author: DUNAGAN, Chief Justice.

text:
    A. T. CLEAVER, Appellant, v. DRESSER INDUSTRIES et al., Appellees.
    No. 1156.
    Court of Civil Appeals of Texas, Tyler.
    Aug. 17, 1978.
    Rehearing Denied Sept. 9, 1978.

      Robert M. Minton, Waldrop, Shaw & Min-ton, Henderson, for appellant.
    Melvin R. Wilcox, III, Roberts, Harbour, Smith, Harris, French & Ritter, Longview, for appellees.
   DUNAGAN, Chief Justice.

This case arose out of a collision between a tractor-trailer, owned by Dresser Industries, Inc. and driven by James Matthews, appellees, and a farm tractor owned and driven by A. T. Cleaver, appellant.

The collision occurred at the intersection of U. S. Hwy. 79 and Texas Farm Road 839 about 4:15 p. m. on October 4, 1973. The weather was dry and clear, with traffic conditions described as light. Both parties were proceeding southwest on Hwy. 79 in their respective vehicles, appellant operating the lead vehicle followed by appellee in the tractor-trailer. At the time of the accident the speed limit along Hwy. 79, a two-lane blacktopped road, was 60 m. p. h. for trucks and 70 m. p. h. for cars. It is undisputed that immediately prior to the collision appellant was traveling at a rate of 17-18 m. p. h. and appellee at 62 m. p. h. As appellant attempted to turn left onto Farm Road 839, the collision with appellees’ tractor-trailer occurred in the northeast bound lane of Hwy. 79. The impact left appellant’s farm tractor in the middle of the road, while appellees’ tractor-trailer came to rest in a ditch. Both drivers suffered only minor injuries but the two vehicles were extensively damaged. Appellees, plaintiffs below, instituted this action to recover for property damage and personal injuries, respectively, sustained in the accident. Appellant answered and counterclaimed for his own damages.

James Matthews, appellee, testified that he first spotted appellant while he was three-fourths to one mile away. Appellant was driving along the far right portion of the highway, with his left wheels on the paved shoulder and right wheels in the dirt on the edge of the shoulder. Appellee saw the tractor’s blinking light which he felt signified a slow-moving vehicle. As appel-lee approached within 50 to 75 feet of the tractor, appellant suddenly turned to the left and cut across appellee’s path. Mr. Matthews testified that he swerved into the northeast bound lane to avoid appellant, but that the right, front wheel of the tractor-trailer struck the left front wheel of appellant’s farm tractor. Appellee stated that he had no time to apply his brakes.

Officer McGee, a highway patrolman for the Department of Public Safety, investigated the accident. Based upon his observations of the scene, including the tire tracks of appellant’s farm tractor on the side of the road, he concluded that appellant had made his left turn from the right portion of the road. As a result, he testified that he issued a citation to appellant for an improper left turn.

The testimony of A. T. Cleaver, appellant, conflicts with that of James Matthews and Officer McGee as to the manner in which he attempted to make his left turn. According to appellant, he drove along the center line of the highway for over 500 feet prior to attempting his left turn at the intersection. His left turn signal was on during this entire period. Appellant was pulling a “bush hog” or shreader behind his tractor. He testified that as he turned left, the tractor-trailer first struck the “bush hog,” then the tractor’s left, rear tire and finally the tractor’s left, front tire.

Frank Posted, service and parts manager for Lowe Tractor and Equipment, was called as a witness by appellant to testify about damages to his tractor. In spite of the fact that appellant contended that the “bush hog” was struck first by a tractor-trailer traveling 62 m. p. h., the only damages to the “bush hog” recalled by Mr. Postell were missing hubcaps. Mr. Cleaver added that the impact knocked some paint off the “bush hog.” However, the front wheel of the tractor was torn off. The only eyewitness to the collision, other than the parties themselves, was Raymond Fears. Mr. Fears was stopped at the intersection in question on Farm Road 839 but admitted he did not see the vehicles prior to the collision. He did testify by deposition, however, that the front wheels of appellant’s tractor were nearly square across the road, rather than angled, as appellant crossed the highway. He added that the left front wheel may have been “a little bit ahead.”

The case was tried to a jury and based on their findings a judgment was entered in favor of appellees for a total of $13,445.43. For purposes of this appeal, the significant findings of the jury in response to the special issues submitted were that (1) appellant failed to keep a proper lookout (Special Issue No. 1), (2) appellant turned to the left when it could not be done safely (Special Issue No. 2), (3) such acts constituted negligence and were a proximate cause of the occurrence in question (Special Issue No. 3), (4) appellant failed to make his approach for a left turn in the extreme left hand portion of his travel lane (Special Issue No. 4), (5) such was a proximate cause of the collision in question (Special Issue No. 5), and (6) the percentage of negligence, which caused the collision, attributable to each of the parties was 25% to James Matthews and 75% to A. T. Cleaver (Special Issue No. 10). Appeal therefrom has been timely perfected to this court by the defendant below, A. T. Cleaver.

Appellant predicates his appeal upon seven points of error. However, points of error Nos. 5, 6 and 7 are accompanied by neither a statement of facts pertinent to such points nor is there any supporting argument and authority. The points of error thus presented are not preserved and are therefore waived; where, as here, no fundamental error appears. Slayton v. White, 487 S.W.2d 204, 205 (Tex.Civ.App.—Tyler 1972, ref’d n. r. e.). Any question not briefed as required by Rule 418, T.R.C.P., is waived. Lott v. Lott, 370 S.W.2d 463, 465 (Tex.Sup.1963); Dreeben v. Sidor, 254 S.W.2d 908, 912 (Tex.Civ.App.—Amarillo 1952, ref’d n. r. e.); Keahey v. Jones, 291 S.W.2d 767, 770 (Tex.Civ.App.—Amarillo 1956, n. w. h.); City of Houston v. Socony Mobil Oil Company, 421 S.W.2d 427, 430 (Tex.Civ.App.—Houston [1st Dist.] 1967, ref’d n. r. e.). Therefore points of error Nos. 5, 6 and 7 will not be considered.

Appellant’s remaining points of error are:

FIRST POINT: The verdict and findings of the jury on Special Issues Nos. 1, 2, 3, 4, 5 and 10 . are unsupported by the evidence, there being no evidence of probative force to support such findings, and the Court erred in rendering judgment based upon such findings .
SECOND POINT: There is no evidence to support the findings of the jury to Special Issues Nos. 1, 2 and 4, and the Court erred in rendering judgment based upon such findings.
THIRD POINT: The overwhelming weight and preponderance of the evidence, in this case, is so against the verdict that such verdict is clearly wrong, or so as to make such verdict manifestly unjust and unfair, and shocking to the conscience .
FOURTH POINT: The undisputed facts in this case as to speed, and aspects of the physical environment of the scene of the accident . . ., present themselves in such a manner as to be at such a variance with the findings of the jury to Special Issues Nos. 1, 2, 3, 4 and 5 as to render that part of the testimony upon which the jury based its findings that such acts occurred the same as no evidence, and negates the findings of the jury to such issues.

“A point of error which embraces more than one specific ground of error or which attempts to attack several distinct and separate rulings of the trial court will be considered multifarious, in violation of Rule 418, and not entitled to review.” Hutcherson v. Hinson, 557 S.W.2d 814, 815 (Tex.Civ.App.—Tyler 1977, n. w. h.). See also Brungs v. Consolidated Plan Service, Inc., 529 S.W.2d 79, 81 (Tex.Civ.App.—San Antonio 1975, ref’d n. r. e.); Blackmon & Associates, Inc. v. Palmer Building Supplies & Specialties, Inc., 463 S.W.2d 228, 231 (Tex.Civ.App.—Corpus Christi 1971, ref’d n. r. e.); Lofland v. Jackson, 237 S.W.2d 785, 786 (Tex.Civ.App.—Amarillo 1950, ref’d n. r. e.). Clearly the points of error relied upon by appellant are overly broad, general, and attempt to raise questions of both legal and factual sufficiency.

However, this court will employ a liberal interpretation of the rules in favor of the sufficiency of appellant’s brief based on the prior policy of appellate courts and Rule 422, T.R.C.P. Where the substance of the complaint can be determined from the statements and arguments under the point, this court has discretion to consider a faulty point of error. Airway Insurance Company v. Hank’s Flite Center, Inc., 534 S.W.2d 878, 879-880 (Tex.Sup.1976); Brungs v. Consolidated Plan Service, Inc., supra; Russell v. Truitt, 554 S.W.2d 948, 955 (Tex.Civ.App.—Fort Worth 1977, n. w. h.); Hutcherson v. Hinson, supra; McClure v. City of Texarkana, 435 S.W.2d 599, 602 (Tex.Civ.App.—Texarkana 1968, dism’d; Walker v. Bedell, 320 S.W.2d 913, 915 (Tex.Civ.App.—Texarkana 1958, n. w. h.); Lofland v. Jackson, supra; Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478, 482 (1943). Where both “no evidence” and “insufficient evidence” points of error are raised in a brief before a Court of Civil Appeals, it is the duty of the court to consider and decide the “no evidence” point first. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.Rev. 361, 369 (1960).

Appellees contend that appellant failed to preserve any error of the trial court relating to legal sufficiency because such alleged error was not asserted prior to rendition of judgment. Appellant laid no prejudgment predicate by filing a motion for instructed verdict, objection to submission to the jury of a vital fact issue, motion for judgment notwithstanding the jury’s verdict, or motion to disregard the jury’s answer to a vital fact issue prior to the trial court’s rendition of judgment on October 20, 1977.

Appellant did file a motion for judgment on October 25, 1977, which requested that a judgment be entered against appel-lees based upon the jury’s responses to the special issues submitted with the exception of Special Issues Nos. 1, 2, 3, 4, 5 and 10. The motion contended that the evidence was insufficient to support the findings of the jury on Special Issues Nos. 1, 2, 3, 4, 5 and 10. Appellant’s motion for judgment may be construed as a motion for judgment notwithstanding the verdict since it contains a request to disregard identified findings along with assigned reasons. Burbridge v. Rich Properties, Inc., 365 S.W.2d 657, 661 (Tex.Civ.App.—Houston 1963, n. w. h.).

The Texas Rules of Civil Procedure do not provide for a time limit for filing a motion for judgment notwithstanding the verdict. A motion for judgment notwithstanding the verdict may be filed and acted upon even after judgment is entered and a motion for new trial filed, but before the judgment becomes final. Hann v. Life & Casualty Insurance Company of Tennessee, 312 S.W.2d 261, 263 (Tex.Civ.App.—San Antonio 1958, n. w. h.); Walker v. S & T Truck Lines, Inc., 409 S.W.2d 942, 943 (Tex.Civ.App.—Corpus Christi 1966, ref’d); McDonald, Texas Civil Practice, Vol. 4, sec. 17.32, pp. 210-211.

The trial court denied appellant’s motion for judgment on October 28, 1977. On October 31, 1977, appellant filed a motion for new trial in which assignment of error No. 4 complained of the trial court’s denial of the motion for judgment and failure to “ignore the findings of the jury to Special Issues Nos. 1, 2, 3, 4, 5 and 10, in that such findings were not supported by the evidence . . . The trial court denied the motion for new trial.

Since appellant’s contentions were made clear in time for the trial court to correct any error, if any existed, there is a sufficient predicate for the “no evidence” points on appeal. Rosas v. Shafer, 415 S.W.2d 889 (Tex.Sup.1967). A “no evidence” point may be asserted for the first time by a motion for new trial. Rosas v. Shafer, supra; Ambox, Inc. v. Stewart & Stevenson Services, Inc., 518 S.W.2d 428, 431 (Tex.Civ.App.—Houston [14th Dist.] 1975, ref’d n. r. e.); State of Texas v. Wilson, 439 S.W.2d 134, 140 (Tex.Civ.App.—Tyler 1969, n. w. h.); Gillespey v. Sylvia, 496 S.W.2d 234, 235 (Tex.Civ.App.—El Paso 1973, n. w. h.). We do not address the question of whether or not appellant has laid a proper predicate to belatedly resurrect the right to rendition.

In determining a “no evidence” point, which is a question of law, we may consider only that evidence, if any, and the reasonable inferences therefrom, which viewed in its most favorable light, supports the jury finding and we must reject all evidence and inferences which are contrary to the finding. Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696, 698 (1914); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.Sup.1965); Riggers v. Continental Bus System, Inc., 157 Tex. 351, 303 S.W.2d 359, 363 (1957). Legal sufficiency points are directed to the submission of the issue to the jury; the real complaint is that as a matter of law the evidence presents no fact question for the jury’s determination. In the instant case, we deem the evidence to be sufficient to support the submission of the special issues to which complaint is directed, and appellant’s “no evidence” points are overruled.

Therefore, we must now consider and decide the factual sufficiency or “insufficient evidence” points raised by appellant. Ap-pellees contend that appellant has failed to preserve any error of the trial court, as concerns “insufficient evidence” points, because appellant’s assignments of error in the motion for new trial are too general and broad to be considered. Appellees’ assessment of appellant’s motion for new trial is well taken.

As previously noted in this opinion, appellate courts have been inclined to consider broad and multifarious points of error asserted in an appellant’s brief where, from the statements and arguments, the gist of appellant’s complaint can be discerned. No such liberality has been extended, though, in determining the sufficiency of an assignment of error in a motion for new trial. Brungs v. Consolidated Plan Service, Inc., supra at 82; Smith v. Brock, 514 S.W.2d 140, 142-3 (Tex.Civ.App.—Texarkana 1974, n. w. h.); Texas Indemnity Insurance Company v. Warner, 159 S.W.2d 173 (Tex.Civ.App.—Texarkana 1942, ref’d w. o. m.). However, Rule 324, T.R.C.P., clearly states that: “A complaint that one or more of a jury’s findings have insufficient support in the evidence or are against the overwhelming preponderance of the evidence as a matter of fact may be presented for the first time on appeal.” Therefore, no procedural predicate is now required for appellant to raise factual sufficiency points on appeal.

In determining an “insufficient evidence” point, which is a question of fact, we consider and weigh all the evidence in the case to determine whether the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust and that the finding should be set aside and a new trial ordered. In re King’s Estate, 150 Tex. 622, 244 S.W.2d 660, 662 (1951); Garza v. Alviar, supra; Garwood, The Question of Insufficient Evidence on Appeal, 30 Tex.L.Rev. 803 (1952). Factual sufficiency assignments challenge the jury’s answer to the issue and are not addressed to error in submission of the issue.

The general rule in Texas is that a driver is under no duty to keep a proper lookout to the rear. Solana v. Hill, 348 S.W.2d 481, 485 (Tex.Civ.App.—Eastland 1961, ref’d n. r. e.); Wyatt v. Sears, Roebuck & Company, 480 S.W.2d 7, 8 (Tex.Civ.App.—Beaumont 1972, dism’d). The well established exception to the general rule is that when one in a stream of traffic slows his vehicle, stops it, changes his course or turns his vehicle, a duty arises to see what is behind when he makes the change. Berry v. Sunshine Laundries & Dry Cleaning Corporation, 387 S.W.2d 948, 949 (Tex.Civ.App.—San Antonio 1965, ref’d n. r. e.); Griffith v. Hudspeth, 378 S.W.2d 153, 155 (Tex.Civ.App.—San Antonio 1964, n. w. h.); Wyatt v. Sears, Roebuck & Co., supra; Hetmaniak v. Avis Rent-A-Car System, Inc., 459 S.W.2d 723, 726 (Tex.Civ.App.-Houston [14th Dist.] 1970, n. w. h.). This is not a case in which the lead driver slowed down or stopped because his travel was impeded by traffic, nor is it one in which the driver stopped in obedience to traffic signals or controls. A lookout to the rear is not required in such a case. Scott v. McElroy, 361 S.W.2d 432, 434 (Tex.Civ.App.—San Antonio 1962, ref’d n. r. e.).

Article 6701d, Section 68(a), Tex. Rev.Stat.Ann., provides as follows: “No person shall turn a vehicle . . . from a direct course or move right or left upon a roadway unless and until such movement can be made with safety.” Appellant was under a duty to make his turn when he could do so safely. This relates to the time of turning and is independent of and different from proper lookout. Hetmaniak v. Avis Rent-A-Car System, Inc., supra at 725.

A person operating a motor vehicle on the public roads must do so in a careful, prudent manner and with due regard for the rights of others on the road. This applies to vehicles preceding as well as vehicles following. Manning v. Block, 322 S.W.2d 651, 655 (Tex.Civ.App.—Beaumont 1959, ref’d n. r. e.).

It is a settled rule that proper lookout is ordinarily a fact question for the jury. Texas & Pacific Railway Company v. Day, 145 Tex. 277, 197 S.W.2d 332, 333 (Tex.Sup.1946); Owens v. Acme Oil Company, 408 S.W.2d 947, 952 (Tex.Civ.App.—Tyler 1966, ref’d n. r. e.); Peck v. Century Concrete Products, Inc., 375 S.W.2d 459, 460 (Tex.Civ.App.—Fort Worth 1964, ref’d n. r. e.); Berry v. Sunshine Laundries & Dry Cleaning Corporation, supra; Griffith v. Hudspeth, supra. Standards of ordinary care such as the direction and extent of observation which a driver should have made at any particular time cannot be fixed with any degree of certainty but must be left in large measure to the trier of fact. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273, 275 (1958). Likewise, the issue of whether or not given acts constitute negligence is essentially a jury question. Owens v. Acme Oil Company, supra; Plata v. Gohman, 359 S.W.2d 163, 164 (Tex.Civ.App.—San Antonio 1962, ref’d n. r. e.). Ordinarily, the issue of proximate cause is also a question of fact for the jury. Owens v. Acme Oil Company, supra; 40 Tex.Jur.2d, see. 156, p. 451.

Where the evidence is conflicting, the jury must decide the conflict. It was within the jury’s province to judge the credibility of the witnesses and the weight to be given their testimony, and to resolve conflicts and inconsistencies in the evidence. Austin Fire Insurance Company v. Adams—Childers Company, 246 S.W. 365, 368 (Tex.Com.App.1923, holding approved); Joe D. Hughes, Inc. v. Moran, 325 S.W.2d 829, 831 (Tex.Civ.App.—Fort Worth 1959, ref’d n. r. e.); Peck v. Century Concrete Products, Inc., supra at 462.

We have examined the entire statement of facts and reviewed it in light of the rules announced by the Supreme Court in In re King’s Estate, supra. We deem the evidence sufficient to support the jury’s answers to special issues submitted and that none of the answers made by the jury in response to said issues are so contrary to the weight and preponderance of the evidence as to be manifestly wrong and unjust.

We have considered appellant’s points of error and believe them to be without merit and the same are overruled.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: CORNELIUS, Chief Justice. RAY, Justice,

license: Public Domain

text:
    J. LANDRETH and Paula Landreth, d/b/a Happy Acres Nursery, and Happy Acres Nursery, Appellants, v. James REED and Elizabeth Reed, Individually and as next friend of Melissa Reed, a minor, Appellees.
    No. 8563.
    Court of Civil Appeals of Texas, Texarkana.
    Aug. 22, 1978.

      Howard Waldrop, Atchley, Russell, Wal-drop & Hlavinka, Texarkana, for appellants.
    Harry B. Friedman, Harkness, Friedman, Kusin & Hooper, Texarkana, for appellees.
   CORNELIUS, Chief Justice.

While attending a day nursery operated by Mrs. Paula Landreth, fourteen month old Kecia Reed fell into the swimming pool and drowned. Her parents, Mr. and Mrs. James Reed, individually and as next friend of Kecia’s infant sister, Melissa, filed suit against Mr. and Mrs. Landreth for damages. Based upon jury findings of negligence, proximate cause and damages, the district court entered judgment against Mr. and Mrs. Landreth awarding Mr. and Mrs. Reed $25,000.00 for their loss, together with $2,940.00 for funeral and medical expenses, the estate of Kecia $65,000.00 for the conscious pain and suffering she experienced, and Melissa the sum of $25,000.00 for injuries she received as a result of witnessing the death of her sister. Mr. and Mrs. Lan-dreth do not contest the jury findings of negligence or proximate cause, but base their appeal upon ten points of error which complain of the action of the district court in allowing a non-medical expert witness to testify that Melissa suffered a physical injury, the propriety of Melissa’s recovery of damages for having witnessed the death, several alleged acts of jury misconduct, and the excessiveness of the awards for pain and suffering and for pecuniary loss on the part of the child’s parents.

I

Mr. and Mrs. Reed produced Dr. Brunell, a clinical psychologist, as a witness to the fact that Melissa had suffered a physical injury as a result of the shock and emotional trauma of having witnessed the efforts to revive Kecia immediately after she was removed from the pool. The gist of Dr. Brunell’s testimony was that, in addition to and as a result of the emotional trauma, Melissa experienced hyperactivity, distract-ability, loss of weight, extreme nervousness and difficulty in sleeping. Mr. and Mrs. Landreth contend that because Dr. Brunell was not a medical doctor, she should have been permitted to testify only as to Melissa’s mental condition, and not that such condition manifested itself by physical symptoms or disability.

We think the court was correct in allowing Dr. Brunell’s testimony. As a trained expert in behavioral psychology, qualified both by a Ph.D. in Clinical Psychology and several years of experience, she was undoubtedly competent to testify as to Melissa’s mental condition and stability. Hogan v. State, 496 S.W.2d 594 (Tex.Crim.App.1973); Doherty v. Dean, 337 S.W.2d 153 (Tex.Civ.App. Austin 1960, no writ); Watson v. State, 161 Tex.Cr.R. 5, 273 S.W.2d 879 (1954). And it has been increasingly evident in recent years that in many cases it is difficult, if not impossible, to distinguish between strictly mental and strictly physical ailments, because they each may manifest themselves by symptoms relating to the other. In this case Dr. Brunell did not attempt to testify concerning infectious or idiopathic physical diseases, but only that Melissa’s physical symptoms, which even an observant layman would be permitted to relate, were common results in a child her age, from the kind of mental and emotional shock she experienced. To prohibit a trained clinical psychologist from so testifying would be to ignore the realities of present medical and psychological practice. See Simmons v. Mullen, 231 Pa.Super. 199, 331 A.2d 892 (1974).

II

Melissa’s recovery is challenged on the ground that, as she neither received a physical impact as a result of the negligent act, nor was she in the zone of danger created by that act, the allowance of recovery for injuries resulting from her shock would be to extend the liability for one’s negligent act beyond reasonable and permissible limits. The problem of whether to allow recovery of damages by one who witnesses the negligent injury of another person has confronted and perplexed the courts for decades. Yet, in our own jurisdiction, there is a surprising paucity of cases which have directly considered it. Nationwide, the courts have expressed several views. Some deny any recovery for emotional trauma in such cases. Others permit a recovery only if the claimant sustained a physical impact. Still others have ruled that physical impact is not necessary if the plaintiff was in the zone of danger. Finally, some have held that artificial distinctions such as those noted above should be disregarded and each case should be determined upon the traditional concepts of negligence and proximate cause based upon reasonable foreseeability. See Annot., 29 A.L.R.3d 1337 (1970); Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968). Although the exact question has not been definitely answered by a decision of our own courts, it appears that Texas will follow the modern rule, and will disregard the artificial distinctions in favor of a decision based upon those traditional concepts. See Kaufman v. Miller, 414 S.W.2d 164 (Tex.1967); Hill v. Kimball, 76 Tex. 210, 13 S.W. 59 (1890); Dave Snelling Lincoln-Mercury v. Simon, 508 S.W.2d 923 (Tex.Civ.App. Houston-1st Dist. 1974, no writ); Comments, Negligent Infliction Of Emotional Harm To Bystanders-Should Recovery Be Denied ?, 7 St. Mary’s Law Journal 560 (1975).

It is generally agreed that in determining foreseeability in this type of case, several facts will be relevant: (1) whether the plaintiff was located near the scene of the accident; (2) whether the shock resulted from a direct emotional impact upon the plaintiff from a contemporaneous perception of the accident, as distinguished from learning of the accident from others after its occurrence; and (3) whether the plaintiff and the victim were closely related. See Dave Snelling Lincoln-Mercury v. Simon, supra; Dillon v. Legg, supra. Our Supreme Court has noted other factors which will bear upon the issue of foreseeability, but none of them is present here. See Kaufman v. Miller, supra.

Without question, the first relevant fact was established in this case. Melissa was present every day, including the day of the drowning, with Kecia at the day nursery. The nursery occupied a relatively small area and the pool was located immediately adjacent to the playground areas as well as the buildings. Concerning the second fact, the evidence is uncertain as to whether Melissa saw Kecia in the pool, but it is clear that she was present in the room when Kecia was brought from the pool and was there for at least some time while “mouth to mouth” and “arm lift” procedures were used in an effort to resuscitate her. The jury could have inferred from other evidence that only a few minutes elapsed between Kecia’s entry into the pool and her discovery and the resulting resusci-tative efforts. In the modern view, actual observance of the accident is not required if there is otherwise an experiential perception of it, as distinguished from a learning of it from others after its occurrence. Compare, Krouse v. Graham, 19 Cal.3d 59, 137 Cal.Rptr. 863, 562 P.2d 1002 (1977); Archibald v. Braverman, 275 Cal.App.2d 253, 79 Cal.Rptr. 723 (1969). In the special circumstances of this case, we conclude that there was such a perception on the part of Melissa. In seeing Kecia brought from the pool in an emergency situation fraught with life or death drama, together with the traumatic shock of witnessing the desperate but unsuccessful attempts to save Kecia’s life, Melissa was brought so close to the reality of the accident as to render her experience an integral part of it. Such an experience is far different from the case where one seeks damages for his grief or agony at merely seeing the dead body of a loved one, or upon learning of the death from others after its occurrence. We also find that the third fact was established here. Although most of the cases dealing with this type of injury involve shock to parents, at least two cases have recognized the right of a sister to recover, assuming that the other elements of foreseeability are present. Dillon v. Legg, supra; Hopper v. United States, 244 F.Supp. 314 (D.C.Colo.1965). Foreseeability in this ease is strengthened by the undisputed evidence that Kecia and Melissa attended the day nursery together and were virtually inseparable, which facts were obviously well known to Mrs. Landreth. In light of the foregoing, we conclude that the jury’s award of damages to Melissa, based upon the concepts of proximate cause and foreseeability, is supported by the evidence.

Ill

It is next asserted that the district court should have granted a new trial because of the individual or cumulative effect of the jury’s acts in (1) rendering a quotient verdict; (2) failing to follow the court’s instructions in answering the issues; (3) considering a personal experience of one of the jurors; (4) discussing insurance; and (5) discussing attorney’s fees.

Grounds one and two will be discussed together. The essence of these complaints is that the jury agreed in advance to a quotient verdict; or, if there was no binding agreement, a “guideline” figure was agreed upon for the total damages, whereupon the jurors simply divided that figure and allotted arbitrary portions of it to the various damage issues without regard to the evidence on those issues. If either of these procedures was used, misconduct occurred. A quotient verdict is where the jurors agree to be bound by a figure determined by adding the sums they individually think proper and dividing that total by the number of jurors. 3 McDonald’s Texas Civil Practice, Sec. 14.13, p. 568. Even if there is no agreement to be bound, which is an essential element of a quotient verdict, the acceptance by the jurors of a “guideline” figure for the total amount of damages, followed by an arbitrary apportionment of the figure to the several damage issues, would also be improper. Crawford v. Consolidated Underwriters, 323 S.W.2d 657 (Tex.Civ.App. Beaumont 1959, writ ref’d n. r. e.). Both methods are objectionable because they substitute arbitrarily ascertained figures for those which would result from intelligent deliberation. But the evidence is conflicting as to whether either was done in this case. Mr. and Mrs. Landreth produced two jurors who supported their contention, but the Reeds countered with the testimony of nine jurors who denied any agreement to be bound by a quotient, or any arbitrary apportionment of figures to the various damage issues. They agreed that a total guideline figure of $115,000.00 was accepted before the individual issues were answered, but they steadfastly denied that there was any agreement to be bound by it and they asserted that each issue was answered according to the evidence after due deliberation. It is settled that, absent an agreement to be bound by an arbitrary figure, or the arbitrary apportionment of a figure to the several damage issues, the use of an overall figure as a mere guideline or working basis for calculating the damages is not reversible error. See Dugat v. Hargraves, 42 S.W.2d 683 (Tex.Civ.App. Beaumont 1931, no writ); El Paso Electric Co. v. Collins, 10 S.W.2d 397 (Tex.Civ.App. El Paso 1928), rev’d on other grounds, 23 S.W.2d 295 (Tex.Com.App.1930, holding approved); Andrews v. York, 192 S.W. 338 (Tex.Civ.App. San Antonio 1917, no writ); Northern Texas Traction v. Evans, 152 S.W. 707 (Tex.Civ.App. Texarkana 1913), aff’d, 108 Tex. 356, 193 S.W. 1067 (1917); Weatherford, M. W. & N. W. Ry. Co. v. Thomas, 175 S.W. 822 (Tex.Civ.App. Ft. Worth 1915, writ ref’d). The trial judge overruled the Landreths’ motion for new trial, and in the absence of findings of fact, it is presumed that he found there was no agreement to be bound and no arbitrary apportionment of an agreed figure. Brawley v. Bowen, 387 S.W.2d 383 (Tex.1965); Ruffo v. Wright, 425 S.W.2d 663 (Tex.Civ.App. San Antonio 1968, no writ). Such a finding, when supported by sufficient evidence as it is here, is binding upon the appellate court.

The remaining misconduct allegations assert that one juror related a personal experience in a near drowning, stating that it was exceedingly painful; another juror, when a question was raised as to how the Landreths would pay any judgment entered against them, stated that she formerly worked for the welfare department and knew that day nurseries were required to carry liability insurance; and one of the jurors mentioned the fact that the attorneys would get a portion of any judgment rendered.

It is not every mention of insurance, attorneys fees or a juror’s personal experience which will vitiate a verdict. If the mention was casual, was promptly rebuked and abandoned without discussion, and it does not appear that prejudice resulted to the complaining party, the error is harmless. 3 McDonald’s Texas Civil Practice, Sec. 14.09, p. 560; J. Pope, Jury Misconduct and Harm, 12 Baylor L.Rev. 355 (Fall 1960). With respect to these occurrences, as with a quotient verdict and a guideline figure, the evidence is conflicting. Insurance and attorneys fees were definitely mentioned, but several of the jurors did not hear it. The mention was promptly rebuked and no discussion followed. Concerning the personal experience, only one juror heard it and there was no discussion. Again it must be presumed that the trial judge found that the references were casual and did not enter into the jury’s deliberations. Under the circumstances, reversible error is not shown.

IV

Finally, Mr. and Mrs. Landreth urge that the jury awards to Mr. and Mrs. Reed for their pecuniary loss and to Kecia’s estate for her pain and suffering are excessive and improper.

The trial judge correctly instructed the jury that in calculating the loss suffered by Kecia’s parents there could only be considered the reasonable amount of her earnings and services before reaching age eighteen, less the reasonable and probable expense of her care and maintenance during such time, together with the reasonable cash value of future contributions which Kecia would in reasonable probability have made to her parents after she reached the age of eighteen years. The Landreths contend that, as Kecia was only fourteen months of age at her death and there could be no evidence of any special skills or earning capacity on her part, the economic realities of today compel the conclusion that the cost of rearing the child would exceed any expected earnings or services, resulting in a net pecuniary loss to her parents. But such an argument overlooks the right of the parents to recover for reasonably expected contributions from their daughter after she reached the age of eighteen. The evidence showed that Kecia, although of tender age, was bright, active and loving. The jury could infer from this and other evidence that in all reasonable probability the child would be of considerable financial value to her parents in their advanced years or in the event of their disability or economic hardship. Compare: Wales Trucking Company v. Kisener, 373 S.W.2d 266 (Tex.Civ.App. Texarkana 1963, no writ); Safeway Stores v. Webb, 164 S.W.2d 868 (Tex.Civ.App. Eastland 1942, writ ref’d w. o. m.); Galveston, H. & S. A. Ry. Co. v. Pigott, 54 Tex.Civ.App. 367, 116 S.W. 841 (1909, writ ref’d). It is true that such deductions are based to some degree on speculation, but so is any award for future lost earnings, yet it is a universally recognized element of recovery in personal injury and wrongful death cases. To require more specific proof in a case of this type would, for all practical purposes, deny parents a right of recovery for the wrongful death of a very young child. We do not believe that to be the policy of our law. See Tex.Rev.Civ.Stat. Ann. arts. 4675, 4677. In the circumstances here, we cannot say that the jury’s award of $25,000.00 to Mr. and Mrs. Reed for pecuniary loss resulting from Kecia’s death is unjustified by the evidence or is excessive.

The award for Kecia’s conscious pain and suffering presents more difficulty. With respect to that award, Mr. and Mrs. Landreth contend first that there was no evidence that Kecia was conscious when she entered or fell into the pool, and hence there is no evidence that she struggled or experienced pain. There was no direct evidence that Kecia was conscious, but conscious pain and suffering, as any other fact, may be proved by circumstantial evidence. The evidence here indicated that the only persons present at the scene were other children and the nursery employees; there was no evidence or indication of any disturbance or altercation on the premises; Kecia was in good health; she could not have been away from the other children more than a few minutes before she was found in the pool; and during the efforts to revive her a large amount of water was expelled from her body. Dr. Bailes testified that before a person drowns they struggle and gasp for breath, resulting in the intake of water into the lungs and stomach. We believe the jury was authorized to infer from all that evidence and from their own common knowledge that Kecia was alive and conscious when she entered or fell into the pool. Compare Sharpe v. Munoz, 256 S.W.2d 890 (Tex.Civ.App. San Antonio 1953, writ ref’d n. r. e.).

It is next asserted that the jury’s award of $65,000.00 for Kecia’s pain and suffering is excessive. With that contention we are compelled to agree. Pain and suffering have no market price, and compensation for them is not capable of being exactly and accurately determined. There is no fixed rule or standard for its measurement, and thus the amount must be left to the sound judgment of the jury, subject only to correction by the courts for abuse and excessiveness. But the amount allowed must be fair and reasonable, free from sentimental or fanciful standards, and based upon the facts of the particular case. In addition, it must be limited to compensation, and the jury in exercising its discretion may not roam too far. Sharpe v. Munoz, supra. Although each case must be judged on its own facts, courts have traditionally, and we think correctly, looked to approved awards in similar cases to determine if an award for pain and suffering is excessive. See Sharpe v. Munoz, supra; 17 Tex.Jur.2d, Damages, Sec. 350, p. 425. As it is difficult at best to determine the proper amount to award for pain and suffering, the comparison of an award with others which have secured the approval of juries and courts tends to reinforce a determination of whether a particular award is reasonable compensation for pain, or is to some extent the product of an understandable but improper attempt to award compensation not justified by the evidence or permitted by law.

Dr. Bailes testified that a child the age of Kecia would, in all reasonable probability, have remained conscious and suffered pain for approximately two minutes. In searching the decisions, even after considering the tremendous impact of inflation upon the value of our money, we find no precedent for an award as large as that made here for so short a period of suffering. The case of Mitchell v. Akers, 401 S.W.2d 907 (Tex.Civ.App. Dallas 1966, writ ref’d n. r. e.), is almost exactly in point. A three year old child wandered into a neighbor’s pool and drowned. The physician testified that the child likely experienced two to three minutes of conscious pain and suffering. The jury awarded $5,000.00, and the appellate court ruled that such an award was not excessive. Likewise, in City of Austin v. Selter, 415 S.W.2d 489 (Tex.Civ.App. Austin 1967, writ ref’d n. r. e.), a $10,000.00 award for pain and suffering experienced by a fourteen year old boy who drowned after struggling for several minutes to free himself from the suction of dam gates was held not excessive. On the other hand, in Sharpe v. Munoz, supra, a 1953 case, an award of $7,500.00 for brief conscious pain and suffering experienced by a twelve month old child who was killed in a fire was held excessive and reduced to $2,500.00 on remittitur. In Walgreen, Inc. v. Knatt, 506 S.W.2d 751 (Tex.Civ.App. Beaumont 1974, no writ), an award of $22,-500.00 for pain and suffering on the part of an infant who later died, which pain extended over a period of nine days, was found excessive and reduced to $12,500.00 on remittitur. And in Burrous v. Knotts, 482 S.W.2d 358 (Tex.Civ.App. Tyler 1972, no writ), a doctor’s report indicated that the deceased, who died in a hotel fire, lived for approximately ten minutes. An award of $40,000.00 for conscious pain and suffering was reduced to $10,000.00 on remittitur.

Allowing the jury award here the benefit of every reasonable doubt, and giving full consideration to the effect of inflation since the date of the cases above noted, we have concluded that the award for Kecia’s pain and suffering is excessive by $35,000.00, and that the sum of $30,000.00 constitutes reasonable compensation therefor.

If within fifteen days from August 22, 1978, appellees remit the sum of $35,000.00, the judgment below will be reformed and affirmed; otherwise, the judgment will be reversed and remanded.

ODEN, J., not participating.

RAY, Justice,

concurring.

I concur with the opinion of this Court. It is a rare occasion for this Court to reduce a jury verdict, but our reduction of the damages from $65,000.00 for pain and suffering to the sum of $30,000.00 still leaves the award as the highest ever sustained by an appellate court in this State for a minor child in a death case though it is not the highest award in the nation. 49 A.L.R.3d 934 (1973).

An eminent Texas jurist, T. C. Chadick, once said:

“In a world so full of pain and suffering it is strange that no one has perfected a gauge that will accurately measure its value. . . .” Texarkana Bus Company v. Carter, 301 S.W.2d 300 (Tex.Civ.App. Texarkana 1957, writ ref’d n. r. e.).

While I am always reluctant for this Court to substitute its judgment for that of the jury, it does seem that $30,000.00 is an adequate award for two minutes of pain and suffering in a death case. In light of all the facts and circumstances in this case, this Court has concluded that such amount is reasonable compensation for the pain and suffering incurred by this small child. Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835, 841 (1959).


author: RAY, Justice.

text:
    In the Interest of B_M_N_, a child.
    No. 8590.
    Court of Civil Appeals of Texas, Texarkana.
    Aug. 22, 1978.

      Harlan A. Martin, Martin & Martin, Dallas, for appellant.
    Jack Napier, Dallas, for appellee.
   RAY, Justice.

This is a paternity suit. The natural mother, petitioner, filed suit seeking to establish that a parent-child relationship exists between her minor son, B_M_N_, and the alleged father, respondent. Petitioner pursued the statutory method of having the respondent declared the biological father of her minor son under Sections 13.02, et seq., (Supp.1978), of the Texas Family Code. Further, petitioner sought to have respondent pay child support for the minor child under Section 13.42 (Supp.1978). The trial court ordered that blood tests be taken on the mother, child and alleged father. At the end of the pretrial proceedings, the court determined from the blood test evidence that the alleged father was not in fact the father of the child and dismissed the suit with prejudice in accordance with Section 13.05(a). Appellant has perfected her appeal from the dismissal of the suit and presents one point of error for our consideration.

THE ISSUE

Appellant submits that the following is the question to be resolved:

“Petitioner’s sole contention is that the mandate under § 13.05(a) of the Texas Family Code requiring the dismissal with prejudice of Petitioner’s cause of action seeking to establish the paternity of her illegitimate child is unconstitutional in that the threshold determination wholly predicated upon the results of blood tests showing that the Respondent is not the natural father of Petitioner’s illegitimate child is a procedure violative of due process as required by Article 1, § 13 of the Constitution of the State of Texas.”

THE FACTS

B_M_N_, a male child, was born out of wedlock on the 28th day of September 1976, in Harris County. On February 29, 1977, appellant sued respondent, alleging the respondent to be the natural father of the minor child. On April 25, 1977, the trial court ordered all parties to submit to blood tests to be conducted by the Southwestern Institute of Forensic Sciences of Dallas. Thereafter, a serologist employed by the Southwestern Institute of Forensic Sciences conducted the court ordered blood tests on the mother, child and alleged father. On May 10,1977, the serol-ogist furnished the trial court her report detailing the results of all blood tests, and stated that her analysis of the blood tests excluded the possibility that respondent was the natural father of the minor child. On June 2, 1977, petitioner requested the trial court to proceed under Section 13.04 and ordér a pretrial conference for the purpose of determining the results of the previously ordered blood tests. The pretrial conference was held on August 10,1977, and at the conclusion of the hearing the court ordered the case dismissed because the court was of the opinion that the blood tests showed by clear and convincing evidence that respondent was excluded as being the natural father of the child.

RESOLUTION OF THE ISSUE

The posture in which this case is presented to this court is unique and presents a case of first impression. Appellant does not present questions of due process or equal protection of the law under the fourteenth amendment to the U.S. Constitution though some discussion of the due process clause and equal protection clause will be alluded to in this opinion.

Article 1, § 3 of the Texas Constitution provides the following:

“All free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.” (Emphasis added.)

Article 1, § 13 of the Texas Constitution provides in pertinent part the following:

“. . . All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.”

Article 1, § 19 of the Texas Constitution provides the following:

“No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.”

The fourteenth amendment to the U.S. Constitution provides in pertinent part the following:

. . No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Chapter 13 of the Texas Family Code is styled “DETERMINATION OF PATERNITY.” Subchapter A relates to paternity suits and the procedure to be followed. Section 13.02 provides that in a paternity suit the court shall order the mother, alleged father and child to submit to blood tests. Section 13.03 provides that the court may appoint two or more experts qualified as examiners of blood types to make the blood tests and any party may employ other qualified examiners of blood tests if they so desire. Section 13.04 provides that after the completion of the blood tests, the court shall hold a pretrial conference at which the examiners shall be called to testify. The court and the parties may examine and cross-examine all witnesses.

Section 13.05 provides the following:

“Pretrial Proceedings: Effect of Blood Tests.
“(a) At the conclusion of the pretrial conference, if the court finds that the tests show by clear and convincing evidence that the alleged father is not the father of the child, the court shall dismiss the suit with prejudice.
“(b) If the court finds that the blood tests fail to show by clear and convincing evidence the alleged father is not the father of the child, the court shall set the suit for trial.”

Article 1, § 13 of the Texas Constitution is based largely upon Chapter 40 of the Magna Charta, which provides, “To none will we sell, to none deny, or delay, right or justice.” Article 1, § 13, supra, does not create any new right but is merely a declaration of a general fundamental principle and means that for such wrongs as are recognized by the law of the land, the courts shall be open and afford a remedy. Article 1, § 3 of the Texas Constitution is the Texas equivalent of the equal protection clause of the fourteenth amendment to the U.S. Constitution as distinguished from the “due process” clause.

In Home of the Holy Infancy v. Kaska, 397 S.W.2d 208 (Tex.1965), the Texas Supreme Court had under consideration the legitimacy of a child. There it was certain that the plaintiff was the biological father of the child in question. The father and the mother were ceremonially married after the child was conceived and the child was born after the mother had the marriage annulled. The court held that the marriage though voidable, nevertheless legitimated the child under the then existing provisions of Tex.Rev.Civ.Stat. art. 4639 (1925) (repealed; Tex.Law 1973, ch. 543, § 3 at 1458) and Tex.Probate Code § 42 (1956). However, the court in discussing the entire problem of support stated at page 210 that a father was not under a common law or statutory duty to support his illegitimate child. Subsequently, the U.S. Supreme Court in Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973), concluded that the Texas common law rule that illegitimate children had no legal right to support from their fathers was unconstitutional because it violated the equal protection clause of the fourteenth amendment of the U.S. Constitution. In Gomez, supra, the mother of an illegitimate child brought an action against the asserted biological father of the child to have him declared to be the father and to require him to support the child. The finding that the alleged father was the true father was not questioned on appeal. Later, In Interest of R_V_M_, A Child, 530 S.W.2d 921 (Tex.Civ.App. Waco 1975, no writ), the Waco Court of Civil Appeals had before it an almost identical case to that of Gomez. In both Gomez and R_V_M_, actions were brought to declare the alleged father to be the biological father of the child and to require him to support the child. In both actions, no question was raised on appeal concerning the finding that the defendant was the father. The support action was defended on the ground that there was no statutory or common law basis for requiring a father to support his illegitimate child. The Waco Court of Civil Appeals followed the Gomez decision and held that an illegitimate child was entitled to support from its biological father. Both cases were decided on the basis of the equal protection clause of the fourteenth amendment. Suit was filed in R_V_M_ on June 25, 1974, and judgment rendered by the trial court on May 23,1975. Chapter 13 of the Texas Family Code became effective September 1, 1975. (Acts 1975, 64th Leg., p. 1261, ch. 476, § 24). With this background in mind, appellant asserts for the first time on appeal, that Texas has a common law remedy for establishing paternity and cites Gomez as authority. The question of whether or not there exists a common law right to establish paternity was neither raised nor decided in Gomez or R_V_M_. That same question was not raised by the pleadings or otherwise in the trial court in this case. The present case was filed subsequent to the adoption and effective date of Chapter 13 of the Texas Family Code. We need not decide whether a common law action existed prior to the adoption of Sections 13.02, et seq., because that question is not presented to us for determination. In the instant case, the procedures outlined by Section 13.02, et seq., were sought by petitioner and ordered followed by the trial court. The mother, child, and alleged father all submitted to blood tests and following completion of the tests, testimony was heard by the trial court concerning such tests. At the conclusion of the hearing, the trial court determined from the evidence that the blood tests showed by clear and convincing evidence that the alleged father was not in fact the father of the minor child and ordered that the case be dismissed with prejudice.

EQUAL PROTECTION

No specific contention has been made that Chapter 13 of the Texas Family Code presents any question under the equal protection clause of the fourteenth amendment to the U.S. Constitution or the Texas Constitution. Only the “due process” question has been raised. It is doubtful that an equal protection question could arise since the Texas Legislature has sought to bestow upon illegitimates rights which they perhaps never had in the past. The purpose of Section 13.02, et seq., is to provide a procedure for illegitimates to establish their parentage. In this setting, the Texas Family Code has not established a “suspect” class and neither has such legislation impinged explicitly or implicitly upon a substantive right or liberty created or conferred by the Texas or U.S. Constitutions. Conversely, such legislation has created an avenue for the establishment of paternity which was not clearly established in the past. The equal protection clause of the U.S. Constitution confers no substantive rights and creates no substantive liberties and neither does Article 1, § 3 or § 13 of the Texas Constitution. See San Antonio School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). For a more thorough discussion of how the equal protection clause of the U.S. Constitution has been applied to illegitimates, see 32 Arkansas L.Rev. 120 (Spring 1978); 13 Hous.L.Rev. 1062 (1976); Cessna v. Montgomery, 63 Ill.2d 71, 344 N.E.2d 447 (1976); Texas Department of Human Resources v. Chapman, 570 S.W.2d 46 (Tex.Civ.App. Dallas 1978, not yet reported).

In responding to the equal protection problems raised in cases concerning illegitimates, the U.S. Supreme Court has not applied either the rational basis test or the strict scrutiny tests, the traditional alternative modes of equal protection analysis. Instead, in Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972), the majority opinion fashioned a balancing test:

“The essential inquiry . . . is . a dual one: What legitimate state interest does the classification promote? What fundamental personal rights might the classification endanger? ”

However, instead of engaging in a balancing process, the court relied on a strengthened form of the traditional rational basis test which has been termed “rationality scrutiny.” Rationality scrutiny, unlike balancing, is concerned only with means, not with ends, and does not attempt to weigh asserted state purposes against individual rights. In Weber, supra, the court struck down a workmen’s compensation statute which denied illegitimate children recovery for the death of their father on an equal basis with legitimate off-spring. Analysis of the compensation scheme under the “rationality scrutiny” standard led the court to conclude that “The state interest in legitimate family relationships is not served by the statute; the state interest in minimizing problems of proof [of paternity] is not significantly disturbed . . ”.

The U.S. Supreme Court has hinted at the application of strict scrutiny to classifications based on illegitimacy, but has consistently refused to label illegitimacy as “suspect.” The court has preferred to apply a middle standard, sometimes a balancing of state against individual interests and sometimes a means-focused rationality scrutiny. However, punishment of the illegitimate child has never been considered as a valid state interest; the court has repeatedly declared that “. . . imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing.” Weber v. Aetna Casualty & Surety Co., supra. In Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977), the court rejected application of strict scrutiny to a classification based on illegitimacy. The majority opinion made it clear that merely invoking a legitimate state interest will not suffice to save the statute, as it might under the pure rational basis test. Instead, the court, essentially adopting the balancing test previously enunciated by Justice Powell in Weber, decided that it would weigh the competing state and individual interests to determine the statute’s constitutionality. The court in Trimble decided that it will inquire whether the proffered means contained in a statute are designed in fact to achieve the desired end; that it must be established that the statute does not present an insurmountable barrier to inheritance; that the difficulty involved in proving paternity in a few situations does not justify total statutory disinheritance of illegitimates whose fathers die intestate.

We have analyzed the opinions of the U.S. Supreme Court as applied to illegitimacy cases involving the equal protection clause, and have concluded that § 13.02 through § 13.05 of Chapter 13 of the Texas Family Code meet both the balancing tests and the rationality scrutiny tests, plus the strict scrutiny and rational basis tests.

Under the rational basis test, we find that Section 13.05(a) bears a reasonable relationship to the legislative purpose of determining paternity. Under the strict scrutiny test, we find that no fundamental right is threatened or that illegitimacy is a suspect classification in the setting here involved. Under the balancing test we find that the state has a legitimate interest in providing a method for determining paternity and that no fundamental personal rights of appellant have been endangered by the Texas Family Code because that section was specifically designed to correctly identify the paternity of a child by acknowledged scientific tests. Lastly, the rationality scrutiny test is met because the means of determining paternity in fact provides a method for accurately determining parentage and the prevention of invalid claims of paternity and as such, is a valid governmental interest which Chapter 13 was designed in fact to achieve. If it can be said that appellant has raised an equal protection issue by alluding to Article 1, § 13 of the Constitution of the State of Texas in her point of error, such contention is overruled.

DUE PROCESS

The remaining question is whether or not appellant was denied due process of law in this case. Appellant contends that the mandatory dismissal called for in Section 13.05(a) denied her due process of law.

It is fundamental that before a person can be deprived of rights or property he must be given notice of such potential deprival and be given an opportunity to show that such deprival should not occur. 16A C.J.S. Constitutional Law § 567b (1956). The requirements of notice, hearing and proof have been met by the Texas Family Code, Sections 13.02, et seq. Before a claim of paternity can be dismissed, the court must be presented with “clear and convincing evidence” that the blood tests show that the alleged father is not in fact the biological father of the child. The Family Code also provides that the petitioner may employ a qualified examiner of blood tests to testify in her behalf and that all witnesses may be examined and cross-examined and that all evidence presented at the pretrial conference shall become a part of the record in the case. In this case, appellant was afforded all of the opportunities of the Texas Family Code as appellant had requested. It does not follow, however, that appellant should be afforded the opportunity under Section 13.05(a) to prove by circumstantial evidence that which can be proved conclusively by scientific evidence.

Today, it is generally recognized that blood group testing may be used to conclusively prove that a man is not the father of a certain illegitimate child. The only qualification placed upon the rule is that the tests must be conducted by qualified persons. M. Shaw and M. Kass, Illegitimacy, Child Support and Paternity Testing, 13 Hous.L.Rev. 41, 47-51 (1975); J. Wigmore, Wigmore on Evidence, § 165a and § 165b (3d ed. 1940); Annot., 46 A.L.R.2d 1003 (1956) at 1015 and 1028. The Texas Legislature has recognized the scientific validity of blood tests and gives those tests their fullest effect. Sections 13.04 and 13.05, supra; Eugene L. Smith, Parent and Child, 8 Tex.Tech.L.Rev. 19 (1976), at page 60. This Court recognizes the value of blood tests in determining parentage and that such tests have gained wide acceptance in recent years. 13 Hous.L.Rev. 41, supra, at page 50. The reliability of blood tests as an indicator of the truth has been fully established and we see no reason why the Texas Legislature could not give such tests the conclusiveness outlined in Section 13.05(a), supra. Cortese v. Cortese, 10 N.J.Super. 152, 76 A.2d 717, 719 (1950); 13 Hous.L.Rev. 41, supra, at page 50.

It is the conclusiveness of the blood tests excluding the alleged father as the biological father about which appellant so vigorously complains. Appellant has neither asserted nor proved that any other method is more accurate or more reliable than the method provided for in Section 13.05(a) in determining those who could not be biological fathers of illegitimate children. Section 13.05 recognizes the conclusiveness of the tests as excluding possible fathers while at the same time it provides for further proceedings if the blood tests fail to exclude the alleged father as the true father. Section 13.06 provides that the blood tests are admissible to show the possibility of the alleged father’s paternity. If the blood tests had shown the possibility of the alleged father being in fact the biological father, appellant could have proceeded to introduce evidence of periods of conception and gestation, the evidence of possible paternity shown by the blood tests, evidence of the resemblance of the child to the alleged parent and admissions of the alleged father bearing on paternity. However, such evidence is not admissible when the blood tests show conclusively that the alleged father could not have been the one who impregnated the appellant. This is true because the legislature has determined that blood tests are the most accurate methods yet devised by man to determine the lack of paternity of an alleged father and that a more precise test is not yet available.

“Evidence of paternity may take a variety of forms, some creating more significant problems of inaccuracy and inefficiency than others. The states, of course, are free to recognize these differences in fashioning their requirements of proof. . ” Trimble v. Gordon, supra, 430 U.S. at page 772, n. 14, 97 S.Ct. at p. 1466; 32 Arkansas L.Rev. 120, supra, at page 127.

Appellant did not complain of the scientific accuracy of the tests nor did she offer any proof to discredit such tests. Neither does she complain of the sufficiency of the evidence which established that respondent was not in fact the biological father.

In the present case, the Texas Legislature has attempted to provide equal protection and due process for illegitimates through the passage of Section 13.02, et seq. The purpose or aim of the statutes is to provide a method for determining paternity. The goal of the act is not to declare the alleged father to be the father, but it is to identify the true biological father and to exclude those who are not a possible biological father. This action by the legislature has penetrated the barrier that formerly could have worked as a shield to possible invidious discrimination. Texas has at least provided the minimum procedure for individualized determination of parentage.

Appellant has not made it clear as to whether she is complaining of the denial of substantive due process, procedural due process, judicial due process or legislative due process. It seems most likely that she is complaining of the denial of procedural due process since she states that her sole contention is that the dismissal following the pretrial conference is a “procedure vio-lative of due process as required by Article 1, § 13 of the Constitution of the State of Texas.” Section 3 of Article 1 of the Texas Constitution is the Texas equal rights section and Section 19 of Article 1 of the Texas Constitution is the due process section, though Article 1, § 13 may also be considered a “due process” section.

Assuming, without deciding, that a common law right to establish paternity existed, as suggested by Justice Cadena in his dissent in G_ v. P_, 466 S.W.2d 41 (Tex.Civ.App. San Antonio 1971, writ ref’d n. r. e.), cert. granted, Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973), there is no prohibition against the legislature changing the rules by which a common law right may be established. As stated in Middleton v. Texas Power & Light Co., 108 Tex. 96, 185 S.W. 556, 559 (1916), affirmed, 249 U.S. 152, 39 S.Ct. 227, 63 L.Ed. 527 (1919), “. . .no one has a vested interest in the rules, themselves, of the common law; and it is within the power of the Legislature to change them or entirely repeal them.” Section 13.05(a) does not deprive illegitimates of any fundamental right. On the contrary, it is the aim and policy of Chapter 13 of the Texas Family Code to provide a procedure for establishing paternity. Section 13.05(a) limits the proof to scientific evidence rather than circumstantial evidence in determining that the alleged father is not in fact the biological father of the illegitimate child. The rational basis for this procedure is that the legislature has determined that blood tests are the most accurate methods to determine the lack of paternity of an alleged father. By declaring the blood tests to be conclusive under Section 13.05(a) at the pretrial conference, such procedure not only saves judicial time, but it saves the alleged father the embarrassment of having to go through a public trial when the evidence is clear and convincing that he is not in fact the biological father. It is our conclusion that Section 13.05(a) bears a rational relationship to the objective of determining paternity under Chapter 13 of the Texas Family Code. The statute thus affords appellant procedural due process under Article 1, § 19 of the Texas Constitution and under the due process clause of the fourteenth amendment to the U.S. Constitution while at the same time affording respondent some protection.

The interpretive commentary following Texas Constitution Article 1, § 19, traces the history of due process in Texas. Originally the due process clause was construed as applying to the method of making a judicial or administrative decision. It applied directly to the machinery or procedure by which people were tried for a crime, by which property rights were adjudicated, by which the powers of eminent domain and taxation were exercised. Legal proceedings were and are required to be conducted by the rules and forms established for the protection of private rights. Otherwise, life, liberty or property would be taken without due process of law so as to be violative of the fundamental principles of the law of the land. Steddum v. Kirby Lumber Co., 110 Tex. 513, 221 S.W. 920 (1920).

The commentary further states that as applied to procedure, due process requires a fair and impartial trial before a competent tribunal. Included within this requisite is an opportunity to be heard, and reasonable opportunity to prepare for the hearing, which, of course, encompasses reasonable notice of the claim or charge against an individual so as to advise him of the nature thereof, and the relief sought.

The right to a hearing requires a judicial examination of every issue that, according to established procedure, may affect the attainment of a legal trial, and in such a trial determine the cause according to law. There should be opportunity given to cross-examine witnesses and to produce witnesses and to be heard on questions of law.

“Due process of law not only includes procedural protection, but also substantive protection. It is a direct constitutional restraint upon the substance of legislation and means that a legislative curtailment of personal or property rights must be justified by a resultant benefit to the public welfare. Thus, the due process guaranty does not restrain the state in the exercise of its legitimate police powers. . . . ”

Both liberty and property are subject to the exercise of these powers.

In substantive due process cases, the courts balance the gain to the public welfare resulting from the legislation against the severity of its effect on personal and property rights. A law is unconstitutional as violating due process when it is arbitrary or unreasonable, and the latter occurs when the social necessity the law is to serve is not a sufficient justification of the restriction of the liberty or rights involved.

Our examination of Chapter 13 of the Texas Family Code, and in particular Section 13.05(a), leads us to conclude that the Texas Legislature has providently afforded illegitimates generally and appellant specially, both substantive and procedural due process. Accordingly, we hold that Section 13.05(a) is constitutional and that appellant has not been denied either substantive or procedural due process or equal protection under the provisions of the U.S. Constitution or the Texas Constitution related thereto.

In our review of the sections of Chapter 13 of the Texas Family Code, we have noticed that the legislature has not provided a method for determining paternity when blood tests of all parties are not available. How does an illegitimate child, or a posthumously born illegitimate child, prove paternity when the alleged father is deceased and his blood test is not available? We do not believe that this question has been answered in Weber, supra; Trimble, supra; Gomez, supra; or in Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968) or Gloria v. American Guarantee & Liability Insurance Co., 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441 (1968), or by the legislature.

The judgment of the trial court is affirmed.

      . Unless otherwise indicated, all references are to chapters and sections of the Texas Family Code (Supp.1978).


author: CIRE, Justice.

text:
    Nelson Bunker HUNT et al., Appellants/Appellees, v. COASTAL STATES GAS PRODUCING COMPANY et al., Appellees/Appellants.
    No. 1809.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Aug. 23, 1978.
    Rehearings Denied Sept. 13, 1978.

      A. B. Conant, Jr., Drew R. Heard, Cecil W. Casterline, Shank, Irwin, Conant, Williamson & Grevelle, Dallas, for appellants.
    Dan G. Matthews, Daniel K. Hedges, Linda Leuehter Addison, Pulbright & Jaworski, Houston, for appellees.
   CIRE, Justice.

Nelson Bunker Hunt, Herbert Hunt and Lamar Hunt (collectively referred to as “Hunt”) originally instituted a suit for conversion against Coastal States Gas Producing Company and Coastal States Marketing, Inc. (collectively referred to as “Coastal States”) claiming that Coastal States had converted oil to which Hunt was entitled by virtue of a concession agreement with Libya. Coastal States answered and filed a counterclaim for tortious interference with its contract and business opportunities. Coastal States moved for summary judgment on Hunt’s claim. Hunt moved for summary judgment only on the issue of liability in the original suit and for a general summary judgment against Coastal States on Coastal States’ counterclaim. The trial court granted Coastal States’ motion for summary judgment in the original suit and Hunt’s motion for summary judgment on the counterclaim. Both sides appeal.

In 1957 Libya granted a concession (Concession Number 65) to Nelson Bunker Hunt. The concession gave Hunt the right, for fifty years, to explore, drill and extract oil. Subsequently, Herbert Hunt and Lamar Hunt acquired an interest in the concession pursuant to an agreement with Nelson Bunker Hunt. In 1960, with the approval of the Libyan government, the Hunts assigned a one-half undivided interest in the concession to British Petroleum Exploration Company, Limited.

In 1961 oil was discovered in the concession (hereinafter called the Sarir field). Oil was produced in marketable quantities by 1967. In 1971, the Libyan government nationalized the operations and interest of British Petroleum in the Sarir field and transferred its rights to the Arabian Gulf Exploration Company (AGECO).

In 1973, the Libyan government, by the enactment of Libyan Law Number 42, nationalized Hunt’s interest in the Sarir field. Article 1 of Libyan Law Number 42 provides:

The rights of Nelson Bunker Hunt in Oil Concession Agreement No. 65 shall be nationalized, and ownership of all the funds, rights, assets and shares of Nelson Bunker Hunt in the said concession shall revert to the State, including specifically all the rights relating to the installations and facilities for prospecting, exploration and drilling for, and production of, crude oil and natural gas, as well as for transportation, processing, storage and export, and other assets and rights relating to the said concession.

Hunt’s rights and assets were than transferred and assigned to AGECO. Hunt subsequently published notices in newspapers throughout the world claiming that the Libyan nationalization of the Sarir field violated international law and was of no effect, and additionally threatened suit against anyone who came into possession of Sarir oil. In May 1973, approximately the time the nationalization decree was issued, Coastal States entered into a contract with AGECO to purchase oil from the Sarir field. The oil was then transported to a refinery in Italy. This contract was consummated and performed despite Hunt’s claims against Libya. Hunt ultimately settled his claims against Libya in May 1975. In that agreement, Hunt released any and all claims against the Libyan government which arose out of the nationalization of the Sarir field. Hunt was paid approximately $19,000,000.00 as consideration.

In August, 1973 Hunt instituted this suit against Coastal States for conversion of the Sarir field oil. Hunt claimed that the Libyan government confiscated his property in violation of: (1) the concession agreement between the parties; (2) international law; and (3) the public policy of the United States and that such an illegal confiscation could not and did not affect Hunt’s rights to recover against subsequent converters of oil from the Sarir field. Hunt claimed that Coastal States acquired the petroleum from the Sarir field and exercised dominion and control over such oil with full knowledge of and inconsistent with Hunt’s possessory rights, title and interest. Coastal States counterclaimed against Hunt for tortious interference with Coastal States’ contractual relations and business opportunities.

At a pre-trial hearing both Hunt and Coastal States called experts in international and foreign law who expressed their opinions regarding the application of Libyan and international law to the facts presented in this case. Following the hearing, the parties submitted motions for summary judgment.

In October 1977 the trial court entered its final judgment, granting Coastal States’ motion for summary judgment on Hunt’s conversion claim, denying Hunt’s motion for summary judgment on the issue of liability and granting Hunt’s motion for summary judgment on Coastal States’ claim for tortious interference with Coastal States’ contracts and business opportunities. The trial court additionally filed conclusions of law stating that Libyan law determined the interest acquired by Hunt in the Sarir field, and under Libyan law, Hunt did not acquire title to the oil, but merely a contract right to extract the oil. The trial court also found that the Act of State Doctrine applied to this case and foreclosed the trial court from inquiring into the validity of the Libyan nationalization of Hunt’s interest in the Sarir field, and, no exception to this doctrine was applicable. Regarding Coastal States counterclaim for tortious interference, the court held that, as a matter of law, Hunt’s actions in giving notice of his claim to oil from the Sarir field did not violate either state or federal law, and his actions in giving such notice were neither malicious or capricious.

Both parties appeal from the judgment rendered by the trial court.

APPEAL BY HUNT

Hunt asserts seven points of error attacking the trial court’s findings as to the applicability of the Act of State Doctrine, the applicability of Libyan law rather than international law, and its finding that Hunt had only a contractual right to extract the oil.

Since Coastal States’ possession of the oil is clearly rightful, and does not constitute a conversion, if its transferor’s title was good, the critical issue in the resolution of Hunt’s whole suit is whether Libya’s expropriation was valid. This, in turn, presents the question of whether a Texas court may inquire into the acts done by a foreign sovereign. Such inquiry is generally barred by the Act of State Doctrine. In his first two points Hunt asserts four reasons why the Act of State Doctrine, which bars inquiry into the validity of the actions of an expropriating nation, should not apply to the Libyan nationalization in this ease: (1) the State Department has expressed its views that the Libyan nationalization was violative of international law and it would be unlikely that the executive branch would request American courts to refrain from considering the validity of the acts of Libya on the grounds of the Act of State Doctrine (the Bernstein exception); (2) Libya, by nationalizing the oil field and marketing the petroleum in international commerce did not act officially as a sovereign (the commercial act exception); (3) the Hickenlooper amendment, designed to undercut the Act of State Doctrine is applicable; and (4) Libya and Hunt, parties to the concession agreement, included an “applicable law” clause in the concession agreement which is unambiguous and these terms should be given effect regardless of the Act of State Doctrine.

For reasons discussed herein, we affirm the summary judgment granted against Hunt.

THE ACT OF STATE DOCTRINE

The Act of State Doctrine is a judicially created doctrine of restraint. The classic formulation of that doctrine was restated in Banco Nacional de Cuba v. Sabbatino:

Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another, done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves.

376 U.S. 398, 416, 84 S.Ct. 923, 934, 11 L.Ed.2d 804 (1964) quoting Underhill v. Hernandez, 168 U.S. 250, 252, 18 S.Ct. 83, 84, 42 L.Ed. 456 (1897).

Hunt claims under his second point that the Bernstein exception to this doctrine applies and permits judicial inquiry into the validity of the Libyan nationalization. See Bernstein v. N.V. Nederlandsche-Amerikaansche Etc., 210 F.2d 375 (2d Cir. 1954). We disagree.

It is highly questionable whether there is such an exception. In First National City Bank v. Banco Nacional de Cuba, Justice Rehnquist defined and analyzed the Bernstein exception and concluded:

[T]hat where the Executive Branch, charged as it is with primary responsibility for the conduct of foreign affairs, expressly represents to the Court that application of the act of state doctrine would not advance the interests of American foreign policy, that doctrine should not be applied by the courts. In so doing, we of course adopt and approve the so-called Bernstein exception to the act of state doctrine.

406 U.S. 759, 768, 92 S.Ct. 1808, 1813, 32 L.Ed.2d 466 (1972). However, the dissent, comprised of four justices, pointed out that only Chief Justice Berger and Justice White concurred with Justice Rehnquist. Two additional justices concurred with Justice Rehnquist only in result. The dissent explicitly rejected the Bernstein exception and reasoned that the validity of a foreign act of state is a “political question not cognizable in our courts.” 406 U.S. at 787-88, 92 S.Ct. at 1823. Additionally, Justice Powell, in his concurring opinion disapproved of the Bernstein exception:

I would be uncomfortable with a doctrine which would require the judiciary to receive the Executive’s permission before invoking its jurisdiction. Such a notion, in the name of the doctrine of separation of powers, seems to me to conflict with that very doctrine.

406 U.S. at 773, 92 S.Ct. at 1816. Therefore, we conclude that the Bernstein exception is no longer viable, and we do not consider whether the expressions of the State Department regarding the Libyan nationalization were sufficient expressions to the court. See Alfred Dunhill of London v. Republic of Cuba, 425 U.S. 682, 725, 96 S.Ct. 1854, 1875-76, 48 L.Ed.2d 301 (1976) (dissenting opinion); Menendez v. Saks and Company, 485 F.2d 1355, 1373 (2d Cir. 1973) rev’d on other grounds sub nom., Alfred Dunhill of London v. Republic of Cuba, 425 U.S. 682, 96 S.Ct. 1854, 48 L.Ed.2d 301 (1976). See also Hunt v. Mobil Oil Corp., 550 F.2d 68, 77-79 (2d Cir. 1977). Furthermore, we decline to give credence to the exception due to the separation of powers rationale enunciated in Justice Harlan’s opinion in Banco Nacional de Cuba v. Sabatino, 376 U.S. 398, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964) and in Justice Powell’s concurring opinion in First National City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 773-76, 92 S.Ct. 1808, 1816-17, 32 L.Ed.2d 466 (1972).

Hunt’s second contention in his first point of error is that when a foreign government engages in a “commercial” activity, such as Libya’s conduct with regard to the Sarir field, the Act of State Doctrine does not apply and a court can inquire into the validity of the nationalization decree. In Hunt’s brief, he directs this court to consider language from Alfred Dunhill of London v. Republic of Cuba:

[W]e are nevertheless persuaded by the arguments of petitioner and by those of the United States that the concept of an act of state should not be extended to include the repudiation of a purely commercial obligation owed by a foreign sovereign or by one of its commercial instru-mentalities. Our cases have not yet gone so far, and we decline to expand their reach ....

425 U.S. 682, 695, 96 S.Ct. 1854, 1861 (1976). The aforementioned language is authored by Mr. Justice White. However, upon examination of Dunhill, we conclude that this language is not the language of a majority of the Supreme Court and the validity or existence of this exception is likewise doubtful. But, in any event, when a foreign state has exercised a sovereign power, as Libya did here, it is a governmental, and not a commercial, act. Alfred Dunhill of London v. Republic of Cuba, 425 U.S. 682, 720, 96 S.Ct. 1854, 1873, 48 L.Ed.2d 301 (1976) (dissenting opinion). See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964); Hunt v. Mobil Oil Corp., 550 F.2d 68 (2d Cir. 1977).

In Hunt’s second point, he claims that the trial court committed error when it refused to apply the Hickenlooper amendment to obviate and avoid the Act of State Doctrine. The Hickenlooper amendment (sometimes referred to as the Sabbatino amendment) was enacted by Congress in reaction to the Sabbatino holding. The pertinent portions state that:

[N]o court in the United States shall decline on the ground of the federal act of state doctrine to make a determination on the merits giving effect to the principles of international law in a case in which a claim of title or other right to property is asserted by any party including a foreign state . . . based upon (or traced through) a confiscation or other taking . by an act of that state in violation of the principles of international law.

22 U.S.C. § 2370(e)(2). We recognize at the outset that this exception is extremely narrow. Occidental of Umm Al Qaywayn, Inc. v. Cities Serv. Oil Co., 396 F.Supp. 461, 471 (W.D.La.1975); Occidental Petroleum Corp. v. Buttes Gas & Oil Co., 331 F.Supp. 92, 112 (C.D.Cal.1971), aff’d, 461 F.2d 1261 (9th Cir. 1972), cert. denied, 409 U.S. 950, 93 S.Ct. 272, 34 L.Ed.2d 221; United Mexican States v. Ashley, 556 S.W.2d 784, 786 (Tex.Sup.1977).

Three elements must exist in order to avoid the Act of State Doctrine under the Hickenlooper amendment. First, expropriated property must come within the territorial jurisdiction of the United States. Second, the act of the expropriating nation must be in violation of international law. Third, the asserted claim must be a claim of title or other right to property.

Without considering the merits of the first two requirements we conclude that the Hickenlooper amendment is inapplicable to this case because Hunt acquired only a contract right in the concession agreement. See Occidental of Umm Al Qaywayn, Inc. v. Cities Serv. Oil Co., 396 F.Supp. 461, 472 (W.D.La.1975); French v. Banco Nacional de Cuba, 23 N.Y.2d 46, 295 N.Y.S.2d 433, 448, 242 N.E.2d 704, 714 (N.Y.Ct.App.1968).

There was some disagreement among the testifying experts as to whether, in construing the contract, international law or Libyan law applied. But international law does not govern the nature of the rights conferred by the contract. Under well established Texas conflict of laws rules, Libya substantive law governs the interpretation and construction of the concession agreement. This is true whether the oil is characterized as personalty or realty since Libya is both the place of the contract’s execution and performance and the location of its subject matter. Cantu v. Bennett, 39 Tex. 303 (1873); see Austin Building Co. v. National Union Fire Ins. Co., 432 S.W.2d 697 (Tex.Sup.1968) (personalty); Colden v. Alexander, 141 Tex. 34, 171 S.W.2d 328 (1943) (realty). Although expert witnesses called by the parties also differed on the meaning and effect of the applicable law, the law is explicitly stated and clear. Libyan Petroleum Law Number 25 of 1955 provides:

(1) All petroleum in Libya in its natural state in strata is the property of the Libyan State.
(2) No person shall explore or prospect for, mine or produce petroleum in any part of Libya, unless authorized by a permit or concession issued under this law.

The original agreement executed in 1957 provided, in clause 1, that:

. the Commission hereby grants to the Company, subject to the conditions hereof and the provisions of the Law, the exclusive right for a period of . fifty .... years to carry out geological investigations, including aerial surveys, and to search for by any other- means, bore for, and extract petroleum within and over the area outlined in red on the map annexed hereto of approximately .... 32944. square kilo-metres situated in the . 3. . Zone bounded and defined ....
The Company shall also have the right to take away such petroleum whether by pipeline or otherwise from the concession area and to use, process, store, export and dispose of the same.

Clause 29 of that agreement, titled “Interpretation,” states that the “Law” means the Petroleum Law of 1955.

Further, the amended agreement voluntarily entered into by Hunt and Libya in January 1966, approximately five years before Libya’s gradual nationalization of the Sarir field, and after oil had been discovered, again specifically refers to and is governed by Petroleum Law Number 25 of 1955. Clause 16 of that agreement states:

(1) The Government of Libya will take all the steps necessary to ensure that the Company enjoys all the rights conferred by the Concession. The contractual rights expressly created by this concession shall not be altered except by mutual consent of the parties.
(2) This Concession shall throughout the period of its validity be construed in accordance with the Petroleum Law and the Regulations in force on the date of the execution of the agreement of amendment by which this paragraph 2 was incorporated into this concession agreement. Any amendment to or repeal of such Regulations shall not affect the contractual rights of the Company without its consent.

This language is significant in that it not only refers to Hunt’s rights as “contractual” but also recognizes Libya’s ownership of the oil. As this court has recently had occasion to point out, phrases in important, multimillion dollar contracts are not inserted loosely, and it is presumed that the parties to such an agreement were aware of the significance and effect of each word agreed upon. See City of Houston v. R. F. Ball Construction Company, Inc., Tex.Civ.App., 570 S.W.2d 75 (Tex.Civ.App.—Houston [14th Dist.] 1978).

Hunt argues that it is clause 28(7) of the concession agreement, not clause 29 or clause 16, that governs the rights of the parties, and, under that clause international law applies. Clause 28(7) reads:

This Concession shall be governed by and interpreted in accordance with the principles of law of Libya common to the principles of International Law and in the absence of such common principles, then by and in accordance with the general principles of law, including such of those principles as may have been applied by international tribunals.

This clause, however, deals solely with arbitration. It speaks not to the nature of the rights granted and acquired under the concession agreement, but merely to the enforcement of those rights following a breach of the agreement; it deals with remedies, not substantive rights. In this regard we agree with the analysis offered by K. Lipstein in 29 Transactions of the Grotius Society, Conflict of Laws Before International Tribunals (II), 55-56 (1943):

First, the tribunal must decide whether a private party interest exists in the light of domestic law and in whom such interest is vested.
* * * * * *
Secondly; once the preliminary investigation has established the existence of a private law right, the tribunal must determine whether the violation of the right acquired under municipal law constitutes an illegal act under international law.

Libyan Law Number 42 did expropriate the physical assets of Hunt but Libya never relinquished its ownership of the oil, and consequently cannot have expropriated it from Hunt. While Libya’s actions presumably constituted a breach of the concession agreement with Hunt, they do not amount to a confiscation of the oil since Hunt never acquired a valid claim of title or other right in the unsevered oil but only a right to the oil which Hunt extracted. Therefore, the Hickenlooper amendment does not apply and the Act of State Doctrine precludes judicial inquiry into Libya’s actions. See Occidental of Umm Al Qaywayn, Inc. v. Cities Serv. Oil Co., 396 F.Supp. 461, 472 (W.D.La.1975); French v. Banco Nacional de Cuba, 295 N.Y.S.2d 433, 448-49, 242 N.E.2d 704, 714-15 (N.Y.Ct.App.1968).

The fourth exception which Hunt asserts in an attempt to avoid the application of the Act of State Doctrine is that it simply does not apply when the private enterprise and expropriating country have jointly executed an unambiguous agreement which enunciates controlling legal principles. Hunt points to the “applicable law” clause (clause 28(7)) in the 1957 concession agreement, and then directs this court to language in Banco Nacional de Cuba v. Sabbatino, in which Hunt claims that the Act of State Doctrine does not apply:

[T]he Judicial Branch will not examine the validity of a taking of property within its own territory by a foreign sovereign government, extant and recognized by this country at the time of suit, in the absence of a treaty or other unambiguous agreement regarding controlling legal principles, even if the complaint alleges that the taking violates customary international law.

376 U.S. 398, 428, 84 S.Ct. 923, 940 (1964). We have examined subsequent cases which cite the aforementioned language and conclude it is unclear what type of “unambiguous agreement” the opinion refers to. However, we conclude that this language is inapplicable to this case since, as we have held, Libya did not expropriate property (the oil) from Hunt.

We have examined all of Hunt’s points of error and, having concluded that the Act of State Doctrine bars judicial inquiry into the validity of Libya’s actions, the trial court’s grant of summary judgment against Hunt on his claim for conversion is hereby affirmed;"

APPEAL BY COASTAL STATES

Coastal States, in its nine points of error, claims that the trial court erred when it granted Hunt’s motion for summary judgment on Coastal States’ claims of tortious interference with its contract and business opportunities. We have considered these points and they are hereby overruled.

An essential element to the claims for tortious interference with contractual relations and business relations is that the defendant’s acts must have no legal justification. We have examined the record and conclude that as a matter of law Hunt’s actions were legally justified and there is no genuine issue of fact on this essential element. See Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.Sup.1970).

The trial court concluded that Hunt had a contractual interest in the Sarir field at the time of nationalization. This interest was repudiated by Libya and the record clearly shows that Hunt instituted litigation against various corporations in the international community due to their dealings in Sarir oil and additionally apprised corporations of his intent to file suit if indeed they dealt with such oil. However, these actions were legally justified due to the repudiation of the concession agreement. See Terry v. Zachry, 272 S.W.2d 157 (Tex.Civ.App.—San Antonio 1954, writ ref’d n. r. e.). See also St. Joseph Pro. Bldg. Corp. v. American Nat. Ins. Co., 511 S.W.2d 578 (Tex.Civ.App.—Houston [14th Dist.] 1974, writ ref’d n. r. e.).

The court properly granted Hunt’s motion for summary judgment on Coastal States’ claims of tortious interference with business contracts and business relations; there is no genuine issue of fact regarding the essential element of no legal justification.

The trial court’s judgment is affirmed.