author: REYNOLDS, Justice.

text:
    COLORADO INTERSTATE GAS COMPANY, Appellant, v. MAPCO, INC., Appellee.
    No. 8904.
    Court of Civil Appeals of Texas, Amarillo.
    July 31, 1978.

      Gibson, Ochsner, Adkins, Harlan & Han-kins, Ira L. Edwards, Jr., Amarillo, for appellant.
    Holliman, Langholz, Runnels & Dorwart, Thomas M. Davidson, Tulsa, Okl., Lemon, Close, Atkinson, Shearer & McCutcheon, Perryton, Lovell, Lyle, Renfer, Minkley & Moore, Jim R. Duvall, Dumas, for appellee.
   REYNOLDS, Justice.

Defendant Colorado Interstate Gas Company appeals from an order overruling its plea of privilege. Plaintiff MAPCO, Inc., has failed to clearly establish an exception to the defendant’s right to be sued in the county of its pleaded domicile. Reversed and rendered.

MAPCO, Inc., instituted this suit in Moore County against Coastal States Gas Corporation, Colorado Interstate Gas Company and CIG Exploration, Inc., gatherers of natural gas into their Moore County pipelines from whence they transport it to Fritch Plant, MAPCO’s gas processing plant located in Hutchinson County. By its suit, MAPCO seeks a declaratory judgment determining that it has the right, under a series of natural gas processing agreements and over defendants’ nonconcurrence, to undertake a project to rebuild its Fritch Plant to extract all hydrocarbon constituents not affecting the contractual BTU content of the natural gas for delivery.

Colorado Interstate Gas Company, a Delaware corporation doing business in Texas, interposed its plea of privilege, pleading that its principal place of business in Texas is in Potter County, the county to which the cause should be transferred. MAPCO controverted, asserting that venue is proper in Moore County under subdivisions 10, 14, 23, 24, 27 and 29a of Article 1995, the general venue statute.

Prior to a hearing on the venue matter, MAPCO moved for, and the trial court ordered, the nonprejudicial dismissal of Coastal States Gas Corporation and CIG Exploration, Inc., as defendants. After the venue evidence was heard, the trial court overruled Colorado Interstate Gas Company’s plea of privilege. This appeal ensued.

Because the venue order is unaccompanied by findings of fact and conclusions of law, it must be affirmed if it is supported by evidence sufficient to sustain venue under any invoked subdivision of the venue statute. National Farmers Organization v. Ramsey, 500 S.W.2d 192, 193 (Tex.Civ.App.—Amarillo 1973, no writ). Yet, if the plaintiff relies upon a specified exception of the venue statute to overcome the defendant’s plea of privilege, the plaintiff must allege and prove the venue facts stated in the particular exception applicable or appropriate to the character of the action alleged in plaintiff’s petition. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91, 93-95 (1935). Such venue facts must be both clearly pleaded and proved by a preponderance of the evidence, and all doubts must be resolved in favor of the general venue rule, Goodrich v. Superior Oil Co., 150 Tex. 159, 237 S.W.2d 969, 972 (1951), for venue may not be sustained by implication. Burtis v. Butler Bros., 148 Tex. 543, 226 S.W.2d 825, 828 (1950).

In appealing, Colorado Interstate Gas Company (CIG) has undertaken to demonstrate that none of the specified exceptions invoked by MAPCO is a basis for overcoming CIG’s privilege to defend the suit in Potter County. Within its response MAPCO makes no appellate contention that, and has not briefed the questions whether, subdivisions 10, 24 and 29a will sustain venue in Moore County. Accordingly, CIG’s unchallenged demonstrations that these exceptions have no application are accepted as correctly stating the facts representing inapplicability. Rule 419, Texas Rules of Civil Procedure; Milam v. Langford, 533 S.W.2d 857, 859 (Tex.Civ.App.—Amarillo 1976, no writ). Beyond that, although MAPCO had an absolute burden to plead the venue facts necessary to activate the statutory exceptions relied upon, Pena v. Sling, 135 Tex. 200, 140 S.W.2d 441, 448, 128 A.L.R. 1223 (1940), there is no pleaded contention that MAPCO is seeking recovery of personal property located in Moore County so as to bring its suit within subdivision 10. First State Bank of Childress, Texas v. Fields, 551 S.W.2d 476, 479 (Tex.Civ.App.—Amarillo 1977, writ dism’d). Similarly, while MAPCO’s burden to prove its right to venue in the county of suit is as complete and absolute as is its burden to plead the same, Pena v. Sling, supra, at 448, we have not been directed to any proof in the record that CIG is a common carrier within the sense of subdivision 24. Likewise, subdivision 29a which, by its own terms, applies only if there is more than one defendant, was rendered inoperative by the dismissal of all defendants except CIG before the venue hearing. Accord, Zurich Insurance Company v. Wiegers, 527 S.W.2d 511, 514 (Tex.Civ.App.—Austin 1975, no writ).

CIG disputes MAPCO’s claim to venue in Moore County pursuant to that portion of subdivision 14 which mandates that a suit for the recovery of land must be brought in the county where the land or a part thereof lies. The venue facts which must be established in this regard are that (1) the suit is, as disclosed by the petition, of a type specified in this subdivision, and (2) the land or a part thereof is, as shown by proof independent of the pleadings, located in the county of suit. Piazza v. Phillips, 153 Tex. 115, 264 S.W.2d 428 (1954). The nature of the suit is determined from the facts alleged in plaintiff’s petition, the rights asserted and the relief sought, Renwar Oil Corporation v. Lancaster, 154 Tex. 311, 276 S.W.2d 774, 775 (1955), and the real character of the lawsuit governs the venue. Warren v. Denison, 531 S.W.2d 215, 218 (Tex.Civ.App.—Amarillo 1975, no writ).

It is not disputed that the natural gas containing the hydrocarbon constituents at issue is produced from land lying partly in Moore County. So, resort to MAPCO’s pleadings determines if the type or real character of the action brings it within the ambit of subdivision 14.

MAPCO’s pleadings contain these allegations: CIG is obligated by an October 15, 1931 contract to deliver natural gas underlying certain lands, including lands situated in Moore County. MAPCO has succeeded to a December 26, 1951 deed grant of

All hydrocarbons having a boiling point as high and higher than ethane, including without limitation, all ethane . contained in the natural gas in place . less, however, only such hydrocarbon constituents required in good faith . to be delivered . . . pursuant to a contract dated October 15, 1931, as amended .

under the same lands. The deed obligated CIG to process the natural gas to remove, and pay to MAPCO eighty-five per cent of the profits from the sale of, the hydrocarbon constituents. On March 7, 1963, MAP-CO and CIG entered into two agreements by virtue of which CIG would close its processing plant, MAPCO would build its own plant to extract its hydrocarbon constituents from the natural gas and would pay CIG twenty per cent of the revenues from the sale of the hydrocarbon constituents, and MAPCO’s extraction shall not reduce the heating value of the residue gas below a specified BTU content. MAPCO constructed and placed its plant in operation.

Further alleged is that thereafter on Au-. gust 31, 1967, MAPCO and CIG executed another agreement to clarify the rights and obligations of MAPCO to process the gas. By this agreement, MAPCO is granted the right to extract all hydrocarbon constituents in the natural gas, provided that (1) the heating value of the residue gas shall not be reduced below the specified minimum BTU contents, (2) the residue returned to CIG shall be of pipeline quality, and (3) MAPCO shall extract no more helium than is necessary in extracting hydrocarbons to reach the minimum BTU contents specified. In accordance with the latest agreement, MAPCO constructed a new processing unit at its Fritch Plant located in Hutchinson County. CIG produces the natural gas, gathers it into its Moore County pipelines and transports some of it to the Fritch Plant for processing. MAPCO processes the natural gas without extracting the ethane from it, and delivers the residue gas to CIG.

MAPCO then alleges that it has proposed to undertake a project to rebuild its Fritch Plant at a cost of $20,000,000 to extract all hydrocarbon constituents, including ethane, and to still deliver the residue gas to CIG at the specified minimum BTU contents. CIG has taken the position that MAPCO has no right to undertake the project; in the meantime, MAPCO claims, its hydrocarbon constituents are being lost to it.

MAPCO prays for a judgment declaring that it has the right to undertake the project and for recovery, in a supplemental proceeding, of damages for the value of its hydrocarbon constituents lost during the delay caused by CIG in completing the project.

The ultimate or dominate purpose of the suit, and not how the cause of action is described, determines whether a suit falls within the purview of subdivision 14. Texaco, Inc. v. Gideon, 366 S.W.2d 628, 631 (Tex.Civ.App.—Austin 1963, no writ). Although MAPCO has pleaded its title to the hydrocarbon constituents contained in the natural gas in place, which is realty, Stephens County v. Mid-Kansas Oil & Gas Co., 113 Tex. 160, 254 S.W. 290, 292 (1923), MAPCO does not seek a declaration of that title. MAPCO’s petition, in the nature and form of a declaratory judgment action, does not contain either the customary form of allegations or a prayer for the recovery of land within the meaning of subdivision 14, and the damages sought are not for injury to the realty itself. Instead, as manifested by its pleadings, MAPCO primarily seeks a declaration that its proposed extraction project in Hutchinson County is sanctioned by the 1967 clarification agreement for processing the natural gas. At that stage in the process, the natural gas containing the hydrocarbon inerts which MAPCO seeks to recover, having been lawfully produced and severed from the land, has ceased to be realty and has become personalty in the possession of MAPCO. See W. B. Johnson Drilling Company v. Lacy, 336 S.W.2d 230, 234 (Tex.Civ.App.—Eastland 1960, no writ); Chaffin v. Hall, 210 S.W.2d 191, 194 (Tex.Civ.App.—Eastland 1948, writ ref’d n. r. e.). The ultimate purpose of the action, then, is to secure a declaration that MAPCO has the contractual right to retain its personal property in its possession in Hutchinson County, a declaration that is not contingent on MAPCO’s title to the hydrocarbon inerts in place in Moore County. Thus, the primary purpose of the action is not for the recovery of land so as to fix venue under subdivision 14. Lake v. Reid, 252 S.W.2d 978, 982 (Tex.Civ.App.—Texarkana 1952, no writ).

The next inquiry is whether MAPCO sustained its burden to clearly plead and prove venue in the county of suit as authorized by either subdivision 23 or subdivision 27. As material to the appellate issues, the former subdivision allows a suit against a private corporation to be kept in the county where the corporation’s principal office is situated, while the latter permits a suit against a foreign corporation doing business within Texas to be maintained in the county in which the principal office of the corporation may be situated or where such corporation may have an agency or representative.

There is presented, by CIG’s first three points of error and MAPCO’s first counterpoint, the question whether the record sufficiently establishes that CIG’s principal office is located in Moore County. Although it is undisputed that CIG is a private, foreign corporation doing business within the state, we do not reach an evaluation of the evidence pertaining to the location of its principal office.

When CIG filed its plea of privilege in proper form alleging that its principal office is situated in Potter County, it constituted prima facie proof of its right to a change of venue on that account, and could be overcome only by MAPCO’s both pleading and proving a statutory right to maintain the suit in Moore County. Pena v. Sling, supra, at 448. However, in controverting CIG’s plea, MAPCO’s affidavit neither denied nor challenged CIG’s allegation that its principal office is situated in Potter County, and nowhere in MAPCO’s pleadings is there set forth, even generally, any allegation that CIG’s principal office is situated in Moore County. To sustain venue in Moore County because CIG’s principal office is located there, MAPCO had the burden to plead, as well as to prove, that exception. See Newlin v. Smith, 136 Tex. 260, 150 S.W.2d 233, 234 (1941). MAPCO did not so plead. and, consequently, that exception does not benefit MAPCO. Employers’ Fire Insurance Company v. Alvarez, 511 S.W.2d 400, 402 (Tex.Civ.App.—Amarillo 1974, no writ).

The remaining query, then, is whether CIG had, within the scope of subdivision 27, an agency or representative in Moore County. For venue purposes, the agency or representative contemplated refers, according to Milligan v. Southern Express, Inc., 151 Tex. 315, 250 S.W.2d 194, 198 (1952),

. to a situation in which the business of the defendant is, in more or less regular and permanent form, actually conducted in the county of suit, or one in which a party possessing broad powers from the defendant resides in the county, the one instance being that of “agency” and the other of “representative.”

The Milligan pronouncement was referenced to the language of subdivision 23, but the same construction is given to subdivision 27. Fireman’s Fund Insurance Company v. McDaniel, 327 S.W.2d 358, 363 (Tex.Civ.App.—Beaumont 1959, no writ). However, subdivision 27 does not authorize — as, for example, subdivision 24 authorizes for a suit against a common carrier — maintenance of the suit in any county where the defendant “does business.” And it is evident from the developing language of Milligan that if a corporation does business in the county of suit through an employee, the employee, to become an agent or representative of the corporation, must do more than mechanically execute tasks for the corporation, Mobil Oil Corporation v. Cook, 494 S.W.2d 926, 933 (Tex.Civ.App.—Amarillo 1973, no writ); he must be invested with some discretionary power in conducting the corporate affairs. Milligan v. Southern Express, Inc., supra, at 197; Amoco Production Company v. Mayer, 540 S.W.2d 353, 356 (Tex.Civ.App.—Beaumont 1976, writ dism’d). Thus, by the Milligan standard, the employee of a corporation becomes its agent or representative only if he is authorized to bring about a business relationship between the corporation and a third party. Allis-Chalmers Mfg. Co. v. Coplin, 445 S.W.2d 627, 628 (Tex.Civ.App.—Texarkana 1969, no writ).

As proof that CIG has an agency or representative in Moore County, MAPCO first points to the details of CIG’s operations as undisputed evidence that the business of CIG is, in a regular and permanent form, actually conducted in Moore County. Undeniably, CIG does business in Moore County where its largest operation in Texas is located. The Moore County facilities, representing an investment in excess of thirty-one million dollars, include natural gas gathering lines, transmission lines and two natural gas processing plants. Employed by CIG in the operation of its business in the county are more than 140 nonsu-pervisory employees and at least fourteen supervisors. Yet, as the authorities enunciate, an agency or representative for venue purposes entails more than the fact that the defendant conducts or does business in the county of suit.

As further proof of an agency or representative, MAPCO calls attention to the job descriptions of CIG’s district superintendent and field superintendents headquartered in Moore County. The district superintendent is responsible for the operations and maintenance of all pipelines, compressor stations, measurement facilities and gas processing, including the deliverability of both the quantity and quality of gas gathered. The field superintendents assist the district superintendent in the operations and supervise their subordinates for efficient, economical operations. There also is an area superintendent whose job description includes the element of frequent contact with customers, suppliers and the public.

While the job descriptions are impressive and it is not questioned that the daily operations are directed by the supervisors, there is no direct evidence that any supervisor does, or has the discretionary power to, contract or otherwise bring about any business relationship between CIG and third parties. To the contrary, the evidence is that the direct operational authority is reserved to and exercised by CIG’s management personnel located in Colorado Springs, Colorado, and communicated to the district superintendent for execution. CIG’s Colorado personnel are in daily contact with the district superintendent in Moore County by use of a direct communication line. Although the district superintendent makes recommendations, all decisions relative to the preparation of the budget, the hiring and firing of personnel, the purchase of material of any significant amount, the gas pressure required for operations, the quantity and quality of natural gas transported, the sale of liquids extracted at the local plants, and the maintenance programs are made in Colorado. Indeed, the evidence is that MAPCO personnel deal with the CIG personnel in the Colorado office, and there is no evidence of MAPCO’s entry into a business relationship through, or even any negotiations with, any CIG personnel stationed in Moore County.

Granted, the evidence is that CIG does business on a large scale in Moore County through its employees, but there is a lack of probative evidence for a finding that any employee has been vested with the requisite discretionary power to bring about a business relationship between CIG and a third party so as to constitute the employee an agent or representative for venue purposes. This lack of evidence renders inapposite those cases containing evidence of a person’s power to bind his principal which are advanced by MAPCO as authority for the conclusion that CIG has an agency or representative in Moore County. Here, the evidence, viewed in its brightest light, does no more than imply an agency or representative which, of course, does not sustain venue. Burtis v. Butler Bros., supra, at 828.

With due deference to the trial court’s fact finding prerogative, we consider that MAPCO’s pleadings and the evidence fail to establish with sufficient clarity the venue facts of any particular exception relied upon by MAPCO as applicable or appropriate to the character of the action alleged in MAPCO’s petition. See Compton v. Elliott, supra, at 93, 95. There is no suggestion that the venue facts were not fully developed. Under these circumstances, CIG was entitled to have its plea of privilege sustained.

The judgment of the trial court is reversed. Judgment is here rendered that MAPCO’s cause of action be, and it hereby is, transferred to a district court of Potter County. Rule 434, T.R.C.P.

      . Citations of numbered subdivisions are referenced to the subdivisions of Tex.Rev.Civ.Stat. Ann. art. 1995 (1964).

      . This holding is unaffected by the disapproval expressed in Commercial Insurance Company of Newark, New Jersey v. Adams, 369 S.W.2d 927 (Tex.1963), of another holding of the case.


source: Caselaw Access Project

author: ODEN, Justice.

license: Public Domain

text:
    Henry M. BRADFORD, Appellant, v. Richard COLE and wife, Janice Cole, Appellees.
    No. 8574.
    Court of Civil Appeals of Texas, Texarkana.
    Aug. 1, 1978.
    Rehearing Denied Aug. 29, 1978.

      See also, Tex.Civ.App., 559 S.W.2d 122.

      J. R. Cornelius, The Cornelius Law Firm, Jefferson, for appellant.
    Joe W. Lovelace, Lovelace & Thompson, Linden, for appellees.
   ODEN, Justice.

Henry M. Bradford (Bradford) brought suit against Richard Cole and wife, Janice Cole, (Mr. and Mrs. Cole) to compel specific performance of an alleged contract to convey the Magnolia Manor Nursing Home. Mr. and Mrs. Cole filed a plea of privilege to be sued in Collin County, the county of their residence. Bradford controverted the plea and amended his pleadings to include a statutory action in trespass to try title. Mr. and Mrs. Cole supplemented their plea by affirmatively alleging that Bradford’s allegations that he had title or a right to possession of Magnolia Manor Nursing Home were false and fraudulently made for the purpose of maintaining venue in Marion County, the county of suit. The plea of privilege was sustained and Bradford has perfected the appeal.

Mr. and Mrs. Cole are the owners of Magnolia Manor Nursing Home (nursing home). The tangible properties of the nursing home, an unincorporated business located in Marion County, consist of both real property and personal property. Bradford alleges that on October 10, 1975, he agreed to become the manager of the nursing home in consideration for Mr. Cole’s agreement to convey the nursing home for $300,000.00. Bradford became the manager on January 19, 1976, and served in that capacity until shortly after this suit was filed. He performed his duties in an admirable fashion. During the spring of 1977, Bradford attempted to purchase the nursing home for $300,000.00, but was advised by Mr. and Mrs. Cole that they would not sell it for that sum.

The existence of an agreement to sell, as well as the terms of any extant agreement, are in dispute. For purposes of this opinion we will assume, without deciding that Bradford proved the existence of a legally binding agreement to convey the nursing home for $300,000.00. Bradford contends that venue should- be maintained in Marion County based on his proof of the venue facts required under Subds. 7, 10 and 14 of Article 1995, Tex.Rev.Civ.Stat.Ann.

The venue facts under Subd. 14 are (1) the nature of plaintiff’s claim and (2) the location of the land. These facts are ordinarily proved by the allegations of plaintiff’s petition and by evidence showing the location of the land. Piazza v. Phillips, 153 Tex. 115, 264 S.W.2d 428 (1954); Cow den v. Cowden, 143 Tex. 446, 186 S.W.2d 69 (1945). An additional issue is presented for decision at the venue hearing in situations such as this where a defendant alleges in his plea of privilege that certain allegations of plaintiff were fraudulently made for the purpose of maintaining venue in the county of the suit. Batex Oil Company v. LaBrisa Land and Cattle Co., 352 S.W.2d 769 (Tex.Civ.App. San Antonio 1961, writ dism’d); and Gold v. Simon, 424 S.W.2d 32 (Tex.Civ.App. Fort Worth 1968, no writ). The law is well settled in this state that a suit for specific performance of a contract of sale and purchase of land is not within Subd. 14. Smith v. Hall, 147 Tex. 634, 219 S.W.2d 441 (1949). There is a marked difference between an equitable right and an equitable title with regard to a contract for the sale of land, and a purchaser’s equitable right under such a contract does not ripen into an equitable title until he has fully performed under the contract. Magee v. Young, 145 Tex. 485, 198 S.W.2d 883 (1946); and Johnson v. Wood, 138 Tex. 106, 157 S.W.2d 146 (1941). A suit based upon an equitable right, such as a suit for specific performance of a contract for the sale of land, as distinguished from a suit to recover the equitable title to land, is not a suit for recovery of land or to quiet title to land within the meaning of Subd. 14. Edgar v. Bartek, 507 S.W.2d 831 (Tex.Civ.App. Corpus Christi 1974, writ dism’d), and cases cited therein. Bradford’s claim is one to compel specific performance of a contract to convey the land on which the business of the nursing home is operated. He concedes that he does not have a deed to the property and that he does not claim title to the property based upon any statute of limitations. Under these circumstances the trial court did not err in holding that the statutory trespass to try title action was fraudulently brought by Bradford for the purpose of maintaining venue in Marion County.

Bradford next contends that he is entitled to maintain venue in Marion County based upon his proof of the venue facts prescribed by Subd. 10. The controlling venue facts under Subd. 10 are (1) the petition must show that the suit is brought to recover personal property located in the county where the suit is filed, and (2) the plaintiff must prove that the property is located in such county. Walshak v. Walshak, 417 S.W.2d 307 (Tex.Civ.App. Corpus Christi 1967, no writ). Bradford alleges that his agreement with Mr. and Mrs. Cole was for the purchase of a nursing home consisting of both real property and personal property located in Marion County. Bradford’s contention that venue should be maintained in Marion County under Subd. 10 will be overruled for the same reasons that his contention under Subd. 14 was overruled. A suit to compel specific performance of a contract to sell personal property will not serve as a basis for sustaining venue under Subd. 10 any more than a suit to compel specific performance of a contract to convey land will serve as a basis for sustaining venue under Subd. 14.

Bradford’s final contention is that venue should be maintained in Marion County based upon his proof of the venue facts prescribed by Subd. 7. He avers that actionable fraud was committed by Mr. and Mrs. Cole against him. In essence, he states that Mr. Cole did not intend to perform the obligations imposed upon him by the agreement to convey the nursing home for $300,000.00 at the time the agreement was made. In order to sustain venue under Subd. 7, it is essential to prove that actionable fraud was committed against the plaintiff in the county where the action is brought. Morgan v. Box, 449 S.W.2d 499 (Tex.Civ.App. Dallas 1969, no writ). There is no evidence in the record to substantiate Bradford’s claim that actionable fraud was committed in Marion County. On the contrary, Bradford testified that the alleged promise was made at Mr. Cole’s home in Collin County. Bradford’s contention that venue should be maintained in Marion County based upon his proof of the venue facts prescribed by Subd. 7 is overruled for the reason that there is no proof that any actionable fraud was committed in Marion County.

The judgment of the trial court will be affirmed.

CORNELIUS, C. J., not participating.

      . All statutory references hereafter made are to Article 1995, Tex.Rev.Civ.Stat.Ann., unless otherwise stated.


author: J. CURTISS BROWN, Chief Justice.

text:
    John R. JENKINS, Appellant, v. STATE of Texas et al., Appellees.
    No. 1820
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Aug. 2, 1978.
    Rehearing Denied Aug. 23, 1978.

      W. Douglas Matthews, Schmidt & Matthews, Houston, for appellant.
    John L. Hill, Atty. Gen., Jack Sparks, Asst. Atty. Gen., Austin, David M. Kendall, Jr., First Asst. Atty. Gen., Robert Steve Bickerstaff, Jr., Asst. Atty. Gen., Austin, for appellees.
   J. CURTISS BROWN, Chief Justice.

This is an appeal from a judgment sustaining a plea in abatement in a suit for personal injuries under the Texas Tort Claims Act.

John R. Jenkins (appellant) filed suit against six governmental entities and two individuals on May 25, 1976. He alleged that he received improper and negligent medical treatment in 1973 and 1974 while he was incarcerated in three different penal institutions managed by the eight defendants. The appellant further alleged that, as a result of that improper and negligent treatment, he experienced repeated epileptic seizures and convulsions and thereby sustained severe personal injuries. Three of the defendants filed a “Plea to the Jurisdiction, Plea in Abatement and Original Answer.”

Without hearing any evidence, the trial court rendered an amended judgment in which it severed the appellant’s cause of action against two of those three defendants, the State of Texas and the Texas Department of Corrections, and sustained a plea in abatement for want of jurisdiction as to those two defendants (appellees). In his appeal from the amended judgment sustaining the plea in abatement, the appellant has assigned six points of error.

The appellant contends, in his first point, that the trial court erred in sustaining the plea in abatement for want of jurisdiction because the court did in fact have jurisdiction over the appellees. This action for personal injuries was brought under the limited waiver of governmental immunity provided by the Texas Tort Claims Act, Tex.Rev.Civ.Stat.Ann. art. 6252-19 (1970), as amended, (Supp. 1978). Section 5 of the Torts Claims Act provides: “All cases arising under the provisions of this Act shall be instituted in the county in which the cause of action or a part thereof arises.” Tex. Rev.Civ.Stat.Ann. art. 6252-19, § 5 (1970). The appellant alleged, in his first amended petition, that he was injured while imprisoned in penal facilities in Harris and Walker Counties. He asserted that his injuries were caused by the defendants’ negligence and negligent use of tangible property, but he did not specify the location where the alleged acts of negligence attributable to the two appellees occurred.

Since the trial court granted the plea in abatement without hearing any evidence, the court’s action was tantamount to sustaining a general demurrer to the first amended petition. Turman Oil Co. v. Roberts, 96 S.W.2d 724 (Tex.Civ.App.-Austin 1936, writ ref’d). We must therefore accept the appellant’s allegations of fact in the petition as true and indulge every reasonable inference in support thereof. Longoria v. Alamia, 149 Tex. 234, 230 S.W.2d 1022 (1950). One reasonable inference that could be drawn from the appellant’s allegations is that his injuries were caused by the appel-lees’ negligence and negligent use of tangible property in Harris County and, thus, that a part of his cause of action arose in Harris County. We hold, therefore, that the trial court erred in sustaining the plea in abatement for want of jurisdiction.

Having thus sustained the appellant’s first point, we will consider the other grounds urged by the appellees in order to determine whether the judgment may be upheld on any of those grounds. See Tex. R.Civ.P. 434.

In his first amended petition, the appellant alleged that he was injured on or before March 9, 1974, while imprisoned in penal institutions operated by the defendants. He further alleged that he was released from prison on or about September 9, 1974. He filed this lawsuit on May 25, 1976, within two years of his release from prison but more than two years after his cause of action allegedly arose. The appel-lees contend that the appellant’s claim is therefore barred by the two-year statute of limitations. See Tex.Rev.Civ.Stat.Ann. art. 5526 (1958). That contention is without merit. The statute of limitations was tolled during the period of the appellant’s imprisonment and did not begin to run until after his release on September 9,1974. Tex.Rev. Civ.Stat.Ann. art. 5535 (Supp. 1978). The statute of limitations did not expire until September 9,1976, more than three months after the appellant filed suit.

The appellees also contend that the judgment sustaining the plea in abatement should be affirmed because the appellant’s petition failed to allege a cause of action under the Tort Claims Act. The Act provides, in part:

Each unit of government in the state shall be liable for money damages for property damage or personal injuries or death when proximately caused by the negligence or wrongful act or omission of any officer or employee acting within the scope of his employment or office arising from the operation or use of a motor-driven vehicle and motor-driven equipment, other than motor-driven equipment used in connection with the operation of floodgates or water release equipment by river authorities created under the laws of this state, under circumstances where such officer or employee would be personally liable to the claimant in accordance with the law of this state, or death or personal injuries so caused from some condition or some use of tangible property, real or personal, under circumstances where such unit of government, if a private person, would be liable to the claimant in accordance with the law of this state. Such liability is subject to the exceptions contained herein, and it shall not extend to punitive or exemplary damages. Liability hereunder shall be limited to $100,000 per person and $300,000 for any single occurrence for bodily injury or death and to $10,000 for any single occurrence for injury to or destruction of property.

Tex.Rev.Civ.Stat.Ann. art. 6252-19, § 3 (Supp. 1978) (emphasis added). The appel-lees assert that the appellant did not allege a cause of action against them because he did not allege in his petition that he sustained personal injuries “caused from some condition or some use of tangible property . .” The first amended petition contained the general allegation, however, that the appellant was injured “due to the negligence and negligent use of tangible property by the Defendants and by and through their agents, servants and employees.” (Emphasis added). Since we must accept as true the factual allegations contained in the petition, Longoria v. Alamia, supra, we hold that the appellant did state a cause of action under the Tort Claims Act for injuries caused by the use of tangible property.

None of the parties to this appeal has referred in the briefs or oral arguments to the above-quoted language. The appellant has not claimed on appeal that his general allegation stated a cause of action under the Torts Claims Act; he has argued, instead, that the petition stated a cause of action since it contained the specific allegations that the appellees (1) negligently used his medical records by “failing to timely obtain them . . . and to properly use them after receiving them,” and (2) negligently used certain medications by failing to administer those medications to him. The appellees assert that those allegations are not allegations that the appellant’s injuries were caused by some use of tangible property, but are allegations that his injuries were caused by the appellees’ failure to diagnose and treat his epileptic condition properly. The appellees also argue that they are not liable for injuries caused by the use of the appellant’s medical records because those records were not prepared, furnished, controlled or owned by the appel-lees.

The extent to which the Legislature has waived governmental immunity in situations where personal injuries are caused by “some use of tangible property” has been described by one court of civil appeals as “far from clear.” Beggs v. Texas Dep’t of Mental Health & Mental Ret., 496 S.W.2d 252, 254 (Tex.Civ.App.-San Antonio 1973, writ ref’d). We are, nevertheless, enjoined to construe that provision liberally in order to achieve the purposes of the Tort Claims Act. Tex.Rev.Civ.Stat. Ann. art. 6252-19, § 13 (1970). We therefore hold that the provision for waiver of immunity for personal injuries negligently caused by “some use of tangible property,” contained in section 5 of the Act, subjects governmental units to liability for personal injuries negligently caused by the nonuse of tangible property. Lowe v. Texas Tech University, 540 S.W.2d 297 (Tex. 1976); Clabon v. Harris County Hospital District, 567 S.W.2d 71 (Tex.Civ.App.-Houston [14th Dist.], May 24, 1978, writ filed); Mokry v. University of Tex. Health Science Ctr., 529 S.W.2d 802 (Tex.Civ.App.-Dallas 1975, writ ref’d n.r.e.); McGuire v. Overton Memorial Hospital, 514 S.W.2d 79 (Tex.Civ.App.-Tyler 1974), writ ref’d n.r.e. per curiam, 518 S.W.2d 528 (Tex. 1975). We appreciate that there are factual differences between those eases and this one. We also recognize that this case presents the very question that concerned Chief Justice Greenhill in his concurring opinion in Lowe v. Texas Tech University, supra, and we join him in encouraging the Legislature to clarify the extent to which it intended to waive governmental immunity.

We also reject the appellees’ argument that they are not liable for injuries caused by use of medical records that were not prepared, furnished, controlled or owned by them. We note, initially, that it is by no means certain that those records were not prepared, furnished, controlled or owned by the appellees. Even if the records were not, however, the appellant successfully alleged a cause of action against the appellees under the Tort Claims Act when he alleged that his injuries were caused by the negligence of the appellees’ employees, acting within the scope of their employment, in those employees’ use of tangible property. Hein v. Harris County, 557 S.W.2d 366 (Tex.Civ.App.-Houston [1st Dist.] 1977, writ ref’d n.r.e.).

The appellees assert, finally, that the appellant’s claim is barred by section 14(9) of the Tort Claims Act. That section provides that governmental immunity is not waived for

[a]ny claim based on an injury or death connected with any act or omission arising out of civil disobedience, riot, insurrection or rebellion or arising out of the failure to provide, or the method or providing, police or fire protection.

Tex.Rev.Civ.Stat.Ann. art. 6252-19, § 14(9) (1970). The appellees cite the following cases in support of their argument that the appellant’s claim is barred because it is based on an injury arising out of the method of providing police protection: Salinas v. Flores, 359 F.Supp. 233 (S.D. Tex. 1973); Strickland v. City of Denver City, 559 S.W.2d 116 (Tex.Civ.App.-Eastland 1977, no writ); Davis v. County of Lubbock, 486 S.W.2d 109 (Tex.Civ.App.-Amarillo 1972, no writ).

We disagree with the holdings in those cases. Section 14(9) does not shield governmental entities from liability for injuries arising out of their failure to provide, or method of providing, services which are only incidental to, and not integral parts of, the prevention of crime and the apprehension, punishment and rehabilitation of criminals. The provision of medical treatment in penal institutions is incidental to the provision of police protection. A plaintiff who alleges that he sustained injuries because of the negligent use of medical records and medications by a governmental entity is not barred by section 14(9), therefore, from suing that entity under the Torts Claims Act. Cf. Texas Department of Corrections v. Herring, 513 S.W.2d 6 (Tex. 1974).

The appellant’s first point of error having been sustained, the judgment of the trial court is hereby reversed and the case remanded for a new trial.

Reversed and remanded.


author: O’QUINN, Justice.

text:
    John C. WATSON, general partner, Appellant, v. LIMITED PARTNERS OF WCKT, LTD., Appellee.
    No. 12728.
    Court of Civil Appeals of Texas, Austin.
    Aug. 2, 1978.
    Rehearing Denied Aug. 30, 1978.

      Robert J. Werner, Hilgers, Watkins, Led-better & Hays, Austin, for appellant.
    William T. Hall, Austin, atty., for Clinton E. Craven.
    James H. Keahey, Austin, pro se.
   O’QUINN, Justice.

In this action two limited partners of WCKT, Ltd., a Texas limited partnership, seek recovery of their capital investment from the general partner on claims that the general partner, who had sole control of the partnership affairs, failed to manage the affairs as a fiduciary, resulting in loss of the limited partners’ contributions to capital.

In response to special issues a jury found that the general partner failed to manage the partnership in exercise of ordinary care, failed to act with the highest degree of loyalty, fairness, candor, and good faith toward the limited partners, and that the general partner’s conduct was a proximate cause of damages to the limited partners. The jury also awarded damages in the sum of $5,400, but all parties agreed there was no evidence to support that answer to the special issue on damages.

The general partner moved for judgment non obstante veredicto, and the limited partners moved for judgment based on the jury verdict, except the answer as to damages. The trial court entered judgment that the limited partners each recover $15,-900, the amount of contributions to capital, together with interest.

The general partner, John C. Watson, has appealed and brings two points of error. The limited partners, Clinton E. Craven and James H. Keahey, are appellees.

Watson contends first that there is no evidence, or insufficient evidence, of any damages proximately caused by the general partner’s conduct in managing affairs of the partnership. Second, Watson asserts error in grant of recovery of capital contributions on the theory of money had and received because (1) the limited partners received consideration for their contributions through interest in the partnership and share in partnership profits and (2) the limited partners failed to rescind the partnership contract as an essential element of an action for money had and received.

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

The essential facts of the case are stated succinctly by the trial court in findings set out in the judgment:

“1. Plaintiffs Clinton E. Craven and James H. Keahey, limited partners in WCKT, Ltd., a limited partnership, contributed $15,000 each to the initial capital of WCKT, Ltd. in 1972. The two Plaintiffs later contributed an additional $900 each to the capital of the limited partnership in 1974.
“2. Upon acceptance of Plaintiffs’ contributions to capital, the general partner, Defendant John C. Watson, undertook the duty to manage the affairs of the limited partnership as a fiduciary, owing the highest degree of loyalty, fairness, candor and good faith to Plaintiffs.
“3. During the life of the limited partnership, from August, 1972 until the appointment of a receiver by this Court in October, 1974, Defendant John C. Watson, as general partner, had sole control of and responsibility for the affairs of the limited partnership. Defendant John C. Watson failed to manage the affairs of the limited partnership as a fiduciary, which failure was a proximate cause of damage to Plaintiffs.
“4. WCKT, Ltd. is wholly without assets and Plaintiffs’ entire contributions to capital have been dissipated and lost.
“5. Plaintiffs Clinton E. Craven and James H. Keahey are entitled to the return of their contributions to capital as money had and received by Defendant John C. Watson through his legally imposed promise to manage the affairs of the limited partnership as a fiduciary.”

A narrative summary of events leading to this lawsuit is appropriate. WCKT, Ltd. was organized as a Texas limited partnership whose business was ownership and rental of five fourplexes in Austin. This action was brought by three limited partners of WCKT, Ltd. against the general partner, but by the time of trial one of the limited partners abandoned the suit, with Clinton E. Craven and James H. Keahey, the remaining limited partners, continuing.

The partnership had its beginning after the three limited partners, on advice of their accountant, sought a common investment in 1972, and in course of their search met John C. Watson, later to become the general partner in WCKT, Ltd. Watson at that time was in the process of building five fourplexes. After several meetings with Watson, the partnership was created and the plan adopted by which the partnership would buy the multiple dwelling structures from Watson for $45,000 cash and assumption of $241,000 in construction loans which Watson had from Mutual Savings Institution. The three limited partners contributed $15,000 each to furnish the $45,000. A $5,000 capital contribution by Watson was not to be returned to him upon a sale and he was not to participate in profits from the limited partnership until the limited partners had recovered their $45,000, after which each of the four partners would acquire twenty-five percent of the partnership.

By late summer of 1973 the five fourplex-es had been completed and Watson furnished a financial report indicating the buildings were making a profit, on the basis of which Watson distributed $150 to each of the three limited partners. But early in 1974 Watson revealed that the financial information he furnished in August the year before was inaccurate, and the buildings were admittedly losing money. Watson also revealed additional debts and requested return of the $150 previously distributed, and the limited partners returned the money. At Watson’s suggestion additional money was borrowed from a bank, with the limited partners co-signing, in effect making further capital contributions of $500 each.

Watson later reported trouble with his apartment manager, whom he discharged, and an overdraft at the bank, to which the limited partners responded by making additional contribution to capital of $400 each. Beginning in May of 1974 the partnership was dissolved and entered the process of winding up its business. Suit was filed in October and a receiver was appointed. At that time WCKT, Ltd. had $341 in cash, owned unsecured debts of $10,252, with secured debts of $10,448 on furniture and a past-due debt secured by the buildings in the amount of $232,620.

The receiver managed the properties for a year and paid the unsecured creditors pro rata to allow the lending institutions to repossess the furniture and to buy the four-plexes at a trustee’s sale. Subsequently, about three weeks before the present lawsuit went to trial, Watson repurchased the five fourplexes individually, to the exclusion of the limited partners. One of the limited partners testified at the trial, in summation, “John Watson started as the owner of this project, he got our $45,000, we have lost it, it’s gone, the receivership has no assets, John Watson owns the property again.”

Appellant Watson contends under his first point of error that the evidence affords no basis “for computation of the amount of damages proximately caused by the Defendant’s [Watson’s] breach of fiduciary duty,” and that in the absence of such evidence the trial court erred in failing to grant Watson a judgment that the limited partners take nothing by their suit.

The trial court found that the two limited partners contributed $15,900 each in capital of the partnership and concluded that the limited partners were “entitled to the return of their contributions to capital as money had and received by Defendant John C. Watson through his legally imposed promise to manage the affairs of the limited partnership as a fiduciary.”

In a limited partnership the general partner, acting in complete control, stands in the same fiduciary capacity to the limited partners as a trustee stands to the beneficiaries of the trust. Cook v. Peacock, 154 S.W.2d 688, 691 (Tex.Civ.App. Eastland 1941, writ ref’d w. o. m.); Conrad v. Judson, 465 S.W.2d 819, 828 (Tex.Civ.App. Dallas 1971, writ ref’d n. r. e., cert, den., 405 U.S. 1041, 92 S.Ct. 1312, 31 L.Ed.2d 582).

In a general partnership, the managing partner has been held to owe his copartners “one of the highest fiduciary duties recognized in the law.” Huffington v. Upchurch, 532 S.W.2d 576, 579 (Tex.Sup.1976). Other authorities in agreement, reviewed in Huffington, are Smith v. Bolin, 153 Tex. 486,271 S.W.2d 93 (1954); MacDonald v. Follett, 142 Tex. 616, 180 S.W.2d 334 (1944); Meinhard v. Salmon, 249 N.Y. 458, 164 N.E. 545 (1928).

Where it has been shown that the fiduciary relationship has been violated, as in this case, restitution is a recognized measure of recovery, although that may not be the only remedy available. See Dobbs on Remedies (1973), Secs. 4.1,10.4. The suit is not one for damages as such, but to recover money had and received. It is not required that the limited partners show loss of speculative profits. On the contrary, in such situation the fiduciary must account for all he has received. Kinzbach Tool Co., Inc. v. Corbett-Wallace Corporation, 138 Tex. 565, 160 S.W.2d 509, 514 (1942); Anderson v. Griffith, 501 S.W.2d 695, 702 (Tex.Civ.App. Fort Worth 1973, writ ref’d n. r. e.).

The relief through restitution granted by the trial court in this case was granted under similar facts in the recent case of Russell v. Truitt, 554 S.W.2d 948 (Tex.Civ.App. Fort Worth 1977, writ ref’d n. r. e.). In Russell joint venturers in an apartment construction and management project brought suit against their appointed agent to recover money had and received and for exemplary damages. The court held that the plaintiffs were “entitled to their recovery as a matter of law” upon proof of the breach of fiduciary duty, and it was not necessary to decide whether the breach was a proximate cause because “The breach automatically results in the forfeiture of the agent’s compensation.” 554 S.W.2d 952.

The uncontradicted proof in this record, supports the finding that each of the limited partners paid Watson $15,900 as contributions to capital, and the conclusion that such contributions as money had and received by Watson are by restitution due the limited partners is supported by law.

Watson’s contentions on appeal that the limited partners are not entitled to restitution because (1) the limited partners received full consideration and (2) failed to plead rescission of the limited partnership agreement, are without merit.

The essential consideration was not the twenty-five percent interest in the project and a share in the profits, which was returned at Watson’s request. The basic agreement was that the limited partners, who were without knowledge of apartment management, would require that Watson, as the general partner, assume management and control of the project. Without Watson’s agreement to handle the business of management for the partnership, the limited partners had interests worthless to them, and their contributions to capital were made only after Watson agreed to accept fiduciary performance.

When Watson failed in his performance, as the jury found, his breach automatically resulted in forfeiture of the money advanced to him in consideration that he assume the job of general partner and have as his part a twenty-five percent interest. Russell v. Truitt, supra, 554 S.W.2d 952.

Watson argues on appeal that the limited partners may not recover because they failed to seek by pleadings to “rescind the partnership agreement by transferring their interests in the partnership to the general partner in exchange for a return of their capital contributions.”

At the time of trial there was nothing to rescind, for WCKT, Ltd. no longer existed. If such pleadings were appropriate at any stage in the course of litigation, and we do not believe a plea of rescission in this case was required, no objection was made by the general partner, and the failure, if it was a failure, has been waived. Rules 45, 67, and 90, Texas Rules of Civil Procedure.

We have carefully considered all points of error, arguments, and authorities presented in behalf of Appellant Watson, and all points and contentions under them are overruled.

The judgment of the trial court is in all things affirmed.

Affirmed.


author: SHANNON, Justice.

text:
    Ex parte Carl GROTHE, Relator.
    No. 12874.
    Court of Civil Appeals of Texas, Austin.
    Aug. 2, 1978.
    Carol E. Prater, Temple, for appellant.
    Charles C. Smith, Jr., Cameron, for appel-lee.
   SHANNON, Justice.

This is an original habeas corpus proceeding filed in this Court in which relator Carl Grothe seeks his discharge from custody of the sheriff of Milam County. Upon presentation of relator’s application, this Court directed issuance of the writ and relator’s release on bond.

Relator was found in contempt by the district court of Milam County. The court committed relator to jail for seven days and for such time thereafter until he purged himself of contempt by paying four months of unpaid child support payments and by disclosing to the court’s receiver the location of certain farm equipment.

The contempt proceedings stem from, a suit for divorce filed in the district court of Milam County by respondent Linda A. Grothe against relator. On November 9, 1976, the court ordered Carl Grothe to pay $500.00 each month as temporary alimony and child support.

The contempt judgment recites that relator was guilty of contempt by refusing to comply with the court’s'orders of November 9, 1976 and July 15, 1977, that required relator “. . .to pay child support in the amount of $350 per month . . .” The judgment also provided that relator was guilty of contempt by refusing to comply with an order of July 15,1977, requiring him to disclose the location of certain farm equipment.

Relator’s proof was that there was no written order of July 15, 1977, ordering relator to pay child support in any sum.

As relator allegedly violated the orders outside the presence of the court, the alleged contempt was constructive rather than direct. For one to be held in constructive contempt for refusing to obey an order of the court, that order “. . . must spell out the details of compliance in clear, specific and unambiguous terms so that such person will readily know exactly what duties or obligations are imposed upon him.” Ex parte Slavin, 412 S.W.2d 43 (Tex.1967). If there were an order of July 15, 1977, it was oral and, as a result, cannot comply with any of the requirements of Slavin. It follows that the judgment of contempt for violation of the oral order of July 15, 1977, cannot stand.

The judgment of contempt did not fix separately the punishment assessed for each contemptuous act. Because relator could not be held in contempt for violation of the oral order, the entire judgment for contempt is void. Ex parte Carpenter, 566 S.W.2d 123 (Tex.Civ.App.1978); Ex parte Werner, 496 S.W.2d 121 (Tex.Civ.App.1973).

The relator is ordered discharged.


author: HALL, Justice.

text:
    Willie B. HACKETT, Appellant, v. BROADWAY NATIONAL BANK, Appellee.
    No. 5832.
    Court of Civil Appeals of Texas, Waco.
    Aug. 3, 1978.
    Rehearing Denied Aug. 24, 1978.

      Kenneth Beanland, San Antonio, for appellant.
    Barry Snell and Don Krause, Bayne, Snell & Krause, San Antonio, for appellee.
   HALL, Justice.

Plaintiff-appellee Broadway National Bank brought this suit against defendant-appellant Willie B. Hackett pleading the following facts: On January 31, 1977, defendant issued a check to Eladio Jimenez in the amount of $2,500.00 drawn on the Frost National Bank of San Antonio, Texas. Jimenez negotiated the check to plaintiff. The check was accepted by plaintiff in the ordinary course of business, in good faith, and for value. The check was dishonored by the Frost National Bank because defendant’s account had insufficient funds. Thereafter, defendant stopped payment on the check. Defendant has paid $500.00 to plaintiff, but has failed and refused and continues to fail and refuse to pay the remaining balance of $2,000.00. Accordingly, plaintiff prays for recovery of that amount from defendant.

Defendant answered with a general denial.

Plaintiff moved for summary judgment, asserting there was no issue as to any material fact and that plaintiff was entitled to judgment as a matter of law. The motion incorporated plaintiff’s petition and was supported by the affidavit of Michael J. Greenwell, plaintiff’s vice-president and cashier. Photocopies of the front and back of the check sued upon, and of a statement of Jimenez’s checking account with plaintiff numbered 245-972-0, were attached to the affidavit. In the motion, plaintiff alleged these facts: The pleadings and affidavits show that on January 31, 1977, defendant issued his check to Eladio Jimenez, in the amount of $2,500.00, drawn on the Frost National Bank of San Antonio, Texas. On January 31, 1977, plaintiff became a holder in due course of the check, having taken the instrument for value, in good faith, and without notice that it was overdue or had been dishonored or that there was any defense against it, or claim to it on the part of any person. Plaintiff gave value for the check, in that it was immediately credited to the account of Eladio Jimenez, plaintiff’s depositor, and was withdrawn by him on February 1,1977. On February 4,1977, the check was returned to plaintiff marked “NSF.” On redeposit, the check was returned a second time, marked “payment stopped.” On February 15,1977, defendant paid $500.00 to plaintiff on the check, leaving a balance due and unpaid in the amount of $2,000.00.

In its material parts the affidavit attached to the motion contains the following statements by Greenwell:

“As vice-president and cashier of the Broadway National Bank, I am thoroughly familiar with the Bank’s files, books and records in this case. I have personal knowledge of each of the facts set forth in this Affidavit, and am competent to testify thereto.
“Attached to this Affidavit as Exhibit ‘A’ is a true and correct copy of the check upon which Plaintiff’s case is based. Plaintiff is the lawful owner and holder of the check.
“Attached as Exhibit ‘B’ is a statement of the account of Eladio Jimenez or Elia Jimenez, depositors of the Broadway National Bank. The account reflects a deposit of $2,632.50 made on January 31, 1977. Of that amount, $2,500.00 represented the check attached hereto as Exhibit ‘A’. On February 1, 1977, the account of Eladio Jimenez was debited in the amount of $2,500.00 representing payment of check number 204, written by Eladio Jimenez on January 31, 1977, payable to the order of Commercial Abstract and Title Company.
“On February 4, 1977, the check attached hereto as Exhibit ‘A’ was returned to the Broadway National Bank by the Frost National Bank of San Antonio, Texas, marked ‘NSF’. The notation ‘NSF’ is the usual notation used in the banking business in San Antonio, Texas, to indicate that the check is being returned due to insufficient funds in the drawer’s account.
“On February 15, 1977, Mr. Willie B. Hackett paid $500.00 toward the check attached hereto marked as Exhibit ‘A’, leaving an unpaid balance of $2,000.00. The unpaid balance of $2,000.00 is presently due and owing.
“At the time the Broadway National Bank credited the check attached hereto as Exhibit ‘A’ to the account of Eladio Jimenez and permitted Eladio Jimenez to withdraw the funds from the account, the Bank had no knowledge of any defense or claim to the check, and was in all respects acting in good faith.”

Defendant filed an answer to plaintiff’s motion for summary judgment, asserting there were existing fact questions in the case. He supported the answer with his affidavit. At the same time, by separate action, defendant impleaded Jimenez and prayed for judgment against Jimenez for any amount recovered by plaintiff against him.

In his affidavit, defendant stated: “There was no consideration for the issuance of the check marked ‘Exhibit A’ to Mr. Eladio Jimenez in that Mr. Jimenez failed to complete the work for which the money was advanced; and further, that the Broadway National Bank has not given value as shown by their statement of accounts marked ‘Exhibit B’ in that the Bank, on February 4, 1977, debited the account of Mr. Eladio Jimenez in the amount of $2,500.00 which reverses the credit the Bank had given him on February 1,1977, in the amount of $2,500.00 which is the alleged value the Bank claims to have given out for the check deposited by Mr. Jimenez on January 81, 1977, from myself. And, further, that Plaintiff has failed to include as a credit against the $2,000.00 allegedly owed by the Defendant in the sum of $121.43 which was collected by the Bank on February 3,1977. And, I have not paid the Bank the sum of $500.00 as alleged in the Bank’s motion for summary judgment, but another check was issued to Mr. Eladio Jimenez which he deposited in his account and which was credited to the overdraft.”

In his action against Jimenez for indemnity, defendant alleged that on January 31, 1977, he issued the check sued upon by plaintiff to Jimenez; that the check was given in exchange for “certain work to be completed on behalf of [Hackett]” by Jimenez; that “before completing said work [Jimenez] deposited the said check in Account No. 245-972-0 at the Broadway National Bank and drew a check to Commercial Abstract and Title Company in the amount of $2,500.00 on the same date”; and that “[Jimenez] has failed to complete the work agreed upon and no consideration exists for said check.”

The copies of the check and of the statement of Jimenez’s checking account attached to Greenwell’s affidavit were not certified copies, and they carried no authentication other than that accorded them by the affidavit. The statement of Jimenez’s account shows the following relevant transactions during the period in question in January and February, 1977:

Upon the above record, plaintiff’s motion for summary judgment was granted, and plaintiff was awarded a recovery of $2,000.00 against defendant. Plaintiff’s suit against defendant was subsequently severed from defendant’s suit against Jimenez, and defendant brought this appeal.

Rule 166-A(e), Vernon’s Tex.Rules Civ.Proe., provides that copies of all papers attached to an affidavit supporting a motion for summary judgment shall be “sworn or certified copies.” Defendant asserts that because Greenwell did not swear in his affidavit that the attached copy of Jimenez’s checking account was a “true and correct copy,” Rule 166-A(e) was not met, and the trial court erred in considering the exhibit. Particularly, defendant contends that without the exhibit the record does not establish that plaintiff took the check “for value,” as it alleged, and thereby became a holder in due course. (See V.T.C.A., Bus. & Com. Code § 3.302). Defendant did not except to plaintiff’s affidavit in the trial court, and he raises this complaint for the first time on this appeal. In the recent case of The Life Insurance Company of Virginia v. Gar-Dal, Inc., 570 S.W.2d 378 (Tex.Sup.1978), the Court held that the defect in question is a matter of form which is waived if it is not brought to the attention of the trial court before summary judgment is rendered. Accordingly, it was waived in our case by defendant. The exhibit was properly considered by the trial court.

Greenwell’s affidavit and the copy of Jimenez’s checking account show that Jimenez also deposited an additional $132.50 when he deposited defendant’s check with plaintiff, for a total deposit of $2,632.50. Defendant says this proof raises a question of fact as to whether Jimenez’s account contained funds which plaintiff failed to charge back for defendant’s benefit. This contention is overruled.

It is provided in V.T.C.A., Bus. & Com.Code § 4.208(a)(1), that a bank has a security interest in an item deposited in an account “to the extent to which credit given for the item has been withdrawn or applied.” The statement of Jimenez’s account shows that the $2,500.00 credit given for defendant’s check was totally withdrawn from the account. The record also establishes without dispute that the check was eventually dishonored by the drawee bank, and that plaintiff has recovered only $500.00 of its loss caused by the dishonored check. Defendant, as maker, is primarily liable on the cheek. V.T.C.A., Tex.Bus. & Com.Code § 3.102(a)(4); Puckett v. Big Lake State Bank, 73 S.W.2d 893, 898 (Tex.Civ.App.—El Paso 1934, writ ref’d); First State B. & T. Co. of Rio Grande City v. Colpaugh, 489 S.W.2d 675, 680 (Tex.Civ.App.—San Antonio 1973, no writ).

Defendant’s remaining points and contentions are also without merit. They are overruled.

The judgment is affirmed.


author: MOORE, Justice.

text:
    Bernice ODLE, Appellant, v. Margaret WILLIAMSON, Appellee.
    No. 1142.
    Court of Civil Appeals of Texas, Tyler.
    Aug. 3, 1978.
    Rehearing Denied Aug. 31, 1978.

      Todd M. Watson, Dallas, for appellant.
    J. Michael Smith, Parish & Smith, Gilmer, for appellee.
   MOORE, Justice.

This is a suit to determine which of two claimants is entitled to the proceeds of a life insurance policy. The $50,000.00 policy was issued by The Travelers Insurance Company on the life of Hal Newsom, who died as the result of an automobile accident on December 23, 1974. At the time of his death, his ex-wife, Bernice Odie, was the named beneficiary in the policy. Following his death, his daughter, Margaret Williamson, instituted this suit against the insurer and Bernice Odie alleging that, after the insured’s divorce from Bernice Odie, he executed a change of beneficiary naming her as beneficiary. Defendant, Bernice Odie, answered with a general denial and a cross-action alleging that she was the sole beneficiary named in the policy and was therefore entitled to recover the proceeds. Trial was before a jury. In response to a single special issue, the jury found that the insured had changed the beneficiary from Bernice Odie to Margaret Williamson. Pursuant to the verdict, the trial court awarded the proceeds of the policy to Margaret Williamson, and defendant, Bernice Odie, perfected this appeal. The insurer, The Travelers Insurance Company, deposited the proceeds of the policy into the registry of the court and was discharged and did not appeal.

We reverse and render judgment in favor of appellant, Bernice Odie.

The group insurance policy in question was purchased by the insured from Exxon Travel Club, Inc., which acted as the agent of The Travelers Insurance Company. The policy contained the following provision regarding change of beneficiaries:

“Designation or Change of Beneficiary: The right of designation or change of beneficiary is reserved to the insured and the consent of the beneficiary or beneficiaries shall not be requisite to any change of beneficiary or beneficiaries, or to any other change in said coverage or in the policy. No designation or change of beneficiary under the policy shall be binding upon the company until the original or a duplicate thereof is received by the company.”

The evidence shows that the insured and appellant, Bernice Odie, were married on May 1, 1972. At the time of the marriage the insured was the holder of the policy and shortly thereafter he designated his wife, Bernice Odie, as the beneficiary. The parties were subsequently divorced on December 4, 1973. Approximately one year later on December 23, 1974, Mr. Newsom died as a result of an automobile accident at the age of 84.

Appellee, Margaret Williamson, testified that some time after his divorce from Bernice Odie she had a discussion with her father with regard to changing the beneficiary on the policy. After his death, she testified that in going through his papers she found the following letter from Exxon Travel Club:

“August 22, 1973, From Bertha M. Mur-dock to Hal Newsom.
The enclosed form may be used to change your class of membership. Your daughter may be covered under your membership as long as she meets the eligibility requirements defined in the attached memorandum. BRM:dh”

While Mrs. Williamson testified that she was of the impression that the foregoing letter had something to do with a change of beneficiary, other testimony in the case shows that the purpose of this letter was to advise Mr. Newsom that his daughter could obtain insurance coverage under his policy provided she met the eligibility requirements. She further testified that she thought her father had made her the beneficiary under the policy.

Mary Ann Spooner, the granddaughter of the insured, testified that she was close to her grandfather and was with him often. She testified that some time prior to August 22, 1973, the date he received the above correspondence from Exxon Travel Club, she saw her grandfather write a letter to Exxon requesting that the beneficiary on the policy be changed from Bernice Odie to her aunt, Margaret Williamson, and that he dropped it in with his monthly gasoline bill to Exxon. She admitted, however, that she did not see him deposit the letter in the mail. She testified that some time thereafter her grandfather received the hereinabove quoted letter from Exxon, dated August 22,1973, and that a change of beneficiary form was enclosed in the letter from Exxon. She further testified that she saw her grandfather fill out the form changing the beneficiary from Bernice Odie to Margaret Williamson, and that she saw him stamp and address an envelope to Exxon Travel Club and place the change of beneficiary form therein. She admitted, however, that she did not see him place the letter in the mail, although she testified he told her “he was going to.”

The record contains no evidence showing that the Exxon Travel Club ever received any correspondence from the insured requesting a change of beneficiary. Al Fein-blatt, claims supervisor for The Travelers Insurance Company, testified that the insurance company had never received a request for a change of beneficiary and that the named beneficiary on the policy was Bernice Odie. There is nothing in the record indicating that the deceased ever advised Bernice Odie that he intended to change the beneficiary.

It is undisputed that written notice of a change of beneficiary to Exxon Travel Club would have been sufficient to effect a change of beneficiary without the necessity of giving such notice directly to the insurer.

Appellant contends by her fourth point of error that the trial court erred in denying her motion for judgment non obstante vere-dicto, in that there is no evidence to support the jury’s finding that the insured substantially complied with the policy provisions with regard to change of beneficiary.

The law regulating the rights and duties of an insured to make a change of beneficiary is aptly stated in the case of Scherer v. Wahlstrom, 318 S.W.2d 456, 458 (Tex.Civ.App.—Fort Worth 1958, writ refused), as follows:

“An insurer may make reasonable regulations in a policy, or in the constitution and by-laws which become a part of the policy, defining the method by which a member may change the beneficiary, and when the beneficiary is a third party, such regulations become a part of the contract, and, generally speaking, the right to change can be exercised in no other way, and while the insurer may waive compliance with regulations intended for its benefit, yet the beneficiary named has a right, by virtue of the contract, to require that a change be made substantially in accordance with the manner provided. Garabrant v. Burns, Tex. Com.App., 130 Tex. 518, 111 S.W.2d 1100. Although the right to name or substitute a beneficiary may be absolute in the insured, the method provided for making known to or advising the insurer of the purpose and wish of the insured becomes contractual and binding.
“As between opposing claimants, even though the insurer takes no position on the restrictions, a purported change of beneficiary will be given effect only if the insured has substantially complied with them or done all he reasonably could have done in that behalf. Creighton v. Barnes, 152 Tex. 309, 257 S.W.2d 101; Beck v. Beck, Tex.Civ.App., 90 S.W.2d 284; Kotch v. Kotch, 151 Tex. 471, 251 S.W.2d 520.”

Also see: Tips v. Security Life & Accident Co., 144 Tex. 461, 191 S.W.2d 470 (1945); Kelley v. McDonald, 83 S.W.2d 414 (Tex.Civ.App.—Texarkana 1935, writ dism’d); Hallett v. Ponder, 376 S.W.2d 797 (Tex.Civ.App.—Austin 1964, no writ history).

Where the policy defines the method by which the insured may change the beneficiary, a change is not accomplished unless the insured has substantially complied with that method. “Substantial compliance” with the method of changing beneficiaries provided in the policy means that the insured has done all that he could reasonably have done to effect the change. Tips v. Security Life & Accident Co., supra, 191 S.W.2d at 471; Witt v. Citizens National Bank, Waco, 440 S.W.2d 112, 114 (Tex.Civ.App.—Waco 1969, no writ history).

In the instant ease the method designated in the policy for changing the beneficiary is filing with the company the written notice or request. Thus, the question to be resolved is whether the insured did everything that he could reasonably have done to effect the change of beneficiary. As we view the record, the question must be answered in the negative.

While the record contains testimony showing that the insured wrote a letter requesting a change of beneficiary and also filled out a change of beneficiary form requesting that the beneficiary be changed to Margaret Williamson, there is no evidence that either instrument ever reached the Exxon Travel Club or The Travelers Insurance Company. There is no evidence whatever showing that the insured ever mailed either the letter or the form requesting a change of beneficiary, nor is there any evidence that he directed anyone else to mail them or otherwise deliver them. When last seen, both instruments were in the possession of the insured, and there is nothing to show they ever left his possession. Although there is testimony that he stated he was going to mail the change of beneficiary form, there is nothing to show that he ever did so. His subjective intent to change the beneficiary is not the test. Witt v. Citizens National Bank, Waco, supra, at 114; Hallett v. Ponder, supra, at 800.

In our opinion it cannot be said that the deceased did all he could reasonably have done to perfect, a change of beneficiary during his lifetime. The evidence shows that he lived approximately one year after the divorce from appellant, during which time he was active and alert and worked until the day of his death. The policy provides, in effect, that no change of beneficiary would become effective until written notice thereof was received by the company. Since there is no evidence that the requirements of the policy were complied with before his death by giving the required notice, substantial compliance was not met. His failure to deliver the required notification to the company is fatal to ap-pellee’s contention. It follows that appellant was entitled to judgment notwithstanding the verdict. Rule 301, Tex.R. Civ.P. Accordingly, appellant’s fourth point must be sustained.

Appellant’s remaining points challenging the court’s ruling on the admissibility of evidence have been considered and found to be without merit and are therefore overruled.

This brings us to appellee’s crosspoint of error, wherein it is contended that the trial court erred in admitting in evidence six exhibits offered by the appellant consisting of certain business records kept by The Travelers Insurance Company. Appellee objected to the records on the ground that no proper predicate had been laid for their introduction as required by Article 3737e, Tex.Rev.Civ.Stat.Ann., and therefore they amounted to hearsay.

The record reveals that one of the exhibits objected to is identical with an exhibit which the appellee had theretofore offered into evidence. Two of the exhibits objected to are beneficiary designation forms in which the insured designated his wife, Bernice (Odie) Newsom, as his beneficiary, a fact about which there is no dispute. Another of the exhibits objected to is a change of class form executed subsequent to the insured’s marriage to Bernice Odie, also a fact about which there is no dispute. The other two exhibits consist of correspondence between the insurer and the deceased prior to his marriage to appellant. We find no merit in appellee’s crosspoint.

As we view the record a proper predicate was laid for the introduction of these documents. However, even if the court erred in admitting one or more of the exhibits, we fail to see how the appellee could have suffered any harm. The central issue in the case is whether the insured did all he could reasonably have done to effect a change of beneficiary. None of the exhibits bear any relationship to that issue. After a review of the entire record, we are of the opinion that the error, if any, was not calculated to cause the rendition of an improper judgment. Rule 434, Tex.R.Civ.P.

The judgment of the trial court is reversed, and judgment is here rendered for appellant, Bernice Odie, for the sum of $50,-000.00 deposited by the insurer into the registry of the court, less the sum of $500.00 awarded for attorney’s fees for filing the interpleader action on behalf of the insurer, for a total sum of $49,500.00. The judgment awarding the $500.00 attorney’s fees out of the funds on deposit is left undisturbed.

Reversed and rendered.

      . “SPECIAL ISSUE NO. 1: Do you find from a preponderance of the evidence that Hal New-som, deceased, changed the beneficiary from Bernice Odie to Margaret Williamson?
      “Answer ‘Yes’ or ‘No.’
      “ANSWER: Yes.
      “In connection with the above and foregoing special issue, you are instructed actual compliance is not necessary and a change of beneficiary may be accomplished by substantial compliance with the provisions of the insurance policy.
      “Substantial compliance with the method of changing the beneficiary provided in the policy means the insured ‘ “has done all he could reasonably have done” to effect the change.’ ”


author: PEDEN, Justice.

text:
    LA JET, INC., Appellant, v. UNITED PETROLEUM DISTRIBUTORS, INC., Appellee.
    No. 17148.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Aug. 3, 1978.

      Fulbright & Jaworski, Russell H. McMains, Houston, for appellant.
    Woodard, Hall & Primm, Bruce S. Powers, Houston, for appellee.
   PEDEN, Justice.

La Jet, Incorporated, appeals from the overruling of its plea of privilege to be sued in Taylor County in an action for breach of contract filed by United Petroleum Distributors, Incorporated (UPI). UPI’s controverting plea asserted Subdivision 23 of Article 1995, Vernon’s Texas Civil Statutes, the exception for suits against a corporation. La Jet’s points of error question whether the evidence was legally and factually sufficient to establish a cause of action against La Jet for breach of the contract sued upon and whether the evidence was legally sufficient to show that UPI sustained legal injury. We affirm.

La Jet admitted that the written contract sued upon was executed by the parties on April 16, 1973, in Harris County, that La Jet maintains a regular place of business in Harris County and has a representative in Harris County who transacts business on its behalf. The contract is one for the purchase and sale of 750 to 1500 barrels of fuel oil per day. Section 11 provided that delivery was to begin 15 days after completion of the construction of a storage tank by UPI at La Jet’s facility in Louisiana; La Jet was to give written notice as to when to start construction and was to pay for it. The contract was to continue until March 1, 1976, and thereafter from month to month until either party gave 30 days notice of cancellation. La Jet sent a notice of cancellation on November 12, 1973.

Appellee alleged in its first original petition that appellant refused to make any further deliveries after November 12, 1973, and at that time appellee “had performed its obligations in all material respects and all conditions precedent to the Defendant’s obligation to perform had occurred.”

Subdivision 23 provides:

“Corporations and Associations — Suits against a private corporation, association, or joint stock company may be brought . in the county in which the cause of action or part thereof arose; or in the county in which the plaintiff resided at the time the cause of action or part thereof arose, provided such corporation, association or company has an agency or representative in such county . . .”

Appellant’s answer was only a general denial. The president of the plaintiff corporation was the only witness who testified.

Appellee could maintain venue in Harris County under Subd. 23 by showing 1) that its cause of action or a part thereof arose in Harris County or 2) that it resided in Harris County at the time the cause of action or part thereof arose and appellant had an agency or representative in Harris County. Under both of these theories, however, appellee has the burden of establishing by a preponderance of the evidence that it has a cause of action against appellant. Texas High School Gymnastics Coaches Assoc. v. Andrews, 532 S.W.2d 142, 145 (Tex.Civ.App.1975, writ dism.); 1 McDonald, Texas Civil Practice 518, 523, §§ 4.30.2, 4.30.3 (1965). Appellant states that the only question presented by this appeal is whether appellee proved that it had a cause of action based on the contract attached to its petition. That contract was admitted in evidence as exhibit P-1; it is five pages long.

Appellant’s first two points assert that there was no evidence or insufficient evidence that appellee had a cause of action against appellant under the contract attached to its petition, contending that the contract was not performed or performable since it was not to begin until after completion of a storage tank provided for in Section 11 of the contract. Section 11 stated that appellee would commence construction of a storage tank on appellant’s premises within 15 days after appellant requested it to. Appellant was to pay for it. Appellee’s president, Edward Fourticq, testified on cross-examination that construction of this storage tank had never begun because appellant would not permit it. The trial judge sustained an objection by appellee’s attorney to this line of questioning on the ground that appellee had specifically pleads ed that all conditions precedent to the contract had been performed and that appellant’s general denial would not place this contention in issue. Appellee relied on Rule 54 of the Texas Rules of Civil Procedure. It provides:

“In pleading the performance or occurrence of conditions precedent, it shall be sufficient to aver generally that all conditions precedent have been performed or have occurred. When such performances or occurrences have been so plead, the party so pleading same shall be required to prove only such of them as are specifically denied by the opposite party.”

A condition precedent may be a condition to the formation of a contract, i. e., an agreement that a contract shall not become effective unless some specified condition is performed or occurs. Perry v. Little, 377 S.W.2d 765, 769 (Tex.Civ.App.1964, writ ref., n. r. e.); see Hohenberg Bros. Co. v. George E. Gibbons and Co., 537 S.W.2d 1, 3 (Tex.1976). Section 1 of the contract sued upon in our case provided that deliveries shall begin 15 days after completion of the storage tank. This constituted a condition precedent (to liability under the contract) that must be specifically denied under Rule 54.

Appellant questions the applicability of Rule 54 in a venue case, arguing that the following language in Rule 86 is controlling:

“When a plea of privilege is filed in accordance with this rule, it shall be prima facie proof of the defendant’s right to change of venue; provided that such plea shall not constitute a denial under oath of any allegations of plaintiff’s petition required to be denied under oath by Rule 93 unless specifically alleged in such plea

This issue was addressed in State Farm County Mutual Ins. Co. v. Landers, 520 S.W.2d 604 (Tex.Civ.App.1975, no writ), a case that involved recovery on uninsured motorist coverage in an insurance policy. The court held that the giving of notice to the police within 24 hours was a condition precedent to recovery but that the defendant’s failure to specifically deny under Rule 54 that the condition had been performed relieved the plaintiff of any burden to prove performance in a venue hearing. 520 S.W.2d at 606. This is clearly the rule in a trial on the merits. Dairyland County Mutual Ins. Co. v. Roman, 498 S.W.2d 154, 158 (Tex.1973). No greater burden is placed on the plaintiff to plea and prove a cause of action in a venue trial than in a trial on the merits. Flowers v. Dempsey-Tegeler & Co., 472 S.W.2d 112, 116 (Tex.1971).

Appellant’s third point of error asserts that there was no evidence that appel-lee had sustained legal injury and thus no evidence of this element of its cause of action. Appellee must prove that it sustained damages from appellant’s breach of contract, but the precise extent of those damages need not be shown until the trial on the merits. Cockburn v. Dixon, 152 Tex. 572, 261 S.W.2d 689, 691 (1953); Vicki Indus., Inc. v. Hupp Systems, Inc., 521 S.W.2d 733, 735 (Tex.Civ.App.1975, no writ). Although Cockburn involved a fraud action, the Supreme Court looked to the statutory measure of damages for fraud to determine whether the plaintiff had sustained injury.

As to damages in our case:

“[T]he measure of damages for [the] nondelivery or repudiation by the seller is the difference between the market price at the time when the buyer learned of the breach and the contract price . . . ” Tex.Bus. & Comm.Code § 2.713(a).

§ 2.712(c) states that the failure of the buyer to effect cover within this section does not bar him from .any other remedy. Fourticq testified that the market price at the time his company learned of the breach was $2.30 per barrel higher than the price under the contract and that UPI’s business was buying petroleum products from refiners and selling them to distributors and utility companies. This evidence was legally sufficient to support the trial court’s presumed finding that UPI sustained damages from La Jet’s repudiation of the contract.

The defendant introduced in evidence exhibit D-l, an instrument dated the same day as exhibit P-1, April 16,1973. It is called “Sales Acknowledgment No. 1112.” Like exhibit P-1, it is on stationery of La Jet, is signed by the presidents of both parties to the suit, and almost all of its details, such as the $200,000 letter of credit, the quantity and the price to be paid for the No. 5 fuel oil to be sold, parallel those of exhibit P-1. It does not mention, however, the provision in Section 11 of P-1 concerning the construction of a tank by UPI at La Jet’s facility. This significant provision appears in exhibit D-l: “DELIVERY TIME From date of acceptance and week to week thereafter until cancelled by either party giving the other party written notice.” Item 1 of the contract sued upon, exhibit P-1, provides:

“(1) Term: Fuel Oil deliveries hereunder shall begin fifteen (15) days after completion of construction of the storage tank mentioned in Section 11 hereof and shall continue until March 1,1976. Thereafter, this agreement shall continue in full force and effect from month to month unless and until cancelled by either party hereto giving the other party hereto thirty (30) days prior written notice of such cancellation.”

Mr. Fourticq, president of UPI, testified that the sales acknowledgment agreement, exhibit D-l, was signed later on April 16, 1973 than was exhibit P-1, the contract sued upon. His explanation was that “the complete contract (P-1) was first, and La Jet was having internal problems involving the title to the land to put the tank on, and this document (D-l) was brought in as an interim at their request . . . ”

Oil was delivered by La Jet to UPI for about three months after April 16, 1973.

We hold that the defendant’s proof concerning exhibit D-l constituted an affirmative defense.

“At the venue hearing there is no occasion to examine affirmative defenses to the plaintiff’s claim, except so far as they may be inseparably involved in determining a venue fact . . . ” 1 McDonald, Texas Civil Practice 614, Venue § 4.55 (1965).

“The sole issue in the plea of privilege hearing is that of venue; not liability or the merits of the case. Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300, 1304; Farmers Seed & Gin Co. v. Brooks, 125 Tex. 234, 81 S.W.2d 675. The defense is not available on the hearing to defeat venue in the county of suit. Negativing the prima facie cause of action established by plaintiff does not negative the ‘venue fact.’ It simply does not affect venue.” Dealers National Insurance Co. v. Rose, 396 S.W.2d 535 (Tex.Civ.App.1965, no writ), cited with approval in General Motors Acceptance Corp. v. Howard, 487 S.W.2d 708 (Tex.1972).

Even if the defendant’s proof concerning the sales acknowledgment (exhibit D-l) may have properly been considered by the trial judge, it has not been shown that he erred. No findings of fact or conclusions of law were made by the trial judge.

Sometimes a “second contract deals with the same subject matter as did the first contract made by the same parties, but does not state whether or to what extent it is intended to operate in discharge or substitution. The two contracts must be interpreted together. In so far as they are inconsistent, the later one prevails; the remainder of the first contract, being quite consistent with the second in substance and in purpose may be enforced.” 6 Corbin on Contracts 198, Substituted Contract — Novation § 1293 (1962).

The trial judge was entitled to conclude from the evidence that at least one week’s notice of cancellation would be reasonable and that the plaintiff had thus established a cause of action against the defendant.

Affirmed.


author: COLEMAN, Chief Justice.

text:
    Daniel SULLIVAN et al., Appellants, v. Roy SMITH, Appellee.
    No. 17146.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Aug. 3, 1978.
    Spiller, Spiller & Roberts, David T. Patrick, Houston, for appellants.
    Edward E. Lindsay, Houston (No brief filed), for appellee.
   COLEMAN, Chief Justice.

The plaintiff appeals from a judgment for the defendant in an action growing out of an automobile accident. At the conclusion of the plaintiff’s case the trial court granted an oral motion for judgment. The trial court filed findings of fact and conclusions of law.

This is an insurance subrogation case brought by State Farm Mutual Automobile Insurance Company in the name of its insured, Daniel Sullivan, against Roy Smith. A truck driven by Roy Smith struck the rear of the vehicle of Daniel Sullivan causing a property damage loss. The trial court found that no testimony was adduced as to the ownership of the automobile driven by Mrs. Sullivan, and determined that because of such failure the plaintiff could not recover for the damage suffered by the automobile.

The record reveals that Mr. Ross, an insurance adjuster, testified that he knew of his own personal knowledge that the owner of an automobile shown in a photograph, which was introduced into evidence, was Daniel Sullivan. The automobile shown in the picture was later identified by Mrs. Sullivan as being the automobile she was driving and which was involved in the collision.

Where a question of ownership is collateral, rather than the primary issue, a witness may state that he or some other person is the owner of certain property. McCormick and Ray, Texas Law of Evidence, Vol. 3, § 1426; Strickland Transportation Co. v. Ingram, 403 S.W.2d 192 (Tex.Civ.App.—Texarkana 1966, writ dism’d).

In this case the ownership of the automobile involved in the collision which was driven by Mrs. Sullivan is a collateral issue. There is competent evidence that the automobile was owned by Daniel Sullivan.

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