgment on a contract. Alias citation was issued for Travis Builders, Inc., appellant, directing that service be made upon appellant by serving the Secretary of State, and the officer’s return shows that appellant was served “by serving the Secretary of State, Coco Casarez, Secretary” on January 24, 1978. Default judgment was rendered for appellee on March 8, 1978, for $1,245.49 plus $500.00 attorney’s fee, and the constitutional mechanics’ and materialmen’s lien was ordered foreclosed.

The original citation in the record is endorsed on the officer’s return “Return by order of plaintiff” and dated “1-19-78." There is also in the record an affidavit by Larry G. Morgan, Deputy Constable, stating that citation for service on appellant was issued on December 28,1977, and delivered to him on December 29, 1977, and further stating that he had personal knowledge that Earl Wiley, registered agent for service of process of appellant, no longer was present at 421 Eagle Street, Lakeway, Texas, and by use of reasonable diligence he had been unable to locate or find him “at that registered office.” The affidavit was dated January 19, 1978.

Apparently based upon the constable’s affidavit an alias citation was issued for appellant which directed that it be served on appellant by serving the Secretary of State. The officer’s return on this citation, dated January 24, 1978, reads “by delivering to the within named Travis Builders, Inc., by serving the Secretary of State, Coco Casa-rez, Secretary . . ..”

There is also in the record a certificate by the Secretary of State stating that two copies of the citation and petition were served upon the Secretary of State on January 25, 1978.

“by delivering to and leaving said copies with John F. Pettit, the Assistant Secretary of State, and that a copy was forwarded on January 25, 1978, by Certified Mail, return receipt requested, to Travis Builders, Inc., ATTN: Mr. J. Earl Wiley, Registered Agent, 421 Eagle Street, Lakeway, Travis County, Texas, in accordance with the provisions of Article 2.11, Texas Business Corporation Act, Vernon’s Annotated Civil Statutes of Texas. The citation was returned to this office on January 31, 1978, bearing the notation ‘moved, not forwardable.’ ”

Appellant brings six points of error contending that the trial court erred in rendering default judgment against it because (1) appellee’s pleadings fail to allege an address of the registered office of appellant corporation; (2) appellee’s pleadings fail to allege that appellant’s registered agent could not with reasonable diligence be found at the registered office; (3) the return of the original citation fails to show on its face the diligence used by the officer who attempted to serve it; (4) the officer’s affidavit in support of service of citation upon the Secretary of State is conclusory and fails to allege facts from which the conclusion of the officer’s use of reasonable diligence to serve the citation could be inferred; (5) the record fails to affirmatively show that substitute citation was served on a person authorized by statute to accept such service of citation; and (6) the record fails to affirmatively show service of duplicate copies of the citation with petition attached.

Since this appeal by writ of error constitutes a direct attack on the default judgment, the question presented is whether there is a lack of jurisdiction apparent on the face of the record which would invalidate the judgment of the trial court. McKanna v. Edgar, 388 S.W.2d 927, 928 (Tex.1965). Under this direct attack the judgment must be reversed unless jurisdiction does so appear on the face of the record. Hanover Modular Homes of Taft, Inc. v. Corpus Christi Bank & Trust, 476 S.W.2d 97, 99 (Tex.Civ.App.-Corpus Christi 1972, no writ).

It is essential that it be affirmatively shown in the record that there was a strict compliance with the provided manner and mode of service, and it must be affirmatively established that the person served was in fact the agent for service of process before a default judgment can be sustained. Anglo Mexicana de Seguros, S.A. v. Elizondo, 405 S.W.2d 722, 725 (Tex.Civ.App.-Corpus Christi 1966, writ ref’d n. r. e.); W. A. Green Co. v. Cope, 466 S.W.2d 860, 861 (Tex.Civ.App.-Dallas 1971, no writ); Hanover Modular Homes of Taft, Inc. v. Corpus Christi Bank & Trust, supra; Charles Cohen, Inc. v. Adams, 516 S.W.2d 464, 465 (Tex.Civ.App.-Tyler 1974, no writ).

As a rule presumptions are made in support of a judgment (including presumptions of due service of citation when the judgment so recites), but no such presumptions are made in a direct attack upon a default judgment. McKanna v. Edgar, supra, at 929.

Article 2.11, Section B, provides that when a registered agent of a corporation “cannot with reasonable diligence be found at the registered office, then the Secretary of State shall be an agent of such corporation upon whom any such process, notice, or demand may be served,” and that service on the Secretary of State “shall be made by delivering to and leaving with him, or with the Assistant Secretary of State, or with any clerk having charge of the corporation department of his office, duplicate copies of such process, notice or demand. . . . ”

The Secretary of State, under the provisions of Art. 2.11, Section B, is required to forward such process by registered mail to the registered office of the resident corporation, but the fact that such article requires the Secretary of State to perform such duties will not support a presumption that a specified person is the registered agent or that a specified address is the registered office where a direct attack is made on a default judgment; and in order for the method of service used here to be in strict compliance with Art. 2.11, the record must show on its face that reasonable diligence was exercised in seeking service upon the president, vice-president or the registered agent of appellant at its registered office. Charles Cohen, Inc. v. Adams, supra, at p. 466.

The original petition of appellee alleges that J. Earl Wiley is the registered agent of appellant, but there is no allegation that 421 Eagle Street, Lakeway, Travis County, Texas, is the registered office of appellant. Charles Cohen, Inc. v. Adams, supra, at p. 466. The affidavit by the Deputy Constable that he used “reasonable diligence” to locate Wiley at the registered office of appellant does not include any statement as to the actual diligence used. Rule 107, T.R.C.P.; see Smith v. Texas Discount Co., 408 S.W.2d 804, 805 (Tex.Civ. App.-Austin 1966, no writ). The return on the citation served upon the Secretary of State fails to show that it was served upon the Secretary of State, the Assistant Secretary of State, or a clerk having charge of the corporation department of his office; instead, the return states such citation was served on “Coco Casarez, Secretary.” Art. 2.11, Section B, supra.

The certificate of the Secretary of State certifies that the citation was delivered to John F. Pettit, Assistant Secretary of State, which certification is in conflict with the return on the citation for service upon the Secretary of State.

“Rules relating to service of process are mandatory and a default judgment based upon citation and service not complying therewith, is void, if the defect is apparent on the face of the record.” Lamesa Rural High School District v. Speck, 253 S.W.2d 315, 316 (Tex.Civ.App.-Eastland 1952, writ ref’d n. r. e.)

See 4 McDonald, Texas Civil Practice, Sec. 17.23.2; 46 Tex.Jur.2d Process and Notices Sec. 96.

The record in the case at bar will not support a default judgment. David A. Carl Enterprises, Inc. v. Crow-Shutt # 14, 553 S.W.2d 118, 120-21 (Tex.Civ.App.-Houston [1st Dist.] 1977, no writ).

Judgment of the trial court is reversed, and the cause is remanded.


author: MOORE, Justice.

text:
    Sara D. FOSTER, Appellant, v. Jeffrey FOSTER, Appellee.
    No. 1256.
    Court of Civil Appeals of Texas, Tyler.
    May 31, 1979.
    Rehearing Denied June 28, 1979.
    Robert S. Morris, Kevin Thomas O’Han-lon, Austin, for appellant.
    James E. Farris, Coffee, Goldstone & Bradshaw, Austin, for appellee.
   MOORE, Justice.

Appellant, Sara D. Foster, brought this divorce action against appellee, Jeffrey Foster. After a trial before the court, a divorce was granted and Mrs. Foster was appointed managing conservator of the parties’ three minor children. The judgment provided for a division of the community property, including assets and liabilities, and further awarded child support to Mrs. Foster in the amount of $250.00 per month, per child, until January 1982, and $350.00 per month per child thereafter until each child reached the age of eighteen. Mrs. Foster, not being satisfied with the division of the community property, perfected this appeal.

We affirm.

The record is before us only by way of a transcript and statement of facts. There are no findings of fact or conclusions of law.

The evidence shows that the parties were married on August 10, 1971, and continued to live together until August 14, 1977. Three children were born to or adopted by the parties whose ages ranged from three to six years of age at the time of the divorce. Dr. Foster was an endodontist and during the time of the marriage built up a dental practice with an adjusted gross income of approximately $78,000.00 per year. Mrs. Foster’s education consisted of a bachelor’s degree in education with sixty hours of graduate work in counseling and experimental psychology. In the early part of the marriage she taught school earning approximately $9,200.00 per year. At the time of the trial she testified that she had applied for a job paying $10,000.00 per year but had not yet been employed.

The evidence shows that at the time of the divorce, the community estate consisted of property of the value of $138,901.00, with community liabilities totaling $149,493.00, leaving the community estate with a negative net worth of $10,592.00. Neither party possessed separate property of any consequence.

The only community asset having any substantial equity value was the community homestead. According to the evidence the homestead had an estimated value of $120,-000.00 to $145,000.00 which was burdened by a purchase-money lien in the amount of $84,602.00. In dividing the community estate, the trial court awarded the homestead to Dr. Foster as his separate property. The judgment recites that Dr. Foster was awarded:

“The residence at 7502 Valburn, Austin, Texas, subject to the orders hereinbelow for respondent to sell such residence and as specified herein to apply the proceeds to discharge those specific community debts which are in an amount found by the court to be approximately equal to the fair market value of the residence.”

Under the terms of the judgment, Dr. Foster was ordered to sell the homestead and out of the net proceeds was ordered to discharge the purchase-money lien existing against it. He was also ordered to pay the following unsecured community debts out of the net proceeds of the sale: (1) the balance due City National Bank in the amount of $10,133.00; (2) the sum of $1,000.00 to attorneys representing each party; (3) the balance due and owing Louis Shanks for furniture in the amount of $5,450.00; (4) the balance due and owing the Dallas Teachers Credit Union in the amount of $10,746.00; and (5) the balance due and owing the Navy Credit Union in the amount of $5,500.00.

Under her first point of error, Mrs. Foster complains of that portion of the judgment ordering Dr. Foster to sell the homestead and to apply the proceeds to discharge the unsecured community debts. She contends that the order requiring the unsecured debts paid out of the proceeds from the homestead denied her right to the statutory protection afforded such proceeds from the claims of unsecured creditors as provided for in the Texas Constitution, art. 16, sec. 50. Relying on the holding in Delaney v. Delaney, she argues that the court should have awarded her one-half of the proceeds of the sale after the purchase money debt had been extinguished and that the order of the court ordering that the unsecured debts be paid out of the proceeds had the effect of denying her her right to her homestead exemption as mandated by the Texas Constitution, supra. For reasons to be explained later, we have concluded that any complaint she may have had in this regard has now become moot and for that reason a determination of this point is unnecessary.

The record reveals that after the appeal in this case had been perfected and was pending in this court, the parties caused to be filed an instrument styled “Supplemental Fact Statement.” The instrument which was signed by the attorneys for both parties recites: (1) that appellant did not file a supersedeas bond to stay the sale of the homestead property; (2) that the husband sold the homestead for the sum of $112,000.00 and discharged the purchase money lien against same; (3) that appellant vacated the homestead; (4) that out of the net proceeds of the sale in the amount of $27,812.74 the husband paid the unsecured debts as ordered by the court.

In view of what has occurred since the entry of the judgment and the order appealed from, it is now impossible for this court to grant effective relief. The object of the order has been attained. The order has been executed and its force spent. There is no redress which this court can give appellant even if we concluded that the order requiring the payment of the unsecured debts out of the proceeds of the homestead deprived her of her statutory homestead exemption. The purchaser is in possession of the mortgaged premises and the proceeds have been disbursed in accordance with the order of the court. There is no way that either this court or the trial court could at this late date retrieve the proceeds from the sale of the homestead even if we concluded she was entitled to the same. She could have preserved the point by filing a supersedeas bond but she did not choose to do so. Consequently, under the facts before us, any question of whether the trial court erred in ordering the unsecured debts paid out of the proceeds of the homestead has now become moot. Brown v. Fleming, 212 S.W. 483, 484 (Tex.Com.App.1919, judgment adopted); Shaw v. Allied Finance Company, 319 S.W.2d 820, 822 (Tex.Civ.App.—Fort Worth 1958, no writ history); 5 C.J.S. Appeal and Error § 1362, p. 447. The appellate court will not proceed to a determination when its judgment would be wholly ineffectual for want of a subject matter on which it could operate. South Padre, Inc. v. Texas Commerce Bank National Assoc., 538 S.W.2d 475, 479 (Tex.Civ.App.—Corpus Christi 1976, no writ history).

Appellant contends by her second point of error that the division of the property made by the trial court constitutes an abuse of discretion, because in making the division the court failed to consider the disparity of earning capacity of the parties. In our view the contention is without merit and therefore the point is overruled.

The Texas Family Code Ann. sec. 3.63 (Vernon’s 1975) requires the court to “order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party . . ..” The statute does not require the division to be equal. Rather it suggests that the court should consider all of the circumstances of the parties. It has been held that the future needs of the wife and her lack of earning capacity are proper factors to be considered by the court in dividing the property. Pickitt v. Pickitt, 401 S.W.2d 846, 848 (Tex.Civ.App.—Tyler 1966, no writ history); Roberson v. Roberson, 420 S.W.2d 495, 503 (Tex.Civ.App.—Houston [14th Dist.] 1967, writ ref’d n. r. e.); Goren v. Goren, 531 S.W.2d 897, 899-900 (Tex.Civ.App.—Houston [1st Dist.] 1975, writ dism’d). The cases which have applied the foregoing rule have usually been cases in which the parties have accumulated a community estate having a substantial net worth. In the instant case, the trial court was confronted with the task of attempting to divide a community estate with a negative net worth.

Since the record is before us without findings of fact or conclusions of law, we are required to sustain the judgment if it can be upheld on any legal theory finding support in the evidence. Seaman v. Seaman, 425 S.W.2d 339, 341 (Tex.1968); Lassiter v. Bliss, 559 S.W.2d 353, 358 (Tex.1978).

The record shows that prior to trial Dr. Foster employed Allen Byrd, an accountant, for the purpose of making an inventory and appraisement of the community estate. The inventory and appraisement prepared by him was offered in evidence. According to the inventory and appraisement, the community assets had a total value of $138,-901.00 and the community liabilities amounted to $149,493.00, thus leaving the estate with a negative net worth of $10,-592.00.

In dividing the community property, the trial court awarded Mrs. Foster the following items: (1) a 1976 Porsche automobile, having a value of approximately $10,000.00; (2) household furniture and appliances having a value of approximately $12,000.00; (3) personal effects having a value of approximately $6,000.00; (4) Teacher’s Retirement Fund of the value of $640.00; and (5) a small checking account. Although the record shows that the Porsche automobile and the furniture were subject to an indebtedness totaling approximately $16,000.00, the husband was ordered to pay such indebtedness out of the proceeds from the sale of the homestead and was required to save her harmless from any of such debts. Thus, Mrs. Foster received community property having a net value of $28,640.00.

Dr. Foster was awarded the following community property: (1) the homestead which according to the evidence had a value of between $120,000.00 and $145,000.00, which the evidence shows was burdened with a purchase-money lien in the amount of $84,602.00; (2) all shares of stock in Austex, Inc., which the evidence shows had a negative net worth of $13,528.00; (3) all assets of his dental practice which the evidence shows had a negative net worth of $18,951.00; (4) a 1977 Good-Times Van which the evidence shows had a value of $10,000.00 which was burdened by a purchase-money lien of approximately its value; (5) a lake-shore lot which the evidence shows was subject to an undisclosed amount of mortgage indebtedness; (6) a coin collection of the value of $500.00; and (7) various items of personal property and clothing having a value of approximately $7,500.00. Under the terms of the judgment, Dr. Foster was required to assume the indebtedness on all property awarded him except the homestead which he was ordered to sell.

Appellant argues that the court abused its discretion in dividing the community property because the total amount of the community assets awarded to the husband greatly exceeded the amount awarded to her. While this may be true, the reason for the discrepancy lies in the fact that the court awarded the husband the community homestead. However, the homestead was of no value to the husband since the court ordered him to sell the same and apply the proceeds to the payment of the community debts. Consequently, the fact that he received the homestead should not be considered in determining whether the court’s division was fair and equitable. Excluding the homestead, the share of the estate received by the husband had a negative net worth. For this reason, we cannot agree with appellant’s contention that the court failed to consider her future needs and the disparity of earning capacities in dividing the property. While the earning capability of Dr. Foster greatly exceeded that of Mrs. Foster, the community assets available to the court to provide for her future need were extremely limited. Confronted with a difficult situation, it occurs to us that the trial court did all that it could to award her at least some property for her future needs which would be free from the claims of the creditors.

After a thorough review of the record, we are of the opinion that there is ample evidence to support the trial court’s division of the community assets and liabilities and that no abuse of discretion was shown.

Accordingly, the judgment of the trial court is affirmed.

      . “The homestead of the family . . shall be, and is hereby protected from forced sale, for the payment of all debts except for the purchase money thereof, or a part of such purchase money, the taxes due thereon, or for work and material used in constructing improvements thereon .

      . 562 S.W.2d 494 (Tex.Civ.App.—Houston [14th Dist.] 1978, writ dism’d).


author: CARVER, Justice.

text:
    In re James Drew MILLER.
    No. 19969.
    Court of Civil Appeals of Texas, Dallas.
    June 1, 1979.
    Rehearing Denied June 26, 1979.
    James F. Newth, Dallas, for appellant.
    G. Robert Wileman, Dallas, for appellee.
    Before AKIN, ROBERTSON and CARVER, JJ.
   CARVER, Justice.

Relator seeks a writ of habeas corpus. The principal issue is whether a Texas court in which an action is filed under the Uniform Reciprocal Enforcement of Support Act (URESA) has continuing jurisdiction to the exclusion of another Texas court in which a second URESA suit is filed. We hold that the first Texas court entertaining a URESA suit has continuing and exclusive jurisdiction and that an order of contempt and commitment of relator by a second Texas court was void. Accordingly, relator is discharged.

Relator and his ex-wife were divorced in 1966 in Oklahoma with relator’s support obligation being fixed at $62.50 per month for each of two minor children. Subsequently, relator moved to Dallas County, Texas, and his ex-wife and children moved to Colorado. In 1977, relator’s ex-wife initiated a URESA proceeding in the 303rd District Court in Dallas County against relator seeking accrued arrearages under the Oklahoma decree plus an increase in child support. A final agreed judgment was entered by the 303rd District Court in June of 1977, requiring relator to pay $62.50 per month for each minor child (the same as the Oklahoma judgment), but the judgment was silent as to the claim of arrearages and as to an increase in support. Eight months later in March of 1978, relator’s ex-wife initiated a second URESA suit in the 254th District Court of Dallas County seeking the same arrearages plus an increase in support.

Relator filed a plea to the jurisdiction of the 254th Court contending that the 303rd Court had continuing and exclusive jurisdiction and requesting that the case be transferred to the 303rd Court. Relator’s plea was denied even though the prior judgment and proceedings were introduced into evidence. The 254th Court found relator in contempt and ordered relator to jail until the arrearages accrued under the Oklahoma decree, attorney’s fees in this proceeding, and costs were paid.

Relator’s attack on the trial court’s judgment is collateral and may be sustained only if the judgment is void. Ex parte Conger, 163 Tex. 505, 357 S.W.2d 740, 743 (1962). Relator argues that the 303rd Court had continuing jurisdiction to the exclusion of all other courts and thus, the order is void. We agree. Tex.Fam.Code Ann. § 21.24 (Vernon 1975) provides that “if the child for whom support is sought is the subject of a suit affecting the parent-child relationship, the court having continuing jurisdiction under section 11.05 of this code has exclusive jurisdiction of a suit under this chapter.” Section 11.05 grants continuing jurisdiction to a court acquiring jurisdiction of a suit affecting the parent-child relationship. Since section 11.01(5) states that suits concerning the support of a child are suits affecting the parent-child relationship, the suit filed in the 303rd Court had continuing jurisdiction to the exclusion of all other courts.

Respondent argues, however, that the 303rd Court does not have continuing jurisdiction. She contends that Tex.Fam.Code Ann. § 21.44 (Vernon 1975) controls this case. This section provides: “Participation in any proceedings under this chapter shall not confer upon any court jurisdiction of any of the parties thereto in any other proceedings.” Since the suit in the 303rd Court was a URESA action filed under sections 21.63 and 21.64 of the Family Code respondent contends that no continuing jurisdiction attaches. To determine this issue, we must look to the legislative intent behind the chapters of the Family Code that concern the parent-child relationship.

Recognizing the need to commit the decision of all controversies that directly affect the welfare of particular children to a single court, the legislature enacted section 11.05 providing for continuing jurisdiction. Before the passage of section 11.05, conflicts between courts of parallel jurisdiction had led to multiple suits concerning the proper disposition of issues affecting children. Consolidation of the various suits into one suit affecting the parent-child relationship and investing only one court with power to rule on issues affecting the child provides an effective way to give courts access to more information and leaves them wide latitude in dealing with the best interests of the child. Smith, Commentary on Title 2, Texas Family Code Symposium Supplement, 8 Tex.Tech L.Rev. 23 (1976). Clearly, the legislature intended to avoid situations such as the one in this case. Sections 21.02 and 21.06 state the purpose of Chapter 21 is to make uniform the laws respecting the duties of support and that the chapter should be interpreted and construed to effectuate this purpose. Both the legislative intent as set out in the code itself and the rules of statutory construction support our holding that the court in which a URESA action is first filed obtains continuing jurisdiction to the exclusion of all other courts. We further conclude that Tex.Fam.Code Ann. § 21.44 (Vernon 1975) was designed to allow URESA support proceedings to be free of other issues in the “parent-child relationship,” [defined in § 11.01(5)], and section 21.44 cannot be read to compel or permit successive URESA suits to be free of the legislative imposition of “continuing and exclusive" jurisdiction provided in section 11.05.

Accordingly, the writ of habeas corpus is granted, the judgment of contempt and order of commitment is vacated, and relator is discharged.


author: ROBERTSON, Justice.

text:
    Burton GILLILAND and Wesley Gilliland d/b/a the Weston Company, Appellants, v. MANHATTAN LAUNDRY AND DRY CLEANING CO., INC., Appellee.
    No. 19974.
    Court of Civil Appeals of Texas, Dallas.
    June 4, 1979.

      Gary Gilliland, William C. Odeneal, Jr., Odeneal & Odeneal, Dallas, for appellants.
    George McElreath, Marvin G. Shwiff, Shwiff, Caraway & Emerson, Dallas, for appellee.
    Before AKIN, ROBERTSON and CARVER, JJ.
   ROBERTSON, Justice.

This is an appeal from a temporary injunction enjoining appellants/landlords, Burton Gilliland and Wesley Gilliland d/b/a The Weston Company, from evicting appel-lee/tenant, Manháttan Laundry and Dry Cleaning Co., Inc., from a building appellee leases from appellants. The trial court in granting the temporary injunction found that appellee would suffer irreparable harm if forced to vacate and that it lacked an adequate remedy at law. We hold that the trial court did not abuse its discretion in granting this temporary injunction and, accordingly, we affirm.

Appellee is the assignee of a lease on the premises of 3101 Knox Street in Dallas, Texas. A dispute arose shortly after the assignment of the lease and appellants brought a forcible entry and detainer action in the justice court. The justice of the peace granted a judgment for appellants and appellee appealed to the county court. That appeal resulted in a take-nothing judgment against appellants. Appellee then tendered the January rent by mail on January 9,1979. Appellant received this on January 11, but refused to accept it, claiming that it was due on January 10. Appel-lee has continued to tender the rental, and appellant has refused to accept these payments. Appellee then brought this suit to enjoin appellant from taking any action forcing it to surrender the premises and also sought declaratory relief regarding the validity of the lease.

Appellate review of an order granting or denying a temporary injunction is strictly limited to a determination of whether there has been a clear abuse of discretion by the trial court in granting or denying the interlocutory order. Davis v. Huey, 571 S.W.2d 859, 862 (Tex.1978). The issuance of a temporary injunction is not an abuse of discretion if the evidence tends to sustain the cause of action as alleged. Oil Field Haulers Assoc. v. Railroad Commission, 381 S.W.2d 183 (Tex.1964).

Appellant has the burden to show that the trial court clearly abused its discretion. This he has failed to do. Appellee’s president testified that a lease existed between the parties, a copy of which was admitted into evidence, and that he had fully complied with its terms. He also testified that if he were forced to vacate, his business would be disrupted, he would suffer a loss of profits and that this loss could not be adequately forecast. Thus, evidence exists to support appellee’s claims of a probable right and a probable injury. Although testimony and evidence were presented in rebuttal, we cannot substitute our judgment for that of the trial court.

Finally, we note that pursuant to our local rules this case was advanced on our docket. Two days before submission, the parties filed an agreed motion for an extension of time in which to file briefs and to delay submission. We denied this motion since the very purpose for allowing appeals of temporary injunctions is to grant relief, if warranted, as soon as possible to the aggrieved party. Had we granted this motion a vacancy would have occurred in our docket which could not have been filled thereby slowing the judicial process. Furthermore, appellants’ counsel has advised us that no hearing on the merits in the trial court has been requested or obtained. As we have observed in Tephguard Corp. v. Great North American Industries, Inc., 571 S.W.2d 554 (Tex.Civ.App.—Dallas 1978, no writ) and Charter Medical Corp. v. Miller, 547 S.W.2d 77 (Tex.Civ.App.—Dallas 1977, no writ), this appeal appears to delay rather than to dispatch the legal business of the courts. Presumably, the trial judge would have given this case a preferred setting for trial on the merits at the request of either party. As we stated in Charter Medical:

We see no reason why the case could not have been prosecuted to final judgment in less time than that required by this interlocutory appeal which decides nothing except whether the status quo should be preserved pending trial on the merits. The most expeditious way of obviating the hardship of an unfavorable preliminary order is to try the case and thus secure a hearing in which both facts and law may be fully developed and then both trial and appellate courts can render judgment finally disposing of the controversy. 547 S.W.2d at 79.

Affirmed.


text:
    Marion Vernon PETTIT and Margaret J. Pettit, Appellants, v. Wayne ENGLAND, Appellee.
    No. 19826.
    Court of Civil Appeals of Texas, Dallas.
    June 4, 1979.

      Randall H. Nunn, Dallas, for appellants.
    Aalon W. Ferguson, Dallas, for appellee.
    Before AKIN, ROBERTSON and CARVER, JJ.
   CARVER, Justice.

This is a venue appeal. Pettit offered no proof at the venue hearing but relied solely on his petition alleging a claim to relief under the Deceptive Trade Practices-Consumer Protection Act, Tex.Bus. & Com.Code Ann. § 17.50 (Vernon Supp. 1978-1979) and alleging that the defendant England had done business in the county of suit thus entitling Pettit to special venue under section 17.56 of the act. The trial court sustained England’s plea of privilege. We affirm on the ground that although section 17.56 of the act as amended in 1977 does not require proof of a cause of action, proof must be made that the defendant resided in the county of suit, has his principal place of business in the county of suit, or has done business in the county of suit.

The special venue relied upon by Pettit is contained in section 17.56 of the act: “An action brought which alleges a claim to relief under Section 17.50 of this subchapter may be commenced in the county in which the person against whom the suit is brought resides, has his principal place of business, or has done business.” Before amendment in 1977, section 17.56 read: “An action brought under Section 17.50 of this subchapter may be commenced in the county in which the person against whom the suit is brought resides, has his principal place of business, or is doing business.” Under this former provision, our courts have held that the plaintiff had the burden to plead and prove a cause of action under section 17.50 as well as the burden to plead and prove that the county of suit was the defendant’s county of residence, the defendant’s principal place of business or that the defendant “is doing business” in such county. Joc Oil Aromatics v. Commercial Fuel Oil Co., 564 S.W.2d 490 (Tex.Civ.App.-Houston [1st Dist.] 1978, no writ); Hanssard v. Ledbetter, 561 S.W.2d 34 (Tex.Civ.App.-Waco, 1978, no writ); Doyle v. Grady, 543 S.W.2d 893 (Tex.Civ.App.-Texarkana 1976, no writ); Hudson & Hudson Realtors v. Savage, 545 S.W.2d 863 (Tex.Civ.App.-Tyler 1976, no writ). The current section 17.56, adopted subsequent to these cases, clearly shows the legislative intent that allegation, as opposed to proof, of the cause of action would be sufficient for venue purposes. However, with relation to the residence or business of defendant, the amendment only substitutes the words “has done” for “is doing” in the last phrase of the section. We do not find any legislative intent to change prior case law on proof of residence or business location by this change of grammatical tense. The defendant’s valuable right to be sued in the county of his residence requires that the application of a venue exception depend upon the existence, rather than mere allegation, of venue facts and it is the plaintiff’s burden to establish those venue facts. 1 McDonald, Texas Civil Practice, § 4.55 (1965); Meredith v. McClendon, 130 Tex. 527, 111 S.W.2d 1062 (1938). In addition, the legislature is presumed to have considered the judicial construction of section 17.56 prior to the amendment and, by amending only part of the statute, left intact the prior case law requiring proof of venue facts. Walker v. Thetford, 418 S.W.2d 276, 292 (Tex.Civ.App.-Austin 1967, writ ref’d n.r.e.).

The same conclusion was reached in Dairyland County Mutual Insurance Co. of Texas v. Harrison, 578 S.W.2d 186 (Tex.Civ.App.-Houston [14th Dist.] 1979, no writ) although, in that case, proof that Dairyland “has done business” in Harris County was offered and found to be sufficient.

Affirmed.


author: STEPHEN F. PRESLAR, Chief Justice.

text:
    Margaret GASPARD and Roger V. Montgomery, Jr., Appellants, v. John L. COX, Appellee.
    No. 6792.
    Court of Civil Appeals of Texas, El Paso.
    June 6, 1979.
    Rehearing Denied July 18, 1979.

      Kronzer, Abraham & Watkins, W. James Kronzer, Houston, Bill McCoy, Odessa, Wayne B. Barfield, Amarillo, Law Offices of Moore & Cunningham, Inc., James D. Cunningham, Odessa, for appellants.
    Rassman, Gunter & Boldrick, Emil C. Rassman, John E. Gunter, Midland, for ap-pellee.
    McMahon, Cox, Todd, Tidwell & Locke, Jack Q. Tidwell, Odessa, for intervenor, Argonaut Ins. Co.
   OPINION

STEPHEN F. PRESLAR, Chief Justice.

The sole question involved in this appeal is the vicarious liability of one who employs an independent contractor for injuries suffered by an employee of the independent contractor where such injuries are caused by the negligence of the independent contractor and his employee. The trial Court, based on a jury verdict, rendered judgment for the employer. We affirm.

This suit is a consolidation of a personal injury and a wrongful death action brought by an employee of a drilling company and a surviving wife of another employee of the drilling company against the Appellee, John L. Cox, an independent oil operator. The workmen’s compensation insurance carrier for the drilling company intervened in the suit. The jury found that the Plaintiffs had suffered losses of $160,000.00 and $250,-000.00, respectively, and that the drilling company was 75% negligent; its employee, the driller, was 25% negligent; and the Defendant/Appellee was guilty of no negligence. On that verdict, the trial Court entered a judgment that the Plaintiffs take nothing.

The Appellee, John Cox, employed the FWA Drilling Company to drill a well on which this accident occurred, and the parties stipulated that FWA was an independent contractor, and that the four men on duty at the time of the accident were acting in the course and scope of their employment with FWA. It is also undisputed that John L. Cox had no representative or agent present at the time of the accident. FWA had been drilling for Cox for about twelve years, and the accident on this well arose following cementing operations to set the casing. As in other wells drilled by FWA for Cox, the instructions of Cox to the cementing company were to use crude oil as a displacement fluid to bump the plug down after cementing. The displacement fluid is placed in the casing under great pressure and that pressure is maintained for six to eight hours until the cement sets. On the day in question, the 11:00 o’clock P.M. to 7:00 o’clock A.M. shift on the well consisted of driller Bill Adams and three crew members, Roger Montgomery, Bill Ridling and Roy Gaspard. At 3:00 o’clock A.M., after the cement in the casing had set up, the crew prepared to cut the casing off so that the drilling rig could be moved off the well location. Adams mistakenly thought that the previous crew had already released the pressure on the casing because he saw the pressure hose that is used for that purpose lying on its side on the rig platform. When the men began cutting the pipe, there was a rupture and a fire, and all three crew men were badly burned. For those injuries and for the death of Gaspard, this action was brought against the owner, John L. Cox.

The Appellants’ sole point of error is that the trial Court erred in granting judgment for Appellee Cox because the jury verdict established the vicarious liability of the Ap-pellee under Section 416 of the Restatement of Torts 2d (1965). We sustain the judgment of the trial Court for two reasons. First, because we are of the opinion that Section 416 has no application here because it is not a situation covered by it and secondly, under Texas law the employer’s duty in situations like this is to the general public and not to the employees of the independent contractor.

The general rule is that an employer or contractee is not liable for the torts of an independent contractor or of the latter’s servants. Cameron Mill & Elevator Co. v. Anderson, 98 Tex. 156, 81 S.W. 282 (1904); Loyd v. Herrington, 143 Tex. 135, 182 S.W.2d 1003 (1944); 41 Am.Jur.2d Independent Contractors sec. 24 at 774.

There are exceptions to this general rule, and an important one is where the work is inherently dangerous. We call particular attention to this exception of inherently dangerous because some of the arguments presented here seem to stem from that, yet that is not in this case. There is no contention that the work here involved was inherently dangerous and no issue was submitted to the jury on it. Appellants’ sole reliance is under Section 416, Restatement of Torts 2d (1965). The inherently dangerous doctrine is covered by Section 427 of the Restatement.

Section 416 is another exception to the general rule that the employer is not liable for the torts of the independent contractor. Its provisions are: “One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.” Since the Restatement of Torts is not the law unless adopted by the courts of Texas, the first question raised is whether Section 416 has been so adopted. We have determined that it is not necessary for this Court to decide that question since we are of the opinion that this case does not fall within the provisions of Section 416. Since that section is not applicable to this case, it matters not to our decision whether it is the law of Texas or not. In Brownsville & Matamoros Bridge Company v. Null, 578 S.W.2d 774 (Tex.Civ.App.—Corpus Christi 1978, no writ), the same conclusion was reached.

As an exception to the general rule, Section 416 says that the employer must still be liable if the work is likely to be dangerous in the absence of special precautions. It must be a situation where during the progress of the work — that is, its normal progress as programmed — it will become dangerous unless something additional is done; some special precautions above and beyond the actual performance of the work is called for. In other words, the requirement is that something affirmative must be done to prevent the work from becoming dangerous to others.

We do not have such a situation here. Nothing is required in addition to the doing of the job normally. The normal method of doing the work is to bleed off the pressure when the cement has set. Then the casing is cut off some 18" above the ground so that the rig can be moved. The cutting of the casing is not by torch but by “casing cutters” which are disc blades clamped to the casing and rotated around it. This is what the FWA crew was doing at the time of the fire. It was an operation they had performed on some 300 to 500 other wells, and one crew member said it was a routine job if done properly. Cutting the casing after the pressure has been bled off presents no peculiar risk of physical harm to others. This accident occurred when the driller failed to bleed off the pressure prior to the casing cutting. “No recovery may be allowed for an injury resulting from an act or fault purely collateral to the work and which arises entirely from the wrongful act of the independent contractor or his employees. Loyd v. Herrington, supra [143 Tex. 135, 182 S.W.2d] p. 1005; Brownsville Navigation Dist. v. Valley Ice & Fuel Co., 313 S.W.2d 104 (Tex.Civ.App.—San Antonio 1958, no writ). . . ;” Goolsby v. Kenney, 545 S.W.2d 591 (Tex.Civ.App.—Tyler 1976, writ ref’d n. r. e.).

We have concluded that Section 416 of the Restatement of Torts is not applicable to this case. Additionally, it must be held that even if it were applicable, its coverage would not extent to employees of the independent contractor. While there are conflicts in other jurisdictions, it is well settled in Texas that the rule that an employer of an independent contractor is liable to third persons for negligence of the contractor in the performance of work inherently dangerous does not extend to the employees of the independent contractor. Humble Oil & Refining Co. v. Bell, 180 S.W.2d 970 (Tex.Civ.App.—El Paso 1943), writ ref’d w. o. m., 142 Tex. 645, 181 S.W.2d 569; Nance Exploration Company v. Texas Employers’ Insurance Association, 305 S.W.2d 621 (Tex.Civ.App.—El Paso 1957, writ ref’d n. r. e.), cert. denied, 358 U.S. 908, 79 S.Ct. 235, 3 L.Ed.2d 229; Cagle v. McQueen, 200 F.2d 186 (5th Cir. Tex.1952), cert. denied, 346 U.S. 815, 74 S.Ct. 25, 98 L.Ed. 342; Union Tank & Supply Co. v. Kelley, 167 F.2d 811 (5th Cir. Tex.1948), cert. denied, 335 U.S. 827, 69 S.Ct. 54, 93 L.Ed. 381, rehearing denied, 335 U.S. 888, 69 S.Ct. 232, 93 L.Ed. 427.

By analogy, we conclude that the same rule should apply to a Section 416 exception to the general rule.

The judgment of the trial Court is affirmed.


author: SUMMERS, Chief Justice.

text:
    Johnny Lee PERONE, Appellant, v. TEXAS DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1206.
    Court of Civil Appeals of Texas, Tyler.
    June 7, 1979.
    Rehearing Denied June 5, 1979.

      W. Richard Ellis, III, Ramsey & Murray, Houston, for appellant.
    Jack Sparks, Asst. Atty. Gen., Austin, for appellee.
   SUMMERS, Chief Justice.

This is an appeal from an order of the trial court sustaining a plea of privilege filed by the Texas Department of Corrections, defendant below.

This case arose out of a collision between a truck, belonging to the Texas Department of Corrections and being driven by James Trull, an inmate at the Department of Corrections in Huntsville, Texas, and an automobile owned by Johnny Lee Perone, plaintiff below. Plaintiff initiated this suit against James Trull and the Texas Department of Corrections, alleging negligence on the part of both defendants, to recover for property damages sustained in the collision by plaintiff’s automobile.

On November 23, 1977, Texas Department of Corrections, appellee, filed its “Plea To The Jurisdiction” alleging that appellee had governmental immunity and therefore the allegations in plaintiff’s original petition failed to state a cause of action against appellee. Appellee concluded that “this Honorable Court has no jurisdiction in plaintiff’s alleged cause of action against the Texas Department of Corrections.” Appellee prayed “that as to it this cause be dismissed at cost of the plaintiff.” On the same day, appellee also filed its plea of privilege, subject to the plea to the jurisdiction, seeking to transfer the cause to Walker County, Texas. In response, appellant, by its controverting plea, asserted that venue was properly placed in Harris County, Texas, on the basis of section 9a of Article 1995, Tex.Rev.Civ.Stat.Ann. Prior to the hearing on the plea of privilege, appellee requested the court to overrule its plea to the jurisdiction, and the trial court so ruled. The venue hearing was then had before the court without aid of a jury, and the trial court sustained appellee’s plea of privilege. No findings of fact or conclusions of law were requested by any party and none were filed.

From this adverse order, appellant has perfected this appeal predicated upon three points of error. Appellant contends that the trial court erred in sustaining appellee’s plea of privilege because (1) appellee waived its plea of privilege, (2) appellant proved the necessary venue facts to sustain the controverting plea under section 9a of Article 1995, supra, by a preponderance of the evidence, and (3) the trial court refused to allow appellant to introduce testimony to establish the necessary venue facts under section 9a of Article 1995, supra. The primary question is that of waiver vel non of appellee’s plea of privilege. After careful consideration of the record, we have concluded that appellee, by its own action in invoking the general jurisdiction of the court, has effectively waived its plea of privilege.

It is well settled that any party to a lawsuit may expressly or impliedly waive rights conferred upon him by a venue statute. Crosby v. Heldt Brothers Trucks, 394 S.W.2d 235, 237 (Tex.Civ.App.—San Antonio 1965, n. w. h.); Mooney Aircraft, Inc. v. Adams, 377 S.W.2d 123, 125 (Tex.Civ.App.—Dallas 1964, n. w. h.); McDonald, Texas Civil Practice, Vol. 1, section 4.40, p. 566 (1965). An implied waiver occurs when a party, often inadvertently, takes some action which is inconsistent with his position on the venue issue. Olympic Trampolines, Inc. v. Bashaw, 462 S.W.2d 345, 347 (Tex.Civ.App.—Houston [14th] 1970, n. w. h.); Mooney Aircraft, Inc. v. Adams, supra at 126. An inconsistent action resulting in waiver is one in which the party invokes the general jurisdiction of the trial court without reservation of the rights asserted under the plea of privilege. The test to be applied is whether the party invoked the action of the trial court without first insisting on his plea of privilege. H. Molsen & Company, Inc. v. Williamson, 510 S.W.2d 366, 368 (Tex.Civ.App.—Dallas 1974, n. w. h.); Empire Life Insurance Company of America v. State of Texas, 492 S.W.2d 366, 368 (Tex.Civ.App.—Austin 1973, n. w. h.); First State Bank & Trust Company of Rio Grande City v. Colpaugh, 489 S.W.2d 675, 678 (Tex.Civ.App.—San Antonio 1972, n. w. h.); Mooney Aircraft, Inc. v. Adams, supra.

The jurisdiction of the court over a party should of course be considered prior to addressing the question of venue, where the jurisdiction will be exercised. Starr Gas Company v. Employers Casualty Company, 436 S.W.2d 188, 189 (Tex.Civ.App.—El Paso 1968, dism’d); Rule 120a, T.R.C.P. In the instant case, appellee’s “Plea To The Jurisdiction” does not question the court’s jurisdiction on the ground that appellee is not amenable to process issued by a Texas court, but it raises a plea in bar, that of governmental immunity. This plea was never withdrawn, and appellee’s plea of privilege was expressly subject thereto. Appellee submitted the plea to the jurisdiction to the trial court for determination prior to disposition of its plea of privilege and obtained a ruling thereon. In so doing, appellee invoked the general jurisdiction of the trial court and waived its plea of privilege.

Appellee replies that it could not waive its plea of privilege under the express provisions of Article 4411, Tex.Rev.Civ.Stat. Ann., which provides that “[n]o admission, agreement or waiver, made by the Attorney General, in any action or suit in which the State is a party, shall prejudice the rights of the State.” This argument is wholly without merit. When the state becomes a litigant, it must observe and will be bound by the same rules of procedure that apply to all litigants. The laws and rules governing evidence, burden of proof, cross complaints, pleadings, instructed verdicts and summary judgments bind the state and all other litigants uniformly. Lowe v. Texas Tech. University, 540 S.W.2d 297, 301 (Tex.Sup.1976); Texas Department of Corrections v. Herring, 513 S.W.2d 6, 7-8 (Tex.Sup.1974); Bednarz v. State, 142 Tex. 138, 176 S.W.2d 562, 563 (1943). Article 4411, supra, is not controlling in the present case.

In light of our disposition of appellant’s first point of error, we need not address the remaining points. The judgment of the trial court sustaining the plea of privilege of the Texas Department of Corrections is reversed and judgment is here rendered overruling such plea of privilege. The cause is remanded to the trial court for further proceedings.


author: McDONALD, Chief Justice.

text:
    PEDERNALES ELECTRIC COOPERATIVE, INC., and the Lower Colorado River Authority, Appellants, v. Eric H. SCHULZ et al., Appellees.
    No. 6071.
    Court of Civil Appeals of Texas, Waco.
    June 7, 1979.
    Rehearing Denied July 12, 1979.

      Larry W. Wise and Tom Long, Long, Coleman, Dugger & Cotten, Austin, for appellants.

      Charles Morris, Morris & Craven, Austin, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendants PEC and LCRA from judgments against them for plaintiffs Eric and Kenneth Schulz in a personal injury case.

Plaintiffs Eric and Kenneth Schulz sued defendants PEC and LCRA for personal injuries sustained when the mast of a sailboat operated by Kenneth Schulz on Lake Travis, and in which Eric Schulz was a passenger, came in contact with a powerline owned by PEC, and engineered and maintained by LCRA.

Trial was to a jury which found:

1) The electric current carrying wire was maintained lower than it would have been maintained by one using ordinary care.
2) Such action was a proximate cause of the accident.
3) Such action was gross negligence.
10) thru 14) Plaintiff Kenneth Schulz was guilty of contributory negligence which was a proximate cause of the accident.
14) Eric Schulz’s damages were:
a) $4000. past pain and mental anguish.
b) $1000. future pain and mental anguish.
c) $300. future medical expenses.
d) $4000. disfigurement.
15) Kenneth Schulz’ damages were:
a) $500. past pain and mental anguish.
16) Kenneth Schulz’ negligence was 45% cause of the occurrence. Defendants’ negligence was 55% cause of the occurrence.
17) Awarded $4,900 exemplary damages to Eric Schulz.
18) Awarded $100 exemplary damages to Kenneth Schulz.

The trial court rendered judgment: for Eric Schulz against PEC and LCRA for $9,300; for Kenneth Schulz against PEC and LCRA for $275; for Eric Schulz against PEC for $4,900 exemplary damages; and for Kenneth Schulz against PEC for $55. exemplary damages.

Defendants appeal on 30 points.

Points 1 thru 5 assert the trial court erred in rendering judgment against PEC for exemplary damages for the reason that Article 2212a VATS has abolished gross negligence as a viable ground of recovery and has substituted therefor a comparison of negligence of all degrees between the parties.

Defendants note that the Supreme Courts of Wisconsin and New Jersey in Bielski v. Schulze, 16 Wis.2d 1, 114 N.W.2d 105, and Draney v. Bachman, 138 N.J.Super. 503, 351 A.2d 409, pursuant to passage by Legislatures of those states of a comparative negligence law, abolished gross negligence, and urge this court to do the same for Texas.

Prior to September 1, 1973 a finding of contributory negligence barred recovery by a plaintiff of any recovery.

Article 2212a VATS, effective September 1, 1973 provides that contributory negligence shall not bar recovery in an action to recover damages for negligence resulting in death or injury if such negligence is not greater than the negligence of the defendant, but any damages allowed shall be diminished in proportion to the amount of negligence attributed to the party recovering.

The reasoning of the Wisconsin Supreme Court in Bielski was based on the concept of gross negligence as an ameliorative factor in avoiding the contributory negligence doctrine, i. e., contributory negligence did not bar recovery of damages for gross negligence in Wisconsin. The New Jersey Supreme Court in Draney states: “Solely insofar as our ‘gross negligence’ concept is concerned, we can agree with the resolution of the problem as discussed in Bielski”.

In Texas the overriding policy consideration in the award of exemplary damages is as a punishment for gross negligence as distinguished from compensation. Bernal v. Seitt, 158 Tex. 521, 313 S.W.2d 520; and a finding of contributory negligence on the part of a plaintiff barred recovery by him of recovery of exemplary damages from a defendant found grossly negligent prior to the passage of Article 2212a. Schiller v. Rice, 151 Tex. 116, 246 S.W.2d 607; and bars the proportionate part attributable to plaintiffs’ contributory negligence since the passage of Article 2212a.

The reasoning of Bielski and Draney have no application in Texas.

Moreover, had the Legislature desired to abolish the recovery of exemplary damages for gross negligence they could have expressly done so.

Points 1 thru 5 are overruled.

Points 6 thru 11 assert the trial court erred in rendering judgment against PEC for exemplary damages, (for gross negligence committed by LCRA), absent pleadings, evidence and findings that PEC authorized the “manner of the act” or “ratified or approved the act” insofar as the height of the wire is concerned.

The evidence is that PEC, owner of the powerline involved in the accident, had contracted with LCRA to engineer, supervise the construction of, and thereafter maintain the line. Pursuant to the Texas Tort Claims Act, Article 6252-19 Sec. 3, LCRA as a governmental entity is not subject to exemplary damages.

Punitive damages can properly be awarded against a master or other principal because of an act by an agent if the agent was employed in a managerial capacity and was acting in the scope of employment. King v. McGuff, 149 Tex. 432, 234 S.W.2d 403; Fisher v. Carrousel Motor Hotel, Inc., Tex., 424 S.W.2d 627. From the evidence PEC contracted with LCRA to engineer, construct and maintain the electric lines in question. Clearly LCRA was PEC’s agent employed in a managerial capacity, maintaining such line too low in the scope of employment, pursuant to the operating contract.

Points 6 thru 11 are overruled.

Points 12 thru 19 assert there is no evidence and/or insufficient evidence to support the finding of gross negligence and the findings of exemplary damages.

For years there have been sailboats on Lake Travis with higher masts than the Schulz boat. The offending wire was a 7200 volt wire that was dangerous. PEC owned wires on the lake maintained by LCRA which resulted in a fatal accident to a Mr. Wiesenbaker some four months prior to the Schulz accident; and resulted in serious injury to a Mr. Cornwell some three months prior to the Schulz accident. The General Manager of PEC testified he was on notice of both incidents and that the two incidents indicated there was a problem; that the two prior incidents indicated to him that some wires on Lake Travis should be checked out. The Manager of Systems Operations of LCRA testified that if wires were low enough to contact sailboats they were dangerous to the public, and that he was aware of the Wiesenbaker and Corn-well incidents as well as other occurrences, and that these prior incidents made him aware there was a dangerous situation on the lake. Another employee of LCRA testified it would have taken but two days to have raised the wire that the Schulz boat hit.

Under the rule of In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, from the record as a whole, we think the evidence ample and sufficient to support the finding of gross negligence and the findings of exemplary damages.

Points 12 thru 19 are overruled.

Points 20 thru 27 assert the trial court erred in refusing its requested issue 1, because such issue presents a defense under Article 6252-19 (The Texas Tort Claims Act).

Defendants requested Issue 1 inquired “if maintaining the wire too low was proximately caused by the operation of motor-driven equipment used in connection with the operation of floodgates or water release equipment”.

Article 6252-19 provides in part:

“Sec. 3. Each unit of [the] government in the state shall be liable * * * for property damage or personal injuries or death when proximately caused by the negligence * * * of any officer or employee * * * arising from the operation or use of a motor-driven vehicle and motor-driven equipment, other than motor-driven equipment used in connection with the operation of floodgates or water release equipment * * *, or death or personal injuries so caused from some condition or some use of tangible property, real or personal, under circumstances where such unit of government, if a private person, would be liable to the claimant * * *

Defendants assert that the exception of motor-driven equipment used in connection with the operation of floodgates relieves them from liability. We reject the contention. The exception only applies to accidents arising from the operation of motor-driven equipment, and has no bearing on the cause of action created thereafter arising from the use of tangible property.

Plaintiffs cause of action is based on the use of tangible personal property, i. e., the electric wire.

Points 20 thru 27 are overruled.

Points 28 thru 30 assert there is no evidence and/or insufficient evidence to support recovery by Eric Schulz for disfigurement separate and apart from physical pain and mental anguish.

Proof of disfigurement was adduced at trial by the actual showing of the scar to the jury, and pictures of the scar are in the record before us. Dr. Spira testified that in his opinion the scar will remain about the same permanently. Disfigurement is an entity of damage separate from pain and mental anguish. Houston Transit Co. v. Felder, 146 Tex. 428, 208 S.W.2d 880; Cezeaux v. Libby, Tex.Civ.App. (Beaumont) NWH, 539 S.W.2d 187.

Points 28 thru 30 are overruled.

AFFIRMED.