author: BISSETT, Justice.

text:
    William R. INGRAM, Individually and d/b/a Hutcheson-Ingram Development Company, Appellant, v. CARD COMPANY, Appellee.
    No. 1093.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 30, 1976.
    Wiech, Lewis & Fleming, Brownsville, for appellant.
    William E. York, McAllen, for appellee.
   OPINION

BISSETT, Justice.

This is an appeal from the granting of a default judgment on a sworn account. Card Company, hereinafter referred to as “the Company”, sued “William R. Ingram and S. L. Hutcheson d/b/a Hutcheson and Ingram Development Company” to recover $1,518.81 for repairs made on a tractor owned by Hutcheson and Ingram Development Company and for attorney’s fees. The only answer that was filed was a sworn answer by “William R. Ingram d/b/a Hutcheson-Ingram Development Company”, who also filed a third-party action against Joyce Equipment Company.

An interlocutory default judgment was rendered, apparently on September 8, 1975, against “Hutcheson and Ingram Development Company, a partnership”, whereby the Company recovered the full amount sued for and attorney’s fees in the amount of $500.00. Thereafter the cause proceeded to trial against Ingram, individually and against Joyce Equipment Company.

Ingram, individually, and Joyce Equipment Company were each non-suited and were each dismissed from the action. The interlocutory default judgment was made final by the final judgment that was signed on September 17, 1975.

A motion for new trial was filed by “William R. Ingram d/b/a Hutcheson-Ingram Development Company.” It was there alleged:

“On September 8, 1975, the Court granted an interlocutory default judgment to the Plaintiff against WILLIAM R. INGRAM and S. L. HUTCHESON d/b/a HUTCHESON-INGRAM DEVELOPMENT COMPANY ...”
* * * * * *
“. . . Defendant, S. L. HUTCHE-SON was never served with citation in this suit. Therefore, no default judgment should have been granted against WILLIAM R. INGRAM and S. L. HUTCHESON d/b/a HUTCHESON-IN-GRAM DEVELOPMENT COMPANY.”
* * * * * *
. The Answer of WILLIAM R. INGRAM is also the Answer of HUTCHESON-INGRAM DEVELOPMENT COMPANY . .

The motion for new trial was overruled.

The trial court, in its “findings of fact and conclusions of law”, did not designate which paragraphs were “findings” and which were “conclusions”. Paragraph 1, a mixture of findings of fact and conclusions of law, reads, as follows:

“1. Hutcheson and Ingram Development Company is a partnership composed of William R. Ingram and S. L. Hutcheson, has never answered herein, and although S. L. Hutcheson was never personally served with citation herein, William R. Ingram was so served, and the partnership was then made a party in Plaintiff’s Amended Petition, but Ingram failed and refused to answer except for himself.”

It is undisputed that Ingram and Hutche-son were partners and that they were doing business under the firm name of “Hutche-son and Ingram Development Company”. That fact was recited by Ingram in Exhibit A to his “Third Amended Original Answer”, his trial pleading, which was signed:

“WILLIAM R. INGRAM
d/b/a HUTCHESON-INGRAM
DEVELOPMENT COMPANY
By: /s/ Tom Fleming Tom Fleming
WIECH, LEWIS & FLEMING 55 West Elizabeth Street Brownsville, Texas 78520 (512) 542-5666
Attorneys for William R. Ingram”

The purpose of a signature requirement in the pleadings is to fix the responsibility for the allegations and to make clear for whom counsel appears. 2 McDonald, Texas Civil Practice § 5.13, p. 34. It is clear from the answer filed by Ingram that he was acting both individually, and as a partner in Hutcheson-Ingram Development Company. That answer by Ingram constituted an answer for himself, individually, and for the partnership. The evidence conclusively shows that the tractor was acquired by the partnership with partnership funds and, therefore, such is partnership property, Art. 6132b § 8(2), Tex.Rev.Civ.Stat.Ann.; Conrad v. Judson, 465 S.W.2d 819 (Tex.Civ.App.-Dallas 1971, n. r. e.). Ingram possessed the actual and apparent authority to bind the partnership in the usual course of business. It necessarily follows that Ingram’s execution of the pleadings in the partnership name binds the partnership and stands as the partnership’s answer. Art. 6132b § 9(1) Tex.Civ.Stat.Ann. The answer filed by appellant was broad enough, and so intended, to constitute an answer by Ingram and by the partnership. The language contained in the answer is without limitation, and there is nothing to suggest from the pleadings that it was intended as an answer for Ingram only. Johnson v. Pioneer Mortgage Co., 264 S.W.2d 761 (Tex.Civ.App.- El Paso 1954, writ dism’d).

The Supreme Court of this State, in a case which still stands as the law in Texas, addressed itself to the issues of whether a partner had the right to appear and plead for the partnership, and if so, was his answer also that of the partnership. In answering yes to both questions, the Court held that an answer by one partner is also an answer for the partnership. Bright v. Sampson, 20 Tex. 21 (Tex.Sup.1857).

In Owen v. Kuhn, Loeb & Co., 72 S.W. 432 (Tex.Civ.App.-1903, writ ref’d), the court held that an answer offered by one partner for both himself and his co-partners stood as the partnership’s answer, and that there could be no judgment by default.

While neither S. L. Hutcheson nor the partnership were served with citation, and S. L. Hutcheson did not personally appear in the case, the voluntary appearance by Ingram, a partner in the firm, acting by and through an attorney for the partnership, served as the answer of the partnership. This precluded the rendition of a judgment by default against the partnership. See State v. Gloudt, 84 S.W. 415 (Tex.Civ.App.-1904, writ ref’d).

The trial court erred in granting a default judgment against the partnership. All of appellant’s points are sustained. The judgment is reversed and the cause of action against the partnership is remanded to the trial court for trial.

REVERSED AND REMANDED.

      . Art. 6132b § 8(2) Texas Uniform Partnership Act.
      (2) Unless the contrary intention appears, property acquired with partnership funds is partnership property.

      . Art. 6132b § 9(1) Texas Uniform Partnership Act.
      Section 9. (1) Every partner is an agent of the partnership for the purpose of its business, and the act of every partner, including the execution in the partnership name of any instrument, for apparently carrying on in the usual way the business of the partnership of which he is a member binds the partnership, unless the partner so acting has in fact no authority to act for the partnership in the particular matter, and the person with whom he is dealing has knowledge of the fact that he has no such authority.


source: Caselaw Access Project

author: YOUNG, Justice.

license: Public Domain

text:
    Jason LUBY et al., Appellants, v. The CITY OF CORPUS CHRISTI, Texas, et al., Appellees.
    No. 1094.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 30, 1976.

      Jack E. Hunter, William D. Bonilla, Bon-illa, Read, Nutto & Bonilla, Inc., Harry Hoag, Corpus Christi, for appellant.
    James F. McKibben, Jr., Dyer, Redford, Burnett, Wray & Woolsey, Corpus Christi, for appellee.
   OPINION

YOUNG, Justice.

This is an appeal from a declaratory judgment. It concerns the construction of the body of laws which govern the functions and duties of the officials and officers of the City of Corpus Christi, Texas. Jason Luby, Mayor of the City, and William D. Bonilla brought this suit against the City, the members of the City Council, the City Manager, and Raul Garcia. Trial was to the court without a jury. The trial court’s judgment declared that: 1) the City Council had the authority to appoint Raul Garcia to the Civil Service Board and Civil Service Commission 2) the Chief Executive of the City is the City Manager and not the May- or; 3) the Firemen’s and Policemen’s Civil Service Commission of the City does not have the power to punish for contempt and its orders must be enforced in a court at law; and 4) Civil Service Board and Firemen’s and Policemen’s Civil Service Commission are one and the same and the City Manager has the power to appoint members of both bodies subject to the confirmation and approval of the City Council. The appellants are Luby and Bonilla. At the request of the appellants trial court filed findings of fact and conclusions of law.

The appellants have assigned four points of error. In point three the appellants attack the court’s declaration that the Firemen’s and Policemen’s Civil Service Commission does not have the power to punish for contempt and its orders must be enforced in a court of law. We find, however, that the facts which constitute this issue are not appropriate for a declaratory judgment. William D. Bonilla served as Chairman of the Firemen’s and Policemen’s Civil Service Commission and in that capacity he sought to conduct an investigation of an alleged incident of police misconduct. Bon-illa issued subpoenas to the City Manager and the Chief of Police to require the production of documents in their possession. The documents were not produced in the time required and an order of contempt was issued. Suit was brought to prevent execution of the contempt order. The documents, however, were subsequently produced and the litigation was terminated by nonsuit. At the trial the plaintiff Bonilla testified that the issue of contempt was moot.

A declaratory judgment is not available in the absence of a justiciable controversy. Fort Worth Lloyds v. Garza, 527 S.W.2d 195 (Tex.Civ.App.-Corpus Christi 1975, writ ref’d n.r.e.); Slinker v. Superior Insurance Company, 440 S.W.2d 730 (Tex.Civ.App.-Dallas 1969, writ dism’d). It is the plaintiff’s burden in a declaratory judgment action to establish by competent evidence that there are contested issues which conclusively affect adversary parties in interest. Hodges v. Brazos County Water Control and Improvement District # 1, Big Creek, Brazos County, 449 S.W.2d 861 (Tex.Civ.App.-Houston [1st Dist.] 1970, writ ref’d n.r.e.). Because it does not appear that there is a real or actual controversy about the Commission’s power to punish for contempt, that portion of the judgment which purports to declare the rights of the parties upon this issue is vacated. See Firemen’s Insurance Company of Newark, New Jersey v. Burch, 442 S.W.2d 331 (Tex.Sup.1968).

The justiciable controversy presented by the present case concerns the question of who shall hold the contested position as a member of the Firemen’s and Policemen’s Civil Service Commission and Civil Service Board. It is the appellants’ position that William D. Bonilla has not been replaced as a member of the Commission or Board; that only the Mayor may, with the approval of the City Council, appoint members of these government bodies; and that the appointment of Raul Garcia was not accomplished according to law and is thus void.

It is not disputed that the City of Corpus Christi, Texas is a Home Rule city which has adopted the Council-Manager form of city government. Nor is it disputed that after the proper party (the Mayor or City Manager) has made an appointment, the appointment is not valid until it is approved by the City Council. There was introduced into evidence the minutes of the meeting of the City Council on August 4, 1975 and September 3,1975. The minutes of August 4, 1975 contain this entry:

“CIVIL SERVICE BOARD:
Motion by DeAses, seconded by Gill and passed, Mayor Luby abstaining, that Raul Garcia be appointed to replace William Bonilla on the Civil Service Board.”

The minutes of September 3, 1975 reflect that the City Manager addressed the City Council as follows:

“Relative to the appointment to the Civil Service Board and Commission, City Manager Townsend stated: (1) ‘It has been alleged in the lawsuit now underway that the appointment of Mr. Raul Garcia to the Civil Service Board and Commission on August 4, 1975, did not fully comply with the applicable sections of Article 1269m; that since the intention of the City Council to confirm the appointment of Mr. Raul Garcia to the Civil Service Board and Commission was clearly evident, the Council might wish to reconsider the actions previously taken so that the Council’s action will be clearly and properly recorded; (1) Statements in the news media since the lifting of the restraining order on Tuesday, September 2, indicate that the ex-chairman, Mr. William Bonilla, contends that he is still chairman of the Commission and thus, for the orderly carrying out of the responsibilities of the Commission, generally and specifically, at their regular meeting on Friday, September 5, this question should be resolved; (3) As I stated on August 4, 1975, at the City Council workshop, I was then placing before you for confirmation that person who received the approval of four members of the City Council; (4) I therefore resubmit for your confirmation and reconfirmation the appointment of Mr. Raul Garcia to the Civil Service Commission.’
Motion by De Ases, seconded by Lozano and passed, with Gill abstaining, that the appointment of Mr. Raul Garcia to the Civil Service Commission and Board, be confirmed and reconfirmed.”

There was also received into evidence the following document:

“CITY OF CORPUS CHRISTI CERTIFICATE OF APPOINTMENT
This Certifies That RAUL GARCIA Has been Officially Appointed
MEMBER OF CIVIL SERVICE BOARD
By action of the City Council this 4th day of August, 1975
/s/ Jason Lnbv Mayor
Attest:
(SEAL) /s/ Bill G. Read City Secretary ”

After reviewing the evidence and record of this case and considering in particular the evidence set out above, we hold that the trial court correctly found that Raul Garcia was duly appointed as a member of the Civil Service Commission at the meeting of the City Council on August 4, 1975, and that the appointment was reconfirmed by the City Council in the meeting of September 3,1975. The trial court could conclude from the evidence that both the Mayor and the City Manager submitted the name of Raul Garcia for appointment.

Because both the Mayor and the City Manager have participated in the appointment, an answer to the question of which party is to make the appointment under the provisions of the City Charter becomes unnecessary to a decision in this case. Although the City Charter provides in unambiguous language that the City Manager is the Chief Executive Officer of the City, this issue is also not ripe for a declaratory judgment. To render a declaratory judgment upon these issues would constitute nothing more than an advisory opinion which is beyond the scope and purpose of a declaratory judgment. Firemen’s Insurance Company of Newark, New Jersey v. Burch, supra.

That portion of the trial court’s judgment which declares that the City Council of the City of Corpus Christi did have the authority to appoint Raul Garcia to the Civil Service Board and Civil Service Commission is affirmed. The remaining portion of the judgment is vacated.

Affirmed in part and vacated in part.

      . The City Charter provides in Art. Ill, § 1, that: “The council shall appoint a city manager who shall be the chief administrative and executive officer of the city.” It is further provided in the Rules and Regulations of the Civil Service Commission for Firemen and Policemen, City of Corpus Christi, Texas, Art. I, § 3, that: “There is hereby established in the City of Corpus Christi, Texas, a Firemen’s and Policemen’s Civil Service Commission, ... to be selected as follows: Member of the Commission shall be appointed by the Chief Executive of the City and such appointment shall be confirmed by the City Council before any such appointment shall be effective.” The City Charter also provides in Art. VI, § 1, that: “There is hereby established a civil service board , . The Mayor, with the advice and consent of a majority of the commissioners, shall appoint the members of such board.”

        . City Charter of Corpus Christi. Texas Art. III, § 1.


author: NYE, Chief Justice.

text:
    COASTAL STATES GAS PRODUCING COMPANY et al., Appellants, v. CITY OF McALLEN et al., Appellees.
    No. 1125.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 30, 1976.
    Frank Nesbitt, Wood, Burney, Nesbitt & Ryan, Joseph A. Cohn, Jr., Corpus Christi, William E. York, McAllen, for appellants.
    Rankin, Kern & Martinez, McAllen, for appellees.
   OPINION

NYE, Chief Justice.

This case is an appeal from a denial by the trial court of the appellants’ plea of privilege. The appellants are foreign corporations doing business in the State of Texas. The trial court denied the appellants’ pleas under § 27 of Article 1995, Tex.Rev.Civ.Stat.Ann. (1964).

The sole question presented to this Court is whether or not § 27, Art. 1995, violates the equal protection clause of the 14th Amendment to the U. S. Constitution by permitting venue against foreign corporations to be held in a county other than their residences solely upon proof that the corporate defendant is a foreign corporation, and has an agent or representative in the county where the suit is filed. This question has circulated through the various courts of this State for a number of years. For instance, this Court held in Southwestern Bell Tel. Co. v. Thomas, 535 S.W.2d 686 (Tex.Civ.App.-Corpus Christi 1976, writ filed), that Subdivision 27 of Article 1995 was not unconstitutional for affording wider venue against foreign corporations than domestic corporations.

The question has now been laid to rest by the U. S. Supreme Court in American Motors Insurance Company v. Starnes, - U.S. -, 96 S.Ct. 1800, 48 L.Ed.2d 263 (1976). In the American Motors case, the U. S. Supreme Court held that § 27 of Art. 1995 does not violate the equal protection clause of the 14th Amendment. This decision affirmed the judgment of the Waco Court of Civil Appeals (515 S.W.2d 354, 1974) which was predicated on a decision by the Texas Supreme Court in Commercial Insurance Company v. Adams, 369 S.W.2d 927 (1963) also holding that § 27 of Art. 1995 did not violate the 14th Amendment.

It is evident by the above cited authorities that the appellants' points of error before this Court have been rejected by both the highest court of this State and the highest court of this nation. We, therefore, overrule the appellants’ points of error and affirm the judgment of the trial court.

AFFIRMED.


text:
    Reynaldo RUIZ, Appellant, v. The STATE of Texas, Appellee.
    No. 1102.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 30, 1976.

      R. A. Vidaurri, Flores, Sanchez, De Anda & Vidaurri, McAllen, for appellant.
    Oscar B. Mclnnis, Criminal Dist. Atty., Edinburg, for appellee.
   OPINION

NYE, Chief Justice.

This is an appeal from a declaratory judgment declaring that Reynaldo Ruiz was not qualified to be paid compensation as a Justice of the Peace while he also maintained employment as a public school teacher.

Reynaldo Ruiz was elected Justice of the Peace for Precinct 3, Place 2 in Hidalgo County, Texas, for a second term in November 1974 and has been discharging his duties as Justice of the Peace since January 1, 1975. Ruiz has also been employed in a teaching capacity as “Coordinator of the Cooperative Part Time Training Program” for the La Joya Independent School District, a job he has held since 1967. In September of 1975, the Hidalgo County Auditor and Treasurer, upon advice of the County Criminal District Attorney, began withholding the appellant’s pay checks for his services as Justice of the Peace.

Ruiz then filed suit requesting the District Court to declare that he be found qualified to serve as both Justice of the Peace and as a school employee and that he be allowed to be paid for both positions.

After a full trial without a jury, the court rendered judgment holding that Ruiz was not disqualified from holding both positions but that he would have to waive his salary as Justice of the Peace to avoid violating Art. 16 § 40 of the Texas Constitution. Art. 16 § 40 of the Texas Constitution (amended 1972) prohibits the holding of more than one civil office of emolument. The Article, however, makes an exception for office of Justice of the Peace but then prohibits them from accepting any salary while serving as a member of a governing body. The trial court apparently relying in part on the Attorney General’s opinion (No. H-6) of February 7,1975, which held that a teacher could serve as a county commissioner but could not draw any salary, held in this case that Ruiz, as a teacher, could serve as a Justice of the Peace but could not draw any salary for his services as a Justice of the Peace.

Ruiz brings forward on appeal, only one point of error. It is his contention that the trial court erred in holding that he was barred from receiving compensation for the office of Justice of the Peace under Art. 16 § 40 of the Texas Constitution because said article specifically exempts Justices of the Peace from this prohibition. The appellant Ruiz, states that the judgment is clearly based on a legal theory contrary to the expressed provisions of the Texas Constitution and is, therefore, erroneous. Additionally, the appellant argues that there is absolutely no evidence to support a finding that the appellant is ineligible to serve as both a teacher and a Justice of the Peace based on any theory of law; specifically Art. 2 § 1 of the Constitution.

The State of Texas agrees with the appellant’s contention that the trial court entered judgment on the wrong theory of law, but states that the appellant Ruiz is barred from serving as a Justice of the Peace under Art. 2 § 1 of the Constitution. (Separation of Powers) Art. 2 § 1 of the Constitution states that no member of any branch of the government shall exercise any power attached to any other branch of government. The State’s contention is further bolstered by another Attorney General’s advisory opinion (No. 106), dated May 23, 1975. This Attorney General’s opinion states that a public school teacher is barred from also holding office as a Justice of the Peace under Art. 2 § 1 of the Constitution. The State is, therefore, impliedly contending to this Court that the judgment of the trial court should be modified and then affirmed; that Ruiz is not only barred from receiving any compensation as Justice of the Peace but is also barred from serving as a Justice of the Peace.

Appellant Ruiz’ contention that the trial court erred in holding him ineligible to receive compensation as a Justice of the Peace under Art. 16 § 40 is correct. In Tilley v. Rogers, 405 S.W.2d 220 (Tex.Civ.App.-Beaumont 1966, writ ref’d n. r. e.), the court held that a teacher is an employee and not an officer within the meaning of Art. 16 § 40 of the Constitution. Not only is Ruiz an employee and not an “officer”, but Art. 16 § 40 specifically excepts Justices of the Peace from the dual emolument prohibition of the article. Therefore, under the holding in the Tilley case and under the clear language of Art. 16 § 40 of the Texas Constitution, a Justice of the Peace is excepted from the prohibitions of the article. The judgment of the trial court is therefore in error.

There is, however, a broader question to be determined by this appeal. Although as previously stated, the appellant is not barred from employment and compensation as a teacher and as a Justice of the Peace under Article 16 § 40 of the Constitution, the question of whether or not he is barred from serving in both capacities under Art. 2 § 1 of the Constitution is also before this Court, i. e. the separation of powers doctrine.

A Justice of the Peace is a member of the judicial branch of the Texas government. Art. 5 § 1 of the Constitution states that the judicial power of the state is vested in the various courts including Justice of the Peace Courts. The only question that remains for resolution is whether or not a teacher as such, is a member of any other branch of the government so as to be precluded from exercising any powers as a Justice of the Peace under Article 2 § 1 of the Constitution, Separation of Powers.

In Aldine Independent School District v. Standley, 154 Tex. 547, 280 S.W.2d 578 (1955), it was stated that “. . the determining factor which distinguishes a public officer from an employee is whether any sovereign function of the government is conferred upon the individual to be exercised by him for the benefit of the public largely independent of the controls of others.” See Northwestern National Life Insurance Company v. Black, 383 S.W.2d 806 (Tex.Civ.App.-Texarkana 1964, writ ref’d n. r. e.); City of Groves v. Ponder, 303 S.W.2d 485 (Tex.Civ.App.-Beaumont 1957, writ ref’d n. r. e.). A public office is the “. . . right, authority, and duty created and conferred by law, by which, for a given period, either fixed by law, or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public.” Kimbrough v. Barnett, 93 Tex. 301, 55 S.W. 120 (1900).

The appellant testified that his duties as a teacher were to train students to handle part-time jobs in the local community. He stated he was a full time employee of the school district under a continuing contract with the school district wherein his employment is subject to annual renewal by the school district.

Ruiz stated that he did not have any voice in establishing policy and his duties were only to carry out the policies set up by the local school board and school administrators. He testified that he was under the control of the vocational director who in turn was responsible to the school principal. The superintendent of schools for La Joya Independent School District testified that the policies and guidelines within which the appellant functions are set by the Texas Education Agency Vocational program through the local Board of Trustees and the school administration. He also stated that he classified the appellant as a teacher and not as an officer and confirmed that Ruiz did not exercise any discretion in the function of his duties.

As the testimony of the witnesses indicates, the appellant Ruiz, was not responsible for the execution of any laws of the State (Executive Branch of government). No sovereign function of government was conferred upon him for the benefit of others, largely independent of the controls of others. Ruiz is simply a salaried employee of the State of Texas. To state that Ruiz, as a teacher, performs the functions of the Executive Branch of our government, or of any branch of the government, is not supported by the evidence. No matter how highly we regard the profession of teaching, we cannot conclude that this teacher is exercising some of the sovereign powers of the State of Texas. See Main v. Claremont Unified School District, 161 Cal.App.2d 189, 326 P.2d 573 (1958); Leymel v. Johnson, 105 Cal.App. 694, 288 P. 858 (1930).

In Leymel v. Johnson, supra, it was stated that “. . . the teacher is not clothed with any of the sovereign powers of the three great divisions of government, the legislative, executive, or judicial, in performing the important duties of his employment.” In State v. Small, 103 Ohio App. 214, 145 N.E.2d 200 (1956) and Duncan v. Koustenis, 260 Md. 98, 271 A.2d 547 (1970), it was held that a school teacher is an employee of the state and not a public official of the state. The only Texas case which even approached the question concerning the status of a teacher is Boyett v. Calvert, 467 S.W.2d 205 (Tex.Civ.App.-Austin 1971, writ ref’d n. r. e.), cert. denied, 405 U.S. 1035, 92 S.Ct. 1316, 31 L.Ed.2d 577 (1971). In Boyett, it was held that a member of the faculty at Texas A & M University was an agent of the Board of Directors at the University who in turn were officers of the state. The opinion did not state, nor did it infer, that a teacher was a member of the executive branch of the government.

Finally, in considering the policy behind Article 2 § 1 of the Texas Constitution, the Texas Supreme Court stated in State Board of Insurance v. Betts, 158 Tex. 83, 308 S.W.2d 846 (1958); . . It is only when the functioning of the judicial process in a field constitutionally committed to the control of the courts is interfered with by the executive or legislative branches that a constitutional problem arises.”

As we review the entire record, we find no evidence before the trial court that the appellant’s activities and duties as a public school teacher interfered in any way with his constitutional duties as a Justice of the Peace.

We hold that there is no constitutional prohibition which prevents the appellant Reynaldo Ruiz from receiving a salary and serving as both a public school teacher and a Justice of the Peace. The judgment of the trial court is reversed and judgment is here rendered that Reynaldo Ruiz receive all due compensation for his services as Justice of the Peace for Precinct 3, Place 2 in Hidalgo County, Texas.

REVERSED AND RENDERED.

      . § 40. Holding more than one office; exceptions; right to vote
      “Sec. 40. No person shall hold or exercise at the same time, more than one civil office of emolument, except that of Justice of the Peace, County Commissioner, Notary Public unless otherwise specially provided herein State employees or other individuals who receive all or part of their compensation either directly or indirectly from funds of the State of Texas and who are not State officers, shall not be barred from serving as members of the governing bodies of school districts, cities, towns, or other local governmental districts; provided, however, that such State employees or other individuals shall receive no salary for serving as members of such governing bodies. It is further provided that a nonelective State officer may hold other nonelective offices under the State or the United States, if the other office is of benefit to the State of Texas or is required by the State or Federal law, and there is no conflict with the original office for which he receives salary or compensation. No member of the Legislature of this State may hold any other office or position of profit under this State, or the United States, except as a notary public if qualified by law.”

      . “ARTICLE II
      THE POWERS OF GOVERNMENT
      Sec.
      1. Division of powers; three separate departments; exercise of power properly attached to other departments.
      § 1. Division of powers; three separate departments; exercise of power properly attached to other departments
      Section 1. The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.”


text:
    Ora MAHAVIER, Individually and as executrix of the Estate of Milton Mahavier, Appellant, v. BEVERLY ENTERPRISES, INC., d/b/a Physician’s & Surgeon’s General Hospital, Appellee.
    No. 1039.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 30, 1976.
    Rehearing Denied Sept. 30, 1976.

      Paul G. Kratzig, Charlie Porter, Jr., Porter, Taylor, Gonzalez, Thompson & Rogers, Corpus Christi, for appellant.
    Jack K. Dahlberg, Jr., Allison & Garcia, Corpus Christi, for appellee.
   OPINION

NYE, Chief Justice.

This suit is a cause of action brought by appellant for the pain and suffering of her husband, Milton Mahavier (hereinafter referred to as the deceased) sustained in a fire while he was a patient in the appellee’s hospital. Prom a take nothing judgment of the trial court the appellant has perfected her appeal to this Court.

The deceased was admitted to Physicians & Surgeons Hospital on August 31, 1973 complaining of weakness, nausea, chest congestion and severe back pain. His physicians diagnosed the deceased’s ailment as metastic cancer of the lymph nodes, liver, vertebra and ribs. The deceased’s condition was felt to be terminal by his physician and he so informed the deceased’s wife, the appellant. During the next 10 days the deceased remained in the hospital for testing and general care since he was no longer capable of taking care of himself. There was evidently no attempt made to treat the deceased’s illness, but only to keep him as comfortable as possible.

Sometime in the late afternoon or early evening of September 10,1973, a Mr. Ruben Nunez was placed in the deceased’s room to occupy the second bed in the double occupancy room. Around 7:00 A.M. on September 11, 1973, a fire of undetermined origin broke out in the deceased’s room. Mr. Nunez summoned the nurses on duty and told them that the room was on fire. Mrs. Erma Calahan, the head nurse, and Mrs. Anna Holybee, one of the duty nurses, rushed to the deceased’s room. Nurse Cala-han attempted to extricate the deceased from the room but was unsuccessful. Nurse Calahan went to the nearest fire extinguisher, returned to the room and attempted to put out the fire without success. While Nurse Calahan was still attempting to extinguish the fire the fire department arrived and put out the fire. The fire had burned for 6 to 7 minutes before it was detected. The deceased was removed from the room after having sustained second and third degree burns over 20 to 40% of his body.

Dr. Cullin, who was making his rounds at the time of the fire, treated the deceased after he was brought out of the room. Approximately 30 minutes after the fire, the deceased regained consciousness and told Dr. Cullin that he was not in any pain. The deceased visited with his daughter, Mrs. Maxine Moore, and told her that he was not in pain after the fire. At approximately 2:00 P.M. the deceased died. The official death certificate listed the immediate cause of death as Carcinoma, Arteriosclerotic cardiovascular disease and pulmonary emphysema. The death certificate also listed body burns and smoke inhalation as a significant condition contributing to death.

In August of 1974 the appellant brought suit against the Hospital for the alleged wrongful death and damages for pain and suffering of her deceased spouse.

The appellant alleged that the appellee was negligent in allowing Mr. Nunez or others to smoke in the deceased’s room and in failing to provide adequate equipment and training to its personnel to fight fires and that this negligence was the cause of the fire which resulted in the deceased’s pain and suffering and death. The appellee filed only a general denial.

After a trial before a jury the cause was submitted on 9 special issues. The jury found that the appellee was not negligent in failing to provide the deceased with a safe place to stay nor was the appellee negligent in failing to discover the fire. The jury did find, however, that the appel-lee failed to provide the hospital personnel responsible for the deceased’s care with adequate training and equipment to fight a fire and that their failure was the proximate cause of the deceased’s injuries (pain and suffering). The jury also found, however, that the injuries suffered by the deceased in the fire were not a proximate cause of his death. The jury then awarded damages to the appellant in the amount of $10,000 for conscious physical pain and mental anguish suffered by the deceased before his death.

The appellee filed motions for judgment non obstante veredicto and for judgment on the verdict that the appellant take nothing from her cause of action. The trial court granted these motions on the ground among others, that there was no evidence to support the jury’s finding that the Hospital’s failure to provide the personnel responsible for the care of patients with adequate training and equipment for use in case of fire was a proximate cause of the injuries of the deceased (special issue No. six). The trial court then entered a judgment that the appellant take nothing from her cause of action.

The appellant’s first four points of error all concern alleged error by the trial court in disregarding the jury’s verdict and entering judgment for the appellee. In effect what the trial court has said in its judgment is that there is no evidence to show that the lack of adequate training and equipment was the proximate cause of the deceased’s injuries.

The appellant’s evidence concerning inadequate training and equipment is extensive. The testimony of the appellant’s witness indicates that there were four fire extinguishers on the first wing of the hospital where the deceased was located. Three of these contained water for fighting wood, paper, etc. type fires. The fourth, located at the nurses’ station and the one used by Nurse Calahan, was a carbon dioxide extinguisher designed primarily for putting out electrical fires. Neither of the two nurses present at the fire was sure what type of extinguishers were present on the first wing nor for what specific type of fires the various extinguishers were to be used. Nurse Holybee could not remember ever having had a fire drill nor could she remember when she last operated an extinguisher. Nurse Calahan remembered having a fire drill and operating an extinguisher at some time prior to the fire. Mr. Charles Fox, the maintenance supervisor for the hospital, stated that fire drills were occasionally conducted and that a seminar on fire fighting had been conducted in 1972 but he could not remember which personnel had participated in this training. He further testified that a “fire plan” had been prepared by the hospital administration and was posted at each nurses’ station, but that he had no knowledge as to whether or not the plan was disseminated to the personnel. Nurse Cala-han testified that the fire plan was posted at the nurse station but she did not know if it had been read by any employees. Nurse Holybee testified she had never read the fire plan.

As a general rule, in ordinary personal injury cases, four elements must be plead and proved to entitle a plaintiff to recovery. These elements are: (1) an act or omission by the defendant; (2) that said act or omission was negligent; (3) that said act or omission was the proximate cause of the plaintiff’s damage, and (4) that the plaintiff was damaged. Westinghouse Electric Corp. v. Pierce, 153 Tex. 527, 271 S.W.2d 422 (1954); Wichita Falls & Oklahoma Ry. Co. v. Pepper, 134 Tex. 360, 135 S.W.2d 79 (1940). From the evidence presented at the trial, it is clear that the appellee committed an act or omission and that such act or omission was negligent.

The determinative question for this Court’s consideration is whether or not there is any evidence to support the jury’s answer to Special Issue No. 6 concerning proximate cause. Proximate cause includes two essential elements: foreseeability and cause in fact. Baumler v. Hazelwood, 162 Tex. 361, 347 S.W.2d 560 (1961); Bodine v. Welder’s Equipment Company, 520 S.W.2d 407 (Tex.Civ.App.-Corpus Christi 1975, writ ref’d n. r. e.). The foreseeability element is established by proof that the actor as a person of ordinary intelligence and care should have anticipated the danger created by his negligent act. Clark v. Waggoner, 452 S.W.2d 437 (Tex.Sup.1970); Bell v. Campbell, 434 S.W.2d 117 (Tex.Sup.1968).

There was evidence to establish the foreseeability finding by the jury. Mr. Fox, Nurse Holybee and Nurse Calahan all testified that the hospital did permit its patients to smoke under certain conditions and did allow them to possess smoking materials in their rooms. The two nurses also testified that the doors to the patients’ rooms were allowed to remain closed during certain periods. It is, therefore, entirely foreseeable that a smoking patient would start a fire in a closed room which would not be detectable by the on-duty personnel for several minutes. Such a danger should have been anticipated by the appellee Hospital.

The second element of proximate cause is cause in fact. It is established by proof of a cause which produces an event and without which the event would not have happened. Baumler v. Hazelwood, supra; Farley v. M M Cattle Company, 529 S.W.2d 751 (Tex.Sup.1975); Clark v. Waggoner, 452 S.W.2d 437 (Tex.Sup.1970); Bodine v. Welder’s Equipment Company, supra; Thompson v. Gray, 219 S.W.2d 831 (Tex.Civ.App.-Galveston 1949, writ ref’d n. r. e.). The proof that must be made to establish causal relation is often difficult to determine. Since liability cannot be made to turn upon speculation or conjecture, it is essential that the evidence show at least a reasonable probability that the appellee’s alleged negligent acts were singularly or collectively, a proximate cause of the deceased’s injuries. Farley v. M M Cattle Company, supra; Leatherwood Drilling Company v. TXL Oil Corporation, 379 S.W.2d 693 (Tex.Civ.App.-Dallas 1964, writ ref’d n. r. e.); Lenger v. Physician’s General Hospital, Inc., 455 S.W.2d 703 (Tex.Sup.1970); Parker v. Employers Mutual Liability Insurance Company of Wisconsin, 440 S.W.2d 43 (Tex.Sup.1969); Insurance Company of North America v. Myers, 411 S.W.2d 710 (Tex.Sup.1966); Garcia v. Clifford Jackson Funeral Homes, 526 S.W.2d 750 (Tex.Civ.App.-Corpus Christi 1975, no writ).

As we have already held, there was evidence to establish the foreseeability finding by the jury. The problem in the instant case is whether there is any direct evidence or any circumstantial evidence from which reasonable minds could draw an inference that the failure of the Hospital in providing the personnel, responsible for the deceased’s care, with adequate training and equipment to fight fires, was the cause in fact of the deceased’s injuries.

At the time of the fire, two nurses responded, they left the nurses’ station and went immediately into the deceased’s room. Neither nurse took a fire extinguisher with her. Nurse Calahan attempted to remove the deceased from the room but was unable to get to him due to the intensity of the fire. Nurse Calahan testified that she saw the wastebasket and divider curtain on fire at the bottom and blazing. The curtain was blazing up far enough that she was unable to draw it back so as to get to the deceased. Nurse Calahan then left the room, went to the nurses’ station and picked up the carbon dioxide fire extinguisher (the wrong type). She then took it back into the deceased’s room and attempted to extinguish the fire without success. Later, the fire department arrived and extinguished the blaze.

It is clear to us that the hospital personnel lacked adequate training and lacked proper equipment for use in case of fire. Having been alerted to the fire, each of the nurses should have picked up a correct fire extinguisher to help extinguish the fire. But at this point the evidence stops. From all of the evidence, the jury could properly have inferred that had the nurses been adequately trained and properly equipped in fire fighting procedures, they could have been able to have extinguished the fire sooner than it was. However, in order to bridge the causal connection between the negligent acts of the Hospital personnel over to the deceased’s injuries, the jury would also have had to supply one additional inference, and that is, that, had the nurses been able to put out the fire sooner, the deceased would not have sustained the injuries of conscious pain and mental anguish. Was the lack of training and equipment a proximate cause of deceased’s injuries? Without the two inferences, we must say no.

It is well settled law that a vital fact may not be established by piling one inference upon another inference. This is what we would be required to do in order to sustain a judgment in favor of the plaintiffs. East Texas Theatres, Inc. v. Rutledge, 453 S.W.2d 466 (Tex.Sup.1970); Schlumberger Well Surveying Corporation v. Nortex Oil And Gas Corporation, 435 S.W.2d 854 (Tex.Sup.1968); Rounsaville v. Bullard, 154 Tex. 260, 276 S.W.2d 791 (1955); Ruiz v. Flexonics, 517 S.W.2d 853 (Tex.Civ.App.-Corpus Christi 1975, writ ref’d n. r. e.). A presumption of fact cannot rest upon a fact presumed. The jury’s finding of the causal connection could only be based on speculation in this case. The proof must establish a causal connection beyond the point of conjuncture; such proof must show more than a possibility. Garcia v. Clifford Jackson Funeral Homes, supra. This did not happen.

We hold that the trial court was correct in disregarding the jury’s answer to Special Issue No. 6. The appellant’s points of error 1-4 are overruled. The other points need not be considered.

The judgment of the trial court is AFFIRMED.


text:
    Alvin L. NIXON et al., Appellants, v. FIRST STATE BANK OF CORPUS CHRISTI, Appellee.
    No. 1071.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 30, 1976.
    Rehearing Denied Sept. 30, 1976.

      M. W. Meredith, Jr., Meredith & Donnell, Corpus Christi, for appellants.
    H. Tom Hermanson, Jr., Dyer, Redford, Burnett, Wray & Woolsey, Corpus Christi, for appellee.
   OPINION

NYE, Chief Justice.

This is a summary judgment case in which the appellants, all former employees of the appellee, First State Bank of Corpus Christi, are attempting to recover certain sums allegedly due and owed to them under a deferred compensation agreement and for damages for the breach of said agreement. From a judgment of the trial court granting the Bank’s motion for summary judgment and denying appellants’ claims, the appellants have perfected their appeal to this Court.

The appellants, Alvin Nixon, Thomas Mulligan and Jimmy Melton are all former executive officers of appellee, First State Bank of Corpus Christi. Each of the appellants had worked for the Bank in excess of 10 years prior to their voluntary resignation. Each of the appellants had entered into a separate but identical deferred compensation agreement with the Bank.

The deferred compensation agreement, which is the subject matter of this lawsuit, provided among other things, that upon reaching the age of 65 or becoming totally and permanently disabled, the Bank would pay its executive officers a deferred compensation of $5,000 per year for a period up to 20 years. When the appellants resigned from the Bank, the chairman of the board and the board of directors evidently began to question the language of the compensation agreement as to whether or not the appellants were entitled to any deferred compensation for their past services with the Bank. This question arose because of certain language contained in Section 6 of the deferred compensation agreement. The pertinent parts of Section 6 read as follows:

“Section 6.
Except as provided in Section 2 hereof, either party shall have the right to terminate and cancel this agreement at any time by giving thirty (30) days notice to the other party of such intention, subject to the following conditions:
(a) If this agreement is terminated by Employee before attaining retirement age, all benefits herein provided shall be forfeited, except as set out in para- . graph (c) of this section.
(b) In the event of termination of the services of an Employee for cause, the validity of which said cause shall be determined solely by majority vote of the Board of Directors of the Employer and shall not be subject to review by any court or otherwise, all benefits hereunder may be forfeited or the amount of such benefits redetermined by the Board of Directors of the Employer at the time of and in connection with such termination for cause.
(c)If this agreement is terminated by the Employer at any time after the Employee has rendered service for a period of ten years or more, the Employer shall make payments of the amounts to the beneficiaries and at the times specified under Sections 2, 3 and 4 hereof for a period of years corresponding to the number of full years of service rendered by the Employee to the Employer not exceeding a total of twenty years. . . (Emphasis supplied.)

The parties attempted to settle their differences, but when they could not agree, the Bank notified each appellant that it was terminating their rights under the deferred compensation agreement.

The appellants then filed suit against the Bank seeking to recover the present value of their deferred compensation earned and damages for anticipatory breach of the agreement. The Bank filed an answer and moved for summary judgment as did the appellants. The trial court denied appellants’ motion for summary judgment and granted the Bank’s motion for summary judgment. The essence of the Bank’s motion was that there was no issue of fact as to the language of the agreement and that the only question before the court was one of law as to the construction of the agreement. The Bank alleged that the agreement was not ambiguous and that as a matter of law the appellants had forfeited all rights under the agreement. The trial court granted the Bank’s motion for summary judgment in its entirety.

Appellants’ first point of error is that the trial court erred in granting appel-lee’s motion for summary judgment because appellee failed to prove as a matter of law that the agreement was not ambiguous. Under Rule 166-A, T.R.C.P. and the numerous decisions of the courts of this State, the movant has the burden of establishing as a matter of law that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. “Moore” Burger, Inc. v. Phillips Petroleum Company, 492 S.W.2d 934 (Tex.Sup.1972); Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.Sup.1970); State v. Superior Oil Company, 526 S.W.2d 581 (Tex.Civ.App.-Corpus Christi 1975, writ ref’d n.r.e.). A summary judgment for a defendant is proper only if a plaintiff cannot succeed on any theory plead by him for recovery. Marshall v. Garcia, 514 S.W.2d 513 (Tex.Civ.App.-Corpus Christi 1974, writ ref’d n.r.e.). The defendant must negate the plaintiff’s possibility of recovery by offering summary judgment proof which shows that the defendant is entitled to prevail as a matter of law. In this case, the defendant must show uncontrovertedly that the plaintiff cannot win the lawsuit because the deferred compensation agreement is capable of only one meaning or interpretation and that is such that the defendant must prevail. See Glenn v. Prestegord, 456 S.W.2d 901 (Tex.Sup.1970); Beall v. Lo-Vaca Gathering Co., 532 S.W.2d 362 (Tex.Civ.App.-Corpus Christi 1975, writ ref’d n.r.e.).

The main question for our determination is whether or not the deferred compensation agreement shows that the appellants are not entitled to collect their deferred compensation as a matter of law.

In construing contracts the cardinal rule of construction is to ascertain the intention of the parties as expressed in the instrument. It is the intent of the parties which must control. Citizens Nat. Bank In Abilene v. Texas & P. Ry. Co., 136 Tex. 333, 150 S.W.2d 1003 (1941); Republic National Bank of Dallas v. National Bankers Life Insurance Company, 427 S.W.2d 76 (Tex.Civ.App.-Dallas 1968, writ ref’d n.r.e.); Davis v. Andrews, 361 S.W.2d 419 (Tex.Civ.App.-Dallas 1962, writ ref’d n.r.e.). Contracts must be construed in their entirety and each part must be considered with every other part to determine the effect of one part on another part. Southland Royalty Company v. Pan American Petroleum Corporation, 378 S.W.2d 50 (Tex.Sup.1964); Steeger v. Beard Drilling, Inc., 371 S.W.2d 684 (Tex.Sup.1963); Citizen Nat. Bank In Abilene v. Texas & P. Ry. Co., supra; Piper, Stiles & Ladd v. Fidelity And Deposit Company of Maryland, 435 S.W.2d 934 (Tex.Civ.App.-Houston [1st Dist.] 1968, writ ref’d n.r.e.); Weaver v. Weaver, 171 S.W.2d 898 (Tex.Civ.App.-Fort Worth 1943, writ ref’d w.o.m.).

The question of what constitutes an ambiguous contract has been variously stated by many courts. The Texas Supreme Court has stated:

“ . . .a contract is ambiguous only when the application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which one of two or more meanings is the proper meaning.”

Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154 (1951). See Skelly Oil Company v. Archer, 163 Tex. 336, 356 S.W.2d 774 (1961); Walter E. Heller & Company v. Allen, 412 S.W.2d 712 (Tex.Civ.App.-Corpus Christi 1967, writ ref’d n.r. e.); Stowers v. Harper, 376 S.W.2d 34 (Tex.Civ.App.-Tyler 1964, writ ref’d n.r.e.).

“. . . if after applying established rules of interpretation to the contract it remains reasonably susceptible to more than one meaning it is ambiguous, . . Universal C.I.T. Credit Corp. v. Daniel, supra. (Emphasis supplied.)

The question of whether or not a contract is ambiguous is one of law to be determined by the court. Vermillion Construction Company v. Fidelity & Deposit Company of Maryland, 526 S.W.2d 744 (Tex.Civ.App.-Corpus Christi 1975, no writ); Louisiana-Pacific Corp. v. Cain, 519 S.W.2d 528 (Tex.Civ.App.-Beaumont 1974, writ ref’d n.r.e.); Davis v. Andrews, 361 S.W.2d 419 (Tex.Civ.App.-Dallas 1962, writ ref’d n.r.e.). The interpretation of a contract becomes a fact question only, when after application of pertinent rules of construction, there remains a genuine uncertainty as to which of two meanings is proper. Universal C.I.T. Credit Corp. v. Daniel, supra; Lewis v. East Texas Finance Co., supra; Sale v. Contran Corporation, 486 S.W.2d 161 (Tex.Civ.App.-Dallas 1972, writ ref’d n.r.e.).

When a contract contains an ambiguity which can only be resolved by reference to extrinsic evidence or where there is doubt as to the true meaning of an ambiguous instrument, the granting of a motion for summary judgment is improper. Thompson v. Hamrick, 508 S.W.2d 949 (Tex.Civ.App.-Dallas 1974, writ ref’d n.r.e.); Robert v. E. C. Milstead Ranching, Inc., 469 S.W.2d 429 (Tex.Civ.App.-Beaumont 1971, writ ref’d n.r.e.); Chapa v. Benavides Mill & Gin Company, 420 S.W.2d 464 (Tex.Civ.App.-San Antonio 1967, writ ref’d n.r.e.); Tinnin v. Crook, 333 S.W.2d 617 (Tex.Civ.App.-El Paso 1960, writ ref’d n.r.e.).

Under the rules of law established in the above cited authorities, we must now look first to the document in question without consideration of any extrinsic evidence to determine if an ambiguity exists within the contract. As earlier stated, the alleged ambiguity is said to exist in Section 6 of the agreement.

First, Section 6 states that either party may cancel the agreement upon 30 days’ notice subject to certain conditions.

The first condition is that if the agreement is terminated by the employee all benefits are forfeited except as set out in paragraph (c).

Paragraph (b) states that if the agreement is terminated by the employer for cause, all the employee’s benefits are forfeited.

Paragraph (c) states that if the agreement is terminated by the employer any time after an employee has served for 10 years or more, the employee is entitled to certain enumerated benefits.

It is the appellants’ argument that the phrase “except as set out in paragraph (c) of this Section” found in paragraph (a) creates the ambiguity. The appellants argue that paragraph (a) can be interpreted to mean that: first, if an employee quits he forfeits all benefits, — except if an employee quits after 10 years’ service to the Bank, he is entitled to the same benefits as if his employment was terminated by the employer after serving 10 years or more. The appellants argue that these two phrases, when read together amount to a shorthand method of extending to an employee who voluntarily terminates his employment the same benefits as an employee who is voluntarily terminated by the employer. The appellants argue that there is nothing irrational about such an interpretation as it is in line with modern business trends. The appellants do not argue, under this point of error, that this is the only possible meaning of the contract but that it is one of two reasonable interpretations.

It is the Bank’s argument on the other hand that the agreement contemplates three circumstances under which the employer-employee relationship would terminate. The first circumstance is that if the employee quits, he forfeits all benefits (6-a). The second is that if the employee is discharged for cause, the employee again forfeits all benefits (6-b). The third is that if the employee is discharged without cause by the employer, the employee would be entitled to benefits if he had been employed 10 years or more (6 — c). It is appellee’s argument that these are the only circumstances that were contemplated by the parties under which the employer-employee relationship terminates. The Bank goes on to argue that it is obvious that the parties intended there be some difference in benefits arising from the different circumstances under which the employer-employee relationship would terminate. Each of these different benefits are clearly delineated in paragraphs (a) and (c) of Section 6 and no other circumstances were contemplated or intended by the parties or manifested in the agreement. The Bank states that the appellants’ interpretation of the agreement is a strained interpretation and not manifested by the expressed intent of the agreement.

The obvious intent of the agreement is to encourage the employees to continue their employment with the Bank and to reward such employees for their continued employment. The Bank argues that to construe the agreement to reward an employee who only worked 10 years would be contrary to the overall intent of the agreement. We disagree. The employee receives nothing until he has worked at least 10 years. If he continued on with the Bank, he would receive extra benefits for each full year he worked after 10 years, up to 20 years. The contract says: (6-c) “ . . . payments are to be made for a period of years corresponding to the number of full years of service rendered by the employee not exceeding a total of twenty years.” The contract recited that it was executed in consideration of the mutual promises and the mutual benefits that the parties will gain by the performance thereof.

We hold that the agreement is ambiguous. The manifested intent of the parties is to provide additional security to the employees of the Bank by setting aside certain specified sums of money to be paid to the employee or his family upon the occurrence of certain specified conditions, i. e., age 65, total and permanent disability, death before reaching age 65, termination by the employer without cause after 10 years and the possible interpretation of termination by the employee after 10 years’ service. The agreement definitely sets out the circumstances under which the employee forfeits his benefits.

The Bank argues that Section 6 sets out three circumstances of termination and the entitlement to benefits by the employee under each set of circumstances. The problem with this construction is the lack of consideration of the language at the end of paragraph (a). If the appellee’s argument is correct, then the language (“except as set out in Paragraph (c) of the Section”) is meaningless. If each of the first three paragraphs are viewed as setting out a separate set of rights and conditions, the problem becomes apparent. Paragraph (a) concerns the circumstances where an employee voluntarily terminates his employment. Paragraph (b) concerns the circumstances where an employee is terminated for cause. Paragraph (c) concerns the circumstances where an employee is terminated without cause. If each of these paragraphs is viewed as being all inclusive of each parties’ rights under each separate set of circumstances, then the language in paragraph (a): “ . . . except as set out in paragraph (c) of the Section” must have some meaning. Since paragraph (a) concerns voluntary termination by the employee, it is reasonable to assume that if the parties had meant that any employee who voluntarily terminated would not be entitled to any benefits as the Bank contends, the parties would not have included the extra language in the paragraph, but would have ended the paragraph after the phrase: “ . . . all benefits herein provided shall be forfeited.” The final phrase in paragraph (a) must be construed as modifying or being some form of an exception to the rest of the paragraph.

How this phrase modifies the paragraph is ambiguous from the face of the agreement. However, there are two reasonable interpretations which can result from the reading of paragraphs “a” and “c”. Each paragraph has three essential elements. The first element in each paragraph is the circumstance which triggers the operation of the rest of the paragraph. “If this agreement is terminated. . . . ” The second element of each paragraph sets out who initiates the circumstance. “. by the employee . . . ” (in paragraph 6a). “. . .by the employer . . .” (in paragraph 6c). The final element is the qualification of the circumstance before attaining retirement age . except as set out in paragraph (c) of this Section” (in paragraph 6a). . .at any time after the employee has rendered service for a period of ten years or more .” (in paragraph 6c). The difference between each paragraph and the reason there ■ are two separate paragraphs is that in paragraph 6(a) the circumstance (termination) is initiated by the employee and in paragraph 6(c) the circumstance is initiated by the employer.

The exception language of paragraph 6(a) cannot be ignored as the Bank would have us do. It is not surplusage, so it must have some meaning. It must be remembered that all parts of the contract must be taken together to effectuate the fullest intent of the parties. Therefore, under the rules of contract construction there are at least two logical, reasonable but totally inconsistent meanings which can be given this contract, one by the Bank, and the other by the appellants. The contract is, therefore, ambiguous and the question of the intent of the parties is one for a trier of facts after consideration of extrinsic evidence. Appellants’ first point of error is sustained. It is not necessary for us to rule on the appellants’ second and third points of error.

Appellants’ fourth point of error is that the trial court erred in not granting the appellants’ motion for summary judgment because the appellants proved as a matter of law that they were entitled to compensation under the agreement. In light of our holding under appellants’ first point of error, we must overrule this point of error. We have determined that the contract language is ambiguous. We cannot determine as a matter of law, from the summary judgment evidence, the intent of the parties was under the deferred compensation agreement.

The appellee brings two cross-points of error before this Court. The first cross-point of error claims that the trial court erred in overruling the Bank’s motion to strike the appellants’ request for admission since the requested information was privileged communication between an attorney and client. The second cross-point of error is that the trial court erred in refusing to strike the appellants’ request for admission since the subject of the request for admission was an opinion on a question of law. These cross-points are, in effect, a request by the Bank for us to rule in advance that certain evidence is inadmissible if we reverse and remand this cause. Since the appellee Bank prays for no relief under these points, the name cross-point of error is a misnomer.

The intent of the parties in this contract is a question for determination on remand. It is one that may require further evidence and a determination by the trier of facts. We deem it unnecessary and inappropriate to rule in advance on the admissibility of evidence that may, or may not be offered.

The judgment of the trial court is REVERSED and the cause is REMANDED for trial.


text:
    George TAGGART, Appellant, v. Ann TAGGART, Appellee.
    No. 1083.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 30, 1976.
    Rehearing Denied Sept. 30, 1976.

      Fred C. Auforth, Auforth, Nebrat, Keas & McCrury, Corpus Christi, for appellant.
    Charles W. Cromwell, Wade & Cromwell, Corpus Christi, for appellee.
   OPINION

YOUNG, Justice.

This appeal concerns the nature of military retirement benefits of an enlisted man in the United States Naval Fleet Reserve. Ann Taggart brought this action in the court below against her former husband, George Taggart, to partition military retirement benefits. The partition suit was filed more than seven years after the divorce decree was entered. Trial was before the court without a jury. Judgment was entered in favor of Ann Taggart and it provided that she receive four-ninths of all Navy retirement benefits received by George Taggart from April 1, 1974, and for so long thereafter as he receives such benefits. It is from this judgment that the defendant appeals.

The trial court filed findings of fact and conclusions of law. The pertinent findings are: that the parties were married October 7, 1947, and were divorced January 5, 1968; that neither the divorce decree nor the property settlement provided for the division of military retirement benefits; that on July 1, 1964, appellant elected to be placed in the Fleet Reserve of the United States Navy; that on July 1, 1964, he had completed 19 years, 9 months and 19 days of active service in the Navy; that on April 1, 1974, appellant was removed from the Fleet Reserve and was retired from the Navy; that appellant has not paid to appel-lee any of the retirement benefits he has received since April 1, 1974.

The trial court’s pertinent conclusions are: that by January 5, 1968, (date of divorce) appellant had served in the Navy the requisite time for retirement and that he at that time had a vested property right to retirement benefits; that eight-ninths of those property rights accrued during the parties’ marriage; that appellee is entitled to four-ninths of all retirement benefits if and when received by appellant; that ap-pellee is entitled to $3,360.00 as her community portion of the retirement benefits received by appellant from April 1, 1974, to October 31, 1975.

The appellant has brought eighteen points of error. The essence of his contentions is that at the time the decree of divorce was entered, he did not have a vested property right in military retirement benefits subject to division as community property. He further asserts that the retainer pay which he received as a member of the Fleet Reserve did not constitute compensation for past services and that he was not eligible for retirement until his completion of 30 years of service. The appellant also argues that Ann Taggart has waived any right she may have had to such benefits.

We shall first consider the issue of waiver. The appellant urges that appellee is estopped from now claiming any interest in the military benefits because the property settlement recited that the parties intended to forever settle their property rights and that this agreement was approved by the divorce court. In support of his argument the appellant cites: Kelly v. Wright, 144 Tex. 114, 188 S.W.2d 983 (1945); Neill v. Neill, 386 S.W.2d 642 (Tex.Civ.App.-Austin 1965, writ dism’d); Carver v. Huff, 283 S.W.2d 317 (Tex.Civ.App.-Amarillo, 1955, writ ref’d n. r. e.); and Brownson v. New, 259 S.W.2d 277 (Tex.Civ.App.-San Antonio 1953, writ dism’d). We do not agree that those cases are in point. They are cases in which the plaintiff sought to set aside the divorce decree by bill of review. Appellee does not seek to set aside the divorce decree, a decree that does not mention military retirement benefits. When a divorce decree fails to partition community property at the time of the divorce, the former spouses become tenants in common. Either spouse may subsequently bring suit to partition that property which is owned jointly with his or her former spouse. Busby v. Busby, 457 S.W.2d 551 (Tex.Sup.1970); Wilson v. Wilson, 507 S.W.2d 916 (Tex.Civ.App.-Houston [1st Dist.] 1974, no writ). We hold, therefore, that Ann Taggart is not estopped from seeking partition. We now proceed to the question of whether at the time of the divorce there was a vested property right in military retirement benefits subject to division as community property.

As a general rule a serviceman acquires a vested property right in military retirement benefits when he has served the requisite number of years which would entitle him to elect to retire; this is true whether or not he has so elected. Busby v. Busby, supra; Mora v. Mora, 429 S.W.2d 660 (Tex.Civ.App.-San Antonio 1968, writ dismissed).

When Taggart while in the Regular Navy had completed the equivalent of 20 years active military service (19 years, 9 months, 19 days), he exercised his election under 10 U.S.C.A. § 6330 as a member of the Regular Navy to be transferred to the Naval Fleet Reserve. Officers and enlisted members of the Naval Reserve may, at their option, transfer to the Retired Reserve after twenty years of active service. 10 U.S.C.A. § 6327. This option is not available to enlisted members of the Regular Navy. It was thus not available to appellant. An enlisted man in the Regular Navy must complete 30 years of active service before he may apply for retirement. 10 U.S.C.A. § 6326. Or he may, if he has elected to transfer to the Fleet Reserve, be transferred to the retired list of the Regular Navy when he has completed 30 years of total service time. 10 U.S.C.A. § 6331. In either case, the enlisted man in the Regular Navy must serve an aggregate of 30 years before reaching retirement. We hold, therefore, that the trial court incorrectly concluded that at the date of the divorce George Tag-gart had served in the United States Navy for the length of time necessary to retire. This, however, will not settle the issue. We must go further and determine the legal nature of the property right, if any, that was vested in Taggart at the date of the divorce. That is, we are concerned with the question of whether there is a significant difference between retired status and membership in the Fleet Reserve.

As a member of the Naval Fleet Reserve Taggart was not in a retired status but was subject to be called to active duty in time of war or national emergency. In time of peace he might be required to perform not more than two months active duty for training in every four-year period. 10 U.S.C.A. § 6485. And, according to his transfer orders, he was required to keep himself in readiness to respond to orders to active duty, to report a change of address promptly, to submit to a physical examination at least once every four years, to inform his commanding officer of any change of health that might prevent active service, to answer all official correspondence promptly and to comply with instructions contained therein, and to notify his commanding officer of plans to reside or travel in a foreign country for more than 30 days. Admittedly the burdens imposed upon a member of the Fleet Reserve when compared with those of active duty are minimal, but a member does not enjoy the privacy and freedom from responsibility which is normally connected with retirement. Obviously the United States Navy derives an important benefit from maintaining the highly trained and experienced personnel of the Fleet Reserve.

When not on active duty a member of the Fleet Reserve receives what is referred to by statute as “retainer pay.” 10 U.S.C.A. § 6330. The serviceman’s basic pay which he received prior to the transfer to the Fleet Reserve is considered in the computation of this “retainer pay.” The statute further provides that the “retainer pay” shall not exceed seventy-five percent of his basic pay. When he has completed the requisite 30 years and is transferred to the retired list, the serviceman is entitled to retirement pay at the same rate as the “retainer pay.” 10 U.S.C.A. § 6331(c).

The California Supreme Court held in French v. French, 17 Cal.2d 775, 112 P.2d 235, 236 (1941), that the retainer pay received by a member of the Fleet Reserve is compensation for the demands the government makes upon the serviceman and is not a pension for services which were entirely performed in the past. Thus it was held in French that the retainer pay was a nonvest-ed property right which was not subject to division as community property. The rule in French has recently been modified and California law now requires that a divorce court divide nonvested pension rights although they are but a contingent interest in property. In re Marriage of Brown, 15 Cal.3d 838, 126 Cal.Rptr. 633, 544 P.2d 561 (1976). We find it significant that the Brown decision does not disturb the holding in French that the compensation to members of the Fleet Reserve constitutes payment for present services rendered and does not mention the holding of the California Court of Appeals rendered six months prior in In re Marriage of Mercier, 48 Cal.App.3d 775, 121 Cal.Rptr. 886 (1975). Refusing to follow French, the court in Mercier held that the difference between retainer pay, received as compensation by a member of the Fleet Reserve, and retirement pay was simply one of semantics and concluded that upon transfer to the Fleet Reserve a property right was vested in the retainer pay and was subject to division as community property.

We have examined the language in the California cases of French, Brown and Mercier and consider them important to a resolution of the issue here because of the reference to the French decision by the Texas Supreme Court in Ex parte Sutherland, 526 S.W.2d 536 (Tex.Sup.1975). Sutherland transferred from active duty with the Naval Air Reserve to the Fleet Reserve prior to divorce. The court rendering the divorce adjudged the retainer pay to be community property. Sutherland brought an original habeas corpus proceeding when he was confined after being adjudged guilty of contempt for violating the terms of the divorce judgment by failing to pay his former wife one-half of the retainer pay received by him as a member of the Fleet Reserve. Viewing Sutherland’s action as a collateral attack on the earlier judgment, the Court explained that the relator’s right to future retainer pay was arguably no less an earned property right than the disability retirement benefits in Busby v. Busby, supra, and the question of whether the right is vested and subject to division is a question to be resolved by the court in the divorce proceeding. The Court reasoned that under these circumstances the prior judgment was not subject to collateral attack. The Court cautioned, however, that the determination of the divorce court was not necessarily correct and indicated that authority supporting a conclusion that the retainer pay was not a vested right was suggested by an examination of French v. French, supra. We are therefore persuaded that the Texas Supreme Court would view with favor the rule in French that the retainer pay received by a member of the Fleet Reserve is compensation for the demands the government makes upon the serviceman and is not compensation for services which were entirely performed in the past. Consequently we hold that a property right in retirement benefits was not vested in George Taggart at the date of divorce. It was error to partition the benefits. The judgment of the trial court is reversed and it is here rendered that Ann Taggart take nothing.

Reversed and rendered.


text:
    Ordrey PARKER et al., Appellants, v. Harold R. KEYSER et ux., Appellees.
    No. 1095.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 30, 1976.
    Rehearing Denied Sept. 30, 1976.

      John D. Barrow, Nicholas & Morris, Corpus Christi, for appellants.
    Curtis B. Dyer, Corpus Christi, for appel-lees.
   OPINION

NYE, Chief Justice.

This is a conversion case. The plaintiffs, Harold R. Keyser and wife, Doris L. Key-ser, brought suit against defendants, Ordrey Parker and Peggy A. Parsley, for actual and exemplary damages resulting from the alleged damage, destruction and conversion of certain personal property belonging to the plaintiffs. Trial of the case was before a jury which was submitted on special issues. The jury found that “Ordrey Parker and/or Peggy Parsley” wrongfully removed, damaged or destroyed property belonging to plaintiffs, which property had a fair market value of $3,167.76. The jury also found that the defendants acted with malice in removing plaintiffs’ property, and awarded plaintiffs exemplary damages in the sum of $2,000.00 against Ordrey Parker and/or Peggy A. Parsley. The trial court entered judgment for plaintiffs and against the defendants jointly in the total sum of $5,167.76. From that judgment both defendants have duly perfected this appeal to this Court.

On or about July 13, 1970, the plaintiffs, Mr. and Mrs. Keyser, entered into a real estate purchase contract with Robert Parsley and wife, Peggy A. Parsley, to purchase a home located in Portland, Texas. Mrs. Parsley’s mother, Mrs. Ordrey Parker, was a part-time realtor and acted as the sales agent in the transaction. The Keysers resided in Providence, Rhode Island at that time and upon the execution of the purchase contract returned to Rhode Island to close their business and prepare for their move to Portland, Texas. The purchase contract provided that the closing was to take place on or before August 15, 1970.

On August 3, 1970, Hurricane Celia struck the Texas Coast causing extensive property damage in and around Portland, Texas, including extensive damage to the property which was subject to the contract of purchase between the parties. Mrs. Parker notified Mr. Keyser by telephone in Rhode Island that the house was damaged to the extent that it was not liveable. Mr. Keyser told Mrs. Parker they would be arriving in Portland in approximately a week to view the damage.

Immediately after the hurricane, Mrs. Parker obtained a house trailer from HUD (a government agency) in her daughter’s (Mrs. Parsley’s) name and had it placed at the rear of a house on Polaris Street which belonged to Mrs. Parker. Her daughter, however, did not move into the trailer at that time, but remained at the Seashell Inn where living accommodations were furnished as part of her compensation as manager.

The Keysers arrived in Portland on Labor Day in September of 1970 after the hurricane had struck. They stayed that night with some friends and met with Mrs. Parker the next day so as to determine if the necessary arrangements had been made by Mrs. Parker to complete the sale of the house. Because the house was not liveable, the Keysers found themselves without a place to stay until the house could be repaired. Mrs. Parker offered the Keysers the use of the HUD trailer, it being disputed whether the use was only for a short period of time or until the house they were purchasing was repaired and made liveable. The Keysers accepted and moved their belongings into the trailer and resided there approximately seven (7) weeks. During this time, the sale was completed and the deal closed on October 2, 1970, even though the house was still not completely repaired.

Sometime around mid-October, Mrs. Parker sent her husband to the HUD trailer where the Keysers were staying, with a note stating that they (Mrs. Parker and Mrs. Parsley) were ready for their trailer and were ready to move back into it. Because the house they were purchasing was still not available, and because Mr. Keyser was unable to find other housing for his family, they chose to continue to stay in the trailer. The need for the trailer by Mrs. Parker and Mrs. Parsley was occasioned by Mr. Parker resigning as manager of the Seashell Inn resulting in the loss of the free accommodations and the further fact that their home was still in need of repair.

Although the evidence is conflicting, it appears that several days later the utilities to the trailer were cut off and the Keysers were forced to leave the trailer and spend the night with some friends. They took with them only the clothes they wore and some insulin that Mr. Keyser kept in the refrigerator in the trailer. The next day, Mrs. Keyser and her daughter returned to the trailer to pick up some clothing and found that everything was gone.

Mrs. Keyser then went to the police station in Portland and reported the incident. She was then referred to the Justice of the Peace, who contacted Mrs. Parker and was told that all of the Keysers’ property was stored in her garage. The Justice of the Peace told Mr. Keyser that before he went out there to pick up his property, he should ask a policeman to go with him so there would be no trouble. The jury could have found that only Ordrey Parker wrongfully removed the property. The jury could have found that both Parker and Parsley wrongfully removed the property. Yet, the trial court entered judgment against both Parker and Parsley. Mrs. Parker testified that she had not been at the trailer when the property was removed or stored in that she was ill. Mrs. Parsley stated that it was not she who removed the property, that it was a representative from HUD and the Red Cross who removed the property from the trailer and stored it in the Parker garage. There was other evidence that both removed the property.

Approximately a week later, Mr. and Mrs. Keyser went, along with a policeman, to the Polaris Street address to pick up their property. Upon regaining possession of their property, the Keysers made a list of the property allegedly missing, damaged or destroyed included within which was $2,272.81 in cash which Mr. Keyser had kept in a sock in his daughter’s chest of drawers. He also listed property which had been damaged or destroyed. The defendants denied any knowledge of the $2,272.81 missing cash as well as the other items allegedly missing.

On December 14, 1971, Mr. and Mrs. Keyser brought this suit against Mrs. Parker and Mrs. Parsley alleging that: defendants willfully broke into and entered the trailer and converted all of their personal property; and that upon regaining possession, the sum of $2,272.81 was missing as well as a quantity of clothing and other personal property which was either missing, damaged or destroyed.

The case was tried before a jury and in answer to certain special issues, the jury found: 1) that Ordrey Parker and/or Peggy Parsley wrongfully removed and damaged or destroyed property belonging to plaintiffs; 2) that the fair market value of the property so removed, damaged or destroyed was $3,167.76; 3) that in removing the property from the trailer, the defendants acted with malice; 4) and the sum of $2,000.00 should be awarded plaintiffs against Ordrey Parker and/or Peggy A. Parsley as exemplary damages.

The defendants made a motion for judgment alleging among other things that the jury’s answers to special issues 1, 2 and 5 would not support a judgment against Or-drey Parker or Peggy A. Parsley because the answers do not state which party was the actor and the issues are completely ambiguous. The motion was overruled. The trial court thereafter entered judgment for the plaintiffs and against the defendants Parker and Parsley in the sum of $5,167.76. Both defendants have perfected their appeal from that judgment.

The appellants bring forward on appeal twelve points of error. In their points of error No. 1 and 2, they assert that the trial court erred in not disregarding the jury’s answers to special issues 1, 2 and 5 and in overruling defendants’ motion for judgment because the answers to said issues fail to show an acting party, the issues are completely ambiguous and will not support a judgment for plaintiff. In their third point, appellants assert that the trial court erred in awarding judgment for exemplary damages against both defendants because there can be no determination from the jury’s affirmative answer to special issue 5 as to whether the damages are awarded against Ordrey Parker or Peggy Parsley, or both. Prior to the submission of the above issues to the jury, the defendants objected to the submission of special issues 1 and 2 as follows:

“Defendants object to Special Issues Number 1 and 2 for each of the several reasons. Those Issues are submitted in a disjunctive ‘Ordrey Parker and/or Peggy Parsley’ and therefore you are adjoining in effect two Issues into one Issue, and you will not upon an answer to either one of those Issues have a final determination of whether either one of those individuals were guilty of the alleged acts called for in the Special Issues. Therefore, there would be no final judgment to be entered in this cause because the Court could not determine which one or the other of those parties were guilty of the acts charged, and accordingly judgment could not be rendered as there is no basis under the pleadings and the facts of this case to establish joint and several liability as between these two Defendants in this proceedings.”

This objection was dictated to the court reporter, reduced to writing, and signed by the trial judge. The trial judge overruled the objection.

The defendants properly objected to the submission of the said issues. They pointed out distinctly the matter to which they objected, the grounds of their objection, therefore, they preserved the error for our review. Rules 272, 274 and 279, T.R.C.P.; 3 McDonald, Texas Civil Practice, § 12.26-C, p. 399 (1970); Riley v. Industrial Finance Service Co., 157 Tex. 306, 302 S.W.2d 652 (1957); Lyles v. Texas Employers’ Insurance Association, 405 S.W.2d 725 (Tex.Civ.App.-Waco 1966, writ ref’d n. r. e.).

Looking at special issues 1 and 2 and the jury’s answers thereto, it is impossible for us to determine what the jury intended from such findings, “We do”!

As such, the language of the issue gives rise to a mistake in the meaning of the verdict actually returned. Neither the trial court nor this Court is permitted to speculate as to what the jury intended by the ambiguous answer which, because of its ambiguity, cannot constitute a proper basis for a judgment. See Moore v. Moore, 67 Tex. 293, 3 S.W. 284 (1887); Northern Texas Traction Co. v. Armour & Co., 116 Tex. 176, 288 S.W. 145 (1926, opinion adopted); Patten v. Rodgers, 430 S.W.2d 479 (Tex.Sup.1968); Wichita Falls & S. R. Co. v. Lindley, 143 S.W.2d 428 (Tex.Civ.App.-Fort Worth 1940, writ dism’d judgm. cor.); Cactus Drilling Company v. Williams, 525 S.W.2d 902 (Tex.Civ.App.-Amarillo 1975, writ ref’d n. r. e.); Wright v. Carey, 169 S.W.2d 749 (Tex.Civ.App.-Eastland 1943, no writ); Gulf States Utilities Co. v. Wooldridge, 90 S.W.2d 325 (Tex.Civ.App.-Beaumont 1936, no writ); 3 McDonald, Texas Civil Practice, § 12.18.1 (1970); Hodges, Special Issue Submission In Texas, §§ 42, 46 and 47 (1959); Rules 277, 279, T.R.C.P. To use both the “and” and “or” leads to uncertainty, particularly when the jury, as in this case, was required to answer “We do” or “We do not”. Powers v. Standard Acc. Ins. Co., 188 S.W.2d 239 (Tex.Civ.App.-Dallas 1945, rev’d on other grounds, 144 Tex. 415, 191 S.W.2d 7).

The appellees, however, contend that special issues 1 and 2 as submitted, were proper in that there was evidence to support the jury’s findings that both Parker and Parsley removed, damaged or destroyed plaintiffs’ property. While this may be absolutely true, the evidence nevertheless is conflicting and in view of the “and/or” submission of the issues, we could only speculate what the jury intended when they answered “we do” to the issues.

We, therefore, conclude that the trial court erred in overruling defendants’ objection to special issues 1 and 2, because such issues were multifarious and duplicitous inquiring about acts of two different individuals in one issue without allowing the jury to choose one or the other or both. For a correct way to submit this type of issue see Gillette Motor Transport Co. v. Whitfield, 186 S.W.2d 90 (Tex.Civ.App.-Fort Worth 1945) aff’d, 145 Tex. 571, 200 S.W.2d 624 (1947); Viduarri v. Bruni, 179 S.W.2d 818 (Tex.Civ.App.-San Antonio 1944, writ ref’d w.o.m.); Texas General Indemnity Co. v. Scott, 246 S.W.2d 228 (Tex.Civ.App.-Amarillo 1952) rev’d on other grounds, 152 Tex. 1, 253 S.W.2d 651 (1953). See also Hodges, Special Issue Submission In Texas, § 47 (1959); Pope & Lawerre, Revised Rule 277-A Better Special Verdict System For Texas, 27 S.W.L.J. 577, 591 (1973).

To submit those two issues conjunctively and disjunctively was error for still another reason. Rule 277, T.R.C.P. provides in part:

“ . . The court may submit an issue disjunctively where it is apparent from the evidence that one or the other of the conditions or facts inquired about necessarily exist. For example, the court may, in a workmen’s compensation case, submit in one question whether the injured employee was permanently or only temporarily disabled.”

The specific authorization by Rule 277, T.R.C.P. of disjunctive submission extends only to the presentation of true opposites, that is, to inferential-rebuttal situations and to alternative grounds of recovery which are factually inconsistent. Hodges, Special Issue Submission In Texas, § 27, p. 77 (1959). See also General Commentary, Rule 277, T.R.C.P.; McDonald, Texas Civil Practice, § 12.18.2(b). Although the issues as submitted inquire into only one ground of recovery, conflicting fact questions are present within the single issue, which when limited to an answer of “we do” or “we do not”, causes uncertainty to arise as to the jury’s intent. Neither are exclusive of the other, therefore, they are not authorized under Rule 277, T.R.C.P.

Because of this error, it is not necessary for us to consider the appellants’ other points of error. The judgment of the trial court is accordingly reversed and the cause is remanded for a new trial.

REVERSED AND REMANDED.

      . Special issues 1, 2 and 5 as submitted to the jury read as follows:

        “SPECIAL ISSUE NO. 1

      Do you find from a preponderance of the evidence that on the occasion in question, Ordrey Parker and/or Peggy Parsley wrongfully removed property belonging to the Harold R. Keyser family from the trailer in which the Harold R. Keyser family was living? Answer: ‘We do’ or ‘We do not’. Answer: ‘We do’.

        SPECIAL ISSUE NO. 2

      Do you find from a preponderance of the evidence that on the occasion in question, Ordrey Parker and/or Peggy Parsley destroyed or damaged property belonging to the Harold R. Keyser family from the trailer at the time and place in question? Answer: ‘We do’ or ‘We do not’. Answer: ‘We do’.

        SPECIAL ISSUE NO. 5

      What sum of money, if any, do you find from a preponderance of the evidence that Harold R. Keyser and wife should be awarded against Ordrey Parker and/or Peggy A. Parsley as exemplary damages?
      ‘Exemplary damages’ means an amount which you may in your discretion award as an example to others and as a penalty or by way of punishment, in addition to any amount which may have been found by you as actual damages. Answer in dollars and cents, if any. Answer: $2000.’ ”