text:
    Richard Ronald GROMMES, Appellant, v. The STATE of Texas, Appellee.
    No. 61831.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Nov. 21, 1979.
    Kevin R. Bartley, Odessa, for appellant. Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, PHILLIPS and CLINTON, JJ.
   OPINION

DOUGLAS, Judge.

This is an appeal from an order revoking probation.

The court based its order solely upon a finding of true to the allegation that Grammes “has violated the terms of his probation in the following respect, to-wit: On 12-15-78 Being out of Ector County without written permission of the Court, to-wit: Las Vegas, Clark County, Nevada.”

Appellant had received written permission of the court to move from Ector County to Prescott, Arizona. The conditions of probation were modified

“to the extent that Defendant Richard Ronald Grammes
“(1) maintain residence in Prescott, Arizona,
“(4) that defendant Richard Ronald Grammes will not move from the jurisdiction of the Prescott, Arizona Probation Department, without first obtaining permission from this Court, until further ordered.”

The order revoking probation is not based on a condition of probation as modified. The order revoking probation is reversed and the cause remanded.


source: Caselaw Access Project

author: ODOM, Judge.

license: Public Domain

text:
    Ex parte Camilo GUZMAN, Jr.
    No. 62649.
    Court of Criminal Appeals of Texas, En Banc.
    Nov. 21, 1979.

      Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is a habeas corpus proceeding under Article 11.07, V.A.C.C.P., and in accordance with Ex parte Young, 418 S.W.2d 824 (Tex.Cr.App.). The applicant seeks release from confinement in the Texas Department of Corrections under his conviction on a plea of guilty for the offense of murder with malice aforethought in Cause No. 3909 in the 36th Judicial District Court of San Pa-tricio County on November 15, 1972, where punishment was assessed at twenty five years. Review of that judgment by appeal was not sought.

In his application for relief, applicant alleges that his conviction is void “by virtue of the fact that the Court was without jurisdiction to render judgment and sentence upon Petitioner’s plea of guilty in that the indictment having been returned prior to an examining trial required by Art. 2338-1, Sec. 6(j), V.A.C.S. (repealed) is void; . ” Applicant urges that our decision in Ex parte Menefee, 561 S.W.2d 822 (Tex.Cr.App.), and others which follow Me-nefee are controlling in this case. We disagree.

At the hearing held on petitioner's application it was shown that he was fifteen years old at the time the offense was committed, and was sixteen when he was indicted. Accordingly, the District Court of San Patricio County, sitting as a Juvenile Court, had exclusive original jurisdiction over applicant’s conduct. Art. 2338-1, Sec. 5(a), V.A.C.S. (repealed and replaced by V.T.C.A., Family Code Section 51.04(a) (Vernon Supp.1978-1979)). On June 20, 1972, however, the Juvenile Court, after a hearing, waived its jurisdiction and transferred the applicant to the 36th Judicial District Court of San Patricio County as an adult. See Art. 2338-1, Sec. 6(b), V.A.C.S. (repealed and replaced by V.T.C.A., Family Code Section 54.02(a), (c) (Vernon 1975)). On July 21,1972, the applicant was indicted for the offense which forms the basis of this post-conviction proceeding.

In addition to the certification order and indictment, the record contains an order committing the applicant to jail and setting bail. This order is not dated and is captioned with the number assigned in the juvenile cause, but with a designation that the court was “Sitting as an Examining Court”. However, testimony at the hearing on the present application by the District Attorney at the time of the original proceedings in 1972, established that this order was based upon a hearing which was held subsequent to the transfer by the Juvenile Court on June 20 and prior to return of the indictment on July 21 and that the juvenile cause number was used because no other number had been assigned to the case.

At the conclusion of the hearing, the trial court found, inter alia:

“7. The 36th Judicial District Court, sitting as a Juvenile Court, waived its jurisdiction over Petitioner on June 20, 1972, and transferred the Child to the 36th District Court of San Patricio County.
“8. . . .
“9. That subsequent to, the June 29 [June 20], 1972, hearing at which time the Petitioner was certified as an adult, and before July 21,1972, when the indictment against him was returned another hearing was held before the 36th District Court sitting as an Examining Court to determine whether or not probable cause existed for holding the Petitioner over for action by the Grand Jury.
“10. That at some date following June 20, 1972, but prior to July 21, 1972, the Trial Court sitting' as an Examining Court committed Petitioner to jail to answer to the State of Texas before the District Court of San Patricio County, Texas, 36th Judicial District at its present term for the offense of murder with malice aforethought, and ordered the Sheriff to safely keep Petitioner to await the order of the District Court together with the commitment and set bail at $5,000.00.
“11. The Petitioner did not waive an Examining Trial following his certification of June 20, 1972, and prior to his indictment of July 21, 1972.
“12. The 36th Judicial District Court of San Patricio County conducted an Examining Trial of the Petitioner prior to July 21, 1972, and subsequent to June 20, 1972, and did not remand the Petitioner to the jurisdiction of the Juvenile Court, but ordered the Petitioner held in jail for further orders of the District Court.
“13. Although the order by the 36th Judicial District Court, sitting as an Examining Court, purports to be filed in the juvenile proceeding, Cause No. 681, the order was in fact filed in the 36th District Court of San Patricio County, sitting as an Examining Court and not sitting as a Juvenile Court.
“14. That the indictment of the Petitioner for murder with malice aforethought returned on July 21, 1972, was done after the Petitioner was afforded an Examining Trial.”

Accordingly, the trial court recommended that relief be denied.

The evidence before the trial court supports its finding that the indictment was returned after an examining trial and its conclusion that the indictment was not void. Contrary to applicant’s allegations, the record affirmatively reflects that an examining trial was in fact held in the District Court to which applicant was transferred. That the juvenile court number appeared at the top of the order entered by the trial judge is not significant, in light of the remainder of the caption designating the 36th Judicial District Court as an “Examining Court” and the testimony that the hearing was held subsequent to the waiver of jurisdiction by the juvenile court and prior to return of the indictment. Menefee and its progeny are not in point.

Further, we acknowledge that the trial court made an express finding that the hearing held before the 36th District Court was to determine the existence of probable cause for holding applicant over for grand jury action, and that the trial court made no finding as to any inquiry whether the applicant should be tried as an adult or remanded to juvenile court. This express finding may imply that the Examining Court dealt only with the question of probable cause. However, this Court is not bound by the findings of the trial court in a habeas corpus proceeding. Ex parte Young, 479 S.W.2d 45, 46 (Tex.Cr.App.). Accordingly, we are authorized to conclude that since no statement of facts of the original proceedings has been prepared and filed as part of the record, any question of whether proper inquiries were made at the examining trial has been waived. The burden of proof in a collateral attack on a conviction is on the applicant. Ex parte Rains, 555 S.W.2d 478 (Tex.Cr.App.). Although a presumption of procedural regularity will not support a conclusion that an examining trial was held, White v. State, 576 S.W.2d 843, 845 (Tex.Cr.App.), when the record shows that such an event did take place, the presumption of regularity is that all procedural steps within the proceeding were complied with. There being no affirmative showing that procedural requirements were violated, a presumption of regularity must prevail. See Green v. State, 510 S.W.2d 919 (Tex.Cr.App.). See also Ex parte Rocha, 482 S.W.2d 169, 170 (Tex.Cr.App.). We hold, then, that the indictment charging applicant with the offense of murder with malice aforethought was not void and that applicant is not entitled to the relief he seeks.

The relief sought is denied.

      . Art. 2338-1, Sec. 6(j), V.A.C.S. (Vernon 1971) (repealed) provided as follows:
      “(j) If the juvenile court waivers jurisdiction it shall certify its action, including the written order and findings of the court and accompanied by a complaint against the child, and transfer the child to the appropriate district court or criminal district court for criminal proceedings. Upon transfer of the child for criminal proceedings he shall be dealt with as an adult and in accordance with the Code of Criminal Procedure. The transfer of custody is an arrest. However, the examining trial shall be conducted by the district court or criminal district court which may remand the child to the jurisdiction of the juvenile court.” (Emphasis added.)
      V.T.C.A., Family Code Section 54.02(h) (Vernon Supp.1978-1979), which replaced Art. 2338-1, Sec. 6(j), and upon which the recent decisions of this Court have been based, carries forward the provision for waiver of jurisdiction in almost identical language:
      “(h) If the juvenile court waives jurisdiction, it shall state specifically in the order its reasons for waiver and certify its action, in-eluding the written order and findings of the court, and transfer the child to the appropriate court for criminal proceedings. On transfer of the child for criminal proceedings, he shall be dealt with as an adult and in accordance with the Texas Code of Criminal Procedure, 1965. The transfer of custody is an arrest. The examining trial shall be conducted by the court to which the case was transferred, which may remand the child to the jurisdiction of the juvenile court." (Emphasis added.)
      In light of the similarity of the statutes, we expressly extend the rule enunciated in Ex parte Menefee, 561 S.W.2d 822 to applicant’s allegations raised under the predecessor to V.T.C.A., Family Code Section 54.02(h). See Ex parte Buchanan, 588 S.W.2d 596 (No. 62653, 10/24/79) and Ex parte Menefee, 561 S.W.2d 822, 829-830.


author: J. CURTISS BROWN, Chief Justice.

text:
    NEW TERMINAL WAREHOUSE CORPORATION, Appellant, v. Minnie E. WILSON et al., Appellees.
    No. B2059.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Aug. 15, 1979.
    Rehearing Denied Sept. 5, 1979.

      Ron Franklin, Knox D. Nunnally, Vinson & Elkins, Houston, for appellant.
    Joseph D. Jamail, Jamail & Kolius, Frank G. Jones, Fulbright & Jaworski, John P. Forney, Eastham, Watson, Dale & Forney, Ben L. Reynolds, Royston, Rayzor, Vickery & Williams, Henry P. Giessel, Talbert, Gies-sel & Stone, Houston, for appellees.
    Before J. CURTISS BROWN, C. J., and CIRE and COULSON, JJ.
   J. CURTISS BROWN, Chief Justice.

This wrongful death suit involves an accident on a dock in which plaintiff’s husband, a longshoreman, was struck and killed by a truck backing up to a crane.

New Terminal Warehouse Corporation (appellant or New Terminal), is in the business of warehousing goods shipped by water, and provides docks for loading or unloading operations. On the morning of January 22,1978, New Terminal had docked at its facilities a barge of fertilizer grain to be unloaded and stored. New Terminal arranged for Southern Stevedoring Company, Inc. (Southern) to provide a crane and a crew of longshoremen to unload the material onto trucks. New Terminal provides no trucks for such operations and it called Norman & Son, Inc. (Norman), a trucking company, to arrange for the necessary vehicles. Norman, having no available trucks, contacted Galena Park Trucking Company (Galena Park). Galena Park agreed to furnish the required transportation and sent three trucks, two of which were owned by Leon Stephens (Stephens) but leased to Galena Park. Of the two trucks owned by Stephens, one was driven by Stephens himself, and the other by an employee of Stephens, Myrko Balaban (Balaban). For that day, the unloading proceeded without significant problem. While one truck was backed up to the crane and being loaded, a second would be stopped some distance off waiting to back into position for loading. The third would be enroute to or from the warehouse.

While the barge was being unloaded, a second crew of longshoremen were engaged in a cleaning operation on a larger oceangoing vessel, the MALLORY LYKES, also docked at the New Terminal facilities approximately 100 feet from the barge. On the second day of unloading, Balaban, having dumped one load of fertilizer, stopped alongside the MALLORY LYKES to wait for the truck under the crane to be filled. Unknown to Balaban, Willie Wilson, the husband of the plaintiff, Minnie E. Wilson (Wilson), was enroute from a parking lot on the New Terminal property to the MALLORY LYKES where he was to be a foreman of the cleaning party. Willie Wilson had stopped some four feet behind Balaban’s truck and was in conversation with another longshoreman when Balaban, seeing through his outside rearview mirror that the crane was ready to load his truck, started backing toward the crane. Willie Wilson was killed by the impact of the truck.

Wilson filed a wrongful death suit and, in her second amended petition, claimed that New Terminal, Southern, Norman, Galena Park, Stephens and Balaban were all guilty of specific acts of negligence culminating in the death of her husband. At the close of plaintiff’s evidence, the trial court granted Norman’s and Southern’s motions for instructed verdict, and dismissed those parties from the case. The jury found New Terminal negligent in failing to provide a reasonably safe place for Willie Wilson to work, and that such negligence was a proximate cause of the accident. The jury found that either Galena Park’s, Stephen’s, or Bala-ban’s negligence was a proximate cause of the death and further that Willie Wilson’s failure to keep a proper lookout was a proximate cause of the accident. Asked to apportion the percentage of fault in causing the accident, the jury found that Willie Wilson contributed 10%, that Galena Park “and/or” Stephens “and/or” Balaban contributed 40%, and that New Terminal contributed 50%. Damages were found to be $700,000.00, but were reduced to $630,000.00 based on the findings of contributory negligence. Based on the jury finding that New Terminal failed to provide Balaban a reasonably safe place to work, the trial court granted complete indemnity to Galena Park, Stephens, and Balaban against New Terminal. New Terminal brings this appeal.

New Terminal asserts as error the trial court’s granting of instructed verdicts for Southern and Norman. In an instructed verdict case, the controlling determination is “whether there is any evidence of probative force to raise fact issues on the material questions presented.” Henderson v. Travelers Ins. Co., 544 S.W.2d 649, 650 (Tex.Sup.1976). New Terminal’s position is that there was evidence in the record that Southern had a duty to control the trucks during the backing procedure on the dock. For support, New Terminal looks to the testimony of Kingcaid, a representative of Southern, who testified that New Terminal had no supervisors on the dock; that Southern controlled the “spacing” of the trucks; and that employees of Southern were under the control of Southern during the unloading operation. This testimony provides no direct evidence that Southern had any duty to control the backing of the trucks. The reference to spacing was limited to Southern’s activities in informing the truck drivers when the truck was properly positioned to accept the load. New Terminal points to the Southern manpower on the barge and crane as evidence of control. The fact that Southern may have had sufficient personnel to control trucks is not direct evidence of a right to control the details of the work. Nor is there any direct evidence of probative force that Southern actually exercised control over the trucks. Balaban and Stephens testified that their cue to back the trucks came from their sighting of the preceding truck as it drove away from the crane and from their past experience in such operations, but not from any signal by the crane operator, as asserted by New Terminal. Cumulatively, the above evidence amounts to no more than a surmise or suspicion that Southern had a duty to control backing procedures of the truck, and therefore fails to constitute any evidence of probative force. Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752 (Tex.Sup.1970); Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059, 1063 (1898). The instructed verdict was properly granted for Southern.

New Terminal seeks to have Norman held liable as a matter of law under the doctrine of respondeat superior on the ground that Galena Park and its employees, Balaban and Stephens, were agents acting on behalf of Norman and subject to its authority. Norman takes the position that Galena Park and its employees were independent contractors. The test recognized in Texas to determine if a principal/agent relationship exists “is whether the employer has the right of control in directing, not merely the end sought to be accomplished by the employment, but as well the means and details of its accomplishment; not only what shall be done, but how it shall be done.” E. g., W. D. Haden Company v. Ryman, 362 S.W.2d 133, 135 (Tex.Civ.App.-Houston 1962, writ ref’d). In applying that rule to the case at bar, we find no evidence that Norman was anything more than a conduit furnishing independent contractors and trucks to New Terminal. New Terminal, desiring trucks, contacted Norman, who had no trucks available. Norman agreed to contact other trucking companies to provide the trucks. Norman called Galena Park, and it was Galena Park, through Stephens, Balaban, and á third truck driver, who fulfilled the order of New Terminal for three trucks. There is no evidence that Norman was present at the dock, or that it had the authority to control the details of the trucking on the dock. In the absence of such right of control, the doctrine of respondeat superior is not applicable.

In considering New Terminal’s attack on the form of submitting special issue one, we began with the premise that a broad submission of negligence issues is allowed by rule 277, Tex.R.Civ.P. Since the amendment of the rule, instances have been noted in which broad submission of negligence issues would not be proper, as in Scott v. Atchison, T. & S. F. R. Co., 572 S.W.2d 273 (Tex.Sup.1978). In Scott, the supreme court stated that:

Under Rule 277, the trial court has the discretion to submit an issue broadly, including the combination in one issue of several acts or omissions which may be alleged to constitute negligence. However, when one or more pleaded acts or omissions are unsupported by evidence and the record contains evidence of other possible negligent acts or omissions which were not pleaded, failure to limit the broad ultimate fact issue to acts or omissions which were raised by both pleadings and proof violates Rule 277 and is error.

The specific complaint in this case is that the submission of the special issue one, which inquired, “Do you find from a preponderance of the evidence that . New Terminal Warehouse Corporation failed to exercise ordinary care to make its premises safe for Willie Wilson . . .,” allowed the jury to consider evidence of negligence on the part of other defendants for which New Terminal was not legally liable. We do not so read the issue. It is confined to New Terminal and could not reasonably be read to include the acts or omission of others. Further, in Scott, the court approved the submission of an issue inquiring “whether the railroad was negligent in failing to provide the plaintiff with a reasonably safe place in which to do his work.” The allegation in the case at bar was that New Terminal failed to provide a reasonably safe place for Willie Wilson to work; the evidence presented was to that effect, and the special issue made that inquiry. Under the circumstances, we perceive no violation of rule 277 and no conflict with the supreme court’s reasoning in Scott

Any error in the form of submitting special issues five, six, or nine is harmless insofar as New Terminal is concerned. Galena Park, Stephens, and Balaban have made no complaint with respect to the submission of those issues grouping them together and were content to be treated as one entity for the purposes of assessing fault and the percentages of negligence. Such grouping cannot be said to have probably resulted in the entry of an erroneous verdict with regard to New Terminal, who was not included in those issues. Tex.R.Civ.P. 434. See, Parker v. Keyser, 540 S.W.2d 827 (Tex.Civ.App.-Corpus Christi 1976, no writ).

In addition to finding that New Terminal had failed to provide a reasonably safe place for Willie Wilson to work, the jury also found New Terminal failed to provide Balaban with a safe place to work and that such negligence was a proximate cause of the accident. Based on that finding, the trial court granted complete indemnity to Galena Park, Stephens, and Balaban against New Terminal. See generally, Austin Road Co. v. Pope, 147 Tex. 430, 216 S.W.2d 563 (1949).

Since the enactment of article 2212a, Tex. Rev.Civ.Stat.Ann., the supreme court “has sought to abolish those doctrines directed to the old choice between total victory and total defeat for the injured plaintiff and which doctrines too often confused jurors, lawyers and judges alike. . . . ” Davila v. Sanders, 557 S.W.2d 770, 771 (Tex.Sup.1977). The result has been to abolish many of the common-law rules traditional to the law of torts and to reduce most cases to a determination of negligence and contributory negligence. Farley v. M. M. Cattle Co., 529 S.W.2d 751 (Tex.Sup.1975) (voluntary assumption of risk or volenti non fit injuria abolished); Davila, supra (doctrine of imminent peril abolished); Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex.Sup.1978) (demise of “no-duty” doctrine in premises cases). See also, concurring opinion by Justice Pope in Abalos v. Oil Development Company of Texas, 544 S.W.2d 627 (Tex.Sup.1976) (advocated abolition of doctrine of last clear chance or discovered peril); de Anda v. Blake, 562 S.W.2d 497, 500 (Tex.Civ.App.-San Antonio 1978, no writ history) (adhered to Justice Pope’s concurring opinion in Abalos and disallowed doctrine of discovered peril). With like reasoning, the supreme court, in General Motors Corp. v. Hopkins, 548 S.W.2d 344, 352 (Tex.Sup.1977), held that the defense of misuse in a strict liability products case was no longer a complete bar to plaintiff’s recovery. The supreme court in Hopkins was not directed by statute to their conclusion, because the statute does not extend to strict liability situations. Instead, the rationale underlying article 2212a was the deciding factor.

We believe that the common law doctrine of indemnity between joint tort-feasors in negligence cases should be reconsidered in light of article 2212a. In particular, where there are negligent joint tort-feasors the statute provides:

(b) In a case in which there is more than one defendant, and the claimant’s negligence does not exceed the total negligence of all defendants, contribution to the damages awarded to the claimant shall be in proportion to the percentage of negligence attributable to each defendant.
(c) Each defendant is jointly and severally liable for the entire amount of the judgment awarded the claimant, except that a defendant whose negligence is less than that of the claimant is liable to the claimant only for that portion of the judgment which represents the percentage of negligence attributable to him.

Tex.Rev.Civ.Stat.Ann. art. 2212a, § 2(b) and (c) (Supp.1978). The language of the statute applies here. Appellant New Terminal had a duty to exercise ordinary care to provide a reasonably safe place to work for both Willie Wilson and Balaban, employees of independent contractors. Abolos, supra. Balaban, and, vicariously, Galena Park and Stephens, had a duty to exercise reasonable care in the operation of the truck regardless of the fact that he was caused, perhaps negligently, to operate the truck in an area unsafe for pedestrian traffic. The jury was requested to apportion percentages of fault and in doing so was allowed to consider that, at least in part, the accident was proximately caused by New Terminal’s failure to provide a reasonably safe place for Bala-ban to work. Under the jury finding assessing 50% fault to New Terminal, it would be and was improper to grant indemnity to Galena Park, Stephens, and Balaban, who were assessed 40% fault.

This decision is consistent with the policies behind article 2212a since the result is to strip away another common-law rule that resulted in a total shifting of responsibility for a tort. Under 2212a there is no rational basis for causing one defendant to indemnify another defendant, who was also found negligent and assessed a percentage of fault by the jury. Conversely, we do not consider 2212a to be so broad as to bar indemnity in cases where there is a contractual basis for indemnity, or where the liability of the parties seeking indemnity ⅛ purely vicarious. We do not intend for our holding to extend to such cases. Nor do we intend our holding to extend to products liability cases, or to cases involving a combination of negligence and strict liability. This decision is also consistent with the original basis for the award of indemnity in a joint tort-feasor’s situation, as expressed in Hodges, Contribution and Indemnity Among Tort Feasors, 26 Texas L.Rev. 150 (1947). Professor Hodges stated:

When there are two tortfeasors, either or both of whom are liable to an injured third person, but one of whom has breached a duty which he owed both to his co-tortfeasor and to the injured third person, then the tort-feasor who, to his co-tortfeasor, is blameless, should be allowed indemnity.

If, in this case, the jury had believed that Galena Park, Stephens, and Balaban were blameless as a result of New Terminal’s breach of a duty owed to Balaban, the special issues were so structured that the jury could have relieved Galena Park, Stephens, and Balaban of any liability.

A further basis for our decision is that the original article 2212 exempted from its scope situations where common-law indemnity was allowed. No such provision is made in article 2212a, which replaces article 2212 when the action is based on negligence. We reverse and render the trial court’s judgment of indemnity, and we grant contribution among the defendants, New Terminal, Galena Park, Stephens, and Balaban, in accordance with article 2212a.

New Terminal’s final point is that the award of $700,000.00 (reduced to $630,-000.00 due to Willie Wilson’s contributory negligence) is excessive and that this court should order a remittitur. The evidence at trial was sufficient in our opinion to support the award in light of Willie Wilson’s expected earnings and the care, advice, counseling, and services he would have provided to appellee Wilson. Those items are proper elements of recovery in a wrongful death case. City of Austin v. Selter, 415 S.W.2d 489 (Tex.Civ.App.-Austin 1967, writ ref’d n.r.e.).

To preserve a plaintiff’s right to trial by jury and to preclude an appellate court from substituting its opinion for a jury verdict, numerous presumptions are applied in favor of a jury verdict when attacked as excessive.

When the contention is made that the jury’s evaluation of damages is erroneous the burden of establishing that proposition is upon the party making the complaint.
In determining whether a verdict is ‘excessive’ the courts must review only that evidence favorable to the award, and the findings of the jury thereon will not be disturbed on ground of ‘excessiveness’ if there is any evidence to sustain the award; they will not merely interfere and substitute their judgments, nor is it material that the courts might have awarded a lesser sum as fact finders; there must be some circumstantial indication of bias or prejudice .

Texas Farm Products Co. v. Leva, 535 S.W.2d 953 (Tex.Civ.App.-Tyler 1976, no writ), citing, Hammond v. Stricklen, 498 S.W.2d 356 (Tex.Civ.App.-Tyler 1973, writ ref’d n.r.e.); City of Austin, supra. There is no allegation of bias or prejudice on the part of the jury in this case; merely an attempt to show a disparity between this award and awards considered excessive in the past. Appellant New Terminal’s request for remittitur is denied.

Having reversed and rendered the indemnity portion of the judgment, and having ordered contribution in accordance with article 2212a, we affirm the remainder of the judgment.

Reversed and rendered in part, and affirmed in part.

CIRE, J., not participating.

      . Helicoid Gage Div. of Am. Chain & Cable Co. v. Howell, 511 S.W.2d 573 (Tex.Civ.App.-Houston [14th Dist.] 1974, writ refd n. r. e.).

      . General Motors Corp. v. Simmons, 558 S.W. 855 (Tex.Sup.1977).


author: HUTCHINSON, Justice.

text:
    Doretta SIMS, Appellant, v. Betty WIECHERS, Appellee.
    No. 8686.
    Court of Civil Appeals of Texas, Texarkana.
    Aug. 21, 1979.
    John J. O’Boyle, Cooper, Hayner, Miller & Long, Dallas, for appellant.
    Fred J. Feigl, Feigl & Arnott, Inc., Richardson, for appellee.
   HUTCHINSON, Justice.

This is an appeal from a summary judgment in favor of Betty Wiechers, appellee, against Doretta Sims, appellant. Suit was upon a promissory note which is as follows:

“D. S. OIL AND GAS CO., INC.
Doretta Sims, President
Suite 716
4925 Greenville Ave.
Dallas, Texas 75206
Phone 214 750-5747
PROMISSORY NOTE
I, DORETTA SIMS, of 6211 W. Northwest Hwy., Apt. 1101, Dallas, Texas hereby promise to pay to Betty Wiechers the sum of $18,344.73 on or before December 5, 1977 for value received.
Eighteen thousand three hundred forty four dollars and seventy three cents. Dated this 5th day of October, 1977
/s/ Doretta Sims
DORETTA SIMS”

Appellee’s suit was for the principal sum of the note, interest thereon and attorney fees. Appellant’s answer alleged generally that all just and lawful offsets and credits had not been allowed, that the execution of the note was secured by fraudulent, false and misleading statements and representations by appellee, and that she was not liable in the capacity in which she was sued. Her response in opposition to appellee’s motion for summary judgment was also in like general terms and her affidavit in support of the response simply stated that appellee had not given her any credit for payments she had made on the note, that she executed the note in her capacity as President of D. S. Oil and Gas Company, Inc., and not in her individual capacity, that when she executed the note as such president appel-lee orally represented to her. that she had deposited $18,344.73 in the bank account of D. S. Oil and Gas Company, Inc. and in reliance upon such representation she signed the note. In response, appellee by affidavit stated that she advanced a total sum of $23,279.73 to appellant and to D. S. Oil and Gas Company, Inc. and that appellant had repaid $4,935.00, leaving an indebtedness in the sum of $18,344.73, the amount of the note sued upon. Attached to this affidavit where photocopies of eight of her cancelled checks: four in the total sum of $5,250.00 payable to the order of the appellant, three in the total sum of $11,000.00 payable to the order of D. S. Oil and Gas Company, Inc., and one in the sum of $7,029.73 payable to appellant and deposited in the account of D. S. Oil and Gas Company, Inc.

The trial court granted appellee judgment for the full amount of the note with interest at the rate of 6% from December 5, 1977, through June 15, 1978, an agreed attorney’s fee, with interest on the entire judgment from June 16,1978, at the rate of 9%.

Appellant is here on one point of error, that is, the trial court erred in granting the motion for summary judgment.

Unquestioned is the fact that appellee stated a cause of action and sufficiently supported the same in her motion for summary judgment. The validity of the rendered summary judgment therefore depends upon whether or not appellant by her response to the motion presented evidence raising a fact issue on the elements necessary to establish an affirmative defense. Seale v. Nichols, 505 S.W.2d 251 (Tex.1974); Gulf, Colorado & Sante Fe Railway Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492 (1959). In reviewing summary judgment proofs, the affidavits in opposition thereto should be accepted as true and every reasonable inference deductible therefrom should be in favor of the contentions of appellant. Hudnall v. Tyler Bank and Trust Company, 458 S.W.2d 183 (Tex.1970); Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952). The summary judgment evidence must be viewed in the light most favorable to the party opposing the motion and that which tends to support the opposition must be accepted as true, Great American Reserve Insurance Company v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Tex.1965), and any and all doubts as to the existence of a genuine issue as to a material fact should be resolved against the movant. Tigner v. First National Bank of Angleton, 153 Tex. 69, 264 S.W.2d 85 (1954); Gulbenkian v. Penn, supra.

Appellant’s summary judgment proof does not support her contention that appel-lee had not given her any credit for payments she had made on the indebtedness. The offered proof was only the general statement as above and the record is void as to any proof of the claimed payments, or the amounts thereof, relied upon to reduce the amount of the principal sum of the sued on note. This portion of appellant’s affidavit is no more than an unsupported conclusion. To have been effective summary judgment proof, appellant’s affidavit would have had to state specifically the claimed payments and the amounts thereof. A plea of payment is an affirmative defense and the burden was upon appellant to show the claimed credits that she was entitled to. This she wholly failed to do. Slavin v. Citizens State Bank of Frost, 567 S.W.2d 928 (Tex.Civ.App. Dallas 1978, no writ); Smith v. Crockett Production Credit Association, 372 S.W.2d 956 (Tex.Civ.App. Houston 1963, writ ref’d n.r.e.).

Appellant’s next assertion is that she executed the note in her capacity as president of D. S. Oil and Gas Company, Inc. and not in her individual capacity and that any liability on the note is that of the corporation. In support of this contention, appellant relies upon her affidavit to that effect and Tex.Bus. & Comm.Code Ann. § 3.403(b)(2). The question presented by this contention has heretofore been answered by our Supreme Court in the case of Seale v. Nichols, supra. The mere assertion by appellant of her subjective intent to sign the note as an agent of the corporation is insufficient to effectively raise a fact issue upon her alleged affirmative defense of non-liability in the capacity in which she was sued.

Appellant’s final contention is that the summary judgment proof raised the affirmative defense of fraud in the inducement. The basis for this assertion is her affidavit to the effect that appellee told her prior to the execution of the note that the entire $18,344.73 had been deposited in the account of D. S. Oil and Gas Company, Inc. and in reliance upon the false representation she signed the note. As heretofore noted, a portion of the advanced funds were deposited to appellant’s personal account rather than to the corporate account. There is no contention that appellee had not in fact advanced the money represented by the note nor does appellant deny having received the money. The summary judgment proof shows that the appellant at all material times was president of D. S. Oil and Gas Company, Inc. and as such she could have easily determined the sums deposited in the corporate account and of course she knew of the sums advanced to and deposited by her personally. Under such circumstances, appellant, if in any way defrauded, has not shown such fraud nor has she shown that by the exercise of ordinary care for the protection of her own interests she could not have discovered and prevented any supposed fraud. Thigpen v. Locke, 363 S.W.2d 247, 251 (Tex.1962). There is no merit to this contention.

The judgment of the trial court is affirmed.


author: CORNELIUS, Chief Justice.

text:
    EXXON CORPORATION, Appellant, v. EASTMAN KODAK COMPANY, Appellee.
    No. 8696.
    Court of Civil Appeals of Texas, Texarkana.
    Aug. 30, 1979.
    Rehearing Denied Oct. 23, 1979.

      Robert D. McGee, Houston, for appellant.
    Thomas W. Hathaway, Hathaway & Jackson, Tyler, for appellee.
   CORNELIUS, Chief Justice.

Exxon Corporation appeals from an adverse judgment in its suit against Eastman Kodak Company to recover indemnity for damages paid as a result of a pipeline explosion and fire.

The pipeline was built by Exxon to transport propane from its East Texas gasoline plants to Eastman’s facility located in Gregg and Harrison Counties. The parties executed a preliminary letter of intent and later a formal contract which provided generally that Exxon would construct, maintain and operate the pipeline, and Eastman would reimburse Exxon for its costs in doing so and would have the option to acquire title to the line. The contract obligated Exxon, at Eastman’s option, to carry liability insurance covering its operation and maintenance of the line. At first, Eastman required Exxon to carry such insurance, but later Eastman requested that the policy not be renewed unless Exxon wished to do so for reasons of its own. The reason for Eastman’s decision was stated in its Exhibit B-8:

“Reference is made to attached letter from Humble dated January 23, 1958 on the subject of pipeline casualty insurance. This policy was discussed on January 27, 1958 with Messrs. G. L. Dickinson and J. S. Witt. It was concluded that we were no longer interested in the policy if we could not also be named insured.
Mr. Dickinson pointed out from the manual that we could not be named. He agrees with USF & G that we are covered under our own liability policy.
We have written Humble that unless they desire to continue the coverage, for reasons of their own, the policy may be cancelled.”

Exxon did not renew the policy. After the pipeline had been in use for some twenty years it developed a leak which ultimately caused an explosion and fire in which one person was killed and another was severely injured. It is stipulated that the leak was due to Exxon’s negligence. Exxon paid $2,148,305.82 in damage judgments and attorney’s fees because of the accident, and then sought recovery of that amount from Eastman on the basis that the contract between them provided that Eastman would indemnify Exxon against losses of that type even though the losses were the result of Exxon’s negligence.

Trial was to the court with most material facts stipulated. The trial judge rendered a take nothing judgment supported by written findings of fact and conclusions of law. The basis of his ruling was that the contract did not, as Texas law requires, express in clear and unequivocal terms an obligation on Eastman’s part to indemnify Exxon against the consequences of its own negligence.

The correctness of the judgment below depends upon the proper interpretation of the contract. To make such an interpretation we must first review several basic principles of indemnity and contract law, and then examine the pertinent contractual provisions in the light of those principles.

An indemnity agreement will not be construed to protect the indemnitee against the consequences of his own negligence unless the contract so provides in clear and unequivocal terms. Fireman’s Fund Ins. Co. v. Commercial Standard Ins. Co., 490 S.W.2d 818 (Tex.1972); Sira & Payne, Inc. v. Wallace & Riddle, 484 S.W.2d 559 (Tex.1972); Joe Adams & Son v. McCann Construction Company, 475 S.W.2d 721 (Tex.1972); Spence & Howe Construction Co. v. Gulf Oil Corp., 365 S.W.2d 631 (Tex.1963); Mitchell’s, Inc. v. Friedman, 303 S.W.2d 775 (Tex.1957). But it is not necessary that the contract, in certain words, expressly state the obligation. Fireman’s Fund Ins. Co. v. Commercial Standard Ins. Co., supra; Joe Adams & Son v. McCann Construction Company, supra; Spence & Howe Construction Co. v. Gulf Oil Corp., supra; James Stewart & Co. v. Mobley, 282 S.W.2d 290 (Tex.Civ.App. Dallas 1955, writ ref’d). It is only necessary that the agreement clearly reveal such an intention, so that the indemnitor will have fair notice of the extent of his obligation. Joe Adams & Son v. McCann Construction Company, supra; Spence & Howe Construction Co. v. Gulf Oil Corp., supra; Mitchell’s, Inc. v. Friedman, supra; Houston & T.C.R. Co. v. Diamond Press Brick Co., 111 Tex. 18, 222 S.W. 204 (Tex.Com.App.1920, holding approved). It has been said that an exception to the “clear terms” rule obtains when the contract provides for indemnity against injuries or damages caused by defects in certain premises or resulting from the maintenance or operation of a specified instrumentality. Fireman’s Fund Ins. Co. v. Commercial Standard Ins. Co., supra; Mitchell’s, Inc. v. Friedman, supra; Houston & T.C.R. Co. v. Diamond Press Brick Co., supra. That proposition is not a true exception, however, but in reality is only an application of the general rule, for when indemnity is expressed with reference to specific premises or instrumentalities the indemnitor necessarily knows that he is assuming full responsibility for losses in connection with those particular premises or instrumentalities, regardless of whose negligence may cause the losses. Joe Adams & Son v. McCann Construction Company, supra; Spence & Howe Construction Co. v. Gulf Oil Corp., supra; James Stewart & Co. v. Mobley, supra.

We have no difficulty in determining that several provisions of the Exxon-Eastman contract clearly and unequivocally express the intention that the indemnity obligation will include damages arising from the operation and maintenance of the pipeline even though such damages are the result of Exxon’s negligence. The following quotations from the contract amply demonstrate that fact:

CONTRACT, Article II, Page 3, Lines 20, 21:

“EASTMAN agrees to reimburse HUMBLE for its costs and expense in operating . the pipeline, .”.

CONTRACT, Article II, Page 3, Lines 7-14:

“. . . HUMBLE shall keep an accurate record of its expenditures in carrying out said obligation, . . . The items of expense . . . both in . construction of said line and the operation (Not including pumping costs) and the maintenance thereof, shall be in accordance with those listed in the Accounting Procedure attached hereto . . . ”.

ACCOUNTING PROCEDURE, Article I, Paragraph 8:

“. . . Operator shall charge the Pipe Line Account with the following items:
8. All costs and expenses of litigation, . for the protection of each party hereto including attorney’s fees and expenses as hereinafter provided, together with all judgments obtained against the Pipe Line Account or the subject matter of this agreement; actual expenses incurred by any party or parties hereto in securing evidence for the purpose of defending any action or claim prosecuted or urged against the Pipe Line Account or the subject matter of the agreement

ACCOUNTING PROCEDURE, Article I, Paragraph 8A:

“Pipe Line Operator shall promptly notify Non-Operator of the initiation or filing by third parties of any litigation or claim arising out of or connected with the performance of said agreement. Non-Operator shall have the right, at its option, to participate in the defense of any such litigation and to approve in advance the settlement of any such claim.”

CONTRACT, Article II, Page 4, Lines 5-9:

“. . . EASTMAN shall have the right of inspection of the line at any time and shall have the right to require changes in maintenance procedures and maintenance work done if in EASTMAN’S opinion such changes are required for safe and economical operation and maintenance.”

CONTRACT, Article X, Page 8:

“In the performance of this contract, HUMBLE agrees to carry public liability and property damage insurance in such amounts and limits and with such insurers as EASTMAN may request or approve. Premiums for such insurance shall be reimbursed HUMBLE by EASTMAN pursuant to the provisions of ‘Exhibit A’ hereof (Accounting Procedure).” (parenthesis supplied.)

ACCOUNTING PROCEDURE, Article I, Paragraph 10 A:

“Premiums for workmen’s compensation insurance, and any other insurance carried by Pipe Line Operator on the Pipe Line or its operations; together with all expenditures incurred and paid in settlement of claims or judgments not recovered from the insurance carrier to fully discharge all liability of Pipe Line Operator ensuing from an accident occurring on or in connection with operations for the benefit of the Pipe Line account.”

ACCOUNTING PROCEDURE, Article I, Paragraph 10B:

“If no insurance is carried on any or all of the above or other risks, all actual expenditures incurred and paid by the Pipe Line Operator in settlement of any and all losses, claims, damages, judgments, and any other expenses including legal services shall be charged to the Pipe Line account.”

ACCOUNTING PROCEDURE, Article I, Paragraph 14:

“Any other expenditures incurred by Pine Line Operator for the necessary and proper construction, maintenance, and operation of the Pipe Line.”
(All emphasis supplied.)

Since Exxon was to be solely responsible for the operation and maintenance of the line, and in the normal course of events any claim for injury or damage arising out of those activities must necessarily be predicated upon the negligence of Exxon, it is obvious that the foregoing provisions contemplate indemnity to Exxon from losses due to its own negligence. However, two provisions of the contract, at least superficially, appear to be repugnant to those just quoted. For example:

CONTRACT, Article II, Page 3, Lines 17-19:

“HUMBLE shall not be liable or responsible for the results of line breakage or other such occurrences, except those which are the result of HUMBLE’S negligence or willful acts.”

ACCOUNTING PROCEDURE, Article I, Paragraph 7:

“. . . Operator shall charge the Pipe Line Account with the following items:
7. Damages or losses incurred by fire, flood, storm, or from any other cause not controllable by Pipe Line Operator through the exercise of reasonable diligence.”

Because of the supposed repugnancy, the trial court disregarded the contractual provisions we first quoted and gave effect to those later quoted, concluding that the contract did not protect Exxon from the results of its own negligence. In that respect we believe the learned trial judge erred. When the cardinal rules of contract construction are applied to the contract involved here, there is no repugnancy, and the clear and specific provisions describing the extent of Eastman’s indemnity obligation remain un-impeached.

In the interpretation of a contract the whole agreement must be considered, and the object is not to determine what the parties meant to say, but the meaning of what they did say. City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515 (Tex.1968); Caranas v. Morgan Hosts-Harry Hines Boulevard, Inc., 460 S.W.2d 225 (Tex.Civ.App. Dallas 1970, no writ). Provisions which are apparently conflicting are to be reconciled and harmonized, if possible, by reasonable interpretation so that the entire agreement can be given effect. Southland Royalty Co. v. Pan American Petro. Corp., 378 S.W.2d 50 (Tex.1964); Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154 (1951); Young v. De La Garza, 368 S.W.2d 667 (Tex.Civ.App. Dallas 1963, no writ); 3 Corbin on Contracts, Sec. 547, p. 173, n. 17 (1960); 13 Tex.Jur.2d Contracts, Sec. 142, p. 323. And where an apparent repugnancy renders the contract ambiguous, consideration may be given to the subject matter of the contract and to all the circumstances surrounding its execution, including prior and contemporaneous expressions, negotiations and transactions, not for the purpose of varying or adding to the contract, but for the purpose of discovering the intention with which the words were used. City of Pinehurst v. Spooner Addition Water Co., supra; Trinity Universal Ins. Co. v. Ponsford Brothers, 423 S.W.2d 571; (Tex.1968); Universal C.I.T. Credit Corp. v. Daniel, supra; Remington Rand, Inc. v. Sugarland Industries, 137 Tex. 409, 153 S.W.2d 477 (1941); Caranas v. Morgan Hosts-Harry Hines Boulevard, Inc., supra.

As noted earlier, the trial court based its judgment mainly upon a finding that the quoted contractual provisions were repugnant. (Conclusions of law 3 and 7). Proceeding from that premise, the court applied various secondary rules of contract interpretation to reach its ultimate conclusion that the first quoted provisions must be disregarded and that those quoted later should be given effect. Such an approach is improper, however, because an effort must first be made to reconcile the apparent re-pugnancies so that the entire agreement can be given effect. It is only after such an effort fails and the provisions are in irreconcilable conflict, that the secondary rules of interpretation such as those favoring specific provisions over general, first stated provisions over later ones, and a construction against the scrivener are to be applied. Southland Royalty Co. v. Pan American Petro. Corp., supra; Hegar v. Tucker, 274 S.W.2d 752 (Tex.Civ.App. Galveston 1955, writ ref’d n. r. e.).

The contract provisions first quoted which clearly say that Eastman will indemnify Exxon against all accidents and injuries to third parties arising or resulting from Exxon’s operation and maintenance of the pipeline, a specific instrumentality, can be avoided in only one of two ways: either by assuming that the parties mistakenly put those provisions in the contract; or by assuming that the parties intended to place the provisions in the agreement, but nevertheless did not intend for the words to mean what they so very plainly say. Neither can properly be done. The courts must presume that the parties intended, not only to include in their contract every provision contained in it, but also that they intended every clause to have some effect and in some measure to evidence their agreement. City of Pinehurst v. Spooner Addition Water Co., supra; R. H. Sanders Corp. v. Haves, 541 S.W.2d 262 (Tex.Civ.App. Dallas 1976, no writ); Phillips v. Inexco Oil Co., Inc., 540 S.W.2d 546 (Tex.Civ.App. Tyler 1976, writ ref’d n. r. e.). As stated by Justice Norvell in Spence & Howe Construction Co. v. Gulf Oil Corp., supra:

“. . . We cannot read clearly stated provisions out of a contract to which the parties have agreed.” P. 637.

Indeed, it is the universally accepted rule that we must reject any interpretation which will nullify one or more of the contractual provisions. Southland Royalty Co. v. Pan American Petro. Corp., supra; Woods v. Sims, 154 Tex. 59, 273 S.W.2d 617 (1954); Benge v. Scharbauer, 152 Tex. 447, 259 S.W.2d 166 (1953); Texas Pacific Indemnity Co. v. Building Material Dist., Inc., 502 S.W.2d 922 (Tex.Civ.App. Dallas 1973, no writ). To find against indemnity in this case would compel us to violate that rule and to disregard numerous explicit contractual clauses. A reasonable attempt to reconcile the apparent repugnancy, however, leads to a contrary result and one which gives effect to all of the provisions of the contract. For example, we think a reasonable interpretation of the two provisions which seemingly exclude indemnity for Exxon’s negligence is that such provisions refer to equipment damage or a loss of products rather than to accidents or injuries involving third parties. The preliminary letter of intent supports such a conclusion as it provides that:

“Humble further agrees to operate and maintain the line, . . . but you (Eastman) will assume the risk of line losses, and Humble will only be liable for a loss of products caused by its negligence or willful acts.” (Emphasis and parenthesis supplied.)

The contract provisions relied upon by Eastman are actually confirmatory of the foregoing provision of the letter of intent, and can be easily and reasonably reconciled with the other contractual provisions expressly providing for indemnity. For example, the provision in Article II, Page 3 of thé Contract which states that:

“HUMBLE shall not be liable . . . for the results of line breakage or other such occurrences, except those which are the result of HUMBLE’S negligence or willful acts.”,

when considered to refer to damage to the equipment or a loss of products due to line breakage, is compatible with the letter of intent, and is not repugnant to, but is consistent with, the other provisions of the contract. And significantly, it does not mention litigation, judgments or claims resulting from accidents occurring in connection with the pipeline’s operation and maintenance, as does the language contained in Article I, Paragraphs 8 and 10 of the Accounting Procedure. The remaining provision relied upon by Eastman, namely:

“. . Operator shall charge the Pipe Line Account with the following items:
7. Damages or losses incurred by fire, flood, storm or from any other cause not controllable by Pipe Line Operator through the exercise of reasonable diligence.”,

can be reasonably interpreted as providing indemnity even against damage to the equipment or a loss of products resulting from occurrences beyond Exxon’s control, commonly known as acts of God.

We think the nature of the business arrangement between Exxon and Eastman confirms our interpretation. The purpose was to transport petroleum products to Eastman for use in its plant. Eastman agreed that if Exxon would build and operate the pipeline (which would become Eastman’s property at its option) it would reimburse Exxon for all the costs incurred in doing so. But obviously Eastman would not want to indemnify Exxon against its willful or negligent damage of the equipment, or assume responsibility for products placed in the line, for which it would be obligated to pay, but which might be lost because of Exxon’s negligence. Provisions were therefore placed in the agreement making Exxon liable for those usual consequences of line breakage. Otherwise, the contract placed the ultimate authority for the safe and efficient operation of the line upon Eastman, and required Exxon, at Eastman’s option and expense, to carry liability insurance to protect the pipeline account from claims such as those Exxon paid here.

Eastman seems to take the position here that the contract is not ambiguous, and therefore the letter of intent is not admissible to aid in the construction of it; yet its brief insists that the contractual provisions are repugnant and that secondary rules of contract interpretation should be used to determine the contract’s meaning. But if material contract provisions are repugnant, the contract is ambiguous, and preliminary expressions and negotiations are admissible to assist in determining the intent of the parties. 3 Corbin on Contracts, Sec. 547, p. 173, n. 17 (1960); 13 Tex.Jur.2d Contracts, Sec. 142, pp. 323-324. And a party may not assert that a contract is ambiguous or repugnant and at the same time insist that the circumstances of its execution may not be considered for the purpose of explaining the ambiguity or reconciling the apparent repugnancy. See Maizel v. Bush, 337 S.W.2d 337 (Tex.Civ.App. Dallas 1960, writ ref’d n. r. e.).

We are aware of the rule that if the contract provisions regarding indemnity against one’s own negligence are not clear and unequivocal, parol evidence is not admissible to show that such an indemnity was intended, Sira & Payne, Inc. v. Wallace & Riddle, supra, but we have not resorted to the parties’ letter of intent in order to establish an intention which is not otherwise expressed in the contract. The intent to indemnify with respect to a specific instrumentality is clearly and unequivocally expressed in the contract provisions we have quoted. The letter is considered only to explain other ambiguous provisions, and to resolve an apparent repugnancy.

Eastman also urges that the letter of intent should not be considered because one may infer, as did the trial court in Finding No. 4, that the formal contract, being a product of more detailed negotiation than the letter, departed from the original concept of indemnity as outlined in the letter. The answer to that contention is that, as expressed by the trial court in Finding No. 10, there is no evidence whatsoever as to any of the details of those discussions and negotiations. Furthermore, it can hardly be assumed that a change in the scope of indemnity was reflected in the formal contract when that contract still contains explicit provisions of indemnity which confirm the one contained in the preliminary letter of intent.

It seems clear to us that the only way to reconcile the apparent repugnancy and to give effect to all the provisions of the contract is to interpret it as providing indemnity to Exxon for all claims, settlements and judgments on behalf of third parties arising out of the operation or maintenance of the specific instrumentality, whether caused by Exxon’s negligence or not, but as excluding indemnity for damage to the equipment or a loss of products due to line breakage or line accidents unless such loss was due to some act or occurrence beyond Exxon’s control.

All of Exxon’s points of error are sustained except Numbers 2, 5, 11, 12, 20 and 21, which are overruled. The judgment of the trial court is reversed and judgment is here rendered that Exxon recover from Eastman Kodak Company the sum of $2,148,305.82 with interest at the rate of 9% per annum from June 20, 1978, until paid.

      . Finding of fact 15 and conclusion of law 7.

      . In a case involving the converse of the situation here (contract requiring the indemnitor, at his expense, to carry liability insurance) our Supreme Court said such a requirement should not be considered evidence to establish an intent to indemnify against the consequences of the indemnitee’s negligence when such an intent is not otherwise clearly expressed in the contract, but we see no reason why, when such an intent is clearly expressed by the contractual provisions as in this case, a provision requiring the indemnitee to carry insurance on itself at the expense of the indemnitor cannot be considered in explaining other ambiguous or apparently conflicting provisions of the contract. Fireman’s Fund Ins. Co. v. Commercial Standard Ins. Co., supra.


author: RAY, Justice.

text:
    John ALSTON et ux., Appellants, v. Linda Joyce RAINS, Appellee.
    No. 8697.
    Court of Civil Appeals of Texas, Texarkana.
    Aug. 31, 1979.
    Rehearing Denied Oct. 9, 1979.

      John M. Harris, Irving, for appellants.
    Mitchell D. Stevens, Dallas, for appellee.
   RAY, Justice.

This is a habeas corpus proceeding. Linda Joyce Rains, mother of Sarannah Elizabeth Rains, filed her application for writ of habeas corpus seeking the return of her child from her (Linda’s) parents, John and Joan Alston, appellants. The trial court found that the child had been illegally confined and restrained by the maternal grandparents and ordered the child returned to the mother, Linda Joyce Rains. The maternal grandparents have perfected their appeal and submit one point of error for our consideration.

The single point of error is as follows:

"The Trial Court erred in failing to give full faith and credit to that Order Appointing Permanent Guardian of The Person (Respondent’s Exhibit No. 1, Second Document) of the Probate Court of Franklin County, Arkansas, Ozark District, awarding the permanent guardianship of the person of Sarannah Elizabeth Rains, A Minor, to John H. Alston and Joan Alston.”

Linda Rains is a college graduate who is blind. On June 7, 1975, Linda married Calvin Homer Rains (who is not blind) and nine months later, on March 28, 1976, Sarannah Elizabeth Rains, their daughter, was born. Shortly after Sarannah’s birth, the Rains began having marital problems and in July of that year, Linda took Sarannah to live with her parents, the Alstons, in Ozark, Arkansas, until she and Calvin could resolve their problems. Linda and Calvin Rains separated on October 8, 1976; later that month, on October 25, Linda petitioned the Domestic Relations Court of Dallas County, Texas, for a divorce. During this same time period, she asked her parents for the return of her child, but the Alstons refused to return Sarannah to Dallas. On December 30, 1976, the Domestic Relations Court granted Linda’s petition for divorce, named her managing conservator of Sarannah Elizabeth Rains, and ordered Calvin Homer Rains to pay $150.00 per month child support. The Alstons were not parties to this suit.

In early February, 1977, the Alstons petitioned the Probate Court for the Ozark District of Franklin County, Arkansas, to be appointed permanent guardians of Sar-annah Elizabeth Rains. On April 6,1977, a hearing on this application was held in Arkansas. Present before the court were the Alstons with their attorney, Calvin Rains, and Linda Joyce Rains with her attorney. Sarannah was also present before the court. A full hearing was held with both sides calling witnesses. The court determined that it would be in the best interest of the child to appoint the Alstons permanent guardians, and therefore granted their application. In addition, the court carefully set out extensive visitation rights. The judgment of that court was subsequently affirmed by the Arkansas Supreme Court in Rains v. Alston, 576 S.W.2d 505 (Ark.1979). Initially, the supreme court held that Linda was not fit to have custody because she was blind. However, on rehearing, the court clarified its opinion and stated that there were other reasons to support the decision of the probate court.

On April 21,1978, pursuant to an order of the Probate Court of Franklin County, Arkansas, the Alstons brought Sarannah to Dallas, Texas, for a visit with her mother. Linda was waiting for them with a writ of habeas corpus for the return of the child. A hearing was held in Dallas on the writ on April 28, 1978, with both sides present and represented by counsel, wherein the trial judge refused to recognize the Arkansas guardianship decree and ordered that Linda Rains have custody of the child pursuant to the previous decree of the Dallas court awarding Linda the managing conservator-ship of Sarannah. It is from this action that the Alstons appeal, asserting that the guardianship judgment is entitled to full faith and credit.

The controversy surrounding the custody of this minor child has been whether or not Linda can properly care for the child. The Probate Court of Franklin County, Arkansas, and the Arkansas Supreme Court have concluded that Linda cannot properly care for the child. However, that question is not before this Court for determination. The issue presented here is whether or not the District Court of Dallas County should have given full faith and credit to the judgment of the Probate Court of Franklin County, Arkansas, pursuant to the information it had before it at the habeas corpus hearing.

Article IV, Section 1 of the United States Constitution provides the following:

“Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

Normally, a final judgment in a child custody matter rendered by a court of another state is entitled to full faith and credit in the courts of Texas. However, proof of a material change of conditions since the decree of the sister state will support a change of custody if such would be for the best interest of the child. Bukovich v. Bukovich, 399 S.W.2d 528 (Tex.1966). Another exception to the requirement of full faith and credit applies when the court which rendered the judgment was without jurisdiction of the cause of action or of the parties. Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577 (1944); McCarty v. Walker, 538 S.W.2d 861 (Tex.Civ.App.Texarkana 1976, no writ); Tex. Family Code Ann. § 14.10(b)(1) (Supp.1979).

Tex.Family Code Ann. § 14.10 (Supp. 1979) governs the use of habeas corpus to regain possession of a minor child. Under this section, a court shall disregard any cross-action or motion for modification unless it finds that (1) the prior order was granted by a court that lacked jurisdiction, § 14.10(b)(1); (2) the child has not been in the relator’s possession and control for the six months immediately preceding the filing of the petition for the writ, § 14.10(b)(2); (3) there is a serious immediate question concerning the welfare of the child, § 14.-10(c); or (4) the right to possession of the child is not governed by a court order, § 14.10(e). The only exception raised by the facts of this case is whether the Arkansas probate court had jurisdiction to entertain a suit for the guardianship of the person of the minor child.

The child was present and within the jurisdiction of the Probate Court of Franklin County, Arkansas, and Linda Joyce Rains answered and appeared in that action in person and by and through her attorney. We must therefore hold that the Arkansas court had jurisdiction to determine guardianship of the person of Saran-nah Elizabeth Rains. Restatement (Second) of Conflict of Laws § 79 (1971) provides that a state has power to exercise judicial jurisdiction to determine the custody, or to appoint a guardian of the person of a child or adult who is present in the state, or who is neither domiciled nor present in the state if the controversy is between two or more persons who are personally subject to the jurisdiction of the state. The minor child was physically present in Arkansas and Linda voluntarily appeared and subjected herself to the personal jurisdiction of the Arkansas probate court. Section 79, Restatement (Second) of Conflict of Laws has been recognized by the courts of Texas and Arkansas as a basis to assume jurisdiction in a child custody matter. Hinds v. Hinds, 491 S.W.2d 448 (Tex.Civ.App.San Antonio 1973, no writ); Bonds v. Lloyd, 259 Ark. 557, 535 S.W.2d 218 (1976). Since the Arkansas court had jurisdiction over the action and over the parties, the trial court erred in refusing to extend full faith and credit to the Arkansas decree and should have refused to grant the application for writ of habe-as corpus.

In a suit brought under Tex.Family Code Ann. § 14.10, supra, the trial court must first determine if the relator is entitled to possession of the child by virtue of a court order. If the court so finds, and unless one of the statutory exceptions listed under § 14.10 applies, the duty of the court is to deliver immediate possession of the child to the party named in the court order. Strobel v. Thurman, 565 S.W.2d 238 (Tex.1978); Trader v. Dear, 565 S.W.2d 233 (Tex.1978); Saucier v. Pena, 559 S.W.2d 654 (Tex.1977); Lamphere v. Chrisman, 554 S.W.2d 935 (Tex.1977); Standley v. Stewart, 539 S.W.2d 882 (Tex.1976). Justice Daniel in his concurring opinion in Trader v. Dear, supra, states that “Even a court of continuing jurisdiction, however, is bound by the mandatory language of Section 14.-10. It must grant a writ of habeas corpus for the delivery of possession of a child in accordance with an existing court order without any delay for separate or simultaneous consideration of a pending motion for modification of the existing custody order and without consideration of the best interests of the child. . . .”

In Lamphere v. Chrisman, supra, Chief Justice Greenhill discusses the effect of § 14.10, supra, on motions for change of custody raised at a habeas corpus proceeding and states:

“ . . . Section 14.10 does not require the trial court to dismiss pending suits or motions for change of custody; it requires only that these matters be disregarded until such time as the application for the writ of habeas corpus is disposed of. Therefore, after the writ is either issued or denied, the trial court is free to continue with the disposition of any suits or motions for change of custody. The jurisdictional or other questions raised in the change of custody suit may then be considered on appeal from the final judgment in that suit. . . . ”

A habeas corpus proceeding is not the proper vehicle to relitigate custody of a child as Linda Rains has attempted to do in this case. The only determination the trial judge should have made was whether Linda was entitled to the possession and custody of the minor child by virtue of a court order. Since the Arkansas judgment was entitled to full faith and credit, the Alstons were entitled to possession of the child and it was error to deliver the child to Linda Joyce Rains.

While the holding in Lamphere, supra, suggests that once possession of the child has been determined pursuant to § 14.10, supra, the trial judge is then free to re-open the question of custody, it must be kept in mind that due process must be afforded the out of state residents.

Section 14.10 of the Tex.Family Code Ann. represents the public policy of this State concerning child custody jurisdiction. Texas courts should no longer provide a forum to parties who flee across state lines merely seeking to relitigate child custody disputes. Although we may feel compassion for this blind mother who has struggled valiantly to retain possession of her child, we must bow to the greater policy consideration of discouraging forum shopping in custody disputes.

Judge Bernice Kizer, Probate Judge for the Ozark District of Franklin County, Arkansas, should be commended for her thoroughness in determining the facts surrounding the custody of this minor child and in striving to reach a result that would be in the best interests of the child and the mother. Judge Kizer’s court has been continually open for determining the ability of the mother to care for the child and we feel sure that the Probate Court of Franklin County, Arkansas, will remain open for a redetermination of custody upon a showing of changed conditions which would perhaps entitle the mother of this child to regain custody.

In summary, Linda was asserting the right to possession of the minor child pursuant to the Texas decree appointing her the managing conservator of the child. The Alstons, who were not parties to the divorce decree, were asserting their rights to possession under a later and superior judgment that was entitled to full faith and credit because both Linda and Calvin had voluntarily submitted themselves to the jurisdiction of the Arkansas probate court. We therefore hold that the Arkansas decree was entitled to full faith and credit and the Arkansas decree governs the right of possession because it is the last decree entered concerning possession over which a court had jurisdiction of the parties and the subject matter. The immediate right to possession of the child in this case was governed by the Arkansas court order rather than the Texas court order and thus, Linda was not entitled to possession of the child under § 14.10. Because we have held that the Arkansas decree is the governing court order, it follows that Linda was not entitled to have her application for writ of habeas corpus granted and the trial court should have returned the child to the possession of the Alstons immediately. Giving full faith and credit to the Arkansas decree in the habeas corpus proceeding does not necessarily forestall the trial court from relitigating custody subsequent to the delivery of the child to the Alstons if there is a showing of a material change of conditions and the necessary requisites of due process can be met. Bukovich v. Bukovich, supra. This is true because the best interest of the child is paramount to giving full faith and credit to a foreign decree.

The judgment of the trial court is reversed and judgment is here rendered that the application for writ of habeas corpus be in all things denied and that Linda Joyce Rains forthwith deliver Sarannah Elizabeth Rains into the possession and custody of John H. Alston and Joan Alston.

ON MOTION FOR REHEARING

Appellee Rains asserts in her motion for rehearing that this Court has erred in giving full faith and credit to the Arkansas decree and in holding that the Arkansas guardianship decree was superior to the pri- or Texas judgment which awarded custody of the minor child to appellee. We have reexamined those issues and are persuaded that our original opinion was correct. However, we again reiterate and strongly point out that this Court has not been called upon to review questions involving the best interest of the child or who is best fit to have custody of the minor child. Those are questions which have been litigated prior to the institution of the habeas corpus proceeding and are matters which may be subject to relitigation in the trial court upon a showing of a substantial change in conditions. We want it made abundantly clear that this Court has not decided that Linda Joyce Rains is incapable of caring for her minor child. That question has not been raised or presented to this Court for review. Many handicapped people are capable of providing adequate care for their minor children as noted in the recent case of In Re Marriage Of Carney, 24 Cal.3d 725, 157 Cal.Rptr. 383, 598 P.2d 36 (1979). In an excellent opinion by Justice Mosk, it is stated that sometimes a handicap may well be an asset because “ . . . few can pass through the crucible of a severe physical disability without learning enduring lessons in patience and tolerance.” The court wisely observes that a handicapped parent is a whole person to the child who needs the parent’s affection, sympathy and wisdom to deal with the problems of growing up and that talking to the child and teaching the child might well be the most valuable service a parent can render. The California Supreme Court points out succinctly that “ . . . if a person has a physical handicap it is impermissible for the court simply to rely on that condition as prima facie evidence of the person’s unfitness as a parent or of probable detriment to the child; rather, in all cases the court must view the handicapped person as an individual and the family as a whole. To achieve this, the court should inquire into the person’s actual and potential physical capabilities, learn how he or she has adapted to the disability and manages its problems, consider how the other members of the household have adjusted thereto, and take into account the special contributions the person may make to the family despite — or even because of— the handicap. Weighing these and all other relevant factors together, the court should then carefully determine whether the parent’s condition will in fact have a substantial and lasting adverse effect on the best interest of the child.” We agree with the opinion of the California Supreme Court that it is erroneous to presume that a handicapped parent cannot share a meaningful lifelong relationship with his or her minor child. Whether or not the Arkansas trial court inquired into all such matters is not before us for review. The Arkansas decree is final and it must be given full faith and credit by the courts of Texas.

The motion for rehearing is overruled.

      . See generally me cases cited in Butler v. Butler, 577 S.W.2d 501 (Tex.Civ.App.Texarkana 1978, writ dism’d), related to notice, minimum contacts and other problems concerning due process. The State of Arkansas has recently adopted the Uniform Child Custody Jurisdiction Act (Sec. 91, Arkansas Session Laws, effective July 20, 1979.) Professor Sampson has commented on the safeguards provided by this Act. See Sampson, Jurisdiction in Divorce and Conservatorship Suits, 8 Tex.Tech L.Rev. 159 at 232 (1976). Prof. Sampson indicates that under existing Texas law, which has not adopted the Uniform Act, even greater restraint should be exercised by the Texas court before exercising its continuing jurisdiction where the domicile of the child has changed in the interim. See 8 Tex.Tech L.Rev. at 235.


author: DIES, Chief Justice. KEITH, Justice,

text:
    Bob BULLOCK, Comptroller of Public Accounts of the State of Texas, et al., Appellants, v. DALLAS POWER AND LIGHT COMPANY, Texas Electric Service Company, Southwestern Electric Service Company, Community Public Service Company and Texas Power and Light Company, Appellees.
    No. 8299.
    Court of Civil Appeals of Texas, Beaumont.
    Sept. 6, 1979.
    Rehearing Denied Oct. 4, 1979.
    R. L. Lattimore, Asst. Atty. Gen., Austin, for appellants.
    Sanders W. Shapiro, Austin, for appel-lees.
   DIES, Chief Justice.

This is a suit by the Comptroller of Public Accounts, Treasurer, and Attorney General, of the State of Texas, for additional franchise taxes from various public utility corporations. Trial was to the court without a jury, who ruled for the utility corporations, and from which the Comptroller, et al, appeal. The Comptroller of Public Accounts will be referred to in this opinion as the appellant, and the various utility corporations as the appellees.

In 1962 to stimulate the economy, the Internal Revenue Code allowed an investment credit for corporate plant and equipment purchase. This credit is given in the form of a federal tax reduction equal in amount to a certain percentage of the purchase price of the asset (10 percent in the cases of appellees).

Corporate accounting practitioners developed two methods of dealing with this investment credit. The great majority utilize a “flow through method,” which recognizes that a reduction in expense (income tax) “flows through” in retained earnings, and therefore surplus, in the year it is given (the year the equipment is purchased).

Appellees herein, on the other hand, treat this under the “deferral method” wherein the amount is initially treated as a liability and the amount in this account is moved into retained earnings “ratably” over the life of the asset for which the credit was given. This latter method produces less franchise tax.

The Comptroller in computing the franchise tax allows depreciation for the equipment as its use decreases its value. And until 1975 the Comptroller allowed either accounting method in computing the tax due for the tax credit.

In 1975 appellant (Comptroller) established that deferred investment credits are includible in surplus (Ruling .015).

Tex.Tax.-Gen.Ann. art. 12.01(1) (Vernon Supp.1978) provides in part:

“(a). Basic tax: Four Dollars and Twenty-five Cents ($4.25) per $1,000 or fractional part thereof applied to that portion of the sum of the stated capital, surplus, and undivided profits . . . .”

This article supplies a definition for “stated capital” as the same as used in Article 1.02(A)(11) of Tex.Bus.Corp.Act.Ann. (Vernon 1956), but it does not define “surplus.” The Texas Business Corporation Act, Article 1.02(A)(12) defines “Surplus” as being “the excess of the net assets of a corporation over its stated capital.”

Appellees argue that their deferral method of accounting is that required by the Internal Revenue Code and that appellant must therefore accept it. However, the appellant (Comptroller) is not primarily interested in a taxpayer’s accounting procedure but its true financial condition as applied to the franchise tax. Here the ten percent tax credit is acquired by appellees immediately when they purchase the equipment. It is money appellees do not have to expend that year and increases or “flows through” to their surplus immediately and not over a period of years, as a depreciating or appreciating item of equipment.

In United North & South Dev. Co. v. Heath, 78 S.W.2d 650 (Tex.Civ.App.—Austin 1934, writ ref’d), the court held that an amount which represented the appreciated value of an oil lease owned by the taxpayer constituted surplus for the purposes of the franchise tax. And, Fulgham v. Gulf, Colorado & Santa Fe Ry. Co., 288 S.W.2d 811 (Tex.Civ.App.—Austin 1956, writ ref’d n. r. e.), held that the increased value of the taxpayer’s railroad line due to relocation by the federal government constituted “surplus.” Calvert v. Houston Lighting & Power Co., 369 S.W.2d 502 (Tex.Civ.App.—Austin 1963, writ ref’d n. r. e.), relied upon by appellees is not persuasive here. In that case the court found that an amount carried on the books as “Accumulated Deferred Federal Taxes on Income — Relating to Accelerated Amortization: to be an expense and therefore not properly taxed for franchise purposes as ‘surplus.’ ”

Appellees urge that appellant’s allowance of their system of computation from 1962 until 1975 became established law and can now only be changed by the legislature, citing Humble Oil & Ref. Co. v. Calvert, 414 S.W.2d 172 (Tex.1967). We believe appellees’ reliance on this case is misplaced. There, after forty-two years of interpreting “business done in Texas,” he changed his test. We do not have such a long standing rule here. In fact, the record shows that most corporations have and do follow the “flow through” system required by appellant’s Rule .015. We hold that this Rule is the correct one for determining the franchise tax for the credit herein discussed and reverse the judgment of the trial court, remanding it to that court with instructions to enter judgment for the correct amount due under this ruling.

REVERSED and REMANDED with instructions.

KEITH, Justice,

dissenting.

I respectfully dissent.

After receiving much technical evidence relating to accounting and taxation, the trial court filed extensive findings of fact and conclusions of law, all adverse to the contentions of appellant. Without even mentioning the underlying facts found by the trial court, the majority has substituted its own findings for those based on the evidence. This, I submit, is impermissible.

The usual and general rule ordinarily applicable is this: If there is some evidence of a substantial and probative character to support the trial court’s findings of fact, they are controlling upon the reviewing court and will not be disturbed, even though the appellate court may have reached a different conclusion. Commercial Union Assurance Company v. Foster, 379 S.W.2d 320, 322-323 (Tex.1964); United States Fidelity & Guar. Co. v. Borden Metal Products Co., 539 S.W.2d 170, 172 (Tex.Civ.App.—Beaumont 1976, writ ref’d n. r. e.).

The parties stipulated that the American Institute of Certified Accountants promulgated two opinions regulating the treatment of the investment credit. Opinion No. 2 dated December 1962, concluded in paragraph 13:

“We conclude that the allowable investment credit should be reflected in net income over the productive life of acquired property and not in the year in which it is placed in service.”

This is the method used by the utility plaintiffs in this case. It is not the “flow through” method required by the defendant Comptroller.

Opinion No. 4 was issued in March 1964, and in paragraph 10 this conclusion is expressed:

“[Wjhile the method of accounting for the investment credit recommended in paragraph 13 of Opinion No. 2 should be considered to be preferable, the alternative method of treating the credit as a reduction of Federal income taxes of the year in which the credit arises is also acceptable.”

Thus, “flow through” is, at best, a poor second choice.

All of the expert witnesses for the parties, including professors of accounting, independent certified public accountants, and employees of the Comptroller agreed that the deferral method was not only proper but the preferred method of treatment. Indeed, the Comptroller approved a formal opinion in December 1967, the issue being stated to be:

“The issue presented by the hearing is to determine whether the deferred investment credit is to be treated as an increase in the surplus of the Company in the year in which it is earned or in the years in which it is amortized over the life of the depreciable property acquired.”

The Comptroller cited the controlling statute (which is unchanged except as to the rate of taxation) and concluded:

“Consequently, so long as the Taxpayer’s method of accounting is generally accepted, is reasonable, reflects the true operation and financial status of the taxpayer and is not prohibited then the Comptroller must give recognition to it. Taxpayer’s system of accounting for the investment credit is generally accepted, it is reasonable, it reflects the true financial status of the Company and it is not prohibited. Therefore, the Comptroller will not designate, for tax purposes, something to be surplus that is not generally accepted to be surplus nor will the Comptroller, for tax purposes, designate that to be income which is not generally accepted to be income, without additional legislative authority.” (emphasis supplied)

This report of the hearings examiner bears the signature of appellant’s predecessor and is dated December 8, 1967. The parties stipulate as to its genuineness and the fact that it controlled the subject until “Rule .015” was promulgated effective December 31, 1975.

Several sessions of the Legislature intervened between the date of the ruling quoted above and the promulgation of Rule .015. The Legislature took no action (except to raise the rate of taxation), nor did it change any of the definitions relating to the subject. The truth of the findings quoted above are not challenged by the Comptroller on this appeal.

I, for one, do not comprehend a system of taxation which equates a portion of the cost of an item of machinery as a profit during the year in which the machinery is purchased. Between 1967 and 1975 while there was a change in the personnel of the tax collector’s office, there was no change in the law which authorized a different treatment of the investment credit.

Being of the opinion that the trial court reached the correct results, I would affirm that judgment; consequently, I dissent from a reversal thereof.

      . “Ruling .015. Definition. ‘Surplus and Undivided Profits’ (herein referred to as surplus) is the excess of the net assets (total assets minus total debts) of a corporation over its stated capital . . . ; it includes all surplus accounts carried on the books and records, such as . deferred investment credit.

      . Article 1.02(A)(11) defines “stated capital” as the sum of: “(a) the par value of all shares of the corporation having a par value that have been issued,
      “(b) the consideration fixed by the corporation in the manner provided by law for all shares of the corporation without par value that have been issued, except such part of the consideration actually received therefor as may have been allocated to capital surplus in a manner permitted by law, and
      “(c) such amounts not included in paragraphs (a) and (b) of this subsection as have been transferred to stated capital of the corporation, whether upon the issue of shares as a share dividend or otherwise, minus all reductions from such sum as have been effected in a manner permitted by law.”

      . Comptroller admits to allowing utility companies to use this system from 1967-1975.

       This case involves five electric public utility companies. I find no evidence in the record to support the statement that a majority of corporate accounting practitioners, in the utility industry, “utilize a ‘flow through method’ ” of accounting.


text:
    Mark Melton MOORE, Appellant, v. CHARLES B. PIERCE FILM ENTERPRISES, INC. et al., Appellees.
    No. 8704.
    Court of Civil Appeals of Texas, Texarkana.
    Sept. 18, 1979.
    Rehearing Denied Oct. 23, 1979.

      J. Tom Wilson, Keck & Barnes, Dallas, for appellant.
    J. R. Hubbard, Hubbard, Patton, Peek, Haltom & Roberts, Texarkana, for appel-lees.
   CORNELIUS, Chief Justice.

Mark Melton Moore appeals from an adverse summary judgment rendered in his suit against Charles B. Pierce, Charles B. Pierce Film Enterprises, Inc., Charles B. Pierce Film Productions, Inc. and American International Pictures, Inc. Moore filed the suit because of the publication of a moving picture entitled “The Town That Dreaded Sundown”, which was produced by the defendant, and which involved a series of unsolved murders in Texarkana in the 1940’s. It was alleged that Moore’s deceased sister, one of the murder victims, was represented in the film by a character known as Emma Lou Cook, who was portrayed as a high school dropout and a woman of loose morals, and that her murder was portrayed in a particularly bloody and gruesome manner offensive to the public decency and in a manner that was not true. It was also asserted that the defendants had “ . . . intruded upon Plaintiff’s physical and mental solitude and seclusion by bringing back into the public eye a tragic and painful segment of Plaintiff’s life that Plaintiff has for many years consciously sought to avoid parading before the public”; and that the defendants had “ . appropriated private facts and disclosed them publicly, without Plaintiff’s permission and in a false light and in a particularly vulgar and patently offensive manner.” In other words, Moore was suing for an invasion of privacy. It should be noted that Moore himself was never portrayed or even mentioned in the film. Neither was Moore’s sister personally named in the production, nor was she portrayed except insofar as the role of Emma Lou Cook was based on her life and murder. Moore alleged that the resemblance of Emma Lou Cook to his sister was unmistakable to any one familiar with the events and with his family history, and consequently his and his family’s reputations had been damaged and an unlawful intrusion had been made upon his peace and solitude.

An individual’s legal right to privacy began to be recognized in this country with the publication in 1890 of an article by Samuel D. Warren and Louis D. Brandeis, 4 Harv.L.Rev. 193 (1890). As usually defined, the right is said to be the right of an individual to be left alone, to live a life of seclusion, and to be free from unwarranted publicity. Billings v. Atkinson, 489 S.W.2d 858 (Tex.1973). It is generally recognized that the right may be violated by any one of the following acts:

1. Intrusion upon the plaintiff’s physical solitude or seclusion.
2. Public disclosure of private facts about the plaintiff.
3. Publicity which places the plaintiff in a false light in the public eye.
4. Appropriation of the plaintiff’s name or likeness for the defendant’s benefit or advantage.

Prosser, Law of Torts § 112, p. 829 (3rd ed. 1964); Restatement (Second) of Torts, §§ 652B, 652C, 652D, 652E (1977).

Mr. Moore bases his cause of action upon acts described in the first and third categories. However, as the right of privacy is purely personal and terminates upon the death of the person whose privacy is invaded, Mr. Moore can recover in this case only if the law affords him a remedy for the invasion of his own privacy by an injury to his relational interest, i. e., his interest in a deceased relative. The right to such a remedy, where allowed, is referred to as a relational right of privacy.

No state court in Texas has yet decided whether a relational right to privacy will be recognized in this State, but the overwhelming weight of authority in other states is that an action for the invasion of privacy cannot be maintained by a relative of the person concerned, unless that relative is himself brought into unjustifiable publicity. See for example, Nelson v. Times, 373 A.2d 1221 (Me.1977); Young v. That Was The Week That Was, 423 F.2d 265 (6th Cir.1970); Cordell v. Detective Publications, Inc., 419 F.2d 989 (6th Cir.1969); Maritote v. Desilu Productions, Inc., 345 F.2d 418 (7th Cir.) cert. denied, 382 U.S. 883, 86 S.Ct. 176, 15 L.Ed.2d 124 (1965); Bradley v. Cowles Magazines, Inc., 26 Ill.App.2d 331, 168 N.E.2d 64 (1960); Kelly v. Johnson Publishing Company, 160 Cal.App.2d 718, 325 P.2d 659 (1958); Coverstone v. Davies, 38 Cal.2d 315, 239 P.2d 876 (1952); Kelley v. Post Publishing Co., 327 Mass. 275, 98 N.E.2d 286 (1951); Prosser, Law of Torts § 112, p. 843 (3rd ed. 1964); Anno., 18 A.L.R.3d 873 (1968). The Restatement takes the same position. Restatement (Second) of Torts § 6521 (1977). And the U. S. District Court for the Northern District of Texas, in a diversity action governed by Texas law, has concluded that Texas would follow the majority rule. Justice v. Belo Broadcasting Corporation, 472 F.Supp. 145 (N.D.Tex.1979). Indeed, so far as we have been able to determine, only three states by court decision, and three others by legislative enactment, have seen fit to recognize a cause of action for the violation of a relational right of privacy. See Cox Broadcasting Corporation v. Cohn, 231 Ga. 60, 200 S.E.2d 127 (1973); Bazemore v. Savannah Hospital, 171 Ga. 257, 155 S.E. 194 (1930); Douglas v. Stokes, 149 Ky. 506, 149 S.W. 849 (1912); and the comment at page 121 in the opinion of the Alabama Supreme Court in Smith v. Doss, 251 Ala. 250, 37 So.2d 118 (1948), and the statutes of Oklahoma, Utah and Virginia referred to in note 66, § 112, p. 843, Prosser, Law of Torts (3rd ed. 1964). Sound policy considerations support the majority rule. The law is rightfully wary of claims for inj mies which are purely emotional and where the difficulty of judging the validity of complaints which are essentially subjective makes the danger of spurious actions substantial. Too, it would be difficult to fix the limits of such a right of action, and in the absence of well defined limits the allowance of such an action would, as stated by the court in Coverstone v. Davies, supra, at 881:

“ . . . open the courts to persons whose only relation to the asserted wrong is that they are related to the victim of the wrongdoer and were therefore brought unwillingly into the limelight. Every defamation, false imprisonment, and malicious prosecution would then be an actionable invasion of the privacy of the relatives of the victim.”

Although the exact question has not previously been addressed by the Texas courts, we do have analogous rulings, as our courts have consistently held that in actions for defamation, only the person about whom the defamatory statements were made can maintain an action for damages as the result of the statements. Renfro Drug Co. v. Lawson, 138 Tex. 434, 160 S.W.2d 246 (1942); Gonzales v. Times Herald Printing Co., 513 S.W.2d 124 (Tex.Civ.App.Dallas 1974, no writ); Keys v. Interstate Circuit, Inc., 468 S.W.2d 485 (Tex.Civ.App.Tyler 1971, writ dism’d).

In light of the foregoing, we will follow the majority rule and restrict the right of recovery in cases of this type to the person about whom facts have been wrongfully published, unless the Legislature sees fit to establish a right of action in the relatives of such a person.

The judgment of the trial court is affirmed.

HUTCHINSON, J., not participating.