author: GREEN, Commissioner.

text:
    Nathaniel SHAW, Appellant, v. The STATE of Texas, Appellee.
    No. 50891.
    Court of Criminal Appeals of Texas.
    Nov. 5, 1975.
    Jack D. Bryant, Dallas, for appellant.
    Henry Wade, Dist. Atty., Steve Wilensky, Paul Maealuso, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before a jury, appellant was convicted of unauthorized use of a motor vehicle. Punishment, enhanced under V.T. C.A. Penal Code, Section 12.42(a) was assessed at twelve years.

Appellant’s court appointed counsel has filed a brief in which he states that after examination of the record he has determined that the appeal is frivolous and without merit. He has submitted two grounds of error which, he says, might arguably support the appeal. The record discloses that a copy of this brief was timely furnished appellant, who was advised of his rights to personally review the record and file a pro se brief. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493; Gainous v. State, Tex.Cr.App., 436 S.W.2d 137. No pro se brief has been filed.

The first ground of error raises the contention that the evidence is not sufficient to support the conviction.

The testimony of Curtis Anderson and David Scoggins establishes that Anderson’s 1970 gold Pontiac Firebird automobile was stolen from Scoggins’ parking lot in Dallas between 6:00 p. m. and 7:00 p. m. May 29, 1974. The theft was reported to the Dallas Police Department.

“(b) An offense under this section is a felony of the third degree.”

At about 5:45 p. m. May 30, 1974, Police Officer Gregg Floyd, while on duty in his marked police car, had occasion to attempt to stop a 1970 gold Pontiac Firebird in Dallas for driving on the wrong side of the street and speeding. A chase by Floyd of the car ensued, during which the officer learned by police radio that the car had been reported stolen. Floyd testified that as the car approached a shopping center the lone occupant jumped out of the moving car and began running. The driverless car collided with a parked car and stopped. After pursuing the driver of the car, who had run for about 150 yards across a parking lot, Floyd caught up with and arrested him. The officer positively identified this man as being appellant. According to Floyd, at one time during the car chase he was able to drive his car alongside of the Pontiac, and look inside the ear. There was no passenger in the car, and Floyd identified appellant as being the driver.

Appellant testified, denying having taken the car from the parking lot on May 29. He admitted being in the Pontiac on the 30th during the chase, saying that he had been picked up by a friend who was driving it and was riding as a passenger without knowing the car had been stolen. He said he jumped from the moving car after the driver had done so, and admitted running from the officer and being caught by him.

Anderson, the owner, and Scoggins, the parking lot attendant, testified that no consent was given appellant or anyone else to take the Pontiac from the lot. Anderson identified the car in which appellant was riding when chased by Officer Floyd as being his car and testified that appellant did not have his consent to operate it at that or any other time.

Issues of fact were raised by the evidence for the jury’s determination. The evidence is sufficient to support the conviction.

In his second ground, counsel for appellant contends that since appellant’s prior conviction used for enhancement of the punishment under Y.T.C.A., Penal Code, Section 12.42(a), supra, occurred before the effective date of the new penal code, and particularly of said Section 12.42(a), his punishment as a second offender under said Section would be invalid because the enhancement part of the statute would be an ex post facto law and, therefore, in conflict with Article 1, Section 10 of the United States Constitution.

In Vasquez v. State, Tex.Cr.App., 477 S.W.2d 629, a similar contention was made in an appeal from a conviction for possession of marihuana in which the punishment was enhanced in accordance with Article 725b, Section 23(1), V.A.P.C., as amended. This Court, in overruling defendant’s contention, said:

“It is well settled that a conviction which occurred prior to the enactment of a statute providing for increased punishment upon a subsequent conviction may be used for enhancement purposes under that statute, and that such usage is not unconstitutional as being an ex post facto application of the statute.” Citing many authorities.
The opinion adds:
“The reason that a conviction which occurred before the statute was enacted may be used for enhancement is that the statute providing for a greater penalty upon a subsequent conviction does not seek to punish the offender for the original criminal act a second time, but rather ‘The repetition of criminal conduct aggravates. . . . guilt and justifies heavier penalties . . .’ Graham v. West Virginia, 224 U.S. 616, 623, 32 S.Ct. 583, 585, 56 L.Ed. 917 (1912).”

For the reasons stated in Vasquez, supra, the second ground of error is overruled.

A review of the record does not disclose any unassigned error which should be considered in the interest of justice. See Arti-ele 40.09, Section 13, V.A.C.C.P.

The judgment is affirmed.

Opinion approved by the Court.

DOUGLAS, J., not participating.

      . V.T.C.A. Penal Code, Section 31.07, which provides:
      “(a) A person commits an offense if he intentionally or knowingly operates another’s boat, airplane, or motor-propelled vehicle without the effective consent of the owner.

      . Section 12.42(a) — “If it be shown on the trial of a third-degree felony that the defendant has once before been convicted of any felony, on conviction he shall be punished for a second-degree felony.”


source: Caselaw Access Project

author: ODOM, Judge.

license: Public Domain

text:
    Santiago G. PACHECO, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 50933.
    Court of Criminal Appeals of Texas.
    Nov. 5, 1975.
    Antonio G. Cantu, San Antonio, on appeal only, for appellant.
    Ted Butler, Dist. Atty., Michael Schill and Susan D. Reed, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

Appellant was convicted of aggravated assault with a deadly weapon. Punishment was assessed at ten years.

Appellant waived his right to demand prosecution upon indictment and proceeded to trial upon information. Art. 1.141, V.A. C.C.P. In his only ground of error appellant challenges the sufficiency of the information to charge an offense. In material part the information alleges that appellant:

“did then and there use a pistol, a deadly weapon, to intentionally threaten imminent bodily injury to Ernest Riojas.

We perceive no material difference between alleging that one intentionally threatened another with imminent bodily injury by using a pistol and alleging that one used a pistol to intentionally threaten another with imminent bodily injury. Each is sufficient to allege aggravated assault with a deadly weapon under V.T.C.A. Penal Code, Sections 22.01(a)(2) and 22.02(a)(3). The ground of error is overruled.

The judgment is affirmed.

DOUGLAS, J., not participating.

      . V.T.C.A. Penal Code, Sec. 22.01(a)(2), provides:
      “(a) A person commits an offense if he:

      “(2) intentionally or knowingly threatens another with imminent bodily injury; or .
      V.T.C.A. Penal Code, Sec. 22.02(a)(3), provides:
      “(a) A person commits an offense if he commits assault as defined in Section 22.-01 of this code and he:

      “(3) uses a deadly weapon. . . .”


author: MORRISON, Judge.

text:
    Dick MEARS, Appellant, v. The STATE of Texas, Appellee.
    No. 50949.
    Court of Criminal Appeals of Texas.
    Nov. 5, 1975.
    John E. Rapier (Court-Appointed on appeal only), Dallas, for appellant.
    Henry Wade, Dist. Atty., Richard W. Wilhelm and Les Eubanks, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is felony theft; the punishment, two years.

Appellant pled guilty and entered into a written agreement to stipulate. On appeal appellant contends that his judicial confession was insufficient because it failed to recite that the appellant intended to appropriate the stolen property to the use and benefit of the appellant. The written stipulation, which appellant testified was substantially true and correct, contains no recitation of appellant’s intent to appropriate, which is an essential element of the offense denounced by Art. 1410, V.A.P.C.

The evidence is insufficient to support the conviction. Martin v. State, Tex.Cr.App., 491 S.W.2d 421.

The judgment is reversed and the cause remanded.

DOUGLAS, J., not participating.

      . Art. 1410, supra, reads as follows:
      “ ‘Theft’ is the fraudulent taking of corporeal personal property belonging to another from his possession, or from the possession of some person holding the same for him, without his consent, with intent to deprive the owner of the value of the same, and to appropriate it to the use or benefit of the person taking.” (Emphasis added)


author: ROBERTS, Judge.

text:
    Ex parte Henry Lee JOHNSON.
    No. 51312.
    Court of Criminal Appeals of Texas.
    Nov. 5, 1975.

      W. John Allison, Jr., Dallas, for appellant.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is a post conviction habeas corpus proceeding under Article 11.07, V.A.C.C.P.

Petitioner was convicted of robbery by assault. The punishment, enhanced under the provisions of Article 62, Vernon’s Ann. P.C., was assessed at life. The trial began on September 9, 1968. The judgment was pronounced and entered on September 13, 1968, and sentence was pronounced and entered on February 11, 1969. Petitioner appealed from such conviction, and the judgment of the trial court was affirmed by this Court. See Johnson v. State, 463 S.W.2d 736 (Tex.Cr.App.1971). On March 26, 1971, after the mandate of this Court was issued, the trial court resentenced petitioner for the purpose of allowing him credit for the time he had served in jail. He was granted credit for the time he had spent in jail, with the trial court ordering that sentence was to begin-January 14, 1968. The trial court did not grant the petitioner any good time credit.

Petitioner is now seeking good time credit for the time he served in jail prior to his transfer to the Texas Department of Corrections. Petitioner relies on Pruett v. Texas, 468 F.2d 51 (5th Cir.1972), aff’d and modified in part, 470 F.2d 1182 (5th Cir., en banc), aff’d 414 U.S. 802, 94 S.Ct. 118, 38 L.Ed.2d 39 (1973), holding that a state prisoner was entitled to good time credit for the period of time spent in jail prior to his transfer to the Texas Department of Corrections. However, in Pruett, it was expressly held that the rule there announced would have prospective application only.

This Court refuses to apply the rule announced in Pruett retroactively. Therefore, petitioner’s requested relief is denied.

DOUGLAS, J., not participating.


author: KLINGEMAN, Justice.

text:
    Elaine S. BRUNGS et vir., Appellant, v. CONSOLIDATED PLAN SERVICE, INC., Appellee.
    No. 15411.
    Court of Civil Appeals of Texas, San Antonio.
    Sept. 17, 1975.
    Rehearing Denied Oct. 15, 1975.

      Tuck R. Chapin, San Antonio, for appellant.
    Alfred W. Offer, San Antonio, for appel-lee.
   KLINGEMAN, Justice.

Plaintiff, Elaine S. Brungs, appeals from a take-nothing judgment entered against her in her suit against defendant, Consolidated Plan Service, Inc., for damages sustained by her in a truck-car collision. Trial was to a jury. The jury found that: (a) plaintiff failed to keep a proper lookout and such failure was a proximate cause of the occurrence in question; (b) plaintiff failed to make proper application of the brakes and such failure was a proximate cause of the occurrence in question; (c) plaintiff overtook and attempted to pass the vehicle driven by defendant’s driver, such action was negligence, and such negligence was the proximate cause of the occurrence in question. The jury absolved defendant of any negligence, finding that: (a) defendant’s driver did not fail to keep a proper lookout; (b) defendant’s driver was not driving at an excessive rate of speed; (c) defendant’s driver did not fail to make a proper application of brakes; (d) defendant’s driver was not attempting to turn his vehicle to the left; (e) defendant’s driver moved his vehicle from the outside lane to the inside lane, but that such movement was not negligence and was not a proximate cause of the occurrence in question; (f) defendant’s driver did not fail to yield the right of way to the vehicle driven by plaintiff. Seven damage issues were submitted with the jury finding that plaintiff incurred past medical expenses of $605.45, but the jury answered all other damage issues adversely to plaintiff. Plaintiff did not file a motion for instructed verdict or for judgment non obstante veredicto.

Plaintiff’s point of error No. 2 complains that the jury’s answers to Special Issues Nos. 1, 5, 7, 10a, 11, 12, 12a and 13 (negligence of defendant) are supported by no evidence. Plaintiff’s point of error No. 3 complains that the jury’s answers to Special Issues Nos. 1, 3, 5, 7, 10a, 11, 12, 12a and 13 are against the great weight and preponderance of the evidence. Her fourth point of error asserts that Special Issues Nos. 14, 15,18, 20, 21 and 22 (negligence of plaintiff) are supported by no evidence. Her fifth point of error asserts that the jury’s answers to Special Issues Nos. 14, 15, 18, 19, 20, 21 and 22 are against the great weight and preponderance of the evidence. Two points of error assert that the jury’s answers to Special Issues Nos. 23, 24, 25, 26, 27, 28 and 29 (damages) are supported by no evidence and against the great weight and preponderance of the evidence.

Defendant asserts that such points of error are multifarious and are too broad and general to be considered by this Court. It further asserts that such points of error have not been properly preserved for appellate review.

Clearly such points of error are very general and overly broad, are multifarious, and do not strictly comply with the rules of civil procedure. However, appellate courts, including this Court, have given a liberal interpretation of the rules in favor of the sufficiency of an appellant’s brief and frequently consider general and multifarious points of error where, from the statements and arguments under the point, the nature of appellant’s complaint can be determined.

A more serious question is presented as to whether such points of error are preserved for review by proper assignments in appellant’s amended motion for new trial. Such points of error are predicated upon the following assignments of error in such motion for new trial: (2) that the evidence introduced in the trial court proved as a matter of law that the defendant was guilty of negligence on the occasion in question which proximately caused the injuries and damages sued for by Elaine S. Brungs, and that the jury’s answers to Special Issues Nos. 1, 3, 5, 7, 10a, 11, 12, 12a and 13 (negligence of defendant) are against the great weight and preponderance of the evidence and, in effect, are supported by no evidence; (3) the jury’s answers to Special Issues Nos. 14, 15, 18, 19, 20, 21 and 22 (negligence of plaintiff) are against the great weight and preponderance of the evidence and are supported by no evidence; (4) the jury’s answers to Special Issues Nos. 23, 24, 25, 26, 27, 28 and 29 (damages) are against the great weight and preponderance of the evidence and the negative findings are supported by no evidence; and that the jury’s verdict as a whole was against the great weight and preponderance of the evidence.

It is seen that the assignments of error in the motion for new trial are even more broad and general than the points of error in the brief and are clearly multifarious. We have previously pointed out that our appellate courts have shown an inclination to consider broad and multifarious points of error asserted in an appellant’s brief where, from the statements and arguments in the brief, the gist of appellant’s complaint can be determined. However, no such liberality has been extended in determining the sufficiency of an assignment of error in a motion for new trial. Smith v. Brock, 514 S.W.2d 140 (Tex.Civ.App. — Texarkana 1974, no writ); Texas Indemnity Insurance Company v. Warner, 159 S.W.2d 173 (Tex.Civ. App. — Texarkana 1972, writ ref’d w. o. m.). There must be substantial compliance with the provisions of the rules pertaining to assignments of error in motions for new trial if a litigant is to have his point of error based thereon considered by an appellate court. Rules 320, 321, 322 and 374, Tex.R.Civ.P. (1967); Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960); Tex-Wash Enterprises, Inc. v. Robna, Inc., 488 S.W.2d 504 (Tex.Civ.App. — Waco 1972, writ ref’d n. r. e.).

An examination of plaintiff’s amended motion for new trial shows that plaintiff is attempting to complain of the entire charge containing 29 Special Issues by three assignments of error wherein she complains of both legal and factual insufficiency of various separate and distinct acts of negligence of both plaintiff and defendant, and of seven separate and distinct damage issues. Plaintiff seeks in each of these assignments of errors to complain in one point in a general way about several distinct and separate matters. For example, assignment of error No. 2 complains of nine separate factual findings by the jury; assignment No. 3 complains of seven separate factual findings by the jury; and assignment No. 4 complains of seven separate factual findings by the jury. All of such assignments of error embrace more than one ground of error, are multifarious in nature, are too general and overly broad, and in effect constitute a general assignment.

For the reasons hereinabove set forth, plaintiff’s points of error Nos. 2, 3, 4, 5, 6, and 7 are not properly preserved for appellate review by her amended motion for new trial and cannot be considered on this appeal. Niemann v. State, 471 S.W.2d 124 (Tex.Civ.App. — San Antonio 1971), rev’d on other grounds, 479 S.W.2d 907 (Tex.1972); Collins v. Smith, 142 Tex. 36, 175 S.W.2d 407 (1943); Wagner v. Foster, supra; Smith v. Brock, supra; Kettle v. Smircich, 415 S.W.2d 935 (Tex.Civ.App. — Corpus Christi 1967, no writ); Bauguss v. Bauguss, 186 S.W.2d 384 (Tex.Civ.App. — Dallas 1945, writ ref’d w. o. m.); Rules 320, 321, 322 and 374, Tex.R.Civ.P. (1967).

By her only other point of error, plaintiff contends that the judgment should be reversed because of jury misconduct. The gist of her complaint here is that an agent or representative of defendant made friends with and conversed with members of the jury, and that the bailiff of the court had an extended conversation with at least one juror.

The pertinent information pertaining to such alleged jury misconduct may be summarized as follows: (1) an affidavit by plaintiff attached to her first amended motion for new trial, in which she states that on the last day of the trial, Richard Villasa-na, an officer or agent of defendant, during a break in the court proceedings, had a conversation with at least two jurors, whom she did not know, but in which conversation she overheard Mr. Villasana state in effect “that it was a shame people brought law suits such as this as it tended to run insurance rates up so high that it would break their small company”; (2) an affidavit by Tuck Chapin, Esq., stating that immediately after the verdict of the jury was returned, plaintiff told him that she heard two jurors talking to Mr. Villasana and related the conversation as set forth in her affidavit; (3)testimony by plaintiff (a) that on several occasions she saw Mr. Villasana talking to different jurors; that it bothered her because she could not understand why Mr. Villasana was allowed to talk to the jury when she was not; that she could not remember whether such conversation occurred on the last day of the trial or the day before; (b) that on one occasion when she had come back from lunch, Mr. Villasa-na and a man were carrying on a lengthy conversation and she overheard them talking to the effect that the small companies would go broke if they had to have such cases as this come into court and insurance rates would go up; that as soon as they saw her they separated; (c) that she saw Mr. Villasana talking to more than one juror, and on one occasion saw him talking to an elderly black juror but that she did not overhear what was said; (4) the statement by Mr. Villasana set forth in her affidavit; (5) Mr. Lawrence E. Maha testified that he was a juror in the case. Mr. Maha was asked whether he had ever talked to Mr. Villasana during the process of the trial, and he stated that he had “bid him the time of day . . . Like hello or something like that.” He further said that the bailiff was present at such time and that the talk was “just common talk.” He stated that he did not recall any comment by anyone to the effect that it was a shame that people brought suits like this and that it would raise insurance rates; (6) Mr. Manuel Garza, another juror in the case, testified that he knew Mr. Villasana when he saw him, but that he did not talk to him at any time during the course of the trial; (7) Mr. Ernest F. Stevenson, another juror in the case, said he did not talk to Mr. Villasana during the course of the trial.

All of the above set forth witnesses testified on the motion for new trial and were put on the stand by plaintiff.

Under Rule 327, Tex.R.Civ.P. (1967), the plaintiff, in order to obtain a new trial upon the grounds of jury misconduct, was required to show that (a) the misconduct complained of in fact occurred; (b) it was material; (c) it was calculated to and probably did result in harm. Fountain v. Ferguson, 441 S.W.2d 506 (Tex.1969), cert. denied, 396 U.S. 959, 90 S.Ct. 433, 24 L.Ed.2d 424; Crawford v. Detering Company, 150 Tex. 140, 237 S.W.2d 615 (1951); Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462 (1943).

It was incumbent upon plaintiff initially to prove that misconduct occurred. As hereinbefore related, the only testimony in support of such alleged misconduct was by plaintiff herself who testified in effect that on several occasions she saw Mr. Villasana talking to members of the jury and that on one occasion she heard Mr. Villasana tell one juror “that it was a shame people brought law suits such as this as it tended to run insurance rates up so high that it would break their small company.” Mr. Villasana categorically denied any such conversation occurred, and there is no corroboration of such testimony by any juror or anyone else. Only three jurors testified, two of whom had never had any conversation with Mr. Villasana; one juror testified that on one occasion when he was talking to the court bailiff, Mr. Hitzfelder, Mr. Villa-sana was present part of the time, but that he did not recall the statement above referred to, and that he did not think there was any conversation about insurance rates. Mr. Hitzfelder testified that no such conversation occurred.

In her motion for new trial, plaintiff asserted that a new trial should be granted because of jury misconduct. Where the trial court, in ruling on a motion for new trial, does not file express findings, it will be presumed on appeal that the court found all controverted facts in support of the judgment overruling the motion for new trial, and that no misconduct occurred. Brawley v. Bowen, 387 S.W.2d 383 (Tex. 1965); Harlow v. Swift and Company, 491 S.W.2d 472 (Tex.Civ.App. — Eastland 1972, writ ref’d n. r. e.); Coca Cola Bottling Company v. Mitchell, 423 S.W.2d 413 (Tex.Civ.App. — Corpus Christi 1967, no writ); Sims v. McKnight, 420 S.W.2d 173 (Tex.Civ.App. —Houston [14th Dist.] 1967, writ ref’d n. r. e.); Anderson v. Hooker, 420 S.W.2d 235 (Tex.Civ.App. — El Paso 1967, writ ref’d n. r. e.).

The actual occurrence of jury misconduct is a question of fact for the trial court’s determination, and, if the evidence is conflicting as to whether such misconduct occurred, the decision of the trial court is binding on the appellate court. Brawley v. Bowen, supra; Perryman v. Sims, 506 S.W.2d 753 (Tex.Civ.App. — Tyler 1974, writ ref’d n. r. e.); Harwell & Harwell, Inc. v. Rodriguez, 487 S.W.2d 388, 399 (Tex.Civ.App. — San Antonio 1972, writ ref’d n. r. e.); Harlow v. Swift and Company, supra.

Plaintiff did not meet the burden of proof required of her to prove jury misconduct. The trial court did not err in overruling plaintiff’s motion for new trial because of jury misconduct.

We find no reversible error. The judgment of the trial court is affirmed.


author: YOUNG, Justice.

text:
    Ralph W. SAMFORD et al., Appellants, v. ALLSTATE INSURANCE COMPANY, Appellee.
    No. 994.
    Court of Civil Appeals of Texas, Corpus Christi.
    Sept. 30, 1975.
    Rehearing Denied Nov. 6, 1975.

      William H. Berry, Jr., Corpus Christi, for appellants.
    James W. Wray, Jr., Dyer, Redford, Burnett, Wray & Woolsey, Corpus Christi, for appellee.
   OPINION

YOUNG, Justice.

This summary judgment action arose from a suit brought by Ralph W. Samford and Danny L. Samford against Allstate Insurance Company. There the plaintiffs sought to recover from Allstate, as liability insurer of R. R. Duff, based on plaintiffs’ prior judgment against Duff. The amount sought was the excess of Duff’s policy limits. Because the Samfords failed to allege an actionable cause of action in their original petition, the trial court granted Allstate’s motion for summary judgment. The Samfords appeal.

Appellants’ cause of action now on appeal here was based on the alleged negligence of the appellee in failing to settle a claim of the appellants against Duff arising out of an automobile collision. Appellee was the insurer of Duff. In the prior cause of action involved in an appeal [Samford v. Duff, 483 S.W.2d 517 (Tex.Civ.App. — Corpus Christi 1972, writ ref’d n. r. e.)], this Court reversed the judgment of the trial court and rendered judgment for the appellants in the amount of $26,683.75. Appellee has since paid appellants to the limits of Duff’s insurance policy. This left the appellants with an excess judgment above the policy limits of $15,521.35. Appellants had a writ of execution issued on this excess which was returned unsatisfied.

Then appellants brought the cause of action now on appeal to us as an attempt to proceed directly against the appellee insurance carrier based on the “Stowers” doctrine. In that regard, appellants claim they are entitled to bring a direct cause of action against the appellee because: (1) as judgment creditors of Duff they are third party beneficiaries of the insurance contract between appellee and Duff; (2) the appellee was negligent in failing to settle the original action within Duff’s policy limits; (3) there was a conspiracy between the appel-lee and Duff whereby Duff himself would not bring a direct “Stowers” action against the appellee nor would he assign such a cause of action to the appellants; and (4) the appellee is strictly liable because of its intentional bad faith in failing to settle the case within Duff’s policy limits.

Our analysis of appellants’ five points of error indicates one question of law central to all points. That question is whether a judgment creditor of an insured may bring a direct cause of action against an insurer to recover the excess judgment he was granted as a result of the insurer’s negligence in failing to exercise ordinary care in the settlement of a suit between the insured and the judgment creditor.

The case of Cook v. Superior Insurance Company, 476 S.W.2d 363 (Tex.Civ.App.— Beaumont 1972, writ ref’d n. r. e.) seems to be directly in point. In Cook the appellant obtained a judgment against the insured for some $15,465.46. The judgment was then affirmed on appeal. The appellee insurance company paid the appellant to the policy limits ($5,744.93). The appellant then obtained a writ of execution against the insured for the unpaid balance of the judgment ($10,465.46) which was returned unsatisfied. Whereupon the appellant filed a writ of garnishment alleging that he had made a firm offer of settlement prior to trial to the attorneys employed by Superior Insurance Co. in the amount of $5,000.00 which was within the limits of the liability policy issued to the insured. The trial court granted summary judgment for the insurer. In affirming the summary judgment the appellate court there said that a “Stowers” action is in tort, grounded on negligence, and lies to repair harm to the insured, not the third party. The court’s holding was that a judgment creditor was not entitled to proceed directly against a liability insurer of judgment debtor for an amount, based on prior judgment, in excess of policy limits, notwithstanding a claim that the judgment creditor made firm an offer of settlement prior to the trial involving the judgment debtor and the judgment creditor.

The case of Dillingham v. Tri-State Insurance Co., Inc., 214 Tenn. 592, 381 S.W.2d 914 (1964) is also almost directly in point. In Dillingham the appellant was a judgment creditor of the insured who brought a direct claim against the insurer for the excess of his judgment based on the alleged bad faith and negligence of the insurer in refusing to settle within policy limits. The trial court dismissed the case and the Tennessee Supreme Court affirmed the trial court. The court held that a judgment creditor of an insured alleging bad faith and negligence on part of insurer in refusing to settle within policy limits could not maintain an action against the insurer for the excess of judgment over and above policy limits where had the judgment creditor’s offer of settlement been accepted, he would have recovered a smaller amount than he actually collected. The court pointed out that the appellant’s settlement offer was for $3,000.00 and under the policy the appellant collected $5,200.00.

The significance of the Dillingham decision to the case at bar is that the original settlement offer of the appellants, the Samfords, was for $9,500.00 and that they have already recovered $11,162.00 from the appellee. Clearly under the Tennessee law they would have no right to recover any further. Although there are no Texas cases concerning the question of injury where recovery was in excess of the settlement offer, this is a logical result. If the Sam-fords felt that they had been injured only in the amount ,of $9,500.00 and that they would have dropped all claims for that amount, it is difficult to understand how they can show any damages where they have already received some $11,162.00 for their injuries. Obviously under the “Stow-ers” doctrine it was the insured who was injured by the excess jury verdict and not the Samfords.

There are also a series of decisions from other jurisdictions which have held the same as or similarly to the Cook decision in Texas. See Duncan v. Lumbermen’s Mut. Casualty Co., 91 N.H. 349, 23 A.2d 325 (1941); Francis v. Newton, 75 Ga.App. 341, 43 S.E.2d 282 (1947); Murray v. Mossman, 56 Wash.2d 909, 355 P.2d 985 (1960).

There is a limited amount of authority for the proposition that the injured party is a third party beneficiary of a liability insurance policy to the extent of the policy limits only. In Seguros Tepeyac, S.A. Compania Mexicana de Seguros Generales v. Bostrom, 347 F.2d 168 (5th Cir.1965) and Seguros Tepeyac, S.A. Compania Mexicana de Seguros Generales v. Jernigan, 410 F.2d 718 (5th Cir.1969), it was stated that it is Texas law that under a liability insurance policy a plaintiff, who is a judgment creditor of the insured, had standing as the third party beneficiary to the contract, to sue for the amount of the policy. The Court of Appeals for the 5th Circuit cites no Texas authority for their proposition, however. These holdings by the 5th Circuit could be used to raise a fact question which would permit the overruling of the trial court’s granting of a summary judgment as the appellant urges in his first point of error. Even if this is Texas law, the question is moot because appellants have already recovered to the extent of the policy limits. This limited right of a third party to bring a direct cause of action against an insurer would also seem to be the law in Virginia (Rowe v. United States Fidelity & Guaranty Company, 421 F.2d 937 (4th Cir.1970) and Pennsylvania (Shaw v. Botens, 403 F.2d 150 (3rd Cir.1968).

All of which brings us back to the Cook case and its application to our case. We propose to follow Cook and we hold that the trial court was correct in granting appel-lee’s motion for summary judgment.

If the appellants had no direct cause of action against the appellee, they were not the third beneficiaries of such an action by the insured, as appellants assert in their first point of error. Without any cause of action against the appellee the appellants could not complain of any negligence or gross negligence on the part of appellee for failure to settle the suit within the policy limits, as appellants assert in their second point of error.

Nor do the appellants have any basis for a cause of action based on an alleged conspiracy as is asserted in appellants’ third point of error. “A civil conspiracy is a combination by two or more persons to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means”. Schlumberger Well Surveying Corporation v. Nortex Oil & Gas Corporation, 435 S.W.2d 854 (Tex.Sup.1968); St. Joseph Professional Building Corporation v. American National Insurance Company, 511 S.W.2d 578 (Tex.Civ.App. — Houston [14th Dist.] 1974, writ ref’d n. r. e.). Taken in a light most favorable to the appellants, there is no summary judgment evidence which indicates the appellee’s actions were designed to accomplish any illegal purpose or that any act of the appellee was illegal. A "Stowers” action is one belonging to the insured alone. G. A. Stowers Furniture Co. v. American Indemnity Co., supra. Therefore, the insured’s decision to bring such an action is purely a matter of personal discretion and the failure to bring such an action, for any reason, cannot be deemed illegal so as to conform to the definition of actionable civil conspiracy.

Since the appellee owed no duty to the appellants there can be no cause of action against the appellee based on strict liability, as is argued by the appellants in their fourth point of error.

Appellants’ final point of error is based on the trial court’s granting the ap-pellee’s motion for summary judgment without allowing the appellants any discovery. Such discovery might benefit the insured if he were to bring a “Stowers” action. Since appellants have no cause of action against the insurer, however, no amount of discovery can aid the appellants in developing a cause of action which does not exist. Furthermore, it is clear from the record that appellants made no attempt at formal discovery prior to the summary judgment hearing, nor did they make any motion for continuance so that they might be allowed discovery. Since appellants announced ready at the summary judgment hearing they cannot now claim they were unprepared to defeat the motion due to a lack of discovery.

All of appellants’ points have by us been considered and are overruled.

The judgment of the trial court is affirmed.

      . G. A. Stowers Furniture Co. v. American App.1929, holding approved). Indemnity Co., 15 S.W.2d 544 (Tex.Comm’n


author: CORNELIUS, Justice.

text:
    James R. DUMAS, Appellant, v. Luke E. HORN, Appellee.
    No. 8312.
    Court of Civil Appeals of Texas, Texarkana.
    Sept. 30, 1975.
    Kennedy & Minshew, Sherman, for appellant.
    Vial, Hamilton, Koch, Tubb, Knox & Stradley, Dallas, for appellee.
   CORNELIUS, Justice.

This is an action for damages sustained by James R. Dumas when the motorcycle he was driving collided with Luke E. Horn’s pickup truck as it turned left in front of the motorcycle. The jury convicted Horn of several acts of negligence proximately causing the collision, including the making of an improper left turn, but it also found that Dumas was contributorily negligent in failing to properly apply his brakes and that such negligence was a proximate cause of the collision. Based upon those findings, the trial court entered a take nothing judgment against Dumas and he has appealed.

The collision occurred in clear, dry weather in the City of Denison, Texas. Dumas was proceeding south on Woodlawn Avenue at a speed estimated at thirty or forty miles per hour. Horn was driving his pickup truck north on Woodlawn Avenue. When Dumas was in the general area of Thatcher Street, some sixty-six feet from the point of impact, Horn began a left turn into a private driveway. Dumas testified he applied his brakes immediately upon Horn’s beginning his turn, but that he was unable to stop and he collided with Horn’s pickup track.

The basis of the appeal is that there was no evidence, or in the alternative insufficient evidence, to justify the submission of the contributory negligence and the related proximate cause issues, or to support the jury’s answers thereto.

The only direct testimony as to the application of brakes was from Dumas himself and from two of Horn’s witnesses, Hardy and Myers, who saw the collision. Dumas testified that he “slammed on” his brakes immediately when Horn began to turn left and that he applied them as hard as he could in the best way that he could, but that he did not have time to avoid the collision. At another point in Dumas’ testimony, he stated that he “evidently did not” apply his brakes in time to stop. Hardy and Myers testified that they first looked to the street when they heard the motorcycle’s “brakes squealing”, and that they saw the motorcycle out of control with its wheels locked, skidding sideways straight into the pickup. On the other hand, Horn testified that he first saw the motorcycle when it came around a car which was in front of it, and that it was already out of control and skidding sideways into his truck. Officer Terrell testified that he found no skid marks or physical evidence that the brakes had been applied.

Completely disregarding all adverse evidence, and considering only that evidence favorable to the jury’s finding of contributory negligence, as we must do in an appeal of this kind, we have concluded that by accepting or rejecting various portions of the testimony, such as that of the officer that there were no marks indicating the application of brakes, the testimony of Dumas that he “slammed on” his brakes as hard as he could and that he evidently did not apply the brakes in time to stop, and the testimony of Horn that Dumas came around the car in front of his motorcycle already out of control and skidding sideways into the truck, the jury could have inferred that Dumas either failed to apply his brakes at all, or that he failed to timely or properly apply them. Nevertheless, we have also concluded that there was no evidence that either a proper or timely application of the brakes would have avoided the collision, and consequently there was no evidence that a failure to so apply them was a proximate cause of the collision.

On the issue of contributory negligence, the defendant Horn had the burden to prove not only that Dumas committed an act of negligence, but that such negligence was a proximate cause of the collision. Proximate cause may be proved by circumstantial evidence but it must be proved beyond the point of conjecture. Mere speculation or surmise is not sufficient. Bledsoe v. Yarborough, 422 S.W.2d 222 (Tex.Civ.App. Tyler 1967, no writ); Ussery v. Ewell Hodges, Inc., 417 S.W.2d 332 (Tex.Civ.App. Tyler 1967, writ ref’d n. r. e.) and cases cited therein. To establish proximate cause, both causation in fact and foreseeability must be shown, and the act of negligence must be one but for which the collision would not have occurred. Baumler v. Hazelwood, 162 Tex. 361, 347 S.W.2d 560 (1961); Williams v. Hill, 496 S.W.2d 748 (Tex.Civ.App. Tyler 1973, no writ); Ussery v. Ewell Hodges, Inc., supra; Taylor v. Brooks, 392 S.W.2d 878 (Tex.Civ.App. Waco 1965, writ ref’d n. r. e.). Therefore, in the context of this case, the failure to make an application of Dumas’ brakes such as would have been made by an ordinarily prudent person acting under the same or similar circumstances would not be a proximate cause of the collision unless such an application would have avoided the collision. Baumler v. Hazelwood, supra; Williams v. Hill, supra; Ussery v. Ewell Hodges, Inc., supra. A careful search of the statement of facts fails to reveal any evidence or circumstance justifying an inference that Dumas, faced with an emergency situation when Horn suddenly turned left in his path, could have avoided the collision by any application of the brakes.

Dumas testified that he was in the area of Thatcher Street when Horn began to turn left. Horn also testified that Dumas was about at Thatcher Street when he first saw him. It was undisputed, that Thatcher Street was approximately sixty-six feet from the point of impact. At thirty miles per hour the motorcycle would be traveling forty-four feet per second; at forty miles per hour, fifty-nine feet per second. See Blashfield, Cyclopedia Of Automobile Law And Practice, Vol. 9C, Sec. 6237, p. 413 (1954). Thus, Dumas would have had approximately one and a half seconds at thirty miles per hour, or approximately one and one tenth seconds at forty miles per hour to avoid a collision by the application of his brakes. While Dumas was traveling that sixty-six feet in either one and one tenth or one and one half seconds, Horn was crossing Dumas’ lane of traffic, which Horn variously testified took him “two or three” or “three or four” seconds. Even assuming that the time it would take Dumas to travel the sixty-six feet to the point of impact would be lengthened somewhat as a result of deceleration on application of his brakes, there is still no evidence from which it may be inferred that the collision would have been avoided, considering the time Horn’s pickup truck was blocking Dumas’ lane of traffic.

There was no expert or lay testimony as to the distance within which the motorcycle could be stopped by an application of the brakes. There was no physical evidence or other circumstances indicating that a “proper” application of the brakes would have avoided the collision. In these circumstances there is a complete lack of evidence that a failure to properly apply the brakes was a proximate cause of the collision. The trial court should have disregarded the jury’s finding of proximate cause. It being so disregarded, Dumas would be entitled to judgment against Horn according to the other special issues answered by the jury.

For the error noted, the judgment of the trial court is reversed and judgment is here rendered for the plaintiff Dumas against the defendant Horn in the sum of $19,-740.00.

      . The issue inquired generally if Dumas failed to apply his brakes as a person using ordinary care would have done. Dumas did not object to the form of the issue as allowing multiple or alternative findings of failure to apply, untimely application, and improper application.

      . The jury found that Horn began to turn left when Dumas was approaching so closely as to constitute an immediate hazard.

      . The jury exonerated Dumas of negligence in failing to turn, or driving at an excessive speed.


author: PHILLIPS, Chief Justice.

text:
    The BOARD OF REGENTS OF the UNIVERSITY OF TEXAS, Appellant, v. S & G CONSTRUCTION COMPANY, Appellee.
    No. 12312.
    Court of Civil Appeals of Texas, Austin.
    Oct. 8, 1975.
    Rehearing Denied Nov. 5, 1975.

      John L. Hill, Atty. Gen., John Reeves, Asst. Atty. Gen., Austin, for appellant.
    Douglass D. Hearne, Stayton, Maloney, Hearne & Babb, Austin, for appellee.
   PHILLIPS, Chief Justice.

This case involves a contract entered into between the Board of Regents of the University of Texas, the appellants here, and the S & G Construction Company, the ap-pellee, to construct married students’ apartments. The apartments were completed to the satisfaction of both parties to the contract; however, due to errors in the topographic survey furnished by the Regents as required by the contract, considerable additional work by the builder was necessary to complete the project. Both parties agree that extra compensation is due the builder, but they disagree on the measure, and consequently on the amount of the additional compensation. Appellant contends that both parties performed in accordance with the provisions of the contract and that any additional compensation that may be due to appellee must be calculated within the provisions of the contract relating to extra work performed. Appellee, however, maintains that appellant breached the contract and seeks damages resulting from such breach.

Upon trial in the 126th District Court of Travis County, a jury answered special issues to the effect (1) that the defendant Regents failed to provide correct plans and specifications and additional instructions and detailed drawings as were necessary to carry out the work called for in the contract, (2) that but for this failure plaintiff builder could have performed the work called for within the time and price stated in the contract, (3) that because of defendant’s failure plaintiff builder was required to do additional work, and (4) that adequate compensation to appellee for the additional work required by defendant Regent’s failure to provide the plans was $837,674.90.

Based on these findings, the trial court awarded plaintiff builder $837,674.90 in cjamages, plus interest thereon from August 16, 1973 until paid, and $12,000 of the contract price withheld by the Regents as liquidated damages for the late completion of the project. We affirm this judgment.

Appellant is before us on ten points of error, the first two, briefed together, being the error of the court in admitting evidence of appellee’s costs of construction of the entire project because this evidence violates the parol evidence rule; and also, because the judgment allows the appellee to be compensated on a basis which is different from that provided for in the written contract between the parties. We overrule these points.

Appellant’s theory of the case, for which, it maintains, it should have been awarded judgment as a matter of law, is that appel-lee is only entitled to the compensation provided in the written contract plus compensation for additional work performed pursuant to approved written change-orders as specified in the contract itself. Appellant maintains that pursuant to this theory it made no effort to refute appellee’s proof of costs because such evidence was totally inadmissible.

Appellee, on the other hand, contends that appellant under the contract, was responsible for providing accurate and reliable plans, drawings and specifications, that appellant breached the contract by failing to provide these documents, and that the real issue in the case is whether or not appellant can escape liability for damages incurred by appellee in constructing the project without accurate and reliable written plans.

It is undisputed that the parties entered into the contract in question and that appel-lee agreed to do the work specified in the General Conditions and Supplemental General Conditions of the contract. This included maps, plats, drawings, site plans and all revisions and changes made pursuant to the contract documents. It is likewise admitted that appellee completed the project and that appellant paid appellee the amount stated in the written contract plus amounts agreed upon for additional work performed pursuant to approved written change-orders. As stated above, appellant admits that there is, in all likelihood, additional compensation due appellee, however, it insists that compensation must be calculated under the terms of the contract. These provisions, set out in the contract under the General Conditions, are as follows:

“17. Changes in Work
No changes in the work covered by the approved Contract Documents shall be made without having prior written approval of the Owner. Charges or credits for the work covered by the approved change shall be determined by one or more, or a combination of the following methods .
******
“18. Extras
Without invalidating the contract, the Owner may order extra work or make changes by altering, adding to or deducting from the work, the contract sum being adjusted accordingly, and the consent of the Surety being first obtained where necessary or desirable. All the work of the kind bid upon shall be paid for at the price stipulated in the proposal, and no claims for any extra work or materials shall be al- • lowed unless the work is ordered in writing by the Owner or its Architect/Engineer, acting officially for the Owner, and the price is stated in such order.
******
“22. Claims for Extra. Costs
No claim for extra work or cost shall be allowed unless the same was done in pursuance of a written order of the Architect/Engineer approved by the Owner, as aforesaid, and the claim presented with the first estimate after the changed or extra work is done. When work is performed under the terms of subparagraph 17(c) of the General Conditions, the Contractor shall furnish satisfactory bills, payrolls and vouchers covering all items of cost and when requested by the Owner, give the Owner access to accounts relating thereto.” (Emphasis added)

It is also admitted that a serious error existed in the original topographical site survey which required the building sites to be moved thus requiring the appellee-con-tractor to do additional work. It is appellant’s position that upon discovery of the error a meeting was held between the owner, the architect, and the contractor at which time it was decided not to shut down the project but to complete it as scheduled using the original plans and specifications, where appropriate, and making such revisions and additions as were necessary to carry out the work under the contract. Appellant contends that appellee had the right to withdraw his bid and refuse to perform the contract when the error was discovered. Instead, appellee chose not to withdraw his bid and refuse to perform under the contract but rather chose to perform the contract and to be paid the sum provided for in the contract documents, and proceeded to complete the project in accordance with the plans and specifications as subsequently revised.

We cannot agree with appellant’s position on these points.

The evidence is undisputed that appellee was never furnished the additional plans for which the contract provided:

“The Contractor will be furnished additional instructions and detail drawings as necessary to carry out the work included in the contract. The additional drawings and instructions thus supplied to the Contractor will coordinate with the Contract Documents and will be so prepared that they can be reasonably interpreted as part thereof. The Contractor shall carry out the work in accordance with the additional detailed drawings and instructions.” (Emphasis added)

At the close of evidence the case was submitted to the jury which found that the appellant failed to provide correct plans and specifications and additional instructions and detailed drawings as were necessary to carry out the work called for in the contract; and further found, that because of appellant’s failure to provide correct plans and specifications and additional instructions and detailed drawings as were necessary to carry out the work called for in the contract, appellee was required to do the additional work occasioned by the breach.

In submitting these issues to the jury, the trial court implicitly found that appellant was bound by the contract to furnish such written plans as were necessary to carry out the work called for under the contract. The jury’s answers conclusively established that appellant breached this duty and that as a i-esult of such breach, appellee was damaged.

As we stated above, the evidence supporting the jury’s findings is, for all practical purposes, undisputed. The contract called for the construction of additional married student housing for the University of Texas. This project, located at the site of the old Confederate Home on West Sixth Street in Austin, consisted of constructing eighteen new multistoried apartment units, the remodeling of two others, along with the construction of the necessary streets, parking lots, curbing, drainage facilities, sidewalks, utilities, landscaping and recreational and laundry facilities. The topography of the site is extremely uneven with abrupt elevation variances throughout.

The contract called for the project to be built in accordance with certain plans and specifications prepared by an independent architectural firm chosen exclusively by appellant. Included among the plans were fifteen pages of site plans which detailed the overall layout, elevation, and relationship of the various improvements to one another and to given existing physical monuments. By use of these plans and specifications, appellee had estimated the cost of the job and had submitted its bid based on that estimate.

Immediately after work was begun, it was discovered that these site plans were so totally inaccurate that it was physically impossible for appellee to utilize them in constructing the project. The testimony discloses that the surveyor whose job was to locate the various improvements on the ground by use of these site plans had to move every improvement horizontally from two to fifteen feet and vertically from three to five feet.

Appellee’s president, the architects and appellant’s inspector, all testified that it would have been a physical impossibility for appellee to have constructed the project utilizing the plans and specifications in the contract and upon which appellee had based its bid.

When the errors were discovered, the project architect recommended that the job be shut down until new plans based upon a correct survey could be prepared. Nevertheless, appellant’s chief of construction decided that the project would be continued and that the appellant would fulfill its contractual obligation to provide accurate and reliable plans by issuing piecemeal, partial plans. This decision to proceed without corrected plans was unilaterally made by appellant’s chief of construction without any conference whatsoever between the other members of his staff or the contractor or the architect. At this time appellee’s president advised the project architect that if the contractor were not given a correct, overall, site plan showing the relationship of the various improvements to one another, the piecemeal approach described above was going to cause serious problems. Although appellee’s president repeated this request on numerous occasions through the project, the appellee was never furnished the correct overall site plan requested.

Because of the absence of this critical, corrected site plan, the appellee was forced to construct the project as it was being designed, redesigned, altered, added to, and deleted from in the field on a daily basis without the use of correct and adequate written plans by which to proceed.

Every improvement, including buildings, streets, parking lots, and utilities, was located and relocated at least three times and as many as five times from the location shown on the original plan to its final location. The appellee was not only required to make these many modifications, alterations, additions and deletions directed by the appellant’s representatives, but was expected to make the majority of such changes without the aid of written supplemental plans. The appellant’s own project architect acknowledged the inadequacy of the few supplemental plans furnished appellee.

While the contract contained a change-order procedure whereby the work to be done, time for completion, and compensation to be paid could be modified by written proposals and written orders, since the whole project had to be redesigned in the field as the work was being done to compensate for the major errors in the original plans, such system proved totally inadequate to accomplish its intended purpose. For appellant to insist that appellee was bound to perform within the change-order provision of the contract completely ignores that vital part of the contract requiring that it furnish the plans and specifications necessary for a satisfactory completion of the project. It was the duty of the Board of Regents to provide the necessary plans and specifications under the terms of the contract. Its effort here to raise the spectre of the change-order provision begs the question. Its breach set in motion the resulting tide of damages which the change-orders could in no way have fully stemmed. The Board cannot now escape the results of its failure by such diversion. Consequently, we hold that such a failure to provide “correct plans and specifications and additional instructions and detail drawings as were necessary to carry out the work called for in the contract . ” was a breach of the contract resulting in the damage to appellee found by the jury.

Because of the absence of detailed written plans from which to estimate in advance the probable costs of implementing the numerous required changes, appellant’s representatives regularly instructed appel-lee to do the work, keep track of its costs, and consistently promised that the compensation would be computed after the project was completed. Appellee complied with these requests trusting throughout that a fair compensation would be paid at the conclusion of the project. Operating on this belief, the appellee remained on the job and finally completed it in the summer of 1973.

Appellee’s president testified that in deciding to remain on the job after the erroneous condition of the original plans was discovered, he relied upon both the contractual duty of appellant to produce the revised written plans as well as the promises made by appellant’s representatives at the time to furnish such plans. Both parties testified that they understood that the contract terms imposed such a responsibility on appellant. Consequently, the contractor is now entitled to recover his additional costs incurred as a result of delay and having to perform additional work or incur added difficulty because of appellant’s breach. El Paso & S. W. R. Co. v. Eichel & Weikel, 130 S.W. 922 (Tex.Civ.App.1910, writ ref’d); Ann. 70 L.Ed. 440 (1927); 91 L.Ed. 48 (1947).

Moreover, appellee’s decision to stay on the job despite appellant’s breach of contract, was in no way a waiver or basis for an estoppel to assert appellee’s claim to damages for appellant’s breach. It is a fundamental proposition of contract law that when one party breaches its contract, the other party is put to an election of continuing or ceasing performance, any action indicating an intention to continue will operate as a conclusive choice, not depriving the injured party of his cause of action for the breach which has already taken place, depriving him only of any excuse for ceasing performance on his own part. Western Irr. Co. v. Beeves County Land Co., 233 S.W.2d 599 (Tex.Civ.App.1950, no writ). Here the court held that this rule was applicable in building and construction contracts.

It is well established that when the State of Texas makes a contract, it is as much bound thereby as a private citizen would be bound by a like contract.

We also hold that the trial court’s acceptance of evidence of appellee’s cost of construction did not violate the parol evidence rule. The parol evidence rule does not exclude evidence of events transpiring subsequent to the execution of a written contract. “The Parol Evidence Rule is the rule which, upon the establishment of the existence of a writing intended as a completed memorial of a legal transaction, denies efficacy to any prior or contemporaneous expressions of the parties relating to the same subject-matter as that to which the written memorial relates.” 2 McCormick & Ray, Texas Law of Evidence, § 1601 (1956). “The underlying theory of the Pa-rol Evidence Rule is that the reduction of a transaction to a final written form supersedes prior and contemporaneous outside expressions of the parties. But there is nothing in the Parol Evidence Rule which prevents the written transactions from being later modified by the parties by a new agreement, though oral.” 2 McCormick & Ray, Texas Law of Evidence, § 1671 (1956). Moreover, the rule does not apply to parol evidence intended to aid the Court in the interpretation of a written contract. 2 McCormick & Ray, Texas Law of Evidence, § 1681 (1956). Board of Regents of the State Teachers Colieges of Texas v. Goetz, 453 S.W.2d 290 (Tex.1970), cited by appellant for the proposition that the parol evidence rules bar the admission in evidence of appellee’s construction costs, is not in point here. In that case the Court correctly excluded parol evidence and evidence prior to the execution of the written contract.

Thus, we overrule appellant’s contention that the amount of recovery due appellee here is limited to the amount stipulated in the contract. Appellant’s thesis fails to recognize the distinction between a suit to collect the monetary consideration recited in the contract and a suit for consequential damages suffered by the complaining party as a result of the other party’s breach of a contractual obligation other than the duty to pay the stipulated monetary consideration. Cases cited by appellant in this regard are not in point as they do not involve a breach of the contract on the part of the governing body.

The courts of this state have always recognized the general rule that the measure of damages for breach of contract is just compensation for the damages actually sustained by plaintiff as a result of the defendant’s action. Steward v. Basey, 150 Tex. 666, 245 S.W.2d 484 (Tex.1952). In implementing this rule, we affirm the measure of damages awarded by the trial court in this case. That measure, in our judgment, will best compensate appellee for the injury suffered and replace it, as nearly as possible, in the position it would have occupied had appellant not breached its contract. Cretien v. Kincaid, 84 S.W.2d 1094 (Tex.Civ.App.1935), affirmed at 130 Tex. 513, 111 S.W.2d 1098; Kincaid v. Cretien (Tex.Com.App.1938, opinion adopted).

We also overrule appellant’s points three and four to the effect that the judgment before us constitutes extra compensation for services performed pursuant to a valid written contract in violation of Section 44, Article III, Constitution of Texas; and also, that the judgment constitutes a gift or donation in violation of Section 51, Article III, of the Texas Constitution.

The short answer to these arguments is that the limitations stated in the constitutional provisions referred to in the abovementioned points apply only when the extra compensation “shall not have been provided for by pre-existing law . . . ” Thus the legislature is precluded from granting such compensation unless the claim is provided for by pre-existing law. The courts have consistently held that the term “pre-existing law” as used in Section 44 includes the common law. Austin National Bank v. Sheppard, 123 Tex. 272, 71 S.W.2d 242 (Tex.Comm’n App.1934, opinion adopted).

In its fifth and sixth points, briefed together, appellant assigns error to the court in changing its instructions to the jury regarding the definition used in special issues 1, 2, 3 and 6; and also, erred in overruling appellant’s motion for mistrial because the change of instructions by the court after oral argument based on such instructions had begun was a violation of Rule 278, Texas Rules of Civil Procedure. We overrule these points.

After opening argument to the jury was completed and rebuttal argument was in progress, the trial court amended its written charge to the jury by changing the definition of the phrase “Correct plans and specifications and additional instructions and detailed drawings” as used in special issues numbers 1, 2, 3 and 6, by adding to the original instructions the phrase “and the term additional instructions means written instructions.”

We hold that the court was correct in amending the charge because appellant’s counsel, in his jury argument, had suggested an erroneous legal construction of the contract. It then became necessary for the trial court to amend its charge (which before amendment would have permitted the objectionable argument) in order to clarify the point. This point goes to the crux of the lawsuit.

Appellee’s contention, as sustained by the trial court, is that paragraph 3 of the General Provisions of the contract before us, created a duty on the part of appellant to supply additional written instructions. The jury’s answer to special issue number 1 finds that appellant breached this duty.

Appellant does not contest the fact that additional instructions were necessary to carry out the work. Rather, appellant contends that the contract only required appellant to supply oral instructions along with some written instructions provided along with certain change-orders admitted into evidence. Thus appellant does not ground its contention upon paragraph 3 of the contract but argues that paragraph 11 of the General Conditions and paragraph 7 of the Supplemental General Conditions supply the meaning of the term “additional instructions” as used in paragraph 3. The linchpin of paragraph 3 is the second sentence which reads: “The additional drawings and instructions thus supplied to the contractor will coordinate with the Contract Documents and will be so prepared that they can be reasonably interpreted as a part thereof.” This sentence is susceptible to only one interpretation: the additional instructions were to be prepared by appellant in such a manner that they would become a part of the Contract Documents — that is, a part of the original contract. The entire text of paragraph 3 plainly reveals that the parties contemplated written additions to the Contract Documents, and not reliance on paragraph 11 of the General Conditions and paragraph 7 of the Supplemental General Conditions as contended by appellant. These latter paragraphs provide for directives relative to the execution of the work and could be given independently from the provisions of paragraph 3. These day-to-day directions to be given in the field could in no way be “interpreted as part of the Contract Documents.” The trial court correctly construed the contract and in amending the charge presented the jury with the only question that was within its province to decide. Crown Western Investments, Inc. v. Mercantile National Bank, 504 S.W.2d 785 (Tex.Civ.App.1974, no writ); Parks v. Frankfurt, 476 S.W.2d 717 (Tex.Civ.App.1972, writ ref. n. r. e.). In reviewing the construction placed upon this contract by the trial court, we must bear in mind any doubt as to the meaning of the contract is to be resolved against the party who prepared the document. W. W. Harris v. Phillips Pipe Line Co., 517 S.W.2d 361 (Tex.Civ.App.1975, writ ref. n. r. e.); Crown Western Investments v. Mercantile National Bank, 504 S.W.2d 785 (Tex.Civ.App.1974, n. w. h.).

We also hold that there was no violation of Rule 275, Texas Rules of Civil Procedure so as to constitute reversible error. It is the policy of the law that the jury shall be correctly instructed. To sustain appellant’s position would be to render the court helpless to correct an error where it is aware that it has given an erroneous charge, although not to correct it would necessitate the granting of a new trial and a retrial of the whole case, or the reversal of the judgment on appeal. Cheek v. W. H. Nicholson & Co., 146 S.W. 594 (Tex.Civ.App. 1912, writ ref.); Texas State Highway Department v. Reeves, 161 S.W.2d 357 (Tex.Civ.App.1942, writ ref.).

We will not consider appellant’s points of error seven and eight further as they have already been dealt with in this opinion.

Appellant’s ninth point, which we overrule, is the error of the court in entering judgment which allowed appellee interest.

Appellant first contends that the State may not be liable for interest on claims against it unless there is an agreement made pursuant to statutory authority. In Franklin Bros. v. Standard Mfg. Co., 78 S.W.2d 294 (Tex.Civ.App.1935), writ dism’d, 131 Tex. 63, 112 S.W.2d 1035 (1938), this Court considered the question and held that Tex.Rev.Civ.Stat.Ann. art. 5072 (now art. 5069-1.05), authorized the recovery of interest on a judgment against the State. The statute upon which this Court relied provided that “[a]ll judgments of the courts of this State shall bear interest at the rate of six percent per annum from and after the date of the judgment . . .”

Appellant then contends that the award of pre-judgment interest was erroneous and, therefore, the entire award of interest should be disallowed. As early as 1897 in Watkins v. Junker, 90 Tex. 584, 40 S.W. 11 (1897) the Supreme Court rejected the contention urged by appellant that prejudgment interest may not be recovered where the damages are unliquidated. In Davidson v. Clearman, 391 S.W.2d 48 (Tex.1965) the Supreme Court restated this position holding that where the measure of damages is fixed by conditions existing at the time the injury occurs, interest may be recovered from that date. In Clearman the Court authorized recovery of interest by a contractor from the date on which the owners took possession of a building; in the present case, the judgment awards interest from the date the project was completed.

We also overrule appellant’s tenth point which asserts the error of the trial court in entering judgment allowing appel-lee to recover an additional sum in excess of the verdict of the jury.

In answer to special issue no. 6 the jury awarded appellee the sum of $837,674.90 as compensation “for the additional work, if any, not otherwise compensated.” The judgment, in addition to awarding appellee the amount of the jury verdict awarded appellee $12,000 representing the amount which appellant had withheld from appellee as liquidated damages, together with interest thereon, because of the late completion of the buildings. Appellant maintains that this amount was included in the amount awarded by the jury in answer to special issue no. 6 described above. Appellant also contends that there is no testimony that appellant did not have the right to withhold this sum.

In special issue no. 2 set out above, the jury found that but for appellant’s failure to provide correct plans and specifications and additional instructions and detailed drawings as were necessary to carry out the work under the contract, the appellee could have performed the work called for under the contract within the time and for the price stated in the contract. Hence, appel-lee’s failure to timely complete the building was caused by “acts of the owner” which expressly relieves appellee from liability for liquidated damages.

We agree with the trial court that the cause of the delay in completion was the breach of the owner, and that the $12,000 withheld by appellant was due to appellee in payment of the original contract price, and was not included in the $837,674.90 awarded appellee as damages.

The judgment of the trial court is in all things affirmed.

      . In reply to two other special issues not pertinent to the theory by which we have decided this case, the jury found (1) that the defendant, through its construction supérví-sor, had waived the contractual requirement for prior written approval of additional work, and (2) that the plaintiff and defendant had incorporated into the contract a preconstruction conference letter authorizing immediate changes by the contractor without a work-change order “if the circumstances make this procedure desirable.”

      . Taylor & Son, Inc. v. Arlington Ind. School District, 160 Tex. 617, 335 S.W.2d 371 (Tex.1960), State Highway Comm. v. Canion, 250 S.W.2d 439 (Tex.Civ.App.1952, writ ref. n. r. e.), Jordan v. City of Beaumont, 337 S.W.2d 115 (Tex.Civ.App.1960, writ ref. n. r. e.).

      . 52 Tex.Jur.2d § 48, p. 759; Ft. Worth Nat'l Bank v. State, 158 S.W.2d 885 (Tex.Civ.App.1942, writ ref. w. o. m.); State v. Elliott, 212 S.W. 695 (Tex.Civ.App.1919, writ ref.); Stacy v. Bridge City Independent School Dist., 357 S.W.2d 618 (Tex.Civ.App. 1962, no writ).

      . Board of Regents v. Goetz, 453 S.W.2d 290 (Tex.1970); State v. Ragland Clinic-Hospital, 138 Tex. 393, 159 S.W.2d 105 (1942); Fort Worth Cavalry Club v. Sheppard, 125 Tex. 339, 83 S.W.2d 660 (1935); State v. City of Austin, 160 Tex. 348, 331 S.W.2d 737 (1960); Empire Gas & Fuel Co. v. State, 121 Tex. 138, 47 S.W.2d 265 (1932); State v. Martin Bros., 138 Tex. 505, 160 S.W.2d 58 (1942); City of Austin v. Cotten, 509 S.W.2d 554 (Tex.1974); City of Houston v. L. J. Fuller, Inc., 311 S.W.2d 285 (Tex.Civ.App. 1958, no writ); State v. Steck Co., 236 S.W.2d 866 (Tex.Civ.App.1951, writ ref.); State v. Perlstein, 79 S.W.2d 143 (Tex.Civ.App.1934, writ dism.); Nichols v. State, 11 Tex.Civ.App. 327, 32 S.W. 452 (1895, writ ref. n. r. e.); State v. F & C Engineering Co., 438 S.W.2d 647 (Tex.Civ.App.1969, writ ref. n. r. e.); For authorities in other jurisdictions, see: State Highway Dept. v. Wright Contracting Co., 107 Ga.App. 758, 131 S.E.2d 808 (1963), 1 A.L.R.3d 1260 (1965), and annotations pp. 1273-1322.

      . Tex.Const. Art. Ill, § 44.

      . Rule 275, Texas Rules of Civil Procedure is as follows: “Before the argument is begun, the judge shall read to the jury, in the precise words, in which they were written, his charge and all requested instructions, special issues, definitions, and explanatory instructions which he may give.”

      . These points are as follows: “Seventh point of error: The trial court erred in denying appellant’s motion to withdraw the case from the jury and in denying appellant’s Motion for Judgment Non Obstante Veredic-to for the reason that the ultimate issue in this case is a question of law and not one of disputed fact. Eighth point of error: The trial court erred in entering judgment based on the verdict of the jury for the reason that there is no admissible evidence to support such a jury verdict.”

      . Paragraph 19 of the contract’s General Conditions entitled “Time for Completion and Liquidated Damages” provides in part: "If the Contractor shall neglect, fail or refuse to complete the work within the time herein specified, or any proper extension thereof granted by the Owner, then the Contractor does hereby agree, as a part consideration for the awarding of this contract, to pay to the Owner the amount specified in the contract, not as a penalty but as liquidated damages for such breach of contract as hereinafter set forth, for each and every calendar day that the Contractor shall be in default after the time stipulated in the contract for completing the work Provided further, that the Contractor shall not be charged with liquidated damages or any excess cost when the delay in completion of the work is due
      ******
      “(b) To unforeseeable cause beyond the control and without the fault or negligence of the Contractor, including, but not restricted to, acts of God, or of the public enemy, acts of the Owner, acts of another Contractor in the performance of a contract with the Owner, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes and severe weather (Emphasis added)


author: PRESLAR, Chief Justice.

text:
    Joe HOOD, Appellant, v. John SEAY, Individually and d/b/a JRS Company, Appellee.
    No. 6469.
    Court of Civil Appeals of Texas, El Paso.
    Oct. 8, 1975.
    Allen Moore, Michael Owensby, Odessa, for appellant.
    Stubbeman, McRae, Sealy, Laughlin & Browder, Alvin Walvoord, Jr., Rodney W. Satterwhite, Midland, for appellee.
   OPINION

PRESLAR, Chief Justice.

This is a venue matter in which the defendant’s Plea of Privilege was sustained. We affirm.

Appellant brought this suit against defendant-appellee alleging an oral partnership agreement to obtain land and share in the proceeds of production from oil therefrom; he is seeking to impose a constructive trust on the land, have an accounting for the oil produced, and other relief.

In his petition plaintiff alleged a description of the land by section, block and survey and that it was located “within the jurisdiction of this Court and at a point to be more definitely described to the Court at a later date.” No further description was ever pled and on trial no proof was offered as to its location. This failure to prove that the land was located in the County of suit sustains the order of the trial Court.

Suits for the recovery of land are controlled by Exception 14 of Art. 1995, Tex.Rev.Civ.Stat.Ann. Two venue facts are controlling: the nature of plaintiff’s claim, and the location of the land. 1 McDonald, Texas Civil Practice, Venue Sec. 4.22.1. The second fact is in question here; it must be proved by extrinsic evidence. Sullivan v. Lucas, 93 S.W.2d 613 (Tex.Civ.App. — El Paso 1936, no writ); Broyles v. City of Leonard, 337 S.W.2d 151 (Tex.Civ.App. — San Antonio 1960, no writ); 1 McDonald, Texas Civil Practice, Venue Sec. 4.22.7; Fannin Bank v. Johnson, 432 S.W.2d 138 (Tex.Civ.App. — Houston (1st Dist.) 1968, writ dism’d).

The judgment of the trial Court is affirmed.


author: HALL, Justice.

text:
    Ben H. ROSENTHAL, Jr., Appellant, v. Jerald L. BLUM, Appellee.
    No. 5454.
    Court of Civil Appeals of Texas, Waco.
    Oct. 16, 1975.
    Rehearing Denied Nov. 6, 1975.
    Fanning & Harper, Dallas, for appellant.
    Thompson, Knight, Simmons & Bullion (Gregory S. C. Huffman), Dallas, for appel-lee.
   HALL, Justice.

The plaintiff alleged in detail that because of a negligent diagnosis of his physical condition by the defendant, his treating physician, he was induced to settle a personal injury claim for substantially less than his true damages. Special exceptions to the plaintiff’s petition to the effect that it failed to state a cause that is actionable in Texas and failed to allege a proper measure of damages were sustained, and the plaintiff refused to amend. His suit was dismissed. We reverse and remand.

The pertinent parts of the plaintiff’s pleadings provide as follows:

II.
“The Defendant is, and at all times mentioned in Plaintiff’s petition was, a duly and regularly licensed physician and surgeon under the laws of the State of Texas.
III.
“Plaintiff would show that in 1962 Plaintiff was involved in an automobile collision, which resulted in injuries to his cervical spine and for which he was treated by Dr. Blum, and from which he apparently recovered, and had been periodically treated by Dr. Blum up until 1969. That on the 18th day of November, 1969, Plaintiff was involved in another collision which caused injuries to his cervical spine and discomfort and aching in the neck and shoulders and with his thumbs and other portions of the body. That the Defendant examined Plaintiff and diagnosed muscle tightness in the upper right and left trapezius muscles with some limitation of motion due to the discomfort in the cervical spine. A few days later Plaintiff telephoned Defendant and told Defendant that a representative of the insurance carrier of the car with which he had had the collision was attempting to negotiate a settlement and he inquired of the Defendant as to whether or not this would be a proper time to make a settlement. The Defendant stated to the Plaintiff that his injury was substantially the same as he had received before and that he could expect that he would make complete recovery from it and that therefore it would be a good idea to go ahead and settle. Based on this representation by Defendant, Plaintiff did go ahead and settle with the insurance carrier for the other vehicle.
IV.
“Plaintiff would show that Defendant was negligent in giving the advice which he did, which negligence was a proximate cause of the damages sustained by Plaintiff in each and all of the following particulars:
A. He failed to adequately examine Plaintiff to determine the true nature and extent of his injuries.
B. He failed to allow a proper period of time to elapse so that the full extent of Plaintiff’s injuries could be ascertained.
C. He failed to seek consultation to aid in determining the nature and extent of Plaintiff’s injury.

Each and all of the above acts of omission and commission were negligence and either singly or collectively were a proximate cause of the damages sustained by Plaintiff.

V.

“Plaintiff would show unto the Court that shortly after he settled with the insurance carrier which covered the other car his condition began to deteriorate and it has continued to deteriorate further and further. Plaintiff would show that he has been hospitalized and has had several surgeries and is still receiving treatment in an effort to alleviate his condition and effectuate a recovery. Plaintiff has been unable to sleep or rest adequately and he will continue to do so in the future. He has suffered extreme excessive and unendurable physical pain and mental suffering and he will continue to suffer such pain and suffering in the future. Plaintiff would also show that he has lost approximately $2,500.00 per month from his business because of his injuries and that he will continue to lose time from his business in the future due to his injuries. Because of the extreme physical pain and suffering he has endured, Plaintiff has been damaged in at least the sum of $100,000.00 and because of the work he has lost and will lose in the future, he has also been damaged in the sum of $100,000.00. Plaintiff would further show that he has incurred medical and hospital bills as a result of his injury in the amount of $41,-621.68 and he will continue to expend monies for hospital and doctor bills in the sum of at least $20,000.00.

VI.

“Plaintiff would show the Court that had Defendant not negligently advised him that it was all right for him to settle his case, he would not have settled his case until the true nature and extent of his injury was known. When the true nature and extent of his injury was known, he could have settled, collecting his true damages as pled herein from the driver of the vehicle with which he was involved in an accident. For this reason Plaintiff states that he is entitled to recover from the Defendant the damages he would have recovered from the third party with which he was involved in a collision.

“WHEREFORE, Plaintiff prays upon final hearing hereof he have judgment of and from Defendant in the sum of $261,621.68 plus interest thereon from date of judgment, costs of court and for judgment for such other and further relief, both general and special to which he may be justly entitled.

In passing upon special exceptions to the effect that the plaintiff has failed to plead a cause of action, the courts will consider the whole petition and will assume that every fact alleged therein is true. Yoakum County v. Gaines County, 139 Tex. 442, 163 S.W.2d 393, 394 (1942); Vogler v. Eddins, (Tex.Civ.App. — El Paso, 1956, writ ref.) 292 S.W.2d 346, 348; Geo. D. Barnard Company v. Lane, (Tex.Civ.App. — Dallas, 1965, no writ hist.) 392 S.W.2d 769, 771. When this is done here we find that the plaintiff has pleaded that the treating de fendant-physician negligently diagnosed the physical condition of the plaintiff-patient and misrepresented the extent of the plaintiff’s injuries to him, although knowing that the plaintiff was relying upon the diagnosis for settlement purposes, and thereby caused the plaintiff to settle his claim for damages for a much lesser sum than he would have settled for if he had known the true extent of his injuries. The plaintiff contends that he has stated a cause of action commonly known as “negligent misrepresentation”.

Most jurisdictions, and particularly the more modern decisions, have recognized a cause of action on negligent misrepresentation. 37 Am.Jur.2d 277, Fraud And Deceit, § 209. 32 A.L.R.2d 232. It constitutes a specie of remedial fraud in Texas. Shatterproof Glass Corporation v. James, (Tex. Civ.App. — Fort Worth, 1971, writ ref. n.r.e.) 466 S.W.2d 873, 879; Cameron v. First Nat. Bank, (Tex.Civ.App. — Galveston, 1917, writ ref.) 194 S.W. 469, 476; Durham v. Wichita Mill & Elevator Co., (Tex.Civ.App. — Fort Worth, 1918, writ ref.) 202 S.W. 138, 140. Cf. American Indemnity Co. v. Ernst & Ernst, (Tex.Civ.App. — Waco, 1937, writ ref.) 106 S.W.2d 763. Its elements are set forth in Tentative Draft No. 12, Restatement of Torts (2nd ed., 1966), § 552, under Topic 3 of that work, as follows:

“Topic 3. Negligent Misrepresentations.
“§ 552. Information Negligently Supplied For The Guidance Of Others.
“(1) One who, in the course of his business, profession or employment, or in a transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.
(2) Except as stated in subsection (3), the liability stated in subsection (1) is limited to loss suffered
(a) By the person or one of the persons for whose benefit and guidance he intends to supply the information, or knows that the recipient intends to supply it: and
(b) Through reliance upon it in a transaction which he intends the information to influence, or knows that the recipient so intends, or in a substantially similar transaction.
(3)The liability of one who is under a public duty to give the information extends to loss suffered by any of the class of persons for whose benefit the duty is created, in any of the transactions in which it is intended to protect them.”

Of course, scienter is not an element, and need not be pleaded. Seale v. Baker, 70 Tex. 283, 7 S.W. 742, 746 (1888).

Cases annotated under § 552 in the Tentative Draft show that the rule of negligent representations has been applied as to abstractors of title, accountants (as in Shatterproof Glass Corporation v. James, ante), surveyors, inspectors of goods, and others.

Applying § 552 to our case, the plaintiffs pleadings, assumed to be true, show that the defendant, in the course of his profession, supplied false information to the plaintiff for the plaintiffs guidance in his business transaction; that the defendant failed to exercise reasonable care in several particulars in the gathering of the information; that the plaintiff relied on the information in a transaction the defendant intended it to influence; and that the plaintiff thereby suffered pecuniary loss. These pleadings state a cause of action on negligent representation.

We interpret the plaintiffs petition as pleading for damages he failed to collect in the settlement because of the defendant’s negligent misrepresentation. This is the proper measure of damages.

The order of dismissal is set aside. This case is remanded for trial.