text:
    Echol Eugene HEAD, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    June 30, 1978.
    Certiorari Denied by Supreme Court Aug. 28, 1978.
    W. Stanley Yarbro, Johnson City, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Robert L. DeLaney, Asst. Atty. Gen., Nashville, Carl K. Kirkpatrick, Jr., Dist. Atty. Gen., H. Greeley Wells, Jr., Asst. Dist. Atty. Gen., Kingsport, for appellee.
   OPINION

TATUM, Judge.

The appellant, Echol Eugene Head, was convicted of bank robbery and sentenced to not less than twenty years nor more than twenty-five years in the State Penitentiary. He assigns error attacking the weight of the evidence, the admission of evidence of his silence at the time of apprehension, the admission of evidence of a prior felony conviction, and the competence of his trial counsel. We affirm the judgment of conviction.

The State’s theory is that the appellant aided and abetted Dewey Scott Frazier in the robbery of the Plaza Branch of the First National Bank of Sullivan County by driving the “get-away” car. Shortly before the bank’s 4:00 o’clock closing time, Dewey Scott Frazier entered the bank alone and robbed the bank employees of $4,014 by use of a .22 caliber pistol. During the course of the robbery, Frazier’s gun discharged, wounding one of the bank employees.

While the robbery was in progress, the appellant waited outside the bank in a white Corvair automobile with the motor running. The license plate on the Corvair was bent downward so as to conceal the numbers on it. The Corvair was registered in the name of the appellant’s wife.

After the robbery, Frazier ran to the automobile, carrying a brown paper sack containing the money taken in the robbery. The appellant commenced driving off “real fast” before Frazier could get completely in the car.

The police were alerted immediately and given a description of the appellant’s car. After recognizing the appellant’s car, a police car pursued it, but it stopped shortly. Frazier left the car from the passenger side with the money and the pistol. After Frazier left, the automobile again moved forward, but a police car stopped it by pulling in front of it. When the Corvair was stopped by the police, the license plate had been straightened, but the crease was still apparent.

The appellant’s version of the event was that on the morning of the bank robbery, he visited a woman with whom he was enamored, named Nina Waye, a sister of Dewey Scott Frazier. He spent several hours working on Ms. Waye’s automobile, drinking with her and other visitors at her home, including Frazier. About 3:15 P.M., the appellant took Frazier to a liquor store to purchase more liquor. Then, Frazier asked the appellant to take him to the bank to borrow money. The appellant remained in his automobile with the motor running while Frazier went into the bank, because the Corvair would not start once the motor had stopped running. The appellant did not know that Frazier was armed with a pistol or that Frazier intended to rob the bank. The appellant testified that when Frazier left the bank, he got into the Cor-vair with the bag and the money. Frazier stuck the pistol into the appellant’s ribs and ordered the appellant, “Get me the hell out of here, that I’ve shot a woman in the bank and I’ve robbed it.”

The appellant testified that he did not attempt to escape from the police after Frazier left his automobile. He said that his foot slipped off the brake, hitting the accelerator, causing his car to move forward. He made no complaint that Frazier victimized him until he testified in his own behalf at his trial.

In his first two assignments, the appellant says that the evidence preponderates against the jury verdict and that the verdict of the jury and judgment of the court is contrary to law. We do not agree. On appeal, a defendant is presumed guilty of the offense for which he was convicted and we cannot reverse a conviction on the evidence unless it appears that the evidence preponderates against the defendant’s guilt and in favor of his innocence. State v. Sneed, Tenn., 537 S.W.2d 699 (1976); Cooper v. State, 123 Tenn. 37, 138 S.W. 826 (1909). Conflicts in testimony and credibility of witnesses are settled by a jury verdict. State v. Grace, Tenn., 493 S.W.2d 474 (1973); Holt v. State, 210 Tenn. 188, 357 S.W.2d 57 (1962). On appeal, this court will view the evidence, together with all reasonable and legitimate inferences therefrom, in the strongest light consistent with the State’s theory of guilt. State v. Thompson, Tenn., 549 S.W.2d 943 (1977); State v. Grace, supra. Applying these rules, we must overrule the first two assignments of error.

The appellant’s third assignment of error is: “The learned trial court erred in allowing the State, in its cross-examination of the appellant, to question and interrogate him concerning his invoking the Fifth Amendment of the United States Constitution at the time of his arrest and at the trial of Dewey Scott Frazier.” No reference was made by the State to the appellant’s silence at the time of arrest until the appellant’s cross-examination. We quote portions of the record to illustrate the character of questions asked the appellant on cross-examination, of which he now complains:

Q. Mr. Head, your testimony at this point_it’s my understanding that you’re saying now that you were, in fact, a victim of a crime yourself at the hands of Dewey Scott Frazier. Is that right?
A. Repeat that again. I don’t understand that.
Q. As I understand your testimony at this time and this is the first time I’ve ever talked to you, isn’t it?
A. Yeah.
Q. As I understand your testimony at this point you are taking the position that you were, in fact, the victim of the crime of being held as a hostage by Dewey Scott Frazier in his attempts to escape the law.
A. Yes, sir.
Q. And that’s what you’re telling this jury?
A. Yes, sir.
* * * * * *
Q. Today is the first time you’ve ever made a complaint about Dewey Scott Frazier, isn’t it?
A. Yes, sir.
* ⅜ * * * *
Q. You didn’t jump out and run to the police officer and say thank goodness you’re here?
A. No, sir. When that officer pulled a gun on me, it scared me that much more. I was scared. I didn’t know what to do or which way to turn.

In closing argument, the District Attorney General stated to the jury:

General Kirkpatrick: . . . Echol Head didn’t act like a victim of a crime when he got stopped. Common sense tells you that Echol Head didn’t act like the victim of a crime when the police stopped him .
General Kirkpatrick: Well, I didn’t know Echol Eugene Head. He testified on the witness stand that I was talking to him for the first time. The first time I ever talked to him was here in the Courtroom with him on the witness stand.

We agree that a defendant has a constitutional right to remain silent in the face of accusations against him and that the prosecution may not ordinarily use at trial the fact that a defendant stood mute or claimed his privilege in the face of accusations. Braden v. State, Tenn., 534 S.W.2d 657 (1976); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). However, in extreme cases, evidence of silence is admissible when silence is inconsistent with exculpatory trial testimony. United States v. Fairchild, 505 F.2d 1378 (5th Cir. 1975); Braden v. State, supra; Kelley v. State, Tenn.Cr.App., 478 S.W.2d 73 (1972); Doyle v. Ohio, 426 U.S. 610, 49 L.Ed.2d 91, 96 S.Ct. 2240 (1976), footnote 11. In United States v. Fairchild, supra, the Court said:

The attack on the defendant-witness and his testimony may, of course, take the form of impeachment by prior inconsistent act. We have held that, in extreme cases, silence following Miranda warnings can be the type of act which is inconsistent with certain exculpatory trial testimony. In such cases evidence of the silence is admissible. United States v. Ra mirez, 441 F.2d 950 (5th Cir.), cert. denied, 404 U.S. 869, 92 S.Ct. 91, 30 L.Ed.2d 113 (1971), United States v. Quintana-Gomez, 488 F.2d 1246 (5th Cir. 1974). But, to be admissible, keeping silence must be much more than ambiguous. It must appear to be an act blatantly inconsistent with the defendant’s trial testimony. This will be the case when, as in Ramirez and Quintana-Gomez, the exculpatory testimony is of such a character that reasonable men would be left with the distinct impression that had it been true it would have been related to law enforcement authorities even though the defendant was specifically informed that he need not speak. 505 F.2d at 1382.

Our Supreme Court, in Braden v. State, supra, speaking through Mr. Justice Cooper, said:

In these cases the courts sought to and did strike a balance between protecting the self-incrimination bar of the Fifth Amendment allowing full testing of the truth of defendant’s trial testimony. We agree with this objective, but hasten to emphasize that evidence of pre-trial silence of the defendant must be admitted with caution and then only where such silence is patently inconsistent with the defendant’s testimony. For example, Kelley v. State, supra.
534 S.W.2d at 660.

The facts of this case are clearly within the rule allowing cross-examination concerning the defendant-witness’s silence at the time of arrest. The appellant’s silence is an act blatantly inconsistent with his testimony that he was held captive by Frazier at pistol point after a bank robbery and forced to assist the bank robber in evading capture. The jury was entitled to test the truth of the appellant’s trial testimony in the light of his conduct in remaining silent when allegedly rescued by the police from Frazier. This assignment is overruled.

In his fourth assignment, the appellant complains of the State cross-examining him on “specifics as to the record of the felony-conviction from Carter County, Missouri, even though the appellant had previously answered in the affirmative that he had been convicted of a felony.” On direct examination, the appellant’s attorney asked him, “Were you convicted of a felony in Missouri,” when he was 19 years of age. On cross-examination, the State specifically asked the appellant if he “pleaded guilty to second-degree burglary and stealing in Carter County, Missouri, on April the 23rd, 1971?” The appellant answered both questions in the affirmative.

The appellant complains of the specific nature of the State’s question, citing State v. Morgan, Tenn., 541 S.W.2d 385 (1976). However, the Morgan case holds that the question should be specific and that the question, “Do you have any prior felony convictions?” is too broad.

The appellant further argues, “The record is clear that the court did not determine outside the presence of the jury whether the evidence of a particular crime or specific acts were admissible_” The appellant is mistaken in this assertion; the record reflects that the matter was considered and determined at a jury-out hearing. There is no merit in this assignment.

In his last assignment of error, the appellant says that his trial counsel was ineffective and the court should have declared a mistrial when it became evident that defense counsel was “admittedly sick and ill.” He also criticises his trial counsel for not calling Dewey Scott Frazier as a witness.

At 6:45 P.M., the trial judge sent the jury for its evening meal. After the jury left, trial counsel moved to adjourn, telling the court that he had been ill and was “whipped.” The jury returned from dinner at 7:30 P.M., when court was immediately adjourned for that day. There is nothing in the record indicating that trial counsel was physically or mentally impeded in the trial of the case before requesting and being granted the adjournment. The trial judge found, from observation of the trial counsel, that trial counsel was in no way incompetent and was “as aggressive as a trial lawyer as he has ever been.” The record supports the trial judge’s observations.

The appellant filed the affidavit of Dewey Scott Frazier, stating that the appellant did not participate in the robbery and was not aware that Frazier intended the robbery. He says that the appellant’s attorney did not interview him. We glean from the record that the appellant’s attorney did read a copy of the transcript of Frazier’s trial and was familiar with Frazier’s criminal record. From the opinion of this court in the case of Dewey Scott Frazier v. State of Tennessee, Tenn.Cr.App., 566 S.W.2d 545 cert. denied by Supreme Court Feb. 13, 1978, it appears that Frazier was adjudicated as an habitual criminal; that he had a total of seven burglary convictions, four felony escape convictions, one bank robbery conviction, and one conviction for using a firearm in the commission of a felony. The failure to use him as a witness is not per se evidence of ineffective counsel. There was no hearing on the motion for a new trial and, hence, no specific evidence as to why trial counsel did not use him as a witness. In context of this record, we can see where there could be differences of opinion among able and experienced lawyers as to the advisability of offering Frazier to testify on behalf of the appellant. We hold that the appellant has not shown the failure to utilize Frazier as a witness rendered trial counsel inadequate and ineffective within the meaning of Baxter v. Rose, Tenn., 523 S.W.2d 930 (1975).

Finding no error, we affirm the judgment of the Criminal Court.

WALKER and DUNCAN, JJ., concur.

      . At the trial of Dewey Scott Frazier, the appellant was called as a witness by the State, but declined to testify, invoking his Fifth Amendment Rights. During a jury-out hearing, the District Attorney General mentioned this occurrence, but appellant’s jury was never made aware of his invoking the Fifth Amendment Rights during Frazier’s trial, hence no error.

      . The affidavit of Frazier makes no mention of the get-away nor sheds any light on whether the appellant’s participation in the get-away was voluntary or coerced.


source: Caselaw Access Project

author: BARROW, Justice. GREENHILL, Chief Justice, MeGEE, Justice,

license: Public Domain

text:
    Joseph May WEAVER, Petitioner, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, Respondent.
    No. B-7168.
    Supreme Court of Texas.
    June 28, 1978.
    Rehearing Denied Oct. 4, 1978.
    Turner & White, Joe E. Turner, Houston, for petitioner.
    Fulbright & Jaworski, Russell H. McMains, Houston, for respondent.
   BARROW, Justice.

This is a suit by a judgment creditor against an insurer to recover under an automobile liability policy on the basis of a judgment secured against an omnibus insured. It is stipulated that the alleged omnibus insured failed to comply with the provision of the policy requiring him to forward to the insurer “every demand, notice, summons, or other process” he received. At issue is whether compliance with this policy provision by the named insured, in forwarding the citation which was served on him, should also be held to operate as compliance by the omnibus insured. The trial court rendered judgment in favor of the judgment creditor. The court of civil appeals reversed and rendered a take-nothing judgment. 556 S.W.2d 117. We affirm the judgment of the court of civil appeals.

J. C. Thomas Enterprises is the named insured on a comprehensive automobile liability insurance policy issued by Hartford Accident and Indemnity Company. The policy defines an “insured” under the policy to be the named insured and any other person using the vehicle with the permission of the named insured. Clyde Lee Busch was an employee of Thomas Enterprises. While driving one of Thomas’ trucks in September 1969, Busch was involved in an accident with Joseph Weaver. Notice of the accident was given to Hartford who made an investigation.

In March 1971, Weaver filed suit against Busch seeking damages of $11,800. Busch testified at the trial of this case that he had been served with process in that suit in the office of Weaver’s attorney, but had left the papers in that office and they were never forwarded to Hartford. He did not file an answer and none was filed on his behalf. Busch further testified that he had made a statement to Hartford, during its investigation of the accident, stating unequivocally that he was not operating the vehicle with the permission of Thomas Enterprises at the time of the accident.

In September 1971, Weaver filed his First Amended Original Petition in which he added Thomas Enterprises as a defendant, alleging that Busch was a Thomas employee acting within the course and scope of his employment, and increased the damages sought to $201,800. Service was had on Thomas Enterprises which promptly forwarded the citation and petition to Hartford. However, the District Clerk of Montgomery County testified at the trial of this case that Busch was never served with the amended petition and his testimony is supported by the court records of that case.

The answer which was filed on behalf of Thomas Enterprises specifically denied that Busch was in the course and scope of his employment at the time of the accident. Subsequently, in February 1973, Weaver non-suited his cause of action against Thomas Enterprises and was granted a default judgment against Busch for $114,-433.96, a sum in excess of the policy limit of $100,000 recovery per person.

This suit was filed in June 1973 against Hartford on the basis of that default judgment. Weaver alleged that the accident was caused by the negligent operation of the Thomas truck, that the truck was operated by Busch with the permission of the company, and that the policy covered the accident. A special issue was submitted which inquired whether Busch was an “insured” under the Hartford policy issued to Thomas Enterprises. The jury answered affirmatively and judgment was entered for Weaver in the amount of $100,000.

The Hartford policy in question contains provisions concerning an insured’s duties in the event of an accident, claim or suit. Among these provisions is the requirement that the insured shall immediately forward any process received by him if a suit is brought. The policy makes satisfaction of these requirements, when applicable, a condition precedent to the insurer’s liability on the policy. This Court in Members Mutual Insurance Company v. Cutaia, 476 S.W.2d 278 (Tex.1972), held that, irrespective of any showing of harm to the insurer, the failure of the named insured to forward the suit papers to the insurer relieved the latter of liability to an injured third party. See also: Klein v. Century Lloyds, 154 Tex. 160, 275 S.W.2d 95 (1955); New Amsterdam Casualty Co. v. Hamblen, 144 Tex. 306, 190 S.W.2d 56 (1945).

No contention has been made that Hartford waived or was estopped to assert this policy provision requiring the forwarding of suit papers. In fact, not only did Hartford not refuse to defend Busch, but because of Busch’s statement, during Hartford’s investigation of the accident, that he was not operating the vehicle with the permission of Thomas Enterprises, Hartford had no reason to believe that Busch expected Hartford to defend him.

The question presented here is not controlled by this Court’s holding in Employers Casualty Co. v. Glens Falls Insurance Co., 484 S.W.2d 570 (Tex.1972). There it was held that timely notice of the accident by the named insured alone fully satisfied the provision of the insurance policy requiring notice by the “insured”, and that it was not also necessary for the omnibus insured to give notice of the accident. It was pointed out that the purpose of such a notice requirement is to enable the insurer to promptly investigate the circumstances of the accident while the matter was fresh in the minds of the witnesses. Obviously, that purpose can be fully satisfied when notice of an accident is received from one insured only.

Different purposes are served by the requirement that the insured immediately forward to the insurer “every demand, notice, summons or other process received by him or his representative.” It is undoubtedly true, as some cases hold, that one purpose of the provision is to enable the insurer to control the litigation and interpose a defense. See, e. g., Brown v. State Farm Mutual Automobile Casualty Insurance Co., 506 F.2d 976 (5th Cir. 1975); M. F. A. Mutual Insurance Co. v. White, 232 Ark. 28, 334 S.W.2d 686 (1960); Wendel v. Swanberg, 384 Mich. 468, 185 N.W.2d 348 (1971). However, a more basic purpose is to advise the insurer that an insured has been served with process and that the insurer is expected to timely file an answer.

In Campbell v. Continental Casualty Co. of Chicago, 170 F.2d 669 (8th Cir. 1948), the omnibus insured forwarded his summons and a copy of the pleadings to the insurer, but the named insured did not. A default judgment was taken against the named insured. The court held that the insurer was not liable to the judgment creditor on this default judgment and said:

The driver’s suit papers might have informed the insurer that the insured had been named as a defendant in the action, but as we have stated they would not advise it that the insured had been brought into court. And neither the language of the policy, nor the construction made by any court of such provisions as it contains, has imposed on the insurer, merely because it knows that an insured has been named as a defendant in an action, the sentry duty of tracking back and forth to the court house to keep a check on if or when he may be served with process.

See also, Lummus v. Western Fire Ins. Co. of Fort Scott, Kan., 443 S.W.2d 767 (Tex.Civ.App.—El Paso 1969, no writ).

The need for notice of service is especially evident in this case in that Busch was never served with Weaver’s amended petition. Since Busch had not entered an appearance in the case, service on him of the amended petition was required because the demand was increased from $11,800 to $201,800. It is recognized that new citation is necessary for a party who has not appeared when the plaintiff, by amended petition, seeks a more onerous judgment than prayed for in the original pleading. Sanchez v. Texas Industries, Inc. 485 S.W.2d 385 (Tex.Civ.App.—Waco 1972, writ ref’d n. r. e.); Phillips v. The Maccabees, 50 S.W.2d 478 (Tex.Civ.App.—Waco 1932, no writ); McDonald Texas Civil Practice, § 8.11.2 (1970).

Under the facts of this case, Hartford would have been gratuitously subjecting itself to liability if it had entered an appearance for Busch, who had failed to comply with the policy conditions, who had stated he was not a permissive user, and who had never been served with process, in & suit which sought damages in excess of the policy limits. Therefore, we hold that Hartford had no duty to voluntarily undertake a defense for Busch. We express no opinion as to the validity of the judgment against Busch.

The judgment of the court of civil appeals is affirmed.

GREENHILL, Chief Justice,

concurring dissenting.

I agree with the substance of the dissenting opinion of Justice McGee. I do not agree with his statement that the court’s opinion declared void the default judgment obtained against Busch. Nor is it necessary to express an opinion on the “present day tendency to interpret automobile liability insurance . . . as a contract for the benefit of the injured party.”

This case, however, is distinguishable from Members Mutual Insurance Company v. Cutaia, 476 S.W.2d 278 (1972), and related cases. There the named insured, — the person who entered into the agreement and who had the possession of the policy and could consult it, failed to carry out the provisions of the policy. This court had previously held that the failure of the named insured to give notice of the accident or forward suit papers was a breach of the agreement which excused performance by the insurance company. I would not extend those holdings to excuse the insurance company where it has prompt and actual knowledge of the accident, notice of the accident from the named insured, and has the suit papers in hand giving the names of all the defendants, well in advance of trial — forwarded by the named insured. The suit papers were forwarded to the insured by the named insured, Thomas, a year and a half before the trial resulting in judgment against Busch, the omnibus insured. Busch was named as a defendant in the suit papers thus forwarded by the named insured, Thomas. The holding of the court, with which I cannot agree, is that the insured had no obligation to defend the suit because Busch did not also forward copies of the suit papers.

The omnibus insured is really a stranger to the actual provisions of the written insurance policy. There is no showing that he had ever seen it, or was advised that he should do anything.

MeGEE, Justice,

dissenting.

I respectfully dissent.

Hartford Accident & Indemnity Co., hereinafter referred to as Hartford, advanced two basic arguments to avoid liability on the insurance contract to the judgment creditor Weaver. First, Hartford argued that Busch’s failure as an omnibus insured to comply with a condition in the policy that required the forwarding of any suit papers received relieved it of any liability to Weaver. It was of no consequence, Hartford reasoned, that the same set of suit papers were timely forwarded to it by the named insured. Secondly, Hartford urged that the default judgment obtained against Busch, which formed the basis of the present action, was void because the record reveals that Busch was not served with citation of the amended petition.

In reaching its decision, the majority expressly adopted the first argument and, by implication, adopted the second argument. I am compelled to dissent because a manifest injustice has occurred to an innocent injured third party as a result of the majority’s holding in this ease. In reversing the judgment of the court of civil appeals and affirming that of the trial court, I would hold that the policy provision concerning the forwarding of suit papers was substantially complied with when the named insured forwarded the papers to Hartford. Additionally, I would hold that the default judgment against Busch was not void because the judgment recitals therein declared that Busch had been duly served with process but failed to answer or appear; consequently, absolute verity was imparted to the judgment thereby precluding resort to the record to show otherwise.

The majority holds that Hartford had no duty to voluntarily undertake a defense for Busch because, as an omnibus insured, he failed to also forward the suit papers to Hartford. I do not share the majority’s concept of the purpose of the provision in question here and this leads me to view the primary issue somewhat differently. In my opinion, the question to be resolved is simply whether or not there has been compliance with a contract provision, taking into account the purpose to be served by such a provision, sufficient to obligate the insurer to an injured third party.

The Hartford policy in question, similar to other liability policies of this type, contains provisions concerning an insured’s duties in the event of an accident, claim or suit. The pertinent provisions are as follows:

“(a) In the event of an occurrence, written notice containing particulars sufficient to identify the insured and also reasonably obtainable information with respect to the time, place and circumstances thereof, and the names and addresses of the injured and of available witnesses, shall be given by or for the insured to the company or any of its authorized agents as soon as practicable. The named insured shall promptly take at his expense all reasonable steps to prevent other bodily injury or property damage from arising out of the same or similar conditions, but such expense shall not be recoverable under this policy.
“(b) If claim is made or suit is brought against the insured, the insured shall immediately forward to the company every demand, notice, summons or other process received by him or his representative. . ” [Emphasis theirs].

The policy makes satisfaction of these provisions a condition precedent to the insurer’s liability on the policy to the insured. Not surprisingly, the courts of this state have consistently held that, as between the named insured and the insurer, the failure of the named insured to comply with the conditions of the policy requiring notice of accident or notice of suit will relieve the insurer of liability to an injured third party. See Members Mutual Insurance Co. v. Cutaia, 476 S.W.2d 278 (Tex.1972); Womack v. Allstate Insurance Co., 156 Tex. 467, 296 S.W.2d 233 (1957); Klein v. Century Lloyds, 154 Tex. 160, 275 S.W.2d 95 (1955); New Amsterdam Casualty Co. v. Hamblen, 144 Tex. 306, 190 S.W.2d 56 (1945); Lane v. Anchor Casualty Co., 355 S.W.2d 90 (Tex.Civ.App.—Houston 1962, no writ). It is essential to reiterate that the above cases concerned themselves with situations in which the only parties involved were the insurers and the named insureds. Therefore, when the named insured failed to either give notice of the accident or forward the suit papers, there was a complete failure to meet the terms of the policy; the insurer was, therefore, substantially prejudiced because the purpose of including the provisions in the policy was totally thwarted.

The same rule should not apply, however, when either the named insured or the omnibus insured gives notice of the accident or forwards the suit papers. With respect to the notice of accident provision, this Court held in Employers Casualty Co. v. Glens Falls Insurance Co., 484 S.W.2d 570 (Tex.1972), that timely written notice of an accident from the named insured to the insurer substantially complied with the contract provision of the policy and the purpose to be served by such a provision, and that another notice was not required of the omnibus insureds. The purpose of that clause, we stated, was to “enable an insurer to investigate the circumstances of an accident while the matter is fresh in the minds of the witnesses so that it may adequately prepare to adjust or defend any claims that may be then or thereafter asserted against persons covered by its policy.” Id. at 575.

By its present holding, the majority formulates a different rule with respect to the provision concerning suit papers. In order to be in compliance with the policy’s provisions and invoke the liability of the insurer, the named insured and the omnibus insured must both forward the suit papers. The majority states that the basic purpose of the provision is to advise the insurer that an insured has been served with process and that the insurer is expected to timely file an answer; consequently, it is reasoned that this purpose requires strict compliance with the terms of the policy in order to meet this purpose. I disagree.

I would hold that the main purpose of the provision in question is to enable the insurer to control the litigation and interpose a defense against any claims on the merits of the case. See Brown v. State Farm Mutual Automobile Casualty Insurance Co., 506 F.2d 976 (5th Cir. 1975); M.F.A. Mutual Insurance Co. v. White, 232 Ark. 28, 334 S.W.2d 686 (1960); Wendel v. Swanberg, 384 Mich. 468, 185 N.W.2d 348 (1971). I believe that this purpose was satisfied in the instant case when Thomas Enterprises, the named insured, forwarded the suit papers to Hartford. Under the provisions of the contract, Hartford initially had the duty to defend both Thomas Enterprises and Busch. See generally Heyden Newport Chemical Corp. v. Southern General Insurance Co., 387 S.W.2d 22 (Tex.1965); Kahla v. Travelers Insurance Co., 482 S.W.2d 928 (Tex.Civ.App.—Houston [14th Dist.] 1972, writ ref’d n. r. e.). Upon receipt of the pleadings, Hartford was given notice of both the nature of the suit and the fact that an action was being asserted against the named and omnibus insureds, both of whom were clearly identified. This notice gave the insurer ample time in which to determine the possible liability of any of the insured parties involved and whether it would settle, defend, or even refuse to defend, the action. See M. Woodruff, J. Fonseca, A. Squillante, Automobile Insurance and No-Fault Law § 8:20 (1974). Forwarding of another set of the same suit papers would accomplish nothing.

There is a present day tendency to interpret automobile liability insurance not only as a contract between the insurer and the insured, but also as a contract for the benefit of the injured party. See R. Keeton, Insurance Law § 4.7(a) (1971); 2 R. Long, The Law of Liability Insurance §§ 13.06, 13.18 (1976). The majority’s holding frustrates this interpretation as it elevates form over substance by permitting the insurer to avoid liability on a ground which, in my opinion, is unrelated to its ability to control the litigation.

The majority mentions the case of Lummus v. Western Fire Insurance Co., 443 S.W.2d 767 (Tex.Civ.App.—El Paso 1969, no writ) as additional support for its position. Apparently that is the only prior Texas appellate court decision on point; however, I do not consider it to be persuasive authority. The relevant facts there were very similar to those in the present case. The single point of error before the court was that it was unnecessary for an omnibus insured to give notice of an accident if the named insured had already done so. The court stated that it did not need to reach that point because the judgment creditor failed to prove that the driver of the vehicle was an omnibus insured under the terms of that particular policy. It then noted that even if the driver had been an omnibus insured, he never forwarded the suit papers to the insurer and this was a condition precedent to the insurer’s liability, citing Klein v. Century Lloyds, supra, and New Amsterdam Casualty Co. v. Hamblen, supra. First, the statement by the court relied on by Hartford was dictum. Secondly, the authority cited by the court was not factually pertinent as there were no omnibus insureds involved in those cases, only named insureds who failed to comply with the conditions of the policy.

Consistent with our reasoning in Employers Casualty Co. v. Glens Falls Insurance Co., supra, I would hold that the forwarding of suit papers to the insurer by the named insured accrued to the benefit of the omnibus insured and that it was unnecessary for the omnibus insured to forward the same set of suit papers in order to obligate the insurer to the judgment creditor in this case. Moreover, such a holding would be in accord with the weight of authority. Royal Indemnity Co. v. Pearson, 246 So.2d 652 (Ala.1971); Kidwell v. Chuck Olson Oldsmobile, Inc., 481 P.2d 908 (Wash.Ct.App.1971); Carter v. Aetna Casualty & Surety Co., 473 F.2d 1071 (8th Cir. 1973); Indemnity Insurance Co. of North America v. Forrest, 44 F.2d 465 (9th Cir. 1930); Annot., 18 A.L.R.2d 443, 458 (1951).

By examining the conduct of the insurer and the named insured in this case, the harshness of denying Weaver’s recovery on the basis of an asserted noncompliance with a contract provision is apparent. From my review of the record, neither Hartford nor Thomas Enterprises ever indicated to Busch that he might be covered by the policy or provided him with any instructions of what to do in the event that he was served. Shortly after the accident Busch was interviewed several times by the Hartford adjusters. It is undisputed that he gave them conflicting statements as to whether or not he was a permissive user of the vehicle at the time of the accident. Busch testified at trial that his employer had instructed him to inform Hartford that he was not a permissive user. The jury resolved the conflict with a finding that Busch was indeed a permissive user, and there was adequate evidence adduced to support such a finding.

Hartford’s witness in the present action could not recall whether any of its adjusters had informed Busch to forward any suit papers that he might have received. Busch testified that he received no guidance whatsoever from Hartford in this regard, despite the fact that he was a totally cooperative witness for Hartford in all respects. Moreover, there is nothing in the record on the part of Hartford or Thomas Enterprises that would have led Busch to believe that there was a possibility of him being covered under the policy. At oral argument, Hartford took the stance that it was under no duty to inform Busch that he might be covered by the policy, although Hartford was apparently aware that Busch possessed a somewhat minimal education and might not have comprehended the extent of the coverage of an insurance agreement between his employer and the insurer. In conclusion, the party most harmed in this case is Weaver, who, ironically, is the most innocent of all the actors involved.

In its second argument, Hartford urged that the default judgment obtained against Busch was void because the record reveals that Busch was not served with the amended petition on which the default judgment was taken. This constitutes a collateral attack on that judgment by Hartford. See generally Akers v. Simpson, 445 S.W.2d 957 (Tex.1969); Hodges, Collateral Attacks on Judgment, 41 Texas L.Rev. 163, 164 (1962). The default judgment secured against Busch contained recitations that Busch was duly served with process, failed to appear and wholly made default. It is well settled in Texas that in a collateral attack, absolute verity is imported to the judgment by the jurisdictional recitals contained therein. See Treadway v. Eastburn, 57 Tex. 209 (1882); Crawford v. McDonald, 88 Tex. 626, 33 S.W. 325 (1895); Levy v. Roper, 113 Tex. 356, 256 S.W. 251 (1923); Akers v. Simpson, supra; Williams v. Coleman-Fulton Pasture Co., 157 S.W.2d 995 (Tex.Civ.App.—San Antonio 1941, writ ref’d w.o.m.); Jordan v. Texas Pacific Coal & Oil Co., 152 S.W.2d 875 (Tex.Civ.App.—Amarillo 1941, writ ref’d); Watson v. Rochmill, 134 S.W.2d 710 (Tex.Civ.App.—Eastland 1939), rev’d on other grounds, 155 S.W.2d 783 (Tex.1941). Consequently, I would hold that the default judgment obtained against Busch is not subject to collateral attack because, under the circumstances, the judgment recitals preclude a resort to the remainder of the record to attack the judgment.

Accordingly, I would reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.

      . The jury was instructed that an “insured” under the policy was one operating a Thomas vehicle with the permission of the named insured provided the actual operation was within the scope of such permission. This instruction was based on the following provisions of the policy defining who was to be an insured:
      (a) the named insured;
      (b) . . .
      (c) any other person while using an owned automobile or a hired automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission ...” [Emphasis theirs].

      . Insured’s Duties in the Event of Occurrence, Claim or Suit
      (a) In the event of an occurrence, written notice containing particulars sufficient to identify the insured and also reasonably obtainable information with respect to the time, place and circumstances thereof, and the names and addresses of the injured and of available witnesses, shall be given by or for the insured to the company or any of its authorized agents as soon as practicable. The named insured shall promptly take at his expense all reasonable steps to prevent other bodily injury or property damage from arising out of the same or similar conditions, but such expense shall not be recoverable under this policy.
      (b) If claim is made or suit is brought against the insured, the insured shall immediately forward to the company every demand, notice, summons or other process received by him or his representative. [Emphasis theirs].
      (c) • ■ •

      . Action Against Company. No action shall lie against the company unless, as a condition precedent thereto, there shall have been full compliance with all of the terms of this policy, nor until the amount of the insured's obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the company.
      Any person or organization or the legal representative thereof who has secured such judgment or written agreement shall thereafter be entitled to recover under this policy to the extent of the insurance afforded by this policy. . . . [Emphasis theirs].


author: McGEE, Justice.

text:
    ARMSTRONG RUBBER COMPANY, Petitioner, v. Conrada URQUIDEZ and Clemente Urquidez, Jr., Respondents.
    No. B-7439.
    Supreme Court of Texas.
    July 5, 1978.
    Rehearing Denied Oct. 4, 1978.

      Rassman, Gunter & Boldrick, John E. Gunter, Midland, for petitioner.
    Warren Burnett Associated, Richard J. Clarkson, Odessa, for respondents.
   McGEE, Justice.

This appeal involves the question whether the doctrine of strict liability in tort applies where the product has not entered the stream of commerce and where there has been no sale of the product by the manufacturer but a bailment for mutual benefit. The widow and son of test driver Clemente Urquidez brought suit against Armstrong Rubber Company. The plaintiffs pled that Urquidez was killed as the result of a blowout of a tire alleged to be defective in design and manufacture. The trial court rendered judgment on the jury’s determination that the tire was defective in its design or manufacture and that the defect was the producing cause of the accident. The widow was awarded $75,000 and the son $12,-000 with the award subject to the subrogation rights of the intervening worker’s compensation carrier. The Court of Civil Appeals affirmed. 560 S.W.2d 781. We reverse the judgments below and render judgment that the plaintiffs take nothing.

Automotive Proving Grounds, Inc. owns and operates a tire-testing facility near Pecos. On January 1, 1970, Automotive contracted to provide testing facilities to the defendant, Armstrong, on a part-time basis for a period of ten years. Under the contract Armstrong agreed to provide and maintain all trucks and vehicles required for its testing. It was Automotive’s responsibility to maintain the track and buildings comprising the testing facility, to provide drivers, mechanics, and other personnel necessary for testing purposes and to promulgate safety rules and driver qualifications.

The deceased, Clemente Urquidez, was employed by Automotive as a test driver. At the time of the accident, he was driving a tractor/trailer rig owned by Armstrong. Urquidez was performing a standard test at 60 m. p. h. on the oval test track when the left front tire of the tractor blew out. Ur-quidez decelerated the truck into the infield area of the oval track where he encountered soft sand, overturned and was killed. The tire that blew out was an Allstate Express Cargo Nylon 12-ply non-interest spare manufactured by Armstrong. Both front tires on the tractor were non-interest spares. A “non-interest spare” is a term applied to a tire mounted on the test truck along with the tires being tested, but which is not itself being tested. The tire in question had never been sold by Armstrong. It was new when received at the Pecos facility. The tire was never tested at the Pecos facility but was manufactured and provided for use only as a non-interest spare on Armstrong’s trucks. The tire was of the same quality as tires manufactured by Armstrong and sold across the nation.

The doctrine of strict liability as enunciated in the Restatement (second) of Torts § 402A has been adopted as the rule in Texas. Rourke v. Garza, 530 S.W.2d 794 (Tex.1975); Darryl v. Ford Motor Company, 440 S.W.2d 630 (Tex.1969); McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967). The Restatement imposes liability on sellers of defective products that are unreasonably dangerous and cause damage to a user or consumer. The rule applies to any person engaged in the business of selling products for use or consumption. Restatement (second) of Torts § 402A, comment f (1965). Although phrased in terms of sellers, it is not necessary that the defendant actually sell the product, but only that he be engaged in the business of introducing the product into channels of commerce. See, Rourke v. Garza, supra. The product, however, must reach the user in essentially the same condition as when it left the seller’s possession. Restatement (second) of Torts § 402A(l)(b) (1965). The rule applies even though the seller has exercised care in the preparation and sale of the product and even though the user has not purchased the product or entered into any contractual arrangements with the seller. Restatement (second) of Torts § 402A(2) (1965).

The present case was submitted to the jury on the theory of strict liability in tort. Under this theory the plaintiffs bore the burden of proving (1) the defective and unreasonably dangerous condition of the defendant’s product and (2) a causal connection between such condition and the plaintiffs’ injuries or damages. See, J. Sales and J. Perdue, The Law of Strict Tort Liability in Texas, 14 Hous.L.Rev. 1, 7-8 (1976-77); R. Hursh and H. Bailey, American Law of Products Liability 2d, Sec. 4:10 at 660-64 (1974). Implicit in the first element is the requirement that the plaintiff show that the defendant placed the product in the stream of commerce.

Armstrong initially questions the application of the doctrine of strict liability to the tire in question. Armstrong contends that the tire was provided for the industrial purpose of testing other tires and that the accident occurred in its “testing laboratory.” Armstrong argues that the defective tire was neither manufactured for market nor placed in the stream of commerce. We agree that the tire never entered the stream of commerce.

In extending the doctrine of strict liability to the present bailment, the Court of Civil Appeals emphasized that tires of the same design and manufacture were “regularly sold by Armstrong in regular channels of commerce.” We do not believe it sufficient, however, that the seller merely introduce products of similar design and manufacture into the stream of commerce. To invoke the doctrine of strict liability in tort the product producing injury or damage must enter the stream of commerce. In General Motors Corp. v. Hopkins, 548 S.W.2d 344, 351 (Tex.1977) we said that liability rests on the defendant “placing into the stream of commerce a product which is demonstrated at trial to have been dangerous.”

The Court of Civil Appeals further emphasized that Urquidez was not employed to test non-interest spares. In that court’s opinion the dual policy considerations of “loss distribution” and “injury reduction” might best be served by extending the doctrine of strict liability to the present bailment transaction. Armstrong, on the other hand, urges that the policy considerations underlying the doctrine of strict liability in tort should not be advanced as the basis for the doctrine’s protection where the essential elements of the doctrine have not been satisfied. Clemente Urquidez was employed to test tires. It was in part his job to provide safe tires for the public. Armstrong therefore argues that he was not the ordinary user or consumer entitled to the protection afforded by strict liability in tort.

While we agree that Clemente Ur-quidez was not hired to test the non-interest spare, we would not extend the doctrine of strict liability in tort on that basis. Although the defective tire was not itself the subject of the test, it was manufactured and provided for the limited purpose of testing other tires. The non-interest spare was never sold and, more importantly, never entered the stream of commerce. We recognize that application of strict liability in tort does not depend upon a sale of the product, nevertheless the product must be released in some manner to the consuming public. See, Rourke v. Garza, supra; McKisson v. Sales Affiliates, Inc., supra. The Restatement does not make a manufacturer an insurer of every person who is injured by one of its products. Martinez v. Dixie Carriers, Inc., 529 F.2d 457 (5th Cir. 1976).

As this is a case of first impression, the plaintiffs direct our attention to several cases originating in other jurisdictions which extend the doctrine of strict liability in tort to bailment transactions. Cf. Whitfield v. Cooper, 30 Conn.Sup. 47, 298 A.2d 50 (1972); Nowakowski v. Hoppe Tire Co., 39 Ill.App.3d 155, 349 N.E.2d 578 (5th Dist. 1974); Bainter v. Lamoine LP Gas Co., 24 Ill.App.3d 913, 321 N.E.2d 744 (3d Dist. 1974); Fullbright v. Klamath Gas Co., 271 Or. 449, 533 P.2d 316 (1975). We have reviewed these authorities, but do not find them persuasive as each bailment arose in a transaction essentially commercial in character. In Whitfield, the defendant bailed its customer a defective car for use while defendant repaired the customer’s car. In Fullbright, the defendant provided a defective potato vine burner to its customer in connection with defendant’s sale of gas. In Bainter, the defendant loaned a defective gas tank in which its customer stored gas purchased from defendant. In Nowakowski, the defendant substituted a defective wheel assembly from its own stock in the course of repairing its customer’s truck. An employee of the customer was subsequently injured while mounting a tire on the defective wheel assembly provided by defendant. In each case cited, the bailment for mutual benefit accompanied a sale of goods or services. In each instance the manufacturer, supplier or retailer released the product to its customer. Accordingly, the product provided was in the stream of commerce. These cases are clearly distinguishable from our present facts where Armstrong pursuant to its contract with Automotive provided non-interest spares for the purpose of testing new or experimental tires.

Armstrong never released the non-interest spare to an ordinary user or consumer within the meaning of the Restatement. The defective tire, although not itself the subject of the test, always remained within the industrial, testing process. Accordingly, the tire never entered the stream of commerce. The lower courts, therefore, inappropriately applied the doctrine of strict liability to the present industrial transaction.

The judgments of the Court of Civil Appeals and the trial court are reversed and judgment is here rendered that the plaintiffs take nothing.


author: PER CURIAM.

text:
    The CITY OF MESQUITE, Petitioner, v. ALADDIN’S CASTLE, INC., Respondent.
    No. B-7200.
    Supreme Court of Texas.
    July 5, 1978.
    Rehearing Denied Oct. 4, 1978.
    Elland Archer, Mesquite, for petitioner.
    Bickel & Case, Thomas L. Case, Dallas, for respondent.
   PER CURIAM.

The City of Mesquite appeals from a judgment granting a mandatory injunction directing the City to issue a license to operate a coin-operated amusement center to Aladdin’s Castle, Inc. The trial court granted the injunction upon a finding that certain provisions of the ordinance in question were unconstitutionally vague, and upon the further determination that the decision of the Mesquite City Council to deny the license was not supported by substantial evidence. Upon appeal by the City, the judgment was affirmed. 559 S.W.2d 92.

We are satisfied that the judgment of the Court of Civil Appeals is correct and that the Application for Writ of Error presents no error requiring reversal. Rule 483, Tex. R.Civ.P. The denial of the license was not reasonably supported by substantial evidence. We do not reach the question of the constitutionality of the ordinance, cf. Wood v. Wood, 159 Tex. 350, 320 S.W.2d 807 (1959), and we express no view as to the correctness of the holding of the Court of Civil Appeals in this respect.

The Application for Writ of Error is refused, no reversible error.


author: BARROW, Justice.

text:
    The LIFE INSURANCE COMPANY OF VIRGINIA, Petitioner, v. GAR-DAL, INC., et al., Respondents.
    No. B-7236.
    Supreme Court of Texas.
    July 12, 1978.
    Rehearing Denied Oct. 4, 1978.

      Atwell, Cain & Davenport, Mark T. Davenport, Dallas, for petitioner.
    Lyne, Klein, French & Womble, Erich F. Klein, Jr., and Ron Edmondson, Stephens & Stephens, Bill J. Stephens, Dallas, for respondents.
   BARROW, Justice.

The trial court granted plaintiff, The Life Insurance Company of Virginia, a summary judgment for the deficiency owing after foreclosure of a deed of trust which secured a promissory note executed by defendant, Gar-Dal, Inc., and guaranteed by defendants, O. K. Jones, Ted Hunt, Jr., R. L. McSpedden, Charles C. Shaver, and Paul Hamby. The judgment granted the latter three guarantors indemnity from Jones and Hunt under a written indemnity contract. Only Gar-Dal, Inc., Jones and Hunt appealed. The court of civil appeals held that the summary judgment proof was inadequate and reversed the trial court judgment and remanded the entire cause for a new trial. 557 S.W.2d 565. We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.

Plaintiff’s amended motion for summary judgment is supported by the affidavit of Ronald F. McRoberts, vice-president of plaintiff, which was executed on March 2, 1976, just before the motion for summary judgment was filed. After averring that the affidavit was made from his personal knowledge, he swore that Life of Virginia had acquired the note and deed of trust lien on or about December 3, 1974, and “thereafter has been and is the sole owner and holder of the Note,” and that true and correct copies of the note and guaranty agreement were attached to his affidavit. Defendant Jones, individually and as president of Gar-Dal, Inc., replied to the motion for summary judgment but did not deny the execution or validity of the note, nor did he except to the form of plaintiff’s motion or the supporting affidavit.

The amended motion for summary judgment was heard on August 26, 1976, and a partial summary judgment was granted. A hearing was set on the remaining fact question of reasonable attorney fees. This hearing was held on October 20, 1976, and a final judgment, which incorporated the partial summary judgment, was signed on October 21, 1976. This judgment was vacated and a new judgment signed on December 3, 1976, in order to make a correction not material to this appeal.

The court of civil appeals held that plaintiff was not entitled to a summary judgment on the note because the photocopy of the note which was attached to the affidavit of McRoberts was not properly authenticated and further, the affidavit did not state that plaintiff was in possession of the original note. Although neither of these alleged defects was pointed out to the trial court before the partial summary judgment was rendered, or even before the judgment of October 21,1976, was signed, the court of civil appeals held that since these defects were called to the attention of the trial court in the motion for new trial filed on November 1, 1976, they had not been waived by defendants.

Rule 166-A(e), Tex.R.Civ.Proc., sets forth the procedure for presenting summary judgment evidence by affidavit and documentary proof. Prior to January 1, 1978, this section provided:

“(e) Form of Affidavits; Further Testimony. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits.”

This rule, which has been considered by this Court in several others cases, has resulted in difficulty in resolving the question of what constitutes sufficient documentary summary judgment evidence. See: Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274 (1961); Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230 (Tex.1962); Boswell v. Handley, 397 S.W.2d 213 (Tex.1965); Southwestern Fire & Casualty Company v. Larue, 367 S.W.2d 162 (Tex.1963); Perkins v. Crittenden, 462 S.W.2d 565 (Tex.1970); Hidalgo v. Surety Savings and Loan Association, 462 S.W.2d 540 (Tex.1971); Texas Nat. Corp. v. United Systems Internad, Inc., 493 S.W.2d 738 (Tex.1973). This difficulty has been caused, at least in part, by the reluctance of the parties or counsel to attach the original of valuable instruments to the suit papers. Although we have recognized that attaching the original document would avoid many of the problems encountered in the above cited cases, we have held that Rule 166-A(e), Tex.R.Civ. Proc., does not require that originals be attached. In Perkins v. Crittenden, supra, this Court said:

“ ‘[Crittenden] could have discharged [his] burden without producing and introducing the original note, under Rule 166-A(e), by attaching a sworn or certified copy of the note to a proper affidavit or by serving such copy with an affidavit. Gardner v. Martin, [162 Tex. 156, 345 S.W.2d 274 (1961)].’ Other cases in point are Boswell v. Handley, 397 S.W.2d 213 (Tex.Sup.1966); and Mitchell v. Geosonic Corporation, 431 S.W.2d 958 (Tex.Civ.App.1968, no writ).”

In this cause plaintiff attached a properly identified photocopy of the note to the affidavit of McRoberts and McRoberts swore before an authorized person that the photocopy was a true and correct copy of the original note. We hold that the photocopy of the note attached to the affidavit under these circumstances was a “sworn copy” within the meaning of Rule 166-A(e) and that, therefore, it was proper summary judgment evidence.

Furthermore, defendants waived their right to complain of the alleged defect in the form of plaintiff’s proof by failure to except to the motion for summary judgment or the affidavit accompanying same prior to entry of the judgment. Youngs town Sheet & Tube Co. v. Penn, supra; Roland v. McCullough, 561 S.W.2d 207, (Tex.Civ.App.—San Antonio 1977, writ ref’d n. r. e.). These alleged defects were, matters of form that might easily have been cured if they had been timely pointed out in the response to the motion for summary judgment. Although the trial court still had jurisdiction on November 1, 1976, and thus the discretion to set aside the judgment, it did not abuse its discretion in refusing to do so. We conclude that the better rule is that defects of form are waived if not pointed out to the trial court before summary judgment is rendered. See: Jones v. McSpedden, 560 S.W.2d 177 (Tex.Civ.App.—Dallas 1977, no writ).

It was also urged by defendants and found by the court of civil appeals that the affidavit of McRoberts is inadequate to support the judgment in that he did not swear that plaintiff was in possession of the note. In Texas Nat. Corp. v. United Systems Internat'l, Inc., supra, we said that if a sworn or certified copy, rather than the original of the note is used, “the motion or affidavit should clearly evidence that the plaintiff is the present owner and holder and in possession of the note.” That case was reversed because the factual statements to support the motion for summary judgment were in the pleadings and not in a sworn motion or affidavit filed in support of the motion. Furthermore, although the original note was not attached to the motion for summary judgment filed by United Systems International, the affiant did not swear that plaintiff was the owner and holder of the note sued upon.

Here, McRoberts swore in his affidavit that plaintiff “is the sole owner and holder” of the note. As defined in Tex.Bus. & Comm.Code Ann. § 1.201(20), “ ‘Holder’ means a person who is in possession of a document of title or an instrument or an investment security drawn, issued or indorsed to him or to his order or to bearer or in blank.” Furthermore, as defined in Webster’s New Collegiate Dictionary, a “holder” is (1) a person that holds; (2) a person in possession of and legally entitled to receive payment of a bill, note or check. Thus, under either legal or lay terms, the affidavit of McRoberts, which was predicated upon sufficient facts to show personal knowledge, evidences that at the time of filing the motion for summary judgment plaintiff was the owner, holder and in possession of the note. This evidence stands uncontroverted by defendants and properly supports the summary judgment on the note.

Defendants urge by a cross-point that the trial court erred in granting the summary judgment because there are genuine issues of material fact raised as to whether all offsets and payments have been credited to the note by plaintiff. Since payment is an affirmative defense, the burden was upon defendants to come forward with summary judgment proof sufficient to raise at least an issue of fact that offsets or payments had not been credited to the note. Nichols v. Smith, 507 S.W.2d 518 (Tex.1974); Seale v. Nichols, 505 S.W.2d 251 (Tex.1974).

The affidavit of defendant Jones avers generally that Gar-Dal, Inc. was not given credit for the value of the leases and revenues from the building which were assigned to plaintiff along with the lien on the building. He does not state that any specific amount was received by plaintiff nor does he name any person who he claims made a payment. In response to this general statement, McRoberts swore unequivocally that no revenues were received from the building by plaintiff prior to foreclosure of the lien.

A similar question was considered in Smith v. Crockett Production Credit Association, 372 S.W.2d 956 (Tex.Civ.App.—Houston 1963, writ ref’d n. r. e.) wherein the defendant swore in response to plaintiff’s motion for a summary judgment on a note that he had not been given credit for all of the offsets and payments that had been made. In rejecting the contention that this response raised a fact issue, the court said:

“we are of the view that the plea in appellant Smith’s affidavit, there being nothing more, stating that all offsets and credits have not been allowed, is but a conclusion. It should have gone further and specified what such credits and offsets were. If this had been a trial on the merits and the only thing stated by appellant was that all offsets and payments had not been credited, the court would have been required to instruct a verdict against appellant. His testimony in such a trial, that all payments and offsets had not been allowed, without more, would be a pure conclusion. See Franklin Life Ins. Co. v. Rogers, 316 S.W.2d 116 (CCA), ref., n. r. e.”

We agree with this holding and conclude that the statement in the opposing affidavit of defendant Jones that all offsets and payments had not been credited to the note is a conclusion and is insufficient to raise an issue of fact that plaintiff failed to credit all offsets and payments to the note.

Defendants assert by a second cross-point that if the judgment is reversed as to Gar-Dal, Inc., Jones and Hunt, and the cause remanded as to them, it should be remanded as to all defendants. This point is immaterial in view of our affirmance of the trial court judgment.

The judgment of the court of civil appeals is reversed and the judgment of the trial court is affirmed.

      . The following sentence was added to this section effective January 1, 1978:
      “Defects in the form of affidavits or attachments will not be grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend.”


author: POPE, Justice.

text:
    Melba Rheudell BURRELL, Petitioner, v. J. R. CORNELIUS, Individually, et al., Respondents.
    No. B-7303.
    Supreme Court of Texas.
    July 12, 1978.
    Rehearing Denied Oct. 4, 1978.

      Kasmir, Willingham & Krage, Ben L. Krage, Dallas, for petitioner.
    Lovelace & Thompson, Inc., Joe W. Lovelace, Linden, Zeleskey, Cornelius, Rogers, Berry & Hallmark, James R. Cornelius, Jr., Lufkin, for respondents.
   POPE, Justice.

Melba Burrell instituted suit against J. R. Cornelius individually and doing business as the C. & H. Abstract Company to recover a sum equal to one-half of the proceeds from the sale of what she says was a community homestead. She asserts that defendant wrongfully disbursed her share of the funds to other persons. The defendant Cornelius answered, filed a counterclaim against the plaintiff, and also filed a third-party action against Ben L. Krage. Defendant Cornelius then filed a motion for summary judgment, and the trial court rendered an interlocutory summary judgment that the plaintiff take nothing. Defendant Cornelius later filed a motion for non-suit on his cross-action and third-party action which the court granted, making final the interlocutory summary judgment.

The court of civil appeals, being of the opinion that Mrs. Burrell had not timely filed her motion for new trial, dismissed her appeal. The omission of the date that the judge signed the order making final the summary judgment has created this appellate problem. The order states that the motion for non-suit was considered on January 20,1977, but it is silent about the date the judge signed the order. Plaintiff Bur-rell did not file her motion for new trial until February 3, 1977, and since a motion for new trial must be filed within ten days (Tex.R.Civ.P. 329b), the motion was out of time if January 20 was the date from which appeal time must be counted. The court of civil appeals so ruled and dismissed the appeal. 559 S.W.2d 96. We reverse the judgment of the court of civil appeals and remand the cause to that court to dispose of the cause upon the merits.

The trial court’s order states that the motion for non-suit came on for consideration “on this 20th day of January, 1977,” but the clerk’s file date that was written on the motion for non-suit shows that the motion itself was not filed until January 27. Tex.Rev.Civ.Stat.Ann. art. 1899. January 20 was an impossible date either for the court to have considered or to have rendered judgment on the motion for non-suit that was not yet filed. January 27 was the earliest possible date that the trial judge could have ruled upon the motion for non-suit, and since the motion for new trial was filed on February 3, it was well within the ten days required by Rule 329b. All other appellate steps, when dated from February 3, were timely and need not here be detailed. We hold, therefore, that appellant Burrell timely perfected her appeal.

The intended purpose for Rule 306a, Tex. R.Civ.P., is to fix a date certain from which appellate steps can be taken. The judgments and orders that come before this court show that some members of the bench and trial bar, as in this case, are careless in the observance of the rule. The current form books contribute to the problem and need to be corrected and revised to conform with the rule that was adopted in 1946. Many forms that are still published as correct examples are really appellate snares and traps. The rule is not satisfied by a recital in a judgment or order of the date that a matter comes on for trial or hearing but then leaves unstated the date that the judge signs the document, which is usually at a later date. See R. Stayton, Texas Forms §§ 3004, 3011, 3012, 3024 (1960). Other forms contained in current form books conclude with the faulty phrase, “Entered on this_day of_” See A. Mitchell & A. Gilbert, 11 Texas Practice, Methods of Practice § 623 (1970).

Judges render judgment; clerks enter them on the minutes. Coleman v. Zapp, 105 Tex. 491, 151 S.W. 1040 (1912). The entry of a judgment is the clerk’s record in the minutes of the court. “Entered” is synonymous with neither “Signed” nor “Rendered.” Bostwick v. Bucklin, 144 Tex. 375, 190 S.W.2d 818 (1945); Polis v. Alford, 267 S.W.2d 918 (Tex.Civ.App.—San Antonio 1954, no writ). The day a judge signs an order is frequently, perhaps usually, after the time the judgment is rendered and surely it is before the judgment is entered. 4 R. McDonald, Texas Civil Practice § 17.06 (1971). Rule 306a says that time commences to run for appellate steps when the judge “signs” the order. Fortunately in this case, the clerk’s official notation of the filing date on the motion for non-suit supplies official information showing that the appellant timely filed her motion for new trial. The court also corrected the date in the judgment as a clerical error by changing the January 20 date to January 27. Rule 306a states that the date of rendition of a judgment may be otherwise shown of record in the event the date of signing of a judgment or order is not shown as required by the rule.

It is the trial judge’s ultimate responsibility to read every judgment and order, however long and however many, and to correct every judgment and order that ignores Rule 306a. Law professors should teach, writers of legal form books should so correct their books, lawyers should so draft documents, and judges should make certain that above the signature on each judgment or order there are the words: “Signed this _ day of _, 19_”

The judgment of the court of civil appeals dismissing the appeal is vacated and this cause is remanded to the court of civil appeals for disposition on the merits.

      . ORDER
      BE IT REMEMBERED that on this 20th day of January, 1977 there came on for consideration the Motion of J. R. Cornelius, Defendant and Cross-Plaintiff herein having permission to take a non-suit on the Cross-Action filed against the Plaintiff, Melba Rheudell Burrell and the Cross-Defendant, Ben L. Krage, and the Alternative Defendant, Sidney Burrell.
      The 76th Judicial District Court having heretofore on the 22nd day of December, 1976 granted Summary Judgment in favor of the Defendant and said Judgment is hereby adopted by the Court as final Judgment in this cause.
      The Plaintiff, Melba Rheudell Burrell hereby given [sic] notice in open court to the Court of Civil Appeals for the Sixth Judicial District, Sitting at Texárkana, Texas and she is hereby given the statutory time in which to file a Transcript and Statement of Facts.
      /s/ Virgil E. Mulanax
      Judge

      . Since January 1, 1978, a motion for new trial is not a required predicate for an appeal. Rule 324.

      . Rule 306a. Date of Judgment, Etc.
      Judges are directed to cause, and attorneys and clerks are directed to use their efforts to cause all judgments, decisions, and orders of any kind to be reduced to writing and signed by the trial judge and the date of signing stated therein; but absence of any such showing shall not invalidate any judgment or order.
      In determining the periods within which the various steps of an appeal must be taken, the date of rendition of a judgment or order shall be deemed to be the date upon which the written draft thereof was signed by the trial judge as stated therein. This rule shall apply in determining the time within which to file a motion for new trial, notice of appeal, appeal bond or affidavit in lieu thereof, bills of exceptions, statements of facts in trial and appellate court, transcript in appellate court, petition for writ of error if appeal is by writ of error, or other procedure in connection with appeal; but this rule shall not be construed as determining what constitutes rendition of a judgment or order in any other situation or for any other purpose. In event the date of signing of a judgment or order is not shown therein as required above, then the date of rendition shall be otherwise shown of record.


text:
    Nicholas R. duPONT et al., Petitioners, v. J. D. HEDLEY et al., Respondents.
    No. B-7278.
    Supreme Court of Texas.
    July 12, 1978.
    Rehearing Denied Oct. 4, 1978.

      Cox, Pakenham & Roady, Joyce Cox, Houston, for petitioners.
    Farr & Fillion, Sidney L. Farr, Houston, for respondents.
   PER CURIAM.

The issue presented by this appeal is whether or not the plaintiffs, Mr. Hedley and Mr. Carter, must be licensed pursuant to the Real Estate License Act, in order to maintain the instant cause of action. The Court of Civil Appeals held that the services performed by Hedley and Carter were exempt from the provisions of the Act. 558 S.W.2d 72. We reverse the judgment of the Court of Civil Appeals and remand the case to that Court for further proceedings.

Beginning in 1959, Hedley and Carter entered a series of agreements with Nicholas R. duPont, Eugene duPont III, Ridgely, Inc., Terra Resources, Inc. and CRA International, Ltd., whereby Hedley and Carter were to locate prospective oil and gas properties and negotiate for the acquisition of the mineral interests. If producing wells were completed on the properties, duPont, et al., were to assign a Vi interest therein to the plaintiffs after production from such wells had offset the cost of acquisition of the interest and the cost of drilling the wells.

Hedley and Carter alleged that they performed their part of the agreements, but that duPont, et al., failed to make the requisite assignments. In 1966, the plaintiffs brought suit seeking specific performance of the agreements to assign, and an accounting.

The trial court sustained the defendants’ special exceptions to the plaintiffs’ petition, which was, accordingly, stricken. The exceptions were grounded upon the plaintiffs’ failure to allege that they were licensed pursuant to the Real Estate License Act and the Texas Securities Act. Hedley and Carter declined to amend their petition to plead licensure, as they could not honestly do so. The trial court severed the plaintiffs’ cause of action from a cross-action filed by the defendants and then dismissed the plaintiffs’ suit.

The Court of Civil Appeals reversed the judgment of the trial court and remanded the case to the trial court with instructions that it be reinstated. The Court held that the activities involved in this case were specifically exempted from the Texas Securities Act. Also, the Real Estate License Act was held to exempt transactions involving the sale, lease or transfer of mineral or mining interests in real property. The latter holding is contrary to Art. 6573a as it existed at all times relevant to this suit.

The Court of Civil Appeals erred in holding that the 1975 amendment was merely a clarification or specific statement of the law as it existed under the general exemption provisions of the Act prior to 1975. The law was well settled prior to the 1975 amendment that transactions in mineral interests were covered by the Act, and that in the absence of another applicable exemption, a Real Estate License was required in order for a person to recover compensation for the performance of the services listed in § 4(1) of the Act in connection with the sale or lease of mineral interests. Breeding v. Anderson, 152 Tex. 92, 254 S.W.2d 377 (1953).

The opinion of the Court of Civil Appeals in this case is in conflict with Breeding, a prior opinion of this Court. Accordingly, we grant the application for writ of error of duPont, et al., and without hearing oral argument, reverse the judgment of the Court of Civil Appeals and remand this cause to that Court for its consideration of other contentions urged by the parties. Rule 483, Tex.R.Civ.P.; Custom Leasing, Inc. v. Texas Bank & Trust Co. of Dallas, 491 S.W.2d 869 (Tex.1973).

      . Art. 6573a. All statutory references herein are to Vernon’s Annotated Texas Civil Statutes.

      . Art. 581-1, et seq.

      . Prior to 1975, the Real Estate License Act contained four general exemptions from the licensing requirement, none of which classified transactions in oil, gas or other mineral or mining interests as an exempted category of real estate transactions. Art. 6573a § 6 (1967). An amendment to Article 6573a, enacted in 1975, included § 3(h) which specifically exempts “transactions involving the sale, lease or transfer of any mineral or mining interest in real property.”


text:
    The CITY OF AUSTIN et al., Petitioners, v. Carol Marie COOKSEY et al., Respondents.
    No. B-7462.
    Supreme Court of Texas.
    July 12, 1978.
    Rehearing Denied Oct. 4, 1978.

      Jerry L. Harris, City Atty., Karen Parker, Asst. City Atty., Flahive & Ogden, Jack W. Latson, John L. Hill, Atty. Gen., Sam L. Jones, Jr., Asst. Atty. Gen., Clark, Thomas, Winters & Shapiro, Joan Burkin and Barry Bishop, Austin, for petitioners.
    Krist, Gunn & Weller, Ronald D. Krist, Houston, for respondents.
   PER CURIAM.

This is a wrongful death case. Carol Marie Cooksey, Pamela Kay Cooksey, Kimberly Dawn Cooksey, and Clara B. Cooksey, the widow, children, and mother of deceased, Michael Cooksey, and intervenor, St. Paul Insurance Company, recovered judgment against the State of Texas, City of Austin, and Hensel Phelps, Inc. Our disposition of the case does not require a recitation of the facts which is found in the opinion of the court of civil appeals. 561 S.W.2d 874.

We agree with the court of civil appeals that there is evidence to support the judgment of liability against the City and State. With the exception of two points discussed below, we find no reversible error presented in the four applications filed herein. However, because the judgments of the court of civil appeals and the trial court are contrary to statutory requirements concerning limits of liability and contribution, we grant the applications of the State of Texas and Hen-sel Phelps, Inc. pursuant to Tex.R.Civ.Proc. 483 for the sole purpose of reformation of the judgments to comply with the statutes.

The court of civil appeals does not write on the point raised by the State regarding its liability limits which are set by Texas Tort Claims Act, Tex.Rev.Civ.Stat.Ann. art. 6252-19. That Article provides:

“Sec. 3 Liability hereunder shall be limited to $100,000 per person and $300,000 for any single occurrence for bodily injury or death and to $10,000 for any single occurrence for injury to or destruction of property.”

Prior to this Act there could be no liability at all for torts committed by a governmental unit. Therefore, the limits of liability set by the Act must be accepted along with the benefits of the Act. When one person is injured or killed, and one plaintiff brings suit, the applicable limit of liability is $100,000. State Highway Depart. v. Pinner, 531 S.W.2d 851 (Tex.Civ.App.—Beaumont 1975, no writ). That limit should not change simply because the deceased is survived by two or more statutory beneficiaries under the wrongful death statute.

The controversy here centers around whether the term “per person” in the statute refers to the person injured or those persons who suffer a loss as a result of an injury to someone else. We think the clear meaning of the statute is that it refers to the person or persons who sustain injury. Similar provisions are often found in liability insurance policies. The insurance cases uniformly hold that the terms “per person” or “each person” or the like refer to the person injured. Williams v. Standard Acc. Ins. Co. of Detroit, Mich., 188 F.2d 206 (5th Cir. 1951); Valdez v. Interinsurance Exchange of Automobile Club of Southern California, 246 Cal.App.2d 1, 54 Cal.Rptr. 906 (Dist.Ct.App.) 1966; Appleman, Insurance Law and Practice, § 4891 (1942); Annot., 13 A.L.R.3d (1967). This is especially true in cases in which the words of limitation refer to “bodily injury” as they do in the Texas Tort Claims Act. In the Valdez ease it is pointed out that to construe “per person” to mean “per claimant” would mean that a sole surviving heir would be limited to the same recovery when he suffered loss from the death of two or more persons in the same accident as when he suffered loss from the death of only one person.

We hold that the State’s liability is limited to $100,000 as a result of the wrongful death of Michael Cooksey. The amount is to be apportioned according to the proportionate share of each claimant to the total amount awarded to all claimants against the State. Annot., 70 A.L.R.2d 416, 418 (1960).

It is not questioned here that the City is not directly liable to the adult respondents because notice of the claim was not given as required by the City charter. We therefore agree with the court of civil appeals that Hensel Phelps, Inc. is not entitled to contribution from the City of Austin for damages awarded to the adult respondents. However, under those circumstances, the contribution awarded between the remaining tort-feasors, the State and Hen-sel Phelps, Inc., should have been adjusted according to terms of Article 2212a, § 2(b), Tex.Rev.Civ.Stat.Ann., so that the “contribution to the damages awarded to the claimant shall be in proportion to the percentage of negligence attributable to each defendant.”

Since the errors discussed above involve mathematical calculations only, we would ordinarily render a judgment which complies with the statutory requirements. However, even though no complaint is made, counsel for Hensel Phelps, Inc. points out by footnote that the judgment of the trial court contains a typographical error “through over reliance upon a modern, computerized typewriter and hasty proofreading.” We agree there are apparent clerical errors in the judgment with regard to contribution. For example, the figures used in the provisions dealing with Kimberly Dawn Cooksey appear to be the figures which should be associated with Clara B. Cooksey. Also, the contribution between the State and City with regard to the award to Carol Marie Cooksey is set out twice using different figures each time.

Because of these apparent clerical errors, we deem it expedient to remand this cause to the trial court for the purpose of entering a corrected judgment in accordance with our instruction.

The judgment of the court of civil appeals is reversed and the cause is remanded to the trial court for the entry of a corrected judgment in accordance with the terms of this opinion.