author: REYNOLDS, Justice. ROBINSON, Justice,

text:
    MID CONTINENT AIRCRAFT CORPORATION, Appellant, v. CURRY COUNTY SPRAYING SERVICE, INC., et al., Appellees.
    No. 8772.
    Court of Civil Appeals of Texas, Amarillo.
    June 30, 1977.
    Rehearing Denied July 25, 1977.

      Underwood, Wilson, Sutton, Berry, Stein & Johnson (H. C. Pipkin), Amarillo, for appellant.
    Aldridge, Harding, Aycock & Actkinson (Johnny Actkinson), Farwell, for appellees.
   REYNOLDS, Justice.

In the buyer’s action to recover from the seller damages to a used aircraft and the resulting economic loss caused by a defect in the aircraft engine which rendered the aircraft an unreasonably dangerous product, the trial court imposed strict liability in allowing recovery against the defense that the used aircraft was bought subject to the terms and conditions of an “as is” sale. While the “as is” sale excluded any liability under a contractual warranty, it did not eliminate the strict liability for physical harm imposed by tort law. Affirmed.

The material facts are established by the undisputed evidence and the trial court’s unchallenged findings of fact. They are that Bobby Shivers, d/b/a Shivers Flying Service in Vernon, Texas, acquired a 1971 single engine Piper Pawnee aircraft, designed for agricultural work, in a wrecked condition. Repair of aircraft is regulated by the Federal Aeronautics Administration, and no one may perform aircraft repairs unless rated and licensed to do so by the FAA. Repair work on an airframe, such as wings and fuselage, is authorized by one license, and another license is required for authorized mechanical work on the engine of an aircraft. A separate log book reflecting each type of repairs is required to be maintained with the aircraft.

Shivers, licensed by the FAA to perform only airframe work, repaired the airframe and so certified in the airframe log book. The engine repair was contracted to Robert D. Hawkins, an FAA licensed engine mechanic maintaining his shop as Hawkins Aircraft at Quanah, Texas. The engine was removed and subjected to a major overhaul by Hawkins. After Hawkins reinstalled the engine and performed a test flight, he certified the engine overhaul in the engine log book.

Shivers advertised the repaired aircraft for sale. He sold it “as is” to Mid Continent Aircraft Corporation, a Missouri corporation, and the aircraft was flown from Vernon to Mid Continent’s airfield at Hayti, Missouri. No one employed by Mid Continent was licensed to perform engine work.

By inquiring about Shivers’ advertisement, personnel of Curry County Spraying Service, Inc., a New Mexico corporation, learned that the aircraft had been sold to Mid Continent. Three corporate officers of, and a pilot employed by, the spraying service went to Missouri to inspect the aircraft. The only representations made by Mid Continent were that the aircraft was purchased from Shivers, that Mid Continent had not performed any work on the engine, and that Mid Continent was selling the aircraft in the same condition in which it was purchased from Shivers.

After a review of the aircraft’s log books, a telephone consultation with Shivers, and a test flight by their pilot, the officers of the spraying service bought the aircraft for the corporation. The sales order was executed by the spraying service’s vice-president, and immediately over his signature were these words:

Enter an order for the airplane described above, subject to the terms and conditions of an “as is” sale.

The aircraft was flown by the spraying service’s pilot to its airfield at Clovis, New Mexico, and thereafter used in agricultural spray work. Some twenty-one days and thirty hours of engine time after purchase and while a field in Parmer County, Texas, was being sprayed, the engine quit in flight. The pilot landed the aircraft on a rough county road, damaging the fuselage and wings. No personal injury or damage to other property was sustained.

An FAA licensed aircraft and engine mechanic employed by Hutcherson Air Service in Plainview, Texas, inspected the engine. He concluded that the cause of engine failure was the absence of a small safety lock plate on a bolt that attaches a gear to the crankshaft of the engine. The absence of the lock plate permitted the gear bolt to loosen, allowing the crankshaft gear to back out of place about a quarter of an inch and shear the dowel pin in the timer. This had the same effect as turning off the ignition switch on the aircraft.

Curry County Spraying Service, Inc., instituted this suit against Mid Continent, Shivers and Hawkins to recover for the physical damage to the aircraft and for its loss of use. Its causes of action were grounded on breach of implied warranties of merchantability and fitness of the aircraft, negligence in failing to discover and correct or warn of the defect in the engine, and strict liability in tort for an unreasonably dangerous defect in the engine. Cravens, Dargan & Company, the insurer of the aircraft for the spraying service, entered its appearance as a party plaintiff. Mid Continent cross-actioned to recover from Shivers and Hawkins any damages for which it might be adjudged liable to the spraying service. Shivers answered both actions, but Hawkins, so far as the record reveals, filed no answer.

Upon motion by Mid Continent and Shivers, the cross action was severed and, thereafter, the main cause was heard by the court without the intervention of a jury. The court decreed that Curry County Spraying Service, Inc., and Cravens, Dar-gan & Company recover jointly and severally from Mid Continent Aircraft Corporation, Robert D. Hawkins, d/b/a Hawkins Aircraft, and Bobby Shivers, d/b/a Shivers Flying Service, the sum of $8,348.49 — composed of $4,658.49 as the reasonable cost of repairs, and $3,690 for loss of use of the damaged aircraft as measured by the rental of a replacement aircraft during repairs— with interest and costs.

Among the court’s numbered findings of fact are these summarized facts:

1. Hawkins failed to install the crankshaft gear bolt lock plate, which was negligence proximately causing the crash and resulting damages;
2. The absence of a crankshaft gear bolt lock plate rendered the aircraft an unreasonably dangerous product at the time of its purchase;
3. Both Shivers and Mid Continent were,-at the times material, engaged in the business of selling airplanes;
4. Shivers and Mid Continent knew at the time each sold the aircraft that it would reach the user and ultimate consumer in the condition in which it was sold;
5. The defect rendering the aircraft unreasonably dangerous did not arise from normal use of the aircraft;
6. Neither Shivers nor Mid Continent made any express warranty of suitability, fitness, freedom from defects, or of any kind, but sold the aircraft “as is”; and
7.Neither Shivers nor Mid Continent knew, or was negligent in failing to ascertain or warn, that the aircraft was unreasonably dangerous when sold.

By the court’s legal conclusions, Hawkins was liable in tort for his negligence and Shivers and Mid Continent were liable under the tort rule of strict liability.

Only Mid Continent has appealed. In contending that the sale contract absolved it of all liability and that the Court erred in imposing strict liability in tort, Mid Continent does not challenge either the measure or the amount of damages awarded.

The questions, then, are: (1) whether the rule of strict liability applies when a defect rendering a product unreasonably dangerous to a user or consumer or to his property causes only physical harm to the product itself; and (2) if so, whether an “as is” sale sanctioned by the Texas Uniform Commercial Code (1968), V.T.C.A., Bus. & C. § 2.316(c)(1), absolves the seller of that strict liability. We answer the first question in the affirmative, and the second in the negative.

Prior to legislative embracement of the Uniform Commercial Code, Texas historically followed the common law rule that, absent applicable statutory provisions, implied warranties did not arise in the sale of secondhand goods purchased with knowledge of their used condition. 26 Baylor L.Rev. 630, 634 (1974). The legislature reenacted the 1965 Uniform Commercial Code as a part of the Texas Business and Commerce Code (1968) to take effect on 1 September 1967. The Code provisions do not distinguish between new and used products. Created by § 2.314 and § 2.315 of the Code are implied warranties that the goods sold shall be merchantable and are, under certain circumstances, fit for the particular purpose required, unless the implied warranties are excluded or modified under § 2.316. By § 2.316(c)(1) it is provided that:

unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like “as is”, “with all faults” or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty.

If applicable to a given sales transaction, this legislation must be followed, and it may not be changed, by the courts.

Meanwhile, the Texas common law, which the courts may change, underwent a gradualistic and cautious approach to imposing strict liability until the decision in McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967). That decision committed the Texas courts “to the rule of strict liability expressed in Section 402A of The American Law Institute’s Restatement of the Law of Torts (2d Ed.) as applicable to all persons engaged in the business of selling who sell a product in a defective condition which renders it unreasonably dangerous to a user or consumer or to his property.” Pittsburg Coca-Cola Bottling Works v. Ponder, 443 S.W.2d 546, 548 (Tex.1969). Specifically, the rule is stated thusly:

§ 402A. Special Liability of Seller of Product for Physical Harm to User or Consumer
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

By authority of this rule, the manufacturer of an unreasonably dangerous product purchased new, General Motors Corporation v. Hopkins, 548 S.W.2d 344, 351 (Tex.1977), or used, Gibbs v. General Motors Corporation, 450 S.W.2d 827, 828 (Tex.1970), the dealer in a new product, Henderson v. Ford Motor Company, 519 S.W.2d 87, 92 (Tex.1974), the seller of a used product, Hovenden v. Tenbush, 529 S.W.2d 302, 310 (Tex.Civ.App.—San Antonio 1975, no writ); McLain v. Hodge, 474 S.W.2d 772, 774 (Tex.Civ.App.—Waco 1971, writ ref’d n. r. e.), and the lessor of a (presumably used) product, Rourke v. Garza, 530 S.W.2d 794, 800 (Tex.1975), are subject to strict liability if the unreasonably dangerous product causes harm to the user, Rourke v. Garza, supra, at 798, to non-users and non-consumers, Darryl v. Ford Motor Company, 440 S.W.2d 630, 633 (Tex.1969), to other property of the ultimate consumer, O. M. Franklin Serum Company v. C. A. Hoover & Son, 418 S.W.2d 482 (Tex.1967), and, at least tacitly, to a finished property into which a defective used product had been incorporated. Hovenden v. Tenbush, supra, at 306. At the same time, all of the Texas courts addressing the subject, save one, have held that privity of contract is required before one may recover for an economic loss — e. g., loss of use of the product, loss of bargain— and, therefore, the law of sales rather than the rule of strict liability applies. See, e. g., Pioneer Hi-Bred International, Inc. v. Talley, 493 S.W.2d 602, 607 (Tex.Civ.App.—Amarillo 1973, no writ). But, cf. Nobility Homes of Texas, Inc. v. Shivers, 539 S.W.2d 190 (Tex.Civ.App.—Beaumont 1976, writ granted) for the majority holding that privity of contract is not required to enable one to recover pure economic damages, which, as the dissent illustrates at 195-197, is contrary to solidly established Texas precedent.

Despite the decadal co-existence of these contract and tort principles pertaining to sales, our attention has not been directed to, nor have we discovered, any case in which a Texas court has squarely confronted the issue of an express disclaimer of all warranties vis-a-vis strict liability in the sale of a defective product, new or used, where the defect caused only physical harm to the product itself with or without a concurring economic loss. Although the cases cited by the litigants speak to one or both of the principles, none of them faces the issue in the case before us. While it would not be beneficial to lengthen this opinion to demonstrate that none of the cases is dispositive of the issue, it is appropriate to exemplify their inapplicability.

Mid Continent urges the decisiveness of Chaq Oil Company v. Gardner Machinery Company, 500 S.W.2d 877 (Tex.Civ.App.—Houston [14th Dist.] 1973, no writ), and Nobility Homes of Texas, Inc. v. Shivers, supra. The gist of Chaq was whether the buyer could recover from the seller the purchase price of and the cost of repairs to a used crawler-tractor on the theory of breach of implied warranties, and the matter of strict liability was not mentioned. In Nobility Homes, the manufacturer of a mobile home was held liable to the purchaser from a non-agent third party for a pure economic loss on the strict liability concept of an implied warranty of reasonable fitness as a matter of public policy. Applicability of Restatement (Second) of Torts § 402A was specifically disclaimed, 539 S.W.2d 194, and the Uniform Commercial Code was not addressed. As noted, the application for writ of error was granted, and the cause was submitted to the Supreme Court on 12 January 1977. 20 Sup. CtJour. 140 (January 15, 1977).

The spraying service and its insurer rely on Tide Products, Inc. v. Browning, 493 S.W.2d 654 (Tex.Civ.App.—Amarillo 1973, no writ), and Hovenden v. Tenbush, supra. Browning, a venue proceeding, merely stated that within the proof of the venue facts was sufficient evidence that the chemicals applied could have caused damage to the peanut crop (other property). Hovenden was a buyer’s action to recover damages from a seller of secondhand bricks for deterioration of a building’s walls constructed with the allegedly defective bricks. In reversing a summary judgment for the seller, the court’s holding, contrary to the seller’s contention, was that Restatement (Second) of Torts § 402A was applicable to dealers in used products. Pointedly, the court stated that since Texas had adopted the Uniform Commercial Code after the buyer’s cause of action arose, there need not be considered the question whether the implied warranty provisions of the Code, absent negligence or an express warranty, had the effect of establishing an action in implied warranty as the sole remedy. 529 S.W.2d 309.

Evident from the development of the law is that the Uniform Commercial Code (contract) law and the Restatement (Second) of Torts § 402A (tort) rule of strict liability co-exist in Texas to serve different functions. Code law, whose statutory language makes no reference to tort law in connection with products liability, concerns itself with the quality of the product by establishing standards of merchantability and fitness for a particular purpose. The rule announced by § 402A, accompanied by comment m stating that the rule is not governed by the provisions of the Uniform Commercial Code, concerns itself with safety standards by imposing strict liability upon one who sells an unreasonably dangerous product which causes physical harm. The considerations supporting either of the principles are not affected by the considerations underlying the other, and the standards of quality of a product, with the attendant risk of the bargain, are entirely distinct from its standards of safety, with a possible unreasonable risk of harm. It follows that a violation of the standards of safety which results in physical harm to the unreasonably dangerous product itself subjects the seller to the tort rule of strict liability. This rule has been proclaimed in other jurisdictions. See, e. g., Morrow v. Caloric Appliance Corporation, 372 S.W.2d 41, 55 (Mo.1963); Santor v. A and M Karagheusian, Inc., 44 N.J. 52, 207 A.2d 305, 312 (1965); Seely v. White Motor Company, 63 Cal.2d 9, 45 Cal.Rptr. 17, 403 P.2d 145, 152 (1965).

Given the applicability of these principles to a used product such as the one in the case at bar, the Code permits a disclaimer or exclusion of all implied warranties of merchantability and fitness for a particular purpose, particularly by an “as is” sale, and we see no sound reason why knowledgeable parties of equal bargaining strength should not also be free, in negotiating the sale and purchase of a secondhand product, to define their scope of responsibility for physical harm to the product itself. Agreements between the buyer and the seller to limit or exonerate the seller’s tort liability for product defects are accorded validity elsewhere. See, e. g., Delta Air Lines, Inc. v. McDonnell Douglas Corporation, 503 F.2d 239 (5th Cir. 1974) (applying California state law and Georgia conflicts rule); K-Lines, Inc. v. Roberts Motor Company, 541 P.2d 1378 (Or.1975).

Conformably, it long has been the general rule in Texas that parties have the right to contract with respect to property as they see fit so long as their contract is neither illegal nor against public policy. Curlee v. Walker, 112 Tex. 40, 244 S.W. 497, 498 (1922). As a reasonable corollary, the parties may limit, between themselves, their liability to that expressed in their contract. Yet, when the parties have entered into a valid contract, they are bound by its provisions, Pyle v. Eastern Seed Co., 145 Tex. 385, 198 S.W.2d 562, 563 (1946), and the court is not at liberty to construe their agreement any differently. General American Indemnity Company v. Pepper, 161 Tex. 263, 339 S.W.2d 660, 661 (1960).

Before us is a commercial transaction involving the sale and purchase of a used aircraft between two business entities on an equal bargaining plane. Both possessed the same knowledge, received from the same sources, and neither knew or had the qualifications to discover the defect in the engine rendering the aircraft an unreasonably dangerous product which later caused physical harm to the aircraft itself. Each was free to enter into or decline to consummate the transaction. In this setting, an “as is” sale of the used product was negotiated and consummated. No express warranties were given and the sale agreement employed the “as is” language of the Code to exclude any implied warranty liability, but no mention was made of the scope of responsibility imposed on the seller by the § 402A rule of strict liability. Under these circumstances, we agree with the trial court’s implied conclusion and the holding in McMillen Feeds, Inc. of Texas v. Harlow, 405 S.W.2d 123, 137 (Tex.Civ.App.—Austin 1966, writ ref’d n. r. e.), that a waiver or disclaimer of an implied warranty does not eliminate the strict liability imposed by law. Therefore, the “as is” sale agreement exonerated Mid Continent from any liability under contract law, but it contained no language that would absolve Mid Continent of the strict liability imposed for physical harm by tort law.

Considering these same legal principles under somewhat similar factual situations, two federal courts arrived at conclusions consistent with ours. The conclusions in Keystone Aeronautics Corporation v. R. J. Enstrom Corporation, 499 F.2d 146 (3rd Cir. 1974), were reached under Pennsylvania law, and Sterner Aero AB v. Page Airmotive, Inc., 499 F.2d 709 (10th Cir. 1974), invoked Oklahoma law for its conclusions. Both Pennsylvania and Oklahoma have enacted the Uniform Commercial Code and have adopted the § 402A rule of strict liability in tort.

The factual situation in Keystone was that Keystone purchased used helicopters from Enstrom. One of the helicopters was purchased “ ‘as is’ without warranty of any kind except Enstrom will convey good title,” and with a further warranty exclusion that Enstrom “will be held harmless of any liability in connection with this sale.” When the helicopter crash landed, it was damaged substantially, but there was no personal injury.

Keystone’s suit for damages alleged negligence, strict liability under § 402A, and breach of warranty, but the breach of warranty allegations were abandoned. The trial court granted summary judgment for Enstrom, holding that the purchase agreement language was effective against both the negligence and strict liability causes of action.

The federal appellate court undertook, absent illumination on the subject by the appellate courts of Pennsylvania, an evaluation of the proper roles of § 402A and the Code. Noting in connection with § 402A a social policy aimed at protecting the average consumer from blanket immunization of a manufacturer or seller through use of standardized disclaimers, the court said that in a setting where the buyer and seller are both business entities in a position to effectively and fairly bargain, the social policy loses its raison d'etre, and the transaction tends to be more influenced by the Code than by the consumer oriented § 402A. The court concluded that because the Code is tolerant of disclaimers, the same philosophy would be equally approving of a negotiated waiver of § 402A. The court then concluded, however, that the summary judgment was error because the purchase agreement language itself, without testimony or documentation, failed to show a clearly expressed waiver of negligence or strict liability under Pennsylvania’s stringent standards of waiver so as to exculpate En-strom from either negligence or strict liability in tort.

In Sterner, Page rebuilt and sold to Sterner an airplane engine warranted for the first one hundred hours or six months. After 538 hours of flying time during a period of one year, the engine failed, forcing a landing which damaged the plane but caused no personal injuries. Sterner, suing on grounds of warranty, negligence and strict liability, suffered a summary judgment upon the trial court’s finding that the carefully negotiated specific warranties in the sale between knowledgeable parties precluded a lawsuit under either implied warranty or § 402A.

Reversing the summary judgment for a development of the facts, the federal appellate court held that the clear language of the freely entered into warranty disclaimer did not contain the specificity required by Oklahoma law to bar an action in strict liability or negligence. The rationale expressed was that the inapplicability of the traditional concepts of contract law to strict liability in tort cases precludes a contractual disclaimer from being a valid defense to strict liability in tort, and that the warranty disclaimer did not clearly and explicitly exculpate Page from its alleged negligence.

Accordingly, that portion of the judgment decreeing recovery from Hawkins and Shivers, who did not appeal, is left undisturbed. That portion of the judgment decreeing that Curry County Spraying Service, Inc., and Cravens, Dargan & Company recover from Mid Continent Aircraft Corporation, which questioned only its liability, is affirmed.

ROBINSON, Justice,

dissenting.

I respectfully dissent.

Plaintiff-buyer sued defendant-seller of a used aircraft for the cost of repair and loss of use during time of repair of the aircraft which crashed because of a defect in the engine. Neither plaintiff nor defendant knew of the defect. Defendant had done no work on the engine and neither plaintiff nor defendant knew or reasonably could have known of the defect. Plaintiff made its own investigation and assessment of the condition of the aircraft before purchase and had access to the same information as the defendant.

The aircraft in question was sold “as is”; thus, it was sold with an express disclaimer of any implied warranty of fitness. Tex. Bus. & Comm. Code Ann. § 2.316(c) (1968).

The sole question is whether strict liability in tort, as delineated by § 402A of Restatement (Second) of Torts (1965) and as adopted by our Supreme Court in McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967) should be extended to include damage to the defective product itself. I am of the opinion that it should not.

The doctrine of strict liability in tort evolved in response to the failure of the law governing commercial transactions, partly because of the requirement for privity, to provide an adequate remedy for physical injuries resulting from the consumption and use of unreasonably dangerous products. The loss occasioned by such injuries was often great and the rationale of the evolving doctrine was that the manufacturer was better able to assume the loss or to distribute the loss to the consuming public.

It does not follow that strict liability in tort should be extended to compensate a buyer for unfulfilled commercial expectations. Liability for loss or damage to the product sold, as well as other commercial losses, is not only adequately but better governed by the provisions of the Uniform Commercial Code. Those losses are properly the subject of negotiation and contract between the parties. This is particularly true because the Restatement rule of strict liability in tort makes no distinction between new and used products and between the liability of the manufacturer and that of the intermediate seller or retailer. I would not extend the doctrine of strict liability in tort, willy-nilly, where the compelling social policy reasons for the doctrine do not exist. See, Long v. Jim Letts Oldsmobile, Inc., 135 Ga.App. 293, 217 S.E.2d 602 (Ct.App.1975); Price v. Gatlin, 241 Or. 315, 405 P.2d 502 (1965); Cooley v. Salopian Industries, Ltd., 383 P.Supp. 1114 (D.S.C.1974); and Sales and Purdue, The Law of Strict Tort Liability in Texas, 14 Hous.L. Rev. 1, 141-143, 144-148 (1977).

I would reverse that portion of the trial court judgment which grants recovery to plaintiff against Mid Continent Aircraft Corporation and here render judgment that plaintiff take nothing as to that defendant.

ON MOTION FOR REHEARING

There is language in Mid Continent Aircraft Corporation’s motion for rehearing ascribing to the majority opinion a holding that the Restatement (Second) of Torts § 402A rule of strict liability gives a right of recovery for purely economic loss. The language operates on a misconstruction of the opinion, for we clearly pointed out that the law of sales, and not the rule of strict liability, applies to purely economic damages.

The holding of the majority is that the rule of strict liability imposes on one who sells a product in a defective condition, which renders the product unreasonably dangerous to the user or consumer or to his property and which causes physical harm to the product itself, liability for that physical harm, unless knowledgeable parties of equal bargaining strength otherwise define, as between themselves, their scope of responsibility for strict liability to which an “as is” contractual sale does not apply. Because Mid Continent confined the appellate issue to whether or not it had any liability, it excluded from our consideration either the measure or the amount of damages found by the trial court.

The motion for rehearing is overruled.

ROBINSON, J., dissents to the overruling of the motion for rehearing.


source: Caselaw Access Project

author: CORNELIUS, Justice.

license: Public Domain

text:
    Charles Roy ARTERBURY, Appellant, v. AMERICAN BANK AND TRUST COMPANY, Appellee.
    No. 8449.
    Court of Civil Appeals of Texas, Texarkana.
    July 12, 1977.
    Rehearing Denied Aug. 2, 1977.

      Harry B. Friedman, Harkness, Friedman & Kusin, Texarkana, for appellant.
    Stephen Oden, Atchley, Russell, Waldrop & Hlavinka, Texarkana, for appellee.
   CORNELIUS, Justice.

The sole issue in this appeal is whether the District Court of Bowie County acquired, by virtue of Tex.Rev.Civ.Stat.Ann. art. 2031b, in personam jurisdiction of ap-pellee bank, a Louisiana corporation, in appellant’s suit against the bank for wrongful repossession of an automobile.

When appellant purchased the automobile he was a resident of Louisiana. To pay a portion of the purchase price he borrowed funds from appellee, a state chartered bank having its principal place of business in Coushatta, Louisiana. He signed a note and collateral security instrument which provided for installment payments to retire the loan and which also contained provisions allowing private or “self help” repossession and sale of the automobile by the bank in case there was a failure to pay the installments. Appellant thereafter moved to Texas. He became delinquent in his payments and the bank, by written agreement, engaged the Texarkana National Bank of Texarkana, Texas, as its agent to collect the note and to repossess the automobile. While appellant was at work, a Mr. Larry Crank, an employee of the Texarkana National Bank, went to appellant’s home, insisted that appellant’s wife give him the keys to the automobile, and took possession of. it on behalf of appellee. Appellant subsequently filed suit in the District Court of Bowie County alleging that appellee unlawfully converted his automobile by effecting an unauthorized and wrongful repossession without notice or hearing. Appellee filed its special appearance under Tex.R.Civ.P. 120a to contest the jurisdiction. After hearing evidence, the district court sustained the plea and dismissed appellant’s cause of action.

The district court’s determination that it did not have jurisdiction of appellee was based upon findings of fact and conclusions of law generally to the effect that appellee did not do business in Texas; appellant was in default on the note; appellant’s wife voluntarily surrendered possession of the automobile; Mr. Crank was acting as appel-lee’s agent in making the repossession, but appellee did not authorize him to obtain possession of the automobile by any unlawful means; no breach of the peace or other tort was committed in the repossession; ap-pellee did not have the necessary minimum contacts in Texas which are prerequisite to the exercise of jurisdiction; and the assumption of jurisdiction over appellee would offend traditional notions of fair play and substantial justice.

We have concluded that the trial court’s determination that it did not have jurisdiction of appellee was in error. Tex. Rev.Civ.Stat.Ann. art. 2031b, commonly referred to as the “long arm statute,” provides in part as follows:

“Engaging in business in state; service upon person in charge of business
Sec. 2. When any foreign corporation, though not required by any Statute of this State to designate or maintain an agent, shall engage in business in this State, in any action in which such corporation, . . . is a party or is to be made a party arising out of such business, service may be made by serving a copy of the process with the person who, at the time of the service, is in charge of any business in which the defendant or defendants are engaged in this State, provided a copy of such process, together with notice of such service upon such person in charge of such business shall forthwith be sent to the defendant or to the defendants (sic) principal place of business by registered mail, return receipt requested.
Act of engaging in business in state as equivalent to appointment of Secretary of State as agent
Sec. 3. Any foreign corporation, . . . that engages in business in this State, irrespective of any Statute or law respecting designation or maintenance of resident agents, and does not maintain a place of regular business in this State or a designated agent ... the act or acts of engaging in such business within this State shall be deemed equivalent to an appointment by such foreign corporation, ... of the Secretary of State of Texas as agent upon whom service of process may be made in any action, suit or proceedings arising out of such business done in this State, .
Doing business in state; definition
Sec. 4. For the purpose of this Act, and without including other acts that may constitute doing business, any foreign corporation, . . . shall be deemed doing business in this State by entering into contract by mail or otherwise with a resident of Texas to be performed in whole or in part by either party in this State, or the committing of any tort in whole or in part in this State.”

Article 2031b represents an effort by the State of Texas to exploit the expanding limits of in personam jurisdiction to the fullest extent consistent with federal constitutional restraints. Atwood Hatcheries v. Heisdorf & Nelson Farms, 357 F.2d 847 (5th Cir. 1966); 2 McDonald’s Texas Civil Practice, Sec. 9.29.5, p. 438. In determining whether a Texas court may thus extend its in personam jurisdiction over a non-resident or a foreign corporation, two questions must be answered in the affirmative. The first is whether the facts of the case bring it within the provisions of Article 2031b. The second is whether the exercise of jurisdiction pursuant to that statute would be consistent with the due process requirements of the Fourteenth Amendment to the United States Constitution. Estes Packing Co. v. Kadish & Milman Beef Co., 530 S.W.2d 622 (Tex.Civ.App. Fort Worth 1975, no writ); Jeteo Electronic Industries, Inc. v. Gardiner, 473 F.2d 1228 (5th Cir. 1973). For the exercise of jurisdiction under such a long arm statute to comport with due process, three conditions must exist: (1) the non-resident defendant or foreign corporation must have purposefully done some act or consummated some transaction in the forum state; (2) the cause of action must arise from or be connected with such act or transaction; and (3) the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice, considering the quality, nature and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); O’Brien v. Lanpar Company, 399 S.W.2d 340 (Tex.1966).

In Texas practice, the procedure for testing the propriety of assuming jurisdiction in such a case is a special appearance such as appellee filed here. In the determination of such a special appearance, the burden of producing evidence and the burden of persuasion are both on the party contesting the jurisdiction. Murray v. Murray, 515 S.W.2d 387 (Tex.Civ.App. Waco 1974, no writ); Hoppenfeld v. Crook, 498 S.W.2d 52 (Tex.Civ.App. Austin 1973, writ ref’d n. r. e.); Roquemore v. Roquemore, 431 S.W.2d 595 (Tex.Civ.App. Corpus Christi 1968, no writ); Crothers v. Midland Products Co., 410 S.W.2d 499 (Tex.Civ.App. Houston 1967, no writ); 2 McDonald’s, Texas Civil Practice, Sec. 9.05.3, p. 375; E. Wayne Thode, In Personam Jurisdiction; Article 2031B, The Texas “Long Arm” Jurisdiction Statute; And The Appearance To Challenge Jurisdiction In Texas And Elsewhere, 42 Texas L.Rev. 279 (1964). If such party fails to establish that he is not amenable to process in Texas, he has not met the requirements of Rule 120a and he is subject to the jurisdiction of the court. Brown v. Brown, 520 S.W.2d 571 (Tex.Civ.App. Houston—14th Dist. 1975, no writ); E. Wayne Thode, In Personam Jurisdiction, supra, at page 320.

There has been some confusion as to what constitutes the jurisdictional facts which may be sufficient to sustain jurisdiction in the forum state. The Texas statute authorizes jurisdiction if the non-resident or foreign corporation “engages in business in this state.” The statute defines that term as including the “entering into contract by mail or otherwise with a resident of Texas to be performed in whole or in part . in this State, or the committing of any tort in whole or in part in this State.” In discussing the proof necessary to sustain jurisdiction under the tort provisions of the statute, it has been said that a prima facie case of liability in tort must be demonstrated. Jetco Electronic Industries, Inc. v. Gardiner, supra. A better statement of the rule, however, is that there must be only a showing of the act on which jurisdiction is predicated, not a prima facie demonstration of the existence of a cause of action. Annot., 24 A.L.R.3d 532 (1969); Product Promo tions, Inc. v. Cousteau, 495 F.2d 483 (5th Cir. 1974). Under the “commission of a tort” provisions of a long arm statute, the jurisdictional requirements are met when the defendant, personally or through an agent, is the author of an act or omission within the forum state, and the petition states a cause of action in tort arising from such conduct. The act or omission within the state is a sufficient basis for the exercise of jurisdiction to determine whether or not the act or omission gives rise to liability in tort. Nelson v. Miller, 11 Ill.2d 378, 143 N.E.2d 673 (1957); Smyth v. Twin State Improvement Corp., 116 Vt. 569, 80 A.2d 664 (1951); Beck v. Spindler, 256 Minn. 543, 99 N.W.2d 670 (1959); Boit v. Emmco Insurance Company, 271 F.Supp. 366 (D.Mont. 1967); E. Wayne Thode, In Personam Jurisdiction, supra, at page 323. As ultimate liability in tort is not a jurisdictional fact, Rensing v. Turner Aviation Corporation, 166 F.Supp. 790 (N.D.Ill., E.D., 1958); Longines-Wittnauer W. Co. v. Barnes & Reinecke, Inc., 15 N.Y.2d 443, 261 N.Y.S.2d 8, 209 N.E.2d 68, 24 A.L.R.3d 508 (1965), cert. denied, Estwing Mfg. Co. v. Singer, 382 U.S. 905, 86 S.Ct. 241, 15 L.Ed.2d 158 (1965), the merits of the alleged cause of action are not at issue in the jurisdictional hearing. E. Wayne Thode, In Personam Jurisdiction, supra, at page 326.

Applying the foregoing principles to the case before us, there was undisputed proof of the act which gave rise to the alleged tort liability—appellee’s taking possession of the automobile in Texas through its agent employed for that purpose. Appellant has alleged that the act was of such an unauthorized and wrongful nature that it amounted to a conversion. It remains to be seen whether appellant can prove, in a trial on the merits, that the act was in fact tortious. But the act was proved, and as appellant alleged that the act gave rise to ultimate liability in tort, the case comes within the provisions of Article 2031b and the court had jurisdiction to determine the question of liability in a full trial on the merits, unless the assumption of jurisdiction offends the standards of due process and fairness as enunciated in International Shoe Co. v. Washington, supra, and the other authorities heretofore cited. See Cherokee Laboratories, Inc. v. Rotary Drilling Services, Inc., 383 F.2d 97 (5th Cir. 1967); Stuart v. Burford, 264 F.Supp. 191 (N.D.Okl.1967); Rensing v. Turner Aviation Corporation, supra.

For the assumption of jurisdiction to meet the requirements of due process it is only necessary that the non-resident or foreign corporation have certain minimum contacts with the forum state so that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, supra. Jurisdiction on the basis of a single act in the forum state has been uniformly upheld. Annot., 24 A.L.R.3d 532 (1969). In two cases having facts very similar to those here, the courts have sustained jurisdiction on the sole basis of an act of repossession of a motor vehicle by the defendant in the forum state, which act is alleged by the plaintiff to have constituted a tort. Painter v. Home Finance Company, 245 N.C. 576, 96 S.E.2d 731 (1957); Boit v. Emmco Insurance Company, supra. See also Stuart v. Burford, supra.

When appellee, through its agent, came into Texas to effect a repossession of appellant’s automobile, it did so purposefully in order to advance its own interests. While engaged in such conduct it enjoyed the benefit and protection of the laws of Texas, including the right to resort to our courts. Nelson v. Miller, supra. As said by the United States Supreme Court in International Shoe Co. v. Washington, supra, 326 U.S. at page 319, 66 S.Ct. at page 160, 90 L.Ed. at page 102:

“To the extent that a corporation exercises the privilege of conducting activities within a state, it enjoys the benefit and protection of the laws of that state. The exercise of that privilege may give rise to obligations, and so far as those obligations arise out of or are connected with the activities within the state, a procedure which requires the corporation to respond to a suit brought to enforce them can in most instances hardly be said to be undue.”

It is not unreasonable to require a non-resident to defend in this state an action which grows out of the very act which the nonresident committed in this state. Nelson v. Miller, supra; Collins v. Mize, 447 S.W.2d 674 (Tex.1969).

Appellee argues that the Louisiana courts are better able to determine the respective rights of appellant and appellee under the provisions of the note and security instrument, and for that reason jurisdiction should rest in the Louisiana courts. But the cause of action here is not on the note and security instrument. Although their provisions will of necessity be involved, the action here is for tort in effecting the repossession.

As a partial basis for its decision to decline jurisdiction, the district court relied upon its findings that appellant was in default on the note, no tort or breach of the peace was committed in the repossession, and that appellee did not authorize its agent to take any unlawful action. The questions relating to ultimate liability for tort or breach of the peace were not properly at issue in the jurisdictional hearing. Those questions are to be reserved for a trial on the merits. Tex.R.Civ.P. 120a; E. Wayne Thode, In Personam Jurisdiction, supra, at page 326. Furthermore, it is no defense to say that the agent was authorized only to do those acts which would be lawful. If an agent is acting within the scope of his general authority, his wrongful act, though unauthorized, will nevertheless subject his principal to liability. International & G. N. R. Co. v. Anderson, 82 Tex. 516, 17 S.W. 1039 (1891); Houston Printing Co. v. Jones, 282 S.W. 854 (Tex.Civ.App. Galveston 1925, writ dism’d); Blackwell v. Ship Channel Development Co., 264 S.W. 223 (Tex.Civ.App. Beaumont 1924, writ dism’d); 2 Tex.Jur.2d, Agency, Sec. 199, pp. 648, 649.

For the reasons stated, we conclude that the trial court should have overruled appel-lee’s special appearance and taken jurisdiction of appellant’s suit. The judgment is reversed and judgment is here rendered overruling appellee’s special appearance and reinstating appellant’s cause of action on the docket of the court.

      . “Rule 120a. Special Appearance
      1. Notwithstanding the provisions of Rules 121, 122 and 123, a special appearance may be made by any party ... for the purpose of objecting to the jurisdiction of the court over the person or property of the defendant on the ground that such party or property is not amenable to process issued by the courts of this State. . . Such special appearance shall be made by sworn motion filed prior to plea of privilege or any other plea, pleading or motion; Every appearance, prior to judgment, not in compliance with this rule is a general appearance.
      2. Any motion to the jurisdiction provided for herein shall be heard and determined before a plea of privilege or any other plea or pleading may be heard. . . . ”


author: ELLIS, Chief Justice.

text:
    Norma LUMPKINS, Appellant, v. Charles Odell THOMPSON, Appellee.
    No. 8763.
    Court of Civil Appeals of Texas, Amarillo.
    July 18, 1977.
    Rehearing Denied Aug. 15, 1977.

      Stovall & Stovall, Van C. Stovall, Plain-view, for appellant.
    Garner, Vickers & Purdom, John E. Vick-ers, Jr., Lubbock, for appellee.
   ELLIS, Chief Justice.

In this rear-end automobile collision case, the plaintiff, Norma Lumpkins, brought suit against Charles Odell Thompson for damages to compensate for the personal injuries she suffered as a result of the collision. A take-nothing judgment was rendered in accordance with a jury verdict adverse to Lumpkins. On appeal, Lump-kins’ points of error challenge the findings of the jury concerning the extent of her duty to Thompson, evidential support for the jury findings adverse to her, the propriety of the submission of certain issues, and an alleged conflict between two jury findings. We have concluded that although the plaintiff established certain negligence and proximate causation against the defendant, the plaintiff’s acts of contributory negligence were of such nature and extent to preclude her prevailing in her claim against the defendant. Affirmed.

The collision in question occurred on November 21,1974 at approximately 3:00 p. m. On that date, Lumpkins was driving south, accompanied by a passenger, Helen Taylor, on Farm to Market Road 1424 in Swisher County. About 15 miles southwest of Tu-lia, Texas they encountered an area of dense smoke drifting across the highway. A farmer was burning stubble in an adjacent field and the wind was carrying the smoke across the highway. Before entering the smoke covered area, both women glanced to the rear, but saw no car behind them. Lumpkins slowed from the 50 m. p. h. she had been driving to 10-15 m. p. h. and switched on her lights. As she proceeded through the smoke, Lumpkins slowed her car even more although she denied stopping in the smoke. Testimony indicated that the smoke was so thick that the women could not see beyond the hood of the car and that Lumpkins had to open her door in order to see the center line of the highway. According to Lumpkins, she did not retreat to the shoulder of the road because of the poor visibility and her fear of driving into a nearby lake which was adjacent to the highway.

During the time Lumpkins was driving in the smoke, the defendant, Charles Thompson, also was driving south on Farm to Market Road 1424 behind Lumpkins. He was accompanied by his son, Orville. Thompson testified that his speed was 50-55 m. p. h. when he entered the smoke. According to Thompson, the smoke was erratic; it varied considerably in the extent of density as he traveled through it. When he first saw Lumpkins’ car, he was traveling 40-45 m. p. h. and could see 75 feet ahead of him. Both Thompson and his son were of the opinion that Lumpkins’ car was stopped when they first saw it. Thompson then applied his brakes, skidded 26 feet and his automobile struck the rear of Lumpkins’ car at 30-35 m. p. h.

As a result of the collision, Lumpkins was injured seriously. She sued for damages and the jury found Thompson to have been negligent in driving at an excessive speed and in failing to keep a proper lookout. Lumpkins, however, was found to have been contributorily negligent in stopping on the pavement. Also, at the time of the occurrence, she was found to be driving at much less than the normal speed under the then existing conditions when an ordinary prudent person, under the same or similar circumstances and speed she was driving would have driven his car along the right shoulder of the road until such time as he could resume a normal rate of speed. Each of these acts of stopping and slowing on the roadway was found to have proximately caused the collision. The jury apportioned the negligence 40% to Thompson, 60% to Lumpkins. In accordance with the verdict, judgment was rendered that Lumpkins recover nothing by her suit. Lumpkins has appealed on 14 points of error.

In her first two points of error, Lumpkins has argued that the trial court erred in submitting issues 3 and 4A (inquiring as to Lumpkins’ negligence) because, as a matter of law, Lumpkins owed Thompson no duty of care. According to Lumpkins, neither stopping on the paved portion of the highway nor her driving so slowly and failing to pull off the highway and to drive along the shoulder until she could resume normal speed could constitute negligence because she had no duty to do otherwise.

Absent a legal duty and a breach thereof, there can be no liability for negligence. Denison Light & Power Co. v. Patton, 105 Tex. 621, 154 S.W. 540 (1913); Cody v. Mahone, 497 S.W.2d 382 (Tex.Civ.App.— San Antonio 1973, writ ref’d n. r. e.). Normally, any person owes others the duty of ordinary care; i. e., that degree of care which would be exercised by a person of ordinary prudence under the same or similar circumstances. Dickson v. J. Weingarten, Inc., 498 S.W.2d 388 (Tex.Civ.App.—Houston [14th Dist.] 1973, no writ); Hunter-Hayes Elevator Company v. Williams, 402 S.W.2d 280 (Tex.Civ.App.—Fort Worth 1966, writ ref’d n. r. e.). It is noted that in the instant case the trial court instructed the jury concerning the statutory prohibition § 93(a), Art. 6701d, V.A.C.S., against parking a vehicle upon the highway when it is practical to stop or park off the paved part of the highway so as to leave an unobstructed width of highway opposite a standing vehicle for free passage of other vehicles.

Under certain circumstances, courts have held one party not negligent because he owed no duty to the other party. For example, it has been stated often that one has no duty to anticipate another’s negligence. See, e. g., DeWinne v. Allen, 154 Tex. 316, 277 S.W.2d 95 (1955); Bodine v. Welder’s Equipment Co., 520 S.W.2d 407 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n. r. e.) It is Lumpkins’ position that she owed Thompson no duty to anticipate his negligent acts of speeding and failing to keep a proper lookout. In Rash v. Whisennand, 453 S.W.2d 353 (Tex.Civ.App.—Houston [14th Dist.] 1970, writ ref’d n. r. e.), a rear-end collision case, the jury found the plaintiff to have been contributorily negligent in stopping her car more abruptly than a person of ordinary prudence would have under the same or similar circumstances and that her negligence was a proximate cause of the collision. Although it was argued that the plaintiff, as driver of the lead car, owed no legal duty to the driver of the following car, the court rejected this argument. After reviewing several similar cases, the court concluded that the lead driver owed the following driver the duty of ordinary care. Whether this duty was breached was held to have been reserved properly for the trier of fact. The decision is in accord with other cases passing upon the issue. Spencer v. Jernigan, 507 S.W.2d 307 (Tex.Civ.App.—Texarkana 1974, no writ); Robertson Tank Lines, Inc. v. Stinson, 497 S.W.2d 476 (Tex.Civ.App.—Houston [1st Dist.] 1973, no writ); Manning v. Block, 322 S.W.2d 651 (Tex.Civ.App.—Beaumont 1959, writ ref’d n. r. e.).

In the case before us, Lumpkins has argued that she owed Thompson no duty of care because she was not required to anticipate that he would be negligent in coming up on her too fast to stop. In the light of the foregoing, we have concluded, however, that Lumpkins owed Thompson the duty of ordinary care and that issues bearing on the possible breach of her duty were properly submitted to the jury. The trial court, therefore, did not err in submitting issues 3 and 4A to the jury. Points 1 and 2 are overruled.

In her third and fourth points of error, Lumpkins has argued that the court erred in overruling her motion for judgment non obstante veredicto because there is no evidence (point 3) or insufficient evidence (point 4) to support the jury’s affirmative answer to special issue 3. That jury finding was to the effect that, on the occasion in question, Lumpkins stopped or was stopping on the paved portion of the highway at a time when it would have appeared practical to a person using ordinary care to stop the vehicle off the paved part of the highway. Lumpkins and Taylor testified that their vehicle was not stopped when the collision occurred; Thompson and his son testified that it was. According to Lump-kins, however, the Thompsons’ testimony lacked probative force because both testified to their impression that Lumpkins’ car was stopped.

Although both Thompson and his son responded to questions which inquired as to their impression about whether the Lumpkins car was moving, their responses were clear and unequivocal. Thompson testified: “I was quite sure she was stopped, in my mind.” Orville, his son, testified: “I believe the car was stopped.” This testimony is quite different from that discussed in Freeman v. Harkrider, 320 S.W.2d 238 (Tex.Civ.App.—Amarillo 1959, no writ). There, the witness refused to give sworn testimony that the car in front of him was stopped. Read in context, his evasive statements did not reflect sufficient certainty to lend his testimony any probative force. In contrast, the Thompsons’ testimony was unqualified and definite. In our opinion, the testimony constituted evidence of probative force that Lumpkins was stopped (or stopping as defined in the instructions accompanying the issue) prior to the collision. It is noted that in the instruction in the charge it is stated that by the use of the terms “stop or stopping” the same are defined by statute as “— any halting, even momentarily of a vehicle_”.

Even without the Thompsons’ testimony on this issue, however, there would have been sufficient evidence to support the finding. For example, Dr. Raymond Mires, the plaintiff’s expert witness, testified that he suspected Lumpkins’ car must have been stopped in the smoke on the basis of the assumption she traveled only 375 feet in two minutes. Based upon an assumption that the Lumpkins car was stopped at the time of the collision, Mires calculated that it would have been thrown forward 2½ car lengths. This calculation was almost identical to Thompson’s and Lumpkins’ estimates of the actual distance the car was thrown forward. In our opinion, there was sufficient evidence supporting the jury finding that Lumpkins was stopped or stopping at the time in question. The mere fact that the Thompsons did not see any brake lights burning on Lumpkins’ car does not establish that she was not stopped or stopping, as such terms are defined.

There is also sufficient evidence supporting the jury’s conclusion that, on the occasion in question, it would have appeared practical to a person using ordinary care, to stop the vehicle off the paved portion of the highway. The highway was flat; the shoulder was flat and wide, and the bar ditch was relatively flat. The evidence indicated that these conditions had been constant for some distance before the collision site. Lumpkins had traveled the road before and was familiar with some of its principal characteristics. It is recognized that Lumpkins testified that she could not see the bar ditch and that she was afraid she might drive off into a lake she thought to be nearby. Thompson, however, testified that the bar ditch and the road shoulder were visible under the conditions existing at the time of the impact. The jury could have believed Thompson instead of Lumpkins. Even assuming they did not, however, we believe the jury was justified in finding that it was practical to pull over to stop under these circumstances. Points 3 and 4 are overruled.

In points 5, 6 and 7, Lumpkins has argued that there was no evidence (point 5) and insufficient evidence (point 6) to support the jury’s answer to issue 4 and that the finding on that issue should be disregarded because it is immaterial (point 7). Special issue 4 was the first of the following series of issues:

SPECIAL ISSUE NO. 4
Do you find from a preponderance of the evidence that at the time of the occurrence in question, that NORMA LUMPKINS, was driving her automobile, at much less than the normal speed of traffic under the conditions then existing in the middle part of the right-hand half and lane near the center line?
Answer “We do” or “We do not,” as you may find.
In the event that you have answered the foregoing Special Issue “We do” then answer the following.
SPECIAL ISSUE NO. 4A
Do you find from a preponderance of the evidence that under the same or similar circumstances and speed that she was driving, an ordinary prudent person would have driven his car along the right shoulder of the road, until such time as he could resume a normal speed upon the Farm-to-Market Road?
Answer “We do” or “We do not,” as you may find.
In the event that you have answered the foregoing Special Issue “We do” then answer the following.
SPECIAL ISSUE NO. 4B
Do you find from a preponderance of the evidence that such negligence, if any, was a proximate cause of the collision?
Answer “We do” or “We do not,” as you may find.

The jury answered each of the above stated issues “We do.”

Regarding issue No. 4, Lumpkins has complained that there was no evidence of the “normal speed of traffic under the conditions then existing.” Obviously, however, the jury had ample evidence before it as to the conditions which existed at the time of the occurrence. In our opinion, it was within the province of the jury to determine that 10-15 m. p. h. and slower was not a “normal” speed under those conditions. The jury could draw this inference from the witnesses’ testimony and the photographs introduced into evidence which depicted the highway and the shoulders of the road. Points 5 and 6 are overruled.

In her seventh point of error, Lump-kins has argued that issue 4 was immaterial and should be disregarded. According to Lumpkins, the finding that she was driving at “much less than the normal speed of traffic under the conditions then existing” does not constitute a finding of negligence. We have noted, however, that Lumpkins did not object to the submission of issue 4 on this ground. For this reason, the complaint was waived. Tex.R.Civ.P. 274; Schwab v. Stewart, 387 S.W.2d 939 (Tex.Civ.App.—Amarillo 1964), writ ref’d n. r. e. per curiam, 390 S.W.2d 752 (Tex.1965).

Even if the complaint should not be regarded as not having been waived, however, Lumpkins’ points should not be sustained. It is correct that the answer to issue 4, by itself, would not be a finding of negligence. The finding of negligence, however, is not based solely upon the finding that Lumpkins was driving at less than the normal speed. Instead, the related issues 4 and 4A when appropriately read together constitute a finding of negligence. Taken together, the two issues amount to a finding that Lumpkins was driving at less than the normal speed in the middle part of the right lane when an ordinary prudent person driving at the same speed would have driven along the right shoulder. Lumpkins argues that the act of driving at a slow rate of speed on a highway does not constitute negligence, citing Hill v. W. E. Brittain, Inc., 405 S.W.2d 803 (Tex.Civ.App.—Fort Worth 1966, no writ), which states that “(N)o court of this state has held that a slow rate of speed of a motor vehicle driving upon a public road or highway constitutes negligence,” citing Lewis v. Merrill, 295 S.W.2d 920 (Tex.Civ.App.—Waco 1956, writ ref’d n. r. e.). We note, however, the Texas Supreme Court has recently held, in a case involving a rear-end collision on a public roadway, that one can be guilty of contributory negligence by driving too slowly. Southwestern Bell Telephone Company v. Thomas et ux., 554 S.W.2d 672 (Tex.1977). Point 7 is overruled.

In Lumpkins’ eighth point, she has argued that the jury’s answer to special issue 3 (Lumpkins was stopped or stopping at the time in question) conflicts with the answer to issue 4 (Lumpkins was driving at less than the normal speed of traffic at the time in question). In our opinion, however, the two findings can be reconciled because Lumpkins could have been regarded as stopping and driving at less than the normal speed at approximately the same time, under the statutory definition of stopping in the court’s instruction, i. e., “_any halting, even momentarily of a vehicle —”. Furthermore, even if it could be said that the findings conflicted, the conflict would not be fatal. A conflict between two findings is fatal only when, taking the finding alone in the one instance, a judgment should be entered in favor of the plaintiff and, taking it alone in the other, judgment should be entered for the defendant. Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985 (1949); Texas Employers’ Insurance Ass’n v. Sprabery, 520 S.W.2d 447 (Tex.Civ.App.—Fort Worth 1975, no writ). Issues 3 and 4 (and their related issues) either or both establish Lumpkins’ contributory negligence. Moreover, either one of the findings (and related issues) taken in conjunction with the rest of the verdict supports the verdict reached. Point 8 is overruled.

In her ninth and tenth points of error, Lumpkins has argued that there is no evidence (point 9) or insufficient evidence (point 10) to support the jury’s finding on issue 4A. By its responses to that issue (above quoted) the jury found that, under the same or similar circumstances and speed Lumpkins was driving, an ordinary prudent person would have driven his car along the right shoulder of the road until he could resume a normal speed. It is Lumpkins’ position that, under the circumstances, an ordinarily prudent person would not have retreated to the shoulder because the shoulder and bar ditch were not visible. Thompson and his son, however, testified that the bar ditch and the shoulder were visible at the time of the collision. Furthermore, photographs showed the road shoulder was wide and the terrain was flat. The jury knew that Lumpkins was somewhat familiar with the road because she had traveled the road on previous occasions. They could have reasonably concluded that under these circumstances, ordinary prudence required Lumpkins to pull onto the shoulder. Points 9 and 10 are overruled.

In points 11, 12, 13 and 14, Lumpkins has argued that the evidence supporting the jury findings in issues 3A and 4B is legally (points 11 and 13) and factually (points 12 and 14) insufficient. These findings reasonably served as a basis for establishing that Lumpkins’ negligence in stopping her car on the pavement and driving too slowly on the pavement instead of the shoulder was a proximate cause of the collision.

In testing Lumpkins’ points, we have recognized that proximate cause consists of two concepts: (1) cause in fact and (2) foreseeability. Both of these elements must be present. Farley v. M M Cattle Company, 529 S.W.2d 751 (Tex.1975). The cause in fact concept is a “but for” test of causation. Applying this test to these facts, it can be seen that the collision would not have occurred but for the fact that Lumpkins was driving in the right lane (instead of the shoulder) slowly enough to be considered stopped or stopping. In this connection, it is obvious that if she had not been blocking the highway, Thompson would not have struck her automobile. Thus, there was sufficient evidence that Lumpkins’ negligence was a cause in fact of the collision.

The second aspect of causation involves the issue of foreseeability. If the negligent party, “as a person of ordinary intelligence and prudence should have anticipated the danger to others created by his negligent act,” an injury is foreseeable. It “is not required that he anticipate just how injuries will grow out of the dangerous situation.” Westbrook v. Reed, 531 S.W.2d 890, 893 (Tex.Civ.App.—Amarillo 1975, writ ref’d n. r. e.). It is Lumpkins’ position that she was not required to anticipate negligent conduct by Thompson and that the collision was not foreseeable.

We agree that one is generally not required to anticipate the negligence of another. DeWinne v. Allen, supra. This does not mean that one will be excused from liability simply because some other person was also negligent. Yoakum Grain Inc. v. Energy Industries, Inc., 511 S.W.2d 95 (Tex.Civ.App.—Corpus Christi 1974, no writ). To be charged with liability for negligence, it is not necessary that a party be able to foresee the specific events which occurred to cause the injury. Instead, one need only foresee the possibility of harm to others. Westbrook v. Reed, supra; Martinez v. Hernandez, 394 S.W.2d 667, 670 (Tex.Civ.App.—San Antonio 1965, writ ref’d n. r. e.).

According to the foregoing rule, whether Lumpkins could foresee Thompson’s negligent acts of speeding and failing to keep a proper lookout does not control the question on proximate cause. To be liable for her negligence, she was required only to foresee the possibility that injuries of this type might occur under the circumstances. In our opinion, the evidence supports the conclusion that Lumpkins should have anticipated that someone might be injured as a result of her blocking the right lane of the highway. This was a public highway used for normal highway traffic. Visibility on this occasion was very limited. Under these circumstances, it is our opinion that there was sufficient evidence to support the jury’s finding on proximate causation. Blocking the regular traveling lane of a public highway under these conditions was imprudent and dangerous for any and all traffic that might be traveling in that lane. Points 11-14 are overruled.

For the reasons above stated, the judgment of the trial court is affirmed.


author: HALL, Justice.

text:
    Leonard A. WASHBURN, Appellant, v. Fred HONEA, III, Appellee.
    No. 5727.
    Court of Civil Appeals of Texas, Waco.
    July 28, 1977.

      E. F. Edwards, III, Dallas, for appellant.
    Roger J. Allen, Strother, Davis, Stanton & Levy, Dallas, for appellee.
   HALL, Justice.

Leonard Washburn brought this suit against Fred Honea, III, for money received by Honea from Frito-Lay, Inc., for computer programming services performed for Frito-Lay by Washburn and Honea. Wash-burn pleaded that he and Honea performed the services as partners and were to share the money received from Frito-Lay equally, or that in any event, whether partners or not, they had agreed to divide the proceeds equally and that Honea owed him a sum in excess of $2,000 as his unpaid share. Additionally, Washburn alleged that Honea owed him $600 for computer programming services he had rendered for Honea prior to their contract with Frito-Lay. Originally Frito-Lay was joined as a defendant, but it paid $1,480 owed by it under its contract with Washburn and Honea into the registry of the court and was dismissed from the suit. Honea denied that he owed Washburn any money, alleged that Washburn was his employee and not his partner on the Frito-Lay project, alleged that Washburn was paid and had accepted $300 for the work done prior to the Frito-Lay contract, and filed a cross action for $1,340 which he allegedly overpaid Washburn from money received from Frito-Lay.

After a hearing without a jury the court awarded Washburn a recovery of one-half of the $1,480 deposited in the registry of the court by Frito-Lay; rendered a take-nothing judgment against Honea on his cross action; and ordered the balance of the $1,480 deposit paid to Honea after all unpaid court costs had been deducted from it.

The record contains these express findings and conclusions:

1. Washburn was requested and directed by Honea to perform computer programming services in late August or early September, 1974.
2. The compensation for these services was a fee of $300.
3. A $300 check issued by Honea to Washburn on September 6, 1974, was substituted with another $300 check issued by Honea on September 13, 1974, and this latter check was superseded by payment of the $300 to Washburn by Global Computer Corporation with a check issued November 21, 1974.
4. There has been an accord and satisfaction regarding payment of the computer programming services rendered by Washburn in late August or early September, 1974.
5. Washburn and Honea entered into an oral agreement in the latter part of December, 1975, under which they were to perform computer programming services for Frito-Lay under a contract with Frito-Lay dated December 29, 1975.
6. The oral agreement provided for Washburn to receive $40.00 per hour as compensation for his services under the Frito-Lay contract.
7. Frito-Lay was to be billed at an hourly rate of $40.00 per hour for the services performed by Washburn and Honea.
8. Washburn performed 18.5 hours of services for Frito-Lay for which he did not receive payment.
9. The value of the 18.5 hours for which Washburn did not receive payment was $740.
10.“Since [Washburn] was not paid for 18.5 hours of work performed for Frito-Lay under his oral agreement with [Honea], he is entitled to recover the sum of $740.00 as the reasonable value for such work.”

The record also contains a full statement of facts.

Washburn alone appeals. In four points of error he contends:

1. There is no evidence to support the finding that his fee for the computer services he rendered in late August or early September, 1974, was $300.
2. There is no evidence to support the finding that he performed only 18.5 hours of computer services under the Frito-Lay contract for which he did not receive payment.
3. There is no evidence to support the finding that the value of the 18.5 hours for which he did not receive payment was only $740; or, alternatively, this finding is against the great weight and preponderance of the evidence.

In testing a “no evidence” point, we may consider only the proof and infer-enees which support the questioned finding. In resolving a “great weight and preponderance of the evidence” point, we must consider all proof in the record relating to the questioned finding.

Washburn testified that Honea agreed to pay him $600 for the work he did in late August or early September, 1974. Honea denied that he agreed to pay any set sum for the work. Nevertheless, through a series of insufficient checks which were finally paid, Honea gave Washburn $300 as compensation for the work soon after it was completed. Washburn accepted this sum and forgot about the matter. It was so removed from his thoughts when he filed this suit in the Spring of 1976, that he would not have included the $600 count if his wife had not prompted him to do so.

These circumstances support the court’s finding that Washburn’s true fee for the work was $300. Additionally these facts support implied findings of dispute over the fee, settlement, and payment, upon which the court based its conclusion of accord and satisfaction. This basis for the judgment denying Washburn’s $600 claim has not been challenged.

Washburn and Honea rendered computer services for Frito-Lay in January, February, and March, 1976. Their charge to Frito-Lay was $40 per hour of services rendered. Honea invoiced Frito-Lay for the total hours of both men, and Frito-Lay issued its checks payable to Honea for the services. Honea then issued his check to Washburn. Washburn testified that he and Honea were to evenly split the proceeds received from Frito-Lay. Honea denied this. He said that Washburn was his employee in the Frito-Lay venture, and that Washburn was to receive $40 per hour for the work performed only by Washburn for which Frito-Lay was billed. Honea kept a record of his hours and Washburn’s hours for which he invoiced Frito-Lay. Wash-burn did not keep this record. Excepting the $1,480 paid into the registry of the court, Frito-Lay paid invoices totaling $17,-060 during the time in question. This was for 426.5 hours. During this time, Honea paid Washburn $7,240. Claiming he was entitled to one-half the sum paid by Frito-Lay, Washburn said he should have received $8,530. He also claimed one-half of the $1,480. Honea’s records show that the $17,-060 represented 253 hours of his work and 173.5 hours by Washburn, and that the $1,480 was for hours rendered only by him. He claimed, therefore, that Washburn should only have received $6,940 and was overpaid $300. Honea sought this difference plus all of the $1,480.

It was the trial judge’s prerogative and duty as trier of the facts to weigh all of the evidence, pick out what he believed to be its most credible parts, and make his determinations accordingly. The evidence we have recited supports an implied finding that the $7,240 paid to Wash-burn by Honea from the $17,060 paid to Honea by Frito-Lay was the exact amount to which Washburn was entitled. This brings us to the $1,480. Washburn testified he was entitled to one-half of it. The court awarded him that amount. This award represents 18.5 hours of work at $40 per hour. The finding that the value of the 18.5 hours for which Washburn had not been paid was $740 is abundantly supported by the proof, and is not against the great weight and preponderance of the evidence.

The judgment is affirmed.


author: HUGHES, Justice.

text:
    Donald WESTHOFF et al., Appellants, v. F. A. REITZ et al., Appellees.
    No. 17861.
    Court of Civil Appeals of Texas, Fort Worth.
    June 9, 1977.
    Rehearing Denied July 14, 1977.

      Vinson, Elkins, Searls, Connally & Smith, and William P. Hallman, Jr., Fort Worth, for appellants.
    James H. Knapp, Rohne & Hoodenpyle, and Wayne A. Rohne, Arlington, for appel-lees.
   OPINION

HUGHES, Justice.

F. A. Reitz and other heirs at law of C. L. R. Reitz, deceased, filed a trespass to try title and partition suit against Donald Wes-thoff; Francis Stephan; Jim Griffin, Trustee; Hazel Reitz (widow of C. L. R.); and Harris Investments, Inc. Westhoff, et al. appealed from an order of the trial court styled: “PRELIMINARY DECREE OF PARTITION AND APPOINTMENT OF COMMISSIONERS AND SURVEYOR”, which found appellees entitled to Vá of the property in question and ordered a partition in kind.

We affirm.

Appellees suggested that the appeal is premature, it not having been made from a final judgment.

We do not agree with this contention. “The first decree in partition is sometimes referred to as the ‘interlocutory decree’ while the second is termed the ‘final decree.’ . . . However, the first decree is interlocutory only in the sense that it is intermediate in relation to the second decree. The rights and matters therein determined are final and it is appealable as a final judgment. . . .” Marmion v. Wells, 246 S.W.2d 704, 705 (Tex.Civ.App.—San Antonio 1952, writ ref’d). See also Pfeffer v. Meissner, 286 S.W.2d 241, 246 (Tex.Civ.App.—Galveston 1955, writ ref’d n.r.e.).

The property involved is in Dallas and Tarrant counties, being split by the county line. The partition deed of November 2, 1921 (plaintiffs’ exhibit no. 5) relates that the five children of John Reitz, deceased, were the residuary legatees under his will and divided the property into three tracts: J. A. Reitz received 78.28 acres; Mary M. Day received 73.06 acres; and H. J., C. L. R. and F. A. Reitz jointly received 182.66 acres.

Appellees introduced the following deeds into evidence, all of which were dated August 12, 1948:

Plaintiffs’ exhibit no. 7 — J. A. Reitz, C. L. R. Reitz and Mary M. Day as “. heirs at law of John B. Reitz, deceased, and heirs at law of H. J. Reitz, deceased, . . ” conveyed to F. A. Reitz 91.4 acres of land out of the J. Banks and J. Childress Surveys for a consideration of “. . . Ten and NO/100 Dollars and for the purpose of making separate and individual deeds ..” (Emphasis ours). Vendor’s lien was retained.

Plaintiffs’ exhibit no. 9 — Joe Reitz, Alvin Reitz and Charlie Reitz . .in consideration of One ($1.00) Dollar to each of us in hand paid by MARY M. DAY . and to confirm the agreed partition of the lands inherited by us and our sister, Mary M. Day, from our deceased brother, Henry Reitz, . . . ” conveyed 15 acres of land out of the Banks and Childless Surveys to Mary M. Day. No vendor’s lien retained. (Emphasis ours).

Plaintiffs’ exhibit no. 10 — Joe, Alvin and Charlie Reitz with the same stated consideration as defendants’ exhibit no. 2 conveyed 73.06 acres to Mary M. Day out of the Banks and Childress Surveys.

Appellants introduced their exhibit no. 2 which was dated August 18, 1948, being a deed from F. A. Reitz, J. A. Reitz and Mary M. Day, “. . . being the children of John B. Reitz, Deceased, and the heirs at law of H. J. Reitz, deceased . . . ” for a consideration of “. . . Ten and NO/100 DOLLARS and for the purpose of making separate and individual deeds . ” to C. L. R. Reitz of 76.66 acres of land out of the Banks and Childress Surveys. A vendor’s lien was retained. (Emphasis ours).

Appellees claim that H. J. Reitz, one of the brothers of C. L. R., died without issue and intestate. Further, they claim that a partition was effected by plaintiffs’ exhibits nos. 7, 9 and 10 and by defendants’ exhibit no. 2.

If the deeds mentioned are partition deeds, they did not alter the character of the property. If it was C. L. R.’s separate property when they were executed, it so remained. Odstreil v. Odstreil, 384 S.W.2d 403 (Tex.Civ.App.—Houston 1964, writ dism’d); Hamilton v. Hamilton, 154 Tex. 511, 280 S.W.2d 588 (1955).

We hold the trial court to have been correct in finding the property to be C. L. R.’s separate property. (There was ample testimony for the trial court to find it was acquired by C. L. R. by inheritance (1921) before marriage (1941). Lee v. Lee, 112 Tex. 392, 247 S.W. 828 (Tex. Comm’n App. 1923, jdgmt. adopted); Jenkins v. Robinson, 169 S.W.2d 250 (Tex.Civ.App.—Austin 1943, no writ). Viewing the evidence in the light most favorable to the ruling of the trial court, we agree that there is evidence to support same and therefore overrule appellants’ points of error 1 through 6.

We hold that the deeds offered by appellees into evidence, plus the marriage certificate of C. L. R. and Mary Reitz offered by appellants into evidence, identify the land as the separate property of C. L. R. and sufficiently put purchasers, such as the appellants, on notice to make further inquiry of the status of ownership of this land.

We also hold that the deeds offered by appellees are not excluded by the Dead Man’s Statute, Tex.Rev.Civ.Stat.Ann. art. 3716 (1926). The statute does not exclude written instruments executed by the deceased when such are relied upon for recovery by the objecting party. Newsom v. Fikes, 153 S.W.2d 962 (Tex.Civ.App.—Fort Worth 1941, writ ref’d w.o.m.).

Further, it has been held that Art. 3716 does not disqualify witnesses from testifying to matters over which they have personal knowledge. Taylor v. Jones, 135 S.W.2d 767 (Tex.Civ.App.—El Paso 1940, writ dism’d jdgmt cor.); Wideman v. Coleman, 17 S.W.2d 786 (Tex.Comm’n App.1929, holding approved). From this it would appear that, even if F. A. Reitz and John P. Day’s testimony should not have been admitted for their interpretation of the proceedings concerning the deeds in question, their testimony as to the facts within their knowledge of heirship and family relationships would not be excluded under the Wideman v. Coleman case, supra.

Since the trial was before the court we must presume the court considered only the competent evidence before him.

Under the facts of the case, we agree with appellees that legal title.is in them according to the law enunciated in Summerlin v. Smith, 279 S.W. 284 (Tex.Civ.App.—Texarkana 1926, writ dism’d).

We hold that appellants did not prove that they were innocent purchasers for value without notice because the 1948 deed to C. L. R. would put a prudent man on notice by its peculiar terminology to look further down the chain of title. Tuggle v. Cooke, 277 S.W.2d 729 (Tex.Civ.App.—Fort Worth 1955, writ ref’d n.r.e.); Gulf Production Co. v. Continental Oil Co., 139 Tex. 183, 132 S.W.2d 553 (1939). To have done so would have revealed the partition deed of 1921 involving the C. L. R. obviously-heired interest in the land in question. The Tuggle case, supra, cites the rule that purchasers, such as appellants, are required to look for conveyances affecting title to the property bought, not only in the chain of title, but also conveyances “. . . connected therewith so closely that the purchaser is charged with notice thereof.” (Emphasis theirs).

We overrule appellants’ points of error nos. 7 through 11.

No reversible error appearing, the judgment of the trial court is affirmed.


author: SHANNON, Justice.

text:
    G. T. HUBBARD et al., Appellants, v. BELTON INDEPENDENT SCHOOL DISTRICT, Appellee.
    No. 12587.
    Court of Civil Appeals of Texas, Austin.
    June 15, 1977.
    Gerald M. Brown, Temple, for appellants.
    Shelburne J. Veselka, McCreary & Huey, Austin, for appellee.
   SHANNON, Justice.

Appellee, Belton Independent School District, filed suit in the district court of Bell County against appellants, G. T. Hubbard and Susanne H. Wells, also known as Susanne Bond, for delinquent taxes for 1974 and 1975. The district court granted appel-lee’s motion for summary judgment for taxes, penalties, and interest in the sum of $5,015.71. We will reverse that judgment.

Appellee sued for taxes, penalty and interest due from seven tracts of land. In response, appellants filed an answer containing special exceptions and a general denial.

Appellee’s summary judgment proof consisted of an affidavit of appellee’s tax assessor-collector in which he swore that appellants, G. T. Hubbard and Susanne H. Wells, were the owners of the property involved for the years in question. Also, as a part of its summary judgment proof, appellee attached certified copies of the delinquent tax records showing the amount of taxes due and owing on the parcels of land. Those records showed appellants to be “owners” of two of the tracts and Mrs. J. B. Hubbard to be “owner” of five of the tracts.

Appellants did not respond to the motion for summary judgment by answer or by controverting summary judgment proof.

Appellants’ position is that appellee’s summary judgment proof failed to show, as a matter of law, that appellants owed the taxes as to five of the tracts of land. That is so, argue appellants, because the certified copies of the delinquent tax records show the five tracts were owned not by appellants, but instead by Mrs. J. B. Hubbard.

The affirmance of a summary judgment for the plaintiff depends upon whether the summary judgment proof establishes matter of law, that there is no genuine issue of fact as to the essential elements of the plaintiff’s cause of action. If the plaintiff’s summary judgment proof fails in this respect, then the defendant does not have the burden, to avoid summary judgment, of going forward with proof of like quality. Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.1970); Swilley v. Hughes, 488 S.W.2d 64 (Tex.1972); Smith v. Ortman-McCain Co., 537 S.W.2d 515 (Tex.Civ.App. 1976, writ ref’d n.r.e.).

Appellee’s summary judgment proof does not establish, as a matter of law, that appellants owed the taxes due from the five parcels of land listed in the name of Mrs. J. B. Hubbard. To the contrary, the movant’s proof served only to raise a fact issue with respect to whether appellants owed those taxes. Although the tax assessor-collector’s affidavit stated that appellants owned all seven tracts, appellee’s own tax records showed five of the tracts were owned by Mrs. J. B. Hubbard.

Appellee’s summary judgment proof does establish, as a matter of law, the appellants’ tax liability as to the two tracts of land listed as owned by them. Accordingly, appellants, to have avoided summary judgment , had the burden of coming forward with controverting summary judgment proof. As previously written, appellants did not discharge that burden.

Ordinarily, this Court would reverse that part of the judgment awarding appellee taxes, penalties, and interest due from the five tracts of land, and that cause of action would be severed and remanded. This Court then would affirm that part of the judgment awarding appellee taxes, penalties, and interest due from the two tracts of land. The court is unable to enter such decree because the judgment is in a lump sum, and the Court is not able to ascertain from the record what sum is due as penalty and interest from each tract of land.

The judgment is reversed. The cause is remanded to the district court for trial for a determination of the sums owed by appellants on the two tracts, and for trial with respect to the five tracts.


author: MASSEY, Chief Justice.

text:
    Alvin ZIDELL et al., Appellants, v. TARRANT SAVINGS ASSOCIATION, Appellee.
    No. 17869.
    Court of Civil Appeals of Texas, Fort Worth.
    June 16, 1977.
    Rehearing Denied July 14, 1977.
    Passman, Jones, Andrews, Coplin, Holley & Co., and Gerald R. Coplin, Dallas, for appellants.
    Brown, Herman, Scott, Dean & Miles, and James T. Blanton, Fort Worth, for ap-pellee.
   OPINION

MASSEY, Chief Justice.

This -is a plea of privilege case in which the appellants had their pleas overruled. Therefrom they appealed. Another defendant did not file his plea of privilege and will be hereinafter treated as the non-complaining defendant.

We affirm.

Though we sustain the ruling of the trial court for another reason we also sustain it because the appellants were necessary parties (as well as proper parties) to the suit of plaintiff Tarrant Savings Association upon promissory notes, and because liability for purposes of venue was established against the non-appealing defendant (who, necessarily, would be either a resident defendant or non-resident defendant) either by V.A. T.S. Art. 1995, “Venue”, Sub. 4, “Defendants in different counties”, or by Sub. 29a, “Two or more defendants”, of the same article.

Plaintiff, on trial of his venue case upon his controverting affidavit, has unquestionably shown factual entitlement to retain venue of the case against the appellants in the county of suit either by Sub. 4 or by Sub. 29a.

It is not necessary in this case to determine by which of these subdivisions plaintiff should prevail, for if entitlement by either be non-existent it would necessarily exist by the other and it could not be error to overrule the plea of privilege. It is unnecessary to specifically rule upon the question of efficacy, as evidence, of the stipulation by the non-complaining defendant that his residence was in the county of suit. It has been held that persons in position of the appellants are not bound by such a stipulation and that it is not evidence of residency affecting their right to have proof adduced. Gilley v. Morse, 375 S.W.2d 569 (Tex.Civ.App., Dallas, 1964, no writ), followed by LaSorsa v. Burr, 516 S.W.2d 265 (Tex.Civ.App., Houston (14th Dist.), 1974, no writ). But, as stated, to resolve the question is not essential for whether the non-complaining defendant is or not a resident makes no difference in this case. By and through his liability all the appellants may be held in the county of suit.

The record in this case shows: (1) that by any proper measure the appellants were necessary parties and not merely proper parties. (McDonald’s Texas Civil Practice, 1965 Revision, under “Venue”, at § 4.36, “Art. 1995(29a), Necessary Parties”); (2) that the appellants, having failed for purposes of the venue trial to deny anything to be denied under oath by Rule 93 (T.R.C.P. 93, “Certain Pleas to be Verified”) any facts necessary to be proved in order to sustain venue had appellants made denial of any pleaded fact by Rule 93 stood as conceded for purposes of the venue hearing. (McDonald’s Texas Civil Practice, 1965 Revision, under “Venue”, at § 4.43.1, “Plea of Privilege — (II) Form”); (3) and plaintiff either proved the venue facts necessary under Sub. 4 of Art. 1995 (McDonald’s Texas Civil Practice, 1965 Revision, under “Venue”, at § 4.10.2, “Art. 1995(4), One Defendant Resident in County of Suit — (II) Venue Facts”, or the venue facts necessary under Sub. 29a of Art. 1995, “Venue” and same text at § 4.36, “Art. 1995(29a), Necessary Parties” (particularly on page 550).

Furthermore, the evidence produced upon venue trial established plaintiff’s right to prevail by V.A.T.S. Art. 1995, “Venue”, Sub. 5, “Contract in writing”, even had the non-complaining defendant not been a party defendant. As initially executed by the non-complaining defendant the notes provided for payment to be made in the county of suit. The notes were introduced; and, perhaps unnecessarily, the fact that there was a balance owing thereon was established by testimony of one of its officers. Also testified to by the officer was that plaintiff was owner and holder of the notes.

By documentary evidence plaintiff proved that there had been assumption by the appellants of the original indebtedness of the non-complaining defendant evidenced by the notes. Proof was by the County Clerk’s records of deeds executed by the non-complaining defendant (who was liable upon the original notes) to the appellants. The deed instruments were: (1) the first executed 19 April 1968, filed of record 23 April 1968 (with return of the instrument to specified address and to Alvin Zi-dell, one of the appellants); (2) the second executed 14 March 1968, filed of record 3 April 1968 (with return made to Zidell); (3) the third executed 14 March 1968, filed of record 3 April 1968 (like return made to Zidell); (4) the fourth executed 19 April 1968, filed of record 23 April 1968 (like return made to Zidell); (5) the fifth executed 19 April 1968, filed of record 23 April 1968 (like return made to Zidell); (6) and the sixth executed 23 May 1968, filed of record 28 May 1968 (with return of the instrument to specified address and to Milton Sabel, one of the appellants).'

Tarrant Savings Association proved its prima facie case entitling it to prevail under the aforementioned Sub. 5. This is because of the fact that not only was there proof of the original note contract with the non-complaining defendant, but, additionally, proof that there had been assumption by appellants of his obligation to make payment thereof in the county of the suit. The deeds recited the foregoing as part of appellants’ return obligation (to the benefit of the owner and holder of the note by necessary implication) upon receipt of the benefits thereby conveyed. These deeds were proved to have been received and accepted by appellants. Plaintiff’s case was, therefore, proved as upon written contract(s) by which the complaining defendants might be held bound under the subdivision whether the non-complaining party was or not made a defendant. Clegg v. Brannan, 111 Tex. 367, 234 S.W. 1076 (1921); Arnold H. Bruner & Co. v. Hidalgo County Water C. & I., 371 S.W.2d 932 (Tex.Civ.App. San Antonio 1963, writ dism’d).

The judgment is affirmed.


text:
    In the Matter of the ESTATE OF George BLACKBURN, Deceased. John BLACKBURN, Appellant, v. Sue FAULKINBURY, Appellee.
    No. 8445.
    Court of Civil Appeals of Texas, Texarkana.
    June 21, 1977.
    Rehearing Denied Aug. 9, 1977.

      Paul W. Anderson, Richard M. Anderson, Anderson & Anderson, Marshall, for appellant.
    Ruben K. Abney, Marshall, for appellee.
   CORNELIUS, Justice.

Appellant has appealed from an order which revoked his previous appointment as administrator of the Estate of George Blackburn and appointed him temporary administrator pending the determination of an application to probate an alleged will of the deceased.

On May 5, 1976, appellant made application for appointment as administrator of the Estate of George Blackburn, Deceased, alleging that as far as could be determined the deceased left no will. Citation on the application was issued and the hearing set for May 17,1976. Prior to the date set for the hearing, appellee filed an application to admit to probate a writing alleged to constitute the last will and testament of George Blackburn. Citation on that application was issued and the hearing set thereon for May 24, 1976. On May 17, 1976, without expressly acting on the application for probate of the will, the County Court of Harrison County entered its order appointing appellant administrator of the estate and he duly qualified. On May 20, 1976, appellant filed a contest of the appellee’s application to probate the will. On May 24, 1976, appellee filed a motion to set aside or revoke the order of May 17 which had appointed appellant administrator and to appoint a temporary administrator pending the determination of the will contest. On May 27, 1976, appellant moved that the entire proceedings be transferred to the District Court pursuant to the provisions of Tex.Prob.Code Ann. Sec. 5(b) (Supp.1976-1977), and on the same day the transfer was made. The district court set appellee’s motion to revoke appellant’s appointment for a hearing, and on August 2, 1976, entered an order setting aside the May 17 order which had appointed appellant administrator and appointed appellant temporary administrator pending determination of the contested application to probate the alleged will. As far as the record before us reveals, no further proceedings have transpired with reference to this controversy except that on August 2, 1976, the court denied a motion for summary judgment filed by appellant.

Appellant contends that, as the May 17 order of the county court appointing him administrator was a final appealable order and no appeal was taken therefrom, the district court had no power to set it aside absent pleadings and proof showing it to be void. Appellee contends that, because Tex. Prob.Code Ann. Sec. 83(a) requires that when an application to probate a will is filed prior to action being taken upon a previously filed application for administration the court must hear said applications together, the county court’s action appointing appellant administrator at a time when the application to probate the will was pending was premature and erroneous, and the district court properly set it aside.

Some orders and decrees in probate proceedings, despite the fact that they are final for the purpose of appealability, are nevertheless expressly made revocable upon the occurrence of certain events. We believe the situation which faced the district court in this controversy, although not coming within the exact literal language of the provisions, was within the intent and is governed by Tex.Prob.Code Ann. Sec. 220 (Supp.1976-1977) and Sec. 83(c). Section 220 provides in part as follows:

(e) When Will Is Discovered After Administration Granted. If it is discovered after letters of administration have been issued that the deceased left a lawful will, the letters shall be revoked and proper letters issued to the person or persons entitled thereto.”

Section 83(c) provides in part as follows:

“(c) Where Letters Of Administration Have Been Granted. Whenever letters of administration shall have been granted upon an estate, and it shall afterwards be discovered that the deceased left a lawful will, such will may be proved in the manner provided for the proof of wills; and, if an executor is named . . . the letters previously granted shall be revoked; but, if no such executor be named then administration with the will annexed of the estate of such testator shall be granted as in other cases.

Although Sections 220 and 83(c) grant the court power to revoke a previously entered order appointing an administrator, and to order a will probated or make such other order as may be proper, they do not specify the procedure to be followed when the will sought to be probated is contested. The general procedure in such cases is for the trial court to appoint, pending the determination of the will contest, a temporary administrator with limited powers as dictated by the circumstances. Tex. Prob.Code Ann. Sec. 132(a); 17 Woodward and Smith, Probate and Decedent’s Estates, Sec. 461. That is what the district court did in this case and there was no error in doing so.

Appellant urges that, as appellee’s application to probate the will was on file when the county court entered its order of May 17 appointing him administrator, it must be presumed that such order, by necessary implication, denied appellee’s application to probate the alleged will. The general rule is that, where a claim is not expressly disposed of by a judgment even though it has been propérly put in issue by the pleadings, the judgment will be considered to have denied such claim. Vance v. Wilson, 382 S.W.2d 107 (Tex.1964). But such a presumption is wholly unwarranted in this case. The record reveals that appellee’s application to probate the will was not ripe for hearing or action at the time the county court entered its order appointing appellant administrator. Tex.Prob.Code Ann. Sec. 128 provides that “. . .No application for the probate of a will . shall be acted upon until service of citation has been made in the manner provided herein.” Service on appellee’s application was not completed until May 21, 1976, for a hearing on May 24, 1976. No presumption will be indulged to establish a judicial act or to support the regularity of judicial proceedings when the record itself reveals that the court was not authorized to act in the premises. Templeton v. Falls Land & Cattle Co., 77 Tex. 55, 13 S.W. 964 (1890); 18 Tex.Jur.2d, Decedent’s Estates, Sec. 66, p. 82. That it was not the intention of the May 17 order to deny appellee’s application to probate the will is further confirmed, we think, by the fact that on May 20, three days after the entry of such order, appellant filed his pleading contesting the probate of the alleged will.

The order of the district court setting aside the appointment of appellant as administrator and appointing him temporary administrator pending a determination of the contested application to probate the will is affirmed.

      . “§ 5. Jurisdiction of District Court and Other Courts of Record With Respect to Probate Proceedings and Appeals from Probate Orders
      (b) In those counties where there is no statutory probate court, county court at law or other statutory court exercising the jurisdiction of a probate court, all applications, petitions and motions regarding probate, administrations, guardianships, and mental illness matters shall be filed and heard in the county court, except that in contested probate matters, the judge of the county court may on his own motion, or shall on the motion of any party to the proceeding transfer such proceeding to the district court, which may then hear such proceeding as if originally filed in such court. . .

      . “§ 83. Procedure Pertaining to a Second Application
      (a) Where Original Application Has Not Been Heard. If, after an application for the probate of a will or for the appointment of a general personal representative has been filed, and before such application has been heard, an application for the probate of a will of the decedent, not theretofore presented for probate, is filed, the court shall hear both applications together and determine what instrument, if any, should be admitted to probate, or whether the decedent died intestate.”