author: CORNELIUS, Chief Justice.

text:
    Frank Jerome DUNN, Jr., Appellant, v. PATTERSON DENTAL CO. et al., Appellees.
    No. 8614.
    Court of Civil Appeals of Texas, Texarkana.
    Jan. 30, 1979.
    Rehearing Denied March 20, 1979.

      Gayle E. Oler, Oler & Hoffman, Dallas, for appellant.
    John H. Martin, Thompson, Knight, Simmons & Bullion, Dallas, for Fraser-Sweat-man.
    R. Chris Harvey, James K. Peden, III, Strasburger & Price, Dallas, for Patterson Dental.
    C. Edward Fowler, Jr., Bailey, Williams, Westfall, Lee & Fowler, Dallas, for Puritan-Bennett & Medicall.
    James S. Maxwell, Charles L. Perry, Seay, Gwinn, Crawford, Mebus & Blakeney, Dallas, for Western Enterprises.
   CORNELIUS, Chief Justice.

This is a products liability case in which appellant, a dentist, sought damages for personal injuries he received when a piece of his office equipment exploded. The defendants, appellees here, were the seller of the equipment (Patterson Dental Company), the assembler (Frazier-Sweat-men Company), the manufacturer of a component part (Western Enterprises, Inc.), and the company which serviced the equipment and had recently changed the oxygen cylinders thereon (Medicall, Inc.). The jury found against appellant on the negligence and liability issues, and a take nothing judgment was entered. The only complaint on appeal is that the trial court erred in allowing the four appellees six peremptory jury challenges each, for a total of twenty-four, while appellant was allowed only six.

Tex.R.Civ.P. 233 provides that:

“Each party to a civil suit shall be entitled to six peremptory challenges in a case tried in the district court, and to three in the county court.”

The term “each party” as used in the rule is not the same as “each person,” but means each litigant or group of litigants whose interest is antagonistic to another litigant or group of litigants. Tamburello v. Welch, 392 S.W.2d 114 (Tex.1965); Retail Credit Company v. Hyman, 316 S.W.2d 769 (Tex.Civ.App. Houston 1958, writ ref'd); King v. Maldonado, 552 S.W.2d 940 (Tex.Civ.App. Corpus Christi 1977, writ ref’d n. r. e.); 3 McDonald’s, Texas Civil Practice, Sec. 11.-12.1, p. 163. The question of antagonism is to be determined by the information available at the time to the trial court revealed from an analysis of the pleadings, as well as from facts disclosed by pre-trial proceedings and which have been specifically called to the court’s attention. Perkins v. Freeman, 518 S.W.2d 532 (Tex.1974). The inquiry is whether there is antagonism as to fact issues on which the jury will pass. Perkins v. Freeman, supra; 3 McDonald’s Texas Civil Practice, Sec. 11.12.2, p. 164.

Appellant alleged that each of the'appel-lees, Frazier-Sweatman Company, Western Enterprises, Inc. and Patterson Dental Company, was negligent in the design, manufacture, assembly and/or sale of the product and the faulty component, and that Medicall, Inc. was negligent in servicing the equipment and in connecting certain oxygen cylinders thereto and in failing to adequately train its serviceman. Appellant also alleged breach of express and implied warranties and relied upon the doctrine of strict liability. All of the appellees denied liability and in addition sought to place the blame for the accident on one or more of the other appellees. Each of them cross-claimed against the others seeking indemnity and/or contribution based upon alleged specific acts of negligence, except that neither Western nor Frazier-Sweatman sought any relief against the seller, Patterson Dental Company. Appellant’s counsel conceded that, on the basis of the pleadings alone, all of the appellees were antagonistic and he made no request to restrict their peremptory challenges until after voir dire of the jury panel. At that time he moved the court to allow all the appellees a total of only six strikés. The motion was based upon certain statements he contended had been made by the appellees’ attorneys in voir dire to the effect that none of them accused any other appellee of wrongdoing, thus negating any antagonism among them. The trial court denied the motion. Appellant here urges that, on the basis of the statements he attributes to appellees’ counsel, the trial court should have held that the appellees were not antagonistic and restricted their peremptory challenges to six.

The problem with appellant’s argument is that he has not brought forward a statement of facts, except a partial one showing his motion, and we are unable to determine the nature and import of what, if anything, the counsel for appellees said with reference to their positions regarding fault. The appellees deny that they made any statements on voir dire which had the effect attributed to them by the appellant. When only a partial statement of facts has been presented, we must presume there was sufficient evidence before the trial court to sustain its action. Englander Co., Inc. v. Kennedy, 428 S.W.2d 806 (Tex.1968); Blancas v. Blancas, 495 S.W.2d 597 (Tex.Civ.App. Texarkana 1973, no writ). The trial judge here may well have concluded that the statements were not made, or that if made, the context in which they were made militated against the effect which it is claimed they had. As antagonism is shown by the pleadings, and we have no record of any concessions made which would change that, we cannot say the court was wrong in concluding that at least, some antagonism existed among the appellees.

Appellant also contends that the court erred in failing to follow the provisions of Tex.Rev.Civ.Stat.Ann. art. 2151a (Supp.1978) which modified Rule 233 and requires the court to equalize the peremptory challenges allowed under that rule. Article 2151a provides:

“After proper alignment of parties, it shall be the duty of the court to equalize the number of peremptory challenges provided under Rule 233, Texas Rules of Civil Procedure, Annotated, in accordance with the ends of justice so that no party is given an unequal advantage because of the number of peremptory challenges allowed that party.”

There is considerable disagreement as to the meaning of Article 2151a and its effect on Rule 233, but we interpret the statute as requiring the trial court to equalize the number of challenges between the plaintiff’s side and the defendant’s side after the necessary alignment has been made to identify those sides. For example, if there are multiple defendants who are antagonistic, each is entitled to a complement of challenges, but the plaintiff is entitled to a number equalling the total allowed the defendants. Construing the statute in that manner is the only way to give effect to its plain language and to render its enactment meaningful.

Before the enactment of Article 2151a, Texas followed the “single issue” rule with regard to the number of challenges allowed multiple parties aligned on the same side of a lawsuit. According to that rule, the presence of a single issue which was not common to persons on the same side of the suit entitled each person to his own set of challenges. The operation of this rule resulted in cases of unfairness, because multiple parties with a common interest in defeating a solitary opponent could multiply their challenges by assuming inconsistent positions on a single issue. This, together with the undisputed right of the multiple parties to collaborate in the use of their challenges, resulted in a windfall which gave the multiple parties a distinct advantage against their common adversary. This advantage prompted a move to enact a statute or court rule which would require, after proper alignment of parties, the equalization of peremptory challenges between sides. See Jones, Peremptory Challenges-Should Rule 233 Be Changed ?, 45 Tex.L.Rev. 80 (1966). Article 2151a was enacted in 1971.

It has been argued that Article 2151a only requires equal challenges for each party, rather than for each side. But that was the requirement under Rule 233 and previous case law. If that is still to be the case, why was the statute enacted? The reason for the statute must have been to provide for a corresponding increase in a party’s challenges so as to equalize them with those of antagonistic multiple parties aligned against him in order to avoid disadvantage to the single party. This interpretation is confirmed, we believe, by that portion of the statute which states that the challenges must be equalized “in accordance with the ends of justice so that no party is given an unequal advantage because of the number of peremptory challenges allowed that party.” (Emphasis supplied.) If each party is always to be allowed only six challenges, what is the purpose of the quoted language? It seems obvious that the intent of the statute is to provide for an increase in one party’s challenges to offset the combined challenges of multiple parties aligned against him. Whatever we think of the wisdom of the Legislature in enacting Article 2151a, we are bound to give effect to its intention if it can be ascertained. The cardinal rule of statutory construction is that statutes are to be construed, if possible, to give them meaning and effect, not to render them meaningless and useless. The ap-pellees suggest that Article 2151a was enacted only to codify the pre-existing common law rule and make it mandatory, and also to give the trial court the power to align the parties according to their true interests. The answer to that suggestion is that Rule 233 had already made the common law rule mandatory, and the trial court was already possessed of power, prior to the adoption of Article 2151a, to align the parties according to their true interests.

Some contend that the statute was designed to give the trial court the discretion, in multiple party cases, to increase or reduce the challenges on either side in order to do substantial justice, even though the number of challenges per side is not equal. At least three cases by our Courts of Civil Appeals have so construed the statute. King v. Maldonado, supra; Dean v. Texas Bitulithic Co., 538 S.W.2d 825 (Tex.Civ.App. Waco 1976, no writ); Austin Road Company v. Evans, 499 S.W.2d 194 (Tex.Civ.App. Fort Worth 1973, writ ref’d n. r. e.). But if that was the purpose of the statute, it seems that it would have required the court to “proportionalize” or “adjust” the challenges. Instead, it required the court, after alignment, to equalize the challenges. The persuasive article of Professor Jones, which some have credited with leading to the enactment of Article 2151a, consistently and cogently argues for equal, not proportional, challenges. Moreover, our statutes governing the trial of criminal cases specifically require equal challenges in multiple party cases, as do the statutes or court decisions in the federal system and in the states of Florida, Illinois, Massachusetts and South Dakota. Annot., 32 A.L.R.3d 747, 790; Jones, Ibid., pp. 89-92. There is no valid reason why the same rule should not apply to civil cases in our State, particularly when it appears that Article 2151a was enacted for that very purpose and its clear language requires it. Those who argue for the “pro-portionalized” approach to Article 2151a ignore the problem that the statute was drafted to cure. Their interpretation would permit the single issue rule to continue unchecked as a part of our procedure, thereby permitting multiple parties to stack their peremptory challenges while leaving the single party no remedy except the uncertain and sometimes inconsistent exercise of the trial judge’s discretion. Our Supreme Court has already expressed the view that the question of the allocation of peremptory challenges should not be left to the uncontrolled discretion of the trial court. See Tamburello v. Welch, supra, at 117. Our approach to Article 2151a, however, would not divest the trial court of its discretion. It would still have broad discretion to decide whether and how many additional challenges to allow multiple parties, and it is only then that those allowed the opposite side must be increased to an equal number.

Appellees argue that the phrase “in the interest of justice” contained in Article 2151a indicates that the Legislature intended to give the trial court the discretion to allot the challenges in order to make the sides “substantially equal in strength”, but not to require true equality in the number of challenges. In our judgment this phrase does not mean the trial court has uncontrolled discretion to do what it believes to be justice. Rather, the statute very plainly says that, to do justice, the challenges shall be equalized.

Finally, it is urged that, if Article 2151a is given the interpretation we propose, the number of peremptory challenges required could get out of hand in complicated cases, and could operate to the harm of multiple parties who are greatly antagonistic. Although these considerations are legitimate matters of concern, we do not believe they are of sufficient gravity to cause justifiable alarm. Lawsuits with large numbers of antagonistic parties are not so common as to make the application of the statute an undue burden upon the jury system. And when the multiple parties are greatly antagonistic and there is an absence of any substantial common issue, severance, not alignment, is the answer. See Jones, Ibid.

We respectfully disagree with the decisions to contrary, and hold that when the court allows a total of more than six peremptory challenges to multiple parties aligned on the same side, the opposite side must be allowed an equal number. Thus, even though the court here may have been correct in allowing the appellees separate sets of challenges, he should have increased appellant’s to an equal number.

Appellant’s motion did not mention Article 2151a, nor did he expressly request an increase in his challenges, as distinguished from a reduction of those allowed the appellees. Nevertheless, Article 2151a imposed the duty upon the trial court to equalize the challenges in such a situation, and we believe appellant’s motion was sufficient to call the court’s attention to the need to do so. See Tex.R.Civ.P. 373. The courts of Texas are presumed to know the statutes of this State and the purposes for which they were enacted. It is not necessary to offer them in evidence or refer to them during the trial, and any reference to them by counsel can only be considered as an effort to assist the court in its rulings. 1 McCormick & Ray, Texas Law of Evidence, Sec. 171 (2d ed. 1956).

Appellees strenuously argue that the court’s failure to follow the mandate of Article 2151a, if error, was harmless. We think the Supreme Court’s opinion in Tamburello v. Welch, a case where the defendants were denied the challenges to which they were entitled, is the complete answer to the contention. There the court said:

“The harmless error rule undoubtedly applies where a party is denied the number of peremptory challenges to which he is entitled. As a practical matter, however, the appellant will usually be unable to show that an improper judgment probably resulted from an error of this nature. In that respect the case is somewhat similar to Heflin v. Wilson, Tex.Civ.App., 297 S.W.2d 864 (writ ref.), where the members of the jury panel had been selected by the jury-commission method rather than by use of the jury wheel. After holding that the appellant’s motion to quash the panel should have been sustained, the court said:
‘It would be impossible for appellant to demonstrate with any degree of certainty that he in fact suffered injury as a result of the manner in which the jury panel was selected, and he has made no effort to show specific harm or injury, but we think that harm within contemplation of the so-called harmless-error rule and Rule 434, T.R.C.P., must be presumed in the circumstances, . . .'
“If defendants must establish that the error in denying them additional challenges probably caused the rendition of an improper judgment, the matter of peremptory challenges will rest almost entirely in the uncontrolled discretion of the trial judge.
“In Texas Employers’ Ins. Ass’n v. McCaslin, 159 Tex. 273, 317 S.W.2d 916, we observed that an action or occurrence may be so highly prejudiced and inimical to the fairness of a trial that the burden of going forward with proof is met, prima facie at least, by simply showing the improper act and nothing more. It was also pointed out that the burden of the complaining party is met by showing that the trial which resulted in a judgment against him was materially unfair. . . ” (Emphasis supplied.)

To illustrate what the Supreme Court thought of its holding in Tamburello, it said seven years later in Rivas v. Liberty Mutual Insurance Company, 480 S.W.2d 610 (Tex.1972):

“Tamburello involved the denial of the proper number of peremptory challenges. The court . . . held the error amounted to a violation of the fundamental right of trial by jury, and the errors . raised an inference of probable harm.”

The case before us is a perfect example of the dilemma faced by the complaining party in a situation such as that discussed in Tamburello v. Welch, supra. Unfairness with respect to the number of peremptory challenges consists not only in the fact that a party may exhaust all of his challenges and need more, but it also consists, in a case such as the one before us, in the fact that the party’s adversaries, by reason of their superior number of challenges and their right to collaborate in the use of those challenges, are given an unfair advantage in influencing the composition of the jury. The only way the single party can overcome or minimize that advantage is to be given an equal voice in the selection of the jurors. It is no answer to his problem to say that he did not use all of the challenges he had, or that he cannot show that he was forced to accept an undesirable juror. The fact remains that the trial was rendered materially unfair to him because of the advantage given to his adversaries to influence the composition of the jury.

Because of the failure to follow the mandates of Article 2151a, the trial was rendered materially unfair to appellant. Tambarello v. Welch, supra; Perkins v. Freeman, supra.

The contention that appellant waived the error because he failed to complain of the court’s action in his amended motion for new trial is overruled. The action of the court was assigned as error in both the original and the amended motions for new trial.

The judgment is reversed and the cause remanded for a new trial.

      . See Chief Justice Massey’s comments in Austin Road Company v. Evans, supra.

      . Jones, Peremptory Challenges-Shouid Rule 233 Be Changed?, 45 Tex.L.Rev. 80 (1966).

      . Tex.Code Crim.Proc.Ann. art. 35.15:
      “(a) In capital cases both the State and defendant shall be entitled to fifteen peremptory challenges. Where two or more defendants are tried together, the State shall be entitled to eight peremptory challenges for each defendant; and each defendant shall be entitled to eight peremptory challenges.

      “(b) In non-capital felony cases and in capital cases where the State has made known to the court that it will not seek the death penalty, the State and defendant shall each be entitled to ten peremptory challenges. If two or more defendants are tried together each defendant shall be entitled to six peremptory challenges and the State to six for each defendant.

      “(c) The State and the defendant shall each be entitled to five peremptory challenges in a misdemeanor tried in the district court and to three in the county court, or county court at law. If two or more defendants are tried together, each defendant shall be entitled to three such challenges and the State to three for each defendant in either court." (Emphasis supplied.)


source: Caselaw Access Project

author: McDONALD, Chief Justice.

license: Public Domain

text:
    James C. LAWSON, Appellant, v. Robert L. ULSCHMID, Appellee.
    No. 5989.
    Court of Civil Appeals of Texas, Waco.
    Jan. 31, 1979.
    Rehearing Denied March 1, 1979.
    Gregory C. Horsley, Dallas, for appellant.
    Byron L. Falk, Vial, Hamilton, Koch, Tubb, Knox & Stradley, Dallas, for appel-lee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiff Lawson from summary judgment that he take nothing.

Plaintiff Lawson sued defendant Ulsch-mid alleging personal injuries resulting from defendant’s negligence in an automobile collision occurring on June 16, 1976.

Defendant answered that plaintiff’s cause was barred by a compromise settlement of a disputed claim and release entered into by plaintiff with defendant’s insurance carrier’s representative on June 18, 1976.

Thereafter defendant moved for summary judgment alleging defendant accepted a draft for $375. from its insurance carrier on June 18, 1976; that such draft provided “By endorsing this draft the payee accepts the proceeds of same in full payment of all claims arising from the loss or accident mentioned on the face hereof”; that plaintiff endorsed the draft and received a portion of the proceeds of same; and by such action settled and released all claims against defendant.

Attached to such motion was the affidavit of Matt Walker, Claims Representative of State Farm Mutual Automobile Insurance Company, which states that affiant’s company had liability insurance on defendant’s vehicle; that affiant “negotiated a settlement with Wanda Woods and plaintiff, and delivered them a draft dated June 18,1976 for $375. payable to James Lawson and Wanda Woods; that the draft stated on its face “In payment of loss which occurred about 6/16/76”, and on its reverse side stated “By endorsing this draft the payee accepts the proceeds of same in full payment of all claims arising from the loss or accident mentioned on the face hereof”; that the draft was delivered to plaintiff and accepted by him. Attached to such affidavit was the original of the draft for $375. payable to plaintiff and Wanda Woods, containing the language recited above and bearing the endorsement of plaintiff and Wanda Woods. Such check further reflects on the lower left-hand corner of the front “12001 1 | $3751”.

Defendant filed opposition to plaintiff’s motion for summary judgment alleging existence of genuine issues of material fact; and that the release was procured through misrepresentation and fraud on the part of the insurance company. Attached was defendant’s affidavit stating: “I was involved in an automobile accident on June 16, 1976. The car I was driving was owned by Mrs. Ruby Wood, who is the mother of Wanda Wood. On June 18, 1976 I accompanied Miss Wanda Wood to help her get paid for the damage to her mother’s car. We went to the insurance office in Irving to get the damage estimated. The man there asked me if I was hurt and I told him ‘No, I don’t think so’. Then he told us he had estimated the damage to the car to be $375. but that we would have to go to a Dallas office to get the check. He gave us a piece of paper and sent us to Dallas. At the Dallas office we asked to see Matt Walker. He came and got us and took us back to his office. We gave him the paper we had gotten at the other office. He asked how the check should be made out and Wanda said to both of us. I guess she felt obligated to me because I had paid some of her bills before. Then Mr. Walker said ‘here’s the check for the car,’ and we took it to the bank and cashed it. Nobody said anything about that this would compensate me for any injuries I might have. I did not even know I was injured at the time. I thought I was okay and that is what I told the insurance company”.

Plaintiff’s deposition reflects that the collision on June 16, 1976 “throwed my neck back and I just you know had a pop”; that he first started feeling anything other than being shook up “two or three days later * * * I just started getting a few little pains and more or less sore, and I started getting pains and headaches and I just let it go. Just took aspirins and let it go”. He further stated he received bruises to his back and neck in the collision; that he had a little bit of pain and bruises right after the accident, but he thought it was just something minor; that he was sore the night of the accident and the next day and was still sore and hurting on June 18th.

He further testified in his deposition that the $375. draft was delivered to him and Miss Woods after he was asked if he had an injury claim; that the two of them endorsed and cashed the draft; that he received $150. and Wanda received the balance.

The trial court rendered summary judgment that plaintiff take nothing.

Fourteen days after judgment was rendered, plaintiff filed motion to set aside judgment, asserting plaintiff had newly discovered evidence that the payment code on the draft used as the basis for denying plaintiff’s personal injuries reflects the monies paid by the draft were for property damage and not personal injuries; and therefore the release made the basis of the summary judgment is inapplicable to the case. Attached to such motion was the affidavit of Jack Taylor, attorney who stated he was claims representative for State Farm for 6 years, terminating in 1971; that during the years he worked for State Farm he was required to code drafts to reflect whether the claim was for personal injury or for property damage; that such code was placed in the lower left-hand corner; and was “200” to reflect property damage; and “100” to reflect personal injury.

Plaintiff appeals on 2 points:

1) “The trial court erred in entering summary judgment in favor of ap-pellee since the release relied upon by appellee is inapplicable to the claims made the basis of appellant’s suit as a matter of law.
2) “The trial court erred in entering summary judgment in favor of ap-pellee since the summary judgment proof failed to establish as a matter of law the absence of a genuine issue as to any material fact.

It is undisputed that plaintiff was in collision with a car operated by defendant on June 16, 1976; that defendant was insured with State Farm; that State Farm, on behalf of defendant, on June 18, 1976 delivered to plaintiff and Wanda Woods a $375. draft dated June 18, 1976 payable to them; that the draft states “In payment of loss which occurred about 6/16/76 Name of Insured Robert Ulschmid”; that plaintiff signed his endorsement on the reverse side below the following: 1) By endorsing this draft the payee accepts the proceeds of same in full payment of all claims arising from the loss or accident mentioned on the face thereof”.

Plaintiff’s deposition reflects he was shook up and had pains on the night of the accident and continued to have pain, soreness and headaches for the next two days, even though plaintiff did not believe that he was seriously hurt. And plaintiff stated he received $150. of the money and Miss Wood took the balance. We cannot escape the simple, unambiguous and direct terms of the release, above quoted. We think plaintiff by signing release and receiving the money fully released his claims for personal injury for which he sued. Berry v. Guyer, CCA (Houston 14) NRE, 482 S.W.2d 719.

Plaintiff in his brief attaches importance to the notation on the check “ 12001 1 I $8751 ”; and the affidavit of Jack Taylor attached to his motion to set judgment aside.

The trial court is charged with the duty of considering the record as it appears when the motion for summary judgment is heard. Superior Stationers Corp. v. Berol Corp., CCA (Houston 1) NWH, 483 S.W.2d 857; Mason v. Midcontinent Supply Co., CCA (Ft. Worth) NRE, 374 S.W.2d 922; Rountree v. Bridwell, CCA (San Antonio) NRE, 269 S.W.2d 824.

Plaintiff’s points are overruled.

AFFIRMED

OPINION ON REHEARING

Appellant Lawson urges in his motion for rehearing that this Court’s opinion conflicts with Page v. Baldon, CCA (Dallas) NRE, 437 S.W.2d 625. In Page, the appellant owned the damaged vehicle, as well as asserted personal injuries. In the case at bar appellant did not own the damaged vehicle or any interest therein. The check to and settlement with appellant would of necessity be for some injury to him, and not for payment of any damage to the car which he did not own.

Motion for rehearing overruled.


author: EVANS, Justice.

text:
    Ex parte Patricia Anne McKINLEY, Habeas Corpus Proceeding.
    No. 17321.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Feb. 1, 1979.
    On Rehearing March 15, 1979.
    Michael C. Boltz, Houston, for appellant.
    Marcus E. Faubion, Houston, for appel-lee.
   EVANS, Justice.

In this original proceeding for a writ of habeas corpus, Patricia Ann McKinley complains of an order of contempt issued by the 257th Family District Court.

The relator’s application recites that under the terms of the divorce decree in question the respondent was ordered to execute a general warranty deed conveying to the relator his undivided interest in their community owned home and relator was directed to execute a promissory note payable to respondent in the principal amount of $14,-000.00, bearing interest at the rate of 9% per annum, and providing that principal and interest would be payable six months after the emancipation of the parties’ two children. Under the terms of the decree the relator was also ordered to execute a deed of trust securing the payment of the note. The relator did not execute the note and deed of trust as contemplated by the divorce decree, and the respondent then brought the contempt proceedings in question.

On June 13, 1978, the trial court entered an order in the contempt proceedings, denying the respondent’s motion for contempt, but ordering the relator to execute and deliver to the respondent, or to his attorney, on or before 9:00 o’clock a. m. on July 24, 1978, a real estate lien note and deed of trust in the form of those attached to the order as exhibits. Subsequently on October 5, 1978, the trial court found the relator in contempt by reason of her failure to execute and deliver the note and deed of trust as required by the aforementioned order and directed that she be confined in the Harris County Jail from day to day until the note and deed of trust were executed and delivered into court.

The relator contends that the contempt order is void because the property in question was her separate property and she argues, in effect, that the divorce decree was, therefore, invalid insofar as it sought to impose a lien on her property. She also contends that the order of June 13, 1978, did not sufficiently apprise her of her obligations under that order; that the motion for contempt did not sufficiently detail the alleged acts of disobedience under such order; and that the contempt order did not sufficiently explain the manner in which she might purge herself of the contempt. She further contends that the pleading and evidence did not establish the fact of her contempt and that the Court was without authority to enter the order upon which the contempt was based, having lost jurisdiction of the cause before the order was entered.

This proceeding constitutes a collateral attack on the trial court’s contempt order, and this court may not grant a writ of habeas corpus relieving the relator from the imposition of that order unless the order is void on its face or is so completely without evidentiary support as to render it void. Ex parte Butler, 523 S.W.2d 309 (Tex.Civ.App.—Houston [1st Dist.] 1975, no writ). If the record shows merely that the order was erroneously entered, as distinguished from being completely void, this court is without authority to grant relator’s application. Ex parte Rhodes, 163 Tex. 31, 352 S.W.2d 249 (1961).

The divorce court was empowered to award the community homestead to the relator and to require the respondent to execute a general warranty deed conveying to the relator his interest in the community property. It was also authorized to require that the relator compensate the respondent for his community interest in the property and to provide that this be accomplished by means of a deferred payment. Thus, it was proper for the divorce decree to provide that the relator would be required to execute a note evidencing the deferred payment and a deed of trust securing payment of the note. The divorce decree sufficiently sets forth the material terms of the note and deed of trust to be executed, and the decree is not void for uncertainty merely because it fails to specify a date certain when the relator would be required to execute the note and deed of trust. The subsequent order entered by the trial court in aid of its decree set forth with particularity the form of the note and deed of trust to be executed by the relator and the date and time when the documents were to be executed and delivered. The trial court was authorized to issue this order in aid and clarification of its prior decree and for the purpose of effectuating the terms of the decree. Schwartz v. Jefferson, 520 S.W.2d 881 (Tex.1975); Bush v. Bush, 265 S.W.2d 676 (Tex.Civ.App.—El Paso 1954, no writ). The order is not void.

The order of commitment recites that after hearing the testimony and the evidence the court found that the relator had wilfully disobeyed its order by failing to execute and deliver to the respondent, or his attorney, on or before the specified date, a note and a deed of trust in the form of those attached to its prior order, and it ordered the relator confined in the Harris County Jail from day to day until the note and deed of trust had been executed and delivered to the court. The contempt motion sufficiently details the relator’s alleged acts of disobedience and the commitment order sufficiently indicates the manner in which the relator may purge herself of the contempt.

The relator is remanded to the Sheriff of Harris County, Texas for confinement in accordance with the trial court’s order of commitment.

Supplemental Opinion

The trial court has certified to this court that relator has purged herself of contempt by the execution and delivery of the documents specified in the trial court’s order. This court’s former opinion and judgment dated February 1, 1979; are, therefore, vacated and relator is ordered discharged from custody.


author: RAY, Justice.

text:
    Mrs. Dave DURHAM et al., Appellants, v. Lester CRUTCHFIELD et al., Appellees.
    No. 8627.
    Court of Civil Appeals of Texas, Texarkana.
    Feb. 6, 1979.
    Rehearing Denied March 20, 1979.

      D. Brad Hutchison, Fisher, McLaughlin & Harrison, Paris, for appellants.
    John H. Cochran, Dallas, for appellees.
   RAY, Justice.

This is a case questioning the validity of the incorporation of the town of Sun Valley. The appeal is from an order sustaining a plea in abatement resulting in the dismissal of appellants’ suit. Mrs. Dave E. Durham and twenty-six other people, appellants (plaintiffs), brought suit against Lester Crutchfield, County Judge; the Commissioner’s Court of Lamar County; the elected officials of the town of Sun Valley and others, appellees (defendants), attacking the organization and existence of the municipal corporation of Sun Valley. The county attorney of Lamar County, on relation of numerous citizens of Lamar County, intervened by filing a quo warranto petition for the State of Texas, Subsequently, the State was allowed to withdraw its quo warranty intervention. The trial court then sustained appellees’ plea in abatement because the State of Texas is an indispensable party to a suit attacking the validity of the incorporation of a municipality and thus the court was without jurisdiction to determine the validity question. Appellants have perfected their appeal and submit four points of error for our consideration.

Appellants assert that the trial court erred in finding that the State of Texas was a necessary party because (1) properties owned by individual plaintiffs were included in the description of the municipal corporation; (2) several appellants owned property adjacent to the municipal corporation and were therefore injured by the incorporation; (3) the individual appellants had done everything they could to cause the State to be a party to the action; and (4) the appellees’ compliance with the incorporation statutes (Tex.Rev.Civ.Stat.Ann. art. 1133, et seq) was so defective as to render the attempted incorporation void.

The law in Texas is clear that a quo warranto proceeding, instituted and conducted in the name of the State of Texas, is the only proper method of making a direct attack upon a voidable municipal corporation existing defacto or under color of law. Private parties, by themselves, lack standing to directly attack the existence and organization of a municipal corporation, and any such suit brought by private individuals alone will be dismissed for want of a necessary party, the State of Texas. Only the State of Texas can directly attack a voidable incorporation by a quo warranto proceeding. Tex.Rev.Civ.Stat.Ann. art. 6253; Walling v. North Central Texas Mu nicipal Water Authority, 162 Tex. 527, 348 S.W.2d 532 (1961); Gifford v. State ex rel. Lilly, 525 S.W.2d 250 (Tex.Civ.App.Waco 1975, no writ); State ex rel. City of Colleyville v. City of Hurst, 519 S.W.2d 698 (Tex.Civ.App.Fort Worth 1975, writ ref’d n. r. e.); State ex rel. Candler v. Court of Civil Appeals, 123 Tex. 549, 75 S.W.2d 253 (1934).

Private citizens may collaterally or directly attack a void incorporation in certain instances. The defects in the incorporation process which render the incorporation absolutely void are: that the act of incorporation itself was either prohibited or unauthorized by law, or that the purported incorporation was pursuant to an unconstitutional statute, or that the attempt to comply with the provisions of the law authorizing the creation of such municipality was so utterly lacking or defective as to render the attempt to create such corporation void.

Not only must the incorporation be void, and therefore subject to attack, but those bringing the suit must show that they have some interest which will be directly and injuriously affected by the incorporation. Grisham v. Tate, 35 S.W.2d 264 (Tex.Civ.App.Waco 1931, writ dism’d); City of West Lake Hills v. State ex rel. City of Austin, 466 S.W.2d 722 (Tex.1971).

In the present case, appellants have failed to prove that the incorporation was void and that they are injuriously affected directly by having to suffer a burden peculiar to themselves as distinguished from the public generally.

Appellants’ only assertion on appeal that the incorporation is void is contained in their fourth point of error, which is as follows:

“The trial court erred in holding that the County Attorney or State was a necessary party in a contest of the validity of the incorporation of a municipality where the attempted compliance with the provisions of the incorporating statutes is so defective as to render the attempt to create the municipal corporation void.”

Under appellants’ fourth point of error it is asserted that the application for incorporation was not accompanied by a plat; that the metes and bounds description of the town does not close; that the area within the town is allegedly owned by one individual; and that the area involved did not exist as a town or village prior to the incorporation election.

No statement of facts or findings of facts and conclusions of law have been filed in this Court, and it must therefore be presumed that the trial court found every issue in favor of its judgment.

The failure to attach a plat of the town to the application for incorporation will not defeat incorporation. State ex rel. Perrin v. Hoard, 94 Tex. 527, 62 S.W. 1054 (1901). The failure of the field notes to close is only an irregularity and will not render the incorporation void. Grisham v. Tate, supra. The failure to include in the proposed city the property of the nearby inhabitants and whether the area was unsuited for development as a city are issues bearing on the municipality’s voidability and not on the invalidity of its existence from the beginning. City of Gladewater v. Pelphrey, 309 S.W.2d 472 (Tex.Civ.App.Texarkana 1957, writ ref’d n. r. e.); Rachford v. City of Port Neches, 46 S.W.2d 1057 (Tex.Civ.App.Beaumont 1931, writ ref’d). Whether the town included two hundred or more residents as required by Art. 1133, Tex.Rev.Civ.Stat.Ann., was a matter upon which the county judge’s decision is conclusive. In this case, since the county judge called the election, it must be presumed that he found two hundred or more residents within the area to be incorporated and found the area to be a town or village within the meaning of Art. 1133, supra. State ex rel. Goodnight v. Goodwin, 69 Tex. 55, 5 S.W. 678 (1887); Perkins v. Ingalsbe, 162 Tex. 456, 347 S.W.2d 926 (1961). Whether a town or village was in existence prior to incorporation is not a matter which renders the incorporation void, but only voidable. It is difficult to perceive all of the circumstances which might render an attempted incorporation void, but one example might be a situation in which neither map nor field notes were included in the incorporation application or election process such that it could never be determined with any degree of certainty the boundaries of the municipality or who would be eligible to vote in the incorporation election. Such total lack of information concerning the boundaries of the town would in all probability render the attempted incorporation void as distinguished from voidable, because of the impossibility of determining the area to be included within the municipality. The record in this case indicates that substantial compliance was had in following the statutes incorporating the town of Sun Valley, and thus the incorporation was not void. Ellis v. State, 383 S.W.2d 635 (Tex.Civ.App. Dallas 1964, no writ).

Appellants’ second amended original petition makes it clear by judicial admissions and it is presumed that the trial court found that Sun Valley is a defacto corporation created and existing under col- or of law because the city officers have been elected and hold office. The rule is that when an attack is made upon a defacto corporation created and existing under col- or of law and that body has acted by electing its officers after attempting to comply with the requirements of a valid statute authorizing its creation, only the state may question its corporate existence on the ground that the law was not followed. Walling v. North Central Texas Municipal Water Authority, supra.

In the present case we have concluded that the incorporation was not void and that the sole and exclusive remedy by which the legality of the existence and organization of Sun Valley may be questioned is by quo warranto proceedings. City of El Paso v. Ruckman, 92 Tex. 86, 46 S.W. 25 (1898). The refusal of the State of Texas to be a party plaintiff or intervenor entitled appel-lees to have the plea in abatement sustained and the case dismissed.

Appellants purport to own property within and adjacent to Sun Valley. This fact alone does not entitle them to bring suit as private citizens to declare the incorporation void. Grisham v. Tate, supra. An allegation that the value of appellants’ property will decrease in value is not sufficient to give appellants standing to sue. City of West Lake Hills v. State ex rel. City of Austin, supra. Appellants have not persuaded this Court that they have standing to bring suit to question the incorporation of Sun Valley. Appellants assert that although the State is no longer a party, they should not be denied relief, because they have done everything within their power to compel the county attorney to bring or maintain a quo warranto proceeding. Art. 6253, Tex.Rev.Civ.Stat.Ann., grants the attorney general, district attorney or county attorney discretion to file a quo warranto suit, but private citizens cannot compel the State to become a party to their suit or to file a quo warranto proceeding in their behalf. Marshall v. City of Lubbock, 520 S.W.2d 553 (Tex.Civ.App.Amarillo 1975, no writ); Bute v. League City, 390 S.W.2d 811 (Tex.Civ.App.Houston 1965, no writ).

We have examined the record presented to us and find no error committed by the trial court. Appellants’ points of error are overruled. The judgment of the trial court is affirmed.


author: HUTCHINSON, Justice.

text:
    STATE DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION, Appellant, v. Randall HERMAN et al., Appellees.
    No. 8672.
    Court of Civil Appeals of Texas, Texarkana.
    Feb. 6, 1979.
    Rehearing Denied March 13, 1979.

      John L. Hill, Atty. Gen. of Texas, Sam L. Jones, Jr., Asst. Atty. Gen., Austin, for appellant.
    Douglas A. Barnes, Keck & Barnes, Dallas, Edward C. Fritz, Dallas, for appellees.
   HUTCHINSON, Justice.

This is a venue case. Appellant, State Department of Highways and Public Transportation, appeals from an order of the District Court of Franklin County overruling its plea of privilege to be sued in Travis County, Texas. Appellees’ controverting plea was based upon Subdivisions 9a and 14 of Article 1995, Tex.Rev.Civ.Stat.Ann.

Appellees each own real estate in Franklin County adjacent to Sulphur River and west of State Highway 37. In the fall of 1971, appellant commenced the construction of a new bridge at the Sulphur River crossing of State Highway 37 and completed it in the fall of 1973. Appellees allege that the new bridge and its approaches, by reason of design and manner of construction, obstruct, slow down and block the flow of water in Sulphur River thereby causing it to overflow onto their lands and remain thereon for considerable periods of time. Appellees allege that such frequent flood-ings have caused portions of their realty to be damaged temporarily and to some extent permanently and that such floodings constitute the taking of their property for public use without compensation. Appellees further allege that appellant was negligent in several respects in the planning, design and construction of the bridge and approaches thereto and that each was a proximate cause of the damage to their lands for agricultural and cattle raising purposes. Appellees attached to their petition and introduced into the record a copy of House Concurrent Resolution No. 54 (Tex.Laws 1977, H.C.R. No. 54, p. 3271) granting appel-lees permission to sue appellant for whatever relief they may be entitled to by,reason of the construction of the new bridge. This Resolution contains no provision fixing venue other than that “the suit be tried as other civil suits.”

Upon hearing the trial court entered its order sustaining appellant’s exception to the portions of appellees’ petition and controverting affidavit alleging acts of negligence proximately causing the claimed damages and ordered all such allegations stricken. The plea of privilege was overruled and venue sustained in Franklin County on the basis of Subdivision 14 of Article 1995.

Appellant asserts that since House Concurrent Resolution No. 54 does not authorize appellees to maintain this suit in Franklin County, it must be transferred to Travis County, the domicile of the State of Texas for venue purposes. The basis for this assertion is found in Gulf Coast Business Forms, Inc. v. Texas Employment Commission, 498 S.W.2d 154 (Tex.1973); Texas Highway Department v. Jarrell, 379 S.W.2d 417 (Tex.Civ.App. Texarkana 1964, writ dism’d); and in State v. Isbell, 127 Tex. 399, 94 S.W.2d 423 (1936), wherein the court said: “ . . . It is a rule of universal recognition that a state cannot be sued without its consent, and then only in the manner, place, and court or courts designated. . . . ” It should here be noted that no exception set forth in Article 1995, Tex.Rev.Civ.Stat.Ann., was invoked in either of the relied upon authorities and there is no question here made of the power of the State to control venue of a permitted suit by so providing in the grant of authority. Appellant here contends that if the grant of authority is silent as to venue, Travis County, being the domicile of the State, has exclusive venue of the permitted suit irrespective of the' venue exceptions contained in Article 1995. This Article, by Subdivision 30 thereof, specifically recognizes the power of the legislature to prescribe venue in actions authorized by it, but in failing to do so, as here, it does not follow that the other exceptions to Article 1995 are rendered inoperable. Here the legislature has not by its resolution fixed venue as it could have done, thereby leaving operative and controlling the provisions of Article 1995. Appellees by their controverting plea rely upon Subdivision 14 of Article 1995 to maintain venue in Franklin County and we hold that the exceptions to Article 1995 are available in a permitted suit against an agency of the State unless venue is expressly prescribed to be otherwise.

Appellant further contends that ap-pellees’ pleadings and proof are insufficient to sustain venue in Franklin County under Subdivision 14 of Article 1995 on the basis that appellees’ claims are for loss of income from land and not for damage to the land itself. In considering this contention, those portions of appellees’ pleading relating to a negligence cause of action must be deleted and disregarded. After this has been done there remain allegations that the new bridge and the approach thereto obstruct, slow down and block the flow of water causing the water to back up onto appellees’ lands higher and for a longer period of time than before the new bridge and approach were commenced and completed causing damage to their lands temporarily and to some extent permanently; that appellant’s actions constitute a damaging of appellees’ property for public use without adequate compensation and that appellees suffered actual damage to their lands. These allegations are deemed sufficient to show the nature of appellees’ claims, and the location of the lands within Franklin County was proven and is not disputed.

In order to sustain venue in Franklin County appellees were required to prove only two venue facts. First, that the suit is one for the recovery of land or damage thereto and, second, that the land was situated in Franklin County. Cowden v. Cowden, 143 Tex. 446, 186 S.W.2d 69 (1945); Grogan-Cochran Lumber Co. v. McWhorter, 4 S.W.2d 995 (Tex.Civ.App. Beaumont 1928, no writ); Natural Gas Distributing Corporation v. Williams, 292 S.W.2d 353 (Tex.Civ.App. Beaumont 1956, error dism’d); Kendall Corporation v. Ruthstrom, 467 S.W.2d 491 (Tex.Civ.App. Beaumont 1971, no writ); Scott v. Whittaker Pipeline Constructors, Inc., 517 S.W.2d 406 (Tex.Civ.App. Austin 1974, no writ); Noel v. Griffin & Brand of McAllen, Inc., 478 S.W.2d 633 (Tex.Civ.App. Corpus Christi 1972, no writ). Whether or not a suit is one for the recovery of lands or damages thereto is a matter to be determined by the allegations of the petition. Cox v. Palacios, 188 S.W.2d 688 (Tex.Civ.App. San Antonio 1945, no writ); Kendall Corporation v. Ruthstrom, supra; McFarling v. Cavender, 469 S.W.2d 478 (Tex.Civ.App. Beaumont 1971, no writ); Cecil Ruby Company v. Jones, 398 S.W.2d 337 (Tex.Civ.App. East-land 1965, writ dism’d). Neither the amount of damages sustained nor appellant’s responsibility therefor was a venue fact to be established by the evidence. Piazza v. Phillips, 153 Tex. 115, 264 S.W.2d 428 (1954); Compton v. Elliott, 126 Tex. 232, 83 S.W.2d 91 (1935); Advanced Exploration Co. v. Spires, 256 S.W.2d 247 (Tex.Civ.App. Eastland 1953, no writ); Cecil Ruby Company v. Hollis Jones, supra.

The order overruling the plea of privilege is affirmed.

      . “Suits for the recovery of lands or damages thereto, . . . . must be brought in the county in which the land, or a part thereof, may lie.”


author: WALLACE, Justice.

text:
    A. J. FOYT CHEVROLET, INC., Appellant, v. John JACOBS, Jr., Appellee.
    No. 17235.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Feb. 8, 1979.

      Childs, Fortenback, Beck & Guyton, James J. Lee, Houston, for appellant.
    Gordon J. Kroll, Houston, for appellee.
   WALLACE, Justice.

A. J. Foyt Chevrolet, Inc. (Foyt) appeals from a judgment in a suit filed by John Jacobs, Jr., (Jacobs) based on Tex.Rev.Civ. Stat.Ann. art. 8307c. The court, sitting without a jury, found that John Jacobs, Jr. had been illegally discharged by Foyt and awarded Jacobs $8,342.00 in damages, prejudgment interest, and interest on the judgment. Findings of fact and conclusion of law were filed.

John Jacobs, Jr. was employed by Foyt as a used car maintenance mechanic. In December of 1973, while engaged in his usual duties, Jacobs was injured and eventually required surgery. He subsequently reported back to work on March 11,1974. At the time of the termination of his employment by Foyt, Jacobs was working 40 hours a week at an hourly wage of $3.50. During the seventy-seven weeks and four days, from the date of his termination by Foyt until he secured employment with Rainbo Bakeries, Jacobs did a few odd jobs of auto repair for friends who paid him in cash. In addition, he occasionally filled in at an Exxon service station across the street from his house, when one of the regular employees wanted to go fishing, or be off for some other reason. On one occasion he filled in for one of them for five consecutive days. He was paid $25.00 in cash for each day that he filled in at the service station. He was unable to state how much money he received for filling in at the service station or doing odd jobs of automobile repair. Appellant’s attorney asked Jacobs if he could estimate the amount that he was paid for these odd jobs and his answer was “I honestly cannot.” The record does not show any further attempt on appellant’s part to determine source or amount of any monies earned by appellee for such part-time work.

Appellant contends, in points 1 through 4, that there was no evidence or insufficient evidence to support the trial court’s finding that Jacobs was discharged contrary to Tex.Rev.Civ.Stat.Ann. art. 8307c, and asserts that such finding is against the great weight and preponderance of the evidence. In considering a no evidence point, we must view the evidence in its most favorable light in support of the finding and must review only the evidence and inferences which support the findings. Garza v. Alviar, 395 S.W.2d 821-823 (Tex.1965). Consideration of the insufficient evidence point requires a review of all the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951)).

Jacobs testified that Johnny Hidal-go, manager of parts and services for Foyt told him, “I would put you back to work, but I would be a damned fool to hire you when you have a lawyer”. Hidalgo testified that he told Jacobs, “John, I am sorry but your job has been eliminated. We no longer need your services”. Further, Jacobs testified that at a hearing before the Texas Employment Commission, Mr. Davidson, general manager for Foyt, testified that Jacobs was discharged because he would not fire his lawyer. This testimony was not contradicted by Foyt. The trial court chose to believe Jacob’s version of why he was fired. This was within the province of the trial court. Central National Bank of McKinney v. Booker, 557 S.W.2d 563, 564 (Tex.Civ.App.1977 writ ref’d n. r. e.). Appellant’ points 1 through 4 are overruled.

By its fifth point of error appellant contends that the court erred in entering judgment for Appellee because the court found that he “failed to use reasonable diligence” in locating alternative employment. The finding of the trial court was, “. John Jacobs, Jr. made only a minimal effort to obtain other employment”. Appellant has failed to show that the “minimal effort” exercised by Appellee was not “reasonable diligence” under the circumstances. Appellant’s fifth point is overruled.

In its points 6 through 9 appellant argues that the trial court should have offset appellee’s actual earnings during his period of employment; that appellee’s damages were unliquidated and not correctly proven; and that the damages of $8,240.00 were unsupported by the evidence.

The testimony showed that Jacobs was working 40 hours per week for Foyt at $3.50 per hour, and that he was unemployed for 77 weeks and 4 days from the time of his discharge by Foyt until he secured employment by Rainbo Bakeries. He further testified that he “filled in” sporadically at an Exxon service station when one of the men wanted to go fishing. At one time he filled in for five consecutive days. There were occasional odd jobs of auto repair which he did for cash. Foyt made no effort to secure the testimony of the owner of the service station to determine the wages paid Jacobs. This case is thus distinguished from the Southwestern Telephone & Telegraph Company v. Bross, 45 S.W.2d 179 (Tex.Civ.App.1898 no writ history) cited by appellant.

Appellant had the evidentiary burden of proving the amount appellee earned or could have earned during his period of unemployment. Mr. Eddie Inc. v. Ginsberg, 430 S.W.2d 5 (Tex.Civ.App.1968 writ ref’d n. r. e.); Pacific Express Co. v. Walters, 42 Tex.Civ.App. 355, 93 S.W. 496, (writ ref’d.); Morgan v. Young, 203 S.W.2d 837 (Tex.Civ.App.1947, writ ref’d.) Appellant wholly failed to meet this burden. The evidence shows that appellee lost wages during the 77 weeks and 4 days that he was unemployed in a sum in excess of the court’s judgment. Appellant’s points 6 through 9 are overruled.

Finding no error in the judgment of the trial court it is affirmed.


author: COLEMAN, Chief Justice.

text:
    James S. HAMILTON, Appellant, v. Robert S. GOODSON, Appellee.
    No. 17283.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Feb. 8, 1979.
    Robert M. Collie, City Atty., David Lee Crawford, Houston, for appellant.
    C. Ed Carrithers, Houston, for appellee.
   COLEMAN, Chief Justice.

This is an appeal from a judgment for property damage arising out of an automobile collision. The case was tried to the court without a jury. Findings of fact and conclusions of law were filed. A judgment was entered for the plaintiff. The judgment will be reversed.

The principal issue to be determined on this appeal is whether this suit was “commenced and prosecuted within two years after the cause of action shall have accrued” as provided in Article 5526, V.A.T.S. The trial court found as a fact that Robert S. Goodson, the plaintiff, exercised due diligence in requesting that citation issue and in obtaining service on the defendant, James S. Hamilton. We conclude that the evidence establishes lack of diligence in obtaining service as a matter of law.

This suit arose out of a motor vehicle accident which _ occurred on February 1, 1975. Suit was filed on December 27,1976, at which time service of citation was properly requested. The citation was issued on December 28, 1976. This citation was returned unserved and bears the file mark April 4, 1977. The officer’s return bears the notation “unable to locate defendant in time”.

An alias citation was issued on October 12, 1977. It reflects that service was obtained upon the defendant on October 20, 1977. The original citation gave the defendant’s address as being 5027 Yellowstone, Houston, Texas. The alias citation gave his address as being c/o Police Garage, 6100 Riesner Street, Houston, Texas.

The mere filing of a suit will not interrupt or toll the running of a statute of limitations. In order to interrupt the statute diligence must be used in procuring the issuance and serving of the citation. Rigo Manufacturing Company v. Thomas, 458 S.W.2d 180 (Tex.1970). The plaintiff must exercise reasonable diligence to secure the issuance of citation and its service upon the defendant in order to interrupt the statute. Reed v. Reed, 158 Tex. 298, 311 S.W.2d 628 (1958). The standard by which diligence is measured is that of an ordinarily prudent person under the same or similar circumstances. McGuire v. Federal Deposit Insurance Corporation, 561 S.W.2d 213 (Tex.Civ.App.—Houston [1st Dist.] 1977, no writ).

This suit was filed a little more than a month before it would have been barred by the two year statute of limitations. Citation was promptly issued and the constable was furnished with an address which testimony shows was believed to be the correct address of the defendant. The limitation period had elapsed when the constable returned the citation unserved. Six and one-half months elapsed between the date for service on the original citation and the date on which the alias citation was issued. The attorney for the plaintiff testified that he ordinarily checked on a case which he had filed sixty to ninety days after the filing date. He testified that in this case apparently his secretary checked and discovered that the citation had not been served. In mid-July he requested his client to locate a current business or work address. He was furnished an address in August. The alias citation was requested in October.

The attorney also testified that he frequently used information obtained from the police report on an accident in preparing the plaintiff’s petition. He agreed that his client had furnished him such a report. A copy of this report was introduced into evidence and it reflected that the defendant’s home address was 5006 Yellowstone and that his business address was 61 Riesner Street. It also reflected that the defendant s occupation was that of a mechanic. This information was not given to the officer attempting to serve the original citation. The defendant testified that 5006 Yellowstone was his home address and that 61 Riesner Street was his business address at the time of the accident and continued to be his home and work addresses to the time of the trial.

There is no evidence that the plaintiff exercised diligence in procuring the issuance and service of citation after the original citation was returned. The reasonableness of the plaintiff’s delay in procuring the issuance and service of citation is usually a question of fact, but if no explanation consistent with due diligence is offered, its reasonableness cannot be factually determined. The unexplained delay in seeking the issuance of the alias citation for a period in excess of six months is, as a matter of law, not due diligence in procuring the issuance and service of citation. Williams v. Houston—Citizens Bank and Trust Co., 531 S.W.2d 434 (Tex.Civ.App.—Houston [14th Dist.] 1975, writ ref’d n. r. e.).

The judgment is reversed and judgment is here rendered that the plaintiff Robert S. Goodson, and the real party of interest, American Indemnity Company, recover nothing against James S. Hamilton.


author: WARREN, Justice.

text:
    SAN JACINTO MAINTENANCE, INC., Appellant, v. Ben CAIN et al., Appellees.
    No. 17264.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Feb. 8, 1979.
    Rehearing Denied March 15, 1979.

      Fulbright & Jaworski, Frank G. Jones, Houston, for appellant.
    Tekell, Book & Matthews, Hal R. Up-church, Houston, for appellees.
   WARREN, Justice.

This is an appeal from a judgment requiring appellant, San Jacinto Maintenance, Inc. to indemnify appellee, Celanese Corp. for personal injury damages paid by Cela-nese to an employee of appellant.

The facts were stipulated in the trial court and are not in dispute.

On February 18, 1974 Ben Cain, an employee of San Jacinto Maintenance, Inc. was injured while working in the course and scope of his employment at the Celanese plant at Bayport, Texas.
The injuries received by Ben Cain were caused solely by the negligence of Cela-nese.
Prior to the injuries to Ben Cain, Cela-nese and San Jacinto Maintenance had entered into a written contract whereby appellant was to do certain maintenance and construction work for appellee at ap-pellee’s Bayport Plant.
Included in this contract was an indemnity agreement designated in Article 16, the construction of which is the basis of dispute between the parties.

The paragraph to be construed is as follows: Article 16. INDEMNITY Contractor, for itself and its affiliated companies, hereby assumes all risk of loss or damage to property of Contractor or its affiliated companies. Contractor hereby agrees to indemnify, protect and save Company harmless from and against, and to reimburse Company for any and all loss, liability, demand, expense or cost, of every kind and nature, for damage to or loss of property of any person, firm or corporation, and for injury to, sickness or death of, any person whomsoever arising, in whole or part, out of or in connection with Contractor’s performance of work hereunder. For the purpose of this article, the activities of Contractor, its agents on or about Company’s premises shall be deemed to relate to the performance of the work hereunder, whether or not such activities are within the scope of their agency or employment. Notwithstanding the foregoing indemnity provision it is understood and agreed that Contractor’s liability to Company under this Article 16 for indemnity or payment of money for injury, sickness, disease or death of or damage to property of, any person caused solely by the negligence of Company shall not exceed Contractor’s limits of liability under any then effective insurance policy or policies covering any such occurrence; provided, however, that such limits shall never be less than the limits of insurance coverage specified in Exhibit “B” hereof. Contractor shall assume on behalf of Company and conduct with due diligence and in good faith the defense of any suit against Company, whether or not Contractor is joined or impleaded therein, seeking recovery for any loss or damage to property or death, sickness or injury of any person within the coverage of this Article 16, even if such suit is groundless, false or fraudulent; provided, however, that without relieving Contractor of any of its obligations hereunder, Company may elect to defend or participate in the investigation and/or defense of such suit at its own expense.

The question is whether the indemnity agreement clearly expresses in unequivocal terms an obligation by San Jacinto Maintenance, Inc. to indemnify Celanese Corp., from the consequences of its own (Celanese) negligence.

This rule was stated by the Supreme Court of Texas in Firemans Fund Ins. Co. v. Commercial Standard Ins. Co., 490 S.W.2d 818 (Tex.1972),

. (A) Contract of indemnity will not afford protection to the indemnitee against the consequences of his own negligence unless the contract clearly expresses such an obligation in unequivocal terms . ... [w]e have, in fact, progressed toward the so-called “express negligence” rule as near as is judicially possible without adopting it and thereby requiring in all cases that the parties state, in so many words, that they intend to save the indemnitee harmless from liability for his own negligence. In this connection, it should be clear from our opinion in McCann [Joe Adams & Son v. McCann Construction Company, 471 S.W.2d 721 (Tex.1971)], supra, including its discussion of the leading cases and modification of our opinion in Ohio Oil Co. v. Smith, 365 S.W.2d 621 (Tex.1963), that broad general statements of the indemnity obligation are not sufficient to protect an indemnitee against his own negligence, and that the only presently recognized exceptions are limited to (1) agreements in which one person clearly undertakes to indemnify another against liability for injuries or damages caused by defects in certain premises or resulting from the maintenance or operation of a specified instrumentality as in Mitchell’s Inc. v. Friedman, [157 Tex. 424, 303 S.W.2d 775 (1957)], supra, and Houston & T. C. R. Co. v. Diamond Press Brick Co., 111 Tex. 18, 222 S.W. 204, 226 S.W. 140 (1920); (2) agreements which fall within the peculiar circumstances of the indem-nitor having complete supervision over the property and employees of the indem-nitee in connection with the performance of the indemnitor’s contract, as in Spence & Howe, [Spence & Howe Construction Co. v. Gulf Oil Corp., 365 S.W.2d 631 (Tex.1963)], supra; and (3) contracts in which there is an unequivocal provision that indemnitor will protect and indemnify the indemnitee from any and all liability by reason of injuries to indemnitor’s employees as in Ohio Oil, supra.

In our case the second sentence in the indemnity agreement. “Contractor hereby agrees to indemnify, protect and save Company harmless from and against, and to reimburse Company for any and all loss, liability, demand, expense or cost, of every kind and nature, for damage to or loss of property of any person, firm, or corporation, and for injury to, sickness or death of, any person whomsoever arising, in whole or part, our [sic] of or in connection with Contractor’s performance of work here-under”, is a general indemnity agreement and standing alone would clearly not pass the Firemans Fund test. However, the fourth sentence under Article 16 “Notwithstanding the foregoing indemnity provision, it is understood and agreed upon that Contractor’s liability to Company under this Article 16 for indemnity or payment of money for injury, sickness, disease or death of, or damage to property of any person caused solely by the negligence of Company shall not exceed Contractor’s limits of liability under any then effective insurance policy or policies covering any such occurrence”, when considered with the second shows that the intention of the parties was that Contractor (appellant) would be liable to Company (ap-pellee) for the consequences of Company’s negligence but only to the limits of the insurance carried by Contractor. Any amount of damages in excess of the insurance coverage would be borne by Company (Celanese).

The contract clearly falls within (3) as cited above in Firemans Fund Ins. Co. v. Commercial Standard Ins. Co.

The Judgment of the court is affirmed.


text:
    JALCO, INC., Appellant, v. Dora RODRIGUEZ, et al., Appellees.
    No. 6014.
    Court of Civil Appeals of Texas, Waco.
    Feb. 15, 1979.
    Rehearing Denied March 29, 1979.
    Ervin A. Apffel, Jr. and William C. Fere-bee, McLeod, Alexander, Powel & Apffel, Inc., Galveston, for appellant.
    Don R. Riddle, Riddle, Murphrey, O’Quinn & Cannon, Houston, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Jaleo, from judgment against it, in a suit to recover damages for personal injuries resulting from an automobile accident.

Plaintiffs Dora and Cynthia Rodriguez sued defendant Jaleo, Inc., alleging plaintiffs were injured on November 9, 1974 when the automobile in which they were riding was driven into an uncovered manhole in the middle of Heard’s Lane in the City of Galveston; that plaintiffs received serious and permanently disabling injuries; that the incident was proximately caused by the failure of defendant to exercise ordinary care under the circumstances.

Defendant answered by general denial; that the driver of the vehicle was negligent; and that if anyone were negligent it was third parties unknown to defendant.

The trial was to a jury which found:

1) The open manhole on Heard’s Lane near 71st Street on Saturday, November 9, 1974, constituted a dangerous condition.
2) That the failure of Jaleo, Inc., through its employees to discover and correct said condition was negligence.
3) That such failure was a proximate cause of the accident.
4) Failed to find that Barry Busse’s failure to inspect the Heard’s Lane project on the afternoon of November 9, 1974 was negligence.
5) That plaintiff Dora Rodriguez was negligent in failing to keep a proper lookout.
6) That such failure was a proximate cause of the accident.
10) That the percentage of negligence attributable to Dora Rodriguez was 30%; and to Jaleo, Inc. 70%.
11), (12), (13), (14) That Dora Rodriguez was damaged $75,000. and Cynthia Rodriguez was damaged $70,000. (plus $3,000. medical expenses and $1,000. future medical expenses for Dora; and $5,600. medical expenses for Cynthia).

The trial court rendered judgment on the verdict for Dora Rodriguez for $55,300. and for Cynthia Rodriguez for $75,600.

Defendant Jaleo appeals principally contending:

1) There is no evidence to warrant the jury’s affirmative finding to Issue 2.
2) There is insufficient evidence to warrant the jury’s affirmative finding to Issue 2.
3) The jury’s finding to Issue 2 is against the great weight and preponderance of the evidence.

Plaintiffs were injured when their automobile fell into a manhole that was uncovered in the middle of a public street in Galveston at 9 P.M. on November 9, 1974. Dora was driving; Cynthia was a passenger; the street was in a construction area but was open for public use. Defendant was the construction contractor. Plaintiffs were given no warning of the hole.

Defendant dug the hole; it was in a construction area controlled by defendant; the hole was uncovered for at least 12 hours prior to the accident. Defendant recognized the importance of having a watchman in the area overseeing the safety of the project, but none was on duty for at least 12 hours prior to the accident. The defendant’s contract with the city called for defendant to maintain safety precautions. There were no barricades or warning signs that a west bound motorist was going into a construction area. While the street was open to traffic prior to November 9, 1974, defendant had not completed its construction contract, and the hole was in a construction area under the control of defendant.

The jury found that the open manhole constituted a dangerous condition. Defendant though in charge of the area did not discover the situation, and defendant was under a duty to keep the area safe, or warn of unsafe conditions.

The law places a duty to warn of a dangerous condition on a public highway upon one who creates such conditions or who is in control of the area and permits such conditions to persist. Anyone working upon or using a highway is under a duty to refrain from creating conditions which are dangerous to other persons using same, or to warn of dangerous conditions should the same be created. Strakos v. Gehring, Tex., 360 S.W.2d 787; Word v. Clifton, Tex.Civ.App. (Waco) NWH, 399 S.W.2d 424; Sproles v. Sharp Hardware, Inc., Tex.Civ.App. (Dallas) NRE, 419 S.W.2d 680; Anglin & Son v. Brennan, Tex.Civ.App. (Austin) NWH, 466 S.W.2d 832; Seldon v. Green, Tex.Civ.App. (Tyler) NWH, 498 S.W.2d 285.

The evidence is ample to sustain the jury’s answer to Issue 2, and such is not against the great weight and preponderance of the evidence. In re King’s Estate, 150 Tex. 566, 244 S.W.2d 660.

All defendant’s points are overruled.

AFFIRMED.


author: PEDEN, Justice.

text:
    Roger HOSS, Appellant, v. Leo H. FABACHER, Appellee.
    No. 17281.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Feb. 15, 1979.
    Pope & Waits, Dougal C. Pope and Edward W. Engel, Houston, for appellant.
    Charles T. Richardson, Clute, for appel-lee.
   PEDEN, Justice.

Roger Hoss, plaintiff below, appeals from a take-nothing judgment after a non-jury trial of a suit and a cross-action. The plaintiff complains that he was entitled to recover on a bearer instrument signed by the defendant. Findings of fact and conclusions were filed. We find that the paper in question is unenforceable on its face and we affirm.

Plaintiff’s trial pleading was based on a “bearer instrument”, a copy of which he attached to his trial petition. It is a form on which some of the blanks have been filled in:

Freeport, Texas, 15 April 1971 $6002.19
For value received, I, we, or either of us, the undersigned, promise to pay to the order of - In - monthly installments of $_each and one installment of -, the first installment to become due and payable on or before the 16 day of July. 1971, and one installment to be due and payable on the_day of each succeeding month until the whole of said indebtedness is paid with interest from date at the rate of 10 per cent per annum.
All past due principal and interest .
It is understood and agreed that failure to pay .
(There was also a provision for payment of an attorney’s fee and a waiver of presentment, notice and protest.)
The form bears the signature of the defendant.

The plaintiff alleged that payment was due and that demand had been made. Fabacher’s answer generally denied Mr. Hoss’ allegation and asserted the affirmative defense of forgery, and he sought damages plus punitive damages in a cross-action based on sale of a ship. -

We summarize the trial court’s findings of fact concerning the paper in question: 9) Fabacher’s signature on it is genuine, 10) the name of the payee is not filled in and is blank, 11) the sum to be paid is not filled in and is blank, and 12) the defendant denied that he made and executed a bearer instrument.

We also summarize the trial court’s conclusions of law concerning the purported note: 6) the plaintiff has failed to make a prima facie case in that the instrument in question is unenforceable on its face and is an incomplete order instrument, and 7) Sections 3.111 and 3.115(a) of the Business and Commerce Code control this case.

The appellant’s first five points of error are that the trial court erred 1) in holding that Sections 3.111 and 3.115(a) of the Business and Commerce Code control this case, because the defendant has no pleadings on which that holding may be based and because it is Section 3.307 that is controlling; 2) in finding that the sum paid is not filled in on the note in question; 3) in failing to find that the plaintiff owned the note in question; 4) in concluding that the plaintiff failed to make a prima facie ease because, the court concluded, the instrument in question is unenforceable on its face and is an incomplete order instrument; and 5) in failing to find that the plaintiff was entitled to recover on the note in question since no payment had been made on it.

Under the Texas Business and Commerce Code, “ ‘instrument’ means a negotiable instrument.” § 3.102(a)(5) (1967). To be a negotiable instrument, the writing must (1) be signed by the maker or drawer, (2) contain an unconditional promise or order to pay a sum certain in money and no other promise, order, obligation or power given by the maker or drawer except as authorized by the Code, (3) be payable on demand or at a definite time, and (4) be payable to order or to bearer. § 3.104(a) (1967). An instrument is payable to bearer when by its terms it is payable to (1) bearer or to the order of bearer; or (2) a specified person or bearer; or (3) “cash” or the order of “cash”, or any other indication which does not purport to designate a specific payee. § 3.111 (1967) The official comment to this section clearly states

2. Paragraph (c) is reworded to remove any possible implication that “Pay to the order of_” makes the instrument payable to bearer. It is an incomplete order instrument and falls under Section 3-115.

Section 3.115(a) of the Code, titled “Incomplete Instruments,” provides that when a paper whose contents at the time of signing show that it is intended to become an instrument is signed while incomplete in any necessary respect, it is unenforceable until completed. Comment 2 following that section defines “necessary” as “necessary to complete instrument. It will always include the promise or order, the designation of the payee, and the amount payable.” In our case the paper in question, stating: “Pay to the order of _” is not a bearer instrument, and it does not contain a promise to pay any amount. The trial judge was correct: it is unenforceable on its face and is incomplete. Section 3.307(b) is relied on by the appellant. It provides: “When signatures are admitted or established, production of the instrument entitles a holder to recover on it unless the defendant establishes a defense.” We have seen that the paper in question does not constitute an “instrument” under the Code, so this section does not apply in our case.

Further, we disagree with appellant’s contention that because Fabacher’s trial pleading consists only of a general denial, a specific denial asserting forgery, and alternatively, set-off, cross-claim and payment, Fabacher has waived the affirmative defense of incomplete instrument.

Since the paper sued on shows on its face that a recovery cannot be based upon it, defensive pleading was unnecessary. See Niles v. Harris County Fresh Water Supply District, 339 S.W.2d 562 (Tex.Civ.App.1960, writ ref.) and cases there cited; also Moulton v. Alamo Ambulance Service, Inc., 414 S.W.2d 444 (Tex.1967).

In the case of Alexander v. Houston Oil Field Material Company, Inc., 386 S.W.2d 540, Civ.App. Tyler, 1965, writ ref. n. r. e. the court stated:

“As in all other types of suits a general denial in a suit upon a note puts in issue all matters pleaded by the Plaintiff which are not required to be denied under oath . A general denial does undoubtedly puts in issue allegations that the Plaintiff is the owner or holder of the note, that the same is due together with the amount due and owing thereon. Proof of these matters is essential to the right of recovery . . . Traverse of them is not an affirmative defense to be specially pleaded under Rule 94, T.R.C.P. . the defensive plea of general denial is sufficient in law to raise issues of fact with respect to every matter essential to Plaintiff’s right of recovery save only those matters required to be denied under oath, and puts the burden on the Plaintiff of proving all such matters.”

Fabacher’s general denial put in issue the allegations of the amount due, and the plaintiff-appellant did not prove that any amount was due. His suit was based on a purported note, and he neither alleged nor proved that or any other basis for recovery.

In his other points of error, 6 through 13, the appellant asserts that certain findings of fact and conclusions of law with respect to Fabacher’s cross-action were erroneous. In response to that cross-action, the trial court found that Fabacher was entitled to set off his claim against Hoss against the claim of Hoss on the purported bearer instrument in question but that limitations barred Fabacher’s recovery of damages on his claim. The trial court entered a take-nothing judgment on both parties’ claims.

Having overruled the appellant’s points of error based on his purported bearer instrument, we need not address his defensive points.

Affirmed.


text:
    FIRST NATIONAL BANK OF JEFFERSON, Texas, Appellant, v. TRI-STATE GENERAL AGENCY, INC., Appellee.
    No. 8625.
    Court of Civil Appeals of Texas, Texarkana.
    Feb. 20, 1979.
    Rehearing Denied April 24, 1979.

      J. R. Cornelius, The Cornelius Law Firm, Jefferson, for appellant.
    Otto A. Ritter, Roberts, Harbour, Smith, Harris, French & Ritter, Longview, for ap-pellee.
   RAY, Justice.

This is a negligence case. Appellant (plaintiff), First National Bank, Jefferson, Texas (Bank), brought suit against appellee (defendant), Tri-State General Agency, Inc. (Tri-State), seeking damages in the sum of $5,109.73, together with costs, twelve percent (12%) penalty and reasonable attorney’s fees. The jury verdict was favorable to Tri-State and the trial court entered its judgment accordingly. Appellant Bank has perfected its appeal and submits twelve points of error for our consideration.

The judgment of the trial court will be affirmed.

The evidence in this case shows that Donald Van Huss purchased a mobile home which was financed through the First National Bank in Jefferson, Texas. The mobile home was destroyed by fire on March 4, 1975. Van Huss was not carrying fire insurance. Mrs. Helen Jones Hayles, an employee of Tri-State, testified that Mrs. Pat Starkey, an employee of the Bank, called her on the morning of March 7, 1975, about 8:30 a. m. asking Mrs. Hayles if she had received the Bank’s application for single interest insurance on the Van Huss mobile home. Mrs. Hayles stated that she had not yet opened her mail and did not know whether the application had been received. Mrs. Hayles then said that Mrs. Starkey told her that the mobile home had burned on March 4th; that the application had been made out after the fire, but that it had been back-dated to February 28th. Mrs. Starkey denied making the phone call and stated that she mailed" the application on March 3, 1975. Mrs. Hayles testified that she told Mrs. Starkey on March 7,1975, during the telephone conversation that TriState could not accept a back-dated application and that the company could not write a policy because the fire had occurred before the application was received. It was further stated by Mrs. Hayles that she later opened her mail on March 7,1975, found the application after learning of the fire, and nevertheless, mailed the application to TriState’s office in Longview because that office handled all applications for coverage on mobile homes. She informed the Longview office of the fire and therefore no policy was ever issued covering the Van Huss mobile home.

The evidence shows that the application was for single interest insurance which would pay the balance of the note at the Bank in the event of the loss of the mobile home from hazards covered by a policy.

The application was on a form bearing the name of “Bank Services Agency” with a Fort Worth address. The application was apparently mailed by Mrs. Starkey to Bank Services Agency and was thereafter received from Bank Services Agency by TriState on March 7th. The procedure was to send applications to Bank Services Agency, a local recording agent, which in turn forwarded the application to Tri-State’s office in Fort Worth. Tri-State would then send the application to its branch office in Long-view and that office would issue an insurance policy through Dixie Auto Insurance Company, a non-admitted surplus line insurer, if coverage could be provided.

Mr. Bob Libby, a vice president for TriState, testified that Tri-State was a surplus line managing general agency that provided coverage for hard-to-place and difficult risks that are not normally covered by local recording agents. A surplus line general agency has contracts with various companies so that the agency can accept applications and issue policies for the companies that it represents. In 1975, Tri-State was writing policies covering mobile homes through Dixie Auto Insurance Company. The Longview office of Tri-State had been designated as the office to represent Dixie as the surplus line managing general agency in Texas and therefore all mobile home insurance applications were handled through that office. Tri-State was not authorized to transact its surplus lines insurance directly with an applicant, but had to deal through a regular licensed recording agent.

In response to special issues, the jury found that the application for single interest insurance was mailed on or before March 3, 1975. Tri-State had a known procedure for rejecting applications when payments to the financing institution were more than thirty (30) days past-due. The jury found that the note on the Van Huss mobile home was more than thirty (30) days past-due on the date the application was mailed. The jury also found that Tri-State did not fail to present the Bank’s application to an insurance company for the issuance of an insurance policy. Conditional issues related to the alleged negligence of Tri-State in failing to present the application to an insurance company for coverage were not answered because the jury in effect found that Tri-State had presented the application to an insurance company for coverage.

The evidence supports the jury findings. Mrs. Starkey testified that she mailed the application on March 3, 1975, which supports the jury’s answer to Special Issue No. 1. Pat Starkey admitted that the note was more than thirty (30) days past-due and the Bank records so indicated, all of which supported the jury’s answer to Special Issue No. 2. Mrs. Hayles testified that she mailed the application to Tri-State’s office in Longview on the same date that she received it, that is, March 7, 1975, and that Tri-State’s office in Longview was in charge of issuing policies on mobile homes through companies for which it was an agent. This testimony substantiates the jury’s finding in response to Special Issue No. 3, that the Bank’s application for insurance was presented to an insurance company for coverage because the testimony shows that Tri-State General Agency was an agent for Dixie Auto Insurance Company through whom the policies were ordinarily written.

This case was tried on the theory that the application blanks of Bank Services Agency which were left at the Bank constituted an offer to provide insurance coverage and that when the application was mailed by Mrs. Starkey on March 3, 1975, that such mailing constituted an acceptance of the offer to provide coverage. However, the Bank employees could not testify that Tri-State had left the applications with the Bank or that Tri-State had offered to provide insurance coverage when an application was mailed to Bank Services Agency. There is no proof in the record that TriState had in any way made an offer to the Bank to provide single interest insurance coverage on property financed by the Bank. Further, there is no proof in the record which shows that Tri-State was obligated to furnish the Bank insurance upon the receipt of an application for coverage. Since there was no proof that Tri-State owed a duty to the Bank, to provide insurance coverage, its failure to issue the requested policy did not constitute negligence. The usual negligence case is based on a fact situation in which the insurance company unreasonably delays in passing on the application to a potential carrier, thereby depriving the claimant of the opportunity of getting other insurance. See 43 Am.Jur.2d, Insurance, Sec. 215. It cannot be said that Tri-State has been guilty of unreasonable delay in this case since the fire occurred before it received the application. As a general rule, an insurance company is not bound to accept an application or proposal for insurance, but may reject it for any reason or arbitrarily. 43 Am.Jur.2d, Insurance, Sec. 213, p. 269. For an analogy, see Texas Life Insurance Company v. Shuford, 131 S.W.2d 118 (Tex.Civ.App. San Antonio 1939, no writ). Since Tri-State learned of the loss before receiving the application for coverage, it could not issue the policy under the circumstances of this case, even though the application may have been mailed by Mrs. Starkey to Bank Services Agency in good faith. It is contrary to public policy for an insurance company, the business of which is affected with a public interest, knowingly to assume the burden of a loss that occurred prior to making the contract to provide insurance coverage. Burch v. Commonwealth County Mutual Insurance Company, 450 S.W.2d 838 (Tex.1970). In the present case, the loss had already occurred when the application for coverage was received by Tri-State from Bank Services Agency and Tri-State as agent for the carrier had already learned of the loss. No policy could have been issued in good faith and TriState would have violated public policy by doing so.

Estoppel is not applicable to this case, as asserted by appellant, for the reason that estoppel cannot be used to create a contract. It is defensive in character and cannot be used to create a cause of action. Snow v. Gibraltar Life Insurance Company of America, 326 S.W.2d 501 (Tex.Civ.App. Dallas 1959, writ ref’d n. r. e.); 22 Tex.Jur.2d, Estoppel, Sec. 20.

The testimony of Milton Jones was properly excluded as being immaterial. His testimony was to have been offered for the purpose of showing that Tri-State was negligent in handling the application, but the Bank never proved that Tri-State owed it any duty to provide insurance coverage. Further, the jury found that Tri-State presented the application to an insurance company for coverage and the testimony of Mr. Jones, as an expert witness, would not have refuted this finding.

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

CORNELIUS, C. J., not participating.


text:
    Pat PORTER and Sue Cooper, Appellants, v. Debbie Lou DOWNING, Appellee.
    No. 8674.
    Court of Civil Appeals of Texas, Texarkana.
    Feb. 20, 1979.
    Rehearing Denied March 20, 1979.
    Herbert Boyland, Kenley, Boyland, Starr, Coghlan & Erskine, Longview, for appellants.
    G. Brockett Irwin, Longview, for appel-lee.
   HUTCHINSON, Justice.

This is a suit for damages for personal injuries resulting from an assault and battery.

Appellants, Porter and Cooper, and appel-lee, Downing, were employees of Holiday Lodge Nursing Home in Longview and the alleged assault was committed on the premises of the Holiday Lodge Nursing Home during the duty hours of appellants and appellee. It was established by undisputed evidence or by stipulation that the injuries sustained by appellee were caused by an assault directed against her as an employee of Holiday Lodge Nursing Home, or because of such employment, and not for personal reasons. At all material times, the employer was a subscriber to the Worker’s Compensation Act of the State of Texas and appellee had not notified her employer, either at the time of her employment or at any time thereafter, that she was claiming her right of action at common law or under any statute to recover for damages for injuries sustained in the course of her employment. After the alleged assault and injury, appellee made no claim whatsoever, medical or otherwise, for benefits under the Worker’s Compensation Act.

The case is here on one point of error, that is, appellee is not entitled to recover common law damages for injuries resulting from an assault by a co-employee by reason of her employment, as opposed to personal reasons, where the employer was a subscriber under the Worker’s Compensation Act.

Appellee counters with the proposition that inasmuch as the injury complained of was intentionally inflicted and no claim was made under the Worker’s Compensation Act, this suit is maintainable by virtue of Section 13, Article I of the Texas Constitution.

We agree with appellee. Soon after the enactment of the initial worker’s compensation act in Texas, our Supreme Court was called upon by certified questions to determine the constitutionality of various provisions of the new act. Middleton v. Texas Power & Light Co., 108 Tex. 96, 185 S.W. 556 (1916). The answer to one of those questions is determinative of the question before this Court. There Chief Justice Phillips discussed the application of the act to “accidental” injuries as opposed to “intentional” injuries and concluded that a cause of action based upon a “negligent” act is a creation of the common law and one based upon an “intentional” act is found in the Constitution, saying:

“Here the character of injuries, or wrongs, dealt with by the Act becomes important. Notwithstanding the breadth of some of its terms, its evident purpose was to confine its operation to only accidental injuries, and its scope is to be so limited. Its emergency clause declares its aim to be the protection by an adequate law of the rights of employees injured in ‘industrial accidents,’ and the beneficiaries of such employees as may be killed ‘in such accidents.’ The Bill of Rights, Section 13, Article I of the Constitution provides that ‘every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law’; that is, the right of redress in the courts of the land in accordance with the law’s administration. It is therefore not to be doubted that the Legislature is without the power to deny the citizen the right to resort to the courts for the redress of any intentional injury to his person by another. Such a cause of action may be said to be protected by the Constitution and could not be taken away; nor could the use of the courts for its enforcement be destroyed. This Act does not affect the right of redress for that class of wrongs. The injuries, or wrongs, with which it deals are accidental injuries or wrongs. . . . ”

Middleton v. Texas Power & Light Co., supra, has been followed consistently. Castleberry v. Frost-Johnson Lumber Co., 283 S.W. 141 (Tex.Com.App.1926, judgmt. adopted): “Under our Texas law, employés have all their original rights when injured through willful acts or omissions. . . ”; Aetna Insurance Company v. Hart, 315 S.W.2d 169 (Tex.Civ.App. Houston 1958, writ ref’d n. r. e.): “The Act does not cover intentional wrongs because the Legislature could not constitutionally deprive the employee of his common law right to recover for such wrongs. . . . ”; Richardson v. The Fair, Inc., 124 S.W.2d 885 (Tex.Civ.App. Beaumont 1939, writ dism’d judgmt. cor.); Fidelity & Casualty Co. of New York v. Neas, 93 F.2d 137 (5th Cir. 1937).

We are of the opinion that this Constitutional right should be maintained and protected. At the same time we approve of the decisions holding that if the injured employee makes claim for or accepts benefits under the Worker’s Compensation Act, such employee cannot thereafter maintain a suit against a co-employee or the employer on the basis of an intentional injury. Grove Mfg. Co. v. Cardinal Const. Co., 534 S.W.2d 153 (Tex.Civ.App. Houston-14th Dist. 1976, writ ref’d n. r. e.); Heibel v. Bermann, 407 S.W.2d 945 (Tex.Civ.App. Houston 1966, no writ); Jones v. Jeffreys, 244 S.W.2d 924 (Tex.Civ.App. Dallas 1951, writ ref’d). Such an employee by claiming and collecting under the Act has made an election of remedies and is then estopped from proceeding in an action for damages for an intentional tort.

The judgment of the trial court is affirmed.