text:
    Solomon J. KARAM, Jr., d/b/a Consolidated Produce Co. and Bushel Basket, Appellant, v. H. E. BUTT GROCERY COMPANY et al., Appellees.
    No. 15397.
    Court of Civil Appeals of Texas, San Antonio.
    June 25, 1975.
    Rehearing Denied Oct. 1, 1975.

      King, Joseph, Baucum & Karam, San Antonio, for appellant.
    Matthews, Nowlin, Macfarlane & Barrett, John D. Fisch, Foster, Lewis, Langley, Gardner & Banack, William T. Armstrong, III, San Antonio, for appellees.
   CADENA, Justice.

Plaintiff, Solomon J. Karam, Jr., d/b/a Consolidated Produce Co. and Bushel Basket, filed suit against defendants, H. E. Butt Grocery Company (here called “HEB”) and Quincy Lee (here referred to as “Lee”), seeking a declaratory judgment to the effect that certain restrictive covenants were not applicable to property which he occupied as tenant.

Plaintiff appeals from a summary judgment holding the restrictions enforceable against him.

The land involved may be generally described as lots 8 and 9, N. C. B. 12179, H. E. B.-Walzem Subdivision, in San Antonio. The land is located within a tract bounded by U. S. Highway 81, Interstate Highway 35 and Walzem Road. On December 11, 1970, HEB, which operates a chain of grocery stores, owned approximately 8.7 acres of the land, on which it constructed one of its grocery stores. Lee, a land developer, owned about 23 acres which were located generally to the east of the HEB tract. Lee proposed to build a building on his land and lease the building to Woolco Department Stores.

HEB and Lee desired that the HEB store and the Woolco building, when completed, would constitute an integrated shopping center. In furtherance of this agreement, HEB conveyed to Lee approximately 6.3 acres of the 8.7 acre HEB land in exchange for the conveyance to HEB by Lee of approximately 1.15 acres of the 23 acres owned by Lee, and the payment of $130,-000.00 to HEB by Lee. The conveyances took place on December 11, 1970, and as part of the overall plan to establish an integrated shopping center, HEB and Lee, on the same date, executed a “development and operating agreement.” This agreement referred to the exchange of lands, describing such exchange as taking place simultaneously with the execution of the development agreement. The agreement referred to the fact that Lee and HEB desired to establish various controls and guide lines in respect to the construction, development, maintenance and operation of the shopping center, and to exchange with each other certain easements in and to, over and under and across the entire premises and in and to the common facilities so as to facilitate the use of the entire premises (consisting of the entire tract of approximately 31.7 acres) as an integrated shopping center.

As might be expected, the agreement is rather detailed, but the portions relevant to a disposition of this case may be summarized as follows:

(1). Lee agreed not to lease or permit to be occupied any part of the shopping center or premises on any other property owned by Lee within the 31.7 acre tract for the sale for off-premises consumption of groceries, meat, produce, dairy products, bakery products or frozen foods. This provision, of course, was designed to insulate HEB from competition.

(2). So long as Woolco occupies space in the shopping center, no space in the shopping center with a floor area in excess of 10,000 feet will be leased to or occupied by any person unless such lease is consented to in writing by Woolco, and no other space in the center shall be used or occupied as, or in connection with, a variety store, junior department store, department store or discount store.

(3). The restrictions on use are made incident to and a primary consideration of the purchase and sale of portions of the entire HEB and Lee properties, “and incident to the Woolco lease, and shall be enforceable by the parties hereto, their successors and assigns . . . and by Woolco, its successors, sublessees and assigns.”

(4). The agreement is made partly for the purpose of inducing Woolco to enter into a lease of premises on the Lee parcel, and is intended to insure to Woolco’s benefit. The agreement may not be altered, amended or rescinded without Woolco’s written consent, and in event of default by HEB, Woolco will be entitled to enforce the agreement.

(5). The restrictive covenants shall constitute covenants running with the land and shall be binding upon, and inure to the benefit of, Lee, HEB, Woolco, their successors, sublessees and assigns.

This agreement, despite its references to Woolco, was signed only by Lee and HEB.

On the same date, December 11, 1970, Lee and Woolco entered into a lease agreement for a period ending January 31, 1992. This lease covered certain premises on the Lee parcel. The lease instrument referred to the operating and development agreement entered into between Lee and HEB and contained a restrictive covenant substantially similar to that contained in the agreement between Lee and HEB to protect Woolco from competition. The lease further gives Woolco the right to prevent any change in the Lee-HEB agreement and obligates Lee to exercise diligence in enforcing-such agreement.

On January 21, 1974, Lee conveyed to B-J Properties, a joint venture composed of Mitchell Battros and Robert C. Jones, the east 1.97 acres of lot 8, consisting of a tract approximately 150' by 571' located in that portion of the shopping center owned by Lee. This conveyance was in performance of a contract between Lee and Battros executed July 16, 1973.

In December, 1973, Battros leased to plaintiff an area, consisting of 3,600 square feet, located within the land conveyed by Lee to B-J Properties.

It is clear from the record that the business which plaintiff proposes to conduct on the premises leased to him would be in direct competition with HEB and would involve the sale of products enumerated in the restriction intended to protect HEB.

In its first point plaintiff contends that the trial court erred in holding that the restrictive covenant was “unambiguous, valid and enforceable.” By its second point plaintiff contends that the restrictive covenant violates our anti-trust laws. In his brief, plaintiff presents no argument tending to show that the agreement was ambiguous, and it is clear from the plaintiff’s brief that the contention that the agreement is invalid and unenforceable is based entirely on the assertion that it violates our anti-trust laws. We, therefore, need only decide whether the agreement in question is of the type rendered unenforceable by our anti-trust legislation.

According to plaintiff, the transaction in question creates a prohibited “trust” within the meaning of § 15.02, Tex.Bus. & Comm. Code Ann. (1968). In particular, plaintiff relies on § 15.02(b)(1), (3)(A), which defines a trust as a “combination of capital, skill or acts by two or more persons” which restricts, or tends to restrict, “trade, commerce, ... or the free pursuit of a lawful business;” or which prevents or lessens competition in the “manufacture, transportation, sale, or purchase of tangible personal property.”

Our anti-trust statutes, like those in other jurisdictions, are, on their face, extremely broad and far-reaching. But the courts have generally limited the scope of such legislation. Standard Oil Co. v. U. S., 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619 (1911); 54 Am.Jur.2d, Monopolies, Restraints of Trade, and Unfair Trade Practices § 457 (1971). With respect to the type of agreement before us, the courts are generally agreed that (1) the seller or lessor of land may, by a reasonably limited restrictive covenant, agree not to use, or allow his property to be used by others, in a way which would result in competition with his grantee or lessee; and (2) a buyer may agree not to use the property which he has purchased in a way which will compete with the seller or lessen the usefulness or impair the value of the seller’s remaining land. 14 Williston, Contracts § 1642, pp. 138-39 (3d ed., Jaeger, 1972). The Texas cases recognize the same limitations on the scope of such statutes. Schnitzer v. Southwest Shoe Corporation, 364 S.W.2d 373, 374-75 (Tex. 1963); Neiman-Marcus Co. v. Hexter, 412 S.W.2d 915 (Tex.Civ.App.—Dallas 1967, writ ref’d n. r. e.); Anderson v. Rowland, 44 S.W. 911 (Tex.Civ.App.1898, no writ).

The covenant of which plaintiff complains is an agreement by a grantor, Lee, not to use his remaining property, or allow such property to be used, in a manner which would create competition with his grantee, HEB. Under the rules referred to in the immediately preceding paragraph, such an agreement is valid and enforceable. Plaintiff, however, insists that the agreement is an invalid restraint on trade because the agreement between Lee and HEB attempts to “lock in” a third party, Woolco. In support of this contention, plaintiff relies principally on Schnitzer v. Southwest Shoe Corporation, supra, and Kroger Company v. J. Weingarten, Inc., 380 S.W.2d 145 (Tex.Civ.App.—Houston 1964, writ ref’d n. r. e.).

In Schnitzer, A and B, who separately owned adjoining buildings, decided to operate their properties as an integrated shopping center.' A leased his premises to C, a shoe company. The lease instrument gave C the exclusive right to sell shoes in A’s building and in the buildings of other owners who ratified the exclusive shoe-selling agreement. B ratified the provision by signing the lease instrument, but subsequently leased space in his building to X, who thereafter sub-leased to Y, who sold shoes as part of his business. The Supreme Court held that the restrictive covenant in the lease was unenforceable as an invalid restraint on trade.

The facts in Kroger may be stated in simplified form as follows: A leased certain premises owned by him to B by an instrument containing a provision to the effect that the lessor would not engage in a business competing with B within a circle having a radius of two miles from the leased premises, and would impose similar restrictions on all property then owned by A or which might thereafter be acquired by A, within such area. On the same date, a separate agreement was executed by A, B, C and D. C and D were owners of other land within a radius of two miles from the premises leased by A to B. Under this agreement, A, C and D agreed to restrict which they, or either of them, then owned or might thereafter acquire within the area so that such property would not be used in competition with B. The court held the agreement constituted an unlawful trust to prevent competition.

Neither Schnitzer nor Kroger is in point. The exceptions relating to restrictive covenants made as incidents of transactions involving the transfer of interests in land are applicable only where the use-limiting promise is made by either the transferor or transferee and relates to land owned by the covenantor or to land in which he has an interest. The vice in both Schnitzer and Kroger lay in the fact that the covenant in question attempted to restrict use of land owned by one who was neither a transferor, as grantor or lessor, or transferee, as grantee or lessee, in the transaction to which the restriction was incidental. In the case before us, the restrictions were placed on land belonging to Lee and HEB, each of which both transferor and transferee of the different parcels exchanged by them. Insofar as the restriction of which plaintiff here complains, it was a restriction on the remaining land of Lee and ran in favor of his grantee.

The fact that a third party, Woolco, was mentioned in the agreement is irrelevant. Even if Woolco had not been mentioned in the agreement, it would have been bound as lessee of Lee, the covenantor.

This case, therefore, falls squarely within the holding in Neiman-Marcus Co. v. Hexter, supra, in which the restrictive covenant was between lessor lessee and affected only premises owned or controlled by them. Plaintiff argues that the Dallas Court of Civil Appeals, in upholding.the restrictions, failed “to attach any importance to AntiTrust Statutes.” The court specifically considered and rejected a challenge based on the anti-trust legislation and, in our opinion, correctly held that the arrangement came within one of the exceptions to the statutes which have, as already pointed out, been recognized by the courts, including our Supreme Court in Schnitzer.

Plaintiff does not contend that the agreement was unreasonable as to either time or area. His challenge to the judgment below is based exclusively on the argument that the agreement violated our antitrust statutes. He asserts no other reason as support for the contention that the agreement is not enforceable against him.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: RALEIGH BROWN, Justice.

license: Public Domain

text:
    E. E. WALLACE, Appellant, v. SNYDER NATIONAL BANK, Appellee.
    No. 4807.
    Court of Civil Appeals of Texas, Eastland.
    July 18, 1975.
    Rehearing Denied Oct. 3, 1975.

      Max C. Addison, Crenshaw, Dupree <& Milam, Lubbock, for appellant.
    W. James Rosser, Rosser, Carroll & Greene, Snyder, for appellee.
   RALEIGH BROWN, Justice.

The opinion and judgment dated July 18, 1975 is withdrawn and the following substituted therefor.

Snyder National Bank, suing on a promissory note dated June 10, 1971, was granted a default judgment for $32,155.87 with interest and $3500 attorneys’ fees against E. E. Wallace. Wallace’s motion for new trial was overruled. He appeals.

The default judgment was entered on February 3. Wallace’s answer was received by the clerk on February 4.

His motion for new trial alleged the bank, which held á lien on some of his oil properties as security for a note dated May 29, 1971, agreed to execute a release upon the payment of $43,058.34. He contends:

“Contrary to the agreement of the plaintiff, it refused to release the lien on such property for the sum of $43,058.34, but without just cause required defendant to pay the note which is the basis of this suit and an additional sum of approximately $19,000.00 for a release of said lien. That the defendant received the sum of approximately $19,000.00 less in connection with the sale of said property than he would have received had plaintiff carried out plaintiff’s agreement, which said sum of approximately $19,000.00 should be credited toward the payment of the note which is the basis of this suit.”

Although in an amended answer Wallace alleges payment or partial payment of the June 10,1971 note. The amended answer is not a part of Wallace’s motion for new trial by reference or otherwise. In his motion for new trial Wallace fails to set up the defense. He merely sought credit for $19,-000 on that note.

The trial court’s order overruling the motion for new trial provided:

“1. Defendant’s failure to answer was due to accident or mistake, and was not intentional or the result of conscious indifference.
2. The granting of a new trial would not cause any appreciable delay or work any substantial hardship or injury to Plaintiff, Snyder National Bank.
3. Defendant, E. E. Wallace, has not set, up any meritorious defense to the suit herein, but has only set up a permissive counterclaim, as provided under Rule 97b of the Texas Rules of Civil Procedure.
4. Defendant will not be harmed by a denial of his motion because he has the right to make the subject matter of his counterclaim attempted to be set up herein the basis of another cause of action in this or another Court.”

In Ivy v. Carrell, 407 S.W.2d 212 (Tex.1966), the, court said:

“The correct rule, applicable alike to motions for new trial which seek to set aside default judgments entered on failure of a defendant to file an answer and those entered on failure to appear for trial, is stated in Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 393, 133 S.W.2d 124, 126 (1939), as follows:
A default judgment should be set aside and a new trial ordered in any case in which the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; provided the motion for a new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff.
See also City of San Antonio v. Garcia, 243 S.W.2d 252 (Tex.Civ.App., San Antonio 1951, writ ref’d). That the rule is applicable to default judgments entered on failure of the defendant or his counsel to appear for trial, see City of Fort Worth v. Gause, 129 Tex. 25, 28, 101 S.W.2d 221, 222 (1937); Box v. Associates Investment Co., 352 S.W .2d 315, 317 (Tex.Civ.App., Dallas 1961, no writ).”

The issue is whether the trial court was correct in finding that Wallace failed to allege a meritorious defense. Meritorious defense has been defined as one which if established upon another trial will produce a different result. Cragin v. Henderson County Oil Development Co., 280 S.W. 554 (Tex.Com.App.1926); Vela v. Sharp, 395 S.W.2d 66 (Tex.Civ.App., San Antonio 1965, no writ); Smith v. Hillsboro State Bank, 253 S.W.2d 897 (Tex.Civ.App., Galveston 1952, no writ). Also in Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950) the court stated a meritorious defense is one that is asserted as a defense to the cause of action alleged to support the judgment.

Snyder National Bank sought recovery of the unpaid balance on a promissory note dated June 10,1971. The pleadings of Wallace seek a credit or an off-set on the amount of the judgment sought by the bank. Such a pleading by a defendant is proper under Rule 97(b), T.R.C.P., but must be distinguished from a defensive plea of a defendant. To be entitled to a new trial, a defendant must allege facts which in law would constitute a meritorious defense to the cause of action asserted by plaintiff, and must be supported by affidavit or other evidence proving prima facie that defendant has such defense. Ivy v. Carrell, supra; Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (Tex.Com.App.1939); Leibowitz v. San Juan State Bank, 409 S.W.2d 586 (Tex.Civ.App., Corpus Christi 1966, no writ).

Wallace has failed to assert a defense in his motion for new trial challenging the cause of action as alleged by the bank. His allegations, if taken as true, would not defeat the claim of the bank on the June 10, 1971 note. We hold the pleading of a permissive counterclaim fails to meet the test of a meritorious defense.

Further, as stated by our Supreme Court in Ward v. Nava, 488 S.W.2d 736 (Tex.1972):

“In Ivy v. Carrell, supra, this Court said: “ ‘The motion must allege facts which in law would constitute a defense to the cause of action asserted by the plaintiff, and must be supported by affidavits or other evidence proving prima facie that the defendant has such meritorious defense.’ ”

See also Bredeson v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 513 S.W.2d 110 (Tex.Civ.App., Dallas 1974, no writ) and Griffin v. Duty, 286 S.W.2d 229 (Tex.Civ.App., Galveston 1956, no writ). Combs v. Combs, 435 S.W.2d 166 (Tex.Civ.App., Houston (1st Dist.) 1968, no writ hist.) and DePuy v. Central Insurance Agency, 465 S.W.2d 802 (Tex.Civ.App., Corpus Christi 1971, no writ hist.).

Wallace argues he is entitled to a reversal because no record of evidence was made by the official court reporter. We agree with the contention only as to the amount of attorney’s fees. The remainder of the award was “liquidated and proved by an instrument in writing”. In such case, Rule 241, T.R.C.P. states:

“Where a judgment by default is rendered against the defendant, the damages shall be assessed by the court, or under its direction, and judgment final shall be rendered therefor,

The note sued upon by the bank provides for reasonable attorney’s fees in the event of nonpayment on its due date.

The court in Smith v. Texas Discount Company, 408 S.W.2d 804 (Tex.Civ.App., Austin 1966, no writ), stated:

“The reasonableness of attorney’s fees, in the absence of a contract therefor, is a question of fact and is an unliquidated demand as to which the Court should have heard evidence. Rule 243, T.R.C.P.”

See also Great American Reserve Insurance Co. v. Britton, 406 S.W.2d 901 (Tex.1966).

There being no record as to the reasonableness of the attorney’s fees, we are unable to adequately review the award; therefore, a reversal and remand for a new trial as to the issue of attorney’s fees is required. Morgan Express, Inc. v. Elizabeth-Perkins, Inc., 525 S.W.2d 312 (Tex.Civ.App., Dallas, 1975).

As stated in Great American Reserve Insurance Co. v. Britton, supra:

“The claim for attorney fees is a severa-ble claim, and under Rule 503, Texas Rules of Civil Procedure, we are authorized to sever the claim and reverse the judgment as to it only.”

The bank is entitled to recover attorney’s fees in some amount. All other matters are correctly fixed in the present judgment. We, therefore, sever the matter of attorney’s fees and remand for a new trial. Rule 434, T.R.C.P. The remainder of the judgment is affirmed.


author: BARROW, Chief Justice.

text:
    AIRWAY INSURANCE COMPANY, Appellant, v. HANK’S FLITE CENTER, INC., Appellee.
    No. 15426.
    Court of Civil Appeals of Texas, San Antonio.
    July 23, 1975.
    Rehearing Denied Sept. 10, 1975.
    Stewart J. Alexander, San Antonio, for appellant.
    Benny J. Lowe, Alexander, Lowe & Pratt, Odessa, for appellee.
   BARROW, Chief Justice.

Appellant has perfected its appeal from a judgment entered on a jury verdict for the stipulated sum of $20,500.00 in appellee’s suit to recover on an insurance policy for damages sustained to an insured airplane in a crash.

Appellant seeks a reversal and remand of the case by three assignments of error wherein it complains that the jury’s response to each of three special issues is “so against the overwhelming weight and preponderance of the evidence adduced at trial as to be clearly wrong. Each of these three assignments question the factual sufficiency of the evidence. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L.Rev. 361, 366 (1960); O’Connor, Appealing Jury Findings, 12 Hous.L.Rev. 65 (1974).

We have no jurisdiction to consider these factual insufficiency points in that appellant did not file a motion for new trial. Rules 324, 374, Tex.R.Civ.P. (1967); Darryl v. Ford Motor Company, 440 S.W.2d 630 (Tex.1969); Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960); Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L.Rev. 361, 365 (1960).

Appellant filed a motion for instructed verdict at the close of the evidence and also a motion for judgment non obstan-te veredicto after the verdict was returned. However, it does not have any point on this appeal complaining of the trial court’s action in overruling either of these motions. Furthermore, it does not argue the validity of either motion in its brief or even seek a rendition of the judgment.

Appellant has wholly failed to preserve any error for appellate review, and therefore the judgment must be affirmed.

      . “One: That the jury’s finding that Robert Charles Denton did not have possession of the aircraft under a bailment, conditional sale or purchase agreement, was so against the overwhelming weight and preponderance of the evidence adduced at trial as to be clearly wrong.

        Two: That the jury’s failure to find that the taking by Robert Charles Denton of the aircraft amounted to a conversion, was so against the overwhelming weight and preponderance of the evidence adduced at trial as to be clearly wrong.

        Three: That the jury’s failure to find that Robert Charles Denton did not have a license issued by the Federal Aviation Administration to fly the airplane, was so against the overwhelming weight and preponderance of the evidence as to be clearly wrong.”


author: COLEMAN, Chief Justice.

text:
    CITY OF HOUSTON et al., Appellants, v. Jose L. REYES et al., Appellees.
    No. 16509.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    July 31, 1975.
    Rehearing Denied Sept. 11, 1975.

      Jonathan Day, City Atty., Alan F. Levin, Senior Asst. City Atty., Dennis C. Gardner, Asst. City Atty., Houston, for appellants.
    Dixie, Wolf & Hall, George C. Dixie, Houston, for appellees.
   COLEMAN, Chief Justice.

This is an appeal from a judgment enjoining the City of Houston and others from implementing Section 2 of City Council Ordinance No. 74-1531, an ordinance dealing with the organization of the Houston Fire Department.

The plaintiffs have the classification of Pipeman and Ladderman in Grade III, and on behalf of themselves and others similarly situated seek to require the Civil Service Director to hold examinations to establish eligibility lists to fill claimed vacancies in the Grade IV Chauffeur classification. It is their contention that the ordinance created new positions in the Grade IV Chauffeur classification. They further contend that Section 2 of the ordinance transferring Emergency Medical Technician positions to the Chauffeur classification is inconsistent with the general law and is therefore invalid. It is their position that various provisions of Article 1269m, Vernon’s Annotated Civil Statutes, prohibit a lateral transfer of persons holding a position in one Civil Service classification to positions in another classification even though both classifications are in the same Civil Service grade. The City contends that the effect of the ordinance was merely to change the name of the Emergency Medical Technician classification, and that the change of duties for some of those holding the Emergency Medical Technician positions occurred later by administrative action, which is within the power of the Fire Chief.

The trial court found that Section 2 was invalid and that vacancies existed in the Chauffeur classification. The judgment ordered the City to proceed to fill the vacancies in accordance with the Civil Service Act.

Ordinance No. 74-1531 was enacted in response to internal dissension in the Houston Fire Department which culminated in a “sick-out”. The dissension resulted from the action of the City Council in assigning to the Fire Department the responsibility and duty of emergency ambulance operation. This action was implemented by the adoption of Ordinance No. 71-2292, which established a classification of Emergency Medical Technician in Grade IV of the Fire Suppression Division of the Fire Department. On the passage of this ordinance the hierarchy of the Fire Suppression Division was as follows:

No. of Positions Authorized Minimum Positions Required by Ord. 5198 Classification First Year Second Year Third Year & Over Minimum Monthly Base Pay Required by Ord. 5198

GRADE II

250 50 Pipeman and Ladderman (Probationary) $300 (Six-month Period) $230

GRADE III

1200 325 Pipeman and Ladderman 311 323 358 250

FIRST YEAR AND OVER

GRADE IV

EC o Ü1 O O Chauffeur 380 260

O o M 05 O Emergency Medical Technician 380 260

GRADE Y

270 65 Junior Captain 415 275

6 0 Graphic Arts Technician 415

GRADE VI

110 22 Senior Captain 478 290

2 1 Secretary to Fire Chief 478 290

1 1 Senior Accountant 478 290

GRADE VII

70 20 District Chief 554 315

1 1 District Chief

No. of Positions Authorized Minimum Positions Required by Ord. 5198 Classification First Year Second Year Third Year & Over Minimum Monthly Base Pay Required by Ord. 5198

554 (Training Officer) 315

Administrative Officer and Statistician 554 315

GRADE VIII

Deputy Chief 692 370

GRADE IX

Assistant Fire Chief 830 440

GRADE X

Fire Chief (Nonclassified) $400-1158 Range Range $550-700

Ordinance No. 74 — 1451 created 72 positions in Grade V entitled Paramedic. Certain other changes in the organizational chart resulted from the passage of Ordinance No. 74-1531: The new chart showed 612 positions in Classification Grade IV Chauffeur and 308 positions authorized in Classification Grade V Junior Captain. The title Emergency Medical Technician in Grade IV was dropped as was the title Paramedic in Grade V.

Ordinance No. 74-1531 reads:

“An ordinance creating and re-creating positions, classes, classifications and base pay payable to the holders of such positions in the Fire Department of the City of Houston; specifically abolishing all positions, classes, classifications and salaries or salary ranges in conflict herewith heretofore existing in such department; making other findings and provisions related to the subject; containing a repealing clause; and declaring an emergency.
“BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF HOUSTON:
“Section 1. That all ordinances or parts of ordinances creating, changing, or increasing positions, classifications and salaries or salary ranges in the Fire Department of the City of Houston be, and the same are hereby,, merged and consolidated in this ordinance so that all positions, classes, classifications and salaries or salary ranges in conflict hérewith or not included herein, are hereby expressly abolished and the following positions, classes, classifications and base pay. categories are hereby created in said department, so that hereafter the following, and none other, shall exist therein:

(Then follows the organizational chart of the entire fire department setting out all positions in that department.)

“Section 2. That the City Council hereby provides, with respect to the 156 additional Chauffeur positions herein above designated, that such designation is intended to operate merely as a change in title in the Grade IV classification of the 156 positions of ‘Emergency Medical Technician’ heretofore existing, and shall not affect the status, classification, salary or tenure of the persons holding such positions, and persons heretofore holding the classification ‘Emergency Medical Technician’, Grade IV, Fire Suppression Class, shall hereafter be classified as ‘Chauffeur’, Grade IV, Fire Suppression Class.
“Section 3. That the City Council hereby provides, with respect to the 72 additional Junior Captain positions herein above designated, that such designation is intended to operate merely as a change in title in the Grade V classification of the 72 positions of ‘Paramedic’ heretofore existing, and shall not affect the status, classification, salary or tenure of the persons who may in the future hold such positions.”

NOTE: Subsequent paragraphs of this ordinance are omitted for brevity’s sake.

Ordinance No. 74-1531 was enacted on September 3, 1974. On that same day the council adopted a motion approving the recommendation of a study committee which had been previously appointed to study the problems of the fire department. The report, which was presented as a permanent solution to the EMT-Paramedic problem, included the following recommendations: (1) that cadets be given 80 hours of emergency medical technician training; (2) that Emergency Medical Technician will no longer be a separate classification but will be brought into the main stream of the Suppression class and classified as Chauffeur; (3) that the promotional examination for the position of Chauffeur will henceforth be a test consisting of 60% Suppression questions and 40% medical questions involving EMT training and procedures; (4) that all Grade IV personnel will be required to take an officer’s training course to be given at the training academy; (5) the ordinance which established the Paramedic positions will be amended to delete the word “Paramedic” and substitute therefor the words “Junior Captain”; (6) the test for the Junior Captain positions will be composed of 60% Suppression questions and 40% medical questions involving Paramedic training and procedures; (7) all Pipe and Laddermen who take the Chauffeur promotional examination will be required to earn an EMT certificate from the City of Houston Health Department prior to being certified as Chauffeurs assigned to the rescue squad; (8) all Chauffeur positions becoming vacant as the result of promotions to fill the 72 Junior Captain positions will be abolished, and if the effect of such abolition is to leave the Suppression fire fighting forces shorthanded in the Chauffeur classification, Chauffeurs presently serving in the ambulance division will be transferred to fire fighting duties.

Prior to the passage of Ordinance 74-1531, the primary job duties of an Emergency Medical Technician consisted of maintaining and operating emergency ambulances operated by the City of Houston Fire Department and applying first aid and other medical measures to persons using such ambulances. The study materials approved by the Civil Service Commission of the City of Houston used by applicants taking the Emergency Medical Technician promotional examination consisted of medically-oriented materials relating to the job duties of the Emergency Medical Technician position, and the competitive Civil Service promotional examination given to establish a list of eligibles for the position of Emergency Medical Technician was prepared to test the knowledge of the applicants of the job duties of Emergency Medical Technician.

At that time the job duties of a Chauffeur consisted of maintaining the fire suppression apparatus to which they were assigned, driving the fire suppression apparatus to and from the site of fires, and operating the fire suppression apparatus at the site of fires. The study materials approved by the Civil Service Commission for use by applicants taking the Chauffeur promotional examination consisted of material relating to the job duties of the Chauffeur position, and the competitive Civil Service promotional examination given to establish a list of eligibles for the position of Chauffeur was prepared to test the knowledge of the applicants of the job duties of the Chauffeur’s position.

Under the system in existence prior to the passage of the questioned ordinance it would have been possible for one trained as a Pipeman and Ladderman to progress to Grade IV Emergency Medical Technician and thereafter to Grade V Paramedic and thereafter to Grade VI Senior Captain. Thus it would have been possible for a man with no training in fire suppression duties beyond that of a Pipeman and Ladderman, and who had received no experience and little training in fire suppression duties for the preceding four or more years to be in command of a fire station. This was one of the weaknesses in the system which Ordinance No. 74-1531 was designed to eliminate.

There is evidence that after the enactment of Ordinance 74-1531 the 156 persons holding positions previously in the Emergency Medical Technician classification continued to perform the same duties until the 72 medically-oriented Junior Captain positions were filled. One Junior Captain was then assigned to each ambulance displacing a person qualified as a Medical Technician, who was then assigned to fire fighting duties. Those in the Chauffeur classification performing fire fighting duties could not be assigned ambulance duty until they satisfactorily completed training as a Medical Technician.

Under Article XI, Section 5, of the Texas Constitution, a home rule city cannot enact ordinances that are contrary to the applicable general state law, and any such ordinances so enacted would be void. However, the governing body of a home rule city is not required to look to the Texas legislature for a grant of power to act; such power is granted by the Constitution. State v. City of La Porte, 386 S.W.2d 782 (Tex.1965). Under its home rule charter the City of Houston has the power to make lateral transfers of employees from one classification to another within Grade IV, Civil Service Class D of the Fire Suppression class, unless such action is prohibited by Article 1269m.

A general law and a city ordinance will not be held repugnant to each other if any other reasonable construction leaving both in effect can be reached. Both will be enforced if that be possible under any reasonable construction, just as one general statute will not be held repugnant to another unless that is the only reasonable , construction. It is the duty of the court to reconcile the ordinance with the general law if a fair and reasonable construction of the seemingly conflicting enactments will leave both in concurrent operation. City of Beaumont v. Fall, 116 Tex. 314, 291 S.W. 202 (Comm’n of App. Sec. B, 1927); Cole v. State [Ex Rel. Cobolini ], 106 Tex. 472, 170 S.W. 1036; Wagstaff v. City of Groves, 419 S.W.2d 441 (Tex.Civ.App.—Beaumont, 1967, writ ref’d n. r. e.).

Section 8 of Article 1269m provides:

“The Commission shall provide for the classification of all firemen and policemen. Such classification shall be provided by ordinance of the city council, or the legislative body. Said City Council, or legislative body, shall prescribe by ordinance the number of positions of each classification.
“No classification now in existence, or that may be hereafter created in such cities, shall ever be filled except by examination held in accordance with the provisions of this law. . . .All vacancies shall be filled by permanent appointment from eligibility lists furnished by the Commission within ninety days after such vacancy occurs . . .”

Section 9 of said statute provides:

“The Commission shall make provisions for open, competitive and free examinations for persons making proper application and meeting the requirements as herein prescribed. All eligibility lists for applicants for original positions in the Fire and Police Departments shall be created only as a result of such examinations, and no appointments shall ever be made for any position in such Departments except as a result of such examination, which shall be based on the applicant's knowledge of and qualifications for fire fighting . .

Section 14 provides:

“The Commission shall make rules and regulations governing promotions and shall hold promotional examinations to provide eligibility lists for each classification in the Police and Fire Departments, which examinations shall be held substantially under the following requirements:

It is abundantly clear, therefore that vacancies in existing classifications and all positions in new classifications must be filled from eligibility lists created as a result of examinations given qualified personnel.

Under the heading “Promotions; Filling Vacancies”, Section 14 of Article 1269m provides in paragraph F:

“The Commission shall proceed to hold examinations to create eligibility lists within ninety days after a vacancy in any classification occurs, or new positions are created, unless an eligibility list is in existence.”

Then follows paragraph G reading:

“In the event any new classification is established either by name or by increase of salary, the same shall be filled by competitive examination in accordance with this law.”

The evidence does not establish that a new classification was established by the questioned ordinance either by name or by increase of salary. The question, therefore, is whether or not new positions were created in an existing classification. Section 2 of the ordinance speaks of the “156 additional Chauffeur positions hereinabove designated” and provides that such designation is intended merely as a change in title of the existing 156 positions entitled Emergency Medical Technicians. While Section 1 provides that all positions in classifications in conflict with the organizational chart thereafter set out were expressly abolished and the classification Emergency Medical Technician no longer appeared on the chart, the language of Section 2 makes clear the meaning to be given the language in Section 1. The classification “Emergency Medical Technician” was abolished, but the positions formerly existing in that classification were not abolished but were transferred into the classification “Chauffeur”. There were no new classifications or positions created. The evidence establishes that the primary purpose of the ordinance was to require those qualifying for promotion to a position in the classification “Chauffeur” to be qualified to perform the duties either of Emergency Medical Technician or of Chauffeur as they existed prior to the ordinance. This requirement was designed to equalize the opportunities for promotion.

There is evidence that all of the men in the Emergency Medical Technician classification had served as Pipemen and Ladder-men for at least one year and that 80% of the men had served more than two years prior to their promotion to Emergency Medical Technician. Since the men in the Emergency Medical Technician classification rarely participated in the in-service training given to those holding positions in the Chauffeur classification, it is probable that one holding a position formerly classified as Emergency Medical Technician would need training before assuming fire suppression duties. However, the long run effect of the ordinance would be to better prepare the men in the Fire Suppression division to perform both fire suppression and emergency medical procedures.

The effect of the ordinance was to merge the two formerly separate classifications. The transfer of a position from one classification to another within the same grade level constitutes neither a promotion, demotion, nor a suspension of that person occupying such position. No new classification was created, but positions in one classification were transferred to another classification within the same grade level. Such a transfer did not create a new position. The transfer of a position from one classification to a different classification is not expressly prohibited or authorized by Article 1269m. Persons occupying positions in each of the classifications affected obtained those positions by proper promotional examinations.

The trial court, therefore, erred in finding that Section 2 of the ordinance in question was invalid as being in conflict with Article 1269m, V.A.C.S.

Appellants also contend that the trial court erred in concluding that it had jurisdiction to hear the case. Contrary to appellants’ assertions, Article III, Section 56, of the Texas Constitution, which restricts the legislature from regulating affairs of cities has no bearing on the district court’s jurisdiction to hear this case. It is clear that in Texas, the validity of an ordinance is a question of law for the court. Town of Ascarate v. Villalobos, 148 Tex. 254, 223 S.W.2d 945 (1949). Neither do we agree with appellants’ assertion that appel-lees failed to exhaust the administrative remedies provided by Sections 5a and 8 of Article 1269m, V.A.C.S. Stauffer v. City of San Antonio, 162 Tex. 13, 344 S.W.2d 158 (1961).

The other points of error presented by appellants need not be considered in view of the decision we have made that Ordinance No. 74-1531 is a valid ordinance.

The judgment of the trial court is reversed and judgment is here rendered that Jose L. Reyes, Harry Dean LeMaster and the class which they represent take nothing.


text:
    James A. GREEN, Jr., et al., Appellants, v. A. K. MEADOWS, Appellee.
    No. 16318.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Aug. 21, 1975.
    Rehearing Denied Sept. 18, 1975.

      Fulbright & Jaworski, Thomas P. Sart-welle, Russell H. McMains, Houston, for appellants.
    Moore, Morris & Payne, Louis M. Moore, Houston, for appellee.
   OPINION ON REMAND

COLEMAN, Chief Justice.

This is a suit for damages for malicious prosecution. The only questions before us under the mandate of the Supreme Court relate to the excessiveness of the damages allowed by the jury. See Green v. Meadows, 517 S.W.2d 799 (Tex.Civ.App. Houston [1st Dist.], 1974); Meadows v. Green, 524 S.W.2d 509 (Tex.1975).

The appellants, James A. Green, Jr. & Company and James A. Green, Jr., have filed a brief for the consideration of this court since the case was remanded. The first point of error presented was the 21st point of their original brief which they assert is germane to assignments of error 12 and 13 in their motion for new trial. In our original opinion we pointed out that all points containing great weight and insufficient evidence terminology are germane to assignments that begin “The court erred in submitting to the jury” and “in rendering judgment.” We held that these points raised the issue of the legal sufficiency of the evidence to support the jury’s answers and did not raise a question as to the factual sufficiency of the evidence to support the jury’s answers. This holding was approved by the Supreme Court in its opinion remanding this case. There was sufficient evidence to require that the issue be submitted to the jury and the trial judge was required to enter judgment on the verdict returned by the jury.

The second point of error is a restatement of appellants’ 22nd point in their original brief which was asserted to be germane to assignments of error 12,13 and 14 in appellants’ motion for new trial. By assignment of error no. 14 the appellants properly assigned error in their motion for new trial to the trial court’s refusal to order a remitti-tur. While assignment no. 13 is duplicitous it asserted that a new trial should be granted for the reason that “the jury’s answer to special issue 6d was so against the overwhelming weight and preponderance of the evidence and is manifestly so large and excessive as to clearly indicate that the jury’s verdict was based on prejudice, bias, sympathy, passion and other wrongful motives, and was not based upon the evidence, if any, and, therefore, a new trial should be granted for this reason.” The 22nd point of error was germane to this assignment in the motion for new trial.

The Third point of error raised in appellants’ new brief is a restatement of the 23rd point of error in appellants’ original brief and complains that the trial court erred in refusing to order a remittitur. This point is germane to appellants’ assignment of error no. 14 in its motion for new trial.

Special issue no. 6 reads:

“What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would fairly and reasonably compensate A. K. Meadows for the damages he suffered, if any, as the result of his being prosecuted for the offense of embezzlement?
“Consider the following elements of damage, if any, and none other:
“a) Expenses incurred or paid by A. K. Meadows in order to secure his release when arrested;
“b) Expenses incurred or paid by A. K. Meadows for attorney’s fees in the defense of the criminal prosecutions of the offenses of embezzlement;
“c) Loss of earnings prior to the conclusion of the criminal prosecutions, as a direct result of his arrest and the prosecutions;
“d) Injuries to his feelings, name and reputation as a direct result of his arrest and prosecution.
“Give an answer for each element in dollars and cents, if any.
“Answer: a) $200.00 c) $500.00
b) $5240.00 d) $20,000.00”

The jury failed to award Mr. Meadows any amount of money as exemplary damages.

Mr. Meadows testified that prior to the events leading to his indictment on a criminal offense, he had acquainted Mr. Green with the fact that he was of a “nervous disposition”, he had received treatment for a nervous condition in the Veterans’ Hospital, and he couldn’t stand a whole lot of pressure. It is established that Meadows was arrested and detained and that it was necessary for him to post bond. He was indicted by a grand jury on a felony offense and was acquitted of the offense after a jury trial. Mr. Meadows testified that when he was arrested he was in a state of shock for several days and unable to work; that he couldn’t sleep and couldn’t concentrate. He was despondent and depressed and had to seek medical attention. He had to take medicine and generally was upset. He testified that he was shocked and frightened by the fact that he was charged with a felony offense. While he knew that he was not guilty, he had heard of cases where innocent people had gone to prison and this upset him. He testified that his health was affected and his nervous condition worsened as the result of the criminal prosecution. He testified that his wife had had several operations, she was nervous, and the criminal charges against him affected her emotionally. He noticed a difference in the way friends treated him. They seemed to be cold and distant, and he was embarrassed. He testified generally that he suffered great mental anguish. He testified that he lived in a small town, that many people were aware of the indictment, that he was injured socially, and that his feelings and reputation were injured.

There is little or no evidence as to the amount of publicity given to the indictment or subsequent trial of Mr. Meadows. His customs house broker’s license was never suspended or revoked during the pendency of the indictments, and he continued to operate his customs house brokerage business. Subsequent to the indictment Mr. Meadows and several business associates formed a corporation to act as corporate customs house brokers and sought and secured approval of the District Director of Customs and United States Treasury Department to operate as a corporation in the Houston customs district. There is no testimony to support a conclusion that Mr. Meadows lost any potential customers or contracts by reason of the adverse publicity. There is no evidence that the adverse publicity received by Mr. Meadows and the consequent injury to his reputation adversely affected Mr. Meadows’ financial position.

Where complaint is made that the amount of damage found by the jury is excessive this court is required to exercise its sound judicial judgment and discretion in the ascertainment of the amount that would be reasonable compensation for the injuries sustained and to treat the balance as excess. In making this judgment we must determine whether the verdict is supported by a preponderance of the credible evidence. Wilson v. Freeman, 108 Tex. 121, 185 S.W. 993 (1916); Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835 (1959). In reaching their verdict in the amount of $20,000.00 the jury was restricted by the instructions of the trial court to a consideration of the injuries to Mr. Meadows’ feelings, name and reputation. These are proper elements of damage. Davis v. Teague, 256 S.W. 957 (Tex.Civ.App.—Beaumont, 1923, writ dism’d); Stein v. Greenebaum, 203 S.W. 809 (Tex.Civ.App.—Galveston, 1918, no writ hist.).

The fact that the grand jury returned an indictment against Mr. Meadows and that he was arrested would support an inference that Mr. Meadows’ reputation was injured in some degree. The only other evidence relating to an injury to Mr. Meadows’ reputation and to his feelings is the testimony of Mr. Meadows. This testimony is sufficient to support an award in a substantial sum if under the facts in this case Mr. Meadows is a credible witness.

In our original opinion in this case we stated that Mr. Meadows’ credibility was seriously impeached by statements which he made in his income tax return, in his application for a customs broker’s license, and in an assumed name certificate. These statements related to his testimony that he occupied the position of a partner with Green rather than that of an employee. We concluded that in view of this evidence his testimony alone did not establish the fact of partnership by clear and satisfactory evidence. We are not required to weigh the evidence supporting the damage issues by the clear and convincing evidence standard.

The jury determined that $20,-000.00 would fairly and reasonably compensate Mr. Meadows for the injuries he suffered to his feelings, name and reputation. This finding is supported by a preponder-anee of the credible evidence. Mr. Meadows’ testimony supports the conclusion that he suffered severe mental pain and anguish which we equate with “injury to his feelings.” There are no objective guidelines by which we can measure the money equivalent of mental pain. Much discretion must be allowed the jury in fixing this amount. The trial judge refused to order a remitti-tur. We are unable to say that the jury’s verdict is excessive to the extent that the judgment should be reversed for that reason only. S. S. Kresge Co. v. Prescott, 435 S.W.2d 203 (Tex.Civ.App.— Texarkana, 1968, writ ref’d n. r. e.).

Judgment affirmed.


author: McDONALD, Chief Justice.

text:
    FIRST BANK & TRUST CO., BOOKER, Texas, Appellant, v. DUMAS INDEPENDENT SCHOOL DISTRICT, DUMAS, Texas, Appellee.
    No. 5483.
    Court of Civil Appeals of Texas, Waco.
    Aug. 28, 1975.
    Rehearing Denied Oct. 2, 1975.

      Lemon, Close, Atkinson & Shearer, R. D. Lemon, Perryton, for appellant.
    Sheehan & Dubuque, Inc., Louis T. Du-buque, Dumas, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiff Bank from take-nothing judgment against it, in. suit for recovery on warrants issued by defendant School' District.

Plaintiff Bank sued defendant School District alleging defendant on July 12,1965, entered a tax data contract with McMorries & Company and on July 15, 1965, issued negotiable warrants payable to McMorries, which warrants were later acquired by plaintiff in ordinary cause of business as a good-faith purchaser for value. Plaintiff alleged it purchased warrants 1 thru 6 due date 12-1-66; 7 thru 12 due date 12-1-67; 13 & 14 due date 12-1-68; and 20 thru 23 due date 12-1-69; each warrant being in the sum of $1000.

Plaintiff alleged it had been paid $6000. on such warrants, but is still owing $12,000., and that defendant refuses to pay; and prayed judgment for $12,000. plus interest and attorney’s fees.

Defendant answered the warrants were not negotiable warrants; that it had paid McMorries all of the sums due on such warrants.

Trial was before the court which rendered judgment plaintiff take nothing.

The trial court filed Findings and Conclusions summarized as follows:

Findings of Fact
1) McMorries provided tax data for defendant School District.
2) In payment defendant issued McMor-ries 28 time warrants.
3)- Plaintiff purchased 12 of the warrants from McMorries in 1965.
4) Defendant paid McMorries the warrants in full by November 14, 1966.
5) In late November 1966, plaintiff’s agent forwarded warrants 1 thru 6 which were payable in December 1966, to defendant’s Treasurer for payment, and was advised that all warrants had already been paid.
6) Plaintiff did not advise defendant it was holder of any warrants until the late November 1966 forwarding. (After being advised of the prior payment, plaintiff contacted McMorries who paid warrants 1 thru 6 to plaintiff).
Conclusions of Law
1) The warrants were nonnegotiable instruments.
2) No notice was given that plaintiff was owner of the warrants, and defendant was entitled to deal with McMorries as though it were owner and paid all warrants to McMorries.
3) Payment has been made of the warrants and therefore defendant is not liable to plaintiff.
Plaintiff appeals on 2 points:
1) The trial court erred in concluding the warrants were nonnegotiable instruments, and that plaintiff was subject to defendant’s defense of payment to McMorries.
2) The trial court erred in not entering judgment for plaintiff, because defendant paid McMorries without requiring McMorries to surrender the warrants, and should be estopped to plead payment to McMorries as a defense.

On July 12, 1965, defendant School District employed McMorries to perform taxation evaluation work, and issued McMorries 28 $1000. time warrants for such services, pursuant to Article 2786e VATS.

Plaintiff in July, August and September, 1965 purchased from McMorries 18 of the warrants, and forwarded same to a bank in Amarillo for safekeeping. In late November 1966, the Amarillo Bank presented interest coupons on all the warrants, and the first 6 warrants to the First National Bank of Dumas, defendant’s treasurer, for payment, same being payable December 1, 1966. Payment was denied, the Dumas Bank advising that defendant had previously paid McMorries in full for all principal and interest owing on all warrants issued by defendant to McMorries. Defendant paid McMorries without requiring surrender of the warrants. Plaintiff contacted McMorries who paid plaintiff for the first 6 warrants. Plaintiff has not been paid for the remaining 12, and such are subject of the instant case.

Plaintiff’s 1st point is that the trial court erred in concluding the warrants were nonnegotiable and as such subject to the defense of payment to McMorries.

Article 2786e VATS provides: “Section 1. Any school district * * * in need of funds with which to employ an individual firm or corporation * * * to compile taxation data for use by its board * * may * * * issue interest-bearing time warrants, * * * to pay all or part of the compensation * * * to compile such data * * *. Such warrants shall be entitled to first and prior payment out of any available funds of such district as they become due. * *.”
“Section 8. The word ‘interest-bearing time Warrant’ as used in this Act means promissory note, interest-bearing time warrant, obligation or other evidence of indebtedness issued under this Act.”

The warrants are identical except for the number and maturity date and read:

"Number Eleven
$1000. $1000.
Available Fund Warrant 15 July, 1965
To: The School Treasurer
Dumas Independent School District
Dumas, Texas
On or before December 1, 1967 pay to the order of McMorries & Company, Inc., at First National Bank, Dumas, Texas, the sum of $1000. with 5% Interest [and attorney's fees if' referred to an attorney] ⅜ * ⅞.
DUMAS INDEPENDENT SCHOOL DISTRICT /s/ J. R. LOVELL, Secretary
By /%/ FRANK D. McCOWN"

Plaintiff cites Article 5932 which provides:

“Sec. 1. An instrument to be negotiable must conform to the following requirements:
1. It must be in writing and signed by the maker * * *;
2. It must contain an unconditional promise or order to pay a sum certain in money;
3. Must be payable on demand, or at a fixed or determinable future time;
4. Must be payable to order or to bearer; and
5. Where the instrument is addressed to a drawee, he must be named or otherwise indicated with reasonable certainty.”
(The foregoing has been the law since 1919).

Plaintiff asserts the time warrants here meet the foregoing requirements, are negotiable, and that the defense of payment should not be available to defendant.

Warrants issued by an agency of government are nonnegotiable, and are subject to defenses available against the original payee, even in the hands of a good-faith purchaser for value before maturity. Jenkins Common School Dist. v. Guaranty Bond State Bank, Tex.Civ.App., NWH, 103 S.W.2d 394; Bexar County v. Mann, 138 Tex. 99, 157 S.W.2d 134; Adams v. McGill, Tex.Civ.App., Er.Ref., 146 S.W.2d 332; Stratton v. Commissioners’ Court, Tex.Civ.App., Er.Ref., 137 S.W. 1170; Keel v. Pulte, Tex.Com.App., 10 S.W.2d 694; Hamilton National Bank v. Pool, Tex.Civ.App., NWH, 144 S.W.2d 670; First Nat. Bank of Athens v. Murchison Ind. School Disk, Tex.Civ.App., NWH, 114 S.W.2d 382; City of Dublin v. Thornton, Tex.Civ.App., Er.Ref., 60 S.W.2d 302; Lasater v. Lopez, 110 Tex. 179, 217 S.W. 373; Payne v. First Nat. Bank, Tex.Com.App., 291 S.W. 209.

In Jenkins, supra, the warrant involved is almost identical to the warrants in the instant case, and was held to be nonnegotiable.

Contention 2 asserts that defendant is estopped to plead the defense of payment to McMorries since it paid McMorries without requiring him to surrender the warrants.

Defendant paid the sums due on the warrants to McMorries without requiring him to surrender the warrants; and plaintiff purchased the warrants more than a year before defendant had paid the sums due on the warrants to McMorries, without giving defendant notice of the purchase.

The concept of estoppel is that one who by his conduct has induced another to act ought not to be permitted to adopt an inconsistent position, and thereby cause loss to another party. 22 Texas Jur.2d 680.

Defendant’s conduct in paying McMorries the sums due under the warrants in no way induced plaintiff to purchase same.

The warrants were nonnegotiable and defendant can rely on its defense of payment.

Plaintiff’s points are overruled.

Affirmed.


author: EVANS, Justice.

text:
    Donald McGREGOR, Jr., Appellant, v. PROPERTIES INVESTMENT OF HUNTSVILLE, INC., et al., Appellees.
    No. 16533.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Aug. 28, 1975.
    Rehearing Denied Oct. 2, 1975.

      S. Mitchell Glassman, Houston, for appellant; Glassman & Hittner, Houston, of counsel.
    Bennett, Keeling & Haggard, Huntsville, for appellees; W. T. Bennett, Huntsville, of counsel.
   EVANS, Justice.

This venue appeal requires the construction of a real estate broker’s contract.

The broker, Donald McGregor, Jr., brought suit in Harris County, Texas, against Properties Investment of Huntsville, Inc., a corporation, alleging that he had entered into a real estate brokerage agreement for the sale of a Ramada Inn owned by the corporation and located in Huntsville, Walker County, Texas. This contract, which was dated September 25, 1972, provided that the realtor would have the non-exclusive right to offer the property for sale until January 25, 1973. After a description of the property and the terms of sale the contract provided:

“If Realtor within said period, so obtains a purchaser for the property, at the price and on the terms stated, or at any other price or terms accepted by Owner, Owner agrees to pay Realtor a sales commission equal to six (6%) percent of the total sales price, payable in Houston, Texas.
“If within one hundred eighty (180) days after the termination of this agreement, a sale or contract of sale of said property is made, directly or indirectly, to any person with whom Realtor has or has had negotiations for such sale, and of whom Owner shall have in writing been advised not later than thirty (30) days after presentation of said property, Owner agrees to pay said commission.”

In November, 1972, during the term of the real estate broker’s agreement, the Ramada Inn property, which constituted the sole asset of the corporation, was transferred by the corporation to the three shareholders of the corporation: Doyle Mc-Adams, Jr., Jack D. Kyle, and Rowel B. (Buck) Thomason, who were the equal partners in a partnership called “MKT.”

On June 8,1973 the property was sold by the MKT partnership to one Huffman Inns, Inc., and in September 1973 this suit was brought by McGregor against Properties Investment of Huntsville, Inc. to recover his commission, alleging that he had directly negotiated with Huffman and had in writing so advised the defendant corporation. A verified plea of privilege was filed on behalf of the corporation in which it was asserted that title to the property had been transferred by the corporation to MKT, a partnership and that the partnership had consummated a sale of the property to Huffman. In its plea, the corporation sought to have the case transferred to Walker County, Texas. McGregor controverted this plea, asserting that venue was maintainable in Harris County, Texas, since his cause of action was founded upon a contract in writing which provided for payment of a real estate commission in that county. McGregor filed his second amended petition in November, 1974 naming as additional parties defendant, Thomason, McAdams, and Kyle, whom he alleged to have acquired, as partners of MKT partnership, the entire interest of Properties Investment of Huntsville, Inc. in the Ramada Inn property. In this pleading, McGregor asserted that the individual defendants had adopted all the terms and conditions of the September 25, 1972 contract and were bound by its terms, including the obligation to pay the realtor’s commission in Harris County, Texas. The trial court sustained pleas of privilege as to all defendants, finding that the alleged agreement did not provide for payment of the sum sued for by McGregor to be in Harris County.

Subdivision 5 of Article 1995, Tex.Rev. Civ.Stat.Ann., ■ provides:-

“Contract in writing. — If a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.”

In order to maintain venue in Harris County under this subdivision McGregor was obligated to prove that the defendants were parties reached by the statute; that his claim was based upon a written contract; that the contract was entered into by the defendants or by one authorized to bind them, or was assumed or ratified by them, and that the contract by its terms provided for performance of the obligation sued upon in the county of suit. 1 McDonald, Texas Civil Practice, Sec. 4.11.1, p. 444.

The appellees argue that the trial court’s judgment was proper, suggesting that the two quoted paragraphs of the contract set out independent obligations and that the second paragraph does not specify a definite place of payment. Appellees rely upon Briarcliff, Inc. v. Texas Automatic Sprinklers, Inc., 472 S.W.2d 860 (Tex.Civ.App.—Dallas, 1971), and Bowden v. Murphy, 448 S.W.2d 183 (Tex.Civ.App.—Waco, 1969, no writ). In those cases, separate contractual provisions for recovery of liquidated damages failed to specify a place for payment and it was held that venue could not be established under another provision of the contract specifying the place for payment of the basic contractual obligation. We do not believe the decisions in those cases to be applicable to the facts of the case at bar. In the case before us, the second quoted paragraph merely defines the particular circumstances upon which the realtor is entitled to recover his stated commission for a sale occurring after but within 180 days of the termination of the initial contractual period. Whether a commission becomes payable due to a sale made within the initial contractual term, or, upon the conditions stated, within 180 days thereafter, there is no change in the amount and place designated for payment of “said commission.” As we construe the contract, the second quoted paragraph does not constitute an independent provision for payment of damages in lieu of commission, but on the contrary, provides that upon certain circumstances, the realtor’s right to his stated commission extends to sales occurring after the expiration of the initial term of the contract. See Kaye v. Coughlin, 443 S.W.2d 612, 614 (Tex.Civ.App.—Eastland, 1969, no writ). It is not necessary that the obligation to pay the stated commission in Harris County be spelled out in the applicable paragraph of the contract if the contract, viewed as a whole, clearly shows that venue of performance lies in such county. Tyson v. Seaport Grain, Inc., 388 S.W.2d 731 (Tex.Civ.App.—Corpus Christi, 1965, writ dism’d). The action brought by Mr. McGregor was based upon the premise that the sale to Huffman occurred during the 180 day period specified in the contract. In our opinion, the venue of the action against the corporation properly lies in Harris County, Texas.

We are further of the opinion that the obligation of the corporation to pay the realtor’s commission in accordance with the contract of September 23, 1972, was expressly assumed by the three individual defendants, McAdams, Kyle and Thomason, upon transfer of the property to them on November 20,1972. The instrument of conveyance executed by Kyle as president of the grantor corporation and attested by R. B. Thomason, its secretary, specifically provided:

“The consideration paid and to be paid by Grantees herein to Grantor herein, for the tract or parcels of land and property above described, conveyed, assigned and delivered and the leasehold interest and estate GRANTED, ASSIGNED and CONVEYED, and the property rights set apart and delivered over to Grantees herein by Grantor herein, as follows:
“1) The sum of TEN DOLLARS ($10.00) and other valuable consideration in hand paid by Grantees herein to Grant- or herein, the receipt and sufficiency of which is hereby acknowledged and confessed.
“3) The assumption and payment of all other indebtedness owed by Grantor herein, secured or unsecured, delinquent or current, accrued or to accrue in the future, contractual or under open account purchase, in connection with which Grantor herein assigns all contractual benefits under any contract in writing, or contracts otherwise made not in contravention of the statutes and frauds, the assumption of which is evidenced by the recordation hereof, and the execution of the assumption agreement above referred to.”

In an instrument bearing the same date as the conveyance and apparently attached to it as an addendum, McAdams, Kyle and Thomason expressly assumed and promised to pay the “indebtednesses” described and assumed in the conveyance. Under the terms of these agreements, the three individuals expressly accepted the benefits of and bound themselves to the corporation’s existing contracts. Republic Supply Co. v. Waggoner, 283 S.W. 537 (Tex.Civ.App.—Amarillo, 1926, writ ref’d). See also Peter v. First Nat. Bank of La Grange, 92 S.W.2d 1079 (Tex.Civ.App.—Austin, 1936, no writ). We hold that under the terms of these agreements the individual defendants bound themselves to the obligations imposed by the terms of the September 23, 1972 contract, including the obligation to pay the realtor’s commission in Harris County, Texas. Terrazas v, Carroll, 277 S.W.2d 274 (Tex.Civ.App.— Eastland, 1955, no writ).

The undisputed evidence also established that McAdams, Kyle and Thomason acknowledged their obligation under the contract and authorized Kyle to enter into a modification of its terms on their behalf. In a letter dated April 13, 1973 the realtor, Mr. McGregor, wrote to Mr. Kyle stating the following:

“With reference to our telephone conversation this morning, we would greatly appreciate the opportunity to continue to work on the sale of your motel. As you will recall, we have been offering the property at $537,500.00 with $45,000.00 cash down, and the balance to be financed by some mutually acceptable means.
“We would request that our agreement dated September 25,1972 be extended for an unspecified time, and that it be further modified by this letter to provide for immediate cancellation upon written notice from you or ourselves to that effect. Also, the price and terms would be changed as outlined in the above paragraph.
“Please indicate your approval of an extension of our agreement as outlined herein on the attached copy of this letter, and return it to us as soon as possible.”

Three days later, Mr. Kyle signed this letter indicating the approval of the corporation to the modification and to an extension of the term of the September 25, 1972 agreement for an unspecified time. At the time this letter was accepted and approved by Mr. Kyle, the Ramada Inn property had already been transferred from the corporation into the names of the three individuals. However, Mr. Kyle testified that in signing the letter agreement of April 13, 1973, he intended to bind the partnership to pay any earned commission to the realtor under the terms of the agreement. The other two partners, McAdams and Thomason, testified that Kyle was authorized to act for them and for the corporation in the matter and concurred in Kyle’s testimony. We believe the evidence conclusively established that the three individual defendants accepted and became bound by the terms and conditions of the September 23,1972 contract, as modified and extended by the terms of the April 13, 1973 letter agreement. See Harvey v. Bain, 140 Tex. 375, 168 S.W.2d 234 (1943); McDonald, Texas Civil Practice, Vol. 1, See. 2.11.4, pp. 451-2.

The appellant, McGregor, was not required to prove that he had a cause of action against appellees. He was only required to prove that they had themselves, or through their authorized agent, contracted in writing to pay his commission in the county of suit. Kimbell, Inc. v. Baker, 523 S.W .2d 956 (Tex.Civ.App.—Ft. Worth, 1975, no writ). We hold that the evidence established venue in Harris County under the terms of Subdivision 5, Article 1995, Tex. Rev.Civ.Stat.Ann., as to all defendants, and that the trial court erred in sustaining the defendants’ plea of privilege.

Reversed and rendered.


author: PER CURIAM.

text:
    The LEAGUE OF UNITED LATIN AMERICAN CITIZENS, Appellant, v. LO-VACA GATHERING COMPANY et al., Appellees.
    No. 15474.
    Court of Civil Appeals of Texas, San Antonio.
    Sept. 3, 1975.
    Rehearing Denied Oct. 1, 1975.
    Jose F. Olivares, San Antonio, for appellant.
    Crawford Reeder, City Atty., W. Roger Wilson, Jon C. Wood, San Antonio, William E. Miller, Washington, D. C., for appellees.
   PER CURIAM.

Appellant has perfected its appeal from an order signed on May 15,1975, overruling its motion to set aside an order of November 19, 1974, striking appellant’s petition in intervention in a suit involving the contractual and legal relationships between the City Public Service Board, acting for the City of San Antonio and the public utility suppliers of natural gas to San Antonio.

Appellant attempted to appeal from the interlocutory order of November 19, 1974, but the appeal was dismissed for want of prosecution on May 28,1975. On April 22, 1975, appellant filed a motion in the trial court to set aside the order of November 19, 1974, which it designated as “Motion to Set Aside Order Constituting the City Public Service Board — City of San Antonio, as Trustee for Rate-Payers.” The trial court concluded that it did not have jurisdiction of said motion in that the order of November 19,1974, was then on appeal. The court further held in the alternative that the motion to set aside the order striking the petition in intervention should be denied.

It is settled law that an order dismissing or striking a petition in intervention, or denying permission to intervene, may not be appealed by the intervenor before the rendition of final judgment between the original parties. Stewart v. State, 42 Tex. 242 (1875); Bryant v. Barnes, 433 S.W.2d 786 (Tex.Civ.App.—Waco 1968, writ ref’d); Carter v. Davis, 425 S.W.2d 442 (Tex.Civ.App.—Austin 1968, writ ref’d n. r. e.); Baronofsky v. Baronofsky, 404 S.W.2d 683 (Tex.Civ.App.—Houston 1966, writ dism’d); Kimmel v. Lytton, 371 S.W.2d 927 (Tex.Civ.App.—Waco 1963, writ ref’d).

Appellant urges that we have jurisdiction over this appeal under Article 2250, Tex.Rev.Civ.Stat.Ann. (1971), Section 2, which authorizes an appeal from an interlocutory order: “Overruling a motion to vacate an order appointing a receiver or trustee in any case.” We disagree. This statute has no application here in that neither the order of November 19, 1974, nor the order of May 15, 1975, concerns the appointment of a receiver or trustee. In fact, the main suit does not even relate to the appointment of a receiver or trustee. Nor can it be said that the order of May 15, 1975, is in the nature of a temporary injunction so as to authorize an appeal from the interlocutory order under Article 4662, Tex. Rev.Civ.Stat.Ann. (1940).

The appeal is dismissed for want of jurisdiction.

      . This cause was docketed as our Cause No. 15422.


author: HALL, Justice.

text:
    Carl GRIMES d/b/a Ponderosa Restaurant, Appellant, v. PURE MILK & ICE CREAM COMPANY, Appellee.
    No. 5484.
    Court of Civil Appeals of Texas, Waco.
    Sept. 4, 1975.
    Rehearing Denied Sept. 25, 1975.

      Barron & Barron, John M. Barron, Jr., Bryan, for appellant.
    Haley, Fulbright, Winniford, Bice & Davis, Paul D. Marable, III, Waco, for appel-lee.
   HALL, Justice.

This is a venue case. The suit was brought in McLennan County on a verified open account for an alleged balance due for merchandise sold to the defendant by the plaintiff. The defendant filed his plea of privilege to be sued in Brazos County, the county of his residence. The plaintiff controverted the plea of privilege on the ground that Subd. 5 of Article 1995, Vernon’s Ann.Civ.St. permits venue in the county of suit. After a hearing without a jury the trial court overruled the plea of privilege. We affirm.

The pertinent part of Subd. 5 of the venue statute provides that if a defendant has contracted in writing to perform an obligation in a particular county, expressly naming the county or a definite place therein in the writing, then suit upon that obligation may be brought against the defendant in that county.

In two points of error, the defendant asserts (1) there is no evidence of a contract in writing between the parties, and (2) the court erred in receiving secondary evidence of an alleged written agreement absent pri- or proof excusing direct evidence of the written instrument.

There is no direct evidence of a written agreement between the parties. The only proof relating thereto is the testimony of the plaintiff’s controller. The material part of his testimony may be summarized as follows: He is employed in the plaintiff’s office in Waco, McLennan County. He supervises and personally handles all accounting functions of the company, including accounts receivable. He is familiar with the defendant’s account. The defendant has been the plaintiff’s customer since April, 1973. In the usual course of the plaintiff’s dealings with a credit account, a route salesman delivers merchandise to the customer, prepares an invoice of the delivery, and has the customer or his representative sign the invoice. The signed invoice is sent to the plaintiff’s Waco office for bookkeeping purposes. Monthly, upon the basis of the invoices, the customer is mailed a statement for payment. This was the procedure followed with the defendant until the asserted delinquency upon which this suit is based arose. The plaintiff and its customers, including the defendant, have always understood that the accounts were payable at the plaintiff’s office in Waco. Initially, this understanding was oral; however, beginning about December, 1973, the invoices have contained the statement that they are “payable in Waco, McLennan County, Texas.” Since that time the defendant has made credit purchases and has continued to send his payments to the plaintiff’s office in Waco.

The defendant is right in his contention that a plaintiff is required to prove the written agreement relied upon to invoke the provisions of Subd. 5 of the venue statute. Thompson v. Republic Acceptance Corporation, (Tex.Sup., 1965) 388 S.W.2d 404, 405. However, a sales ticket or invoice containing written provisions for payment in a certain county and signed by the buyer is a contract in writing within the meaning of the statute. Berry v. Pierce Petroleum Corp., 120 Tex. 452, 39 S.W.2d 824, 825 (1931); Drexler v. Bryan Bldg. Products Co. (Tex.Civ.App.—Waco, 1963, no writ hist.) 374 S.W.2d 806, 807; Johnson v. Abco Industries, Inc., (Tex.Civ.App.—Eastland, 1970, no writ hist.) 460 S.W.2d 957, 959. And, secondary evidence of the contents of a written instrument, admitted without objection, is given probative force by our courts to sustain a judgment if the evidence is otherwise competent. Long & Berry v. Garnett, 59 Tex. 229, 232 (1883); Matlock v. Glover, 63 Tex. 231, 235 (1885); Brown v. Lessing, 70 Tex. 544, 7 S.W. 783, 785 (1888); Aetna Insurance Company v. Klein, 160 Tex. 61, 325 S.W.2d 376, 381 (1959); Drake Company v. Lesikar Construction Company, (Tex.Civ.App.—Fort Worth, 1967, no writ hist.) 413 S.W.2d 424, 426; 2 McCormick & Ray, Texas Law Of Evidence 440, § 1579, (2nd ed., 1956); 23 Tex.Jur.2d 324, Evidence, § 211. The competency of the plaintiff’s witness is not questioned. No objection was made to his testimony.

The judgment is affirmed.


text:
    Carol J. COE, Appellant, v. William Douglas COE, Appellee.
    No. 893.
    Court of Civil Appeals of Texas, Tyler.
    Sept. 4, 1975.
    Forrest G. Braselton, Zeleskey, Cornelius, Rogers, Berry & Hallmark, Lufkin, for appellant.
    David Courtade, Simon & Simon, Forth Worth, for appellee.
   ORDER

PER CURIAM.

Final judgment was rendered in this cause on April 17, 1975. No Transcript or Statement of Facts had been filed in this Court, nor has Appellant filed a Motion for Enlargement of Time within which to do so. One Hundred Forty days have elapsed since the judgment was rendered, and 80 days since Appellant’s time expired in which to file a Transcript and Statement of Facts.

Appellee has filed his Motion for Affirmance on Certificate pursuant to Rule 387, T.R.C.P., accompanied by certified copy of the judgment and appeal bond.

Appellee’s Motion to Affirm on Certificate is sustained, including judgment against Forrest G. Braselton and Ralph M. Zeleskey, as Sureties on Appellant’s appeal bond. Jones v. Banks, 331 S.W.2d 370 (Tex.Civ.App., Dallas, 1960, n. w. h.).

Judgment affirmed on certificate.


author: SHANNON, Justice.

text:
    ZURICH INSURANCE COMPANY, Appellant, v. Adrian Harold WIEGERS, Appellee.
    No. 12234.
    Court of Civil Appeals of Texas, Austin.
    Sept. 10, 1975.

      Milton L. Bankston, Joseph V. Crawford, Stubbeman, McRae, Sealy, Laughlin & Browder, Austin, for appellant.

      Bob Roberts, Byrd, Davis, Eisenberg & Clark, Austin, for appellee.
   SHANNON, Justice.

This is an appeal from the judgment of the district court of Travis County overruling the plea of privilege of appellant, Zurich Insurance Company, and pertains to Tex.Rev.Civ.Stat.Ann. art. 1995, §§ 4, 23, 27, 28, and 29a.

In March, 1972, a station wagon owned by Quality Meat of Austin, Inc., and driven by Thomas B. Lopez, collided in Travis County with a pickup truck owned and operated by appellee, Adrian Harold Wiegers. Appellee filed suit in January, 1974, against Vanguard Insurance Company and Reliance Insurance Company. Three weeks later ap-pellee filed an amended petition complaining only of Reliance Insurance Company and appellant, Zurich Insurance Company. Reliance Insurance Company was the liability insurance company for Quality Meat of Austin, Inc. and Zurich Insurance Company was the uninsured motorist insurance carrier for Wiegers. Neither the estate of Thomas B. Lopez, deceased, nor Quality Meat of Austin, Inc., were parties to the suit.

Appellee’s trial petition characterized the lawsuit as one brought under the “Declaratory Judgment Statutes and Rules of the State of Texas” to determine “. which insurance carrier is responsible in this cause, and for such sums of money as pleaded . . .” Appellee prayed for a determination of whether or not coverage existed for Quality Meat of Austin, Inc., by reason of its policy of insurance with Reliance Insurance Company. In the alternative, appellee pleaded that if it were determined that no such coverage existed, then he sought a recovery against his own uninsured motorist carrier, Zurich.

Zurich filed a plea of privilege to be sued in the county of its domicile, Dallas County. Wiegers filed his controverting plea, asserting that venue was in Travis County by reason of Tex.Rev.Civ.Stat.Ann. art. 1995, §§ 4, 23, 27, 28, and 29a. Upon trial, the court overruled the plea of privilege.

Zurich attacks the judgment by twelve points of error contending that: (1) the judgment may not be sustained by §§ 4 and 29a; and (2) appellee waived any other subdivision of art. 1995 which would have sustained the judgment.

Section 4 of art. 1995 provides in part:

“4. Defendants in different counties.—
“If two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides.”

Under § 4 the venue facts to be established are: (1) one defendant resides in the county of suit; (2) the party asserting his privilege is at least a proper party to the suit against the resident defendant; and (3) the plaintiff has a bona fide claim against the resident defendant. Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 (1936), Hoover v. Barker, 476 S.W.2d 126 (Tex.Civ.App.1972, writ dism’d), 1 McDonald, Texas Civil Practice, § 4.10.2 (Rev.Ed.1965).

By its first point of error Zurich claims that venue cannot be maintained in Travis County under § 4 because there is no evidence that its co-defendant, Reliance Insurance Company, was a resident of Travis County.

We agree that Wiegers failed to prove that Reliance Insurance Company was a resident of Travis County. During the trial, and over Zurich’s objection, the court admitted into evidence a response by Reliance Insurance Company to a request for admissions relative to its agent in Travis County. That evidence will 'not sustain the judgment for the reason that a corporation is not a resident of every county in which it maintains an agent. International Harvester Company v. Faris, 360 S.W.2d 864 (Tex.Civ.App.1962, no writ). To meet his burden of showing that Reliance Insur-anee Company is a resident of Travis County for venue purposes, Wiegers had to show that the corporation has its registered office in Travis County. Tex.Bus.Corp.Act Ann. art. 8.08 (1955). See also Tex.Bus. Corp.Act Ann. art. 2.09 (1955), Ward v. Fairway Operating Company, 364 S.W.2d 194 (Tex.1963).

Section 29a provides:

“29a. Two or more defendants.—
“Whenever there are two or more defendants in any suit brought in any county in this State and such suit is lawfully maintainable therein under the provisions of Article 1995 as to any of such defendants, then such suit may be maintained in such county against any and all necessary parties thereto.”

Before § 29a is applicable these conditions must be shown to exist: (1) the suit must be against two or more defendants; (2) all of the defendants must reside outside the county of suit; (3) venue must be proper as against at least one of the defendants under some exceptions to the general venue rule; and (4) the defendant urging his privilege must be a necessary party to the claim against the defendant as to whom venue is proper. 1 McDonald, Texas Civil Practice, § 4.36 (Rev.Ed.1965).

Zurich urges in point of error number nine that § 29a cannot be the basis for the judgment for the reason that Wieg-ers has not shown that appellant is a necessary party to the suit. Assuming that Wiegers’ suit is maintainable in Travis County against Reliance Insurance Company, a question which we do not reach in the absence of Reliance from this appeal, we have concluded that Zurich is not a necessary party to the suit. To be a necessary party under § 29a, the joinder of Zurich in the suit against Reliance Insurance Company must be necessary in order to afford Wiegers the complete relief to which he is entitled in his suit against Reliance. To show this Wiegers had the burden to allege and prove joint responsibility of Zurich and Reliance. Alternative responsibility, as pleaded by Wiegers, is not enough. Loop Cold Storage Company v. South Texas Packers, Inc., 491 S.W.2d 106 (Tex.1973), see State Farm Mutual Automobile Insurance Company v. White, 461 S.W.2d 476 (Tex.Civ.App.1970, no writ).

By its final point of error Zurich claims that Wiegers waived any other sections of art. 1995 which might have sustained the judgment. In addition to §§ 4 and 29a, Wiegers had asserted that venue was proper in Travis County by virtue of §§ 23, 27, and 28.

In his opening statement to the court Wiegers’ counsel said:

“We are going under Section 4 and Section 29a of the venue statute as to whether it is proper to have Mr. Bank-ston [counsel for Zurich], an out-of-state defendant with no agent in this county held in this county by virtue of the other parties.
“Now, Section 4, which we believe is one of the pertinent sections, is that two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides. * * * But, basically, it is if there are two or more defendants and one of them resides here, it is proper venue as to both of them.
“Venue is proper as to Mr. Maroney [counsel for Reliance]; he has no residence; he is an out-of-state corporation also.
“The^ other provision is Section 29a, which provides — and this is the main one — where there are two or more defendants in any suit brought in any county in this state and such suit is lawfully maintainable therein under the provisions of Article 1995 as to any of such defendants — in other words, if it can be maintained lawfully here as to any defendant, then such suit may be maintained in this county against any and all necessary parties hereto.
“We have two questions: No. 1 is whether this suit is legally maintainable against Mr. Maroney in this county. In that connection Twill introduce Requests for Admissions of fact and the answers thereto, in which he [Maroney] judicially admits he is legally sue-able [sic ] here in Travis County by the fact that he is a foreign corporation and has ah agency or representative in this county. Therefore, under Section[s] 27 and 23 of the venue statute, it is legally maintainable against him in Travis County.
“Therefore, the only question becomes whether or not these two parties are necessary parties to determine the question of permissive use of uninsured motorist nature or not [sic].
“I have also got some interrogatories from the police indicating that the accident occurred, for Mr. Wiegers, that he was injured; testimony from myself, and also the denial of the other insurance company to prove the uninsured nature of the defendant. That’s basically our position, Your Honor.”

Waiver is the intentional relinquishment of a known right, or such conduct as warrants an inference of the relinquishment of that right. Praetorians v. Strickland, 66 S.W.2d 686 (Tex.Comm.App.1933, jdgmt. adopted). The conduct warranting such an inference has been said to occur when a party “did or failed to do something which is inconsistent with an intention to exercise its rights.” New Amsterdam Casualty Co. v. Hamblen, 144 Tex. 306, 190 S.W.2d 56, 59 (1945). In some respects, the concept of waiver is not dissimilar to the doctrine of election of remedies. Roberts v. Griffith, 207 S.W.2d 443 (Tex.Civ.App.1947, writ ref’d n. r. e.). The conduct in question must be understood as a waiver by the other party asserting the doctrine. Garner v. Texas State Board of Pharmacy, 304 S.W.2d 530 (Tex.Civ.App.1957, writ ref’d).

A reading of counsel’s statement does suggest that he informed the court and opposing counsel that he was relying only upon subdivisions 4 and 29a. Appellee, however, did plead subdivision 27 and he adduced some evidence to support that contention. Under these circumstances, we are not persuaded that counsel for appellee in making the quoted statement waived ap-pellee’s right to maintain venue in Travis County under subdivision 27.

We are of the opinion that Wiegers established venue in Travis County pursuant to subdivision 27. Insofar as relevant here that subdivision provides as follows: “Foreign corporations . . . may be sued in any county where the cause of action or a part thereof accrued . . . ”

The venue facts to be established under subdivision 27 are (1) that the defendant is a foreign corporation, (2) that the plaintiff had a cause of action against the defendant, and (3) that the cause of action or part thereof arose in the county of suit. General Mills, Inc. v. Livingston, 333 S.W.2d 215 (Tex.Civ.App.1960, no writ).

To show that he had a “cause of action” against appellant, Wiegers had to prove that Lopez was driving an “uninsured automobile” at the time of the collision. An “uninsured automobile” was defined in appellant’s insurance policy as including an automobile with respect to which there was no bodily injury liability insurance policy applicable at the time of the accident “. or with respect to which there is a bodily injury liability bond or insurance policy applicable at the time of the accident but the company writing the same denies coverage thereunder . . . ”

Whether Reliance Insurance Company had denied coverage under its liability policy was a material issue in the hearing. Without proof of the fact of denial, appellee Wiegers could not prove a cause of action against Zurich, his own uninsured motorist carrier as required under subdivision 27.

Appellant argues that the following testimony, showing denial of coverage, was hearsay. Because there was no other evidence bearing upon denial, appellant says there was no evidence of the necessary venue fact:

“. . . I am Bob Roberts; I am attorney of record for the plaintiff [ap-pellee] in this cause. I would like to state I was contacted by Jack Maroney, attorney of record for Reliance Insurance Company, the insurer for the owner of the other vehicle involved in this collision; that is, the 1971 Toyota owned by Quality Meat Company. Mr. Maroney denied that coverage existed in this cause by virtue of the alleged lack of permission that the driver had at the time of the collision; in other words, that he was not driving the vehicle with permission, nor was he acting in the scope of his employment for Quality Meat, Incorporated; and that therefore he denied any coverage existed as to that collision.” (Emphasis added)

Appellant argues that the testimony is hearsay for the reason that it was offered for the purpose of showing the truth of the fact asserted: that Reliance Insurance Company denied coverage.

The appellee’s counter-argument, with which we agree, is that the testimony was properly received because the utterance of the words had legal significance without regard to its truth or falsity. Burrell Engineering & Construction Company v. Grisier, 111 Tex. 477, 240 S.W. 899 (1922), Jaffe v. Deckard, 261 S.W. 390, 399 (Tex.Civ.App. 1924, no writ), 6 Wigmore on Evidence, § 1770 (3rd Ed. 1940).

The judgment is affirmed.

Affirmed.

      . It is arguable that in adducing evidence pertinent to subdivision 27, Wiegers was in fact attempting to discharge one of his burdens under subdivision 29a.


text:
    Sandra PENSHORN, Appellant, v. Jimmie PENSHORN, Appellee.
    No. 15445.
    Court of Civil Appeals of Texas, San Antonio.
    Sept. 10, 1975.
    Rehearing Denied Oct. 1, 1975.

      Pat Maloney, San Antonio, for appellant.
    Kirk Patterson, Mitchell & Stewart, San Antonio, for appellee.
   BARROW, Chief Justice.

Appellant, the mother of the two-year-old minor child involved herein, has perfected her appeal from an order denying her motion to modify a divorce decree with regard to custody of the minor child.

Appellant and appellee were divorced on April 25,1974. The decree appointed appel-lee, the father of the child, as managing conservator and appellant as possessory conservator. Appellant was not present or represented by counsel at the divorce hearing, but had waived citation and entered her appearance by a sworn waiver.

On January 15, 1975, appellant filed a motion to modify the decree so that she would be managing conservator of the child. A full hearing was had before the court on February 7, 1975, and at the conclusion of same, appellant’s motion was denied. The trial court found that there had been no material or substantial change in circumstances or conditions of the minor child since entry of the divorce decree and that the best interests of the minor child would be served by leaving him with appel-lee as managing conservator.

Appellant urges four points of error on this appeal: (1) the trial court erred in not appointing a Guardian ad Litem to represent the minor child at the divorce hearing; (2) the trial court erred in not appointing a Guardian ad Litem to represent appellant at the divorce hearing; (3) the trial court erred in not requiring a written agreement concerning the custody of the minor child; and (4) the trial court erred in not appointing appellant as managing conservator.

Article 14.08, Tex.Family Code Ann. (1975), requires a finding “that the circumstances of the child have materially and substantially changed and that modification is in the best interest of the child” as a predicate for modifying an order of the court providing for managing conservator-ship of a child. See also: Meucci v. Meucci, 457 S.W.2d 48 (Tex.1970); Holloway v. Allison, 494 S.W.2d 612 (Tex.Civ.App.— Tyler 1973, no writ); Canavespe v. Havins, 478 S.W.2d 166 (Tex.Civ.App.—Fort Worth 1972, no writ).

Appellant has no point challenging the trial court’s findings that there had been no material or substantial change in circumstances or conditions of the minor child after entry of the divorce decree and that the best interests of the minor child would be served by denying the motion for modification of the original decree. It is therefore unnecessary to consider the evidence in support of these findings. All of appellant’s points relate to errors allegedly occurring at the divorce trial. Therefore, nothing would be gained by a consideration of these points at this time.

The judgment of the trial court denying appellant’s motion to modify the original divorce decree is affirmed.

      . Appellant has filed a Bill of Review wherein she challenges the validity of the divorce decree, but that cause is not before us.