author: YOUNG, Justice.

text:
    RETAMA MANOR NURSING CENTERS, INC. and GERIATRICS, INC., Appellants, v. Lee Roy COLE, d/b/a Lee Roy Cole Contractor, Appellee.
    No. 1353.
    Court of Civil Appeals of Texas, Corpus Christi.
    May 10, 1979.
    Rehearing Denied May 31, 1979.

      Lev Hunt, Kleberg & Weil, Corpus Christi, for appellants.
    Steve Q. McManus, Kilgore, Cole & McManus, Victoria, for appellee.
   OPINION

YOUNG, Justice.

In this case Lee Roy Cole, d/b/a Lee Roy Cole Contractor, appellee, sued Retama Manor Nursing Centers, Inc. and Geriatrics, Inc., appellants, for lost profits incurred when the appellants repudiated contracts to construct a nursing home addition.

Trial was to the court with a jury which found that Cole and the appellants had entered into two different oral contracts, that they had been breached, and that Cole sustained lost profits in the amount of $50,-000.00. Appellants filed a motion for judgment notwithstanding the verdict which was denied, and judgment was entered on the verdict. Appellants then filed their motion for new trial; this also was denied. Retama and Geriatrics appeal. We affirm.

The record fairly reflects the following facts. Appellants, Retama and Geriatrics, owned a nursing home in Alice, Texas. Geriatrics, based in Greely, Colorado, parent company and sole owner of Retama, was exploring the possibility of expanding the Alice nursing home. Harry Asmus, president of both Geriatrics and Retama and member of the board of directors of Reta-ma, employed William L. Dassler, an architectural designer of Loveland, Colorado, to prepare plans and specifications for a 60-bed addition. Bids were accepted for the addition on June 5, 1974. Dassler, representing the appellants, flew to Alice, Texas, opened the bids of the four bidding contractors, and notified all contractors that their bids, the lowest of which was $460,000.00, were far in excess of the $400,000.00 price at which the addition could be financially feasible. Appellee’s bid had been the lowest of the four bids. Dassler returned to Colorado and conferred with Harry Asmus concerning the bids.

Soon thereafter, Asmus and Dassler arranged a conference call with Cole and told him that Dassler would be going to Corpus Christi to confer with Cole in order to change the plans and specifications so that the addition might be built less expensively. The record indicates that Asmus told Cole to make his deals with Dassler, although Cole knew that Asmus had to approve any negotiations and deals made with Dassler. During the week of July 15 through July 19,1974, Dassler and Cole met several times and made substantial alterations to the original plans and specifications. This included changing the floor plan for a 60-bed addition to a 74-bed addition.

Cole prepared a written proposal stating that he would build the 74-bed addition for $406,900.00, that the agreement would be based upon A.I.A. form contract A-101, that the bid was guaranteed for ten days from July 19, 1974, and that he would build the addition in 180 days according to the revised plans and specifications dated July 18, 1974. Dassler called Asmus from Corpus Christi and conferred with him concerning the changed price. Asmus said the price was acceptable and Dassler related this information to Cole. But, Cole knew at this point that until Dassler talked with Asmus in Colorado that they did not have an agreement. Dassler returned to Colorado with the proposal and revised plans and presented them to Asmus.

At this point in the testimony the evidence is markedly conflicting. Asmus contended at trial that he received the bid and plans, filed them, and later presented them to the Geriatrics planning committee, which decided that the proposal was too expensive. Dassler testified that Asmus received the proposal and told Dassler that the attorneys for Geriatrics would have to draw up a contract before any final agreement could be entered into. On the other hand, Cole testified that Dassler returned to Colorado on Friday, July 19, 1974, and called Cole on or about Monday, July 22, 1974, and told him the following: that he (Dassler) had met with Asmus and that Asmus had agreed to the changes; that Cole had a contract; that Cole should begin ordering those items which were rapidly increasing in price; that Cole should initiate all other necessary preparation to begin construction on August 20, and that Asmus could not sign a written contract until August 20, 1974, because Geriatrics was involved in a merger. Cole stated that a few days later Dassler called him back and asked him to prepare a written contract and send it to Asmus. During this call, Dassler also guaranteed Cole that the appellants would sign the written contract on or before August 20, 1974. Cole was unable to procure an A.I.A. form contract A — 101, so he called Dassler and asked him if an A.I.A. form contract A-107 would be acceptable; Das-sler agreed that it would. So Cole wrote up the contract on an A — 107 form and mailed it to Colorado to be signed.

Cole further claimed he talked to Asmus some time around the period from July 29 through August 2, 1974, to obtain directions on having certain powerlines removed so that he could begin construction. Asmus apparently told Cole that he was busy, that “Bill is handling it” and to “make his deal with Bill.” Apparently, Dassler then called Cole and told him to have the lines removed so that he could begin by August 20. As-mus sent Cole a “plot plan” to show Central Power & Light that he had authority to have the lines removed and where the boundaries were located. Cole subsequently mailed the written contract to Asmus on August 3, 1974. During this time Cole had begun ordering some of the materials for the building.

On August 20, 1974, Cole called Dassler and asked about the signed contract. Das-sler informed Cole that Asmus was in Corpus Christi and that he could have Asmus personally sign it there. Cole visited As-mus in Corpus Christi and Asmus refused to sign the contract and denied any agreement to build the addition. This suit followed.

In response to special issues the jury found: 1) and 2) that Bill Dassler and Harry Asmus had authority as agents to bind the appellants in a contract to construct the 74-bed addition; 3) and 5) that the appellants entered into an oral agreement to build the addition and an oral agreement to enter into a written contract to build; 4) and 6) that the appellants anticipatorily breached one agreement and breached the other agreement; and 7) that appellee’s damages, measured in lost profits, were $50,000.00.

Appellants bring eight points of error. Point 1 complains that the trial court erred in rendering judgment against appellants because the statute of frauds barred the enforceability of the oral contracts herein. We disagree.

About the second of the two oral agreements; i. e., the oral agreement to sign a written contract, the evidence indicates that the terms of the purported oral contract were in conformity with A.I.A. form contract A — 107. Article 23 of A — 107 states that the contractor shall remedy any defect in materials or workmanship up to a period of one year from the date of substantial completion of the project. Generally this provision makes the contract within the contemplation of the statute of frauds because the contract could not be fully performed within the period of one year from the making of the contract. Tex.Bus. & Comm.Code Ann. § 26.01(b)(6) (Supp.1978) , Page & Wirtz Construction v. Van Doran, 432 S.W.2d 731 (Tex.Civ.App.—Amarillo 1968, writ ref’d n. r. e.).

Appellee contends, though, and we agree, that promissory estoppel precludes application of the statute of frauds to this case. The Restatement of Contracts § 178 Comment f (1932) recognizes that the doctrine of promissory estoppel may preclude a defense based upon the statute of frauds in these words:

“Though there has been no satisfaction of the Statute, an estoppel may preclude objection on that ground in the same way that objection to the non-existence of other facts essential for the establishment of a right or a defense may be precluded. . . . and a promise to make a memorandum, if similarly relied on, may give rise to an effective promissory estoppel if the statute would otherwise operate to defraud.” (Emphasis supplied).

“Moore” Burger, Inc. v. Phillips Petroleum Company, 492 S.W.2d 934, 937 (Tex.Sup. 1972).

The jury found, and the evidence supports the conclusion, that the appellants, through their agents, promised to sign Cole’s written agreement on August 20, 1974. Furthermore, Cole repeatedly stated that he relied on the appellants’ promise to sign the written contract by ordering materials, incurring expenses, having powerlines moved and drafting the contract. Accordingly, in order to avoid an unjust result the promise should be enforced as if it had been signed. H. Molsen & Co., Inc. v. Hicks, 550 S.W.2d 354 (Tex.Civ.App. — El Paso 1977), writ ref’d n. r. e.); See Annot. 56 A.L.R.3d 1037 (1974).

Appellants disagree with that conclusion. They submit that the terms of the oral agreement, which the appellants purportedly promised to sign, are indefinite and that an agreement to make an agreement is unenforceable if the agreement is indefinite and uncertain as to essential terms. See Radford v. McNeny, 129 Tex. 568, 104 S.W.2d 472 (1937, opinion adopted); Traweek v. Radio Brady, Inc., 441 S.W.2d 240 (Tex.Civ.App.—Austin 1969, writ ref’d n. r. e.). We agree with this general rule, but we find in the instant case that there was sufficient evidence that the parties had agreed on the essential terms which were embodied in the writing Cole sent Asmus to sign. It included such things as the contract price, time for payment, reference to plans and specifications, materials, location, length of construction, and other various terms and conditions. When Cole was asked at trial if the writing reflected the agreement he had reached with Dassler, he replied, “Yes.” We find the terms and conditions incorporated in the written contract, which manifested Cole’s oral agreement, to be sufficiently definite to render the oral contract to sign the written contract enforceable. See Scott v. Ingle Bros. Pacific, Inc., 489 S.W.2d 554, 556 (Tex.Sup.1972).

In connection with our overruling this point 1 we also find that the parties entered into an oral contract on July 22, which was not subject to the statute of frauds. The proposal submitted on July 19, 1974, stated that the agreement would be according to A.I.A. form contract A-101. This particular form, though its provisions are similar to form contract A-107, does not contain nearly as many articles as the form contract A-107; e. g., it does not contain the one year workmanship guarantee. Thus, the provisions of this particular contract would have been performable within one year and not subject to the statute of frauds in any event.

We also find that the terms of the July 22 oral contract were sufficiently definite to form a binding contract. The price and the plans and specifications had been agreed upon. Moreover, the proposal Dassler took with him to Colorado on July 19, 1974, stated that the work would be completed within 180 days and the parties agreed at that time that Cole should prepare to begin construction on or about August 20, 1974. As to the schedule of payments, page 1 of the general conditions in the specifications provided for the method and timing of payments. Appellants’ point 1 is overruled.

Appellants’ points 2 and 3 contend that there was no evidence and insufficient evidence of Dassler’s authority to enter into any binding contract. These contentions are also without merit.

We note here that the appellants have not brought any points of error chai-lenging the jury’s second fact finding that Asmus had authority to bind his principals in the oral contracts herein. A fact finding not challenged on appeal by a proper point of error is binding on the appellant. See Cortez v. Cortez, 457 S.W.2d 131 (Tex.Civ. App.—San Antonio 1970, no writ).

In connection with the determining of Dassler’s authority, we will first briefly consider Asmus’ authority. It is undisputed that an agent’s status in a corporation as its president or as a member of the board of directors does not give him power to bind the corporation except as to routine matters arising in the ordinary course of business. American Bank & Trust Co. v. Freeman, 560 S.W.2d 444 (Tex.Civ.App.—Beaumont 1977, n. r. e.); Templeton v. Nocona Hills Owners Association, 555 S.W.2d 534 (Tex. Civ.App.—Texarkana 1977, no writ).

“. . . [Tjhere must be action of the board of directors of the corporation either in performing the act or authorizing someone else to perform it. It may be that such authority may at times be inferred from the circumstances surrounding the acts, . . .” Southern Kansas Ry. Co. of Texas v. Logue, 139 S.W. 11, 14 (Tex.Civ. App.—San Antonio 1911), affirmed, 167 S.W. 805 (Tex.Sup.1914). We find that As-mus’ authority can be inferred from the circumstances surrounding the subject contracts. More specifically, under this record we think the silence of the board of directors and their acquiescence in the transactions which preceded and followed the oral contracts to be sufficient evidence of apparent authority. See Traylor v. Gray, 547 S.W.2d 644, 652 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n. r. e.); Brown v. Grayson Enterprises, Inc., 401 S.W.2d 653, 656 (Tex.Civ.App.—Dallas 1966, writ ref’d n. r. e.). The record is replete with Asmus’ actions in connection with the formulation and actuation of the appellants’ plans to build the addition in Alice. Asmus hired Dassler; authorized Dassler to open the bids in Alice; later authorized Dassler to spend a week in Corpus Christi negotiating with Cole for a construction contract; authorized Dassler to tell Cole that the contract price was acceptable; and later authorized Dassler to call Cole and tell him that he had a contract. During this period of time the directors of both corporations made no effort to stop these activities but actually sat by and received the benefits of Cole’s knowledge in preparing the plans and his efforts in preparing the site for construction. Even Asmus himself, after listening to all the testimony at trial responded as follows:

“Q Now, Mr. Asmus, if you do all the things Mr. Dassler did when he came down here and negotiated with Mr. Cole, and you have been sitting here listening to this trial, and you know what the testimony is about what Mr. Dassler did, don’t you think it would be reasonable for a person like Mr. Cole to rely on Mr. Dassler?
A I would have to say it could be reasonable, yes.”

Thus, we find sufficient evidence to support the trial court’s finding that Asmus possessed authority to enter into these contracts.

As to Dassler’s authority, we find the evidence sufficient to support a finding of apparent authority to bind the appellants according to the following pronouncement of the applicable principles:

“The doctrine of apparent authority is based on estoppel, and one seeking to charge a principle through the apparent authority of an agent to bind the principle must prove such conduct on the part of the principal as would lead a reasonably prudent person, using diligence and discretion, to suppose that the agent has the authority that he purports to exercise.”

Chastain v. Cooper & Reid, 257 S.W.2d 422, 427 (Tex.Sup.1953).

Dassler was involved in nearly all negotiations leading up to the making of the oral contract herein. It is reasonable to deduce that all of the transactions mentioned earlier, when taken together, would be sufficient to lead a reasonably prudent person to believe that Dassler had the authority he purported to exercise to enter into the July 22 oral contract and to enter into the oral contract to execute a written contract. Appellants’ points 2 and 3 are overruled.

Appellants’ points 4 and 5 assert that there was no evidence and insufficient evidence to support the finding of an oral contract. After reviewing the entire record which has heretofore been summarized we find sufficient evidence of both an oral contract entered into on July 22, 1974, and an oral contract to sign a written contract entered into a few days later. Appellants’ points 4 and 5 are overruled.

Appellants’ points 6 and 7 contends there was no evidence and insufficient evidence to support the submission of issue No. VII which reads as follows:

“SPECIAL ISSUE NO. VII
Find from a preponderance of the evidence the sum of money, if any, which the defendants are indebted to plaintiffs as a result of the anticipatory breach, or the breach of their agreement, if any. Answer in dollars and cents.
$50,000.00
You are instructed in this regard that the measure of damages is the profit which the plaintiff would have made from full performance by the defendants.”

More particularly, appellants complain that the appellee failed to prove any prior history of profits as was discussed in Southwest Battery Corporation v. Owen, 131 Tex. 423, 115 S.W.2d 1097 (1938). We find, however that the instant case does not demand proof of prior profitability for the appellee to recover. In Owen, the controversy involved the breach of a contract to provide batteries to a distributor. The distributor sued for lost profits when it was forced to go out of business for lack of a supply of batteries. In that case it was necessary to prove prior profitability to show that future sales would have been made on a profitable basis, especially where the plaintiff has been forced out of business. Compare 17 Tex.Jur.2d, Damages § 148 (1960).

In the present case, however, we are dealing with a single contract covering one transaction in which both parties were committed to a definite price in exchange for certain materials and services, Consequently, the potentiality for profits is not nearly as speculative as in Owen, supra, and lost profits can be measured by the difference between the contract price and what it would have cost the contractor to perform the contract in accordance with the plans and specifications. Deal Dev. Co. v. Amarillo Concrete Contractors, 554 S.W.2d 294, 296 (Tex.Civ.App.—Waco 1977, no writ); Farris v. Smith Erectors, Inc., 516 S.W.2d 281, 283-84 (Tex.Civ.App.—Houston [1st Dist.] 1974, no writ); Carras v. Birge, 211 S.W.2d 998, 1003 (Tex.Civ.App. — Dallas 1948, writ ref’d n. r. e.). At the trial Cole testified about the contract price and then expounded upon the bid estimation sheet he used to arrive at a figure for his bid and his profit of approximately $83,000.00. We think this evidence is sufficient to support the jury’s award of $50,000.00 in lost profits. Appellants’ points 6 and 7 are overruled.

Appellants’ point 8 argues that the trial court erred in refusing to submit to the jury the following tendered special issue:

“SPECIAL ISSUE NO. II
Do you find from a preponderance of the evidence that Plaintiff and Defendants on or about July 22, 1974, intended that any agreement entered into by them orally should be embodied in a writing and signed by them before such agreement was binding?
Answer: ‘We do’ or ‘We do not’.
Answer_”

The above issue is in the nature of an inferential rebuttal issue to the two issues submitted to the jury asking whether Cole and the appellants’ agents had entered into oral contracts. See Hodges, Special Issue Submission In Texas § 15 (1959). Inferential rebuttal issues should not longer be submitted. Rule 277, T.R.C.P. Appellants’ point 8 is overruled.

Appellee brings a single cross point which we need not consider in light of our decisions on appellants’ points.

The judgment of the trial court is affirmed.

      . “(a) A promise or agreement described in subsection (b) of this section is not enforceable unless the promise or agreement, or a memorandum of it, is
      (1) in writing; and
      (2) signed by the person to be charged with the promise or agreement or by someone lawfully authorized to sign for him.
      (b) Subsection (a) of this section applies to: ⅝ * ‡ ⅜ # ⅜
      (6) an agreement which is not to be performed within one year from date of making the agreement; . . .


source: Caselaw Access Project

author: McCLOUD, Chief Justice.

license: Public Domain

text:
    Hardy GAGE, Appellant, v. G. E. LANGFORD et al., Appellees.
    No. 5193.
    Court of Civil Appeals of Texas, Eastland.
    May 10, 1979.
    Rehearing Denied June 7, 1979.

      Randy J. Hall, Fillmore & Camp, Fort Worth, for appellant.
    Frank Jennings, Jennings, Montgomery, Dies & Turner, Graham, W. G. Thompson, Harrell, Thompson & Cook, Breckenridge, for appellees.
   McCLOUD, Chief Justice.

Plaintiffs, G. E. Langford, F. L. Livingston, and Bill Briscoe, sued defendant, Hardy Gage, for the unpaid balance on a promissory note, signed by Gage, in the original principal sum of $550,000. Gage answered seeking cancellation of the note because of fraud and failure of consideration. He alternatively sought offsets and filed a cross action for damages resulting from the alleged fraud. Following a jury trial, the court rendered judgment for plaintiffs for $229,922.18 (which represented the unpaid balance found by the court minus a credit of $89,250 found by the jury) plus accrued interest of $77,774.55, and attorney’s fees of $76,924.18. Gage has appealed. We reverse and remand.

The $550,000 note, dated April 1, 1974, was made payable within ninety days to G. E. Langford, but was owned by all three plaintiffs. The note was executed in connection with a written “Contract of Sale” dated April 1,1974, between Gage and G. E. Langford, by his “Agent and Attorney-in-Fact,” F. L. Livingston. All plaintiffs concede they are bound by the contract.

The “Langford-Gage” agreement which designated G. E. Langford, seller, and Hardy Gage, buyer, provides in part:

Buyer agrees to pay seller Five Hundred Fifty Thousand Dollars ($550,000.00) due ninety (90) days from date hereof at interest of 9 percentum per annum. Seller agrees to assign to buyer the following oil, gas and mineral leases, the location of each being well known to the parties hereto, to-wit:
(A) Archer County Leases :
1. O. C. Sherley Lease
2. Campbell “AA” and “BB” Leases
3. Wright Campbell Lease
(B) Jack County Leases :
1. Shown Lease
2. D. R. Sewell Lease
Buyer shall bear all expenses of operations carried on or incurred in connection with the five (5) leases in Archer and Jack Counties, being the first 5 leases hereinabove mentioned, from and after the date of this contract; provided, however, that in addition thereto, all expenses incurred by seller on these 5 leases shall be reimbursed by seller to buyer (sic) [buyer to seller], such expenses being incurred in connection with services and expenses incurred in connection with plugging and pulling rods, tubing and casing from said leases.
Seller shall allow buyer credit for the gross sale price of all pipe sold under seller’s pipe contract with R. G. & R. M., Inc., et al., dated March 25, 1974, provided, however, that buyer is to reimburse seller for all expenses of seller in connection with such sales. Accordingly, any “net profit” on such sales of seller of said pipe shall apply to a reduction of the $550,000.00 note herein first above mentioned.
Seller shall assign or cause to be assigned to buyer the five (5) leases first above described upon payment of the total amount due to seller on the $550,-000.00 note after allowing buyer all credits to which he is entitled under this contract to be applied against said note. Accordingly, title to the oil, gas and mineral leasehold estate and personal equipment situated upon the 5 leases first above described shall not vest in buyer until seller has been fully paid therefor in accordance with this contract and the assignments provided for herein are delivered to buyer in accordance herewith.

The contract further provides for the sale of additional pipe which we find unnecessary to discuss.

The “R.G. & R.M., Inc., et al” contract referred to in the Langford-Gage agreement is a contract between G. E. Langford, as seller, and R.G. & R.M., Inc., and R. E. McElmurry and R. L. Gray, as buyer, which states that “seller” agrees to sell and “buyer” agrees to buy for a period of ninety days, at a stipulated price, “all the . casing . . . recoverable from abandoned wells which are being or are to be plugged off” the five leases in question.

Gage plugged and salvaged every well he was able to locate on the five leases. When the Langford-Gage agreement was entered into, only the Shown and Sewell leases were producing oil. Gage plugged the wells and salvaged the equipment located on those leases. At the time the agreement was entered into by the parties, there was a great demand for used pipe and the price was high. Within a few months after the agreement was signed, the price of used pipe dropped by about 50 percent, and the cost of pulling and plugging wells increased.

At the time of trial, plaintiffs tendered to Gage assignments of the leases in question. The leases were not “valid and subsisting.” They had all terminated because of lack of production. The parties stipulated that the jury would find “that the plugging of all of the wells on the leases involved in the Langford-Gage agreement prevented the plaintiffs from assigning leases to the defendant that were still in force and effect.” The jury found in Special Issue No. 5H that plaintiffs and defendant intended “that under the Langford-Gage agreement the defendant would receive an assignment only of leases that were salvaged out and had terminated.”

Gage contends that the Langford-Gage agreement is unambiguous on its face and, therefore, the intent of the parties is a question of law. He argues that upon application of the pertinent rules of construction, one meaning with regard to intent clearly emerges: Gage was to have received assignments of “valid and subsisting” oil and gas leases identified in the Langford-Gage agreement. We disagree.

We hold that the contract is ambiguous on its face and, therefore, the trial court did not err in submitting the question of the parties’ intent to the jury. After application of all pertinent rules of construction, the contract remains susceptible to more than one reasonable meaning. Trinity Universal Insurance Company v. Ponsford Brothers, 423 S.W.2d 571 (Tex. 1968); Universal C. I. T. Credit Corporation v. Daniel, 150 Tex. 513, 243 S.W.2d 154 (1951).

Gage points to the provisions in the contract unequivocally providing for the assignment of specified oil and gas leases as giving rise to the interpretation that the parties intended that Langford would assign to Gage existing and valid leases when Gage paid the note. Other portions, however, indicate that the purpose of the contract was to sell the pipe to be salvaged from the specified leases.

For instance, one paragraph provides that Gage is to reimburse Langford for expenses incurred by Langford in connection with pulling pipe and plugging wells on the leases. Another paragraph makes specific references to an extrinsic contract which is clearly a contract for the sale of salvaged pipe from the leases specified in the Lang-ford-Gage contract.

Thus, another reasonable interpretation derived from the face of the instrument is that the parties intended that the wells on the specified leases would be salvaged for pipe and plugged, and that the leases to be assigned would necessarily be terminated.

An interpretation that the parties intended to assign terminated leases is reasonable, assuming that the purpose of the contract was to sell salvaged pipe. The assignments to be made after Gage paid the note would evidence his right of ownership to the pipe salvaged.

The contract was drafted by Lang-ford’s attorney. We have applied the rule of strict construction against the drafter, together with other pertinent rules of construction, and find that the contract remains susceptible to more than one reasonable meaning on its face, and is therefore ambiguous. See Sale v. Contran Corporation, 486 S.W.2d 161 (Tex.Civ.App.—Dallas 1972, writ ref’d n. r. e.); Ervay, Inc. v. Wood, 373 S.W.2d 380 (Tex.Civ.App.—Dallas 1963, writ ref’d n. r. e.).

We hold that the court properly submitted Special Issue No. 5H inquiring as to the intent of the parties. There is evidence to support the jury’s finding to such issue, and the evidence is not factually insufficient. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The jury’s finding to Special Issue No. 5H established that there was no fraud, failure of consideration, or breach of contract in connection with the agreement to assign the five leases. The finding rendered immaterial other findings by the jury concerning representations by Livingston and reliance by Gage regarding the leases to be assigned. Since the issues were immaterial, the court properly disregarded the findings even though plaintiffs failed to comply with the procedure of Tex.R.Civ.P. 301. 4 McDonald, Texas Civil Practice § 17.31 (1971).

In a series of special issues, the jury found that F. L. Livingston fraudulently represented to Gage that there was a total of “271 salvage wells” located on the five leases under discussion. The jury further found that had the representation been true, Gage would in reasonable probability have recovered $99,568.69 in additional casing. However, based upon the definitions given by the court, the jury found that Gage “ratified” the Langford-Gage agreement by continuing to plug wells and salvage pipe after learning that he had acquired less than 271 wells to be pulled and plugged.

Gage seeks rescission of the contract and argues there is no evidence to support the ratification finding. Gage also argues the ratification definition was erroneous because it failed to include the requirement that the person ratifying an agreement must have full knowledge of all facts involved. We think the ratification finding is immaterial because under the facts of this case Gage has neither restored nor properly offered to restore the parties to their original status. A party seeking cancellation must restore, or offer to restore, the other party to the condition he occupied before the transaction. Texas Company v. State, 154 Tex. 494, 281 S.W.2d 83 (1955); 2 Pomeroy, Equitable Remedies § 2110 (2d ed. 1919); 10 Tex.Jur.2d, Cancellation of Instruments § 45 (1959); 13 Am.Jur.2d, Cancellation of Instruments § 39 (1964); 12 C.J.S. Cancellation of Instruments § 44 (1938). Gage has plugged and pulled every well he found on the five leases. The pipe has been sold. When the Langford-Gage agreement was entered into, the demand for used pipe and equipment was strong. The market value was high. Gage became the beneficiary, for 90 days of a favorable built-in market for the pipe under the R.G. & R.M. contract. Much of the pipe was sold by Gage after the R.G. & R.M. contract terminated, and after a substantial drop in the used pipe market and a significant increase in the cost of pulling the pipe. Gage offered to restore to plaintiffs what he received from the sale of the salvaged pipe and equipment, less his expenses in salvaging and plugging the wells. We hold that Gage’s offer fails to place the plaintiffs in the position they occupied before the transaction. Gage has failed to show that he is entitled to cancellation of the contract. DePuy v. Bodine, 509 S.W.2d 698 (Tex.Civ. App.—San Antonio 1974, writ ref’d n. r. e.).

The jury also found that by conduct inconsistent with an intention to sue for damages, Gage “waived” the right to sue as a result of acquiring less than 271 wells to be pulled and plugged. Gage argues there is no evidence to support the jury’s finding. We disagree. There is evidence to support the issue and accompanying definition as given. • Furthermore, the evidence is not factually insufficient to support the finding. In re King’s Estate, supra. We hold, however, the case must be reversed and remanded for a new trial because of the erroneous definition of “Waiver” given by the court. The jury was instructed that waiver “means the giving up, relinquishment, or surrender of some known right, and takes place where a man dispenses with the performance of something which he has a right to exact.” Gage properly objected to the definition given by the court and specifically pointed out that for waiver to occur a person must “intentionally” give up, relinquish or surrender some known right.

In Futrell v. Martin, 40 S.W.2d 946 (Tex. Civ.App.—Texarkana 1931, no writ), the trial court instructed the jury that the word “waiver” meant to relinquish a known right. The appellate court reversed and remanded the cause because the word “intentional” was not included in the definition. The court stated:

“Waiver” seems to be universally defined as “intentional relinquishment of a known right.” The court in this case omitted the word “intentional” in his definition as contained in the charge. .

The key element of waiver is “intent.” Massachusetts Bonding and Insurance Co. v. Orkin Exterminating Company, 416 S.W.2d 396 (Tex.1967); Kennedy v. Bender, 104 Tex. 1497, 135 S.W. 524 (1911); Heinrich v. Wharton County Livestock, Inc., 557 S.W.2d 830 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n. .r. e.); Rio Delta Land Company v. Johnson, 475 S.W.2d 346 (Tex. Civ.App.—Corpus Christi 1971 writ ref’d n. r. e.); Ferrantello v. Paymaster Feed Mills, 336 S.W.2d 644 (Tex.Civ.App.—Dallas 1960, writ ref’d n. r. e.); 60 Tex.Jur.2d Waiver § 7 (1964).

The court erred in giving a definition of waiver that omitted the essential element of intent.

In view of our holding, it would be inappropriate to discuss further the many points of error and cross-points urged by the parties. It would also not be proper to discuss the credits and offsets urged by the parties.

We do point out that we have carefully considered the appropriateness of a partial remand and partial retrial as permitted in limited cases under Tex.R.Civ.P. 434. We have concluded that a partial remand would not be proper.

Judgment of the trial court is reversed, and the cause is remanded for a new trial.


author: DICKENSON, Justice.

text:
    Archie JACKSON, Appellant, v. UNIVERSAL LIFE INSURANCE COMPANY et al., Appellees.
    No. 5309.
    Court of Civil Appeals of Texas, Eastland.
    May 10, 1979.
    Rehearing Denied June 7, 1979.

      James G. Clement, Irving, Jimmy L. Browning, Breckenridge, William A. Myers, Olney, for appellant.
    James Weeks, Byrd, Shaw & Weeks, Abilene, Bert T. McDaniel, Houston, Elliott S. Garsek, Barlow, Gardner & Tucker, Fort Worth, John Weeks, Robinson, Hanna, Moore & Holloway, Abilene, for appellees.
   DICKENSON, Justice.

Archie Jackson appeals from an order which imposed a penalty pursuant to Tex.R. Civ.P. 652 for his failure to pay the amount bid at a sheriff’s sale. We affirm.

Universal Fidelity Life Insurance Company and The Fort Worth National Bank of Fort Worth (judgment creditors) secured a judgment against Gaylon L. Hargrove and wife, Mary Sue Hargrove (judgment debtors), on May 24, 1977. An Order of Sale and Execution issued August 5, 1977. The judgment debtors then declared bankruptcy, and the proceedings were stayed. The judgment creditors’ claims were based on promissory notes secured by liens on real property owned by the judgment debtors. On April 10, 1978, the Bankruptcy Court entered an Order which permitted the posting of notice for an execution sale on June 6,1978, with the actual sale being subject to further orders of the Bankruptcy Court. On May 31, 1978, the Bankruptcy Court entered its Order setting aside the Stay of Enforcement and granting the judgment creditors the right to proceed with the execution sale in accordance with the Order of Sale and Execution from the District Court of Throckmorton County, Texas.

The sheriff’s sale was conducted on June 6, 1978, and Archie Jackson bid $175,000 for 585.3 acres of land. Jackson gave his personal check to the sheriff, but that check was not honored by his bank. It was returned with the notation: “Insufficient Funds.” The judgment creditors filed their motion pursuant to Tex.R.Civ.P. 652, and a hearing was held by the trial court on July 27, 1978. Jackson’s attorney and the judgment creditors’ attorneys stipulated in open court during that hearing that they had a “valid” sheriff’s sale on June 6,1978. Jackson’s attorney also stipulated in open court that “if the title to the property is clear, it would be worth $175,000.” Archie Jackson testified on direct examination at the hearing concerning the sheriff’s sale: that he saw a bunch of people and came over; that Don Parrish asked Jackson to bid on the place; that Parrish said he represented Lincoln Mortgage Company; that Parrish stood beside Jackson at the sale and told him how much to bid; that Parrish said it was too late to get the money there that day but that they could get the money there the next morning; that the money was not deposited to Jackson’s account as Parrish had agreed. On cross-examination, Jackson admitted that: he is the same Archie Jackson that bought the property at the sheriff’s sale; that his signature is on the check; that he did not have that much money in the bank; that he has not paid any money to the sheriff to make that check good; and that he made the bids.

The trial court entered an Order on September 25, 1978, granting judgment in favor of Universal Fidelity Life Insurance Company and The Fort Worth National Bank for the sum of $35,000 plus interest at the rate of 9% per annum. That Order was entered pursuant to Tex.R.Civ.P. 652 which provides that:

If any person shall bid off property at any sale made by virtue of an execution, and shall fail to comply with the terms of the sale, he shall be liable to pay the plaintiff in execution twenty per cent on the value of the property thus bid off, besides costs, to be recovered on motion, five days notice of such motion being given to such purchaser; and should the property on a second sale bring less than on the former, he shall be liable to pay to the defendant in execution all loss which he sustains thereby, to be recovered on motion as above provided.

Jackson has briefed four points of error, contending that the trial court erred in entering judgment for the penalty because: (1)appellees waived their right to payment of the penalty by agreeing to accept payment of the bid after the day of the execution sale; (2) appellant made a “good faith” effort to pay the amount of his bid; (3) there is no finding of record as to the value of the land; and (4) the trial court lacked jurisdiction to assess the penalty because of the bankruptcy proceedings. All four points of error are overruled.

The record does not support Jackson’s contention of waiver. On the day of the sale, Jackson signed a check for the amount of his bid and delivered it to the sheriff. The banks were closed at that time, and the check was not honored when it was presented for payment. He then became subject to the penalty.

Concerning the second point, we note the trial court’s finding of fact that: “. from the unbelievable testimony of Archie Jackson the court finds and is of the opinion that Archie Jackson bid on said land at the June 6, 1978, sale, knowing that he did not have the money to pay for same, for the purpose of hindering the judicial process of the State of Texas.” Moreover, the rule does not provide a “good faith” defense when a bidder fails to comply with the terms of the sale. Jackson cites no authority for his contention that “good faith” is a defense to a motion under Tex.R. Civ.P. 652. We hold that where a bidder fails to comply with the terms of an execution sale, he becomes liable under the express provisions of the rule, whether or not he acted in good faith.

The third point concerns the fact that there is no finding as to the value of the land. The record in this case contains a stipulation of counsel, which was made in open court, that the property would be worth $175,000, if the title to the property is clear. This agreement is binding under Tex.R.Civ.P. 11. Jackson failed to secure a finding by the trial court as to any title encumbrance. He did not offer any proof as to the amount of any such encumbrance. This defense was waived. Tex.R.Civ.P. 299.

Childress v. Ely and Walker, 489 S.W.2d 628 (Tex.Civ.App.—Texarkana 1973, no writ), concerned a judgment under Tex.R. Civ.P. 652 where the bidder gave a personal check to the sheriff and then stopped payment on the check. The court said:

A defaulting bidder is liable to the plaintiff in execution for a penalty of 20% of the net value of property bid off at execution sale under the provisions of Rule 652. Net value is determined by deducting all encumbrances from gross value. Shanley v. York, 54 Tex.Civ.App. 214, 118 S.W. 146 (Tex.Civ.App.1909, no writ); Borden v. Fahey, 56 Tex.Civ.App. 218, 120 S.W. 564 (1909, writ ref’d); error dism. Gilliland v. Cardinal, error dism. 44 S.W.2d 434 (Tex.Civ.App. Amarillo 1931, error dism.); Rule 652, supra. Proof of the amount of the encumbrance was defensive in nature, so Mr. Childress had the burden of proving the amount of the encumbrance indicated by the Financing Statement and failed to do so. The trial judge determined the property’s value from the only facts proven, (emphasis added)

The last point challenges the jurisdiction of the trial court in view of the bankruptcy proceedings. The trial court’s records at the hearing on July 27, 1978, included the Bankruptcy Order of April 10, 1978, but they did not then include the Bankruptcy Order of May 31, 1978, which set aside the stay as to the execution sale on the property at issue. We note, however, that all of the attorneys of record stipulated in open court during that hearing that there was a “valid sheriff’s sale on June 6, 1978.”

The judgment of the trial court is affirmed.


author: WALLACE, Justice.

text:
    Oscar FITE et al., Appellants, v. PORT CITY STATE BANK, Appellee.
    No. 17422.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    May 10, 1979.
    Parrish & Parrish, Angelo Parrish, Houston, for appellants.
    Sewell, Junell & Riggs, David Speed Elder, Houston, for appellee.
   WALLACE, Justice.

Appellee, Port City State Bank, moves to dismiss this interlocutory appeal of the denial of appellant’s application for a temporary injunction as moot. The injunction was sought to restrain appellee bank from disposing of appellant’s automobile in a non-judicial foreclosure sale.

Appellee by virtue of a security agreement had a security interest in appellant’s vehicle. Appellee previously sought a writ of sequestration alleging appellant was in default on the payment. The writ was denied as appellee misdescribed the automobile in question. Approximately eighteen months later appellee caused the automobile to be repossessed and appellant sought a temporary injunction to restrain any nonjudicial sale. No other relief was sought by appellant. The injunction was denied and is the subject of this appeal. Appellant did not seek an injunction from this court pending the appeal. Appellee not being under any court order restraining a sale, has in fact foreclosed on the lien and the automobile has been sold. Appellee now moves to dismiss this cause as moot.

Texas courts have consistently held that an appeal of the denial of a temporary injunction to restrain the sale of property becomes moot where the property is sold bona fide before there is an adjudication of the appeal. Service Finance Corporation v. Grote, 133 Tex. 606, 131 S.W.2d 93 (Tex. Comm’n App.1939, opinion adopted); State v. Jackson, 101 S.W.2d 346 (Tex.Civ.App.—Austin 1937, no writ); Prince v. North State Bank, 425 S.W.2d 476 (Tex.Civ.App.—Amarillo 1968, no writ); South Padre Development Co., Inc. v. Texas Commerce Bank National Association, 538 S.W.2d 475 (Tex.Civ.App.—Corpus Christi 1976, no writ). “A cause becomes moot when the appellate court’s judgment cannot have any practical legal effect upon a then existing controversy . . . ” 538 S.W.2d at 479. The subject matter of this appeal has ceased to exist. No order of this court could be made which would grant any effective relief regarding the order appealed from. Appellee’s motion is granted and this cause is dismissed.


author: EVANS, Justice.

text:
    CITY OF SHOREACRES, Appellant, v. STATE of Texas, Appellee.
    No. 17395.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    May 10, 1979.
    Rehearing Denied June 14, 1979.

      Michael T. Hay, J. D., Pasadena, for appellant.
    Mark White, Atty. Gen., Linda M. Wells, Thomas F. Aubry, Asst. Attys. Gen., Dick H. Gregg, Jr., Houston, for appellee.
    Before EVANS, WALLACE and WARREN, JJ.
   EVANS, Justice.

This is an appeal by the City of Shore-acres from a judgment entered in a consolidated proceeding involving three separate actions. In the first suit, the appellee, State of Texas, sought injunctive relief and civil penalties against the City of Shore-acres and the appellee, Bayshore Municipal Utility District, alleging violations of the Texas Water Quality permit jointly held by Shoreacres and Bayshore MUD and of the provisions of the Texas Water Quality Act, § 26.001 et seq., Texas Water Code Ann. (1972). In the two subsequently filed actions, Shoreacres sought to recover from Bayshore MUD the cost of treating Bay-shore MUD’s sewage during the period February 1, 1977, through August 31, 1978, and to enjoin Bayshore MUD from further injecting its sewage into Shoreacres’ sewage treatment plant.

The trial court, acting upon the recommendation and agreement of the parties, appointed a special master to investigate the parties’ waste treatment and disposal problems and to devise a long range solution for such problems. As an adjunct, the special master was also instructed to inquire into the reasonableness of the rates charged by Shoreacres to Bayshore MUD for the treatment of its sewage. The trial court’s order of appointment provided that the master’s report would not be binding upon either the court or the litigants and that the court, upon hearing, could either adopt the master’s recommendations or substitute its own judgment in the cause.

The special master subsequently filed his report with the trial court, expressing in considerable detail his findings and recommendations for a cost effective solution of the parties’ waste treatment problems. In his report, he recommended that both entities transfer all waste water to the City of La Porte for treatment and discharge, and, alternatively, that a joint treatment facility be constructed capable of discharging a satisfactory level of effluent into Galveston Bay. He recommended that if the parties could not jointly transfer or treat their waste, that each entity be given a reasonable time not to exceed 2½ years in which to comply with the Texas Water Code and applicable rules and regulations.

The State of Texas filed a response to the special master’s report urging the trial court to adopt the master’s first recommendation that the parties’ sewage be transferred to the City of La Porte for treatment. Shoreacres also filed a response, objecting to the adoption of the special master’s recommendations and urging alternative courses of action. Bayshore MUD did not file a written response, but it did urge adoption of the special master’s recommendations.

On October 2, 1978, following the submission of the special master’s report, the consolidated cause was tried to the court without a jury. The trial court subsequently entered its judgment of same date, finding that both Shoreacres and Bayshore MUD were in violation of the Texas Water Code and/or the rules, regulations, permits and orders of the Texas Department of Water Resources, and adopting the special master’s report. It ordered Shoreacres and Bayshore MUD to transfer all waste water to the City of La Porte for treatment and discharge within two years and six months from the date of the judgment and, within 90 days from the date of judgment, to execute contracts with the City of La Porte for such service and begin construction of the necessary connection systems. As an alternative to this mandate, and in recognition of Shoreacres’ request that it be released from further obligation to treat Bay-shore MUD’s waste water, the trial court ordered Shoreacres to upgrade its own sewage so as to produce effluent within the parameters of its discharge permit within two years and six months from the date of judgment, and decreeing that Shoreacres would have no further obligation to treat Bayshore MUD’s waste water, it directed (1) that the collection system between the two entities should be severed within one year from the date of judgment; (2) ordered that Bayshore MUD, within 90 days of the date of judgment, execute a contract with the City of La Porte for treatment of its waste water; (3) required Shoreacres to release its extraterritorial jurisdiction over Bayshore MUD; and (4) specified that within 2½ years of the date of judgment, both Shoreacres and Bayshore MUD would be required to produce effluent within the legal requirements of the Texas Water Code and the Texas Department of Water Resources. The trial court also determined the reasonable and proper rate to be charged by Shoreacres for treatment of Bayshore MUD’s waste water for the calendar year 1977 to be the sum of $2317.00 per month, and for the calendar year 1978, and until such time another manner of sewage treatment could be available to Bayshore MUD, to be the sum of $2439.00 per month.

In its first three points of error Shore-acres contends that the trial court exceeded its constitutional authority in specifying the particular manner and method of its compliance with applicable laws, rules, and regulations and in requiring, as an alternative to such compliance, that it relinquish its extraterritorial jurisdiction over Bayshore MUD. Under these points, Shoreacres argues that such matters are legislative in nature, and not judicial, and that the determination of such matters is vested exclusively in the governing body of the city government.

These points of error must be sustained. Clearly, the trial court was empowered to enjoin Shoreacres and Bayshore MUD from discharging effluent in violation of applicable laws, rules and regulations, and to impose civil penalties for such violations, and it was also authorized to order said parties to take appropriate action to assure future compliance with such laws. However, it was not empowered to specify the particular means or methods to be employed by the parties in bringing themselves in compliance. City of Dallas v. Early, 281 S.W. 883 (Tex.Civ.App.—Dallas 1926, writ dism’d).

“The court below was within its power in ordering the abatement of the nuisances, but in our opinion it went afield in directing appellants to accomplish these results by the doing of certain acts that required the exercise of political or legislative power . . . . The court very properly required the abatement of the nuisances, and may hold appellants amenable for disobeyance of its order, but they must be left at liberty, [and] in the exercise of the power vested in them, to adopt the necessary ways and means of accomplishing the desired results.” 281 S.W. 883

The State concedes that such matters are ordinarily within the governing body’s legislative discretion, but it contends that the trial court was authorized to review Shore-acres’ action and to intervene in its judgment because its governing body violated state law.

A governing body’s exercise of a discretionary power may be judicially reviewed to determine whether its action is illegal, arbitrary or capricious. Stone v. City of Wylie, 34 S.W.2d 842 (Tex.Comm. App. SB 1931, judgment affirmed). Where its action is shown to be illegal or arbitrary, the court, by writ of mandamus or by mandatory injunction, may require the governing body to take affirmative action in order to perform its specified duties. Inverness Forest Improvement District v. Hardy Street Investors, 541 S.W.2d 454 (Tex.Civ. App.—Houston [1st Dist.] 1976, writ ref’d n. r. e.). However, it is not the trial court’s proper judicial function to direct the governing body in a specific method or manner of performing the required action. Barrington v. Cokinos, 161 Tex. 136, 338 S.W.2d 133 (1960); Inverness Forest Improvement District v. Hardy Street Investors, supra.

In Barrington, the Texas Supreme Court, quoting from its earlier opinion in Lewis v. City of Fort Worth, 126 Tex. 458, 89 S.W.2d 975, 978 (1936) stated:

“. . . where the law visits upon a governing body the duty to exercise its sound judgment and discretion, courts have no right to interfere so long as such body acts lawfully. In other words, a court has no right to substitute its judgment and discretion for the judgment and discretion of the governing body upon whom the law visits the primary power and duty to act. Of course, if such governing body acts illegally, unreasonably, or arbitrarily, a court of competent jurisdiction may so adjudge, but there the power of the court ends.” (emphasis added)

In the case at bar the trial court exceeded its judicial authority in ordering Shoreacres to enter into a contract with the City of La Porte for the treatment of its waste water and in directing, as an alternative to compliance with such order, that Shoreacres release its extra-territorial jurisdiction over Bayshore MUD so that the latter might have its waste water treated by the City of La Porte. These matters were exclusively within Shoreacres’ legislative discretion and were beyond the scope of the trial court’s judicial function.

For the reasons stated, the trial court’s judgment must be reversed and, in the interests of justice, the cause will be remanded to the trial court. In view of further proceedings, this court will not consider the issues raised in Shoreacres’ fifth and sixth points of error concerning the propriety of the trial court’s determination of rates for Shoreacres’ treatment of Bayshore MUD’s waste water from and after the date of judgment.

The judgment of the trial court is reversed and the cause is remanded for further proceedings consistent with this court’s opinion.


text:
    Stephen L. ROSENTHAL, Appellant, v. Lindsey SHORT, Jr., Appellee.
    No. 17413.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    May 10, 1979.
    Rehearing Denied June 14, 1979.

      Gerald Weatherly, Dallas, for appellant.
    Lilly, Hamilton & Short, George W. Cov-ington, Houston, for appellee.
   EVANS, Justice.

The defendant appeals from a final judgment entered in favor of the plaintiff in a suit on a written lease agreement. The question before this court is whether the trial court properly disposed of the venue issue before proceeding to trial on the merits.

The record reflects that after the defendant was served with the plaintiff’s original petition, he filed a plea of privilege, asserting his right to be sued in Dallas County, the county of his residence. The plaintiff then filed his controverting affidavit, attaching his certificate of service that he had mailed a true and correct copy of the affidavit to the defendant’s attorney of record. The cause was subsequently set for trial on the merits and the defendant was served with a notice of the trial setting. The defendant did not appear in court on the day the case was set for trial, and the trial court entered a final judgment in favor of the plaintiff, reciting that the defendant, though duly and legally cited to appear and having received a notice of the trial setting, did not appear and no jury having been demanded, the court proceeded to hear the case on the pleadings, evidence and argument of counsel.

Rule 87 Tex.R.Civ.P. provides:

“Upon the filing of such controverting plea the judge or justice of the peace shall note on same a time for a hearing on the plea of privilege . . . Such hearing, unless the parties agree upon the date, shall not be had until a copy of such controverting plea, including a copy of such notation thereon, shall have been mailed by registered mail to the defendant or his attorney . . ., or shall have been delivered to defendant or his attorney, at least ten days before the date set for hearing, after which the court shall promptly hear such plea of privilege and enter judgment thereon.”

The trial judge did not note on the plaintiff’s controverting affidavit the time for a hearing on the venue issue, and the defendant’s attorney denies that he ever received a copy of the controverting affidavit. The plaintiff does not contend that the defendant was ever given notice of a hearing on the venue matter, and neither the trial court’s judgment or the court’s docket indicate any action having been taken by the trial court on the venue issue.

It was the plaintiff’s responsibility to see that the venue matter was resolved before a trial on the merits, and the defendant’s failure to appear in response to the trial setting did not constitute a waiver of his position with respect to the venue issue. Alamo Express Inc. v. Stansell, 445 S.W.2d 222 (Tex.Civ.App.—San Antonio 1969, no writ). Since the trial court did not properly dispose of the defendant’s plea of privilege at a hearing of the venue matter, it was without authority to enter a judgment against the defendant in the main suit. Texas-Louisiana Power Company v. Wells, 121 Tex. 397, 48 S.W.2d 978, 981 (1932); Norrell v. National Motor Club of Texas, Inc., 498 S.W.2d 257, 260 (Tex.Civ.App.—Tyler 1973, no writ).

The trial court’s judgment is reversed and the cause is remanded for further proceedings consistent with this opinion.

WALLACE and WARREN, JJ., also sitting.


author: JAMES, Justice.

text:
    Wardell HICKS, Appellant, v. INDUSTRIAL UNDERWRITERS INSURANCE COMPANY, Appellee.
    No. 6028.
    Court of Civil Appeals of Texas, Waco.
    May 10, 1979.
    Jesse E. Shivers, Jr., Houston, for appellant.
    Robert G. Taylor, II, Susan E. Crowley and C. A. Livingston, Jr., Boswell, O’Toole, Davis & Pickering, Houston, for appellee.
   OPINION

JAMES, Justice.

This is a workmen’s compensation case. Pursuant to and in harmony with the jury verdict, the trial court entered a judgment that the Claimant take nothing, from which he appeals. We reverse and remand.

Claimant-Appellant Wardell Hicks was awarded recoveries upon three separate injuries by the Industrial Accident Board, one being a specific injury to his right foot, and the other two being general injuries to his lower back. Appellee Industrial Underwriters Insurance Co., the insurance carrier for Claimant’s employer, appealed the three Board awards to the District Court. The three cases were consolidated and tried before a jury upon Claimant-Appellant’s cross-actions.

The jury in answer to special issues, found (or failed to find as hereinafter indicated) as follows: (In this connection, we show only the answers to those special issues which were actually answered by the jury, and omit any reference to those special issues not answered by the jury.)

(1) Claimant received an injury to his right foot on or about April 5, 1975.

(2) Which injury was in the course of his employment by Lewis & Coker Supermarkets (Claimant’s employer).

(3) The jury failed to find that the injury was a producing cause of any total loss of use of Claimant’s right foot.

(8) The jury failed to find that such injury will be a producing cause of any partial loss of use of Claimant’s right foot.

(9) The jury failed to find that Claimant had or will have any partial loss of use of his right foot, following such injury.

(14) Claimant received an injury in the course of his employment on or about “either one or both dates of July 31, 1975, and October 1, 1975.”

(15) The jury failed to find that “the injuries or either of them” were a producing cause of any total incapacity.

(16) Such “injuries or either of them” were a producing cause of partial incapacity-

(16A and B) The partial incapacity of the July 31,1975, injury began on July 31,1975, and ended on August 9, 1975.

(16A and B) The partial incapacity of the October 1, 1975, injury began on October 1, 1975, and ended on October 14, 1975.

(16C) The Claimant’s average weekly earning capacity during each period of partial incapacity was $330.00.

(17) Medical care was reasonably required by Claimant as a result of the injury or injuries on either or both dates of July 31, 1975, and October 1, 1975.

(18) The jury failed to find that the Defendant-Appellee Insurance Co. failed to furnish within a reasonable time medical care reasonably required as a result of such injury or injuries.

After jury verdict, the trial court entered judgment that Claimant Warded Hicks take nothing against the Defendant Industrial Underwriters Insurance Company, from which judgment Claimant Hicks appeals.

During all times pertinent to this controversy wherein Claimant suffered the three injuries complained of, Claimant was employed by Lewis & Coker Supermarkets as a truck driver of a large truck, and in his work he was required to load and unload heavy baskets of foodstuffs on and off his truck weighing a thousand pounds and more; that such work required heavy physical exertion and labor. Some of these baskets weighed as much as 2000 pounds, and would require 5 or 6 men to load or unload them; however, on some occasions the Claimant would have to load or unload such baskets with the help of only one other man.

On April 5,1975, Claimant Hicks suffered an injury to his right foot, while in the process of unloading one of these large baskets at a store in Pasadena, Texas. Hicks was in front of the basket, pulling at it, and the market manager was behind the basket pushing it, at which time the basket went off the ramp and mashed Hicks towards the door. Since the basket was jamming Hicks up against the wall, he raised his right foot to try to hold the basket off him, thereby injuring his right foot. Hicks could not walk, was carried by the store manager and market manager inside the store, an ambulance was called, Hicks was taken to Memorial Hospital, his foot was X-rayed, his foot was bandaged, he was given pain pills and crutches, and sent home. He saw Dr. Ja-cobe five or six times, who treated Hicks for his right foot. Hicks lost some days from work; however, he cut the top part out of his right shoe and went back to work before the doctor released him. Hicks testified that ever since this injury he has to wear a loose or large shoe on his right foot, and after he went back to work his employer sent a man on the truck with him for a period of time to help him load and unload the baskets.

On July 31,1975, Claimant Hicks suffered the first injury to his lower back. He and about five other men were loading some of the heavy baskets on his truck, and were pushing a basket up a ramp into the truck. The floor of the warehouse where the loading took place was wet. As they were pushing the basket into the truck, Hicks’s foot slipped and he fell, hurting his lower back. Hicks testified that he did not have good use of his right foot at the time, and this was at least partly responsible for his slipping and falling. Hicks was sent initially to Dr. Liles for medical treatment. Dr. Liles took X-rays, gave Hicks some pain pills and sent him home. Hicks was off work “nine or ten days”, saw Dr. Liles six or seven times, went back to work, and from the time he went back to work until October 1, 1975, he lost work on an average of two days every other week. During these times his back hurt him considerably, and he sought to relieve the pain by hot tub baths.

On October 1, 1975, Claimant Hicks suffered his second back injury. Hicks and some others were unloading a basket off his truck at Baytown, Texas, when the basket tilted over and fell off the lift gate, and threw Hicks off the truck. He suffered immediate pains in his lower back and down the calf of his left leg. For this injury he received medical treatment which will be more fully hereinafter discussed.

Claimant-Appellant, among other things, asserts that the jury’s answers to the following special issues are so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust under the rule laid down by our Supreme Court in In Re King’s Estate (1951) 150 Tex. 662, 244 S.W.2d 660, to wit:

(1) Number 3, wherein the jury failed to find that the injury to Hicks’s right foot was a producing cause of any total loss of use of his right foot.

(2) Number 8, wherein the jury failed to find that Claimant’s foot injury was a producing cause of any partial loss of use of his right foot.

(3) Number 15, wherein the jury failed to find that either of the two back injuries (that is, of July 31, 1975, and October 1, 1975) was a producing cause of any total incapacity.

(4) Number 16B, wherein the jury found the first back injury to be of only ten days duration, and the second back injury to be of only fourteen days duration.

(5) Number 18, wherein the jury failed to find that the Defendant insurance company failed to furnish within a reasonable time medical care reasonably required as a result of Claimant’s injuries.

Under the rule of In Re King’s Estate, supra, we are required to examine the entire record, and weigh the evidence in support of as well as against the jury’s answers. After a careful examination of the entire record, we are of the opinion and hold that the jury’s answers to the special issues hereinabove mentioned are so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust, and thereby reverse and remand the cause for retrial.

To summarize the pertinent portions of the jury’s findings, the jury found injury in course of employment concerning Claimant’s specific injury to his right foot. Likewise, the jury found in effect that both back injuries, to wit, of July 31, 1975, and October 1, 1975, were in the course and scope of employment, and that medical care was reasonably required for the back injuries.

However, as to the foot injury, the jury failed to find that same was a producing cause of any total or partial disability.

Then the jury found no total incapacity was produced from either of the two back injuries. The jury did find partial incapacity as to the two back injuries, and then found durations of partial incapacity to be ten days and fourteen days, respectively, on each of the two back injuries. As stated, the jury found medical care was reasonably required, but then found in effect that Defendant-Appellee did not fail to furnish such medical expense within a reasonable time. These findings resulted in a take nothing judgment as to all three injuries, with denial of Claimant-Appellant’s unpaid medical expenses of some $2,700.40.

Claimant-Appellant is 43 years of age with a seventh grade education. He had been a truck driver for seven years employed by Lewis & Coker Supermarkets at the time of his injuries, as well as having been in addition thereto a part-time Baptist preacher. Claimant’s evidence consisted of his own oral testimony, that of Dr. James R. Oates, M.D., a physical medical specialist, of Dr. Frederick P. Gregg, M.D., a radiologist, of Dr. Howard Z. Finkel, M.D., an orthopedic surgeon, and medical bills and records of the above-named doctors as well as records of McGregor Medical Clinic, Del Oro Hospital, and St. Luke’s Episcopal Hospital. Defendant-Appellee Insurance Company’s evidence consisted of the testimony of Dr. Bradford Urquhart, M.D., an orthopedic surgeon, and two stipulated statements.

Dr. Oates first treated Claimant on February 21, 1977, for all three injuries, gave him (Claimant) an electromyographic examination of his lower back which revealed “abnormalities compatible with the bilateral presence of fifth lumbar radiculopathies and suggestive of the possible bilateral su-peraddition of some element of first sacral radiculopathy.” His diagnosis was a lumbar intervertebral discopathy, attributing it to the July 31, 1975 injury. Dr. Oates’s unpaid medical bill was $450.00, and showed numerous physical therapy treatments for Hicks.

Dr. Finkel, who was an orthopedic surgeon and an associate on the medical staff of McGregor Medical Clinic, examined Hicks after he left the hospital because he could get no insurance authorization for payment. Dr. Finkel examined Hicks, and on subjective medical findings that he had a low back injury, hospitalized Hicks on October 30, 1977, in St. Luke’s Hospital, and then first applied traction therapy to which Hicks did not respond. Dr. Finkel then did a low back lumbar myelogram and a disco-gram operation on claimant, after which said Doctor’s diagnosis was a “bulging of the disc spaces at L-4 and L 5-SI inter-space, and the discogram showed a degenerated disc at the L 5-SI arcs, as “the dye extended from the disc.” Dr. Finkel diagnosed Hicks’s back trouble as a “ruptured lumbar disc at the lumbosacral junction which is irritating his nerve root,” and recommended surgery on his back to remove the disc. Dr. Finkel also recommended that Claimant not do any strenuous activities such as a lot of bending, lifting, and so forth; he said Hicks would have difficulty in doing heavy labor type of work, and further testified that he (Dr. Finkel) would not pass Hicks on a pre-employment physical examination. His opinion was that the injuries of July 31, 1975, and October 1, 1975, were producing causes of Hicks’s back disabilities, stated there was temporary total incapacity, and further testified that a disc does not heal itself, but could scar down. He further said that if a prior physician examined Hicks and took only regular X-rays, (as did Dr. Urquhart), but did not perform a myelogram or discogram operation, then there was no possible way that this ruptured disc could have been detected by the prior doctor (Dr. Urquhart). Dr. Finkel stated that surgery for disc removal was a major operation, wherein post operation convalescence could involve an incapacity of from two and a half months to one year. The unpaid medical bill of Dr. Finkel was $795.00 and the unpaid St. Luke’s Hospital bill for Hicks’s treatment was $1,650.00.

Dr. Gregg, radiologist at St. Luke’s Hospital, testified that he performed a disco-gram operation on Claimant in the hospital by injection of dye into two discs, L 4 — 5 and L 5 — SI, and diagnosed a “ruptured disc at the L 5-SI level.”

Dr. Bradford Urquhart, the orthopedic surgeon who treated Claimant on the authorization of Defendant-Appellee Insurance Company, and who testified in behalf of the Defendant, said he first saw Hicks on January 29, 1976, for the back injuries, after Hicks had first been treated by Dr. Liles; Dr. Urquhart testified that he found subjective and objective complaints of back injury; that on January 29, 1976, he diagnosed Hicks’s back trouble as a “lumbo-sacral sprain”; that he instructed Hicks to “remain off work for a brief period,” and stated that at that time he believed Hicks could return to work in four to six weeks. However, Claimant returned for treatment six weeks later, to wit, on March 11, 1976 with “continued . . . low back pain,” and pain in left leg with numbness; that Hicks had worked only one day the week prior, but had not worked the week of March 11, 1976; that said Doctor instructed Hicks again to “remain off work,” and then released Hicks to return to work on March 25, 1976. But Hicks returned again on April 2, 1976, whereupon Dr. Urquhart found “objective findings” of “tightness of the muscles” and diagnosed that Hicks had “aggravated his lumbosacral sprain” with another two to four weeks off work, and said Doctor treated Hicks two more times, to wit, on April 15, 1976 and April 26, 1976. In April 1976, Defendant Insurance Company refused to authorize payment for Dr. Urquhart’s last medical prescription, and from that time on Hicks was on his own insofar as medical expense was concerned. In October 1976, Hicks informed Defendant Company that he needed more medical treatment, and requested that Defendant Company furnish same.

It is significant that Dr. Urquhart took only regular-type X-rays upon Hicks, and never took a discogram or myelogram. Said Doctor testified that the regular X-rays were “normal,” and stated that disco-grams and myelograms were not reliable. He admitted on cross-examination that it was a possibility that Hicks had a ruptured disc when he examined him, and that regular X-rays such as he took do not show a ruptured disc. He stated that he would not necessarily recommend surgery if a myelo-gram and discogram did show a ruptured disc, and further testified that a ruptured back disc will never restore to its normal condition, and if such a patient “continues to have problems,” he would recommend surgery. It is also significant that the last time Dr. Urquhart saw Hicks was in April 1976, some twenty-two months prior to trial.

This trial took place in February 1978, nearly two years after Defendant-Appellee quit furnishing medical treatment for Claimant. As stated before, at the time of trial Hicks had some $2,700.00 worth of unpaid medical expenses, incurred after Defendant-Appellee cut him off. This does not take into account the fact that medical evidence showed that Hicks needs back surgery for removal of the ruptured disc which he has not yet had.

Claimant-Appellant testified that after his back injury of October 1, 1975, he was sent to Dr. Liles, and lost more time from work until sometime in November 1975; that Dr. Liles referred him to Dr. Urquhart for further treatment; that he could not any longer perform the same duties he did before because of his back injuries; that after October 1, 1975, his back “hurts me, pains me all the time”; that he couldn’t stoop over or pick up anything; that the work he has performed since the last back injury of October 1, 1975, has consisted merely of driving a truck, without doing any loading, unloading, or lifting. Hicks further testified he had applied for several jobs, listing on the application blanks that he had an injury from Lewis & Coker, but did not get the job; that in 1976, he went to the State employment office and signed the required document that he was “willing and able to work,” but that such statement was not the complete truth, but he did it because he “needed food for his family”; that in 1976 he got a job with Global Steel Company as a truck driver only, with no loading or unloading duties; that Global Steel was aware of his injury and let him take off from work when he has pain. Hicks was working for Global Steel at the time of trial; however, he testified that his back pain kept getting worse all the time.

This record contains ample medical testimony to the effect that Claimant-Appellant has serious low back injury, to wit, a ruptured disc; that a ruptured disc will not cure itself but usually gets worse unless corrected by surgery. Defendant-Appellee has countered this evidence with the testimony of Dr. Urquhart, who based his diagnosis mainly upon regular X-rays as opposed to a myelogram or discogram. The expert medical evidence here seems to be consistent to the effect that a ruptured disc will not show up on a regular X-ray. Moreover, the medical testimony of Claimant’s doctors is consistent with and corroborates the testimony of Claimant Hicks himself. In addition thereto, the last time Dr. Urquhart ever saw Hicks was on April 26, 1976, about twenty-two months before the trial of this case.

For the reasons herein stated, we reverse and remand the cause to the trial court for trial on the merits.

REVERSED AND REMANDED.


author: KEITH, Justice.

text:
    CITY OF BEAUMONT, Appellant, v. Frank FUENTEZ et al., Appellees.
    No. 8232.
    Court of Civil Appeals of Texas, Beaumont.
    May 10, 1979.
    Dale Dowell, Ken E. Wall, Jr., Beaumont, for appellant.
    Walter Umphrey, Port Arthur, for appel-lees.
   KEITH, Justice.

Our prior opinion is withdrawn and this opinion is substituted in lieu thereof.

City of Beaumont, one of defendants below, appeals from an adverse judgment entered in a jury trial of a personal injury suit resulting from a two-car collision.

Frank Fuentez was driving his automobile in a northerly direction on Kenneth Street in Beaumont, Texas, with his wife and two children as passengers in his car. Patty Malin Wiggins was driving her car in a westerly direction on Lavaca Street. At the intersection of Kenneth and Lavaca, the two vehicles collided, neither driver having stopped before entering the intersection.

Ordinarily a stop sign was located at the intersection of Lavaca and Kenneth stopping the traffic on Lavaca, but it had been uprooted from the ground some time prior to the accident. Frank Fuentez, his wife, and two minor children filed suit against Patty Malin Wiggins, City, C & S Truck Lines, Inc., and E. R. DuPuis. The litigation centered upon allegations relating to the downed stop sign. C & S and DuPuis had contracted with City to perform certain street improvement work in the area where the collision occurred, thus their involvement. All defendants filed cross actions against each other for contribution and indemnity. Judgment was entered in favor of plaintiffs against City only. The Fuen-tez children recovered nothing and City was denied relief upon its cross actions. City has perfected its appeal from this judgment.

In its fourth point of error, City complains that the trial court erred in overruling its motion for judgment non obstante veredicto because there is no evidence that plaintiffs complied with the notice of claim provision in the City Charter of Beaumont. The contention appears to have merit.

It is an established rule in Texas that compliance with a notice of claim provision in a city charter is mandatory and a condition precedent to the maintenance of a suit against a city. Roberts v. Haltom City, 543 S.W.2d 75, 77 (Tex.1976); City of Terrell v. Howard, 130 Tex. 459, 111 S.W.2d 692, 693 (1938); Bowling v. City of Port Arthur, 522 S.W.2d 270, 272 (Tex.Civ.App.—Beaumont 1975, writ ref’d n. r. e.); Brantley v. City of Dallas, 498 S.W.2d 452, 453 (Tex.Civ.App.—Eastland 1973, writ ref’d n. r. e.), cert. denied, 415 U.S. 983, 94 S.Ct. 1576, 39 L.Ed.2d 880 (1974); Dias v. City of San Antonio, 488 S.W.2d 522, 523 (Tex.Civ.App.—San Antonio 1972, writ ref’d n. r. e.).

Allegation and proof of the giving of such notice is a condition precedent to a plaintiff’s cause of action; failure to so allege and prove compliance is fatal to a plaintiff’s recovery. City of Houston v. Flanagan, 446 S.W.2d 348, 349 (Tex.Civ. App.—Houston [1st Dist.] 1969, writ ref’d n. r. e.); Washington v. A & A Construction Co., 316 S.W.2d 808, 813 (Tex.Civ.App.—Amarillo 1958, writ ref’d n. r. e.); Wones v. City of Houston, 281 S.W.2d 133, 134 (Tex. Civ.App.—Galveston 1955, no writ); City of Beaumont v. Baker, 95 S.W.2d 1365, 1367 (Tex.Civ.App.—Beaumont 1936, writ dism’d). See generally Annot., “Public Body — -Notice of Claim — Pleading,” 83 A.L. R.2d 1178, 1193 (1962), where many other Texas cases are cited. See also 18 McQuil-lin, Municipal Corporations § 53.155, at 554 (3d Ed. Rev. 1977); and Annot., “Notice of Tort Claims Against Municipality,” 59 A.L. R.3d 93 (1974).

Section 21 of the Charter of the City of Beaumont is very explicit: notice shall be given to the City Council in writing within sixty days after injury has been sustained and the provision may not be waived except by resolution. Notwithstanding the specificity of the charter provision, plaintiffs did not allege nor did they offer proof of compliance with the charter provision.

Our case is different from that before the court in City of Houston v. Riggins, 568 S.W.2d 188, 194-195 (Tex.Civ.App.—Tyler 1978, writ ref’d n. r. e.). In Riggins, the plaintiffs pleaded very generally “that all conditions precedent to the institution of the suit had been met and that notice of the claim had been given” and there was no verified denial by City as required by Tex. R.Civ.P. 93(m). Under these circumstances, it was held that it was not error to deny leave to file a trial amendment setting up lack of notice.

Here, our plaintiffs, not having pleaded compliance with the charter, even generally, did not invoke the requirement of defensive pleadings under Rule 93(m) as mentioned in Riggins.

In the posture in which this contention is presented, and under the foregoing authorities, we would ordinarily enter judgment for City. LeMaster v. Fort Worth Transit Co., 138 Tex. 512, 160 S.W.2d 224, 227 (1942); Scott v. Liebman, 404 S.W.2d 288, 294 (Tex.1966). But, the first mention made by City of the contention now under discussion was in its motion for judgment non obstante veredicto. It did not level exceptions to plaintiffs’ pleadings because of the complete failure to allege compliance with the charter provision; it did not even plead the charter provision in bar to a recovery; and, neither party even made mention of the notice provision during the trial.

Granted that plaintiff should have, under the authorities, plead compliance, we do not believe in trial by ambush and do not approve of a party reserving for use on appeal a point which should have been brought to the forefront in pre-trial proceedings. If in truth and in fact plaintiffs had not complied with the notice provision, a speedy and inexpensive disposition of the case could have been made on special exceptions or on motion for summary judgment. See, e. g., Bowling v. City of Port Arthur, 522 S.W.2d 270 (Tex.Civ.App.—Beaumont 1975, writ ref’d n. r. e.).

Conversely, had plaintiffs given the proper and timely notice but simply failed to plead and prove such fact — under the circumstances shown by our record in this case —it would be unfair to deny them their day in court where they seek the damages found by the jury. To adopt that course would be to put form above substance.

We have discussed the charter provision under the rationale of Tex.Rev. Civ.Stat. Ann. arts. 1173 and 1174 (1963), and authorities construing such statutes, two of which are noted in the margin. Plaintiffs assert that we may not take judicial notice of the charter, notwithstanding the statutes and the cases noted, until it has been established that the charter was recorded as required by law. Plaintiffs’ authorities are noted in the margin.

We do not find it necessary to choose between the two lines of authority nor do we attempt to resolve the conflict, if there is one between the cited cases. As shown in our subsequent discussion of City’s seventh point of error, we do not review an errorless judgment. A reversal being ordered because of the other error, we do not order a rendition on the charter notice provision. Instead, in the interest of justice, we remand the cause for a new trial upon appropriate pleadings. See and compare Scott v. Liebman, supra (404 S.W.2d at 294).

Plaintiffs argue that the Texas Tort Claims Act, Tex.Rev.Civ.Stat.Ann. art. 6252-19, § 16 (Supp. 1978-1979), applies to this case, citing City of Texarkana v. Nard, 575 S.W.2d 648 (Tex.Civ.App.—Tyler 1978, writ ref’d n. r. e.), in support of their position. We disagree.

The maintenance of streets is a proprietary function, and negligence in the performance of this function renders a city liable for any resulting injuries. City of Austin v. Daniels, 160 Tex. 628, 335 S.W.2d 753, 755 (1960); Cone v. City of Lubbock, 431 S.W.2d 639, 644 (Tex.Civ.App.—Amarillo 1968, writ ref’d n. r. e.); Voigt v. City of Corpus Christi, 419 S.W.2d 445, 447 (Tex. Civ.App.—Corpus Christi 1967, writ ref’d n. r. e.). The Texas Tort Claims Act does not apply to a proprietary function of a municipality. City of Houston v. Bush, 566 S.W.2d 33, 34 (Tex.Civ.App.—Beaumont 1978, writ ref’d n. r. e.); Tex.Rev.Giv.Stat. Ann. art. 6252-19, § 18(a) (1970).

The jury found in Special Issue No. 25 that the Fuentez accident arose from the construction or the operations to be performed under the contract between City, C & S, and DuPuis. Neither party contested this finding. Because the Fuentez accident arose out of the City’s performance of a proprietary function, i. e., the maintenance of streets, we find that the Texas Tort Claims Act is inapplicable.

City complains in its seventh point of error that the trial court erred in submitting the instruction following Special Issue No. 8 because it was a comment on the weight of the evidence. The instruction assumes that plaintiff Frank Fuentez was familiar with the intersection in question and knew that a stop sign was on the northeast corner of the intersection. City argues that this assumption was an issue that should have been submitted to a jury. Plaintiffs contend that the court’s instruction was, under the circumstances, proper and at most constituted only an incidental comment on the weight of the evidence. We agree with City.

Tex.R.Civ.P. 277 provides in pertinent part:

“In submitting the case, the court shall submit such explanatory instructions and definitions as shall be proper to enable the jury to render a verdict and in such instances the charge shall not be subject to the objection that it is a general charge.
* ⅝: * * *
“The court shall not in its charge comment directly on the weight of the evidence or advise the jury of the effect of their answers, but the court’s charge shall not be objectionable on the ground that it incidentally constitutes a comment on the weight of the evidence or advises the jury of the effect of their answers where it is properly a part of an explanatory instruction or definition.”

See generally Pope & Lowerre, “Revised Rule 277 — A Better Special Verdict System for Texas,” 27 SW.L.J. 577, 588-589 (1973).

It was improper for the trial court to instruct the jury as to what an ordinary prudent person would do if he knew there was a stop sign on an adjacent corner and then instruct the jury. to assume Frank Fuentez knew the stop sign was there. This instruction left no fact issue for the jury to determine as to whether Fuentez was negligent in his approach to the intersection. For a list of cases with assumptions in their special issues, see G. Hodges, Special Issue Submission in Texas § 7, at 20 n.72 (1959).

It is an established rule in Texas that drivers with the right of way are not required to anticipate negligent conduct, but they cannot close their eyes to that which is plainly visible and could have been observed by a person of ordinary prudence similarly situated. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273, 275 (1958); Central Freight Lines, Inc. v. Bergeron, 470 S.W.2d 117, 122 (Tex.Civ.App.—Beaumont 1971, writ ref’d n. r. e.), and cases therein cited. A driver with the right of way is not excused from exercising ordinary care for his own safety. Lynch v. Ricketts, supra.

We now adapt this rule to the present situation. The special issue before us does not inquire as to whether an ordinary prudent person could have noted the downed sign or noticed that Patty Wiggins was not going to stop at the intersection before she was in a perilous position.

Moreover, we note that Fuentez’ knowledge of the existence of the stop sign rested upon his own testimony — that of an interested party — and did no more than raise a fact issue for determination by the jury. Gevinson v. Manhattan Construction Co., 449 S.W.2d 458, 467 (Tex.1969); Taylor v. Bair, 414 F.2d 815, 818 (5th Cir. 1969), discussing Texas authorities; Bates v. Barclay, 484 S.W.2d 955, 959 (Tex.Civ.App.—Beaumont 1972, writ ref’d n. r. e.).

The instruction assumed, as a fact, Fuen-tez’ knowledge and that he could not have observed its absence nor noticed Wiggins’ failure to stop until she was in a perilous position. The instruction constituted an impermissible comment on the weight of the evidence. And, after considering the record as a whole, we find that such a charge, going as it did to the very heart of the cause, constituted reversible error.

Accordingly, the judgment of the trial court is reversed and the cause is remanded for a new trial.

REVERSED and REMANDED.

      . Section 21 of the Charter reads:
      “Before the City of Beaumont shall be liable for personal injuries of any kind, the person injured or someone in his behalf shall give the City Council notice in writing of such injury within sixty (60) days after the same has been sustained, stating specifically in such notice when, where and how the injury occurred and the extent thereof, and the names and addresses of any person or persons, if any witnessing the same, if such names and addresses can be ascertained by reasonable diligence. No officer or employee of the City shall have authority to waive any of the provisions of this section as to notice, but same may be waived only by a resolution of the City Council, made and passed before the expiration of the period herein provided, and evidenced by the minutes of the City Council.” (emphasis added)

      . In addition to the cited statutes, City relies upon these cases, among others: Greenway Parks Owners Association v. City of Dallas, 159 Tex. 46, 316 S.W.2d 74, on rehearing (1958); Hallman v. City of Pampa, 147 S.W.2d 543, 546 (Tex.Civ.App.—Amarillo 1941, writ ref’d).

      . Plaintiffs rely upon: Bryce v. Corpus Christi Area Convention and Travel Bureau, 569 S.W.2d 496, 501 (Tex.Civ.App. — Corpus Christi 1978, writ ref’d n. r. e.), which includes the other two cases cited by plaintiffs.

      . Special Issue No. 8 inquired as to whether Frank Fuentez was negligent and instructed the jury as follows:
      “In evaluating the conduct of Frank Fuen-tez who was familiar with the intersection in question and who knew that a stop sign was on the northeast corner of the intersection for traffic travelling west on Lavaca, you are instructed that the driver of an automobile approaching an intersection has the right to assume that the driver of another automobile also approaching an intersection will stop in obedience to a stop sign, and the failure of Frank Fuentez to yield the right of way, decrease his speed, apply his brakes, turn to the left, or sound his horn does not constitute negligence until the other automobile is in such a perilous position that Frank Fuentez, in the exercise of ordinary care, would know and appreciate that the automobile was not going to stop.” (emphasis added)


author: SPURLOCK, Justice.

text:
    NRTRX CORPORATION, Appellant, v. D. C. STORY, Appellee.
    No. 18158.
    Court of Civil Appeals of Texas, Fort Worth.
    May 17, 1979.
    Rehearing Denied June 14, 1979.

      Rassman, Gunter & Boldrick and James P. Boldrick and Leslie G. McLaughlin, Midland, for appellant.
    Robert R. Truitt, Jr., Midland, for appel-lee.
   OPINION

SPURLOCK, Justice.

NRTRX petitioned by writ of error to reverse a default judgment taken against it. It complains that the sheriff’s return of citation is insufficient to support the judgment in that it shows delivery of process to one other than the agent for the corporation named in the citation and petition.

We affirm.

D. C. Story, an independent truck operator, filed suit against HMM Distributing Corporation and NRTRX Corporation seeking damages resulting from being sold diesel fuel that was allegedly contaminated with water. HMM answered but NRTRX did not.

The cause came for trial and the court heard evidence and argument of counsel and found that a severance should be granted as to NRTRX Corporation and judgment rendered against it.

The judgment recites that a severance is entered as to defendant NRTRX Corporation so that this judgment is a full and final judgment as between D. C. Story, plaintiff, and NRTRX Corporation, defendant.

The judgment then recites that judgment was rendered in favor of D. C. Story against NRTRX Corporation for damages. After the judgment was rendered and signed, the clerk assigned it a new cause number. The cause against the other defendant, HMM Distributing Corporation, is still pending.

NRTRX filed a motion for new trial in the severed cause of action, which .will be referred to hereafter. After execution was issued to enforce the default judgment, NRTRX filed its petition for a writ of error seeking to have the judgment reversed and the cause remanded for a new trial.

The citation was executed in Tarrant County, Texas by summoning NRTRX Corporation by delivering to “H. H. Michener, President,” in person of NRTRX Corporation a true copy of the citation and plaintiff’s original petition.

Thus, NRTRX complains that the return of citation shows that someone other than the person designated in the citation was served by personal delivery of the process. Its position is that the return is defective because it shows that H. H. Michener, president, was served instead of H. M. Michener, registered agent. NRTRX points out that there is no evidence or pleading in the record concerning any H. H. Michener or the president of the corporation. After carefully reviewing the citation and return we conclude that service was sufficient to support the default judgment.

It is well settled that with certain exceptions not here applicable, if someone other than the defendant named in the citation is served with process, the court has not secured personal jurisdiction over the named defendant. NRTRX would have us apply this rule and reverse the default judgment. However, we distinguish this case by the fact that Tex.Bus.Corp.Act.Ann. art. 2.11 (1956) provides for service on a domestic corporation by delivering a copy of the process to the corporation’s president. Thus even though the president was not named in the citation, delivery of process to the president results in valid service on the corporation. The return showing delivery of process to the president is prima facie evidence that the person served is the officer as designated and obviates the necessity for the trial court to hear evidence thereon. Pipe Line Park Properties, Inc. v. Fraser, 398 S.W.2d 154 (Tex.Civ.App.—Dallas 1965, no writ).

Further, we note that NRTRX filed a motion to set aside the default judgment and for a new trial. In its motion NRTRX stated that it had received the process and forwarded it to its insurance agent who failed to notify NRTRX’s attorneys. Therefore, NRTRX has in effect admitted the fact of service in this case.

While we have not discussed all of the points of error each point presented in complaint of the trial court’s judgment has been severally considered. Each point of error is overruled.

The judgment is affirmed.