author: BREWSTER, Justice.

text:
    ESTES PACKING COMPANY, Appellant, v. KADISH & MILMAN BEEF CO., INC., Appellee.
    No. 17665.
    Court of Civil Appeals of Texas, Fort Worth.
    Nov. 14, 1975.
    Rehearing Denied Dec. 12, 1975.

      Simon & Simon, and John W. Hughes, Fort Worth, for appellant.
    Shannon, Gracey, Ratliff & Miller, and Eugene J. Dozier, Fort Worth, for appellee.
   OPINION

BREWSTER, Justice.

The plaintiff, Estes Packing Company, a Texas corporation, sued the defendant, Kadish & Milman Beef Company, Inc., a foreign corporation, to recover sums allegedly owed plaintiff by defendant by reason of the sale of some beef to defendant by plaintiff.

Service of process was had on defendant under the Texas long-arm statute (Article 2031b, V.A.C.S.). The defendant then made a special appearance in the case, as provided for by Rule 120a, T.R.C.P., for the purpose of objecting to the trial court assuming jurisdiction over it. At the conclusion of the hearing of that matter the trial court concluded that it lacked jurisdiction over the defendant foreign corporation in this in personam action and dismissed the plaintiff’s case. This judgment of dismissal is the one being appealed from by plaintiff.

We reverse and remand.

For convenience we will refer herein to the plaintiff as “Estes”, to the defendant as “Kadish”, and to American Brokerage Company, which is involved in the case, as “the Broker.”

In deciding whether the defendant foreign corporation can be subjected to the jurisdiction of the courts of the forum state, two questions must be answered. The first is whether Texas law (Art. 2031b) provides for the exercise of jurisdiction over the non-resident defendant under the facts present in this case. If the answer to that question is “Yes,” the court must then determine the answer to this second question: whether the exercise of jurisdiction over the non-resident defendant pursuant to that state law would under the particular facts of this case violate the due process clause of the 14th Amendment to the United States Constitution. See Atwood Hatcheries v. Heisdorf & Nelson Farms, 357 F.2d 847 (U.S.Ct.App., 5th Cir., 1966), and cases therein cited under footnote 12 on this point, and Pizza Inn, Inc. v. Lumar, 513 S.W.2d 251 (Eastland Civ.App., 1974, writ ref., n. r. e.).

If the answer to the first question is “No,” then the trial court would lack jurisdiction. Even if the answer to the first question is “Yes,” the trial court would still lack jurisdiction over the non-resident defendant if the assumption of jurisdiction over the non-resident defendant by the trial court under the facts of this case would violate the due process clause of the Federal Constitution.

But if the answer to the first question is “Yes,” and if taking jurisdiction over the non-resident defendant does not under the facts of the particular case violate the due process clause of the Federal Constitution, then the trial court does have jurisdiction over the non-resident defendant.

The trial court found facts as follows: Plaintiff (Estes) is a Texas corporation with principal place of business in Tarrant County; defendant foreign corporation (Kadish) is a Massachusetts corporation with principal place of business in Boston, Mass.; American Brokerage’s offices are in Chicago, Ill; American Brokerage orally ordered beef from plaintiff; the Broker then telephoned defendant in Boston advising that it had beef for sale and defendant from Boston ordered the beef from the Broker for delivery to it in Boston; the Broker then prepared a written confirmation giving shipping instructions stating that the beef was to be sent by truck to defendant’s plant in Boston and the Broker sent both plaintiff and defendant a copy; prior to the time the beef in question arrived by truck at defendant’s plant in Boston, Kadish had no notice that Estes was in any way at all involved in the transaction; up to that time Estes and Kadish had had no negotiations or communication with each other about the meat; the shipment consisted of 62V2 cattle carcasses; the Broker charged Estes a commission on the sale; when the shipment arrived, at defendant’s plant in Boston Kadish inspected the truck load of meat and accepted the carcasses of 16V2 of the cattle and rejected the rest of the load, contending that it was not in good condition; the defendant then mailed to plaintiff in Texas its check for $7,305.22, drawn on defendant’s Massachusetts bank, in payment for the beef that it did accept; this check did have written on its back the following: “By endorsement, this check is in full payment for all debts incurred to Estes Company by Kadish & Milman Beef Co., Inc., 138 Newmarket Square, Boston, Mass.”; the plaintiff refused to accept the check with that endorsement on it and returned it to Kadish.

The undisputed evidence showed that when Estes prepared this meat and placed it in the truck of an independent contractor in Fort Worth, Texas, for delivery to defendant in Boston, Mass., that he placed with it his invoice that clearly showed that the meat contained therein belonged to Estes Packing Co., and that plaintiff was offering it for sale to Kadish at the prices set out on the invoice which was numbered 9698. On this invoice which accompanied the load of meat was written the words, “All Bills Payable in Fort Worth.” Also accompanying the load of meat was a “shipping manifest” and a bill of lading. The shipping manifest clearly showed that this truck load of meat was being sold by Estes to Kadish and that it did not belong to the Broker. The accompanying invoice showed the same thing.

Estes’ point of error No. 2 is that the trial court erred in concluding that Kadish was not at any time doing business in Texas within the meaning of Art. 2031b, V.A.C.S.

We sustain that point.

Article 2031b, V.A.C.S., provides in substance that service of process can be made on any foreign corporation or non-resident natural person and the others therein named by serving same on the Secretary of State in the manner therein provided for in instances where the entity referred to engages in business in this State. And Section 4 of that statute provides: “For the purpose of this Act, and without including other acts that may constitute doing business, any foreign corporation ... or non-resident natural person shall be deemed doing business in this State by entering into contract by mail or otherwise with a resident of Texas to be performed in whole or in part by either party in this State, . .” (Emphasis added.).

The invoice, the shipping manifest, and the bill of lading accompanying the particular truck load of meat involved at the time it arrived at defendant’s plant all showed that that particular load of meat belonged to Estes and that he was offering it for sale to Kadish at the particular prices specified on the invoice for the various types of meat. Kadish, seeing that invoice, accepted 16½ of the 62 cattle carcasses that were in the shipment and took them and resold them. The undisputed evidence shows that after doing this Kadish mailed to Estes, in Fort Worth, Texas, as payment for the meat it bought out of the truck load its check for $7,305.22 and the writing that Kadish placed thereon showed that the check was sent in payment for that part of the truck load of meat that it purchased from Estes as covered by the Estes Invoice No. 9698. The prices remitted by Kadish in its check that it sent Estes in payment for the 16½ beef carcasses that it admittedly purchased from Estes were the same prices per pound that Estes had, in its invoice, offered to sell the meat to Kadish for.

We hold that this undisputed evidence that we have referred to shows that a contract was entered into between Estes and Kadish by the terms of which Kadish agreed to buy from Estes at least that part of the truck load of meat that it did take from Estes’ truck, and that it agreed to pay therefor the prices per pound as specified on the invoice, for the quantities of the various grades of meat that it kept and resold. This suit is brought, at least in part, to recover from Kadish the price that the parties had agreed upon for the meat that Kadish admittedly purchased out of Estes’ truck load of meat.

The undisputed evidence in the case also shows that a part of the agreement between Kadish and Estes was that Kadish would pay Estes for the meat that he purchased on the occasion in question in Fort Worth, Texas.

The undisputed evidence that we refer to that leads us to the conclusion we have just expressed is the following: Estes’ Invoice No. 9698 accompanied Estes’ truck load of meat that it sent to Kadish’s plant in Boston and Kadish came into possession of this Invoice No. 9698 when it inspected the load of meat; Kadish made no objection to the provision in the invoice stating that all bills were payable in Fort Worth, Texas, nor did it object to the prices specified thereon for the meat; in fact Kadish recognized and complied with the proviso contained in the invoice as to where the meat was to be paid for by mailing its check to Estes in Fort Worth, Texas, in the amount of $7,305.22 for the purpose of paying for the number of pounds of meat that it admittedly took from Estes’ truck load, and the prices that it used to determine the amount of the check were the per pound prices that Estes had specified on the invoice; and the check itself stated that it was in payment for a part of the meat covered by Estes’ Invoice No. 9698.

Because of these undisputed facts the terms of the invoice providing “All Bills Payable in Fort Worth” became a part of the contract between Kadish and Estes relating to Kadish’s purchase from Estes of the part of the truck load of meat that Kadish admittedly purchased. Beall v. Hardwicke-Etter Company, 460 S.W.2d 516 (Waco Civ.App., 1970, writ dism.); Harrison v. Facade, Inc., 355 S.W.2d 543 (Dallas Civ.App., 1962, no writ hist.); and Fleetwood Construction Co., Inc. v. Western Steel Co., 510 S.W.2d 161 (Corpus Christi Civ.App., 1974, no writ hist.).

From what we have said it is apparent that Art. 2031b, V.A.C.S. does provide for the exercise of jurisdiction by Texas courts over the foreign corporate defendant under the facts present in this case. This is true because the defendant was doing business in lexas within the meaning of that Texas statute since it entered into a contract with the plaintiff, a resident of Texas, to buy at least a part of Estes’ truck load of meat and Kadish agreed to partly perform that contract in Texas by Kadish paying Estes in Texas for the meat. See Pizza Inn, Inc. v. Lumar, 513 S.W.2d 251 (Eastland Civ.App., 1974, writ ref., n. r. e.).

It follows that the answer to the first question referred to above is “Yes.”

In Estes’ point of error No. 1 he contends that the trial court erred in sustaining Radish’s objection to jurisdiction and in dismissing his case for want of jurisdiction. In its 4th and 5th points of error it contends that the trial court erred in concluding that Kadish did not have such minimal contacts as are required by the due process clause of the 14th Amendment to the U. S. Constitution in order to subject it to the jurisdiction of Texas courts.

We sustain these two points of error.

To rule on these two points of error we must determine the answer to the second question posed above. Restating the question, it is: Would the exercise of jurisdiction over the non-resident foreign corporation pursuant to Art. 2031b, V.A.C.S. under the particular facts of this case violate the due process clause of the 14th Amendment to the U. S. Constitution?

We hold that the proper answer to this second question is that the exercise of in personam jurisdiction by the trial court over the non-resident corporate defendant pursuant to Art. 2031b does not, under the particular facts of this case, violate the due process clause of the 14th Amendment to the U. S. Constitution. We will hereinafter state our reasons for reaching that conclusion.

On this due process question the U. S. Supreme Court in International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) said: “. . . due process requires only that in order to subject a defendant to a judgment in person-am, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ”

The Texas Supreme Court in O’Brien v. Lanpar Company, 399 S.W.2d 340 (1966), cited with approval the case of Tyee Construction Co. v. Dulien Steel Products Inc., 62 Wash.2d 106, 381 P.2d 245 (1963) which case held that three basic factors must coincide if jurisdiction over a non-resident corporation is to be entertained. The following is from the opinion in that case: “ ‘ * * Such would appear to be: (1) The nonresident defendant or foreign corporation must purposefully do some act or consummate some transaction in the forum state; (2) the cause of action must arise from, or be connected with, such act or transaction; and (3) the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature, and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation.’ ”

The undisputed evidence in this case showed that Kadish was a Massachusetts corporation; none of its officers or employees have ever been in Texas on business for it; it has never had an office or telephone in Texas; it has never shipped goods into Texas and has never advertised here or sold anything in Texas; it has no warehouse here and has never applied for a permit to do business in Texas, and has never owned property here. Prior to the time of arrival of Estes’ truck load of meat at Radish’s plant in Boston, Massachusetts, there had been no direct contact between Estes and Radish.

The undisputed evidence shows that the only contact that Radish had in Texas was when it sent by mail to Estes in Fort Worth, Texas, its check for $7,305.22 in payment for the meat that it had purchased out of Estes’ truck load of meat that had been delivered by Estes to Radish in Boston, Massachusetts. On the back of that check that Radish sent to Estes in Texas in payment of Estes’ meat that Radish had admittedly bought from Estes and sold for a profit, Radish had printed the following: “Payment in full for Trailer # C2887 shipped 5/23/73. Beef arrived Off Condition and with permission with Estes Company, we used the following cattle, namely:

“By endorsement, this check is in full payment for all debts incurred to Estes Company by Radish & Milman Beef Co., Inc., 138 Newmarket Square, Boston, Mass.”

In addition to sending this check into Texas to pay for the meat that it admittedly purchased out of Estes’ load, Radish sent the check to Estes in an effort to get him to endorse the check and thus effect an accord and satisfaction of all claims that Estes had against Radish arising out of this entire transaction, including Radish’s refusal to accept the entire truck load of meat.

By placing the quoted endorsement on the back of the check, Radish made it impossible for Estes to accept the check in payment for its meat that Radish admittedly bought, took, and sold, the result being that up to now Radish has gotten over $7,300.00 worth of Estes’ meat without paying for it. This suit is in part to recover the price of Estes’ meat that Radish admittedly bought and has not paid for.

Texas’ purpose in enacting its long-arm statute (Art. 2031b) was to exploit to the maximum the fullest reach permissible under Federal Constitutional restraints. Atwood Hatcheries v. Heisdorf & Nelson Farms, 357 F.2d 847 (U.S.Ct. of App., 5th Cir., 1966), and National Truckers Service, Inc. v. Aero Systems, Inc., 480 S.W.2d 455 (Fort Worth Civ.App., 1972, writ ref., n. r. e.).

We hold that the three basic factors referred to in the O’Brien and Tyee Construction Company cases, supra, which three factors are above set out, are present in this case and that Radish did maintain the minimum contacts with the forum state that were necessary to make it amenable to in personam jurisdiction of Texas courts.

In the case of Uvalde Rock Asphalt Co. v. Consolidated Carpet Corp., 457 S.W.2d 649 (Beaumont Civ.App., 1970, writ ref., n. r. e.), the contract between plaintiff (the resident) and defendant (the foreign corporation) provided that the foreign corporation “ ‘. . . agrees to pay promptly at the general offices of the Manufacturer in San Antonio, Texas, all invoices for goods purchased.’ ” In passing on questions similar to those before us in this case, the court there said, at page 651: “Carpet Corporation made two payments to Uvalde in Texas in accordance with the contract. It is our opinion that the payment of $S,473.73 in Texas determined that the foreign corporation, Carpet Corporation, had sufficient contact, ties or relations with the forum, and participated in the kind of activities in Texas so as to make it subject to the jurisdiction of the State of Texas. Such contacts, minimal though they may be on the part of Carpet Corporation, do not offend the traditional notions of fair play and substantial justice.” (Emphasis added.)

The question under discussion was also involved in Standard Leasing Co. v. Performance Systems, Inc., 321 F.Supp. 977 (U.S.Dist.Ct., Northern Dist. of Texas, 1971). There a Tennessee corporation entered into an agreement with plaintiff, a Texas resident, to pay plaintiff in Amarillo, Texas, lease rentals and other payment obligations as they became due. Defendant sent some payments to plaintiff in Texas and then defaulted. That court held that defendant’s contacts in Texas through making the payments were sufficient to give the Texas Court in personam jurisdiction over defendant in a suit brought to collect the unpaid and overdue rentals.

In Custom Leasing, Inc. v. Gardner, 307 F.Supp. 161 (U.S.Dist.Ct., Miss., 1969) a Texas corporation sued a resident of Mississippi in Texas to recover unpaid rentals that had accrued under an equipment leasing agreement. The agreement was finally accepted by plaintiff in Texas. It contained this clause: “ ‘Payable and performable in Lubbock, Lubbock County, Texas.’ ” The defendant made payment to the plaintiff in Texas of some of the accrued rentals. The court held that the non-resident there by paying rentals in Texas had sufficient contacts with the forum state to give its courts in personam jurisdiction over him in a suit brought to collect unpaid rentals.

It has been held that when the first two factors that were enumerated in the Tyee Construction Company and O’Brien cases, supra, and which factors are hereinabove set out, are satisfied and are present in the case, there is nothing offensive or inherently unfair in asking the defendant to litigate in the State of Texas. See National Truckers Service, Inc. v. Aero Systems, Inc., supra and Standard Leasing Co. v. Performance Systems, Inc., supra.

Other cases that we believe support the holding we make are: National Truckers Service, Inc. v. Aero Systems, Inc., 480 S.W.2d 455 (Fort Worth Civ.App., 1972, writ ref., n. r. e.), and McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957).

The judgment is reversed and the case remanded for further proceedings not inconsistent with this opinion.


source: Caselaw Access Project

author: PHILLIPS, Chief Justice.

license: Public Domain

text:
    LOWER COLORADO RIVER AUTHORITY, Appellant, v. Gene ASHBY, Appellee.
    No. 12326.
    Court of Civil Appeals of Texas, Austin.
    Nov. 19, 1975.
    Rehearing Denied Dec. 17, 1975.

      Fred B. Werkenthin, Edward C. Small, Dennis R. Reese, Small, Craig & Werken-thin, Austin, for appellant.
    Samuel D. McDaniel, Austin, for appellee.
   PHILLIPS, Chief Justice.

The question before us is whether the appellant Lower Colorado River Authority, under the terms of its easements with ap-pellee landowner, has abandoned its transmission lines or exceeded the scope of its easement situated on appellee’s property by substituting steel towers for wooden H-frames to carry its lines and by adding additional wires on the substituted towers thus increasing the electrical load.

Appellant denies any abandonment, insists that its utilization of the easements has been in accordance with rights granted thereunder and by cross claim sought a declaratory judgment to that effect. The trial court held that appellant had abandoned the easement and rendered judgment for appellee. Subsequently the damage issue was tried before a jury and the trial court entered a final judgment for appellee for $86,947.50 plus interest. Appellant then perfected its appeal to this Court. We reverse and render judgment as hereinafter described.

Appellant contends, and we agree, that the court erred in finding in its first conclusion of law that: “the size and general nature of the transmission lines contemplated by the 1939 and 1940 grants were not specifically set out in the grants other than by attached drawings indicating the contemplated voltages and that double pole type structures to be erected.” This is appellant’s first point of error. We also sustain appellant’s points two through six which, in essence, assign error to the judgment of the trial court in holding the easement abandoned and in failing to declare, under the terms of the easement, that the appellant was granted the rights to reconstruct, maintain and operate the electric transmission facilities hereinafter described.

Three separate easements are involved in . this suit. Each was obtained by appellant from appellee’s predecessors in title by written easement and right-of-way instruments. The provisions of these easements are identical. Because the greatest changes in the transmission lines in question occurred on easement number 13, we will address ourselves to the facts and the law pertinent to that easement only; however, our determination of the extent of the rights granted appellant on easement number 13 will necessarily determine the extent of the rights granted appellant on the remaining two easements.

Easement number 13 was acquired in 1940 and the original electric transmission facilities were constructed on the easement shortly thereafter. There were no physical changes or reconstruction of these facilities prior to 1972.

Prior to 1972 one electric circuit consisting of three size 4/0 conductor wires crossed appellee’s property on easement number 13. These conductor wires were supported by wooden H-frame structures and the circuit operated at a total current of 138,000 volts or 138 K.V.

In 1972, the two wooden H-frames on easement number 13 were removed and two steel towers were installed on the easement approximately 930 feet apart. The three 4/0 conductor wires were taken down and three larger size .795 circular mil conductor wires were installed in their places. At this same time a second 138 K.V. circuit also consisting of three .795 circular mil wires was also installed on the two towers. While the change in conductor wires increased the kilowatt capacity of the circuit from 80,000 kilowatts to 200,000 kilowatts, the circuits were still designed to be operated and are operated at 138,000 volts or 138 K.V. Both of these circuits span appellee’s property on this easement. The steel towers bearing these lines are on the exact path of the prior wooden pole facilities and have a maximum width at their base of approximately forty feet. Changes were made in the transmission lines along the other two easements involved herein, however, as we stated above, this will not be alluded to further.

The wooden H-frames originally placed on easement number 13 were approximately 60 feet high and the two wooden poles on each H-frame were approximately 14 feet apart. The steel towers that replaced the H-frames are approximately 120 feet high. The foundations for the steel towers were poured and the towers were assembled on the ground prior to the time the original circuit was de-energized. The circuit was then de-energized, the old facilities taken down and the new wires were installed in what was described by a witness as a continuous process.

The pertinent parts of the instrument establishing easement number 13 in 1940 are as follows:

“That we. whether one or more, the parties whose names are signed below and -of-County Texas, for and in consideration of Four Hundred Sixty Dollars ($460.00) to me (us) in hand paid by LOWER COLORADO RIVER AUTHORITY, of Austin, Texas (hereinafter called the “Authority”), have granted, sold and conveyed and by these presents do grant, sell and convey into the said Authority, an easement and right-of-way for an electric transmission and/or distribution line, consisting of variable number of wires, and all necessary or desirable appurtenances (including towers. H-Frames or poles made of wood, metal or other materials, telephone or telegraph wire, props and guys), at or near the location and along the general course now located and staked out by the said Authority, over, across and upon the following described lands located in Travis County, Texas towit: [thereafter follows a legal description of the property].
“The easement shall consist of a strip of land 100 feet wide, the centerline of which is described as follows: [thereafter follows a legal description of the center-line of the easement],
“The above described easement contains approximately 34.97 acres.
“The location of the said Easement being shown on plat hereto attached and incorporated herein by reference.
“Together with right of ingress and egress over my (our) adjacent lands to or from said right-of-way for the purpose of constructing, reconstructing, inspecting, patrolling, hanging new wire on. maintaining and removing said lines and appurtenances: the right to relocate along the same general direction of said lines; the right to remove from said lands all trees and parts thereof, or other obstructions, which endanger or may interfere with the efficiency of said lines or their appurtenances.
“TO HAVE AND TO HOLD the above described easement and rights unto the said Authority, its successors and assigns, until said line shall be abandoned.
“Not more than _ towers, _ H-Frames, 54 poles and 38 guys, shall be erected along the course of said lines unless the said Authority, its successors or assigns, shall pay to me (us), my (our) heirs and legal representatives, at the rate of $5.00 pasture: $10.00 in cultivated land Dollars ($5.00. $10.00) for each tower, H-frame, pole and guy erected in excess of said number, and upon such payments the said Authority, its successors or assigns, shall have the right and the right is hereby granted, to erect towers. H-Frames, poles and guys along said course in excess of said number.
“I (we) do hereby bind myself (ourselves), my (our) heirs and legal representatives, to warrant and forever defend all and singular the above described easement and rights unto the said Authority its successors or assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof.” (Emphasis added)

A plat attached to the easement depicted its boundaries on the property as well as the location of the poles and guys for a 138 K.V. circuit.

In answer to the points of error stated above, appellee contends that the habendum clause of the easement limits the duration of the easement to the life of “said line.” Appellee further contends that the undisputed evidence discloses that appellant has removed its original “line” from what was its easement for original transmission line 13 and has replaced it with an installation five times the capacity of the original. Ap-pellee maintains that from the ancillary grant in the abovementioned easement, appellant was confined to the right to maintain, operate and repair the transmission line originally constructed and nothing more; that “reconstructing, inspecting, patrolling, hanging new wire on, maintaining and removing” and “the right to relocate along the same general direction” are all part of maintaining, operating, and repairing the original line, and a substantially different facility than the one for which the easement was granted has been constructed. As authority for this argument appel-lee relies, primarily, upon Houston Pipe Line Company v. Dwyer, 374 S.W.2d 662 (Tex.1964). Appellee contends that Dwyer holds that a grant of an easement not specifying either the location of the easement or the size of the line is defined and made certain by the act of the grantee in constructing the facility; after the facility has been constructed with the acquiescence of the grantor, what was before general and indefinite becomes fixed and certain and the grantee cannot change the easement either by moving the location or substantially increasing the size of the installation.

We reject appellee’s argument under the terms of the easement itself. In Dwyer, the pipeline company obtained an easement on their printed form which read, “First party does hereby grant, sell and convey unto second party a right of way to lay, maintain, operate, repair and remove a Pipe Line for the transportation of gas.” The parties struck out the words “and remove” and also deleted a paragraph in the haben-dum clause giving the future right to construct additional pipelines over such lands for additional consideration. This agreement contained no specifications for the size of the pipeline, nothing about the width of the easement, no metes and bounds description of the easement, nor any course or direction for the line to follow across the land. Because this limited easement was totally silent as to its location and boundaries, that the court held the replacement of an 18-inch pipeline with a 30-inch line constituted an additional servitude for which compensation was due.

Dwyer is inapposite here. We hold that the case at bar is controlled by Knox v. Pioneer Natural Gas Company, 321 S.W.2d 596 (Tex.Civ.App.1959, writ ref’d n. r. e.). Knox allowed an enlargement of the servitude originally granted in an easement which granted rights in excess of those initially used.

The easement before us provides for a “. . . right-of-way for an electric transmission and/or distribution line, consisting of variable number of wires, and all necessary or desirable appurtenances (including towers, H-Frames or poles made of wood, metal or other materials, telephone and telegraph wire, props and guys) . . ” (Emphasis added)

The testimony revealed that a transmission line is much larger than a distribution line and is used for carrying large blocks of electricity for long distances. It is undisputed that the original installation in easement number 13 was a transmission line and appellant has never placed a distribution line on this easement. Under the trial court’s erroneous application of the Dwyer rule, the original construction of a transmission line on easement number 13 would have operated as a forfeiture of the expressly granted right to utilize the easement for a distribution line, even though such distribution line might be completely contained in the specified boundaries of the easement area.

Furthermore, the definition of the lines as containing a variable number of wires, taken with the provision in a later portion of the instrument giving appellant access rights for the purpose of “hanging new wire on . said lines and appurtenances”; the right to erect the metal towers; the right to enlarge the number of towers, H-Frames, poles and guys (in excess of the number originally specified in the lease) for a certain described remuneration for each such facility added, are clearly inimical to the trial court’s limiting appellant’s rights to the maintenance and operation of a 138 K.V. single circuit composed of three size 4/0 wires, and completely ignores and negates the provisions of the easement contracted for. These provisions represent language added to the easement to expand the grant to appellant.

Thus the easement reflects that the original construction was to consist of a specified number of poles and wires strung thereon, but that the appellant as well as its successors were given the additional right to substitute metal towers to increase this number for an agreed extra compensation per tower plus the further right to add extra wires to the towers, hence extra circuits.

The easement is then designated as a strip of land 100 feet wide following a course through appellee’s land described by metes and bounds. This fact in itself is one of the strongest features in distinguishing the case at bar from Dwyer. The parties themselves have, by the terms of their agreement, fixed and made certain the boundaries and limits of the easement. None of the vagueness and indefiniteness of the easement in Dwyer is present here.

Particularly significant is the right given appellant to maintain, remove, and reconstruct the line and appurtenances. The Supreme Court in Dwyer stated that the terms “operate” and “maintain” were “broad enough to include the right to remove and replace the original pipe with pipe of the same size when necessary.” Thus the appellant’s right to “maintain” would include the right to completely remove and rebuild the transmission line in whatever manner and form authorized by the easement. This is what appellant has done. However, appellant is also authorized to “reconstruct” which to us means it is authorized to reconstruct “an electric transmission line consisting of a variable number of wires (with) all necessary or desirable appurtenances including (steel) towers.”

We hold that the language of the easement before us clearly gives the grantee rights in excess of the one actually used and such right would still exist notwithstanding the prior exercise of a lesser privilege. Knox v. Pioneer Natural Gas Company, supra.

Consequently, we reverse the judgment of the trial court and judgment is here rendered that appellee take nothing by his suit and that appellant be accorded the declaratory relief sought insofar as this relief is consistent with the facts and the holdings set out above.

      . Easement number 13 is the northernmost easement and is separated from easement number 6 to the south by a strip of unencumbered land. Easement number 4 is located immediately to the south of, and adjoining, easement number 6.


author: YOUNG, Justice.

text:
    In re Jo Anna SALINAS, a minor.
    No. 1004.
    Court of Civil Appeals of Texas, Corpus Christi.
    Nov. 26, 1975.

      Roger C. Rocha, Juarez & Rocha, Austin, for appellant.
    James W. Williams, III, Robstown, for appellee.
   OPINION

YOUNG, Justice.

In this case the trial court granted the petition of Thomas Garcia and Gilma Garcia to adopt Jo Anna Salinas, born September 9, 1967, the daughter of Gilberto Salinas and Amanda Jasso Salinas. Neither of the natural parents consented to the adoption. The petitioners sought the adoption under Tex.Rev.Civ.Stat.Ann. art. 46a, § 6(a) (1969), which provides that no consent of the child’s parents is necessary if the parents, for a period of two years, voluntarily abandon the child or fail to contribute substantially commensurate with their financial ability to the support of the child.

After a non-jury trial, the trial court signed and rendered its decree of adoption on February 10, 1975. No findings of fact or conclusions of law were requested nor filed. From that decree Mr. and Mrs. Salinas, the natural parents of Jo Anna, appeal.

The events leading to the filing of this adoption proceeding are these: Jo Anna was placed in the care and custody of the Garcias during the time when the parents were having medical difficulties with another of their children and when Jo Anna was only about two months old. The mother was making frequent trips from the family home in Zapata to San Antonio where the ill child was hospitalized. At times the mother was gone for periods of two or three weeks.

Also, at this time, the appellants had four other children besides Jo Anna. The mother of Mrs. Salinas was taking care of the three older children, and Mrs. Garcia, paternal aunt of Jo Anna, together with her husband agreed to take care of Jo Anna. Whereupon the appellees took Jo Anna to their home in Robstown where they have cared for and supported her continuously ever since.

About six years later, on November 1, 1973, the Garcias filed their petition for adoption and the trial thereon was begun November 25, 1974. Thereafter, on February 10, 1975, the trial judge signed the decree from which this appeal was taken.

In two points of error the appellants say this case should be reversed because within the meaning of our adoption statutes: (1) there is no proof of parental abandonment; (2) the failure of the parents to support was excusable. Further, pursuant to Rules 414 and 419, T.R.C.P., the appellants, by motion, request us to preclude appellees from filing a tardy brief or from contesting the statement of facts as presented in appellants’ brief.

We will consider the matter of ap-pellees’ tardy brief first. In that regard, the facts and circumstances are these: Appellants timely filed their brief after having properly filed with us the record. On the day set for submission of the case and oral argument thereon, the appellants’ attorney did present argument. Appellees’ attorney, however, presented no argument, but he did at that time submit a motion requesting leave to file a brief at a later time. The reason given for the request was that the appellees’ attorney had been mistaken about the day set for submission. Whereupon we informed the appellees’ attorney that he would be permitted to submit a brief within five days (which he did) and that we would decide later whether to permit the filing thereof. We now hold that the appellees have not shown good cause for their failure to timely file their brief initially. Therefore we refuse the filing of their tendered brief.

In the appellants’ motion they also urge us to accept as correct the facts as presented in their brief. Even though the appellees have not filed a brief (or, as here, where the filing thereof has been refused) we still have discretion whether to accept as correct appellants’ statements in their brief. Rule 419, T.R.C.P.; Clyde v. Hamilton, 414 S.W.2d 434 (Tex.Sup.1967). Because the future welfare of a child is here involved, we deem it appropriate for us to elect to review the entire record; which we do. See Davis v. Davis, 499 S.W.2d 922 (Tex.Civ.App.—Houston (14th Dist.) 1973, no writ).

As we mentioned, the appellees alleged both abandonment and failure to contribute by the appellants as grounds for adoption without parental consent. We cannot determine whether the trial court based its judgment on both alleged grounds or on only one of them. This is so because no findings nor conclusions were filed, nor does the judgment so show the ground or grounds.

Nevertheless, where no findings or conclusions were requested or filed, the trial court’s judgment should be sustained if it can be upheld on any legal theory supported by the evidence. Bishop v. Bishop, 359 S.W.2d 869 (Tex.Sup.1962); Jordan v. Hancock, 508 S.W.2d 878 (Tex.Civ.App.—Houston (14th Dist.) 1974, no writ). We believe the trial court’s judgment can be upheld on the failure to contribute ground, but not on the abandonment ground.

In appellants’ second point of error they contend that the evidence shows that the period of non-support by the parents was excusable because of the parents’ financial circumstances and of the refusal of appellees to accept any contribution toward support of the child.

About the natural parents’ financial circumstances, the evidence here shows that the appellant father earned approximately $75.00 per week; that the appellants have five children besides Jo Anna, one having been born after Jo Anna; that the appellant mother does not work. Further, Mrs. Salinas, the appellant mother, testified that they would have been able to support the child during all the years that the child lived with the appellees.

From this evidence we believe the trial court could properly infer that the financial circumstances of the appellants did not preclude their furnishing some support to the appellees on behalf of Jo Anna. Especially is this so in view of Mrs. Salinas’ admission about the appellants’ ability to provide support.

About the refusal of the appellees to accept support, the natural parents said that they often offered the adoptive parents money and other help toward Jo Anna’s support, but that the Garcias would always refuse to accept the proffered contributions. On the contrary, the Garcias said that the natural parents never at any time offered to help with the support and care of Jo Anna.

So what we have is a conflict in the testimony which is within the province of the trial court to resolve. And it appears that the trial court resolved the conflict in favor of the Garcias and found no refusal by them to accept offered contributions for Jo Anna. Or as correctly pointed out in Rubey v. Kuehn, 440 S.W.2d 95, 99 (Tex.Civ.App.—Houston (1st Dist.) 1969, writ ref’d):

“. . . The court heard and saw the witnesses testify. He is in a better position than are we to judge their credibility and the weight to be given their testimony.”

And further, regarding the trial court’s latitude in adoption matters, the Court in Rubey stated at page 99:

“Clearly, whether an adoption should be granted is within the discretion of the trial court. This discretion is subject to review for abuse. We may not, however, substitute our judgment for that of the trial court just because we might have reached different conclusions.”

We cannot say therefore, that under the record the trial court erred in granting the adoption upon the ground of non-support by the natural parents.

Appellants rely principally on Heard v. Bauman, 443 S.W.2d 715 (Tex.Sup.1969) to support their position that they were justified in not contributing to the child’s support. The evidence in that case revealed without dispute that the mother, who had been having marital difficulty with her second husband, and having received no funds from either the father of the children or her second husband, made arrangements to leave the children with the grandparents. She had little income from employment. This testimony was uncontroverted and the Supreme Court held that the mother’s failure to contribute was excusable because of her financial inability to do so.

Heard is distinguishable from our case where there is an admission by the natural parents of ability to support and the evidence about reasons for failure to contribute is in conflict. Appellants’ second point is overruled.

Even though we have held that the trial court’s judgment should be upheld on the ground of non-support by the natural parents, we will consider the appellants’ first point about abandonment. In that regard, the evidence shows that the natural parents initially made arrangements for Jo Anna to stay with the Garcias and that they frequently visited with Jo Anna when she accompanied the Garcias to the home of Mrs. Garcia’s sister who lived in Zapata. Under the holding of Hendricks v. Curry, 401 S.W.2d 796 (Tex.Sup.1966), we believe that the evidence fails to show intentional abandonment, within our adoption statutes, of Jo Anna by her natural parents. Appellants’ first point is sustained.

The judgment of the trial court is affirmed.


author: NYE, Chief Justice.

text:
    FIRST CITY MORTGAGE COMPANY et al., Appellants, v. Roy J. GATLING and Gatling Construction Company, Appellees.
    No. 996.
    Court of Civil Appeals of Texas, Corpus Christi.
    Nov. 26, 1975.
    Rehearing Denied Dec. 17, 1975.

      Ward Williford, Williford & Carlock, Dallas, for appellants.
    Asa V. Bland, Atlas, Hall, Schwarz, Mills, Gurwitz & Bland, McAllen, for appellees.
   OPINION

NYE, Chief Justice.

This is a venue case. Roy J. Gatling and Gatling Construction Company, Inc., plaintiffs and residents of Cameron County, Texas, filed suit based upon a breach of a loan commitment contract against First Home Savings Association of Pittsburg, Pennsylvania and First City Mortgage Company of Dallas County, Texas (called defendant herein). Plaintiffs sought specific performance of the commitment contract and in the alternative damages resulting from the alleged breach of the loan commitment contract made by First Home Savings Association (called First Home) through the defendant company. Only the defendant timely filed its plea of privilege to be sued in the county of its residence, that being Dallas County. Plaintiffs controverted the plea of privilege. The trial court overruled defendant’s plea of privilege from which ruling the defendant has duly perfected its appeal to this Court.

In March 1970, the plaintiff Corporation commenced construction of what will be referred to as the Tulane Apartment Project located in Brownsville, Cameron County, Texas. At this time plaintiffs were in need of financing for the project and had contacted the defendant for assistance in this matter. Prior to contacting defendant, First Home had been in contact with defendant company informing them that they had funds available to loan. An agreement was then reached between First Home and the defendant on March 23, 1973, whereby plaintiffs obtained a commitment for permanent financing from First Home. First Home’s principal place of business was in Pittsburg, Pennsylvania. First Home has no offices, agents or representatives within the State of Texas, nor a license to do business in this State.

The loan commitment was in the original amount of $650,000.00 with interest at the rate of 8¾% for a term of 27 years. A commitment fee of $6,500.00 was paid by plaintiff, Mr. Gatling, to First Home through the defendant. This original commitment was for a period of nine months and was to expire in January, 1974, with the closing of the loan to be on or before January 10, 1974.

At the time of the expiration of the original commitment (January 10, 1974), the apartment project had not yet been completed. Although the evidence is conflicting, during the months of January through April, the loan commitment was extended on two or three more occasions and on at least a couple of these occasions there was another $6,500.00 paid by plaintiff Mr. Gatling for the privilege of receiving the extension of the loan commitment. After a renegotiation of the loan commitment between First Home and plaintiff on May 30, 1974, the amount of the commitment was reduced to $635,000.00 with the rate of interest increased to the current rate of 9¾%, with ⅛ of 1% to go to defendant for securing the loan. The commitment was for a 30 day period which was to expire on July 6th or 7th, 1974. As a condition to this renegotiation of the loan commitment, an additional loan commitment fee in the amount of $6,350.00 was paid to defendant by plaintiff Gatling.

On June 12, 1974, First Home wired the $635,000.00 to Cameron County Title Company to fund plaintiffs’ loan. This was done as an accommodation to defendant as they requested that it be wired direct to the title company rather than having First Home wiring funds to them and First City then having to rewire them to the title company. The funds were kept by the title company during this time.

Plaintiff discovered through his superintendent just prior to closing that he had an overrun in excess of $200,000.00 of the cost of the anticipated budget for the project. After learning this, the plaintiff found that he would not have sufficient money for closing and thus sought a purchaser for the project so that he could get out of this financial dilemma. The plaintiff contacted a Mr, B. P. Newman, who was a prospective purchaser. After ensuing negotiations, a contract for sale was entered into between Gatling Construction Company, Inc. and B. P. Newman Investment Company for the purchase of the Tulane Apartment Project. The basis of the agreement was that Newman would assume plaintiffs’ position. The property would be conveyed to Newman, subject to the loan and he (Newman) would provide the necessary funds to close.

Gatling and Newman approached defendant with this arrangement, but such an arrangement was not acceptable to the defendant. During these negotiations, First Home was unaware of the Newman prospective sale or the refusal of defendant to accept such an arrangement in order to close, nor were they made aware of the problems existing as to the closing.

On or about July 6, 1974, the loan commitment expired by its own terms without the loan having been closed. There was no further extension by First Home of the loan commitment. On July 10, 1974 (four days after the loan commitment had expired), defendant’s attorney sent a letter to the Cameron County Title Company stating that it was his understanding that the parties were now ready for disbursement of the funds and that the title company was thereby authorized to make such disbursement. The closing still did not take place. On July 19, 1974, the president of First Home sent a telegram to the title company advising them that plaintiffs’ commitment expired July 6, 1974, and they absolutely forbid the closing of the mortgage and distribution of the funds. First Home requested the immediate return of the funds. On or about August 1, 1974, the funds were wired back to First Home in Pennsylvania.

The plaintiffs then filed suit against the defendant First City and First Home alleging that they had breached their loan commitment contract with plaintiffs and therefore plaintiffs sought equitable relief in the nature of specific performance. In the alternative, plaintiffs sought damages for the fees paid for the commitment and the extension thereof in the total amount of $28,-850.00, damages for the wrongful breach of the commitment which prevented the sale to B. P. Newman resulting in damages in the sum of $115,000.00, and other relief.

The defendant filed its plea of privilege to be sued in Dallas County, the county of its residence. Plaintiffs controverted defendant’s plea of privilege. The trial court found venue to be proper in Cameron County under Subdivision 5, Art. 1995 as to First Home and as to defendant First City under Subdivision 29a, Art. 1995. The trial court held that defendant First City was a necessary party to plaintiffs’ action against First Home. Defendant appeals from that ruling.

The defendant in its points of error claims that the trial court erred in overruling its plea of privilege because: 1) the defendant did not contract in writing to perform the alleged obligation sued on in a particular county, that county being Cameron, expressly naming such county, or a definite place therein (V.A.T.S.1995, Subd. 5); 2) that the defendant is not a necessary party to this suit because Gatling may obtain complete relief to which he may be entitled in this lawsuit under the facts of the case against First Home; that because First Home is properly sueable in Cameron County, both defendants are not needed in this suit to afford plaintiffs complete relief. (V.A.T.S.1995, Subd. 29a).

The courts in Texas have consistently held that a person’s right to be sued in the county of his residence is a valuable right and should never be denied except upon clear and convincing proof that the alleged cause of action comes within an exception to Article 1995. City of Mineral Wells v. McDonald, 141 Tex. 113, 170 S.W.2d 466 (1943); Shaw v. Allied Finance Company, 161 Tex. 88, 337 S.W.2d 107 (1960); Stanley v. Savage, 489 S.W.2d 461 (Tex.Civ.App.—Corpus Christi 1972, no writ). The plaintiff has the burden to allege and prove the facts he relies upon to bring his case within an exception to the general rule. Cowden v. Cowden, 143 Tex. 446, 186 S.W.2d 69 (1945); Stanley v. Savage, supra; Socony Mobil Company, Inc. v. Southwestern Bell Telephone Co., 518 S.W.2d 257 (Tex.Civ.App.—Corpus Christi 1974, no writ).

In order for the plaintiffs to maintain venue in Cameron County, Texas, under Subdivision 5, proof of the existence of a cause of action is not required. The single fact issue that plaintiff was required to prove was that the defendant First Home contracted in writing to perform the obligation sued upon in the county of the suit and that such instrument of writing expressly named that county, or a definite place therein, as the place where the obligation was to be performed. Petroleum Producers Co. v. Steffens, 139 Tex. 257, 162 S.W.2d 698 (1942); Vahlsing, Inc. v. Esco, Ltd., 496 S.W.2d 652 (Tex.Civ.App.—Corpus Christi 1973, writ dism’d). If the written instrument states a definite place where the contract is to be performed, such definite place may be identified as being located within a particular county by extraneous proof. Burtis v. Butler Bros., 148 Tex. 543, 226 S.W.2d 825 (1950); Vahlsing, Inc. v. Esco, Ltd., supra.

In defendant’s first point of error, it complains not of venue found under Subdivision 5 as to First Home which was the case here, but venue under Subdivision 5 found as to them, which was not the case. Defendant has mistakenly confused the proper position or operation of Subdivision 29a. Subdivision 29a never operates alone: it is invoked only when no other exception reaches the defendant urging his plea of privilege, but there is another defendant (not residing in the county of suit) against whom venue is demonstrably proper. 1 McDonald Texas Civil Practice, § 4.36 (1965). Instead of defendant’s complaining that the trial court erred in finding venue in Cameron County as to them under Subdivision 5, the complaint should have been directed against the court’s ruling of venue under Subdivision 5 as to First Home. This, they did not do. Therefore, if there be any error by the trial court in finding venue in Cameron County as to First Home under Subdivision 5, such error was waived as there is no complaint thereof.

It should be noted, however, that the court’s ruling with respect to venue under Subdivision 5 as to First Home was correct. It is established by written evidence that the loan was to be closed at the Cameron County Title Company which is located in Brownsville, Texas. The title company had control over the funds located in a Brownsville bank. The breach of the loan commitment contract by defendant First Home, if any, such as the failure to consummate the closing, occurred in Brownsville, Cameron County, Texas. Thus, plaintiffs established venue in Cameron County against First Home under Subdivision 5 of the venue statute.

Since the suit is lawfully maintainable as to one of the defendants (First Home) and there are two or more defendants, plaintiffs must also meet the other of the two requirements of Subdivision 29a; and that is whether defendant First City is a necessary party under Subdivision 29a to the suit. Ladner v. Reliance Corporation, 293 S.W.2d 758 (Tex.Sup.1956); Loop Cold Storage Company v. South Texas Packers, Inc., 491 S.W.2d 106 (Tex.Sup.1973); Weaver v. Acme Finance Company, 407 S.W.2d 227 (Tex.Civ.App.—Corpus Christi 1966, no writ); Stanley v. Savage, supra; Vahlsing, Inc. v. Esco, Ltd., supra.

To be a necessary party under Subdivision 29a, First City’s joinder in the Cameron County suit must be necessary to afford plaintiffs the complete relief to which they are entitled under the facts of their case against First Home. Loop Cold Storage Company v. South Texas Packers, Inc., supra; Ladner v. Reliance Corporation, supra; Shaw v. Allied Finance Company, supra; Weaver v. Acme Finance Company, supra. It was, therefore, incumbent upon plaintiffs not only to allege the facts which made defendant a necessary party to the suit within the meaning of Subdivision 29a, but to also prove by independent evidence all of such facts except those which are taken as admitted under the pleadings or which are established as a matter of law by the allegation of the petition. To do this, plaintiffs were required to prove that defendant had an interest in the subject matter of the suit against First Home which would be affected by any decree completely adjudicating the rights of plaintiffs and First Home or that no effectual decree could be rendered between plaintiffs and First Home without defendant’s join-der. Ladner v. Reliance Corporation, supra. See also Loop Cold Storage Company v. South Texas Packers, Inc., supra; Weaver v. Acme Finance Company, supra. We hold that plaintiffs have met their burden.

The relief sought by plaintiffs is twofold. First, they sought equitable relief in the nature of specific performance requesting that First Home and defendant be required to specifically perform the loan commitment entered into by and between them. Second, plaintiffs sought recovery of damages for the wrongful breach of the loan commitment which included the amounts paid for the loan commitment fees and extension and damages resulting from the loss of the sale of the apartment complex to Mr. Newman.

The evidence clearly showed that defendant had a major role in the loan and its proposed closing. Mr. Richard H. Zeh-fuss, the executive vice president of First Home, testified that defendant’s role was to handle the whole transaction. The defendant would be in charge of closing and disbursement of the funds in accordance with the terms of the commitment letter. Upon the loan being closed, defendant would have collected the monthly payments of principal and interest and in turn deducted a percentage for a fee of some nature and send the balance on to First Home. All legal work was to be done by the attorneys representing defendant company and forwarded to First Home’s attorneys for their approval prior to the closing. In fact, defendant’s involvement was readily evidenced by the fact that the defendant made the initial decision on whether or not the loan was to be closed without informing First Home of the $200,000.00 overrun and the arrangement entered into between Gatling and Mr. Newman, the prospective purchaser, which might have alleviated the problem encountered. In fact, a letter from First Home to defendant makes reference to this and First Home’s contention that defendant is responsible for the failure of the deal to close. Said letter reads in part as follows:

“As you know our position is and has been that our commitment had expired when we requested the return of funds from the Title Company in Dallas. We had no information from you as to why the loan had not been closed and in fact, I called you Tuesday, Wednesday and Thursday prior to wiring the Title Company requesting the return of funds Friday. I received no return call until the week following and at that time you advised as to the $200,000.00 over run and Mr. Gatling’s attempt to assign our commitment to other investors which you explained was not permitted under the terms of your agreement with Mr. Gatling.
Our Board and I feel we are in this suit through no fault of our own and frankly feel your firm should assume the responsibility for payment of legal fees.”

This is some evidence of joint responsibility, First Home making the commitment and defendant handling the entire transaction. It follows then that if the remedy of specific performance as requested by plaintiffs was granted, defendant’s joinder would be necessary since the trial court in decreeing this equitable relief would of necessity have to decree that certain acts on the part of the defendant company be carried out. This is true because defendant was to, and did up to a point, handle the entire transaction. We hold that defendant’s joinder is necessary in order to afford plaintiffs the complete relief to which they are entitled under the facts of the plaintiffs’ case against the defendant company. The trial court was correct in the overruling of defendant’s plea of privilege.

There appears further reason why the judgment of the trial court was correct. Plaintiffs’ alternative plea was for damages which included the loss of commitment fees and extension fees paid by the plaintiffs to the defendant company who in turn paid a portion over to First Home. The evidence shows that on one occasion when plaintiffs paid an extension fee of $6,500.00 to First City, half of such sum was retained by defendant and the balance was sent on to First Home. There appears to be joint liability then with the defendant and First Home each holding a portion of the funds that plaintiffs are attempting to recover. Since the defendant company is jointly responsible for such funds, it is a necessary party to the lawsuit. Loop Cold Storage Company v. South Texas Packers, Inc., 491 S.W.2d 106 (Tex.Sup.1973).

The judgment of the trial court in overruling defendant’s plea of privilege is affirmed.

Affirmed.


text:
    AMERICAN NATIONAL INSURANCE COMPANY, Appellant, v. Lazaro CARBAJAL, Appellee.
    No. 1015.
    Court of Civil Appeals of Texas, Corpus Christi.
    Nov. 26, 1975.
    Rehearing Denied Dec. 17, 1975.

      0. F. Jones, Victoria, for appellant.
    Edward J. Ganem, Victoria, for appellee.
   OPINION

NYE, Chief Justice.

This is a suit on a credit life and disability insurance policy. Suit was instituted by plaintiff Lazaro Carbajal against defendant American National Insurance Company to recover under a credit life and disability insurance policy issued to the plaintiff at the time of creation of his indebtedness. Trial was before the court without the aid of a jury. The trial court held that plaintiff was entitled to recover from defendant the sum of $821.17, plus 12% penalty of $98.54 and attorney’s fees in the amount of $500.00. From this judgment appellant American National Insurance Company has duly perfected its appeal to this Court.

The plaintiff on or about November 10, 1971, purchased a piano from Hauschild’s Music Company of Victoria County, Texas. He executed a note and mortgage to cover a part of the purchase price of the piano. The note was assigned to the First Victoria National Bank, where the plaintiff was to make his payments. As a part of the installment contract, the bank charged and received a premium for credit life and disability insurance on the plaintiff. Approximately seven months after the plaintiff purchased the credit life and disability insurance, he began complaining of failing vision which finally culminated in his total disability in 1973.

The insurance company appeals from the trial court’s judgment contending that: 1) there was no evidence that the plaintiff became totally and permanently disabled as defined and set out by the terms of the insurance policy; and 2) that the finding (of total disability) of the trial court is against the great weight and preponderance of the evidence.

Plaintiff Lazaro Carbajal, a man of approximately 56 or 57 years of age, had a long history of past ocular difficulties consisting of what was referred to as “a granular like kerotitis” in both eyes, together with a past history of trachoma. In 1937 at age 17, plaintiff spent four or five months at the school for the blind. His condition was at that time diagnosed as trachoma. After taking certain tests at the school for the blind, showing that he had recovered sufficiently to be able to function adequately and go back to work, he was discharged. Plaintiff then got a job with the Texas Highway Department driving a truck. He continued to drive for the Texas Highway Department for approximately the next 30 years without incurring any problems with respect to his eyes.

However, in 1968, he began incurring problems with his eyes and was referred to a Dr. Burden in San Antonio. Dr. Burden on March 19, 1968 performed a lamellar keratoplast (cornea transplant) on plaintiff’s right eye. This improved his vision with a contact lens to 20/60. In January 1970, Dr. Burden performed another lamel-lar keratoplast on plaintiff, this time on plaintiff’s left eye, resulting in his post operative vision of 20/60 minus 1. After each of these operations there was nothing to indicate that the operations were not a success and plaintiff returned to work with the Texas Highway Department.

On November 10, 1971, some 22 months after the last operation, plaintiff purchased the piano in question and entered into an installment contract with Hauschild’s Music Company of Victoria, Texas. The piano was financed through the First Victoria National Bank in Victoria. The total price of the piano amounted to $1,109.11. Payments were to begin December 17, 1971, with 35 monthly installment payments of $30.50 each. Included in the total figure was a finance charge of $207.93 and a $29.78 premium for a credit life and disability insurance policy on plaintiff. Plaintiff was insured under a master policy of credit life insurance, which the defendant insurance company had issued to First Victoria National Bank, for the purpose of covering the bank customers (debtors). The policy provided in addition to life insurance benefits to pay off the indebtedness in the event plaintiff became totally and permanently disabled while the indebtedness remained outstanding and unpaid.

The record showed that plaintiff purchased the insurance coverage from an employee of Hauschild’s, a Mr. Louis Martinez. It is undisputed that plaintiff was never asked by either Mr. Martinez, the defendant American National Insurance Company, or anyone at the bank, whether he was in good health or anything with reference to his insurability. Plaintiff was not asked to or required to submit to a physical examination by either the defendant company, Hauschild’s Music Company, or the bank. It is undisputed that plaintiff made no statement as to his insurability or his physical condition at the time the insurance was purchased. Mr. Martinez testified that he had never even seen a copy of the policy of insurance he sold to plaintiff. He stated that he had no actual knowledge of the terms contained therein. Martinez testified that when selling the credit life to customers, he had been told to “sort of mention to the customers that in case of death or in case of disability that the payments would be taken care of”, and had told plaintiff that if he were to take out the policy of disability insurance, in the event he (plaintiff) became disabled, he would be covered. He was never instructed to determine the customers’ insurability. He was only instructed to ascertain if the debtor was between the ages of 18 and 66, a requirement for eligibility. Mr. Milton Gohlke, loan officer for First Victoria National Bank, which financed the loan on the piano, testified that with respect to the credit life policy they did not require any kind of physical examination on anyone when the amount financed was under $10,000.00. The amount financed here was just a little over $1,000.00. The First Victoria National Bank was named beneficiary should the plaintiff debtor die or become disabled.

In May, 1972, approximately 7 months after plaintiff purchased the credit life and disability insurance policy, he began complaining of failing vision in his left eye. Upon an examination, it was found that blood vessels were growing between the graft performed by Dr. Burden and the cornea. The graft itself was edematous. It was then determined that another cornea transplant would be necessary. In June 1972, Dr. Burden performed another penetrating keratoplasty (cornea transplant) on plaintiff’s left eye. Subsequently, complications constituting leakage of the wound due to overexertion on the part of plaintiff occurred. Plaintiff had also developed a dense cataract in the left eye. Dr. Burden then referred plaintiff to Dr. David Patón, an ophthalmologist in Houston, Texas. On June 8, 1973, Dr. Patón examined plaintiff and found that his right eye had less than 20/40 power and the left eye was sensitive to light perception only. He found that there was inflammation in both eyes caused by either the rejection reactions due to the transplant or to intraocular inflammation due to other causes. Plaintiff again on July 16, 1973 had a cornea transplant on his left eye which again proved unsuccessful.

It was undisputed that at the time plaintiff made claim under the policy, he was considered permanently disabled. In fact, the insurance company’s attorney stated: “Now, for simplicity sake, there’s not any question but that the man is disabled. There’s not any question but that this man’s disability began in 1973.”

Plaintiff, being unable to continue working, timely made his claim to the defendant insurance company asserting that he was permanently disabled and entitled to have his obligation to the bank satisfied under the terms of the credit life and disability policy. The claim was denied by the defendant insurance company.

Plaintiff then brought suit against defendant contending that because of the disability he was entitled to have the defendant insurance company pay the balance due on the piano, said sum then being $821.17. He also sought the 12% statutory penalty and reasonable attorney’s fees in the amount of $500.00 for failure of the insurance company to pay the claim. Defendant answered contending that the cause of plaintiff’s disability was contracted before the effective date of the policy and that, therefore, there is no liability for the particular disability of the plaintiff. Trial was before the court without the aid of a jury. The trial court found that plaintiff should recover from the defendant the sum of $821.17, plus $98.54 (12% penalty), and reasonable attorney’s fees in the sum of $500.00. From that judgment, appellant has duly perfected its appeal to this Court.

No findings of fact or conclusions of law were requested or filed. Where findings of fact and conclusions of law were not requested or filed, the trial court’s judgment should be affirmed if it can be upheld on any legal theory that finds support in the evidence. Bishop v. Bishop, 359 S.W.2d 869 (Tex.Sup.1962); Life & Casualty Insurance Company of Tennessee v. Rivera, 420 S.W.2d 788 (Tex.Civ.App.—Corpus Christi 1967, no writ).

The insurance policy in question reads in part as follows:

“If any debtor while insured under the Group Policy shall become wholly and continuously disabled, during the term specified in the individual certificate issued to such debtor, as a result of bodily injury sustained during said term and effected solely through accidental means, or as a result of sickness contracted and commencing during said term, and is thereby prevented from engaging in any occupation or from performing any work for compensation or profit, he shall be deemed to be totally disabled.
Sickness as used in this rider means a sickness or disease, not hereinafter excepted, contracted and commencing after the effective date of the insurance as to the debtor whose sickness is the basis of claim and causing loss of time commencing while this order is in force as to such debtor.
Upon receipt of due notice and proof in writing from a legally qualified physician or surgeon, other than the debtor, that the debtor has become totally and permanently disabled, as defined herein, the Company will pay disability benefits each month to the creditor, to be applied by the creditor to reduce or extinguish the unpaid indebtedness of the debtor to the creditor, for the actual number of days of such permanent total disability, commencing with the ninety-first day thereof, but not to exceed the total number of days remaining until the expiration date of the insurance as specified herein; the amount of such daily indemnity to be calculated as Vsoth of the amount of the insured monthly installment payable by the debtor to the creditor.”

The appellant American National Insurance Company argues that the cause of disability suffered by plaintiff was contracted before the effective date of the policy (November 10, 1971) and that, therefore, there is no liability under the terms of said policy for the particular disability of the plaintiff.

Appellant contends first that at the time plaintiff purchased the disability insurance policy (November 10, 1971), he had the condition which caused his ultimate disability and there was no evidence that plaintiff’s sickness commenced after the effective date of the policy.

In seeking to determine whether there is any evidence to support the trial court’s judgment, we must consider only that evidence most favorable to the trial court’s implied findings (which is contrary to the insurance company’s contentions) and disregard entirely that evidence which is opposed or contradictory in its nature. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950); Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97 (1953). The appellant’s “against the great weight and preponderance of the evidence” point requires us to review and weigh all the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The circumstantial evidence as well as the direct evidence supports the trial court’s judgment that the condition that caused plaintiff’s disability commenced after the inception of the insurance policy. Although the plaintiff had cornea transplants in his right and left eyes in March of 1968 and January of 1970, there was no evidence that the ultimate disability that plaintiff experienced was caused by a condition that began after the cornea transplants. In fact, plaintiff went to work after the operations and worked driving a truck continuously for 22 months until he purchased the policy of insurance in 1971. The evidence shows that it was 7 months after he purchased the policy before he started having trouble with his eyes that led to his ultimate disability in 1973.

In addition, there was direct and positive evidence that his condition commenced after the policy became effective. Dr. Burden found that in May of 1972 that: “There was some blood vessels growing between the graft and his cornea”. On another occasion, Dr. Burden testified that he performed another cornea transplant which was “sutured in place”. The doctor testified that due to some “overactivity he (the plaintiff) developed problems”. “He continued to do well until October, when he came back with a history of the left eye being irritable”. There was no evidence that the cause of plaintiff’s disability commenced prior to the inception of the insurance policy in question. After reviewing this and the entire record, we find ample evidence to support the trial court’s findings that the plaintiff’s disability was a result of sickness that was contracted and which commenced during the term of the policy. Appellant’s first point is overruled.

A certificate evidencing group insurance coverage on plaintiff appears in the record with disability coverage becoming effective on November 10, 1971. There is no dispute that the premium on said policy was paid and accepted by the defendant insurance company. The record conclusively shows that the plaintiff had suffered no disability prior to or at the time the disability coverage became effective in November of 1971. It was only in May of 1972 that plaintiff began having vision difficulties after his last eye operation some two and one-half (2½) years later. The insurance company’s attorney admits that plaintiff was totally disabled and that such disability began in 1973. The plaintiff therefore established a prima facie case for recovery under the terms of the policy of insurance that was in existence. It was then the appellant insurance company’s burden to come forward and prove that an exclusion in the policy was applicable that would prevent plaintiff from recovering on the policy in question. This the appellant insurance company failed to do.

Considering appellant’s greater weight and preponderance evidence point, we have considered all of the evidence in the record. There was evidence that plaintiff’s disability was due to the rejection of the cornea transplant and the failure of the subsequent attempts at cornea transplants. There was evidence that showed that although the plaintiff had eye problems that resulted in cornea transplants originally in March of 1968 and January of 1970, plaintiff immediately went back to work and was working at the time the disability insurance became effective. There was no evidence that the past operations (March of 1968 and/or January of 1970) were unsuccessful or that his body was rejecting the transplants at any time from the date of the operation until his disability some three to five years later.

After considering all of the evidence, we find that the evidence was sufficient to support the trial court’s judgment and that such judgment was not against the great weight and preponderance of all of the evidence. Appellant’s second point is likewise overruled.

The judgment of the trial court is affirmed.


author: STEPHENSON, Justice.

text:
    AMDEL PIPELINE, INC., Appellant, v. The STATE of Texas, acting through its agency, the Texas Parks & Wildlife Department, Appellee.
    No. 7753.
    Court of Civil Appeals of Texas, Beaumont.
    Nov. 26, 1975.
    Rehearing Denied Dec. 18, 1975.

      M. Harvey Weil, Corpus Christi, John G. Tucker, Beaumont, for appellant.
    John L. Hill, Atty. Gen., Robert R. Jespersen, Asst. Atty. Gen., Houston, for appellee.
   STEPHENSON, Justice.

Amdel Pipeline, Inc. (Amdel), as plaintiff, filed this declaratory judgment suit, seeking a declaration that it is not required to pay the Texas Parks and Wildlife Department (Department) 25$ per cubic yard for spoil dredged from the Neches River adjacent to its wharves. The Department filed a cross-action to recover judgment for 111,-022 cubic yards of spoil dredged, in the amount of $28,865.72. Both parties filed motions for summary judgment and stipulated as to the facts. This is an appeal from the judgment rendered for the Department.

A part of the stipulated facts are as follows: Amdel owns a refinery located on the bank of the Neches River. Amdel owns and operates the ship terminal facilities serving the refinery consisting of three wharves. The Neches River, at this point, is a federally authorized navigation project consisting of a dredged channel 40 feet deep and 400 feet wide. Amdel’s wharves are adjacent to the channel, but it is necessary to dredge the area around these wharves so they may be used. Maintenance of the channel itself is performed by the United States Army, Corps of Engineers. There is no place in the river for the dredged material to be placed; so the Corps of Engineers has acquired spoil areas in the form of permanent easements along the river. One of these spoil areas is located on Amdel’s land. Amdel received a permit from the Corps of Engineers to dredge the area around its wharves conditioned upon obtaining the State of Texas’ authorization if required. Amdel applied to the Department for a dredging permit with the spoil to be placed in the spoil area on Amdel’s property. The Department held a public hearing upon that application, and issued Amdel a “revenue” permit authorizing the removal of 40,000 cubic feet of material conditioned upon Amdel’s payment of 25$ per cubic yard for material removed. Am-del performed the dredging and removed 111,022 cubic yards of material for which they received a bill at the rate of 25$ per cubic yard. Amdel refused to pay the bill and filed this suit.

Simply stated, the real controversy between the parties to this suit is whether the State of Texas can make the payment for spoil material removed a condition to granting a permit for dredging regardless of the nature and character of the spoil material. We have come to the conclusion that under the present statutory authority the Department cannot make such a charge. We proceed to review this statutory authority placed in the Department in order to give our reasons for such a conclusion.

First, Tex.Rev.Civ.Stat.Ann. art. 4051 (1966), in effect, has given certain authority, powers, duties, and functions to the Department, over the fresh water rivers of this state, “together with all the marl and sand of commercial value, and all the shells, mudshell or gravel of whatsoever kind that may be . upon the bottoms of any . rivers . . . within the jurisdiction and territory herein defined . . None of the marl, gravel, shells, mudshells or sand included herein shall be purchased, taken away or disturbed, except as provided herein.”

Then, Tex.Rev.Civ.Stat.Ann. art. 4052 (1966) states the powers of the commission (now the Department) as follows:

“Powers of Commissioner
“The Commissioner is hereby invested with all the power and authority necessary to carry into effect the provisions of this chapter, and shall have full charge and discretion over all matters pertaining to the sale, the taking, carrying away or disturbing of all marl, sand or gravel of commercial value, and all gravel and shells or mudshell and oyster beds and their protection from free use and unlawful disturbing or appropriation of same, with such exceptions as may be provided herein.”

Tex.Rev.Civ.Stat.Ann. art. 4053, § 1 (1966) provides in part for the following:

“Anyone desiring to purchase any of the marl and sand of commercial value and any of the gravel, shells or mudshell or otherwise operate in any . river . . . included in this
Chapter, shall first make written application . . . . If the . . . Commission finds that the taking, carrying away or disturbing of the marl, gravel, sand, shells or mudshell in the designated territory would not damage or injuriously affect any oysters, oyster beds, fish . it may issue a permit.” Tex.Rev.Civ.Stat.Ann. art. 4053d (1966)

reads in part as follows:

“The Game, Fish and Oyster Commissioner by and with the approval of the Governor, may sell the marl, gravel, shell or mudshell included within this Act, upon such terms and considerations as he may deem proper, but for not less than four (4$) cents per ton, and payment therefor shall be made to said Commissioner.”

It is also agreed by the parties that this case presents a question for first impression, and requires this Court to construe the above-quoted statutes to the factual situation presented to us. During the oral argument, it was made known to the court that the position taken by the Department in this case was first advanced in 1973, and before that time, revenue permits had been issued only in the event one of the enumerated elements (marl, gravel, sand, shell, or mudshell) was to be removed. We agree that the old policy placed the proper construction on these statutes. We think it is clear that the Legislature intended to vest in the Department the authority to charge for the removal of any gravel, shell, or mudshell, and to charge for the removal of marl and sand if it is of commercial value.

One of the most frequently used and approved rules of construction is “expressio unius est exclusio alterius.” The Supreme Court of this state used this explanation of that rule in State v. Mauritz-Wells Co., 141 Tex. 634, 175 S.W.2d 238, 241 (1943): “It is a settled rule that the express mention or enumeration of one person, thing, consequence, or class is equivalent to an express exclusion of all others.” By expressly naming five specific materials for which the Department may make a charge, it must be presumed that no charge can be made for any other materials.

If the Legislature wishes, it can amend the statutes referred to above, and provide very simply that the Department may make a charge for any material removed from river beds without regard to its commercial value. The Department has stipulated that it was operating on the theory that it had such authority under the present law, and no effort was made, at the public hearing or at the trial court level, to determine the type or kind of spoil dredged.

The undisputed evidence shows the dredging in this case was done for navigation purposes and not for the purchase of any of the enumerated statutory materials. The spoil was pumped upon a permanent easement owned by the Corps of Engineers, and there is no evidence it had any value to Amdel.

In order to prevail in the declaratory judgment action, it was Amdel’s burden to establish that the material which it pumped from the river was not one of the five substances which entitled the Department to payment, i. e., that the material was not marl or sand of commercial value or gravel, shells, or mudshell. Similarly, in order to prevail upon its cross action, it was the Department’s burden to establish upon the trial the amount of the several enumerated materials removed from the river by Amdel and its standard and established price for such enumerated materials so removed.

Since the cause was not sufficiently developed to enable this court to render a final judgment, the judgment of the trial court is reversed and the cause remanded for a new trial in accordance with the interpretation of the statute rule herein stated.

Reversed and remanded.


author: STEPHENSON, Justice. KEITH, Justice

text:
    Edwin BAZZANO et al., Appellants, v. Joseph E. WARE, Appellee.
    No. 7748.
    Court of Civil Appeals of Texas, Beaumont.
    Nov. 26, 1975.
    Rehearing Denied Dec. 18, 1975.
    Seale, Stover & Coffield, Gary Gatlin, Jasper, for appellants.
    Gordon R. Pate, Beaumont, for appellee.
   STEPHENSON, Justice.

This is an action for damages for personal injuries received in a rear-end collision. Plaintiffs, Edwin Bazzano, and wife Sue, and Dennis Goodman, and wife Lona, were all occupants of an automobile struck from the rear by one driven by defendant, Joseph E. Wa,re. Trial was by jury and judgment was rendered for plaintiffs upon the verdict. Plaintiffs have appealed, and the parties will be referred to as they were in the trial court.

The jury failed to find that any of the plaintiffs were injured as a result of this collision and answered, “None” to the issues inquiring about damages for personal injuries. However, the jury then found a small amount of money for each plaintiff in answer to an issue as to expenses for medical care in the past “for treatment of his (or her) injuries resulting from the occurrence in question.” The judgment was for plaintiffs for the amounts of the medical expense and the damage to the Dennis Goodman automobile.

Plaintiff’s first two points of error are that the jury findings of “No” to the issues asking whether the plaintiffs were injured, and as to “None” to the personal injuries damage issues, were contrary to the great weight and preponderance of the evidence. We consider the entire record in passing upon these points of error.

The record before us shows that when the jury first brought in its verdict, it had failed to find any of the plaintiffs had been injured, but had answered the issue inquiring about damages for personal injuries $25.00 for each plaintiff. Counsel for plaintiffs argued to the trial court that there was a conflict between the answers to those two sets of questions. The trial court then asked the jury to resume their deliberation pointing out the conflict. The jury later returned with the verdict which was accepted by the court.

The writer of this opinion has had occasion to write upon similar questions to the ones raised here in Dupree v. Blackmon, 481 S.W.2d 216 (Tex.Civ.App.—Beaumont 1972, writ ref’d n. r. e.), and Bittick v. Ward, 448 S.W.2d 174 (Tex.Civ.App.—Beaumont 1969, writ ref’d n. r. e.). As we said in Dupree v. Blackmon, supra, this is not a case in which we are called upon to decide whether or not the damages found by the jury are inadequate, because in both cases the jury answered, “None.” We conclude here, as we did in Dupree v. Blackmon, supra, that even though the amount of damages is ordinarily left to the discretion of the jury, they cannot ignore the undisputed facts and arbitrarily deny any recovery. We find the answers “None” to the damage issues for personal injuries are so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.

These undisputed physical facts are evidence that the plaintiffs suffered some injuries resulting in pain and suffering:

1. Defendant testified he was following plaintiff’s automobile, about one car’s length apart, when he heard a whistle, looked away, and when he looked back it was too late, and he could not avoid hitting the other car.

2. The speed of defendant’s car, “I don’t really know how fast I was driving. I think I was within the speed limit.”

3. The amount of damage done to the two automobiles — $327.53 to the Goodman car and $425.00 to defendant’s car.

In addition to those physical facts, we also have the following evidence:

1. All four plaintiffs went to the emergency ward of the Orange Memorial Hospital immediately after the collision.

2. A man came along after the accident and drove the plaintiffs to the hospital.

3. Edwin Bazzano complained to defendant about pain in his neck immediately after the collision.

4. Dr. Popejoy testified that all four plaintiffs were injured as a result of this collision, and found muscle spasms in the backs of three of the four. He also testified that the miscarriage suffered by Lona Goodman (six weeks after the collision) was probably caused by this incident.

5. All four plaintiffs testified to the pain they had suffered and were still suffering at the date of trial.

6. Edwin Bazzano testified he had received injuries to his neck and back and had rebruised his side. He had missed three weeks of work at Sneed’s because of his neck, and his headaches were getting worse.

7. Dennis Goodman testified to injuries to his neck and back, and that he had to give up a job driving a truck because he couldn’t take getting in and out of the truck with his back trouble. Also, he had to quit a job at Billups service station because he could not fix flats. He has been taking aspirin and pain pills. In addition to all of this, the jury then found the plaintiffs were damaged in the amount of some of their medical expenses as a result of their injuries received in this collision.

Once again the jury could have concluded that none of the injuries were serious; however, the fact of some injury and resulting damage from pain and suffering is inescapable. See authorities cited at page 219 in Dupree v. Blackmon, supra. See also, Blair v. Buksnys, 521 S.W.2d 652 (Tex.Civ.App.—San Antonio 1975, no writ).

Reversed and remanded.

KEITH, Justice

(dissenting).

Believing that the court has erred in reversing the judgment of the trial court, I respectfully dissent.

We face again the recurring question of a jury verdict fixing liability on a defendant but denying to plaintiffs any damages for alleged personal injuries sustained in an automobile collision. See, e. g., Bittick v. Ward, 448 S.W.2d 174 (Tex.Civ.App.—Beaumont 1969, writ ref’d n. r. e.), and Dupree v. Blackmon, 481 S.W.2d 216 (Tex.Civ.App.—Beaumont 1972, writ ref’d n. r. e.). The opinions in the two prior cases were written by Justice Stephenson and, in each instance, the finding of “none” in answer to the damage issue was set aside because such answers were contrary to the great weight and preponderance of the evidence; and, the same rationale is followed in the instant case. Since the Supreme Court has no jurisdiction to pass upon such points, the refusal of the writ “no reversible error” is readily explainable. In Dupree v. Blackmon, supra (481 S.W.2d at 220-221), I expressed my views on the question and I have not receded from this concept.

The four plaintiffs were “rear-ended” by defendant’s car, taken to a hospital in Orange for medical examination, and released without treatment. None sought medical advice until some weeks later when all were referred to Dr. Popejoy by their lawyer. His examination as to three of the plaintiffs revealed a single objective symptom — muscle spasm — which he attributed to the history of the accident. As to the fourth plaintiff — Edwin Bazzano — there were no objective symptoms, simply subjective complaints of pain. As to Edwin Bazzano, the jury had the right and privilege of rejecting his claim, notwithstanding the support of the testifying physician which he brought. See the second “rule” which I invoked in Dupree v. Blackmon, supra. (481 S.W.2d at 221). Yet, he, too, gets another bite at the apple.

Nor am I persuaded by the jury’s allowance of past medical expenses as bearing upon the main damage issue. It is obvious that the jury attempted to award the plaintiffs the sums expended in the initial medical examinations to determine if they were injured — not for treatment for injuries which they subsequently claimed to have received.

At least as to Edwin Bazzano, the court has substituted its finding that Bazzano is entitled to damages for a negative finding by the jury. In so doing, the court has weighed the evidence and passed upon the credibility of the witnesses (which were neither seen nor heard by this court but by the jury) and determined that the negative answer of the trier of the facts is contrary to the overwhelming preponderance of the evidence. This is, I submit, an impermissible finding by an intermediate appellate court in this State. In doing so, the majority has created a conflict between this opinion and Hulsey v. Drake, 457 S.W.2d 453 (Tex.Civ.App.—Austin 1970, writ ref’d n. r. e.), and Royal v. Cameron, 382 S.W.2d 335 (Tex.Civ.App.—Tyler 1964, writ ref’d n. r. e.).

After all, in seeking a recovery, plaintiffs labored under the burden of adducing evidence sufficient to convince the trier of the facts that each sustained injuries in the collision which produced damages measured in money. Texas & Pacific Railway Com pany v. Van Zandt, 159 Tex. 178, 317 S.W.2d 528 (1958). Indeed, such an issue may be dispositive of the case. Baldeschwilder v. Bonham, Tex., 529 S.W.2d 770 (1975).

The jury’s answer “none to the damage issue in each instance simply meant that the plaintiffs, each having the burden of proving the amount of the monetary damage, failed to discharge such burden. C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191 (Tex.1966). The sole and only base for an award of damage to either plaintiff was his own testimony supported by the opinion evidence of the doctor to whom his lawyer had sent him for examination. The jury was not required to find for such plaintiff based upon such testimony. It could, and apparently did, reject such testimony. In so doing, the jury did not exceed the normal fact-finding function entrusted to it.

        Tippett v. Brannon, 493 S.W.2d 511 (Tex.1973). See also the long list of cases with similar holdings cited in 4 Tex.Jur.2d, Rev. Part 2, § 778 at 254-256 (1974).