author: WARD, Justice.

text:
    VINTAGE HOMES, INC., Appellant, v. Leslie COLDIRON, Appellee.
    No. 6808.
    Court of Civil Appeals of Texas, El Paso.
    July 25, 1979.

      Tom R. Bevill, Breckenridge, for appellant.
    Ronald E. Ragsdale, Andrews, for appel-lee.
   OPINION

WARD, Justice.

This case involves a breach of the implied warranty of merchantability in the sale of a new mobile home. The mobile home was bought from an independent retail dealer, but the only Defendant was the manufacturer. Trial was to the Court sitting without a jury. By its judgment, the trial Court found that there was an implied warranty of merchantability, as the term is defined in Section 2.314 of the Tex.Bus. & Comm.Code Ann., which accompanied the sale; that the home was defectively manufactured and constructed and a breach of the implied warranty had occurred; and awarded the consumer the sum of $5,879.15 as damages for his economic loss. The Court in its judgment determined that this amount represented the difference between the represented value of the mobile home at the date of sale and its actual value. Findings of fact were not requested and except as set out in the judgment were not filed. We affirm.

Leslie Coldiron purchased the mobile home on November 15, 1971, from Permian Pontiac in Midland for the sum of $7,079.15. The unit was built by the Defendant, Vintage Homes, Inc. The dealer transported the unit to Andrews, blocked it up on the purchaser’s lot and hooked up the sewer. The purchaser and his wife hooked up the other utilities. Within a period of six months, the Coldirons experienced trouble with the unit when the lights went out; the electric switches burned up; the water lines broke in two places. Thereafter, they replaced the electric breaker box. Next, large holes developed around the windows and doors and holes appeared in the roof and at one end of the unit. These problems permitted water and blowing sand to enter. Finally, the walls fell out in the hallway; the kitchen cabinets pulled out from the ceiling; and they discovered that the insu-Iation was inadequate. Within the first year after the sale, Permian Pontiac attempted some of the electrical and plumbing repairs. At one time, after the buyer complained to the dealer, a repairman from Vintage Homes inspected the unit and worked on the roof where he installed some “rumble bars,” but could do nothing about the doors and windows. After the first year, the buyer made or paid for his own repairs but, when the walls and roof started buckling and the sand from the blowing wind got worse, he decided to contact an attorney. His suit was filed in October, 1975. From the time of the purchase of the unit to the time-of trial, the Plaintiff and his family lived in the unit.

Mr. Rogers was called by Coldiron and, after qualifying as an expert on valuations and repairs to mobile homes, verified the defects, stated that the defects were caused by manufacture and not by wear and tear, and that the fair market value of the home as a new unit was between $1200.00 and $1500.00.

The defense consisted of an expert testifying that he examined the unit in 1976; that he found the insulation adequate; and that the damages to the unit amounted to only $1200.00 to $1500.00. He stated that in his opinion the damages were caused by improper leveling of the mobile home. This latter testimony regarding leveling was rebutted by Coldiron who maintained that the house was properly leveled at all times.

The Appellant’s first point attacks the sufficiency of the evidence supporting the trial Court’s finding contained in the judgment that at the date of sale the mobile home would not pass without objection in trade under the contract description and that the same was not fit for the ordinary purpose for which the goods were used. We will limit our remarks to the breach of the implied warranty of merchantability where the goods are unfit for the purposes for which the goods are ordinarily used. Tex.Bus. & Comm.Code Ann. sec. 2.314(b)(3). In this sale, the implied warranty was that the mobile home was to be fit for residential use. Davis v. Vintage Enterprises, Inc., 23 N.C.App. 581, 209 S.E.2d 824 (1974). The defects used to show the breach of the warranty had to be in existence at the time of sale or be inherent in the article sold. Ford Motor Company v. Tidwell, 563 S.W.2d 831 (Tex.Civ.App. —El Paso 1978, writ ref’d n. r. e.). The Appellee testified to some fifteen separate defects, and those permitting the elements to enter into the trailer were certainly of a serious nature. His expert who testified gave his opinion that they were all due to the poor manner of manufacture and not to wear and tear. Appellant’s expert agreed that all of the defects were present except the poor condition of insulation. He blamed the conditions on poor leveling and this condition was denied by the Appellee. The fact that the mobile home was accepted and thereafter used by the Coldirons might be a matter to be considered in the Appellant’s favor, but that was not fatal to the claim as made. The claim for damages was for breach of warranty and was not waived by the buyer’s acceptance and use of the mobile home. Section 2.607, Tex.Bus. & Comm.Code Ann.; Melody Home Manufacturing Company v. Morrison, 502 S.W.2d 196 (Tex.Civ.App. — Houston [1st Dist.] 1973, writ ref’d n. r. e.). We have examined the whole record and find that it adequately supports the trial Court’s finding that the mobile home was unfit for residential use. The first point is overruled.

Appellant’s second point is to the effect that there was insufficient evidence to negate the possibility that intermediate acts or agencies caused or contributed to the defects. As previously pointed out, the Appellee’s expert witness testified that the problems complained about were definitely due to the way the trailer was manufactured. The evidence was sufficient to negate all intervening causes and the Appellant’s second point is overruled.

Appellant next complains that there was no evidence that the Appellant ever represented that the mobile home was worth $7,079.15 since all of the Coldirons’ dealings were with Permian Pontiac. Tex. Bus. & Comm.Code Ann. sec. 2.714 provides that where the buyer has accepted goods and given notification he may recover as damages for the breach of warranty the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted. It is now established that the manufacturer can be responsible without regard to privity for the economic loss which results from his breach of the Uniform Commercial Code implied warranty of merchantability. Nobility Homes of Texas, Inc. v. Shivers, 557 S.W.2d 77 (Tex.1977). Contract price or the value of goods as represented need not come directly from the manufacturer or its personal agent. To hold otherwise would do violence to the Nobility holding. In that case, the Supreme Court in effect approved the measure of damages which was based on the retail dealer’s selling price. The point is overruled.

The measure of damages provided for in Section 2.714 where the buyer has accepted the goods is expressly conditioned that the buyer has given notification as provided in subsection (c) of Section 2.607. That subsection provides that the buyer must, within a reasonable time after he discovers or should have discovered any breach, notify the seller of breach or be barred from any remedy. The subject of the Appellant’s fourth point of error is that contrary to these Code provisions, which require notification, the Coldirons never notified the Appellant/manufacturer as to the alleged breach of the implied covenant of merchantability and therefore were barred from asserting any remedy to which the breach would otherwise give rise. We will overrule the point for the reason that the notice requirement of Section 2.607 applies only as between a buyer and his immediate seller. The matter is referred to in 2 Anderson Uniform Commercial Code (1971) at see. 2-607:14 as follows:

A person not in privity with the defendant, assuming that he is permitted to sue the defendant, is not barred for having failed to give notice to the defendant for the Code only requires that the plaintiff give the notice to ‘his seller.’ This carries with it the double restriction that the plaintiff be a purchaser and that he have purchased from the defendant. Thus the notice provisions of UCC section 2-607 do not apply to subpurchasers or bystanders.

We also note that the buyer’s dissatisfaction was called to the attention of Vintage Homes when its repairman worked on the roof but refused to do anything about the doors and windows. A general expression of dissatisfaction was held sufficient compliance with the statute in Melody Home Manufacturing Company v. Morrison, supra. Further, the notice requirements of the Code are to be liberally construed and are not stringent. 2 Anderson 2-607:25-29.

The Appellant’s final point complains that the court reporter was not at the time of trial certified as provided by Article 2324b, Tex.Rev.Civ.Stat.Ann. We fail to find where any such complaint or where any proof sustaining such contention was either offered or made in the trial Court. The point is overruled.

The judgment of the trial Court is affirmed.


source: Caselaw Access Project

author: RALEIGH BROWN, Justice.

license: Public Domain

text:
    Erwin C. WINKEL, II, M.D., et al., Appellants, v. John W. HANKINS, Appellee.
    No. 5290.
    Court of Civil Appeals of Texas, Eastland.
    July 26, 1979.
    Rehearing Denied Aug. 30, 1979.

      Charles G. Lowry and Joel B. McCarty, Jr., Lowry, Pruett & McCarty, Lawrence T. Newman, Nathan, Nathan & Newman Co., Houston, for appellants.
    David M. Freedman, Houston, W. James Kronzer and Robert B. Ballard, Kronzer, Abraham & Watkins, Houston, for appellee.
   RALEIGH BROWN, Justice.

This is a slander case. John Hankins sued Norma Harris and Erwin C. Winkel for actual and exemplary damages because of their allegedly slanderous statements falsely accusing him of stealing $10,000 from the hospital where he was an employee and in which defendants had a financial interest. The jury found Harris and Wink-el each had made statements that Hankins had stolen $10,000, that the statements were false and were made with malice. The jury awarded $750,000 actual damages and assessed against each defendant $100,-000 exemplary damages. After Hankins voluntarily remitted $250,000 of the actual damages award, judgment was rendered for $500,000 actual damages against the two defendants jointly and severally, and against each of them individually for $100,-000. Harris and Winkel appeal. We affirm.

Hankins was hired by a group of investors to assist in the planning and construction of North Central General Hospital. After the hospital opened in January, 1974, Hankins became hospital administrator and continued in such capacity until June, 1974, when he was discharged. Winkel and Harris were physicians and two of the doctor-investors in the hospital project. Winkel specialized in urology and was Chief of Medical Staff during the spring of 1974. Harris was the hospital’s resident radiologist.

Financial problems developed even before the hospital opened and the doctor-investors were required to invest more money or guarantee hospital indebtedness to permit its opening and to keep it operational. Witnesses agreed that the business management of the hospital was the responsibility of Hankins as administrator. During the spring of 1974, there were five members on the Board of Directors of the hospital. Three testified that they lost confidence in Hankins because of various problems at the hospital. Two testified supportively of Hankins.

It was during the spring of 1974 that Harris learned that Hankins had received a check for $10,000 from the hospital in December, 1972. She received a copy of a document, allegedly the corporate minutes of a December 8, 1972 Board of Directors meeting, authorizing the $10,000 payment. Hankins alleged that during the spring of 1974, rumors were being circulated around the hospital by the defendants that he had stolen $10,000 from the hospital. He contended he received the $10,000, which was authorized by the Board of Directors in the meeting of December 8,1972, as an advance for work performed on the professional building located adjacent to the hospital.

Hankins was indicted in November, 1974, for theft of $10,000 from North Central General Hospital. The indictment was subsequently dismissed for insufficient evidence.

After he was discharged as administrator of the hospital, Hankins brought the instant suit alleging that Winkel and Harris entered into a conspiracy to do him harm, made slanderous remarks about him, and accused him of stealing from the hospital. Hankins contended that the defendants acted with malice and caused him to be discharged, damaging his reputation to such an extent that he could not obtain employment thereafter as a hospital administrator.

Appellants suggest that their complaints of error can be basically condensed into two areas. First, they argue that the case was tried on hearsay, opinions, conclusions, and speculations from plaintiff’s witnesses with regard to whether or not appellants made statements that Hankins was stealing from the hospital. Second, they complain that evidence by defense witnesses concerning the questioning of a document alleged to be corporated minutes was excluded.

Harris, in two points of error, and Wink-el, in seven points of error, specifically urge that the trial court erred in admitting into evidence plaintiff’s exhibit 3 which was a copy of the minutes of the hospital Board of Directors dated December 8, 1972, and in excluding parol testimony questioning it.

The issue of whether the $10,000 was stolen by Hankins or was paid to him as a bonus was a major item of controversy in the instant case. The exhibit stated in part:

The next item concerned remuneration for Dr. Hankins for past work during which time he had worked on the project without pay, as well as for services that he had provided above and beyond his current work. The Board was in full agreement as to the necessity for remuneration and felt that he should be advanced $10,000.00 towards work that he had accomplished to date on the professional building and further recognized the fact that he will continue to work towards insuring occupancy of the professional building. Upon motion duly made and unanimously carried, it was
RESOLVED that John W. Hankins be awarded the sum of $10,000.00 for work done on the professional building in the year 1972. Payment to be made immediately.

Dr. Eaton, chairman of the hospital board on December 8, 1972, testified as to that meeting. He identified the exhibit as a true and accurate copy of the minutes of the meeting and said that he approved those minutes after they were typed up and presented to him.

On offer of the exhibit, only counsel for defendant, Harris, objected saying:

Your Honor, we object these minutes are not regular — if they are being introduced as regular minutes of the corporation, we object to them. They are not proper. The predicate has not been laid.
The Court: You’re overruled.
Mr. Newman: Please note our objections, Your Honor.
These are not properly signed by the secretary of the corporation, nor shown that they were approved as being accurate minutes.

The objection that “the predicate has not been laid” is too general and the overruling of same is not reversible error. As stated by the court in State v. Stiefer, 443 S.W.2d 275 (Tex.Civ.App. — Tyler 1969, writ ref’d n. r. e.):

The objection made was that the proper predicate had not been laid for the proffered testimony. The objection is too general to warrant consideration without specifying wherein the predicate is inadequate. Objection to admission of evidence should be specific, not general, and must be such as can be understood by the court and obviated by other evidence introduced by the opposing party, if possible. Bohanan v. Hans, 26 Tex. 445 (S.Ct. 1863); Dabney v. Keene, 195 S.W.2d 682, 684 (Tex.Civ.App., El Paso, 1946, writ ref., n. r. e.); Loumparoff v. Housing Authority of City of Dallas, 261 S.W.2d 224, 228 (Tex.Civ.App., Dallas, 1953, n. w. h.); 56 Tex.Jur.2d, page 516, Sec. 171.

The court in Burleson v. Finley, 581 S.W.2d 304 (Tex.Civ.App. — Austin 1979, no writ) said:

A valid objection to the offer of evidence is one that names a particular rule of evidence that will be violated by the admission of the evidence. De Garca v. Galvan, 55 Tex. 53 (1881); Walker v. Great Atlantic & Pacific Tea Co., 131 Tex. 57,112 S.W.2d 170 (1938); University of Texas System v. Haywood, 546 S.W.2d 147 (Tex.Civ.App.1977, no writ). The purpose of requiring a specific objection is, of course, to enable the trial court to understand the precise question and to make an intelligent ruling and to afford the offering party an opportunity to remedy the defect if possible. 1 McCormick and Ray, Texas Law of Evidence § 24 (1956).

The trial court did not rule on the second objection and the record does not reflect that any attempt was made to obtain a ruling. No error was, therefore, preserved. As stated by the court in Citizens of Texas Savings & Loan Association v. Lewis, 483 S.W.2d 359 (Tex.Civ.App.— Austin 1972, writ ref’d n. r. e.):

In a conventional trial, one who objects to evidence must secure a ruling from the court on his objection in order to preserve the point for appellate review. See Webb v. Mitchell, 371 S.W.2d 754 (Tex.Civ.App. 1963, no writ). .

If, in fact, the trial court erred in the admission of plaintiff’s exhibit, appellants have failed to preserve such error.

Appellants’ complaint that the trial court erred in excluding parol testimony questioning the exhibit is not supported by the record. An attempt to perfect alleged errors in excluding the testimony was made by interrogation of witnesses Nathan, Bransford, Harris, Wooten and Denman out of the presence of the jury. However, the evidence was neither offered before nor after the making of the bills of exceptions. The record reflects an off-the-record conference was held and subsequently, bills of exceptions made. The record does not show that the court made a ruling excluding the testimony. No error is preserved. City of San Antonio v. Condie, 329 S.W.2d 947 (Tex.Civ.App. — San Antonio 1959, writ dism’d).

The court in Plyler v. City of Pearland, 489 S.W.2d 459 (Tex.Civ.App. — Houston (1st Dist.) 1972, writ ref’d n. r. e.), considering a complaint that the trial court erred in excluding certain evidence, said:

After an unreported argument to the court and an unreported ruling by the court, the attorney for appellant proceeded to offer testimony on a bill of exceptions out of the hearing of the jury. Further questions were put to Mr. McClellan, and nine other witnesses were called and examined on the bill. There is no showing in the record that the testimony of these witnesses was offered into evidence and that it was excluded by the trial court. Neither the ruling of the trial court, nor the understanding, if any, with regard to the mechanics of taking the Bill of Exceptions, is found in the record. The record does not show that appellee objected to evidence concerning the location of appellant’s property with reference to the City boundaries, or that the evidence was offered for that limited purpose. The point that the trial court erred in refusing to admit this evidence cannot be sustained. Self v. Becker, 195 S.W.2d 701 (Tex.Civ.App. — Texarkana 1946, writ ref., n. r. e.); City of Denison v. Corcoran, 253 S.W.2d 321 (Tex.Civ.App. — Austin 1952); City of San Antonio v. Condie, 329 S.W.2d 947 (Tex.Civ.App. — San Antonio 1959, writ ref., n. r. e.); Seele v. Seele, 371 S.W.2d 922 (Tex.Civ.App. — San Antonio 1963, writ ref., n. r. e.).

Furthermore, even if the testimony of the five witnesses given on their bills of exceptions had been offered in evidence and assuming some of the testimony was admissible, the court would not have erred in refusing the offered testimony because the bills of exceptions contained other objectionable matter. The court in Texas Reciprocal Ins. Ass’n v. Stadler, 140 Tex. 96, 166 S.W.2d 121 (1942), opinion said:

The rule is settled that where evidence is offered as a whole, some of which is inadmissible, it is not error for the trial court to exclude the whole upon proper objection. Robinson v. Stuart, 73 Tex. 267, 11 S.W. 275.

See also Texas Employers’ Insurance Association v. Creswell, 511 S.W.2d 68 (Tex.Civ. App. — Eastland 1974, writ ref’d n. r. e.).

We overrule appellants’ complaints that the trial court erred in the admission of testimony which they contend was hearsay testimony to the effect that appellants had accused Hankins of stealing money from the hospital.

The first of such testimony was during the direct examination of Carol Janet Porter, to-wit:

Q Okay. Now, during the late spring and early summer of 1974, did you become aware of rumors that began to spread in the hospital about John Hankins?
A Most definitely.
Would you relate to the Court and jury, please, ma’am, in your own words, what you began to hear? Q
A I began hearing people—
Mr. Lowry: At this time I want to object. If she can’t name these clients as parties to this conversation, this is hearsay.
The Court: Do you expect to follow this—
Mr. Ballard: Yes, I do.
The Court: All right. Go ahead.
A (By the witness) Yes, sir. I heard — I was in conversations with nurses, and they were talking about hearing others talking about John’s stealing money, asking me if I believed it; and I said absolutely not. And the general feelings of the nurses, they were very concerned, they were upset about the rumors, because they didn’t believe it either.
I never spoke to a nurse who believed it, but, I heard about he was stealing money, $10,000 here and the hospital costing more than it was supposed to, and he had stolen this, and that was why it was costing more, and he was not qualified for his position, and the reason he had acquired certain material goods was because he had allocated “X” amount of funds illegally and—
Q Indicating that he had taken money?
A Right.
Q From the hospital?
A Right.
Q For himself?
A Right. And, I never personally heard any of the people that were in question, but I heard nurses say that they heard Doctors so-and-so and Dr. so- and-so heard it. I never did—
Q Now, from what you heard and what you observed, were you able to determine the origin of who was starting the rumors?
Mr. Lowry: Your Honor, at this time, again I object. I believe that is hearsay. If this lady cannot say that she heard someone making these statements, it is hearsay and we object to it.
The Court: He said he was going to follow through. If he doesn’t follow through, I will strike it.
Mr. Lowry: Please note our exception.
Q (By Mr. Ballard) Were you unable to identify the source of the rumors?
A Yes. I heard the name of Dr. Winkel and the name of Dr. Harris, and I personally never heard them say anything.
Q They didn’t come to you, specifically, and tell you that?
A No. I never heard them say anything, but in the course of conversations, people would say this was what they heard these individuals say, but I personally never did.

What the witness had heard was admissible evidence on the issue of Hankins’ damages. As stated by the court in Belo & Co. v. Wren, 63 Tex. 686 (1884):

The amount of damages in a libel suit is left largely to the discretion of the jury. They may take into consideration the motives of the publisher; and if the libel has been sold to the public indiscriminately, heavier damages are given, and evidence as to the mode and extent of the publication is at all times admissible. .

Therefore, the general hearsay objection was insufficient and the court correctly overruled same. The court in Buck v. Savage, 323 S.W.2d 363 (Tex.Civ.App. — Houston 1959, writ ref’d n. r. e.) said:

In holding that it was not error for the Trial Court to overrule such an objection, our Supreme Court in Brown & Root v. Haddad, 142 Tex. 624, 180 S.W.2d 339, 341, said: “A general objection to evidence as a whole, whether it be oral or documentary, which does not point out specifically the portion objected to, is properly overruled if any part of it is admissible.” The Court cited many eases supporting its ruling.

Appellants did not then or subsequently move to strike that or any similar answer. They made no request for an instruction to the jury limiting consideration of the testimony to the effect that it could not be considered as evidence of the fact that Harris and Winkel had made the slanderous statements. Appellants, therefore, failed to perfect error as to its admission. Blau-grund v. Gish, 179 S.W.2d 266 (Tex.1944).

Even assuming the court erred in its admission of the above testimony, the record reflects that similar testimony was given without objection by witnesses, De Marco, Eaton and Tovar. No request was made by defendant to instruct the jury not to consider that testimony. Harris and Winkel thereby waived Winkel’s attorney’s objection to the testimony of Porter. Hundere v. Tracy & Cook, 494 S.W.2d 257 (Tex.Civ. App. — San Antonio 1973, writ ref’d n. r. e.); New Hampshire Fire Insurance Company v. Plainsman Elevators, Inc., 371 S.W.2d 68 (Tex.Civ.App. — Amarillo 1963, writ ref’d n. r. e.); Rowe v. Liles, 226 S.W.2d 253 (Tex. Civ.App. — Waco 1950, writ ref’d).

We disagree with appellants’ contention that there is no evidence or insufficient evidence to support the jury’s findings that each defendant accused Hankins of stealing from the hospital and that such statements were false and made with malice.

Minerva Karr, on cross-examination, testified in part:

Q Now, you said that you heard rumors that John Hankins had stolen money and that you wanted to ask Dr. Winkel if he believed this?

A No, I didn’t say I heard rumors, I heard Dr. Winkel say it.

Q You heard Dr. Winkel accuse Mr. Hankins of stealing money?

A $10,000. Yes, sir.

Dr. Donald W. Smith testified in part:

Q . Did Dr. Harris or Dr. Wink-el, ever make a statement in your presence that John Hankins had taken or stolen $10,-000?

A These statements were made to me by Dr. Harris.

Q Do you recall approximately when it was?

A • It was in the late springtime of 1974.

Q The statement that John Hankins had taken $10,000?

A That he had misappropriated $10,000.

Q Okay. So that we don’t deal in semantics and words of art, was your impression from that statement that John Han-kins had stolen money?

A Yes, sir.

Q . . .In your checking, as a member of the creditors committee, did you ever find one dime that John Hankins took that didn’t belong to him?

A There was no evidence of that,

Q Did Dr. Harris ever mention to you that if Hankins did not leave, she and others would file criminal charges against him for certain land transactions?

A I remember that being discussed.

Q Were you aware of a petition that she was circulating to remove him .from his position as administrator?

A Yes, sir, I was.

Q When would that be, again, in March and April?

A Right around that frame of time.

Q Did you feel that Dr. Harris, in every way, tried to undermine the Hankins’ administration?

A Yes.

Q I believe she even mentioned to you that John Hankins was having an affair with Sharon Price?

A That was mentioned also.

Q Did you gather that was of the illicit sexual variety?

A I assumed it was a rather friendly relationship, tending towards the sexual.

Q Okay. Did Dr. Harris ever call Han-kins an egomaniac?

A Yes, she did.

Earl Strother testified:

Q Now, subsequently, in June, I believe, 1974, a group of people got together and gave him a statement and fired him, and then there was another board meeting to either affirm or rescind that firing. Do you recall that?

A Again, I can’t be specific about the date. I was at the meeting and not as an official board member, but as I recall, as an ex-officio, and as an interested party.

Q You were still an investor or connected with the corporation?

A That’s correct.

Q I want to talk about that particular meeting where everyone came to either confirm or deny his firing. Did you have an occasion to speak at the meeting?

A I did.

Q Do you know if Dr. Winkel or Dr. Harris had an occasion at the meeting?

A The room was full of people. A lot of people said a lot of things, and I specifically cannot recall any specific words that either one of them said at the meeting, during the session.

Q Do you recall any specific words that either of them may have said after the meeting?

A Only Dr. Harris.

Q What was the occasion?

A During the meeting I had tried very hard to get John put on ice, ,1 guess is the correct term to use, defuse the situation. My pleadings with them was, don’t fire him, give him an extended vacation, the hospital is the important thing; . his situation is something else entirely, and the first order of business should be taking care of the hospital and moving on and not having dissension. My words fell on deaf ears.

Q Was there a considerable amount of dissension?

A There was just a whole lot of talking about it. If the word dissension is the correct word to use or not, I don’t know. I think there was mixed feelings on everybody’s part. But, everybody felt like the situation had reached a point that something had to be done, and my solution to the thing was to put him on a vacation, forget his problem, forget the problems of the people who had problems with him, and get on with the business and let this sore stop causing dissension, and move on. After the meeting officially broke up, and I walked around where the little bar was and Dr. Harris came there or she may have already been stopping there, and I said to her, words to the effect, “I wish you all hadn’t done this.” And I felt like that, you know, it was not in the best interest of the project, and—

Q That was the firing?

A The firing. Well, the whole controversy, it was something that caused dissension and caused people to not to support the hospital and not to utilize the hospital. It just wasn’t good for business, very bluntly, and her words to me was, “After what John has done to me and my family, I don’t care.”

Q . What was the statement, what was the gist of her statement?

A Basically that she had no remorse over what had happened, that after what John had done to her and her family, she didn’t care.

Q . To this point, when Dr. Harris made those statements to you, did you or not get the impression that what she had done at the meeting to John Hankins, was based upon something that had happened some time ago?

A That’s correct.

Q And did you gather that it was a personal matter to her?

A That’s correct.

Mr. Nathan: I object to his leading the witness.

The Court: Don’t lead, counsel.

Mr. Ballard: I’m sorry, Your Honor.

Q (By Mr. Ballard) In your opinion, Mr. Strother, if you have such an opinion, were the actions that Dr. Harris took towards John Hankins based upon personal motives?

A Yes.

Q And do you feel, or in your opinion, if you have such an opinion, were those 'personal motives related to actions taken by John Hankins against a member of Dr. Harris’ family in the past?

Mr. Lowry: Again I object that he is leading the witness.

The Court: Rephrase your question. Sustain to the form in which you have asked the question.

Mr. Ballard: Thank you. I will rephrase it.

Q (By Mr. Ballard) Mr. Strother, can you indicate whether or not, in your opinion, the actions taken by Dr. Harris towards John Hankins, were or were not motivated by an old standing alleged wrong perpetrated by John Hankins against a member of Dr. Harris’ family?

Mr. Lowry: I hate to keep repeating, but counsel is still testifying and leading the witness. There has been no evidence—

The Court: He can ask him whether or not it is true, and move on. Overruled.

A In my opinion the motivation behind the problem that existed between the two of them, dealt with John Hankins’ firing of Dr. Harris’ husband at another hospital where he was administrator.

Q Okay. Now, when you talked with her, did she seem remorseful or sorry that she had done it or did she appear to be glad or did she exhibit any emotion at all?

A I wouldn’t say she exhibited joyous emotions, she certainly had no remorse.

Appellant, Winkel, testified:

Q . Doctor, did it ever come to your attention that John Hankins was addressing himself as Dr. Hankins?

A Yes, he addressed himself frequently as Dr. Hankins.

Q Did you ever quiz him about how he obtained his Doctorate Degree?

A Not at first. I, like so many others, just addressed him as Dr. Hankins, because he had told me that he was my professional equal.

Q And Doctor, was there any occasion that ever caused you to inquire into his Doctorate Degree?

A We have a friend who lacks a few hours of getting a doctorate himself, and we looked into the college situation that might permit him to have this, and Jackie asked me what type of, you know, how to go about having it, and called Houston Public Library, they had a list there of all legitimate colleges in the country and they would be able to give the address of the college that this degree came from.

Q And what, if anything, did you find out?

A Well, I found out that Ohio Christian College is not listed in any book. So, I then wrote the Educational Department of the State of Ohio and I received a letter back from the attorney’s office, and I think the Attorney General’s office.

Q And were you subsequently informed that the college had been enjoined from handing out any type of degrees?

A They wrote me that they considered it a diploma mill and I made a phone call to the Assistant Attorney General and he said that they did consider it a diploma mill and it had been closed down.

Q Did you then mention this to Mr. Hankins?

A Well, I started — yes, I caught him in the hallway and we sat down and talked about it and he said what difference did it make, and I told him it was a matter of some difference, just being truthful as to the degree and that I was not going to call him Dr. Hankins any more, and I talked to him eyeball-to-eyeball, and I said I will call you Mr. Hankins.

Q Now Doctor, what did John reply after you said I will call you Mr. Hankins?

A I don’t remember the exact words, except he was not too happy with that.

Q And this was an eyeball-to-eyeball confrontation?

A Eyeball-to-eyeball confrontation, sitting in the first floor on one of the structures.

Q And did you tell Mr. Hankins that his degree was a phony?

A No, I said the college the degree had come from was closed down as a diploma mill and that the department won’t rule on the individual piece of paper, but the college was not considered a valid college.

Q Did he tell you, at that time, he obtained his Ph.D. Degree for the total sum of $500?

A No, he never told me that. He never told me the amount of money he got it for or anything.

Q Did he tell you he did this by correspondence?

A He said that he had sent some kind of something in and I am vague on that, I think that I was telling him that it was what I- had discovered and he didn’t say much of anything for once.

The court in Behee v. Missouri Pac. Ry. Co., 71 Tex. 424, 9 S.W. 449 (1888) said:

Malice is rarely ever shown by direct evidence. It is commonly a state of mind indicated and inferable from other facts proved, — from language used, or acts, or both together. We infer a bad motive when an injurious act is intentionally done without legal excuse. The motive is not a bare fact of itself, susceptible of proof like any other fact; it is a conclusion deduced from acts or words. .

As the court said in Canales v. Salinas, 288 S.W.2d 207 (Tex.Civ.App. — San Antonio 1956, writ dism’d):

The repetition and republication of charges may establish malice. Behee v. Missouri Pac. Ry. Co., 71 Tex. 424, 9 S.W. 499; Missouri Pac. R. Co. v. Behee, 2 Tex.Civ.App. 107, 21 S.W. 384; Newell, 4th Ed. p. 322; 33 Am.Jur., Libel and Slander, § 268. .

Giving credence only to the evidence favorable to the findings and disregarding all evidence to the contrary, we hold the findings are supported by evidence of probative value. Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex.1974). We have examined the entire record and hold the evidence is factually sufficient to support the findings. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Appellants argue that the trial court erred in refusing to submit their requested special issues which they contend contained an inquiry material to their pled affirmative defense of privilege, specifically that of good faith.

The jury found that both Harris and Winkel “made oral statements to, or in the presence and hearing of, persons other than the officers, directors, shareholders or doctors on the medical staff of North Central General Hospital, that John Hankins was stealing from the hospital.” Such statements were found to be false and made with malice. The jury also found that both Harris and Winkel made such statements to or in the presence and hearing of the officers, directors, shareholders or doctors on the medical staff of the hospital and such statements were false and made with malice. 0

Appellants requested that in the event the jury found that they had made the statement that “such statements, if any, were made in good faith, in reference to a matter in which (each appellant) had an interest for the purpose of protecting that interest; or that such statement, if any, were made in good faith in the discharge of a duty, and looking to the prevention of a wrong to another.”

The court in Buck v. Savage, 323 S.W.2d 363 (Tex.Civ.App. — Houston 1959, writ ref’d n. r. e.), discussing the defense of privilege, said:

A qualified or conditional privilege, as we understand the rule, comprehends bona fide communications, oral or written, upon any subject in which the author or the public has an interest or with respect to which he has a duty to perform to another owing a corresponding duty. Such privilege is termed conditional or qualified because a person availing himself of it must use it in a lawful manner and for a lawful purpose. The effect of the privilege is to justify the communication when it is made without actual malice. 27 Tex.Jur., p. 649, Sec. 35, Libel and Slander. It may be said, therefore, that where a statement or publication is made under circumstances which render it conditionally privileged, though it be false, malice cannot be inferred therefrom, nor can it be based upon the character of the language used alone. .
The law, therefore, places the burden on the plaintiff to prove that the defendant in the exercise of a conditional privilege was prompted or partially prompted by malice or a want of good faith. Nunn v. Webster, supra; Cranfill v. Hayden, 97 Tex. 544, 80 S.W. 609; International & G. N. Ry. Co. v. Edmundson, supra [Tex. Com.App., 222 S.W. 181]; 27 Tex.Jur., p. 676. Moreover, if the defendant was in any degree actuated by malice in making or publishing a defamatory statement, the privilege is lost. .

See also Dun and Bradstreet, Inc. v. O’Neil, 456 S.W.2d 896 (Tex.1970); Cranfill v. Hayden, 97 Tex. 544, 80 S.W. 609 (1904).

Hankins submitted special issues and secured jury findings that appellants made the slanderous statements with malice, an essential element to his right of recovery as against an affirmative defense of privilege. Appellants’ requested issues sought merely to disprove malice. Tex.R.Civ.P. 277 prohibits the submission of inferential rebuttal issues.

The court in Select Insurance Company v. Boucher, 561 S.W.2d 474 (Tex.1978) said:

An inferential rebuttal issue is one which seeks to disprove the existence of an essential element submitted in another issue. Wirtz v. Orr, 533 S.W.2d 468 (Tex. Civ.App. — Eastland 1976, writ ref’d n. r. e.). Inferential rebuttal issues have been variously - referred to as denial issues or argumentative denials rather than direct negatives. Scott v. The Atchison, Topeka and Santa Fe Railway Company (Tex. 1978). The reasoning behind such labels is that “they disprove by establishing the truth of a positive factual theory which is inconsistent with the existence of some factual element of the ground of recovery or defense relied upon by the opponent, and are therefore to be distinguished from a flat denial . . . Hodges, Special Issue Submission in Texas, Section 15, at 40. The basic characteristic of an inferential rebuttal is that it presents a contrary or inconsistent theory from the claim relied upon for recovery. .

We hold the trial court correctly denied appellants’ requested special issues.

Appellants challenge both the compensatory and exemplary damage awards contending the evidence was legally and factually insufficient to support such awards and also that such awards were grossly excessive.

The compensatory damage issue submitted to the jury included the elements of past and future “embarrassment, humiliation and mental anguish,” past and future “loss of general reputation for honesty” and past and future loss of “ability to obtain and retain employment.” The jury was required to make a single finding.

In addition to testimony previously set forth, the record reflects that Hankins was fifty years old at the time of the trial. He had been engaged in the medical field for about thirty-three years. His testimony shows considerable training and experience in hospital administration including a master’s degree in hospital administration from Washington University, St. Louis, Missouri. At the time of his discharge as administrator from the hospital, he was making a salary of $30,000 a year and received fringe benefits such as a car and insurance coverage. Since his discharge, he had had no significant employment. The fact of his indictment for taking $10,000 from the hospital received newspaper, radio and television coverage, but when the indictment was dismissed wide coverage in the media was not given. Hankins had not been able to get a job in his professional field since his discharge from the hospital.

Witnesses Eaton and Johnson testified' that Hankins would never be able to get a job as a hospital administrator.

Witness Hepner, a professor at Washington University who was in charge of the graduate program in health care administration, had known Hankins since 1958 as a student and as a hospital administrator. Hepner testified that before Hankins was discharged by the hospital, Hankins had the highest personal and professional reputation. As examiner for the professional association, the American College of Hospital Administration, Hepner was familiar with the reputation requirement for employment as a hospital administrator. Hepner said, “Since being terminated from North Central General Hospital, it has been nearly impossible for Mr. Hankins to obtain a position in the field of hospital administration.”

Hepner further testified that a man of Hankins’ training and experience would command a salary of from $40,000 to $55,-000 a year with fringe benefits.

As stated by the court in Associated Press v. Walker, 393 S.W.2d 671 (Tex.Civ. App. — Fort Worth 1965, writ ref’d n. r. e.):

“Mental suffering on the part of the person defamed is one of the direct results of a libel or slander. Accordingly, injury to the feelings, humiliation, and anguish of mind are proper elements of compensatory damages, provided they are the direct and proximate result of the defamation. This suffering is classed as general damages, that are presumed to have been sustained, and that, in actions for libel, are recoverable under a general averment, without specific proof that they were incurred, and, by virtue of statute, regardless of whether there was any other injury or damage, even though the publication was not libelous per se.” 36 Tex.Jur.2d 402, § 98.
“The plaintiff is entitled to compensation for injury to his character or reputation caused by the defamation. * * * It follows that the jury, in fixing the amount of recovery, may consider the loss of, or injury to, character or reputation, even though there is no proof thereof nor any proof of good character. * * * ” 36 Tex.Jur.2d 400, § 97.
“In other words, a general allegation of damages will admit evidence of those damages naturally and necessarily resulting from the defamation charged. It is unnecessary to itemize the elements of general damages; rather, the amount may be alleged in the aggregate. Thus, the plaintiff need not aver the nature, character or extent of the mental suffering caused, or even that he thereby suffered any agony, but it is sufficient to aver the damages he sustained by reason thereof. * * *” 36 Tex.Jur.2d 445, § 126.
“Generally speaking, the damages resulting from a libel or slander are purely personal and cannot be measured by any fixed standard or rule. The amount to be awarded rests largely in the discretion of the jury, or the court in a case tried without a jury, and an appellate court will not disturb the verdict or award unless it appears from the record to be excessive or the result of passion, prejudice, or other improper influence. * *
“In fixing the amount the jury may take into consideration the motives of the defendant, and the mode and extent of publication. * * * ” 36 Tex.Jur.2d 405, § 102.

The court in Whalen v. Weaver, 464 S.W.2d 176 (Tex.Civ.App. — Houston (1st Dist.) 1970, writ ref’d n. r. e.) said:

The amount of damages is peculiarly within the province of the jury. It is true that this Court has authority to require a remittitur if it deems the damages awarded clearly excessive. Damages sustained are purely personal and cannot be measured by any fixed rule or standard. Beaumont, S.L. & W. Ry. Co. v. Daniels, 204 S.W. 481 (Tex.Civ.App.,), writ ref.; Hooker v. Ft. Worth Press, 11 S.W.2d 586 (Tex.Civ.App.,) n. w. h.; El Paso Times v. Eicke, 292 S.W. 594 (Tex. Civ.App.,) dism’d; Eidinoff v. Andress, 321 S.W.2d 368 (Tex.Civ.App.,), ref., n. r. e. .

We hold the finding of the jury regarding the damage issues are supported by evidence of probative value. Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex.1974). We, also, after having examined the entire record, hold the evidence is factually sufficient to support the findings. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

We are unable to say under the facts of this case that the damages were the product of passion or prejudice or that they are excessive.

We overrule all of appellants’ challenges to the damages awards.

We have considered and overrule all points of error presented by appellants. The judgment is affirmed.


author: REYNOLDS, Chief Justice.

text:
    Richard JOHNSON, Temporary Administrator of the Estate of Bernice D. Bullock, Deceased, Charles W. McCallum, Sr., Janice Stogsdill Smith, Carrie Lee Stogsdill Simpson, Charles W. McCallum, Jr., Robert Lawrence McCallum and Richard McCallum, Appellants, v. Glenda STARK, Gladys Hulsey, Joe Floyd Blewett, Helen Lindsley and Dorothy Iglehart, Appellees.
    No. 9023.
    Court of Civil Appeals of Texas, Amarillo.
    July 31, 1979.
    Rehearing Denied Aug. 29-, 1979.

      Irwin & Whitley, George W. Irwin, Robert L. McCallum, Dallas, for appellants.
    Earl Luna and George Vorpahl, Dallas, for appellees.
   REYNOLDS, Chief Justice.

This will controversy is determined by the character of the estate vested in the first taker. The trial court construed the will to vest an estate less than fee with powers of disposition in the first taker, and adjudged that the takers of any estate in remainder could follow the proceeds of sales and dispositions made by the first taker. Ascertaining that the testator intended to vest a qualified fee simple estate in the first taker, who had full control over the proceeds from dispositions made, we reverse and render.

A twenty-five year childless marriage between Guy H. Bullock and Bernice D. Bullock ended at the 1956 testate death of Mr. Bullock. His probated will, devising and bequeathing his separate property and his one-half interest in the community property, reads, in parts material here, as follows:

2.
I will, devise and bequeath to my beloved wife, Bernice D. Bullock, for and during her natural life, but with the rights powers and authorities herein shown, all my estate, real, personal and mixed of every description and wheresoever situated, to be occupied, used, enjoyed, rented, leased for oil, gas and mineral exploration, development and production, leased for farm purposes, commercial purposes and other purposes, and to be by her sold and conveyed, by fee simple title or otherwise, all in any manner, for any purposes, and on any terms and conditions, and for any considerations, which she may desire, and with the corpus of my estate, the proceeds from any sales, the principal, and the profits, income and increases, if any, to be invested, re-invested, or not invested, as she may desire, in any manner, for any purposes, and on any terms and conditions, and for such considerations, as she may desire, and with the corpus of my estate, proceeds from any sales, the principal, and the profits, income and increase, if any, therefrom, to be by her used, enjoyed, consumed, expended and spent, in any manner, for any purposes, and to any extent she may desire, with full, unlimited, and unrestricted rights, powers and authorities in all such respects, it being my intention herein to will to my said wife a qualified fee simple estate in all my estate, real, personal or mixed, only qualified to the extent that whatever amount of same may remain on hand at her death shall pass as hereinafter stated.
3.
On the death of my said wife, Bernice D. Bullock, such of my estate as then remains on hand I will, devise and bequeath as follows:
(a) To Minnie Blewett, Dallas, Texas, the sister of my first wife, now deceased, or to the decendents of the said Minnie Blewett, if she be then deceased, I will and bequeath the amount of $3000.00 cash to be paid from the liquid assets from my estate, if available, otherwise from the sale of personal property, if available, otherwise from the sale of real estate.
(b) To Myrtle Davis, the sister of my first wife, now deceased, or to the decen-dants of the said Myrtle Davis, if she be then deceased, I will and bequeath the amount of $3000.00 cash to be paid from liquid assets from my estate, if available, otherwise from the sale of personal property, if available, otherwise from the sale of real estate.
* ⅜! * * * sfe
(i)All the balance of my estate, real, personal or mixed, that remains on hand at the death of my wife, Bernice D. Bullock, I will, devise and bequeath as follows;
(1) ⅛ pf [sic] same to my wife’s neice [sic] Janice Stogsdill.
(2) of same to my wife’s neice [sic] Carrie Lee Stogsdill.
(3) ¾⅞ of same to my grand neice [sic] Glenda Stark.
(4) of same to my nephew Charles W. MeCallum Jr.
(5) ⅛ of same to my nephew Robert Lawrence MeCallum.
(6) V« of same to my nephew Carl Richard MeCallum.

Bernice D. Bullock, during the twenty-five years after the probate of Mr. Bullock’s will and until her 1977 testate death, made various sales and conveyances of the real and personal estate of Mr. Bullock. It was stipulated that Mrs. Bullock conveyed all of the real and personal estate left by Mr. Bullock, except for two community property tracts of land which vested under the wills of Mr. and Mrs. Bullock and which are not involved in this litigation.

In 1975, Bernice D. Bullock executed her last will, naming the devisees and legatees of her estate. After her death, Glenda Stark, a named beneficiary in Mr. Bullock’s will, Gladys Hulsey and Joe Floyd Blewett, the descendants of deceased Minnie Blew-ett, who was named a beneficiary under Mr. Bullock’s will, and Helen Lindsley and Dorothy Iglehart, the descendants of deceased Myrtle Davis, who was a named beneficiary under Mr. Bullock’s will, instituted this action. Designated as defendants were Richard Johnson, temporary administrator of the estate of Mrs. Bullock, and devisees and legatees who would inherit under Mrs. Bullock’s will.

Plaintiffs, appellees here, pleaded that: Mrs. Bullock took only a life estate in Mr. Bullock’s property; they are entitled to follow into Mrs. Bullock’s estate the proceeds from the sales and conveyances she made of Mr. Bullock’s property; and that Mrs. Bullock so commingled the proceeds with her estate that plaintiffs are entitled to recover out of her estate the bequests made under paragraphs 3(a), 3(b) and 3(i)(3) of Mr. Bullock’s will. Defendants, appellants here, joined the issue, pleading that Mr. Bullock’s will vested the fee to his property in Mrs. Bullock, who became the owner of all proceeds from the sales and conveyances she made of Mr. Bullock’s estate with the right to subject those proceeds, as she did, to her gifts and testamentary disposition.

Following a bench hearing, the trial court construed the will of Mr. Bullock and rendered judgment for plaintiff-appellees. The court construed the will as bequeathing and devising to Mrs. Bullock “not a life estate per se without power of disposition, nor ... a fee simple per se, but . [an] estate [which] did include powers of disposition as set forth in said will . ..” The court determined that it was Mr. Bullock’s intention that appellees should be entitled to trace the proceeds of all sales and dispositions made of Mr. Bullock’s estate and have the same interest in such proceeds as they would have had in the property which was sold or otherwise disposed. The court found that Mrs. Bullock so commingled the proceeds with her property that neither the estate nor the individual defendants were able to show the aliquot share of the plaintiffs in the property on hand and in possession of Mrs. Bullock at her death and, therefore, Mrs. Bullock’s estate was liable to plaintiff-appellees.

The judgment of the court decreed that plaintiff-appellee Glenda Stark recover a one-sixth (Veth) interest of and from the estate of Mrs. Bullock, and that plaintiff-appellees Gladys Hulsey, Joe Floyd Blewett, Helen Lindsley and Dorothy Iglehart each recover the sum of $1,500 from Mrs. Bullock’s estate. Defendant-appellants have appealed and plaintiff-appellees have responded, plaintiff-appellee Glenda Stark seeking a larger monetary recovery than allowed her in the trial court’s judgment.

In defense of the judgment, appellees first refer to the introductory part of paragraph 2 of Mr. Bullock’s will reading, “I will, devise and bequeath to my beloved wife, Bernice D. Bullock, for and during her natural life, but with the rights powers and authorities herein shown, all my estate . .” Appellees then cite authorities in support of their position that this language conveys to Mrs. Bullock only a life estate in the property devised and bequeathed to them by Mr. Bullock’s will, giving them the right to receive the value thereof from Mrs. Bullock’s estate upon her death.

To refute the judgment, appellants make the contradictious reference to the last portion of the same paragraph where Mr. Bullock stated, “it being my intention herein to will to my said wife a qualified fee simple estate in all my estate, real, personal or mixed, only qualified to the extent that whatever amount of same may remain on hand at her death shall pass as hereinafter stated.” Appellants, in turn, cite authorities supportive of 'their position that this language conveys a fee estate to Mrs. Bullock, who became possessed of all proceeds from the sales and conveyances she made of Mr. Bullock’s property with the right to provide for the disposition of the proceeds.

None of the authorities cited by the parties is dispositive of the construction to be given Mr. Bullock’s will. Those authorities, commenting on and construing wills with terms widely dissimilar to those in Mr. Bullock’s will, offer no precedents, but only assist in analysis. Because Mr. Bullock’s will is an instrument within itself expressing two different intentions to the parties and none of the trial evidence bears on the circumstances surrounding the execution of the will, the real intention of Mr. Bullock must be ascertained by general rules of construction established by adjudicated cases. Renner v. German, 207 S.W.2d 671, 674 (Tex.Civ.App. — Amarillo 1947, writ ref’d).

The cardinal rule to be followed by the court in construing a will is to determine the intention of the testator. Haile v. Holtzclaw, 414 S.W.2d 916, 922 (Tex.1967). In so doing, all parts of the testamentary writing are to be harmonized and given force to effectuate the testator’s intent. Welch v. Straach, 531 S.W.2d 319, 322 (Tex. 1975). If the testator’s intent can be ascertained from the language of the entire instrument, then a particular portion of the will which, when considered alone would indicate a contrary intent, must yield to the intention manifested by the whole instrument. McMurray v. Stanley, 69 Tex. 227, 6 S.W. 412, 413 (1887). And where technical words are used, they are presumed to be used in their settled legal meaning unless a different meaning is fairly deducible from the whole will. Mitchell v. Mitchell, 151 Tex. 1, 244 S.W.2d 803, 806 (1951); Jones’ Unknown Heirs v. Dorchester, 224 S.W. 596, 601 (Tex.Civ.App. — Amarillo 1920, writ dism’d).

The forepart of paragraph 2 of Mr. Bullock’s will giving his estate to his wife “for and during her natural life,” when considered alone, conveys only a life estate to Mrs. Bullock. See, e. g., Edds v. Mitchell, 143 Tex. 307, 184 S.W.2d 823 (1945). But, when the entire will is considered, that portion is repugnant to, and cannot be harmonized with, the last part of the same paragraph where Mr. Bullock expresses that it is his intention to will a qualified fee simple estate to his wife. Considered in this light, the testamentary writing is infected with the vice of confusion and contradiction, and surely that was not intended by Mr. Bullock.

Viewing the will as a whole, the on-balance determination that Mr. Bullock intended to vest in his wife the fee simple title, qualified by his testamentary disposition of any remainder of his estate at her death, is the only ascertained intent which makes paragraph 2 consistent within itself and gives effect to all of the language Mr. Bullock employed. This ascertainment is the sole one which gives credit to both the intention Mr. Bullock explicitly expressed and the meaning the law imparts to the technical term he used in describing the estate he bestowed upon his wife. From this viewpoint, it becomes evident that Mr. Bullock’s purpose in inserting the introductory phrase “for and during her natural life” was not to describe the character of the estate, but merely was to fix the time for the exercise of Mrs. Bullock’s granted powers which would prevent his estate in remainder from passing under his will at her death. Consistent therewith is Mr. Bullock’s recognition that the only part of his estate which would pass upon his wife’s death was that which then, in his words, “remains on hand.”

Conformable with Mr. Bullock’s intent to grant his wife a qualified fee simple estate, his will limits the right of appellees to an inheritance of his property which was un-disposed of, by sale or otherwise, at the time of his wife’s death. His will gives Mrs. Bullock complete control of the proceeds from the sale or other disposition of his property; and there is nothing in his will to indicate that he intended, or to authorize a holding, that appellees should have the right to follow the proceeds of any part of his estate that was disposed of by his wife. Accord, McMurray v. Stanley, supra, 6 S.W.2d at 417; First National Bank of Corsicana v. DeFoe, 384 S.W.2d 926, 928 (Tex.Civ.App. — Waco 1964, writ ref’d).

Moreover, the determination that Mr. Bullock intended to vest in his wife a fee simple title, qualified only in the event she died possessed of any property he devised and bequeathed to her, has the virtue of adhering to another established principle of will construction. “Where, as in this case, there is a provision that upon a certain contingency the estate given shall pass to another, the law favors the first taker and will construe the words of the will to grant to the first taker the greatest estate which they, by a fair construction in harmony with the will as a whole, are capable of passing.” Darragh v. Barmore, 242 S.W. 714, 716 (Tex.Com.App.1922). By the only fair and harmonious construction that can be given all of the language Mr. Bullock used to express his intention, a qualified fee simple estate was the greatest estate capable of passing to the first taker, Bernice D. Bullock.

Given this construction of Mr. Bullock’s will, the judgment must be reversed and judgment must be rendered. Accordingly, the other contentions of the parties are mooted.

The judgment of the trial court is reversed. Judgment is here rendered that appellees Glenda Stark, Gladys Hulsey, Joe Floyd Blewett, Helen Lindsley and Dorothy Iglehart take nothing by their action. Tex. R.Civ.P. 434.

COUNTISS, J., not participating.


author: DODSON, Justice.

text:
    PEAT, MARWICK, MITCHELL & CO., Appellant, v. Joe E. SHARP, Appellee.
    No. 8992.
    Court of Civil Appeals of Texas, Amarillo.
    July 31, 1979.
    Rehearing Denied Aug. 29, 1979.

      Underwood, Wilson, Sutton, Berry, Stein & Johnson, James A. Besselman, Amarillo, for appellant.
    Gibson, Ochsner & Adkins, Wayne P. Sturdivant, Amarillo, for appellee.
   DODSON, Justice.

Plaintiff Peat, Marwick, Mitchell & Co., a partnership engaged in the practice of certified public accounting, brought this action for damages against Joe E. Sharp, a withdrawing partner, for alleged violations of a covenant not to compete contained in the partnership agreement. Sharp counterclaimed for certain accrued benefits arising under the agreement. The parties submitted the questions of liability to the trial court. The court ruled that the negative covenant was not limited to a reasonable space. The court further ruled, however, that Mr. Sharp was liable in damages for violating the covenant and that he could not recover benefits under the partnership agreements. The trial court then submitted the damage issues to the jury, which found none. Accordingly, the trial court entered take-nothing judgments on each claim. Both parties appeal. We affirm that portion of the judgment which decrees that plaintiff take nothing against Mr. Sharp. We reverse that portion of the judgment which decrees that Mr. Sharp take nothing and render judgment that he recover $46,547.40 plus interest and costs from plaintiff.

The record shows, inter alia, that Peat, Marwick, Mitchell & Co. is an accounting partnership with offices within and outside the United States of America and its territorial possessions. Sharp was employed with the accounting partnership in 1964, became a partner in 1972 and withdrew in 1976. He worked only with the firm in the State of Texas and was a tax partner at the Amarillo office from 1972 until his withdrawal.

The parties executed two partnership agreements dated July 1, 1975. One agreement concerned the partnership activities within the United States and its territorial possessions and the other agreement dealt with activities outside this area. Both agreements contain provisions for voluntary withdrawal from the partnership, surrender of units of interest and allocation of profits upon surrender of the units of interest. Each agreement also contains a section which set forth certain covenants for withdrawing on retiring partners. This section provides, in part:

Section 9. Covenants of Withdrawing or Retiring Partners/Principals
******
(b) Continuation of the Practice of Public Accounting
******
(ii) Those not vested under the Retirement Allowance Plan
Except at the request of the Firm, a Partner or Principal not vested under the Retirement Allowance Plan shall not engage directly or indirectly in the practice of Public Accounting in any of its phases within the Territory of the Partnership for a period of two (2) years after the date he ceases to be a Partner or Principal, except with the written permission of the Executive Committee and then only with the understanding that such Partner or Principal shall not solicit or perform services for any client of the Firm or any organizations with which the Firm was negotiating for the provision of its services on that date.
(c) Additional Remedies of the Firm for Breach
In addition to all other remedies open to the Firm, violation of this Section shall result in forfeiture of any rights under this Agreement that might otherwise appertain to such person violating this Section.

The undisputed evidence shows that Mr. Sharp fell within section 9(b)(ii) of the above agreement.

By a letter dated July 1,1976, Mr. Sharp notified the accounting firm of his determination to withdraw from the partnership and surrender his units of interest in the firm effective January 1,1977. After withdrawing from the partnership Sharp began practicing certified public accounting in Amarillo, Texas. Among Mr. Sharp’s clientele were several parties and entities which were clients of the Amarillo office of Peat, Marwick, Mitchell & Co. when he withdrew from the firm.

Peat, Marwick, Mitchell & Co. proceeded to trial on its First Amended Original Petition. In this pleading, the partnership alleged violation of the covenant not to compete by soliciting and performing professional services for clients of the firm. The partnership specifically sought only actual and exemplary damages for the alleged breaches of the covenant not to compete.

Mr. Sharp filed a sworn denial and affirmatively pleaded that the forfeiture provision of section 9(b)(ii) is in restraint of trade, against public policy and unenforceable. He further asserted that the covenant not to compete contained in section 9(b)(ii) “is unreasonable, both as to territory and the period of time involved.”

Mr. Sharp also filed a counterclaim for certain accrued benefits “under a profit sharing participation plan for the partners of Peat, Marwick, Mitchell & Co.” The accounting firm did not file an answer in response to Mr. Sharp’s claim for accrued benefits under the partnership agreements.

The trial court first proceeded to hear the question concerning the legal effect of the covenant not to compete. The parties made stipulations which were filed in the cause. Peat, Marwick, Mitchell & Co. placed the two partnership agreements and Mr. Sharp’s letter of withdrawal into evidence and then presented evidence from Mr. Sharp. At the close of this evidence, the trial court determined that the covenant not to compete was not reasonably limited as to geographic space and “that the law does require a reformation.”

After this determination by the trial court, both parties moved for judgment. The court overruled Sharp’s motion for judgment for accrued benefits under the partnership agreement in the stipulated amount of $46,547.40. The trial court also determined that Mr. Sharp was liable for damages in violation of the covenant not to compete. Then, the trial court proceeded to hear before a jury the question of the amount of damages, if any, for breach of the covenant. The jury found no damages. Thus, the trial court entered a take-nothing judgment as to each of the respective claims of the parties.

In his first point of error, Sharp says that, as a matter of law, Peat, Marwick, Mitchell & Co. cannot recover damages for violations of the covenant not to compete because the covenant is unenforceable as written and that any recovery of damages for violation of the covenant prior to reformation would effectuate a retroactive application of the unenforceable covenant. Peat, Marwick, Mitchell & Co. by cross points complains that the jury’s verdict of no damages is against the great weight and preponderance of the evidence and that the trial court erroneously submitted the wrong measure of damages to the jury.

In support of his position, Sharp relies on Weatherford Oil Tool Company v. Campbell, 161 Tex. 310, 340 S.W.2d 950, 953 (1960). In Weatherford the Court stated:

We hold that an action for damages resulting from competition occurring before a reasonable territory and period have been prescribed by a court of competent jurisdiction must stand or fall on the contract as written. If the agreement is not enforceable in accordance with its terms because either the time or the area stipulated therein is unreasonable, the employer may obtain injunctive relief but will not be awarded a money recovery for anything the employee may have done prior to a judicial declaration of the rights and obligations arising from the contract (emphasis added).

In the case before us, the covenant not to compete is unenforceable as written in the partnership agreements. The covenant does not specify or stipulate a reasonable geographical area. In this connection, we observe that the trial court, in its judgment, expressed an opinion that the covenant should be reformed; however, the judgment does not order and decree a reformation of the covenant. We also note that Peat, Marwick, Mitchell & Co. did not plead for a reformation of the covenant not to compete. Under the circumstances, we must conclude, as a matter of law, that the trial court did not err by entering a take-nothing judgment against Peat, Marwick, Mitchell & Co. on its claim for damages for alleged violations of the unenforceable covenant not to compete. Accordingly, Mr. Sharp’s first point of error is sustained, which is dispositive of the cross points by Peat, Marwick, Mitchell & Co.

Mr. Sharp also contends that the trial court erred in rendering judgment that he take nothing on his counterclaim for accrued benefits under the partnership agreement. In this connection, he contends that “a violation of an unreasonable covenant not to compete cannot result in a forfeiture of accrued benefits otherwise recoverable” under the agreements. Peat, Marwick, Mitchell & Co. counters that covenants not to compete are valid conditions precedent to Sharp’s action for benefits under the agreements.

Peat, Marwick, Mitchell & Co. cites Dollgener v. Robertson Fleet Services, Inc., 527 S.W.2d 277 (Tex.Civ.App. — Waco 1975, writ ref’d n. r. e.) in support of its position. In Dollgener, a retired employee brought an action against his former employer and the trustees of a profit-sharing pension plan to recover retirement benefits under the plan. The plan was funded entirely by the employer. A clause in the plan provided for the forfeiture of all interest in the plan if the former employee became a competitor of the employer. The clause was unlimited as to time or area. The court held that the forfeiture provision in the pension trust plan imposed a valid condition on the employee to receive pension benefits and that the provision did not “constitute an unreasonable restraint of trade and does not violate the public policy of this State.” Doll-gener v. Robertson Fleet Services, Inc., supra, at 280.

The decision in Dollgener is not controlling in the case before us. Mr. Sharp, as a withdrawing partner, seeks accrued benefits under the partnership agreements which are an employment agreement. The negative covenants not to compete, as written in the agreements, are invalid restraints of trade and against public policy. Weatherford Oil Tool Company v. Campbell, supra, at 951; Wissam v. Boucher, 150 Tex. 326, 240 S.W.2d 278, 280 (1951). The invalid covenants remain in restraint of trade and against public policy until and unless they are judicially reformed. Weatherford Oil Tool Company v. Campbell, supra, at 952. As we pointed out above, the covenants have not been judicially reformed. Under the circumstances of this case, we are persuaded that the negative covenants not to compete do not preclude Mr. Sharp from recovering any accrued benefits under the partnership agreements.

Mr. Sharp also maintains that the trial court erred in rendering a take-nothing judgment on his counter claim for the accrued benefits under the partnership agreement because the parties stipulated “that but for the alleged violation of the unreasonable covenants not to compete, Joe E. Sharp was entitled to recover the accrued benefits he claimed.” In the proceedings Mr. Sharp moved for judgment on this action “to recover benefits which by stipulation became available to Joe Sharp as a partner in the firm Peat, Marwick, Mitchell & Co., and to which he would have been entitled but for the alleged violation of the covenant unenforceable as written (emphasis added).” The stipulation in question is as follows:

4. That under the Articles of Partnership in question, if this controversy had not come about, the Defendant would have been entitled to the sum of $46,-547.40 in payments from his various accounts, interest, and profit participation from July 1, 1977 until December 31, 1977.

Peat, Marwick, Mitchell & Co. claims that Mr. Sharp misconstrued the stipulation. The accounting partnership said Mr. Sharp’s entitlement to the sum of $46,547.40 in payment from his various accounts, interest and profit participation under the articles of partnership in question is conditioned and qualified by the phrase “if this controversy had not come about,” that the controversy did in fact “come about,” and therefore he cannot recover by virtue of the stipulation.

In general, a stipulation is an agreement, admission or concession made in a judicial proceeding by the parties thereto or their respective attorneys relating to matters incident to the proceedings. Ordinarily, stipulations are made to avoid delay, transfer and expense of the litigation. The stipulation should reasonably be construed to effectuate the intent of the parties. To ascertain the true intent of the parties, the court must look to the subject matter of the controversy, the surrounding circumstances and the whole record, including the pleadings, the allegations made therein and the issues involved in the controversy. See 83 C.J.S. Stipulations § lib (1953); 53 Tex. Jur.2d Stipulations § 1 (1964).

Peat, Marwick, Mitchell & Co. went to trial on its first amended original petition. In this pleading, the accounting partnership claims that the covenant not to compete is-valid, that Mr. Sharp violated the covenant and that he was liable in damages for breach of the covenant. Mr. Sharp denied the allegations and affirmatively plead the invalidity of the covenant not to compete. He also filed a counter claim for accrued benefits under the partnership as a retiring or withdrawing partner. Peat, Marwick, Mitchell & Co. did not respond to this pleading by filing a general denial or asserting any affirmative defenses to the action.

When the controversy came to trial the court stated, “It is my understanding that the parties are going to waive a jury on the issue of liability, feeling that that is strictly a question of law; is that correct?” The parties, through their respective attorneys, responded as follows:

MR. BESSELMAN: That’s my understanding.
MR. STURDIVANT: That is correct, Your Honor.

The trial court then proceeded to hear the parties on the question of liability. At this hearing the central issues were the validity of the covenant not to compete and its legal effect on the parties’ claim against each other. After hearing testimony, the court ruled that the negative covenant not to compete was not limited to reasonable space and the law required a reformation. After this ruling by the trial court, both parties moved for judgment.

Mr. Sharp moved for judgment on the damages sought by Peat, Marwick, Mitchell & Co. on the grounds “that the damages sought are retroactive to contract, and damages are not recoverable on the contract as written . . .” Mr. Sharp also moved for judgment on his action for damages as follows:

And, (b) on the action of the Cross-Plaintiff, Joe Sharp, to recover benefits which by stipulation become available to Joe Sharp as a partner in the firm of Peat, Marwick, Mitchell & Co., and to which he would have been entitled but for the alleged violation of the covenant unenforceable as written. The amount that he seeks having been established by a stipulation presently filed with the Court at this time and of record.

The trial court denied Mr. Sharp’s motion.

Peat, Marwick, Mitchell & Co. moved for an instructed verdict. The motion states as follows:

I.
Plaintiff urges that reasonable minds could not differ as to whether or not the Defendant in this case has violated the covenant not to compete contained in the Articles of Partnership which are in evidence. That is, Defendant has, subsequent to July 1, 1976, performed services for clients of the Plaintiff for which he has been paid the sums of money now in evidence. Further, by virtue of the violation of the pertinent section of the Articles of Partnership in question, Defendant has forfeited any rights under such Articles of Partnership.
II.
Therefore, Plaintiff moves that Defendant’s liability be established as a matter of law for damages accruing to Plaintiff by virtue of Defendant’s performance of services for Plaintiff’s clients, of its Amarillo office, for a period of two years subsfequent to July 1, 1976 and that; further, Plaintiff has no liability to Defendant under his counterclaim.

The statement of facts further reveals the position of the parties. Mr. Besselman representing Peat, Marwick, Mitchell and Co. and • Mr. Sturdivant representing Mr. Sharp each stated in the record:

MR. BESSELMAN: As I understand our positions now, assuming the Court grants my Motion for Instructed Verdict, is that the Plaintiff is entitled to, as a matter of law, is entitled to a money judgment of some amount to be determined by the jury from the Defendant, and that because of the violation of the covenant not to compete and by virtue of its — the other contractural aspects of the Articles of Partnership, the Defendant is not entitled to recover on his counter claim. And the amount of money is stipulated.
MR. STURDIVANT: As to the second part.
MR. BESSELMAN: As to the second part.
MR. STURDIVANT: Leaving only now for issue the question of the amount of damages recoverable under the Plaintiff’s Original Complaint.
MR. BESSELMAN: Correct.

The trial court responded “All right. The motion will be granted in that regard.” Then, the court proceeded to hear the question of damages with a jury.

The record clearly establishes that Peat, Marwick, Mitchell & Co. tried the case on the theory that the covenant in question was valid as written, that Mr. Sharp forfeited all of his benefits under the agreement by violating the covenant as written. We reiterate that the accounting partnership filed no general denial or affirmative defenses in response to Mr. Sharp’s counter claim and offered in the trial court no other defenses to his action. Under the circumstances, we are persuaded that the parties intended the stipulation in question to relate to matters material to the proceedings rather than merely stating an abstract proposition. We therefore conclude that the parties intended by the stipulation that Mr. Sharp was entitled to the sum of $46,-547.40, if the covenant and forfeiture provisions in question were unenforceable as written in the agreement.

In summary, we sustain Mr. Sharp’s points of error and overrule Peat, Marwick, Mitchell & Co.’s cross points of error. Accordingly, that portion of the judgment decreeing that Peat, Marwick, Mitchell & Co. take nothing on its cause of action against Mr. Sharp is affirmed and that portion of the judgment decreeing Mr. Sharp take nothing from Peat, Marwick, Mitchell & Co. is reversed and judgment is rendered that Joe E. Sharp recover from Peat, Marwick, Mitchell & Co. the sum of $46,547.40, plus interest at the rate of nine percent per annum from June 9, 1978, until paid. Costs are adjudged against Peat, Marwick, Mitchell & Co.

COUNTISS, J., not participating.


text:
    COSDEN OIL & CHEMICAL COMPANY, Appellant, v. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL NO. 826, Appellee.
    No. 5345.
    Court of Civil Appeals of Texas, Eastland.
    Aug. 2, 1979.
    Rehearing Denied Aug. 30, 1979.
    Thomas E. Kurth, Durwood Crawford, Charles L. Perry, Seay, Gwinn, Crawford, Mebus & Blakeney, Dallas, for appellant.
    James R. Edwards, Lubbock, for appellee.
   RALEIGH BROWN, Justice.

This is a summary judgment case. International Union of Operating Engineers, Local No. 826, sued Cosden Oil & Chemical Company, a wholly owned subdivision of American Petrofina Incorporated, seeking performance of a collective bargaining agreement entered into between the parties. Cosden’s motion for summary judgment and motion to dismiss were denied. Union’s motion for summary judgment was granted. Cosden appeals. We affirm.

The following facts were stipulated to between the parties: Cosden and Union entered into a collective bargaining agreement covering certain of Cosden’s employees at its plant in Big Spring, Texas. Article VIII of the agreement provides in part:

SETTLEMENT OF DISPUTES AND GRIEVANCES
1. An employee has a grievance when such employee suffers a mental, physical, or financial loss or hazard as a result of the COMPANY’S violation of this Agreement.
2. An individual employee or employees shall either in person or through their Steward, within five (5) days of such employee’s or employees’ knowledge of the occurance of the event complained of, first seek adjustment through their immediate foreman who shall within three (3) days-provide an answer in writing to the compelling party.
3. Failing to reach a satisfactory understanding or adjustment through the immediate foreman, the aggrieved employee shall within five (5) days after receipt of such foreman’s written answer present the case in writing to the Industrial Relations Department of the COMPANY and the Grievance Committee for settlement.
4. Should the Industrial Relations Department and the Grievance Committee fail to settle the grievance, the Industrial Relations Department shall notify the UNION fifteen (15) days after the meeting, in writing, of such fact; and within thirty (30) days after receipt thereof the case may be referred to arbitration by a committee consisting of three (3) members, one (1) to be appointed by the COMPANY, one (1) to be appointed by the Union, and the third (3rd) selected by the first two (2). If the two (2) members selected by the COMPANY and the UNION are unable to agree upon the third (3rd) member within seven (7) days after appointment, the COMPANY and the UNION shall jointly request in writing that the Director of Federal Mediation and Conciliation Service designate a panel of five (5) from which the parties will select the third (3rd) arbitrator.
5. The time period provided above shall exclude all leaves of absence, holidays, vacations, and regularly scheduled days off.
6. A majority decision of the Arbitration Committee shall be final and binding upon all parties. In such cases the COMPANY and the UNION shall furnish the Arbitration Committee all information in their possession necessary to a full understanding of the subject matter of the grievance. Each party shall pay the expenses of its own selected members, and the parties shall each pay one-half (½) of the expenses of the third (3rd) member.
7.The Business Representative of Local No. 826 shall be permitted access to any of the operations represented by Local 826 for the purpose of investigating any dispute arising between the COMPANY and the UNION. There shall be no interruption of work by the UNION representatives unless the FOREMAN in charge shall have previously granted permission.

Cosden discharged employee Marshall Day and his discharge was made the subject of Grievance No. 78-37 filed by the Union. The discharge of an employee was recognized as a proper subject of the grievance and arbitration procedures provided for in the agreement.

The parties jointly requested a panel of arbitrators from the Federal Mediation and Conciliation Service. Upon receipt and review of the panel of arbitrators furnished, Cosden notified the Union that the panel was totally unacceptable and indicated it was requesting a second panel of arbitrators. Cosden notified the Union, upon receipt of a second panel, that it was prepared to select an arbitrator from such panel. Union refused to make its selection of an arbitrator from the second panel and filed Grievance No. 78-45 whose subject was “the refusal of Cosden Oil to select an arbitrator from the first panel,” which grievance, as stipulated between the parties, “Cosden Oil has accepted, with the grievance being processed per the usual procedures provided for under the Collective Bargaining Agreement.”

The parties specifically stipulate:

15. That on or about November 22, 1978, the Operating Engineers advised Cosden Oil of its wishes to proceed to arbitration on Grievance No. 78-45, and in such correspondence, further named its Union arbitrator and requested advice from Cosden Oil as to the name of the Company arbitrator; a true and correct copy of that correspondence from the Operating Engineers being admitted into evidence without objection as Defendant’s Exhibit 3.
16. That, by correspondence dated November 29, 1978, Cosden Oil advised the Operating Engineers of its receipt of the correspondence marked as Defendant’s Exhibit 2 from the Operating Engineers, and further, Cosden Oil advised that Mr. Barnwell would serve as the Company’s arbitrator on Grievance No. 78-45; a true and correct copy of such correspondence being marked as Defendant’s Exhibit 3 and admitted into evidence without objection.
17. That, by correspondence dated December 8, 1978, the Operating Engineers forwarded to Cosden Oil, by cover letter, the request of the Operating Engineers to FMCS for a panel of arbitrators for Grievance No. 78-45, which “Request for Arbitration Panel” was duly signed by Mr. Barnwell for Cosden Oil and Mr. Howell for the Operating Engineers. A true and correct copy of the correspondence from the Union dated December 8, 1978, being marked for identification as Defendant’s Exhibit 4, and admitted without objection. A true and correct copy of the “Request for Arbitration Panel” for Grievance No. 78-45 being marked for identification as Defendant’s Exhibit 5, and admitted into evidence without objection.

The subject matter of the Union petition in the instant cause is identical to the subject matter of Grievance No. 78 — 45 being, ‘.‘Whether or not Cosden Oil was entitled to refuse to select on arbitrator from the first panel submitted for the arbitration of Grievance of No. 78-37 (the discharge of Marshall Day).”

The thrust of Cosden’s appeal is that the trial court has erroneously assumed the role of arbitrator in deciding who shall prevail on the merits of the arbitration in Grievance No. 78-45. We disagree.

In support of its position Cosden cites cases which provide:

“The question of interpretation of the collective bargaining agreement is a question for the arbitrator. It is the arbitrator’s construction which is bargained for; and so far as the arbitrator’s decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.” Enterprise Wheel & Car Corp., 363 U.S., 593 at 599, 80 S.Ct. 1358, 1362, 4 L.Ed.2d 1424, 46 LRRM, at 2426. . . .
In short, in labor cases to compel arbitration, there are only two issues before the Court: (1) whether an agreement to arbitrate exists; and (2) whether the particular dispute in question is susceptible to arbitration under the agreement. United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 583 n.7 & 585, 80 S.Ct. 1347, 4 L.Ed.2d 1409, 46 LRRM 2416, 2420 (1960); Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241, 82 S.Ct. 1318, 8 L.Ed.2d 462, 50 LRRM 2433 (1962). As pointed out above, if there are any doubts as to the susceptibility of the dispute to arbitration, these doubts are to be resolved in favor of arbitration. Warrior & Gulf, supra, 363 U.S. at 582-583, 80 S.Ct. 1347, 46 LRRM at 2419-2420.

The court in United Steelworkers v. American Mfg. Co., 363 U.S. 564, 567, 80 S.Ct. 1343, 1346, 4 L.Ed.2d 1403 (1960), stated:

The function of the court is very limited when the parties have agreed to submit all questions of contract interpretation to the arbitrator. It is confined to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract. Whether the moving party is right or wrong is a question of contract interpretation for the arbitrator.

Justice Brennan in United Steelworkers said:

To be sure, since arbitration is a creature of contract, a court must always inquire, when a party seeks to invoke its aid to force a reluctant party to the arbitration table, whether the parties have agreed to arbitrate the particular dispute. In this sense, the question of whether a dispute is “arbitrable” is escapably for the court.

In the instant case, the agreement entered into between the parties provides for arbitration solely with regard to labor disputes. The present dispute between the parties is not a labor dispute.

Appropriate summary judgment rules support the ruling of the trial court. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970); Great American Reserve Insurance Company v. San Antonio Plumbing Supply Company, 391 S.W.2d 41 (Tex. 1965); and Oram v. General American Oil Company of Texas, 513 S.W.2d 533 (Tex. 1974)

We have considered and overrule all points of error.

The judgment is affirmed.


author: McDONALD, Chief Justice.

text:
    UNITED COIN METER COMPANY, a Division of Solon Automated Services, Inc., Appellant, v. F. M. SHORT COMPANY d/b/a Indian Creek Apartments, Appellee.
    No. 6083.
    Court of Civil Appeals of Texas, Waco.
    Aug. 2, 1979.
    Rehearing Denied Sept. 6, 1979.
    Hilton H. Howell, Ñaman, Howell, Smith, Lee & Muldrow, P. C., Waco, Edward S. Koppman, Akin, Gump, Hauer & Feld, Dallas, for appellant.
    Stephen R. Fontaine, Sleeper, Williams, Johnston, Helm & Estes, Waco, for appel-lee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by United Coin Meter Company, original plaintiff and cross defendant, from order of the trial court overruling its plea of privilege.

Plaintiff United Coin sued defendant F. M. Short Company, D/B/A 0Indian Creek Apartments in February 1978 in Dallas County alleging plaintiff to be a resident of Dallas County, and that defendant is owner and manager of Indian Creek Apartments in Waco; that plaintiff has a written lease for installation of coin operated laundry equipment at Indian Creek which is in effect until October 1981; that defendant purchased the apartments after execution of the lease and is bound thereby; that defendant has notified plaintiff to remove the equipment and that if plaintiff does not remove same defendant will. Plaintiff sought temporary restraining order and temporary and permanent injunction restraining defendant from removing plaintiff’s laundry equipment from its location in Indian Creek Apartments. The lease was attached.

The trial court entered temporary restraining order (and temporary injunction) restraining defendant from removing the equipment during pendency of suit.

Thereafter defendant Short filed plea of privilege to be sued in McLennan County, and the trial court sustained such plea and ordered the case transferred to McLennan County.

Thereafter defendant Short filed a counterclaim as cross plaintiff against United Coin as cross defendant for an accounting, alleging United is lessee of laundry rooms in three apartment complexes owned by Short located in Waco, Denton and El Paso; that Short purchased these apartments after execution of the leases between United and the original owners; that United takes the proceeds from the machines at the three locations without Short having opportunity to verify the receipts; that Short is entitled to verify the receipts; and prays for temporary restraining order and temporary injunction pending trial against United removing money from the laundry equipment at the three locations unless Short’s agent be present when the money is removed. The trial court granted such temporary restraining order and United agreed to temporary injunction.

In February 1979 Short filed First Amended Counterclaim as cross plaintiff against United as cross defendant, alleging Short had purchased six additional apartment complexes located in Edinburg, Odessa, College Station and Lubbock in which United is lessee of laundry rooms; and sought temporary restraining order and temporary injunction against cross defendant removing money from the laundry equipment in these six additional apartments without Short’s agent being present, during pendency of suit. Copies of the leases were attached and are almost identical to the leases on the first three apartments except for the percentages lessor shall receive, the length of the lease, and the named parties. Temporary restraining order was granted by the trial court.

United thereafter filed plea of privilege to be sued in Dallas County on the First Amended Counterclaim. Short controverted that United filed suit against Short in Dallas County; that such suit was transferred to McLennan County on Short’s plea of privilege; that United has appeared generally and thereby invoked the jurisdiction of the McLennan County Court as to all matters arising out of or incidental to the subject matter of its suit; that the matters involved in the First Amended Counterclaim are permissive, involve the same parties, facts and questions of law as the contracts plead in the original petition and the original' counterclaim.

The trial court after hearing overruled United’s plea of privilege to Short’s First Amended Counterclaim.

Appellant, Cross Defendant United appeals on one point contending the trial court erred in overruling its plea of privilege for transfer of [Short’s] first amended counterclaim to Dallas County, “because such first amended counterclaim is not incidental to and does not arise from the main suit”.

United filed original suit against Short in Dallas County for temporary injunction to prevent Short from taking coin operated laundry equipment out of Short’s apartment complex. Whether Short had such a right depended upon construction of United’s lease (which was attached).

Short filed plea of privilege and the case was transferred to McLennan County. Short counterclaimed against United to enjoin United from taking the proceeds from coin operated laundry equipment in three apartment complexes owned by Short. Resolution of this controversy depended on construction of Short’s leases with United (which were attached). Temporary injunction was granted by agreement.

Short then filed First Amended Counterclaim against United, seeking the same relief as in his first counterclaim, as to six additional apartment complexes. Resolution of this controversy depends upon construction of the leases with United (which leases were attached).

United then filed plea of privilege to be sued on the amended counterclaim in Dallas County which was overruled by the trial court.

All three controversies, viz. United’s suit for injunction against Short to prevent removal of laundry equipment from Indian Creek Apartments; Short’s counterclaim for injunction to prevent United from taking proceeds from coin operated laundry equipment belonging to United but located in three apartment complexes belonging to Short; and Short’s First Amended Counterclaim seeking the same relief against United at six additional apartment locations; depend for resolution upon construction of the nine leases involved. Each of the nine leases are similar and several have identical provisions. They differ in length of lease term, amount of rental, location of leased premises and named parties.

De La Vega v. League, 64 Tex. 205 holds:

“A plaintiff calling a defendant into court for the purpose of obtaining relief against him invites him to set up all defenses which may defeat the cause of action sued on, or any other appropriate and germane to the subject-matter of the suit, which should be settled between the parties before a proper adjudication of the merits of the cause can be obtained. He grants him the privilege of setting up all such counterclaimscand cross-actions as he holds against the plaintiff which may legally be pleaded in such a suit.

“This is particularly the case in our state, where a multiplicity of suits is abhorred, and a leading object is to settle all disputes between the parties pertinent to the cause of action in the same suit”.

And Zachry v. Robertson, 147 Tex. 307, 214 S.W.2d 949 holds: “It is generally held that in a suit upon a contract, a cross-action in the nature of a suit for breach of the same contract by the plaintiff, or for the breach of another contract closely related thereto, may be maintained, and that the subject matter is incidental to or arises from the main suit, and is proper subject matter for a cross action ”.

To the same effect are: Fender v. Mann, Tex.Civ.App. (Waco) NWH, 530 S.W.2d 155; Hurst v. Stewart, Tex.Civ.App. (San Antonio) NWH, 526 S.W.2d 668; Vanguard Ins. Co. v. Young, Tex.Civ.App. (Houston 1) NWH, 511 S.W.2d 65; and Connell v. Spires, Tex.Civ.App. (Eastland) NWH, 264 S.W.2d 458.

In Connell, supra, in a case where, as here, the cross plaintiff had caused the original case to be moved to his home county on plea of privilege prior to filing his cross action, the court held cross plaintiff’s right to set up cross action was not affected by the fact he had caused the case to be removed to his home county prior to filing his cross action.

United complains in its brief of the legal capacity of Short to sue by cross action on some of the leases. United filed a plea in abatement subsequent to filing of the plea of privilege raising these issues, and such issues will be resolved on the merits.

We think Short’s First Amended Counterclaim closely related and incidental to United’s original suit, and as such proper subject matter for a cross action.

Appellant’s point is overruled.

AFFIRMED.