author: CLAUDE WILLIAMS, Chief Justice.

text:
    BORG-WARNER ACCEPTANCE CORPORATION, Appellant, v. WOLFE CITY NATIONAL BANK, Appellee.
    No. 19039.
    Court of Civil Appeals of Texas, Dallas.
    Dec. 14, 1976.

      Robert M. Warner, Zimring & Warner, Dallas, for appellant.
    James 0. Faires, Commerce, for appellee.
   CLAUDE WILLIAMS, Chief Justice.

Borg-Warner Acceptance Corporation (Borg-Warner) brought this action in the district court against Wolfe City National Bank (Wolfe City) for actual and exemplary damages because of alleged wrongful conversion of property. This appeal is by Borg-Warner from a take-nothing judgment against it rendered by the trial court following trial without a jury. Appellant urges that the judgment should be reversed and rendered in its favor because the trial court erred as a matter of law in deciding that Borg-Warner take nothing. Alternatively, it asks that the cause be remanded because of the impossibility of obtaining a statement of facts and because the trial court refused to issue findings of fact and conclusions of law. After reviewing the briefs and considering stipulations of counsel, we have concluded that the principal issue to be decided is which party had priority of security interest in the property involved. We hold that Borg-Warner had priority of security interest in the collateral and, accordingly, reverse the trial court’s judgment and remand the same for further proceedings.

Since the parties agree that the essential facts in this case are undisputed, we find it unnecessary to address the question concerning the inability to secure a statement of facts and the failure on the part of the trial court to file findings of fact and conclusions of law.

It is undisputed in the parties’ briefs and oral argument that on March 31, 1972, Borg-Warner executed a security agreement with Lloyd E. Nations and O. H. Nations, individually and d/b/a Nations’ David Brown Tractor Company, of which Lloyd E. Nations was the sole proprietor, to secure loans made by Borg-Warner to Nations for the purchase of inventory to be used in the business. On April 26, 1972, Borg-Warner filed a financing statement under the name of Lloyd Eddie Nations with the Secretary of State pursuant to Tex.Bus. & Comm.Code Ann. § 9.401 (Vernon Supp.1976). Borg-Warner also notified the other known creditors of the security interest it was taking in the inventory.

On January 18, 1974, Wolfe City advanced money to Lloyd E. Nations, d/b/a Nations’ Tractor Company, for the purchase of inventory. Wolfe City took a security interest in each of the items purchased and filed financing statements covering them in the office of the County Clerk of Lamar County, Texas, on January 21, 1974. However, Wolfe City did not file copies of the financing statements in the office of the Secretary of State.

The last payment made by Lloyd Nations to Borg-Warner was on May 6, 1974, leaving a balance due and owing. In December, 1974, Wolfe City took possession of the inventory, and although Borg-Warner requested its return, Wolfe City disposed of it by sale. On December 11, 1975, a trial was held before the court, and judgment was subsequently entered for Wolfe City and against Borg-Warner.

The principal question presented is which party has priority of security interest in the collateral involved. The primary thrust of Wolfe City’s argument is that it executed a purchase-money security interest in the collateral in which Borg-Warner did not have a perfected security interest since the financing statement previously filed by Borg-Warner did not contain a provision which gave notice to other creditors of an “after-acquired property” clause. Wolfe City does not deny that Borg-Warner’s prior security agreement contains an “after-acquired property” clause. Tex.Bus. & Comm.Code Ann. § 9.108 (Vernon Supp. 1976) provides that when a secured party gives value to the debtor, the secured party may take a security interest in collateral acquired after the execution of the agreement if the collateral is acquired either in the ordinary course of the debtor’s business or under a contract of purchase made pursuant to the security agreement within a reasonable time. Thus, a security agreement may provide that collateral, whenever acquired, shall secure all obligations covered by the security agreement. Tex.Bus. & Comm.Code Ann. § 9.204(a) (Vernon Supp. 1976). We recognize that a security interest attaches in accordance with Tex.Bus. & Comm.Code Ann. § 9.203 (Vernon Supp. 1976), when there is an agreement that it attach, value is given by the secured party, and the debtor has rights in the collateral. However, the secured party must still file a financing statement covering the inventory collateral with the Secretary of State in order to perfect the interest and to establish a priority over other secured creditors. Tex.Bus. & Comm.Code Ann. §§ 9.303 and 9.401 (Vernon Supp.1976). The purpose of the filing of the financing statement is to give notice to all creditors that a security interest may have been perfected in certain collateral. Tex.Bus. & Comm.Code Ann. § 9.402, comment 2 (Vernon 1968).

Thus, if Borg-Warner, in fact, executed a security agreement with an after-acquired property clause and also gave sufficient notice in its financing statement filed with the Secretary of State that there was a security agreement concerning after-acquired property, Wolfe City’s security interest would be inferior with one possible exception. If Wolfe City acquired a purchase-money security interest in inventory, it would have priority over all conflicting security interests in that inventory, except a prior purchase-money security interest, if it adequately perfected its security interest at the time Nations received possession of the inventory and gave notification in writing to all holders of conflicting security interests who had previously filed financing statements covering the same inventory. Tex.Bus. & Comm.Code Ann. § 9.312 (Vernon Supp.1976). Since there is no contention by Wolfe City that an “after-acquired” property clause is not included in Borg-Warner’s security agreement, our only concern is whether Borg-Warner’s financing statement was sufficient to notify other creditors of an after-acquired property clause. The description of the collateral in the financing statement is as follows:

All inventory of goods including, without limitation, commercial, vehicular, recreational, household, professional, industrial, musical or farm goods and all parts, accessories and other goods used or intended to be used in conjunction with any of the foregoing, (emphasis added)

We believe that the phrase “all inventory” was sufficient to give other creditors notice that Borg-Warner had perfected a security interest in not only the inventory possessed by the debtor at the time of execution of the security agreement but also inventory acquired thereafter until the debt was paid. National Cash Register Co. v. Firestone, 346 Mass. 255, 191 N.E.2d 471, 474-75 (1963); American National Bank & Trust Co. v. National Cash Register Co., 473 P.2d 234 (Okl.1970); Maryland National Bank v. Porter-Way Harvester Mfg. Co., 300 A.2d 8 (Del.Supr.1972); cf. Beneficial Finance Co. v. Van Shaw, 476 S.W.2d 772, 773-74 (Tex.Civ.App.-Eastland 1972, no writ); see White & Summers, Uniform Commercial Code § 23-16 at 843-46 (1972).

Wolfe City argues that the “boiler-plate” language, quoted above, should be given no effect when determining if notice is sufficient, citing Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69 (1960). In this landmark products liability case dealing with a standardized limitation of express and implied warranties in automobile sales, the court reasoned that the language of the warranty limitation was not binding because of the lack of the purchaser’s bargaining power and lack of the purchaser’s awareness of the limitation’s existence due to the smallness of print on the back-side of the contract. We do not believe that all phrases prepared in advance to cover different situations are necessarily ineffective phrases. In the case under consideration, Wolfe City is arguing that the financing statement contains a standardized provision covering many irrelevant types of collateral. However, the provision refers to “all inventory,” and this does provide sufficient notice to other creditors. There is no contention of lack of bargaining power or concealment of this phrase, and we do not agree that Henningsen v. Bloomfield Motors, Inc., supra, is authority in this situation. Accordingly, we hold that the security agreement and financing statement of Borg-Warner contains adequate notice of after-acquired property sufficient to put other creditors on notice of the extent of Borg-Warner’s security interest in such after-acquired property.

Wolfe City cannot have a priority of security interest in the collateral even though it has a purchase-money security interest because Borg-Warner had a prior perfected security interest in the same inventory and because Wolfe City did not perfect its security interest in compliance with the statute. Although it is undisputed that Wolfe City acquired a purchase-money security interest, it is apparent from the record that it did not adequately perfect the security interest or give notification in writing to the other security holders. Wolfe City filed a financing statement attempting to perfect the security interest with the county clerk in the county in which the property was located, but it did not file such statement with the Secretary of State as specifically required by the provisions of Tex.Bus. & Comm.Code Ann. § 9.401(a)(3) (Vernon Supp.1976).

Notwithstanding that Wolfe City filed its financing statements in the wrong location, it argues that the financing statements are nevertheless effective because they were filed in good faith and Borg-Warner knew their contents, citing Tex. Bus. & Comm.Code Ann. § 9.401(b) (Vernon Supp.1976). However, this section of the statute is not applicable to this case because Borg-Warner had perfected a security interest long before Wolfe City decided to make the loan to Nations, and therefore Borg-Warner could not have had knowledge of the contents of Wolfe City’s financing statements prior to perfecting its own security interest. White & Summers, Uniform Commercial Code § 23-15 (1972).

Wolfe City argues that a security agreement executed by Borg-Warner on February 15, 1974, creates a new security interest and supersedes the 1972 security agreement, and consequently that the original financing statement filed in April 1972 is not effective to give Borg-Warner priority. We cannot agree, because the 1974 agreement only lists specific inventory already in the possession of Nations and subject to the “after-acquired” property provision in the 1972 security agreement. It does not include a revocation of the 1972 agreement. Furthermore, Wolfe City concedes in its brief that the 1974 agreement is invalid as a security agreement because there was no new value given.

Wolfe City also takes the position that because Nations changed the name of his business and Borg-Warner did not file an amended financing statement to reflect the change, the 1972 agreement is invalid under Tex.Bus. & Comm.Code Ann. § 9.402(g) (Vernon Supp.1976). We cannot agree. This section requires an amendment when the change renders the current financing statement misleading. Borg-Warner’s financing statement lists Lloyd Eddie Nations as doing business as an unincorporated business. Under these circumstances, we fail to see how a different name of the business could be misleading to other secured creditors. Cf. National Cash Register Co. v. Firestone, 346 Mass. 255, 191 N.E.2d 471, 474 (1963).

Since we hold that the court erred as a matter of law in not recognizing a priority of security interest in Borg-Warner, we must reverse the trial court’s judgment. However, we cannot render judgment, as requested by appellant, because appellant Borg-Warner seeks actual and exemplary damages, and in the absence of a statement of facts, we are unable to determine if questions of fact exist. Therefore, the judgment of the trial court is reversed, and the cause is remanded to the trial court for further proceedings. Tex.R.Civ.P. 434.


source: Caselaw Access Project

author: CIRE, Justice.

license: Public Domain

text:
    Gary B. WEBB et al., Appellants, v. L. B. WALKER AND ASSOCIATES et al., Appellees.
    No. 1469.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Dec. 22, 1976.
    Second Rehearing Denied Jan. 12, 1977.

      Otis H. King, City Atty., Robert J. Collins, Senior Asst. City Atty., Houston, for appellants.
    Robert L. Burns, Sears & Burns, Houston, for appellees.
   ON MOTION FOR REHEARING

CIRE, Justice.

After consideration of appellants’ motion for rehearing, we withdraw our earlier opinion and substitute this opinion in lieu thereof.

This appeal is from a judgment declaring section 44-9 of the Code of Ordinances of the City of Houston, 1968, as amended by Ordinance No. 74-2204, “unconstitutional and void insofar as it prohibits an agent in fact from filing an ad valorem tax rendition on behalf of his principal . . . ” and enjoining the appellant Webb from enforcing the provisions of said section insofar as it prohibits an agent in fact from filing renditions on behalf of his principal.

The plaintiffs in this case, appellees here, are sixteen tax consultants and tax consulting firms and three owners of personal property situated within the City of Houston. The appellee tax consultants were hired by a number of persons owning real or personal property having a tax situs within the City of Houston and the Houston Independent School District, to evaluate personal property owned by them and to render such property for taxation to appellant Webb, the tax assessor and collector for the City of Houston and the Houston Independent School District. These tax consultants for many years prior to 1974 had performed such services for their clients on a fee basis. They would value the property by inspection of the property itself, or on information received from the client, or by comparison with the previous year’s assessed value, or by a combination of two or more of these methods. Such rendition would be filed prior to the date required in the ordinance. Later, in consultation with the tax assessor and collector’s office, the consultants would resolve any differences regarding the value of the rendered property.

Prior to December 23, 1974, section 44-9 of the Code of Ordinances of the City of Houston provided that:

It shall be the duty of every person owning, holding or controlling property within the limits of the city, which is subject to taxation under the laws of the state and the Charter, laws and ordinances of the city, to render to the assessor and collector of taxes of the city, at his office or to his authorized deputy, annually between the first day of January and the first day of March, a full and complete list or inventory of all property so owned, held or controlled by such person, either as agent or attorney, trustee, guardian, executor or administrator for the purpose of assessment and taxation, and to take and subscribe to an oath as to the correctness of such list or inventory as prescribed, and any person who shall fail to thus render in his property for taxation as provided for above when especially requested to do so in person by the assessor and collector or his deputy, before the same is placed on the tax roll, shall be deemed guilty of a misdemeanor.
It shall be the duty of the assessor and collector and his authorized deputies to receive such list or inventory described above between the days set out, but lists or inventories taken on days other than those herein specified shall be valid.

On December 23, 1974, the Houston City Council amended section 44-9 by enacting Ordinance No. 74-2204. This new ordinance, including its title, provided:

AN ORDINANCE AMENDING SECTION 44-9 OF THE CODE OF ORDINANCES OF THE CITY OF HOUSTON, TEXAS: PROVIDING FOR THE RENDITION OF PROPERTY; PROVIDING FOR A RENDITION PERIOD OF JANUARY 1ST TO APRIL 30TH: PROVIDING THAT RENDITIONS MUST BE SUBSCRIBED AND SWORN TO; PROVIDING THAT FAILURE TO RENDER ON REQUEST SHALL BE A MISDEMEANOR; PROVIDING FOR THE ASSESSMENT OF UNRENDERED PROPERTY; AND DECLARING AN EMERGENCY.
* * sfc sfc ⅝: *
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF HOUSTON:
Sec. 1. That Section 44-9 of the Code of Ordinances of the City of Houston, Texas, be and the same is hereby amended so that it shall hereinafter read as follows, to-wit:
It shall be the duty of every person, firm or corporation, other than municipal, owning, holding; or controlling property having a tax situs within the City to render for taxation to the assessor and collector of taxes or his authorized representative, at his office, annually between the 1st day of January and the 30th day of April, a full and complete list or inventory of all property so owned, held or controlled by such person, firm or corporation, either as agent in possession and control, trustee, guardian, executor or administrator. All renditions must be subscribed and sworn to in the manner prescribed by the laws of the State of Texas and the charter and ordinances of the City of Houston.
Any person, firm or corporation who shall fail to render his property for taxation as provided for above when especially requested to do so in person by the assessor and collector or his authorized representative before the same is placed on the tax roll, shall be deemed guilty of a misdemeanor.
It shall be the duty of the assessor and collector and his authorized representatives to receive such rendition described herein between the days set out, and if any person, firm or corporation shall fail to render any property owned, held or controlled by him then it shall be the duty of the assessor and collector to assess said property for taxation in accordance with law.

Subsequent to the enactment of the amended ordinance, Webb wrote a letter to the owners of business personal property advising them as follows:

The rendition must be signed and sworn to by the owner of the property being rendered. If the property is owned by a corporation, the rendition must be signed and sworn to by the President or Secretary of the corporation. City of Houston Code of Ordinances Sec. 44-9 as amended by Ordinance No. 74-2204; Articles 7152 and 7170 Vernon’s Annotated Civil Statutes. If the rendition form is prepared by someone other than the owner, the preparer’s name should be listed on the line below the owner’s entitled “By.” However, in all cases the owner must swear to the truth of the rendition.

On or before April 30, 1975, various owners, through their agents, rendered their business personal property for taxation to Webb’s office through and by the appellee tax consultants. The renditions and oaths were signed by the consultants for the property owners. Attached to the renditions were instruments designating the consultants as agents, and in some cases agents in possession and control for the purpose of rendering personal property. Webb refused to accept such renditions and threatened to assess the property as unrendered. This lawsuit resulted.

In their petition, plaintiffs alleged that Webb was rejecting renditions of property made by the agents of the property owners. Webb, they claimed, was interpreting section 44-9 to require the owner, if a natural person, to personally sign and swear to the rendition; if the owner was a corporation, the rendition had to be signed and sworn to by a “corporate officer or agent in possession and control.” They further alleged the ordinance did not prohibit rendition by agents and, if the ordinance should be so construed, it was void as violative of the Charter of the City of Houston. The City and Webb filed a general denial. They specifically denied that Ordinance No. 74-2204 was invalid, that a valid agency existed between plaintiff tax. consultants and their clients, and that the documents tendered to Webb by the tax consultants were valid renditions. Trial was had to a jury.

The statement of facts consists of approximately 400 pages. For the most part the facts concerned the appointment of the tax consultants as agents, the procedure used by the consultants for evaluating the property of their clients for ad valorem taxes, the procedure followed prior to 1975, the background leading to enactment of Ordinance No. 74-2204, the alleged deficiency in the caption of that ordinance, the reasons why Webb was requiring renditions to be signed by the owners or an “agent in possession and control,” and the action taken by Webb after sending his letter to the owners of personal property.

At the conclusion of the evidence, two special issues were submitted to the jury. These issues read:

SPECIAL ISSUE NO. 1
Do you find from a preponderance of the evidence that
THE PLAINTIFF-TAX CONSULTANTS WERE ACTING AS “INDEPENDENT CONTRACTORS,” OR AS “AGENTS,” IN REPRESENTING THEIR CLIENTS IN THE RENDITIONS OF PERSONAL PROPERTY?
SPECIAL ISSUE NO. 2
Do you find from a preponderance of the evidence that
THE REASON THE DEFENDANT WEBB REJECTED THE RENDITIONS OF BUSINESS PERSONAL PROPERTY OWNED BY A CORPORATION OR AN INDIVIDUAL, FILED WITH HIM BY PLAINTIFFS WAS THAT SUCH RENDITIONS . WERE NOT SIGNED AND SWORN TO EITHER BY AN OFFICER OF SUCH CORPORATION OR AN AGENT IN ACTUAL POSSESSION AND CONTROL OF SUCH BUSINESS PERSONAL PROPERTY?

The jury answered special issue number one finding the tax consultants were agents; special issue number two was found in the negative.

Appellees filed a motion for judgment non obstante veredicto, which the trial court granted, finding that the evidence raised no issues of fact and that a directed verdict for appellees would have been proper. Judgment was entered for appellees.

A review of the evidence introduced at trial makes it clear that these consultants were agents of the property owners for the purpose of rendering the property; that they were appointed by their principals for that purpose, and that their principals were responsible for the consultants’ actions in the rendition process. The real and only question before this court is clearly stated by appellants in their brief, wherein they say:

At the center of this dispute is the issue of whether or not these consultants are able to render property for taxation on behalf of their clients under the law. The consultants contend that they are agents, and as such are empowered to render on behalf of their alleged principals. The City and Mr. Webb, on the other hand, contend that under the City rendition ordinance, Sec. 44-9 of Ordinances, as amended by Ordinance No. 74-2204, the only agents who can render property are agents in possession and control.

In order for the trial court to have found the rendition ordinance unconstitutional, it must have construed it as prohibiting the signature and oath on the rendition by an agent for his principal. This, we feel, was an erroneous construction. This ordinance is at best ambiguous, but we construe it as placing a duty on the “owner” or on an “agent in possession and control” to render his property. It does not prohibit the “owner” or an “agent in possession and control” from using an agent to perform such duty. In construing the ordinance thus, we give weight to the rule of statutory construction that, where a statute is ambiguous, it is the duty of the courts to construe it in such manner as to uphold its validity. Trustees of Indep. School Dist. v. Johnson County Demo. Exec. Comm., 122 Tex. 48, 52 S.W.2d 71, 72 (1932). If the ordinance should be interpreted as prohibiting an agent from rendering property for his principal, as these agents had been authorized to do under section 44-9, then the caption would be defective and the ordinance would be void or invalid as not in compliance with the City Charter, article VII, section 3, which provides in part:

The Council shall act only by ordinance, resolution or motion, and all ordinances, resolutions or motions . . . shall be confined to one subject, which shall be clearly expressed in the title .

There is nothing in the title giving notice of any change in the prior ordinance except the extension of time for the filing of renditions and the provision for the assessment of unrendered property. The amendments are, therefore, limited to those changes. The rule is well stated in Landrum v. Centennial Rural High School Dist., 134 S.W.2d 353, 356 (Tex.Civ.App.-Austin 1939, writ dism’d judgmt. cor.):

No rule is better established than the one that where a title or caption of an act specifies the particular field of the amendment, and' that it is to cover or state a particular purpose to make a change in a prior statute, the amendment is limited to the making of the specific change designated in its title, and precludes any additional, contrary, or different amendment than that stated in the title.

Also, in construing the ordinance we should look to other sections of the Code. These sections place no limitation on the kind of agent who may render property for his principal. Section 44-10 empowers the assessor and collector to correct a rendition “[i]n case the owner or agent rendering such property for assessment shall neglect to describe the same as above provided .” Section 44-13 provides for assessment of property generally when property is “rendered in for assessment by the owner thereof, or by any person rendering the same. . . . ”

Appellants argue that the amended ordinance requires renditions to be sworn to as prescribed by the Code of Ordinances and that the rendition oath, section 44-15 of the Code, requires the signer to swear: “that the above inventory rendered by me contains a full, true and complete list of all taxable property owned by me in my own name . . . (or held by me for another whose name appears at the top of the inventory). . . . ” Appellants contend this oath prohibits rendition by anyone other than the owner or an agent in possession and control. However, this argument is not persuasive. The language of section 44-15 is similar to that of the state rendition oath. Tex.Rev.Civ.Stat.Ann. art. 7184 (1960). In the state statutory scheme using that oath, agents have been allowed to render property. Montgomery Indep. School Dist. v. Martin, 464 S.W.2d 638, 641 (Tex.Sup.1971). The city ordinance should be similarly construed.

We hold that under the present City Code, the tax assessor and collector may not reject the property rendition because it is sworn to and filed by an agent of the owner.

Appellants in their brief present eight points of error. The first four points complain of the trial court’s finding that the rendition ordinance was unconstitutional. None of the parties pleaded the unconstitutionality of this section and the trial court had no authority to include such finding in its judgment. Houston Chronicle Pub. Co. v. City of Houston, 531 S.W.2d 177, 183 (Tex.Civ.App.-Houston [14th Dist.] 1975), writ ref’d n. r. e. per curiam, 536 S.W.2d 559 (Tex.Sup.1976).

Appellants’ first point of error attacks the judgment declaring the ordinance unconstitutional because the Attorney General was not served with a copy of the proceeding as required by the Declaratory Judgments Act. Tex.Rev.Civ.Stat.Ann. art. 2524-1, § 11 (1965). Since appellees neither alleged that section 44-9 was unconstitutional, nor requested judgment so declaring, they were not required to serve the Attorney General with a copy of the pleadings. This point is overruled.

In their third point of error, appellants also contend that the Texas Constitution requires rendition by the owner, to the exclusion of any other method, as by agent, and in point of error number five contend that it was a nondelegable duty. They base their argument under both points on that portion of the Constitution requiring that “all lands and other property not rendered for taxation by the owner thereof shall be assessed at its fair market value by the proper officer.” Tex.Const. art. VIII, § 11. We cannot accept such a restrictive reading of that provision. In article VI, section 3-a, the Constitution limits suffrage in municipal bond elections to qualified electors owning taxable property “who have duly rendered the same for taxation . . . .” In construing article VI, section 3-a, the courts have interpreted rendition to mean the act of giving an account of the property or surrendering it for taxation. Markowsky v. Newman, 134 Tex. 440, 136 S.W.2d 808, 813 (1940). Nothing in this definition precludes rendition by an agent. Property is duly rendered under the Constitution when it is placed on the tax rolls by the assessor with the owner’s implied consent, or by the owner’s husband, partner, agent, or co-tenant. Montgomery Indep. School Dist. v. Martin, supra. While we recognize that voting rights are especially protected and courts are loath to disenfranchise a person, judicial interpretation of the assessment process under article VIII, section 11, should not vary from that under article VI, section 3-a. Collingsworth County v. Allred, 120 Tex. 473, 40 S.W.2d 13, 15 (1931).

In point of error number six, appellants contend that the granting of judgment for appellees was erroneous because the jury’s finding that the tax consultants acted as agents was contrary to the great weight and preponderance of the evidence. As previously stated, we cannot agree with this contention. There was abundant evidence supporting the fact of agency. The written instruments naming the tax consultants as agents to fully act for the principals in regard to the rendition of all property owned by the principal were before the court and jury. We overrule this point.

Point of error number seven complains of the granting of judgment n. o. v. in that there was evidence of probative value to support the finding of the jury to special issue number two. We overrule this point. The negative answer of the jury was a failure to find the affirmative, and needed no evidence to support such failure to find. C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191, 194 (Tex.Sup.1966).

Appellants’ final point of error, number eight, assigns error in the trial court’s judgment for appellee tax consultants because there was evidence that some of the renditions filed by appellee Kenneth Clarke were not signed under oath. Clarke testified that his failure to sign the renditions was an oversight and that he would sign them if given the opportunity. It appears that Clarke has substantially complied with the rendition statute, and that the deficiency in the renditions may be easily remedied. There is thus no error which would require the reversal of the judgment. This point is also overruled.

We strike, (1) that portion of the trial court’s judgment declaring that the Code of Ordinances of the City of Houston, section 44-9, as amended by Ordinance No. 74-2204, is void and unconstitutional, and (2) any portion of the judgment insofar as it construes that section to require the signature and oath of the principal to the exclusion of his agent. The judgment is affirmed insofar as it enjoins the tax assessor and collector from requiring the signature and oath of the principal to the exclusion of the agent.

Reversed and rendered in part; affirmed in part.


author: HALL, Justice.

text:
    Burl A. RICH, Appellant, v. CITY OF LUBBOCK, Appellee.
    No. 5658
    Court of Civil Appeals of Texas, Waco.
    Dec. 23, 1976.

      Edwards & Associates, Lubbock, for appellant.
    Crenshaw, Dupree & Milam, Lubbock, for appellee.
   HALL, Justice.

This is a premises condition case. Appellant, Burl A. Rich, suffered severe injuries when he fell to the ground and struck his shoulder on a concrete ring surrounding a water sprinkler while playing soft ball in a park owned and maintained, by appellee, City of Lubbock. He brought this suit for his damages, alleging the City negligently failed to maintain the ball park in a safe condition and negligently failed to warn him of the hazardous condition created by the concrete ring. The City answered with a general denial and a plea of contributory negligence. After appellant’s deposition was taken, the City moved for summary judgment on the ground that the record shows as a matter of law it owed no duty to appellant related to his injury. The motion was granted. As grounds for reversal, appellant asserts fact questions are raised in the record as to whether the City (1) negligently failed to properly cover the ring and thereby caused his injury, and (2) negligently failed to warn him of the hazardous condition created by the ring. We overrule these contentions and affirm the summary judgment.

The following undisputed facts are taken from appellant’s deposition. On the occasion of his injury, appellant was playing soft ball on a soft ball diamond in a city park. His position was center field. He ran to his right (into left field) to catch a fly ball, dived for the ball, fell to the ground, and then slid or rolled, and struck his shoulder on the “doughnut-shaped” concrete ring. These rings are part of the water sprinkler system in the park. Sprinkler heads are placed in them for watering the grass. Those located in the infield area are level with the surface of the ground. Those in the outfield protrude about one inch above the ground. They are not covered or protected in any way. However, they are visible to one who is watching. At least six of these rings are located in the outfield area of the ball park in question. Appellant had played soft ball in this park several times, including the earlier part of the week of his injury; and although he did not know their exact places, he knew the rings were there. In fact, he was standing on one shortly before his injury. The one he fell on “had some grass up around it,” but he could have seen it if he had been watching for it. Instead, he was watching the ball.

This testimony conclusively establishes that appellant knew the concrete “doughnuts” were in the outfield and knew their uncovered, unprotected condition. The danger they posed to him as he ran across the field while watching a fly ball was as well known to him as it was to the City. “The owner or occupier [of premises] owes no duty to his invitees either to eliminate or to warn of dangerous conditions on the premises which are as well known to them as they are to him.” Delhi-Taylor Oil Corporation v. Henry, 416 S.W.2d 390, 392 (Tex.Sup.1967). Without a correlative legal duty, there can be no actionable negligence. Denison Light & Power Co. v. Patton, 105 Tex. 621, 154 S.W. 540, 541 (1913).

The judgment is affirmed.


author: HENRY, Justice.

text:
    Bobby B. OVERALL, Appellant, v. SOUTHERN SUBARU STAR, INC., and the Travelers Insurance Co., Appellees.
    Supreme Court of Tennessee.
    Dec. 6, 1976.
    A. L. Pressgrove, Jr., Southaven, Miss., for appellant.
    John H. Harris, Jr., Maniré, Harris, Shelton & Dunlap, Memphis, for appellees.
   OPINION

HENRY, Justice.

This is a workmen’s compensation case in which two issues are presented for our determination: (1) whether the trial court erred in admitting into evidence the results of a blood alcohol test which showed the deceased’s blood to contain 0.172 per cent alcohol, and (2) whether there is material evidence to support the trial court’s finding that the decedent’s death was proximately caused by his intoxication?

I.

The deceased, Jerome Overall, was employed by appellee Southern Subaru Star, Inc. as a maintenance representative. In the course of his employment he regularly visited various Subaru dealerships throughout Mississippi and Louisiana.

On 3 December 1973 the deceased left Memphis to deliver a demonstrator automobile to a dealer in Shreveport, Louisiana. At approximately 5:40 p. m. on this same date he was involved in a two-vehicle accident on U. S. Highway 165 just south of Bonita, Louisiana, which resulted in his death.

The accident occurred when the deceased, who was proceeding in a southward direction along U. S. Highway 165, apparently veered across the northbound lane of the highway and onto the lefthand or east shoulder. The deceased’s car travelled approximately 165 feet in a southbound direction along this left shoulder, and then re-entered the highway cutting across the path of a pickup truck being driven in the opposite direction along the highway. The driver of the pickup truck had previously swerved into the southbound lane but was unable to avoid a collision as the deceased’s vehicle cut back across the highway in front of him.

It had been raining in the vicinity of the accident off and on all day. The actual condition of the highway at the accident scene was a disputed issue. There was testimony that the highway was “rutted” in places, allowing water to collect into puddles and the road surface to become slippery. However, the investigating officer at the accident scene testified by deposition that there were “no defects” or obstructions in the road at the point where the accident occurred.

Approximately forty minutes prior to the accident the deceased was observed entering a beer tavern in Bonita. Although there was no testimony as to what he did while inside the tavern, he was observed leaving ten minutes later carrying a package in his hand. At this time the deceased did not appear to be intoxicated. Several cans of beer were found inside his car following the collision, and a blood sample taken from his body shortly after the accident indicated that his blood contained 0.172 per cent alcohol.

The trial court found that “the deceased was intoxicated at the time of the accident; that such intoxication proximately caused the accident; and that since the death of the deceased was due to intoxication, the petitioner [was] not entitled to recover any workmen’s compensation benefits in view of the provisions of TCA 50-910.”

II.

The trial court admitted into evidence a laboratory report which indicated that the deceased employee’s blood alcohol reading was 0.172 per cent. This report was also verified by the deposition testimony of Dr. N. Klam, a pathologist associated with the Monroe Laboratories, Inc., in Louisiana, where the blood alcohol test was performed. During the deposition Dr. Klam was asked who actually made the blood test and he responded that “Mr. McBride, was the technologist on this alcohol determination.” The actual blood alcohol report contains the signatures of both Mr. McBride and Dr. Klam.

Introduction of the laboratory blood test report, as well as this portion of Dr. Klam’s testimony, was objected to by appellant as constituting inadmissible hearsay. The basis for these objections was that such evidence did not constitute the “best evidence”, since the record did not indicate that Dr. Klam conducted the actual blood test himself.

Appellant relies upon Nicks v. Nicks, 51 Tenn.App. 520, 369 S.W.2d, 909 (1962), as authority for the proposition that persons who conduct blood tests should be made witnesses for the purpose of examining their competency, as well as the means employed in performing such tests. Nicks involved a child custody suit in which the question of paternity was in dispute. The Court of Appeals held that blood grouping tests to disprove paternity made pursuant to Section 24 — 716, T.C.A., had been improperly admitted into evidence. In dictum, the Court reasoned that although such blood test results were generally admissible,

an opportunity must be afforded the parties involved to examine the witness who made the tests as to his competency and as to the means employed by him, and all other factors having to do with the reliability of such tests. (Emphasis supplied). 369 S.W.2d at 914.

Appellant has placed reliance upon the emphasized language quoted supra. It should be noted, however, that the Nicks Court made no mention of the Uniform Business Records as Evidence Act, nor the applicability of such an enactment to the circumstances of that case. Professor Paine, in his treatise on the Tennessee Law of Evidence at Section 79, footnote 6 (1974), indicates that such dictum as suggested in Nicks is “ill-advised and would nullify the Uniform Act.”

The pertinent section of the Uniform Act, Section 24-714, T.C.A., provides that:

[a] record of an act, condition or event, shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and mode of preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission. (Emphasis supplied).

In the instant case the blood alcohol test report was actually prepared and submitted by Dr. Klam, the testifying witness. In addition, his deposition testimony indicates that he was thoroughly familiar with the details of the actual test performed on the deceased’s blood sample, and that such test was conducted in the regular course of business by persons under a business duty to render accurate information. Under these circumstances, we hold that the deceased’s blood alcohol test report was properly admitted into evidence by the trial court.

III.

In considering any assignment directed to the sufficiency of the evidence on appeal in a workmen’s compensation case, it must be emphasized that this Court does not reweigh the evidence. Instead, our function is merely to determine if there is material evidence to support the trial court’s findings of fact. American Ins. Co. v. Ison, 538 S.W.2d 382 (Tenn.1976); Wooten Transports, Inc. v. Hunter, 535 S.W.2d 858 (Tenn.1976); Strader v. United Family Life, 218 Tenn. 411, 403 S.W.2d 765 (1966).

The appellees in the instant case rely upon Section 50-910, T.C.A. in raising the defense of intoxication. This section provides that:

No compensation shall be allowed for an injury or death due to the employee’s willful misconduct or intentional self-inflicted injury, or due to intoxication, or willful failure or refusal to use a safety appliance or perform a duty required by law. If the employer defends on the ground that the injury arose in any or all of the above stated ways, the burden of proof shall be on the employer to establish such defense. (Emphasis supplied).

Under this statute the burden of proving that the employee’s injury or death was “due to intoxication”, and therefore not compensable, rests solely upon the employer. Gentry v. The Lilly Co., 225 Tenn. 708, 476 S.W.2d 252 (1971).

In the present case, the evidentiary question concerns whether the employee’s death was “due to intoxication”. Professor Larson, in Volume 1A of his treatise on Workmen’s Compensation Law, at section 34.33, discusses the meaning of this statutory phrase and concludes with the following apt language:

When a statute says merely “caused by” or “due to”, this can refer neither to remote cause nor to sole cause. It must mean proximate cause. (Emphasis supplied).

Larson characterizes such “proximate cause” as “something resembling ordinary legal causation.” Ibid. Other commentators have characterized the Tennessee version of this statute in a similar manner. See Schneider’s Workmen’s Compensation, Perm, ed., vol. 6, § 1586.

We, therefore, hold that in order to successfully invoke Section 50-910, T.C.A. as a defense to a work-related injury or death “due to” the employee’s intoxication, the employer has the burden of establishing proximate cause. This does not, however, mean that the employer may establish such a defense where the employee’s intoxication was merely a remote or contributing cause. Neither does it require the employer to prove that the employee’s intoxication was the sole cause, as some Tennessee commentators have suggested.

The trial court in the instant case found that the deceased employee’s intoxication proximately caused his death. Under the circumstances of this case, there was material evidence from which the court might have found that the deceased’s death was proximately caused by either his own intoxication, or by the deceased’s loss of control of his car as a result of slippery highway conditions. Under these circumstances we will not disturb the trial court’s findings of fact. Wooten Transports, Inc. v. Hunter, 535 S.W.2d 858 (Tenn.1976).

The judgment of the trial court is hereby Affirmed.

COOPER, C. J., and FONES, BROCK and HARBISON, JJ., concur.

      . Sections 24-712 et seq., T.C.A. (originally enacted in 1957).

        . See, e. g., Stone and Williams, Tennessee Workmen’s Compensation, § 37 (1957).


author: HARBISON, Justice.

text:
    FLEET TRANSPORT COMPANY, INC., et al., Appellants-Plaintiffs, v. TENNESSEE PUBLIC SERVICE COMMISSION et al., Appellees-Defendants.
    Supreme Court of Tennessee.
    Dec. 28, 1976.
    R. Dale Woodall, Memphis, for appellants-plaintiffs.
    Eugene W. Ward, Public Service Commission, A. O. Buck, Roland M. Lowell, William C. Koch, Jr., Asst. Atty. Gen., Nashville, for appellees-defendants; Brooks McLemore, Atty. Gen., Nashville, of counsel.
   OPINION

HARBISON, Justice.

This action was brought to challenge the constitutionality of Chapter 349 of the Public Acts of 1975. This statute amended that portion of T.C.A. § 65-1503(e) which placed under the Public Service Commission certain commercial haulers of petroleum products and other hazardous materials. The amendment purported to benefit carriers which had been engaged in bona fide operations as of May 17, 1971. As construed by the Chancellor, the amendment was a belated “grandfather clause” to a 1971 statute which had for the first time placed such carriers under the jurisdiction of the Commission.

The Chancellor sustained the validity of the 1975 statute, after eliding therefrom one clause dealing with disposition of revenue, which was deemed to be broader than the caption and violative of Article II, Section 17 of the state constitution. No issue concerning that clause is presented on this appeal.

By Chapter 119 of the Public Acts of 1933, now codified as T.C.A. §§ 65-1501 et seq., the Public Service Commission was given broad authority to supervise and regulate motor carriers within the state. There were a number of exemptions contained in the original statute, however, and in the intervening years other exemptions have been added, and the original exemptions have been modified or amended.

Originally exempted were vehicles used exclusively for transporting property solely within a single city, town or suburb thereof, not over or along definite, fixed, or advertised routes.

By Chapter 86 of the Public Acts of 1961 an additional exemption was provided to any motor vehicle used in the transportation of petroleum products “when the owner, lessee or bailee of the vehicle is legally and regularly engaged in the business of selling or distributing such petroleum products transported on such vehicle.”

The constitutionality of that exemption was sustained in the case of Gasoline Transport, Inc. v. Crozier, 210 Tenn. 96, 355 S.W.2d 98 (1962), against a contention that it constituted unreasonable and invidious class legislation, in violation of Article XI, Section 8, of the Tennessee Constitution. The 1961 act was codified as T.C.A. § 65-1503(i) and by subsequent amendments has been modified and narrowed in scope.

By Chapter 219 of the Public Acts of 1971, the original exemption dealing with haulers dn commercial zones of municipalities, T.C.A. § 65-1503(e), was also modified. Deleted from the exemption were motor vehicles engaged in transporting petroleum products or other hazardous materials, in bulk, in tank trucks or trailers, for hire, unless such vehicles were otherwise exempt under the 1961 statute above referred to, T.C.A. § 65-1503(i).

The 1971 amendment became effective on May 18, 1971. It required carriers transporting petroleum and other hazardous materials within cities to obtain a certificate of convenience and necessity or a contract hauler’s permit from the Public Service Commission, and otherwise to comply with the requirements of statutes and regulations governing motor carriers.

Appellants in the present case are three motor carriers who applied for and received certificates of convenience and necessity from the Public Service Commission, prior to adoption of the 1971 statute. The action was instituted against two other carriers which had unsuccessfully applied for such certificates under the 1971 statute, but which were claiming “grandfather” rights under the 1975 statute here involved. Also made parties defendant were the Public Service Commission and the State Attorney General.

Insofar as here pertinent, the 1975 statute purported to grant an exemption from the requirements of the 1971 act to all vehicles owned or operated by carriers engaged in providing municipal transport services of petroleum and other hazardous products as of May 17,1971, the day before the effective date of the 1971 act. The 1975 statute went further, however, and directed the Commission to issue “grandfather certificates” of convenience and necessity or contract haulers’ permits to all carriers furnishing such transport services provided they were “in bona fide operations on May 17, 1971 . . . .” Applications for such grandfather certificates were required to be made within a specified time, and there is no question but that appellees in the present case properly applied for such certificates.

Appellants insisted in the trial court and urge on appeal that the 1975 statute is internally inconsistent and is void as being vague and indefinite; they further insist that it is invidious class legislation in violation of Article XI, Section 8, of the State Constitution. With regard to the latter contention, it is insisted that the legislative history reveals that the 1975 act was passed for the specific benefit of appellee Beryl J. Lindsey, d/b/a Lindsey Transports and Lindsey Transport Service, and that the act affects only his operations and that of one other motor carrier, appellee Arkansas Transport Company, Inc., both of the appel-lees conducting their operations in the City of Memphis, Tennessee.

No witnesses testified in the trial court, and the case was disposed of upon the basis of legal arguments and exhibits filed with the Chancellor. These exhibits deal with the legislative history of T.C.A. § 65-1503 and various amendments thereto, and contain an opinion of the state attorney general as to the constitutionality of the 1975 act in question. They also contain certified copies of various orders of the Public Service Commission dealing with applications for certificates of convenience and necessity under the 1971 statute. There is no showing, by testimony or otherwise, how many carriers were actually affected by the 1971 statute or the 1975 amendment.

Appellants are correct in their assertion that the 1975 statute is unclear. It first purported to grant an outright exemption to all vehicles owned by carriers engaged as of May 17, 1971 in providing the transport services here involved. The amendment then went further and undertook to direct the issuance of grandfather certificates of convenience and necessity or contract haulers’ permits to all carriers engaged in bona fide operations on May 17, 1971, provided application was made within a specified time.

Faced with this ambiguity in the statute, the Chancellor concluded, correctly in our opinion, that the entire statutory scheme must be examined and the intent of the legislature determined.

In the case of Southern Railway Company v. Fowler, 497 S.W.2d 891, 896 (Tenn. 1973), this Court stated:

“In construing an Act, it is the duty of a court to save rather than destroy it, and to reconcile different provisions, giving them a consistent meaning rather than otherwise.”

Adopting this approach, the Chancellor concluded that the predominant intention of the legislature was to enact a grandfather clause, allowing carriers operating on May 17, 1971 to continue to operate under “grandfather certificates” of public convenience and necessity, but subject to future regulation by the Public Service Commission as to safety rules and regulations, inspection of vehicles, etc.

Upon this basis, the Chancellor concluded that the 1975 act was not internally inconsistent or vague. He further concluded that it was not contradictory to other statutes and public service commission regulations governing motor carriers, inasmuch as “grandfathered” carriers were simply to be issued a certificate without the burden of proving public convenience and necessity, but were to be subject to all other motor carrier requirements.

We agree with and affirm the Chancellor’s analysis of the 1975 statute, and also with his conclusion that the selected date, May 17, 1971, was not chosen arbitrarily or without a rational basis, since that was the day immediately preceding the effective date of the 1971 statute, bringing carriers such as those here involved under the jurisdiction of the Commission for the first time.

The principal contention of appellants is that the 1975 statute constitutes invidious class legislation, or special legislation for the benefit of a particular individual or individuals. In this regard, appellants concede that had the grandfather clause contained in the 1975 statute been included in the original 1971 statute, there would be no constitutional problem.

It is pointed out by appellees that the language contained in the 1975 statute, requiring the issuance of a certificate of public convenience and necessity or a contract hauler’s permit without requiring proof of convenience and necessity and without further proceedings, is almost identical to language contained in the Federal Motor Carrier Act of 1935, 49 U.S.C.A. § 306(a).

The language of the federal statute has been construed in many cases, and its constitutionality has apparently never been seriously questioned. The Supreme Court of the United States concluded that the purpose of directing the issuance of grandfather certificates to motor carriers in bona fide operation as of June 1, 1935 was to maintain “substantial parity between future operations and prior bona fide operations.” Alton R.R. Co. v. U. S., 315 U.S. 15, 22, 62 S.Ct. 432, 437, 86 L.Ed. 586 (1942).

Judge Learned Hand stated that the provision requiring the issuance of certificates of convenience and necessity without proof and without further proceedings to operating carriers on the effective date of the federal statute

“ . . . was apparently inserted to avoid the hardship which would result from forcing a carrier to justify his existing business in terms of public convenience. It was meant to accept the motor vehicle system as it was; it recognized as vested such rights as had grown up before Congress asserted any public interest in motor transportation; and consistently, the rights protected should be measured by past user.” Crescent Express Lines, Inc. v. U. S., 49 F.Supp. 92, 94 (S.D.N.Y.1943), aff’d 320 U.S. 401, 64 S.Ct. 167, 88 L.Ed. 127 (1943).

Since the language of the 1975 Tennessee statute here under consideration, insofar as it directs the issuance of grandfather certificates, so closely parallels that used by Congress in the Federal Motor Carrier Act, the interpretation given to the latter statute by the federal courts is persuasive as to the meaning, purpose and intention of the statute.

The 1975 act does not, by its terms, apply to any specified individuals or to any isolated carriers, but it pertains to all motor carriers coming within its terms — that is, all which were engaged in bona fide operations on May 17,1971 in any municipality of the state. It is by no means confined, either expressly or by implication, to carriers operating in the City of Memphis. Any carrier in the state coming within its terms and making timely application could obtain the benefits of the 1975 statute. As previously stated, the 1975 statute is, in essence, no more than a belated grandfather clause to the 1971 enactment. If the General Assembly could validly have included it in the 1971 act, as appellants apparently concede, we know of no reason why the Legislature could not insert it into the 1971 statute by subsequent amendment, and make its terms apply to carriers operating on the effective date of the original act. The General Assembly has very broad power to amend or revise statutes or by subsequent legislation make an original enactment conform to the legislative intent. It may ratify that which it could originally have authorized. Malone v. Peay, 159 Tenn. 321, 17 S.W.2d 901 (1929).

We are of the opinion that the 1975 statute has not been shown to violate the constitutional provisions against unreasonable class legislation. It entitled any timely applicant to a grandfathered certificate, subject, of course, to a proper showing before the Commission that bona fide operations were being conducted as of May 17, 1971.

The judgment of the Chancellor is affirmed at the cost of appellants.

COOPER, C. J., and FONES and BROCK, JJ., concur.

HENRY, J., not participating.

Appendix

T.C.A. 65-1503(e) as amended by Chapter 349 of the Public Acts of 1975 exempts motor vehicles:

“ . . while used exclusively in city transfer service by way of transporting property for hire between points in any one (1) town, city or suburb thereof, not over or along any definite, fixed, announced, or advertised routes between any points in such one (1) city, town or the suburbs thereof; provided, however, that this exemption shall not apply to motor vehicles transporting petroleum products and other hazardous materials, in bulk, in tank trucks or trailers, for hire, other than those owned or operated by any person, firm or corporation engaged on May 17, 1971 in providing such transport services, unless they are exempt under subsection (i) of this section; and provided further, that if a carrier were in bona fide operations on May 17, 1971, the commission shall issue a certificate of convenience and necessity or contract hauler’s permit authorizing such operations without requiring proof that the public convenience and necessity will be served thereby and without further proceedings, if such application for such certificate or permit is filed within one hundred twenty (120) days after June 9,1975. Provided, that no funds received by the public service commission under the provisions of this section may be used for purposes of funding any retirement benefit for any person, to secure actuarial soundness, nor to improve any retirement plan or benefit; and provided further that this exemption shall not apply to contract haulers engaged in the transportation of mobile homes; provided, however, that the contract haulers performing these services as prescribed by this chapter be given thirty (30) days to apply to the public service commission for the authority to continue operation. . . ”

      . See Lindsey v. Fowler, 516 S.W.2d 88 (Tenn.1974) as to a prior application of one of the appellees.

      . For the text of the 1975 act as codified, see Appendix.

      . According to the exhibits filed, four carriers in fact applied for certificates under the 1971 statute, two applications being granted and two denied. Whether there were other carriers which should have made application does not appear from the record.


author: THAYER, Special Judge.

text:
    J. D. EVANS, Admin. of the Estate of Shirley Evans, Deceased, Appellant, v. TILLETT BROS. CONST. CO., INC., and McKinnon Bridge Company, Appellees.
    Court of Appeals of Tennessee, Eastern Section.
    July 28, 1976.
    Certiorari Denied by Supreme Court Nov. 1, 1976.

      Leonard M. Caputo, Fillauer, Dietrich & Caputo, Cleveland, for appellant.
    Michael C. Callaway, Bell, Painter, McMurray, Callaway, Brown & Mashburn, Cleveland, for appellees.
   OPINION

THAYER, Special Judge.

This action was instituted for the recovery of damages for the wrongful death of Shirley Evans, a minor 17 years of age, who was riding as a passenger in an automobile driven by Buster Bussell and which collided with another vehicle being operated by Arnold Moody. The Complaint was filed against Tillett Brothers Construction Company, Inc. and McKinnon Bridge Company under allegations of negligence in the construction of a highway where the accident occurred.

The appeal resulted from a ruling of the Circuit Court in sustaining a motion for summary judgment filed by the Defendants to the cause of action set forth in the Complaint.

After answering the Complaint, the Defendants filed a third-party action against Arnold Moody, the driver of one of the vehicles alleged to be involved in the accident. This suit was predicated upon the theory that the third-party defendant was the responsible party for the cause of the accident but charged that in the event the construction companies were adjudged to be liable to the plaintiff administrator, they sought contribution from Moody.

Shortly after this third-party action was served an order was entered by the Court dismissing the same because it was concluded that the action was barred by virtue of certain provisions of the Uniform Contribution Among Tort-Feasors Act, T.C.A. 23-3105(b). The order of dismissal recited: “Upon the application of the defendant, the agreement of the parties, and it appearing to the Court that the third-party defendant, Arnold L. Moody, having been released by J. D. Evans and Mildred Evans, the next of kin and father and mother of Shirley Evans, Deceased, a copy of the aforesaid release being attached hereto as an exhibit to this order, and it further appearing that said release falls within the provisions of the Uniform Contribution Among Tort-Fea-sors Act, Tennessee Code Annotated, 23-3101, et seq., which more specifically provides with respect to such releases that: T.C.A. 23-3105(b) It discharges the tort-feasor to whom it is given from all liability for contribution to any other tort-feasor.” It should be noted that there is no issue regarding the entry of this order dismissing the third-party complaint but the assignment of error relates solely to the sustaining of the motion for summary judgment against the Complaint.

Upon the dismissal of the third-party action, Defendants filed a summary judgment motion insisting that the settlement entered into by the plaintiff with driver Arnold Moody required the Court to dismiss the Complaint because (1) the release executed by the plaintiff to Moody had the effect of releasing Moody and all other persons liable or who might be claimed to be liable and (2) the provisions of T.C.A. 23-3105(a), Uniform Contribution Among Tort-Feasors Act, provides that a suit cannot be maintained under such circumstances where a particular tort-feasor is released in addition to express language releasing all other tort-feasors. In support of the summary judgment motion, counsel for Defendants filed an affidavit and a copy of the executed release in question.

The release appears to have been executed upon a printed form where blank spaces were left available in order that it could be used in any appropriate case. The consideration, name of party released, date and place of the accident were all filled in by the use of a pen. It was dated September 24, 1973, approximately seven months prior to the filing of the Complaint, and was executed by Plaintiff and his wife for the consideration of $10,000.00.

The following language appeared therein: “the undersigned hereby releases and forever discharges Arnold L. Moody his heirs, executors, administrators, agents and assigns, and all other persons, firms or corporation liable or who might be claimed to be liable” .

In response to the motion filed by Defendants, plaintiff denied that the suit was subject to being dismissed as a matter of law and he filed in evidence an affidavit which stated that before he and his wife signed the release, they were advised by the State Farm Mutual Insurance adjustor that the release only operated to release Arnold Moody from responsibility, and that the adjustor filled in all blank spaces on the release form, and that plaintiff relied upon the adjustor’s representation in executing the document in question.

In reviewing the assignment of error and in determining whether or not the evidence submitted in connection with the motion for summary judgment created any issue of fact material to the case, we must examine the evidence in its most favorable light to the Appellant being mindful of the rule that proceedings for summary judgment are not in any sense to be used as a substitute for the trial of disputed factual issues. Layhew v. Dixon, 527 S.W.2d 739 (Tenn., 1975).

Generally, the scope and extent of a release depends on the intent of the parties as expressed in the instrument. A general release covers all claims between the parties which are in existence and within their contemplation; a release confined to particular matters or causes operates to release only such claims as fairly come within the terms of the release. Cross v. Earls, 517 S.W.2d 751 (Tenn., 1974).

Ordinarily, one having the ability and opportunity to inform himself of the contents of a writing before he executes it will not be allowed to avoid the effect of it by showing that he was ignorant of its contents or that he failed to read it. Where a release has been executed in writing without fraud, misrepresentation or duress and with every reasonable opportunity for consideration of its terms, it will be binding. Akard v. Standard Accid. Co., 8 Tenn. C.C.A. 497 (Higgins).

In 66 American Jurisprudence 2d 706, section 30, we find the following language to be applicable:

“The scope of a release is determined by the intention of the parties as expressed in the terms of the particular instrument, considered in the light of all the facts and circumstances. The intention of the parties is to be gathered from the entire instrument and in such inquiry that construction will be adopted which gives effect to each and every part of the instrument where that is possible. In interpreting a release to determine whether a particular claim has been discharged, the primary rule of construction is that the intention of the parties shall govern and this intention is to be determined with a consideration of what was within the contemplation of the parties when the release was executed, which in turn is to be resolved in the light of all of the surrounding facts and circumstances under which the parties acted.”

In the case of Hixson v. Stickley, 493 S.W.2d 471 (Tenn., 1973) an identical issue developed in the trial court regarding the release of a particular tort-feasor and “all other persons, firms or corporations liable or who might be claimed to be liable” but plaintiff took a voluntary dismissal of the case and the question on appeal only related to plaintiff’s right to dismiss in view of the motion that was then pending.

Although it is not applicable to the case before us for decision, we note in passing that under T.C.A. 23-3002 relief in the nature of rescission is expressly authorized from fraudulent or mistaken settlements.

Generally, whether a release has been executed under mutual mistake of a material fact is a question for the jury. Warren v. Crockett, 211 Tenn. 173, 364 S.W.2d 352 (1962). And a release, the execution of which is procured by false and fraudulent representations is voidable or void, and may be set aside at the instance of the party defrauded. There is abundant authority to support the rule that a false representation as to one of several matters which is material and which enters into the consideration in procuring a settlement is sufficient to render a release void. Crigger v. Mutual Ben. Health & Accid. Assn., 17 Tenn.App. 636, 69 S.W.2d 907 (1934).

With these general principles of law in mind, we finally reach the specific question of whether or not the trial court was in error in concluding that there was no genuine issue as to any material fact and awarding the Defendants a judgment as a matter of law.

The particular section of the Uniform Contribution Among Tort-Feasors Act invoked in this case is T.C.A. 23-3105(a). As noted in Massey v. Sullivan County, 225 Tenn. 132, 464 S.W.2d 548 (1971), this part of the Uniform Act radically changes the common law rule with respect to the effect of releases and provides that a release or covenant not to sue given in good faith does not discharge any of the other tort-feasors from liability “unless its terms so provide”.

Since Tennessee courts have not passed on the issue, Appellees have cited in their brief a number of cases from other jurisdictions where the question has arisen under similar provisions of the Uniform Act. We have examined these authorities and find many to be factually different from the record before us for decision.

In Morison v. General Motors Corp., 428 F.2d 952 (5th Cir. 1970) and in Hasselrode v. Gnagey, 404 Pa. 549, 172 A.2d 764 (1961) there was no evidence that an adjustor had made a representation with regard to the scope of the release shortly before its execution. We also find that in Peters v. Butler, 253 Md. 7, 251 A.2d 600 (1969) a similar question was not decided upon a summary judgment motion but following a trial where the court concluded: “the evidence not only did not support the Peterses’ contention of mistake (not only mutual as they claimed but not even unilateral) but that the proof was that all the parties intended just what they agreed to in the release.”

We believe that the affidavits submitted in support of the motion created a material issue of fact with regard to the intention of the parties in releasing an unnamed tort-feasor, and while it may be determined from the trial of this issue that the weight of the evidence compels the conclusion that the language of the release instrument must prevail or that it is consistent with the intention of the parties, the existence of this genuine issue of fact precludes a determination of the matter upon the record in support of the motion.

We do not find that our decision in any way interferes with the language of the statute but find that it promotes its underlying policy and intent to permit parties to discharge unnamed tort-feasors where the parties have so agreed and contracted. Nor do we find that it conflicts with the parol evidence rule as insisted by Appellees. The parol evidence rule applies only between the parties to the written contract and strangers cannot raise the question of the admissibility of parol evidence to vary a written contract. Isabell v. Aetna Insur. Co., Inc., 495 S.W.2d 821 (Tenn.App., 1972).

Therefore, we hold that a genuine issue of fact exists regarding the scope of the release in question and that the Court was in error in sustaining the motion for summary judgment and dismissing the action.

It results that the assignment of error is sustained and the case is remanded to the Circuit Court for further proceedings consistent with this opinion.

The costs of the appeal are taxed equally to Appellees with the costs in the trial court to be determined there.

SANDERS and GODDARD, JJ., concur.


author: AKIN, Justice.

text:
    SCHEPPS GROCER SUPPLY, INC., Appellant, v. RANGER INSURANCE COMPANY, Appellee.
    No. 19007.
    Court of Civil Appeals of Texas, Dallas.
    Nov. 11, 1976.
    Rehearing Denied Dec. 9, 1976.
    Tom H. Davis, Byrd, Davis, Eisenberg & Clark, Austin, for appellant.
    L. W. Anderson, Anderson, Henley, Shields, Bradford, Pritchard & Miller, Dallas, for appellee.
   AKIN, Justice.

This is a suit certaining an interpretation of an aviation insurance contract. The principal question presented is whether, once an insurer asserts a policy exclusion, it is necessary to prove a causal connection between the loss suffered and the breach of the policy. The exclusionary clause in question provides for no coverage unless the named pilot has a multi-engine rating. Because we hold that no proof of causal connection is necessary, we affirm.

This controversy arose when a twin-engine aircraft owned by Schepps Grocer Supply, Inc., crashed killing the pilot, Lamar Masterson, and two other persons as well as damaging numerous houses. Ranger Insurance Company had issued its policy to Schepps on the aircraft; however, although specifically naming Masterson in the policy, it required him to have a multi-engine rating by the Federal Aviation Administration (FAA).

Ranger sued Schepps to recover $54,-238.14 previously paid by it under its policy to the lienholder of Schepp’s aircraft. Ranger was required to pay the lienholder, despite its contention that there was a violation of the policy by Schepps, since an endorsement to the policy provided that if there was a violation of the policy, as between the insured and the insured’s carrier, the insurance company was still obligated to pay the lienholder, but had a subrogation right against the insured, Schepps. Additionally, Ranger sought a declaratory judgment that it was not obligated to defend Schepps or its pilot’s estate in any action resulting from the crash.

Following a nonjury trial, the court rendered its judgment awarding Ranger $54,-238.14 and declaring that Ranger need not defend actions against Schepps or its pilot’s estate. The court specifically found that there was no coverage because the named pilot, Masterson, did not have an FAA mul-ti-engine rating. Schepps appeals asserting that the pilot’s failure to have a multi-en-gine rating had no causal connection with the crash and that his failure to have the rating was not material to Ranger’s risk. In this respect, Schepps contends that Mas-terson was qualified to fly multi-engine air-crafts, but merely had not taken the FAA examination. Ranger contends, however, that the policy specifically provided that there was no coverage in the event the aircraft was flown by a pilot not having the required rating, even though the pilot was specifically named.

It is undisputed that Masterson had not obtained a multi-engine rating from the FAA at the time of the crash; however, three days prior to the crash, his instructor had given him a three-hour check flight in preparation for the multi-engine flight test. The instructor testified that he had recommended Masterson for the multi-engine rating and that Masterson possessed the necessary skills to pass the test. Schepps argues that only the inability to locate an FAA examiner to administer the test prior to leaving on the fatal flight prevented its pilot from obtaining the rating.

The pertinent provisions of the policy are:

7. Pilot Clause: Only the following pilot or pilots holding valid and effective pilot and medical certificates with ratings as required by the Federal Aviation Administration for the flight involved will operate the aircraft in flight: Lamar Master-son, providing he obtains a multi-engine rating with at least twenty-five hours dual flight instruction in the insured make and model with a certified flight instructor pilot prior to solo and providing he obtains at least ten hours solo in the insured make and model prior to carrying passengers; otherwise, commercial multi-engine and instrument-rated pilots having a minimum of fifteen hundred total logged hours including at least two hundred fifty hours in multi-engine aircraft. [Emphasis added.]
Exclusions: This policy does not apply: (2) to any occurrence or to any loss or damage occurring while the aircraft operated in flight by others than the pilot or pilots set forth under item 7 of the Declarations. [Emphasis added.]

Although the policy required Masterson to have a multi-engine rating from the FAA, Ranger introduced evidence from the Federal Aviation Administration records showing that the only rating which Master-son held was that of a “student pilot.” Ranger then rested its case. Schepps argues that Ranger did not sustain its burden of proof because it failed to introduce evidence of a causal connection between the breach and the loss. In this respect, Schepps contends that where the contract terms specifically name the pilot authorized to operate the aircraft covered, provided the pilot meets certain qualifications, and evidence is presented that the pilot possessed an equivalent proficiency, then the insurer has the burden to prove (1) that the named pilot did not have the required proficiency, or (2) that the breach contributed to the loss. Schepps argues that if either of these alternatives is proved by the insurer, then the breach is material to the risk and coverage should be denied, but that neither has been proved in this case.

Schepps relies on Hall’s Aero Spraying, Inc. v. Underwriters at Lloyd’s, 274 F.2d 527 (5th Cir. 1960), which applies Texas law, for the proposition that “[i]n the absence of a causal connection between the breach and the loss the breach is not a defense.” Id. at 532. However, as we read this case, it does not support Schepps’s position. In Hall’s Aero Spraying, the insurer sought a declaratory judgment that it had no liability for damages caused by a plane crash. The action was predicated on the insured’s failure to comply with the Texas Department of Agriculture’s permit regulations before cropdusting, which the insurer contended was required by two contract provisions. The first provision was labeled a “warranty” and provided that the insured would comply with all state regulations. The second was labeled an “exclusion” and provided that there would be no liability when the aircraft was used “for any unlawful purpose.” The court held that the exclusion did not apply because the purpose for which the plane was used was not per se unlawful, even though there was noncompliance with certain regulations. The court also determined that the use of the word “warranty” did not necessarily give the first provision the effect of a warranty which requires strict compliance to preserve the insurer’s liability. Since there was no language of forfeiture in the event of noncompliance with the warranty, the court held that the insurer was liable unless there was a causal connection between the breach and the loss. However, the court recognized that if the policy provision specifically excluded coverage in certain circumstances, then causation need not be proved. Id. at 529-30, 532.

Schepps also relies on Fireman’s Fund Insurance Co. v. McDaniel, 187 F.Supp. 614 (N.D.Miss 1960), affirmed, 289 F.2d 926 (5th Cir. 1961). In that case, the insurer sought a declaratory judgment that it was not liable under the policy because the pilot was operating a multi-engine aircraft and carrying passengers in violation of his student pilot certificate. The policy contained an exclusion stating that it does not apply if the aircraft is operated by a pilot in violation of his certificate. The court denied the insurer’s claim and granted a counterclaim establishing full liability under the policy. Although the facts are similar to those in our case, the policy provisions are different and, consequently, require a different result. In McDaniel, there was, as here, a printed exclusion clause and a typewritten list of pilots authorized to operate the aircraft. That clause stated: “T. H.McDaniel or any currently certified commercial pilot.” Id. at 616. The court construed this language to afford coverage when McDaniel was the pilot regardless of whether he was licensed to pilot multi-engine aircraft or not and reasoned that, under this language, the insurer had contracted to cover all risks of loss occurring when McDaniel was the pilot. Although McDaniel had but a student pilot’s license and was flying a multi-engine aircraft with passengers aboard, in violation of his license, the court held that there was coverage even though an exclusionary clause provided that the policy would not apply “to any insured who operates . the aircraft ... in violation of the terms of any Civil Aeronautics Administration Pilots Certificate.” Id. at 615. Finding that the two provisions when read together rendered the policy ambiguous, the district court applied the rule of contract construction that if there is a conflict between a typewritten and a printed clause, the former controls. Although the court briefly discusses the causal connection theory, the decision is based upon rules of contract construction applicable when provisions are in conflict. Since liability was not excluded under the policy and since no causation was shown, the court held the insurer liable.

The insurance contract in our case is distinguishable in several important aspects. First, the exclusion clause in McDaniel conflicted with the pilot clause; no conflict exists between these provisions in our case. Secondly, Masterson is a listed pilot only if he receives his multi-engine rating; no such qualification was present in McDaniel. Additionally, the Fifth Circuit, in affirming the case, specifically declined to pass on this alternative holding of the district court that the absence of proof of causal connection would prevent the exclusions from being used to avoid coverage. Consequently, we do not view the holding of the district court in McDaniel to be authoritative or supportive of Schepps’ causal connection theory. As we read the pertinent provisions of the policy in our case, Masterson is a named pilot only if he receives his multi-engine rating. Since Masterson did not have the rating required by the pilot clause, the exclusionary clause applies because it was an “occurrence or loss occurring while the aircraft was operated in flight by others than the pilot or pilots set forth under item 7 of the declaration.” [Emphasis added.]

Had the parties intended to contract that Masterson need only have the proficiency equivalent to that required for an FAA multi-engine rating, they could easily have done so by choosing different language. Since they chose not to do so, Ranger is entitled to require that Masterson meet the qualifications in the policy before liability attaches. This is the only reasonable reading of the policy. Contrary to the contention of Schepps, the question of a causal relation between Masterson’s failure to adhere to the pilot requirements and the loss is totally immaterial under this language. Omaha Sky Divers Parachute Club, Inc. v. Ranger Insurance Co., 189 Neb. 610, 204 N.W.2d 162, 164 (1973). To construe these policy provisions as Schepps would have us do would be to ignore the clause “providing he obtains a multi-engine rating,” and, in effect, would make a new contract between the parties. We conclude, therefore, that Schepps’ contention is without merit.

Judgment affirmed.


author: WILLIAMS, Chief Justice.

text:
    Robert DAY, Judge, County Court at Law No. 4 for Dallas County, Texas, Appellant, v. Mrs. C. E. WOOTEN and Mrs. Leona Miller Day, Appellees.
    No. 19025.
    Court of Civil Appeals of Texas, Dallas.
    Nov. 18, 1976.
    Rehearing Denied Dec. 16, 1976.

      Henry Wade, Dist. Atty., William H. Pool, Jr., Asst. Dist. Atty., Dallas, Pete Ec-kert, City Atty., Garland, Earl Luna, Thomas V. Murto, III, Dallas, for appellant.
    Eddie D. Vassallo, Jr., Richard G. Dafoe, McKool, Shoemaker & Vassallo, Dallas, for appellees.
   WILLIAMS, Chief Justice.

Judge Robert Day, as Judge of the County Court at Law No. 4 of Dallas County, has perfected his appeal from the issuance of a writ of mandamus by a district court ordering him to enter an award of the special commissioners as the judgment of his court in the absence of objections under the provisions of Tex.Rev.Civ.Stat.Ann. art. 3266(7) (Vernon 1968). Judge Day bases his appeal on the ground that the district court erred as a matter of law when it sustained appellee’s motion for summary judgment and issued the writ of mandamus. We agree with his contention. Accordingly, we reverse the district court’s judgment and dissolve the writ of mandamus.

On October 29, 1975, the City of Garland, Texas filed a petition for condemnation in County Court at Law No. 4, Dallas County, to acquire an easement of 1.642 acres of land for a street right-of-way and other municipal purposes. On October 24, 1975, the special commissioners appointed by the court filed their decision in the county court at law awarding actual damages to the appellees, Mrs. C. E. Wooten and Mrs. Leona Miller Day, in the amount of $81,200.80. Thereafter, and prior to the time that objections to the award of the commissioners might have been in the county court at law, the City of Garland requested leave to take a nonsuit and Judge Day dismissed the cause, without prejudice, on October 31, 1975. The landowners, Mrs. Wooten and Mrs. Day, filed an application for writ of mandamus in the district court requesting that Judge Day be ordered to reinstate the cause and enter judgment thereon. Judge Day answered the application with a special denial alleging that the landowners were not entitled to have the award entered as judgment since the matter had been dismissed at the request of the condemner. The district court granted the petition of the City of Garland to intervene in the cause. All parties filed motions for summary judgment asserting that there was no genuine issue as to any material facts. At the hearing on the motions the district court sustained the landowner’s motion for summary judgment and issued a writ of mandamus ordering Judge Day to enter the award as the judgment of his court and to issue the necessary processes to enforce the same.

Judge Day’s primary contention is that a condemner has the right to dismiss or take a nonsuit in a condemnation proceeding at any time prior to the county judge causing the decision and award of the special commissioners to be recorded in the minutes of the county court, thereby making it the judgment of the court. He argues that the underlying principle enunciated by our supreme court is that an agency may not be required to take land against its will through eminent domain proceedings. Thompson v. Janes, 151 Tex. 495, 251 S.W.2d 953, 954 (1952). He contends that this principle of law has been applied by allowing a condemner to abandon a condemnation proceeding by taking a nonsuit even after a jury renders a verdict concerning the amount of damages but before the court enters judgment vesting a right to the condemned property in the condemner. Leonard v. Small, 28 S.W.2d 826, 830 (Tex. Civ.App. — Fort Worth 1930, writ ref’d). We agree with Judge Day. The jury verdict in a condemnation proceeding is nothing more than an offer to sell the property for a certain price as found by the jury. If the condemner believes this price to be too high, it may refuse to accept it. Armendaiz v. Ray, 215 S.W.2d 210, 212 (Tex.Civ.App.— San Antonio 1948, no writ), citing Leonard v. Small, supra. However, our courts have restricted the condemner’s right to a non-suit when it has done something which would create an estoppel. Huntsville Independent School District v. Scott, 483 S.W.2d 344, 347 (Tex.Civ.App. — Houston [14th Dist.]), writ ref’d n. r. e., per curiam, 487 S.W.2d 692 (Tex.1972). An estoppel exists if the condemner has entered or taken possession of the property by virtue of the condemnation proceedings and cannot restore possession to the landowner. Brazos River Conservation & Reclamation District v. Allen, 141 Tex. 208, 171 S.W.2d 842, 845 (1943); and Lower Nueces River Water Supply District v. Cartwright, 160 Tex. 239, 328 S.W.2d 752, 757 (1959). In the case before us there is no evidence that the condemner has taken any action which would create an estoppel and which would thereby prevent it from withdrawing its application for condemnation.

Mrs. Wooten and Mrs. Day argue, however, that between the time that the commissioners award had been filed in the county court and objections filed thereto, that the matter is still in an administrative status and has not yet become a lawsuit so that Judge Day could only perform the ministerial duties of entering a judgment based upon the commissioners award. They rely upon Pearson v. State, 307 S.W.2d 159 (Tex.Civ.App. — Austin 1957), affirmed, 159 Tex. 66, 315 S.W.2d 935 (1958), and State v. Rayburn, 352 S.W.2d 357 (Tex.Civ.App.— Texarkana 1961), writ ref’d n. r. e., per curiam, 163 Tex. 450, 356 S.W.2d 774 (1962). Both of these cases dealt with a situation where objections to the commissioners award were filed, although not timely. In Pearson, the issue before the supreme court was whether an appeal could be taken from a judgment not conforming to the commissioners award when timely objections to the award were not filed by either party. The court reasoned that the judgment entered was not the judgment in a judicial proceeding because no objections were filed thereby vesting subject matter jurisdiction in the court acting in its judicial capacity. Consequently, no appeal could be taken therefrom. In the instant case, we have before us an appeal from a mandamus proceeding rather than an appeal on the merits. However, Mrs. Day and Mrs. Wooten rely upon the opinion in Pearson wherein the court stated:

No jurisdiction is conferred upon the court to do anything more than accept and adopt the award as its judgment, and this follows by operation of law and the ministerial act of the county judge. There is nothing which the court, as distinguished from the county judge in his administrative capacity, can hear and determine by the exercise of its judicial powers.

It must be noted, however, that in making that statement, the court was only concluding that prior to the filing of objections any order entered by the court does not constitute a judgment in a civil case with the right of appeal therefrom.

In Rayburn, the sole issue before the court was whether Tex.R.Civ.P. 4 enlarges the time period for filing objections prescribed in Tex.Rev.Civ.Stat.Ann. art. 3266(7) (Vernon 1968). While holding that the time was not enlarged, the court in its opinion stated that there was no dispute as to whether the county judge was under a ministerial duty to record in the minutes and make the commissioners award the judgment of his court in the absence of timely-filed objections. Consequently, in neither of these cases is the issue, which is the subject of this litigation, raised and decided. In the present case, no objections were presented nor filed by either party. Herein we have only a motion for nonsuit which is not addressed by the statute.

Appellees concede that the filing of objections in a condemnation proceeding converts it into a lawsuit, thereby vesting subject matter jurisdiction and allowing a motion for nonsuit. Henderson v. Texas Turnpike Authority, 308 S.W.2d 199 (Tex. Civ.App. — Dallas 1957, writ ref’d). They also concede that in a condemnation proceeding the county judge has administrative jurisdiction until subject matter jurisdiction attaches and may grant a motion for dismissal prior to determination of an award by the special commissioners. Lower Nueces River Water Supply District v. Cartwright, 160 Tex. 239, 328 S.W.2d 752, 754 (1959). However, they argue that within the narrow limits of time beginning with the determination and filing of the award by the commissioners and ending with the time period for filing objections that the county judge acting as an administrative officer is bound by statute to enter the award as a judgment unless objections are filed. We believe that to adopt such a proceeding would only put form above substance. In oral argument before this court counsel for appellees admitted that it is their narrow position that immediately pri- or to the time objections, if any, are filed to the commissioners award that the judge is powerless to grant a nonsuit whereas immediately after the filing of objections the condemner would have a right to request the county judge, acting in a judicial capacity, to dismiss the suit. We find nothing in the condemnation statute which expressly prohibits the judge of the county court from dismissing the matter at anytime while it is in an administrative status.

The statute is mandatory in that it denies discretion to the county judge to enter judgment in a sum different from the commissioner’s award. It does not, however, deny to the condemner its right to move to dismiss the condemnation proceeding nor to the judge the right to grant the motion. We see no practical difference between allowing a dismissal within the disputed time period or requiring that the condemner first file objections thereby vesting subject matter jurisdiction of a lawsuit and then moving for dismissal. Accordingly, we hold that the district judge erred in granting the writ of mandamus in this case. The judgment of that court is reversed and the writ of mandamus issued by the district court is dissolved.

      . Tex.Rev.Civ.Stat.Ann. art. 3266(7) (Vernon 1968) states:
      If no objections to the decision are filed within the time prescribed by Subdivision 6 of this Article, the County Judge shall cause said decision to be recorded in the minutes of the County Court, and shall make the same the judgment of the court and issue the necessary process to enforce the same.


author: PRESLAR, Chief Justice.

text:
    John Henry MACIAS, Appellant, v. CHARTER OAK FIRE INSURANCE COMPANY, Appellee.
    No. 6520.
    Court of Civil Appeals of Texas, El Paso.
    Nov. 24, 1976.
    London & Stokes, Jack W. London, Tony Korioth, Austin, for appellant.
    Groce, Locke & Hebdon, Ray A. Weed, J. Michael Myers, San Antonio, for appellee.
   OPINION

PRESLAR, Chief Justice.

This is a workmen’s compensation case involving sufficiency of the evidence on the issue of partial disability and propriety of jury argument. Based on a jury verdict, a take nothing judgment was entered. We affirm.

This compensation claim is for an injury occurring on November 8, 1973, when the claimant, John Henry Macias, dislocated his right shoulder. The injury was repaired by surgery, and the jury found a total incapacity of a duration of twenty-three weeks; the jury found no partial incapacity. The carrier had already paid for twenty-five weeks of disability, hence the take nothing judgment.

Special Issue 2 inquired: “Was such injury a producing cause of any partial incapacity?” — to which the jury answered “no.” Appellant assigns error in this finding by his points of error one, two, and three, asserting that there was no evidence to support the jury’s answer, that the evidence was insufficient, and that the finding was against the great weight and preponderance of the evidence. In passing on these points of error, we follow the familiar rule of law that an appellate court in passing on the legal question of “no evidence” will view the evidence in its most favorable light, considering only the evidence and the inferences which support a jury finding and rejecting inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). And in passing on the factual situation of the sufficiency or preponderance of the evidence, all of the evidence, both pro and con, is considered. Calvert, “No Evidence” and “Insufficient Evidence,” 38 Tex.L.Rev. 362 (1960).

Our review of the statement of facts under these rules leads to the conclusion that the points of error one, two, and three should be overruled. The injury of November 8,1973, was the fourth shoulder separation that the claimant had suffered within a period of some six months. Because of these series of dislocations, it is possible to confuse the evidence on the question of disability; only the injury of November 8th is involved in this case, and the very narrow issue under review is whether such injury of November 8th was a producing cause of any partial incapacity. The question is not whether he is now partially disabled, but whether any such disability or incapacity was caused by the injury of November 8th. For instance, Dr. Dennison, who performed surgery on the claimant after the fourth dislocation, gave him a five percent disability, yet the Doctor testified that the shoulder is now a better shoulder than it was before the November 8th injury; he further explained that it is not as good as it was before it was dislocated the first time, and that prior to November 8, 1973, he was unable to perform the ordinary functions expected of a working person, but that after the surgery the claimant could perform any sort of job he wanted to do. We are of the opinion that there is some evidence to support the finding of the jury, and that such finding is not against the great weight and preponderance of the evidence that the injury of November 8, 1973, was not a producing cause of any partial incapacity of the claimant.

Issue 2 cited above was followed by Issues 2A, 2B, and 2C regarding the beginning date of any disability, its duration, and the wage capacity during any partial incapacity. The jury was instructed to answer these issues only if they answered Issue 2 in the affirmative. They answered that issue “no” and did not answer the conditional issues. Appellant’s points of error four through thirteen regarding the sufficiency of the evidence to support the jury’s answers to these unanswered issues are therefore without merit and are overruled.

Appellant’s points of error thirteen through seventeen all relate to the disclosure by the Appellee’s attorney during final argument that a certain amount had been stipulated to as an average weekly wage. Counsel for Appellee told the jury that the parties had agreed or stipulated that the claimant had an average weekly wage immediately prior to November 8, 1973, of $162.73. It is settled law that before a judgment of reversal may be entered based upon argument of counsel, it must appear that such argument was improper and calculated to cause, and probably did cause, the rendition of an improper verdict. Utica Mutual Insurance Company v. Jacobs, 483 S.W.2d 500 (Tex.Civ.App.— Houston [14th Dist.] 1972, no writ); Aultman v. Dallas Railway & Terminal Co., 152 Tex. 509, 260 S.W.2d 596 (1953); and Goforth v. Alvey, 153 Tex. 449, 271 S.W.2d 404 (1954). Another rule applicable here is whether a juror of ordinary intelligence could have been persuaded by the argument to agree to a verdict contrary to that to which he would have agreed but for such argument. Goforth v. Alvey, supra. And to make that determination, the reviewing court is to look to the entire record. Gomez Leon v. State, 426 S.W.2d 562 (Tex.1968),

We conclude that any error in mentioning the stipulated wage rate was harmless. The only issue which the matter could have related to was Issue 2C by which the jury was asked to find the Plaintiff’s average weekly earning capacity during partial incapacity. This was an issue not reached by the jury because they had found by Issue 2 that there was no partial disability. The points of error are overruled. The judgment of the trial Court is affirmed.