author: JAMES, Justice.

text:
    John C. WHITTEN et ux., Appellants, v. METRO BANK OF DALLAS et al., Appellees.
    No. 5713.
    Court of Civil Appeals of Texas, Waco.
    Sept. 15, 1977.

      Ed M. Brown, Brown, Moore & Lee, Dallas, for appellants.
    Rudolph Johnson, Saner, Jack, Sallinger & Nichols, Dallas, Gerald W. Cobb, Cobb & Collier, Lewisville, for appellees.
   OPINION

JAMES, Justice.

This is a case wherein Plaintiff-Appellee Metro Bank of Dallas obtained a judgment against a principal obligor on a note and several guarantors thereupon, including Defendant-Appellants John C. Whitten and wife Dana Sue Whitten, from which the Whittens appeal.

Defendant-Appellees Lewisville Enterprises of Texas, Inc., as principal, and J. Neal Reeves and wife Louise M. Reeves and Defendant-Appellants Whitten and wife as guarantors, signed a real estate note dated June 1, 1973, in the amount of $800,000.00, bearing interest at 9% per annum on all sums advanced thereupon, said note being payable to Appellee Metro Bank of Dallas, due March 1, 1974, providing that past due principal and interest would bear interest at the rate of 10% per annum from maturity until paid, and further providing for 10% of the total amount due as attorney’s fees if placed in the hands of an attorney for collection. On the same date as the note, Lewisville Enterprises executed a deed of trust to secure the note, describing a certain 3.811 acre tract of land located in the City of Lewisville, Denton County, Texas. The Bank advanced to Lewisville Enterprises the sum of $275,000.00 pursuant to said note. As of March 1,1974, the due date of said note, none of the principal or the interest had been paid on the note. Over one year later, notice of a trustee’s sale was given, said sale to be held on the first Tuesday in May 1975; on or about May 6, 1975, without the knowledge of the Whit-tens, the Metro Bank, Lewisville Enterprises, J. Neal Reeves, Madrigal Corporation, Ventures Associates International, Inc., and Larry H. Hoover entered into an agreement whereby the Metro Bank agreed to extend the time for payment and foreclosure, and in which agreement the new parties (Madrigal, Ventures Associates and Larry H. Hoover) agreed to pay to Appellee Metro Bank, on or before June 2, 1975, all accrued interest and costs on the note indebtedness, including attorneys’ fees, and to secure which 110,000 shares of common stock of Madrigal Corporation was pledged and delivered to the Metro Bank. Moreover, said new parties agreed to secure a written agreement from another person, firm, or corporation acceptable to Metro Bank, whereby such person would agree to purchase from the Bank all Madrigal stock at a price sufficient to pay all of said accrued interest and costs, including attorneys’ fees. Under this agreement the new parties agreed to guarantee to the Bank the sum of at least $31,938.20. The property described in the deed of trust was subsequently sold at a trustee’s sale on August 5, 1975.

Appellee Metro Bank moved for a summary judgment against Lewisville Enterprises, Reeves and wife, the Whittens, Madrigal Corporation, Ventures Associates, and Larry H. Hoover, supported by the affidavits of Robert T. Davenport (the President of the Bank) and Robert S. Trot-ti, the trustee in the deed of trust who conducted the trustee’s sale.

Appellants Whitten and wife filed an answer contesting the Bank’s motion for summary judgment, supported by the affidavit of Appellant John C. Whitten. The sum and substance of said answer and affidavit is to the effect that there are many genuine issues of material fact raised, and that the Whittens as guarantors on the note were released by the Bank’s extension of time for payment of the note as provided for in the Bank’s agreement of May 6, 1975, with Lewisville Enterprises, Reeveses, Madrigal, Ventures Associates and Hoover, which agreement was accomplished without the knowledge or consent of the Appellants Whitten.

Answers contesting the Bank’s motion for summary judgment were likewise filed by the other Defendants sued by the Bank, to wit, Lewisville Enterprises, the Reeveses, Madrigal, Ventures Associates, and Hoover; however, since none of these Defendants (other than the Whittens) have appealed, we will not dwell upon their contentions.

After summary judgment hearing, the trial court granted an interlocutory summary judgment in favor of the Bank against Lewisville Enterprises, the Reeveses, and the Whittens, jointly and severally, in the amount of $96,990.32; and against Defendants Madrigal, Ventures Associates, and Hoover, jointly and severally, in the amount of $37,615.27, as part of, but not in addition to, the aforesaid judgment in favor of the Bank against Lewisville Enterprises, the Reeveses, and the Whittens.

Said interlocutory summary judgment was entered without prejudice to the right of the Whittens as cross-plaintiffs to pursue their cross-action against the cross-defendants Lewisville Enterprises and the Reeves-es.

The gist of the Whitten’s cross-action against cross-defendants Lewisville Enterprises and the Reeveses was for a judgment over against said cross-defendants for all sums adjudged against the Whittens in the interlocutory summary judgment, based upon alleged representations and assurances given to Mr. Whitten by J. Neal Reeves (the president of Lewisville Enterprises) and Robert T. Davenport (the Bank’s president) to the effect that a new loan arrangement was being negotiated, in which event the Whittens would be released from the note, which representations were assertedly relied upon by Whitten.

Trial was had before the court without a jury on the Whittens’ cross-action, after which it was adjudged that the Whittens take nothing on said cross-action.

Thereafter, the trial court entered final judgment which in effect finalized the provisions of the interlocutory summary judgment and adjudged that the Whittens take nothing on their cross-action against Lewis-ville Enterprises and the Reeveses, from which the Whittens appeal.

Appellants Whitten complain among other things that the trial court erred in entering the summary judgment in favor of the Bank against them, contending that the movant Bank failed to show that there was no genuine issue as to any material fact, and that the Bank was entitled to judgment as a matter of law. We sustain these contentions.

The duty of the court hearing the motion for summary judgment is to determine if there are any issues of fact to be tried, and not to weigh the evidence or determine its credibility, and thus try the case on the affidavits. Rule 166-A, Tex. Rules of Civil Procedure; Gulbenkian v. Penn (1952) 151 Tex. 412, 252 S.W.2d 929, 931. Summary judgment should be granted, and if granted, should be affirmed only if the summary judgment record establishes a right thereto as a matter of law. Gibbs v. General Motors Corp. (Tex.1970) 450 S.W.2d 827; Harrington v. Young Men’s Christian Assn. of Houston (Tex.1970) 452 S.W.2d 423. The burden of proof is on the movant, and all doubts as to the existence of a genuine issue as to a material fact are resolved against him. In other words, the evidence must be viewed in the light most favorable to the party opposing the motion. All conflicts in the evidence are disregarded, and the evidence which tends to support the position of the party opposing the motion is accepted as true. Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co. (Tex.1965) 391 S.W.2d 41, 47.

Applying the foregoing rules to the case at bar, we see that the summary judgment proof raised many genuine issues of material fact, in that Appellants Whitten asserted that Robert T. Davenport, President of Appellee Bank, and J. Neal Reeves, President of Lewisville Enterprises, repeatedly made representations and assurances to Appellant John C. Whitten both prior to and after maturity of the note that the matter of the indebtedness was “being worked out” by getting it refinanced with another lending institution. Davenport further told Whitten that he (Davenport) and Reeves were attempting to negotiate a new agreement to develop the property (described in the deed of trust), and that the Bank was in the process of working out a new arrangement with other parties (whom Davenport did not name), and that the Bank would let Whitten know if things could not be worked out. Whitten says he relied upon such representations and was thereby lulled into a sense of false security and heard nothing further until May 8, 1975, when he received a certified letter from Robert S. Trotti, Trustee in the deed of trust, informing him of a Trustee’s Sale of the property. Then, indeed, at about this same time, to wit, on May 6,1975, the Bank did enter into the agreement as hereinabove described with Lewisville Enterprises, Reeves, Madrigal, Ventures Associates, and Larry H. Hoover wherein the payment of the note and foreclosure was extended for some thirty days, all of which was done without the knowledge or consent of Appellants Whitten.

Moreover, Whitten asserts that in the early part of 1974, prior to the maturity of the note, Reeves told him (Whitten) that the loan would be refinanced and moved from the Metro Bank, in which event Whit-ten would be relieved of his guaranty; that in reliance on these assurances Whitten executed and delivered to Reeves a quitclaim deed to the property described in the deed of trust; and was further told by Reeves that Reeves would furnish him (Whitten) with a “hold harmless” agreement, which Reeves never furnished him.

It is a well-settled rule of law in Texas that a surety will be discharged if a new agreement be entered into between the creditor and principal debtor, varying or enlarging the time of performance of a contract, or payment of the debt, without the knowledge or consent of the surety. Wylie v. Hightower (1889) 74 Tex. 306, 11 S.W. 1118, 1120; Sherwin-Williams Paint Co. v. Rausin (Amarillo Tex.Civ.App.1928) 10 S.W.2d 196, 199, writ refused. Stated differently, a surety or guarantor is discharged by a material alternation of the contract made without his consent. Straus-Frank Co. v. Hughes (Tex.Com.App.1941) 138 Tex. 50, 156 S.W.2d 519, 521, opinion adopted.

Since Appellee Metro Bank has failed to meet its burden of showing the absence of material fact issues and that it is entitled to judgment as a matter of law, we hold that the summary judgment was improperly granted insofar as Appellants Whitten are concerned, and thereby reverse the judgment of the trial court insofar as it granted judgment in favor of the Bank against the Appellants Whitten, and remand the cause for trial on the merits. In addition thereto, having found error in the judgment of the trial court we also reverse and remand for retrial on the merits that portion of the trial court’s judgment wherein it was adjudged that the Whittens take nothing on their cross-action against the cross-defendants Lewisville Enterprises, J. Neal Reeves and Louise M. Reeves. This is a discretionary matter, and is done in the interests of justice. Rule 434, Texas Rules of Civil Procedure; Morrow v. Shotwell (Tex.1972) 477 S.W.2d 538; Scott v. Liebman (Tex.1966) 404 S.W.2d 288; Kandy, Inc. v. Presslor (Waco Tex.Civ.App.1977), 556 S.W.2d 99, opinion dated August 25, 1977.

In the interest of clarity, we hereby set out in detail our disposition of the case at bar: (1) The Appellee Metro Bank’s judgment against the Appellants John C. Whit-ten and wife Dana Sue Whitten is reversed and remanded; (2) the “take nothing” judgment by the Whittens against the cross-defendants Lewisville Enterprises, Inc., J. Neal Reeves and Louise M. Reeves is reversed and remanded; and (3) the Appellee Metro Bank’s judgment against Lewisville Enterprises, Inc., J. Neal Reeves, Louise M. Reeves, Madrigal Corporation, Ventures Associates International, Inc., and Larry H. Hoover (not appealed from by these Defendants) is affirmed; (4) costs are assessed against the Appellees.

AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.


source: Caselaw Access Project

author: REYNOLDS, Justice.

license: Public Domain

text:
    Elizabeth DOBBINS, Appellant, v. UNITED SUPER MARKETS, Appellee.
    No. 8812.
    Court of Civil Appeals of Texas, Amarillo.
    Sept. 19, 1977.
    Rehearing Denied Oct. 17, 1977.

      Brown & Brown, Phillip S. Brown, Lubbock, for appellant.
    Crenshaw, Dupree & Milam, Cecil C. Kuhne, Lubbock, for appellee.
   REYNOLDS, Justice.

In this venue phase of a negligence action, defendant’s plea of privilege was sustained when the trial court determined that plaintiff failed to prove the existence of a duty on the part of defendant concerning a premise condition which was open and obvious to plaintiff. By this appeal, plaintiff contends that she met her burden of proof because the enactment of the comparative negligence statute abolished the “no duty” concept of assumed risk, but, if not, she did not have the burden to negate “no duty” for venue purposes. Defendant’s counter contention is that damages should be assessed against plaintiff for taking an appeal for delay and without sufficient cause. Because of the rationale to be expressed, we overrule all contentions. Affirmed.

Plaintiff Elizabeth Dobbins’ suit against defendant United Super Markets is to recover money damages for injuries she sustained when she tripped over a box she alleges was negligently maintained in an aisle of United’s store in Lubbock County. Against United’s plea of privilege, Dobbins interposed subdivisions 9a and 23 of Vernon’s Ann.Civ.St. art. 1995, the general venue statute. After hearing evidence, the trial court sustained United’s plea of privilege.

Appealing without a statement of facts, Dobbins has not challenged any of the findings of fact made at her request. The findings establish that Dobbins failed to prove that her cause of action for negligence, or a part thereof, arose in Lubbock County within the meaning of subdivisions 9a and 23 of V.A.C.S. art. 1995. Material to the determinations are findings which compel the legal conclusion that Dobbins failed to negate the “no duty” concept of assumed risk.

Absent a statement of facts, the findings respecting the venue facts must be given verity and we must presume that the evidence supports the judgment. Hursey v. Thompson, 141 Tex. 519, 174 S.W.2d 317, 319 (1943). Consequently, the venue decision must be affirmed unless it can be said, as Dobbins contends, that the enactment of the comparative negligence statute abolished the “no duty” concept of assumed risk, or, if not, that she did not have the burden to negate “no duty” for venue purposes.

When the comparative negligence statute, V.A.C.S. art. 2212a, was enacted to become effective 1 September 1973, the doctrine of assumed risk was firmly established in Texas case law. Assumed risk embraced two different concepts: (1) the “no duty” concept applicable to occupier-invitee situations, and (2) the volenti non fit injuria concept applicable on the occupier’s premises and to other assumed risk situations. Greenhill, Assumption of Risk, 16 Baylor L.Rev. 111, 112 (1964). The volenti concept is an affirmative defense; but, because the occupier is under “no duty” to warn of or protect from open and obvious dangers which the invitee knows or is, as a matter of law, charged with knowledge and appreciation thereof, the plaintiff-invitee must prove, as a part of plaintiff’s case, that the occupier was under a duty to warn or protect; i. e., the plaintiff must negate “no duty” to prove a cause of action. Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368, 378-79 (Tex.1963).

The legislature is presumed to have enacted the comparative negligence statute with full knowledge of the existing condition of the law, McBride v. Clayton, 140 Tex. 71, 166 S.W.2d 125, 128 (1942); yet, there is no language in the statute addressed to the concept of assumed risk. If the legislature clearly intended to abolish the doctrine of assumed risk, it seems more reasonable that it would have specifically declared on the subject as it did in V.A.C.S. art. 6437, by which the defense of assumed risk was abolished in railroad employees comparative negligence cases. Accordingly, we hold that the statute did not abolish the “no duty” concept of assumed risk. Nevertheless, this does not end the inquiry, for the developing case law must be noticed.

Except in cases of strict liability and in which there is a knowing and express consent to the dangerous activity or condition, volenti was abolished as a defense in negligence cases by Farley v. M M Cattle Company, 529 S.W.2d 751, 758 (Tex.1975), where it was noted that the adoption of the comparative negligence statute evidenced the legislature’s clear intention to apportion negligence rather than completely bar recovery, particularly by the defense of assumption of the risk. However, Farley did not speak to “no duty.” Abalos v. Oil Development Company of Texas, 544 S.W.2d 627, 631 fn. 2 (Tex.1976). Although the contention that the “no duty” concept had been replaced by the comparative negligence test was advanced in Abalos, the Supreme Court did not reach the question, 544 S.W.2d at 631 fn. 2, perhaps reserving the question for cases, of which this is one, arising after the enactment of the statute. Because at this writing the “no duty” concept of assumed risk is a viable concept under Supreme Court pronouncements, we are not at liberty to say otherwise.

Thus, under the present state of the law, Dobbins was required at the venue hearing to prove the existence of United’s duty to warn her of or protect her from the open and obvious condition. By the unchallenged findings, she has not done so.

By cross-points, United proposes that Dobbins has taken this appeal for delay without sufficient cause therefor and, pursuant to Rules 435 and 438, Texas Rules of Civil Procedure, she should be assessed ten per cent of the amount in dispute as damages for a frivolous appeal. We are not persuaded that the appeal is frivolous.

Whether the “no duty” concept of assumed risk is to remain a viable doctrine has not been definitely determined by the Supreme Court. As early as thirteen years ago it was written that the Supreme Court may entirely abandon assumed risk. Greenhill, Assumption of Risk, 16 Baylor L.Rev. 111, 112 (1964). Two years ago there was expressed the thought, previously noted, that by adopting comparative negligence, the legislature evidenced its clear intention to apportion negligence rather than completely bar recovery. Farley v. M M Cattle Company, supra, at 758. As late as last year, one member of the Supreme Court stated, “If no-duty was not abolished in Adam Dante [Adam Dante Corporation v. Sharpe, 483 S.W.2d 452 (Tex.1972)], I would expressly do so now.” Abalos v. Oil Development Company of Texas, supra, at 636. The issue is involved in Highland Park, Inc. v. Parker, 545 S.W.2d 275 (Tex.Civ.App.—Eastland 1976, writ granted), and it may be that the Supreme Court will consider that case or the case at bar to be the proper one for the definitive decision. Given these circumstances, we cannot say that the appeal is frivolous.

The judgment is affirmed.


author: JAMES, Justice. HALL, Justice,

text:
    In the Matter of D_ W_ M_.
    No. 5752.
    Court of Civil Appeals of Texas, Waco.
    Sept. 22, 1977.
    Rehearing Denied Oct. 13, 1977.
    Jerry Secrest, Daniel, Tarver & Secrest, Temple, for appellant.
    Don S. Caldwell, Jr., County Atty., L. L. Geren (on appeal only), Bradley & Geren, Groesbeck, for appellee.
   OPINION

JAMES, Justice.

This is a juvenile case. D_ W_ M_, a juvenile, appeals from an order of the Juvenile Court of Limestone County, Texas, which waived the exclusive original jurisdiction of said court, and transferred the juvenile to the 77th Judicial District Court of Limestone County for criminal proceedings under the provisions of Article 54.02, Vernon’s Texas Civil Statutes, Texas Family Code. We affirm.

Appellant’s first point of error asserts that the Juvenile Court did not acquire jurisdiction to consider discretionary transfer because of the failure of the State to issue and serve summons on the juvenile. We overrule this point of error, and hold that the juvenile waived the requirement that a summons be served on him. The juvenile was past sixteen years of age at the time of the commission of the alleged offense, to wit, murder, and at the time of the hearing in question. The diagnostic study and social evaluation ordered by the juvenile court showed that Appellant was above the average in intelligence and had been a good student in high school prior to the time he dropped out of the ninth grade of school on August 18, 1976.

At the time of the hearing in question the juvenile, his attorney, and both of his parents were present. At the commencement of the proceedings, Appellant’s counsel announced ready, and no objection was made by the Appellant, his counsel, or his parents relative to the fact that no summons had been served upon Appellant.

Significantly, the order of the juvenile court made specific fact findings which include the following:

“The Court specifically finds that the said D_W_M_is of sufficient sophistication and maturity to have intelligently, knowingly, and voluntarily waived all constitutional and statutory rights heretofore waived by the said D_W_ M_, and to have aided in the preparation of his defense; — .”

Thereafter in said order, the juvenile court further found:

“That the social evaluation and psychiatric study indicate D_ W_ M_ is mature and sophisticated enough to aid in his defense and to be treated as an adult; — .”

The above findings of the trial court are not challenged by the Appellant. Under this state of the record, we are of the opinion and hold that Appellant waived the statutory requirement that a summons be served upon him concerning the hearing in question. Moreover, this record does not affirmatively show that the juvenile was not served with summons for this hearing in question.

Appellant’s second point of error contends that the juvenile court erred in ordering the juvenile tried as an adult without having before him a report of the circumstances of the alleged offense as required by Section 54.02(d) of the Texas Family Code.

Section 54.02(d) provides:

“Prior to the hearing, the juvenile court shall order and obtain a complete diagnostic study, social evaluation, and full investigation of the child, his circumstances, and the circumstances of the alleged offense.”

The original petition filed by the State charged the Appellant with the offense of murder of one Chester Brooks on or about January 17, 1977, in Limestone County, Texas, by striking him with a blunt object, while in the course of committing the offense of burglary.

On February 21, 1977, the juvenile court ordered “a complete diagnostic study, social evaluation, and full investigation of the child, his circumstances, and the circumstances of the alleged offense and that said report be filed in the papers of this case.”

Pursuant thereto, a detailed and comprehensive social history was prepared and filed by one Gary W. Koester, the Juvenile Probation Officer. Additionally, a psychiatric evaluation report was filed by Dr. S. Bergen Morrison, M.D., a psychiatrist, and another report by Dr. Norman E. Wilson, Ph.D., a counselling psychologist. At the hearing, the written confession of James Edward Thomas, one of the other parties to the alleged offense, was introduced in evidence, which set out in detail the circumstances of the killing of Chester Brooks and the burglarizing of Brooks’ store, which written confession definitely ties Appellant to the alleged offense. In substance, the written statement recites that Appellant and the said Thomas and two others planned this offense about two o’clock P.M. on January 17, 1977, in Bell County, and then the four men met again about nine o’clock that night at Belton, Texas, and drove some seventy miles to the home and store belonging to Chester Brooks in the Coit community in Limestone County; that the Appellant and Thomas and the two others there killed Chester Brooks and burglarized his store, taking therefrom some $280.00 in money and some other items. The court also heard testimony of a deputy sheriff, a rural mail carrier, a social worker, and a Justice of the Peace, concerning the alleged offense.

Under this record, we are of the opinion and hold that Section 54.02(d) has been complied with. Appellant’s second point of error is therefore overruled.

Appellant further contends that there is no evidence in the record upon which a grand jury might be expected to return an indictment, saying that the only evidence which ties Appellant to the alleged murder is the written confession of James Edward Thomas, hereinabove referred to, which is hearsay. In other words, Appellant is saying that if you take Thomas’s hearsay statement out of the record there is no evidence left in this record upon which a grand jury might be expected to return an indictment. See Section 54.02(f)(3), one of the matters which the juvenile court must consider in a hearing for waiver of jurisdiction and discretionary transfer to criminal court. We overrule this contention. Hearsay testimony is specifically authorized by Section 54.02(d), Texas Family Code, here-inabove quoted. See In Matter of J_ R_ C_ (Texarkana, Tex.Civ.App.1977) 551 S.W.2d 748, no writ. Moreover, a grand jury is not required to follow the rules of evidence in determining whether or not to return an indictment. We believe that there is ample evidence in this record upon which a grand jury may be expected to return an indictment.

Finally, Appellant asserts error in that the State failed to issue and serve summons on the parents of Appellant, as required by Section 54.02(b), Texas Family Code. We do not agree.

As stated, both parents were present at the hearing in question. No objection was made at the hearing concerning the fact that they had not been served with summons. Section 53.06(e), Texas Family Code, specifically provides “A party, other than the child, may waive service of summons . by voluntary appearance at the hearing.”

All of Appellant’s points and contentions have been carefully considered, and are respectfully overruled. Judgment of the trial court is affirmed.

AFFIRMED.

HALL, Justice,

concurring.

I do not agree with the majority’s holding that appellant waived service of summons.

V.T.C.A., Family Code §§ 51.09 and 53.06 provide as follows:

§ 51.09. Waiver of Rights.
Unless a contrary intent clearly appears elsewhere in this title, any right granted to a child by this title [Delinquent Children] or by the constitution or laws of this state or the United States may be waived in proceedings under this title if:
(1) the waiver is made by the child and the attorney for the child;
(2) the child and the attorney waiving the right are informed of and understand the right and the possible consequences of waiving it;
(3) the waiver is voluntary; and
(4) the waiver is made in writing or in court proceedings that are recorded.
§ 53.06. Summons.
(a) The juvenile court shall direct issuance of a summons to:
(1) the child named in the petition [for transfer hearing];
(2) the child’s parent, guardian, or custodian;
(3) the child’s guardian ad litem; and
(4) any other person who appears to the court to be a proper or necessary party to the proceeding.
(e) A party, other than the child, may waive service of summons by written stipulation or by voluntary appearance.

Under these statutes a waiver of summons by the juvenile can only be made voluntarily, in the course of court proceedings that are recorded, with the joinder of his attorney, after both have been informed of and understand the right to the summons and the consequences of waiver. These facts are not shown in the record before us. Appellant’s appearance in court with his attorney and his parents did not satisfy these requirements.

Nevertheless, the record does not conclusively establish that appellant was not served with a summons as required by the Family Code. For this reason I concur in the affirmance. See, In The Matter of W.L.C. (Tex.Civ.App.—Waco 1977). No one testified appellant was not summonsed. The question was not raised on the trial. Until a contrary showing is made, the presumption prevails that all legal requisites were met. At most, the record shows only that a return was not made on the summons.

      . Necessarily, I disagree with holdings and suggestions that the juvenile cannot, within the provisions of the Family Code, waive service of summons. See, e. g., D. A. W. v. State, 535 S.W.2d 21 (Tex.Civ.App.—Houston [14th Dist.] 1976, writ ref’d n. r. e.); In the Matter of M.W., 523 S.W.2d 513 (Tex.Civ.App.—El Paso 1975, no writ).


author: SPURLOCK, Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Joseph T. THORNTON, Appellee.
    No. 17906.
    Court of Civil Appeals of Texas, Fort Worth.
    Sept. 22, 1977.
    Rehearing Denied Oct. 20, 1977.

      Cantey, Hanger, Gooch, Munn & Collins and Stephen A. Madsen, Port Worth, for appellant.
    Herrick & Waltrip and Bill Waltrip, Fort Worth, for appellee.
   OPINION

SPURLOCK, Justice.

This is a workmen’s compensation case. The jury found that plaintiff was totally and permanently disabled as a result of an accident. The insurance carrier asserts there was no evidence or the evidence was factually insufficient to support the jury’s finding that the duration of plaintiff’s incapacity is permanent. By way of cross point, plaintiff moves this court to assess an additional ten percent damages against the insurance carrier for a frivolous, delay-only appeal pursuant to Rules 435 and 438, Tex. R.Civ.P.

We affirm and add ten percent damages pursuant to Rules 435 and 438 of the Tex.R. Civ.P.

The only issue raised by the insurance carrier in this case concerns the permanency of Thornton’s disability; specifically, the insurance carrier contends that there was “no evidence” or “insufficient evidence” to support the jury’s finding that Thornton’s total incapacity was permanent. The rules by which this court must be bound in reviewing these points of error are set forth in Judge Calvert’s article, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.Rev. 361 (1960). See also Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). On appeal, the insurance carrier has not assigned as error the jury’s finding that the injury sustained by Thornton was a producing cause of the total incapacity-

The trial court defined “Injury” and “Producing Cause” as follows:

“INJURY” means damage or harm to the physical structure of the body and such diseases or infection as naturally result therefrom, or the incitement, acceleration, or aggravation of any disease, infirmity, or condition, previously or subsequently existing, by reason of such damage or harm. (Emphasis added.)
“PRODUCING CAUSE” means an injury or condition which, either independently or together with one or more other injuries or conditions results in incapacity, and without which such incapacity would not have occurred when it did. (Emphasis added.)

The court has carefully reviewed the entire record and will not attempt to mention all aspects of the testimony. The following is a fair summary of the testimony.

Prior to his injury, Thornton was a very athletic young man. While in high school, he played varsity football for four years, played basketball for one year and ran track. Also while in high school, he had numerous jobs hauling hay for neighbors. He described his hauling hay as following a truck through a field, reaching down and picking up a bale of hay and throwing it onto a flatbed truck. This was done all day long. The bales each weighed in excess of one hundred pounds. While participating in all of these activities, he never had any problems with his back.

Upon graduation from high school, Thornton caused his name to be placed on the waiting list for apprentice pipefitter’s training. While so waiting, he got a job in the laboratory at Harris Hospital. He had started working for a plumbing company before he was accepted into the apprentice pipefitter’s program through the union. He had had his name on the waiting list for the apprentice program for approximately one year before being accepted. At the trial, he explained that an apprentice is someone who has never had any experience in the field. The starting wage scale of an apprentice is fifty percent of a journeyman’s wage. After the successful completion of five years of on-the-job and classroom training, the apprentice becomes a journeyman pipefitter.

Thornton started to work as an apprentice pipefitter in 1972 and worked in that capacity until his on-the-job injury in 1974. Up to the time of this injury, he had been able to perform all of the duties required of him in his job, which included the carrying of heavy pipes, stooping, crawling, climbing and bending.

On Friday, January 24, 1974, Thornton was in the process of unloading some cast iron water main fittings while in the course and scope of his employment with General Engineering Company. He felt a sharp pain in the lower portion of his back.

After resting for the weekend, he tried to work on Monday and Tuesday, but he was unable to do his usual work. On Wednesday, he went to see Dr. Bussey, an orthopedist, who examined him, took X-rays, gave him some medication, and advised him to take a week off from work and to see him again in a week, which he did.

After one week off, he returned to work for General Engineering Company. He testified that upon returning to work, he “didn’t do hardly anything.” He told them that he needed a light duty job, such as a copper job, since his back was hurt. He was told that no such work was available at that time. Instead, he was told to do just what he could. He stayed on the job for four or five weeks, but he was unable to do the same heavy work that he had done before he was injured. He was fired by General Engineering Company when he refused (because of his injured back) to help a laborer carry a heavy, five-foot oxygen bottle up to the second floor of the construction project. He was unemployed for one or two months. His union found employment for him with Broyles and Broyles Construction Company in Denton, Texas, working with copper; however, this job only lasted one day, since he “couldn’t handle copper,” because his back was bothering him.

At the time of trial, Thornton was employed in the hematology department at John Peter Smith Hospital in Fort Worth. In this job, one of his duties is to collect blood from patients. He testified that his back will hurt when he bends over a patient’s bed two or three times in a row, while waiting for blood tubes to fill. When he straightens his back, he will sometimes hear it pop. In addition, his back hurts when he sits too long, stands too long, or tries to jog.

He was attending T.C.U.’s nursing school at the time of trial.

Dr. J. B. Harmon, an orthopedic surgeon, saw plaintiff on March 26,1974; the history plaintiff gave him is a brief summary of plaintiff’s testimony described above. Upon examination he found an indentation in plaintiff’s back at the level of L-5. His condition was diagnosed as spondylolisthesis grade 1 of L-5 on S-l. The skeletal defect was probably a developmental condition. He testified that “[m]any people have worked all their lives and never known that they had it until some incident brought it to their attention and X-rays revealed this defect.” A person with this defect is most susceptible to injury when lifting, bending, stooping and putting a person’s body in awkward positions. He testified that the accident caused his incapacity; that it aggravated his previous condition and that the condition is permanent.

Winston Crabb testified that he was a journeyman pipefitter and that plaintiff was working under him at the time of the accident. They were installing a 48,000 pound boiler by themselves. Prior to the accident, plaintiff appeared to be physically fit and was doing this heavy work without difficulty or any complaints of pain or signs of disability. When the accident happened, the witness actually heard his back pop from a distance of eight feet and he saw Thornton drop to his knees. Plaintiff came back to work and tried to work because he had responsibilities and had to make a living, but he was unable to do his usual tasks.

The insurance carrier introduced the testimony of Dr. Thomas B. Bussey, and Dr. Robert T. Miller, both of whom are orthopedic surgeons. Dr. Bussey saw plaintiff on January 30, 1974, and the history plaintiff gave is a brief summary of plaintiff’s testimony described above. He gave the same diagnosis as Dr. Harmon. He testified that he has seen patients with the same defects who are not having any pain and he does not recommend treatment for such persons “because I see a lot of people that may be sixty years old and for some reason I need to X-ray them and do X-ray them and find this thing and they are not having any problems and I just, my philosophy is leave a sleeping dog lie, there’s no use starting and getting in trouble.” His examination revealed that plaintiff has a straightening of the lumbar spine, he is able to raise his left leg only to 30 degrees, and his disability is permanent. On cross examination, he testified there is a school of thought that spondylolisthesis can be caused by trauma. The condition can exist without any disability or symptom but can be triggered and become disabling by trauma, such as unloading or pulling on cast iron water mains. He testified that the accident here involved may have caused his slippage and that his condition is permanent. He testified that he would advise such a young man (such as plaintiff) to “go to college and get him a good education so he wouldn’t have to do manual labor.”

Dr. Miller testified that he examined the plaintiff for the defendant on February 10, 1974. On examination he found plaintiff was suffering pain on bending and the calf of his left leg was smaller than that of his right. The other orthopedic tests, excluding the X-rays, were negative. Upon examination of the X-rays, his diagnosis was the same as the other doctors. Plaintiff could not be a pipefitter. He also testified the ligaments were damaged by the accident and that “a ligament popping in two” could have been heard by a person standing five or six feet from plaintiff. He testified that spondylolisthesis can be aggravated and that the condition the plaintiff has is permanent in nature. Dr. Miller testified: “When a person has this bone defect that person has a weak link in his back. You can look at it just like you look at a chain. If you’ve got one link in that chain that’s a little bitty weak wire instead of a great big heavy strong piece and you put a tremendous pull on it, that weak link is going to give way, something will give way in that part of the body.” Plaintiff’s condition was aggravated by the accident and also he suffered torn or other damage to the ligaments in the area of the defect in his spine. He will continue having additional injuries to this area of his back if he does manual labor. He should be restricted from doing heavy manual labor. This condition is permanent.

There is ample evidence of probative nature to support the jury’s verdict. The “no evidence” point is overruled.

The case of State Highway Dept. of Texas v. Maris, 532 S.W.2d 690 (Tex.Civ.App.—Texarkana 1976, no writ), summarizes the rules regarding the sufficiency of the evidence in workmen’s compensation cases in this state. That case, citing many others, reiterates the time-honored rules pertaining to jury verdicts in such cases. The Texar-kana court of civil appeals wrote:

“It is recognized that the duration and extent of incapacity is at best an estimate which must be made by the jury from all the pertinent facts before it. Where it can reasonably be inferred from the evidence that the claimant’s injuries are permanent and that they totally disable him from performing the usual tasks of a workman in such a way as prohibits him from procuring and retaining employment, a verdict of total permanent incapacity will be affirmed. . . Id. at 693. (Emphasis added.)

No medical evidence is needed to support a total and permanent jury verdict in workmen’s compensation cases. Travelers Insurance Company v. Wade, 373 S.W.2d 881 (Tex.Civ.App.—Dallas 1963, writ ref’d n. r. e.). However, the record in this case contains a great deal of medical evidence to support the total and permanent jury verdict.

We overrule the “insufficient evidence” point of error.

By way of cross point, Thornton moves this court to assess an additional ten percent damages against the insurance carrier for a frivolous, delay-only appeal, pursuant to Rules 435 and 438, Tex.R.Civ.P. These two rules can be dangerous for an appellee to invoke, because such a request for damages opens up the entire record and requires a reversal of the judgment for any material error, whether assigned or not. Grimes v. Robitaille, 288 S.W.2d 211, 213 (Tex.Civ.App.—Galveston 1956, writ ref’d n. r. e.); Stanford v. Chambliss, 135 S.W.2d 748, 749 (Tex.Civ.App.—Waco 1940, no writ); Texas State Life Insurance Co. v. Aparicio, 129 S.W.2d 794 (Tex.Civ.App.—San Antonio 1939, no writ); Wallace v. Renfroe, 124 S.W.2d 456, 458 (Tex.Civ.App.—El Paso 1939, writ dism’d jdgmt cor.); 4 Tex.Jur.2d Rev. Part 2, App. & Err.—Civil Cases § 890 at 547-48 (1974).

Thornton argues that the insurance carrier’s appeal in this case was taken to force him to settle his case in order to avoid the delay of an appeal and to prejudice him economically.

Since even the testimony of the doctors called by the insurance carrier support the jury’s findings of permanency, we agree with Thornton that this appeal was not taken in good faith and was only taken for the purposes of delay.

In this case, the injured worker has been delayed in the receipt of his workmen’s compensation payments. Rules 435 and 438, Tex.R.Civ.P. gives this court the authority to impose these additional damages. The imposition of damages under Rule 435 is discretionary with the court of civil appeals, but under Rule 438, the imposition of such damages is mandatory when the court finds that the appeal was taken for delay and without sufficient cause. Grimes v. Robitaille, supra, at 213.

Charter Oak Fire Insurance Company v. Adams, 488 S.W.2d 548 (Tex.Civ.App.—Dallas 1972, writ ref’d n. r. e.) and Texas Employers’ Insurance Association v. Dempsey, 508 S.W.2d 858 (Tex.Civ.App.—Houston [1st Dist.] 1974, writ ref’d n. r. e.) are two cases where courts of civil appeals have assessed the penalty in question.

In Texas Employers’ Insurance Association v. Dempsey, supra, the court was of the opinion that the statutory interest did not fairly compensate the claimant for the delay caused by the appeal in that case. We are of the same opinion in the case before us.

In Charter Oak Fire Insurance Company v. Adams, supra, Justice Guittard of the Dallas court of civil appeals wrote:

“[W]e conclude that when the only questions raised on an unsuccessful appeal are well settled and the appellee’s circumstances are such that statutory interest on the judgment is not adequate compensation for the delay, we have discretion under rule 435 to assess such damages even in the absence of a finding under rule 438 that the appeal was taken for delay. In this case, if rule 438 does not require us to assess damages for delay, we now exercise our discretion to do so under rule 435.” Id. at 551.

We adopt the quoted portion above as reflecting our holding in the case at bar.

The judgment of the trial court is affirmed, with a grant of further damages for delay in the amount of $2,379.60.


author: HALL, Justice.

text:
    Bobby Gene PELTON et al., Appellants, v. Mary Eady DAWLEY et al., Appellees.
    No. 5757.
    Court of Civil Appeals of Texas, Waco.
    Sept. 22, 1977.
    Rehearing Denied Oct. 20, 1977.
    L. L. Geren, Bradley & Geren, Groesbeck, for appellants.
    Joe Cannon, Cannon, Cannon & Reed, Groesbeck, for appellees.
   HALL, Justice.

J. B. Pelton died in Limestone County on February 17, 1974. At the time of his death he owned a checking account in The Farmers State Bank, Groesbeck, Texas, with a balance of $4,402.93, as well as certain real property. The plaintiffs in this case, Bobby Gene Pelton and Joe Thomas Pelton are the deceased’s only heirs. Mary Eady Dawley was the deceased’s niece. After the deceased’s death, Mrs. Dawley made two checks against the deceased’s checking account which were honored by the bank. They liquidated the account. The first check was dated February 8, 1975, was in the amount of $2,500.00, and was payable to Mrs. Dawley’s three sons. The second check, dated March 20, 1975, was in the amount of $1,902.93, and was payable to Mrs. Zuma Eady, who was Mrs. Dawley’s mother. Mrs. Zuma Eady died on July 30, 1975, and Mrs. Dawley was appointed ad-ministratrix of her estate. The plaintiffs brought suit to recover the $4,402.93 against Mrs. Dawley individually and as administratrix of the estate of Zuma Eady, and against the bank. Mrs. Dawley’s brother, Arvin D. Eady, who is Mrs. Eady’s only other surviving heir, was also joined as a defendant. In addition to their actual damages, plaintiffs also pleaded for $10,-000.00 exemplary damages against Mrs. Dawley and Mrs. Eady’s estate, alleging that Mrs. Dawley and Mrs. Eady willfully and maliciously conspired and acted in the premises to deprive them of the money in the checking account. Bank and the other defendants answered with general denials. Bank filed a cross-claim against Mary Eady Dawley, in the event it was liable to plaintiffs. Mrs. Dawley answered the cross-claim with a general denial.

Soon after plaintiffs Bobby Gene Pelton and Joe Thomas Pelton filed their suit, Mary Eady Dawley filed an application for an administration with will annexed of the estate of the deceased, J. B. Pelton. The purported holographic will of the deceased was attached to the application. The following is a complete reproduction of this instrument:

Bobby Gene Pelton and Joe Thomas Pelton contested the application. Eventually, their suit for conversion of the bank account funds and Mary Dawley’s action for administration with will annexed of the deceased’s estate were consolidated for trial.

After a hearing without a jury on the consolidated cases, the document set forth above was ordered probated as the deceased’s last will and testament, Mary Eady Dawley was appointed administratrix with the will annexed of the deceased’s estate, and it was further decreed that “the money that was in the bank in the amount of $4,402.93 is awarded to the said defendant, Mary Eady Dawley.”

Findings of fact and conclusions of law were not requested by the parties, and none were filed by the court. However, the judgment necessarily rests upon an implied finding that the purported will names defendant-proponent Mary Eady Dawley as beneficiary. Plaintiffs-contestants attack this finding contending the writing does not identify Mrs. Dawley as a beneficiary within its legible terms. We sustain this contention and reverse the judgment.

There is evidence that the instrument is in the handwriting of the deceased, and that the signature at the end is the deceased’s signature. There is also evidence that Mrs. Dawley was kind and attentive to the deceased during his latter years and especially during the last fifteen months of his life when he was in a rest home.

Only two witnesses attempted to decipher the writing in question. The first testified as follows:

Q. Can you read that?
A. It is hard. It looks like February the 14th, 1976? Something about my house and don’t let him have any money. Keep cemetery clean. That is about all I can read.
Q. You can’t read the rest of it?
A. And everything honey — is that honey?
Q. I don’t know. I am asking you. A. It looks like it and everything honey. Q. Everything honey?
A. Yes, that is what I would say that is. It is hard to read.
Q. It is quite difficult to make out, isn’t it, Mrs. Harris?
A. Not the signature. I have seen it lots of times.
Q. But I am talking about what the purported will says.
A. Yes, sir.

The second testified:

Q. Can you read that to us?
A. February 14th, 1974, I believe. It might be a P.M. also. Joe was here. Don’t want money. Don’t let him have it. Him allowed in house if he takes care of it. Keep my cemetery clean and something money. The money and everything. The rest of it I can’t read.

Neither witness identified Mrs. Dawley or anyone as a designated beneficiary in the will.

Defendants say that the first two words in the last sentence in the purported will may be read either as “She Mary” or “The money.” They decipher the whole instrument to read as follows:

Feb. 14, 1974
Joe was here want money don’t let him have it. Let him live in house if he take care of it keep my cemetery clean and my money [“She Mary” or “the money”] and everything I have and all is yours.
J. B. Pelton

They contend that the trial court as the fact-finder was entitled to interpret the first two words in the last sentence as “She Mary,” and that the extraneous proof sufficiently identifies the “Mary” as defendant Mary Eady Dawley. We overrule this contention. We hold that these two words are too illegible to bear other than speculative deciphering by the court. In any event an interpretation of them as “She Mary” would be against the great weight and preponderance of the evidence.

Accordingly, the judgment is reversed, and the ease is remanded in its entirety for trial.

Reversed and remanded.


author: McDONALD, Chief Justice.

text:
    CITY OF AUSTIN, Appellant, v. Joe M. TEAGUE et al., Appellees.
    No. 5762.
    Court of Civil Appeals of Texas, Waco.
    Sept. 22, 1977.
    Opinion after Filing of Remittitur Sept. 28, 1977.
    Rehearing Denied Oct. 20, 1977.

      Jerry L. Harris, City Atty., Roy Rutland, III, Asst. City Atty., Austin, for appellant.
    Douglass D. Hearne and William M. Knolle, Stayton, Maloney, Hearne & Babb, Austin, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant City from $109,939. judgment in favor of plaintiffs Teague, et al.

Plaintiffs sued defendant seeking mandamus requiring defendant to issue plaintiffs a waterway development permit to reroute two small streams over an 8V2 acre tract owned by plaintiffs, and for damages resulting from denial of such permit by the Austin City Council.

Trial was to a jury which found:

Issue 1. Defendant thru its course of conduct between January 1973 and June 26, 1975, refused to allow plaintiffs to alter the portions of Harpers Branch and the Ramble which cross plaintiffs’ tract of 8.51 acres with the intention to prevent all development of that tract and preserve it as a scenic easement for the benefit of the public.

Issue 2. The reasonable market value of plaintiffs’ 8.51 acres on June 26, 1975 with approval of the waterway development was $741,202.
Issue 3. The reasonable market value of plaintiffs’ 8.51 acres on June 26 without approval of the waterway development permit was “none”.
Issue 4. The cash value of the loss of use of plaintiffs’ property as result of defendant’s denial of the waterway development permit on June 26, 1975 was $223. per day.

The trial court rendered judgment man-damusing the City to issue the permit which had been denied, and further decreed defendant pay plaintiffs $223. for each day from date of denial of the permit to date of its issuance (totalling $109,939.). The City pursuant to the mandamus issued plaintiffs the permit, but prosecuted limited appeal from the $109,939. decree as damages for the time the permit was denied.

Defendant asserts 5 points contending:

1) The trial court erred in rendering judgment based on the jury’s answer to Issue 4, because the granting or denial of a waterway development permit is a government function of the city within its police power, the exercise of which does not give rise to any claim for money damages.
2) The trial court erred in rendering judgment based on the jury’s answer to Issue 4, because as a matter of law, the denial of a waterway development permit did not amount to a taking or damaging for public use under either the Texas or United States Constitutions.
3) The jury’s answer to Issue 4 is not supported by sufficient evidence, and is so against the great weight and preponderance of the evidence as to be manifestly unjust. Further, both the answer and judgment are based on the erroneous assumption improvements to plaintiffs’ property could have been completed and the property leased the day the permit was denied, contrary to the uncontradicted evidence.

Plaintiffs acquired the land in December 1972. It is adjacent to 1-35, is rough and uneven, and two wet-weather creeks known as Harpers Branch and the Ramble run thru the property. The consulting engineer hired by plaintiffs to plan development of the property advised it was necessary to enclose or reroute the two creeks to make a site upon which a structure could be built. The property was zoned top-permit retail businesses, motor hotels or office buildings up to 65 feet in height. Plaintiffs began dozing the brush and vegetation. No city ordinance prevented this, but there was an ordinance requiring a permit if the creeks were to be altered. Plaintiffs’ dozing of the site provoked opposition from nearby residents who wanted plaintiffs’ land left in an undeveloped state. At the next City Council meeting, January 11,1973 area residents urged the Council to take steps to prevent further development of plaintiffs’ land. On January 26, 1973 the Council adopted a resolution requesting the State Highway Department to acquire plaintiffs’ land for a “scenic easement.” Shortly thereafter plaintiffs applied for a permit to enclose portions of the two creeks in culverts. The City’s Director of Public Works granted the permit, which action was appealed by the citizen group to the City Planning Commission. All evidence was that the proposed alterations would provide hydraulically and structurally sound drain-ageway adequate to handle anticipated waterflows. This was all that was required to be entitled to the permit. The Planning Commission denied the permit. Plaintiffs then offered to sell the land to the Highway Department and gave it a 90-day option to purchase. The Highway Department did not purchase because the State had no funds to purchase property for scenic easement purposes. In late 1973 plaintiffs reapplied for a water permit, which was this time approved by the City Engineering Department and the City Planning Commission. An area citizen, Ms. Buxkemper, appealed to the City Council which denied the permit on February 14, 1974 despite overwhelming evidence that plaintiffs had satisfied every conceivable requirement. The City Council at the February 14,1974 meeting set public hearing on a New Creek Ordinance, which was passed on March 7, 1974. The new ordinance in addition to the existing engineering criteria dealing with hydraulics, drainage and structural soundness, required any plan to box or reroute a creek must also: “F. Preserve the natural and traditional character of the land and waterway to the greatest extent feasible”; and further provided “decision to grant or deny a permit shall be accompanied by a detailed statement of the reasons for such action”.

Plaintiffs applied again for a water development permit under the new ordinance. The Engineering Department approved the application. Ms. Buxkemper appealed to the Planning Commission which appeal failed. She then appealed to the City Council, limiting her appeal to Subsection F. “That the proposed development did not preserve the natural and traditional character of the land and waterway to the greatest extent feasible.” The City Council on June 26, 1975 denied plaintiffs’ application for permit, but never gave “a detailed statement for the reasons” as required by the ordinance.

As noted, the jury found defendant refused plaintiffs’ application for the water permit, “with the intention to prevent all development of the tract and preserve it as a scenic easement for the benefit of the public”.

Plaintiffs by reply points assert the trial court’s judgment correct because the City Council’s action in denying the permit with the intention to prevent all development and preserve the land as a scenic easement for the public, was arbitrary, unreasonable and an invalid exercise of the police power; and further constituted a damaging of plaintiffs’ property rights for public use for which plaintiffs are entitled to be compensated.

The trial court as a part of its final judgment issued mandamus to compel the City to issue the permit, which the City complied with, and does not appeal from. Thus, the trial court found the City’s action was unauthorized, unreasonable, arbitrary and an invalid exercise of the police power, and the City is bound by such implied findings. Texas Van Lines, Inc. v. Godfrey, Tex.Civ.App. (Dallas) NRE, 313 S.W.2d 922; Badeaux v. Cohen, Tex.Civ.App. (Houston 14) NWH, 437 S.W.2d 310; Graham v. Turner, Tex.Civ.App. (Waco) NWH, 472 S.W.2d 831.

Moreover, the City has not challenged the findings of the jury that the City’s refusal to grant the permit totally destroyed the value of the land.

The City asserts if the denial of the permit is unauthorized, unreasonable or arbitrary, the affected party can secure his rights by mandamus, and has no cause of action for money damages because the municipal action involved is still governmental in nature; citing Kirschke v. City of Houston, Tex.Civ.App. (Houston) NRE, 330 S.W.2d 629; City of Houston v. Biggers, Tex.Civ.App. (Houston) 380 S.W.2d 700; Thurow v. City of Dallas, Tex.Civ.App. (Dallas) NRE, 499 S.W.2d 347; Ellis v. City of West University Place, 141 Tex. 608, 175 S.W.2d 396; Lombardo v. City of Dallas, 124 Tex. 1, 73 S.W.2d 475; City of San Antonio v. Pigeonhole Parking of Texas, 158 Tex. 318, 311 S.W.2d 218.

We think the foregoing not determinative of this case. The constitutional provisions that no person’s property shall be taken, damaged, or applied to public use without adequate compensation being made applies to the state and its agencies. And there is really no distinction between the powers of eminent domain and an exercising of the police power, when a person’s property is taken or the use of same damaged by the state (or city). A person’s property may not be taken or damaged as an incident to the exercise of the police power without the payment of compensation. San Antonio River Authority v. Lew is, Tex., 363 S.W.3d 444, 450; Brazos River Authority v. City of Graham, 163 Tex. 167, 354 S.W.2d 99, 105.

And a direct physical invasion of property is not required under the eminent domain section of our constitution for a property owner to be entitled to compensation for the damaging of his property for a public use. DuPuy v. City of Waco, Tex., 396 S.W.2d 103; Spann v. City of Dallas, 111 Tex. 350, 235 S.W. 513.

In San Antonio River Authority v. Garrett Brothers, Tex.Civ.App. (San Antonio) NRE, 528 S.W.2d 266, 272, the City of San Antonio refused to issue the Garretts permits to install utilities in a tract they were subdividing into residential and commercial lots. The City refused the permits because the City proposed to acquire the land at some future date and felt development of the land would increase the cost of acquisition. It was some 7 months before the permits were granted and the Garretts allowed to resume development. The Gar-retts sued for their damages. The City citing Kirschke, supra and 37 A.L.R.2d 694, contended that in regulating the development of land in general and particularly in refusing to issue permits, it is exercising a governmental function and is therefore immune from liability. The court rejected this contention and said:

“In order to dispose of this point we must consider the nature of plaintiffs’ complaint. Plaintiff alleged that the actions of City deprived it of the use and enjoyment of its property, albeit for a temporary period, and constituted a ‘taking’ or ‘damaging’ of its property for which, under the provisions of Article I, Sec. 17 of the Texas Constitution, it was entitled to compensation. It is settled that the defense of governmental function is not available where the conduct of the municipality amounted to a taking or damaging within the Constitutional prohibition. Article I, Sec. 17, of the state constitution does not limit the requirement of payment of compensation to cases where the taking or damaging results from the exercise of ‘proprietary’ functions. Every power of government is subordinate to the requirement that compensation be paid. Stockwell v. State, 110 Tex. 550, 221 S.W. 932 (1920); 18 McQuillin, op.cit. Sec. 53.24b, p. 182.
“ * * * it is now universally recognized that acts short of actual physical invasion, appropriation or occupation can amount to a compensable taking, and that governmental restrictions on the use of property can be so burdensome as to constitute a compensable taking. * *.
“No valid reason exists for holding that unreasonable interference with the right to use property should not be regarded as a compensable taking.
“ * * * The empty formalism of ‘police power’ cannot be made the basis for denying compensation, and the Texas Supreme Court has expressly refused to ‘compartmentalize an exercise of sovereignty as either police power or eminent domain for the resolution of problems arising under Article I, Sec. 17, of the Constitution . . . ’ DuPuy v. City of Waco, 396 S.W.2d at 107.”

We hold that the defense of governmental function is not available to the City of Austin to preclude imposition of liability for the acts of its City Council in interrupting plaintiffs’ development of his land by arbitrarily refusing the water development permit, and that such conduct of the City amounted to a taking or damaging within constitutional prohibition.

Contentions 1 and 2 are overruled.

The judgment awarded plaintiffs $223. per day damages from June 26, 1975 to date of judgment (totalling $109,939.). There is evidence the property had a fair market value of $641,000. to $832,000., and the jury found the property with approval of the water permit to be worth $741,292. There is evidence that an owner should expect a yield of 9% or 10% of its fair market value for the use of his property. Thus there is evidence plaintiffs suffered damages of $175.62 to $228. per day.

We overrule contention 3.

However, from the record we are of the opinion the verdict and judgment of the trial court is excessive in the sum of $30,-000. and that this cause should be reversed for that reason only. Plaintiff is given 10 days from this date to file a remittitur of $30,000. Rule 440 TRCP. Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835; World Oil Co. v. Hicks, 129 Tex. 297, 103 S.W.2d 962; Caswell v. Satterwhite, Tex.Civ.App. (Waco), NRE, 277 S.W.2d 237; Big Town Nursing Home v. Newman, Tex.Civ.App. (Waco) NWH, 461 S.W.2d 195. If such remittitur is filed within 10 days, the judgment of the trial court will be reformed and affirmed.

REVERSED AND REMANDED.

OPINION AFTER FILING OF REMITTITUR

Appellee having filed remittitur of $30,-000, as suggested by this court, the judgment of the trial court is reformed in conformity with such remittitur, and as reformed is affirmed in the amount of $79,939. All costs of appeal are taxed against appellant City.


author: BISSETT, Justice.

text:
    Norman F. SCHWARTZ et ux., Appellants, v. Minnie Lee SIMS, Appellee.
    No. 1212.
    Court of Civil Appeals of Texas, Corpus Christi.
    Sept. 22, 1977.
    W. J. Nutto, Bonilla, Read, Nutto & Bon-illa, Inc., Corpus Christi, for appellants.
    David C. Cook, Corpus Christi, for appel-lee.
   OPINION

BISSETT, Justice.

This is an appeal by Norman F. Schwartz and wife, Gladys Schwartz, from an order of the District Court of Nueces County, Texas, directing the issuance of a writ of temporary injunction.

Minnie Lee Sims instituted suit against Norman F. Schwartz and wife, Gladys Schwartz to enjoin them from blocking or in any way interfering with her use of an asserted right of way on, over and across a portion of defendants’ land. A temporary injunction pendente lite was issued by the trial court which enjoined the defendants “from in any way blocking” the asserted right of way, and from interfering in any manner with “the free access and ingress and egress over and across” the right of way, and ordered that “the stakes or poles put or placed on said right of way by Defendants be removed.” Defendants have timely perfected an appeal from that order.

In its order granting the temporary injunction, the trial court did not fix the amount of security to be given by plaintiff, as is required by Rule 684, T.R.C.P., and prior to the issuance of the injunction plaintiff did not execute and file with the Clerk of the District Court of Nueces County, Texas, a bond to the defendants, which is also required by Rule 684.

The failure of the trial court to fix the amount of security to be given by plaintiff, and the failure of plaintiff to file a bond in such amount fixed by the trial court renders the injunction void ab initio. Goodwin v. Goodwin, 456 S.W.2d 885 (Tex.Sup.1970); Lancaster v. Lancaster, 155 Tex. 528, 291 S.W.2d 303 (1956). Thus, in the appeal before us, the issuance of the injunction was void ab initio.

Our holding is dispositive of the appeal. We do not reach defendants’ other points of error brought forward in this appeal.

The judgment of the trial court is REVERSED, the injunction is DISSOLVED, and the cause is REMANDED to the trial court.


text:
    Louis L. SEIFFERT, Jr., Appellant, v. Burl BOWDEN, Receiver for the First State Bank, Aransas Pass, Texas (in liquidation), Appellee.
    No. 1222.
    Court of Civil Appeals of Texas, Corpus Christi.
    Sept. 22, 1977.

      Louis L. Seiffert, Jr., pro se.
    Edward F. Walker, Shelby A. Jordan, Wood, Burney, Nesbitt & Ryan, Corpus Christi, for appellee.
   OPINION

BISSETT, Justice.

This is a suit on two promissory notes brought by Burl Bowden, as Receiver for the First State Bank, Aransas Pass, Texas, against Louis L. Seiffert, Jr. A trial before the court resulted in a judgment for plaintiff in the amount of $197,789.41 for principal and interest, together with attorney’s fees of $19,778.00. Defendant has appealed.

Defendant executed and delivered to First State Bank, Aransas Pass, Texas, two promissory notes, one dated June 12, 1969, in the original principal amount of $125,-000.00, and one dated August 11, 1969, in the principal amount of $25,000.00. When the notes were executed, the Bank was a State Banking Corporation. On or about September 1969, the Board of Directors of the Bank placed both notes in the hands of the Banking Commissioner of the State of Texas in connection with liquidation proceedings theretofore instituted against the Bank. Thereafter, the State Banking Commissioner assigned the notes and all of its rights with respect thereto to the Federal Deposit Insurance Corporation (FDIC). When the FDIC had been made whole and reimbursed for all payments which it was required to make to depositors of the closed Bank, it transferred and assigned the notes to plaintiff, as Receiver for the benefit of the stockholders of the Bank.

Plaintiff filed his original petition in the District Court of San Patricio County, Texas, on February 12, 1974. He did not thereafter file an amended or supplemental petition. Defendant’s original answer, which consisted of a general denial only, was filed on March 19, 1974. On August 16, 1976, he filed a document which is styled “Defendant’s Third Answer.” He contends in point of error 3 that this document is sufficient to plead a discharge in bankruptcy as an affirmative defense to the action brought by plaintiff. We have serious doubts about the matter, but in view of our disposition of this case it is not necessary that we consider the point.

On February 14, 1977, the day of the trial, defendant attempted to file a pleading entitled “Third Party Plaintiff’s Original Petition.” In that pleading, he alleged that two individuals, one an employee of the FDIC and the other an employee of the State Banking Commission, used illegal and fraudulent means in closing the First State Bank of Aransas Pass, and also in the subsequent handling of those assets for liquidation purposes. He sought to recover from the FDIC, the State Banking Commission, and all of the particular employees involved, as “third party defendants,” compensatory damages in excess of twenty million dollars. In addition, he sought to file a counterclaim against plaintiff. Thereupon, counsel for plaintiff objected on several grounds, including: 1) the pleading involved a separate transaction; 2) there would be unreasonable delay in the trial of the cause; and 3) relief could be had in the present cause without the joinder of the additional parties. The trial court sustained plaintiff’s objections, and did not permit the filing of defendant’s petition.

We first consider the refusal by the trial court to allow defendant to file his “Third Party Plaintiff’s Original Petition,” which, in substance and effect, asserted a third party action. Defendant contends that the trial court’s ruling with respect thereto was arbitrary and constituted an abuse of discretion. We do not agree.

The trial court has great discretion in questions pertaining to the joinder of parties and causes of action, and its action will not be disturbed, absent arbitrary action or an abuse of discretion. Ruthart v. First State Bank, Tulia, Texas, 431 S.W.2d 366, 368 (Tex.Civ.App.—Amarillo 1968, writ ref’d); Reynolds v. Pierce, 320 S.W.2d 376, 374 (Tex.Civ.App.—Fort Worth 1959), aff’d, 160 Tex. 198, 329 S.W.2d 76.

Defendant’s contention in the pleading that he is entitled to compensatory damages from the parties named therein has nothing to do with the suit based on the promissory notes brought by plaintiff against defendant. We do not find the FDIC, The State Banking Commission or the particular employees of each to be indispensable parties to the suit filed by plaintiff. The original parties to the promissory notes were the defendant and The First State Bank, Aransas Pass, Texas. Defendant defaulted in the payment of the two promissory notes sued on by plaintiff. The Bank was put in receivership, and its lawful representative in receivership has brought suit to recover on the notes. Neither the FDIC, nor its employee, nor the State Banking Commission, nor its employee, have sought a recovery upon such notes; defendant has not sought a recovery against them for any act or omission by them which relate to the instant suit. The allegation of fraud in the closing of the Bank and the further allegation that defendant suffered a loss of assets in the manner in which the assets of the Bank were handled in the liquidation are unrelated to the case at hand. The filing of such a third party pleading would have injected into plaintiff’s suit an entirely new controversy, involving several new parties, which would have materially complicated and delayed the trial of the case.

Plaintiff’s objections to the filing of the third party action on the day of trial and after the case had been called and both plaintiff and defendant had announced “ready” are well founded. His objections thereto were properly sustained. Drury v. Reeves, 539 S.W.2d 390 (Tex.Civ.App.—Austin 1976, no writ); Roeber v. DuBose, 510 S.W.2d 126 (Tex.Civ.App.—Corpus Christi 1974, no writ); King v. Atayde, 428 S.W.2d 148 (Tex.Civ.App.—Corpus Christi 1968, writ ref’d, n.r.e.); Blackburn v. Manning, 307 S.W.2d 347 (Tex.Civ.App.—Amarillo 1957, writ dism’d). There has been no showing of any arbitrary action or abuse of discretion by the trial court. Defendant’s points 8, 9, 10 and 11 are overruled.

We now examine the evidence. The gravamen of defendant’s contentions, liberally construed, as expressed in points 1 and 2, is that plaintiff, in his original petition, admitted that defendant had been discharged in bankruptcy, which admission, in itself, relieved defendant of specially pleading the affirmative defense of discharge in bankruptcy. Defendant contends in Point 5 that the trial court erred in not allowing a copy of the “General Stay Order” and the “Discharge in Bankruptcy,” both in the bankruptcy court, to be introduced in evidence. None of the points can be sustained under the record here presented.

A defendant is not required to duplicate allegations made by his opponent, such as where plaintiff, in his petition, anticipates an affirmative defense and alleges facts in connection therewith. McDonald’s, Texas Civil Practice, § 6.23, (1969). However, that rule applies only where the plaintiff fully alleges the defensive matter. Here, plaintiff alleged:

“Plaintiff would further show that the Defendant, Louis L. Seiffert, Jr., has filed for bankruptcy in the Federal District Court for the Southern District of Texas. However, Plaintiff would show the Court that the funds represented by the promissory notes sued upon by Plaintiff were obtained by the Defendant by virtue of fraudulent acts on Defendant’s part and thus, the bankruptcy proceedings do not constitute a discharge or a bar to the collection of these sums.”

Plaintiff did not allege that defendant had been discharged in bankruptcy. He alleged that defendant had filed for bankruptcy and that in any event the bankruptcy proceedings would not bar the suit filed by him since defendant obtained the monies evidenced by the notes as a result of fraudulent acts. There is no admission by plaintiff in his petition that defendant was actually discharged in bankruptcy. Defendant’s points 1 and 2 are overruled.

Defendant offered in evidence Xerox copies of a General Stay Order and a Discharge in Bankruptcy, issued by the referee in the bankruptcy court. Plaintiff objected on the grounds that neither was an original document, and neither was a properly certified copy of the original. The trial court sustained the objection and did not permit defendant to introduce such copies in evidence. Defendant did not object to the trial court’s ruling, nor did he attempt to show why he could not have obtained either the original documents or properly certified copies thereof. The copies which he offered in evidence are not part of the appellate record in this case.

The law is inflexible in its requirement that the proof offered must be the best available proof. The best evidence of the proffered documents is either the original or a properly certified copy thereof. Tex.Rev.Civ.Stat.Ann. art. 3731a, §§ 2, 3, 4, and art. 3731b, §§ 1, 3 (Supp.1976); Turley v. Tobin, 7 S.W.2d 949 (Tex.Civ.App.—Austin, 1928, writ ref’d).

In this case, defendant did not offer the best evidence of the asserted General Stay Order or his claimed Discharge in Bankruptcy. Defendant’s own statements that such orders were issued out of the bankruptcy court were the only evidence in the record which the trial court could have considered in determining whether the General Stay Order and the Discharge in Bankruptcy actually issued out of the bankruptcy court. Those statements did not constitute proof that any such orders were ever made.

There is no basis for the admission of the excluded documents on the ground that the trial court should have taken judicial notice of the orders issued by the bankruptcy court. It is a well established rule that although district courts may judicially notice their own records, such courts are not required to take judicial notice of the records of other courts. Culver v. Pickens, 142 Tex. 87, 176 S.W.2d 167, 171 (1943); Fender v. St. Louis Southwestern Railway Company, 513 S.W.2d 131, 134-5 (Tex.Civ.App.—Dallas 1974, writ ref’d n.r.e.), cert. denied, 421 U.S. 913, 95 S.Ct. 1569, 43 L.Ed.2d 778, (1975). That rule applies to this case. State courts are not required to judicially notice proceedings in a bankruptcy court. Houston v. Shear, 210 S.W. 976 (Tex.Civ.App.—Austin 1919, writ dism’d); Coppard v. Gardner, 199 S.W. 650 (Tex.Civ.App.—San Antonio 1917, no writ); Helms v. Holmes, 129 F.2d 263 (4th Cir. 1942).

No reason was shown by defendant at the trial why he could not have offered either the original or a properly certified copy of the excluded documents. Failing to offer the originals or certified copies of the excluded documents and the failure to adequately explain the reason for failure to present such originals or certified copies completely justified the trial court’s refusal to admit the Xerox copies in evidence. Defendant’s point 5 is overruled.

Defendant also contends in point of error 4 that the trial court abused its discretion by being inconsistent and allowing plaintiff to retain funds from a check executed by defendant, and payable to Federal Deposit Insurance Corporation, in the amount of $20,775.04. We disagree. Defendant did not file a counterclaim for the amount thereof. The pleadings of both parties and the judgment of the trial court are clearly limited to a suit on the two promissory notes executed by defendant and payable to the order of the First State Bank of Aransas Pass, Texas, with interest and attorney fees thereon, and nothing more. The check does not appear in the record. Point 4 is overruled.

Defendant further asserts in point of error 7:

“Trial court erred in Rendering Final Judgment dated on September 14,1976 or Five Months prior to the trial itself.”

The point has no merit. While the judgment recites that the cause came on “for hearing” on September 14, 1976, the statement of facts shows that the trial commenced on February 14, 1977. The transcript shows that the judgment was:

“SIGNED, RENDERED and ORDERED ENTERED this 15 day of February, 1977.”
Point 7 is overruled.

The judgment of the trial court is AFFIRMED.


author: O’QUINN, Justice.

text:
    Esmeralda A. RODRIGUEZ, Appellant, v. Jan Paul YENAWINE, Appellee.
    No. 12568.
    Court of Civil Appeals of Texas, Austin.
    Oct. 5, 1977.
    Rehearing Denied Oct. 19, 1977.

      J. G. Hornberger, Laredo, for appellant.
    Wayne H. Prescott, Brown, Maroney, Rose, Baker & Barber, Austin, for appellee.
   O’QUINN, Justice.

Decision in this case, growing out of an automobile collision, turns on adequacy of pleadings.

Suit on behalf of Esmeralda A. Rodriguez, who is appellant, was filed in November of 1972 against Jan Paul Yenawine, claiming injuries received in an accident occurring in Travis County in April of 1974.

As plaintiff below, appellant alleged that the vehicle she was riding in as a passenger, shortly before the collision, was proceeding south on Interregional Highway 35 in Austin. Plaintiff described the accident in these allegations:

“Immediately in front of the vehicle in which the plaintiff was riding, but in the center lane . . . the defendant was also proceeding in a south-bound direction in a motor vehicle which was pulling behind it a relatively small trailer. For reasons unknown to the plaintiff, the vehicle being driven by the defendant and the trailer being pulled by it suddenly swerved to its right into the path of the vehicle in which plaintiff was riding, and even though the driver of the vehicle in which plaintiff was riding attempted to avoid a collision, a collision between the said trailer and the vehicle in which the plaintiff was riding did occur, the two vehicles striking with great force and violence. As a result of such collision, and the hereinafter described acts of negligence on the part of the defendant, the plaintiff sustained the hereinafter described injuries and damages.”

Plaintiff alleged that Defendant Yenaw-ine “. . . was guilty of the following acts and omissions, each of which was negligence .

1. The defendant drove his vehicle at a speed and in a manner that was not reasonable or prudent under the circumstances then existing.
2. The defendant drove his vehicle at a speed and in a manner that he was not able to control the actions of the trailer which he was pulling.
3. The defendant drove a vehicle which was not equipped with tires that were in a reasonably safe and driveable condition.”

Defendant answered plaintiff’s suit by general denial in June of 1974, and later, after the case had been set down for trial on October 11, 1976, filed his first amended original answer on October 1, excepting to the “three allegations of negligence . [as being] . . . vague, indefinite, and do not apprise the defendant with sufficient particularity of the alleged conduct on his part which the plaintiff says is negligence.”

Defendant further alleged that at the time of the accident he “. . . was confronted with an emergency situation which arose suddenly and unexpectedly and without negligence on his part, when the vehicle he was driving sustained a blowout, causing the vehicle and the trailer which he was pulling to go out of control.”

At a hearing on defendant’s special exceptions held October 7 the trial court sustained defendant’s exceptions and granted plaintiff leave to amend. Plaintiff declined to amend, and the cause was dismissed by order entered October 12, 1976. Meanwhile, between the date of the hearing and date of the order of dismissal, the defendant on October 11 filed a supplemental answer in which exceptions to plaintiff’s allegations of negligence were more specific than the exceptions filed in the first amended original answer. The order of October 12, by which suit was dismissed, recited that the court heard the exceptions on October 7 and that “after reading the pleadings and hearing the arguments of counsel thereon, the court is of the opinion that all the defendant’s exceptions as contained in his amended original answer herein are well taken and should be sustained.” (Emphasis added).

Appellant contends on appeal that only defendant’s exceptions filed October 1, in the first amended answer, were sustained by the trial court, and that the more detailed exceptions, filed four days after the hearing, came too late and were not the exceptions sustained in the court’s order of dismissal on October 12. Defendant as ap-pellee insists that the supplemental answer was timely filed before entry of the order of dismissal, and that language in the order indicates the court considered the supplemental answer before ordering dismissal of the cause. Appellee also says the subsequent filing of more specific exceptions was pursuant to agreement between counsel for the parties.

Appellant brings two points of error. Under the first point appellant’s position is that the trial court erred in sustaining the special exceptions, which were insufficient. Under the second point appellant urges error in dismissing the case on the basis that plaintiff’s pleadings were adequate.

We will sustain appellant’s second point of error and order the cause reinstated on the district court docket.

Broad discretion is vested in trial courts in hearing, construing, and sustaining special exceptions to pleadings, and the trial court’s ruling on the exceptions will not be disturbed on appeal in absence of showing abuse of discretion resulting in injury. H. O. Dyer, Inc. v. Steele, 489 S.W.2d 686 (Tex.Civ.App. Houston 1st 1972, no writ); U. S. Fidelity & Guaranty Co. v. Hernandez, 410 S.W.2d 224 (Tex.Civ.App. Eastland 1966, writ ref’d n. r. e.); Southern Underwriters v. Hodges, 141 S.W.2d 707 (Tex.Civ.App. Waco 1940, writ ref’d).

When special exceptions addressed to the pleadings are sustained, the pleader may amend to meet the exceptions or refuse to amend and test validity of the ruling on appeal. McCamey v. Kinnear, 484 S.W.2d 150, 152 (Tex.Civ.App. Beaumont 1972, writ ref’d n.r.e.), and cases there cited. If the plaintiff refuses to amend, as in the present case, an order dismissing the case with prejudice is proper. Farias v. Besteiro, 453 S.W.2d 314 (Tex.Civ.App. Corpus Christi 1970, writ ref d n.r.e.). An appellate court must look to the rules of civil procedure and the body of case law which provides standards against which the pleadings are to be measured.

Under Rule 45, Texas Rules of Civil Procedure, pleadings “. . . Consist of a statement in plain and concise language of the plaintiff’s cause of action or the defendant’s grounds of defense.” The Rule further provides, “That an allegation be evi-dentiary or be of legal conclusion shall not be ground for objection when fair notice to the opponent is given by the allegations as a whole.” (Emphasis added).

Rule 47 requires that a pleading contain “. . .a short statement of the cause of action sufficient to give fair notice of the claim involved . . .” (Emphasis added). McDonald characterizes the emphasis in Rule 45 as “. . .a thoroughly practical test: Does the pleading give adequate notice?” 2 McDonald, Texas Civil Practice, sec. 5.05, p. 13 (1970).

In defining fair notice and in measuring the adequacy of a pleading against that standard, Texas courts consistently indicate that to force a party to plead his entire case, with exactness, is not concordant with the spirit of the Rules governing pleading. The party excepting to a pleading has the burden to show that fair notice of the facts upon which the pleading is based has not been given the party excepting, and the burden is greater because the Rules of pleading uniformly condemn forcing a plaintiff to plead the evidence upon which plaintiff relies to prove the allegations of the pleadings. King v. Harris County Flood Control Dist., 210 S.W.2d 438 (Tex.Civ.App. Galveston 1948, writ ref’d n. r. e.); Andrews v. Daniel, 240 S.W.2d 1018, 1021 (Tex.Civ.App. Austin 1951, writ dism’d).

Under Rules 45 and 47, certainty in the incident giving rise to the controversy is required in the pleadings more than certainty in the issues, as stated by McDonald. 2 McDonald, Texas Civil Practice, sec. 5.07.2, p. 22 (1970). This statement of the rule, together with the language immediately following it, met with approval of this Court in 1954: “. . . the time and place of the transactions involved and the circumstances of the occurrence which forms the basis of the controversy are to be stated with such particularity as will permit the opponent to identify the source and estimate the general scope of the dispute.” Pacific Finance Corporation v. Moody, 272 S.W.2d 403, 408 (Tex.Civ.App. Austin 1954, no writ).

Fair notice as used in the Rules has been given if the pleadings are sufficiently specific that “. . .an opposing attorney of reasonable competence, with the pleadings before him, can ascertain the nature and the basic issues of the controversy and the testimony probably relevant.” 2 McDonald, sec. 5.05, p. 16 (1970). The test, as stated in this language, was applied in Daniels v. Conrad, 331 S.W.2d 411, 415 (Tex.Civ.App. Dallas 1959, writ ref’d n. r. e.).

It has been held that allegations setting out each element of the cause of action are sufficient to give fair notice. Union Producing Company v. Allen, 297 S.W.2d 867, 870 (Tex.Civ.App. Beaumont 1957, no writ); Gunnells Sand Company v. Wilhite, 389 S.W.2d 596, 598 (Tex.Civ.App. Waco 1965, writ ref’d n. r. e.). In negligence cases when pleadings are properly struck down, therefore, it is because there has been no allegation of a crucial element of the cause of action such as facts or circumstances from which it could be found that the defendant breached any duty owed, or any act or omission that could constitute negligence. White v. Jackson, 358 S.W.2d 174, 176 (Tex.Civ.App. Waco 1962, writ ref’d n. r. e.); DeKalb Hybrid Seed Co. v. Agee, 293 S.W.2d 64 (Tex.Civ.App. Beaumont 1956, writ ref’d n. r. e.); Radcliff v. Clemons, 265 S.W.2d 182 (Tex.Civ.App. Galveston 1954, writ ref’d n. r. e.).

The important distinction between what is necessary to constitute adequate notice and what exceeds that standard unnecessarily was stated clearly by the Supreme Court in Arkansas Fuel Oil Co. v. State, 154 Tex. 573, 280 S.W.2d 723, 725 (1955) in this language: “Under Texas pleading a petition should allege the ultimate facts constituting the elements of the cause of action relied upon, but it need not be evidentiary. In general, counsel can, if he wishes, say nothing in advance about the evidence he intends to offer to prove the allegation of his petition. Usually he lets the court and his opposition learn the nature of his evidence as he develops it during the trial.”

In the present case appellant as plaintiff alleged three acts, any of which could constitute negligence, and thereby satisfied the requirement that this essential element be alleged. In brief, these elements were improper speed, inability of the driver to control the trailer due to improper speed, and driving with unsafe tires. Plaintiff also alleged in another paragraph that the accident occurred “for reasons unknown to the plaintiff.”

Texas courts have upheld the pleading when the technical elements of a cause of action, without allegations of ultimate facts to be proved, were alleged in the petition. Pleadings have been held sufficient alleging “failure to keep a proper lookout,” that “defendant is liable to plaintiff under the doctrine of discovered peril,” and that defendant “failed to exercise the means then and there at his command to avert said collision.” Andrews v. Daniel, 240 S.W.2d 1018, 1020 (Tex.Civ.App. Austin 1951, writ dism’d). Similarly, the pleading alone of “failure to keep a proper lookout” was upheld because, the court reasoned, plaintiff pleaded the facts as far as he could and because the pleading was sufficient to allow development of facts which showed the particulars. Panhandle & Santa Fe Ry. Co. v. Dean, 269 S.W.2d 439, 441 (Tex.Civ.App. El Paso 1954, writ ref’d n. r. e.).

We hold that plaintiff properly pleaded negligence, and the pleadings were sufficient for development of facts to show the particulars. Allegations that defendant was driving a vehicle at a speed greater than was reasonable and prudent under the circumstances, having due regard to the actual and potential hazards then and there existing, were held sufficient to allege negligence in Blaugrund v. Gish, 179 S.W.2d 257 (Tex.Civ.App. El Paso 1943, aff’d, 142 Tex. 379, 179 S.W.2d 266), and loss of control of the vehicle has been recognized as proper proof of this type of negligence in Union Transports, Inc. v. Braun, 318 S.W.2d 927 (Tex.Civ.App. Eastland 1958, no writ). From plaintiff’s petition, counsel for defendant will be able to identify the source and estimate the general scope of the dispute, as well as ascertain the nature and the basic issues of the controversy and the testimony that probably will be relevant. For these reasons, fair notice has been given by plaintiff’s pleadings. See Daniels v. Conrad, supra.

Because we have held that appellant’s pleadings as plaintiff below were sufficient and the trial court erred in sustaining defendant’s exceptions, we do not reach and do not decide whether the special exceptions were adequately pleaded.

Judgment of the trial court is reversed. The cause is remanded for reinstatement on the trial court docket and for further proceedings.


author: JONES, Justice.

text:
    David C. BRODIE, Executor & Trustee, Etc., Appellants, v. Olive DeVATZ et al., Appellees. Jeffrey STARKEY, an infant, and the unknown issue of Olive DeVatz, Appellant, v. Olive DeVATZ et al., Appellees.
    Nos. 76-256 and 76-304.
    Supreme Court of Kentucky.
    Oct. 7, 1977.
    David C. Brodie, Owensboro, pro se.
    Mark L. Moseley, Owensboro, for appellant Jeffrey Starkey.
    Ronald M. Sullivan, Owensboro, for ap-pellees Olive DeVatz et al.
   JONES, Justice.

This appeal involves the interpretation of a provision in the will of Hallie B. Hunt relating to the payment of federal estate taxes, state inheritance taxes, and the expense of administration.

The will was drafted by David C. Brodie on July 31, 1967. By provisions of the will, Brodie was named executor and trustee. Hallie B. Hunt died February 3,1975, at the age of 86.

Brodie filed an action in the circuit court. He sought a declaration of his rights and duties as fiduciary. Several questions were involved. All of them were resolved and agreed on except this tax question:

Should the federal estate and Kentucky inheritance taxes on non-probate estate consisting of gifts in expectation of death or joint property with right of survivorship be borne by the estate or by the recipients of the non-probate property?

The trial court held that Brodie, as executor and trustee, should pay all federal estate taxes, state inheritance taxes and expenses of administration from the gross estate. Brodie was not satisfied with the trial court’s judgment and prosecutes this appeal. He contends that the taxes and expenses should be borne by the recipients of what he designates as non-probate property.

Hallie B. Hunt was survived by two sisters, Olive DeVatz and Katherine MacGre-gor. She created a trust to each of the residue of her estate. The ultimate beneficiaries of the trust following the death of Olive and Katherine are “the issue of Olive DeVatz.” At the time the matter was before the trial court, the issue of Olive De-Vatz were a daughter who has three living adult children and a grandson who was a minor. All of these were joined as parties defendant and were properly before the court. In their answer they requested the trial court to rule that federal and state taxes be paid by Brodie from the estate, rather than by Olive and Katherine from their inheritance.

The non-testamentary property on which federal estate taxes and state inheritance taxes are owed consists of jointly-owned certificates of deposit, U. S. Series E. Bonds in the name of Hallie or Olive and Hallie or Katherine. At the time of Hallie’s death, the certificates and bonds were in her safety deposit box. She had received the income from them until her death. Also, Hallie had made gifts of certain interests in real estate to Olive and Katherine in expectation of death. These, of course, were subject to inheritance and estate taxes.

In construing the provision of Hallie B. Hunt’s will relating to the payment of taxes and expenses, her intention should be determined from what she says in the will.

The pertinent part of the will relating to the question as to the payment of estate and inheritance taxes is as clear and as manifest as the nose on a man’s face. Hallie’s will provided: “I direct my fiduciary to pay all federal estate taxes, state inheritance taxes and expenses of administration out of my gross estate prior to its distribution as hereinafter provided.” (Emphasis added).

This court has concluded that the rule adopted in the case of University of Louisville v. Liberty Bank & Trust Co., Ky., 499 S.W.2d 288 (1973), is more applicable to the language of the will in this case and is dispositive of the issue presented.

The intention of Hallie B. Hunt is clear and concise. That intention is contained in the will, from the plain meaning of the words she expressed. She intended that Brodie, as executor and trustee, would pay federal estate, state inheritance taxes, and costs of administration from her gross estate prior to further distribution to the devisees.

The judgment is affirmed.

All concur.