author: COULSON, Justice.

text:
    Jerome Leon WALKOVIAK et al., Appellants, v. HILTON HOTELS CORPORATION, Appellee.
    No. B1923.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    April 4, 1979.
    Rehearing Denied May 2, 1979.

      John Somyak, Stovall & Somyak, Houston, for Jerome Leon Walkoviak.
    Jeffrey C. Londa, Butler, Binion, Rice, Cook & Knapp, Houston, for Florists’ Mut. Ins. Co.
    Larry D. Thompson, Lorance, Thompson & Wittig, Houston, for appellee.
    Before J. CURTISS BROWN, C. J., and COULSON and CIRE, JJ.
   COULSON, Justice.

This is an appeal by plaintiffs Jerome Leon Walkoviak (appellant) and Florists’ Mutual Insurance Company (appellant Insurance Company) from a summary judgment in favor of the defendant Hilton Hotels Corporation (appellee) in a suit for personal injuries caused by the criminal activities of third persons, based upon the alleged negligence of the defendant Hilton Hotels Corporation in failing to provide adequate security. We reverse the judgment and remand the case to the trial court.

In mid-August of 1975 appellant attended a business convention at the Shamrock Hilton Hotel (the hotel), one of appellee’s hotels. On the evening of August 17, 1975, appellant arrived by automobile at the hotel, paid a parking fee of $1.00, and parked in a parking lot owned by and located directly in front of the hotel. After attending the evening convention activities in the hotel appellant left the hotel building and went to his automobile in the parking lot at approximately 11:30 P.M. As he reached his automobile he was accosted by two unknown assailants, beaten, stabbed, and robbed. He was rendered unconscious and awoke in his automobile some distance from the hotel in the early hours of the morning of August 18.

Appellant brought suit against appellee to recover damages based upon the alleged negligence of the hotel in failing to supply adequate protection in the form of guards or other security measures, in failing to warn appellant of any possible danger, and in failing to take other necessary steps to protect appellant. Appellant Insurance Company intervened to recover sums it had paid to appellant Walkoviak for medical benefits and workmen’s compensation benefits.

Appellee filed a motion for summary judgment asserting that negligence had not been shown in connection with the circumstances producing the injury. Appellee further asserted that the criminal attack by unknown assailants constituted a new and independent intervening cause totally disassociated with any act or omission on its part. Appellee argued that therefore it was absolved as a matter of law from any liability for the injuries to appellant. The trial court granted appellee’s motion for summary judgment and this appeal followed.

Appellee’s motion for summary judgment first urged that appellant had not shown negligence on the part of appellee in connection with the circumstances which produced the injury. The proprietor of a public business establishment has the duty to exercise reasonable care to protect his patrons from intentional injuries caused by third persons if he has reason to know that such acts are likely to occur, either generally or at some particular time. Liability for injuries may arise from the failure of the proprietor to exercise reasonable care to discover that such acts by third persons are occurring, or are likely to occur, coupled with the failure to provide reasonable means to protect his patrons from the harm or to give a warning adequate to enable the patrons to avoid the harm. Morris v. Barnette, 553 S.W.2d 648 (Tex.Civ.App.—Texarkana 1977, writ ref’d n. r. e.); Eastep v. Jack-in-the-Box, Inc., 546 S.W.2d 116 (Tex.Civ.App.—Houston [14th Dist.] 1977, writ ref’d n. r. e.); Restatement (2d) of Torts § 344 (1965). See Adams, Security Against Criminal Acts: The Landlord’s New Liability, 42 Texas Bar Journal 201 (March 1979). Under Texas law an innkeeper is not an insurer of the safety of his guests. An innkeeper’s responsibility to his guests consists of the duty to exercise ordinary or reasonable care in conformity with the principles discussed above. Nixon v. Royal Coach Inns of Houston, 464 S.W.2d 900, 902 (Tex.Civ.App.—Houston [14th Dist.] 1971, no writ); Montfort v. West Texas Hotel Co., 117 S.W.2d 811, 812 (Tex.Civ.App. — El Paso 1938, writ ref’d).

We have reviewed the summary judgment evidence and have found several respects in which questions of fact exist which are material to the issue of whether the hotel was negligent in connection with the circumstances which produced appellant’s injuries:

(1) The deposition of John E. Colacino, who was employed by the Shamrock Hilton as a security guard at the time of the attack on the appellant and was head of that security system when his deposition was taken, states that he made no conscious effort to find out anything about the crime situation in the area immediately surrounding the hotel.

The appellee’s answers to interrogatories show that the police were called to the hotel twice in the twelve months preceding the attack on appellant due to robberies in the vicinity of the hotel. In one of these the victim, a guest of the hotel, had been robbed, on Holcombe Boulevard, and in the other the victim was assaulted, robbed and injured on Montclair Street and was assisted into the hotel, where hotel employees called the police. A map of the hotel attached to the interrogatories showed that the hotel occupies a triangle of land bordered by Montclair Street, Holcombe Boulevard, and Main Street. The parking lot where appellant was assaulted borders Hol-combe and extends close to Main Street. It would be reasonable to infer that if two such incidents occurred in such close proximity to the hotel that the victims came or were brought to the hotel for help, the hotel was then aware of facts which should have prompted it to ascertain the extent of such crimes in the immediate area in order to determine what security measures would be necessary to protect its guests from potential assaults within the perimeters of the hotel’s own property.

(2) The deposition of Colacino also states that it was common for off-duty policemen to be hired to bolster the hotel’s own security force when large conventions were held at the hotel. ■ He states that the convention attended by appellant was considered a large convention. Colacino had no knowledge of whether any extra security personnel were hired for that convention. Appel-lee, in its answer to the interrogatory which requested the names, addresses, hours 'worked, and specific areas of responsibility of “all security personnel of the Shamrock Hilton” on the date of the incident, listed only four men, one for each of the three shifts for the twenty-four hours of that date, and one who was on vacation at the time. There is no evidence to show that any extra security personnel were hired to bolster the hotel’s own security force at the time of a large convention in accord with the hotel’s own security policy. This establishes facts from which a jury could infer that the hotel was negligent in not following its own established standards of care.

(3) The affidavit of D. A. Miller, an expert by experience and education in the matter of providing security, states that in his opinion, based on his training, education, and experience, it would take more than one guard per shift to adequately patrol a hotel the size of the Shamrock Hilton in the evening hours. Colacino’s deposition and appellee’s answers to interrogatories show that only one guard per eight hour shift was employed by the hotel.

(4) Miller further stated in his affidavit that to properly patrol the hotel a reasonable and careful security person would patrol all of the grounds of the hotel, including the parking lot. Colacino’s deposition shows that the hotel’s security guards would walk the five floors of the hotel garage, and then “check” the parking lot by looking down the aisles, but would not go up and down the aisles.

We believe that the evidence, when viewed in light of Miller’s affidavit, is sufficient to raise issues of fact as to whether the hotel, at the time appellant was assaulted, conducted its security measures in accordance with the standards required of a reasonable and prudent innkeeper in the same or similar circumstances. Such issues are to be resolved by the trier of fact, and are not proper issues to be determined as a matter of law in a summary judgment proceeding.

Appellee in its brief raises two objections to Miller’s affidavit. First, it is argued that there is no place in summary judgment procedure for opinion evidence from expert witnesses, citing Gloor v. United States Fire Ins. Co., 457 S.W.2d 925 (Tex.Civ.App.—Beaumont 1970, writ ref’d n. r. e.). Gloor was decided before the amendment to Rule 166-A which now provides:

A summary judgment may be based on uncontroverted testimonial evidence of an interested witness, or of an expert ‘ witness as to subject matter concerning which the trier of fact must be guided solely by the opinion testimony of experts, if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted.

(Emphasis added) Tex.R.Civ.P. Rule 166-A(c). Clearly, if a summary judgment may be granted based upon the opinions of expert witnesses, such opinions also have a place in precluding a summary judgment by raising issues of fact material to the elements of a non-movant’s cause of action.

Appellee also contends that Miller’s affidavit was insufficient because it was sworn to only to the best of his knowledge and belief rather than on personal knowledge as required by Rule 166-A(e). Appel-lee did not raise such objection at the time of the summary judgment hearing. Rule 166-A(e) states: “Defects in the form of affidavits or attachments will not be grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend.” Appellee argues that it is not relying upon the defect in this affidavit as a ground for reversal of the summary judgment, but as a ground for affirmance, and therefore should be allowed to raise this objection for the first time on appeal. We do not agree with appellee’s interpretation of this rule. The clear policy behind this portion of Rule 166-A(e), which was a recent amendment, is to provide that all formal objections to summary judgment evidence be raised in the trial court and the opposite party be given an opportunity to correct these formal defects prior to a decision on the summary judgment motion by the trial court. We fail to see the distinction between requiring timely objection to formal defects in affidavits which would establish the movant’s right to summary judgment, and requiring timely objections to such deficiencies in affidavits which would preclude the movant’s right to summary judgment. Appellee’s argument is not well taken and we find that its objection to the form of Miller’s affidavit cannot be raised for the first time in this appeal.

Appellee relies most heavily upon this court’s opinion in Nixon v. Royal Coach Inn of Houston, supra, to establish its right to a summary judgment based upon the theory that the criminal acts of unknown third persons constitute an independent intervening cause between any act or omission of the hotel and the injuries to appellant. In Nixon the plaintiff, a young woman, was assigned to a room in the defendant hotel which she alleged was remote from the main desk. Upon reaching the door to her room she was attacked by an unknown assailant and injured. She brought suit against the hotel claiming negligence in “billeting a single woman in a remote room in a desolate area of the motel” and in failing to furnish adequate guards for the protection of guests of the motel. Summary judgment was granted for the defendant motel and this court affirmed that judgment. Appellee asserts that the facts of Nixon are very similar to the facts m this case. A careful reading of our opinion in Nixon shows, however, that the evidence there presented was quite different. The record in Nixon consisted only of the plaintiff’s original petition, the defendant’s original answer, defendant’s unsworn motion for summary judgment, plaintiff’s unsworn response to such motion, and the plaintiff’s deposition. We stated, “[A]n assault by an unknown assailant under the instant record permits no other conclusion except that it was a new and intervening cause altogether disassociated with any act of omission or commission on the part of appellee” (emphasis added). The appellee in the case at bar relies upon this phrase to establish his right to prevail here. Appellee’s argument is tantamount to a claim that there can be no liability on the part of a hotel for any assault upon a guest by an unknown third person which occurs on the property of the hotel or motel. We do not so read Nixon. We stated in Nixon that the allegation of negligence was “most tenuous”, there being cited no authority requiring an innkeeper to assign any guests to any particular part of a hotel or motel. We found further that the plaintiff had wholly failed to show by summary judgment evidence that she was in fact billeted in a remote or desolate area of the motel. Our finding of “a new and intervening cause altogether disassociated with any act of omission or commission on the part of” the hotel was based upon our conclusion that there was no evidence that the act claimed to constitute the alleged negligence in that case was in fact done by the defendant motel. The decision in Nixon was not based upon a finding that there was a new and independent cause breaking the causal connection between an alleged negligent act of the defendant hotel and the injury to the plaintiff, as appellee would have us hold in this case.

As discussed above, appellant’s summary judgment evidence raised a fact issue as to whether the hotel acted as a reasonable innkeeper in providing security for its guests under the circumstances. Evidence of inadequate security would be some indication of “negligence on the part of the innkeeper in connection with the very circumstances which produced the injury”. Nixon, supra, at 902. The injury to appellant resulted from criminal acts of persons who invaded the premises of the innkeeper. Such invasion by criminals is an occurrence which the security measures of a hotel should reasonably be designed to prevent.

Once the plaintiff had introduced some evidence that the innkeeper in fact committed the acts or omissions which he has alleged to be negligence (as was not done by the plaintiff in Nixon) then the question of whether the acts of the third persons constitute new and intervening causes is a part of the foreseeability element of the issue of proximate cause. “Ordinarily [of course,] the question of whether an act of negligence was a proximate cause of the consequences presents an issue for determination by the fact finder.” Clark v. Waggoner, 452 S.W.2d 437 (Tex.Sup.1970). The foreseeability issue under the circumstances before us should be decided by the trier of fact.

Under Rule 166-A, Tex.R.Civ.P., the party moving for summary judgment has the burden of establishing that there exists no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Summary judgment should be granted only if the summary judgment record establishes a right thereto as a matter of law. Gibbs v. General Motors Corporation, 450 S.W.2d 827, 828 (Tex.Sup.1970). Appellee has failed to sustain this burden and therefore summary judgment was improper.

We reverse the judgment of the trial court and remand the cause for a new trial.


source: Caselaw Access Project

author: HUGHES, Justice.

license: Public Domain

text:
    Mary Lou LEACH, Independent Executrix of the Estate of Tommy J. Leach, Deceased, Appellant, v. EUREKA LIFE INSURANCE COMPANY OF AMERICA and Electra State Bank & Trust Company, Appellee.
    No. 18163.
    Court of Civil Appeals of Texas, Fort Worth.
    April 5, 1979.
    Rehearing Denied May 10, 1979.

      James Q. Smith, Wichita Falls, for appellant.
    Fillmore, Lambert, Farabee, Purtle & Lee and Glynn R. Purtle, Wichita Falls, for Eureka Life Ins. Co. of America.
    McKelvey & Hayers, Electra, for Electra State Bank & Trust Co.
   OPINION

HUGHES, Justice.

Mary Lou Leach, independent executrix of the estate of Tommy J. Leach, has appealed an order denying her recovery in a declaratory relief suit on a $7,000.00 credit life insurance policy. The case was tried to the court and no findings of fact or conclusions of law were requested or made. /

We affirm.

The record reflects that Tommy J. Leach borrowed $7,000.00 from Electra State Bank & Trust Company and gave as security his promissory note payable on demánd or 180 days from date, March 17,1977. The promissory note stated that its due date was September 13, 1977. No demand for payment was made. In connection with this loan he purchased, through the bank, acting as the insurance company’s agent, a group policy of credit life insurance for the amount of the loan. He paid the designated premium of $47.60 for the insurance. The premium was accepted by the insurance company which in turn issued him its credit life insurance certificate. The bank was named creditor beneficiary and Leach was named the insured debtor.

The premium charge paid by Leach was for a six month term. It was computed on that basis from a chart furnished to the bank by the insurance company. The chart had no provision for a daily rate, only a monthly one. The certificate of insurance shows on its face a six month term. It also shows that the effective date of the policy was “3/17/77” and the termination date was “9/13/77”.

Leach was killed in a highway accident at or around midnight September 13, 1977. The death certificate shows the time of injury and death was 12:45 a. m., September 14, 1977. The accident took place approximately nine miles north of Bowie. There were no witnesses. The plaintiff, Leach’s widow, qualified as independent executrix and gave proof of loss and made the statutory demand that the insurance company pay the policy proceeds to the bank in satisfaction of the note. The insurance company refused.

The insurance company alleged that Leach was killed September 14, 1977 and the insurance certificate that was the basis of Mrs. Leach’s cause of action had terminated and was not in force at the time of his death. It relied on several provisions in the group policy as evidenced by the insurance certificate in support of its contentions.

Mrs. Leach contended in her pleadings that her husband was killed before midnight, Central Daylight Saving Time, September 13, 1977. Alternatively, she contended that if her husband died September 14, 1977 (Central Daylight Saving Time), she was still entitled to recover under the terms of the insurance certificate because it was “patently ambiguous in its form”. In her brief she states that the issues to be decided on appeal are whether the term of insurance was six months, with an expiration date of September 16, 1977, or, whether the term of insurance and the due date of the promissory note should be determined by Central Standard Time, the time system in effect when the promissory note was executed and the insurance certificate was issued.

Insurance company states that the relevant provisions of the group insurance policy are:

“(a) Except as herein limited, the amount of insurance hereunder on the life of any such debtor, at any time, shall be the amount of the debtor’s then indebtedness to the creditor ... of the kind described in the application for this Policy-
“(b) The maximum amount of such insurance which may be in force hereunder on the life of any such Debtor is $10,000.
“(d) Indebtedness as used herein shall not include any principal or interest payments which are past due
“This policy and the application therefor, constitute the entire contract between the parties. .
“Any premiums paid to the Company for any period not covered by this Certificate will be returned. In no event shall any insurance be continued after the date when the indebtedness is due to have been completely retired.”

No findings of fact or conclusions of law were requested or made. Therefore, all questions of fact are presumed found in support of the judgment and the judgment must be upheld on any legal theory supported by the pleadings and evidence. Lassiter v. Bliss, 559 S.W.2d 353, 358 (Tex. 1977). Here appellant has brought forward a statement of facts but we still presume on appeal that the trial judge found every issuable fact proposition necessary to sustain the judgment if such was raised by the pleadings and supported by the evidence. 4 McDonald, texas civil practice § 16.10 (Rev.1971). In determining whether there is any evidence to support the judgment and the implied findings of fact, we consider only the evidence favorable to the implied findings and disregard any contrary evidence. Bishop v. Bishop, 359 S.W.2d 869 (Tex.1962), Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (Tex.1950).

Mrs. Leach contends that she is entitled to recover as a matter of law. We do not agree.

Since we must presume the trial court found facts which support its judgment, we presume it found that the termination date of the policy was September 13, 1977. Upon reviewing the record we find that the promissory note executed by Leach clearly shows a due date of September 13, 1977. The insurance certificate stated on its face that coverage terminated September 13, 1977 and “in no event” shall the coverage be continued past the indebtedness due date. It also provided that the amount to be paid was the debtor’s “then indebtedness” but that this did not include any past due principal or interest payments.

Without an allegation of accident, mistake, or fraud, the plain and unambiguous statement in the policy of its termination date could not be disregarded. Underwriters at Lloyds, London v. Harkins, 427 S.W.2d 659 (Tex.Civ.App.—Houston [14th Dist.] 1968, writ ref’d n. r. e.). There were no allegations of fraud, accident or mistake here so the parties are bound by the express terms of the policy. The evidence supports the trial court’s implied finding that coverage ended September 13, 1977. Therefore, the date of Leach’s death is not only material but the ultimate fact issue in this case.

We presume the trial court found that Leach died September 14, 1977. Although Mrs. Leach has no point of error specifically attacking this implied finding, her argument, liberally construed, does complain about the effect given this finding. She contends the termination date of the insurance certificate and the past due date of the note should be determined by Central Standard Time, the time system in effect when the parties entered into the insurance contract and Leach executed the promissory note.

She reasons that her husband was undeniably dead prior to 1:00 a. m., Central Daylight Time, September 14, 1977. The time of death would have been prior to 12:00 midnight Central Standard Time, September 13, 1977, had not Daylight Saving Time intervened. She alleges that the promissory note contemplated 180 full twenty-four hour days and to allow Daylight Saving Time to determine the alleged termination date of the insurance contract means that one hour out of a twenty-four hour day was lost sometime between March 17 and September 13, 1977. She argues that it is a universal principle of law that when it concerns a legal duty, time must be computed by a certain, unvarying and uniform standard, and to allow Daylight Saving Time to intervene after a contract has been entered into violates this standard.

She requested at trial that the court take judicial notice of 15 U.S.C. § 260a (1966), the federal statute providing for Daylight Saving Time. The court did so and she now argues that she has established as a matter of law that Central Standard Time is that certain, unvarying and uniform standard which must control the date of termination of the insurance contract and the date on which the note became past due.

We disagree. The court was free to conclude that the parties contracted in contemplation of existing law. The federal statute was in existence at the time the parties entered into their contract. Even though the statute provides that a state might exempt itself, unless the legislature had chosen to pass a new law, § 260a would remain the standard time authority, even though the time period changed twice a year.

There was a fact issue as to the time of Leach’s death and there was evidence in the record enabling the trial judge to decide that question in defendants’ favor. In addition to the death certificate showing the time of injury and death to be 12:45 a. m., September 14, 1977, the court also had before it the accident report received by the Bowie, Texas, police department about the incident. It shows that a truck driver advised the department of a major accident at 12:20 a. m., September 14, 1977.

It was stipulated that the clock in Leach’s vehicle stopped at 12:07 a. m. An engineering report made for plaintiff was entered into evidence by defendants. It stated that tests showed that the clock lost approximately six minutes in a twenty-four hour period and that it would run an average of 94.2 seconds after removal of power.

The evidence supports the trial judge’s implied findings that Leach died September 14, 1977 and that the parties contracted in contemplation of the time change caused by Daylight Saving Time.

As there was evidence in the record on which the trial judge could rely which would support the judgment, we do not find it necessary to discuss Mrs. Leach’s third contention dealing with the issue of whether the maximum amount of insurance on her husband’s life had been paid. It, along with her other arguments, is overruled and the judgment is affirmed.


author: MILLER, Justice.

text:
    Frank LOGAN, Appellant, v. Donna L. SANDEL, Appellee.
    No. A2018.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    April 11, 1979.
    Clifford J. Vacek, Mounger, Whittington & Pfeiffer, Houston, for appellant.
    Donna L. Sandel, pro se.
    Before MILLER, PAUL PRESSLER and SALAZAR, JJ.
   MILLER, Justice.

This is an appeal from a suit for property damage to appellant’s automobile. The trial court rendered judgment that appellant, plaintiff below, take nothing. He appeals from that judgment. We affirm.

The record shows that the appellee was properly served with citation and, in response, wrote a letter to the Harris County Clerk explaining the circumstances of the accident. The letter was filed among the papers of the case and considered by the court to be appellee’s answer. Trial was to the court. The appellee failed to appear. The judgment recites that the court, after considering the pleadings and hearing evidence, was of the opinion that the facts and law were with the appellee and rendered judgment that the appellant take nothing. No motion for new trial was filed. Subsequent to trial, and in response to appellant’s request, the trial judge filed findings of facts and conclusions of law.

We are met at the outset with the absence of a statement of facts. Although this is not assigned as a point of error, we must briefly consider the effect of its absence due to the nature of appellant’s points of error and his arguments in support thereof. In his first point he complains that the judgment, which is based on findings of no competent evidence, no evidence or insufficient evidence to show that appel-lee either operated a vehicle made the basis of suit or was negligent, was in error. His second point similarly attacks the trial court’s findings of no competent evidence, no evidence or insufficient evidence to show that appellant sustained any damages. It is generally the rule that in the absence of a statement of facts, it must be presumed on appeal that the evidence supports the findings and judgment of the trial court. Thrasher v. Hensarling, 406 S.W.2d 515 (Tex.Civ.App.—Waco 1966, no writ). Consequently, the evidence is presumed to be sufficient, Lane v. Fair Stores, Inc., 150 Tex. 566, 243 S.W.2d 683 (1951), and the findings of fact are conclusive on the reviewing court, Nuse v. Kormeier, 351 S.W.2d 382 (Tex.Civ.App.—Austin 1961, no writ).

There are exceptional cases, however, in which an appellant is entitled to reversal of the trial court’s judgment in the absence of a statement of facts. Houston Fire & Casualty Ins. Co. v. Walker, 152 Tex. 503, 260 S.W.2d 600 (1953); Granville v. Rauch, 335 S.W.2d 799 (Tex.Civ.App.—Austin 1960, no writ). Appellant attempts to bring himself within an exception to the general rule. We think this is not the exceptional case.

Appellant’s recitation in his brief that he was unable to obtain a statement of facts is not sufficient to combat the presumption of evidentiary sufficiency. There were many alternative methods which could have been utilized to preserve and demonstrate error depending upon the reason for the absence of the statement of facts. Under varying circumstances these include assignment as error in the appellate court, Tex.R.Civ.P. 418(d), Comer v. Farrell, 45 S.W.2d 432 (Tex.Civ.App.—Dallas 1931, no writ); assignment of error in a motion for new trial, Tex.R.Civ.P. 324, Harris v. Lebow, 363 S.W.2d 184 (Tex.Civ.App.—Dallas 1962, writ ref’d n. r. e.); preparation of a statement of the evidence as provided by Tex.R.Civ.P. 377 and preparation of a bill of exceptions, Victory v. Hamilton, 127 Tex. 203, 91 S.W.2d 697 (1936). Appellant utilized none of these procedural alternatives.

Appellant further contends that the ap-pellees pro se answer was sufficient, in and of itself, to establish his cause of action without the introduction of further evidence by him. In reviewing the answer, we find that the appellee stated, in part, that “The accident in question occurred as I was backing out . . . Further, “Damage was to the right rear fender of the Logan car and none to my bumper.” And “. . . above the damage my bumper inflicted.” Appellant argues that these statements conclusively establish that ap-pellee was the operator of the vehicle and that damage was done to the appellant’s automobile. He cites several cases which stand for the proposition that admissions in trial pleadings are regarded as judicial admissions in that case and are established as a matter of law. No proof of the admitted fact is required at trial. Red Top Taxi Company v. Snow, 452 S.W.2d 772 (Tex.Civ. App.—Corpus Christi 1970, no writ); J. A. Robinson Sons, Inc. v. Ellis, 412 S.W.2d 728 (Tex.Civ.App.—Amarillo 1967, writ ref’d n. r. e.). Further, appellant points out, that where the answer contains specific denials and no general denial, any allegation which is not denied is admitted. Mentz v. Haight, 97 S.W. 1076 (Tex.Civ.App.1906, no writ); Diaz v. Chinn, 150 S.W.2d 411 (Tex.Civ.App.—San Antonio 1941, no writ). Thereby, appellant contends, since the appellee failed to deny negligence in her answer, it is admitted.

We agree that the previously cited authorities are accurate statements of the law. But even assuming, without deciding, that the appellee by her answer conclusively established that she was the operator of the auto and that she caused damage to the appellant’s property, the trial court found that there was no competent evidence that appellant sustained any damages. Without any damages, appellant is not entitled to recover. The other findings, even if erroneous, are immaterial as the court decided a controlling issue against him. This renders any error in the trial court’s other findings of fact harmless error. Leman v. Borden, 83 Tex. 620, 19 S.W. 160 (1892); Potts v. Potts, 354 S.W. 624 (Tex.Civ.App.—Dallas 1962, no writ); Tex.R.Civ.P. 434. In the absence of a statement of facts appellant is unable to meet his burden of demonstrating an evidentiary error from the record which requires reversal, Englander Company Inc. v. Kennedy, 428 S.W.2d 806 (Tex.1968); Taylor v. American Emery Wheel Works, 480 S.W.2d 26 (Tex.Civ.App.—Corpus Christi 1972, no writ).

The judgment of the trial court is affirmed.


author: NYE, Chief Justice.

text:
    MOBIL OIL CORPORATION, Appellant, v. MATAGORDA COUNTY DRAINAGE DISTRICT NO. 3, et al., Appellees.
    No. 1302.
    Court of Civil Appeals of Texas, Corpus Christi.
    April 12, 1979.
    Rehearing Denied April 30, 1979.

      Allen Wood, Wood, Burney, Nesbitt & Ryan, Corpus Christi, Forrest Smith, John E. Holt, Dallas, for appellant.
    Austen H. Furse, Asst. Atty. Gen., Austin, for intervenors.
    Joyce Cox, Cox, Pakenham & Roady, Houston, Fred P. Holub, County Atty., Bay City, for appellees.
   OPINION

NYE, Chief Justice.

This is a summary judgment case. Appellant, Mobil Oil Corporation brought suit in the district court of Matagorda County, Texas, against defendants, Matagorda County Drainage District No. 3, the Commissioners Court of Matagorda County, and the members of the Commissioners Court, attacking an order of the Commissioners Court which annexed to the Drainage District certain submerged lands in the Gulf of Mexico covered by an oil, gas and mineral lease owned by Mobil. The Attorney General intervened on behalf of the State of Texas because the constitutionality of Tex. Rev.Civ.Stat.Ann. art. 8176b-l (1971) had been called into question. The defendants filed a collective motion for summary judgment and motion to dismiss, and Mobil filed a motion for summary judgment. The trial court granted the defendants’ motions and denied Mobil’s motion. Mobil appeals to this Court.

Mobil’s petition alleged that on April 15, 1974, the Commissioners Court passed an order annexing certain territory to be included within the Drainage District. Included in such annexed territory was an area in the Gulf of Mexico upon which Mobil owned an oil, gas and mineral lease located about eight miles from the shore, completely inundated by the Gulf waters. Mobil alleged, in essence, that the Commissioners Court order was invalid because: 1) the Commissioners Court had no legal authority or power to annex territory in the Gulf of Mexico for the benefit of the Drainage District; 2) that if the statutes of Texas should be construed to authorize such action, such were unconstitutional; 3) that because Mobil’s lease received no benefit from being in the Drainage District, any tax levied would be unconstitutional under both the Texas and the United States Constitutions; and 4) that the order of the Commissioners Court was arbitrary, and not supported by substantial evidence or by any evidence.

The Drainage District and the Commissioners Court each answered by a general denial and, collectively, filed a motion for summary judgment alleging, in essence, the following five grounds in support of their motion:

1) The Drainage District’s territory and boundaries were duly extended to incorporate the area in question which is a part of the County of Matagorda, Texas, pursuant to valid legislative authority; that the Legislature had the power to tax the land affected in the interest of general welfare and authorized the Drainage District, acting through the Commissioners Court to provide for such taxation; and that the actions of the Commissioners Court were conclusive as to all judgments it made which were within the scope of the duties and powers so delegated and which are conclusive on either or direct or collateral attack.
2) Mobil’s suit is a collateral attack on the judgment of the Commissioners Court and on such an attack, the judgments and actions of the Commissioners Court are conclusive.
3) Neither the facts alleged nor the undisputed facts entitle Mobil to relief whether the attack on the Commissioners Court judgment is a direct or collateral attack.
4) There are no factual disputes or issues of facts which would entitle Mobil to relief.
5)Under no circumstances here present is a Court entitled to supersede the legislative activities or judicial actions of the Commissioners Court here involved.

Attached to their motion were minutes of the Commissioners Court annexing the territory in question and an affidavit of the then County Judge, the Honorable Bert Hu-ebner, which described the territory annexed, mentioned considerations of the Commissioners Court in annexing the territory, and stated that taxation in the territory so annexed “is strictly on an ad valorem basis for the general purpose of the district, no formal benefit allocation is made or attempted;” that Mobil did not appear at the hearing on the proposal to extend the district and took no action by quo warranto or by certiorari in any district court to challenge the Commissioners Court action, nor did it seek rehearing by the Commissioners Court; and that of nineteen taxpayers in the offshore area, Mobil was the only taxpayer to refuse to pay the tax assessed.

Mobil’s reply to the defendants’ motion alleged, in addition to the allegations of its petition, that it was entitled to summary judgment on the basis that: 1) its oil and gas lease is in the Gulf, eight miles from shore and under sixty feet of water; 2) the oil and gas lease cannot be drained and the Commissioners Court finding that it was feasible and practical to drain it is incorrect, contrary to physical facts, unsupported by substantial evidence and is wholly arbitrary; and 3) that all of the other findings of the Commissioners Court are also unsupported by evidence. In support of its motion, Mobil filed affidavits of C. D. Akers, senior production foreman of Mobil, and J. R. Lemons, a tax agent employed by Mobil.

The trial court held a hearing to consider the respective motions. At the conclusion, the judge entered an order granting the defendants’ motion, denying Mobil’s motion, and holding Tex.Rev.Civ.Stat.Ann. art. 8176b — 1 (1971) to be constitutional.

Appellant’s points of error on appeal, when grouped, involve three major contentions: 1) the Commissioners Court had no authority to enter the order of April 12, 1974 (annexation order); 2) the Court acted arbitrarily in each finding it was required to make; and 3) the taxation of Mobil’s property violates its constitutional rights of equal protection and due process. Before addressing these points, we must first consider appellee’s contention which, in effect, is that there can be no attack on the order of the Commissioners Court in this case because “. . . the judgment of the Commissioners Court rendered ... is final.” See Tex.Water Code Ann., § 56.082 (1972).

We recognize the general rule that, although Commissioners Courts are courts of limited jurisdiction in the sense that their powers are limited to those powers expressly or impliedly conferred upon them by the Constitution and statutes, when acting with the sphere of powers so conferred, their judgments are entitled to the same consideration as those of other constitutional courts and may not be collaterally attacked, unless void. Yoakum County v. Gaines County, 139 Tex. 442, 163 S.W.2d 393 (1942); Scott v. Graham, 156 Tex. 97, 292 S.W.2d 324, 327 (1956); 15 Tex.Jur.2d (Counties), § 44 (1959). We are of the opinion that whether this suit be considered a direct or collateral attack, the Commissioners Court order, contrary to appellees’ assertion, is not beyond all scrutiny of the appellate courts.

Article 5, Section 8 of the Texas Constitution grants the district courts “appellate jurisdiction and general supervisory control over the County Commissioners Court, with such exceptions and under such regulations as may be prescribed by law.” (Emphasis added). Substantially the same language is found in Tex.Rev.Civ.Stat.Ann. art. 1908 (1964). The Legislature has prescribed no exceptions and has only established the procedure for appealing orders of the Commissioners Court in a limited number of situations. While the Legislature has prescribed a method of appealing from the orders of the Commissioners Court establishing a Water Control and Improvement District (Tex.Water Code §§ 51.022-51.025) (1972), the Legislature has never prescribed a procedure for appealing from the orders of the Commissioners Court creating a drainage district or annexing additional territory to a drainage district, (the latter being the situation involved herein). Nor has the Legislature established the method and procedure for invoking the appellate jurisdiction and supervisory control of the district court over the actions of the Commissioners Court by any statutory enactment. Scott v. Graham, 156 Tex. 97, 292 S.W.2d 324, 328 (1956). Certiorari has been suggested as one appropriate method of review. See Scott v. Graham, supra, 156 Tex. 97, 292 S.W.2d at 328, and authorities cited therein.

The supervisory power of the district court over the judgments of a commissioners court can only be invoked when such court acts beyond its jurisdiction or clearly abuses the discretion conferred upon it by law. See Article 5, Section 8 of the Constitution and Article 1908 of the Revised Civil Statutes; Yoakum County v. Gaines County, 139 Tex. 442,163 S.W.2d 393, 396 (1942); Cook Drilling Co. v. Gulf Oil Corp., 139 Tex. 80, 161 S.W.2d 1035, 1036 (1942); Tarrant County v. Shannon, 129 Tex. 264, 104 S.W.2d 4, 9 (1937); Stovall v. Shivers, 129 Tex. 256, 103 S.W.2d 363 (1937); Nueces County Water Control & Improvement Dist. v. Wilson, 304 S.W.2d 281, 286 (Tex.Civ. App.—El Paso 1957, writ ref’d n. r. e.). This supervisory jurisdiction can be invoked in a direct attack in the district court when it is alleged that the Commissioners Court order is voidable as being arbitrary, capricious, unsupported by substantial evidence or that the court has acted beyond its jurisdiction. See Live Oak County v. Lower Nueces River Water Sup. Dist., 446 S.W.2d 14, 27 (Tex.Civ.App.—Beaumont 1969, writ ref’d n. r. e.). We are of the opinion that Mobil’s suit, although over two years elapsed before filing, should be considered a direct attack upon the County Commissioners Court order. See Crawford v. McDonald, 88 Tex. 626, 33 S.W. 325, 327 (1895). Mobil’s suit is the first one filed following the Commissioners’ hearing. It alleged that the Commissioners Court order was void because it lacked jurisdiction, because its action was arbitrary and because it was not supported by substantial evidence. We hold that the district court had jurisdiction to consider Mobil’s complaint.

In considering Mobil’s points of error, we will keep in mind the familiar rules governing our review of summary judgments. Rule 166-A, T.R.C.P. Great American Reserve Ins. Co. v. San Antonio Plumbing Sup. Co., 391 S.W.2d 41 (Tex.Sup.1965). In this case, affidavits and depositions were filed. Such affidavits supporting or opposing the motions must set forth such facts as would be admissible in evidence. They must be factual. Conclusions of the affiant are not considered to have any probative value, and generally opinion evidence alone merely raises fact issues and is insufficient in most instances to prove a fact as a matter of law. Hidalgo v. Surety Savings & Loan Association, 487 S.W.2d 702 (Tex.Sup.1972); Broussard v. Moon, 431 S.W.2d 534 (Tex.Sup.1968); Crain v. Davis, 417 S.W.2d 53 (Tex.Sup.1967); Travis County Water Control & Improvement Dist. No. 12 v. McMillen, 414 S.W.2d 450 (Tex.Sup.1966). Summary judgment is proper only where it appears that only a question of law is involved and that there is no genuine issue of fact. Gaines v. Hamman, 163 Tex. 618, 358 S.W .2d 557 (1962).

Mobil’s points of error under its first grouping (one, two and eight), question the jurisdiction of the District and of the Commissioners Court. Mobil, relying primarily upon the language found in paragraph 4 of Tex.Rev.Civ.Stat.Ann. art. 8176b-l (1971), argues that “land that can be drained is the only area authorized to be included in such [drainage] district.” Generally, there are three jurisdictional elements: 1) jurisdiction over the subject matter; 2) jurisdiction over the person or res; and 3) power to render the particular relief awarded. See Crawford v. McDonald, 88 Tex. 626, 33 S.W. 325 (1895); Toler & Crosby v. Ayres, 1 Tex. 398 (Tex.Sup.1847); 34 Tex.Jur., Judgments, §§ 269-284 (1962).

Mobil’s arguments that the District did not have statutory authority to annex the Gulf waters in question ignore completely the applicability of Section 1 of Article 8176b-l which provides, in relevant part, as follows:

“Any drainage district in this State heretofore or hereafter organized under the provisions of Section 52, Article III, Constitution of Texas, which district shall not have theretofore been converted into a conservation and reclamation district . and which district lies wholly within one county and has no outstanding bonds, may have defined areas of territory contiguous to the district and lying wholly within the same county but outside of any other drainage district and outside of any incorporated city, town or village added to said district in the following manner . . . ” (Emphasis added).

This section expressly granted appellee District the authority to annex “additional territory” provided the territory to be annexed: 1) was contiguous to the existing district; 2) lies wholly within Matagorda County; 3) lies outside of any other drainage district; and 4) lies outside of any incorporated city, town or village.

This additional area the appellee District was authorized to annex is described generally as “territory” and is not limited specifically by statute to “land that can be drained.” The definition of “territory,” according to its usual meaning, means “the land and waters under the jurisdiction of a nation, state, ruler, etc.” Webster’s New World Dictionary (2d College Ed. 1974). When territory is used in a general legal sense, it is not limited solely to land. See Black’s Law Dictionary (4th Ed. 1957); see also “Territorial Property,” Black’s Law Dictionary (4th Ed. 1957).

One of Matagorda County’s borders is in the waters of the Gulf of Mexico. In accordance with Tex. Natural Res.Code, § 11.-012, § 11.013 (1978), Matagorda County has a three marine league boundary extension from the coastline into the Gulf of Mexico. This is pursuant to the decision of the United States Supreme Court in Texas v. Louisiana, 426 U.S. 465, 96 S.Ct. 2155, 48 L.Ed.2d 775 (1976). See also United States v. Louisiana, 389 U.S. 155, 88 S.Ct. 367, 19 L.Ed.2d 383 (1967). The official county maps and boundary descriptions, (which were a part of the summary judgment evidence), established that the area annexed by the Commissioners Court ruling, including the area in question here, was wholly within Mata-gorda County. Mobil does not contend its leases are outside the territorial jurisdiction of the County.

The undisputed summary judgment evidence established: 1) that the Matagorda Drainage District had not been converted into a conservation and reclamation district; 2) that such district had no outstanding bonds; 3) that the annexed territory in question was contiguous to the then existing district; 4) that such territory was located outside of any other drainage district; and 5) that such territory was outside of any incorporated city, town or village. Mobil does not contend that any of these statutory requisites have not been established by the summary judgment proof. We, therefore, conclude that appellee District had statutory authority to seek to annex additional territory, including the Gulf waters, located within its county boundaries and which were contiguous to the District.

Texas Water Code Annotated (§ 56.-082 (1972)), which pertains to the jurisdiction of the commissioners court over proceedings pertaining to drainage districts, provides as follows:

“(a) Except as otherwise provided in this chapter, the commissioners court has exclusive jurisdiction to hear and determine
(1) contests and objections to creating a district;
(2) matters relating to creating a district; and
(3) all proceedings of a district after it is organized.
(b) The commissioners court may adjourn a hearing from day to day and the judgment of the commissioners court rendered under Subsection (a) of this Section is final.” (Emphasis added).

Paragraph 1 of Article 8176b-l requires a petition seeking to annex additional territory as defined in Section 1, above discussed, to be presented to the commissioners court of the county (here Matagorda) embracing the district. It requires the petition to describe the territory proposed to be annexed by metes and bounds, and also requires the petition to contain the requisite number of authorized signatures. Paragraph 2 of this article requires the Commissioners Court to set a hearing date on the petition and to issue public notice of the hearing if the Commissioners Court finds that the petition, as presented, meets the requirements of Subsection 1. Included in the summary judgment evidence were the February 25, 1974, minutes of appellee Commissioners Court containing the findings required by Article 8176b-l, § 1(1) and ordering the public notice required by Article 8176b — 1, § 1(2)2. Nowhere does Mobil contend that these requirements were not satisfied. We conclude that the order of appellee Commissioners Court annexing the territory in question cannot be attacked on the basis that such court did not have subject matter jurisdiction or the authority to act on the annexation petition.

Mobil’s next contention is, in effect, that appellee Commissioners Court exceeded its jurisdictional authority to act on the annexation petition by ordering the annexation of the particular Gulf waters in question here. Based on the language contained in paragraph 4 of Article 8176b-l, Mobil contends that the Commissioners Court is authorized to annex land to a drainage district only if it finds:

“1. That to drain such territory is feasible and practicable.
2. That the drainage of such territory is needed.
3. That the drainage would be conducive to the public health or would be a public benefit or utility.
4.. That both the district and the territory to be annexed would be benefited by its addition to the district.” (Emphasis added).

Accordingly, Mobil argues that the statutory directive contained in this paragraph, (“but if said Court finds any of said issues in the negative, it shall enter an order on its Minutes denying the petition for annexation of such territory to the district”), precludes the Commissioners Court from including in the proposed annexation that portion of the Gulf of Mexico upon which its leases are located (or any other portion of the proposed territory which, when considered in isolation, cannot be drained) because the findings as to this territory must necessarily be negative findings.

We do not agree with Mobil’s narrow construction of this paragraph. Such construction would have us engraft onto the paragraph a further narrow requirement that the Commissioners Court must always examine each proposed territory to be annexed and determine whether or not each and every portion of such territory, when considered in isolation or by itself, can be drained, and then to exclude each such portion that cannot be drained. Such a requirement is not warranted by the express terms of the statute nor by logic or reason. This is not to say, however, that inclusion of submerged lands in the territory proposed to be annexed in and of itself is always warranted or required.

Considering, then, all of the provisions of Article 8176b — 1, we believe the Legislature intended to establish an efficient, fair method to annex additional territory to drainage districts. We also note paragraph 3 of this article which provides for a method for interested persons who own real or personal property, which might be affected by the proposed annexation, to be heard on the matter. This paragraph states:

“(3) All persons whose land or other property might be affected by the proposed annexation or part thereof and all other interested persons may appear before said Court at the hearing and urge or contest the addition of such territory or parts thereof to the district and offer evidence pertinent to the issues mentioned in paragraph (4) of this Section 1, and said hearing may be adjourned by the Court from day to day.”

Mobile did not appear at the hearing to contest the inclusion of the submerged Gulf waters upon which it had leases. It did not present evidence pertinent to the statutory issues before the Commissioners Court. We believe that this paragraph places some burden upon persons who seek to have a portion of the “proposed territory to be annexed” excluded from the annexation order to appear before the Commissioners Court at the hearing and to present evidence in support of their position. To conclude otherwise would place an onerous burden upon the Commissioners Court to scrutinize each segment of the proposed territory and its failure to do so might subject it to a collateral attack on its findings.

Contrary to Mobil’s contentions, we conclude that a fair reading from the four corners of this article evidences the legislative intent to consider the “territory proposed to be annexed” as a unit unless the evidence showed that such would be patently arbitrary. In addition to our comments above, specifically concerning Section 1 of this article and the all-inclusive nature of the territory the District can seek to have annexed, we also observe that the paragraph upon which Mobil places its strongest reliance (paragraph 4), of the same article refers to the “territory” in a unified sense by stating that “[i]f ... it appears . that the drainage of the territory proposed to be annexed is feasible and practicable . . .”, (that it is needed, conducive, to public health, public benefit, etc.). (Emphasis added). It is noteworthy that, when a drainage district is originally created pursuant to the terms of Tex.Water Code Ann., §§ 56.011-56.032 (1972), virtually identical findings concerning the “proposed district” are required by Section 56.-019(a) of the Water Code. The phrase “drainage of the proposed district,” has been interpreted, in effect, to refer to the “scheme of the drainage proposed.” See Wharton County Drainage Dist. No. 1 v. Higbee, 149 S.W. 381, 386 (Tex.Civ.App.—Galveston 1912, writ ref’d) (considering the identical language of Subsection 56.019(a) in its prior enactment: Acts 1911, 32nd Legis., p. 215, ch. 118, § 4)). This interpretation clearly indicates to us an overall perspective as to a drainage plan within the entire district rather than a limited perspective as to drainage of each of the various portions of the territory in isolation. We see no reason to apply a more restrictive interpretation to the phrase “drainage of the proposed territory to be annexed” contained in paragraph 4 of Article 8176b-l.

Although paragraph 4 does not expressly require the Commissioners Court to examine in isolation each portion of the territory proposed to be annexed, the following language of this paragraph does indicate that the Commissioners Court is not limited to accepting or rejecting, as a unit, all of the territory described in the annexation petition:

“If the Court finds in favor of annexing territory to the district, such order need not add to the district all of the territory described in the petition if upon a hearing a modification or change is found necessary or desirable and such order must exclude and not annex to the district those portions, if any, of the territory proposed by the petition to be added to the district as to which the Court shall find any of the said issues in the negative.”

This language, by its express terms, authorizes, but does not require, exclusion of territory described in the annexation petition if a “modification or change is found necessary” and requires exclusion of any portion of such territory as to which the court “shall find any of the said issues in the negative.” The minutes of appellee Commissioners Court, on their face, comply with the above portion of Subsection 4. The Commissioners Court did not find a modification or change in the proposed territory to be necessary and it did not find any of the issues in the negative as to any portion of the territory described in the annexation petition. It, therefore, did not violate the express prohibition by failing to exclude the Gulf territory in question from the annexation order. We conclude that appellee Commissioners Court did not violate an express statutory prohibition when it entered findings as to the total territory sought to be annexed and in entering its order annexing the total territory.

We have examined the only two cases upon which Mobil relies to support its contentions under these first three points of error and find them to be distinguishable because express statutory prohibitions were violated in each instance. The case of Galena Park v. City of Houston, 133 S.W.2d 162 (Tex.Civ.App.—Galveston 1939, writ ref’d), involved an attempted annexation by one city of territory already annexed by another. There, the statutory authority to annex additional territory expressly limited the territory subject to such annexation by the following language:

“ ‘The power granted . . . shall not authorize the extension of the territory of any city . . . so as to include any land which is already part of another city or town corporation . . .' ” City of Galena Park v. City of Houston, 133 S.W.2d 162, 163 (Tex.Civ.App.—Galveston 1939, writ ref’d).

In City of Port Arthur v. Gaskin, 107 S.W.2d 610 (Tex.Civ.App.—Beaumont 1937, no writ), a similar statutory prohibition was violated when the city attempted to annex territory not adjoining the corporation limits of the city of Port Arthur in contravention of the express statutory limitation. Because the city’s actions exceeded its statutory authority, the court concluded that the attempted annexation was void and subject to collateral attack. See City of Port Arthur v. Gaskin, 107 S.W.2d 610, 613 (Tex.Civ.App.—Beaumont 1937, no writ). Such is not the case before us.

The analogous statutory provision in the case before us is contained in Section 1 of Article 8176b-l(l), previously quoted, which limits the territory to be annexed to territory which is: 1) contiguous to the district; 2) lying wholly within the same county but outside of any other drainage district; and 3) outside of any incorporated city, town or village. The undisputed summary judgment evidence established as a matter of law that the territory in question comes within these prescribed limitations. Mobil’s points of error one, two and eight are overruled.

Mobil’s second major contention (points of error 3-7) is that the trial court erred by failing to hold that the Commissioners Court acted arbitrarily and capriciously in each finding it made in its order which annexed additional territory to the Drainage District. Mobil’s arguments under these points of error, again, are predicated, in part, upon the assumption that the Drainage District had no statutory authority to seek annexation of any parcel of additional territory which could not, itself, be drained. Our previous discussion concerning the proper construction of Article 8176b-l applies equally here to this assumption. Apparently, Mobil contends that the trial court erred in granting appellees’ motion for summary judgment, and erred in denying Mobil’s motion for summary judgment because the Commissioners Court acted arbitrarily and capriciously in entering its order of annexation as a matter of law.

A fundamental rule in summary judgment practice is the failure of one party in a hearing on a summary judgment motion to discharge the burden which would rest on him at a trial upon the merits is not grounds for entering a summary judgment in favor of the other party. Rio Bravo Oil Company v. Hunt Petroleum Corp., 455 S.W.2d 722, 728 (Tex.Sup.1970). When both parties move for summary judgment, each of the summary judgment motions must stand or fall on its own merits. Tigner v. First National Bank of Angleton, 153 Tex. 69, 264 S.W.2d 85 (1954). See Baccus v. City of Dallas, 454 S.W.2d 391 (Tex.Sup.1970). In this case, both parties filed motions for summary judgment.

That portion of Mobil’s motion for summary judgment which sought to have the Commissioners Court order declared void as being arbitrary, or not supported by substantial evidence, is governed by the “substantial evidence rule.” See e. g., Live Oak County v. Lower Nueces River Water Supply Dist., 446 S.W.2d 14 (Tex.Civ.App.—Beaumont 1969, writ ref’d n. r. e.). Where the substantial evidence rule applies, the court will indulge in a rebuttable presumption in favor of the validity of the administrative decision or order. City of San Antonio v. Texas Water Commission, 407 S.W.2d 752, 758 (Tex.Sup.1966); Gulf Land Co. v. Atlantic Refining Co., 134 Tex. 59, 131 S.W.2d 73 (1939); Railroad Commission v. Shell Oil Company, 139 Tex. 66, 161 S.W.2d 1022 (1942). The party complaining of the order has the burden to show that the orders are not reasonably supported by substantial evidence. City of San Antonio v. Texas Water Commission, 407 S.W.2d 752, 758 (Tex.Sup.1966); Gulf Land Co. v. Atlantic Refining Co., 134 Tex. 59, 131 S.W.2d 73 (1939); Fuller v. Mitchell, 269 S.W.2d 517 (Tex.Civ.App.—Dallas 1954, writ ref’d n. r. e.); Kavanagh v. Holcombe, 312 S.W.2d 399 (Tex.Civ.App.—Houston 1958, writ ref’d n. r. e.).

In a proceeding under the substantial evidence rule, the issue is whether the evidence introduced before the trial court (district court) shows facts in existence as of the time of the order (Commissioners Court) was entered, of such a substantial nature as to reasonably support the order. This issue is one of law and trial of the fact issues by a judge or jury is to be avoided. Firemen’s & Policemen’s Civil Service Commission v. Hamman, 404 S.W.2d 308 (Tex.Sup.1966); Southern Canal Co. v. State Board of Water Engineers, 159 Tex. 227, 318 S.W.2d 619 (1958). On a review governed by the substantial evidence rule, the issue is not whether the agency arrived at the proper conclusion on the basis of conflicting evidence, but whether it acted arbitrarily and without regard to the facts. Railroad Commission v. Shell Oil Company, 139 Tex. 66, 161 S.W.2d 1022 (1942); Trapp v. Shell Oil Company, 145 Tex. 323, 198 S.W.2d 424 (1946). The court will inquire, not whether the agency actually heard sufficient evidence, but whether the facts that existed at the time of the agency’s decision or order were such as to justify its action. Railroad Commission v. Shell Oil Company, 139 Tex. 66, 161 S.W.2d 1022 (1942).

Where the requirements of Rule 166-A, Texas Rules of Civil Procedure, are satisfied, suits governed by the substantial evidence rule are not immune, per se, from disposition in a summary judgment proceeding. See Cruz v. City of San Antonio, 424 S.W.2d 45, 47 (Tex.Civ.App.—San Antonio 1968), and authorities cited therein, on appeal after remand, Cruz v. City of San Antonio, 440 S.W.2d 924 (Tex.Civ.App.—Waco 1969, no writ); Baccus v. City of Dallas, 450 S.W.2d 389 (Tex.Civ.App.—Dallas 1970, writ ref’d n. r. e.), 454 S.W.2d 391 (Tex.Sup.1970). However, in order for Mobil to have been entitled to a summary judgment, it had the burden to introduce sufficient evidence to prove that reasonable minds could not have reached the conclusion that the Commissioners Court reached in order to justify its action. See Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424 (1946); Jones v. Marsh, 148 Tex. 362, 224 S.W.2d 198 (1949); Cruz v. City of San Antonio, 440 S.W.2d 924, 925 (Tex.Civ.App.—Waco 1969, no writ). This it did not do.

There was very little summary judgment evidence, if any, before the trial court by either party which would be competent to support either motion for summary judgment based on the substantial evidence rule. Included in the summary judgment evidence were the depositions of the three current commissioners of the Mata-gorda County Drainage District, only one of whom had attended the hearing before the Commissioners Court. Each commissioner testified to the effect that drainage of the Gulf waters where Mobil’s leases were located was indeed impossible and not contemplated. One commissioner testified that he could not “think off-hand of any benefit it (submerged land in the Gulf of Mexico) does receive” from its inclusion within the drainage district. Two commissioners suggested that Mobil would benefit because it uses the highways to transport oil rigs, docks and other equipment necessary for its operations with the District and the Drainage District was responsible for draining the highways up to the boat docks. Most of the testimony contained in the depositions were mere opinions or conclusions of the drainage commissioners. Although opinion evidence is admissible, it is generally insufficient to establish a proposition as a matter of law. Broussard v. Moon, 431 S.W.2d 534 (Tex.Sup.1968). Mere conclusions of deponents are not competent summary judgment evidence. Crain v. Davis, 417 S.W.2d 53 (Tex.Sup.1967); Hidalgo v. Surety Savings & Loan Association, 487 S.W.2d 702 (Tex.Sup.1972).

The trial court had before it the affidavit of the Honorable Bert L. Huebner, the County Judge of Matagorda County, Texas, which stated in relevant part as follows:

“In taking the above mentioned actions which it took, the Commissioners Court of Matagorda County, Texas, to my knowledge, took into account all the relationships between several upland and seaward areas of the extended district, and the quality of life therein, both before and after extension, including the direct and indirect effects of constructing and operating old and new drainage facilities, some such effects being direct and others wholly indirect upon land owners, their lands and upon other persons on both upland and seaward properties, including (1) accessibility at all times by road and otherwise between each part of the extended district and all other parts, and between said district and the county and state areas lying beyond it, (2) the quality of life and all parts of said extended district, including such considerations as health (e. g., mosquito control), accessibility to recreation, and general resultant betterment of social and economic conditions.”

This affidavit lists the factors the Commissioners Court considered in entering its order annexing the Gulf territory in question. It does not state necessary facts concerning the actual conditions then existing at the time the order was entered.

We have reviewed the entire record and conclude that Mobil failed to meet its burden to introduce sufficient, competent summary judgment evidence to prove that reasonable minds could not have reached the conclusion that the Commissioners Court reached in order to justify its action. The trial court, therefore, properly overruled its motion for summary judgment.

The appellees, in moving for summary judgment, had the burden of establishing affirmatively by summary judgment proof that conditions either conclusively support entry of the Commissioners Court order or make that action debatable or issuable. “Only thus may the proponents establish the validity of the ordinance (order) as a matter of law as required by Rule 166-A(c), Texas Rules of Civil Procedure.” Baccus v. City of Dallas, 454 S.W.2d 391, 392 (Tex.Sup.1970).

The quality and competency of the summary judgment evidence before the district trial court and before us on appeal precludes us from holding that appellees met this summary judgment burden. The judgment of the trial court granting appellees’ motion for summary judgment is accordingly reversed and that cause is remanded for a trial under the substantial evidence rule.

AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.

      . Section 56.083(b) (Tex.Water Code Ann. 1972) does authorize a quo warranto proceeding brought in the name of the state by the attorney general to enjoin the formation of a district or to contest the validity of a district or its bonds.

      . Paragraph 4:
      “If at the hearing it appears to the Commissioners Court that the drainage of the territory proposed to be annexed is feasible and practicable, and that it is needed, that the drainage would be conducive to the public health or would be a public benefit or a public utility (either sanitary, agricultural or otherwise) and that both the district and the territory proposed to be annexed would be benefited by the addition of such territory to the district, then the Court by order duly entered upon its Minutes shall so find and shall declare and decree such proposed territory to be annexed to the district and in said order shall by metes and bounds set forth a description of the territory added to the district and a description by metes and bounds of the district as enlarged. But if said Court finds any of said issues in the negative, it shall enter an order on its Minutes denying the petition for the annexation of such territory to the district. If the Court finds in favor of annexing territory to the district, such order need not add to the district all of the territory described in the petition if upon the hearing a modification or change is found necessary or desirable and such order must exclude and not annex to the district those portions, if any, of the territory proposed by the petition to be added to the district as to which the Court shall find any of said issues in the negative. In the event the order annexes any territory, to the district, a copy of such order shall be filed and recorded in the Deed Records of the county in which the district is situated, and such territory shall be a component part of the district from and after the recording of the copy of such order.” (Emphasis added).

      . Section 56.019 provides as follows:
      “(a) At the hearing on the petition, if it appears to the commissioners court that drainage of the proposed district is feasible and practicable and is needed and would be conductive to public health or would be a public benefit or a public utility, the commissioners court shall make findings to this effect.
      (b) If the commissioners court finds any of the issues in Subsection (a) of this section in the negative, it shall dismiss the petition at the cost of the petitioners.
      (c) The findings of the commissioners court shall be recorded.”


author: MASSEY, Chief Justice.

text:
    GULF INSURANCE COMPANY, Appellant, v. TEXAS CASUALTY INSURANCE COMPANY, Appellee.
    No. 18085.
    Court of Civil Appeals of Texas, Fort Worth.
    April 12, 1979.
    Rehearing Denied May 10, 1979.

      Lang, Cross, Ladon, Boldrick & Green, and Allan K. Dubois and Stephen Lang, San Antonio, for appellant.
    Hilgers, Watkins & Hays and David W. Hilgers, Austin, for appellee.
   OPINION

MASSEY, Chief Justice.

Gulf Insurance Company has appealed from a take nothing judgment entered following trial before the court without intervention of a jury of its suit against Texas Casualty Insurance Company.

We affirm.

We will later discuss the issues between the parties upon Gulf’s contention that there had been a waiver by Texas Casualty of right to rely upon the provisions of its insurance policy to defeat the claim against it, and upon estoppel to rely thereon. We will first state and discuss the meaning and validity of the provisions. Incidentally, the very same provisions upon which Texas Casualty relies are likewise to be found in the policy of Gulf Insurance Company.

The claim by Gulf was not originally its own. The claim upon which it declared by its suit was transferred to it and subrogated and assigned on October 14, 1971. The subrogation instrument was executed by Glastron Boat Company, and by one Bewell W. Plant, Jr., who at all times material was the truck driver for Glastron.

Pursuant to proceedings by method of friendly suit, with judgment rendered on November 10, 1971, Gulf, for the benefit of Glastron and Plant, settled a case of great potentiality as to liability and damages as result of the death of a man by the name of Junior W. Roberts. The potential tort liability of Glastron and Plant was outgrowth of a collision on or about July 1, 1971. Plant was driving a truck, rented by Glas-tron from a truck rental company. In the State of Kentucky he caused or allowed the same to come into collision with another truck in which Mr. Roberts was occupant. Because of the force of the collision Roberts suffered injuries resulting in his death.

On the occasion of that collision the insurance policy of Gulf was in force and effect upon the rented truck; the insurance policy of Texas Casualty was no doubt in force and effect upon the semi-trailer being towed, it being the property of Glastron and containing its products. (Whether Gulf’s policy was or was not in force is immaterial to disposition of its suit against Texas Casualty.)

The “no action” clause in the Texas Casualty policy:

“ACTION AGAINST COMPANY: No action shall lie against the company, unless, as a condition precedent thereto, there shall have been full compliance with all of the terms of the policy, nor until the amount of the insured’s obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the company. . . . ” (Emphasis supplied.)

The “subrogation” clause contained in the Texas Casualty policy provides:

“Subrogation: In the event of any payment under this policy the company shall be subrogated to all the insured’s rights of recovery therefor against any person or organization and the insured shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. The insured shall do nothing after loss to prejudice such rights.” (Emphasis supplied.)

It is upon the two provisions aforesaid in the policy of Texas Casualty Insurance Company, in particular the language of each clause which we have lent emphasis, that said insurance company defended the suit, originally that of Glastron Boat Company and its driver, and by subrogation and assignment become the claim of Gulf Insurance.

It was by the identical subrogation clause in its own policy of insurance that Gulf Insurance Company (which settled and extinguished the claims against Glastron and Plant growing out of the fatal collision of July 1, 1971, upon the theory that Gulf did in fact insure them against liability under its policy) sought and obtained execution of the subrogation agreement. It is plain from the record that Gulf, at and prior to the time such settlement, knew that a dispute existed between Gulf and Texas Casualty upon the matter of which of the two companies was the correct insurer of Glas-tron and Plant. The conclusion of the trial court, by which we hold such court not to have erred, was that Gulf, (being unable to obtain the agreements it desired from Texas Casualty immediately prior to the time it effected settlement of the potential liability of Glastron and Plant), chose of its own volition to proceed and accomplish the settlement. In its presentation to the trial court and to this court Gulf showed that it chose to “place a ceiling” on the amount anticipated to eventually become the subject matter of the dispute. That dispute concerned which company stood contractually bound, or, in the event a right of either to compel contribution from the other, the correct amounts each company was obligated to pay in making the total of the settlement amount paid by Gulf.

Texas Casualty Insurance Company, absent waiver or estoppel, was entitled to rely upon and to have its acquittal of liability under the “no action” clause of its policy covering Glastron and Plant. There not having been any actual trial, and the parties having contracted that Texas Casualty should have no liability by its policy until the obligation to pay on the part of those insured by the policy had been finally determined by judgment against it or them after actual trial, the insurance ceased as subject matter which might be demanded. On this the evidence showed that disposition was by “friendly suit”, i. e., though by judgment rendered by a court of competent jurisdiction following a hearing, upon a hearing for the purpose of examining the issues upon liability and damages in the determination of whether to approve the agreement upon disposition brought to the court by the parties, and not for the purpose of litigating the same issues in the event the court withheld its approval. The evidence established as a matter of law that what occurred was such a “friendly suit”, and one wherein the proposed agreed settlement was approved, and, as approved, made the judgment of the court.

On the above, this court, on a prior occasion, passed upon the question of whether a friendly suit was an “actual trial”, though not in the context of the contractual provision in an insurance policy. Our holding was that by such procedure there was not a case litigated, whether the proposed settlement presented to the trial court be approved or disapproved, pointing out that, if not approved, the character of the case would change and become one ripe for trial upon a truly adversary proceeding. Brightwell v. Rabeck, 430 S.W.2d 252 (Tex.Civ.App.—Fort Worth 1968, writ ref’d n. r. e.).

There has been like holding in a case involving the construction of a “no action” clause in an insurance policy; the term “actual trial” having been deemed a condition precedent to the prosecution of a suit upon the policy contract. Wright v. Allstate Insurance Co., 285 S.W.2d 376, 378 (Tex.Civ.App.—Dallas 1955, no writ).

By our holding hereinabove, there would be support of our action affirming the judgment. However, an affirmance would be likewise required by the provisions of the “subrogation” clause in the Texas Casualty policy. Therein is provided for the subrogation rights to be possessed by Texas Casualty Insurance Company in the event it should make any payment under other of the provisions of the policy; and further, that “the insured shall do nothing after loss to prejudice said rights.” Noted is that Glastron Boat Company and its employee Plant, as “insureds” under the policy of Gulf Insurance Company, signed the instrument transferring their rights, whatever they might be, to Gulf. In turn Gulf predicated its suit against Texas Casualty upon the rights subrogated to it by Glastron and Plant.

The breach of the policy condition in the contract of Glastron and Plant with Texas Casualty precludes a recovery by Gulf, as their assignee. Gulf Ins. Co. v. White, 242 S.W.2d 663 (Tex.Civ.App.—Dallas 1951, no writ); Millers Mutual Fire Ins. Co. of Tex. v. Mitchell, 392 S.W.2d 703 (Tex.Civ.App.—Tyler 1965, no writ); Foundation Reserve Insurance Company v. Cody, 458 S.W.2d 214 (Tex.Civ.App.—Dallas 1970, no writ). All of these cases were suits on individual policies by the insured against his insurer, after the insured had foreclosed ability of the insurer to have the subrogation rights against third persons who might be responsible in damages to the insured. Nevertheless the identical legal principle exists by the circumstances now under consideration: if the insurer which has contracted that it is to receive the rights to subrogation is denied that for which it contracted by the action of its insured there is material breach by the insured; and because of the breach the benefit otherwise applicable or payable to him may not be enforced against the company.

Upon occurrence of the collision on July 1,1971, which resulted in the fatal injury to Mr. Roberts, Gulf Insurance Company made its investigation. It is not clear whether Texas Casualty made any investigation, though it was rather fully informed by Gulf. Gulf had discovered that all claims could be settled for an amount it considered desirable, no matter which company might be compelled to assume the ultimate liability. Gulf was, of course, interested in favorably settling the claim with funds provided by both insurers. Settlement conferences were held between the attorneys for Texas Casualty and Gulf, but to no avail.

October 7, 1971, Texas Casualty advised Gulf by letter that “it would be in order for your company to proceed to make such settlement as it feels to be indicated under the facts without any assistance or permission from this Company.”

October 11, 1971 Gulf demanded that Texas Casualty assent to the reasonableness of a proposed settlement of $200,000.00 “without prejudice to questions of coverage to be later determined” and gave Texas Casualty forty-eight hours to give such assent, or be liable for all costs of settlement and expenses. Texas Casualty never made any response to the letter. Gulf decided to proceed and to accomplish the settlement.

October 14, 1971, Glastron and Plant entered into a subrogation agreement with the Gulf Insurance Company. This was because of Gulf’s decision to proceed and accomplish the settlement, deferring for later conclusion its dispute with Texas Casualty upon the question of insurance “coverage”.

November 2, 1971 suit was filed by the estate of Junior Roberts against Bewell W. Plant, Jr. and Glastron Boat Company in the United States District Court, Northern District of Indiana for $250,000.00. November 8, 1971, the estate of Junior W. Roberts received authority from the Elkhart, Indiana Superior Court to compromise the wrongful death claim.

November 9, 1971 an answer was filed in the federal suit on behalf of defendants Plant and Glastron, denying liability. November 10, 1971, was heard the merits of that case. The trial judge heard testimony, reviewed documentary evidence pertaining to liability and damages, made a specific finding that Plant was negligent, that Roberts was not, and that the plaintiffs had suffered actual and pecuniary loss in the amount of $205,000.00. November 10, 1971, judgment was rendered reflecting the court’s findings. The amount was that all parties represented to the court as consented by them.

July 11, 1972, Gulf filed suit against Texas Casualty praying for recovery, under its subrogation rights, the amount it had paid in settlement, its expenses attendant thereto, interest from date of the settlement payment, and court costs.

On the issues of estoppel and waiver it was incumbent that Gulf present evidence and secure findings of fact that Texas Casualty had either waived the defenses we have held valid or had so conducted itself that it should be held estopped to rely upon them. Except for execution of the October 14,1971 subrogation assignment, on none of the occasions listed above, from October 7, 1971 to November 10, 1971 when the judgment was rendered in the friendly suit, was there any participation by either Glastron or Plant. Neither does it appear that Texas Casualty was ever advised that the friendly suit was filed, scheduled to be heard, or heard, until after all the proceedings incident to settlement stood fully accomplished. Texas Casualty had notified Gulf that if it effected settlement it would be “without any assistance from” Texas Casualty.

Gulf was unable to persuade the trial court to make any findings it desired upon the matters of Texas Casualty’s waiver and estoppel; indeed the court made findings to the contrary of those desired.

The case was submitted largely upon facts stipulated, together with documents. There were issues raised, but they are to be deemed as concluded against Gulf. We have examined the evidence and we cannot find that the findings of the trial court were contrary to the greater weight and preponderance of the evidence. Complaints presented relative thereto are without merit and are therefore overruled.

Gulf’s final point of error is complaint because the trial court overruled its motion to disqualify the attorney representing Texas Casualty and in refusing to order such attorney to turn over to Gulf papers, docu-merits and pertinent files. There was a hearing antecedent to the trial from which there is the appeal upon Gulf’s motion to disqualify, etc. There was not a record made and brought forward of the evidence at that hearing. For this reason the point would be properly overruled. However, we actually need not predicate our decision upon such ground for in any event the complaint is immaterial to the issues proper to be reviewed upon the appeal.

Judgment is affirmed.


author: SPURLOCK, Justice.

text:
    Ruby J. BURNS, Appellant, v. UNION STANDARD INSURANCE COMPANY, Appellee.
    No. 18089.
    Court of Civil Appeals of Texas, Fort Worth.
    April 12, 1979.
    Rehearing Denied May 10, 1979.

      Miller, Gann & Perdue and Lennon C. Wright, Houston, for appellant.
    Hudson, Keltner, Smith, Cunningham & Payne and H. S. Sparks III, Fort Worth, for appellee.
   OPINION

SPURLOCK, Justice.

This is a worker’s compensation case. A claimant appeals a judgment providing her recovery for the permanent partial loss of use of a foot found by the jury. The claimant alleges error in the court’s jury charge and that the jury’s verdict finding a specific rather than a general injury is not supported by the pleading or evidence. The claimant also complains the evidence does not support the jury verdict finding a 10% permanent partial loss of use of a foot.

We affirm.

Mrs. Ruby Burns was employed by her husband’s construction company, Freddie Burns General Construction Company. In her petition she alleged the following:

“On or about the 30th day of September, 1974, Ruby Jean Burns was an employee of the Freddie J. Burns Construction Company. As she was working cleaning up the work area of trash she stepped off the porch of the house that she was working on and turned her ankle and fell to the ground. This occurred while Ruby Jean Burns was on the job and in the course and scope of her employment for the Freddie J. Burns Construction Company in Olney, Young County, Texas. It resulted in an injury, as that term is defined by the Texas Worker’s Compensation Law, to her left ankle, leg, hip and her back. Her injury to the back was (sic) resulted in what is called by doctors, nerve root irritation. These injuries have permanently disabled Ruby Jean Burns to such an extent that she cannot get and keep a job doing the heavy lifting, bending, stooping, climbing and squatting required of a worker.”

In its answers to the request for admissions propounded by Mrs. Burns, the compensation carrier admitted that Mrs. Burns sustained an injury on the day in question while in the course and scope of her employment. However, the carrier pled:

“For further answer, if same be necessary, Defendant says that in regard to the accidental injury allegedly sustained by Plaintiff on September 30, 1974, that same was a specific injury, to-wit, to the Plaintiff’s left ankle and foot, and the injury and its effect, as well as any disability sustained by the Plaintiff are limited and confined to her left ankle and left foot.”

The trial court submitted the case to the jury on special issues. Special issue number 1 is as follows:

“Do you find from a preponderance of the evidence that Plaintiff received an injury on or about September 30, 1974, which included her hip and back, or was such injury confined to her left foot and leg below the knee?
“If you find from a preponderance of the evidence that such injury included her left hip and back, you will answer ‘It included her left hip and back’; otherwise, you will answer ‘It was confined to her left foot and leg below the knee’. “Answer: It was confined to her left foot and leg below the knee.”

Mrs. Burns claims the trial court erred in submitting special issue number 1 because the confinement of the injury to the left foot and leg below the knee pled by the carrier is an inferential rebuttal to her allegation of total and permanent disability because of a general injury. She correctly states the general rule that submission of inferential rebuttals is prohibited and that they are to be included in the charge by explanatory instruction. Rule 277.

Mrs. Burns’s position is that she was entitled to have the jury decide whether she should recover for total and permanent disability resulting from a general injury or whether she should take nothing. Thus, she wanted all or nothing by her suit. She claims she was prejudiced by the disjunctive submission of the inferential rebuttal in special issue number 1 because it allowed the jury to compromise by reaching a verdict awarding her recovery for permanent partial loss of use of a foot.

The main reason submission of inferential rebuttals is prohibited by Rule 277 is to avoid conflicting answers to special issues. Where one of two fact situations necessarily exists, Rule 277 authorizes disjunctive submission of an issue asking the jury to decide which of the two facts exists by a preponderance of the evidence. Here because the carrier pled a specific injury to the left foot and leg below the knee, and admitted liability therefor, the issue was whether the injury included the leg above the knee, hip, and back. While there may be better ways to submit this issue, we find no error in the issue as submitted. The issue as submitted was not confusing and there was no apparent possibility of a conflict with other findings. While we appreciate Mrs. Burns’s concern with how a jury might be inclined to dispose of her case, there is nothing in the record to indicate that the jury acted in any manner other than to follow the court’s charge and answer special issue number 1 according to the preponderance of the evidence. Therefore, it is our opinion there is no reversible error in the manner special issue number 1 was submitted.

Mrs. Burns contends the trial court erred in rendering judgment based on the verdict because the verdict fails to conform to the pleadings and evidence in the case. Mrs. Burns claims she pled only one theory of recovery, a total and permanent disability caused by a general injury. Therefore, she asserts that recovery for permanent partial loss of use of a foot is contrary to her pleadings. She correctly states the general rule that the judgment must conform to the pleadings and evidence. Rule 301. Further, she urges the rule that a claimant is not entitled to recover for a specific injury unless he pleads a specific injury. She cites Banks v. Millers Mutual Fire Ins. Co. of Texas, 476 S.W.2d 768 (Tex.Civ.App.—Texarkana 1972, no writ). There a claimant pled only a general injury and the court held the claimant was not entitled to recover for the specific injury found by the jury.

In reviewing the pleadings in this case we note that Mrs. Burns, in her prayer for relief, requested such relief “special and general, at law and in equity, to which she may show herself justly entitled . . .” Also the carrier pled a specific injury to the left foot and leg below the knee. Thus, a specific injury was pled and Mrs. Burns requested any recovery which the jury might find she was entitled. Therefore, in our opinion the judgment does conform to the pleadings in this case. Her point of error on this contention is overruled.

Mrs. Burns’s next complaint is that the trial court erred in rendering judgment based on the jury’s answer to special issue number 1, because there is no evidence supporting the submission of the issue or the answer thereto. We have reviewed the record and find there is evidence to support the submission of and answer to special issue number 1. Mrs. Burns also claims that the evidence is insufficient to justify submission of special issue number 1.

Generally the trial court may properly submit a special issue if there is any evidence to support it. As a general rule the court can properly submit an issue even if, in its opinion, an affirmative answer would be against the great weight and preponderance of the evidence. Therefore, a point of error claiming that an issue should not have been submitted because there is insufficient evidence to support it, or because an affirmative answer thereto would be against the great weight and preponderance of the evidence, will generally be summarily overruled. In our opinion this is the reasoning behind the rule in Garza v. Alviar, 395 S.W.2d 821 (Tex.1965), that a contention that an issue should not have been submitted because the insufficiency of the evidence can mean only that there is no evidence to warrant submission of the issue. Because we have found there is evidence to support the submission of the issue we overrule this contention.

Mrs. Burns next asserts that the jury’s answer to special issue number 1 is so against the great weight and preponderance of the evidence as to be manifestly wrong. The jury found that Mrs. Burns’s injury was confined to her left foot and leg below the knee. Thus the jury failed to find that the injury included her left leg above the knee, hip, and back. Upon reviewing the record we find the evidence of the extent of Mrs. Burns’s injury is conflicting. Mrs. Burns testified that she twisted her ankle and fell to the ground from a height of about one step and that she hurt her back and leg and “exploded in pain.” She was taken to her doctor who diagnosed the injury as an ankle sprain. Months later she complained of burning sensations through her leg radiating to her great toe. She consulted a specialist and was diagnosed as having nerve root irritation at the level of L-5.

The specialist testified that such irritation could have several causes including her fall in September of 1974. Although the specialist testified that it was possible the fall caused the irritation and that this was the only explanation he could give based on the information he received from Mrs. Burns, he testified he would like to tie the irritation to some other cause. He was bothered by the length of time between the ankle sprain and the complaint of the pain produced by the nerve root irritation. He testified that assuming the back was injured during the fall and the nerve irritated, it was unusual but not impossible for Mrs. Burns to go so long without noticing or reporting the symptoms of the nerve root irritation.

From our reading of the record we conclude that the jury did not have to believe that Mrs. Burns injured her back when she fell in September 1974. Although there is evidence that she did and reasonable minds might differ, we cannot hold that the jury's answer to special issue number 1 is so against the great weight and preponderance of the evidence so as to be manifestly unjust. Therefore, Mrs. Burns’s point of error on this contention is overruled.

Mrs. Burns’s last point of error complains of special issue number 7a and the jury’s answer thereto. Special issue number 7a is as follows:

“Find from a preponderance of the evidence the degree of such partial loss of use of Plaintiff’s left foot?
“Answer by giving the percentage of loss of use.
“Answer 10%. ”

Her point of error states that the evidence was insufficient to justify the submission of this issue. For the reasons stated above this presents a no evidence question. We find that there is evidence which supports submission of this issue and overrule this contention.

Her final complaint is that the finding of 10% permanent partial disability is so against the great weight and preponderance of the evidence so as to be manifestly wrong. After the jury had found that Mrs. Burns had a permanent partial loss of use of her left foot, special issue 7a asked them to find the percentage of disability. Mrs. Burns claims the testimony of the specialist was that she had a ten per cent disability related only to the nerve root irritation in her back. After carefully reviewing the record we conclude that Mrs. Burns is correct. The only testimony concerning any degree of permanent partial disability related to disability caused by the nerve root irritation in the back rather than her foot and ankle injury. Because the jury failed to find that her back was injured in the fall, the nerve root irritation has not been shown to be compensable.

The record reflects that the symptoms of which she now complains are diagnosed as resulting from the nerve root irritation. Mrs. Burns, her doctor, and the specialist all testified that the ankle sprain had healed. From the record as a whole we conclude that the great weight and preponderance of the evidence is that Mrs. Bums fully recovered from her foot and ankle injury. Therefore, the finding of 10% permanent partial loss of use of those members can be considered against the great weight and preponderance of the evidence. However, to constitute reversible error the verdict must not only be against the great weight but also be manifestly wrong and unjust. See Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 TEXAS L.REV. 361 (1960).

We do not find the verdict in this case manifestly wrong or unjust. In fact the verdict favors Mrs. Burns. If the verdict harms either party it harms the carrier because it must pay the judgment. However, the carrier has not assigned any cross-points of error complaining of the judgment. It prays that the judgment of the trial court be affirmed in all respects. Therefore, no further comment is warranted. We overrule Mrs. Burns’ final point of error.

We have severally considered each of the points of error presented in complaint of the trial court’s actions and each is overruled.

Affirmed.

       All references to rules are to Tex.R.Civ.P.