author: McCLOUD, Chief Justice.

text:
    WESTCHESTER FIRE INSURANCE COMPANY, Appellant, v. Connie Marie WENDEBORN et al., Appellees.
    No. 5061.
    Court of Civil Appeals of Texas, Eastland.
    Nov. 10, 1977.
    Rehearing Denied Dec. 15, 1977.
    Robert D. Batjer, Jr., and Don Seamster, Abilene, for appellant.
    W. L. Burke, Jr., Abilene, for appellees.
   McCLOUD, Chief Justice.

This is a suit for workmen’s compensation death benefits. Connie Marie Wendeborn, surviving widow of Frank James Wende-born, deceased, and Paula Wendeborn as Next Friend for Cynthia Margaret Wende-born, surviving minor child of the deceased, sued Westchester Fire Insurance Company, alleging that Frank James Wendeborn was accidentally shot and killed while working in the course of his employment for the defendant’s insured employer. Judgment was rendered for plaintiffs and defendant appeals. We affirm.

Defendant first contends the evidence conclusively establishes that the deceased was intoxicated at the time of his fatal injury or, alternatively, the finding that he was not intoxicated was against the great weight and preponderance of the evidence.

The jury determined, in the only special issue submitted, that the deceased was acting in the course of his employment when he received the injury. The jury was instructed that an injury received while the “employee is in the state of intoxication” is not in the course of employment. Tex.Rev. Civ.Stat.Ann. art. 8306, § 1(3) and art. 8309, § I-

Dr. Joe Hall, a pathologist, who performed an autopsy on the deceased, testified that a blood-alcohol chemical analysis test was performed and the result showed the deceased’s blood-alcohol content was 0.165 percent at the time of death. He stated that the American Medical Association had determined that every individual with a concentration greater than 0.15 percent would “have lost to a measurable extent some of that clearness of intellect and control of himself that he would normally” possess. The doctor stated that in his opinion, based on the test performed, the deceased was intoxicated at the time of the injury. Defendant asserts that a blood-alcohol test result of 0.165 percent should, as a matter of law, constitute a “state of intoxication” under the Texas Workmen’s Compensation Act. Defendant has cited no authority for its contention and we have found none. The only cases cited refer to a “presumption” of intoxication, but such presumption is rebuttable. Tex.Rev.Civ.Stat. Ann. art. 67017-5, Sec. 3(a); Bolieu v. Firemen’s & Policemen’s Civil Service Commission, 330 S.W.2d 234 (Tex.Civ.App. — San Antonio 1959, writ ref. n. r. e.). We hold that the testimony of the pathologist does not conclusively establish that Frank James Wendeborn was intoxicated at the time he was shot.

Defendant also asserts the finding that the deceased was not intoxicated was against the great weight and preponderance of the evidence. In reviewing this point, we must consider all the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Frank James Wendeborn was shot at or about 11:00 p. m. on July 15, 1974, at the Tuxedo Mini-Mart, a grocery and beer store, operated and managed by the deceased. The witness, Smoot, testified that Wendeborn was “handing” him the gun when it fired. Smoot stated he was intoxicated and he and Wendeborn had been drinking beer during the afternoon and evening prior to the shooting. Four witnesses, Andrews, Ray Wright, John Wright, and Maxwell, testified that between 10:00 and 10:30 p. m. they stopped at the Mini-Mart store and each stated they observed the deceased and in their opinion he was not intoxicated. Two witnesses, Moody and Littlefield, observed the deceased at or about 11:00 p. m., shortly before the shooting, and they were of the opinion the deceased was not intoxicated. The rule is well established that anyone who has had an opportunity to observe the acts or conduct of a person on a particular occasion may state whether he was intoxicated. 2 McCormick & Ray, Texas Evidence § 1430 (2d ed. 1956). We hold the finding by the jury was not against the great weight and preponderance of the evidence.

Defendant next argues there was no evidence to support the finding that the injury to the deceased was of a kind and character originating in the work, trade or business of the employer. Alternatively, defendant says the evidence was factually insufficient to support the finding or that the finding was against the great weight and preponderance of the evidence.

Wendeborn was on the job working as the store manager of the Tuxedo Mini-Mart on the night in question. He usually worked alone and he customarily kept a shotgun at the store which was located in a “secluded spot”. There is evidence that persons who work in a secluded area are in a greater position of being robbed than someone working in a heavily populated area. Keeping firearms, however, was a violation of Mini-Mart’s rules. There is not any direct evidence that anyone told Wendeborn about this rule or that he was aware of the rule. The sheriff of Haskell County testified that he was aware of a shooting incident at the Mini-Mart about thirty days prior to the accident in question. At that time, some person shot into the Mini-Mart while Wendeborn was working. Wendeborn told the sheriff, after the “fellow” shot at him, he was going to keep a loaded gun at the store. Tex.Rev.Civ.Stat. Ann. art. 8309, § 1(4) provides in part that an injury shall include:

“. . . all other injuries of every kind and character having to do with and originating in the work, business, trade or profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of his employer . . . ”

In Gallaher v. United States Fidelity & Guaranty Co., 77 S.W.2d 812 (Tex.Civ.App.—marillo 1934, writ dism’d), an employee was accidentally shot when a shotgun slipped out of his car while the employee was cleaning oil tanks for his employer. The insurance carrier argued that the employee had injected a dangerous instrumentality into the employment which was not reasonably anticipated by the employer and not necessary to the employment. The court said:

“. . . an accident arises in the course of and out of the employment when it occurs within the period of the employment at a place where the employee reasonably may be in the performance of his duty and while he is fulfilling that duty or engaged in doing something incidental thereto . . . ”

After observing that the employee’s work required him to move about in a sparsely settled area where robberies had been committed, the court said:

“We think the testimony is sufficient to sustain the jury’s finding that the injury was sustained in the course of his employer’s business. The evidence shows that he and his wife lived in a sparsely settled district, several miles from any town or community center. That he was charged with pumping a certain amount of oil each day from wells situated upon two different leases about six miles apart. That robberies had been committed in that vicinity and belts and other movable property stolen from the two leases, that one party had been kidnapped, and that he frequently had to perform a part of his duties after sundown. It is common knowledge that the whole country is flooded with crime and that crime conditions are aggravated in oil 'districts which, without exception, become the rendezvous for criminals of the worst class. Under such circumstances he would have acted unwisely in attempting to protect his employer’s property without arming himself, and his fear of meeting with such characters was not unreasonable. Situated as he was, charged with the responsibility of protecting valuable property, we think the possession of the shotgun was incidental to the performance of his duties, as he was subjected to risks and hazards not reasonably inherent in the performance of such duties in more favorable localities.”

In the instant case, the store was in a secluded area; it was open late at night; approximately a month before the incident in question, while Wendeborn was on duty, a shot was fired into the store; there was testimony that persons working in secluded areas are more subject to crimes of violence; and, that is one of the risks involved in this type of work. We think that under the facts the jury could properly conclude that the keeping of the shotgun was incidental to the employment and performance of the deceased’s duties.

The violation of the employer’s rules regarding the keeping of firearms would not remove the deceased from the course and scope of employment. The controlling rule was recognized in Maryland Casualty Co. v. Brown, 131 Tex. 404, 115 S.W.2d 394 (1938) wherein the court said:

“. . . While it seems to be the rule that a violation of instructions of an employer by an employee will not destroy the right to compensation, if the instructions relate merely to the manner of doing work, yet it seems to be held by the weight of authority that violation of instructions which are intended to limit the scope of employment will prevent a recovery of compensation . . . ”

In Brown v. Forum Insurance Company, 507 S.W.2d 576 (Tex.Civ.App.—Dallas 1974, no writ), an employee was killed while flying a private plane on company business. This was a violation of the employer’s rules and the employee was aware of the rules. The court held that the employee was acting in the furtherance of his employer’s business and in using the aircraft he was merely violating a rule regulating the manner and method of performing the work.

We hold there was some evidence to support the finding that the injury was of a kind and character originating in the work, trade or business of the employer. Furthermore, after considering all the evidence, we hold the evidence was not factually insufficient to support the finding, and the finding was not against the great weight and preponderance of the evidence. In re King’s Estate, supra.

We have considered all points of error and all are overruled. Judgment of the trial court is affirmed.


source: Caselaw Access Project

author: RAY, Justice.

license: Public Domain

text:
    Dorris HOLLINGSWORTH, Appellant, v. Mary Hollingsworth WILLIAMS et al., Appellees.
    No. 8483.
    Court of Civil Appeals of Texas, Texarkana.
    Nov. 15, 1977.
    Rehearing Denied Dec. 27, 1977.

      Erwin D. Davenport, Morehead, Sharp, Tisdel & White, Plainview, for appellant.
    Jack K. Smith, Corsicana, William L. Bondurant, Bondurant & Tubb, Arlington, for appellees.
   RAY, Justice.

This is a will contest. Appellees (contestants), Mary Hollingsworth Williams, John L. Hollingsworth, Jr., William B. Hollings-worth and Jack Hollingsworth, filed a contest and opposition to the will of lone D. Hollingsworth which had been admitted to probate in Tarrant County a short time previously. Borden B. Hollingsworth, individually, and as independent executor of the Estate of lone D. Hollingsworth, Deceased, answered the contest as did appellant, Dorris Hollingsworth. Trial of the contest was set for hearing at which time the contestants and the independent executor appeared for trial. Appellant, Dorris Hollingsworth, did not appear. The hearing was before the court and the court entered a judgment denying the contest and allowed contestants the sum of $8,000.00 from the residuary of the Estate of lone D. Hollingsworth, Deceased. Appellant, Dorris Hollingsworth, has perfected his appeal and submits six points of error for our consideration.

Decedent died on January 21, 1974, in Arlington, Tarrant County, Texas. She left a written will which was admitted to probate on February 4, 1974, in the Probate Court of Tarrant County. The will named Borden B. Hollingsworth as independent executor of the estate of the decedent and he qualified as independent executor on February 4, 1974. In the will admitted to probate decedent made certain specific devises and bequests of both real and personal property to the independent executor. The decedent bequeathed to contestants the sum of $100.00 each. The residue of the estate was then divided equally between the independent executor and his brother, Dorris Hollingsworth. The contestants are children of John L. Hollingsworth, a deceased son of decedent. The independent executor and Dorris Hollingsworth are sons of the decedent.

When the contestants filed their contest and opposition, the independent executor and Dorris each filed separate general denials.

When the hearing was set for July 8, 1976, the independent executor and the contestants appeared at the hearing but Dorris Hollingsworth did not appear in person or by his attorney of record though he had notice of the proceedings. Judgment was entered on July 23, 1976, denying the contest, but granting contestants the sum of $8,000.00 out of the residue of the estate. The-judgment states that it is based upon a settlement made between the contestants and the independent executor. No agreement appears in the record either by written instrument or by stipulation. Appellant, Dorris Hollingsworth, was not a party to the agreement. The trial court entered judgment against Dorris Hollingsworth on the basis of his non-appearance. No witnesses testified at the hearing. The only pleading relative to this controversy was the contest and opposition filed by contestants praying for the cancellation of the probate of the will of the decedent. There was no demand for money to be paid out of the residue of the estate.

Appellant complains that the trial court erred in entering judgment without taking testimony or other evidence being introduced in support of the judgment at a time when appellant had answered the contest and opposition. He also complains that the trial court entered a consent judgment to which appellant did not consent and to which there was no compliance with Rule 11, Tex.R.Civ.P.

Appellees, contestants, have not complained of the court’s judgment denying their contest and ordering the will of the decedent to stand as probated.

There appears in the transcript a certificate from the court reporter and from the probate judge that each was present for the hearing in this case, but no witness testified at the hearing and there were no notes taken of the proceedings by the court reporter.

Section 93 of the Texas Probate Code authorizes any interested person to contest a will that has been admitted to probate. The proceeding authorized by statute is an original one, as distinguished from a continuation of the proceedings in which the will was originally admitted to probate. By its terms the statute is limited to issues involving the validity of the will. 17 M. Woodward and E. Smith, Texas Probate and Decedents’ Estates Sec. 391 at 306 (1971). It was stated in Combs v. Howard, 131 S.W.2d 206, 211 (Tex.Civ.App. Fort Worth 1939, no writ),

“Strictly speaking, in a proceeding to probate a will, as in this case, the court is not concerned about the disposition made of property by a testator, nor whether he may pass title to property bequeathed, nor can that court construe the terms of the will. The paramount issue in such cases is, was the proposed instrument executed under the solemnities provided by statute? (Vernon s Ann.Civ.St. art. 8281 et seq.) Is it the last will of the testator? The last inquiry embraces the question of whether or not it has been revoked.”

It now seems well settled that the issues which may be raised in a will contest must be limited to questions of will or no will. Included in the sphere of will or no will questions are the traditional grounds for contesting a will such as lack of testamentary capacity, undue influence and fraud, revocation, improper attestation, improper execution and others.

“The general rule is that in the probate of a will it is not the province or right of the court to construe the same. The matter of construction is left to the courts in a separate and independent action after the will has been probated.” Olds v. Traylor, 180 S.W.2d 511, 517 (Tex.Civ.App. Waco 1944, writ ref’d).

In the absence of an agreement in conformity with Rule 11, Tex.R.Civ.P., between all parties or their attorneys, the learned trial judge exceeded his authority in this case in awarding contestants the sum of $8,000.00 from the residuary of the estate of the decedent. Absent such an agreement, the trial judge could only determine, pursuant to Section 93 of the Texas Probate Code, the validity of the will previously admitted to probate.

It is further noted that in the absence of an agreement among all the parties to this case, the independent executor is not authorized to violate the provisions of the will by agreeing to award contestants $8,000.00 when the will itself provides that the contestants shall receive $100.00 each.

The burden on the contestants in the probate court in a proceeding to set aside the probate of a will is much more stringent than it is in the original proceedings to contest the probate of a will. There are numerous decisions holding that the contestant who fails or refuses to introduce evidence in the probate court in a suit to set aside the probate of a will abandons his suit for failure or refusal to go forward with the evidence in discharge of his burden to do so. Comment, Procedural Content of Will Contests, Part I, 14 Baylor L.Rev. 316, 328 (1962); Erisman, The Contested Will Case, 1 St. Mary’s L.J. 37, 41 (1969); Cullinan v. Cullinan, 154 Tex. 247, 275 S.W.2d 472 (1955). In Cullinan, Justice Calvert made it clear that in a suit to set aside an order admitting a will to probate the burden of proof is on the contestant and that if the contestant fails or refuses to offer any evidence in support of his case he will be held, in law, to have abandoned his suit. If there is no evidence introduced in the county or probate court, the law implies the intention to abandon contestant’s suit and the judgment of the probate court should be one of dismissal rather than one on the merits.

In the instant case, the court reporter and the probate judge have certified that no evidence was introduced in the probate court. Thus, the judgment of the probate court should have been one of dismissal rather than one on the merits since there was no agreement among all the parties for entering a consent decree.

Accordingly, the judgment of the probate court is reversed and judgment is here rendered that contestants’ cause of action be dismissed. Rule 434, Tex.R.Civ.P.


author: HUGHES, Justice.

text:
    PEERLESS EQUIPMENT COMPANY, Appellant, v. AZLE STATE BANK, Appellee.
    No. 17900.
    Court of Civil Appeals of Texas, Fort Worth.
    Nov. 17, 1977.
    Barbara L. Welz, Dallas, Jordan, Rubin & Pace and Howard C. Rubin, Dallas, for appellant.
    Simon & Simon and W. Weir Wilson and Troy O. Welch, Fort Worth, for appellee.
   OPINION

HUGHES, Justice.

Azle State Bank sued Peerless Equipment Corporation for the value of a trencher and trailer pledged as collateral for a loan from Bank to Robert Fuentes who had either bought or agreed to buy the property from Peerless. Bank claimed Peerless converted the property by reclaiming it and selling it to someone else. Peerless claimed there was no sale under Uniform Commercial Code to Fuentes; that no title passed; and no liability to Bank. Trial to the court without a jury resulted in a judgment for Bank. Peerless appealed.

We affirm.

Fuentes (d/b/a B-J Mobile Home Service Company) agreed to buy a used trencher and trailer from Peerless for $3,667.50. Peerless agreed to sell for that amount. The same day, September 5, 1973, Peerless delivered the trailer and trencher to Fuentes giving him also what Peerless called a “delivery slip.” After a demonstration, Fuentes accepted the machinery at the price set and told Peerless he would go to his bank and mail it a check.

After delivery of the machinery to Fuentes, he was billed for the purchase price and Peerless put him on the books as its debtor. Peerless did not have Fuentes execute any document. Fuentes executed a promissory note to bank in the amount of $3,541.44, as well as “a security agreement and a financing statement” which granted a security interest in the machinery. The “financing statements” were filed in Tar-rant County, Texas, and with the Secretary of State.

The machinery and an invoice therefor were brought to Bank and exhibited to the loan officer. Loan officer was told by Fuentes the machinery could be used as collateral for the loan, although the invoice was not marked “paid.” Loan officer checked Fuentes’ credit with Retail Merchants Association and Fuentes had an account with Bank. Bank’s loan committee approved the loan. Fuentes did not pay Peerless for the machinery and on October 17,1973, Peerless took it back with Fuentes’ consent, but without the consent or knowledge of Bank.

Fuentes defaulted in paying the note, resulting in Bank’s obtaining a judgment against him for $3,452.42. No payments have been made on the judgment. Bank demanded that Peerless give it possession of the machinery or the value thereof. Demand refused: Suit resulted.

“Findings of facts and conclusions of law” were prepared by the trial court, which we will not detail except as to those specifically claimed as error.

Peerless assigned as error the trial court’s finding, as a matter of law, that its interest as an unpaid cash seller was subordinate to that of Bank. Peerless relied on Tex.Bus. & Comm.Code Ann. § 2.507(b) (1968) and In re Samuels & Co., Inc., et al. v. Mahon, et al., 510 F.2d 139 (5th Cir. 1975), rev’d, 526 F.2d 1238 (5th Cir. 1976), as asserting the theory that Fuentes had no title to the property to support Bank’s mortgage. In response, Bank cites the revised opinion written by Judge Godbold in Samuels, supra, after the U. S. Supreme Court reversed the case and remanded it to the Fifth Circuit. Judge Godbold specifically noted that the cash seller’s right to reclaim is drawn from Tex.Bus. & Comm. Code Ann. § 2.507(b) (1968) and such seller’s remedy is one of seller against buyer. “It does not concern rights of seller against third parties.” Id. at 1244. Further, it was held that the U.C.C. (§ 2-4.01(a) and § 1-201) specifically limits seller’s reserving title when he has voluntarily surrendered possession to the buyer; that retention or reservation of title in goods delivered to buyer is limited, in effect, to a reservation of a security interest.

We have found the cases cited by Peerless were handed down before the adoption of the Uniform Commercial Code or did not fit the fact situation here involved. No case has been cited in which the rights of an unpaid cash seller and later perfected security interest holder were involved under the Uniform Commercial Code.

Cain v. Country Club Delicatessen of Saybrook, Inc., 25 Conn.Sup. 327, 203 A.2d 441 (Middlesex Co. 1964), which was cited by both parties, discussed conditional sales contracts as under scope of U.C.C. Article Nine in several transactions. Cain, supra, held that reservation of title by a seller in goods delivered to a buyer is limited to being a retention of a security interest. Further, a financing statement had to be filed to perfect such security interest, Peerless filed no financial statement.

We also note that Tex.Bus. & Comm.Code Ann. § 2.403 provides that one with a voidable title can transfer good title to a good faith purchaser for value “even though . (3) it was agreed that the transaction was to be a ‘cash sale’ . . . .” (Emphasis ours.) No bad faith allegations nor proof of such were made as to Bank in this case. We overrule point of error no. one.

By point of error no. two Peerless urges that trial court erred in finding, as a matter of law, that Bank used reasonable care and diligence in making the loan to Fuentes. In re Samuels & Co., Inc., et al. v. Mahon, et al., supra, holds that the code definition of Article Two of a good faith purchaser does not expressly or impliedly require lack of knowledge of third party claims, and that the code departs from the common law in this regard.

No knowledge by Bank of the Peerless claim is reflected in the record and, under the facts in the record, we hold that trial court did not err in finding that Bank used reasonable care and diligence in making the loan to Fuentes. Point of error no. two is overruled.

Affirmed.


text:
    Steve STRICKLAND, Appellant, v. CITY OF DENVER CITY, Texas, et al., Appellees.
    No. 5085.
    Court of Civil Appeals of Texas, Eastland.
    Nov. 17, 1977.
    Rehearing Denied Dec. 15, 1977.
    Jerry Paquin, Seminole, for appellant.
    Donald M. Hunt, Key, Carr, Evans & Fouts, Lubbock, Paul New, Denver City, for appellees.
   McCLOUD, Chief Justice.

Plaintiff, Steve Strickland, sued the City of Denver City and two of its police officers, Hugh Chumley and Jack Ramsay, alleging he was injured as a result of mistreatment committed by the officers while he was confined in the city jail. The defendants were granted a summary judgment and plaintiff has appealed. We affirm.

Plaintiff contends governmental immunity is waived, under the Texas Tort Claims Act, Tex.Rev.Civ.Stat.Ann. art. 6252-19, § 3 (1970), because the alleged wrongful acts, the basis of his claims, involve the “misuse of property”. Defendant, Denver City, relies upon Sec. 14 of the Texas Tort Claims Act, which expressly exempts certain claims from the Act. The two officers, Chumley and Ramsay, argue summary judgment was proper as to them because the record conclusively established that the two year statute of limitations had run before citations were issued and service perfected, and plaintiff failed to allege or in any way interpose the use of diligence in procuring the issuance and service of citation. Tex. Rev.Civ.Stat.Ann. art. 5526 (1958).

Plaintiff pleaded and supported by affidavit that he was arrested by Chumley and placed in the Denver City jail; the officer took his matches, belt, tie, ribbon and jump-boot laces; he was placed in a cell by himself which contained refuse and several mattresses on the floor; plaintiff went to sleep and was awakened by smouldering smoke; he was unable to put the fire out so he put his jacket over his head and tried to breathe through the jacket; he became unconscious and remembers nothing until two people opened the cell door and threw him back into the cell when he hit some “slick stuff” on the floor and slid across the floor; he got back up on the steel bunk as all mattresses had been removed; his leg started hurting and he asked for, but was refused, a blanket; the next morning he noticed big brown spots on his legs and back; there were no burn marks on his pants; a chemical type fire extinguisher was in the area and the “stuff" he slid across when thrown into the cell appeared to be slippery; he noticed it had left a white deposit on the floor; Officer Jack Ramsay drove him to Reese Air Force Base Hospital but the officer drove at a slow rate of speed and made many sudden turns which increased the pain; and, as a result of the “chemical burns” received while in the Denver City jail which were caused by the soda ash contained in the fire extinguisher, he eventually lost his leg and has large scars upon his back and other portions of his body.

Plaintiff alleged in his petition that the officers, as agents, servants and employees of the City, were negligent in failing to keep a proper lookout, forceably throwing plaintiff into the jail cell, physically assaulting him and failing to see that the cell was safe. Additionally, plaintiff pleaded that the acts of the officers were intentional and malicious.

The Texas Tort Claims Act which waives governmental immunity under certain circumstances expressly preserves immunity as to several enumerated “claims”. Sec. 14 of the Act provides:

“The provisions of this Act shall not apply to:

(8) Any claim arising out of the action of an officer, agent or employee while responding to emergency calls or reacting to emergency situations when such action is in compliance with the laws and ordinances applicable to emergency action.
(9) Any claim based on an injury or death connected with any act or omission arising out of civil disobedience, riot, insurrection or rebellion or arising out of the failure to provide, or the method of providing, police or fire protection.
(10) Any claim arising out of assault, battery, false imprisonment, or any other intentional tort including, but not limited to, disciplinary action by school authorities.”

All of plaintiff’s alleged acts of misconduct are exempt as to the City of Denver City under paragraph 9 copied above which exempts claims “arising out of the failure to provide, or the method of providing, police . . . protection”. A similar result was reached in Davis v. County of Lubbock, 486 S.W.2d 109 (Tex.Civ.App.—Amarillo 1972, no writ) where an inmate incarcerated in the hospital wing of the jail committed suicide by hanging himself with his belt. There the plaintiffs alleged the death was caused by the negligence of the sheriff’s department who, after being fully informed of the deceased’s suicidal tendencies, failed to (1) take the deceased’s belt; (2) provide adequate supervision of the premises; (3) confine him where he could not harm himself; and, (4) provide for his safety. The court stated:

“The Texas Tort Claims Act expressly waives, subject to certain exemptions and exclusions, the governmental function immunity for all units of government and, to the extent of the waiver, grants consent to sue for money damages for personal injuries or death. The waiver granted and the consent given are, under Section 3 of the Act, for personal injuries or death caused by the negligent or wrongful act or omission of any officer or employee acting within the scope of his employment or office arising out of the operation or use of publicly owned motor-driven vehicles, premise defects, and some condition or some use of tangible property, real or personal, under circumstances where such officer or employee would be personally liable to the claimant in accordance with the laws of Texas. However, Section 14(9) of the Act expressly dictates that the waiver of sovereign immunity shall not apply to ‘(a)ny claim based on . death connected with any act or omission arising out of the failure to provide, or the method of providing, police . . protection.’ Thus, the Act does not waive the common law immunity attached to the governmental exercise of police power.”

In Lloyd v. University of Texas, 524 S.W.2d 958 (Tex.Civ.App.—Beaumont 1975, writ ref.n.r.e.), the plaintiff was arrested for driving while intoxicated and while being taken to the police station, he fell from the car. The court said:

“Section 14(9) of the Tort Claims Act excludes ‘(a)ny claim based on an injury or death connected with any act or omission arising out of civil disobedience, riot, insurrection or rebellion or arising out of the failure to provide, or the method of providing, police or fire protection.’
Plaintiff’s claim is based upon an injury connected with an act or omission which arose out of the method of providing police protection. We hold specifically that appellant’s arrest for the offense of driving while intoxicated on the campus of the University of Texas was a method of providing police protection. Davis v. County of Lubbock, 486 S.W.2d 109 (Tex.Civ.App.—Amarillo 1972, no writ) . . .”

The paragraph (9) exemption to Section 14 of the Act was also applied in Salinas v. Flores, 359 F.Supp. 233 (S.D.Tex.1973), where it was alleged that the police officers, who were aware that the person was ill and injured, placed him in jail and made no effort to procure medical attention. In holding that Webb County was not liable, the court said:

“. . . Likewise, the County has no liability under the Texas Tort Claims Act, Article 6252-19, Revised Civil Statutes of Texas. Section 3 of that Article expressly s.tates under what conditions governmental units may be held liable. Section 14(9) expressly exempts ‘any claims based on . . .or arising out of the failure to provide, or the method of providing, police or fire protection.’ . . . ”

We note that the instant case is unlike Texas Department of Corrections v. Herring, 513 S.W.2d 6 (Tex.1974), where the pleader merely failed to state a cause of action. The plaintiff, Strickland, has pleaded himself out of court by pleading “facts which affirmatively negate his cause of action”. The facts accepted as true in plaintiff’s petition and affidavit conclusively demonstrate that as to the City of Denver City plaintiff’s claims are barred by the doctrine of governmental immunity. As stated in Swilley v. Hughes, 488 S.W.2d 64 (Tex.1972), a summary judgment on pleadings is proper in . .a case in which the facts alleged by a plaintiff establishes the absence of a right of action or an insuperable barrier to a right of recovery”. See also: Hargrove v. City of Rotan, 553 S.W.2d 246 (Tex.Civ.App.—Eastland 1977, no writ).

We turn next to the argument of the two officers, Chumley and Ramsay, that the summary judgment record conclusively establishes that any claim against them individually was barred by the two year statute of limitations.

At the time of the incident in question, plaintiff was a minor. He became 21 years of age on July 8, 1973. Suit was filed on June 30, 1975, which was only eight days before July 8, 1975, the date limitations would run. Plaintiff did not request issuance of service on the officers before July 8, 1975. He merely pleaded he did not know their whereabouts. Plaintiff’s attorney requested issuance of citation for Officer Chumley on July 29, 1975, and he was served on that day in Denver City. About a month later, plaintiff’s attorney requested issuance of citation for Officer Ramsay. Citation was issued on August 25,1975, and Ramsay was served on August 27, 1975.

The mere filing of a suit will not interrupt or toll the running of a statute of limitations. To interrupt the statute, the use of diligence in procuring the issuance and service of process is required. Zale Corporation v. Rosenbaum, 520 S.W.2d 889 (Tex.1975); Rigo Manufacturing Company v. Thomas, 458 S.W.2d 180 (Tex.1970); City of Gainesville v. Harder, 139 Tex. 155, 162 S.W.2d 93 (1942).

In Zale Corporation v. Rosenbaum, supra, the court stated the rule to be applied in summary judgment cases as follows:

“ . . . When summary judgment is sought on the basis that limitations have expired, it is the movant’s burden to conclusively establish the bar of limitations. Where the non-movant interposes a suspension statute, such as Article 5537, or pleads diligence in requesting issuance of citation, the limitation defense is not conclusively established until the movant meets his burden of negating the applicability of these issues. Oram v. General American Oil Co., 513 S.W.2d 533 (Tex. 1974) . . .” (Emphasis added)

In the instant case, however, plaintiff has not by pleadings, answer to motion for summary judgment, affidavit, or brief asserted in any way that he used diligence in attempting to locate and serve the officers before or after July 8, 1975. Under these circumstances, we think the summary judgment in favor of Chumley and Ramsay was proper. See: Siegel v. McGavock Drilling Company, 530 S.W.2d 894 (Tex.Civ.App.—Amarillo 1975, writ ref.n.r.e.).

We have considered all points of error and all are overruled.

The judgment is affirmed.


author: REYNOLDS, Justice.

text:
    Gregory J. LOWERY, Appellant, v. Jim JUVENAL et al., Appellees.
    No. 8833.
    Court of Civil Appeals of Texas, Amarillo.
    Nov. 21, 1977.
    Rehearing Denied Dec. 19, 1977.

      Woodruff & Ellis, Alfred W. Ellis, Dallas, for appellant.
    John L. Hill, Atty. Gen. of Texas, Jack Sparks, Austin, Crenshaw, Dupree & Mi-lam, Tom A. Milam and Cecil C. Kuhne, Jr., Lubbock, for appellees.
   REYNOLDS, Justice.

A take nothing judgment was rendered in this personal injury suit when the affirmative defense of limitation was established as a matter of law and no issue of its inapplicability was raised. Affirmed.

During the 1971-72 school term, Gregory J. Lowery was a senior student attending Texas Tech University and a scholarship-member of its basketball team. In a 1971 pre-season practice, Lowery received an injury to his left ankle and, during a game in the forepart of 1972, he sustained a muscle pull in his left groin. These injuries were treated by Dr. Wallace Hess, the designated team physician, and by Jim Juvenal, the team trainer. Neither the doctor nor the trainer treated Lowery’s injuries after the end of the basketball season in March of 1972.

On 3 February 1976, Lowery filed this suit, naming as defendants Juvenal, Gerald Myers, the head basketball coach, Dr. Hess, and Texas Tech University. Denominating his suit as one “to recover for the personal injuries and damages,” Lowery recited the receipt of the two injuries, for which no defendant was assigned any responsibility, and related the treatment he said he received from Dr. Hess and Juvenal. Alleged are the development of new bone formations in the pelvic area and in the left ankle and chronic tendonitis. Lowery sought damages “as a result of the negligent acts” and the “negligent conduct” of the defendants without particularizing how any act or conduct constituted negligence.

Answering without excepting to the generality of the petition, each defendant interposed affirmatively the two-year statute of limitation as a bar to Lowery’s alleged cause of action. Deposition of all individual parties to the action confirmed that the last treatment Lowery received from any defendant was in 1972, almost four years before this suit was filed.

Juvenal, Coach Myers and Dr. Hess then moved for summary judgment, and the university urged its affirmative defense, on the ground that the pleadings and the depositions showed that Lowery’s cause of action was, as a matter of law, barred by the two-year statute of limitation. Lowery offered no controverting evidence.

The trial court, considering the pleadings and the summary judgment proof to establish that limitation had run, rendered judgment that Lowery take nothing. Lowery has appealed.

On appeal, Lowery asserts, and we accept, that this suit is “for personal injuries received as a result of the negligent treatment provided him by the Defendants during the 1971-72 basketball season at Texas Tech University.” Lowery concedes that Vernon’s Ann.Civ.St. art. 5526 mandates that an action for personal injury “shall be commenced and prosecuted within two years after the cause of action shall have accrued, and not afterward.” Within the meaning of the statute, the cause of action accrues, and limitation begins to run, when facts exist which authorize the claimant to seek judicial relief. Williams v. Pure Oil Co., 124 Tex. 341, 78 S.W.2d 929, 931 (1935).

It is undisputed that the treatment Lowery received from any defendant was administered more than two years before Lowery filed this suit to recover damages for negligent treatment. Thus, the judgment rendered was warranted upon the establishment of the affirmative defense of limitation as a matter of law both by Lowery’s own pleadings, Smith v. Coffee’s Shop for Boys & Men, Inc., 536 S.W.2d 83, 85 (Tex.Civ.App.—Amarillo 1976, no writ), and by the summary judgment proof, Siegel v. McGavock Drilling Company, 530 S.W.2d 894, 896 (Tex.Civ.App.—Amarillo 1975, writ ref’d n. r. e.), unless, for some applicable reason, the two-year statute of limitation did not start running until after Lowery was treated and less than two years before he filed this suit.

In attempting to escape the established defense of limitation, Lowery does not mention, either in his brief or in his deposition, any treatment which he considers negligent and which was either concealed at the time it was given or he did not discover until after it was administered. Rather, he contends that the running of limitation was postponed until his action for negligent treatment accrued less than two years before he filed this suit for the pleaded reason that:

. At all times material herein, each Defendant fraudulently concealed and conspired together to fraudulently conceal the extent and seriousness of the injuries suffered by the Plaintiff such that, despite acting as an ordinary and prudent person would act, he was unable to discover the extent of his injuries until the winter of 1974. (Emphasis added.)

Noticeably absent from the pleading is any suggestion, much less an allegation, raising the issue that defendants fraudulently concealed any negligent treatment or the issue that Lowery later discovered that he had received negligent treatment. Thus, Lowery has no pleading negating the applicability of the two-year statute of limitation to his asserted cause of action for negligent treatment. Of course, one may recover only in the right in which he sues and upon the facts pleaded as the basis of that right, and he cannot recover through a right not asserted. Starr v. Ferguson, 140 Tex. 80, 166 S.W.2d 130, 132 (1942).

To prevail, the defendants were required to establish that their defense met Lowery’s case as pleaded. Torres v. Western Casualty and Surety Company, 457 S.W.2d 50, 52 (Tex.1970). They have done so.

The judgment is affirmed.

DODSON, J., not participating.


author: ODEN, Justice.

text:
    Henry M. BRADFORD, Appellant, v. Richard COLE and wife, Janice Cole, Appellees.
    No. 8566.
    Court of Civil Appeals of Texas, Texarkana.
    Nov. 22, 1977.
    J. R. Cornelius, The Cornelius Law Firm, Jefferson, for appellant.
    Joe W. Lovelace, Lovelace & Thompson, Inc., Linden, for appellees.
   ODEN, Justice.

Appellant, Henry M. Bradford, filed suit against appellees, Richard Cole and wife, Janice Cole, for specific performance of an alleged contract to convey the assets of a business known as the Magnolia Manor Nursing Home. Appellees own and operate the Magnolia Manor Nursing Home. At the time of submission, appellant was the administrator of the nursing home and, as such, in the employ of appellees. During litigation, appellees advised appellant of their intent to terminate the employment relationship whereupon appellant requested the trial court to enter a temporary injunction enjoining appellees from discharging appellant as administrator of the Magnolia Manor Nursing Home during the pendency of the suit for specific performance. The trial court refused to grant the temporary injunction and the appeal is perfected from the interlocutory order denying the application.

The purpose of a temporary injunction is to preserve the status quo of the subject matter of a suit pending a final trial of the case on its merits. Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517 (1961). A temporary injunction should not be granted unless the applicant shows a probable right to permanent relief and also shows a probable injury unless the injunction is entered during the pendency of the suit. Oil Field Haulers Ass’n. v. Railroad Commission, 381 S.W.2d 183 (Tex.1964); Manning v. Wieser, 474 S.W.2d 448 (Tex.1972). The decision of the trial court in either granting or refusing the temporary injunction will not be reversed upon appeal unless it is determined that the trial court has been guilty of abuse of discretion or has failed to apply the law correctly to undisputed facts. Manning v. Wieser, supra, and cases cited therein.

The only evidence in the record relevant to probable injury unless the injunction was entered during the pendency of the suit came from appellant’s testimony and is as follows:

“Q. Now, Mr. Bradford, I didn’t ask you while you were on the stand about what effect it might have if the Court did not grant the temporary restraining injunction so that you could remain in the nursing home and take care of it. Do you feel like in all probability that the next man coming in might let the nursing home run down so it would be injurious to you? Would you explain to the Court why you think that you need to stay on?
“A. Yes, sir. I came to the nursing home and I have improved the nursing home to my own personal interest and my own eagerness to increase it to the point where I could get it financed and own it. It was many hours hard work and personal approach in the community. I have almost doubled the number of patients in the nursing home from thirty to close to the capacity amount of sixty. If I were removed it is possible that the new administrator would not give the same interest and desire to increase the nursing home that I have. If that were the case it would be detrimental to my interest and to the interest of the nursing home.
“Q. Do you feel like it could be that if the new administrator did not properly care for it that it would decrease the value and be a detriment to you financially in purchasing the nursing home?
“A. That is totally possible." (Emphasis supplied.)

Appellant had the burden of offering some evidence which, under applicable rules of law, established a probable right and a probable injury. Camp v. Shannon, supra. The probable injury must be eminently threatened and may not be speculative or conjectural. Thomas v. Hale County, 531 S.W.2d 213 (Tex.Civ.App. Amarillo 1975, no writ); Kostoff v. Harris, 266 S.W.2d 204 (Tex.Civ.App. Dallas 1954, writ ref’d n. r. e.). Appellant’s testimony as outlined herein clearly demonstrates that the nature and extent of any potential injury he might receive unless the injunction was entered during the pendency of the suit is speculative and based on conjecture. Such testimony is no evidence of probable injury and it would have been an abuse of discretion for the trial court to have granted the temporary injunction. Thomas v. Hale County, supra; Upshur Rural Electric Cooperative Corp. v. Key, 469 S.W.2d 420 (Tex.Civ.App. Texarkana 1971, no writ).

It will not be necessary for us to determine whether or not appellant offered evidence which, under applicable rules of law, established a probable right of recovery in view of our holding that he failed to support his allegation of probable injury.

The judgment of the trial court is affirmed.

CORNELIUS, C. J., not participating.


text:
    STATE of Arkansas ex rel. Jim Guy TUCKER, Attorney General, State of Arkansas, Appellant, v. Earl SABO, Sheriff, Bowie County Texas, and Mattie Thompson, Appellees.
    No. 8465.
    Court of Civil Appeals of Texas, Texarkana.
    Nov. 22, 1977.
    Rehearing Denied Dec. 13, 1977.
    Victor F. Hlavinka, Mike Stevens, Atch-ley, Russell, Waldrop & Hlavinka, Texar-kana, Lonnie A. Powers, Deputy Atty. Gen., Little Rock, Ark., for appellant.
    Errol N. Friedman, Harkness, Friedman & Kusin, Texarkana, for appellees.
   RAY, Justice.

This is an appeal from the judgment of the trial court vacating a temporary injunction and refusing to enter a permanent injunction. The State of Arkansas, by and through its Attorney General, Jim Guy Tucker, appellant (petitioner), brought suit against Earl Sabo, Sheriff of Bowie County, Texas, and Mattie Thompson, appellees (respondents), seeking a permanent injunction to enjoin the enforcement of a writ of execution upon property of the State of Arkansas found in Texas. The trial court entered its judgment vacating its temporary injunction and denied the appellant a permanent injunction.

On January 13, 1975, Mike Hall, a highway patrolman employed by and while acting as an agent of the Department of Public Safety of the State of Arkansas, continuing a chase begun in Arkansas, traveling on Interstate Highway 30 crossed over into Bowie County, Texas. While in the process of the chase in Bowie County, his police car collided with a vehicle driven by Mattie Thompson. Mrs. Thompson is a resident of the State of Arkansas.

Appellee Thompson filed suit against Hall and the State of Arkansas. A default judgment was taken against the State of Arkansas after service of process was served through the Chairman of the Texas Highway Commission on the Secretary of State of the State of Arkansas.

Appellee Earl Sabo levied execution upon a 1972 Ford sedan belonging to the Highway Department of the State of Arkansas when the vehicle was in the State of Texas.

A temporary injunction was issued enjoining further enforcement of the execution by agreement of the parties without a hearing. The cause proceeded to final hearing on appellant’s amended petition for injunction. The trial court entered its judgment denying the permanent injunction.

Appellees contend that this Court is without jurisdiction of the case because appellant failed to file a cost bond or deposit in accordance with Rule 354, Tex.R.Civ.P. Appellant contends that it is exempt from filing the cost bond under Tex.Rev.Civ.Stat. Ann. art. 2072 and Article 27 — 2307, Ark. Stat.Ann.

Rule 354, supra, provides in part the following:

“Cost Bond or Deposit
(a) Unless excused by law, the appellant shall execute a bond payable to the appellee in the sum of $500.00 unless the court fixes a different amount upon motion of either party. . . . ”

Article 2072, supra, provides:

“No security for costs shall be required of the State or of any incorporated city or town in any action, suit or proceeding, or of an executor, administrator or guardian appointed by a court of this State in any suit brought by him in his fiduciary character.”

This is a case of first impression. We have been unable to find any case which has resolved the specific issue here presented.

The case which most closely resembles the instant fact situation is United States v. Branson, 147 S.W.2d 286 (Tex.Civ.App. San Antonio 1941, writ ref’d). In Branson, the United States had brought suit against F. C. Branson and others in the nature of a bill of review to recover an amount which had been assessed against the American State Bank and Trust Company, in liquidation, as a deficiency in 1934 income and excess profit taxes. Judgment was for the defendant and the United States attempted to appeal to the Court of Civil Appeals in San Antonio. The Court of Civil Appeals stated that the filing of an appeal bond was required by statute and while the Texas Legislature had seen fit to exempt the State of Texas and heads of state departments, it had not expressly or by implication exempted the United States from giving the required bond.

The United States made the same contentions in Branson that appellant makes in this Court. However, the San Antonio Court of Civil Appeals held that in the absence of a statutory exemption, an appeal to the Court of Civil Appeals cannot be perfected without filing an appeal bond or affidavit in lieu thereof.

In Branson, the United States had filed its notice of appeal and here, the State of Arkansas has filed its notice of appeal, but the court stated that the United States had “. . . failed to perfect its appeal by filing a cost bond within the time prescribed by statute.”

Appellant here argues that because it does not have to file a cost bond in Arkansas, it should not have to file one here as a condition precedent to perfecting its appeal. In Branson, the United States made the same argument and the court replied that:

“Under federal statutes, the giving of security for costs does not appear to be essential to perfect an appeal . . ., but in Texas procedure, an appeal bond is necessary and absolutely essential to the perfection of an appeal. . . . Callihan v. Montrief, Tex.Civ.App., 71 S.W.2d 564, error refused; City of Beaumont v. Stephenson, Tex.Civ.App., 107 S.W.2d 915. Under these decisions the United States has not perfected its appeal in this case, whether it is liable for the costs or not.”

Again here, as in Branson, it was contended that costs could not be awarded against a sovereign and thus it was not necessary to file the cost bond. The Texas court replied,

“We overrule this contention. If there be one power left to the State of Texas in this new era of broadened federal authority, it is the sovereign one to set up and require adherence to her own system of practice in state courts. The Legislature of Texas, alone, has authority to prescribe how an appeal can be taken to this Court, and when the United States, having selected the forum by instituting suit in a Texas court, attempts to appeal, it must abide by and conform to the provisions of the Texas statutes, the same as any other litigant. Since the giving of a bond is a prerequisite to an appeal, the United States must give that bond.”

See also Bryson v. Payne, 232 S.W. 362 (Tex.Civ.App. Texarkana 1921, writ dism’d); 4A C.J.S. Appeal & Error § 517, p. 220.

Under present statutes, Articles 2072, 2276, 2276a and 279a, Tex.Rev.Civ. Stat.Ann., neither Arkansas nor any other state (except Texas) is exempt from complying with Rule 354, supra. In the present case, the filing of the cost bond is mandatory and jurisdictional. Since the required cost bond was not filed, this Court has acquired no jurisdiction other than to declare that appellant failed to perfect its appeal and to order the appeal dismissed.

Accordingly, the appeal is dismissed for want of jurisdiction.

ODEN, J., not participating.


text:
    Kenneth Peter KELLOGG, Appellant, v. Molly Epperly KELLOGG, Appellee.
    No. 8515.
    Court of Civil Appeals of Texas, Texarkana.
    Nov. 22, 1977.

      Mary D. McKnight, Carden, McKnight & Hundley, Dallas, Sharon R. Smith, Sherman, Buck & Smith, Dallas, for appellant.
    Reba G. Rasor, Raggio & Raggio, Inc., Donald R. Smith, Dallas, for appellee.
   ODEN, Justice.

The appeal is from the order entered on January 13, 1976, in a habeas corpus proceeding instituted under Section 14.10(a), Texas Family Code. Molly Epperly Kellogg, the mother, was found to be the person presently entitled to possession of the parties’ minor children by virtue of a court order entered by the Superior Court of Fairfield County, Connecticut, on December 21, 1976. Kenneth Peter Kellogg, the father, asserts that, under Connecticut law, the Connecticut court was without jurisdiction to enter the order and, in any event, the mother was not entitled to possession of the children by virtue of the order inasmuch as he had appealed therefrom.

On December 5, 1975, the father, who was then in possession of the parties’ minor children, filed an application for writ of habeas corpus in the Superior Court of Fairfield County, Connecticut, praying that the court make such order concerning the custody of the children as would be in their best interests. The mother was directed to appear before the court on December 9, 1975, to show cause why custody of the minor children should not be granted to the father. A judgment, based in part on an agreement entered into between the parties hereto, was entered on December 9, 1975, under the terms of which the father was awarded possession of the parties’ minor children. The judgment provided, inter alia, that, “The plaintiff shall not maintain his home with the children more than seventy-five miles from Times Square, in New York City without written consent of the defendant, . . . .” The father, without having first obtained the mother’s consent, defied the court order by moving to Texas on June 7, 1977, whereupon the mother filed a motion in the Connecticut court to enforce the judgment previously entered or to punish the father for contempt or to change custody of the parties’ minor children. The motion was docketed under the same cause number as that of the judgment entered December 9, 1975. A special appearance was filed on behalf of the father by his attorney whereby jurisdiction over his person and the subject matter was questioned. It was overruled and the father entered a general appearance and requested the court to ratify his unauthorized move. This motion was overruled. The father further requested that an examination be made of the health of the mother and that the domestic relations office conduct a custody study. This motion was granted and the domestic relations office recommended that custody of the minor children be awarded to their mother. On December 7, 1976, the Connecticut court adjudged the father to be in contempt, directed him to return the children to the custody of court by December 21,1976, and ordered that custody of the children would be changed if he failed to appear as directed. Neither the father nor the children were present at the hearing conducted on December 7,1976, by the Connecticut court, however, the father was represented by counsel. This order was likewise disobeyed by the father and, as promised, the Connecticut court entered a judgment on December 21, 1976, under the terms of which the mother was awarded custody of the parties’ minor children.

An application for writ of habeas corpus was filed in the Domestic Relations Court No. 4 of Dallas County, Texas, on December 30,1976, by the mother. The father, by his own admission in court, deliberately avoided service of the writ whereupon a writ of attachment was issued by the Texas court on January 11, 1977. The hearing on the application for writ of habeas corpus was held on January 13, 1977. The father and minor children appeared. An exemplified copy of the Connecticut court proceedings was admitted into evidence without objection. The father testified. All factual matters referred to herein, including those relating to the father’s disobedience of the Connecticut court order and avoidance of the service of the writ in Texas, were admitted by the father. During the trial the father requested the court to take judicial notice of Connecticut laws pursuant to Rule 184a, Tex.R.Civ.P., and offered to furnish the judge with copies of what he considered to be the relevant statutes and cases of the State of Connecticut. The request was denied evidently because the court did not feel like it was timely made. The Texas court ordered the father to return the children to the mother.

Section 14.10(a), Texas Family Code, provides:

“If the right to possession of a child is presently governed by a court order, the court in a habeas corpus proceeding involving the right to possession of the child shall compel return of the child to the relator if and only if it finds that the relator is presently entitled to possession by virtue of the court order.”

The foregoing requires a Texas court to give the same credit, validity and effect to another state’s judgment governing possession of a child as such judgment would receive in the state where rendered. It is, with respect to child custody, a Texas statutory rendition of the full faith and credit requirements of Article IV, Sec. 1 of the United States Constitution. The mother by introducing a duly authenticated copy of the judgment of the Connecticut court established a prima facie case for its recognition and enforcement in Texas. McCarty v. Walker, 538 S.W.2d 861 (Tex.Civ.App. Texarkana 1976, no writ). The only defenses available to the father in this case were to either show that the Connecticut court lacked jurisdiction to enter the judgment of December 21,1976, or that the effect of the judgment did not entitle the mother to possession of the children. He asserted both.

The father contends that he was not subject to the jurisdiction of the Connecticut court because the laws of the State of Connecticut do not provide for continuing jurisdiction in child custody cases and neither he nor his children are domiciliaries of the State of Connecticut. It is clear that a Texas court, when asked to give full faith and credit to another state’s judicial proceedings, cannot collaterally inquire into the jurisdiction of such other state where the party resisting enforcement of the foreign judgment appeared in the foreign proceedings. In this case the father appeared in the Connecticut proceedings and unsuccessfully litigated the question of jurisdiction. He therefore had no right to re-litigate the jurisdictional issue in Texas. Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 1097, 92 L.Ed. 1429 (1948); Layton v. Layton, 538 S.W.2d 642 (Tex.Civ.App. San Antonio 1976, writ ref’d n. r. e.). The refusal of the trial court to take judicial notice of the laws of the State of Connecticut relating to jurisdiction cannot be reversible error because the Texas court could not collaterally inquire into the jurisdiction of the Connecticut court.

It is asserted by the father in his brief that he appealed the judgment of December 21,1976, entered by the Connecticut court and that under Connecticut law execution thereon would be stayed pending appeal. The assertion is not supported by the record. The exemplified copy of the Connecticut court proceedings introduced by the mother does not reflect that the father appealed the judgment of December 21,1976, awarding the mother possession of the parties’ minor children. If the father did in fact appeal the judgment, he should have taken some action toward introducing evidence supportive of this allegation in the trial court and made certain that such evidence was before this court as either a part of the statement of facts or a bill of exceptions. There is no basis in the record for this Court to determine that the Connecticut judgment of December 21, 1976, was appealed. We must assume in absence of evidence to the contrary that the judgment was not appealed and that it was a final judgment. The issue of whether or not Connecticut law provides that execution on a judgment in a child custody case is stayed pending appeal is only material if there is an appeal. Since we could not determine from the record that the father appealed the judgment entered by the Connecticut court on December 21, 1976, the trial court did not commit reversible error in refusing to take judicial notice of the law of the State of Connecticut relating to the parties’ rights of custody of children pending appeal.

We think it noteworthy to point out that Section 14.10(a), Texas Family Code, does not require a finding by the Texas court that the order which the relator seeks to enforce be final. Under circumstances where such an order has been appealed and the foreign law is properly before the Texas court either by a party invoking Rule 184a, Tex.R.Civ.P., or pleading and proving same under the common law method, a Texas court should apply the foreign law in determining who is the person entitled to possession of the child pending appeal.

This opinion should not be construed so as to imply that this Court is of the opinion that the trial court acted properly when it refused to take judicial notice of the laws of the State of Connecticut. It was not necessary for that issue to be resolved for the reasons heretofore stated.

The final issue to be resolved by this Court pertains to the father’s complaint that the court did not consider the best interests of the children when it directed him to deliver their possession to the mother. The court having determined that the mother was the person presently entitled to possession of the children in accord with Section 14.10(a), Texas Family Code, could not modify the order of the Connecticut court except in the two instances provided for in Section 14.10(b), Texas Family Code, which do not here exist. Standley v. Stewart, 539 S.W.2d 882 (Tex.1976).

The judgment of the trial court is affirmed.


author: SHANNON, Justice.

text:
    L. E. MOORE, Appellant, v. Vernon BARTLEY, Director, State Workers Compensation Division, State of Texas, Appellee.
    No. 12634.
    Court of Civil Appeals of Texas, Austin.
    Nov. 23, 1977.

      Tony Korioth, Austin, for appellant.
    John L. Hill, Atty. Gen., Jim R. Weaver, Asst. Atty. Gen., Austin, for appellee.
   SHANNON, Justice.

This is a workmen’s compensation case. The question is whether Tex.Rev.Civ.Stat. Ann. art. 8309g, the statute creating workmen’s compensation coverage for most State employees, was in effect on the date of the workman’s injury.

L. E. Moore, appellant, was injured on March 30, 1975, while working as an employee for the Travis State School. After trial upon an agreed statement of facts, the district court of Travis County entered a take-nothing judgment. We will affirm that judgment.

Article 8309g was enacted May 15, 1973. Section 16 of art. 8309g provides:

“An employee is not entitled to benefits under this article unless the accident causing his injury occurs at least 90 days after the effective date of this article.”

Section 21 of the 1973 Act provides in part that:

“. . . Section 16 [enacting art. 8309g] takes effect on the first day that money becomes available for its administration, pursuant to legislative appropriation . . .”

Money was appropriated for the implementation of art. 8309g by Tex.Laws 1975, eh. 55, at 119, on April 18, 1975. Section 1 of ch. 55 appropriated $264,740 to the Attorney General to administer art. 8309g. Section 2 of ch. 55 appropriated $1,261,854 for the payment of claims pursuant to art. 8309g. Section 3 of ch. 55 recognized that there was no system for administering art. 8309g and no funds for payment of claims pursuant to art. 8309g.

Ninety days after April 18,1975, the date money became available for the administration of art. 8309g, was July 18, 1975. Injuries sustained on or after July 18, 1975, are compensable under art. 8309g. Accordingly, appellant’s injury, which occurred on March 30, 1975, is not compensa-ble.

Appellant argues that a legislative transfer of $50,000 to the Attorney General's Operating Fund from the Workmen’s Compensation Fund No. 94 effective September 1,1974, was the legislative appropriation referred to in § 21. Tex.Laws 1973, ch. 659, at 1786. As a result, appellant claims, ninety days thereafter art. 8309g became effective. We do not agree. The transfer of $50,000 did not constitute an appropriation to pay claims as contemplated by § 21, but instead the purpose of the transfer of $50,000 most probably was to enable the Attorney General to better represent the Industrial Accident Board and to prepare for the initiation of the new State Employees’ Workmen’s Compensation Program. See Tex.Att’y.Gen.Op. No. H-524 (1975).

The judgment is affirmed.

Affirmed.


text:
    Malcolm GAY and wife, Jean Gay, Appellants, v. John W. STRATTON, d/b/a the Curiosity Shoppe, Appellee.
    No. 8477.
    Court of Civil Appeals of Texas, Texarkana.
    Nov. 29, 1977.
    Rehearing Denied Dec. 27, 1977.
    Royce Coleman, J. Ray Martin, Denton, for appellants.
    K. Mark Pistorius, Dallas, for appellee.
   RAY, Justice.

This is a suit on a building contract. Ap-pellee (plaintiff), John W. Stratton, brought suit against appellants (defendants), Malcolm Gay and wife, Jean Gay, to recover the unpaid balance on the cost of construction of a dwelling. The jury rendered a verdict in favor of Stratton and the trial court accordingly entered its judgment for $14,591.34 and ordered foreclosure. Appellants have perfected their appeal and submit three points of error for our consideration.

Appellants contend that the contract provided for a guaranteed maximum cost to the Gays of $79,599.50 including a maximum builder’s fee of $7,800.00. Appellants further contend there was no evidence of any meeting of the minds of Stratton and the Gays to abandon or modify the building contract and that the jury erred in concluding that the building contract was a cost plus contract with a maximum builder’s fee of $7,800.00, but no guaranteed maximum cost of construction.

Appellants state that the resolution of this appeal turns upon the proper construction and correct application of the first four paragraphs of the contract. The jury found that the parties had entered into a building contract and agreement in which Stratton was to build a house for the Gays; that Stratton paid $84,991.34 for material and labor that were put into the house; that Stratton was entitled to $7,800.00 as his profit; that Stratton was entitled to $14,-591.34 from the Gays after adjustments for amounts already paid to him; that at the time Stratton signed the contract he intended to construct the house for an amount not to exceed $79,599.50; that Stratton knew or should have known the costs to construct the house at the time of the agreement; that the Gays would have signed the contract if they had known that construction costs would exceed $79,599.50; and, that the Gays knew construction costs had exceeded $79,599.50 prior to the completion of the house in question.

The third paragraph of the contract is as follows:

“THIRD: This contract is on a cost plus basis, with a limit as to the amount of the sum to be paid to contractor as his percentage fee above the costs of labor and materials, the contractor is to furnish all materials and labor to finish the house with a complete turnkey job and a rough estimate of the costs of construction are estimated at $79,599.50. It is agreed that the contractor will receive for his services the amount of 11.5% of the costs of labor and material for his fee in building said residence, with a ceiling of the total amount to be paid to the contractor as his profit of $7,800, even though the total price of labor and materials shall exceed the sum of $67,826.50. In the event the costs shall be less than $67,826.50, the amount paid as profit shall be determined by taking 11.5% per cent of the actual costs of labor and materials in the construction.” (Emphasis added.)

A “cost-plus-fixed fee contract” is one under which one of the parties undertakes to pay all costs incurred by the other party in the performance of his contractual duties, plus a fixed fee over and above such reimbursable services. 17 C.J.S. Contracts § 10, p. 582. This is exactly the same definition contained in 9A Words and Phrases, p. 606, under the heading “Cost Plus A Fixed Fee Contract.” It is further stated at page 607, supra, under the heading, “Cost Plus Contract,” that:

“A ‘cost-plus contract’ as generally understood is one under which the total cost of the contractor represents the whole payment to be made to him, plus a stated percentage of such cost as his profit. Grothe v. Erickson, 59 N.W.2d 368, 370, 157 Neb. 248.”

From our examination of the contract, we have concluded that the judgment of the trial court is correct. The contract is plain and unambiguous and is a simple cost plus a fixed fee contract in which the contractor is to be reimbursed for costs of materials and labor by the owner and is to receive a stated percentage of such costs as his profit, not exceeding $7,800.00. While there was a ceiling on the amount to be paid to the contractor as his profit, there was no such ceiling on the costs of construction. The costs of construction were estimated to be $79,599.50, but the contract does not declare that such amount would be the total price of labor and materials for which appellants would be obligated to pay under the cost plus contract. The total cost of material and labor was established as the sum of $84,991.34.

Appellants have failed to demonstrate that the contract was ambiguous such that parol evidence could be introduced to determine the intent of the parties. The cardinal rule to be observed in the construction of contracts is to ascertain and give effect, whenever possible, to the real intentions of the parties, as that intention is revealed by the language used in the agreement. Brown v. Palatine Ins. Co., 89 Tex. 590, 35 S.W. 1060 (1896). Further, when a contract is before the court for construction, the court will ascertain the intention of the parties from the language contained within the instrument itself. Alderman v. Alderman, 296 S.W.2d 312, 315 (Tex.Civ.App. San Antonio 1956, writ ref’d); 13 Tex.Jur.2d, Contracts, Sec. 113, p. 269.

Appellants’ first and third points of error are overruled. In view of our holdings related to points of error one and three, point of error number two is not reached.

We have independently reviewed the contract as if it might be ambiguous, though we have held that it was not, and conclude that even under those circumstances, the evidence would support the jury’s verdict and the trial court’s judgment.

The evidence supports the jury’s verdict as it relates to the damages awarded by the trial court.

The judgment of the trial court is affirmed.


author: O’QUINN, Justice.

text:
    Paul H. HUBBARD, Receiver in Bankruptcy for Jack Riley, d/b/a Webb’s City Drug, Petitioner, v. Jeffrey L. LAGOW, Assignee of Temple National Bank, Respondent.
    No. 12588.
    Court of Civil Appeals of Texas, Austin.
    Nov. 30, 1977.
    Rehearing Denied Dec. 21, 1977.
    Paul H. Hubbard, Sue Stepp, Ñaman, Howell, Smith, Lee & Muldrow, Waco, for petitioner.
    James L. Carroll, Gerald M. Brown, Carroll, Carroll & Brown, Temple, for respondent.
   O’QUINN, Justice.

Paul H. Hubbard, receiver appointed in the United States District Court at Waco for John (Jack) Riley, doing business as Webb’s City Drug in Temple, filed petition for writ of error in district court of Bell County, seeking to remove to this Court for revision and correction a default judgment of the state district court against Riley in the sum of $27,758.07.

Both parties have filed briefs, and the cause has been submitted upon oral argument. Respondent Jeffrey L. Lagow by counterpoint contends Hubbard failed to show entitlement to appeal.

The threshold question in this Court is whether Hubbard as receiver in bankruptcy proceedings has available to him the remedy of revision by writ of error, since Hubbard was not a party of record in district court of Bell County when judgment against Riley was entered.

It is settled that in general the remedy by appeal in the usual form, or by writ of error, is available only to persons who were parties to the litigation which resulted in entry of the challenged judgment. Gunn v. Cavanaugh, 391 S.W.2d 723 (Tex.Sup.1965); Grohn v. Marquardt, 487 S.W.2d 214, 216 (Tex.Civ.App. San Antonio 1972, writ ref’d n.r.e.). The Supreme Court in Cava-naugh recognized certain exceptions to the rule.

Hubbard seeks to avail himself of the exception there stated that a person who is a party under the “doctrine of virtual representation” within provisions of Rule 42, Texas Rules of Civil Procedure, may appeal under the holding of Robertson v. Blackwell Zinc Company, 390 S.W.2d 472 (Tex.Sup.1965).

Cases usually arising under this doctrine are class actions under provisions of Rule 42. See Ambassador Oil Corp. v. Robertson, 384 S.W.2d 752 (Tex.Civ.App. Austin 1964, writ ref’d n.r.e., 390 S.W.2d 472). Other cases in which the doctrine was applied are reviewed in Gunn v. Cavanaugh, supra; Grohn v. Marquardt, supra, 487 S.W.2d 216-217; Industrial Generating Co. v. Jenkins, 410 S.W.2d 658, 660-661 (Tex.Civ.App. Austin 1966, no writ); and in Mills v. Howell, 416 S.W.2d 453, 455 (Tex.Civ.App. Austin 1967, no writ). The case here under review is not a class action, nor a will contest, nor a suit to set aside a trust, nor is it in any manner a probate appeal.

Hubbard contends that writ of error is available to him because as receiver in bankruptcy he “. . . has in all things succeeded to the interests of . . . ” Riley, the bankrupt who was defendant in the state district court which entered the judgment being challenged.

The suit in state court was brought in April of 1976 by Temple National Bank on a promissory note in the principal amount of $33,750.96 against Riley, doing business as Webb’s City Drug. The bank alleged Riley had given the bank security interests in all his inventory, accounts receivable, business equipment, and fixtures. Because the owner of the building Riley’s business occupied had instituted a forcible detainer action, the bank sought to restrain Riley from disposing of, wasting or removing any of the secured assets. The bank assigned to Jeffrey L. Lagow all its rights to the note, security agreements and financing statements executed by Riley, as well as its pending course of action against Riley.

Meanwhile Riley had been served with process, including copy of the trial court’s restraining order and notice of hearing to show cause why temporary injunction should not be granted. Riley failed to answer in the cause or make other appearance, and default judgment against Riley was taken late in May of 1976. The court also ordered that all security interests held by Lagow be foreclosed and the goods and chattels secured be delivered to Lagow. At public sale the assets sold to the highest bidder at $31,500.00, a sum in excess of the judgment. Notice of the sale was sent to Riley, Parke Davis and Company, and Southwestern Drug Corporation, the latter two apparently creditors of Riley’s drug store, and notice of the public sale was published in a local newspaper prior to the sale.

Riley filed his petition in bankruptcy, and in June of 1976, upon application of Southwestern Drug Corporation for appointment of a receiver for the assets of the debtor, the court appointed Hubbard receiver. Shortly before expiration of six months next succeeding entry of the judgment in state district court Hubbard filed his application for writ of error to this Court seeking revision of the state court judgment.

Of paramount importance in determining applicability of the doctrine of virtual representation is the identity of interests. Industrial Generating Co. v. Jenkins, supra. Hubbard contends that his interest as receiver in the bankruptcy proceedings is identical with that of Riley as defendant in the bank’s original suit on the promissory note secured by assets of the drug store.

It is obvious that the interests of Riley and the receiver in bankruptcy are not identical. “The entire object of the receivership,” Collier states, “is to preserve the status quo and assure that the assets are protected until the officer who is in charge under the law to liquidate them (that is, the trustee) assumes possession and control of the assets of the estate.” Collier on Bankruptcy, vol. 11, ch. 4, sec. 4.002, P-134. The Bankruptcy Act empowers the court of bankruptcy to appoint a receiver on application of any party of interest “. . .to take charge of the property of the bankrupts and to protect the interests of the creditors after the filing of the petition and until the petition is dismissed or the trustee is qualified . . . ” (Emphasis added) Sec. 2a(3). See Collier, supra, P-133.

Under the Act itself and the Rules, it appears that the receiver is at most an interim stakeholder, pending appointment of a trustee or until the petition is dismissed.

The status, the powers, and the duties of the receiver are described in American Jurisprudence in this language:

“A receiver in bankruptcy is appointed in pursuance of special statutory provisions; he is a statutory receiver, rather than a general receiver such as appointed by a court of chancery under its inherent powers. * * *

“The primary duty of a receiver in bankruptcy is, of course, to take charge of the property of the alleged bankrupt and preserve it pending the time when it can be turned back to the owner if adjudication is denied, or when it can be turned over to the trustee in bankruptcy if adjudication results. He is an officer of the court, in charge of property in custody of the court, although he takes no title to the property, inasmuch as title remains in the bankrupt until the adjudication. . . . ” (Emphasis added)

“* * * Until adjudication, the receiver is neutral as respects the contest between the petitioning creditors and the bankrupt .” (Emphasis added) 9 Am.Jur.2d Bankruptcy, sec. 336, pp. 279-280 (1963).

Hubbard urges that he alleged facts in his petition for writ of error sufficient to bring him before this Court “as the proper party to appeal this cause.” The argument is that an application “showing that one party [Riley] has become defunct by decree of Court and that another person or entity is the successor [Hubbard as receiver] to that party is sufficient to bring the successor to the Court of Civil Appeals as the proper party to the proceeding.”

In support of this contention Hubbard relies on authority of two cases. In one case a defunct corporate entity had been succeeded by a second corporation which, as stated by the court, “. . . has acquired its [the first entity’s] property and rights, and assumed the payment of all of its debts, obligations and liabilities.” Proctor v. San Antonio St. Ry. Co., 26 Tex.Civ.App. 148, 62 S.W. 938, 939 (San Antonio 1901, no writ). In the other case a merger of two corporations had been effected, and the new company was held not to be a stranger to the record. Stephenson v. Texas and Pacific Railway Co., 42 Tex. 162 (1875).

Neither case is in point. Unlike one corporation taking over all assets and debts of its defunct predecessor, or the instance of one corporation by merger reappearing under a new name, the receiver in bankruptcy has not, and cannot under law, stand in all matters in the shoes of the bankrupt. Hubbard as receiver was empowered to take charge of such assets as were before the bankruptcy court and preserve them, either for return to the bankrupt in event the petition should be dismissed, or turn the assets over to the trustee when and if appointed by the court.

Mere allegations in his petition setting forth his appointment as receiver in bankruptcy will not establish Hubbard “as the only proper party to prosecute this appeal,” as he now contends. We hold that appeal by writ of error from the judgment against Riley, which was followed by transfer of the secured property at public sale, is not available to Hubbard as receiver in bankruptcy. The interests of Riley against whom the judgment was taken are not identical with the interests of Hubbard the receiver.

We express no opinion regarding validity of the judgment below, as that judgment is not before this Court.

We sustain respondent’s counterpoint that appeal by writ of error is not available to Hubbard as receiver. Petitioner Hubbard’s motion to sustain jurisdiction is overruled. The appeal is dismissed.


author: HALL, Justice.

text:
    SQUARE 67 DEVELOPMENT CORPORATION, Appellant, v. RED OAK STATE BANK, Appellee.
    No. 5814.
    Court of Civil Appeals of Texas, Waco.
    Nov. 30, 1977.
    Rehearing Denied Dec. 22, 1977.
    Stephen B. Early, Longview, for appellant.
    Jonathan H. Allen, Lancaster, for appel-lee.
   HALL, Justice.

This suit was filed on December 27,1976, in the name of Square 67 Development Corporation against Red Oak State Bank for the recovery of $22,375.00 allegedly converted by the defendant Bank, and for exemplary damages. The suit was brought on behalf of the plaintiff corporation by the Honorable Stephen B. Early of the law firm of Roberts, Harbour, Smith, Harris, French & Ritter, of Longview, Texas. Defendant Bank filed a motion under Rule 12, Vernon’s Tex.Rules Civ.Proc., to require Mr. Early to show his authority for instituting this suit on behalf of Square 67 Development Corporation, and, upon his failure to do so, for dismissal. The motion was heard by the court without a jury on June 21, 1977. Early was the only attorney who appeared at the hearing on behalf of plaintiff corporation. After the hearing the case was dismissed. This appeal is prosecuted from that order.

Rule 12 contains the following pertinent provisions:

“Any defendant in any suit or proceeding pending in any court of this state may, by sworn written motion stating that such defendant believes that such suit or proceeding was instituted against him or is being prosecuted against him without authority on the part of the plaintiff’s attorney, cause such attorney to be cited to appear before such court and show his authority for same. . Upon the hearing of such motion, the burden of proof shall be upon the attorney appearing for the plaintiff to show sufficient authority from the plaintiff in such suit or proceeding to institute or prosecute the same. Upon his failure to show such authority, the court shall refuse to permit such attorney to appear in said cause, and shall dismiss the same if no person who is authorized to prosecute said cause appears. . . . ”

The following facts are undisputed in the record. This suit was filed at the instance of James B. Schubiger, who was and is plaintiff corporation’s president. It was he who determined to bring this suit and who employed Early to file it. In December, 1976, when the suit was filed, the corporation had a Board of Directors. The Directors did not authorize the filing of this suit nor the employment of Early by Schu-biger. On April 20,1977, at a special meeting of the Directors, a resolution was adopted which stated in its opening paragraph, “that Stephen Early, Attorney or his law firm does not represent, nor has he had the authority to represent, Square 67 Development Corporation, and that any acts upon his part on behalf of Square 67 Development Corporation are hereby considered null and void, and that all acts of J. B. Schubiger as President of Square 67 Development Corporation which have not been confirmed or agreed to by the Board of Directors of Square 67 Development Corporation by Resolution are hereby voided and shall not be binding upon said Corporation.” All three members of the Board of Directors were present at the special meeting when the resolution was adopted. They were Schubiger, Cecil R. Owens (who was and is plaintiff corporation’s vice-president and secretary), and Robert H. Hughes. Owens and Hughes voted for the resolution, and Schubiger voted against it.

There is no evidence of any express or implied powers granted to Schubiger under the corporate bylaws or delegated to him by the board of directors other than the fact that he was appointed president of the corporation.

It is asserted that simply by virtue of his office as president of plaintiff corporation Schubiger was empowered to employ Early and prosecute this suit. There is a division of authority on this question among the jurisdictions. 19 C.J.S. Corporations § 1066, p. 604; 19 Am.Jur.2d 611, Corporations, § 1190. The following cases are cited to us as supporting the proposition in Texas: Dallas Ice-Factory & Cold-Storage Co. v. Crawford, 18 Tex.Civ.App. 176, 44 S.W. 875 (1898, no writ); Bankers’ Trust Co. v. Cooper, Merrill & Lumpkin, 179 S.W. 541 (Tex.Civ.App.—Amarillo 1915, no writ); and Hackney v. York, 18 S.W.2d 923 (Tex.Civ.App.—Beaumont 1929, no writ). The question before the courts in each of these cases was the liability of the corporation for attorneys’ fees for services rendered to the company by the claimant attorney. The holdings were that under corporate bylaws granting broad powers to a president and general manager to run the company business they may be authorized to employ an attorney to represent the corporation in litigation or to generally advise it in legal matters pertaining to the corporate business without prior approval of the directors; and that under proper circumstances a corporation can be estopped to deny the employment of the attorney when he sues for his fees. These holdings do not support the rule that the president of a corporation is authorized solely by reason of his office to initiate litigation on behalf of the company and employ legal counsel for that purpose.

We believe the question is answered in Texas by statute. Articles 2.31 and 2.42, V.A.T.S. Bus.Corp.Act, provide in pertinent parts that “The business and affairs of a corporation shall be managed by a board of directors” and that “All officers and agents of the corporation, as between themselves and the corporation, shall have such authority and perform such duties in the management of the corporation as may be provided in the bylaws, or as may be determined by resolution of the board of directors not inconsistent with the bylaws.” It is our view that under these statutes the president of a corporation is not authorized to employ an attorney to conduct litigation for the company absent express authority or implied authority (such as entrustment with broad powers of management of the corporate business) set forth in the bylaws or by proper action of the board of directors.

In any event, if it should be presumed that simply by reason of his presidency Schubiger was authorized to employ an attorney to prosecute this suit, the presumption was directly rebutted by the resolution of the Directors denying such authority. Early concedes this is true if the resolution is valid, but he asserts invalidity on these two theories: (1) After the disavowal of authority by Early and Schubiger to prosecute this suit, the remainder of the resolution is concerned only with granting sole authority for the management and operation of plaintiff corporation to Owens which constitutes an abandonment of responsibility the Directors could not legally make; and (2) Owens was legally disqualified from voting on the resolution because he had a personal, financial interest in the matter, and therefore the vote on the resolution was a 1-1 deadlock.

The denial of Early’s right to bring this suit or to continue to prosecute it was unquestionably within the authority of the Directors. We do not agree that the denial would be of no effect if other actions taken by the Directors in the resolution should be invalidated. The argument is made that the disavowal was simply a part of the single purpose of the resolution to vest control of the corporation in Owens, but the record does not establish that fact or that the vote of either Owens or Hughes to deny Early’s authority was based upon the validity of the remainder of the resolution.

We need not detail the proof relating to Owens’s qualification to vote on the resolution. The over-all import of the evidence is a fight between Schubiger and Owens for control of plaintiff corporation and its assets. At most, only a fact question is raised as to Owens’s qualification. Under the record this question was impliedly resolved by the trial court in support of the order of dismissal.

The judgment is affirmed.


author: MASSEY, Chief Justice.

text:
    AETNA FINANCE COMPANY, Appellant, v. Larry B. ABLES, Appellee.
    No. 17909.
    Court of Civil Appeals of Texas, Fort Worth.
    Dec. 1, 1977.
    Durward D. Moore, Dallas, for appellant.
    Larry B. Abies, pro se.
   OPINION

MASSEY, Chief Justice.

This is another case in which is made obvious the erroneous opinion of the general public that when there has been repossession of. retail commodities (which constitute security for indebtedness) because of failure to make the contracted installment payments to the vendor (or his assignee) on the strength of the mortgage, all reciprocal obligations come to an end so that nothing is thereafter owed either by or to the vendor (or his assignee mortgagee).

Here the vendor’s assignee, Aetna Finance Company, repossessed a refrigerator, range, and under-counter dishwasher which had been purchased by Larry B. Abies on March 4, 1975 for $1,286.60, with unpaid balance of $1,200.00 financed and assigned to Aetna Finance Company upon security of the appliances. The indebtedness amount of $1,577.88 (including interest of $377.88) was to be paid by Abies at the monthly rate of $43.83 in order to retire his indebtedness in 36 months, with the first payment due April 5, 1975.

Abies made the payments which fell due in April, May, and June of 1975 but defaulted in July of 1975. With his consent Aetna Finance Company repossessed the appliances. Aetna was shown to have sold these. Having properly applied credits on Abies’ note, save for “amounts realized from sale of the appliances by commercially reasonable disposition,” Aetna brought suit against Abies for deficiency judgment following sale of the collateral. The amount for which Aetna Finance Company sued was an alleged deficiency of $761.53 plus $500.00 as an attorney’s fee.

Trial was to the court without a jury, which rendered judgment that Aetna take nothing from Abies by its suit. Aetna appealed.

We affirm.

Having application to the instant case is what was written by this court in Christian v. First Nat. Bank of Weatherford, 531 S.W.2d 832, 842 (Tex.Civ.App.—Fort Worth 1975, writ ref'd n.r.e.), as follows:

“The references herein made are to the Texas Business and Commerce Code annotated (Uniform Commercial Code). Part 5 of Article 9 (9.501-7) of the Uniform Commercial Code outlines the proper procedures for a secured party to follow after a debtor’s default. Section 9.504 allows the secured party to dispose of the repossessed collateral so long as the disposition is commercially reasonable. Comment 6 to Section 9.504 repeats that the Code’s general obligation of good faith (Section 1.203) is imposed upon these parties. Section 9.507(a) states that if. the collateral has been disposed of without compliance with the Uniform Commercial Code, the debtor may recover for any losses sustained as a result of this wrongful disposition. Section 9.507(a) does not state that it is an exclusive remedy. Section 1.103 states that the Uniform Commercial Code remedies are cumulative.
“In the case of First National Bank of Bellevue v. Rose, 188 Neb. 362, 196 N.W.2d 507 (1972) the Bank sued for a deficiency judgment after having sold the collateral. The debtor had proper notice of the sale. The trial court directed a verdict for the Bank holding that the alleged inadequacy of price was an affirmative defense which could not be raised by general denial. The Nebraska Supreme Court reversed and held that since the defendant-debtor had filed a general denial and introduced evidence contradicting the secured party’s claim that the sale price equaled the fair and reasonable value of the collateral, a question of fact was presented for the jury. The effect of this holding was that the Bank was required to prove that all offsets and credits had been allowed, which necessarily implied an obligation to prove that the sale of collateral was made in a commercially reasonable manner. When defendants contradicted this evidence a jury question was presented.
“As previously indicated above, remedies previously available to a debtor are not eliminated unless the Code specifically deletes them. Prior to the adoption of the Code a debtor could use a secured party’s failure to comply with the terms of the chattel mortgage and the applicable resale and repossession law as a defense or a partial defense to an action to obtain a deficiency judgment.
“In Kolbo v. Blair, 379 S.W.2d 125 (Corpus Christi, Tex.Civ.App., 1964, ref., n.r.e.) that court had before it a suit by a creditor against his debtor to obtain a deficiency judgment after having sold the collateral. That court stated: ‘The ap-pellees sought a deficiency judgment. Deficiency is that part of the secured obligation which remains after crediting it with the net proceeds accruing from a valid sale of the security by the creditor.’ The court further stated the rule to be: ‘A prior valid sale, fairly conducted, or a determination that the property had been converted, and then a finding of the reasonable market value of such property as of the date of its conversion are the conditions precedent to the entry of a proper deficiency judgment. ... If the value of the said property, considered as it was on said date (the date of the appropriation by the appellees), is found to be less than the debt, then the appellants should be given credit for such value, and appellees a judgment for the remaining deficiency, plus interest and attorney fees.’ For a general discussion on this subject and an analysis of the decided cases see Vol. 6, No. 4, Uniform Commercial Code Law Journal, p. 344, ‘May a “Wrongdoer” Recover a Deficiency Judgment, or Is Section 9-507(1) a Debtor’s Exclusive Remedy?’ ”

In the instant case there was evidence that Aetna Finance Company realized $225.00 from the sale of Abies’ refrigerator and $356.95 from the sale of his under-counter dishwasher. Its witness testified that Abies’ stove had been sold, but he did not know the amount obtained for it. He observed that such amount probably was part of the $356.95 earlier testified to have been received from the sale of the dishwasher. The witness did not know how the sales of the several appliances, or any of them, had been conducted. He did testify that in the normal course of sale of repossessed security items Aetna would get several bids and try to get the best price obtainable. There was no testimony that the sales of the properties here involved were sold according to this “normal course.” There was a complete absence of evidence upon the market value of any of the three appliances at time of repossession or sale by Aetna.

Under the foregoing the court, in this case the fact finder, was deprived of knowledge of the amount Aetna realized, or should have, from a “commercially reasonable disposition” of the appliances repossessed.

.By the proof as of the date of March 4, 1975 (when Abies purchased the appliances from Aetna’s assignor) the court could find that at such time the market value of the appliances was $1,286.60, the agreed purchase price. There having been no testimony to the contrary, the presumption would obtain that such market value of $1,286.60 continued in effect—even to the time of Aetna’s sale. This justified the implied fact finding of the court that Aetna should have realized by its sale of its security at least enough money to retire the indebtedness owing by Abies. What should have been realized would be, in view of the state of the record, the amount to be credited to Abies’ account. When so credited Aetna Finance Company would obviously have been fully paid and there would be no deficiency owed by Abies.

By provision of Texas Business and Commerce Code, Art. 9.504, “Secured Party’s Right to Dispose of Collateral After Default; Effect of Disposition,” even where the method of sale of the security is “commercially reasonable” the debtor is entitled to notice except when, after default, he has renounced or modified the right. In this case Abies was not notified and he was entitled to notice. Furthermore sale right by Art. 9.504 is expressly made subject to antecedent Art. 2.723, “Proof of Market Price; Time and Place,” because it is in Chapter 2 of the Code. Thereby, through necessary implication, was the trial court authorized to look to the price and market value of the security on March 4, 1975 as “within any reasonable time before or after” the time of repossession and sale and to treat it as persisting at the material time.

Aetna’s complaints on appeal is that the fact finding on value (price and/or market value of repossessed articles sold), necessarily presumed as support of the judgment, was contrary to the greater weight and preponderance of the evidence and constituted an abuse of discretion. We deem the complaints to be without support of the record.

Judgment is affirmed.