author: KLINGEMAN, Justice.

text:
    Phil TUCKER, Appellant, v. E. L. CABINESS, Appellee.
    No. 15825.
    Court of Civil Appeals of Texas, San Antonio.
    Sept. 7, 1977.
    William H. Ervine, Jr., Kerrville, for appellant.
    Spencer W. Brown, Kerrville, for appel-lee.
   KLINGEMAN, Justice.

Phil Tucker appeals from an order dissolving a temporary restraining order and denying his application for temporary injunction. This ease is before us without a statement of facts, and the only record before us is the transcript.

Phil Tucker filed an application for a temporary restraining order, temporary injunction, and permanent injunction on November 23, 1976 in the District Court of Kerr County, Texas. In his petition he alleged that he and some friends traveled from Missouri to the Cabiness ranch in Kerr County, Texas for the purpose of hunting deer and turkey; that he is a son of Betty Cox Tucker, who is one of the joint owners of the ranch; that there is a partition suit pending in Kerr County, Texas, wherein the court has entered an order finding that the ranch is partitionable in kind, and ordering that a ⅛⅛ interest be partitioned to Betty Cox Tucker. He further alleged that he and his friends were refused entry and not permitted to hunt on such ranch by E. L. Cabiness and wife; that he and his friends need to return home on the weekend of November 27, 1976, and immediate relief is needed. In his prayer, he asks (a) for a temporary restraining order, restraining defendant from interfering with or preventing plaintiff from entering the ranch and hunting; (b) for a temporary injunction enjoining defendant from interfering with or preventing plaintiff and his friends from entering such ranch and hunting; and (c) that on final hearing defendant be permanently enjoined from interfering with, or in any way prohibiting, the plaintiff and his friends from entering the ranch and hunting.

The trial court granted a temporary restraining order without notice, and thereafter, upon a hearing, the court dissolved the temporary restraining order and the temporary injunction was denied. There is nothing in the record to indicate that any action whatsoever has been taken with regard to the permanent injunction.

In suits for temporary injunctions, the trial court has broad discretion to grant or deny the injunction, and its judgment will not be overturned on appeal unless the record discloses a clear abuse of discretion. City of Spring Valley v. Southwestern Bell Telephone Co., 484 S.W.2d 579 (Tex.1972); State v. Cook United, Inc., 469 S.W.2d 709 (Tex.1971); Janus Films, Inc. v. City of Fort Worth, 163 Tex. 616, 358 S.W.2d 589 (1962); Texas Foundries, Inc. v. International Moulders and Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460 (1952).

There is nothing in the record to indicate what title or interest, if any, plaintiff has in the premises involved. The transcript contains a preliminary decree of partition entered in April 1976, which finds Betty Cox Tucker to be the owner of the Vsth interest in certain lands in Kerr County, Texas; which decree also finds defendant, E. L. Cabiness, to be the owner of a ½ interest in said lands, finds that Cabiness is the surviving husband of Dorothy Cabiness and that a part of the lands is the homestead of Cabiness, and recites that E. L. Cabiness is administrator with the will annexed of the estate of Dorothy Cabiness, deceased. The decree orders a partition and division of the property and appoints commissioners of partition.

We find no merit in appellant’s appeal. Clearly, the judgment here under attack should not be reversed. The only real question involved is whether to enter an order of dismissal or affirm the judgment. Appellee contends that the appeal is moot in that the hunting season is now over and the relief sought in the temporary injunction cannot now be granted. Under such conditions, the proper order would be an order of dismissal. Appellant alleged in his petition that he and his friends had to return to the State of Missouri on the weekend of November 26, 1976; that unless a temporary restraining order and temporary injunction is issued, their hunting trip will be useless; that if they are not permitted to hunt by such time, they will have to return to their homes out of state and will be unable to return at a later date; and that the deer season will be over in the near future. Although plaintiff also asks for a permanent injunction, this is not before us on this appeal.

Ordinarily, the hearing upon the temporary injunction is not a substitute for, nor does it serve the purpose of, a hearing on the merits. Generally, the most expeditious way of obviating the hardship and discomfiture of an unfavorable preliminary order is to try the case on the merits and thus secure a hearing wherein the case may be fully developed and the courts, both trial and appellate, may enter judgment fully disposing of the controversy. Southwest Weather Research, Inc. v. Jones, 160 Tex. 104, 327 S.W.2d 417 (1959).

Under the meager record before us, we have concluded that the appeal should be dismissed. This order of dismissal is entered without prejudice to such further action as the parties and the District Court may wish to take with reference to the case on the merits.

The appeal is dismissed.


source: Caselaw Access Project

author: MASSEY, Chief Justice.

license: Public Domain

text:
    Robert H. CALDWELL, Jr., et al., Appellants, v. CITY OF DENTON, Texas, a Municipal Corporation, et al., Appellees.
    No. 17893.
    Court of Civil Appeals of Texas, Fort Worth.
    Sept. 8, 1977.
    Rehearing Denied Oct. 5, 1977.

      Shirley W. Peters, Denton, Rex McEntire, Fort Worth, Jack W. Gray, Denton, for appellants.
    Paul C. Isham, City Atty., Denton, John L. Hill, Atty. Gen. of Tex., David R. Thomas, Dallas, for appellees.
   OPINION

MASSEY, Chief Justice.

As plaintiffs, Robert H. Caldwell, Jr., and Ray V. Hunt brought and prosecuted a suit against the defendants, the Home Rule City of Denton, Texas, and certain individuals who were members of its governing body. The State of Texas presented itself as an intervenor.

Plaintiffs’ prayer was that they have a declaratory judgment that there existed a conflict of interest of the individual city council members constituting two-thirds of the voting majority of the governing body of the City of Denton of such a nature as should either require invalidation of municipal action closing certain streets or which ab initio inhibited effectiveness of council action purporting to close them. They seek to have such action declared void; and that there be granted a writ of injunction prohibiting closure of the streets.

Defendants filed a motion to dismiss the suit. The trial court proceeded to trial on the merits of the case with action on the motion deferred until the conclusion of trial. Full opportunity was afforded all parties to present their evidence. At the conclusion of trial the court entered judgment which sustained the defendants’ motion to dismiss plaintiffs’ suit. However, the trial court’s judgment not only decreed suit dismissal, but furthermore proceeded to make declaratory adjudication that there was not a conflict of interest affecting the challenged action of the City and its council members. There was not a necessity for declaratory judgment in addition to the decree of dismissal. Our holding is that the dismissal was a correct judgment and we disregard the declaration made. Plaintiffs perfected their appeal and have submitted the case.

Judgment affirmed.

Aside from any question of propriety of action by any council member, the Home Rule City of Denton had undoubted authority to close.the streets. V.A.T.S. Title 28, “Cities, Towns and Villages”, Ch. 13, “Home Rule”, Art. 1175, “Enumerated powers”, specifically authorizes such action.

Neither plaintiff owned property abutting upon any portion of that part of a street which was elsewhere directed to be closed. By reason thereof there is statutory inhibition of plaintiffs’ suit for injunction. V.A.T.S. Art. 4646a, “Prohibiting injunction against closing streets.” There was like rule by the common law even prior to the 1930 effective date of Art. 4646a. See authorities cited in Lee v. City of Stratford, 125 Tex. 179, 81 S.W.2d 1003 (1935).

For the same reason, under Texas law, neither plaintiff could maintain a suit for damages because of the closing of the streets at points other than where there was abutment upon their properties; the fact of non-abutment necessarily making of the injury done them no different from the injury, if any, suffered by the general public. That there might have been difference in degree of injury suffered by plaintiffs from others constituting members of the public does not alter this rule. The consequence is that as to them exists mere dam-num absque injuria. There being no remedial damages which might be recovered neither plaintiff can maintain a cause of action for damages. Lee v. City of Stratford, supra; Burrow v. Davis, 226 S.W.2d 199 (Tex.Civ.App. — Amarillo 1949, writ ref. n.r. e.); Jacobs v. City of Denison, 251 S.W.2d 804 (Tex.Civ.App. — Dallas 1952, no writ history).

Neither plaintiff had a cause of action against the City of Denton for injunction or for damages growing out of the action of which they complain. That being so they are without authority to question the validity of the ordinance by which there was a closing of municipal streets. Lee v. City of Stratford, supra.

Necessarily is the law the same as applied to any right of plaintiffs to maintain a suit for declaratory judgment. No purpose would be served in obtaining declaration upon a mere hypothetical question of law. In the “eyes of the law” there is no invasion or threatened invasion of either plaintiff’s personal or property rights. Therefore there is absence of the requisite litigious controversy essential to maintenance of a suit for declartory judgment. 1 McDonald, Texas Civil Practice, 1965 Rev., p. 156, et seq., Ch. II, “Actions”, and the sections in particular beginning with sec. 2.03, “Declaratory Judgments”, especially at p. 172, sec. 2.05.1, “C. Situations in Which Granted.”

To consider questions upon impropriety of the action of the several council members because at the very time of their action closing the streets they were serving as employees of the State University benefited thereby would be to render an advisory opinion on an abstract hypothetical or moot question; one whereby no purpose would be served in any essential justiciable controversy, i. e., a controversy upon which plaintiffs would be entitled to maintain a suit to obtain any relief. California Products, Inc. v. Puretex Lemon Juice, Inc., 160 Tex. 586, 334 S.W.2d 780 (1960). Plaintiffs’ remedy, if there be any to which they are entitled, must be one of political character; a judicial remedy is by our law unavailable to them as individuals or as representatives of any class of persons which include them.

Despite our conclusion that to consider every point of error brought and presented on appeal would be unnecessary, we have nevertheless done so. We overrule all of them.

The judgment is affirmed.


author: KEITH, Justice.

text:
    AETNA LIFE INSURANCE COMPANY, Appellant, v. Gail G. SCARBOROUGH, Appellee.
    No. 7997.
    Court of Civil Appeals of Texas, Beaumont.
    Sept. 8, 1977.
    Rehearing Denied Oct. 6, 1977.
    W. C. Henderson, Dallas, for appellant.
    Roger L. Turner, Dallas, for appellee.
   KEITH, Justice.

The insurer, defendant below, appeals from a judgment which awarded plaintiff a recovery for medical expenses she incurred in a surgical procedure, together with penalty, interest, and attorney’s fees.

Plaintiff’s husband entered the employment of Tandy Corporation and filled out an application for coverage by a group insurance policy issued through his employer by defendant. A certificate was issued, the effective date being June 16, 1974, which provided coverage for medical expenses incurred by family members, including plaintiff, his wife. This policy contained a special condition:

“If, at the time a family member becomes insured under this Title, he has received treatment for a condition resulting from a disease or injury during the three month period just before he became insured under this Title, Covered Medical Expenses for that condition are subject to the limitations described below. Treatment of a condition means receiving either medical services or prescribed drugs or medicines, [emphasis ours]
1. Any expenses incurred in connection with such condition during the first twelve months while insurance is in force will not be considered Covered Medical Expenses.”

Bearing in mind the date of the certificate, the effect of the quoted language was to exclude from coverage any medical expenses incurred in the treatment for a condition for which the insured had received treatment during the period March 16-June 16, 1974.

On June 6, 1974, plaintiff was examined manually by Dr. Ensey, a gynecologist, and he made a pap smear. Dr. Ensey testified that his examination revealed an abnormality of plaintiff’s ovarian function and that the ovaries were enlarged. On June 17, one day after the effective date of the insurance coverage, she returned to Dr. Ensey for another examination and some improvement was noted. The doctor made a written report to plaintiff, dated June 18, 1974, reciting his findings on his first and second examinations, the results of the laboratory tests and concluded: “Recommend: excision of ovaries and frozen section.”

On July 1, Dr. Ensey performed the suggested operation and the surgery involved the abnormality initially revealed by his first examination. Dr. Ensey testified by deposition that his first examination was a “routine physical” examination and did not constitute treatment for the conditions he operated for shortly thereafter.

We note in passing that the doctor’s conclusion that his examination of plaintiff was not treatment is an apparent effort to construe the exclusionary clause of the policy, and is like unto hearsay. He was not qualified to construe the policy or to give an opinion on the subject. While a physician may give his opinion on physical facts, or as medical facts, he may not determine the legal classification or effect of such facts; that is a matter entrusted to the courts.

The jury found that plaintiff did not receive treatment “for a condition resulting from a disease or injury related to the condition for which she received surgery on July 1, 1974.” The other issue related to attorney’s fees; and, since defendant makes no attack thereon, we need not concern ourselves with such issue.

Since defendant brings forward “no evidence” points by contending that it was entitled to a directed verdict or a judgment non obstante veredicto, we must consider only the evidence and inferences tending to support the finding and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). And, it must be remembered that the burden was upon the plaintiff to establish that the procedures used by Dr. Ensey on June 6, 1974, did not constitute “treatment” as defined in the policy — and not as defined by Dr. Ensey. Sherman v. Provident American Insurance Company, 421 S.W.2d 652, 654 (Tex.1967); Mid-Western Life Insurance Co. v. Goss, 552 S.W.2d 430 (Tex.1977).

The facts in our case are practically without dispute, and the only question presented for determination is whether plaintiff received treatment, as defined in the policy, when she visited Dr. Ensey on June 6,1974.

Defendant relies heavily upon the holding in Provident Life and Accident Insurance Co. v. Hutson, 305 S.W.2d 837, 839, 65 A.L.R.2d 1443 (Tex.Civ.App. — Beaumont 1957, writ ref’d n. r. e.). In Hutson, the insured died as the result of complications following a surgical procedure known as a pneumoen-cephalogram; and, this court specifically noted that the test was “performed in an effort to diagnose correctly the patient’s condition and in no sense was considered by medical authorities as a treatment for the curing or alleviating the condition of a patient. It was a diagnostic test . . . .”

Yet, the court, quoting from another case, used this language:

“ ‘The meaning of the word “treatment” as used in the policy must be given a reasonable scope. It includes not merely the actual operation in a surgical ease or the giving of a prescription in a nonsurgical case, but also the preliminary examination, including sometimes an exploratory operation or an exploratory examination. The treatment may, and generally does, include three stages: Preliminary, main, and final. Whatever is usually done to the patient or administered to him by a skilled physician or surgeon in any one of these stages is properly included under the term “treatment,” even though it may not be an indispensable prerequisite.’ ” (305 S.W.2d at 839-840)

The Hutson Court, after reviewing other authorities, continued:

“Within such legal meaning [as set out in the cited authorities] must be included not only what the physician or surgeon views as treatment, that is, things done in an effort to relieve or cure a physical disease or infirmity, but also all of the things performed by a doctor or a surgeon on the body of the patient in the diagnosis of or in preparation for cure. (305 S.W.2d at 840)

We are unable to find that this square holding has ever been challenged by any court during its twenty-year history. Indeed, to the contrary, it has received wide acceptance by the courts throughout the nation. See, e. g., McKay v. Bankers Life Company, 187 N.W.2d 736, 738 (Iowa 1971); Dinkowitz v. Prudential Ins. Co., 90 N.J.Super. 181, 216 A.2d 613, 616 (1966).

The Supreme Court of Oregon quoted at length from Hutson in Zeh v. National Hospital Association, 233 Or. 221, 377 P.2d 852, 857 (1963), where the critical language in the exclusion was “medical care”. The plaintiff consulted a neurologist during the exclusionary period for pain in his leg, and plaintiff underwent other diagnostic tests before receiving chiropractic treatment.

The Oregon Court addressed itself to a contention similar to the one which plaintiff advances in this case: “It is true, as the plaintiff’s brief states, that Dr. Raaf did not give the plaintiff any pills or other form of medication; . . . ” (377 P.2d at 857) It answered the contention by saying:

“If the consultation with the medical man is for the purpose of medication, or of diagnosis so that he may know what he must do next, it should be deemed medical care.” (Id. at 858)

And, so it is here. Plaintiff went to Dr. Ensey on June 6 because of pain in her ovaries and the examination revealed the cause thereof. She followed the recommendation and obtained relief. As said in Zeh, supra:

“Services that are received from physicians within the [excluded period] must be examined for the purpose of determining whether they were undergone because the insured’s preexisting condition was troubling him.” (Id.)

See also, 70 C.J.S. Physicians and Surgeons § 1, p. 817 (1951); 1A Appleman, Insurance Law & Practice, § 426, p. 134 (1965).

Plaintiff criticizes the holding in Hutson, supra, saying that it “is a classic example of our saying that ‘bad facts make bad law’ ”, but we disagree. Plaintiff’s counsel also calls our attention to several recent cases which we have examined and do not find to be either persuasive or controlling. Indeed, in the last case cited in the footnote, the Supreme Court opinion lends support to defendant’s argument.

Since we are of the opinion that Hutson and its progeny are dispositive, plaintiff’s recovery may not stand under the undisputed record which we reviewed. Consequently, we sustain defendant’s fifth point of error and reverse the judgment of the trial court and now render judgment for the defendant.

REVERSED and RENDERED.

      . The issue contained, in the form of an instruction within the issue itself, the italicized language quoted earlier in the pleaded exclusion.

      . Plaintiff cites Coker v. Travelers Ins. Co., 533 S.W.2d 400 (Tex.Civ.App. — Dallas 1976, no writ); Ramsay v. Maryland American General Ins. Co., 533 S.W.2d 344 (Tex.1976); and International Investors Life Ins. Co. v. Utrecht, 536 S.W.2d 397 (Tex.Civ.App. — Dallas 1976, no writ). These cases, apparently, are cited for the proposition that the policy provision involved in our suit is ambiguous. No such contention was urged in the trial court.
      She also cites Goss v. Mid-Western Life Ins. Co., 545 S.W.2d 878 (Tex.Civ.App — Tyler 1976), reversed, 552 S.W.2d 430 (Tex.1977).

      . Point of Error No. Five; “The Trial Court erred in not granting Defendant’s Motion for Judgment N.O.V. in that the jury’s finding to Special Issue No. 1 is not supported by the evidence.”


author: McDONALD, Chief Justice.

text:
    Gene SMITH, Trustee and Independent Executor of the Estate of Noel Dean Smith, Deceased, Appellant, v. Mildred Ann BRAMHALL, Individually and as next friend of Molly Ann Smith, a minor, Appellee.
    No. 5780.
    Court of Civil Appeals of Texas, Waco.
    Sept. 8, 1977.
    Rehearing Denied Oct. 13, 1977.
    Clark Langford, Waxahachie, for appellant.
    Donald R. Stout, Law Offices of Lynn B. Griffith, Gene Knize, Waxahachie, for ap-pellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Gene Smith, Executor of the Estate of Noel Dean Smith, from judgment against the Estate for child support owed by the deceased at the time of his death.

Plaintiff Mildred Ann Bramhall, Individually and as next friend of Molly Ann Smith, a minor, sued defendant Gene Smith, Trustee and Independent Executor of the Estate of Noel Dean Smith, deceased, alleging plaintiff was the former wife and Molly Ann Smith was the minor daughter of the deceased; that the divorce decree between plaintiff and deceased decreed he pay $50. per month child support for Molly Ann; that he failed to pay; that he died; that claim was presented to defendant who rejected same; and that suit was instituted within 90 days of such rejection.

Defendant filed answer stating plaintiff’s cause of action being for unpaid child support payments, not reduced to judgment prior to the death of deceased, in accordance with Section 14.09(c) Texas Family Code, did not survive the death of deceased.

Trial was to the court without a jury, which rendered judgment for plaintiff for $1500. plus $400. attorneys’ fees.

Defendant appeals on one point asserting the trial court erred in rendering judgment for plaintiff because “plaintiff is not entitled to recover arrearage in court ordered child support payments from decedent’s estate where arrearage was not reduced to judgment prior to decedent’s death”.

The trial court filed Findings and Conclusions summarized as follows:

FINDINGS OF FACT

1) Mildred Ann Bramhall was divorced from Noel Dean Smith.

2) In such decree Mildred Ann Bramhall was awarded custody of Molly Ann Smith, and Noel Dean Smith was ordered to pay $50. per month child support.

3) Noel Dean Smith fell into arrears and owed $1500. at the time of his death.

4) The nonpayment of child support by Noel Dean Smith was willful.

5) The claim of Mildred Ann Bramhall is just, due and payable and there are no offsets or credits.

6) The claim was timely presented to defendant Gene Smith, Executor who rejected same.

7) Suit was instituted by plaintiff within 90 days of such rejection as required by Section 313 Texas Probate Code.

8) Plaintiff is entitled to $1500. for unpaid child support, plus interest from date of judgment.

9) Plaintiff is entitled to $400. reasonable attorneys’ fee.

CONCLUSION OF LAW

1) Pursuant to 14.09(c) Texas Family Code, plaintiff is entitled to judgment for $1500. unpaid child support, plus interest from date of judgment, plus reasonable attorneys’ fees of $400. plus costs of court.

Prior to the Texas Family Code, Article 4639 V.A.T.S., now repealed, barred a cause of action as in this case.

On January 1, 1974 the Texas Family Code was enacted stating in part:

14.09(c) provides “On the motion of any party entitled to receive payments for the benefit of a child, the court may render judgment against a defaulting party for any amount unpaid and owing after 10 days’ notice to the defaulting party of his failure or refusal to carry out the terms of the order. The judgment may be enforced by any means available for the enforcement of judgment for debts.”

Unpaid child support is thus a debt for which judgment may be taken. Ex Parte Harwell, Tex.Civ.App. (Waco) NWH, 538 S.W.2d 667; Harrison v. Cox, Tex.Civ.App. (Ft. Worth) NRE, 524 S.W.2d 387; See also Hutchings v. Bates, S.Ct., 406 S.W.2d 419.

Section 37 of the Probate Code declares that a decedent’s estate is responsible for the debts of the decedent.

In this case the deceased owed debt for child support; claim was made upon his executor for payment which was refused; and suit was then filed to collect same. The trial court was authorized to render judgment for plaintiff for the debt for the child support against deceased’s Executor.

Defendant’s point is overruled.

AFFIRMED.


author: ROBINSON, Chief Justice.

text:
    Patricia L. EDWARDS, Individually and as next friend of Cynthia Edwards and John Edwards, Appellants, v. NEELY OIL, INC., Appellee.
    No. 8780.
    Court of Civil Appeals of Texas, Amarillo.
    Sept. 12, 1977.
    Rehearing Denied Oct. 3, 1977.
    McCreary & Weir, Robert C. McCreary, Austin, for appellants.
    Gibson, Ochsner, Adkins, Harlan & Han-kins, Joe Harlan, Amarillo, for appellee.
   ROBINSON, Chief Justice.

This is a wrongful death action. Plaintiff Patricia L. Edwards sued Neely Oil, Inc. and other defendants individually and as next friend of her two minor children for the alleged wrongful death of her husband, John W. Edwards. Plaintiff has appealed from the granting of a summary judgment for Neely Oil, Inc. Affirmed.

In a summary judgment proceeding, the question is not whether the summary judgment proof raises fact issues with reference to essential elements of a cause of action, but whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action. The burden of proof is on the movant, and all doubts as to the existence of a genuine issue of material fact are resolved against him. All conflicts in the evidence are disregarded, and the evidence which tends to support the position of the party opposing the motion is accepted as true. Farley v. Prudential Insurance Company, 480 S.W.2d 176, 178 (Tex.1972).

In the case before us, Neely Oil, Inc., formerly The Plains Lubricating Company, is a branded jobber of defendant Chevron, i. e., a wholesale distributor, buying gasoline from Chevron and selling it to their customers. Defendant Don W. Morgan leased a tract of land near Adrian, Texas, to Plains Lubricating Company. Plains, in turn, leased the land back to Morgan under a lease whereby Morgan agreed to sell Plains’ petroleum and allied products. As a part of the transaction Plains gave Morgan an old service station building which Morgan later moved onto the property at his own expense. The building had electric wall heaters in the restrooms at the time Morgan moved it to Adrian. After moving the building, Morgan converted the heating system to propane gas, using little space heaters in the restrooms. The propane was supplied by Loveless Oil Company which owned the propane tank. Morgan later subleased the station by an oral agreement to defendant Harold Whaley who was to pay Morgan 2$ a gallon for the gasoline sold.

On June 29,1974, while Whaley was operating the station, Edwards, plaintiffs husband, stopped at the service station. While his car was being serviced, he went into the men’s restroom. An explosion occurred in this restroom, causing the injuries from which Edwards later died. Plaintiff alleges that the death was caused by defendant’s failure to furnish safe facilities, failure to inspect the restroom facilities, failure to inspect the propane gas system, failure to close off the propane outlet in the restroom to prevent leakage, and failure to have an adequate safety system such as an automatic valve to shut off the propane gas supply.

The summary judgment evidence establishes as a matter of law that Neely Oil did not have the right to exercise and did not actually exercise control over the manner or details of the operations of the station. Thus, this case is controlled by the decision in Texas Co. v. Grant, 143 Tex. 145, 182 S.W.2d 996 (1944); Texas Co. v. Wheat, 140 Tex. 468, 168 S.W.2d 632 (1943) and Willman v. Texaco, Inc., 535 S.W.2d 774 (Tex.Civ.App. — Amarillo 1976, writ ref’d n. r. e.) and the relationship between Neely Oil and Morgan and Whaley is that of landlord and tenant and not that of master and servant.

Nevertheless plaintiff cites Darryl v. Ford Motor Co., 440 S.W.2d 630 (Tex.1969) and Rourke v. Garza, 530 S.W.2d 794 (Tex.1975) and contends that the lessor, Neely Oil, may be held liable on a theory of strict liability in tort for leasing a defective product unreasonably dangerous to consumers. We overrule the contention.

The doctrine of strict liability in tort as set out in Section 402A, Restatement 2d of Torts, applies only if the product alleged to be defective reaches the consumer without substantial change in the condition in which it is sold. In the case before us, the building’s heating system underwent a complete change months after Plains had subleased the land and given the building to Morgan.

For the same reason we overrule plaintiff’s contention that Neely Oil, Inc., is liable under the doctrine of res ipsa loquitur. See Mobil Chemical Company v. Bell, 517 S.W.2d 245 (Tex.1974).

We conclude that the summary judgment proof establishes that there is no issue of fact on essential elements of plaintiff’s cause of action against defendant, Neely Oil, Inc.

The judgment of the trial court is affirmed.

DODSON, J., not participating.


author: CLAYTON, Justice.

text:
    The FIRST NATIONAL BANK OF PORT ARTHUR, Appellant, v. Lillie SASSINE, Appellee.
    No. 8014.
    Court of Civil Appeals of Texas.
    Sept. 15, 1977.
    Rehearing Denied Oct. 6, 1977.
    Banker Phares, Port Arthur, for appellant.
    John P. Blair, Beaumont, B. T. McWhorter, Port Arthur, for appellee.
   CLAYTON, Justice.

Appellee, Mrs. Lillie Sassine, sued the First National Bank of Port Arthur, Individually and as Independent Executor of the Estate of Solomon Sassine, deceased, alleging that the Bank unlawfully removed $53,648 from her trust account and transferred that amount to the account of the Estate of Solomon Sassine, the Bank acting as Independent Executor of the Estate of Solomon Sassine. The trial court entered judgment against the Bank for this amount from which the Bank appeals.

It is undisputed that appellee, Mrs. Sas-sine, created an irrevocable inter vivos trust in May 1971, naming appellant bank as trustee containing the provisions for distribution to the appellee exclusively during her lifetime and allowing appellee to dispose of the trust assets at her death by her will. The trust was created without the joinder of her husband.

The undisputed evidence shows that on March 30, 1964, a savings account was created in appellant Bank in the name of Lillie Sassine, alone, and three months later, ap-pellee added the names of her son and grandson as joint tenants with right of survivorship. The actions with reference to the creation of the original savings account, as between appellee and her husband, Solomon Sassine, would give rise to a question as to whether the funds used in creating the account would constitute the separate property of appellee or community property of appellee and her husband. The funds from that account were used in the creation of the “Lillie Sassine Trust.”

When Solomon Sassine died testate in October 1971, a controversy arose over this trust account. As a result of this controversy, the Bank, acting as Independent Executor of the Estate of Solomon Sassine, included in the final inventory of the estate one-half of the value of the “Lillie Sassine Trust” and eventually distributed that amount to the legatees under the will and withheld the other one-half from the trust account. This was done without the consent of the beneficiaries of the Trust.

The Bank on its own volition determined that a portion of the trust funds were assets of the estate of Solomon Sassine and included such funds in the estate. The Bank in taking such action was acting in a dual capacity both as trustee of the “Lillie Sassine Trust” and as Independent Executor of the Estate of Solomon Sassine. The Bank has, in effect, unilaterally dissolved the “Lillie Sassine Trust” and delivered the funds to itself as the Independent Executor of the Estate of Solomon Sassine.

The trial court held that $53,648 of the trust account was the separate property of the appellee and entered judgment for that amount against appellant Bank.

In view of our disposition of this appeal, we do not find it necessary to decide whether the trust funds were the separate property of the appellee or the community property of appellee and her deceased husband. It was stipulated in the trial below that: (1) the “Lillie Sassine Trust” was a valid trust, and (2) Lillie Sassine did not commit any fraud, either actual or constructive.

Once a trust is established as valid it can only be set aside by a court of competent jurisdiction or by agreement of the parties. In Republic Nat. Bank & Trust Co. v. Bruce, 130 Tex. 136, 105 S.W.2d 882 (1937), the Court used the following language at 885:

“ ‘By accepting the trust, a trustee becomes bound to execute it, in accordance with the provisions of the trust instrument, unless such directions are declared invalid by a court of competent jurisdiction, or unless a court of equity decrees otherwise. So, too, after acceptance, he must execute the trust without any further request from anybody, and he can be relieved from all or part of his duties only by the consent of all beneficiaries, or by putting the administration of the trust into the hands of a court of equity. Every violation by a trustee of a duty which equity lays on him, whether wilful or forgetful, is a breach of trust for which he is liable.’ ”

The Bank, being the trustee, cannot attack the validity of the trust. It is held in Mason v. Mason, 366 S.W.2d 552, 554 (Tex.1963):

“It is the duty of the trustee and he is so empowered to defend the trust against all assailants. Every defense that can be made by the beneficiaries can be made by the trustee and having accepted the trust he is interested in upholding its validity.”

Professor Bogert, in his treatise on trusts, says in this manner:

“The trustee has a duty not to attack the trust or set up a claim that it is in whole or in part invalid, or that its creation was procured in an illegal manner or for an illegal purpose.” G. Bogert, Trusts and Trustees, § 581 at 214-215 (2nd Ed. 1960).

The appellant Bank breached its trust and violated its terms and provisions of the trust agreement and violated its fiduciary duties to Lillie Sassine, appellee, when it transferred the assets of the “Lillie Sassine Trust” to it as Independent Executor of the Estate of Solomon Sassine.

The judgment of the trial court is AFFIRMED.


author: DIES, Chief Justice.

text:
    HARTFORD ACCIDENT AND INDEMNITY COMPANY, Appellant, v. Joseph May WEAVER, Appellee.
    No. 7972.
    Court of Civil Appeals of Texas.
    Sept. 15, 1977.
    Rehearing Denied Oct. 6, 1977.

      Russell H. McMains, R. D. McPherson, Houston, for appellant.
    Watkins & Hamilton, Joe E. Turner, Houston, for appellee.
   DIES, Chief Justice.

On March 16, 1971, Joseph May Weaver, plaintiff below, filed suit against Clyde Lee Busch for $11,800 for injuries received in an automobile collision with Busch. Citation was obtained on Busch. On September 24, 1971, plaintiff amended his petition to bring in J. C. Thomas, d/b/a Thomas Enterprises, alleging that at the time of the collision Busch was an employee of Thomas, acting in the course and scope of his employment. Plaintiff also increased his prayer for damages to $201,800. The record does not reflect that the amended petition was served on Busch. Thomas was insured by Hartford Accident & Indemnity Company, and he delivered the court papers to Hartford. It is undisputed that Busch did not deliver the court papers to Hartford.

On October 18, 1971, Thomas answered the plaintiff’s amended petition denying “that at the time and on the occasion in question, and under the circumstances there existing, it would be in any way responsible for the acts or omissions of the defendant Busch.”

Thereafter (our record does not reveal the date, but the attorneys in oral argument declared it to be in February 1973 when the case was called for trial), plaintiff moved the court to dismiss J. C. Thomas, d/b/a J. C. Thomas Enterprises, as defendant, which was done.

Thereafter, on February 12, 1973, the court entered an “Interlocutory Judgment by Default” against Clyde Lee Busch for $114,433.96, plus six percent per annum.

The case we review here was filed by plaintiff Joseph May Weaver June 21,1973, against Hartford Accident and Indemnity Company on the February 1973 default judgment against Busch alleging that the September 1969 collision was occasioned by the “negligent operation of an automobile owned by J. C. Thomas, d/b/a J. C. Thomas Enterprises, operated with his permission, and covered by said policy [The Hartford policy].”

This case was tried to a jury in Montgomery County which found that at the time of the wreck between the vehicle driven by Clyde Lee Busch and plaintiff Joseph May Weaver, that Busch was an insured under the Hartford Accident and Indemnity Company policy issued to J. C. Thomas, d/b/a J. C. Thomas Enterprises. An “insured” was defined by the court as any person operating a J. C. Thomas, d/b/a J. C. Thomas Enterprises, vehicle with the permission of the named insured provided his actual operation is within the scope of such permission.

Thereafter, on November 15, 1976, judgment was given Weaver against Hartford for $100,000, and from which Hartford has perfected this appeal.

Hartford has a point that the court erred in overruling its motion for judgment because the stipulations of the parties and undisputed evidence established as a matter of law that Clyde Lee Busch had failed to forward to Hartford the citation and suit papers, which action was a condition precedent to Hartford’s liability under the insurance policy. It was stipulated by counsel for plaintiff Weaver and counsel for Hartford that Busch had never forwarded the citation or the petition to Hartford or any agent or representative thereof.

The Hartford policy in question contained the following condition:

“No. 4. Insured Duties in the Event of Occurrence, Claim or Suit . (b) If claim is made or suit is brought against the insured, the insured shall immediately forward to the company every demand, notice, summons or other process received by him or his representative.”

The policy also contained this language:

“No action shall be against the company unless, as a condition precedent thereto, there shall have been full compliance with all the terms of this policy.”

Weaver’s right of recovery against Hartford is to be solely determined by the terms of the policy. Klein v. Century Lloyds, 154 Tex. 160, 275 S.W.2d 95 (1955).

In Members Mutual Insurance Company v. Cutaia, 476 S.W.2d 278 (Tex.1972) action was brought by the judgment creditor against the tort feasor’s insurer, after having recovered a judgment against the insured. The insurance company and the judgment creditor stipulated that the insured had not forwarded suit papers in the action defended by the company that resulted in recovery for the judgment creditor. Both parties further stipulated that the insurer was not prejudiced by the breach of this condition. Nevertheless, the court held the failure relieved the insurer of liability. See also, Lane v. Anchor Casualty Company, 355 S.W.2d 90 (Tex.Civ.App.— Houston 1962, no writ); McCarthy v. Insurance Company of Texas, 271 S.W.2d 836 (Tex.Civ.App. — San Antonio 1954, no writ).

Weaver argues that when Thomas delivered the suit papers to Hartford (before he was dismissed from the suit) this was sufficient to put Hartford on notice of Weaver’s claim against Busch, and it would serve no good purpose to require as a condition precedent that Busch do the identical thing. The answer to this is that, at the time Thomas was served and the suit papers were delivered to Hartford, plaintiff Weaver was contending that at the time of the collision Busch was the agent, servant, and employee of Thomas, and acting within his course and scope of employment. Thomas had no notice — and therefore Hartford had none — that at this time Weaver was contending coverage under the Thomas policy as an “omnibus insured” who was injured by a person (Busch) driving with Thomas’ consent and permission.

We sustain this point of appellant (Hartford) and decree that plaintiff — appellee Joseph May Weaver — recover nothing of and from Hartford Accident and Indemnity Company.

REVERSED and RENDERED.


text:
    In the Matter of J_ C_
    No. 5801.
    Court of Civil Appeals of Texas, Waco.
    Sept. 15, 1977.

      Michael B. Smithers, Cornelius, Powell & Perkins, New Braunfels, for appellant.
    Ogden L. Bass, Jr., Criminal Dist. Atty., A. B. Crother, Jr., Asst. Crim. Dist. Atty., Angleton, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal from judgment of the trial court, modifying a disposition in a juvenile proceeding, and committing appellant to the Texas Youth Council.

The trial court on September 24, 1976 found appellant “in need of rehabilitation” because he committed a burglary; decreed him under control of the court; and placed him on probation and in the custody of his mother. The conditions of his probation included that he not violate the law, not associate with persons on probation and that he be in regular attendance at school.

Appellant was picked up for a burglary on February 2, 1977 and placed in detention. On February 3, 1977 Honorable Michael B. Smithers, attorney at law, was appointed to represent appellant. Mr. Smithers had previously represented appellant in the September 1976 proceedings. On February 7, 1977 petition to modify disposition (revoke probation) was filed alleging appellant had violated the conditions of his probation by committing burglary, associating with persons on probation, and not attending school. Hearing was set on such petition to revoke probation for February 15, 1977. Mr. Smithers filed 1st motion for continuance asserting he had not had sufficient time to prepare a defense for appellant; and when such motion was denied filed 2nd motion for continuance asserting he was entitled to 10 days from date of filing petition (February 7) before trial. This motion was denied.

Trial was had on February 15 and 16, 1977 to determine if appellant had violated conditions of his probation; and trial was had on February 23, 1977 to determine disposition, after which appellant was committed to the Texas Youth Council.

Appellant appeals on one point. “This case should be reversed because appellant was denied fundamental due process in that appellant’s appointed attorney was not afforded 10 days, from the date of filing of the Petition for Hearing to Modify Disposition, in which to prepare a defense.”

Section 54.05 of the Family Code: Hearing to Modify Disposition provides in subjection (d) “a hearing to modify disposition shall be held on the petition of the child and his parent, * * * or on petition of the State, or the court itself. Reasonable notice of a hearing to modify disposition shall be given to all parties.”

Prior to the Family Code Article 2338-1 V.A.T.S. provided counsel was entitled to 10 days to prepare for trial, but this was repealed by the Family Code which provides for “reasonable notice”.

In the instant case Mr. Smithers had represented appellant in his initial trial in September 1976; appellant was picked up for a burglary on February 2,1977 and on February 3, 1977 Mr. Smithers was appointed by the court to represent him. The State’s Motion to Modify Disposition (revoke probation) was filed on February 7, 1977, and trial held in 2 stages: 1) trial for the February 1, 1977 burglary on February 15, 1977 at 3 P.M.; and 2) trial to determine disposition on February 23, 1977.

Mr. Smithers had notice of his appointment 12 and 20 days before hearing; and had 8 and 16 days’ notice after the petition of the State was filed. And Mr. Smithers had represented appellant on his September 1976 trial.

Mr. Smithers was entitled to “Reasonable Notice” under Section 54.05 of the Family Code. “Reasonable Notice” of hearing to modify disposition is all that is required. In re D. E. P., Tex.Civ.App. (Houston 14) NWH, 512 S.W.2d 789.

Our Supreme Court in In the Matter of S. J. C., 533 S.W.2d 746 held fundamental due process rights must be afforded a juvenile; but further held this does not mean that a juvenile is entitled to all the rights assured an adult accused of crime; and notes that the Texas Family Code as provided for constitutionally protected safeguards.

We hold that the notice given appellant’s counsel was reasonable notice, and that such is all that was required. Appellant’s point is overruled.

AFFIRMED.


author: McCLOUD, Chief Justice.

text:
    Larry WILSON, Appellant, v. Albert Edward BOYD, III, Appellee.
    No. 5052.
    Court of Civil Appeals of Texas, Eastland.
    Sept. 15, 1977.

      J. A. Hogan, Hogan & Fudge, Wichita Falls, for appellant.
    D. J. Brookreson II and Joe Reeder, Seymour, for appellee.
   McCLOUD, Chief Justice.

Plaintiff, Larry Wilson, sued defendant, Albert Edward Boyd, III, seeking damages allegedly resulting from a wrongful eviction. The trial court granted defendant an instructed verdict. Plaintiff has appealed. We reverse and remand.

Plaintiff, as lessee, and defendant, as lessor, entered into a five-year term written lease, containing an option to renew for an additional three years, dated March 21, 1972, covering 4.9 acres of land “enclosing the elevator buildings and improvements” located thereon. The lease expressly provided that the “premises are leased to be used as a grain elevator and storage and fertilizer business.” The total rent was $15,000, payable in $750 installments on or before April 1, July 1, October 1, and January 1 of each year during the term of the lease. On October 24, 1974, lessee received a letter from lessor advising lessee that the October 1,1974, rent payment had not been received and the lease was terminated in accordance with Paragraph 8, Section 3 of the lease. This portion of the lease provides:

“3. It is especially understood that in the event the Lessee herein fails to make prompt payment of the quarterly installments represented in paragraph three, this lease shall terminate to both parties, without written notice and revert to the Lessor.”

This being an appeal from an instructed verdict, we must accept as true the evidence supporting plaintiff’s allegations. All conflicts and inconsistencies must be resolved in favor of plaintiff, and we must draw all inferences therefrom most favorable to plaintiff’s alleged cause of action. Constant v. Howe, 436 S.W.2d 115 (Tex.1968); and, Hart v. Van Zandt, 399 S.W.2d 791 (Tex.1965).

Plaintiff testified that he forgot to mail the October 1, 1974 payment, and upon receipt of defendant’s letter on October 24, 1974, he immediately mailed defendant a cashier’s check for $750. Plaintiff alleged that prior to October 1,1974, defendant had consistently, intentionally, and knowingly accepted the tender of rental installments after the due dates, and such course of conduct by defendant was relied upon by plaintiff and constituted a waiver of the strict terms of the lease regarding the date that rental payments were to be paid. Plaintiff alleged further that defendant unilaterally changed the course of conduct to plaintiff’s detriment in October, 1974, without giving notice of defendant’s insistence upon strict performance of the lease provisions regarding date of payment.

In Ada Oil Co. v. Logan, 447 S.W.2d 205 (Tex.Civ.App. — Houston (14th Dist.) 1969, no writ), the court said:

“. . . A waiver takes place where one dispenses with the performance of something which he has a right to demand, and occurs where one in possession of any right, whether conferred by law or by contract, with full knowledge of the material facts, does or forbears to do something, the doing of which or the failure or forbearance to do which is inconsistent with the right of his intention to rely upon it.”

Waiver by a landlord was discussed in Cox’s Bakeries of N. D., Inc. v. Homart Development Corporation, 515 S.W.2d 326 (Tex.Civ.App. — Dallas 1974, no writ), wherein the court stated:

“. . . If it be found as a fact that the waiver occurred, the tenant’s failure to pay the rent promptly would not constitute a breach authorizing termination of the lease agreement unless and until the landlord repudiated the waiver and notified the tenant that thereafter prompt payment would be required. After waiving in October its right to terminate the tenant’s right of possession, defendant will not be permitted to enforce the right to terminate in November without notice of its intention to do so. Theophilakos v. Costello, 54 S.W.2d 203, 205 (Tex.Civ.App. — Waco 1932, no writ) . . ."

Prior to October 1974, several $750 installments were tendered by plaintiff and accepted by defendant after their due date. Defendant admitted in answer to plaintiff’s requests for admissions, that he had “consistently and purposefully accepted the tender of the rental installments subsequent to the due date as set out in the lease”, and that the “course of the conduct between the parties regarding the rental installments, had developed to the extent that said payments had often been made well past the rental due date.” The evidence raised fact questions as to whether defendant waived the provisions of the lease regarding the time for payment of rent installments.

Defendant argues plaintiff failed to obtain a license and file a bond as required by the Texas Grain Warehouse Act, Tex.Rev. Civ.Stat.Ann., art. 5577b (Supp. 1976-77), and because of such failure the lease contract is void and unenforceable. He further contends that since plaintiff had no license, plaintiff was operating an unlawful business on the leased premises authorizing defendant to terminate the lease. We disagree.

Article 5577b is a regulatory statute providing that no “person shall operate a warehouse without first having obtained a license in his name covering such warehouse . or continue to operate such warehouse after such license has been revoked or suspended.” The Act requires each applicant for a license to have on file with the Commissioner of Agriculture of the State of Texas a bond. The Act provides that any person who transacts any public warehouse business without a license shall be subject to a fine for each day such business is carried on. Plaintiff did not have a license or bond as required by the Act.

Defendant first argues that since the Act is a regulatory, as opposed to a revenue, measure the lease contract is void and unenforceable since plaintiff had no license to operate a warehouse. He relies upon language found in Lyons v. Texorado Oil & Gas Co., 91 S.W.2d 375 (Tex.Civ.App.—Amarillo 1935, writ ref’d), wherein the court discussed the general rule that where the object of a statute requiring a license and imposing a penalty for its violation is for the purpose of police regulation and protection of the public, it will be construed as forbidding, by implication, the carrying on of a business without a license, and a contract made by an unlicensed person in violation of the statute is void and unenforceable. A different rule applies if the object of the statute is not for the purpose of regulation and protection, but solely for the purpose of yielding public revenue.

The general rule is usually applied in cases where the unlicensed person seeks payment for services performed. Our review of the cases reveals that the contracts held to be unenforceable always involve activities by the unlicensed person which are expressly regulated by the statute. For instance, in Turner v. Gossett, 267 S.W.2d 877 (Tex.Civ.App. — San Antonio 1954, no writ), the unlicensed party sought payment for hauling equipment when he had no “certificate of convenience and necessity” as required by statute. Clark v. Eads, 165 S.W.2d 1019 (Tex.Civ.App. — Fort Worth 1942, writ ref’d w.o.m.), involved an unlicensed architect seeking payment for services rendered. The court in Peterson v. Seagraves, 94 Tex. 390, 60 S.W. 751 (1901), held a contract to render medical services made by a physician not properly licensed was unenforceable. See also: 82 A.L.R.2d 1429; 118 A.L.R. 646; 30 A.L.R. 834; 42 A.L.R. 1226; 3 Williston on Contracts § 1766 (1922); 53 C.J.S. Licenses § 59; 51 Am.Jur.2d Licenses and Permits § 63.

It was made clear in Lewis v. Davis, 145 Tex. 468, 199 S.W.2d 146 (1947) that we must first determine the intent of a regulatory act before a determination can be made as to the enforceability of a contract by an unlicensed person. The intent is found by determining who or what is to be regulated, and who is to be protected.

The Texas Grain Warehouse Act regulates the storing, handling, or shipping of grain by a “warehouseman” engaged in the business of operating a “public grain warehouse.” The Act protects a “depositor” who is defined as any person who deposits grain in a warehouse for storage, handling, or shipment, or who is the owner or legal holder of any outstanding receipt, or who is lawfully entitled to possession of the grain. The lease agreement in issue is not a contract between the unlicensed warehouseman and a depositor involving the storing, handling, or shipping of grain. The general rule discussed in Lyons is not applicable. We hold the lease contract is not void or unenforceable. Furthermore, although plaintiff testified he did not operate a fertilizer business on the premises, we note that the premises were also leased for the purpose of operating a “fertilizer business” and there is no contention that such operation requires a license.

Defendant next argues that since plaintiff had no license he was operating an “illegal” business on the premises and defendant was authorized to terminate the lease. There was no forfeiture provision in the lease permitting lessor to reenter in the event the premises were being used for any unlawful purpose. At common law, a lessee does not forfeit his lease by using the premises for illegal purposes in the absence of a provision in the lease contract permitting a forfeiture in such cases. Moore v. Kirgan, 250 S.W.2d 759 (Tex.Civ.App. — El Paso 1952, no writ); McKenzie v. Carte, 385 S.W.2d 520 (Tex.Civ.App. — Corpus Christi 1964, writ ref. n.r.e.); Dedear v. Wilson, 220 S.W.2d 534 (Tex.Civ.App. — Austin 1949, writ ref’d); Wood v. Ingram, 275 S.W. 397 (Tex.Civ.App. — Waco 1924, writ dism’d).

We hold that the lease agreement is enforceable. Also, in the absence of a provision in the lease, lessor was not authorized to terminate the lease because lessee was operating an unlawful business on the premises. Plaintiff presented evidence of the actual expenses incurred as a result of the unlawful eviction. The court erred in granting the instructed verdict.

The judgment of the trial court is reversed and the cause is remanded.


text:
    Maria Isabel RODRIGUEZ et al., Appellants, v. Alan HOLMES et al., Appellees.
    No. 15745.
    Court of Civil Appeals of Texas, San Antonio.
    Sept. 21, 1977.
    Paul D. Rich, San Antonio, for appellants.
    David Stephenson, San Antonio, for ap-pellees.
   KLINGEMAN, Justice.

This is a wrongful death action involving the Texas Tort Claims Act, Tex.Rev.Civ. Stat.Ann. art. 6252-19 (1970). Plaintiffs are the surviving wife and children of Joaquin Rodriguez, who died while undergoing treatment at the Memorial Hospital of Uvalde. The Memorial Hospital is a political subdivision of the State of Texas. Defendants were two doctors; Alan Holmes, Administrator of Memorial Hospital; Alicia Guerra, a licensed vocational nurse at Memorial Hospital; and Mary Dirksen, a registered nurse at Memorial Hospital.

Plaintiffs alleged various acts of negligence, including allegations that defendants were negligent:

1. In failing to provide adequate facilities for the treatment of heart patients;

2. In removing the oxygen supply from Joaquin Rodriguez while he was being moved from an emergency room to another room;

3. In failing to provide the necessary oxygen supply to Rodriguez at all times subsequent to his admittance.

Defendants asserted they were not liable for such damage on the ground of governmental immunity, and all defendants filed motions for summary judgment predicated on such immunity. The trial court granted all of defendants’ motions for summary judgment.

Joaquin Rodriguez began coughing and experienced acute difficulty in breathing at his home in Uvalde and was taken to the Memorial Hospital. A doctor who was on the staff at Memorial Hospital was called by one of the defendant nurses, and she was told by such doctor to give Rodriguez injections of Serpasil and Vistaril. He was also given oxygen, as ordered by the doctor. When Rodriguez did not respond, one of the defendant nurses called the doctor again, who then ordered an injection of Lasix and also ordered that the patient be admitted. The patient still remained in extreme distress and a third telephone call was made, and at such time, the doctor agreed to come to the hospital.

Rodriguez was then taken from the emergency room to an extended care facility which is some distance from the emergency room. At such time, the oxygen supply was removed and Rodriguez was without oxygen during all the period of time that he was being moved, which was a period of several minutes. Either shortly before or after arrival at the room, Rodriguez died from a heart attack. Written interrogatories revealed that Rodriguez’ blood pressure was 230/130; that he had severe difficulty breathing; that his pulse was 138; that his respiration was 36; and that he had a history of heart problems. The interrogatories also showed that Rodriguez was put on oxygen because of respiratory difficulties at the time of his admittance; that the oxygen was continued until the time he was moved; and that it took several minutes to move him from the emergency room to the extended care facility, all of which time he was without oxygen.

This is a summary judgment proceeding. In summary judgment cases, the question on appeal, as well as in the trial court, is not whether the summary judgment proof raises fact issues with reference to essential elements of a plaintiff’s claim or cause of action, but whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action. Farley v. Prudential Ins. Co., 480 S.W.2d 176, 178 (Tex.1972); Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.1970).

The Texas Tort Claims Act provides a broad waiver of sovereign immunity, which is then narrowed by a list of exceptions. “The result is essentially waiver in three general areas: use of publicly owned automobiles, premise defects, and injuries arising out of conditions or use of property.” Greenhill & Murto, Governmental Immunity, 49 Texas L.Rev. 462, 468 (1971).

This appeal rests basically on the question of whether plaintiffs have plead a cause of action showing death caused from some condition or some use of tangible personal property.

Plaintiffs’ appeal is predicated upon that portion of the Texas Tort Claims Act which provides for liability of governmental entities for personal injuries or death caused “from some condition or some use of tangible property, real or personal, under circumstances where such unit of government, if a private person, would be liable to the claimant in accordance with the law of this state.” Tex.Rev.Civ.Stat.Ann. art. 6252-19, § 3 (Supp. 1977).

This cause is governed by the decisions in Lowe v. Texas Tech University, 540 S.W.2d 297 (Tex.1976); Mokry v. University of Texas Health Science Center, 529 S.W.2d 802 (Tex.Civ.App. — Dallas 1975, writ ref’d n. r. e.); McGuire v. Overton Memorial Hospital, 514 S.W.2d 79 (Tex.Civ.App. — Tyler 1974), writ ref’d n. r. e. per curiam, 518 S.W.2d 528 (Tex.1975).

In McGuire, the plaintiff sued a city operated hospital for injuries sustained when he fell out of a bed not equipped with bed rails, contending that the defendant was negligent in failing to provide such bed rails. The hospital moved for summary judgment on the ground of governmental immunity, and plaintiff contended that such immunity was waived by the Texas Tort Claims Act. The trial court granted summary judgment, which was reversed by the Court of Civil Appeals.

The Supreme Court, in its per curiam opinion, stated that the question before it was whether the hospital can assert governmental immunity to escape liability for its negligence or whether such immunity was waived by the Tort Claims Act. The Supreme Court held that McGuire’s petition stated a cause of action under such Act, and said:

We believe that injuries proximately caused by negligently providing a bed without bed rails are proximately caused from some condition or some use of tangible property under circumstances where a private person would be liable. Therefore, if the Hospital is found negligent in providing a bed without guard rails, it may not assert governmental immunity to avoid liability under $100,000.00 for injuries proximately caused by such negligence. 518 S.W.2d at 529.

A recent expression by the Supreme Court on the matter here involved is found in Lowe v. Texas Tech University, supra, where Lowe alleged that he suffered permanent injuries while playing football, this case involved pleadings, or allegations very similar to the pleadings in the case before us, Lowe contending that coaches, managers, and trainers were negligent in several respects, including (a) failing to furnish proper equipment, supporting braces, and/or devices; (b) failing to permit plaintiff to wear proper equipment, braces, and supporting devices available; (c) furnishing equipment and pads which were defective; and (d) refusing to permit plaintiff to wear proper and correctly prescribed equipment, braces, and supporting devices. The Court of Civil Appeals held that the plaintiff’s cause of action fell into the category of an error of judgment on the part of an employee and that the injuries to plaintiff were not caused by the use of tangible property within the Texas Tort Claims Act, and affirmed the trial court, which had dismissed and abated plaintiff’s cause of action. The Supreme Court reversed and said:

The allegations in the case at bar require a construction of the statutory language of the Tort Claims Act in two respects: whether the waiver of immunity is invoked by allegations that Texas Tech through its authorized personnel was negligent in affirmatively furnishing “equipment, uniforms and pads which were defective”; and, whether the waiver is also invoked by the allegations of negligent acts of failure to furnish proper equipment and failure or refusal to permit the wearing of proper equipment.
* * * * * *
As to the first, we hold that the affirmative allegation of furnishing defective equipment to Lowe states a case within the statutory waiver of immunity arising from some condition or some use of tangible property. It is further apparent that a failure to furnish proper protective equipment for Lowe’s injured knee, if such was the case, is not distinguishable, in so far as the problem at hand is concerned, from the failure to provide bed rails for a hospital bed in McGuire, or from the failure to provide protective items of laboratory equipment in Mokry, . Both the standard and specially designed protective devices are integral parts of the football uniform, e. g., special taping or knee braces furnished a player with an injured knee are as much a part of his uniform as his helmet, or shoulder pads, or whatever. So we also hold that Lowe’s allegations of a negligent failure to furnish him proper protective items of personal property, to be used as a part of the uniform furnished him, bring his ease within the statutory waiver of immunity arising from some condition or some use of personal property. 540 S.W.2d at 300.

Plaintiffs’ petition stated a cause of action under the Texas Tort Claims Act. We have concluded that the trial court improperly granted defendants’ motions for summary judgment. The judgment of the trial court is reversed and remanded for a new trial.

      . Such doctors are not parties to this appeal, since plaintiffs settled with such doctors, and the cause of action as to the herein defendants was severed.

        . Art. 6252-19, § 4. “To the extent of such liability created by Section 3, immunity of the sovereign to suit, as heretofore recognized and practiced in the State of Texas with reference to units of government, is hereby expressly waived and abolished, and permission is hereby granted by the Legislature to all claimants to bring suit against the State of Texas, or any and all other units of government covered by this Act, for all claims arising hereunder.”
      Art. 6252-19, § 13. “The provisions of this Act shall be liberally construed to achieve the purposes hereof.”

      . In Mokry, the plaintiff sued the University of Texas Health Science Center for the loss of an eyeball which was washed down the drain in the process of a pathological examination to determine whether the eye was cancerous. The Court of Civil Appeals held that Mokry’s allegations that he suffered personal injuries as the result of the negligence of employees of the state in the use of tangible property owned by the state at the Health Science Center recited a valid cause of action under the Texas Tort Claims Act.


author: MURRAY, Justice.

text:
    Ernest A. DEMO et ux., Appellants, v. Richard C. GOFORTH, Appellee.
    No. 15856.
    Court of Civil Appeals of Texas, San Antonio.
    Sept. 21, 1977.

      Martin E. Richter, San Antonio, for appellants.
    Lonnie W. Duke, San Antonio, for appel-lee.
   MURRAY, Justice.

This is a judgment lien foreclosure case ordering the seizure and sale of Lot Nineteen (19), Block Twenty (20), New City Block Two Thousand Fifteen (2,015), in San Antonio, Bexar County, Texas in satisfaction of an Abstract of Judgment.

Prior to June 2, 1975, Friend Anthony Bennett and wife, Bertha Bennett, sold the aforementioned property by Contract of Sale to Cristelo Juarez and wife, R. Matilde Juarez.

On October 7, 1975, a default judgment was rendered in favor of appellee and against Friend Anthony Bennett and wife, Bertha Bennett, in Cause No. 102,180 in the County Court at Law No. Five of Bexar County, Texas for the sum of Two Thousand Forty-Two Dollars and Ninety-Two Cents ($2,042.92) plus attorneys’ fees of Seven Hundred Dollars ($700.00), Nine percent (9%) interest and cost of Court. Ap-pellee abstracted and recorded the judgment on November 13, 1975.

On February 6, 1976, Friend Anthony Bennett and wife assigned Cristelo Juraez and R. Maltilde Juarez’ Contract of Sale to appellants, Ernest A. Demo et ux.

On December 20, 1976, the court, in a non-jury trial, rendered judgment for the appellee, Richard C. Goforth, finding that appellee had a valid lien, ordering the Judgment Lien be foreclosed, and ordering the seizure and sale of Lot Nineteen (19), Block Twenty (20), New City Block Two Thousand Fifteen (2,015), San Antonio, Bexar County, Texas, from which this appeal has been duly perfected.

This appeal is presented on two points of error contending the trial court erred in granting foreclosure of appellee’s judgment lien for the reason that appellee’s Abstract of Judgment is fatally defective in that it does not meet the requirements of law and in not abating this cause until all necessary and indispensable parties were joined.

The sole question involved in appellants’ first point is whether the abstracted judgment was sufficient to establish a judgment lien against the property in question since the clerk’s certificate fails to show the birthday and driver’s license number of the defendant, if available to the clerk of the court, and defendant’s address if shown in the suit in which judgment is rendered, and if not, the nature of citation and the date and place citation is received. Tex.Rev.Civ. Stat.Ann. art. 5447 (1958).

Appellee contends the appellants’ points should be overruled because appellants did not raise the improperly abstracted judgment lien in their motions for new trial. A motion for new trial is not a prerequisite to appeal in a non-jury case. Tex.R.Civ.P. 324. Although some courts have held that such a motion, if filed, must assign all the errors complained of on appeal, the law is now settled that appellant is not limited to the errors assigned in a non-mandatory motion. Boswell v. Handley, 397 S.W.2d 213 (Tex.1965).

We do not reach the merits of appellants’ challenge to the Abstract of Judgment on the basis that it does not meet the requirements of law. In reaching such conclusions, it is to be emphasized that the appellants filed in the trial court only a general denial and a plea of abatement. The Abstract of Judgment was admitted in evidence without objection. No mention of illegality of the Abstract of Judgment was made in the appellants’ motion for directed verdict or in their motion for new trial. As far as can be determined from the record, their point is raised for the first time on appeal. The challenge of illegality we hold under the circumstances to be an affirmative defense which, not having been plead by the appellants as required by Rule 94, Tex.R. Civ.P., was waived. Our Supreme Court, in the case of Mabry v. Priester, 161 Tex. 173, 338 S.W.2d 704 at page 706 (1960), involving suit for fees by an unlicensed architect, stated:

Rule 94, Texas Rules of Civil Procedure, places the obligation upon the defendant to plead illegality affirmatively as a defense. That rule should not be construed to limit illegality as an affirmative defense to contracts which are prohibited by law, but to include contracts rendered unenforceable because of some failure to comply with the law.
⅜ * * * * *
Rule 94 serves a most useful and important purpose in our practice. If followed uniformly, it will make for more certainty in cases like the instant one. We can perceive of no reason why this case should not fall within the terms of that rule and accordingly we hold that if petitioner was not in fact an architect in good standing when he made the contract and performed the services alleged, then his contract was illegal and respondent should have affirmatively pleaded its illegality.

No reason is perceived why the same ruling should not apply to a suit involving an Abstract of Judgment. See also City of South Houston v. Sears, 488 S.W.2d 169 (Tex.Civ.App. — Houston [14th Dist.] 1972, no writ).

Appellants assign as error the failure of the trial court to require Cristelo Juarez and R. Maltilde Juarez be joined as parties to this suit. Since appellee was seeking to acquire by seizure and sale only the appellants’ interest in the subject property, which they had acquired from the judgment debtor, and not alleging a cause of action involving the executory contract of sale, Mr. and Mrs. Juarez were not necessary parties to this suit. Tex.R.Civ.P. 39; Campbell v. Jefferson, 453 S.W.2d 336 (Tex.Civ.App. — Tyler 1970, writ dism’d); 44 Tex.Jur.2d Parties § 3, at 134 (1963), et seq. Appellants’ second point of error is overruled.

Finding no error in the record, the judgment of the trial court is affirmed.


author: YOUNG, Justice.

text:
    Aurelia Rodriguez VILLARREAL, Appellant, v. M. G. & JOHNNYE D. PERRY FOUNDATION et al., Appellees.
    No. 1192.
    Court of Civil Appeals of Texas, Corpus Christi.
    Sept. 22, 1977.
    Rehearing Denied Oct. 13, 1977.

      Guy Leland Watts, Corpus Christi, for appellant.
    Ronald B. Brin, Maddin, White, Brin, Inc., Corpus Christi, for appellees.
   OPINION

YOUNG, Justice.

This is a suit for damages arising from the death of Felipe Villarreal. Aurelia Rodriguez Villarreal, the wife of the deceased, brought suit against the Perry Foundation, a farming concern, and others alleging negligence in burning off some matted grass and that such negligence was a proximate cause of Felipe Villarreal’s death. The trial court granted the defendant’s motion for an instructed verdict on the basis that there was no evidence of probative value that any act or omission pled as negligence was a proximate cause of the death of Felipe Villarreal.

The facts of this case are not substantially in dispute. The deceased and several other farm laborers were chopping cotton April 29,1975, at the Harper Farm’s cotton fields adjacent to a Perry Foundation hay field. Keith Johnson and Wayne Taylor under the instructions of Fred Hoff and under the supervision of Thomas Preistly, all of whom were employees of the Perry Foundation, set fire to a hay field to remove matted grass. After the “burn off” was started the wind shifted and increased causing the fire to turn towards the area where the deceased had been working. Very soon thereafter smoke enveloped the area. A tractor was located on a dirt roadway between the cotton field and the “burn off” area. Fearing that the tractor would be damaged by the fire, Felipe jogged 200 yards to the tractor through smoke from the fire, picked up some lunch pails and water containers, and drove the air conditioned tractor from the danger zone. A short time later, on the same day, Felipe suffered a coronary thrombosis (heart attack) and died.

The plaintiff alleged that the following acts or omissions were negligence on the part of the defendants:

(1) In failing to warn or cause to be warned Felipe Villarreal and/or other workers in the adjacent cotton field of intentions to “burn off” coastal grass from the involved hay field;
(2) In failing to advise or cause to be advised prior to starting the “burn off” Felipe Villarreal and/or other workers in the adjacent cotton field to move the involved tractor;
(3) In failing to obtain or cause to be obtained a prescription or guidelines before starting the fire from the Soil Conservation Service of the U. S. Department of Agriculture, Texas Air Pollution Control Program, Texas A & M University Agricultural Research and Extension Center, Range and Wild Life Department of Texas Tech University and/or the Welder Foundation;
(4) In failing to obtain or cause to be obtained a complete and appropriate weather report from the National Weather Service;
(5) In failing to construct or burn or cause to be constructed or burned a fireguard (backfire) on the end opposite the wind direction;
(6) In failing to have present, or cause to have present, during the burning two water sprayrigs;
(7) In burning or cause to have burned a hay field while the grass was in a dry, dense, matted and/or dead condition; and,
(8) In failing to conduct or cause to have conducted the “burn off” process in early morning or late afternoon.

At the conclusion of the plaintiff’s evidence, the defendant filed a motion for instructed verdict alleging that as a matter of law none of the acts of the defendant could be a proximate cause of the plaintiff’s death and no act or omission of the defendant had been proven to be a proximate cause of the plaintiff’s death. The trial court granted the motion on the basis that the plaintiff had failed to prove that any of the acts or omissions alleged as negligence was a proximate cause of plaintiff’s death.

The sole question before this Court, therefore, is directed to the trial court’s instructed verdict for the defendant. The appellant contends there was sufficient evidence as to proximate cause requiring submission of issues to the jury. Proper determination of this question requires acceptance of the evidence and inferences therefrom in their aspect most favorable to the appellant’s cause and to disregard all contrary evidence and inferences. Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60 (1953); McKethan v. McKethan, 477 S.W.2d 357 (Tex.Civ.App.— Corpus Christi 1972, writ ref’d n. r. e.).

After our applying these rules to facts presented, it is clear to us that the appellant raised fact issues as to alleged acts of negligence. These issues are not, however, before us. The appellees do not contend that there was no negligence. The main question before us is whether there is any evidence to support submission of an issue on proximate cause. We do not believe that there is.

The Supreme Court has stated the proof necessary to establish causal connection must go beyond “the point of conjecture . it must show more than a possibility.” Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 785 (1949). Insurance Company of North America v. Myers, 411 S.W.2d 710 (Tex.Sup.1966); Garcia v. Clifford Jackson Funeral Homes, 526 S.W.2d 750 (Tex.Civ.App. — Corpus Christi, 1975, no writ) also hold to the same effect. Thus, in Myers, the doctor’s testimony concerning causation that it was only a possibility that the injury which was incurred caused the death, not that it was or was not a reasonable medical probability, was held to be insufficient proof of causation.

In the present ease, the only evidence introduced about causation was that of Dr. Stone and Dr. Rupp. Immediately following his heart attack Felipe was taken to Dr. Stone’s office in Robstown, Texas. The doctor, when questioned as to the cause of Felipe’s death, stated that he assumed death was caused by an acute heart attack. He further testified that running and driving some four minutes engulfed in smoke would be a “precipitating factor” of the heart attack. On cross examination, however, Dr. Stone explained that what he meant by a “precipitating factor” was a possibility that it caused the heart attack. He also testified on cross examination that it was equally possible that Felipe would have had the heart attack if he had continued chopping cotton that day.

Dr. Joseph Rupp, the forensic pathologist who did the autopsy on Villarreal, was also called to testify as to causation. Dr. Rupp testified that Felipe had several diseased arteries and that he died of a coronary thrombosis. As to cause, he testified that there existed two equal possibilities: one, running and driving for four minutes in smoke; two, chopping cotton. The doctor further testified that “precipitating factor” when used medically does not mean that but for the event the heart attack would not have occurred.

It is the general rule that where the evidence develops more than one equally probable cause, for one or more of which the defendant is not responsible, the plaintiff has failed to sustain his burden of proof as to causation. Hart v. Van Zandt, 399 S.W.2d 791 (Tex.Sup.1965); Bowles v. Bourdon, supra; Swan v. Kroger Company, 452 S.W.2d 793 (Tex.Civ.App. — Beaumont 1970, writ ref’d n. r. e.). The evidence at its best does not even show two probable causes, rather it shows only two equally possible causes of Felipe’s heart attack. This clearly does not meet the requirements for proof of causation as set out above.

The judgment of the trial court is affirmed.


author: VIC HALL, Justice.

text:
    In the Matter of W_ L_ C_
    No. 5751.
    Court of Civil Appeals of Texas, Waco.
    Sept. 22, 1977.
    Rehearing Denied Oct. 20, 1977.
    Raymond C. Matkin, Waco, for appellant.
    Don S. Caldwell, Jr., County Atty., Richard W. White, Asst. County Atty., Groes-beck, for appellee.
   VIC HALL, Justice.

This is an appeal by a juvenile contesting an order of the juvenile court which waived that court’s jurisdiction and transferred the juvenile to the district court for criminal proceedings. Appellant’s two points of error are based upon the single assertion that he was not served with a summons within the requirements of § 53.06 and § 53.07, V.T.C.A., Family Code. We overrule this contention and affirm the judgment.

One of the first questions raised on the transfer hearing was whether or not appellant had been served with the summons. The only evidence on this issue was the testimony of the juvenile probation officer. He first stated that appellant was not served with a summons, but when then asked whether he knew on personal knowledge that appellant “has not been served with any summons” he answered, “I can’t answer that, I really don’t know. I will answer it that way. I am not sure, I will put it. My personal knowledge, I don’t know if he was or was not.” This testimony does not conclusively establish that appellant was not served with the summons.

The judgment is affirmed.


text:
    COMMERCIAL STANDARD INSURANCE COMPANY, Appellant, v. QUALITY MEAT AND PROVISION COMPANY, Appellee.
    No. 17888.
    Court of Civil Appeals of Texas, Fort Worth.
    Sept. 29, 1977.
    Brown, Crowley, Simon & Peebles and M. Hendricks Brown, Fort Worth, for appellant.
    McDonald, Sanders, Ginsburg, Phillips, Maddox & Newkirk and Mark S. Stewart, Fort Worth, for appellee.
   OPINION

MASSEY, Chief Justice.

Plaintiff, Quality Meat and Provision Company, brought suit against defendant Commercial Standard Insurance Company, on a policy of fire insurance.

Plaintiff had sustained a loss it contended was covered by Commercial Standard; the latter contended the loss to have been without the coverage of the policy. With a jury waived, all issues were presented upon a trial of the merits. The court rendered judgment for the plaintiff. Commercial Standard perfected its appeal.

We affirm.

Plaintiff’s premises, enclosed by fence, had located thereon the main building where its business was conducted, plus the building structure where there was the fire. There was damage to the building and contents. The question in the case was application of insurance to the contents. This second structure was separated from the main building by a space of 10 to 15 feet, with active electrical wiring from the one to the other and with access from the one building to the other by means of a sidewalk. There was no other connection or communication.

Had the fire occurred in the main building it is conceded that coverage would have been afforded by the policy; however, because of the provisions of the contract, Commercial Standard denied that there was coverage of plaintiff’s loss due to fire at the other building. The material which constituted the contents were necessary to the prosecution of business of plaintiff as conducted at and from the premises on which both buildings were located.

Undisputed is that a Mr. Rodney D. Johnson was the “recording agent” for Commercial Standard in the execution of the policy. Furthermore it is without dispute that in writing the policy of insurance he “used an amount that would cover his (plaintiff’s) stock, furniture, fixtures, contents — anything that would be used in connection with the Quality Meat and Provision business.” Johnson was familiar with the premises, including the structure in which the fire loss occurred and he wrote the policy for an amount equal to the replacement cost of the building and its contents in addition to the amount necessary to cover main building and its contents.

Johnson was an agent who possessed the authority to provide a policy, either separately or by endorsement to that which was written, which would have provided the coverage on the building and contents where the fire occurred. In other words: if by the law there was necessity to so prepare the insurance contract so as to specifically provide the coverage which is the subject of the parties’ dispute, Mr. Johnson could have accomplished such.

Basis of the dispute concerns the true provision of the Commercial Standard policy. The insured main building and contents was described on page 1. On page 2 there was provision as follows: “PLATFORM CLAUSE — Insurance on stock, furniture, fixtures, or machinery shall cover while such property is contained in additions and extensions adjoining and communicating with the building and while on platforms, sidewalks, alleys and yards immediately adjacent, including while in railroad cars or other vehicles within 100 feet of the described building.” (Emphasis supplied.) As further refined, the dispute concerns meaning and applicability of the term “adjoining and communicating,” and whether in this case — by reason of the term and its provision as part of the contract — plaintiff’s loss by fire was covered by the contract.

So long as provisions of the nature here-inabove quoted remain in fire insurance policies many instances of loss will present occasion for finding ambiguity therein in circumstances where there is need to test application. It would seem an easy matter to accomplish change by policy wording so as to eliminate any possibility of misunderstanding. Until such time the courts must view the insurance contract as prepared, applying the rule of liberal construction in favor of the insured and strict construction against the insurance company, and, additionally, frequently to consider evidence which would disclose the intent of the parties.

By the circumstances of the instant loss an ambiguity is presented which justified the reception of evidence of intent. There was not error in admitting the testimony of the witness Johnson. Neither was there error in testimony to like effect by the representative for plaintiff. Therefrom was afforded proper evidence of the intention of the parties at time the policy was written.

On the foregoing we have reviewed many cases, in Texas and elsewhere. The law in Texas as applied to circumstances such as those presented in the instant case is perhaps best stated in the case of Hall v. Gulf Ins. Co. of Dallas, 200 S.W.2d 450 (Tex.Civ.App. — Austin 1947, no writ history). Indeed, we do not believe that we could improve upon the statement of the law therein to be found. The most essential holding is that as applied to provision of application of coverage to additions and extensions “adjoining and communicating” with the main building insured, as used in fire policies, there is no such well-defined meaning of the terms “adjoining and communicating” as would justify their construction apart from and independent of facts under which they are employed; that the intention of the parties to the insurance contract, where it can be ascertained, should be effectuated; and that in the last analysis such terms, as definitions, are in large measure predicated upon the intention of the parties as to what they should mean at the time they made their contract.

In accord, and we likewise consider the opinion most excellent as applied to the circumstances, is the case of Marsh v. Concord Mut. Fire Ins. Co., 71 N.H. 253, 51 A. 898 (Supreme Court 1902). In some other states the holding upon the same or like phrase as here involved has been to the contrary. However, the majority of the states are in accord with the two holdings we have chosen to cite.

See also Words and Phrases, cases annotated under the headings “Adjacent,” especially its sub-head “Adjoining and Contiguous Distinguished”; “Adjoining”; /‘Adjoining and Communicating”; and “Communicate.”

There was not error in the judgment or proceedings preliminary to its rendition.

The points of error of Commercial Standard Insurance Company have been severally considered; all are overruled.

Judgment is affirmed.