author: YOUNG, Justice.

text:
    DIVERSIFIED RESOURCES CORPORATION, Appellant, v. GEODYNAMICS OIL AND GAS, INCORPORATED, Appellee.
    No. 1218.
    Court of Civil Appeals of Texas, Corpus Christi.
    Nov. 3, 1977.
    Rehearing Denied Nov. 30, 1977.
    David Olsen, LeRoy S. Axland, Suitter, Axland & Armstrong, Salt Lake City, Utah, for appellant.
    C. M. Henkel, Dyer & Henkel, Corpus Christi, for appellee.
   OPINION

YOUNG, Justice.

This suit on a note and a settlement agreement was instituted on October 28, 1975, in the 214th District Court of Nueces County, Texas by Geodynamics Oil and Gas, Inc., against Diversified Resources Corporation. Plaintiff is a Pennsylvania corporation having its principal office in Corpus Christi, Nueces County, Texas. Defendant is a Nevada corporation with its principal place of business in Glenville, Illinois. Citation was served upon the Secretary of State of Texas as the agent of the defendant for service of process under Tex.Rev.Civ.Stat. art. 2031b (1964). Whereupon defendant entered a special appearance to contest jurisdiction of the Texas court pursuant to Rule 120a, T.R.C.P. The trial court denied defendant’s plea to the jurisdiction. Trial to the court without a jury was then commenced and judgment on the note and agreement was entered for plaintiff. Defendant appeals.

The sole question presented by this appeal is whether the trial court had jurisdiction over the defendant.

Defendant and plaintiff here entered into a settlement of a lawsuit # CA-71-C-209 in the United States District Court, Southern District of Texas, Corpus Christi Division. The resulting agreement, executed on June 24,1974, required, among other things, payments in Corpus Christi, Texas, to plaintiff by defendant in the following manner:

1) $10,000 in cash contemporaneously with the execution of the agreement.
2) $5,000 in cash within 45 days from the date of execution of the agreement.
3) Execution of an installment promissory note for $70,000 to be paid as therein provided.

Defendant paid the $10,000, but failed to pay all installments on the note, and failed to pay the $5,000. This suit resulted.

Our Supreme Court in O’Brien v. Lanpar Company, 399 S.W.2d 340 (Tex.Sup.1966) recognized the three elements necessary to sustain jurisdiction over a nonresident:

“. . . (1) The nonresident defendant or foreign corporation must purposefully do some act or consummate some transaction in the forum state; (2) the cause of action must arise from, or be connected with, such act or transaction; and (3) the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature, and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation.”

It is essential, therefore, that defendant must have purposefully availed itself of the privilege of conducting activities within Texas and that the present cause of action arises from or is connected with such act or transaction.

In the instant case, plaintiffs cause of action is clearly based upon defendant’s default on the note and agreement. One issue is, therefore, whether defendant by entering into the agreement purposefully has done some act or consummated some transaction in Texas. It is obvious that it has done so. The first two requirements of O’Brien are thus satisfied.

We now move to a consideration of the third requirement of O’Brien, which is sometimes called the “due process” test. In that regard, defendant argues that the trial court erred because the sole contact within the State of Texas which arises from the facts and circumstances of this transaction is that the promissory note calls for payment of principal and interest at the office of the plaintiff in Corpus Christi, Nueces County, Texas. In support of this position defendant cites U-Anchor Advertising, Inc. v. Burt, 544 S.W.2d 500 (Tex.Civ.App.—Amarillo 1976), affirmed, 553 S.W.2d 760 (Tex.Sup.1977). The U-Anchor case does stand for the proposition stated by the appellant; i. e., the fact alone of a foreign corporation’s payments in Texas is not sufficient to allow a Texas court to exercise in personam jurisdiction over that foreign corporation. We do not find that proposition to be controlling here however.

In U-Anchor, the only action of the nonresident defendant, Burt, was to pay in Texas for services rendered by U-Anchor in Oklahoma. The Court of Civil Appeals and the Supreme Court both were of the opinion that this act alone not only did not meet the requirement of purposefully conducted activities within the State but also that to allow jurisdiction over the defendant would offend the traditional notions of fair play and substantial justice.

In the case before us, there were contacts by the defendant in Texas other than the making of payments; to-wit, the settling of aforesaid lawsuit between the parties here and the making of an agreement to implement the settlement.

We hold, therefore, that the defendant by executing the note, which clearly reflected the payments were due in the State of Texas, and by executing the agreement which settled the lawsuit on file in the Southern District of Texas wherein the settlement was to be performed in the State of Texas, not only purposefully conducted business in the State of Texas but it also contracted to perform its obligations within the State of Texas, thus invoking the benefits and protections of this State’s law. We hold also that the third requirement of O’Brien has been satisfied.

The judgment of the trial court is affirmed.

      . “Sec. 3. Any foreign corporation . . . that engages in business in this State, . and does not maintain a place of regular business in this State or a designated agent upon which service may be made upon causes of action arising out of such business done in this State, the act or acts of engaging in such business within this State shall be deemed equivalent to an appointment by such foreign corporation, ... of the Secretary of State of Texas as agent upon whom service of process may be made in any action, . . . arising out of such business done in this State, .
      Sec. 4. For the purpose of this Act, . . . any foreign corporation, . . . shall be deemed doing business in this State by engaging into contract by mail or otherwise with a resident of Texas to be performed in whole or in part by either party in this State, . . . ”


source: Caselaw Access Project

author: MOORE, Justice.

license: Public Domain

text:
    Anna Wynelle SMITH, Appellant, v. Charles Maurice BYNUM et al., Appellees.
    No. 1050.
    Court of Civil Appeals of Texas, Tyler.
    Nov. 3, 1977.
    Rehearing Denied Dec. 1, 1977.

      James D. Stevenson, Douglas Riley, Jr., Dallas, for appellant.
    George T. Holland, Sammons & Parker, Tyler, for appellees.
   MOORE, Justice.

This is a will construction case brought under the provisions of Tex.Rev.Civ.Stat. Ann. art. 2524-1, sec. 4 (1965), the Uniform Declaratory Judgments Act. Appellant, Anna Wynelle Smith, devisee and beneficiary under the terms of the will of her deceased father, Roy E. Bynum, brought suit against her brother, appellee Charles Maurice Bynum, also a devisee under the will, seeking a declaration of the kind, extent and character of the estate in certain real properties devised to her under the will. The provisions of the will sought to be construed read as follows:

“SECOND: I give, devise and bequeath to my son Charles Maurice Bynum, subject to Item 5, the Southwest one-half of the 438 acres of land known as my home place and described by metes and bounds as follows:
“THIRD: I give, devise and bequeath to my daughter, Anna Wynelle Smith, subject to Item 6, the Northeast one-half of my home place and described my (sic) metes and bounds in Item Two hereof. I also give, devise and bequeath to my daughter, Anna Wynelle Smith, the following described tract of land:
Fifteen (15) acres, more or less, out of a Survey sometimes referred to as a part of the W. H. Bynum Survey .
“FIFTH: It is my will, wish and desire and I so herein provide that in case of the death of my son, Charles Maurice Bynum, without leaving bodily heirs, that the property herein above devised to him shall pass to and be vested in my daughter, Anna Wynelle Smith.
“SIXTH: It is my will, wish and desire and I so herein provide that in case of the death of my daughter, Anna Wynelle Smith, without leaving bodily heirs, that the property herein above devised to her shall pass to and be vested in my son, Charles Maurice Bynum.”

The trial court entered judgment construing the will to devise in the appellant Anna Wynelle Smith a “life estate with a contingent remainder in the bodily heirs of Anna Wynelle Smith, contingent upon there being bodily heirs surviving the death of the said Anna Wynelle Smith, and upon the failure of bodily heirs to survive the death of Anna Wynelle Smith, then a contingent remainder in the defendant, Charles Maurice Bynum.” Appellant, Anna Wynelle Smith, perfected this appeal.

We reverse and render.

Appellant seeks a reversal by seven points of error contending that the trial court erred in construing the devise to her of the property described in the third paragraph of the will as a life estate. She contends that, properly construed, the language indicates that the testator intended to bequeath to her an absolute fee title in the northeast one-half of the home place and the additional fifteen-acre tract. Ap-pellee maintains that the trial court correctly construed the will as devising nothing more than a life estate to appellant.

In construing a will one of the cardinal rules of construction is to ascertain the intent of the testator and to effectuate that intent as far as possible. Haile v. Holtzclaw, 414 S.W.2d 916, 922 (Tex.1967); Guilliams [Quilliams] v. Koonsman, 154 Tex. 401, 279 S.W.2d 579, 581 (1955); Darragh v. Barmore, 242 S.W. 714, 716 (Tex.Comm.App.1922).

The intention of the testator must be ascertained by viewing the will in its entirety, and, if this can be ascertained from the language of the instrument, then any particular paragraph which, if considered alone, might indicate a contrary intention must yield to the intention manifested by the whole instrument. Bergin v. Bergin, 159 Tex. 83, 315 S.W.2d 943, 946-7 (1958); Darragh v. Barmore, supra, at 716.

Unless the will clearly manifests an intent to convey a lesser title, it will be held to convey an absolute fee title. Bergin v. Bergin, supra, at 946; Obrecht v. Obrecht, 384 S.W.2d 420, 423 (Tex.Civ.App.—Amarillo 1964, writ ref’d n.r.e.).

It is not necessary that the terms “fee simple,” “heirs” or any other particular language be used to pass a fee simple title. Tex.Rev.Civ.Stat.Ann. art. 1291 (1962).

Upon applying the foregoing rules of law to the will in question, we think the language used by the testator in paragraph “THIRD” makes it clear that the testator intended an outright bequest in fee simple to his daughter, Anna Wynelle Smith, in and to the northeast one-half of the home place, as well as the fifteen-acre tract.

In 22 Tex.Jur.2d Estates sec. 7 (1961) at 650, it is stated:

“Although an estate in fee simple is granted, the estate may be limited by a subsequent valid provision that the estate shall go over to others on the happening of a certain contingency. The estate, when so limited, is still a fee, for the reason that it will last forever if the contingency does not happen, but so long as it is possible that the contingency may happen, it is a base or determinable fee.
“The taker of a qualified fee enjoys all the rights of a holder of a fee simple absolute, including the power of alienation. His grantee then takes subject to the conditional limitation.”

A determinable fee, also known by the terms “base,” “defeasible,” “qualified” and “conditional” fee, is recognized in this state. Federal Land Bank of Houston v. Little, 130 Tex. 173, 107 S.W.2d 374 (1937); Cragin v. Frost Nat. Bank, 164 S.W.2d 24 (Tex.Civ.App.—San Antonio 1942, ref’d w.o. m.).

This brings us to the question whether the testator in Paragraph “SIXTH” intended to place some limitation or condition on the fee absolute theretofore granted appellant in Paragraph “THIRD” of his will. In the sixth paragraph the testator provided that in the event of the death of the appellant without bodily heirs, the property would pass to and vest in his son, Charles M. Bynum.

Where, as in this case, there is a provision stating that upon a certain contingency the estate given shall pass to another, the law favors the first taker and will construe the words of the will to grant to the first taker the greatest estate which they, by a fair construction in harmony with the will as a whole, are capable of passing. Cragin v. Frost Nat. Bank, supra, at 29; Darragh v. Barmore, supra, at 716.

We think the limitation or condition imposed by the sixth paragraph is clear and unambiguous. It simply provides that in the event of appellant’s death, without leaving bodily heirs, the property therein devised to her would pass to and vest in her brother.

We find nothing in the language used in the sixth paragraph or anywhere else in the will that indicates that the testator intended to limit the estate granted to his daughter to one for life only, much less language that requires such construction. The will in question was drawn by the testator’s attorney. Had the testator intended to limit the bequest to the appellant to a life estate, we believe he would have done so in expressed language. See Cragin v. Frost Nat. Bank, supra; Darragh v. Barmore, supra. We think this construction is clearly shown by the terms of the will itself, and it is further compelled by the rule that the first taker must be given the greatest possible estate consistent with the fair construction of the will.

Accordingly, the judgment of the trial court is reversed and judgment is here rendered declaring that Anna Wynelle Smith take an estate in fee in the property described in Paragraph “THIRD” of her father’s will, defeasible, however, by an exec-utory devise over to her brother in the event she shall predecease him and leave no bodily heirs surviving her.

Reversed and rendered.


author: McKAY, Justice.

text:
    George J. CESHKER, Appellant, v. BANKERS COMMERCIAL LIFE INSURANCE COMPANY, Appellee.
    No. 1052.
    Court of Civil Appeals of Texas, Tyler.
    Nov. 3, 1977.

      John 0. MacAyeal, Dallas, for appellant.
    Oscar H. Mauzy, Mullinax, Wells, Mauzy & Baab, Inc., Dallas, for appellee.
   McKAY, Justice.

George J. Ceshker initiated this action against Bankers Commercial Life Insurance Company to recover damages allegedly incurred as the result of his reliance on Banker’s alleged deceptive advertising. The trial court granted the insurance company’s motion for summary judgment. Ceshker appeals.

On or about April 20,1975, appellee circulated an advertisement as a supplement to the Fort Worth Star-Telegram announcing a Medicare Companion Service Policy. The advertisement also contained a detachable application for said policy. Ceshker alleges that this advertisement was deceptive. On or about May 11, 1975, appellee placed another advertisement in the same newspaper announcing a Hospital Cash Income Policy. As with the first advertisement, the May 11th ad contained a detachable application for the advertised policy. It is undisputed that the advertisements and applications differed in general appearance, color and content. On May 23, 1975, appellee received a completed application from appellant for the May 11th hospital policy and issued such a policy to appellant effective June 1,1975. Appellant paid the premiums on said policy for five months thereafter.

In September, 1975, appellee received a claim form for medical treatment received by appellant. It is undisputed that the claim was not covered by the policy issued. Appellant alleged he relied on the April 20th advertisement in sending the application attached to the May 11th advertisement. Appellant admitted that he did not pay attention to the form, color or content of the two ads, nor did he read either of the ads other than for the bold-faced type in the May 20th ad.

Appellant brought his suit under Tex.Ins. Code Ann. art. 2121, sec. 16(a), V.T.C.A., for deceptive advertising in violation of Tex. Ins.Code Ann. art. 21.21, sec. 3, 4(1) & (2) and Tex.Bus. & Comm.Code Ann., sec. 17.46, V.T.C.A., asking for treble damages, court costs, and attorney’s fees pursuant to Tex. Ins.Code Ann. art. 21.21, sec. 16(b)(1), and a permanent injunction preventing further advertisements pursuant to Tex.Ins.Code Ann. art. 21.21, sec. 16(b)(2).

Appellee Bankers’ Commercial Life in its motion for summary judgment alleged that there is no dispute as to the facts regarding appellant’s application for and issuance of the insurance policy, that there was no genuine issue of material fact, and that there is no individual cause of action for unfair and deceptive trade practices in the field of insurance in Texas under Tex.Ins.Code Ann. art. 21.21, sec. 16(a).

Ceshker’s single point of error asserts that the pleadings, admissions and exhibits raise a fact issue of whether or not the April 20, 1975, advertisement was deceptive, and insurance is not, as a matter of law, excluded from deceptive trade practices. We disagree.

Appellant has no standing to bring a cause of action under Tex.Ins.Code Ann. art. 21.21, sec. 16(a). That statute states:

“Sec. 16. Relief Available to Injured Parties.- — (a) Any person who has been injured by another’s engaging in any of the practices declared in Section 4 of this Article or in rules or regulations lawfully adopted by the Board [of Insurance] under this Article to be unfair methods of competition and unfair and deceptive acts or practices in the business of insurance or in any practice defined by Section 17.-46 of the Business and Commerce Code, as amended, as an unlawful deceptive trade practice may maintain an action against the company or companies engaging in such acts or practices.” [Emphasis added.]

Section 2 of the same article states in pertinent part:

“When used in this Act: (a) ‘Person ’ shall mean any individual, corporation, association, partnership, . . . and any other legal entity engaged in the business of insurance . . . .” [Emphasis added.]

Art. 21.21 does not confer a private cause of action upon individuals for any alleged unfair practices. Russell v. Hartford Casualty Insurance Co., 548 S.W.2d 737, 742 (Tex.Civ.App—Austin 1977, writ ref’d n. r. e.). One must be “engaged in the business of insurance” to bring suit under art. 21.21, Tex.Ins.Code Ann. Appellant is not, nor does he claim to be, one “engaged in the business of insurance.”. Therefore, appellant stated no cause of action against appellee under Tex.Ins.Code Ann., art. 21.-21.

However, appellant also claims that summary judgment is improper because there was summary judgment proof which would create a fact issue on damages and recovery if appellant’s cause were plead under the Deceptive Trade Practices-Consumer Protection Act, Tex.Bus. & Comm. Code Ann., sec. 17.50. When summary judgment evidence discloses facts which render the position of the moving party untenable, summary judgment should be denied regardless of defects which may exist in the pleadings of' the opposite party. Insurance Company of North America v. Cash, 475 S.W.2d 912, 913 (Tex.1971); Womack v. Allstate Insurance Company, 156 Tex. 467, 296 S.W.2d 233, 237 (1956). In his brief appellee recognizes that appellant, if he had so plead, may have had a cause of action under Tex.Bus. & Comm.Code Ann., sec. 17.50. Therefore, summary judgment based solely on the defective pleadings of appellant would be improper. However, the point is not dispositive of the case before us. Assuming that appellant might have properly plead his cause of action, we must then decide whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of plaintiff’s cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970); Rule 166-A(c), T.R.C.P.

A consumer may maintain an action if he has been “adversely affected by” the use or employment by any person of an act or practice (1) declared to be unlawful by sec. 17.46, Tex.Bus. & Comm.Code Ann. (1977), or (2) in violation of Art. 21.21, Tex. Ins.Code Ann. Tex.Bus. & Comm.Code Ann., sec. 17.50(a) (1973).

It is undisputed (1) that appellant applied for the May 11th policy, (2) that the two advertisements differed in color, size and content, and (3) that the May 11th policy did not cover appellant’s claim. Based on the facts of this case, any alleged deceptive trade practice could not have “adversely affected” appellant, as a matter of law. A consumer may not bring an action based on an alleged misrepresentation of an insurance policy which he never bought. Hence, appellant cannot be “adversely affected” as required by sec. 17.50, Tex.Bus. & Comm.Code Ann.

We find appellant’s contention of failure of consideration to be totally without merit.

Accordingly, as we view the entire record, there is no genuine issue as to any material fact and appellee is entitled to judgment as a matter of law. Rule 166-A(c), T.R.C.P.

The judgment of the trial court is affirmed.


author: DUNAGAN, Chief Justice.

text:
    SYSTECH FINANCIAL CORPORATION, Appellant, v. B. W. VAUGHN, Appellee.
    No. 1048.
    Court of Civil Appeals of Texas, Tyler.
    Nov. 3, 1977.
    Russell W. Schell, Thompson, Coe, Cousins & Irons, Dallas, for appellant.
    Dan N. Ratner, Dallas, for appellee.
   DUNAGAN, Chief Justice.

This is an appeal from a directed verdict granted against the appellant Systech Financial Corporation, plaintiff below, and in favor of the appellee B. W. Vaughn, defendant below. This suit arose from a fire that broke out on April 24, 1973, in apartment 110 of the Monterrey Apartments in Dallas. The appellant owned these apartments and the appellee resided in apartment 110. The appellant instituted suit alleging negligent use of smoking materials and, alternatively, negligent disposal of smoking materials by the appellee. Apartment 110 was the only apartment damaged and the damages were stipulated to be $1,435.02.

At the trial of the cause, the appellant proceeded with evidence showing that the appellee was in fact the tenant in apartment 110, that the appellee did smoke, and that the fire did start in a sofa in the living room of the apartment. The appellant also put on testimony by a Dallas Fire Department investigator that the fire in his opinion was caused by careless smoking on the sofa in question. At the close of the appellant’s case, the appellee moved for a directed verdict.

This motion for directed verdict was granted by the trial judge on the basis there was no probative evidence to support the submission of this negligence case to the jury, i. e., that the evidence was merely an inference on an inference. The sole point of error before us is whether the trial court erred in instructing a verdict for the appellee because sufficient probative evidence of appellee’s negligence was presented by the appellant to create a fact issue for jury determination. We overrule appellant’s point of error.

This case is controlled by Alamo Gas Co. v. Stephens, 259 S.W.2d 729, 735 (Tex.Civ. App.—Austin 1953, writ ref’d n. r. e.), where it is stated:

“A presumption of fact cannot rest upon a fact presumed, or in other words, one presumption cannot be based upon another presumption nor an inference of fact upon other inferences. . . . Facts may be established circumstantially, but the circumstances themselves must be shown by direct evidence, and cannot be inferred from other circumstances;

The appellant is attempting to prove his case by pyramiding inferences. The testimony shows that the appellee spent very little time during the morning in question near the sofa where the fire originated. There is testimony to place the appellee sitting on the opposite end of the sofa from which the fire started. No direct evidence shows appellee was smoking on the sofa during the morning in question. To find he was smoking on this sofa, the jury must infer it from the testimony regarding his smoking habits. Once indulging in this inference, then the jury must take another step and further infer that appellee was smoking carelessly. After making the second inference, the jury must make a third inference that such careless smoking was the cause of the fire.

There is no direct testimony allowing us to pyramid these inferences; consequently, we hold that the testimony in this case, at best, arouses a mere surmise or a suspicion of the negligence of the appellee. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898).

Appellant-plaintiff has the burden to establish its alleged cause of action against appellee by legal and competent evidence, i. e., that appellee did, in fact, by negligent use of smoking material or by negligent disposal thereof cause the fire which damaged the apartment. We do not think the appellant has discharged its burden. Arkansas-Louisiana Gas Co. v. J. D. Warren, 460 S.W.2d 460 (Tex.Civ.App.—Tyler 1970, n. w. h.); Mobile, Inc., d/b/a Mobile Well Service v. Cone, 457 S.W.2d 175 (Tex.Civ. App.—Tyler 1970, writ ref’d n. r. e.); Imperial Casualty & Indemnity Co. of Omaha, Nebraska v. Terry, 451 S.W.2d 303 (Tex.Civ. App.—Tyler 1970, n. w. h.).

Evidence that it is possible that the ap-pellee caused the fire here involved cannot be accepted as evidence he did so. It must be proved. Leatherwood Drilling Co. v. TXL Oil Company, 379 S.W.2d 693, 697 (Tex.Civ.App.—Dallas 1964, writ ref’d n. r. e.); Bowen v. East Texas Hospital Foundation, 400 S.W.2d 843, 849 (Tex.Civ.App.—Tyler 1966, writ ref’d n. r. e.); Arkansas-Louisiana v. Warren, supra, and Mobile, Inc. v. Cone, supra. The granting of an instructed verdict for the appellee was correct. Texas & N.O.R. Co. v. Compton, 135 Tex. 7, 136 S.W.2d 1113, 1115 (1940).

The judgment of the trial court is affirmed.


author: McDONALD, Chief Justice.

text:
    Consuelo ALEMAN, Appellant, v. LABORERS NATIONAL PENSION FUND, Appellee.
    No. 5819.
    Court of Civil Appeals of Texas, Waco.
    Nov. 10, 1977.
    Rehearing Denied Dec. 1, 1977.

      Michael Woods Wagner, San Antonio, for appellant.
    Bart Wulff, Akin, Gump, Hauer & Feld, Dallas, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiff Aleman from an order sustaining defendant Laborers National Pension Fund’s plea of privilege to be sued in Dallas County.

Plaintiff sued defendant in Bexar County alleging she was the widow of Demetrio Aleman; that he died December 3, 1973; that at time of death he was a member of Builders and Construction Union Local 93 and was covered by a policy of insurance therein; that pursuant to the terms of such policy he was eligible for benefits; that deceased or plaintiff received no remuneration although same was requested, to plaintiff’s damage.

Defendant filed its plea of privilege to be sued in Dallas County, the County of its residence.

Plaintiff controverted asserting venue maintainable in Bexar County under Subdivisions 23 and 28, Article 1995 VATS.

Defendant by reply asserted it was not a private corporation and not an insurance company; that it is a “tax exempt pension plan trust created pursuant to Title 26, U.S.C.A. Section 401; that it has 10 trustees; that its principal office is in Dallas County; and that an action against it can only be brought in Dallas County pursuant to Article 7425b — 24 VATS.

The trial court after hearing, sustained defendant’s plea of privilege and ordered the cause transferred to Dallas County.

Plaintiff appeals on one point: “The court erred in holding that the contract herein sued on was not a policy of insurance, and Defendant not an Insurance Company”.

Plaintiff relies only on Subdivision 28 Article 1995 which provides that suits on policies of insurance may be brought in the county where the loss occurred or where the policy holder or beneficiary instituting suit reside.

Subdivision 30, Article 1995 provides “Whenever in any law authorizing or regulating any particular character of action, the venue is expressly prescribed, the suit shall be commenced in the county to which jurisdiction may be so expressly given”.

And Article 7425b-24-B expressly provides that in suits against trusts: “Where there are two or more trustees, then the venue shall be in the county where the principal office of the trust is maintained”.

The evidence is that defendant is not an insurance company; is not a private corporation; but is a pension plan trust under Section 401 of the Internal Revenue Code; that it has 10 trustees; and has its principal office in Dallas, Texas.

Plaintiff’s point is overruled.

AFFIRMED.


author: BISSETT, Justice.

text:
    Marjorie Lee COLLINS et al., Appellants, v. Hattie Mae NEW et al., Appellees.
    No. 1231.
    Court of Civil Appeals of Texas, Corpus Christi.
    Nov. 10, 1977.
    Rehearing Denied Nov. 30, 1977.

      Carl C. Chase, Chase & House, Corpus Christi, for appellants.
    S. E. Dyer, J. M. Burnett, Dyer, Redford, Burnett, Wray & Woolsey, Corpus Christi, for appellees.
   OPINION

BISSETT, Justice.

This is a summary judgment case involving a family dispute. Plaintiff Marjorie Lee Collins and defendant Hattie Mae New are sisters. Their mother, also a plaintiff, is Hattie Taylor Hinnant. Marjorie Lee Collins and her mother, Hattie Taylor Hin-nant filed suit on June 9,1976 to enjoin the other sister, Hattie Mae New, her husband, Henry New, and her son, Roy Henry New, from traveling upon any portion of the land claimed to be owned in fee simple by plaintiffs other than the land covered by a specific easement allegedly executed by the plaintiff Marjorie Lee Collins to the defendant Hattie Mae New. Summary judgment, pursuant to defendants’ motion therefor, was rendered on March 30, 1977 that plaintiffs take nothing by their suit. The plaintiffs have appealed. The defendants urge a cross point concerning the “Bill of Costs” in the trial court. The parties will be referred to either by name or as “plaintiffs” and “defendants,” as they were in the trial court.

By filing the motion for summary judgment in this case, the defendants were charged with showing as a matter of law that plaintiff did not have a cause of action against them. Gaddis v. Smith, 417 S.W.2d 577, 582 (Tex.Sup.1967). Summary judgment should be granted, and if granted should be affirmed, only if the summary judgment record establishes a right thereto as a matter of law. Farley v. Prudential Insurance Company, 480 S.W.2d 176 (Tex.Sup.1972).

The burden of proof is on the movant for summary judgment, and all doubts as to the existence of a genuine issue of a material fact are resolved against him. Parrott v. Garcia, 326 S.W.2d 897 (Tex.Sup.1969). Summary judgments are to be granted only on the merit of the summary judgment evidence, not on default of the movant’s adversary. Swilley v. Hughes, 488 S.W.2d 64 (Tex.Sup.1972).

Plaintiffs alleged in their original petition:

(1) plaintiff Marjorie Lee Collins and the defendant Hattie Mae New are owners of adjacent tracts of land by virtue of devises from Roy Hinnant, Deceased, and deeds from Hattie Taylor Hinnant;
(2) the defendants are entitled “to a right of entrance and egress into Defendants’ property since such properties were acquired by Defendant from a common source with the Plaintiffs;”
(3) in the past, defendants and their “designees” have traveled “across the center of Plaintiffs’ property” in route to defendants’ land which use has been “permissive only”;
(4) difficulties have arisen in connection with defendants’ unauthorized use of the road across the center of plaintiffs’ land;
(5) “plaintiff Marjorie Lee Collins has, by easement conveyance, granted to Defendant Hattie Mae New, owner of that property located generally north of Plaintiff, a thirty (30) foot wide easement, running parallel to the most westerly fence line of Plaintiffs’ ”; and,
(6) “. . . the purpose of this lawsuit is to seek equitable intervention by the Court to determine right of easements over Plaintiffs’ land so that the Defendants can reach property . . .”

The petition was verified. Attached thereto and incorporated therein is an unauthenticated copy of a document, allegedly executed by the plaintiff Marjorie Lee Collins, which purports to convey to the defendant Hattie Mae New a 30-foot right of way across the land claimed by the plaintiffs for the purpose of ingress and egress to the land which plaintiffs say is owned by the defendant.

Defendants, in their original answer, in addition to special exceptions, general and special denials, alleged: plaintiffs have no basis in law or in equity to change the long standing road across the plaintiffs’ claimed property; due to the use theretofore made by defendants of the existing road across the center of said land, plaintiffs are es-topped to now assert that the road should be changed; and, because of conditions existing, it would be impracticable and inequitable to enjoin defendants from using the existing road and to require them to use the 30-foot strip of land covered by the alleged easement as a means of ingress and egress to the other lands in the Hinnant Ranch in which plaintiffs admit that defendants own an interest.

The grounds asserted by defendants in their motion for summary judgment are summarized, as follows:

(1) plaintiffs, “by virtue of the pleadings filed herein and exhibits attached to such pleadings, established that there is no genuine issue as to any material fact,” and that defendants are entitled to a take nothing judgment as a matter of law;
(2) the rights of Marjorie Lee Collins and Hattie Mae New as to that portion of the ranch passing under the Last Will and Testament of Roy Hinnant “are merely those of contingent remaindermen and nothing, more”; and,
(3) since there are no vested remainder-men known at the present time, neither Hattie Taylor Hinnant nor Marjorie Lee Collins acting under Power of Attorney or in her own individual right possesses any power or authority to change, alter or exchange any of the land here involved, or any portion thereof, during the lifetime of said Hattie Taylor Hinnant.

At the time summary judgment was rendered, certified or verified copies of the following documents were on file in the trial court:

(1) The Last Will and Testament of Roy Hinnant, Deceased, the order probating the will, and the issuance of Letters Testamentary to Hattie Taylor Hinnant;
(2) deeds executed by Hattie Taylor Hin-nant, whereby she conveyed her undivided community one-half interest in the land here involved to Marjorie Lee Collins; and,
(3) a power of attorney from Hattie Taylor Hinnant to Marjorie Lee Collins.

Copies of the above documents, together with the admission in plaintiffs’ pleadings that the defendants have a right of ingress and egress across plaintiffs’ claimed land, constitute the summary judgment evidence before the trial court.

Roy Hinnant died testate on August 25, 1965. His will was admitted to probate on September 15,1965, and Hattie Taylor Hin-nant, his surviving wife, qualified as independent executrix of his estate on September 15, 1965. Administration on his estate is still open, and will remain open until at least the date of death of Hattie Taylor Hinnant. Under the decedent’s will, Hattie Taylor Hinnant was given, among other devises, a life estate in the surface of decedent’s community undivided one-half of all lands which made up the Hinnant Ranch. The Commercial Bank of Beeville was appointed testamentary trustee. The testator directed that the interest in the land devised to his wife for life was to be used by her “for farming and grazing cattle thereon, so long as she shall desire to use such lands for either of such purposes.” It was further provided that if she should elect to discontinue using the ranch lands for' such purposes, she “shall” notify the trustee, who shall thereafter “manage and control the surface estate of said land under the terms and provisions of the trust hereinafter provided.” The testator further provided that the trust which he created for his wife’s benefit would terminate at her death, and that the “Trustee shall then divide the trust estate into two shares,” which were designated as “SHARE NO. 1” and “SHARE NO. 2.” The will then provided: SHARE NO. 1 “shall be set apart by my Trustee and delivered to my daughter, HATTIE MAE NEW, and the trust as to the properties comprising SHARE NO. 1 shall terminate”; and SHARE NO. 2 “shall be set apart by my Trustee and delivered to my daughter, MARJORIE LEE COLLINS, and the trust as to the properties comprising SHARE NO. 2 shall terminate.” The Trustee, in connection with the setting apart in sever-alty of SHARE NO. 1 and SHARE NO. 2 to the above-named persons, was specially “authorized and directed to convey to the devisee of SHARE NO. 1 and the devisee of SHARE NO. 2 such easements of ingress and egress as may be necessary or convenient to permit access to the lands comprising SHARE NO. 1 and SHARE NO. 2.” The lands involved in this suit are the same lands designated by Roy Hinnant, Deceased, in his will as “SHARE NO. 2.”

Hattie Taylor Hinnant, by the aforesaid deeds, conveyed all of her community undivided one-half interest in the lands comprising SHARE NO. 2 to the plaintiff Marjorie Lee Collins, subject to a reservation of all minerals on and in the land, and subject also to the following exception, to-wit:

“There is also expressly EXCEPTED from this conveyance, all interests in said lands above described, which were devised to the Trustee under the will of my deceased husband, Roy Hinnant . it being understood that this conveyance does not convey to Grantee, any interests, legal or equitable, to which Grantor is entitled, under and by virtue of the will of Roy Hinnant, Deceased.”

The power of attorney from Hattie Taylor Hinnant to Marjorie Lee Collins, appointed the latter as her agent. With respect to this appeal, the agent was given full power and authority:

“1. To take possession of all [my] real and personal property and estate of every kind and character and wheresoever situated . . . and to manage, control, supervise, improve and repair same, as my attorney-in-fact may deem advisable
* * * * * *
5. To handle my cattle operation in its entirely . . . , and in general, to look after my entire cattle operation in a manner similar to the way it was handled during the lifetime of my husband, Roy Hinnant, Deceased.”

The judgment under attack recites, in part:

“. . . it appearing to the Court . that the identity of the contingent remaindermen and their interest under the Last Will and Testament of Roy Hinnant cannot now be ascertained, for all of which reasons Plaintiffs have no right or standing to be granted the relief sought by them in this suit.
It is accordingly ORDERED, ADJUDGED and DECREED that Plaintiffs take nothing by this suit . . .”

Plaintiffs argue in their brief that the devise of the lands comprising SHARE NO. 2 to Marjorie Lee Collins constituted a vested remainder. Defendants say that the devise was contingent upon Marjorie Lee Collins surviving Hattie Taylor Hinnant and that the devise would not become vested until her death, when the identity of the remaindermen would then become known.

This is a suit for injunctive relief only. It is not an action to construe any provision of the will of Roy Hinnant, Deceased. In determining whether the plaintiffs have legal standing to bring and maintain the action, it is not necessary that we decide in this appeal whether the devise of the lands designated by Roy Hinnant as SHARE NO. 2 created a vested or a contingent remainder in Marjorie Lee Collins. The bases of plaintiffs’ suit are: they, jointly and severally, are the fee owners of the land in question; and, they, jointly and severally, have the sole and exclusive right to the actual present possession of the land involved. Either basis is sufficient in this case to show legal standing to sue for in-junctive relief against a stranger to the title or a person out of possession who is using the land, or a part thereof, in defi-anee of plaintiffs’ desires. The present issues in this case before us can and should be resolved by deciding: first, whether the plaintiffs owned a sufficient present posses-sory interest in the lands comprising SHARE NO. 2, which would entitle them to petition a court for relief against defendants’ alleged use and misuse of the established road across the center of the affected land; and, second, whether a summary judgment was proper under the record before this Court.

Generally, the life tenant is entitled to exclusive possession and control of the property comprising the life estate; the remainderman is not entitled to possession thereof until the life estate terminates. Rae v. Baker, 38 S.W.2d 366, 369 (Tex.Civ. App.—Austin 1931, writ ref’d); Evans v. Graves, 166 S.W.2d 955,959 (Tex.Civ.App.—Dallas 1942, writ ref’d w. o. m.); Hensley v. Conway, 29 S.W.2d 416, 418 (Tex.Civ.App.—Eastland 1930, no writ); 37 Tex.Jur.2d, Life Estates, Remainders, Etc., § 29 (1962); 31 C.J.S. Estates § 38 (1964). Without question, the owner of the fee, absent an agreement creating rights in a third person, is entitled to the exclusive possession and control of the property comprising the fee.

The burden was on the defendants to conclusively show by proper summary judgment evidence that the plaintiffs are not entitled to present exclusive possession of the lands designated as SHARE NO. 2. They failed to meet that burden. It is established by the record that Marjorie Lee Collins owns the fee in an undivided one-half interest in the surface of the lands comprising SHARE NO. 2, and that Hattie Taylor Hinnant owns a life estate in the remaining one-half interest in the surface thereof. Therefore, at all times relevant to this appeal, the two plaintiffs together are entitled to the present actual possession of 100% of the surface of the land involved in this suit. They are entitled to protect that possession by suit when, from their viewpoint, it is threatened or disturbed.

Since the plaintiffs do have legal standing to sue for injunctive relief, we must decide if there is any genuine issue of material fact to be decided. The right of defendants to travel across the lands claimed to be owned in fee by the plaintiffs is undisputed. The location of the route is in dispute. Plaintiffs contend that the defendants must be restricted to a route selected by them (the plaintiffs). Defendants assert that they are entitled to use the route that they were using at the time suit was filed, and that plaintiffs are not entitled to change that route by their unilateral selection of another route.

There is no summary judgment evidence that plaintiffs were not in actual possession of the lands comprising SHARE NO. 2. There is no evidence that Hattie Taylor Hinnant, the life tenant, “elected” to discontinue using the surface of the lands devised to her for farming or grazing purposes. The life estate has not terminated.

Various facts are alleged by both plaintiffs and defendants in support of their claims. After reviewing the record in its entirety, we hold that there are genuine issues of material facts which preclude the rendition of summary judgment. Plaintiffs’ first point is sustained. In view of our holding, is no need for us to consider the remaining points brought forward by the plaintiffs. The cross point is now moot.

The judgment of the trial court is REVERSED and the cause is REMANDED to the trial court for a trial on the merits.


author: NYE, Chief Justice.

text:
    Mason R. DIXON et ux., Appellants, v. Donna SHIRLEY, Individually, et al., Appellees.
    No. 1217.
    Court of Civil Appeals of Texas, Corpus Christi.
    Nov. 10, 1977.
    Rehearing Denied Dec. 8, 1977.

      Richard J. Hatch, Mahoney, Shaffer, Hatch & Layton, Corpus Christi, for appellants.
    Lev Hunt, Kleberg, Mobley, Lockett & Weil, Stonewall Van Wie, III, Corpus Christi, John A. Waller, Austin, for appel-lees.
   OPINION

NYE, Chief Justice.

This is a summary judgment case. Appellants, Mason Dixon and his wife, brought suit against: Donna Shirley, individually and d/b/a Donna Shirley Realty Company; Glenn Morgan, a real estate agent; and Willard Cobb and his wife, as landowners, for fraudulent misrepresentation as to the amount of land owned by the Cobbs and purchased by the Dixons. In addition, the Dixons sued the U. S. Life Title Company, who issued the title policy on the land, for negligence in failing to notify them of the alleged discrepancies between the amount of land described in the real estate contract and the title policy and deed. All the defendants filed motions for summary judgment which were granted by the trial court. The Dixons have perfected their appeal to this Court.

According to the summary judgment evidence, in February of 1973, Willard Cobb, the landowner, entered into a listing agreement with Holiday Realtors (which subsequently become Donna Shirley Realty Company) to list for sale certain real property owned by the Cobbs. The listing agreement described the property as: “Addition Flour Bluff Estates # 1, lot 2, 3, N 30' of 4, and 16, Block E.” The listing price was $35,500.00. The listing agent was Glenn Morgan. Dixon was a homebuilder in the Flour Bluff area. He was searching for some property in this particular area upon which to construct some “mini-storage” units. Upon seeing the “For Sale” sign, which was erected on the south one-half of lot 16 of the above mentioned property, Dixon made immediate inquiry with the real estate company. Dixon contacted Morgan, the real estate agent, who represented to him that the property in question included all of lots 2, 3 and 16 and the north 30 feet of lot 4. Morgan furnished Dixon a map which also outlined the property that was offered for sale exactly as represented by Morgan. All of this culminated in a real estate contract of sale (hereinafter called the “contract”) between the Dixons and the Cobbs. The contract described the property the same as it was in the listing agreement.

After the parties had executed the contract, the Dixons made arrangements with a savings and loan company to borrow $105,000.00 to build the “mini-storage” buildings. In the meantime, the contract was presented to the title company which prepared or caused to be prepared a deed and title policy covering only the north 30 feet of lot 16 instead of all of lot 16. At the time the parties met at the title company to close the sale, the Dixons signed the necessary documents without reading them fully. The Dixons alleged, and the summary judgment shows, that they presented themselves to the title company and executed all the papers represented by the title company as necessary for the closing of the transaction pursuant to the terms of the contract. The Dixons stated that they were told by the agents of the title company that the papers were drawn in accordance with the terms of the written contract.

The Dixons then began clearing and leveling the land for construction. About two weeks later, after the clearing had been completed, the Dixons were informed by a Mr. and Mrs. Robert Welch that they owned the southern portion of lot 16. Dixon immediately called Donna Shirley of the real estate firm informing her of the allegations made by Welch. Shirley advised Dixon that Welch was mistaken, that all of the property in lot 16 was included in the transaction and that the title policy would clearly reflect the same. Shirley suggested that Dixon check his title policy, which he did, and discovered that the southern portion of lot 16 was not covered in the policy. This reduced the size of the Dixons’ purchase by about 20,000 square feet or 29% of the total purchase. The appellants immediately brought suit against these appellees.

There are two main questions presented by this appeal. The first is whether or not there is a fact issue as to the alleged misrepresentation of Donna Shirley, Glenn Morgan and Mr. and Mrs. Cobb. The second is whether a title insurance company cannot be held liable for its negligence in closing a real estate transaction as a matter of law.

In passing it should be noted that the Dixons complain of the action of the trial court in granting all of the appellees’ motions for summary judgment based on the failure of Dixons to plead a cause of action. We agree, if applicable, that such action by a trial court would be error. In Texas Department of Corrections v. Herring, 513 S.W.2d 6 (Tex.Sup.1974) it was held to be error to grant a motion for summary judgment for failure to plead a cause of action without first providing the plaintiff with an opportunity to amend his pleadings. However, all of the appellees’ motions for summary judgment state alternative grounds for summary judgment. The judgment itself does not state any specific grounds for the granting of the motions.

Clearly a fact question exists as to exactly how much land the Dixons bought from the Cobbs. The real estate contract used by the parties prior to closing and offered as summary judgment evidence contain the following description” “Lots 2, 3, N. 30' of 4 and 16, Block E, Flour Bluff Estates #1.” This description is at best ambiguous, in that it could mean either the north 30' of lot 4 alone, or the north 30' of lot 4 and the north 30' of lot 16. This ambiguity by itself creates a material fact issue as to what the Cobbs, Shirley and Morgan intended to convey or sell to the Dixons and what the Dixons intended to purchase. Where there is a question relating to the true meaning of an ambiguous instrument, a summary judgment is improper. Chapa v. Benavides Mill & Gin Company, 420 S.W.2d 464 (Tex.Civ.App.—San Antonio 1967, writ ref’d n. r. e.). The granting of the motions for summary judgment for Donna Shirley, Glenn Morgan and the Cobbs was improper and that portion of the judgment must be reversed and the cause remanded for trial.

Additionally, a genuine fact issue exists as to whether or not a false or misleading statement was made by the Cobbs, Shirley and/or Morgan to the Dixons. In their depositions, both Morgan and Shirley claim they did not mislead or misrepresent any fact to the Dixons as to the amount of land involved. To the contrary, Dixon, in his deposition, states that the Cobbs, Shirley and Morgan all told him that he was purchasing all of lot 16 in addition to the other property. The evidence showed that the real estate company erected the “For Sale” sign on the southern half of lot 16 (the very property belonging to the Welchs). In addition, the real estate agent furnished the Dixons a map which showed all of lots 2, 3 and 16 and only the north half of lot 4 as being the subject property. The landowners executed the contract and listing agreement which described the property as all of lot 16 according to the appellants, even though the deed, which the landowners signed, described only the north one-half of lot 16.

The Dixons have plead and there is some summary judgment evidence as to each element of fraud, i. e.: a false, material representation; that the speaker knew or should have known it to be false; that it was made with the intent it be acted upon; and it was relied on by the complaining party; thereby causing injury. Stone v. Lawyers Title Ins. Corp., 554 S.W.2d 183 (Tex.Sup.1977).

The well-established rule is that a summary judgment should be granted only if the summary judgment record establishes a right thereto as a matter of law. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.Sup.1970). This right has not been established in this case. In summary judgment cases, we must accept as true all of the evidence of the parties opposing the motion for summary judgment which tends to support such party’s contentions. Rule 166-A, T.R.C.P. If we accept as true Mason Dixon’s deposition testimony, as we must herein, we find material fact issues of fraud as to Shirley, Morgan and the Cobbs which was relied on by the Dixons to their damage. Appellants’ points one, two and three are sustained.

The remaining question to be decided is whether a title company can be liable for its negligence in closing a real estate transaction. Appellee title company contends that it issued a policy of title insurance on that part of lot 16 that belonged to the sellers, Cobbs. In doing so, it allegedly fulfilled its only duty; therefore, as a matter of law, it is not liable to the Dixons. We do not agree.

We believe it is necessary to again set forth some of the familiar rules relating to summary judgments. The burden of proof is on the movant and all doubts as to the existence of a genuine issue of material fact are resolved against him. All conflicts in the evidence are disregarded and the evidence which tends to support the position of the party opposing the motion is taken as true and such evidence is viewed in the light most favorable to the party opposing the motion. Great American R. Ins. Co. v. San Antonio PL Sup. Co., 391 S.W.2d 41 (Tex.Sup.1965). With these guidelines we review the summary judgment evidence.

The appellants alleged that the contract which was delivered to the title company required the sellers, Mr. and Mrs. Cobb, to furnish them with a title policy to be issued by the title company, in the usual and customary form, showing good title to all of lot 16. In addition, appellants alleged that the title company advised them that the purchase and sale were ready for closing and that they should present themselves to the title company for the closing of the transaction. The contract provided that the landowners agreed “upon approval” of title insurance by the title company to deliver a general warranty deed drawn in accordance with the provisions of the contract. The Dixons did not read the instruments that were presented to them for signing but were assured by the agents of the title company that the papers that were drawn, were drawn in accordance with the terms of the contract.

The evidence shows that as a matter of fact the deed and the title policy were not drawn in accordance with the contract between the parties. The title company discovered, in the process of title examination, that the landowners owned the north one-half of lot 16, but they did not own all of lot 16 nor did they own only the north 30 feet of lot 16, which would be the only two interpretations of the ambiguous language of the contract. So the title company prepared the deed or had an attorney prepare a deed in accordance with their instructions covering the north half of lot 16. The title company did not advise the landowners or the purchasers that their policy was not in conformity with either interpretations of the contract, or that the title policy actually covered only what the title company found to be the true title in the landowners. The landowners, as well as the purchasers, the Dixons, contended in effect that the title company’s failure to advise the parties of these facts constituted acts of negligence which proximately caused the damages to the Dixons. If the title company had made inquiry of the landowners or had advised either party prior to closing, the parties could have acted to obtain rescission of the contract based on either mutual mistake or unilateral mistake, and therefore the present damages would not have been suffered by the Dixons.

We recognize that it has been held generally that a title insurance company has no duty to examine title and to apprise the insured of any defects found therein. Prendergast v. Southern Title Guaranty Company, 454 S.W.2d 803 (Tex.Civ.App.—Houston [14th Dist.] 1970, writ ref’d n. r. e.); Wolff v. Commercial Standard Insurance Company, 345 S.W.2d 565 (Tex.Civ.App.—Houston 1961, writ ref’d n. r. e.). However, it was held in Hexter Title & Abstract Co. v. Grievance Committee, 142 Tex. 506, 179 S.W.2d 946, 952 (1944) that:

“It is not the business of the title insurance company to create a good title in an applicant for insurance by preparing the necessary conveyances, nor to cure defects in an existing title by securing releases or prosecuting suits to remove clouds from title, merely for the purpose of putting the title in condition to be insured. The title company must accept the title and insure it as it is, or reject it. It may examine the title, point out the defects, and specify the requirements necessary to meet its demands, but it is the business of the applicant for the insurance to cure the defects.” (emphasis added)

The title company in this case did not point out the defects. It did not insure the title called for in the contract as it was described, nor did the title company reject it. The contract called for the title company to issue a title policy for all of lot 16. This it did not do. The essence of the Dixon’s suit was recovery from the title company for its alleged negligence in failing to apprise them of the difference of the land described in the real estate contract and the land insured by the title company.

When the title company discovered that the Cobbs owned only one-half of lot 16 and that this ownership did not coincide with the contract between the parties, the company had the duty to notify the parties that they could not insure the property described in the contract and/or that they were rejecting it for this reason. Instead, the title company prepared or caused to be prepared a warranty deed for property not called for in the contract and then prepared and issued a title policy on a “new contract” and did not inform the parties of this action. Additionally, the title company’s employees told the appellants that the title policy conformed with the contract. If such summary judgment facts were found to be true in a trial on the merits, the title company would be responsible, at least in part, for the damages caused the Dixons.

A title company cannot close its eyes to known irregularities or discrepancies between its title policy and the order for the title policy (which in this case was a real estate contract). The title company cannot intentionally or negligently permit parties to a contract to close a real estate transaction at its place of business, at its invitation, knowing all along that the contract for sale called for different property than that set forth in its policy which it issued without full disclosure. The title company invited the parties to close the transaction at its office. Its agents assured the Dixons that the instrument prepared and the title of insurance covered the subject contract. The entire problem of the Dixons’ damages would have been avoided by the title company speaking at a time when its duty to speak was clear. We hold that this summary judgment evidence raises issues of fact that must be tried by the trier of facts.

We have carefully reviewed all of the title company’s cases cited to us. Each authority for “the no duty contentions of the title company” is clearly distinguishable by the facts in each such case. U. S. Life Title had the burden of establishing that no material fact issue existed and that they were entitled to judgment as a matter of law. This they did not do. Mitchell v. Baker Hotel of Dallas, Inc., 528 S.W.2d 577 (Tex.Sup.1975); Swilley v. Hughes, 488 S.W.2d 64 (Tex.Sup.1972). The granting of the summary judgment in favor of U. S. Life Title was error. Appellants’ fourth point of error is sustained. The judgment of the trial court is reversed and the cause is remanded for trial on the merits.

REVERSED and REMANDED.

      . This is the second time that this case has been before this Court. In Dixon v. Shirley, 531 S.W.2d 386 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n. r. e.) we held that a previously granted summary judgment in this cause failed to dispose of all the parties and was therefore interlocutory and not appealable. This infirmity has been corrected in the case at bar.


author: O’QUINN, Justice.

text:
    Thomas MACEO, Appellant, v. George DOIG, Appellee.
    No. 12584.
    Court of Civil Appeals of Texas, Austin.
    Nov. 16, 1977.
    Rehearing Denied Dec. 7, 1977.

      Alfred E. Glenn, Austin, for appellant.
    Philip C. Friday, Jr., Susan M. Kelley, Friday & Kazen, P.C., Austin, for appellee.
   O’QUINN, Justice.

George Doig brought this lawsuit in county court at law in Travis County against Thomas Maceo to recover on a promissory note in the sum of $830, plus interest and attorney’s fees. Maceo’s answer ultimately filed set up general .denial and plea in bar invoking the four-year statute of limitations.

It is undisputed that suit was filed after expiration of four years from due date of the note, and the principal issue is whether the oral renewal and extension pleaded by Doig and proof made under the plea are sufficient to support the trial court’s judgment against Maceo in the amount of $1,678.10.

Maceo has appealed and brings two points of error under which he contends that the evidence was insufficient to support a finding of consideration for an agreement to renew and extend the note and that the court erred in concluding the cause of action was not barred by limitations.

We will overrule the points of error and affirm judgment of the trial court.

Maceo first executed a note payable to Doig on August 12, 1968, in the principal sum of $719, bearing interest at six percent per year. Nothing was paid on the note, and thereafter, on August 9, 1971, Maceo executed a new note in the sum of $830, which included the unpaid principal sum of the earlier note, plus interest, and bore interest at seven percent per annum. Maturity of the note was fixed at August 31,1971. Maceo paid $75 on the note the following year, on September 26, 1972.

Nothing more was paid on the note, and in June of 1975 Doig renewed repeated prior requests for payment, at which time Maceo asked Doig for additional time in which to pay, and Doig agreed to extension of time when Maceo said he would pay “within the few months, in the summer, and get back to” Doig with payment. The following September, having received no payment, Doig called Maceo by telephone to make demand for the note. Someone, whose voice sounded to Doig like the voice of Maceo, answered but promptly switched to a recording device. Doig stated to the recording device that he would employ an attorney to act in his behalf regarding the note. Doig filed suit on January 27, 1976.

Judgment by default for Doig was rendered on March 15, 1976, after Maceo, although served by process, failed to file an answer and did not appear in person or by attorney. Later an attorney for Maceo on March 23 filed motion to set aside the judgment, and the judgment subsequently was set aside by order entered May 5, 1976. Thereafter trial was held in September of 1976 before the court without aid of a jury, at which time Maceo appeared by attorney but was not present in person. It is from the trial court’s judgment entered September 15 that this appeal has been taken.

The rule is firmly established in Texas that the giving of a new promise for a previous indebtedness generally is treated as a new contract, and the new agreement creates new evidence of the existing indebtedness. Schwab v. Schlumberger Well Surveying Corporation, 145 Tex. 379, 198 S.W.2d 79 (1946). An oral contract of extension on a promissory note is valid and binding, and the new contract is supported by valid consideration if, as in this case, the holder of the note gives up his right to sue for a period of time while retaining his contractual right to interest during the extended time and the maker of the note secures the benefit of the holder’s forbearance. Benson v. Phipps, 87 Tex. 578, 29 S.W. 1061 (1895); McNeill v. Simpson, 39 S.W.2d 835 (Tex.Comm’n App.1931), holding approved, affirming 24 S.W.2d 485, 488 (Tex.Civ.App.).

The trial court did not file findings of fact and conclusions of law, and none was requested. Judgment of the court must be affirmed if it can be upheld on any legal theory that finds support in the evidence. Seaman v. Seaman, 425 S.W.2d 339 (Tex.Sup.1968); Longhorn Flying Club, Inc. v. Dragoo, 464 S.W.2d 189 (Tex.Civ.App. Austin 1971, writ ref’d n. r. e.). Validity of the judgment must be tested on the assumption that the trial court found every disputed fact in such a way as to support the judgment rendered. Rolison v. Puckett, 145 Tex. 366, 198 S.W.2d 74 (1946); Longhorn Flying Club, Inc. v. Dragoo, supra.

Maceo was not present at the trial, and his evidence consisted only of his answers to written interrogatories which were introduced at the trial. Maceo could remember his name and address and that he was born April 3,1941, but with respect to making of the note his testimony was he could “. not remember executing the note but I recognize the copy of my signature.” In response to questions as to consideration or benefit received for execution of the note and whether he was justly indebted to Doig at the time of making the note, Maceo answered, “I cannot remember the transaction.” Finally, in answer to inquiry as to whether after maturity of the note he and Doig had “. . . any conversations or exchanged any correspondence concerning your payment of said note,” Maceo said, “I cannot remember any such conversations or correspondence. ”

It is undisputed that Maceo was obligated to Doig in 1968 and 1971 for money owed in connection with sale of a residence in Austin, and that the note executed August 9, 1971, was given for the debt. The note matured August 31,1971, at which time the statute of limitations started running. When the extension agreement was made in June of 1975, the limitation period had not expired by two or three months. The rule governing the new contract extending time of payment of a promissory note is stated in McNeill v. Simpson, supra, in this language:

“Where the parties to a promissory note, which is past due but is unbarred by limitation, and which by its terms bears interest until paid, mutually agree to an extension of time of payment of the note to a future date, a new contract, based upon a new consideration deemed valuable in law, arises between the parties.” (39 S.W.2d 835, col. 2).

The court continued with description of the consideration in promises flowing from each party, and concluded, “Each of these new promises constitutes the consideration for the other, and a binding contract, embodying the terms of the note, as modified by the new agreement, results. Benson v. Phipps, 87 Tex. 578, 29 S.W. 1061, 47 Am.St. Rep. 128.”

Maceo on appeal contends that because Doig delayed bringing suit until January of the year following Maceo’s failure to pay the debt at the end of the summer of 1975, the suit was barred by the four-year statute of limitations. “Limitation does not commence to run against an action to enforce the debtor’s new promise to pay, until the time for performance of the new promise arrives.” McNeill v. Simpson, supra, and cases cited. (39 S.W.2d 836, col. 1). See 37 Tex.Jur.2d Limitation of Actions, sec. 191 (1962).

After Maceo’s last failure to pay, in accord with the new parol contract, a new statute of limitations was applicable, and the action would not be barred until two years later. Zuehlke v. Irvin, 32 S.W.2d 868 (Tex.Civ.App. Austin 1930, no writ); McNeill v. Simpson, 24 S.W.2d 485, 488 (Tex.Civ.App. Waco 1929), affirmed 39 S.W.2d 835 (Tex.Com.App.); First State Bank v. Bowman, 203 S.W. 75 (Tex.Civ.App. Texarkana 1918, no writ).

Maceo further complains on appeal that the period of time for extension agreed to in June of 1975 was too vague and indefinite to be binding on him. Maceo promised Doig in June that he would get the money within a few months, “in the summer,” and get back to Doig with the money. At the end of the summer, Maceo had failed to pay, and Doig gave notice that he intended to effect collection by an attorney. The general rule is that even if no certain date to which payment has been postponed is expressed, certainty suffices if the event is certain to which postponement is granted. Martin v. Fannin Bank, 389 S.W.2d 724, 726 (Tex.Civ.App. Houston 1965, no writ) and cases cited.

The Supreme Court held in 1910 that a contract extended “until late in the fall” provided a time sufficiently certain to submit issues to a jury upon which to make findings. Hancock v. Stacy, 103 Tex. 219, 125 S.W. 884, 888 (1910). This Court decided the time of postponed payment was sufficiently definite where time was extended on a note due December 1, 1897, “until the fall of the next year,” and that the extension was “at least to the 1st day of September” of 1898. Robinson v. Brown, 57 S.W. 83, 84 (Tex.Civ.App. Austin 1900, no writ).

We hold that the trial court correctly found that the evidence supported a valid and binding contract of extension of the time for payment of the promissory note and that the suit brought for collection of the debt was not barred by limitations.

Judgment of the trial court is in all things affirmed.


author: SHANNON, Justice.

text:
    Carlos HERNANDEZ et al., Appellants, v. HOUSTON INDEPENDENT SCHOOL DISTRICT et al., Appellees.
    No. 12650.
    Court of Civil Appeals of Texas, Austin.
    Nov. 16, 1977.
    Rehearing Denied Dec. 7, 1977.

      Peter D. Williamson, Houston, for appellants.
    Kelly Freís, Bracewell & Patterson, Houston, for appellee Houston Independent School Dist.
    John L. Hill, Atty. Gen., Suzan Cardwell,, Asst. Atty. Gen., Austin, for appellees Texas Ed. Agency and State of Tex.
   SHANNON, Justice.

This appeal concerns Tex.Educ.Code Ann. § 21.031 (1975), which provides, in part, for a tuition-free public school education for children who are either citizens of the United States or “legally admitted aliens.” The issue is whether the enforcement of § 21.-031 by the school district, as to these appellants, constituted a violation of the due process and equal protection clauses of the Constitutions of the United States and of the State of Texas. Because § 21.031 is constitutional, we will affirm the judgment of the district court of Travis County.

Appellants are several children who live in the Houston Independent School District and who admittedly “. . . are all citizens of Mexico and lack any documentation to support the legality of their presence in the United States . . . ” Appellees are Houston Independent School District, the Texas Education Agency, and the State of Texas.

Because the minor appellants were not citizens of the United States or “legally admitted aliens,” the school district denied appellants’ admission tuition-free. The school district, however, did offer to admit appellants upon a monthly tuition basis.

After they had unsuccessfully exhausted their administrative remedies, appellants filed an administrative appeal in the district court of Travis County. In their trial petition appellants pleaded that they were “. . . undocumented aliens from Mexico.” Appellants pleaded further that they “. . . are neither citizens of the United States or legally admitted aliens . . . ”
As basis for their suit, appellants pleaded that § 21.031 was unconstitutional and “. . . contrary to the equal protection and due process clauses of the Constitutions of the United States and of the State of Texas, in that they [appellants] are denied free public education solely on the basis of alienage.” By way of relief, appellants sought, among other things, an order from the district court requiring appellees to permit all “. . '. children between ages 5 and 18, who reside in the School District with a parent or guardian having lawful control of the child, to enroll in a school, free of cost.”

Both appellants and appellees filed motions for summary judgment. The court entered judgment affirming the order of the State Board of Education and decreeing that § 21.031 was constitutional.

Appellants important point of error is that § 21.031 is a violation of appellants’ right to equal protection under the law. The equal protection clause applies to lawfully admitted aliens, Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971), but the Supreme Court of the United States has not addressed the issue of whether illegal aliens are afforded the protection of the equal protection clause. Holley v. Lavine, 529 F.2d 1294 (2d Cir.), cert. denied, 426 U.S. 954, 96 S.Ct. 3181, 49 L.Ed.2d 1193 (1976). Other cases, however, indicate that the equal protection clause applies, in some circumstances, to aliens whose presence in the United States is illegal. Bolanos v. Kiley, 509 F.2d 1023 (2d Cir. 1975), see Commercial Standard Fire and Marine Co. v. Galindo, 484 S.W.2d 635 (Tex.Civ.App.1972, writ ref’d n. r. e.). For purposes of this opinion, we will assume that the equal protection clause applies to appellants, as aliens illegally present in the United States. Even making that assumption, we are of the opinion that § 21.031 did not operate to deny equal protection of the laws to appellants. The reasons for our opinion follow.

In an equal protection of the law analysis, the reviewing court, of necessity, must recognize the applicable standard of judicial scrutiny. If the questioned statute infringes upon a “fundamental right” or creates an inherently “suspect classification,” the statute will be subjected to strict judicial scrutiny. Such scrutiny requires the state to establish a compelling interest in its enactment. To discharge such a burden the state must demonstrate that its purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is necessary to the accomplishment of its purpose. See cases listed in Norwick v. Nyquist, 417 F.Supp. 913, 917 (S.D.N.Y.1976).

On the other hand, if the statute does not collide with a fundamental right or create a suspect classification, the statute is accorded a presumption of constitutionality. The presumption may not be disturbed unless the enactment rests upon grounds wholly irrelevant to the achievement of a legitimate state objective. Norwick v. Nyquist, supra.

A tuition-free education is not a “fundamental right” guaranteed by the Constitution of the United States. San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). Therefore, the denial of a free education to appellants is not a denial of a “fundamental right" whereby § 21.031 would be subjected to “strict judicial scrutiny.”

Classifications based upon alienage per se are suspect and are, therefore, subject to strict judicial scrutiny. Graham v. Richardson, supra. Graham and like cases, however, have examined only classifications of aliens lawfully residing in the United States. Those cases, then, are not authority for the premise that illegal aliens comprise a suspect classification subject to strict scrutiny. We have found no precedent to that effect.

It is true that classifications based upon unalterable traits as race and lineage are inherently suspect, Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972), but an examination of § 21.031 shows that its classification is not concerned with race or national origin. Section 21.031 does not deny a tuition-free education to alien children in that the statute specifically provides that children of legally admitted aliens may attend classes free of charge. The children who are required to pay tuition are those who are residing in this country outside the law. The classification of the statute does not deal with alienage, but instead with a class based upon residence within the United States in violation of the law. It should be observed, also, that the status of an illegal alien is hardly an unalterable or unchangeable one.

No one would argue that the state is constitutionally obligated to provide a tuition-free education to foreign children living abroad. The fact that a child leaves his country and covertly enters the state without complying with the immigration laws, should not somehow create a state responsibility to provide him with a free education. The child should have no greater rights to a free education, due to his unlawful presence, than those rights he would have had if he had not come to this country.

Section 21.031 bears a rational relationship to a legitimate state purpose. Public education is a social and economic function of the states. The Fourteenth Amendment gives the federal government no power to impose upon the states its view of what constitutes wise economic or social policy. Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). The complexity of the problems of financing and managing a statewide public school system suggests there may be more than one constitutionally permissible method of solving them and that within the limits of rationality the legislature’s effort to solve those problems should be entitled to respect. San Antonio Independent School District v. Rodriguez, supra.

Indisputably, there is limited revenue available for educational purposes. By the enactment of § 21.031 the legislature determined that those funds are to be used to educate citizens and legally admitted aliens who reside in Texas. Section 21.031 does not deprive those who are unlawfully residing in Texas of any bounty to which they are entitled, but instead the law helps insure that those who are citizens and those who are legally admitted will have access to a certain quality of education.

There are perhaps as many as five thousand illegal alien children residing in the Houston school district. The testimony was that it is more expensive to educate such children than other children. In that connection, the evidence was that if the illegal alien children were permitted to attend school tuition-free, the added cost to the Houston school system could be as much as $8,350,000 each year.

If the increased financial burden of providing a tuition-free education for illegal alien children should be placed upon the Houston Independent School District, the revenues to offset the cost could not be obtained without a vote by the school patrons to raise the assessment ratio. In such event, and if the patrons did not vote to increase the assessment ratio, the result would be the reduction of existing services the school system provides for children who are citizens and legally admitted aliens.

Appellants’ other contention is that § 21.031 denies them due process of law. It is true that the Fourteenth Amendment protects all aliens, legal and illegal, from deprivation of life, liberty, or property without due process of law. Mathews v. Diaz, 426 U.S. 67, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976). It is equally true that the denial of a tuition-free education is not a denial of life, liberty, or property. The fact that all aliens enjoy the protection of procedural due process does not lead to the further conclusion that all aliens are entitled to enjoy all the substantive rights of citizenship or, indeed, to the conclusion that illegal aliens must be placed in a classification with legally admitted aliens. See Mathews v. Diaz, supra.

In particular, the fact that the state has provided tuition-free education for citizens and legally admitted aliens does not require the state to provide free schooling to aliens residing in the state without the law. “Neither the overnight visitor, the unfriendly agent of a hostile foreign power, the resident diplomat, nor the illegal entrant, can advance even a colorable constitutional claim to a share in the bounty that a conscientious sovereign makes available to its own citizens and some of its guests.” Mathews v. Diaz, supra, at 80, 96 S.Ct. at 1891. The determination to share that bounty, in this instance tuition-free education, may take into account the character of the relationship between the alien and this country.

Appellants have other points of error attacking § 21.031 on other constitutional grounds. Those points of error will not be considered since the grounds for those points were not pleaded and were thereby waived. It is settled that a litigant by his act, or omission, may waive constitutional rights. Michel v. State of Louisiana, 350 U.S. 91, 76 S.Ct. 158, 100 L.Ed. 83 (1955); Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834 (1944).

The judgment is affirmed.

      . An amicus curiae brief directs our attention to findings of fact and conclusions of law filed by the United States District Court for the Eastern District of Texas, Tyler division. J. and R. Doe v. James Plyler, Civil Action No. TY-77-261-CA. The findings and conclusions were filed in connection with a temporary in-junctive order entered by that court against the officials of the Tyler Independent School District requiring those officials to admit to school tuition-free certain alien children unlawfully residing in the Tyler school district. In conclusion number five the Tyler court was of the opinion that a “heightened scrutiny” as to illegal aliens “is more appropriate.” So far as we know there has been no opinion written or published in the cause.
      The findings and conclusions by the Tyler court were filed in a proceeding for a temporary injunction. Those findings and conclusions are not even law of the case in the hearing on the merits in that cause. Berrigan v. Sigler, 162 U.S.App.D.C. 378, 499 F.2d 514 (1974); Nader v. Volpe, 151 U.S.App.D.C. 90, 466 F.2d 261 (1972). Further, even if the findings and conclusions were to be regarded as an opinion of the court, an unreported and unpublished opinion of a United.States district court is of questionable precedential value in determining how the Supreme Court of the United States would decide the constitutional issues presented by § 21.031. State Farm Mut. Auto. Ins. Co. v. Travelers Ind. Co., 433 F.2d 311 (10th Cir. 1970).


author: COULSON, Justice.

text:
    Alicia Alvara BRINKMAN, Appellant, v. Samuel David BRINKMAN, Appellee.
    No. 1629.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Nov. 16, 1977.
    Rehearing Denied Dec. 7, 1977.

      James M. York, Houston, for appellant.
    J. Roger Chism, Gallman, Bakke & Chism, Houston, for appellee.
   COULSON, Justice.

This is an appeal from a judgment granting a divorce to Samuel David Brinkman and Alicia Alvara Brinkman, and appointing Mr. Brinkman managing conservator of the couple’s infant child. Mrs. Brinkman brings three points of error attacking that appointment. We affirm.

In her first point of error Mrs. Brinkman asserts that there is no evidence to support the jury’s finding that it would be in the best interests of the child to appoint Mr. Brinkman as managing conservator. This point, as urged, does not argue that there was no evidence that Mr. Brinkman was a fit parent or that he would care for and love the child, but instead that the evidence offered to discredit Mrs. Brinkman wholly failed since it related solely to a period ten months before the trial and did not bear on her present ability to care for the child.

The purpose of a conservatorship proceeding is to determine which of the contesting persons is most able to fulfill the best interests of the child. The proceeding should not be, although it often is, a vehicle for vengeance, recrimination, and reproach. Mr. Brinkman’s burden in this case was to ingratiate himself, to prove that he was more able to care for the child. It was not his burden to discredit his former wife or to prove that she was less able to care for the child. Obviously evidence of a person’s shortcomings and deficiencies is relevant to the issue of conservatorship and it is unlikely that a trial could be held in which these were not brought out, but there was no requirement that Mr. Brinkman discredit Mrs. Brinkman.

We hold that there was evidence that the best interests of the child would be served by appointing Mr. Brinkman as managing conservator; several witnesses testified to the effect that he was a better parent and took better care of the child.

Point of error one is overruled.

In her second point of error, Mrs. Brinkman attacks the admission of sixteen photographs into evidence, arguing that they were not properly proven or sponsored. Specifically, she argues that they were admitted under the sponsorship of Mr. Brink-man, an interested witness. We are aware of no requirement that photographs must be sponsored by a disinterested witness, nor has any authority for that proposition been cited to us. Instead, the rule is that the admission of photographs is a matter for trial court discretion. Texas Employers Ins. Ass’n v. Agan, 252 S.W.2d 743 (Tex.Civ. App.—Eastland 1952, writ ref’d). We find no abuse of that discretion here.

Point of error two is overruled.

In her final point of error, Mrs. Brinkman attacks the trial court’s refusal to instruct the jury that a witness was not an expert. This point is also overruled, since we find that any possible prejudice was immediately cured by the witness’s own statement that he was not an expert.

Affirmed.


author: J. CURTISS BROWN, Chief Justice.

text:
    Shelton Joseph GREEN, Appellant, v. HOUSTON BELT & TERMINAL RAILWAY CO., Appellee.
    No. 1704.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Nov. 16, 1977.
    Max Garrett, Garrett & Letbetter, George Payne, Garrett & Letbetter, Houston, for appellant.

      William W. Vernon, Fulbright & Jawor-ski, Houston, for appellee.
   J. CURTISS BROWN, Chief Justice.

This is an appeal from a judgment granted the defendant in a Federal Employers’ Liability Act (FELA) suit for personal injuries.

The appellant, Shelton Joseph Green (Green) was employed by the appellee, Houston Belt & Terminal Railway Company (Houston Belt), as a field man on a railroad switching crew. In the early morning hours of March 19, 1975, Green was engaged in coupling railroad cars to form a train on Track 13 in Houston Belt’s railroad yard. There was a clearance of approximately three feet between the cars that he was coupling and cars on an adjacent railroad track. When Green finished, he signaled for the train to move out. In accordance with yard rules, Green mounted the side of the last car in the train in order to ride out of Track 13. Green claims that, while riding out of Track 13, he was struck by a piece of metal protruding from a stationary boxcar on the adjacent track and knocked to the ground. Green sustained severe personal injuries. He sued Houston Belt under the FELA. Green appeals from a verdict and judgment in favor of Houston Belt.

In his four points of error, Green complains of the failure of the trial court to grant his motion for new trial. He argues that he is entitled to a new trial because the court improperly excluded certain testimony by expert witnesses. The expert testimony excluded was that of Houston Belt employees, to the effect that the railroad car from which the metal bar extended was an unsafe piece of equipment, and that the area between the two railroad tracks was an unsafe place in which to work.

Special issue number one inquired of the jury whether Houston Belt failed to furnish Green “with a reasonably safe place in which to work or . with reasonably safe equipment on or near which to work.” Green sought to have the experts testify, therefore, as to their opinions on an ultimate factual issue in the case. We agree with Green that the trial court properly could have admitted the expert testimony regarding an ultimate factual issue in the case. McCrory’s Stores Corporation v. Murphy, 164 S.W.2d 735 (Tex.Civ.App.—Fort Worth 1942, writ ref’d w. o. m.).

A trial court is endowed with broad discretion, however, in deciding whether to admit expert opinion testimony regarding factual conclusions. Burns v. Bridge Engineering Corporation, 465 S.W.2d 427 (Tex.Civ.App.—Houston [14th Dist.] 1971, writ ref’d n. r. e.). Although the expert witnesses were not allowed to state their opinions regarding ultimate factual issues at trial, they were allowed to testify to the facts upon which those opinions were based. The jury was as well qualified to form an opinion regarding the ultimate factual issues as were the expert witnesses. Expert testimony in the form of opinions regarding those ultimate factual issues would have been superfluous. The trial court did not abuse its discretion in refusing to admit the testimony. Missouri Pacific Railroad Co. v. Ramirez, 326 S.W.2d 50 (Tex.Civ.App.—Waco 1959, writ ref’d n. r. e.); see Hopkins v. State, 480 S.W.2d 212, 218-20 (Tex.Cr.App.1972).

Appellant’s points of error having been fully considered and overruled, the judgment of the trial court is hereby affirmed.

Affirmed.


author: CADENA, Chief Justice.

text:
    Donald B. MILLER, Appellant, v. HEBBRONVILLE AUCTION AND COMMISSION COMPANY, Appellee.
    No. 15789.
    Court of Civil Appeals of Texas, San Antonio.
    Nov. 16, 1977.

      Robert H. Kern, III, Rankin & Kern, McAllen, for appellant.
    Clyde L. Wright, Jr., Alice, for appellee.
   CADENA, Chief Justice.

Plaintiff, Donald B. Miller, appeals from an order of the District Court of Jim Wells County sustaining the plea of privilege of Hebbronville Auction and Commission Company, one of two defendants below. Heb-bronville Auction and Commission Company, a resident, for venue purposes, of Webb County, will be designated in this opinion as “Hebbronville.” Plaintiff contends that the suit is maintainable in Jim Wells County under Subdivision 4, art. 1995, Tex.Rev.Civ. Stat.Ann. (1964).

Insofar as relevant to this appeal, plaintiff’s suit sought recovery for conversion of cattle. Plaintiff alleged that on March 1, 1970, he had sold 150 head of Holstein, Guernsey, and Jersey cattle to Walter Zimmerman. Plaintiff received a promissory note in the sum of $88,750.00, secured by a security agreement, naming the cattle as collateral, executed by Zimmerman, and properly recorded by plaintiff. The note was payable in monthly installments over a period of 10 years. The monthly payments were made by Zimmerman through January 15, 1973.

In the early part of February 1973, plaintiff heard that Zimmerman had sold all of the cattle covered by the security agreement. Plaintiff alleged that the sales were made by Hebbronville and South Texas Auction Company, a resident of Jim Wells County.

In order to maintain venue in Jim Wells County as to Hebbronville, it was incumbent on plaintiff to allege and prove a cause of action against the resident defendant, South Texas Auction Company, and to allege, in his controverting affidavit, facts showing that the nonresident defendant is at least a proper party to plaintiff’s suit against the resident defendant. 1 Me-Donald, Texas Civil Practice § 4.10.2 (II) (1965).

It is undisputed that South Texas Auction Company is a resident of Jim Wells County, and the petition, which was incorporated by reference in plaintiff’s controverting affidavit, clearly alleges a cause of action against the resident defendant for conversion.

Plaintiff here insists that he did prove a cause of action against the resident defendant. In support of this contention, plaintiff argues that the proof required at a venue hearing under Subdivision 4 is not the same “proof as will be required at trial on the merits, but only [evidence sufficient] to establish the good faith of [plaintiff] in bringing suit in the particular county.” Plaintiff relies on the language in Von Scheele v. Kugler-Morris General Contractors, Inc., 532 S.W.2d 375, 380-81 (Tex.Civ. App.—Dallas 1975, writ dism’d), to the effect that the purpose of the requirement that plaintiff prove a cause of action against the resident defendant “is to establish the good faith of the plaintiff in joining the resident defendant” in order to prevent the collusive or fraudulent joinder of a resident defendant in order to maintain venue against the nonresident defendant. However, such language is merely an explanation or justification for requiring proof of a cause of action against the resident defendant. It cannot be construed as a statement of the quantum of proof required. The cases firmly establish the rule that plaintiff must prove, by a preponderance of the evidence, each element of a cause of action against the resident. Texas High School Gymnastic Coaches Ass’n v. Andrews, 532 S.W.2d 142, 145 (Tex.Civ.App.—San Antonio 1975, no writ); 1 McDonald, Texas Civil Practice op. cit. § 4.10.2 (III) at 441. Plaintiff does not discharge his burden merely by showing that he believes in good faith that he has a cause of action against the resident defendant.

The evidence in this case, as set out in plaintiff’s brief, may be summarized as follows:

1. When he heard that Zimmerman had sold the cattle covered by the security agreement, plaintiff went to see Zimmerman and found that none of the cattle were there. He asked Zimmerman whether the cows “were all gone,” and Zimmerman replied that a “couple of them” were probably “running down in the dry pasture.” Plaintiff then located 5 of the cows.

2. Plaintiff further discovered that 37 cows had been sold at Mansfield by Zimmerman and plaintiff was able to identify 9 of such cows as being cows covered by the agreement. He recovered the money for these 9 cows from Mansfield Stock Yards.

3. An examination of the records of Hebbronville and South Texas Auction Company revealed that during the years 1970, 1971, and 1972, South Texas Auction Company had sold 417 cows delivered to it for sale by Zimmerman, for a total exceeding $93,000.00. Zimmerman acquired 89 cows during 1971 and 1972 and he acquired an unspecified number of cows during February 1970.

4. Zimmerman kept the cows sold to him by plaintiff separate from the remainder of the Zimmerman herd. The remainder of the Zimmerman herd contained no Guernseys, Jerseys or brown cows, “they were all black and white and Holstein.”

5. Plaintiff failed in his attempt to identify any of the cows sold by South Texas Auction because South Texas Auction refused to give him the ear tag numbers of the cows it had sold for Zimmerman. But he was able to determine that the number of Jerseys or brown cows sold corresponded to the number of Jerseys and Guernseys which he sold Zimmerman.

6. Hebbronville sold 88 cows delivered to it by Zimmerman on seven separate days during the three-year period in question. The cows sold by South Texas Auction were sold on 50 separate days. As in the case of the cows sold by South Texas Auction, plaintiff was unable to identify any of the cows sold by Hebbronville as being cows covered by the security agreement.

Plaintiff states that the evidence is “certainly sufficient to raise a fact issue.”

However, it is not sufficient for plaintiff to raise issues of fact concerning the existence of his cause of action against the resident defendant. His burden was to persuade the trier of fact, by a preponderance of the evidence, of the existence of all elements of a cause of action against South Texas Auction Company for conversion of the mortgaged cattle. Even if we assume that the evidence was sufficient to raise an issue of fact on the question of the identity of the cows and to support a finding that the cows were the same as those described in the security agreement, this question of fact was resolved in favor of defendant. It cannot be said that plaintiffs evidence established the identity of the cows as a matter of law. Nor do we feel justified in holding that the conclusion by the trier of fact that the cows were not the cows described in the security agreement is so against the overwhelming weight and preponderance of the evidence as to be manifestly unjust.

The judgment of the trial court is affirmed.

      . Since the alleged conversion did not take place in the county of suit, plaintiff cannot, and does not. rely on Subdivision 9, which permits a suit based on a crime, offense or trespass to be brought in the county where the suit, offense or trespass was committed.