author: BISSETT, Justice.

text:
    Elbert S. COX and Robert D. Spellings, Appellants, v. GUARANTY NATIONAL BANK et al., Appellees.
    No. 1337.
    Court of Civil Appeals of Texas, Corpus Christi.
    April 20, 1978.
    Rehearing Denied May 2, 1978.

      Harry F. Maddin, Maddin, White & Brin, Inc., Corpus Christi, for appellants.
    C. Edwin Prichard, Jr., Prichard, Peeler & Smith, Corpus Christi, for appellees.
   OPINION

BISSETT, Justice.

This is a suit for damages against Guaranty National Bank and Trust of Corpus Christi, George F. Haney and Larry A. Stroud, defendants in the trial court, and to temporarily enjoin the defendants from selling at public vendue under powers of sale in several Deeds of Trust, four parcels of land owned by Elbert S. Cox and Robert D. Spellings. Hearing was had upon the Application for Temporary Injunction, and the trial court, by an order rendered on February 6, 1978, denied the said Application. Cox and Spellings have appealed.

For convenience of identification, the four parcels of land will be referred to as follows:

1. “Haaker” Tract — 25 acres, more or less, located on the Crosstown Expressway in Corpus Christi, Texas;

2. The “Island” Property — located on Padre Island, Texas;

3. The “Wardner Interest” — a Visth undivided interest in the Wardner Ranch, consisting of 8,000 acres, more or less, located in the counties of Nueces, Kleberg, and Jim Wells, Texas; and

4. The “Houston Property” — a commercial lot in Deer Park, Harris County, Texas.

Cox, Spellings and others originally acquired an interest in the Haaker Tract in 1973. Thereafter, Cox, Spellings and others obtained refinancing with Guaranty National Bank and Trust Company of Corpus Christi, hereinafter referred to as “Bank”, in the amount of $630,000.00. In 1974, Cox and Spellings participated in the purchase of the Island Property, and as a part of the consideration and purchase price obtained a loan of $1,850,000.00 from the Bank. In the negotiations, Cox and Spellings .dealt with defendant Mr. Haney, an officer of the Bank. In June, 1976, the debts of Cox and Spellings were reorganized into a Loan Agreement, effective June 1, 1976, and signed by Cox, Spellings and the Bank; the other debtors were relieved of further obligations. Under the terms of the Loan Agreement $2,700,000.00 of principal debt was cross-collateralized and secured by then existing Deeds of Trust on the four properties. The total debt became due and payable, with interest thereon, on January 1, 1978. The total debt was composed of notes in the amounts of $1,850,000.00, $630,-000.00, $80,000.00, and $140,000.00, respectively. The debt was not paid on January 1, 1978, and notices of sale pursuant to the Deeds of Trust were posted. Cox and Spellings contend that defendant Haney, Trustee under the aforesaid Deeds of Trust, should be temporarily enjoined from carrying out the non-judicial sale.

As one of the grounds for the issuance of a temporary injunction, Cox and Spellings assert that the Bank broke its promise to use its influence in an attempt to bring about a settlement between the State of Texas and Cox and Spellings concerning the Haaker Tract. In 1974, Spellings began negotiations with the State of Texas to determine the boundaries of the Haaker Tract, and after arrangements which Spellings considered to be satisfactory were made, he and Cox acquired the Haaker Tract, and refinanced the loan with the Bank on February 20,1974. Cox and Spellings took out an owner’s title policy thereon with Lawyers Title Insurance Company, hereinafter referred to as “Lawyers Title”, which contained an exemption from claims by the State. The Bank also took out a mortgagee’s policy on the Haaker Tract with the same company. At that time, Spellings had also discussed with Lawyers Title the potential claim of the “Newport” heirs, who, apparently, claimed some interests in the Haaker Tract, but Spellings concluded that two prior lawsuits had extinguished those claims. The policy with Lawyers Title did not exempt the “Newport” claim. Thereafter, the State through the Attorney General of Texas, filed suit on December 24, 1975 against Cox and Spellings, and included therein the “Newport” claimants. The State, according to Spellings, questioned the jurisdictional basis of the prior suits involving those claimants. Cox testified that Mr. Morton, an officer in the Bank, told him that the Bank could help him with this suit, since it had friendly relations with State officials. Cox did not recall whether this conversation occurred at the reorganization meeting or thereafter, but in any event the Bank did nothing to assist Cox and Spellings in the settlement of the suit. In addition, Cox and Spellings demanded that Lawyers Title defend them in the suit, which the Company agreed to do. Nevertheless, Cox and Spellings sued Lawyers Title since there was no “Newport” exemption and named the Bank as an involuntary plaintiff. They seek recovery in excess of $9,000,000.00.

As another ground for the granting of this application for a temporary injunction, Cox and Spellings contend that the Bank, in attempting to foreclose their Deed of Trust liens on the four parcels of land, interfered in the contract and business relationship between them and W. R. Grace Land Company, hereinafter called “Grace”. Negotiations between Cox and Spellings and Grace for the purchase of the Haaker Tract began in December, 1976. On December 10, 1976, Grace submitted an option contract for consideration by Cox and Spellings, but neither executed the contract. Apparently, Cox conversed with officials of the Bank concerning whether or not he should sign the option contract. Haney testified that he was aware of negotiations concerning the Haaker Tract between Cox and Spellings and Grace. The position taken by the Bank during such negotiations is not made clear by the record. Cox testified that the Bank objected to the first option contract since the terms were too long, and, as a consequence, a shorter term was worked out by Grace and was submitted to Cox on January 10, 1976, some ten days after payment was due on the promissory notes according to the Loan Agreement. Cox testified that Morton, an officer of the Bank, informed him at about that time that the Bank did not want to do anything to change the status quo unless all the interest due was paid. Spellings testified that Mr. Nelly, another officer of the Bank, told him in a telephone conversation: “Well, there’s no reason for us to talk unless you can pay the interest”, but later told him: “You should sign the contract . . . you have title to the property.”

On January 16, 1976, Haney posted notices of foreclosure sale and sent a letter to Grace and advised it that the intended sale included the Haaker Tract. Haney later informed an attorney for Grace that the Haaker Tract had been cross-collateralized for the entire indebtedness. Cox executed the option contract on January 17, 1976, after notice for the trustee’s sale had been posted. Shortly thereafter, Grace refused to proceed further.

John Thomason, the real estate broker who handled negotiations between Cox and Spellings and Grace testified that the only objection which Grace raised during negotiations was the inability of Cox and Spellings to deliver title. Under the option contract Grace had an opportunity to take thirteen acres of the Haaker Tract at $1.15 per foot or the whole tract at $1.00 per foot. The option contract, as submitted to Cox on January 10,1976, covered a period of several months.

Cox and Spellings also assert that the Deed of Trust on the Wardner Interest is invalid and the pending foreclosure sale on their interest therein should be enjoined because under the terms of an Operating Agreement dated November 7, 1973, an owner of an undivided interest could not sell his interest therein to a third party without first giving the other owners written notice of the proposed sale, who had an option to buy such interest under the same terms offered by the third party.

The Bank was delivered a copy of the Operating Agreement at the time of the reorganization of the debt in June, 1976. Contemporaneously with the execution of the Loan Agreement, EBCO, Inc., acting by and through its president, executed a Deed of Trust, as mortgagor, to Haney, as Trustee for the Bank, covering the Wardner Interest. The Deed of Trust expressly provided: “To the extent of conflict between said Loan Agreement and this instrument, the provisions of said Loan Agreement shall control”. At that time Cox and Spellings were the only stockholders in EBCO, Inc. The record does not show that any of the “other owners” of the Wardner Ranch were notified of either the execution of the Deed of Trust by EBCO, Inc., or of the posting of notice of sale by the trustee. Neither EBCO, Inc., nor any of such “other owners” are parties to this suit.

On March 1, 1978, this Court granted an application by Cox and Spellings for temporary injunction which enjoined the pending trustee’s sale in order to preserve the subject matter of the litigation pending the appeal from the denial of the temporary injunction by the trial court as authorized by Tex.Rev.Civ.Stat.Ann. art. 1823 (1964). The transcript, at the time of the hearing and subsequent order, had been filed with this Court. All procedural requisites necessary to invoke the jurisdiction of this Court had been fulfilled. We find ample authority for granting relator’s application for temporary injunction in a case such as the one before us. Pendleton Green Associates v. Anchor Savings Bank, 520 S.W.2d 579, 582 (Tex.Civ.App. — Corpus Christi 1975, no writ); Padgett v. Mutual Building & Loan Association, 504 S.W.2d 535, 538 (Tex.Civ. App. — Fort Worth 1971, no writ). The following language in the Pendleton decision is particularly persuasive:

“. . .If respondents sell the subject property at a trustee’s sale while the appeal is still pending in this Court, the appeal will become moot and our jurisdiction over the pending appeal will have been unlawfully invaded and its subject matter destroyed, since there would then be no way we could enforce our judgment or decree in the event the relators should prevail in their appeal.” Id. at 582.

In granting the temporary injunction in the instant case, this Court also ordered that petitioners file a bond in the amount of $50,000.00 in order to protect defendants from possible loss. While this Court is under a duty to protect the other parties from possible loss, we have some discretion in setting the amount of the bond. We decided that a bond of $50,000.00 would adequately protect the defendants against substantial financial loss. Pendle-ton, supra, at 583.

Cox and Spellings urge in their first point that the trial court erred in refusing application for temporary injunction since such constitutes an abuse of discretion as a matter of law, or, in the alternative, that such refusal is against the great weight and preponderance of the evidence as to be clearly an abuse of discretion. The point is multifarious and is not in compliance with Rule 418, T.R.C.P. See Barber v. Corpus Christi Bank & Trust, 506 S.W.2d 254 (Tex.Civ.App.—Corpus Christi 1974, no writ); Garrett v. Standard Fire Ins. Co., Etc., 541 S.W.2d 635 (Tex.Civ.App.—Beaumont 1976, no writ). The point is also without merit.

Cox and Spellings assert that a sale which may tend to cause the sale of land at less than its market value, coupled with the bidding of a grossly inadequate price, is sufficient to enjoin a foreclosure sale under a Deed of Trust. They ask this Court to hold in this case that if a foreclosure sale of the subject property is allowed to take place under the Deeds of Trust sought to be enforced, the mortgaged property might be sold for an inadequate price on the ground denominated in oral argument as “prospective gross inadequacy”. They do not challenge the intended sale on the basis that notices of posting were in some manner insufficient or irregular; they say that the Bank might be the only bidder present at the sale, and that if such is the case, the Bank intends to bid an amount far below appraised values of the involved lands, which would be inequitable to them. This is pure speculation. The point amounts to a complaint that the amount of money bid at the sale might not be satisfactory to them. This Court has no way of determining in advance how many prospective purchasers will appear at the foreclosure sale, nor what they will bid.

we next address the second step of the asserted theory that irregularities accompany the prospective inadequacy of price. It should be noted from the outset that Cox and Spellings do not question the fact that the Bank has complied with the terms of the instrument pertaining to the power of sale granted therein; instead, they challenge defendants’ actions with respect to other matters. The argument that all defendants should be enjoined from having the foreclosure sale since notice was given to Grace that the Haaker Tract was cross-collateralized for unpaid debts of several million dollars constitutes such an irregularity that authorizes the enjoining of the proposed foreclosure sale is without merit. The information imparted to Grace was accurate. It has not been shown that the information would have affected Grace’s actions prior to the foreclosure sale. The only evidence on this point was that Grace was not going to exercise the option until Cox and Spellings could deliver title. If it may be inferred that Grace was awaiting settlement of the suit involving the title to the Island tract, it is apparent no such settlement was reached prior to the designated time of the foreclosure sale.

Cox and Spellings have shown neither a right tp expect Grace to exercise the option to buy the Haaker Tract prior to the foreclosure sale (when plaintiffs’ interest in the tract would be lost), nor that Grace would not have received the same information through other channels prior to all times pertinent to this suit. Neither loss nor harm has been shown. 33 Tex.Jur.2d, Interference, § 2 (1962).

Cox and Spellings and the Bank did not contract that the Bank would defend their title to the four tracts of land as a condition to foreclosure. The fact that the Bank showed an interest in Cox and Spellings’ predicament cannot be transfigured into an obligation to defend their title in the suit. While the Bank may have a mortgagee’s policy with Lawyers Title, the policy is not in evidence and the obligations thereunder are not in the record. The rights and liabilities under such mortgagee’s policy have no bearing on the issue here presented. There is no allegation of fraud or conspiracy on the part of the defendants. See generally Turner v. Neel, 231 S.W.2d 660, 661 (Tex.Civ.App.—San Antonio 1950, writ ref’d' n. r. e.).

It is established as a fact that Cox furnished the Bank with a written statement, which advised the Bank that he and Spellings were the “sole owners of stock in EBCO, Inc.”; that they consented to the execution of the aforesaid Deed of Trust on the Wardner Interest by EBCO, Inc., as security to pay the several notes described in the Loan Agreement, “in the total aggregate sum of $2,700,000.00, representing indebtedness of Robert D. Spellings and/or Elbert S. Cox to your bank”. The execution of the Deed of Trust by the President of EBCO, Inc., was expressly authorized by a resolution of the corporation’s Board of Directors.

The “other owners” of the undivided interests in the Wardner Ranch do not complain of the intended foreclosure of the Deed of Trust liens. Their rights, if any, in the issue here presented are not before us in this appeal, and we express no opinion thereon or relevant thereto.

The fair market value of the affected properties is immaterial to the disposition of this appeal. The disclosure of the proposed foreclosure proceedings to Grace is not, under the record before us, a ground for enjoining the trustee’s sale. The sincerity of Cox in trying to dispose of the properties in order to raise enough money to pay the debt owed to the Bank is not in issue. The trial court properly excluded all evidence relating to appraised value or market value of the subject properties. The evidence concerning the effect that the disclosure by the Bank to Grace of the posting of notices of the intended trustee’s sale of the lands “would have on a potential buyer under option contract to buy” would not authorize the issuance of the requested injunction. The Deeds of Trust are valid on their face. They are enforceable until some valid reason is shown by clear and compelling evidence why they should not be enforced. See Justice Mort Inv. v. C. B. Thompson Const. Co., 533 S.W.2d 939 (Tex.Civ.App.—Amarillo 1976, writ ref’d n. r. e.); Rogers Ranch Co., Inc. v. Darwin, 89 S.W.2d 828 (Tex.Civ.App—San Antonio 1936, no writ); Lincoln Nat. Life Ins. Co. v. Freudenstein, 87 S.W.2d 810 (Tex.Civ.App.—San Antonio 1935, no writ); Reisenberg v. Hankins, 258 S.W. 904 (Tex.Civ.App.—Amarillo 1924, writ dism’d).

We now consider the argument wherein it is claimed that the trial court, in denying the Application for Temporary Injunction, abused its discretion. This Court, speaking through Chief Justice Nye, in Long v. Castaneda, 475 S.W.2d 578, 581 (Tex.Sup.1971, writ ref’d n. r. e.), said:

“The rule of law in Texas is that the trial court is clothed with broad discretion in determining whether to issue or whether not to issue a temporary injunction to preserve the rights of the parties pending a final trial of the case. When that discretion is exercised, its orders should not be overturned unless the record discloses a clear abuse of discretion. Texas Foundries, Inc. v. International Moulders & F. Workers’ Union, 151 Tex. 239, 248 S.W.2d 460 (Tex.Sup.1952). . . ”

Cox and Spellings have failed to show the requirements of a probable right and probable injury as a basis for the imposition of a temporary injunction. The trial court did not abuse its discretion by denying the application for a temporary injunction. We have carefully considered all of the points of error which have been brought forward by Cox and Spellings, and they are overruled.

The judgment of the trial court is AFFIRMED.


source: Caselaw Access Project

author: DUNAGAN, Chief Justice.

license: Public Domain

text:
    Alvin C. ROSE et ux., Appellants, v. CARNEY’S LUMBER COMPANY, Appellee.
    No. 1122.
    Court of Civil Appeals of Texas, Tyler.
    April 20, 1978.

      Thad Floyd, Stripling & Sutton, Nacogdo-ches, for appellants.
    Bill Pedersen, Jr., Rorie & Pedersen, Nac-ogdoches, for appellee.
   DUNAGAN, Chief Justice.

This is a mechanic’s and materialman’s lien case. The case arose when the plaintiff, Carney’s Lumber Company, filed suit against Alvin C. Rose and wife, Judy Rose, alleging that certain building materials had been supplied to one Jim Whitten Builder, Inc., for use in the construction of improvements on some property involved in this case. The original petition in the case alleged that Jim Whitten Builder, Inc. (Whit-ten), was the owner of the subject property at the time the materials were allegedly delivered, but that the Roses subsequently purchased the property from Whitten. Whitten was not joined as a party to the suit. The Roses filed an answer to Carney’s original petition containing only a general denial.

On April 26, 1976, the Roses filed a motion for summary judgment contending that, as a matter of law, Carney had neither a constitutional mechanic’s and material-man’s lien nor a statutory mechanic’s and materialman’s lien against the property which they now own. On November 15, 1976, Carney also filed a motion for summary judgment. The motion for summary judgment filed by Carney was supported by an affidavit of Mr. Carney saying that certain building materials had been delivered to Whitten and attached the records showing these deliveries. Neither party filed any controverting affidavits in response to the summary judgment motions of the other party. The trial court granted the motion for summary judgment submitted by Carney’s Lumber Company stating that Carney did have a lien on this property and ordering the sale of the property. The amount of the lien was adjudged to be $2,458.34.

The property in question in this case is rural land located in Nacogdoches County, Texas. The house which is located on this property and which is the subject of this suit is now owned by the Roses, but was built by Whitten as general contractor. In June 1974, the Roses had inspected the property described above, and were prepared to purchase it from the owner, one Everett J. Stephens. However, at the suggestion of Jim Whitten, it was decided that Whitten would purchase the property, build the house, and then convey both the house and the land to the Roses. Therefore, in July or August 1974, the property in question was deeded to Jim Whitten Builder, Inc., by Mr. Stephens. On July 23, 1974, the Roses entered into a contract to build and convey with Jim Whitten Builder, Inc., whereby Whitten was to construct a certain type dwelling house on the property, and after such construction was completed, Whitten was to convey the property and improvements to the Roses. The basis of this suit is the failure of Whitten to pay for the building materials furnished to be used in the construction of this house that the Roses eventually were deeded and occupied.

A' summary judgment should only be granted when it clearly appears that only a question of law is involved and that there is no genuine issue of fact. Swilley v. Hughes, 488 S.W.2d 64 (Tex.1972). The function of summary judgment practice is the “elimination of patently unmeritorious claims or untenable defenses.” Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952).

On a motion for summary judgment, the burden of proof is on the movant, and all doubts as to the existence of a genuine issue as to a material fact are resolved against him. Gulbenkian v. Penn, supra.

The appellants in their first point of error state that the trial court erred in granting the appellee a summary judgment because the summary judgment proof does not establish as a matter of law that the property in question is not homestead property. The appellee responds that the appellant has not affirmatively pled that the property was homestead and has thereby waived any factual issue concerning whether or not the property is homestead property.

We do not feel that the appellants’ failure to affirmatively plead that the property is homestead property entitles the ap-pellee to a summary judgment. If the summary judgment evidence discloses such an issue has not been proven as a matter of law, the issue has not been waived by the failure to plead it. The Texas Supreme Court stated in Womack v. Allstate Insurance Company, 156 Tex. 467, 296 S.W.2d 233 (1956) at p. 237:

“ . . . when the affidavits or other summary judgment ‘evidence’ disclose facts which render the position of the moving party untenable, summary judgment should be denied regardless of defects which may exist in the pleadings of the opposite party.”

See also Roberts v. Haltom City, 543 S.W.2d 75, 77 (Tex.1976); Armstreet v. Greer, 411 S.W.2d 403, 406 (Tex.Civ.App.—Tyler 1967, n.r.e.); Maddox v. Oldham Little Church Foundation, 411 S.W.2d 375, 377 (Tex.Civ. App.—Tyler 1967, n.r.e.); Gonzales v. T.E. I.A., 408 S.W.2d 521, 523 (Tex.Civ.App.— Eastland 1966, n.r.e.); Gallegos v. Millers Mutual Fire Ins. Co., 550 S.W.2d 350, 353 (Tex.Civ.App.—El Paso 1977, n.w.h.); Gorrell v. Tide Products, Inc., 532 S.W.2d 390, 395 (Tex.Civ.App.—Amarillo 1975, n.w.h.); Tiffany Development Corporation v. Cangelosi, 514 S.W.2d 321, 325 (Tex.Civ.App.—Houston [1st Dist.] 1974, n.w.h.); Holleman v. Halliburton Company, 450 S.W.2d 883, 886 (Tex.Civ.App.—Fort Worth 1970, n.w. h.); Little v. Buckley, 440 S.W.2d 682, 687 (Tex.Civ.App.—Dallas 1969, n.w.h.).

The summary judgment evidence in this case does disclose a fact issue concerning the homestead character of this property. Alvin C. Rose in his deposition testified that there was a contract to build and convey entered into by the Roses and Whitten. Equitable title acquired under a contract of purchase is sufficient as a basis for a claim of homestead. Hayes v. First Trust Joint Stock Land Bank, 111 S.W.2d 1172 (Tex.Civ.App. — Fort Worth 1937, writ dism’d). In addition to the contract to build and convey, there is also testimony in the deposition that the Roses intended to move into the house and occupy it as soon as it was completed. Viewing the record in this case, we cannot say that it clearly appears that only a question of law is involved and that there is no genuine issue of fact. Swilley v. Hughes, supra, and Rule 166-A, Tex. R.Civ.P. The appellee has not met his burden to establish as a matter of law that there are no genuine issues of material fact in this case. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970); Prestegord v. Glenn, 441 S.W.2d 185 (Tex. 1969). Accordingly, appellants’ first point of error is sustained.

The testimony of Alvin C. Rose in his deposition is not of sufficient force and clarity that we can say that the appellants are entitled to a judgment as a matter of law. The testimony of this interested witness is not clear, direct and positive with no circumstances in evidence tending to discredit or impeach such testimony. Swilley v. Hughes, supra; Galvan v. Sisk, 526 S.W.2d 717, 719 (Tex.Civ.App., n.w.h.). Therefore, his testimony cannot be the basis for a summary judgment in favor of the appellants and the appellants’ second point of error is overruled.

Additionally, we feel we should point out that the instant case was tried before Rule 166-A was amended effective January 1, 1978, to state “Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.” In our case, the issue of the homestead character of this property was not expressly raised and presented to the trial court and were we called upon to decide this case based upon the new language of Rule 166-A we would reach a different result.

Judgment reversed and the cause remanded.


author: RALEIGH BROWN, Justice.

text:
    Helen H. SWEARINGEN et al., Appellants, v. Rex GILES et al., Appellees.
    No. 5137.
    Court of Civil Appeals of Texas, Eastland.
    April 20, 1978.
    Rehearing Denied May 18, 1978.
    Kirk Kuykendall, Lockhart, Kuykendall & Jones, Austin, for appellants.
    John W. Peterson, Beeville, Joseph H. Hart, Hart & Hart, Austin, for appellees.
   RALEIGH BROWN, Justice.

We must resolve if a lapsed portion of a residuary bequest should pass to the surviving residuary beneficiaries or by intestacy to the heirs at law.

Plaintiffs, Helen Hancock Swearingen, H. N. Hancock, H. L. Hancock and Dorothy Hancock Woolard, all children of Hubert Alonzo Hancock, the deceased brother of Wayne H. Covington, claim Mrs. Covington died intestate as to one-half of her residuary estate. Defendants, Rex Giles, Joy Bragg, individually and as personal repre-tative of the estate of Wayne H. Covington, James C. Giles, Lee Storey and Betty Jo Loan, all children of Ruby Davis, sister of Wayne H. Covington, and Louis Davis, Ruby’s surviving husband, claim the entire residuary estate. Following a trial before the court without a jury, a judgment that plaintiffs take nothing was entered. They appeal. We reverse and render.

Wayne H. Covington was married to William T. Covington, who predeceased her in death. She had no children and was not survived by her father or mother. Mrs. Covington had two sisters, Ruby Davis and Mary Ellen Hancock, and a brother, Hubert Alonzo Hancock. Both Mary Ellen Hancock and Hubert Alonzo Hancock died before Wayne Covington. Mary Ellen Hancock was not survived by lineal descendants while Hubert Alonzo Hancock was survived by the plaintiffs.

Ruby Davis survived Mrs. Covington, but subsequently died intestate and was survived only by her husband, Louis Davis, and her children, James C. Giles, Lee Storey, Betty Jo Loan, Rex Giles and Joy Bragg, the defendants.

Items 2, 3 and 4 of the will of Wayne H. Covington disposed of her property. Item 2 gave all her property to her husband. Item 3 set out specific bequests to named devi-sees in the event her husband predeceased her or died within six months after her death or before the will was probated.

The primary subject of controversy is Item 4, the residuary clause of the Wayne H. Covington will, which reads:

“In the event that my said husband shall predecease me, or if he should die within six months after my death or before this will is probated, whichever occurs earlier, then, in any of such events, I give, devise and bequeath all of the rest and residue of my property, of whatsoever nature and kind, to my sisters, Mary Ellen Hancock and Ruby Davis, or their descendants, share and share alike, and in such event I direct that all of my said property be distributed per stirpes among their lineal descendants, including adopted children.”

Appellants argue the trial court erred in holding that even though there were no words of survivorship, a bequest to a legatee in the residuary clause of a will who predeceased the testatrix inures to the benefit of the surviving residuary beneficiary. We agree.

Appellees contend that the will leaves no property of the decedent unaccounted for because after specific devises, the testatrix in Item 4 gave, devised and bequeathed “all of the rest and residue of my property, of whatsoever nature and kind to her two sisters, Mary Ellen Hancock and Ruby Davis or their descendants.”

They recognize that since Mary Ellen Hancock had no lineal descendants, Section 68, Probate Code, would not prevent the lapsing of her share. They argue, however, that Hubert Alonzo Hancock had died long before the testatrix, no mention of either Hubert or his children are in the will and the evidence reflected the feeling of the testatrix towards appellants was one of hostility; the testatrix intended, therefore, that the survivor, Ruby Davis, should receive the residuary estate.

Appellees assert the general rules of will construction are supportive of their position. The cardinal rule involved in all will construction cases, including one where a partial intestacy is alleged due to lapse of a devise, is that the intent of the testator will control. Briggs v. Peebles, 188 S.W.2d 147 (Tex.1945); Sewell v. Sewell, 266 S.W.2d 924 (Tex.Civ.App.—Texarkana 1954, writ ref. n. r. e.); Urban v. Fossati, 266 S.W.2d 397 (Tex.Civ.App.—San Antonio 1954, writ ref. n. r. e.).

Another applicable rule is that where the decedent leaves a will, there is a strong presumption against any partial intestacy. Briggs v. Peebles, 144 Tex. 47, 188 S.W.2d 147 (1945); Ferguson v. Ferguson, 121 Tex. 119, 45 S.W.2d 1096 (1931); Crowley v. Vaughan, 347 S.W.2d 12 (Tex.Civ. App. — San Antonio 1961, writ ref’d); Urban v. Fossati, 266 S.W.2d 397 (Tex.Civ. App. — San Antonio 1954, writ ref. n. r. e.).

Justice Pope stated the strength of the presumption in Urban v. Fossati, supra, as follows:

“. . . The force of the positive presumption against intestacy, otherwise stated, is that the one who insists upon the partial intestacy must be in a position to show that the will clearly intended that the testator should die intestate. Unless we are pointed to something which clearly expresses or necessarily implies intestacy, the presumption of testacy will prevail. Boone v. Stone, Tex.Civ.App., 142 S.W.2d 936; Ellet v. McCord, Tex.Civ.App., 41 S.W.2d 110; 44 Tex.Jur., Wills, § 148. This presumption is said to be particularly strong when the subject of the gift is the residuary estate . .”

The court in Morris v. Finkelstein, 442 S.W.2d 452 (Tex.Civ.App. —Houston (14th Dist.) 1969, writ ref. n. r. e.) considering the effect of a residuary clause said:

“The basic purpose of a residuary clause such as paragraph III is to prevent partial intestacy. Where one is contained in a will every presumption will be made against intended intestacy. Sanger v. Butler, 45 Tex.Civ.App. 527,101 S.W. 459, writ ref.; Heller v. Heller, 114 Tex. 401, 269 S.W. 771, (Comm.App.); Goggans v. Simmons, Tex.Civ.App., 319 S.W.2d 442, writ ref., n. r. e.”

Appellees urge that the same rule should apply to a lapsed portion of a residuary bequest as to a lapsed specific bequest which is stated by the court in Kuehn v. Bremer, 132 S.W.2d 295 (Tex.Civ.App.— Waco 1939, writ ref’d) to be:

“The rule is recognized and is supported by the weight of authorities that in the absence of a statute upon the question, under a will containing a general residuary clause, a bequest of property, which, valid when made, fails for any reason, such as the death of the legatee prior to the death of the testator, becomes a lapsed legacy and falls into the residuary clause and passes to the residuary legatee, unless a different intention is expressed in the will . . . ”

See also: Sewell v. Sewell, 266 S.W.2d 924 (Tex.Civ.App.—Texarkana 1954, writ ref. n. r. e.); Lightfoot v. Poindexter, 199 S.W. 1152 (Tex.Civ.App—Austin 1917, writ ref’d); Jordan v. Virginia Military Institute, 296 S.W.2d 952 (Tex.Civ.App.—San Antonio 1956, no writ).

Appellees agree that while this exact point has not been discussed in Texas, they contend that unless appellants can show a clearly expressed intention that the testatrix desired her property to pass by intestacy, the presumption against intestacy applied to lapsed specific gifts, should also apply in the instant case to a lapsed residuary gift.

They recognize the application of two basic rules by jurisdictions other than Texas in resolving the problem presented by the instant case. One referred to as the “old, traditional, orthodox English rule” which says that there “cannot be a residue of the residue”; the other “modern rule” which provides that the lapsed portion of the residue goes to the surviving residual legatees. In a number of American states, the traditional rule has been changed by statutory provision, including eleven states which have adopted the Uniform Probate Code; in other jurisdictions, independent of any statutory provision, the courts have rejected the common law rule.

Appellees argue that although they have been unable to find any Texas cases expressly endorsing or rejecting the orthodox rule or the modern rule and there is no Texas statute applicable nor has Texas adopted the Uniform Probate Code, the modern rule is the only one compatible with the general rules of construction of wills in Texas: the intent of the testator should control; there is a presumption the testator intended to die testate as to all of his property; the presumption against intestacy can be overcome only by clearly expressed, plain and unambiguous language; and when there is a residuary clause that presumption is strengthened.

Regardless of appellees’ very forceful argument, we conclude Texas courts hold that the portion of a residuary bequest which lapses without words of survivorship passes by intestacy to the testatrix’s heirs at law. Texas courts hold that the presumption against intestacy will not be allowed to create a dispositive provision in a will when no basis for the disposition can be found in the language of the will. Haile v. Holtzclaw, 414 S.W.2d 916 (Tex.1967); Carr v. Rogers, 383 S.W.2d 383 (Tex.1964).

The court in Tabor v. National Bank of Commerce of San Antonio, 351 S.W.2d 126 (Tex.Civ.App.—San Antonio 1961, no writ) considering a residuary clause similar to the instant one held:

“It is readily apparent from the clear and unambiguous language of Item 20, that the devise or bequest therein made was to the four persons named, as individuals and not as a class. It is equally apparent that the bequest makes no provision for survivorship or substitution. Therefore, the beneficiary, Milton Tabor, having predeceased the testatrix, the bequest to him lapsed and the testatrix died intestate as to that part of the estate, unless, considering the will as a whole, there is some language that can be construed as providing for such survivorship. We find no such language. We think the case falls squarely within the rule stated in Hagood v. Hagood, Tex.Civ.App., 186 S.W. 220, 225, error refused, wherein the Court said:
‘The authorities are uniform to the effect that where a devise is made to two or more named persons, and one or more of such persons die before the testator, and there are no words of survivorship in the will, the property, which by the terms of the will goes to such deceased person or persons, lapses and becomes a part of the testator’s undevised estate and descends to his or her heirs, regardless of the terms of the will. In such cases the legatees who survive the testator take only such part of the testator’s estate as is specifically bequeathed to them. It is otherwise, however, when the devise is to two or more persons as a “class”.’
The Hagood case has often been cited and consistently followed. Logan v. Thomason, 146 Tex. 37, 202 S.W.2d 212; Benson v. Greenville National Exchange Bank, Tex.Civ.App., 253 S.W.2d 918, error refused n. r. e.; Casey v. Kelley, Tex.Civ. App., 185 S.W .2d 492, error refused; El-let v. McCord, Tex.Civ.App., 41 S.W.2d 110, error refused.”

The court in Logan v. Thomason, 146 Tex. 37, 202 S.W.2d 212 (1947) said:

“When a devisee or legatee, other than a lineal descendant, dies during the lifetime of the testator, the gift to him fails or lapses unless the testator prevents it by a provision in his will for the substitution of some other recipient. That is, if the will does not provide for substitution the devise or bequest fails where the deceased devisee or legatee is not a descendant of the testator, or where, being a descendant, he himself was not survived by children or descendants who survive the testator. Bomar v. Carstairs, 124 Tex. 492, 79 S.W.2d 841 ...”

See also: Carr v. Rogers, 383 S.W.2d 383 (Tex.1964); Willis v. Snodgrass, 302 S.W.2d 706 (Tex.Civ.App.—Texarkana 1957, writ ref. n. r. e.); Ellet v. McCord, 41 S.W.2d 110 (Tex.Civ.App.—Austin 1931, writ ref’d).

We disagree with appellee that Briggs v. Peebles, 144 Tex. 47, 188 S.W.2d 147 (1945) is controlling and is additional authority that a lapsed residuary gift should remain in the residue.

The will in Briggs was holographic and provided:

“ ‘In case of my death what property I possess is to be divided equally between my Brothers & Sisters If they are living If not my nearest Relatives their children.’ ”

The testator had five brothers and sisters but only two survived him. Of the three who predeceased him, only one died without children. The court after considering the rules that (a) testator intends to dispose of all of his property; (b) his interest is to be determined from the language of the will; and, (c) great latitude is permitted in construing holographic wills held that the childless brother’s share should be distributed ¼ each to the surviving brother and sister and ¼ each to the children of the two deceased collateral heirs of the testator.

The court in Briggs found dispositive language in the will to distribute the entire estate. The Covington will fails to include such language.

The language of the will of Wayne H. Covington is clear, unambiguous and without words of survivorship or substitution in the event Mary Ellen Hancock predeceased the testatrix. In such event, that bequest lapsed and passed to the heirs at law of Wayne H. Covington.

Since we hold Wayne H. Covington died intestate as to the undivided ½ of her residuary estate bequeathed to Mary Ellen Hancock, consideration of appellants’ other points of error are unnecessary.

The judgment of the trial court is reversed and rendered that Helen Hancock Swearingen, H. N. Hancock, H. L. Hancock and Dorothy Hancock Woolard be awarded an undivided ¼ interest of the residuary estate of Wayne H. Covington.


author: REYNOLDS, Justice.

text:
    TAX PAYERS ASSOCIATION OF LUBBOCK, Texas, and James G. Marshall, Appellants, v. CITY OF LUBBOCK, Texas, et al., Appellees.
    No. 8911.
    Court of Civil Appeals of Texas, Amarillo.
    April 24, 1978.
    Rehearing Denied May 22, 1978.
    Templeton & Garner, Robert E. Garner, Amarillo, for appellants.
    Fred O. Senter, Jr., James P. Brewster, Asst. City Atty., Lubbock, for City of Lubbock, Texas, appellees.
   REYNOLDS, Justice.

A declaratory judgment validated all proceedings respecting the City of Lubbock, Texas, 21 May 1977 bond election and denied all relief sought in an action to set aside the election. The judgment is impervious to the attacks made on appeal. Affirmed.

The City of Lubbock, Texas, a home rule municipal corporation, enacted Ordinance No. 7429 calling a bond election to determine if the qualified voters would authorize the issuance of general obligation bonds totalling $26,435,000 under six propositions for permanent improvements. The first two of the six propositions were for the authorization of bonds (1) in the sum of $16,775,000 for the purpose of “constructing improvements and extensions to the City’s waterworks system,” and (2) in the sum of $3,303,000 for the purpose of “constructing improvements and extensions to the City’s sanitary sewer system.” Under each of the six propositions, the bonds were “to be issued and sold at any price or prices and to bear interest at any rate or rates as shall be determined within the discretion of the City Council at the time of issuance.” Each of the six propositions submitted at the 21 May 1977 election was approved by an approximate 2-to-l vote margin.

Tax Payers Association of Lubbock, Texas, and its president, James G. Marshall, brought an action against the city and its governing officials to set aside the bond election on the ground that the ordinance calling the election was legally defective. The city then instituted action sanctioned by Article 717m to declare and determine the legality of all the bond proceedings.

Thereafter and before trial, the city, by Ordinance No. 7512, authorized the issuance of $2,720,000 general obligation bonds for permanent improvements, including improvements and extensions to the waterworks and sanitary sewer systems. As authorized, the bonds “. . . shall bear interest from date to maturity at per an-num rates to be established at the time said bonds are sold (but in no event shall any bonds of this series bear interest at a rate in excess of 10% per annum) . . ..”

Consolidating both actions, the trial court heard the matters without the intervention of a jury. The court rendered judgment declaring, after a particularization of findings, that all proceedings taken and proposed to be taken in connection with the bonds are valid and that all relief sought by Tax Payers Association and Marshall is denied.

Tax Payers Association and Marshall have appealed. Asserted are these major grounds: (1) the bond ordinances are invalid because of the failure to specify (a) a specific rate of interest for the bonds and (b) a specific purpose or purposes to be accomplished by the first two propositions; and (2) the court erred in failing to permit the reopening of the evidence or to grant a new trial because of newly discovered evidence.

[I] Appellants first assert that because Article 703(3), an 1899 enactment, reads that “[t]he proposition to be submitted shall distinctly specify . . . the rate of interest,” and the city’s charter mandates that its bonds “bear interest not to exceed six (6) percent per annum,” the ordinances permitting an interest rate not to exceed ten per cent are invalid. The city responds that its ordinances are immune from that attack because Article 717k-2, enacted effective 11 September 1969 and in effect on the date of trial, authorizes the issuance and sale of public securities “at any price or prices and bearing interest at any rate or rates, as shall be determined within the discretion of the governing body of the public agency” and “notwithstanding the provisions or restrictions of any general or special law or charter to the contrary,” unless “otherwise specifically fixed by the Constitution.”

The same issue and contentions divided the court in Moore v. City of Corpus Christi, 542 S.W.2d 720 (Tex.Civ.App. — Corpus Christi 1976, writ ref d n. r. e.). The majority, rationalizing that Article 717k-2 was enacted to relieve legal restrictions on the rate of interest, held that the proposition itself is not required to state an exact rate of interest the bonds will bear. 542 S.W.2d at 724-25. The Supreme Court found no reversible error in the holding and, applied here, it determines the initial issue adverse to appellants’ assertion.

Second, appellants submit that the only purposes alluded to in propositions 1 and 2 are too general and global to distinctly set forth the explicit purposes for which the bond money is to be spent. They argue that the voters were misled because the propositions, as worded, permit expenditures for general, unspecified purposes.

The requirement of Article 703(1) is that the proposition shall distinctly specify the purpose for which the bonds are to be issued, but there is no legal requirement that the proposition must describe each project contemplated. Garcia, v. Duval County, 354 S.W.2d 237, 239 (Tex.Civ.App.—San Antonio 1962, writ ref’d n. r. e.). Thus, a legal and sufficient purpose is stated when the bonds are to be issued “for the purpose of improving and extending said City’s Waterworks System,” City of Roma v. Gonzalez, 397 S.W.2d 943, 945 (Tex.Civ.App.—San Antonio 1965, writ ref’d n. r. e.), or “to secure funds to aid in the construction, purchase, extension and improvement of” either “a waterworks system in and for the city” or “a sanitary sewer system.” Texsan Service Co. v. City of Nixon, 158 S.W.2d 88, 90-91 (Tex.Civ.App.—San Antonio 1941, writ ref’d). Whether the voters will acquiesce to a proposition which does not include a specification of particulars is a matter addressed to their discretion. Garcia v. Duval County, supra, at 239. Accordingly, the purposes stated in the first two propositions are legally sufficient to withstand the attacks made on them.

And last, appellants charge the trial court with an abuse of discretion in failing either to permit reopening of the evidence or to grant a new trial because of newly discovered evidence. The evidence alleged to have been discovered immediately following the trial is that 3.3 million dollars allocated out of a former bond issue for an interconnection between the city’s power facility and a private power company were not expended on the interconnection, and, in fact, the interconnection has not been built.

To merit the relief denied, appellants were required to meet the criteria set forth in New Amsterdam Casualty Company v. Jordan, 359 S.W.2d 864, 866 (Tex. 1962). One criterion is that the evidence must have come to their knowledge since the trial. The very evidence claimed to have been discovered after trial was made a part of the city’s original pleadings and was included in one of appellants’ own exhibits introduced during the trial. In view thereof, and aside from whether appellants met the other criteria for relief, there was no abuse shown on the part of the trial court.

Whether mentioned or not, all facets of appellants’ points of error have been considered. We do not find that reversible error has been presented. All points are overruled.

The judgment is affirmed.

      . All references to articles are to the articles appearing as Vernon’s Annotated Civil Statutes of Texas.

      . Amended effective 29 August 1977, Article 717k-2 (Supp.1978) now provides in Sec. 2 that “[t]he maximum rate of interest for any issue or series of public securities shall be a net effective interest rate of ten per cent (10%), and any public agency is hereby authorized to issue and sell any issue or series of its public securities at any price or prices and bearing interest at any rate or rates (provided that the net effective interest rate does not exceed ten per cent (10%)) . . . .”


author: PHILLIPS, Chief Justice.

text:
    EMPLOYERS CASUALTY COMPANY et al., Appellants, v. Max W. SLOAN, Individually and as next friend of Cathy Sloan, a minor, Appellees.
    No. 12721.
    Court of Civil Appeals of Texas, Austin.
    April 26, 1978.
    Rehearing Denied May 17, 1978.

      J. A. Kever, Kever & Ratliff, San Angelo, for Employers Cas. Co.
    John H. Hofmann, Smith, Davis, Rose, Finley & Hofmann, San Angelo, for Southern Farm Bureau Cas. Ins. Co.
    Tom Webb, Max Parker, Webb, Stokes & Sparks, San Angelo, for appellees.
   PHILLIPS, Chief Justice.

Appellants, Employers Casualty Company and Southern Farm Bureau Casualty Insurance Company, appeal from the judgment rendered in favor of appellee, Max W. Sloan, individually and as next friend of Cathy Sloan, a minor.

The judgment is reformed, and as reformed, the judgment is affirmed.

Appellee, as plaintiff below, brought this suit to recover damages individually and on behalf of Cathy Sloan who was injured in an automobile accident on June 22, 1973. At the time of the accident, she was a passenger in an automobile belonging to Howe F. Mayse that collided with an automobile owned and operated by Terry Lee Burchers, an uninsured motorist. The negligence of Burchers was the proximate cause of the accident.

Prior to June 19,1972, Mayse had individual insurance policies on his automobiles and pickups. Some of these individual policies provided for uninsured motorist coverage and some did not. There was a written rejection of coverage on all these policies that did not provide for uninsured motorist coverage; however, there was uninsured motorist coverage on the individual policy issued by Southern covering the 1970 Oldsmobile automobile involved in the accident.

On-June 19, 1972, all of the individual policies were canceled and the “First Fleet Policy” was issued to Mayse by Southern. This fleet policy did not contain a written endorsement for uninsured motorist coverage, and the policy declaration page did not show a charge for or an indication of coverage for uninsured motorist insurance. Mayse signed the application attached to the policy that listed all of his automobiles and types of coverage. Other than the application, Mayse did not execute a written rejection of uninsured motorist coverage. The 1970 Oldsmobile involved in the accident was one of the vehicles insured by the “First Fleet Policy.” Mayse orally rejected uninsured motorist coverage in connection with this insurance policy.

On the date of the accident, June 22, 1973, Mayse had a “Second Fleet Policy” issued by Southern in force and effect. This policy did not contain a written endorsement for uninsured motorist coverage, and the policy declaration page did not show a charge for or an indication of coverage for uninsured motorist insurance. The “Second Fleet Policy” was a renewal of the “First Fleet Policy.” The 1970 Oldsmobile involved in the accident was one of the vehicles insured by the “Second Fleet Policy.” Mayse did, not make a written or oral request for or written rejection of uninsured motorist coverage on this policy. At the time Mayse received both fleet policies, he was aware of the fact that such policies did not specifically provide for uninsured motorist coverage.

On the date of the accident, Max W. Sloan, father of Cathy Sloan, had an automobile liability insurance policy with Employers that provided for uninsured motorist coverage. Cathy Sloan was a minor child living in the home of her father at the time of the accident.

Both the Southern policy and the Employers policy in force and effect at the time of the accident had “other insurance” provisions. Each policy provided that, in the event there was other insurance, the policy would only apply as excess insurance over any other similar insurance available to the insured.

This case was originally tried before a jury and the verdict of the jury was returned. A new trial was granted and all parties agreed that the court could assess damages upon the previous testimony heard in the trial of the case before the jury. Based on article 5.06-1, Tex.Ins.Code Ann., and Rule 10 of the State Board of Insurance, the court found that there was uninsured motorist coverage afforded Mayse and passengers in his vehicle under the Southern policy in effect at the time of the collision because there was no rejection of uninsured motorist coverage in writing by Mayse. The court also found that Southern and Employers were jointly and severally liable to Cathy Sloan for the amount of her injuries. Accordingly, the court rendered judgment in favor of appellee, as next friend of Cathy Sloan, for $15,000.00 against Southern and Employers, jointly and severally.

Southern is before this Court on three points of error. It contends: (1) the trial court erred in rendering judgment for Mayse because the judgment was based on uninsured motorist coverage that had been orally rejected by Mayse; (2) the trial court erred in basing its judgment on Rule 10 because the State Insurance Board does not have the authority to promulgate a rule that requires rejection of uninsured motorist coverage to be in writing; (3) the trial court. erred in rendering judgment for Mayse because the judgment was based on uninsured motorist coverage that did not exist because Mayse waived the written rejection requirement set forth in Rule 10 of the State Board of Insurance Regulations.

Employers agrees with the trial court that rejection in writing of uninsured motorist coverage is required but challenges the judgment by two points. It contends: (1) the trial court erred in holding that, as between the companies, each was equally liable to Mayse because the policies provide otherwise; (2) the trial court erred in ruling that the two companies were jointly and severally liable to Mayse for $15,000.00 since the policy limits for each company is specified in the policy at $10,000.00.

I.

We cannot agree with Southern’s contention that uninsured motorist coverage was effectively rejected. In our opinion, the trial court was correct in holding that uninsured motorist coverage existed unless rejected in writing by an insured.

Article 5.06-1, Uninsured or Underin-sured Motorist Coverage, Tex.Ins.Code Ann. (Supp.1978), provides in part:

“(1) The coverages required under this Article shall not be applicable where any insured named in the policy shall reject the coverage; provided that unless the named insured thereafter requests such coverage in writing, such coverage need not be provided in or supplemental to a renewal policy where the named insured has rejected the coverage in connection with a policy previously issued to him by the same insurer.”

Rule 10 of the Texas Automobile Casualty Manual drafted by the State Board of Insurance provided:

“Protection Against Uninsured Motorist Coverage shall be afforded under any automobile liability policy, including a policy obtained through the Texas Automobile Plan, insuring the owner of a motor vehicle registered or principally garaged in the State of Texas, except that the insured shall have the right to reject in writing such coverage. . . . ” (Emphasis added)

By the enactment of article 5.06-1, the Legislature declared it to be the public policy of this state to make uninsured motorist coverage a part of every liability insurance policy issued, with certain limited exceptions. In furtherance of the Legislature’s declared policy, it has been held that article 5.06-1 should be interpreted liberally to give effect to the public policy declared therein, Francis v. International Service Ins. Co., 533 S.W.2d 408 (Tex.Civ.App. Texarkana 1976, aff’d, 546 S.W.2d 57 (Tex.)), and, as a corollary, “words providing an exception to the general rule of article 5.06-1 should be strictly construed.” Guarantee Ins. Co. of Texas v. Boggs, 527 S.W.2d 265 (Tex.Civ.App.Amarillo 1975, writ dism’d).

Appellant Southern argues that a comparison of the language in article 5.06-1(1) (Uninsured Motorist Coverage), and article 5.06-3(a) (Personal Injury Protection Coverage), indicates the legislative intent that uninsured motorist coverage may be effectively rejected orally. Article 5.06-3(a) specifically sets out that coverage shall be provided unless the insured named in the policy rejects the coverage in writing.

One answer to Southern’s argument is that article 5.06-1 was enacted in 1967 and Rule 10 requiring written rejection of uninsured motorist coverage was adopted by the Insurance Board in 1968. The Legislature enacted article 5.06-3 in 1973. Therefore, article 5.06-1 was not amended to require a written rejection since Rule 10 satisfied that requirement.

Southern cites a federal case and case authority from other jurisdictions for the proposition that under the statutory context of article 5.06-1(1), an oral rejection of uninsured motorist coverage is sufficient and a written rejection is not required.

Conceding arguendo that it has been held, in decisions involving statutes silent on the manner of rejection, that a rejection of uninsured motorist coverage may be effective even if not reduced to writing, see 55 A.L.R.3d 216 (1974), the problem with Southern’s position is that in those cases, unlike the situation here, rejection in writing was not required by a rule or regulation of the respective agency regulating insurance. Here, Rule 10, issued by the State Board of Insurance, provided simply that each policy of public liability insurance issued would automatically provide uninsured motorist coverage unless such protection was rejected in writing.

Appellant Southern also contends the State Board of Insurance exceeded its authority in adopting Rule 10 in that it limited rejection of uninsured motorist coverage to written rejection. Thus, the question we must decide is whether Rule 10 was properly issued.

A review of the applicable statutes, legislative intent and the public policy served thereby, demonstrates to this Court that the Board was authorized to promulgate Rule 10 and require a written rejection of uninsured motorist coverage.

Article 5.10, Tex.Ins.Code Ann. (1963), provides that the Insurance Board is authorized to make and enforce rules and regulations “not inconsistent with the provisions of this subchapter as are necessary to carry out its provisions . . .’’In the exercise of such authority “the Board may not act contrary to but only consistent with, and in furtherance of, the expressed statutory purposes.” American Liberty Ins. Co. v. Ranzau, 481 S.W.2d 793 (Tex.1972). In construing a statute, this Court “should ascertain and be guided by the Legislature’s intention.” Carp v. Texas State Board of Examiners of Optometry, 401 S.W.2d 639 (Tex.Civ.App. Dallas 1966, rev’d on other grounds, 412 S.W.2d 307 (Tex.)).

The intent of the Legislature and the purpose of article 5.06-1 are manifested upon analysis of the statute. Article 5.06-1 was passed “. . . for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles . . ”

The emergency clause of the Act that added article 5.06-1 to the Insurance Code provides:

“Sec. 3. The fact that the people of Texas are constantly exposed to financial loss caused by negligent financially irresponsible motorists, and the further fact that it is the intent and purpose of this Act to provide a means of protecting the conscientious and thoughtful motorist against such loss, thereby benefiting all the citizens of this state, constitutes an emergency . . .” Texas Laws 1967, Chapter 202, Section 3, at 449.

The objective of the Legislature in passing the uninsured motorist statute was to provide financial protection for motorists damaged by tort-feasors who are unable to pay for the damage inflicted, see Francis v. International Service Ins. Co., supra, and, as previously stated, because of the remedial purpose of uninsured motorist coverage, the words providing an exception to the general rule of article 5.06-1 should be strictly construed to protect the insured. See Guarantee Ins. Co. of Texas v. Boggs, supra.

In Gerst v. Oak Cliff Savings and Loan Association, 432 S.W.2d 702 (Tex.1968), the Supreme Court stated that the determining factor in deciding the question of whether or not a particular administrative agency has exceeded its rule-making powers is that the rule’s provisions must be in harmony with the general objectives of the act involved. See also Kee v. Baber, 157 Tex. 387, 303 S.W.2d 376 (1957), and this Court’s opinion in Jefeo, Inc. v. Lewis, 520 S.W.2d 915 (Tex.Civ.App.Austin 1975, writ ref’d n. r. e.). The evidence in this record is that the State Board of Insurance did not prescribe any standard wording or form relative to Uninsured Motorist Coverage Rejection. The execution of a satisfactory written rejection would require only a minimum of effort by those rejecting uninsured motorist coverage. To hold that uninsured motorist coverage can be excluded by an oral rejection would do violence to the spirit of the uninsured motorist statute. It would not only invite abuses, but would give rise to litigation, of the kind now before us, concerning the existence of uninsured motorist coverage. This would defeat the manifest public policy that uninsured motorist coverage is to be provided in the absence of a clear and specific rejection knowingly entered into by the insured. We find that Rule 10 of the State Board of Insurance was in harmony with the general objectives of the uninsured motorist statute and, therefore, was properly issued.

We also overrule Southern’s contention that Mayse waived the written rejection requirement set forth in Rule 10 of the State Board of Insurance Regulations. For the reasons expressed above, we conclude that an oral rejection was ineffective to preclude uninsured motorist coverage.

II.

Appellant Employers contends that the trial court erred in entering judgment providing that, as between the two insurance companies, each company “. . . was equally liable for Plaintiff’s damages.” An examination of the judgment demonstrates that it does not provide that the companies are “equally liable” for damages; instead, the judgment provides that the insurance companies are jointly and severally liable to appellee. The point is overruled.

Employers further contends that the trial court erred in holding that Southern and Employers are jointly and severally liable for the total amount of appellee’s damages.

As previously stated, the policies in question provided that if the car in which the insured was riding had insurance coverage available to insured, the other policy would constitute only excess coverage. The maximum limit of liability for each company was specified in the policy at $10,000.00.

In American Liberty Ins. Co. v. Ranzau, supra, the Supreme Court held that an “other insurance” clause did not limit the recovery of actual damages caused by uninsured motorists and that the “other insurance” or “excess insurance” provision could not prevent the insured from recovering under another policy in an amount equal to the limit provided in her own policy, where actual loss was more than the limit. Accord American Motorists Ins. Co. v. Briggs, 514 S.W.2d 233 (Tex.1974), wherein the Court stated:

“Following this holding [Ranzau], we now hold that the statute [Uninsured Motorist] requires that whenever coverage exists under the uninsured motorist endorsement, the person covered has a cause of action on the policy for his actual damages to the extent of the policy limits without regard to the existence of other insurance. If coverage exists under two or more policies, liability on the policies is joint and several to the extent of plaintiff’s actual damages, subject to the qualification that no insurer may be required to pay in excess of its policy limits

Thus, where multiple coverage exists, if an insured incurs damages in excess of the policy limits caused by the negligence of an uninsured motorist, the insured can recover from either insurance company having coverage. Either company may be held liable to the injured insured for the full amount of damages sustained up to the policy limits. Therefore, we reform the judgment of the trial court to provide recovery by appellee for $15,000 against appellants Southern and Employers. Appellants Southern and Employers are jointly and severally liable to appellee to the policy limits of the respective policies. American Motorists Ins. Co. v. Briggs, supra.

The judgment of the trial court is reformed, and as reformed, judgment is affirmed.

      . Hereinafter referred to as “Employers.”

      . Hereinafter referred to as “Southern.”

      . Now Rule 18.

      . Lamb v. Midwest Mutual Ins. Co., 296 F.Supp. 131 (W.D.Ark. 1969), affd, 421 F.2d 179 (8th Cir. 1970).

      . Lichtenberger v. American Motorists Ins. Co., 7 N.C.App. 269, 172 S.E.2d 284 (1970); Abate v. Pioneer Mutual Casualty Co., 22 Ohio St.2d 161, 258 N.E.2d 429 (1970); Southeast Title and Ins. Co. v. Thompson, 231 So.2d 201 (Fla.1970); Aldcroft v. Fidelity and Casualty Co., 106 R.I. 311, 259 A.2d 408 (1969).


author: O’QUINN, Justice.

text:
    Thomas L. WALTERS, Appellant, v. Linda K. WALTERS, Appellee.
    No. 12707.
    Court of Civil Appeals of Texas, Austin.
    May 3, 1978.
    Keith E. Kisner, Law Offices of M. N. Garcia, Austin, for appellant.
    Fred McLeroy, Travis County Legal Aid and Defender’s Society, Austin, for appel-lee.
   O’QUINN, Justice.

This appeal is from an order of district court requiring appellant to pay child support.

Thomas L. Walters, the appellant, and Linda K. Walters, appellee, were married on November of 1954 and were divorced in November of 1972. At that time custody of the five children of that marriage was awarded to appellant. Later appellee sought custody of the three girls, but at the hearing leading to the court’s final order in June of 1977, only one child was still a minor subject to custody orders.

Appellant contends that the trial court erred in finding that the divorce decree of November, 1972, was res judicata as to the issue raised below by appellant that he was not the natural father of the child born in November of 1967 during the marriage.

The trial court filed findings of fact and conclusions of law in which the court found that the child is a child of the marriage of the parties. The court concluded (1) that the divorce decree has a res judicata effect as to the issue of whether the child is a child of the marriage; (2) that there was some legally sufficient evidence, which, except for the effect of the doctrine of res judicata could establish that appellant is not the natural father of the child.

The doctrine of collateral estoppel, or as sometimes phrased estoppel by judgment, constitutes a rule which bars relitigation, in a subsequent suit upon a different cause of action, of the fact issues actually litigated in the earlier suit which were essential to the prior judgment. Benson v. Wanda Petroleum Company, 468 S.W.2d 361, 362 (Tex.Sup.1971); Kirby Lumber Corporation v. Southern Lumber Company, 145 Tex. 151, 196 S.W.2d 387, 388 (1946). The litigation on appeal falls within the doctrine and rule of law.

At the time the divorce was granted in 1972 Article 4639a, V.A.C.S. (repealed by Acts 1973, 63rd Leg., p. 1458, ch. 543, sec. 3, eff. Jan. 1, 1974), was in effect. That statute provided that no court could hear a divorce action unless the name, age, sex, and residence of every minor child born of the marriage was included in the petition, or, in the alternative, the petition contained a statement that there were no children of the marriage. The statute made it the duty of the trial court to determine the names, ages, and sex of all children born of the marriage and to provide by order for their care, custody, and support. The finding that the child who is the subject of this appeal was a “child born of the marriage” was a fact issue actually litigated and essential to the prior judgment.

It is noted that appellant brought the original divorce action and elected not to make an issue of whether he was the natural father of the child. In fact, as petitioner in that action appellant alleged that the subject child, as well as the other four children, were “born of this marriage,” and sought custody of all five children. A decree in child custody matters under Article 4639a was final and res judicata in the sense that the facts upon which the decree was entered may not be relitigated in a subsequent suit. Lakey v. McCarroll, 134 Tex. 191, 134 S.W.2d 1016, 1020 (1940).

A finding that the child was “born of the marriage” is equivalent to a finding that appellant is the father of the child in this case, and is therefore res judicata as to appellant. Appellant will not be permitted, on a further hearing on custody, to raise for the first time a contention that the child was not born of the marriage and that he is not the father of the child. That issue was settled against appellant in the divorce decree in 1972. Byrd v. Travelers Insurance Company, 275 S.W.2d 861, 863 (Tex.Civ.App.San Antonio 1955, writ ref’d n. r. e.).

The judgment of the trial court is affirmed.

Affirmed.


text:
    REPUBLIC INSURANCE COMPANY, Appellant, v. Dennis HAVERLAH, Appellee.
    No. 12720.
    Court of Civil Appeals of Texas, Austin.
    May 3, 1978.

      Wayne H. Prescott, Brown, Maroney, Rose, Baker & Barber, Austin, for appellant.
    Jonathon H. Smith, Austin, for appellee.
   O’QUINN, Justice.

The controlling issue in this appeal is whether an unoccupied aircraft, damaged while “in motion” on the ground, was at the time being “operated by a licensed pilot” within coverage of the policy of insurance sued upon.

Dennis Haverlah brought this suit against Republic Insurance Company for damages to an airplane owned by Haverlah under a policy of insurance Haverlah claimed protected against such loss. Republic Insurance denied liability on the ground that the aircraft was not at the time of the accident being operated by a licensed pilot as required under the policy.

The facts in brief are that Haverlah, who is a licensed pilot, taxied the plane from its hangar to a location for performing maintenance. After stopping the airplane, with the engine running, Haverlah stepped from the plane to place chocks in front of the wheels. The aircraft moved forward downhill and was damaged when it crashed into a grove of nearby trees. Because the cockpit of the plane was not occupied by Haver-lah, or another licensed pilot, Republic contended the plane was not being “operated by a licensed pilot” within terms of the policy.

Provisions of the policy relative to the issue in this case are “Paragraph Y,” titled “All Risks While in Motion,” and “Paragraph I” specifying exclusions.

Under Paragraph Y of the “Insuring Agreements” the insurer agrees “. to pay for direct loss or damage to the aircraft . . . occurring while the aircraft is in motion under its own power or momentum . . .” Under Paragraph I of the “Exclusions” the policy is made not to apply to “. . . any occurrence or to any loss or damage occurring while the aircraft is operated, while in motion, by other than the pilot or pilots set forth under Item 7 of the Declarations.”

The effect of Item 7 is to name the licensed pilots. But in this appeal it is undisputed that Haverlah is a licensed pilot and no issue is made of that fact. The insurance company contends only that there is no coverage under the policy because at the moment of collision the aircraft, although “in motion,” was nevertheless not “operated by a licensed pilot” who, in reality, was standing on the ground, with chocks in his hand, but not sitting in the cockpit.

Both parties moved for summary judgment in the trial court. The court denied the motion of Republic Insurance and granted that of Haverlah. We will affirm the judgment of the trial court.

Republic Insurance brings two points of error, both of which essentially present the insurer’s contention that even though the aircraft was in motion, the company is not liable because at the time of collision no licensed pilot was operating the aircraft.

The undisputed facts are that Haverlah started the engine of the aircraft; taxied the craft to a predetermined position for maintenance operations; set the handbrake designed to hold the aircraft in place; stepped out of the cockpit temporarily to place blocks under the wheels; and planned to check the aircraft engine operation at that location, later return the plane to the hangar, and there allow the warm oil to drain. Appellee contends that these steps clearly describe “operation” within the commonly understood meaning of the word, that he was the person in charge, or the “operator” throughout these actions, and no other person was present to “operate” the aircraft.

Neither party by brief or oral argument has presented authority purporting to pass on the precise question in this case, nor have we found any such authority. Use of such terms as “operated by,” or “engaged in operating,” as those terms or their equivalents may be used in an automobile insurance policy, have been considered in numerous cases.

It is clear from these cases that a narrow construction of the word “operate,” in the sense of actual mechanical movement of an automobile, is not favored by a majority of the courts. For example, an insured has been held to have been operating an automobile in the act of jumping up and down on the bumper in an effort to disengage it from the bumper of another vehicle. Crol-lard v. Northern Life Ins. Co., 240 Mo.App. 355, 200 S.W.2d 375 (1947). See generally 6 Blashfield, Cyc. of Automobile Law and Practice, Perm. Ed., sec. 4127.

In Texas it has been held that a driver who had stopped his car, cut off the motor, opened the door to step out, and “while he was in the act of getting out” stepped upon some object on the ground resulting in injury to his ankle, . . was injured while operating his automobile within the meaning of the terms of his insurance contract . . .” Southern Surety Co. v. Davidson, 280 S.W. 336 (Tex.Civ.App. Fort Worth 1926, no writ). In a later case, where the insured had entered the automobile, taking his place in the driver’s seat at the steering wheel for the purpose of starting the car and returning to the city from a hunting trip, was by the parties conceded to be “engaged in operating” the automobile, under authority of Davidson. Dorsey v. Fidelity Union Casualty Co., 52 S.W.2d 775, 776 (Tex.Civ.App. Waco 1932, writ dism’d).

Other absences from the driver’s seat did not preclude a finding that the insured was operating the automobile in the following cases. The term “operating” does not contemplate a constant and unceasing motion, but includes such stops as the driver ordinarily makes in the course of operating a car, and moments of rest are as much the operating of a car as moments of progress. Union Indemnity Co. v. Storm, 86 Ind.App. 562,158 N.E. 904 (1927). A driver who had stopped his car for the necessary purpose of changing or mending a tire, and was employed in that work with the customary tools, in the usual manner, was engaged in operation of the car. Kennedy v. Maryland Casualty Co., 26 F.2d 501 (W.D.La.1928). The driver who sustained injuries from the skidding of an automobile he was pushing to assist a wrecker was also “operating” the car within the meaning of the insurance policy. Merklein v. Indemnity Ins. Co. of North America, 214 Wis. 23, 252 N.W. 280 (1934).

Appleman, with respect to operating of an automobile, defines the term as involving personal physical management by the person. 7 Appleman, Insurance Law and Practice, sec. 4314. Pursuing the analogy of the automobile further, two cases decided by Illinois courts are persuasive in concluding that no significant difference is apparent in applying the rule to the operation of an aircraft under the facts of the present case. In Vesely v. Prestige Casualty Co., 4 Ill.App.3d 726, 281 N.E.2d 724, 725 (1972), the policy endorsement excluded coverage when the automobile was being operated by insured’s son-in-law. The court held there was no coverage because the son-in-law was operating the automobile which he had stopped, and, leaving the engine running, had left while he stepped into a package store to make a purchase. The accident occurred in his brief absence. In the present case Haverlah was away from the plane for the immediate purpose of fetching wheel chocks, when the plane moved under its own power to be damaged in the trees, yet by the rule stated in Vesely, Haverlah continued to operate the aircraft. In 1974 the Illinois court held that a person was operating an automobile while engaged in repairs on the vehicle while it was stopped in a service station. Heritage Ins. Co. of America v. Phelan, 17 Ill.App.3d 443, 308 N.E.2d 176 (1974).

Other cases from other jurisdictions consistent with the conclusions reached by the authorities already considered include the following. The Supreme Court of South Carolina held that a vehicle was being operated, although it was parked at a service station while the driver was eating lunch. Stephens v. Cottingham, 237 S.C. 108, 115 S.E.2d 505, 508 (1960). A Federal court held that the insured was operating a tractor-trailer which was standing in the highway, broken down, while its cargo was being unloaded. Liberty Mutual Ins. Co. v. McDonald, 97 F.2d 497 (6th Cir. 1938).

Appellant insists that Haverlah had to be in the cockpit in order to be “operating the aircraft” at the time of the accident. This position is contrary to the rule applied in automobile cases involving construction of provisions in an insurance policy similar to the provisions of the policy in this case. We conclude that the analogy of the automobile to the aircraft, under the facts of this case, is sound, and we apply the principles of those cases. Haverlah as a licensed pilot was in personal physical management of the aircraft, performing customary acts of maintenance and handling, so as to place him in the position of operating the plane on the occasion of the accident.

The judgment of the trial court is affirmed.


text:
    H. R. BENTLEY, Jr., Appellant, v. Jack ANDREWARTHA, Appellee.
    No. 12724.
    Court of Civil Appeals of Texas, Austin.
    May 3, 1978.

      Patricia A. English, Stubbeman, McRae, Sealy, Laughlin & Browder, Austin, for appellant.
    Michael G. Mullen, Brown, Maroney, Rose, Baker & Barber, Austin, for appellee.
   PHILLIPS, Chief Justice.

Appellee sued appellant for $20,017.26 for debt and for breach of a general warranty to convey good title to real estate. Appel-lee filed a motion for summary judgment on his claim for breach of warranty.

The district court severed the cause for debt from the cause for breach of warranty. The court then entered summary judgment for appellee for $7,017.26 for breach of warranty. It is from this summary judgment that appellant has perfected his appeal to this Court.

We reverse the judgment of the trial court and remand the cause for trial.

Appellant is before us on three points of error all directed toward the error of the court in granting the summary judgment despite the presence of fact issues. We sustain these points because, in our opinion, the summary judgment proof presents a fact situation that can be resolved only by a trial on the merits.

The summary judgment proof shows that appellant is appellee’s son-in-law. Appellant contends that as a result of this relationship the parties engaged in a series of transactions over a period of four and one-half years in an atmosphere of mutual understanding and trust. One such transaction is the basis for this appeal.

In August of 1975 appellant conveyed by general warranty deed two unimproved lots in Travis County, lots 11 and 21 in Block A, Barton Hills, Section 7. Neither of these lots was encumbered at the time of this conveyance.

In June of 1976, the parties agreed to substitute lot 22 in the above-mentioned subdivision for lot 21 and did so at appel-lee’s request. The record is not clear as to the mechanics of this substitution; however, appellant swore in the affidavit that appellee was fully aware of an encumbrance on lot 22 in the amount of $7,017.26, and that appellee orally agreed to assume this debt and did, in fact, discharge the encumbrance. The parties had determined lot 22 to be more valuable than lot 21 in the amount of the encumbrance, and that such increase in the value of the property would be offset by appellee assuming the encumbrance. The recited consideration of the warranty deed that made the basis of ap-pellee’s claim was “TEN DOLLARS and other valuable consideration.”

Then the familial relationship between these parties deteriorated. Divorce proceedings were begun by appellant and ap-pellee’s daughter.

As previously stated, the summary judgment that is the basis of this appeal awarded appellee $7,017.26 on the deed for breach of warranty. This was the amount of the lien against lot 22 that appellee has discharged as described above.

Appellant maintains that the court erroneously granted summary judgment by ignoring the facts outlined above; however, appellee contends that the court had no other recourse. Appellee argues that the pleadings before the court establish that lot 22 was conveyed to him by general warranty deed, that appellant’s signature thereon was valid and that there was the encumbrance on the lot. Appellee further contends that the court had no alternative but to grant the summary judgment, as all elements of appellee’s claim against appellant arising from a breach of the covenant of general warranty contained in the deed made the basis of the suit were established as a matter of law.

Summary judgment proof must establish, as a matter of law, that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970). In this regard, we will consider only the summary judgment evidence before the court at the time of the hearing on the motion for summary judgment on July 7,1977. Whitney Properties Corp. v. Moran, 494 S.W.2d 587 (Tex.Civ.App.1973, no writ); McCormick v. Stowe Lumber Co., 356 S.W.2d 450 (Tex.Civ.App.1962, writ ref’d n. r. e.). Having done so, we conclude that the trial court erred in granting summary judgment because the summary judgment proof in the record raises a genuine issue of material fact as to the true consideration for the conveyance.

It has been the law of this state since 1900 that parol evidence is admissible to show that at. the time of the execution of the deed in question, it was agreed between the parties that the grantee would assume and pay off an incumbrance on the property. Johnson v. Elmen, 94 Tex. 168, 59 S.W. 253 (1900); Ewing v. McGee, 314 S.W.2d 158 (Tex.Civ.App.1958, writ dism’d). See 2 McCormick and Ray, Texas Law of Evidence, § 1613 (1956). Likewise, parol evidence is admissible to show the true consideration where, as here, the warranty deed recites ten dollars and other valuable consideration. Latham v. Dement, 409 S.W.2d 429 (Tex.Civ.App.1966, writ ref’d n. r. e.) and cases cited therein. It is also well settled that, as between the original parties, it is not necessary to allege fraud, accident, or mistake in order to show the true consideration for a conveyance. Puckett v. Friz-zell, 377 S.W.2d 715 (Tex.Civ.App.1964, no writ) and cases cited therein.

Since the record before us raises a genuine issue of material fact as to the consideration for the conveyance that should be resolved by trial on the merits and discloses that appellee is not entitled to summary judgment, we reverse the judgment of the trial court and remand the cause for trial.

      . Appellee cites Triplett v. Shield, 406 S.W.2d 941 (Tex.Civ.App.1966, writ refd n. r. e.); Wolff v. Commercial Standard Insurance Co., 345 S.W.2d 565 (Tex.Civ.App.1961, writ refd n. r. e.).

      . Several answers, responses, and motions were filed after July 7, 1977.


author: NYE, Chief Justice.

text:
    Edgar HALL, Jr., et al., Appellants, v. FORD MOTOR COMPANY, Appellee.
    No. 1294.
    Court of Civil Appeals of Texas, Corpus Christi.
    May 4, 1978.
    Rehearing Denied May 24, 1978.

      Bill Blackburn, Corpus Christi, for appellants.
    Lawrence M. Ludka, M. W. Meredith, Jr., Meredith & Donnell, Corpus Christi, for ap-pellee.
   OPINION

NYE, Chief Justice.

This is a venue case which involves subdivision 31 of Article 1995, Tex.Rev.Civ.Stat. Ann. (Supp.1978). Plaintiffs, Edgar and Carol Hall, individually and on behalf of their minor children, brought suit in Nueces County against defendant Ford Motor Company for damages and personal injuries plaintiffs allegedly suffered as a result of a motor vehicle accident. Defendant Ford Motor Company filed a plea of privilege alleging venue to be maintainable only in Dallas County, the county of its corporate residence. Plaintiffs controverted Ford’s plea of privilege on the basis that venue was maintainable in Nueces County under subdivision 31 of the venue statute. The case was submitted on an agreed statement of the case. The trial court sustained Ford’s plea of privilege and ordered the case transferred to Dallas County. Plaintiffs have perfected their appeal to this Court.

Plaintiffs relied upon the following portion of subdivision 31 to maintain venue in Nueces County:

“Suits for breach of warranty by a manufacturer of consumer goods may be brought ... in the county where the plaintiff or plaintiffs reside.”

The agreed facts upon which this case was submitted to the trial court at the venue hearing and to this Court on appeal are as follows, that: a) this is a suit for breach of warranty by a manufacturer of consumer products; b) Ford Motor Company is a manufacturer of consumer products; c) it did manufacture a consumer product, an Econoline van, in which plaintiffs were riding at the time of the accident; and d) plaintiffs are residents of Nueces County, Texas, and have been at all relevant times. It was further stipulated that plaintiffs offered no proof of their cause of action against Ford, and Ford did not stipulate facts that were sufficient to prove a claim for breach of warranty by a manufacturer of consumer products. Based upon these agreed facts, the trial court sustained Ford’s plea of privilege because the plaintiffs failed to establish a cause of action against Ford for breach of warranty. Neither party questions the sufficiency of any of the pleadings.

The only question presented on appeal is whether or not, in addition to these stipulated facts, the plaintiffs were required to prove, by a preponderance of the evidence, the existence of a valid cause of action against Ford for breach of warranty.

It is the general rule that a defendant who is an inhabitant of this state shall be sued in the county of his domicile except in specific enumerated exceptions. When a defendant has challenged venue by filing a proper plea of privilege, the plaintiff then has the burden to plead and prove the facts relied upon to bring his case within one of the specific exceptions. Burtis v. Butler Bros., 148 Tex. 543, 226 S.W.2d 825, 828 (1950), and authorities cited therein. If a plaintiff relies upon a specific enumerated exception contained in Article 1995 after the defendant has asserted his privilege, the plaintiff must allege and prove those venue facts which are stated in the particular exception relied upon by the plaintiff. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91, 93 (1935). Accord, Employers Casualty Company v. Clark, 491 S.W.2d 661 (Tex.Sup.1973); General Motors Acceptance Corporation v. Howard, 487 S.W.2d 708 (Tex.Sup.1972); Burtis v. Butler Bros., supra; City of Mineral Wells v. McDonald, 141 Tex. 113,170 S.W.2d 466 (1943); Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 (1936).

The express language in exception 31 of Article 1995 relied upon by plaintiffs requires the plaintiff to allege and prove venue facts: 1) that the plaintiff’s suit is one for breach of warranty; 2) that the defendant is a manufacturer of the product in question; 3) that the product in question is consumer goods; and 4) that the suit is brought in the county where the plaintiff(s) resides. The Court can look to the pleadings to determine whether the nature and character of the suit is one for breach of warranty. The remaining venue facts must be established by proper extrinsic evidence by the plaintiff. Maintenance & Equipment Contractors v. John Deere Company, 554 S.W.2d 28, 31 (Tex.Civ.App.—Houston [14th Dist.] 1977, writ dism’d).

In the case before us the parties have established all of the essential venue facts required under this provision of subdivision 31 by stipulation.

The defendant contends that, notwithstanding the express language contained in this portion of subdivision 31, the appellate courts, when considering analogous subdivisions, have engrafted the further requirement that plaintiff must plead and prove a cause of action when these other subdivisions by their express terms do not require such proof. We do not agree.

A careful analysis of the language of each subdivision cited by the defendant in conjunction with the Supreme Court’s interpretations of that subdivision will reveal that our highest Court has adhered to the express language of each subdivision in question for the necessary venue facts. For example, in Employers Casualty Company v. Clark, 491 S.W.2d 661 (Tex.Sup.1973), a case involving subdivision 23 and relied upon by the defendant, the Court held that the plaintiff must prove, in addition to other venue facts, a cause of action against the defendant. This is so, because when the plaintiff invokes that portion of subdivision 23 which provides that suits against a corporation may be brought in the county in which the plaintiff resides, the statute permits such a suit when it is brought “. . .at the time the cause of action or part thereof arose, provided such corporation, association or company has an agency or representative in the county.” (Emphasis added). In reaching this conclusion, the Supreme Court adopted the following reasoning contained in Victoria Bank & Trust Co. v. Monteith, 138 Tex. 216, 158 S.W.2d 63, 67 (1941).

“. . . A cause of action does not accrue or arise unless there is a cause of action. To prove that a cause of action has arisen in his favor a plaintiff must prove that he in fact has a cause of action

This general analysis seems to apply also to the particular venue exceptions which allow venue to be maintained in a county in which the cause of action arose or particular conduct occurred (e. g., slander, fraud, negligence, trespass). The cause of action or the legal elements defining the conduct thus become venue facts which plaintiff must plead and prove. See e. g., Coalson v. Holmes, 111 Tex. 502, 240 S.W. 896, 898 (1922) (Subdivision 7); Spoon v. Penix, 422 S.W.2d 167,168 (Tex.Sup.1967) (Subdivision 9a); Compton v. Elliott, supra at 94 (Subdivision 9); Victoria Bank & Trust Co. v. Monteith, supra (Subdivision 23); Flowers v. Dempsey-Tegeler & Co., Inc., 472 S.W.2d 112, 114, 116 (Tex.Sup.1971) (Subdivision 30).

The only exception to the above mentioned general analysis we could find relates to subdivision 4. Under this subdivision a plaintiff is required to prove the allegations of his petition to the extent of showing a cause of action against the resident defendant even though this subdivision does not expressly refer to a “cause of action”. This additional requirement was adopted for policy reasons because the plaintiff is relying upon the existence of a cause of action against the resident defendant as the sole basis for maintaining his suit against the nonresident defendant, and being in possession of superior knowledge concerning his cause of action against the resident defendant, should be required to make proof of such cause of action. See Richardson v. D. S. Cage Company, 113 Tex. 152, 252 S.W. 747, 749 (Tex.Comm’n App.1923, opinion adopted). As to the nonresident defendant, proof of a cause of action is not required. Stockyards Nat. Bank v. Maples, supra, at 1303-04.

In our case the express language used by our legislature concerning the venue exception upon which plaintiff relies does not require extrinsic proof of a cause of action against the defendant. There are no policy reasons existing which we are aware of that would warrant adopting any additional requirement.

The judgment of the trial court sustaining defendant Ford’s plea of privilege to be sued in Dallas County is therefore reversed and this cause is remanded to the District Court in Nueces County for a trial on the merits.

REVERSED AND REMANDED.

      . Subdivision 4 provides in relevant part “No. 4. Defendants in different counties. — If two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides.”


text:
    R. O. POLVADO, Appellant, v. Joanne POLVADO, Appellee.
    No. 12718.
    Court of Civil Appeals of Texas, Austin.
    May 10, 1978.
    Rehearing Denied May 24, 1978.
    B. J. Sanders, Moursund & Sanders, Round Mountain, for appellant.

      Richard Hoerster, Dooley & Hoerster, Fredericksburg, for appellee.
   O’QUINN, Justice.

The controlling question in this appeal is whether the trial court acted within its authority in setting aside judgment in a divorce action after death of one of the parties but prior to expiration of thirty days following entry of judgment.

It is undisputed that R. 0. Polvado and Joanne Harvey were married on January 8, 1977, and that on February 22, 1977, Polva-do filed suit for divorce, alleging that the couple had separated February 15 and that the parties “accumulated no community property during their marriage.” Divorce was granted by judgment entered June 24, 1977, in which the court restored Joanne Polvado’s maiden name and found that “no community property was accumulated during the marriage.”

R. 0. Polvado died on July 4, 1977, and three days later Joanne Polvado, now appel-lee, filed motion to set aside the divorce decree under Rule 329b, Texas Rules of Civil Procedure. The trial court granted the motion and set aside the judgment of June 24 on July 22, 1977.

Under subdivision 5 of Rule 329b failure of a party to file motion for new trial within ten days after judgment or order of the trial court “ . . . shall not deprive the court of jurisdiction to set aside a judgment rendered by it, provided such action be taken within thirty (30) days after the judgment is rendered.” The only limitation on this power is jurisdictional; that is, “ . . .at the time of the vacation or amendment of the judgment the court must still have jurisdiction of the parties and the subject matter.” 4 McDonald, Texas Civil Practice, sec. 18.03, pp. 222-3 (1971).

We conclude that the trial court was without jurisdiction to set aside the divorce decree. We will reverse its order and judgment vacating the divorce judgment of June 24, 1977.

In this area of the law two earlier decisions by courts of civil appeals were examined by the Supreme Court in Dunn v. Dunn, 439 S.W.2d 830, 833 (Tex.Sup.1969). Unlike the facts of the case now on appeal, property rights were involved in Blain v. Broussard, 99 S.W.2d 993, 996 (Tex.Civ.App. Beaumont 1936, no writ), in which the appellate court held that in a divorce action nothing is sought to be affected except the marital status of the husband and wife, that distribution of property in such an action is merely incidental, and that after the death of either party, the subject of the controversy is eliminated. In Ledbetter v. Ledbetter, 229 S.W. 576 (Tex.Civ.App. Austin 1921, no writ), the court of civil appeals decided that the issues involved had, by reason of death, become moot, and the trial court would be without power to enter either decree of divorce or to adjudicate property rights.

The Supreme Court in Dunn, supra, stated, “We find in neither of these cases a satisfactory enunciation of the law controlling upon a parties’ [sic] death subsequent to the rendition of a divorce decree.” (439 S.W.2d 833, col. 2).

The Supreme Court held that because property rights would be significantly affected, “ . . . depending upon whether the marriage was held to have been terminated by divorce decree or by death,” the case was not moot, and that the trial court did not lose jurisdiction in a divorce action upon the death of a party after rendition of judgment “if the decree affects property rights of the parties.”

In a case decided by the Eastland Court of Civil Appeals in 1977 the rule of Dunn, supra, was followed and the court examined the principle stated in Blain v. Broussard, supra, in comparison with the decision of the Supreme Court in Dunn. Austin v. Austin, 553 S.W.2d 9 (Tex.Civ.App. East-land 1977, writ dism’d). In Austin the court held that since the judgment of the trial court “affected the property rights of the parties, the court did not lose jurisdiction of the cause upon the subsequent death of” the wife, and that the “case should be treated like any other case involving the death of a party after rendition of judgment.” (533 S.W.2d 11, col. 1).

The judgment of the trial court in the case on appeal recited that no community property was accumulated by the parties during their brief marriage. Appellee in her motion to set aside the judgment asserted no claim that her community property rights had been in any manner affected by the divorce decree.

We conclude that since the divorce decree did not affect property rights of the parties, the lawsuit involved only the marital status of the husband and wife. Upon the death of the husband, the trial court no longer had jurisdiction of the parties to the divorce action and the subject matter of the litigation.

The order of the trial court vacating the judgment of June 22, 1977, was void and without effect, and therefore is vacated.