author: MURRAY, Justice.

text:
    Jerry B. BAKER, Appellant, v. Jim L. STORY et al., Appellees.
    No. 15959.
    Court of Civil Appeals of Texas, San Antonio.
    March 15, 1978.
    Rehearing Denied April 19, 1978.
    Tuck R. Chapin, San Antonio, for appellant.
    Clark, Thornton & Summers, David Stephenson, San Antonio, for appellees.
   MURRAY, Justice.

This lawsuit arose out of an operation on Jerry B. Baker, plaintiff, performed by Dr. Charles Miller, defendant, under the supervision of Dr. Jim L. Story, defendant. At the time of this operation, defendant Miller was a member of the United States Air Force and was at the University of Texas Medical School on a rotating residency program where residents in the military exchange with residents at the University of Texas Medical School between the hospital facilities of the United States Air Force and the University of Texas Medical School. At the time of this operation, defendant Story was head of the neurological-surgery department at the University of Texas Health Science Center in San Antonio.

After initiating this suit in State court against defendants for medical malpractice, plaintiff then filed a lawsuit against the United States of America in federal court under the Federal Tort Claims Act for damages based on the negligence of defendant Miller. The federal district court suit was tried first and the court found as a factual determination that there was no negligence or medical malpractice on the part of defendant Miller, and the judgment of the federal district court became final prior to the hearing of the present motion for summary judgment. The defendants in this action filed motions for summary judgment asserting that the plaintiff was bound by res judicata, collateral estoppel, or estoppel by judgment of the previous judgment of the federal court and, therefore, they were entitled to a summary judgment in this suit. The trial court granted said motion as to both of these defendants and plaintiff has perfected an appeal to this Court.

The plaintiff, by his first eight points of error, attacked the summary judgment on the ground that the doctrine of collateral estoppel is not applicable in this case because the defendants were not parties or in privity with a party to the earlier litigation.

The defendants in this suit were not parties to the prior suit and under the Federal Tort Claims Act could not be made parties to the prior suit. The question to be determined is whether defendants may assert the doctrine of collateral estoppel in this subsequent independent suit brought by the same plaintiff when they were not parties to the prior suit. We hold that under the facts of this case there is no requirement of mutuality and that plaintiff is estopped in this suit to assert the negligence of defendant Miller. Hardy v. Fleming, 553 S.W.2d 790 (Tex.Civ.App.—El Paso 1977, writ ref’d n.r.e.); B. R. DeWitt, Inc. v. Hall, 19 N.Y.2d 141, 278 N.Y.S.2d 596, 225 N.E.2d 195 (N.Y. Ct. of App. 1967), 31 A.L.R.3rd 1035 (1970).

In Hardy v. Fleming, Justice Ward of the El Paso Court of Civil Appeals held in a very clear and convincing opinion that the lack of mutuality would not prevent a prior judgment as a bar to questions actually litigated and determined in the previous action. In Hardy v. Fleming, the plaintiff suffered an apparent heart attack and sued the defendant doctor for medical malpractice. Prior to the trial of the malpractice suit, the plaintiff had lost a workmen’s compensation suit which was based on the same heart attack which he claims was caused by the doctor’s negligence. On the trial of the workmen’s compensation case, the jury found that the plaintiff did not sustain a heart attack on the date in question and, based on that finding, judgment was entered that Hardy take nothing from the insurance company. On motion for summary judgment on the malpractice case, the trial court sustained the doctor’s plea of collateral estoppel and Hardy appealed to the El Paso Court of Civil Appeals. The Court of Civil Appeals affirmed the trial court and stated at page 792:

The Plaintiff, Karl Hardy, the one against whom the plea of collateral estop-pel is asserted, was the party Plaintiff to the prior adjudication and he lost on his claim that he sustained a heart attack on September 12, 1971. No useful public policy is served by permitting him to re-litigate that identical issue in the present suit. . . . Dr. Fleming, the one now asserting the plea, was not a party or in privity with a party to the prior litigation. There is no compelling reason that such be required and, in this fact situation, no satisfactory reason for any requirement of mutuality. . . . The Plaintiff’s first point is overruled.

We hold that the trial court correctly granted the summary judgment in favor of Dr. Miller, but we must reverse the trial court as to Dr. Story. Dr. Story’s negligence was not at issue in the prior suit and in this suit he has been sued individually for his own acts of negligence arising out of the surgery performed on plaintiff. Any liability of defendant Story that is derivative of defendant Miller’s negligence would also be prohibited by the doctrine of collateral es-toppel but defendant Story does not contend that the summary judgment proof es-. tablishes as a matter of law that there was no genuine issue of fact as to one or more of the essential elements of plaintiff’s cause of action against him.

Plaintiff’s last point of error is to the effect that his constitutional right to a jury trial cannot be satisfied by a nonjury trial involving the same issues in the United States District Court. We disagree. When the plaintiff filed his lawsuit and insisted on trying it in the federal court, he did so knowing that he had no right to a jury trial under the Federal Tort Claims Act. The constitutional right to a trial by jury is not an absolute right but is a right that is available to litigants should they choose to exercise it, and not available to litigants if they should waive or give it up. Plaintiff chose the forum of the first litigation, and the fact that he was not entitled to a jury trial should not mitigate the effect of that judgment and destroy the plea of collateral estoppel.

The judgment of the trial court is reversed and remanded for a trial on the merits as to Dr. Story. And the judgment of the trial court is affirmed as to Dr. Miller.

Costs of this appeal are taxed one-half against defendant Story, and one-half against plaintiff.

      . 28 U.S.C. § 1346 (1976).


source: Caselaw Access Project

author: KEITH, Justice.

license: Public Domain

text:
    Lawrence BELLATTI, Appellant, v. Mary Ann Abbott BELLATTI, Appellee.
    No. 8020.
    Court of Civil Appeals of Texas, Beaumont.
    March 16, 1978.
    Paul R. Lawrence, Houston, for appellant.

      L. A. Greene, Jr., Houston, for appellee.
   KEITH, Justice.

Our opinion handed down on February 16,1978, is now withdrawn and this opinion substituted in lieu thereof.

Pursuant to instructions from the Supreme Court of Texas, we set aside our earlier order dismissing the appeal and now consider appellee’s motion for imposition of penalty under Tex.R.Civ.P. 438, for the prosecution of a frivolous appeal.

Appellant sought a no-fault divorce, Tex. Family Code Ann. § 3.01 (1975), and the trial court granted such a divorce in a consent decree which incorporated a settlement agreement partitioning the community estate of the parties. Appellant agreed and was ordered to pay contractual alimony at the rate of $575.00 per month beginning April 30, 1977, payable on the fifteenth and thirtieth days of each month.

The contract provided that such payments would cease on occurrence of any one of the following: “On the expiration of Forty-four (44) months or upon death of Wife or Remarriage of Wife.”

The decree was entered on April 18,1977, and was approved as to form and substance by the parties and their counsel. The lengthy property settlement agreement which was incorporated by reference into the decree was also signed by the parties and their counsel and attached to the decree.

On the twenty-ninth day thereafter, the appellant/husband filed a single-page “Amended Motion to Set Aside Decree” wherein he made conclusory allegations that the agreement attached to the decree was “unfair and unequitable [sic].” He alleged that he was overwrought and in a highly emotional state which prevented him from fully presenting his defense.

Our record does not disclose any formal action on the part of the court upon such motion but does show the filing of an appeal bond on May 18,1977. No evidence on the motion has been brought forward for review.

The transcript was filed in the Court of Civil Appeals for the Fourteenth District on May 19, 1977, and transferred to this court by order of the Supreme Court of Texas. We granted, inadvertently and through error, appellant’s motion to dismiss the appeal by an order entered on June 7, 1977.

Appellee’s motion to assess the penalty for a frivolous appeal is now before us with appellee praying for the assessment of a penalty of $2,530.00 — ten percent of the gross amount of the contractual alimony payments which have accrued and will accrue until December 30, 1980.

Although we invited appellant to file a brief in opposition to appellee’s motion for assessment of the penalty, we have not been favored with a reply or a brief. We accept, therefore, the statements contained in the brief filed by the ap-pellee/wife. We agree with the wife and now find that the appeal was frivolous and that she is entitled to recover a penalty under Tex.R.Civ.P. 438.

However, we do not agree that she is entitled to a penalty upon the installment payments to accrue in the future. She may die or remarry long before the end of 1980 and not be entitled to the monthly payments which remain unpaid upon the happening of such event. On the other hand, our record does not show with any degree of certainty whether the husband is presently in default in any of the payments due under the decree and the contract. As best we can determine, the wife’s contention is that expressed in her brief filed in this court wherein counsel states:

“Husband, therefore, prevented the judgment from becoming final for a period of forty-nine (49) days beyond the thirty (30) days required for finality in the trial court.”

Upon the basis of this factual statement, counsel seeks the imposition of a penalty in the sum of $2,530.00. Although it is apparent that the appellant/husband did in fact perfect a frivolous appeal and has “trifled” with the court in such manner as to subject himself to the imposition of the penalty provided in the cited rule, the suggested amount of the penalty appears to be excessive.

We readily admit that there are no adequate precedents to govern our action in this cause; but, weighing the gravity of the transgression against the damage, if any, sustained by the appellee, we are of the opinion that a penalty of One Thousand Dollars ($1,000.00) would be an adequate and proper penalty to impose upon the appellant/husband.

Accordingly, under the provisions of Tex. R.Civ.P. 438, we hereby impose a penalty of One Thousand Dollars ($1,000.00) upon the appellant Lawrence Bellatti and direct that our Clerk enter judgment for such sum and issue the mandate of this court thereon when such judgment becomes final. All costs are adjudged against the said Lawrence Bellatti.

The appeal of the husband/appellant is now dismissed but subject to the penalty and judgment herein assessed, and all costs are adjudged against the appellant.

It is so ordered.


author: McKAY, Justice.

text:
    Irene J. GRIFFITH et al., Appellants, v. Rita C. CHRISTIAN et al., Appellees.
    No. 1111.
    Court of Civil Appeals of Texas, Tyler.
    March 16, 1978.
    John T. McCully, Gordon H. Rowe, Jr., Gardere, Porter & DeHay, Dallas, for appellants.
    Thomas R. Needham, Bean, Francis, Ford & Wills, Dallas, for appellees.
   McKAY, Justice.

This is a suit to determine the proper distribution of death benefits under the worker’s compensation law. Appellant, Irene J. Griffith, brought suit in both her individual capacity and as next friend of her children, Deborah Leigh Griffith and Jonathan Robert Griffith, to recover all the benefits due under the law to the exclusion of Tracey Yvonne Christian and Robert Allen Christian, minor children of the deceased worker, Robert Griffith, by a prior marriage. The trial court granted appel-lee’s motion for summary judgment awarding Tracey Christian and Robert Christian equal shares in the benefits with Deborah Griffith and Jonathan Griffith.

The facts are undisputed. At the time of his death, Robert Griffith was married to Irene J. Griffith. By this marriage, he had two children, Deborah Leigh Griffith and Jonathan Robert Griffith. The deceased was also the father of two children by a prior marriage, Tracey Yvonne Christian and Robert Allen Christian. Both of these children were adopted by their stepfather, Michael Lynn Christian, prior to the death of their natural father.

This appeal is limited to that portion of the trial court’s judgment awarding benefits to Tracey Christian and Robert Christian. Accordingly, the sole question we have before us is whether the children of Robert Griffith by his first marriage, Tracey Yvonne Christian and Robert Allen Christian, are entitled to share in the benefits under the worker’s compensation act.

Appellants contend that the children of the first marriage, having been adopted prior to the death of Robert Griffith, were no longer the children of the deceased as contemplated by the Legislature in Art. 8306, sec. 8a, V.A.T.S. Appellants maintain that the children did not qualify because of the definition given the term “minor children” by the Supreme Court in its decision in Patton v. Shamburger, 431 S.W.2d 506 (1968). We agree with this contention.

The Patton ease involved a controversy between the parents of the deceased employee and the employee’s natural children who had been adopted by another prior to their natural father’s death.

The court recognized that Article 46a, sec. 9, V.A.T.S., provided that children adopted by another shall nevertheless inherit from their natural parents. The court then stated, “[RJights to workmen’s compensation benefits are not obtained through inheritance but are conferred by statute. Hence the portions of the adoption statute relating to inheritance are not applicable.” In holding that the adopted children were not entitled to the compensation benefits, the court stated,

“Upon legal adoption, the family relationship between the natural parent and the adopted children cease and determine. Our holding is that they are no longer ‘minor children’ of the natural father under the workmen’s compensation statute but are the minor children of the adoptive father and his wife, the natural mother of the children.”

The court’s holding was subsequently followed in Zanella v. Superior Insurance Co., 443 S.W.2d 95 (Tex.Civ.App.—Eastland 1969, writ ref’d), and Banegas v. Holmquist, 535 S.W.2d 410 (Tex.Civ.App.—El Paso 1976, no writ). Both of these cases held that a parent or parents should receive the benefits to the exclusion of the deceased’s natural children who had been adopted by another prior to their father’s death.

Appellee contends that Dickerson v. Texas Employers’ Insurance Ass’n, 451 S.W.2d 794 (Tex.Civ.App.—Dallas 1970, no writ), is controlling here. We disagree.

In Dickerson one of the deceased’s children had been adopted, the others had not. The court held that to exclude the adopted child from the benefits shared by the other four was a denial of equal protection of the law under the Fourteenth Amendment of the United States Constitution. The Dallas court based its decision on Levy v. Louisiana which held unconstitutional the exclusion of illegitimate children from recovery under the Louisiana wrongful death statute. 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968).

Notwithstanding the Dickerson decision, in our opinion there exists a distinction between the respective situations of the illegitimate child and the adopted child. The illegitimate child is deprived of any recovery from any source; he has no other place to turn for a recovery of benefits, while the adopted child simply changes parents; he loses the right to recover from his natural parent, but he is given the right to recover from the adoptive parent. Banegas v. Holmquist, supra at 412.

Nor do we believe the different fact situation in Dickerson, as opposed to Patton, to be a valid distinction for the rule of law announced in Dickerson. While the Dallas court states the Patton definition of a “minor child” to be the correct one, it nonetheless pronounces its own new definition. In our opinion the court in Dickerson improperly followed a constitutional contention which led it into an erroneous holding and an untenable position, i. e., an unadopted child would prevail over the deceased worker’s parents, and the deceased’s parents would prevail over adopted children, but the unadopted and the adopted children would have to share such benefits equally.

Accordingly, we hold that the adopted children are not “minor children” within the meaning of Art. 8806, sec. 8a, V.A.T.S., and are not entitled to share in the benefits. Appellants’ points of error are sustained.

Therefore, that portion of the trial court’s judgment awarding benefits to Tracey Yvonne Christian and Robert Allen Christian is reversed, and judgment is here rendered for appellants.


author: DUNAGAN, Chief Justice.

text:
    William Wiley GEORGE, Appellant, v. Dianne Hardin GEORGE, Appellee.
    No. 1114.
    Court of Civil Appeals of Texas, Tyler.
    March 16, 1978.

      Charles M. Wilson, III, Carter, Jones, Ma-gee, Rudberg, Moss & Mayes, Dallas, for appellant.
    Louis J. Weber, Jr., Weber, Baker, Al-lums & Lang, Dallas, for appellee.
   DUNAGAN, Chief Justice.

The appellee, Dianne Hardin George, filed suit for divorce on August 13, 1976, in the Domestic Relations Court No. 3 of Dallas County, Texas, against the appellant, William Wiley George. On January 3,1977, the Domestic Relations Court No. 3 mailed written notice of the court’s intention to dismiss the cause for want of prosecution. Three days later the case was dismissed for want of prosecution. No notice of the dismissal was received by the appellant until February 3. The attorneys for both parties continued to correspond even after the case was dismissed for want of prosecution, but the appellee’s attorney never mentioned that the case had been dismissed. From the time that the cause was originally filed until it was dismissed for want of prosecution, the appellant was never served with process nor did he file an answer or cross-action or any other pleading in the papers of the cause.

On January 12, 1977, the appellee refiled the divorce action in the Domestic Relations Court No. 4 of Dallas County, Texas. The case involved the same parties and the same issues.

As we have previously stated, the appellant found out on February 3,1977, that the case had been dismissed for want of prosecution in the Domestic Relations Court No. 3 and had been refiled in the Domestic Relations Court No. 4. On February 4, 1977, the appellant filed his motion to set aside the order of dismissal for want of prosecution in the Domestic Relations Court No. 3, which motion was sustained and the cause ordered reinstated as of that date. The appellee was not given any notice of this motion or of the hearing thereon.

On February 16,1977, the appellee filed a plea in abatement requesting that the trial court dismiss the divorce action that had been reinstated in the Domestic Relations Court No. 3 because the cause of action was already pending as of that time in the Domestic Relations Court No. 4 and that the appellant had never filed an answer or been served with process in the suit filed in the Domestic Relations Court No. 3 and was not entitled to reinstatement. This plea in abatement was sustained.

The sole point of error states that the trial court erred in granting this plea in abatement.

The case filed in the Domestic Relations Court No. 3 was dismissed for want of prosecution pursuant to Rule 165a of the Texas Rules of Civil Procedure. This rule states that “A case may be dismissed for want of prosecution on failure of any party seeking affirmative relief or his attorney to appear for any hearing or trial of which he had notice, or on failure of such party or his attorney to request a hearing, or take some other action specified by the court, within fifteen days after the mailing of notices of the court’s intention to dismiss the case for want of prosecution.” The second paragraph of Rule 165a states that “Within thirty days after the signing of the order of dismissal, the court shall reinstate the case upon finding, after hearing, that the failure of the party or his attorney was not intentional or the result of conscious indifference but was due to an accident or mistake.” (Emphasis ours.)

In our opinion, the language in the second paragraph of Rule 165a referring to “the party or his attorney” means the same party set out in the first paragraph, i. e. the party seeking affirmative relief. The rule contemplates that the party seeking to prosecute the action should be the one to seek to have the action reinstated after it has been dismissed for want of prosecution. The language is consistent with prior holdings in this state where a dismissal for want of prosecution has been equated to a voluntary dismissal. Moody & Tips Lumber Co. v. South Dallas Bank & Trust Company, 246 S.W.2d 263 (Tex.Civ.App. — Dallas 1952, err. dism’d). A voluntary dismissal is improper if a defendant is seeking affirmative relief and the dismissal would prejudice the defendant’s right to be heard on his claim for affirmative relief. Rule 96, Tex.R.Civ.P.; see State v. Stanolind Oil & Gas Co., 190 S.W.2d 510 (Tex.Civ. App.1945, err ref’d); Graham v. Seale, 221 S.W.2d 353 (Tex.Civ.App. — San Antonio 1949, n. w. h.). If a suit is voluntarily dismissed, however, the defendant cannot reinstate the ease without the consent of the plaintiff when the plaintiff, in the exercise of an absolute right, has voluntarily dismissed his suit prior to the defendant’s filing a plea for affirmative relief. 20 Tex. Jur.2d Dismissal, sec. 43, pp. 231, 233. Applying the principles of these cases dealing with voluntary dismissals to our case concerning an involuntary dismissal, it is apparent that the appellant could not prevent this dismissal since he was seeking no affirmative relief. Therefore, the case should not have been reinstated upon his motion.

We feel that the case of Turman v. Turman, 46 S.W.2d 447, 449 (Tex.Civ.App.— Texarkana 1932) is instructive in the instant case although the facts in Turman differ materially from the facts presented here. In Turman the case was voluntarily dismissed upon the plaintiff’s motion when it appeared that a reconciliation could be reached between the parties. The reconciliation did not materialize and the plaintiff had the cause reinstated. The court held this reinstatement was proper stating that “ . . . the way is open to the plaintiff to bring a new action or to proceed to have the dismissal order vacated upon timely showing of sufficient grounds or good cause therefor.” (Emphasis ours.) In our case, the defendant rather than the plaintiff obtained a reinstatement of the case.

A dismissed suit after reinstatement stands upon the docket as if it had never been dismissed. Dunbar v. Dunbar, 233 S.W.2d 358, 360 (Tex.Civ.App. — San Antonio 1950, mand. overruled); Mitchell v. Mitchell, 84 Tex. 303, 19 S.W. 477 (1892). The appellant did not have an answer on file nor had he been served with process in the proceeding. Therefore, the only thing reinstated was appellee’s cause of action. In our opinion, it was improper to allow the appellant to reinstate this cause of action after it had been dismissed for want of prosecution. Rule 165a does not authorize a party seeking no affirmative relief to have a case reinstated after it has been dismissed for want of prosecution.

There is an additional reason why this case should not have been reinstated upon the appellant’s motion in the Domestic Relations Court No. 3. Rule 165a, Tex.R. Civ.P., requires that a motion to reinstate be verified by the movant or his attorney. Matter of Marriage of Parr, 543 S.W.2d 433, 437 (Tex.Civ.App. — Corpus Christi 1976, n. w. h.); Berry v. Riley, 551 S.W.2d 74 (Tex. Civ.App. — Houston [1st Dist.] 1977, writ ref’d n. r. e.). The motion to reinstate filed by the appellant was not verified as the rule requires.

The appellee contested the reinstatement of the case in the Domestic Relations Court No. 3 by filing a plea in abatement. When the plea in abatement was sustained it resulted in a dismissal of the case in the Domestic Relations Court No. 3, effectively the same result as if the case had never been reinstated in the Domestic Relations Court No. 3. We believe the correct result has been reached by the trial court’s action. Accordingly, appellant’s point of error is overruled.

Judgment of the trial court is affirmed.


author: SPURLOCK, Justice.

text:
    Henry R. PEARSON, Trustee, Appellant, v. The FORT WORTH NATIONAL BANK, Trustee, and J. C. Penney Co., Inc., Appellees.
    No. 17984.
    Court of Civil Appeals of Texas, Fort Worth.
    March 16, 1978.
    Rehearing Denied April 20, 1978.
    Meyers, Miller & Middleton and John R. Henderson and David White, Dallas, for appellant.
    Garrett, Stahala & Boswell, Robert F. Stahala, Fort Worth, for appellee Fort Worth Nat. Bank, Trustee.
    McGown, Godfrey, Decker, McMackin, Shipman & MeClane and Richard L. Bour-land, Fort Worth, for appellee J. C. Penney Co., Inc.
   OPINION

SPURLOCK, Justice.

Appellant Henry R. Pearson, Trustee, has appealed from an order of the district court granting summary judgment in favor of the Fort Worth National Bank, Trustee, and J. C. Penney Co., Inc., and denying his motion for summary judgment. For clarity, the parties will be referred to as “Pearson”, “Bank”, and “Penney”.

We affirm the judgment of the trial court.

By his original petition, Pearson sought a declaratory judgment declaring that a “residential use only restriction” contained in a deed of January 30, 1969, between Bank and I. C. Deal (Pearson’s predecessor in title) was null and void and had been void since its inception by reason of certain City of Fort Worth zoning ordinances. The land involved is located adjacent to Ridgmar Mall, which is on the west side of Fort Worth.

Ordinance 3011, the Comprehensive Zoning Ordinance, effective March 1, 1953, set forth certain use regulations in § 14, which provided in part:

“In the ‘J’ Light Industrial District, no building or land shall be used, and no building shall be hereafter erected, reconstructed, altered, or enlarged, unless otherwise provided in this ordinance, except for one or more of the following uses:
“1. Any use permitted in the T Light Industrial District. Dwellings are excluded, except that a dwelling can be erected on a Lot of Record, which was recorded prior to the adoption of this ordinance.” (Emphasis added.)

By Ordinance 6439, effective March 1, 1971, § 14(1) of Ordinance 3011 was amended to read as follows:

“1. Any uses permitted in the T Light Industrial District except that a/7 dwellings are excluded and no mobile home park shall be permitted.” (Emphasis added.)

Pearson acquired the property by deed dated December 27, 1973. At the time of the acquisition, he was aware that a certain portion of the property was zoned “J” Light Industrial. Also, he was aware at the time of the acquisition that a “residential only restriction” (for a total term of twenty-five years) was contained in the January 30, 1969, deed from Bank to I. C. Deal, which was in his chain of title.

By this suit, Pearson seeks to have the deed restriction declared null and void. He does not seek to have the conveyance (whereby he acquired title) set aside. He argues that the combined effect of the city ordinance and the deed restriction will amount to a prohibition of the use of the property for the remaining term of the deed restriction; i. e., some sixteen years.

We are thus faced with a situation where a purchaser bought a piece of property with full knowledge of (1) the zoning applicable to the property and (2) of the twenty-five year deed restriction found in his chain of title.

For the purpose of this opinion, we shall assume (without deciding) that Pearson is correct in his contention that the combined effect of the ordinances and the deed restrictions will'prevent use of this property for the remaining sixteen years of the original twenty-five year deed restriction.

Restrictions which amount to a prohibition of use of the property granted are void. 7 Thompson on Real Property § 3161 at 116 (1962); Baker v. Henderson, 137 Tex. 266, 153 S.W.2d 465, 471 (Tex. Comm’n App. — 1941, opinion adopted). In the case at bar, the deed restriction was only for twenty-five years. Thus, the deed restriction, being reasonably limited in time, does not amount to a prohibition of the use of the land. If anything, it is the city ordinance that might result in the prohibition of the use of the land for the next sixteen years. Pearson has not tried to get the property re-zoned, nor has he tried to obtain a building permit from the City of Fort Worth for residential construction.

In Spencer v. Maverick, 146 S.W.2d 819 (Tex.Civ.App. — San Antonio 1941, no writ), the court wrote:

“(T)he rule is that a purchaser is not only charged with notice of the contents of deeds in his chain of title but, if the same contain anything that would put a prudent man upon inquiry, he is chargeable with notice of whatever an inquiry would reveal. . . . ” Id. at 823. (Emphasis added.)

The Spencer case, supra, also quoted with approval the following language from an Iowa case:

“(W)here private restrictive covenants have been placed upon lots or land by agreement of parties, they are controlling, and city zoning ordinances cannot override or destroy such private restrictive covenants.” Id. at 825.

Pearson was aware of the deed restrictions in his chain of title and the zoning ordinances affecting the property; however, with full knowledge of the facts, he decided to buy the property and attempt to have the deed restriction declared null and void. We hold that the deed restriction, being reasonable in time, is valid. Both of Pearson’s points of error are overruled.

The judgment of the trial court is affirmed.

      . All ordinances are of the City of Fort Worth.


author: DIES, Chief Justice.

text:
    Anthony C. CORMIER, Appellant, v. TEXAS EMPLOYERS INSURANCE ASSOCIATION et al., Appellees.
    No. 8080.
    Court of Civil Appeals of Texas, Beaumont.
    March 23, 1978.
    Rehearing Denied April 13, 1978.

      Michael S. Petit, Beaumont, for appellant.
    James S. Fuller, Port Arthur, H. P. Wright, Port Neches, for appellees.
   DIES, Chief Justice.

This a Workers’ Compensation Case wherein plaintiff below, Anthony C. Cormier, sought benefits for injuries sustained while fighting a fire. He was a volunteer fireman for the City of Port Neches.

The award of the Industrial Accident Board was issued on February 9, 1976. On February 25, plaintiff filed his original petition to set aside the award, alleging that Texas Employers’ Insurance Association (TEIA) covered the City of Port Neches’ employees with a policy of Workers’ Compensation Insurance. TEIA filed its un-sworn denial on March 17, 1976.

On June 7, 1976, plaintiff by amended petition joined the City of Port Neches as a defendant, alleging alternatively that City was a self-insurer. On July 25, 1977, City by sworn pleading denied coverage by TEIA and stated that it (City) was a self-insurer under the Texas Municipal League.

On August 31, 1977, after a jury trial favorable to plaintiff, the trial court granted judgment non obstante veredicto for the City and the TEIA, from which plaintiff brings this appeal.

To sustain a judgment non obstan-te veredicto there must be no evidence to sustain the jury’s finding, and we consider all the testimony in the light most favorable to the party against whom the judgment was given. Douglass v. Panama, Inc., 504 S.W.2d 776 (Tex.1974); Eastep v. Jack-in-the-Box, Inc., 546 S.W.2d 116 (Tex.Civ.App. — Houston [14th Dist.] 1977, writ ref’d n. r. e.).

As to the City of Port Neches, plaintiff did not comply with Tex.Rev.Civ.Stat.Ann. art. 8307 § 5 (Supp.1978) requiring that notice of intention to appeal from the Board’s award must be given within twenty (20) days of the date of the award, and that suit must be filed in a court of competent jurisdiction within twenty (20) days after the date of the notice of intention to appeal. Compliance with this statutory requirement is mandatory and jurisdictional. Richards v. Consolidated Underwriters, 411 S.W.2d 436 (Tex.Civ.App. — Beaumont 1967, writ ref’d); Garcia v. Employers Casualty Co., 519 S.W.2d 685 (Tex.Civ.App. — Amarillo 1975, writ ref’d n. r. e.).

Plaintiff urges that Continental Southern Lines, Inc. v. Hilland, 528 S.W.2d 828 (Tex.1975); Price v. Estate of Anderson, 522 S.W.2d 690 (Tex.1975); and Sanchez v. Aetna Casualty & Surety Co., 543 S.W.2d 888 (Tex.Civ.App. — San Antonio 1976, writ ref’d n. r. e.), control in our situation and relieve him from the time limits set forth in the statute.

In Continental Southern Lines, Inc., supra, plaintiff was injured while departing from a bus. Both the bus and the bus station were marked with the identification “Continental Trailways.” Plaintiff sued “Continental Trailways,” a corporation existing for advertising purposes. “Continental Trailways” was a trade name used by many separate bus companies.

The bus plaintiff alighted from was owned by Continental Southern Lines, Inc., which was brought into the lawsuit over two years after the incident occurred. The evidence showed the original suit papers were forwarded by the agent for service of Continental Trailways, Inc., to the proper defendant (Continental Southern Lines, Inc.) and that the initial accident report by the bus driver was made to the proper defendant.

The court said, “ . . . it is apparent that they [the bus companies] have made a conscious effort to make it appear to the public and to their customers that they are ‘Continental Trailways.’ ” (at 880)

The court then remanded the case for a new trial [citing Scott v. Liebman, 404 S.W.2d 288 (Tex.1966)] so plaintiff could have the opportunity “ . . .to prove that the Continental Southern Lines, Inc., was cognizant of the facts, was not misled, or placed at a disadvantage in obtaining relevant evidence to defend the suit.” (at 831) The court did not overrule Stokes v. Beaumont, Sour Lake & Western Ry., 161 Tex. 240, 339 S.W.2d 877 (1960), holding that the institution of a suit against one corporation will not interrupt the running of the limitation period as to a different corporation or entity.

In Price v. Estate of Anderson, supra, defendant named in the original petition was “The Estate of Welton Terry Anderson.” After limitation had run, the temporary administrator (who had been served) raised the issue that he was the necessary and proper party defendant. The court failed to apply the two-year statute of limitation saying, “The original petition in the present case was filed within the period of limitation, and citation was served promptly on respondent, the person who should have been named as defendant. The purpose of the suit and the nature of the claim asserted were clear from the outset, and respondent answered for the ‘estate’ and participated in all proceedings affecting the case.” (at 692)

In Sanchez v. Aetna Casualty & Surety Company, supra, a Workers’ Compensation case, the proceedings before the Board referred to the carrier as “Aetna Casualty & Surety Company.” In a suit to set aside the Board’s award, plaintiff was named as “Aetna Life and Casualty Company” (parent company of Aetna Casualty & Surety Co.). The court refused to disallow the appeal on the basis of the twenty-day rule as required by Tex.Rev.Civ.Stat.Ann. art. 8307 § 5 (Supp.1978).

We believe these cases are distinguishable from the case at bar. In each of them the true party knew that a lawsuit had been filed. We have no evidence here that the City knew anything about the award of the Board being appealed until it was made a party to the suit some five months later. TEIA and the City have no connection, such as we find in Continental Southern, Price, or Sanchez. There is no reason not to apply the Rule in Stokes v. Beaumont, Sour Lake & Western Ry., supra, and the plain directive of Tex.Rev.Civ.Stat.Ann. art. 8307 § 5 (Supp.1978).

As to TEIA, plaintiff argues that its failure to file a verified denial of coverage as required by Tex.R.Civ.P. 93(n)(6) failed to put coverage in issue and presumed it to be true. Denial under this section of the Rule can be an amended pleading if the same be filed not less than seven days before the case proceeds to trial.

This requirement of verification is intended to result in a wholesome deterrence with respect to replies that are normally unfounded. See Stayton, “The Scope and Function of Pleading Under the New Federal and Texas Rules: A Comparison,” 20 Texas L.Rev. 16 (1941) (partly reported in Yol. 1, Vernon’s Texas Rules Ann. at 486).

It is true, as plaintiff argues, that at no time did TEIA file a verified answer denying coverage.

However, long before seven days prior to the trial TEIA filed a motion for summary judgment to which was attached two affidavits. One was by the City Manager of Port Neches which denied coverage by TEIA and explained it was a self-insurer. The other affidavit was by TEIA’s District Claims Manager which also denied any coverage of the employees of the City of Port Neches. And the City on July 25, 1977, did file a verified denial of coverage of its employees by TEIA.

So, certainly when this case proceeded to trial, plaintiff was well aware of the true facts concerning coverage.

In its letter of transmittal of the Rules to the Supreme Court by the Advisory Committee, the committee wrote:

“Undoubtedly the vast majority of the trial and intermediate appellate judges of Texas anticipate the opportunity to interpret a new set of rules liberally to expedite the disposition of business and to decrease the number of technical reversals.” (The entire letter is reported in Vol. 1 Vernon’s Texas Rules Ann. at XXXIX; this sentence is found on XLII.)

Rule 1 requires a liberal construction of the Rules. To follow plaintiff’s argument would be to place form over substance, method over function, and give plaintiff a vested right in a procedural error. We decline to do this.

All of plaintiff’s (appellant’s) points of error are overruled, and the judgment of the trial court is affirmed.

AFFIRMED.

CLAYTON, J., not participating.


author: MOORE, Justice.

text:
    Robert J. MORRIS, Appellant, v. JORDAN FINANCIAL CORPORATION, Appellee.
    No. 1107.
    Court of Civil Appeals of Texas, Tyler.
    March 23, 1978.
    Rehearing Denied April 20, 1978.

      A. Hardcastle, Jr., Geary, Stahl, Koons, Rohde & Spencer, Dallas, for appellant.
    David P. Seikel, Hewett, Johnson, Swanson & Barbee, Dallas, for appellee.
   MOORE, Justice.

This is a suit to recover on a promissory note executed in payment of a brokerage commission. Plaintiff, Jordan Financial Corporation, brought suit to recover on a promissory note executed by defendant, Robert Morris, in payment of a brokerage fee as provided for in a contract executed by the parties. Morris denied liability on the ground that the condition precedent to his obligation to pay on the note, as set forth in the contract and the promissory note in question, had not occurred. Morris also counterclaimed, alleging that Jordan Financial tortiously interfered with his business relations with Alex Kallay, the ultimate purchaser under the contract, and North Dallas Bank & Trust Co., the escrow agent.

Trial was had before the court without a jury. The trial court awarded judgment for plaintiff in the face amount of the promissory note and denied defendant recovery on his counterclaim. The trial judge found, inter alia, that the condition precedent to defendant’s obligation to pay the brokerage commission effectively occurred, but that, if it did not literally occur, plaintiff as broker was nevertheless entitled to recover the commission due him under the contract. Defendant duly perfected this appeal.

We affirm.

The facts are not in dispute. Plaintiff, Jordan Financial, entered into a contract of purchase and sale with defendant, Robert Morris, for the purchase of 396 acres of land in Collin County, Texas, for and in consideration of $1,667,150. Jordan Financial agreed to execute a promissory note to Morris in that amount and agreed to make an interest payment on the note in the amount of $120,868.37 on December 31, 1974. The contract between the parties provided that Jordan Financial was to be paid a 6% realtor’s commission; however, the contract contained a special condition that the payment of such commission was “contingent” on Morris’s receiving the interest payment due on the note on December 31, 1974. Subsequently, Jordan Financial’s contract of purchase and sale was assigned to Alex Kallay, who purchased the land under the terms of the contract. Kallay executed a promissory note (the “Original Note”) to Morris in the amount of $1,667,150 with interest, in accordance with the contract of purchase and sale. Under the terms of the contract and the promissory note Kallay was obligated to make an interest payment to Morris on December 31, 1974, in the amount of $120,868.37.

After Kallay purchased the land, Morris executed and delivered to Jordan Financial a promissory note (the “Commission Note”) in part payment of the brokerage fee as provided for in the contract. The note, which is the basis of the present suit, is in the amount of $50,164.49 and represents one-half of the commission due Jordan Financial under the terms of the contract of purchase and sale. The note recites as follows:

“This note is payable as follows:

On or before December 31, 1974, it being understood and agreed the maker hereof shall have no liability with respect to the payment of this note unless and until said maker shall have received the installment of interest due and payable on that certain promissory note of even date herewith executed by Alex L. Kal-lay, Trustee, and payable to the order of Robert Morris, in the original principal sum of $1,667,150.”

Before the interest payment came due under the $1,667,150 note, Kallay notified Morris that he intended to default on the note. As a result, the parties executed on December 17, 1974, a Modification Agreement whereby Morris and Kallay agreed to amend the Original Note by reducing the principal amount to $1,180,431 and altering the payment terms. Jordan Financial was not a party to, nor did it consent to, the Modification Agreement.

Pursuant to the Modification Agreement, Kallay executed and delivered to Morris a promissory note (the “Modified Note”) in the principal amount of $1,180,431, with interest payable beginning December 31, 1974. The Original Note was returned by Morris to Kallay. Under the terms of the Modified Note Kallay was obligated to pay, on December 31,1974, the sum of $82,823 in interest and the sum of $38,045 on the principal, totaling $120,868, which amount is only 37<t less than the amount due under the terms of the Original Note. Kallay made this aggregate payment of interest and principal on the due date, and such amount was deposited in escrow to North Dallas Bank & Trust Co.

Under his points of error nos. one and two defendant, Morris, contends that there is no evidence, or insufficient evidence, to support the trial court’s finding that the condition precedent contemplated by the contract and the Commission Note had occurred. He argues that the aggregate payment of interest and principal received by him under the Modified Note did not satisfy the condition precedent to his obligation to pay the brokerage fee as specified in the contract and the Commission Note. He takes the position that under the provisions of both the contract of purchase and sale and the Commission Note his obligation for payment of the brokerage fee was conditioned on his receipt of the amount of interest due under the original $1,667,150 note executed by Kallay, i. e., that the condition could only have been satisfied when payment was made exclusively under the terms of the Original Note. Hence he maintains that since the funds received by him on December 31, 1974, represented payment under the terms of the Modified Note rather than the Original Note, and that the amount so paid was an aggregate figure of interest plus principal rather than interest only, the condition precedent specified in the contract and the Commission Note was not effectively satisfied. We cannot agree with this proposition.

The language of the condition precedent as expressed in the contract of sale and the Commission Note is clear and unambiguous. Defendant was to have no liability on the Commission Note unless and until he received the first payment on the Original Note on December 31,1974. The first payment on the Original Note executed by Kallay was measured by the amount of interest due on December 31, 1974, in the sum of $120,868.37. The agreement to pay the brokerage fee was thus conditioned on Morris’s having received $120,868.37 on December 31, 1974. The fact that such payment was measured by the amount of interest due on that date was of no real significance. The significant part of the agreement insofar as the brokerage fee was concerned was that the $120,868.37 payment be timely paid. The only fair and reasonable construction of the condition precedent as set out in the contract and the Commission Note was that if and when Morris received the sum of $120,868.37 on December 31, 1974, Jordan Financial would be entitled to its brokerage fee, regardless of whether such sum was denominated interest, principal, or both.

Although the Original Note executed by Kallay was later modified to reduce the principal and alter the payment terms, defendant nevertheless received on December 31,1974, pursuant to the terms of the Modified Note, the sum of $120,868, the same amount he would have received as interest under the Original Note, less 37$. The fact that such sum of money received by Morris represented payment under the terms of the Modified Note rather than the Original Note, and that the amount paid him was an aggregate of the interest plus principal rather than interest only, is irrelevant, since the obligation for the payment of the brokerage fee was conditioned on the receipt of the sum of $120,868.37, and not on the receipt of interest payment exclusively under the terms of the Original Note.

Significantly, defendant does not contend that the 37$ difference between the amount of money due under the Original Note and the amount actually received under the Modified Note prevented the condition precedent from occurring. Indeed, any such contention would be ruled out under the doctrine of de minimis non curat lex. See Thornhill v. Sharpstown Dodge Sales, Inc., 546 S.W.2d 151 (Tex.Civ.App. — Beaumont 1976, no writ). We therefore hold that the condition precedent to defendant’s liability for the brokerage fee effectively occurred when he received the payment of $120,868 on December 31, 1974, and as a result Morris on that date became liable on the Commission Note.

In any event we do not believe defendant can avoid responsibility for the payment of the brokerage fee simply by revising the terms of the sale procured by the broker without the broker’s consent. It is a general rule in this state that a broker’s right to a commission is not affected by the fact that the property is ultimately sold for a greater or lesser price. Moore v. Sussdorf, 421 S.W.2d 460 (Tex.Civ.App. — Tyler 1967, writ ref’d n. r. e.). See Air Conditioning, Inc. v. Harrison-Wilson-Pearson, 151 Tex. 635, 253 S.W.2d 422 (1952). A broker is entitled to his commission according to the contract if, while his employment is in force, he procures a purchaser to whom the owner directly makes a sale upon terms which are satisfactory to himself, though different from those limited to the broker. Frost v. Texas Gulf Sulphur Co., 17 S.W.2d 121 (Tex.Civ.App. — Beaumont 1929, writ ref’d). Furthermore, a broker cannot be deprived of his commission by an agreement of cancellation or release made by the seller and purchaser unless with the broker’s consent. Stitt v. Royal Park Fashions, Inc., 546 S.W.2d 924 (Tex.Civ.App. — Dallas 1977, writ ref’d n. r. e.); Miller v. Carlson, 390 S.W.2d 64 (Tex.Civ.App. — Texarkana 1965, writ ref’d n. r. e.). These rules of law would seem particularly applicable to the instant situation in which the seller and the buyer enter into a Modification Agreement whereby the terms of the original sale and promissory note are altered without the broker’s consent. To hold otherwise would mean that a landowner could deprive a broker of the fruits of his labor merely by changing the terms of the sale procured by the broker. The first and second points are accordingly overruled.

Finally, defendant complains of the action of the trial court in denying him recovery of damages on his counterclaim for tortious interference with his business relations with Alex Kallay and North Dallas Bank & Trust Co. As grounds for a cause of action defendant alleged that Jordan Financial: (1) threatened Kallay with litigation; (2) threatened the bank with litigation; (3) served a writ of garnishment on the bank in an attempt to impound the funds in the escrow account (though no funds were actually impounded); and (4) made Kallay a party to the present suit and falsely alleged in its original petition that Kallay acted with malice in entering the Modification Agreement. He further alleged that such threats of litigation against Kallay forced defendant to indemnify Kal-lay against a possible lawsuit in the amount of $2,664.45. Defendant contended at trial that such figure represented his actual damages, in that Kallay made a demand of him pursuant to the indemnification agreement for the payment of $2,664, the cost of Kallay’s attorneys’ fees for defending the action, later dismissed, against him.

It has long been held in Texas that interference with another’s business relations with a third party is actionable only if the interference is motivated by malice and no useful purpose of the inducing party is subserved. Delz v. Winfree, 80 Tex. 400, 16 S.W. 111 (1891); Davis v. Lewis, 487 S.W.2d 411 (Tex.Civ.App. — Amarillo 1972, no writ). Furthermore, one is privileged purposely to cause another not to perform a contract or enter into or continue a business relation with a third person by in good faith asserting or threatening to protect properly a legally protected interest of his own which he believes may otherwise be impaired or destroyed by the performance of the contract or transaction. Restatement of the Law of Torts, sec. 773. Along the same lines, one is privileged to interfere with a contract between others when he does so in the bona fide exercise of his own rights or when he possesses an equal or superior interest to that of the plaintiff in the subject matter. Hampton v. Sharp, 447 S.W.2d 754 (Tex.Civ.App. — Houston [1st Dist.] 1969, writ ref’d n. r. e.); Terry v. Zachry, 272 S.W.2d 157 (Tex.Civ.App. — San Antonio 1954, writ ref’d n. r. e.).

As we view the record there is no probative evidence that plaintiff acted with malice in any of its activities alleged by Morris. On the contrary, it appears that Jordan Financial, who had financial interests and legal rights under the contract of purchase and sale and the Commission Note, was merely acting to protect such interests and rights. In these circumstances, and especially in view of our holding that Jordan Financial had a viable cause of action, plaintiff cannot be said to have acted improperly merely by threatening litigation. See Tidal Western Oil Corp. v. Shackelford, 297 S.W. 279, 281 (Tex.Civ.App.— Fort Worth 1927, writ ref’d), wherein it is said that the assertion of a legal right affords no foundation for a recovery of damages. As to defendant’s contention that plaintiff’s allegations in its original petition, namely, that Kallay acted with malice in entering into the Modification Agreement, constitutes a malicious untruth on the part of plaintiff, it must be remembered that great latitude is given a pleader by the Texas Rules of Civil Procedure to allege evidentiary matters and matters of a legal conclusion. Rule 45, Tex.R.Civ.P. Thus, plaintiff’s threats of litigation, as well as the allegations in its petition with regard to Kallay do not, as a matter of law, establish malice, which is defined in its legal sense as characterizing an unlawful act done intentionally without just cause or excuse. Light v. Transport Insurance Co., 469 S.W.2d 433 (Tex.Civ.App. — Tyler 1971, writ ref’d n. r. e.). Nor can it be seriously contended that the writ of garnishment served on the bank was a malicious action, since such action was clearly taken for the purpose of protecting plaintiff’s interests. Morris therefore failed to prove a necessary element in his cause of action for tortious interference with his business relations, and the trial court did not err in rendering a take nothing judgment on defendant’s counterclaim. Accordingly, the third point is overruled.

Judgment affirmed.


author: WALTER, Justice.

text:
    Alice F. GUTIERREZ, a/n/f of Janet Gutierrez, Annette Gutierrez and Ruby Ann Gutierrez, Appellant, v. Maria O. MADERO a/k/a Mary O. Gutierrez Madero, Appellee.
    No. 5096.
    Court of Civil Appeals of Texas, Eastland.
    March 30, 1978.
    Rehearing Denied April 20, 1978.

      John J. Specia, Jr. and H. S. Prashner, Estrada, Ertel & Prashner, San Antonio, for appellant.
    Sam C. Bashara, San Antonio, for appel-lee.
   WALTER, Justice.

Alice Gutierrez, former wife of Rudolfo “Rudy” Gutierrez, as next friend of her minor children, Janet, Annette and Ruby Ann, filed suit against Mary 0. Gutierrez Madero, mother of Rudy Gutierrez, to impose a constructive trust upon the proceeds of American Capitol Life Insurance Company Policy No. 33-40669 written upon the life of Rudy Gutierrez, deceased. In the alternative, Alice Gutierrez seeks a finding that her minor children are entitled to receive the proceeds from said policy in which the beneficiary was changed from Alice Gutierrez to Mary Madero in violation of the divorce decree entered in In the Matter of the Marriage of Alice Gutierrez and Rudy Gutierrez. After a verdict favoring Alice Gutierrez, the trial court rendered a judgment for Mary Madero notwithstanding the verdict from which Alice Gutierrez has appealed. We reverse and render.

Rudy Gutierrez and Alice Gutierrez were divorced on May 8,1973, in which judgment of divorce appeared the following:

“It is further ORDERED, ADJUDGED and DECREED that:
4. Respondent, RUDY GUTIERREZ, shall keep in full force and effect the present policy of life insurance with the Veterans Administration and the present hospitalization coverage or one comparable thereto, for the benefit of his minor children until each shall have attained the age of eighteen (18) years.”

At the time of the divorce, Rudy Gutierrez had two life insurance policies in force, being American Capitol Life Insurance Company Policy No. 33-40669 which had been converted from Servicemen’s Group Life Insurance, and American Founders Life Insurance Policy No. 107063. Both policies listed Rudy Gutierrez as the insured and Alice Gutierrez as the beneficiary.

Subsequent to the divorce judgment, Rudy Gutierrez changed the beneficiary of the American Capitol policy to his mother, Mary Ó. Gutierrez Madero. Rudy Gutierrez died on or about March 5, 1975.

After the death of Rudy Gutierrez, a Judgment Nunc Pro Tunc was entered on motion of Alice Gutierrez which stated that because of clerical error the divorce judgment should have read, “Respondent, RUDY GUTIERREZ, shall keep in full force and effect the life and accident insurance policies for the benefit of his minor children until each shall have attained the age of eighteen (18) years.” The court, on motion of Mary Madero, later entered an Order Setting Aside Judgment Entered Nunc Pro Tunc in which it stated:

“The Court stated that at the time the order granting the judgment nunc pro tunc was entered that it appeared that no adversary existed to challenge the entry of such order, and no adversary hearing was conducted on such motion; that no record was made of the proceedings at which time the order was entered; and no formal presentation of evidence was made in connection with the entry of such order. And now the Court having been made aware of the opposition of Movant herein, the Court is of the opinion, and without in any way commenting upon the merits of the issues presented, that the Motion of the Movant should be granted in order to allow a full presentation of the facts in an adversary hearing.”

Thereafter, Alice Gutierrez, as next friend of her minor children, brought this suit against Mary 0. Gutierrez Madero.

By agreement of the parties, the proceeds of the American Capitol policy have been placed in a savings account in the names of the attorneys representing each party. The attorneys have agreed to disburse the funds to the party who prevails in this cause.

Trial was before a jury, which found in answer to Special Issues: (1) the designation of the insurance policy in the Decree of Divorce as “the present policy of life insurance with the Veterans Administration” was a result of a mutual mistake of fact; (2) it was the intention of the parties, the lawyers preparing the decree, and the judge who signed the decree that the life insurance policy should have been designated as the American Capitol Insurance Company Policy No. 33^40669; and, (3) the change of beneficiary on the American Capitol policy by Rudy Gutierrez from Alice Gutierrez to Mary Madero was done with the intent to defraud Alice Gutierrez of her rights, if any, to the policy.

Mary Madero relies on Servicemen’s Group Life Insurance (S.G.L.I.) Act, 38 U.S.C. Sec. 770(a) and Sec. 770(g) contending these sections prohibit the trial court from awarding the proceeds of the American Capitol policy to anyone but the designated beneficiary. 38 U.S.C. Sec. 770(a) states:

“Any amount of insurance under this subchapter in force on any member or former member on the date of his death shall be paid, upon the establishment' of a valid claim therefor, to the person or persons surviving at the date of his death, in the following order of precedence: First, to the beneficiary or beneficiaries as the member or former member may have designated by a writing received prior to death . . . ”

38 U.S.C. Sec. 770(g) states:

“Payments of benefits due or to become due under Servicemen’s Group Life Insurance or Veterans’ Group Life Insurance made to, or on account of, a beneficiary shall be exempt from taxation, shall be exempt from the claims of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary . . ”

Alice Gutierrez contends the S.G.L.I. Act, 38 U.S.C. Sec. 765 et seq. is inapplicable because Rudy Gutierrez had converted his Servicemen’s Group Life Insurance to a permanent individual policy with American Capitol, and that this successor policy is not subject to the statute.

Sec. 766 of the S.G.L.I. Act authorizes the Administrator to purchase policies of group life insurance which provide for the benefits and include the provisions specified in the Act. Certain regulations have been promulgated as reviewed in Weymann v. Wilson, 320 F.Supp. 980 (D.C.Fla.1970):

“Administrative regulations dealing with Servicemen’s Group Life Insurance may be found in 38 C.F.R. §§ 9.1-9.34. The administrative office of the insurer pursuant to 38 U.S.C. § 766(a) is designated the Office of Servicemen’s Group Life Insurance (hereinafter OSGLI), located at 212 Washington Street, Newark, New Jersey. 38 C.F.R. § 9.1(f). For each month a serviceman is insured under the Act, his uniformed service deducts from his pay and remits to the Veterans Administration the costs of the monthly premium. 38 C.F.R. § 910 . . . ”

In 1970, Rudolfo Gutierrez executed an application converting his S.G.L.I. to American Capitol Insurance. The application stated it was “For conversion of Servicemen’s Group Life Insurance to an individual policy of life insurance in conformity with the terms of the provisions of said Group insurance for substituting an individual policy.” According to Sec. 768(c) of the S.G. L.I. Act, as it existed in 1970, Gutierrez was entitled to a life insurance policy on a plan currently written by the insurance company he selected upon payment of the required premiums and execution of the application for conversion.

Sec. 770(a) and Sec. 770(g) pertain to “Any amount of insurance' under this subchapter in force” and “Payments of benefits due or to become due under Servicemen’s Group Life Insurance . . ” The American Capitol Insurance policy was not a group policy purchased by the Administrator so as to be “under this subchapter”, but rather a permanent individual policy selected by Gutierrez with the premiums being paid directly by Gutierrez. The payments of benefits became due under the American Capitol policy, not the Servicemen’s Group policy. The restrictions imposed on Servicemen’s Group Life Insurance policies under Sec. 770(a) and Sec. 770(g) of the S.G.L.I. are not applicable to successor policies which have been converted from a S.G.L.I. policy. The trial court was not prohibited by the S.G.L.I. Act from awarding the proceeds of the American Capitol policy to persons other than the designated beneficiary.

Alice Gutierrez contends the Decree of Divorce contained a latent ambiguity as to the “present policy of life insurance with the Veterans Administration” for which the intended purpose of the decree is relevant. The Supreme Court has discussed latent ambiguities in Harrison v. Manvel Oil Co., 142 Tex. 669, 180 S.W.2d 909 (1944): “Latent ambiguity in description is ambiguity, not appearing on the face of the instrument, that arises when the description is applied to the . . . subject matter

We have examined the judgment and find the description of the life insurance policy to be so inadequately described as to be ambiguous, particularly when applied to the facts existing at the time of the divorce. It is clear that the judgment ordered Rudy Gutierrez to keep in full force and effect a life insurance policy for the benefit of his minor children. In determining what life insurance policy the judgment referred to, the circumstances surrounding the decree must be considered. The general rule was stated in Garza v. Fleming, 323 S.W.2d 152 (Tex.Civ.App. — San Antonio 1959, writ ref. n.r.e.):

“. . . Moreover, it is settled that ‘If the judgment is ambiguous, application is made of familiar rules of construction, such as that effect will be given to reasonable intendments, that a writing will be made to harmonize with the facts, that the circumstances will be considered, and that a common-sense construction will be put on language as a whole.’ 25 Tex.Jur. 459, § 87 . . .”

See also Keton v. Clark, 67 S.W.2d 437 (Tex.Civ.App. — Waco 1933, writ ref’d); Cook v. Smith, 96 S.W.2d 318 (Tex.Civ.App. —Galveston 1936, writ dism’d); In re Supples’ Estate, 131 S.W.2d 13 (Tex.Civ.App.— San Antonio 1939, no writ). It was further stated in Moore v. Horn, 359 S.W.2d 947 (Tex.Civ.App. — Beaumont 1962, writ ref. n.r.e.):

. . The well established rule is that if a judgment is ambiguous, then extrinsic evidence may be introduced to explain the ambiguity. Permian Oil Co. v. Smith, 129 Tex. 413, 107 S.W.2d 564, 111 A.L.R. 1152 ...”

The evidence concerning what policies existed at the time of the divorce and what policy the parties, attorneys and judge intended the decree to refer to is, therefore, relevant in clarifying the ambiguity.

Alice Gutierrez next contends there is some evidence to support the jury’s findings to Special Issues 1 and 2 that the designation of the insurance policy in the Decree of Divorce as “the present policy of life insurance with the Veterans Administration” was the result of a mutual mistake of fact, and that it was the intention of the parties, the lawyers preparing the decree, and the judge who signed the decree that the policy should have been designated as the American Capitol Insurance Company Policy No. 33-40669. In considering these points of error, we must apply the rule stated in Douglass v. Panama, Inc., 504 S.W.2d 776 (Tex.1974):

“. . . To sustain the action of the trial court in granting the motion for judgment notwithstanding the verdict, it must be determined that there is no evidence upon which the jury could have made the findings relied upon. In acting on the motion, all testimony must be considered in a light most favorable to the party against whom the motion is sought and every reasonable intendment deduei-ble from the evidence is to be indulged in that party’s favor . . . ”

It is uncontroverted that there were only two life insurance policies in force at the time of the divorce, the American Capitol policy and the American Founders policy. Alice Gutierrez testified she always referred to the policy in question as the “GI insurance” and did not know the name was actually “American Capitol Insurance Company Policy.” The American Capitol policy indicates its quarterly payments were $41.66. A list of monthly expenditures written by Rudolfo Gutierrez included the entry “Veteran Insurance ‘Life’ 41.66 3 month”. Robert Estrada, attorney for Ru-dolfo Gutierrez during the divorce proceedings, testified the only life insurance policy discussed during the divorce negotiations was the “Veterans! Administration Policy” and that it was referred to as the Veterans’ Administration Insurance” because during the course of the negotiations with the other attorney and during the course of the trial with Rudy Gutierrez, “he referred to it as a VA policy”. Alfonso Chapa, attorney for Alice Gutierrez during the divorce proceedings, testified it was his understanding that the divorce court ordered Rudy Gutierrez “to continue payments of any and all existing insurance policies of health and life covering the said children of this marriage: Janet, Annette, and Ruby Ann until such time as each child reaches the majority or until further orders of the court”. We find some evidence supporting the jury’s findings to Special Issues 1 and 2.

Alice Gutierrez next contends a constructive trust should be imposed on the proceeds of the American Capitol policy. Upon the death of Rudy Gutierrez, the minor children of Alice and Rudy Gutierrez acquired an equitable right to the proceeds of the American Capitol policy pursuant to the Decree of Divorce. In failing to maintain his minor children as the beneficiary and redesignating the beneficiary as Mary Madero, Rudy Gutierrez misappropriated the children’s interest in the policy. This misappropriation constituted constructive fraud. In order to provide relief to the aggrieved minor children, a constructive trust may be imposed. The purpose of a constructive trust was stated in Blankenship v. Citizens National Bank of Lubbock, 449 S.W.2d 77 (Tex.Civ.App. — Amarillo 1969, writ ref. n.r.e.):

“A constructive trust may arise whenever property is acquired or retained under circumstances amounting to fraud. The property is impressed with a constructive trust in order to provide relief against one whom, by any means or in any way against equity and good conscience, either has obtained or holds legal title to property which he ought not in good conscience hold or enjoy. Deep Oil Development Co. v. Cox, 224 S.W.2d 312 (Tex.Civ.App., refused, n.r.e.).”

A situation similar to the ease at bar was presented in Hirsch v. Travelers Insurance Co., 134 N.J.Super. 466, 341 A.2d 691 (1975). There, the children of Jack and Shirley Hirsch sought a constructive trust on the proceeds of several life insurance policies in which Jack Hirsch was the insured. Jack Hirsch was to designate his children irrevocable beneficiaries pursuant to a divorce decree divorcing him from Shirley Hirsch. After the divorce, Jack Hirsch married defendant Doris Hirsch who was later named the beneficiary of the policies. Jack Hirsch died and suit followed. The trial court granted Doris Hirsch’s motion to dismiss the complaint as to her. The New Jersey Superior Court reversed, holding the children had a cause of action against Doris Hirsch. The court stated:

“One receiving a benefit is liable to make restitution only if the circumstances of its receipt or retention are such that, as between two contestants, it would be unjust for the recipient to retain the benefit. Restatement, Restitution, § 1 at 12 (1937); cf. Brick Tp. v. Vannell, 55 N.J.Super. 583, 595, 151 A.2d 404 (App.Div.1959).
Where two innocent parties are involved and the recipient of a wrongful transfer is a bona fide purchaser for value, the recipient will prevail over one seeking to impose a constructive trust. Restatement, Restitution, § 172 at 691 (1937); 5 Scott, Trusts (3 ed. 1967) § 474 at 3454; cf. Bajek v. Polack, 120 N.J.Eq. 104, 107-108, 184 A. 212 (Ch.1936). On the other hand, where the recipient is a gratuitous transferee, she holds the property subject to the equitable rights of the wronged party and a constructive trust can be impressed. Restatement, Restitution, § 168 at 684 (1937); 5 Scott, op.cit., §§ 470, 510 at 3444, 3595.”

In the present case, Mary Madero was the recipient of the insurance proceeds due to the wrongful beneficiary designation by Rudy Gutierrez. Her rights as a gratuitous transferee are inferior to the equitable rights of the minor children. It would be unjust to allow Mary Madero to benefit from the wrongdoings of Rudy Gutierrez at the expense of the children’s rights under the divorce decree. The provisions of the divorce decree should control the disposition of the proceeds of an insurance policy between these contending beneficiaries. Box v. Southern Farm Bureau Life Insurance Co., 526 S.W.2d 787 (Tex.Civ.App. — Corpus Christi 1975, writ ref. n.r.e.); Travelers Insurance Co. v. Lewis, 531 P.2d 484 (Utah 1975); Wiltz v. John Hancock Mutual Life Insurance Co., 58 Mich.App. 604, 228 N.W.2d 484 (1975).

Equity regards as done that which ought to have been done. The imposition of a constructive trust on the insurance proceeds for the benefit of the minor children is necessary to place the parties in the position they would be in had Rudy Gutierrez not violated the divorce decree.

Judgment of the trial court is reversed and rendered that a constructive trust be imposed on the proceeds of the American Capitol policy for the benefit of Janet, Annette and Ruby Ann Gutierrez.


author: PER CURIAM.

text:
    Herman Devoe WRIGHT et ux., Appellants, v. Carlton E. WOLTERS et al., Appellees.
    No. 8123.
    Court of Civil Appeals of Texas, Beaumont.
    March 31, 1978.

      R. L. Miller, Gonzales, for appellants.
    Wayne J. Prosperi, Houston, for appel-lees.
   PER CURIAM.

The Supreme Court recently transferred this cause to this Court from the Third Court of Civil Appeals in Austin. At the time of transfer, there was a pending motion filed by the appellants seeking an extension of time within which to file the statement of facts which had not been acted upon by the Austin Court.

An examination of the record reveals that the proponents of a will have appealed from a judgment based upon a jury verdict finding the testator did not have testamentary capacity at the time he executed the will offered for probate and record and that the testator executed such will while under the undue influence of the appellants.

The judgment was entered in this cause on April 9, 1977; the motion for new trial was overruled on May 27, 1977; the transcript was filed in the Austin Court of Civil Appeals on July 22, 1977; and, simultaneously, appellants sought an extension of one hundred eighty days within which to file the statement of facts. This motion was accompanied by an affidavit of M. A. Baker, Jr., the court reporter who took two pages to list his trials and tribulations as a busy reporter, concluding:

“I hope to begin on preparing the statement of facts in this matter in August, however, due to the length of the trial, three weeks, and our Court docket, I will need an extension of at least 180 days.” (emphasis added)

The Austin Court extended the time until December 2, 1977, within which such statement of facts could be filed. A second motion for an extension was filed by appellants on November 18, 1977 — again seeking an extension for a period of one hundred eighty days and again it was accompanied by reporter Baker’s affidavit, a portion of which is copied in the margin.

The Austin Court accepted the statement and extended the time for filing of the statement of facts until March 31, 1978. But, no part of the statement of facts has been tendered for filing. Instead, counsel for appellants — admitting that extensions aggregating 248 days had already been granted — now seeks another extension of six months. Again we have an affidavit from reporter Baker which shows that he has not even yet begun the preparation of the statement of facts.

Our record reveals several other facts of some importance on the question: Appellants deposited $8,500 in cash with the District Clerk and the cost bill in the transcript shows that Baker’s estimate for the statement of facts is that precise sum. We do not know if he has actually drawn down the money so deposited. Secondly, several of the appellees are in their advanced years— three being over seventy, with one being at least ninety years of age.

Opinion

We do not accept the excuse offered by the court reporter in this third motion- — it containing the same excuses and empty promises found in the first two affidavits. We adopt this language found in Figueroa v. Treece, 331 S.W.2d 250, 250-51 (Tex.Civ. App. — San Antonio 1960, no writ):

“This Court is not unconscious of the need for extensions of time when a court reporter has conflicting duties, but one of those duties is that of preparing records on appeal. . .We suggest that the court reporter has no court duties that should now take priority over the prompt completion of this record.”

Figueroa was followed in Modine Manufacturing Co. v. North East Independent School District, 489 S.W.2d 458 (Tex.Civ. App. — San Antonio 1972, no writ). See also C. Reynolds, “Appellate Record,” 4 Tex. Tech.L.Rev. 1, 11 (1972).

The delay incident to the preparation of the statement of facts in this case is inexcusable. Nearly a year after the entry of the judgment, Baker has not even started work on the record despite his earlier sworn promises relied upon by the Austin Court. The unnecessary delay has frustrated the disposition of the cause and additional delay, while inevitable, will not be tolerated beyond the bare minimum required under the facts.

Our jurisdiction has been invoked and we have authority to take such steps as may be required to dispose of the questions presented. We have authority, under Tex.Rev.Civ. Stat.Ann. arts. 1823 and 1824 (1964), to issue the writ of mandamus to compel the court reporter to complete the record. City of Ingleside v. Johnson, 537 S.W.2d 145, 149-50 (Tex.Civ.App. — Corpus Christi 1976, original proceeding).

Consequently, we now enter this

ORDER

1. Appellants’ motion for an extension of time within which to file the statement of facts herein is granted in part and the time is extended to and including April 30, 1978, upon the following terms and conditions:

(a) The Court Reporter, M. A. Baker, Jr., shall file an affidavit with the Clerk of this Court (and forward a copy thereof to at least one counsel of record for each of the parties) upon the second, third, and fourth Mondays in April, 1978, showing in detail the number of hours spent during the preceding week working upon the statement of facts in this cause, the number of pages typed, and his estimate of the number of pages remaining to be transcribed.

(b) Said reporter will include in said affidavit a certification of the number of hours spent in the discharge of his official duties in connection with matters not related to this cause.

2. Should said reporter fail or refuse to file the affidavit mentioned above or to comply with this order in any particular, appellants are invited to file a motion for leave to file a petition for the writ of mandamus to compel said reporter to complete said statement of facts. Failure to seek relief by way of mandamus will be considered in the disposition of further motions for extension of time within which to complete the appellate record in this cause.

      . Baker swore on November 16, 1977, in part:
      “I hope to begin on preparing the Statement of Facts in this matter as soon as possible, however, due to the length of the trial, three weeks, and our Court Docket, I will need an extension of at least 180 days.
      “I will make every effort to complete said Statement of Facts within this extension of time for filing.” (emphasis added)

      . Baker swore on March 14, 1978:
      “1 hope to begin on preparing the Statement of Facts in this matter as soon as possible, however, due to the length of the trial, three weeks, and our Court docket, I will need an extension of at least 180 days.
      “I will make every effort to complete said Statement of Facts within this extension of time for filing.” (emphasis added)


author: BISSETT, Justice.

text:
    Noah TULL et ux., Appellants, v. SAN PATRICIO ELECTRIC COOPERATIVE, INC., Appellee.
    No. 1277.
    Court of Civil Appeals of Texas, Corpus Christi.
    March 31, 1978.
    Rehearing Denied April 20, 1978.

      F. Van Huseman, Maddin, White & Brin, Inc., Corpus Christi, for appellants.
    George G. Brin, Dyer, Redford, Burnett, Wray & Woolsey, Corpus Christi, for appel-lee.
   OPINION

BISSETT, Justice.

Noah Tull and wife, Nelda Sue Tull, sued San Patricio Electric Cooperative, Inc., hereinafter referred to as the “Company”, for injuries resulting from an electrical shock received by Tull while he was operating a crane in close proximity to a Company line. At the close of the evidence following a jury trial, the trial court directed a verdict for the Company and thereafter entered judgment in its favor. Plaintiffs, hereinafter called “Tull”, appeal.

“Defendant will be entitled to an instructed verdict if either (a) in each theory of recovery relied upon by the plaintiff there is at least one fact proposition, constituting a component element, asserted by the plaintiff, as to which the plaintiff’s evidence is so meagre or the defendant’s evidence is so compelling that reasonable men could not differ as to the conclusion that such proposition is not established; or (b) each theory of recovery as to which plaintiff has raised an issue of fact on all component elements is destroyed by some affirmative defense applicable thereto as to which the truth of every component fact proposition asserted by the defendant has been so conclusively established that reasonable minds cannot differ.” McDonald’s Texas Civil Practice, Vol. 3, § 11.28.1 (1970).

We review the evidence in the light most favorable to Tull. Rogers v. Searle, 544 S.W.2d 114 (Tex.Sup.1976).

Tull contends that there was evidence that the Company was negligent in failing to warn him of the danger of working in close proximity to the high voltage line in question when the Company knew, or in the course of ordinary care should have known, that he (Tull) regularly worked with his equipment close to the line. He further contends that since the incident made the basis of this lawsuit happened on September 19, 1975, that Tex.Rev.Civ.Stat.Ann. art. 2212a (Supp.1976), the “Comparative Negligence Statute”, applies, and that the instructed verdict “ignores the possibility of a jury determining Tull’s alleged negligence to be less than 51% of the total operative negligence.”

The Company, among the several arguments advanced for affirming the judgment which has been appealed, argues that the trial court properly granted its motion for an instructed verdict because: 1) there is no evidence that it breached a duty to warn Tull of the dangers of his activities, and 2) the evidence conclusively shows that the injuries sustained by Tull resulted from his violation of Tex.Rev.Civ.Stat.Ann. art. 1436c (Supp.1978) We agree. The applicable sections of the statute are set out in the footnote.

The incident made the basis of this suit happened on September 19, 1975. Tull was the owner of a scrap metal business, which he operated at his residence. He used a crane in that business and was operating the crane when he was injured. He ordinarily worked in the “back of his house”, away from the overhead high voltage lines in front of his house. However, when his back yard was flooded, he would work in his front yard. On occasions, prior to the accident of September 19, 1975, he had operated within six feet of the overhead high voltage lines which were owned and operated by the Company, although he had never before operated as close as he was on that morning.

On the day of the accident, the only dry place to work was in Tull’s front yard. Tull began raising the boom on the crane to its operating position; he continued until he noticed that the boom was within eight to twelve inches of the lines, whereupon he dug his foot into the wet dirt and attempted, by manipulating the controls on the crane, to move the boom away from the lines. It was at that time that he received an electric shock, and sustained severe injuries. He explained that the “rig cable” drew an arc of electricity from the lines without any physical contact.

It is undisputed that a Company employee, on several occasions before the accident, had seen Tull working with the crane. The employee did not warn Tull that he was working in a place of danger. Tull said that the employee “slowed down and watched me working”, and would “just about come to a complete stop, just coast by real slow.” However, there is no evidence as to how close Tull was working to the lines when the employee drove by; and there is no evidence that the employee, from his position on the road, could have determined that Tull was working in an area less than six feet underneath the lines.

Before there is a duty to warn, actual knowledge rather than constructive knowledge of the dangerous condition is required. State v. Tennison, 509 S.W.2d 560 (Tex.Sup.1974). Here, there is no evidence that the employee, while driving along the road in front of Tull’s residence, could determine how close Tull’s crane was to the lines, or whether it was apparent to the employee that Tull was working near danger. There is no evidence that the employee had actual notice that Tull was working in a place of danger and that a dangerous condition existed.

We hold that there was no evidence that the employee of the Company had actual knowledge that Tull, on the occasions prior to the accident when the employee should have seen him working near the high voltage lines, was then in a place of danger. Under those circumstances, the Company was not under a duty to warn Tull of any danger associated with his activities.

It is conclusively shown by the evidence that at the time in question, Tull, the owner of the crane, was operating the crane in closer proximity to the overhead high voltage lines than permitted by Tex.Rev. Civ.Stat.Ann. art. 1436c (Supp.1978). That activity constituted, prima facie, a violation of the statute. If Tull was to escape the consequences of such violation, it was incumbent upon him to go forward with the evidence and show that his working within the statutorily prohibited area was permissible because he had installed the required safety equipment on the crane. See Hammer v. Dallas Transit Company, 400 S.W.2d 885 (Tex.Sup.1966). Tull did not meet his burden.

Under the record here presented, the trial court properly granted the Company’s motion for an instructed verdict. No issues of fact are raised by the evidence. The undisputed facts, when considered in proper context, establish as a matter of law that the Company was under no duty to warn Tull of any danger. The evidence further conclusively establishes that the injuries complained of by Tull in this lawsuit were caused by a violation of the statute which resulted in an electrical contact with the high voltage line. Concerning the complaint by Tull that the instructed verdict prevented a jury from determining the degree of negligence of the parties, assuming, arguendo, that the Company was negligent, it is conclusively shown by the evidence that Tull’s negligence was more than “51% of the total operative negligence”.

The judgment of the trial court is AFFIRMED.

      . “Sec. 3. Unless danger against contact with high voltage overhead lines has been effectively guarded against ... no person shall . . . perform any function or activity upon any land . . if at any time during the performance of any function or activity, it is possible that the person performing the function or activity shall move or be placed within six feet of any high voltage overhead line or if it is possible for any part of any tool, equipment, machinery, or material used by such person to be brought within six feet of any high voltage overhead line during the performance of any such function or activity. ******
      Sec. 5. No person shall operate any crane ... or similar apparatus, any part of which is capable of vertical, lateral, or swinging motion, unless:

      (2) there shall be installed an insulated cage-type guard or protective device about the boom or arm of all equipment .
      Sec. 5A [t]he operation of . machines within 10 feet of any high voltage overhead line shall be unlawful unless danger against contact with high voltage overhead lines has been effectively guarded against pursuant to the provisions of Section 6 of this Act.

      Sec. 7(b) If a violation of this Act results in physical or electrical contact with any high voltage overhead line, the person, ... violating the provisions of this Act shall be liable to the owner ... of such high voltage line for all . . . liability incurred by such owner or operator as a result of any such contact.”