author: GREENHILL, Chief Justice. DANIEL, Justice SAM D. JOHNSON, Justice

text:
    Ila Mae FRANCIS, Petitioner, v. INTERNATIONAL SERVICE INSURANCE COMPANY, Respondent.
    No. B-5884.
    Supreme Court of Texas.
    Dec. 22, 1976.

      C. V. Flanary, Paris, for petitioner.
    Vial, Hamilton, Koch, Tubb, Knox & Stradley, Byron L. Falk, Dallas, for respondent.
   GREENHILL, Chief Justice.

This case concerns the Texas Uninsured Motorist Act, and the definition of “uninsured automobile” as it appears in an insurance policy issued pursuant to the Act.

The plaintiff, Ila Mae Francis, filed this action in the District Court of Lamar County against the respondent, International Service Insurance Company and another insurance company. The cause of action against the other company was severed, and so the respondent will be here referred to as the insurance company.

The plaintiff alleged that on September 13,1968, she was a passenger in an automobile that was struck at an intersection in the City of Grand Prairie by a fire truck owned by that City and operated by a city fireman. She sought recovery against the insurance company under the uninsured motorist provisions in an automobile liability insurance policy issued by the company to the driver of the car in which she was a passenger. In its answer, the insurance company alleged that at the time of the collision, the driver of the fire truck was acting in the course and scope of his employment as a fireman for the City of Grand Prairie Fire Department, and that at that time, the fire truck was en route to a fire at the city dump.

The insurance company filed a motion for summary judgment. The parties stipulated that the automobile insurance policy upon which suit was brought included a provision that “. . . the term ‘uninsured automobile’ shall not include: ... an automobile or trailer owned by the United States of America, Canada, a state, a political subdivision of any such government or an agency of any of the foregoing.” The parties also stipulated that neither the City of Grand Prairie nor the fireman had in effect at the time of the collision a policy of liability insurance, or a bodily injury liability bond applicable to the fire truck. They further stipulated that for the purposes of the motion for summary judgment, no material issues of fact existed, and that only one legal question was in dispute, namely:

Whether the exclusion from the definition of an “uninsured automobile” in the aforementioned policy of “an automobile or trailer owned by the United States of America, Canada, a state, a political subdivision of any such government or any agency of the foregoing” is invalid.

The trial court held that the above provision was valid and entered judgment that the plaintiff take nothing. The plaintiff thereupon appealed to the court of civil appeals. Her sole point of error was that the trial court had erred in holding valid the policy provision which excluded certain governmentally owned automobiles from the definition of “uninsured automobile.” The court of civil appeals affirmed the trial court’s judgment. 533 S.W.2d 408. We affirm.

The sole question on this appeal is the validity of the above provision in the insurance policy, whereby “an automobile or trailer owned by the United States of America, Canada, a state, a political subdivision of any such government or an agency of any of the foregoing” is excluded from the definition of an “uninsured automobile.” It is undisputed that this exclusion is in a form approved by the Texas State Board of Insurance [the Board]. The insurance company relies on the Texas Uninsured Motorist Act [the Act], Tex.Ins.Code Ann. art. 5.06-1, to support its contention that the exclusion in question is valid. The relevant portion of the Act follows:

(2) For the purpose of this coverage, the term “uninsured motor vehicle” shall, subject to the terms and conditions of such coverage, be deemed to include an insured motor vehicle where the liability insurer thereof is unable to make payment with respect to the legal liability of its insured within the limits specified therein because of insolvency. The State Board of Insurance is hereby authorized to promulgate the forms of the uninsured motorist coverage. The Board may also, in such forms define “uninsured motor vehicle" to excluded certain motor vehicles whose operators are in fact uninsured. [emphasis added].

To support her argument that the exclusion at issue in this case is invalid, the plaintiff cites decisions from several other jurisdictions that have declared invalid exclusions of governmentally owned vehicles from the scope of the states’ uninsured motorist acts. See Vaught v. State Farm Fire & Casualty Co., 413 F.2d 539 (8th Cir. 1969); Higgins v. Nationwide Mutual Insurance Co., 291 Ala. 462, 282 So.2d 301 (1973); State Farm Mutual Automobile Insurance Co. v. Carlson, 130 Ga.App. 27, 202 S.E.2d 213 (1973); Franey v. State Farm Mutual Automobile Insurance Co., 5 Ill.App.3d 1040, 285 N.E.2d 151 (1972); and Powell v. Allstate Insurance Co., 233 So.2d 38 (Ct.App.La.1970). These opinions are not persuasive on the issue in this case. In none of the above cases did the state’s Uninsured Motorist Act contain language that expressly authorized the exclusion of vehicles whose operators were, in fact, uninsured. The Texas Act, on the other hand, does contain express language to that effect. See Article 5.06-1(2), supra. Moreover, in the only decision cited to us in which the exclusion of governmentally owned automobiles from the policy coverage was upheld, the uninsured motorist chapter was by statute expressly made not applicable to vehicles owned by government units. Jones v. Southern Farm Bureau Casualty Co., 251 S.C. 446, 163 S.E.2d 306 (1968). The Jones case is thus persuasive authority for the proposition that express statutory language excluding uninsured automobiles from the statute’s coverage shall be given effect. Although the language of the Texas Act does not expressly exempt governmentally owned vehicles, as did that of the South Carolina statute, we do not believe that difference to be significant.

The Texas cases cited by the plaintiff in support of her position do not control the resolution of the question in this case. See American Liberty Insurance Co. v. Ranzau, 481 S.W.2d 793 (Tex.1972); Hamaker v. American States Insurance Co., 493 S.W.2d 893 (Tex.Civ.App.1973, writ ref’d n. r. e.); Northwestern Mutual Insurance Co. v. Lawson, 476 S.W.2d 931 (Tex.Civ.App., no writ); and Fidelity & Casualty Co. v. Gatlin, 470 S.W.2d 924 (Tex.Civ.App.1971, no writ). Those cases dealt with the validity of uninsured motorist provisions that limited an insured’s recovery to the statutory limits of required coverage for one policy when the insured was eligible to recover for his damages from other sources — from, example, workmen’s compensation or the uninsured motorist coverage of another insurance policy. It is true, as petitioner states, that these “other insurance” clauses were declared invalid by this Court in Ranzau, supra, insofar as such a clause would operate to limit insureds’ recoveries to the statutory minimums for one policy. But Ran-zau, and the other Texas cases cited by the plaintiff, dealt with the language of Article 5.06-1(1) that provides in general terms that the Act is to be effectuated “under provisions prescribed by the Board . .” The question in this case is the validity of an exclusion in a form promulgated by the Board under authority given it in Article 5.06-1(2): “The Board may also, in such forms, define ‘uninsured motor vehicle’ to exclude certain motor vehicles whose operators are in fact uninsured.” In Ran-zau there was no statutory language expressly giving the Board authority to limit recoveries under the Act when other compensation was available to the insured. In this case there is statutory language expressly giving the Board the authority to exclude from the ambit of the Act vehicles whose operators are in fact uninsured. Therein lies the distinction between Ranzau and this case and the reason why we are not bound by our earlier holding there.

The plaintiff does not question the power of the legislature to delegate to the Board the authority to regulate the coverage of insurance policies by prescribing standard forms, clauses and endorsements. She does contend, however, that a delegation of power to the Board must be clear and unambiguous, citing 53 Tex.Jur.2d Statutes, Sections 35, 36 (1964), that the Board may exercise only such authority as is conferred on it by law in unmistakable terms, and that such authority will not be construed as being conferred by implication, citing Key Western Life Insurance Co. v. State Board of Insurance, 163 Tex. 11, 350 S.W.2d 839 (1961). She further argues that Article 5.06-1(2) does not, in clear and unmistakable language, authorize the exclusion at issue in this case. We disagree. We find no ambiguity or lack of clarity in the statutory language that gives to the Board the authority to define “uninsured motor vehicle” so as to exclude certain vehicles whose operators are, in fact, uninsured.

The plaintiff’s final argument is that the exclusion of governmentally owned vehicles from the definition of “uninsured automobile” is invalid because the exclusion is inconsistent with the purposes of the Act. We recognize that we must hold invalid any Board-approved provision that conflicts with the Act. See Kemp v. Fidelity and Casualty Co., 504 S.W.2d 633 (Tex.Civ.App.1973), writ ref’d n. r. e. per curiam, 512 S.W.2d 688 (Tex.1974); Westchester Fire Insurance Co. v. Tucker, 512 S.W.2d 679 (Tex.1974); American Liberty Insurance Co. v. Ranzau, 481 S.W.2d 793 (Tex.1972). The authorizing language of Article 5.06-1(2) is broad, but the Board does not possess absolute discretion in prescribing forms of uninsured motorist coverage. The Board must act consistently with and in furtherance of the purposes of the Act when it prescribes forms containing exclusions from the definition of “uninsured automobile.” The validity of the exclusion here at issue, then, depends on what the purposes of the Act are and whether the Board, in promulgating the exclusion, acted consistently with and in furtherance of those purposes.

We believe at least one purpose of the Texas Uninsured Motorist Act may be ascertained from a reading of three portions of the Act in conjunction. The first of these appears in Article 5.06-1(1):

“. . . for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles

The second portion of the Act is the authorizing language of Article 5.06-1(2):

The State Board of Insurance is hereby authorized to promulgate the forms of the uninsured motorist coverage. The Board may also, in such forms, define “uninsured motor vehicle” to exclude certain motor vehicles whose operators are in fact uninsured.

The third portion is found in the third section of the Act, as it appears in Texas Laws 1967, chapter 202, section 3 at 448:

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 and an imperative public necessity that the Constitutional Rule requiring bills to be read on three several days in each House, and the Constitutional Rule requiring bills to go into effect ninety days from and after their passage, be and the same are hereby suspended, . [emphasis added]

The words “uninsured motor vehicles” appearing in Article 5.06-1(1) were certainly used with knowledge that under Article 5.06-1(2) the Board was empowered to exclude from the definition of “uninsured motor vehicle” some vehicles that were in fact uninsured. We are therefore convinced from our reading of the above portions of the statute that the purpose of the Act was not to protect insureds from ali negligent uninsured motorists. We believe that the purpose of the Act is that purpose stated in Section 3 quoted above, that is, to protect the conscientious and thoughtful motorist against losses caused by negligent financially irresponsible motorists. The Legislature did not intend all uninsured motorists to be covered by this Act, but only those uninsured motorists who are “financially irresponsible.”

Given the purpose of the Act, the question remaining is whether the Board’s exclusion of certain government-owned vehicles from the definition of “uninsured motor vehicle” is consistent with, and in furtherance of, that purpose. We believe that it is.

The purpose of the Act is to protect insureds against negligent, financially irresponsible motorists. It was not designed as a system for giving relief to people who cannot recover from a tortfeasor because of sovereign immunity. At the time of the collision that gave rise to this suit, and at the time the insurance policy here in dispute was issued, the Texas Legislature had not relaxed in any way the doctrine of sovereign immunity. The doctrine, as it then existed, protected municipalities from liability for the torts of their employees committed when the municipality was performing a governmental, as opposed to a proprietary, function. See City of Austin v. Daniels, 160 Tex. 628, 335 S.W.2d 753 (1960); Greenhill and Murto, Governmental Immunity, 49 Texas L.Rev. 462 (1971). It was not until 1970 that the doctrine was abolished in certain respects, and then only prospectively. Texas Tort Claims Act, Article 6252-19, Sections 3,4,14(1) and (8). If the plaintiff could not recover for her injuries from the City of Grand Prairie, it would not be because the City was “financially irresponsible” in not insuring the fire truck. The reason would be because the then-existing doctrine of sovereign immunity protected the city in the performance of the governmental function of providing fire protection. City of Port Arthur v. Wallace, 141 Tex. 201, 171 S.W.2d 480 (1943).

That a governmental unit is protected by the doctrine of sovereign immunity would certainly preclude recovery from that unit, but that does not mean that the unit is “financially irresponsible” for purposes of the Texas Uninsured Motor Vehicle Act. We believe that the exclusion by the Board of certain government-owned vehicles from the definition of “uninsured automobile” was a rational exercise of the Board’s delegated authority, consistent with the purposes of the Act, and that the exclusion, as applied to the facts of this case, must therefore be upheld.

The judgment of the court of civil appeals is affirmed.

Concurring opinion by Justice DANIEL.

Dissenting opinion by Justice SAM D. JOHNSON in which Justices STEAKLEY and McGEE join.

DANIEL, Justice

(concurring).

I concur but respectfully suggest that this is a subject to which the Legislature and the Texas State Board of Insurance might give further study. It is apparent from cases cited by the Court that several states provide their citizens with the opportunity for greater insurance protection against owners and operators of uninsured motor vehicles by not excluding vehicles owned by political agencies and subdivisions.

SAM D. JOHNSON, Justice

(dissenting).

This dissent is respectfully submitted.

The majority finds no ambiguity in Article 5.06-1(2), Texas Insurance Code Annotated (Pamp.Supp.1975-76), and a furtherance of the purpose of that statute by the exclusion of government-owned vehicles from the definition of “uninsured automobile.” This dissent challenges the conclusion of the majority in both instances.

The Insurance Board “can exercise only such authority as is conferred upon it by law in clear and unmistakable terms and the same will not be construed as being conferred by implication.” Board of Insurance Com’rs v. Guardian Life Ins. Co., 142 Tex. 630, 180 S.W.2d 906, 908 (1944). 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 Insurance Company v. Ranzau, 481 S.W.2d 793, 796-97 (Tex.1972). [Emphasis added.]

With respect to the scope of the Insurance Board’s authority, Article 5.06-1(2) grants it only the power to “exclude certain motor vehicles whose operators are in fact uninsured.” [Emphasis added.] Thus, the Insurance Board does not have the authority in “clear and unmistakable terms” to sanction policy provisions which exclude motor vehicles whose owners are uninsured. The policy provision involved in this case does not exclude uninsured operators of motor vehicles. Instead, it excludes uninsured owners of motor vehicles; namely, governments. Accordingly, it cannot be said that the Insurance Board in “clear and unmistakable terms” had the authority to approve this exclusion of government-owned vehicles from the definition of “uninsured automobile.”

Other courts have also held that a provision excluding government-owned vehicles from the definition of “uninsured automobile” was invalid on the ground that the exclusion did not have the sanction of statute. Higgins v. Nationwide Mutual Insurance Co., 291 Ala. 462, 282 So.2d 301 (1973); State Farm Mutual Automobile Ins. Co. v. Carlson, 130 Ga.App. 27, 202 S.E.2d 213 (1973); Powell v. Allstate Insurance Company, 233 So.2d 38 (La.Ct.App.1970). In Franey v. State Farm Mutual Automobile Ins. Co., 5 Ill.App.3d 1040, 285 N.E.2d 151 (1972), it was stated that such an exclusion would be “unduly restrictive” and would defeat the purpose of mandatory uninsured motorist coverage.

An analysis of the purpose of the uninsured motorist statute also leads to the conclusion that the exclusion of government-owned vehicles is invalid. 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 . [Emphasis added.] The obvious purpose of the Legislature was to protect the insured from a financial loss due to an inability of the tort-feasor to pay for the damage inflicted. Further support for this interpretation can be found in the emergency clause of the legislative Act which added Article 5.06-1 to the Texas Insurance Code:

“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. [Emphasis added.]

In the instant case Francis is legally entitled to recover from the fireman, the operator of the uninsured fire truck, under the reasoning of Eubanks v. Wood, 304 S.W.2d 567 (Tex.Civ.App. — Eastland 1957, writ ref’d n. r. e.). Further, the fireman had no liability insurance policy or a bodily injury liability bond applicable to the fire truck and, thus, was financially irresponsible. Accordingly, Francis falls within that class of people the Legislature intended to protect under Article 5.06-1. Since the definition of “uninsured automobile” approved by the Insurance Board would frustrate the purpose of the Legislature it must be viewed as invalid.

It should be noted that in the only case cited to this court in which the exclusion of government-owned vehicles from the definition of “uninsured automobile” was upheld, the statute specifically excluded government-owned vehicles and there existed a method whereby the insured person could recover, and did recover, $4,000 from the government unit which owned the vehicle. Jones v. Southern Farm Bureau Casualty Company, 251 S.C. 446, 163 S.E.2d 306 (1968). That court could therefore reasonably conclude that the South Carolina Legislature had enacted a comprehensive scheme in which the injured person could recover from a government unit even though the unit had no insurance policy and in spite of the fact that government-owned vehicles were excluded from the definition of an “uninsured automobile.” Similarly, the Texas Legislature could have explicitly excluded government-owned vehicles from the definition of “uninsured automobile” and explicitly waived the defense of government immunity and thereby effected its purpose of protecting the insured motorist from a financial loss due to an inability of the tort-feasor to pay for the damage inflicted. It did not do so. Instead, the Legislature chose to allow exclusion of uninsured operators.

The only categories of uninsured operators which can be excluded in view of the legislative intent to protect the insured motorist from a financial loss due to an inability of the tort-feasor to pay for the damage inflicted are those classes which would still allow the insured motorist to recover damages from a tort-feasor. For example, an operator of an automobile whose owner would be liable could be properly excluded.

STEAKLEY and McGEE, JJ„ join in this dissent.

      . Texas Insurance Code, Article 5.06-1, herein called “the Act.” References are to Vernon’s Texas Insurance Code Annotated unless otherwise indicated.

      . The uninsured motorist provision of this policy provided in part:
      Part IV — Family Protection Coverage COVERAGE J FAMILY PROTECTION (DAMAGES FOR BODILY INJURY)
      To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called “bodily injury”, sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; .
      DEFINITIONS
      . , and under Part IV: “insured” means:
      (a) the named insured and any relative;
      (b) any other person while occupying an insured automobile; . .
      * * * * * *
      “uninsured automobile” includes a trailer of any type and means:
      (a) an automobile or trailer with respect to the ownership, maintenance or use of which there is, in at least the amounts specified by the financial responsibility law of the state in which the insured automobile is principally garaged, no bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such automobile, or with respect to which there is a bodily injury liability bond or insurance policy applicable at the time of the accident but the company writing the same denies coverage thereunder, or
      (b) a hit-and-run automobile; but the term “uninsured automobile” shall not include:
      (D • • •
      (2) • . •
      (3) an automobile or trailer owned by the United States of America, Canada, a state, a political subdivision of any such government or an agency of any of the foregoing,
      (4) . . .
      (5) . . ..

      . The policy provides “ ‘uninsured automobile’ shall not include ... an automobile or trailer owned by the United States of America, Canada, a state, a political subdivision of any such government or an agency of any of the foregoing, . . .” [Emphasis added.]


source: Caselaw Access Project

author: DIES, Chief Justice.

license: Public Domain

text:
    TENNECO, INC., Appellant, v. POLK COUNTY et al., Appellees.
    No. 7850.
    Court of Civil Appeals of Texas, Beaumont.
    July 29, 1976.

      Stanley B. Binion, Houston, for appellant.
    Elvin E. Tackett, Bedford, E. L. McClen-don, Jr., Livingston, for appellees.
   DIES, Chief Justice.

Tenneco, Inc., as plaintiff below, brought a direct attack on the tax plan of Polk County, Texas, for the year 1975, seeking to prohibit Polk County from assessing plaintiff’s natural gas pipeline under allegations that the method of valuation was fundamentally erroneous. Trial was to the court which entered a judgment denying all relief sought by Tenneco, and from which Tenne-co perfects this appeal.

The facts show that Polk County’s tax plan in the years 1970, 1971, 1972, 1973, and 1974 was to assess ad valorem taxes at 17 percent of cash market value. The Commissioners Court of that county determined that ad valorem taxes for the year 1975 would be assessed at 25 percent of cash market value. In the years 1970, 1971, 1972, 1973, and 1974 Tenneco rendered its three gas pipelines (61.90 miles) at $534,830. This was in accordance with a “state schedule” originated in the early 1930’s, and last updated in 1957, as a schedule for values for gas transmission lines. It is agreed that this “state schedule” is only used as a guide and has no status in law. By multiplying 1.47 times Tenneco’s rendition of $534,830, the Commissioners assessed Tenneco’s property at $786,220, which it contends raised the evaluation from 17 percent to 25 percent. The Commissioners (of Polk County) treated all other property in the county, including other pipelines, the same way.

Tenneco on the other hand contends its 1975 rendition was for 25 percent and not 17 percent, and there is evidence that the state schedule which produced it is used in other districts as a 25 percent rendition. Tenneco has no fee title and no compressor stations in Polk County, only easements and the pipe in the ground. Other than 2,000 feet in 1953 and .15 of a mile in 1950, the lines were built “somewhere around 1945 to 1948.”

The Texas Constitution, art. VIII, § 1, requires property to be taxed in proportion to its value, which “shall be ascertained as may be provided by law.” Art. VIII, § 11, uses the words “at its fair value”, while art. VIII, § 20, sets “fair cash market value” as a ceiling on the assessment for ad valorem tax purposes. These terms are equivalent. Atlantic Richfield Co. v. Warren Ind. Sch. Dist., 453 S.W.2d 190 (Tex.Civ.App. — Beaumont 1970, no writ n. r. e.); West Texas Hotel Co. v. City of El Paso, 83 S.W.2d 772 (Tex.Civ.App. — El Paso 1935, writ dism’d).

Our Supreme Court in City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808, 815 (1954), defines market value as “the price which the property would bring when it is offered for sale by one who desires, but is not obligated to sell, and is bought by one who is under no necessity of buying . . . .” See also West Texas Hotel Co. v. El Paso, supra at 775.

In applying these guidelines to a natural gas pipeline we are met with very formidable obstacles. They seldom sell and almost never as a parcel, such as the Polk County property. Furthermore, their rates and profits are regulated by the Federal Power Commission, which means: “The fixing of prices, like other applications of the police power, may reduce the value of the property which is being regulated.” Federal Power Com. v. Hope Nat. Gas Co., 320 U.S. 591, 601, 64 S.Ct. 281, 286, 88 L.Ed. 333, 344 (1943).

Perhaps the best manner to approach this is the income approach. As our Supreme Court observed in State v. Austin & N. W. R. Co., 94 Tex. 530, 62 S.W. 1050, 1051 (1901): “Persons proposing to sell or buy a railroad, in forming their opinions as to its value, would doubtless consider the condition of its physical properties, but would ultimately reach their conclusion upon the question by careful estimate of the probable net income which its operation will produce.”

And that was the approach made in this case. We should state that we have no evidence of the market value of Tenneco’s easements or pipe in the ground in Polk County and Tenneco has no compressor stations or other property in Polk County which might make this situation different or unusual.

Mr. Edward S. Pritchard, Jr., testified for the County. He reached his evaluation of Tenneco’s property by capitalization of income which he described as “the relationship between net value and total cost of operating a business . . . what is common in the industry, what rate of return will attract money; * * * the arithmetic formula for capitalizing income is simply divide that . . rate into the income to get the indicated net value.” He used the 1974 income, after taxes of Tenneco of $119,625,522. To this he applied a “cap rate” of 7.6 percent which he obtained from the January 1976 issue of Forbes magazine. “Cap rate” means the capitalization of income. The higher the “cap rate” when applied to prospective income stream, the lower the present value. For example, if you wanted a return of 10 percent on your money on a $10,000 annual income, this would indicate you would pay $100,000 for the property. If you wanted a 20 percent return, then you would pay $50,-000. This 7.6 percent “cap rate” gives a value of the entire system of $1,574,033,184. The Polk County section is .198 of the whole (relation of cost of entire system to cost of Polk County segments). This gives his value of $3,116,585 of which 25 percent would be about $780,000. Mr. Pritchard said he should have used Tenneco’s earning before taxes. This would have produced a higher evaluation of the Polk County property.

In the landmark case on rate making of the natural gas industry, the Supreme Court of the U.S. (Federal Power Com. v. Hope Nat. Gas Co., supra, 320 U.S. at 603, 64 S.Ct. at 288, 88 L.Ed. at 345) said:

“But such considerations aside, the investor interest has a legitimate concern with the financial integrity of the company whose rates are being regulated. From the investor or company point of view it is important that there be enough revenue not only for operating expenses but also for the capital costs of the business. These include service on the debt and dividends on the stock. Cf. Chicago & G. T. R. Co. v. Wellman, 143 U.S. 339, 345, 346, 12 S.Ct. 400, 402, 36 L.Ed. 176, 179, 180. By that standard the return to the equity owner should be commensurate with return on investments in other enterprises having corresponding risks. That return, moreover, should be sufficient to assure confidence in the financial integrity of the enterprise, so as to maintain its credit and to attract capital.”

Here we are looking at the opposite end of the tube from the Supreme Court of the U.S.; but the principle is the same, and, when we apply the principle to Mr. Pritch-ard’s analysis, here is what we find: The depreciated net book value is the figure on which the Federal Power Commission calculates the permitted rate of return of an interstate gas pipeline. If this were applied to the Forbes rate of 7.6 percent, used by Pritchard, the company could earn $89,699,-997 of income. Interest charge on Tenne-co’s bonds and long term debt is $78,971,-297. The annual dividend on preferred stock is $21,638,241, for a total of $100,609,-538, for a deficit of $10,909,541. And, of course, this allows no dividend for the common shareholders. This method then of reaching the market value of the Polk County property is demonstrably wrong.

As previously stated, Tenneco for several years prior to the year in question made the same renditions. However, this cannot estop it from contesting this assessment. French Independent School Dist. v. Howth, 134 Tex. 211, 134 S.W.2d 1036 (1940).

It follows from what we have held that the judgment of the trial court approving the assessment and levy of taxes upon Ten-neco’s property was erroneous. The judgment is, therefore, reversed, and judgment here rendered, setting aside, vacating, and holding for naught the assessments upon Tenneco’s property for the year involved. This judgment, however, is without prejudice to the right of the County to again assess and value Tenneco’s property in accordance with law and to collect such taxes as may be due thereon. Tex.Rev.Civ.Stat. Ann. art. 7346 (1960); Republic Ins. Co. v. H. Park Independent School Dist., 141 Tex. 224, 171 S.W.2d 342, 348 (1943).

REVERSED and RENDERED.

STEPHENSON, J., not participating.


author: CLAUDE WILLIAMS, Chief Justice.

text:
    R. H. TERRY et al., Appellants, v. J. E. HOWARD et al., Appellees.
    No. 19042.
    Court of Civil Appeals of Texas, Dallas.
    Dec. 7, 1976.
    Rehearing Denied Jan. 6, 1977.

      Stewart R. Miller, Dallas, for appellants.
    Jonathan H. Allen, Lancaster, for appel-lees.
   CLAUDE WILLIAMS, Chief Justice.

Roy H. Terry, F. S. Terry, Robert H. West, Lorraine West, and A. Due West brought this action in the District Court against J. E. Howard and numerous other defendants seeking to clear title to eighteen tracts of land in Dallas County. Most of the defendants were served with citation by publication. Subsequently, the trial court appointed ten attorneys ad litem to represent all defendants that had been served with citation by publication. Thereafter, all plaintiffs, with the exception of A. Due West, took a nonsuit against the defendants, thereby discharging a majority of the attorneys ad litem from their responsibility. Seven of such attorneys were completely discharged, while three were discharged only as to the claims of the nonsuiting plaintiffs, but continued to represent the remaining defendants as to the claims of the sole remaining plaintiff, A. Due West. An order of nonsuit was entered by the court on March 4, 1975, and on March 9, 1976, the sole remaining plaintiff, A. Due West, nonsuited one of his four claims. Consequently, one more attorney ad litem was discharged from his appointment. On May 6, 1976, a final judgment was entered by the court which awarded West a judgment on his three remaining claims. The court also awarded attorneys’ fees for all ten attorneys ad litem against the sole remaining plaintiff and against all of the original plaintiffs, jointly and severally, contrary to plaintiff’s motion that all costs be taxed against plaintiffs actually incurring the same. No costs were taxed against the defendants in regard to the claims upon which West prevailed.

The appellant, A. Due West, appealed from that judgment contending that the trial court erred: (1) in its failure to tax any of the court costs against any of the defendants; (2) in taxing all court costs against the plaintiffs jointly and severally; and (3) in awarding to the attorneys ad litem any attorneys’ fees.

Although appellant West obtained in a final judgment title to an undivided one-half interest in the tract of land originally owned by three defendants, the trial court refused to tax any of the costs against said defendants contrary to Tex.R.Civ.P. 802. This rule states:

Where the defendant claims the whole premises, and the plaintiff shows himself entitled to recover part, the plaintiff shall recover such part and costs.

This rule has been interpreted in Dupont v. Texas & N. O. R. Co., 158 S.W. 195, 197 (Tex.Civ.App. — Galveston 1913, writ ref’d) to mean that in trespass to try title actions where plaintiff only recovers a portion of the land in controversy, he is still entitled to recover his costs. Although appellee cites Bruni v. Vidaurri, 140 Tex. 138, 166 S.W.2d 81, 96 (1942) for the proposition that attorneys’ fees, for representing a defendant whose place of residence is unknown and who was cited by publication, should be taxed against the successful plaintiff because no personal judgment can be rendered against the defendant for costs, this rule is not applicable in the case at bar because the trial court’s judgment states that Caroline Barbara Hoedebeck Giardina and David James Hoedebeck made a personal appearance in the cause, and Jerome Cletus Hoedebeck made an appearance and waived citation. Consequently, we hold that the trial court erred in assessing the costs and attorneys’ fees pertaining to the portion of the litigation concerning this tract of land and should have assessed the court costs and attorney ad litem fees relevant to claims upon which West prevailed against David James Hoedebeck, Jerome Cletus Hoedebeck and Caroline Barbara Hoedebeck Giardina. Although judgment was also entered against Cletus C. Hoede-beck, he did not contest the matter but instead filed an appearance and disclaimer to any interest in the litigation, and should not be assessed a percentage share in the court costs and attorney ad litem fees.

Appellant also contends that the trial court erred in taxing all costs of court including attorney ad litem fees against all the plaintiffs jointly without dividing among each plaintiff the fees which were incurred with respect to the litigation concerning the respective tracts of land to which that plaintiff claimed title. Tex.R. Civ.P. 244 provides that the court shall allow the attorney appointed to represent a defendant served by publication a reasonable fee for his services which should be taxed as part of the costs. Therefore, it is apparent that the court properly taxed the costs against the plaintiffs in this cause except for those costs discussed above. However, we do not believe the court acted in accordance with Tex.R.Civ.P. 125 by taxing costs against all plaintiffs jointly. That rule provides that each party to a suit is liable for all costs incurred by himself. In order to comply with the spirit of this rule, it is the duty of the court to determine the costs involved with respect to each tract of land and the fees of the attorney ad litem appointed to represent that defendant and to assess those costs and fees against the plaintiff suing for title to that particular tract.

Appellant argues that, regardless of the merits, this contention cannot be raised herein because it is presented for the first time on appeal. Barker v. Weingarten Riverside Co., Inc., 232 S.W.2d 692, 696 (Tex.Civ.App. — Beaumont 1950, writ ref’d n. r. e.). However, included in the transcript in this cause is appellant’s motion to tax costs which was filed prior to the entry of judgment. This motion specifically sets out appellant’s request which is the subject of his contention on appeal, and we believe this is sufficient to have brought this subject to the attention of the trial court. Consequently, we hold that the trial court erred in assessing costs jointly against the plaintiffs, and in the interest of justice this cause should be remanded for the trial court to determine the proper costs to be taxed against each plaintiff.

The appellant contends that the trial court did not have jurisdiction to award attorneys’ fees because the order of nonsuit was a final judgment or in the alternative an order was not required since the filing of the motion makes a nonsuit mandatory. The appellant argues that in either case the thirty-day jurisdictional period had elapsed prior to entry of the judgment adjudicating the entire cause.

We recognize that it is the absolute right of a party, subject only to the Rules of Civil Procedure, to take a nonsuit in a judicial proceeding when no affirmative relief is sought by the defendant, and that a timely motion for nonsuit cannot be denied by the trial court. Renfro v. Johnson, 142 Tex. 251, 177 S.W.2d 600, 602 (1944). The plaintiffs filed their motion of nonsuit on July 18, 1974, and subsequently filed an affidavit of nonsuit on August 8,1974. The judgment dismissing the applicable defendants from this suit was entered by the court on March 4, 1975, some seven and one-half months later. This judgment does not purport to be a final judgment, and in fact the court referred to it as an interlocutory judgment in the final judgment entered on May 6, 1976. Since no order of severance and final judgment concerning that part of the litigation was entered at the time the nonsuit was granted, we must consider the judgment of nonsuit as a partial interlocutory judgment which was made final on May 6, 1976. Also, the mere filing of a motion of nonsuit cannot begin to run the court’s jurisdictional time period since a rendition of final judgment is required. Tex.R.Civ.P. 329b. Consequently, appellant’s argument that the trial court had lost jurisdiction to adjudicate attorneys’ fees in its final judgment because the order of nonsuit was final and the thirty-day jurisdictional period had elapsed must be overruled.

Appellant also argues that since the defendants were nonsuited, the plaintiffs should not be assessed any attorneys’ fees regarding those defendants. We cannot agree. When the attorneys ad litem were appointed by the court, all plaintiffs were maintaining a cause of action against the defendants. Since the defendants were served by publication, our Rules of Civil Procedure require the court to appoint attorneys to represent their interest. To allow the plaintiff, who sues a defendant served by publication to subsequently non-suit that defendant in order to escape assessment of attorneys’ fees which were required because of the litigation he instigated, would be manifestly unjust and would de facto defeat the purpose of the rule by denying the defendant effective representation.

Finally, appellant argues that the trial court erred in the amount of attorneys’ fees awarded. However, appellant has not produced a record before this court showing the evidence considered by the trial court in making the award. Consequently, we cannot hold that the trial court erred in the amount of attorneys’ fees awarded.

Accordingly, we reverse the judgment of the trial court and remand the cause for further proceedings to allocate the court costs and attorneys’ fees to each tract of land and assess the same against the plaintiff seeking title to that tract and to determine the appropriate amount of costs and attorneys’ fees to be assessed against defendants, David James Hoedebeck, Jerome Cletus Hoedebeck and Caroline Barbara Hoedebeck Giardina.

Reversed and remanded with instructions.


text:
    JUNIOR FOOTBALL ASSOCIATION OF ORANGE, Texas, a/k/a Orange Junior Football Association, Inc., Appellant, v. Renota GAUDET, by her next friend, Appellee.
    No. 7913.
    Court of Civil Appeals of Texas, Beaumont.
    Dec. 9, 1976.
    Jerry L. Zunker, Orange, for appellant.
    Louis Dugas, Jr., Orange, for appellee.
   DIES, Chief Justice.

Renota Gaudet, by her mother as next friend, instituted suit in Orange County, against appellant, Orange Junior Football Association, Inc., seeking a temporary and permanent injunction requiring appellant to allow Renota to participate in football citing Tex.Const. art. 1 § 3a. Renota is a female.

After a hearing, the trial court granted the temporary injunction until Renota reached puberty. From the order granting this temporary injunction the association perfects this appeal.

Art. 1 § 3a of Tex.Const. provides: “Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin.”

Appellant complains there was insufficient evidence of state involvement to authorize the temporary injunction.

The words “under the law” in the above article of the Texas Constitution require that the discrimination complained of is state action or private conduct that is encouraged by, enabled by, or closely interrelated in function with state action. See 11 Hous.L.Rev. 136, 145 (1973), “An Overview of the Equal Rights Amendment in Texas”; see also, Simkins v. Moses H. Cone Memorial Hospital (4th Cir. 1963), 323 F.2d 959, 967:

“Not every subversion by the federal or state government automatically involves the beneficiary in ‘state action,’ and it is not necessary or appropriate in this case to undertake a precise delineation of the legal rule as it may operate in circumstances not now before the court.”

See also, Burton v. Wilmington Parking Authority, 365 U.S. 715, 721-722, 81 S.Ct. 856, 859-860, 6 L.Ed.2d 45 (1961).

In our case this association is chartered by the State of Texas as a non profit corporation. The players usually practice on school grounds, and games are played in a park owned by the City of Orange. We do not regard this as state action, or private conduct closely interrelated in function with state action.

The order granting the temporary injunction is reversed, and such temporary injunction is vacated and dissolved at the cost of the plaintiff below.


author: AKIN, Justice.

text:
    Kenneth L. HICKS, Appellant, v. Saundra Dell HICKS et al., Appellees.
    No. 19004.
    Court of Civil Appeals of Texas, Dallas.
    Dec. 15, 1976.
    Rehearing Denied Jan. 13, 1977.

      “John M. Gillis, Gillis, Rogers & Taylor, Dallas, for appellant.
    Donald V. Yarborough, Yarborough, Hinds & Shahan, Dallas, for appellees.
   AKIN, Justice.

Saundra Dell Hicks sued Travelers Insurance Company and her ex-husband Kenneth L. Hicks for post-divorce partition of a workmen’s compensation settlement. The claim was for injuries sustained by Mr. Hicks during the marriage, but was settled after the divorce. The injury occurred on October 30, 1973, the parties separated in January 1974, and the judgment of divorce was rendered on June 3, 1974. The plaintiff asserted that the proceeds of the claim were presumptively community property because the injury occurred during the marriage and because there was a commingling of community and separate property with a previous claim settled before the divorce. She concludes that there is, therefore, a presumption that the entire award is community property. Defendant Mr. Hicks responded that the funds were his separate property because the claim was settled in September of 1974 after the divorce and that this action was barred by res judicata since the question could have been litigated in the divorce proceedings. Travelers, the workmen’s compensation carrier, paid the proceeds, $6,000 net, into the court’s registry and was dismissed. Trial was to the court without a jury. The court concluded that: The husband had defrauded his wife by concealing from her the existence of the claim; the burden was on the husband to prove that the claim was not community; he failed to meet this burden; there is a presumption that the proceeds from the claim are community; this presumption was not overcome by the husband; and separate and community funds were commingled. Acting on these findings of fact and conclusions of law, the trial court awarded the wife $2,400 of the fund and the husband $3,600. Only the defendant-husband appeals from the judgment. Because we hold that on a claim for compensation settled after divorce, the noninjured spouse has the burden to show what part of the fund was community, if any, and because she failed to sustain this burden, we reverse and render.

Appellant Hicks contends that the trial court erred in decreeing that his ex-wife receive part of the funds because: (1) the court erroneously indulged a presumption that the funds were community property; (2) proceeds of a post-divorce workmen’s compensation settlement are separate property; (3) the decree is a judicial compulsory assignment of compensation benefits; (4) it held that the defendant had commingled funds from the claim with other community property; and (5) the suit is barred by res judicata because with diligence it could have been litigated in the prior divorce proceeding.

On the other hand, the ex-wife contends that the trial court was correct in its judgment because this matter was not adjudicated in the divorce decree, there was a commingling of funds between this claim and a previous claim settled for $1,200 in January 1974, and the ex-husband defrauded her by concealing the fact that this claim was still pending at the time of the divorce.

Res Judicata

Although the divorce decree disposed of several listed items of community property, it did not mention the claim in question and did not contain a clause providing for the disposition of other property not specifically mentioned. The property not mentioned was not, therefore, disposed of by the divorce decree. Thompson v. Thompson, 500 S.W.2d 203, 208 (Tex.Civ.App.- — Dallas 1973, no writ). Where part of the community estate is not disposed of in a divorce decree, a subsequent action for partition of this property is not barred by res judicata. Busby v. Busby, 457 S.W.2d 551, 554 (Tex.1970). Since this claim remains undisposed of, the court’s finding that Mr. Hicks fraudulently concealed the existence of the claim is immaterial.

Commingling

The plaintiff argues that there was a commingling of the settlement proceeds in dispute with a $1,200 settlement of another workmen’s compensation claim received by her ex-husband several months prior to divorce. We cannot agree because we find no evidence of a mixing of the two funds. The undisputed evidence is that the $1,200 was received several months prior to the divorce, and if any part of that fund remained at the time of the divorce, it was presumably divided by the divorce decree. Likewise, it is undisputed that the proceeds from the second claim settlement were not in the possession of the husband before the divorce, but instead were paid into the court’s registry by the compensation carrier after the divorce as a result of this suit. There is uncertainty in the record as to whether some of the weekly benefit checks received before the divorce were attributable to the first injury or the second, but it is undisputed that the settlement made after the divorce was for the second injury alone. Consequently, there is no evidence that the funds now in question represent commingled benefits from the two injuries.

A more serious question is whether any of the proceeds of the post-divorce settlement are community property because they represent compensation for disability during the marriage. Where an injured worker is married at the time of the injury and remains married throughout the period of disability, the workmen’s compensation award is community property. Few v. Charter Oak Fire Insurance Co., 463 S.W.2d 424, 425 (Tex.1971). This is so because compensation awards are intended to compensate an injured worker for his loss of earning capacity, Employers Reinsurance Corp. v. Holland, 162 Tex. 394, 347 S.W.2d 605, 606 (1961), and personal injury recoveries for loss of earning capacity during marriage are community property. Tex. Family Code Ann. § 5.01(a)(3) (Vernon 1975). On the other hand, compensation for disability for a period after divorce is not community property even though the injury may have occurred when the parties were married, and a divorce settlement that awards such future benefits to the claimant’s former spouse has been held to be an involuntary judicial assignment of workmen’s compensation benefits forbidden by Tex.Rev.Civ.Stat.Ann. art. 8306 § 3 (Vernon 1967). Piro v. Piro, 327 S.W.2d 335, 337-38 (Tex.Civ.App. — Fort Worth 1959, writ dism’d); see Mabry v. Aetna Casualty & Surety Co., 230 S.W.2d 572, 574-75 (Tex.Civ.App. — Galveston 1950, no writ). Under these authorities, a claim for future workmen’s compensation benefits existing at the time of divorce is not community property, and the presumption of community, recognized in cases such as Tarver v. Tarver, 394 S.W.2d 780, 783 (Tex.1965), does not apply.

Burden of Proof

In the present case, part of the proceeds in the court’s registry might be community funds if they represent deferred payments for weekly benefits to which Mr. Hicks was entitled for loss of earning capacity during the marriage. However, the evidence is undisputed that Mr. Hicks was receiving weekly compensation checks of $63 for this injury before the divorce and for approximately six weeks after the divorce. Both Mr. and Mrs. Hicks were certain of the amount and the receipt of these checks, but neither could recall with specificity when they commenced. Mrs. Hicks testified that she intercepted and cashed at least six of these checks prior to divorce, but thereafter sent them to Mr. Hicks. Since weekly benefits were received up to and beyond the date of the divorce, Mr. Hicks may well have received full compensation at the time of the divorce for any previous period of disability. Thus, it is possible that all weekly compensation for loss of earning capacity during the marriage was received and consumed by the parties prior to the divorce and that all of the funds in the court’s registry are the separate property of Mr. Hicks. Therefore, we conclude that the record contains no evidence showing that any of these funds are community property. Since Mrs. Hicks was plaintiff in this suit, we hold that she had the burden to prove what part, if any, of these funds was community, and that she is not entitled to recover because she failed to discharge that burden.

Since the trial court erroneously awarded Mrs. Hicks part of the proceeds of the workmen’s compensation settlement without evidence tending to establish that any part of the proceeds was community property, we reverse the judgment and render judgment awarding the entire $6,000 in the court’s registry to Mr. Hicks. The district court is directed to enter an order instructing the district clerk accordingly.

Reversed and rendered.


author: KEITH, Justice.

text:
    Newton SCHWARTZ et al., Appellants, v. Everett A. LOWE, Appellee.
    No. 7887.
    Court of Civil Appeals of Texas, Beaumont.
    Dec. 16, 1976.
    Rehearing Denied Jan. 20, 1977.

      Newton B. Schwartz, Houston, for appellants.
    Edward Schwab, III, Galveston, for ap-pellee.
   KEITH, Justice.

Defendants below appeal from an order overruling their pleas of privilege to be sued in Harris and Ector Counties. We shall speak of the parties as they appeared in the trial court.

Plaintiff alleged breach of a contract to purchase land in Galveston County and sought to collect damages allegedly occasioned thereby.

Plaintiff sought to maintain venue in the county of suit under subdivision 23, Tex. Rev.Civ.Stat.Ann. art. 1995 (1964).

At the outset, we note two basic rules which govern our review of interlocutory venue appeals. First, every reasonable intendment must be indulged in favor of the action of the trial court. James v. Drye, 159 Tex. 321, 320 S.W.2d 319, 323 (1959). Second, the burden is on the plaintiff seeking to maintain venue as to an out of county resident to plead and prove that his case is within one or more of the venue exceptions set out in the statute. Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97, 99 (1953); Guerra v. Texas Employers Insurance Ass’n, 480 S.W.2d 769, 772 (Tex.Civ.App. — Corpus Christi 1972, no writ).

Defendants contend that subdivision 23 of Tex.Rev.Civ.Stat.Ann. art. 1995 (1964) is inapplicable in the case at bar since they were sued individually only and not as a partnership entity. We agree.

The pertinent provisions of subdivision 23 read as follows:

“Suits against a private corporation, association, or joint stock company may be brought in the county ... in which the cause of action or part thereof arose.”

As was said in Gugenheim v. Trevino, 532 S.W.2d 698, 699 (Tex.Civ.App. — San Antonio 1976, no writ):

“Clearly, subdivision [23] is applicable only where the suit is against a private corporation, association or joint stock company. Plaintiff’s petition in this case identified the defendants as Alan Gugen-heim and David Askanase, who are identified in the petition as doing business under the name of Bain Peanut Company. The petition does no more than allege that the two named defendants operate and do business under the trade name of Bain Peanut Company. .Under the allegations of plaintiff’s petition, the only defendants in this case are Alan Gugen-heim and David Askanase. Assuming that Bain Peanut Company is a ‘private association’ within the meaning of subdivision 23, that entity is not a party to the suit. The suit, therefore, is not a suit against a private association, and subdivision 23 is not applicable. Dillard v. Smith, 146 Tex. 227, 205 S.W.2d 366, 367 (1947).” (Emphasis added.)

The style of the case in plaintiff’s pleadings recites: “EVERETT A. LOWE, JR., Plaintiff v. NEWTON B. SCHWARTZ and PERRY D. DAVIS, JR., a partnership, Defendants.” Paragraph II of the petition begins: “On or about July 4, 1969 Defendants (who were partners at all times material to this cause of action) contracted in writing . . . .” It is likewise significant that the opening sentence of plaintiff’s petition states: “Comes now EVERETT A. LOWE, JR. complaining of NEWTON B. SCHWARTZ and PERRY D. DAVIS, JR. . ” No mention is made of any complaint against the partnership per se. Indeed, the descriptive phrases above noted constitute the only references made to the existence of same in either plaintiff’s pleadings or his controverting affidavit.

Clearly, there is nothing in the record to show that the partnership itself was ever made a party to this suit. Both defendants filed separate answers and separate pleas of privilege in their individual capacities only.

Having failed to make defendants’ partnership a party to the suit, plaintiff may not maintain venue in Galveston County under subdivision 23 of Tex.Rev.Civ.Stat. Ann. art. 1995 (1964). We, therefore, reverse the judgment of the trial court and remand the cause with instructions to transfer the case as to defendants Schwartz and Davis to Harris and Ector Counties, respectively.

REVERSED and REMANDED.

STEPHENSON, J., not participating.


author: BISSETT, Justice.

text:
    Mrs. Mae Belle NEWTON et vir., Appellants, v. The GENERAL MANAGER OF SCURLOCK’S SUPERMARKET both Individually and as Agent for Scurlock’s Supermarket, Appellees.
    No. 1135.
    Court of Civil Appeals of Texas, Corpus Christi.
    Dec. 30, 1976.
    Rehearing Denied Jan. 26, 1977.

      John W. Clark, Mission, for appellants.
    John E. Lewis, Adams, Graham, Lewis, Jenkins, Jones & Graham, McAllen, for ap-pellees.
   OPINION

BISSETT, Justice.

This is a slip and fall case. Trial before a jury commenced on March 1, 1976. At the close of plaintiffs’ evidence, the trial judge granted defendants’ motion for an instructed verdict and rendered a take nothing judgment in favor of defendants. Plaintiffs have duly and timely perfected an appeal from that judgment.

Plaintiffs, in points 1 and 2, contend that the court erred in granting the motion for summary judgment on the ground that there was no evidence of any negligent act or omission on the part of defendants, because there is evidence that the defendants: 1) placed the foreign object on the floor; 2) knew that it was on the floor and negligently failed to remove it; or 3) knew that it had been on the floor for an extended period of time; that it could or should have been discovered and removed by them in the course of ordinary care.

Mrs. Mae Belle Newton, plaintiff-appellant, entered defendants’ store about 6:30 p. m. on May 5, 1975. After she had finished shopping and was pushing a grocery cart down an aisle towards a checkout counter, she said that her foot slipped and caused her to “spraddle”; she then looked around to see what had caused her to slip and noticed a substance on the floor of the store that was “reddish color” and “looked like a spot of blood that would run out of a chicken”, and that she felt the substance when her foot slipped. There is nothing further in the record with regard to the substance, the size, nature or description thereof, how it got on the floor or how long it had been there prior to the time that plaintiff slipped.

David Silva, as assistant manager of defendants’ store testified that at the time of the occurrence in question, there were several people around the checkout counter and that the store employees were busy. He further testified in response to the following questions:

“Q Okay. Now, what routine or schedule did you have for trying to keep food or spills or slick spots off the floor so that this wouldn’t happen?
A We have one of the — we are three assistant managers. One is assigned to the floor at all times to check the floors.
Q What is your cleaning routine?
A We mop the floor every night.
Q Is that all?
A Yes.
Q Is there any cleaning during the day?
A During the day, if we find anything we mop it up.”

Since the trial court granted defendants’ motion for an instructed verdict, we consider only the evidence most favorable to plaintiffs, the losing parties in the trial court, indulge against the judgment every inference that may be properly drawn from the evidence, and disregard all conflicting evidence and inferences. Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752 (Tex.Sup.1970); Bass v. General Motors Corporation, 491 S.W.2d 941 (Tex.Civ.App. —Corpus Christi, 1973, writ ref’d n. r. e.).

A storekeeper is not the insurer of the safety of the invited customers who enter the store for the purpose of shopping. McElhenny v. Thielepape, 155 Tex. 319, 285 S.W.2d 940 (1956); Great Atlantic & Pacific Tea Company v. Giles, 354 S.W.2d 410 (Tex.Civ.App. — Dallas 1962, writ ref’d n. r. e.); Henderson v. Pipkin Grocery Co., 268 S.W.2d 703 (Tex.Civ.App. — El Paso 1954, writ dism’d).

In a slip and fall case where the injury is caused by a foreign substance upon a floor which rendered it slippery, in order for the plaintiff to raise a fact issue to go to the jury for determination, he must introduce some evidence: 1) that the defendant placed the foreign substance on the floor, or; 2) that the defendant knew that the foreign substance was on the floor and willfully or negligently failed to remove it, or; 3) that the foreign substance had been on the floor for such a period of time that it would have been discovered and removed by the defendant in the exercise of ordinary care. Sherwood v. Medical & Surgical Group, Inc., 334 S.W.2d 520 (Tex.Civ.App.— Waco 1960, writ ref’d); H. E. Butt Grocery Co. v. Johnson, 226 S.W.2d 501 (Tex.Civ.App. — San Antonio 1949, writ ref’d n. r. e.). The mere fact that a foreign substance is on the floor of a store which caused the floor to become slippery is not sufficient to raise an inference that the storekeeper placed it there, or knew it was there and willfully or negligently failed to remove it, or that it had been there for such a length of time that it would have been discovered and removed by the defendant had he used ordinary care. Franklin v. Safeway Stores, Inc., 504 S.W.2d 514 (Tex.Civ.App. — Dallas 1973, writ ref’d n. r. e.); H. E. Butt Grocery Company v. Tester, 498 S.W.2d 683 (Tex.Civ.App. — Corpus Christi 1973, no writ); Dill v. Holt’s Sporting Goods Store, 323 S.W.2d 644 (Tex.Civ.App. — Houston 1959, no writ).

There is no evidence in this case that defendants put the foreign substance (upon which Mrs. Newton slipped) on the floor, or that they had actual knowledge that the substance was on the floor, or that the substance had been on the floor for such a period of time that it would have been discovered and removed by defendants had they exercised ordinary care. Points 1 and 2 are overruled.

The evidence showed that after Mrs. Newton slipped, one of the checkers called David Silva, who came to the immediate area. He further testified that when he got to Mrs. Newton she was standing, that he approached her and asked her if she was alright and she said: “more shaken up than anything else”. He saw the substance on which she had slipped, and cleaned it up himself with a paper towel.

Plaintiffs, in point 3, contend that the trial court erred in granting the motion for an instructed verdict because the wiping up of the foreign substance from the floor with a paper towel constituted a destruction, a concealment and a failure to produce evidence on the part of defendants, which raised a presumption that such destroyed evidence would have been adverse to defendants, and which presumption was some evidence of defendants’ negligence. They rely on H. E. Butt Grocery Company v. Bruner, 530 S.W.2d 340 (Tex.Civ.App.— Waco, 1975, no writ) as authority for their contention.

This case is distinguishable on the facts from Bruner. There, the plaintiff struck her head when she fell and while lying on the floor, drifting in and out of consciousness, heard one of the defendant’s employees tell another one to “get rid” of an onion top on which the plaintiff had slipped. There was evidence that the onion top was “long and juicy” and that it looked like it had been “stepped on and mashed”. At the hearing on the defendant’s plea of privilege, the defendant did not produce the onion top or offer any evidence as to its condition immediately after the plaintiff’s fall. The Court of Civil Appeals, in an opinion by a divided court, held that the intentional destruction of the onion top created a presumption that it would have shown that it was sufficiently “stepped on and mashed” as to lead to the conclusion that it had lain on the floor long enough for the defendant, in the exercise of ordinary care, to have discovered and removed it.

In Bruner, there was an intentional destruction of a physical object that caused the plaintiff to slip and fall; there was testimony that the object had been “stepped on and mashed”, which, according to the majority opinion, raised the question:

“. . was it stepped on and mashed only by Plaintiff (in which event it may have been on the floor a very short time) or was it stepped on and mashed by one or more people in addition to Plaintiff (in which event it may well have been on the floor for a sufficient period of time in which Defendant by the exercise of ordinary diligence should have discovered and removed it)?”

The Court then reasoned:

“Had the onion stalk been available as evidence and produced in court, this question might have been answered. . .”

The facts in Bruner are entirely different from those of this case. Here, there was no intentional destruction of evidence, but only the wiping up of a liquid on the floor, and there is no evidence that the foreign substance on the floor had been or might have been stepped in by others prior to the time Mrs. Newton stepped in it. No questions were asked of any witness who saw the substance shortly after Mrs. Newton slipped, concerning the appearance of the substance or of the surrounding area of the floor. Point 3 is overruled. The judgment of the trial court is AFFIRMED.


author: JAMES, Justice.

text:
    The CITY OF GATESVILLE, Appellant, v. Floyd Lee TRUELOVE, Appellee.
    No. 5653.
    Court of Civil Appeals of Texas, Waco.
    Dec. 30, 1976.

      Robert F. Salter, Gatesville, for appellant.
    Jerry B. Donaldson, Gatesville, Mack Kidd, Austin, for appellee.
   OPINION

JAMES, Justice.

This is a suit by a city employee against the City of Gatesville for personal injuries under the Texas Tort Claims Act, Article 6252-19, Vernon’s Texas Civil Statutes. Trial was had to a jury. The verdict was favorable to Plaintiff. The trial court entered judgment for Plaintiff in harmony with the verdict, from which the Defendant City appeals. We reform and affirm.

On June 23, 1975, Plaintiff-Appellee Floyd Lee Truelove was an employee of the City of Gatesville. Buster Galloway, a front end loader operator, was working with Truelove on said date in the task of cleaning out the sewer pits in the City of Gatesville Sewer Plant. Galloway’s job was to use the City front end loader to scoop up the effluent in the pits, while Truelove’s job was to stand in front of the bucket of the front end loader and shovel into the bucket thereof the effluent between the bucket and the end of the curb, which the front end loader could not scoop up. Truelove and Galloway had on that day cleaned out two sewer pits without incident. On the third pit, while the cleaning thereof was in progress, Galloway attempted to get down from the front end loader, at which time the machine went into gear and pinned Plaintiff Truelove’s leg between the edge of the bucket and the concrete curb, thereby amputating Truelove’s leg below the knee.

The jury found in answer to special issues, that on the occasion in question:

(1) Galloway was negligent in four particulars, each of which was a proximate cause of the occurrence in question:

(a) in failing to prevent the machine from moving forward;

(b) in failing to use the safety lock on the machine;

(c) in failing to disengage the transmission before dismounting; and

(d) in failing to shut off the machine before dismounting.

(2) The City of Gatesville was negligent in five particulars, each of which was a proximate cause of the occasion in question:

(a) in failing to properly train Galloway in the operation of the machine;

(b) in failing to properly instruct Galloway in the safety rules covering the operation of the machine;

(c) in failing to properly instruct Galloway as to the safety mechanisms located on the machine;

(d) in failing to provide safety meetings; and

(e) in entrusting the machine to Galloway.

(3) The jury failed to find Plaintiff Truelove guilty of any negligence. Specifically, they failed to find Truelove negligent in standing in front of the machine, and failed to find Truelove did not keep a proper lookout.

(4) On the comparative negligence issue, the jury found Galloway to have been 40% negligent, the City 60% negligent and Truelove zero percent negligent.

(5) In answer to the damage issue growing out of Truelove’s personal injuries, the jury found $145,000.00.

Pursuant to the jury verdict, the trial court entered judgment in favor of Plaintiff Truelove against the Defendant City of Gatesville in the amount of $100,000.00, same being the maximum sum recoverable under Article 6252-19, V.A.C.S., the Texas Tort Claims Act.

The Defendant City appeals upon seven points or error asserting the trial court erred as follows:

(1) In refusing to grant Appellant’s only motion for continuance;

(2) In permitting Appellee to examine Buster Galloway as an adverse witness;

(3) In granting a judgment upon the jury verdict, saying that but for the inadmissible testimony of Galloway, there was no evidence of the City being negligent;

(4) In determining that Plaintiff-Appel-lee had a cause of action pursuant to Article 6252-19, V.A.C.S., the Texas Tort Claims Act;

(5) In granting judgment against the City for a sum of money more than the percentage of the total damages found by the jury based upon the percentage of negligence attributable to the City;

(6) In granting judgment against the City by virtue of the finding of negligence of a fellow employee (Galloway); and

(7) In granting judgment on the verdict for the asserted reason that the jury’s answer to Special Issue No. 3 (wherein the jury acquitted Truelove of any negligence) is so against the great weight and preponderance of the evidence as to be manifestly unjust.

We overrule all of Appellant’s points of error and affirm the trial court’s judgment.

We revert to Appellant’s first point, wherein Appellant contends the trial court abused its discretion in refusing to grant Appellant’s only motion for continuance.

As we understand it, Appellant contends the trial court abused its discretion in overruling Appellant’s first motion for continuance for two reasons:

(1) Because Appellant only had nine days in which to answer Plaintiff-Appellee’s First Supplemental Petition, wherein Plaintiff “for the first time alleged that Appellant was negligent”; and

(2) Because Appellant by being put to trial on April 19, 1976, was unable to take the deposition of one Dr. Webb, a medical doctor who had examined Plaintiff Truelove.

Plaintiff-Appellee’s Original Petition was filed August 11, 1975, in which Plaintiff sought to make the City liable through the alleged negligence of Buster Galloway. Then on April 9, 1976, Plaintiff filed his First Supplemental Petition in which he sought to make the City liable based upon additional grounds of the City’s negligence other than and independently of Galloway’s negligence. (These additional grounds are as submitted to and answered by the jury as hereinabove indicated.) The trial court in January 1976 specially set this case for jury trial for April 19,1976. Appellant says that he had only nine days to defend against the additional grounds of negligence. Plaintiff learned shortly before filing his Supplemental Petition that the City had no safety meetings or safety program for its employees. Learning of this, Plaintiff directed written interrogatories concerning safety programs to the City Manager, a Mr. Steve Fore, who testified in the case. Therefore, the City had some foreknowledge of these matters at least a few days prior to April 9, 1976, and then had nine days of actual knowledge of the alleged grounds of additional negligence on the part of the City before trial.

The granting or refusing of a continuance rests within the sound discretion of the trial court and such ruling will not be disturbed on appeal except in case of a clear abuse of such discretion. See Rules 251, 252, Texas Rules of Civil Procedure; Hernandez v. Heldenfels (Tex.1963) 374 S.W.2d 196, 202.

With reference to Appellant’s asserted inability to take the deposition of Dr. Webb: the City had been supplied a written medical report from Dr. Webb of Waco, Texas, dated December 9, 1975, and a supplemental report in January, 1976, at Plaintiff’s expense. Dr. Elsworth Lowrey was the doctor who regularly treated Plaintiff since his injuries occurred. Appellant took Dr. Lowrey’s deposition on April 6, 1976, and contends that he (Appellant) did not know he needed Dr. Webb’s deposition until April 6,1976. Appellant then tried to take Dr. Webb’s deposition, and was advised that Dr. Webb would not be available for deposition until April 29, 1976, which was ten days after the trial date. Appellant did not cause a subpoena to be issued for Dr. Webb to assure his presence at the time of trial, nor did Appellant give Appellee the ten days notice of its intention to take Dr. Webb’s deposition as provided by Rule 200, T.R.C.P. Nor did Appellant show in his motion for continuance what Dr. Webb’s testimony would be and the materiality thereof, as prescribed by Rule 252, T.R.C.P.

Rules 176 et seq. and 186 et seq. authorize the placing of witnesses residing within 100 miles of the courthouse under subpoena to compel their attendance, and authorize the taking of depositions. These rules if utilized offer parties ready and fairly certain means of procuring the testimony of witnesses who reside within 100 miles, and they offer parties absolute protection against being forced to trial without the benefit of the testimony of material witnesses.

In the case at bar, Dr. Webb was subject to being subpoenaed; however, no subpoena was issued for him, and no reasons were stated in Appellant’s motion for continuance why Dr. Webb could not have been subpoenaed. The absence of a material witness is “sufficient cause” for a continuance, under Rule 251, T.R.C.P., but only if “due diligence” has been used to procure the testimony of the witness, under Rule 252, T.R.C.P. See Fritsch v. J. M. English Truck Line (1952) 151 Tex. 168, 246 S.W.2d 856, 859; Hensley’s Admr’s v. Lytle, 5 Tex. 597, 55 Am.Dec. 741; Middleton v. Vaughn (Waco, Tex.Civ.App.1975) 530 S.W.2d 925, no writ.

Under this record, we cannot say the trial court abused its discretion in overruling Appellant’s motion for continuance.

Appellant’s second and third points assert the trial court erred in permitting Appellee to ask some leading questions of Buster Galloway, contending Galloway was not an adverse witness, within the meaning of Rule 182, T.R.C.P.; and further, that “except for the inadmissible testimony of Buster Galloway, there was no evidence of negligence by the City of Gatesville.” We overrule these points. It is undisputed that Galloway was an employee of the City at the time of the accident in question, acting within the scope of his employment. It is also undisputed that at the time of trial, Galloway was no longer an employee of the City. The City by its pleadings denied that Galloway was negligent in any respect in the operation of the machine. Appellee called Galloway to the stand and was permitted to cross examine Galloway and ask him leading questions, over Appellant’s objections.

We are of the opinion that the trial court had the right to treat Buster Galloway as an adverse witness to Plaintiff-Appellee Truelove. Rule 182, T.R.C.P. See City of Waco v. Criswell (Waco, Tex.Civ.App.1940) 141 S.W.2d 1046, no writ; City of Houston v. Moore (Houston 1st Tex.Civ.App.1965) 389 S.W.2d 545, NRE; City of Houston v. Glover (Waco, Tex.Civ.App.1962) 355 S.W.2d 757, NRE.

However, be that as it may, if we should be in error in holding that Buster Galloway was an adverse witness, under this record we hold that such action by the trial court in treating Galloway as an adverse witness, if error, was harmless. Rule 434, T.R.C.P.

Appellant further contends the trial court erred in granting judgment against the City because Galloway was a fellow employee of Plaintiff-Appellee Truelove, and therefore Plaintiff is barred by recovery under the “fellow servant” doctrine. Also, Appellant contends that Article 6252-19, Vernon’s Ann. Texas Statutes, does not afford protection to municipal employees. Also, that the trial court erred in awarding $100,000.00 damages (the maximum permitted by the Act) against the City because the jury found the City to be 60% negligent, with $145,000.00 total damages; that 60% of $145,000.00 is only $87,000.00. We overrule all of these contentions.

Art. 6252-19, V.A.C.S., Sec. 2(1), specifically includes “cities” as “units of government” whose liability is affected by the Tort Claims Act. The City of Gatesville did not have Workmen’s Compensation Insurance in effect on its employees on June 23, 1975, the date of the accident in question, and was not required to carry same as of the time of such injury.

The “fellow servant” doctrine does not apply as a bar to Plaintiffs recovery in the case at bar because: the jury found the City negligent in failing to properly train and properly instruct Buster Galloway in the operation, safety rules, and safety mechanisms of the front end loader, in failing to provide safety meetings for its employees, and in entrusting the front end loader to Buster Galloway, each of which ground of negligence was a proximate cause of the accident in question. All of these jury findings established the breach of non-delegable duties which the City as employer owed to Plaintiff Truelove, its employee.

The jury also found Galloway negligent in four different particulars concerning his operation of the front end loader, each of which grounds was a proximate cause of the accident in question.

Here we have the City as employer concurrently negligent with Galloway, a fellow employee to Plaintiff’s Truelove. It is well established that when the master’s negligence is concurrent with that of a fellow servant, the fellow servant rule will not preclude recovery. Fort Worth Elevators Co. v. Russell (1934) 123 Tex. 128, 70 S.W.2d 397; Farley v. M M Cattle Co. (Tex.1975) 529 S.W.2d 751, 757. Also see 38 Tex. Jur.2d, “Master and Servant,” pars. 180 and 181, pp. 404 et seq.

Under this record, the City and Galloway are in the status of joint tort feasors, insofar as Plaintiff-Appellee Truelove is concerned. “Where the negligences of two or more persons concur in producing a single, indivisible injury, then such persons are jointly and severally liable, although there was no common duty, common design, or concerted action”. Austin Road Co. v. Pope (1949) 147 Tex. 430, 216 S.W.2d 563, 565. Also see Art. 2212a, Sec. 2(c), V.A.C.S.

In the case at bar, the jury found Galloway 40% negligent the City 60% negligent, and Plaintiff Truelove zero percent negligent. The total damages found by the jury were $145,000.00; however Plaintiff was limited by Article 6252-19 to $100,-000.00. See State Highway Dept. v. Pinner (Beaumont, Tex.Civ.App.1975) 531 S.W.2d 851, 858, no writ. Since the City and Galloway were jointly and severally liable as joint tort feasors, the City was liable up to $100,000.00, All of Appellant’s points and contentions are overruled.

Finally, Appellee has asserted by way of cross-point that it is entitled to have the trial court’s judgment reformed so as to provide that it bears interest at nine per cent per annum instead of the six per cent per annum recited in said judgment. We sustain this cross-point. See Article 5069-1.05, Vernon’s Ann.Texas Statutes, effective Sept. 1, 1975.

We therefore reform the trial court’s judgment by causing same to bear interest from the date thereof at the rate of nine per cent per annum, and as reformed, we affirm same.

REFORMED AND AFFIRMED.


text:
    Burtram C. HOPKINS, II, Appellant, v. FIRST NATIONAL BANK AT BROWNSVILLE, Texas, Appellee.
    No. 1112.
    Court of Civil Appeals of Texas, Corpus Christi.
    Dec. 30, 1976.
    Rehearing Denied Feb. 17, 1977.

      Steven W. Stark, Cox, Wilson, Black & Stark, Brownsville, Daniel Miller, Dallas, for appellant.
    C. Fount Ray, Ransome & Ray, Brownsville, for appellee.
   OPINION

BISSETT, Justice.

This is a venue case involving subdivision 5(a) of Tex.Rev.Civ.Stat.Ann. art. 1995 (Supp.1976). The First National Bank of Brownsville, Texas, instituted suit against Southwestern Dynamics, Inc. (SDI), Thomas Woodward, Howard L. Crow, Jr., Donald Kerr and Burtram C. Hopkins, II. Plaintiff, a national banking association, sued SDI when it allegedly defaulted upon a note. Woodward, Crow, Kerr and Hopkins were sued upon a contract of guaranty which they executed and guaranteed the payment of the indebtedness of SDI.

Defendant Hopkins filed a plea of privilege to be sued in Dallas County, the county of his residence. Plaintiff filed a controverting plea. The trial court overruled the plea of privilege and defendant Hopkins appeals.

On October 1, 1974, SDI executed a note for $37,500 payable to plaintiff Bank which provided in part:

“For value received, I, we ... promise to pay to the order of FIRST NATIONAL BANK AT BROWNSVILLE, at its banking house in Brownsville, Cameron County, Texas, the sum of THIRTY SEVEN THOUSAND FIVE HUNDRED AND 00/100 ....
******
This note is secured by Guaranty of . Burtram C. Hopkins II.”

The president of plaintiff bank testified that the note sued upon was merely in renewal of the balance due on October 1, 1974 of an original note which was executed at or about the time of the execution of the guaranty contract on January 22, 1974. The contract of guaranty, in part, provided:

“FOR VALUE RECEIVED and in consideration of any loan or other financial accommodation heretofore or hereafter at any time made or granted to Southwestern Dynamics, Inc. (the ‘Debtor’) by First National Bank at Brownsville, Texas, (hereinafter, together with its successors and assigns, called the ‘Bank’), the undersigned (the ‘Guarantor’) hereby unconditionally guarantees the full and prompt payment when due, whether by acceleration or otherwise, and at all times thereafter, of all obligations of the Debtor to the Bank, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or now or hereafter existing, or due or to become due (all such obligations being hereinafter collectively called the ‘Liabilities’), and the Guarantor further agrees to pay all expenses (including attorneys’ fees and legal expenses) paid or incurred by the Bank in endeavoring to collect the Liabilities, or any part thereof, and in enforcing this guaranty. The right of recovery against the Guarantor is, however, limited to the amount of Fifty thousand and no/100 Dollars ($50,000.00) plus interest on such amount and plus all expenses of enforcing this guaranty.”

The contract of guaranty further provided: the guaranty “shall be a continuing, absolute and unconditional guaranty”, and the Bank “may, from time to time, without notice to Guarantor . . . extend or renew for any period (whether or not longer than the original period), alter or exchange any of the Liabilities”.

The Bank president further testified that the original note represented a line of credit that Southwestern Dynamics had with the Bank which totalled $37,500 on October 1, 1974 when the renewal note was executed. The loan made on the original note would not have been made had it not been for the guaranty of defendant Hopkins and other defendants.

Subdivision 5(a) of Tex.Rev.Civ.Stat.Ann. art. 1995 (Supp.1976). The general revenue statute, provides an exception to venue in the domicile of defendant when:

. . a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.”

Hopkins contends that Subdivision 5(a) does not apply to the suit against him since the contract on which he is sued does not, itself, expressly name Cameron County, or a definite place therein, as the place of performance. We do not agree.

The function and office of the contract in this case was collateral to the original loan, which would not have been made had Hopkins and the other guarantors not executed the contract. Under the evidence, the contract cannot be read or considered independently of the original note, and the guarantees contained in the contract not only guaranteed the performance of current obligations of SDI, but of future obligations as well. The original note was not introduced into evidence for the reason that it was not in the Bank’s possession at the time of the hearing as it was delivered to SDI, the maker, at the time of the execution of the renewal note by SDI. However, the president of the Bank testified, without objection, that both the original note and the renewal note were on a printed form, that the appropriate blanks were filled in as loans were made, and that the original note and the renewal note were in the same form. The renewal note, which was introduced in evidence, had printed on the form the words:

“. . . promise to pay to the order of FIRST NATIONAL BANK AT BROWNSVILLE, at its banking house in Brownsville, Cameron County, Texas, the sum of . . ..”

It was established by the evidence that the original note was to be paid at a definite place in Cameron County, Texas.

This case is quite similar to Cullum v. Commercial Credit Co., 134 S.W.2d 822 (Tex.Civ.App. — Amarillo 1939, no writ). There, a partnership sold an automobile to buyer in exchange for a note and chattel mortgage with the note providing that payment was to be in a certain county. The partnership assigned the note and chattel mortgage to plaintiff and later gave plaintiff a guarantee in writing which referred to “such” promissory note, “said” promissory note and “said” note. The Court noted that an unconditional and absolute contract of guaranty obligated the guarantors to pay a sum of money which may and usually is specified in another instrument and said:

“The note, according to its specific terms, was payable at the city of Amarillo, which is located in Potter County. The contract of guaranty did not create an obligation of the guarantors to pay a sum of money specified therein as would a promissory note, but bound them, upon default of the maker, to pay the sum of money specified in another instrument, viz., the promissory note which had theretofore been executed by George W. Taylor. It was essentially a contract of guaranty and was unconditional. Its effect was to bind appellants to pay the note of Taylor upon the sole contingency of Taylor’s default. Being a general and unconditional guaranty its effect was to bind appellants upon the note according to all of its terms. In addition to the legal obligation created by such contract, the guaranty contract itself provides that in consideration of appellee’s purchase of the note appellants guarantee the prompt payment of same and each and every installment thereof ‘as the same shall become due and payable.’ The note became due and payable at Amarillo in Potter County and we think the conclusion is inescapable that appellants are, by the law and also by the specific terms of the contract itself, bound by the venue provision of the note in the same manner as they are bound by its other provisions.”
* ⅜: * * * *
“. . . the liability of a guarantor ‘is in general measured by that of the principal and will be so construed unless a less or greater liability is expressly assumed by the guarantor.’ ”

On the basis of this reasoning, the court held that the guarantor had by the nature of the guaranty become bound by the venue provision of the note. The rule announced in the Cullum case has been cited with approval by cases that are factually similar to the present case. We take note of two of such cases.

In Carter v. Texas State Bank of Jacksonville, 189 S.W.2d 782 (Tex.Civ.App.— Texarkana 1945, no writ), the defendant agreed to guarantee “the indebtedness of A. F. Barnhill and G. T. Murphy which at this time is approximately $3,500.00.” The guarantee applied to “additional amounts” not to exceed $5,000. All notes and renewals executed by Murphy and Barnhill were made payable at Jacksonville, Texas. Although the terms of the guaranty failed to refer to specific notes, it was held that the “import of the terms was to name the particular county” in which defendant had contracted in writing to perform the guaranty.

The more recent case, Laukhuf v. Associates Discount Corporation, 443 S.W.2d 725 (Tex.Civ.App. — Dallas 1969, no writ), involved a suit on the endorsement of security agreements. Sellers took seventeen security agreements with promissory notes attached to them and contemporaneously assigned them to plaintiff. Some of the security agreements had attached notes which provided a specific place of payment. The sellers executed a contract of guaranty to plaintiff in very general terms promising “to fully pay any and all indebtedness which now exists or which may hereafter accrue as same becomes due” without specifying a place of performance. The court cited the Cullum case as controlling, and held that the effect of the unconditional guaranty was to include the place of performance provided in the notes “not by implication but by the express terms of the contract”.

Although in Cullum, the guaranty made reference to a specific note, the rationale of that case is consistent with the case at bar. Here, the contract was absolute and unconditional. Hopkins became obligated to discharge all provisions of the original note and all provisions of a renewal note as well. The contract, when read and considered along with the original and renewal notes, bound Hopkins to pay the balance due on the renewal note, after default by SDI, at a definite place in Cameron County, Texas. We have considered all of Hopkins’ points of error, and they are overruled.

The judgment of the trial court is AFFIRMED.