author: REYNOLDS, Chief Justice.

text:
    J. R. ADAMS and G. R. Russell, Appellants, v. The AMERICAN QUARTER HORSE ASSOCIATION, Appellee.
    No. 8979.
    Court of Civil Appeals of Texas, Amarillo.
    May 29, 1979.
    Second Rehearing Denied July 18, 1979.

      Culton, Morgan, Britain & White, W. H. Brian, Amarillo, Richard E. Hancock, Lexington, Ky., for appellants.
    Underwood, Wilson, Sutton, Berry, Stein & Johnson, R. A. Wilson, Amarillo, for ap-pellee.
   REYNOLDS, Chief Justice.

J. R. Adams and G. R. Russell appeal from a take-nothing judgment in their action for a mandatory injunction compelling The American Quarter Horse Association to register their filly. The central questions are whether the trial court did, and we hold that the court did not, reversibly err in failing to determine that AQHA procedurally denied due process to, and unfairly discriminated against, Adams and Russell in denying registration of their filly. Affirmed.

Appellants Adams and Russell, both members of AQHA, are the co-owners of a filly foaled 13 March 1976. They applied to AQHA for registration of the filly as a quarter horse. After notice and a hearing in which their counsel and appellant Adams participated, registration was denied on the ground that the filly had white markings beyond the limits prescribed by AQHA’s rules.

Appellants instituted this action in district court seeking a mandatory injunction compelling AQHA to register their filly. Following a court hearing sans jury, the relief requested by appellants was denied. ■ The court made and filed findings of fact and conclusions of law. From its factual findings, the court concluded that there was no violation of due process and AQHA had acted in full conformity with its rules.

Appealing, appellants essentially complain that the court reversibly erred “in failing to find” that AQHA denied them due process and “in not finding” that AQHA’s application of its rules unfairly discriminated against them in certain particulars. The specific complaints are suitably observed against the recorded background.

The American Quarter Horse Association is a non-profit Texas corporation which exists to collect, record and preserve the quarter horse pedigree. In this connection, AQHA regulates the breeding, exhibition, publicity, salé, racing and improvements of the breed; and, before a horse may participate in any AQHA sanctioned event, it must be duly registered as a quarter horse.

The business of AQHA is managed by a board of directors and an executive committee. The board of directors has the power to make, amend, repeal and enforce rules and regulations not contrary to law or to the by-laws. The by-laws and rules affecting registration of horses are subject to change only by the board.

The executive committee is vested with all powers of the board of directors, except the power to change any by-laws pertaining to registration of horses. The committee is given the specific authority to declare eligible for registration an animal lacking some of the registration rule requirements.

From its inception, AQHA has had the so-called “White Rule,” designed to protect the breed by excluding therefrom pinto, appaloosa, albino, or other characteristics deemed undesirable. At all times material to this cause, the rule, appearing as Rule 96 in AQHA’s Official Handbook under the heading “HORSES NOT ELIGIBLE,” contains in its first three of five sections the following language:

96. A. No animal having white markings with underlying light skin beyond the following described lines shall be eligible for registration in any section of the Association’s official Stud Book. The prescribed lines for white markings with underlying light skin are as follows:
1. White above a line around each leg at the center of the knees and point of the hocks.
2. White behind a line running from the center of each ear to the corner of each side of the mouth; and
3. White on the lower lip above a line running from one corner of the mouth to the other corner. A diagram of these lines of demarcation is shown on page 30 [of AQHA’s Official Handbook],
B. When an animal is a gelding or spayed mare, it may be eligible for registration, having white markings with underlying light skin beyond the lines described in paragraph “A” above, but not constituting excessive white markings with underlying light skin, or having one or more spots of such size, kind, and in such location as to indicate pinto, appaloosa or albino breeding. The registration application for such animal shall be accompanied by a statement from the owner stating such condition of the animal and the date on which the animal was gelded or spayed.
C. In cases of undue hardship, in addition to the provisions of paragraphs A and B above, the Executive Committee shall have the authority to declare eligible for registration a stallion or mare which, in the majority of opinion, is outstanding in conformation and having a sire or dam of outstanding performance or produce, and is worthy of registration though having white markings with underlying light skin beyond the lines described in paragraph A above, but within the standards specified in paragraph B above. An owner who feels he has a just hardship case shall make application and tender a fee of $250 for the purpose of sending two regular field inspectors to examine the horse. The $250 fee shall not be returned regardless of the decision of the Executive Committee. The inspectors’ opinions shall be considered by the Executive Committee in acting on the application.

Rule 96C is commonly referred to as the “hardship rule.”

Appellants’ application for registration of their 1976 filly was received by AQHA on 19 May 1976. A 30 August 1976 letter from AQHA’s registration department informed appellants that a preliminary examination of the application and photographs filed indicated the possibility of white markings on the filly beyond the standards specified in Rule 96A. Appellants were advised they could personally appear and be represented by counsel to support the application when it was presented to the committee, or they could waive the right of hearing and instruct AQHA to process the application under Rules 96B or 96C. Appellants responded by waiving personal appearance, requesting that the application be considered under Rule 96C, and tendering a $250 check for the conformation inspection costs. Appellant Adams added a note that it would be satisfactory for the inspection to be delayed until the next spring. AQHA then reminded appellants of the need for closeup pictures where excessive white might exist on the filly, suggesting the areas and camera angles.

.Before any further action was taken on the application, AQHA’s Stud Book and Registration Committee, after soliciting and receiving input, reported to the general membership at AQHA’s March, 1977 convention. The report included recommendations that no amendment be made to Rule 96, that greater leniency should be shown in registering spayed mares and geldings, and that registration of potential breeding stock under the hardship rule [Rule 96C] must be carefully regulated. The board of directors approved the report. The executive committee accepted the action as representing AQHA’s interpretation of Rule 96.

Thereafter on 26 June 1977, the executive committee met and made a preliminary determination that the filly was not subject to registration because of the photographic indications of white markings unacceptable for registration under Rule 96C. Informed of this determination, appellants were also advised they would have an opportunity to appear before the committee for a final determination, be represented by counsel if they desired, and present any evidence in support of their application for registration.

Appellants requested a hearing through their attorney’s letter, which further stated, “We would also appreciate receiving the following information prior to the hearing date,” viz., (1) the number of horses, with their names and the owners thereof, registered under Rule 96C during the past two years; (2) the names of the two field inspectors who looked at the filly with copies of their recommendations; (3) the produce and performance record of Decketta, the dam of their filly; and (4) any information AQHA has on Barlaris, the sire of their filly. AQHA scheduled a hearing and, furnishing the information requested in items 3 and 4, advised appellants that the information requested in items 1 and 2 would not be furnished.

At a 24 October 1977 hearing before the executive committee, Adams and counsel for appellants appeared, were given access to the inspector’s report, and participated in the hearing. Some ten days later, appellants were notified of the determination that their filly was not eligible for registration under Rule 96C. This litigation ensued.

In denying the mandatory injunction sought by appellants, the trial court, in addition to finding most of the background facts just written, specifically found that: (6) Rule 96 is valid, its validity is unquestioned by appellants, and it is reasonable and necessary in furtherance of AQHA’s goal to improve the quarter horse breed; (9) the executive committee has accepted the approved 1977 report, the adoption of which is properly in furtherance of a reasonable and necessary goal of AQHA, as a mandate with the result that in the registration process, the executive committee has dealt more leniently with spayed mares and geldings and more strictly with potential breeding stock, approving only five of some eighty hardship applications; (10) the refusal by AQHA to furnish appellants with the information requested in item 1 above was not unreasonable and did not handicap appellants in the proper presentation of their case, it being noted that there was no attempt by appellants to pursue the discovery remedies available to them under Tex.R.Civ.P. 167 and 168; (11) the Rule 96C provided inspection for conformation was not made, but this was not a factor in the refusal to register since, if it were determined that registration was permissible despite the excessive white, the conformation inspection would have been directed; and (12) the executive committee did not act arbitrarily or capriciously but acted in the proper performance of its duties, it being justified in using as its guide AQHA’s construction of its own rule at the 1977 annual meeting, and, under the circumstances, appellants cannot complain of the delay in scheduling the hearing.

Complaining of the trial court’s failure to find a denial of due process and unfair discrimination in the particulars later listed, appellants have not attacked the trial court’s specific findings of fact from which the court concluded that there was no violation of due process and, in effect, no unfair discrimination which entitled appellants to the relief sought. Absent a contention that the evidence supporting a finding of fact is either insufficient or against the great weight of the credible evidence, this court has no jurisdiction to consider or determine those matters. Darryl v. Ford Motor Company, 440 S.W.2d 630, 633 (Tex.1969). Consequently, the facts found by the trial court must govern, B. F. & C. M. Davis Co. v. W. E. Callaghan Const. Co., 298 S.W. 273, 276 (Tex.Comm’n App.1927, holding approved), and are binding on the courts. French Independent School Dist. v. Howth, 134 Tex. 211, 134 S.W.2d 1036, 1037 (1940); Curtis v. National Cash Register Co., 429 S.W.2d 909, 911 (Tex.Civ.App.—Amarillo 1968, writ ref’d n. r. e.).

Nevertheless, appellants first complain that the court erred in “failing to find” they were denied due process by AQHA’s refusal of the information requested in items 1 and 2 above. They maintain that this information was necessary for them to prepare for the October, 1977 hearing and, without it, they were denied the due process opportunity to be heard in a meaningful manner. Their argument is that if they had been able to show that other horses had been registered with more white, the executive committee would have no choice but to register their filly.

The basis for the complaint crumbles under the force of the trial court’s unchallenged factual finding no. 10 respecting the item 1 information, and the undisputed evidence that at the hearing appellants were given access to the information designated in item 2. Unchallenged, finding no. 10 establishes, contrary to appellants’ position, that AQHA’s refusal to furnish the item 1 information was not unreasonable and did not handicap appellants in the presentation of their case. Appellants do not even argue that earlier access to the item 2 information would have beneficially affected their presentation at the hearing.

However, accepting the complaint itself for the proposition that denial of due process was established by the record as a matter of law, further inquiry is necessary. Although bound by unchallenged findings of fact, an appellate court is not bound by incorrect conclusions of law drawn therefrom. Mercedes Dusting Service, Inc. v. Evans, 353 S.W.2d 894, 896 (Tex.Civ.App.—San Antonio 1962, no writ). Accord, Stahl Petroleum Co. v. Phillips Petroleum Co., 550 S.W.2d 360, 368 (Tex.Civ.App.—Amarillo 1977), aff'd sub nom., Phillips Petroleum Co. v. Stahl Petroleum Co., 569 S.W.2d 480 (Tex.1978). Thus, given the established facts, the inquiry is whether controlling law produces the legal conclusion that there was a denial of due process in AQHA’s failure to furnish the item 1 information, and not the court’s conclusion that there was no violation of due process.

State action due process standards are inapplicable to the analysis of due process by voluntary associations, Hatley v. American Quarter Horse Association, 552 F.2d 646, 656 (5th Cir. 1977), because voluntary associations are free from judicial intervention so long as the governing bodies heed the bounds of reason, common sense and fairness and do not violate public policy or the law. Brotherhood of Railroad Trainmen v. Price, 108 S.W.2d 239, 241 (Tex.Civ. App.—Galveston 1937, writ dism’d). And yet, Texas courts have developed the principle that every tribunal which has the power and authority to adjudicate matters involving legal questions are bound by the traditional notions of due process. Masonic Grand Chap. of Order of East. Star v. Sweatt, 329 S.W.2d 334, 337 (Tex.Civ.App.—Fort Worth 1959, writ ref’d n. r. e.). In this connection, a construction of Texas law has led to the specific holding that due process principles are applicable to the exercise of discretion by AQHA’s executive committee in the registration process. Hatley v. American Quarter Horse Association, supra, at 657.

The essential elements of due process applicable here are notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the ease. Masonic Grand Chap, of Order of East. Star v. Sweatt, supra, at 337. Because the by-laws of AQHA do not cover this subject, appellants were entitled to a fair hearing after due notice by procedure analogous to judicial proceedings. Sweatt, supra, at 337; Hatley, supra, at 657.

There is no question that appellants received adequate notice of the October, 1977 hearing to finally determine the registration issue. The point of inquiry, then, becomes whether the hearing, when reviewed against judicial proceedings, was fair in the absence of the information that appellants say was necessary for them to prepare for the hearing and to be heard in a meaningful manner.

In the normal course of judicial proceedings, one party may compel his opponent to produce documents, writings and other things in the opponent’s control which are necessary for the proper prosecution or defense of a cause of action. Tex.R.Civ.P. 167. The production, however, is not an absolute right. The movant must show good cause therefor and that the items sought constitute, or contain, or are reasonably calculated to lead to the discovery of, evidence material to any matter involved in the action. The trial court determines, within its discretion, if good cause and materiality exist. Sufficient facts must be pleaded and proved so that the court may see the need as well as the materiality of the items sought. It is not enough to simply ask for the items. Irwin v. Basham, 507 S.W.2d 621, 626 (Tex.Civ.App.—Dallas 1974, writ ref’d n. r. e.).

In the case at bar, appellants merely stated to AQHA that “We would also appreciate receiving the . . . information.” They gave no reason why they asked for the information. Appellants do not contend that, even after they were advised the information they now insist was necessary would not be furnished, they pursued the matter further. They do not suggest that they asked for additional time either to prepare for, or to secure the production of the missing information necessary to make, an adequate presentation for registration of their filly.

As a part of factual finding no. 10, the trial court noted that there was no attempt by appellants to pursue the discovery proceedings available to them under Tex.R. Civ.P. 167 and 168. And, thus, appellants’ mere approach to AQHA for the information would be insufficient in an analogous Texas court proceeding to compel AQHA to produce the information. Irwin v. Basham, supra, at 626. Under the recorded circumstances, the final hearing without the production of the information cannot be said to be, as a matter of law, so unfair as to constitute a denial of the due process opportunity to be heard in an orderly proceeding.

Secondly, appellants lodge the complaint that they were denied due process by not being notified of the 26 June 1977 executive committee meeting at which their application for registration under Rule 96C was first considered. Collateral to the complaint is the statement that appellants were not given the opportunity to be present at the meeting, tacitly submitting that they were entitled to a hearing at that preliminary meeting.

This complaint has been raised for the first time on appeal. The matter was not mentioned in appellants’ pleadings, in the trial court’s findings of fact or conclusions of law, or even in appellants’ request for additional findings of fact and conclusions of law. Matters not presented at trial and raised for the first time on appeal will not be considered by the reviewing court. Brunson v. Brunson, 372 S.W.2d 761, 764 (Tex.Civ.App.—Amarillo 1963, no writ).

Beyond that, the June, 1977 meeting was but one of a series of steps in processing the application for registration prior to the final hearing at which appellants, with adequate notice, participated. The demands of due process do not require a hearing at any intermediate step of the proceeding so long as the requisite hearing is held before the final determination becomes effective. Opp Cotton Mills, Inc. v. Administrator, 312 U.S. 126, 152-53, 61 S.Ct. 524, 535-36, 85 L.Ed. 624, 640 (1941). A fortiori, notice of the preliminary meeting was not a due process requirement.

Thirdly, appellants charge the trial court with error “in failing to find” that AQHA’s 1977 “change of registration requirements under Rule 96C could not be applied to” appellants’ filly. This charge of a failure to find is antagonistic to the court’s unchallenged factual findings nos. 6, 9 and 12 which, in substance, are that the executive committee acted properly and with justification, and not arbitrarily or capriciously, in following AQHA’s 1977 construction of the valid Rule 96 in refusing registration. In view of the previously declared effect of unchallenged factual findings, the charge is not sustainable.

Still, appellants, while acknowledging that the 1977 interpretation of Rule 96C was not intended to change the published rule, ignore the trial court’s factual findings to present their perception of AQHA’s refusal of registration to be the result of the retroactive application of a new rule. This action, appellants argue on the strength of the general principle which prohibits the retroactive application of a rule by public administrative agencies, operated to their prejudice. The principle, and cited authorities considering its application to public administrative agency actions, are inapposite to the situation developed here where it is clearly established that a private, voluntary association presently applied a previously adopted interpretation of its own rules. It remains the right of a voluntary association to make and adopt laws and regulations and to interpret them, and a member, by becoming such, subjects himself, within legal limits, to the organization’s power to administer as well as make its rules. Combs v. Texas State Tchrs. Ass’n, 533 S.W.2d 911, 913 (Tex.Civ.App.—Austin 1976, writ ref’d n. r. e.). Long has it been the law of this state that courts will not interfere with this right of internal management so long as the governing body does not substitute legislation for interpretation, overstep the bounds of reason, common sense, or fairness, or contravene public policy or the laws of the land in its interpretation and administration. Combs, supra, at 913; Brotherhood of Railroad Trainmen v. Price, 108 S.W.2d 239, 241 (Tex.Civ.App.—Galveston 1937, writ dism’d).

This law furnishes the test for appellants’ contention that the 1977 interpretation of Rule 96C could not be applied to determine registration requirements for their filly. They argue that because their application was filed in 1976 before the rule interpretations were adopted in 1977, the more lenient pre-interpretation standards must apply. And they note a testimonial indication that the filly might have been approved for registration prior to the adoption of the rule interpretation.

The evidence is, however, that the determinative date for a Rule 96C hardship registration decision is neither the date the application is received nor the time the excessive white problem is first noticed; rather, the determinative date is when the executive committee meets to exercise its discretion by virtue of and pursuant to the very wording of Rule 96C to accept the excessive white markings — or, inferentially, to defer the question pending a final hearing. Appellants invited delay in the determination of the merits of their application. The court found that appellants cannot complain of the delay of the hearing at which the executive committee acted properly under, and in conformity with, the association’s construction of its own rules. As members, appellants are bound by the interpretation, and the fixed facts refute the charge of error.

The remainder of appellant’s argument concerning the charge of error is interrelated with, and it will be considered in addressing, their last complaint. This complaint is that the court erred in “not finding” appellants had been unfairly discriminated against because AQHA had registered other 1976 fillies having more excessive white than their filly. This complaint, too, runs afoul of, and must yield to, the court’s unchallenged finding of fact no. 12; but the claim of a right denied will be noticed. »

The interrelated argument is for a right of registration since three animals having more excessive white than appellants’ filly had been registered under Rule 96C after the 1977 interpretation was adopted. Of the three animals, two were mares, one foaled in 1975 and the other foaled in 1976, whose excessive white markings were accepted by the executive committee as early as December, 1976; and the other was a 1976 horse whose excessive white markings were accepted after the 1977 rule interpretation. All three animals were formally approved for registration after the 1977 rule interpretation had been adopted.

AQHA has the right to promote its declared purpose and advance the best interests of its members. Cline v. Insurance Exchange of Houston, 140 Tex. 175, 166 S.W.2d 677, 680 (1942). As stated in AQHA’s by-laws, a part of its purpose is to preserve the pedigree of the quarter horse by regulating the breeding and improvement of the breed. To this end, no absolute right of registration exists for any animal having white markings, with underlying light skin, beyond the prescribed lines; indeed, the right of registration is denied unless a majority of the executive committee, in the exercise of discretion, determines that the animal is otherwise worthy of registration. Whether the policy is wise is no concern of the courts unless the committee has acted contrary to law or has been unfair in its determination. Mid-West Elec. Coop. v. West Texas Chamber of Com., 369 S.W.2d 842, 844 (Tex.Civ.App.—Waco 1963, no writ).

In the light of what has been written, the discretionary acceptance of the excessive white markings on the two mares under the criteria followed prior to the 1977 interpretation of Rule 96C becomes immaterial to a post-interpretation action claimed to constitute unfair discrimination. The question, rather, is whether, under the post-interpretation of Rule 96C, the refusal to accept the excessive white markings on appellants’ filly conclusively shows an unfair determination in view of the acceptance of the excessive white markings on the other horse.

Without particularizing the different white markings on the two animals, it suffices to state that a careful review of the evidence reveals that the horse has less white markings, which appellants concede but limit the concession to a possible difference of one-fourth inch. It is, of course, these very circumstances which invoke the entrusted discretion of the executive committee in the registration process, for, as appellants state, “it is clear that each horse must be registered on its own merits.” And, thus, it cannot be said as a matter of law that the exercise of discretion to reach opposite results concerning two animals differently marked established unfair discrimination against appellants.

Each facet of appellants’ complaints has been considered and, under this record, reversible error is not presented by them. Accordingly, appellants’ points of error are overruled.

The judgment of the trial court is. affirmed.

ON MOTION FOR REHEARING

A position advanced in appellants’ motion for rehearing requires additional comment. Appellants view our opinion as holding that the discovery procedures provided under Tex.R.Civ.P. 167 and 168, which by their language are applicable to judicial proceedings, were available and should have been utilized by them for the October, 1977 hearing before AQHA’s executive committee. We did not so hold.

Perhaps, as we discussed the parallelism of administrative hearings and judicial proceedings, we should have more clearly stated that all comments concerning Rules 167 and 168 were referenced only to their application to judicial proceedings. Nevertheless, our discussion of the rules was in relation to judicial proceedings to illustrate, by analogy, that something more than a mere request for unfurnished information is necessary to show that an administrative hearing held without the production of that information was unfair. Our holding, following the declaration that appellants were entitled to a fair hearing before the executive committee after due notice by procedures analogous to judicial proceedings, was that the hearing before the executive committee in the absence of information merely requested, without more, cannot be said, as a matter of law, to be violative of due process.

The motion for rehearing is overruled.

COUNTISS, J., not participating.

      . A broader view of the nature and functions of The American Quarter Horse Association, together with some aspects of the quarter horse industry, are recorded in Hatley v. American Quarter Horse Association, 552 F.2d 646 (5th Cir. 1977).

      . During the course of this action, the American Quarter Horse Association eliminated Rule 96C effective 1 January 1979.

      . Tex.R.Civ.P. 167 is the authority for, and sets forth the procedure to obtain, the production of documents and things for inspection, copying or photographing; Tex.R.Civ.P. 168 is the authority for, and contains the procedure to compel answers to, interrogatories addressed to the opposing party.

      . When the excessive white markings are accepted by the executive committee, the horse is approved for conformation inspection; but formal approval for registration is not given until the inspection shows the horse has proper conformation and the excessive white is still found to be acceptable. Agreeable to the court’s finding of fact no. 11, the testimony was that if at a full hearing after a preliminary determination of excessive white markings, the executive committee decides the excessive white is acceptable, there would be no problem in proceeding with the conformation inspection.


source: Caselaw Access Project

author: J. CURTISS BROWN, Chief Justice.

license: Public Domain

text:
    WINSTON MORTGAGE COMPANY et al., Appellants, v. W. M. BEVLY, Appellee.
    No. B2091.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    May 30, 1979.
    Rehearing Denied June 20, 1979.
    Charles H. Price; Redd & Price, Houston, for appellants.
    Walter C. Cooke, Meredith, Donnell & Edmonds, Corpus Christi, for appellee.
    Before BROWN, C. J., and COULSON and CIRE, JJ.
   J. CURTISS BROWN, Chief Justice.

This is an appeal by writ of error filed by Winston Mortgage Company and L. W. Freeman (appellants) after a default judgment in favor of W. M. Bevly, appellee and plaintiff below, in a suit upon a written contract.

Appellants’ first point of error urges that the trial court erred in failing to have a record made of the testimony taken at the default judgment hearing and that appellants are therefore entitled to a retrial due to their inability to obtain a statement of facts. In response appellee filed a motion to dismiss for want of jurisdiction, claiming that since this point was not included in a timely motion for a new trial, it could not be presented on appeal. Upon oral argument appellee withdrew the motion to dismiss; however, since jurisdiction cannot be granted by consent, we will address this point.

Appellee based its argument on amended rule 324, Tex.R.Civ.P., which states:

A motion for new trial shall not be a prerequisite to the right to complain on appeal, in any jury or non-jury case. . Notwithstanding the foregoing, it shall be necessary to file a motion for new trial in order to present a complaint which has not otherwise been ruled upon.

The amended rule does not alter the principle that “the right of appeal by writ of error is not lost by a defendant who . fails to file and present a motion for new trial.” Griffin v. Browne, 482 S.W.2d 716, 718 (Tex.Civ.App.—Houston [1st Dist.] 1972, writ ref’d n. r. e.). Review by writ of error has always been and continues to be available to an appellant who, not having participated in the trial on the merits, properly files his petition within six months of the date of judgment. This is so regardless of whether a motion for new trial is filed within the prescribed time, filed late, or not filed at all. Article 2255, Tex.Rev.Civ.Stat.Ann.; Griffin v. Browne, supra; Crawford v. Brown, 507 S.W.2d 574 (Tex.Civ.App.—Beaumont 1974, no writ history.)

Accordingly this court has jurisdiction to consider appellants’ contention that they are entitled to a new trial because of their inability through no fault of their own to obtain a statement of facts.

It is now an established principle that “if an appealing party exercises due diligence and through no fault of his own is unable to obtain a proper record of the evidence introduced, this may require a new trial where his right to have the case reviewed on appeal can be preserved in no other way.” Smith v. Smith, 544 S.W.2d 121, 123 (Tex.Sup.1976). See also Rogers v. Rogers, 561 S.W.2d 172 (Tex.Sup.1978). Further, relief upon writ of error, which requires that the invalidity of the judgment of the trial court be disclosed by the papers on file in the case, may be had “because of [appellant’s] inability to procure a statement of facts,” since “in such respect the invalidity of the judgment from which he appealed by writ of error is disclosed by the papers . . . .” 544 S.W.2d at 123.

However, in this case we are presented with a suit for liquidated damages based upon a written instrument. In such a case rule 241, Tex.R.Civ.P., provides that when a default judgment is rendered against the defendant, “the damages shall be assessed by the' court, or under its direction, and judgment final shall be rendered therefor . . . .” Further, a default by a defendant, where the plaintiff’s claim is liquidated and based upon a written instrument, admits the allegations of damages, Morgan Express, Inc. v. Elizabeth-Perkins, Inc., 525 S.W.2d 312 (Tex.Civ.App.—Dallas 1975, no writ), thus relieving the court of the necessity to hear evidence as to damages. See also Freeman v. Leasing Associates, Inc., 503 S.W.2d 406 (Tex.Civ.App.—Houston [14th Dist.] 1973, no writ).

In this respect this case is similar to that of Wallace v. Snyder National Bank, 527 S.W.2d 485 (Tex.Civ.App.—Eastland 1975, writ ref’d n.r.e.), wherein the plaintiff sought and received a default judgment on a promissory note and attorney’s fees. There appellant argued that he was entitled to a reversal because no record was made by the court reporter. The court, citing rule 241, agreed with this contention “only as to the amount of attorney’s fees. The remainder of the award was ‘liquidated and proved by an instrument in writing.’ ” 527 S.W.2d at 487. The court pointed out that attorney’s fees, absent a contract, is an unliquidated demand as to which the trial court must hear evidence, and the absence of a record for review of such an award necessitates reversal and remand for retrial as to the issue of attorney’s fees.

Appellee here made no demand for attorney’s fees. His claim was solely for the liquidated amount set forth in the written contract plus interest. Accordingly there was no requirement that the trial court hear evidence as to damages, as in fact the judgment shows that it did not. There is therefore no basis upon which to remand this case for a retrial upon any issue as to which an evidentiary hearing is necessary.

Appellants’ remaining point of error urges that the trial court erred in failing to use his equitable powers and discretion to award a new trial, even though the motion was filed on the thirtieth day after judgment, in violation of rule 329b, Tex.R.Civ.P. The Texas Supreme Court has held in Thomas v. Davis, 553 S.W.2d 624 (Tex.Sup.1977) that:

[Ujnder subdivision one of Rule 329b, a trial court’s order overruling a motion for new trial filed after the 10-day period cannot be the basis of appellate review, regardless of the fact that the trial court’s order was issued within 30 days of judgment. The court of civil appeals had no jurisdiction to consider the late-filed motion for new trial.

553 S.W.2d at 626 (emphasis added).

The judgment of the trial court is affirmed.


author: KLINGEMAN, Justice.

text:
    Anita Alvarado TREVINO et al., Appellants, v. Juanita MUNOZ et al., Appellees.
    No. 16079.
    Court of Civil Appeals of Texas, San Antonio.
    May 30, 1979.

      John F. Dominguez, Mercedes, Ricardo Flores, Weslaco, for appellants.
    Frank R. Nye, Jr., Rio Grande City, C. H. Duvall, Guerra & Duvall, Roma, for appel-lees.
   OPINION

KLINGEMAN, Justice.

This is a trespass to try title suit, involving a tract of 24.908 acres of land, which was brought by Anita Alvarado Trevino, Marcela Alvarado, Juan Alvarado, Enrique Alvarado, Manuel Alvarado, Gerardo Alvarado, Jr., Jose Alvarado, Fabriciana Alvarado Escamilla, Elena Alvarado del Bosque and Benito Alvarado, against Juanita Munoz and Eusebio Munoz, in the district court of Starr County, Texas. The parties will hereinafter be referred to as they were in the trial court. Defendants answered by a plea of “not guilty” and also specially pleaded the ten-year statute of limitations. Trial was to the court which entered judgment that plaintiffs take nothing against defendants, and awarded defendants Juanita and Eusebio Munoz fee simple title to said tract, subject only to the interest of third-party defendant Agapita Munoz in such lands, in accordance with an agreement of said defendants. The interest of Agapita Munoz is not here litigated.

The trial court filed findings of fact and conclusions of law, which may be summarized as follows:

FINDINGS OF FACT
(1) Defendants Juanita Munoz and Eusebio Munoz or their predecessor in title, Florentino Munoz, had prior possession of the lands involved before plaintiffs became involved with the land.
(2) Such defendants have had peaceful and adverse possession of the lands involved, using the same for pasturing and grazing of cattle and horses each and every day of each and every year, continuously, under fence, for ten years prior to the institution of this suit.
(3) While plaintiffs or their predecessors occasionally visited said lands they were never actually in possession of such lands.
(4) Plaintiffs’ deeds do not adequately describe the lands in question as being the lands in this suit.
(5) Defendants Juanita Munoz and Eusebio Munoz did not recognize plaintiffs as the owner or ever acknowledge the title claimed by plaintiffs.
(6) Florentino Munoz did not possess said lands under authority of plaintiffs and was not the tenant of plaintiffs.
(7) Juanita Munoz and Eusebio Munoz did not have possession of such lands under authority of the plaintiffs, nor were they tenants of plaintiffs.
(8) Defendant Eusebio Munoz ousted plaintiffs when plaintiffs attempted to dispossess him.
(9) The interest of Agapita Munoz originated from her father Eusebio Munoz and said interest was not litigated between her and her father.
CONCLUSIONS OF LAW
(1) Defendants’ prior possession was a legally superior title to the title which plaintiffs tried to prove, and defendants are entitled to judgment that plaintiffs take nothing by their suit.
(2) Defendants’ possession of the land based on the ten-year adverse possession statute is a superior title to the plaintiffs’ claim of title, and defendants are entitled to recover title to this land.
(3) Plaintiffs, who had the burden of proof, failed to prove a superior title to that of the defendants in possession, and plaintiffs should take nothing by their suit as to this tract of land.
(4) Defendants should recover title and possession based on the ten-year statute of limitations.

Plaintiffs’ three points of error on appeal assert that the trial court erred (1) in not rendering summary judgment for plaintiffs; (2) in not rendering judgment for plaintiffs because they proved ownership of the land; and (3) in rendering judgment for defendants, because defendants did not establish title by adverse possession, and because defendants recognized plaintiffs’ superior title.

In a trespass to try title suit the plaintiff is required to affirmatively establish his title. Land v. Turner, 377 S.W.2d 181 (Tex.1964); Hejl v. Wirth, 161 Tex. 609, 343 S.W.2d 226 (1961); Doria v. Suchowolski, 531 S.W.2d 360 (Tex.Civ.App.—San Antonio 1975, writ ref’d n. r. e.). The plaintiff must recover on the strength of his own title and not on the weakness of his opponent’s title. Adams v. Rowles, 149 Tex. 52, 228 S.W.2d 849 (1950); Gillum v. Temple, 546 S.W.2d 361 (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n. r. e.); Perkins v. Smith, 476 S.W.2d 902 (Tex.Civ.App.—Houston [14th Dist.] 1972, writ ref’d n. r. e.); Niendorff v. Wood, 149 S.W.2d 161 (Tex.Civ.App.—Amarillo 1941, writ ref’d). If the plaintiff fails to affirmatively establish his title, judgment must be entered for the defendant, and there is no necessity of determining whether the defendant has title to the premises. Hejl v. Wirth, 161 Tex. 609, 343 S.W.2d 226 (1961); Gillum v. Temple, 546 S.W.2d 361 (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n. r. e.).

A plaintiff can affirmatively establish his title under any one of four different methods: (1) by proof of title emanating from the sovereign of the soil to the plaintiff; (2) by showing a superior title in plaintiff which arises from a common source of title under which the defendant claims; (3) by adverse possession; or (4) by prior possession from a time which antedates the defendant’s possession of the land. Land v. Turner, 377 S.W.2d 181 (Tex.1964); French v. May, 484 S.W.2d 420 (Tex.Civ.App.—Corpus Christi 1972, writ ref’d n. r. e.).

The trial court made extensive findings of fact which have heretofore been set forth. On this appeal, plaintiffs have made no assignments of error challenging the sufficiency of the evidence supporting any finding of fact which the trial court made. As a general rule, where the sufficiency of the evidence supporting the trial court’s findings of fact has not been challenged, an appellate court will accept the findings as a correct recitation of the facts. Lovejoy v. Lillie, 569 S.W.2d 501 (Tex.Civ.App.—Tyler 1978, writ ref’d n. r. e.); Zelios v. City of Dallas, 568 S.W.2d 173 (Tex.Civ.App.—Dal-las 1978, writ ref’d n. r. e.); Williams v. Finley, 567 S.W.2d 611 (Tex.Civ.App.—Amarillo 1978, writ ref’d n. r. e.); Bilek v. Tupa, 549 S.W.2d 217 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n. r. e.).

The trial court’s findings of fact carry the same weight as a jury’s finding. An appellate court is bound by such findings if there is competent evidence in support thereof; and the trial court’s findings will not be disturbed on appeal unless so against the great weight and preponderance of the evidence as to be manifestly wrong. Church of Life v. Elder, 564 S.W.2d 111 (Tex.Civ.App.—Beaumont 1978, no writ); Tenneco, Inc. v. Polk County, 560 S.W.2d 416 (Tex.Civ.App.—Beaumont 1977, no writ); Lone Star Gas Co. v. Howard Corp., 556 S.W.2d 372 (Tex.Civ.App.—Texarkana 1977), writ ref’d n. r. e. per curiam, 568 S.W.2d 129 (Tex.1978); Moore v. Werner, 418 S.W.2d 918 (Tex.Civ.App.—Houston [14th Dist.] 1967, no writ); City of Garland v. S. H. Lynch & Assoc., 413 S.W.2d 480 (Tex.Civ.App.—Dallas 1967, no writ). Even if we were to consider plaintiffs’ points on this appeal as a challenge to the sufficiency of the evidence, we have concluded after carefully examining the record that there is sufficient evidence to support all of the trial court’s material findings of fact.

The testimony as to record title is vague, confusing and incomplete. Although there are some references in the testimony to deeds on which plaintiffs apparently rely to support their claim of title, such instruments were not properly introduced into evidence and it is not possible to trace the record title under the record before us. It was not incumbent on defendants to establish record title, but it was necessary for plaintiffs who brought this trespass to try title action to affirmatively establish their title, and their right to recovery depends on the strength of their own title and not on the weakness of defendants’ claim.

Plaintiffs here failed to show either (1) a title emanating from the sovereign of the soil, (2) a superior title arising from a common source; (3) adverse possession of the premises; or (4) prior possession at a time which antedated the defendant’s possession of the land. Plaintiffs did not meet the burden of affirmatively establishing their title and the trial court did not err in decreeing that they take nothing against defendants.

In addition to their plea of “not guilty,” defendants specially pleaded the ten-year statute of limitations. There is ample evidence in the record to support the trial court’s finding and judgment that defendants had peaceful and adverse possession of the lands involved for a period sufficient to perfect title under the ten-year statute of limitations.

Plaintiffs also contend that defendants recognized a superior title in plaintiffs and, therefore, judgment should be granted for plaintiffs. The testimony on which plaintiffs rely in this connection is vague and unconvincing. The evidence, which plaintiffs urge amounted to a recognition of their title, concerns transactions at a time subsequent to the perfection of title by defendants under the ten-year statute of limitations. In Republic National Bank of Dallas v. Stetson, 390 S.W.2d 257 (Tex.1965), the Supreme Court of Texas held that a limitation title, once consummated, is as full and absolute as any other perfect title, and it is not lost either by a subsequent oral statement by the limitation owner that he never intended to claim by limitations or by an acknowledgment of tenancy by one who already has proved a limitation title. See also Bruni v. Vidaurri, 140 Tex. 138, 166 S.W.2d 81 (1942); Franklin v. Smith, 265 S.W. 715 (Tex.Civ.App.—Galveston 1924, writ ref’d); Brown v. Fisher, 193 S.W. 357 (Tex.Civ.App.—Beaumont 1917, writ ref’d).

Plaintiffs’ contention that defendants recognized superior title in them is without merit. There is sufficient evidence to support the trial court’s finding that defendants neither recognized the plaintiffs as owners of the land in question nor were they ever tenants of plaintiffs.

Under the record, the judgment of the trial court is correct, and we find no reversible error. The judgment is affirmed.

      . Article 5510 provides in part that
      [a]ny person who has the right of action for the recovery of lands, tenements or heredita-ments against another having peaceable and adverse possession thereof, cultivating, using or enjoying the same, shall institute his suit therefor within ten years next after his cause of action shall have accrued, and not afterward.
      Tex.Rev.Civ.Stat.Ann. art. 5510 (Vernon 1958).

      . The gist of the testimony as to adverse possession is that defendants and Florentino Munoz, now deceased, have had peaceful and adverse possession of said premises continuously from the early 1940’s until 1969, at which time plaintiffs originally brought this action, and that during such period of time the Munoz family has maintained, grazed, and raised cat-tie thereon; that said premises were enclosed by fences which have been maintained and kept in good repair by the Munoz family; that such possession and use by the Munoz family was continuous and undisturbed; and that during such time the Munoz family was claiming the land as its own.


author: AKIN, Justice.

text:
    MOCKINGBIRD AMC/JEEP, INC., Appellant, v. Billy Gene HALL, Appellee.
    No. 19935.
    Court of Civil Appeals of Texas, Dallas.
    May 30, 1979.
    Rehearing Denied June 26, 1979.

      Paul H. Stanford, Canton, for appellant.
    Daniel G. Fish, Dallas Legal Services Foundation, Inc., Dallas, for appellee.
    Before AKIN, ROBERTSON and CARVER, JJ.
   AKIN, Justice.

This appeal from a summary judgment granted in favor of plaintiff concerns whether Tex.Rev.Civ.Stat.Ann. art. 5069-7.-01(e) (Vernon 1971) and Tex.Rev.Civ.Stat. Ann. art. 5069 — 7.07(6) (Vernon 1971) are applicable to a discount service agreement. Article 5069-7.01(e) defines a retail installment contract, and article 5069-7.07(6) prohibits a retail installment contract from waiving any claim against the seller arising out of the sale. In 1977, plaintiff Hall purchased a used automobile from defendant AMC/Jeep, Inc., and signed an instrument entitled “Retail Installment Contract, Disclosure Statement and Security Agreement”. Immediately after signing the above instrument, plaintiff signed a separate instrument denominated “G. W. Service Discount Agreement” which granted plaintiff a fifteen percent discount for two years on parts and labor for his car in exchange for plaintiff’s covenant not to sue defendant under any express or implied warranty arising out of the sale of the automobile. The trial judge rendered judgment for plaintiff on the ground that the defendant’s service discount agreement was part of a retail installment contract as defined in article 5069-7.01(e), and therefore, violated article 5069-7.07(6). Accordingly, under Tex.Rev.Civ.Stat.Ann. art. 5069-8.01 (Vernon 1971), judgment was rendered against defendant for twice the amount of the interest set forth in the retail installment contract. We hold, however, that the service discount agreement is not a part of a retail installment contract, but is a separate contract between the parties. Accordingly, the summary judgment is reversed and judgment here rendered for defendant.

Article 5069-7.01(e) provides that a retail installment contract “means a contract entered into in this State evidencing a retail installment transaction.” A retail installment transaction is defined in article 5069— 7.01(d) as: “[A]ny transaction as a result of which a retail buyer acquires a motor vehicle from a retail seller under a retail installment contract for a sum consisting of the cash price . . . and agrees with a retail seller to pay part or all of such sum in one or more deferred installments.” It is undisputed that plaintiff entered into a retail installment transaction when he purchased the car from defendant. Our question here is whether the “G. W. Service Discount Agreement” is a part of the retail installment contract. If it is, then the waiver provision in the service discount agreement is clearly prohibited by article 5069-7.07(6) which provides that no retail installment contract shall provide that the buyer agrees not to assert against the seller any claim arising out of the sale.

Defendant argues that the “G. W. Service Discount Agreement” is not a “retail installment contract or retail charge agreement” and, therefore, does not fall within the ambit of article 5069-7.07(6). This is true, defendant asserts, because the “G. W. Service Discount Agreement” is a separate agreement that gives the buyer a fifteen percent discount on parts and labor in consideration of plaintiff’s agreement not to sue seller for any liability under any warranty arising from the sale. Additionally, defendant contends that it is entirely separate and apart from the retail installment credit purchase contract and is available to any purchaser of a vehicle whether the sale be for cash or an installment credit sale.

On the other hand, plaintiff argues that the trial judge correctly held that the service discount agreement was part of a retail installment contract for four reasons. First, Tex.Rev.Civ.Stat.Ann. art. 5069-7.-02(1) (Vernon 1971) permits retail installment contracts to be contained in more than one document. Second, the generally accepted rule of contract law favors reading the documents together. Third, it would circumvent the legislative intent to refuse to read the documents together. Fourth, the Texas Consumer Credit Code should be liberally construed. We cannot agree with plaintiff but instead agree with defendant.

Although retail installment contracts may be contained in more than one document, the service discount agreement here cannot be construed as a part of a retail installment contract. In the first place, neither agreement in any way refers to or mentions the other. Secondly, there is no summary judgment evidence showing that plaintiff had to execute the G. W. Service Discount Agreement in order to obtain the retail credit installment agreement. Indeed, in plaintiff’s affidavit in support of his motion for summary judgment, he avers: “At the same time that I entered into the retail installment contract, defendant issued me the G. W. Service Discount Agreement.” He does not state that defendant coerced him to accept the service agreement or that the extension of credit was conditioned upon his acceptance of the service agreement. Thirdly, even plaintiff concedes that article 5069 — 7.07(6) would have no application if the buyer paid cash for the vehicle and then entered into the service discount agreement. Thus, even plaintiff recognizes that the service discount agreement is an agreement separate and unrelated to the retail installment contract. We hold that since the service discount agreement was a separate contract independent of the retail installment sales contract, article 5067-7.07(6) does not apply. Our holding does not circumvent the legislative intent underlying article 5069 — 7.07(6) because the statute does not prohibit a buyer and seller from voluntarily entering into an agreement concerning the waiver of warranties outside of a retail installment contract.

Although the Texas Consumer Credit Code should be liberally construed, it cannot be applied to transactions outside its reach. To hold as plaintiff would have us do, would be to rewrite the agreements of the parties so as to make the service discount agreement a part of the retail installment sales contract when the language of the documents do not justify such a construction, and when even the summary judgment evidence of the plaintiff shows that each agreement was a separate contract. Accordingly, this judgment is reversed and judgment here rendered that plaintiff take nothing.


text:
    James Earl SCOTT, Appellant, v. William M. WEBB and Joe Dale Simmons, Appellees.
    No. 19606.
    Court of Civil Appeals of Texas, Dallas.
    May 30, 1979.
    Rehearing Denied June 26, 1979.

      Ruth Rayner, Dallas, for appellant.
    Richard Bernays, Touchstone, Bernays & Johnston, Dallas, for appellees.

      Before GUITTARD, C. J., and AKIN and ROBERTSON, JJ.
   AKIN, Justice.

Plaintiff appeals from an adverse judgment rendered on a jury verdict in favor of two defendants. Plaintiff, a blind man with a guide dog, was struck in an intersection by defendant Webb’s vehicle and was narrowly missed by defendant Simmons’ vehicle. He sued both Webb and Simmons, alleging that the defendants violated Tex. Rev.Civ.Stat.Ann. art. 6701e § 2 (Vernon 1977) by failing to take the precautions required by that statute with respect to blind persons crossing an intersection. The jury’s verdict absolved defendant Webb of negligence, but found defendant Simmons to be twenty-five percent negligent and the plaintiff to be seventy-five percent negligent. Acting on the verdict, the trial court rendered judgment that plaintiff take nothing. Plaintiff’s points on appeal concern: (1) the court’s charge with respect to the submission of special issues under article 6701e, section 2; (2) the failure of the court to submit issues on speed; and (3) the submission of issues as to plaintiff’s negligence. We hold that the trial judge erred in refusing an issue on speed with respect to defendant Webb, but also hold that it was not error to refuse a speed issue with respect to Simmons because speed on the part of Simmons was not raised by the evidence. Accordingly, we affirm the judgment with respect to Simmons but reverse and remand as to defendant Webb.

This accident occurred when plaintiff attempted to cross a major thoroughfare with his dog. It was undisputed that it had been raining. As defendant Simmons and defendant Webb approached the intersection, Simmons’ vehicle, a suburban, was in the middle lane to the right and ahead of the Webb vehicle. Webb’s vehicle was travel-ling in the far left lane next to the median. When Simmons first saw plaintiff and his dog, Simmons’ vehicle was approximately four hundred fifty feet from the intersection. Simultaneously, defendant Webb was approaching the intersection to the left and rear of Simmons’ suburban. As plaintiff and his dog crossed the intersection, Simmons stopped, but Webb did not stop until after he struck plaintiff. The jury found no negligence on defendant Webb’s part, apparently because of his testimony that Simmons’ vehicle obscured his view of plaintiff until it was too late to stop.

Plaintiff testified that he had stopped and listened for traffic prior to attempting to cross the intersection, and when he failed to perceive any traffic, he started to cross; however, his guide dog refused to go on two separate occasions when plaintiff gave the dog the forward command. Some traffic then passed. Thereafter, plaintiff attempted to cross the intersection and the evidence as to whether the guide dog again refused to obey the forward command was disputed. Plaintiff testified that the dog responded forthwith, but defendant Simmons testified that plaintiff stated to a number of people immediately after he was struck by Webb’s automobile that the dog tried to stop him but that he had shaken the dog’s leash commanding him to go forward.

Defendant Webb testified that he first saw plaintiff when Webb’s automobile was “middleways of that camper” (Simmons’ suburban) and plaintiff and his dog were entering the lane directly in front of Webb’s vehicle. Webb applied his brakes but struck the plaintiff with his left front fender. The testimony was disputed with respect to whether Webb’s vehicle stopped within the intersection or stopped after proceeding through the intersection.

Plaintiff first contends that the issues submitted with respect to article 6701e, section 2, pertaining to blind persons, were improper in that the issues failed to give full effect to the statute. Since plaintiff does not, however, set forth specifically why the issues were improper, no error is presented for our review. Tex.R.Civ.P. 274; Osteen v. Crumpton, 519 S.W.2d 263, 264 (Tex.Civ.App.—Dallas 1975, writ ref’d). Furthermore, the issues submitted were in the language of the statute and, thus, proper.

Next plaintiff contends that the judge erred in granting defendant Simmons’ motion for judgment because both defendants were guilty of negligence per se for violation of article 6701e, section 2, which provides that when a blind man is crossing an intersection, all vehicles approaching the intersection must take all precautions necessary for the protection of the blind man, including stopping, if necessary. We overrule this point because we cannot say that the evidence shows that either defendant was guilty of negligence per se as a matter of law.

Plaintiff also asserts that the trial court erred in submitting an excuse instruction with its special issue pertaining to defendant Webb’s conduct under article 6701e, section 2, because an excuse instruction is available only when a negligence per se issue' is submitted. We overrule this point because the issue was a negligence per se issue, i. e., a violation of a statute. Our review of the evidence reveals that the issue of excuse was raised, and, therefore, defendant Webb was entitled to the excuse instruction as given by the trial judge. Furthermore, the jury found in answer to other special issues that Webb did not fail to keep a proper lookout and that Webb did not fail to make proper application of his brakes. There was substantial evidence that Webb could not have seen plaintiff until immediately before he struck plaintiff because the larger Simmons’ vehicle obscured his view.

Plaintiff next complains of the failure of the trial court to submit issues on speed as to both defendants. The record shows that the trial judge proposed to submit issues on speed. The judge’s proposed issues do not appear in the present record, but plaintiff’s objection to the charge indicates that both issues used the term “excessive speed”. The plaintiff claimed that the court’s special issues in containing the word “excessive” amounted to a comment by the court on the weight of the evidence. The judge sustained plaintiff’s objection to the court’s special issues on speed, but refused to submit plaintiff’s proposed issues. The plaintiff’s proposed issues were proper speed issues taken from Texas Pattern Jury Charges and are included in the record. 2 State Bar of Texas, Texas Pattern Jury Charges § 5.02 (1969). Although the speed issues proposed by the trial judge may have been correct issues, the trial judge erred by sustaining plaintiff’s objection and then refusing plaintiff’s tendered proper issues on speed. The judge had a choice of submitting the issues requested by plaintiff or submitting his own issues as originally proposed, subject to the objection, which may not have been well taken. He was not invited to omit any issue on speed. If there is evidence to raise the issues, the court had the duty to submit them upon request. Tex.R.Civ.P. 277 provides that “upon request of either party, the judge shall submit .the cause upon special issues controlling the disposition of the case that are raised by the written pleadings and the evidence.” Accordingly, we hold that the trial judge erred by refusing issues on speed with respect to defendant Webb since speed was pleaded and raised by the evidence. As to defendant Simmons, the failure to submit speed issues was not error because speed on the part of Simmons was not raised by evidence. This is true since it is undisputed that Simmons stopped and avoided striking plaintiff. It follows therefore, that no issue with respect to excessive speed was raised.

Plaintiff next asserts that the trial judge erred in submitting certain defensive issues with respect to plaintiff’s conduct. These issues all pertain to plaintiff’s crossing the intersection in contravention of the warning of his guide dog, which warning plaintiff negligently failed to heed. The jury found that this negligence was a proximate cause of the accident resulting in plaintiff’s damages. The specific complaint lodged by plaintiff is that there was no evidence and, alternatively, insufficient evidence to support these findings. We do not agree. Defendant Simmons’ testimony that Scott stated to people immediately after the accident that the dog had tried to stop him but that he had insisted that the dog move forward is ample evidence to raise these issues and to support the jury findings. Although plaintiff argues that this testimony is not competent because it was “hearsay,” it was an admission by plaintiff which was admissible as an exception to the hearsay rule. Hartford Accident and Indemnity Co. v. McCardell, 369 S.W.2d 331, 337 (Tex.1963). Thus, this testimony will support the jury’s answers to these special issues.

Finally, plaintiff complains that the trial judge erred in refusing to submit special issues on “discovered peril.” Plaintiff’s point of error overlooks decisions holding that discovered peril is no longer a proper issue since the adoption of comparative negligence. Davilla v. Sanders, 557 S.W.2d 770, 771 (Tex.1977). See Abalos v. Oil Development Co. of Texas, 544 S.W.2d 627, 632 (Tex.1976).

The judgment of the trial court is affirmed as to defendant Simmons but is reversed and remanded for a new trial with respect to defendant Webb. Costs are taxed one-half to plaintiff and one-half to defendant Webb.

      . This suburban was a station wagon built on a truck chassis and was approximately the same height as a pickup truck.


author: EVANS, Justice.

text:
    The FIDELITY AND CASUALTY COMPANY OF NEW YORK, Appellant, v. Frank SWAYZER, Jr., Appellee.
    No. 17423.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    May 31, 1979.
    Rehearing Denied June 28, 1979.
    Fulbright & Jaworski, Joe W. Redden, Jr., Houston, for appellant.
    Funderburk & Funderburk, Don Karot-kin, Houston, for appellee.
   EVANS, Justice.

The sole issue on this appeal is whether the trial court erred in holding that the defendant, Fidelity & Casualty Company of New York, was obligated to defend the plaintiff Frank Swayzer, Jr. under the terms of an automobile liability policy issued to S & B Trash Service, a partnership composed of Louis E. Brown and Frank Swayzer, Jr.

The plaintiff alleged that a prior suit had been brought against him by one Charles Wallace as a result of a motor vehicle accident; that the allegations in the prior suit were of the type covered by his liability insurance policy issued by the defendant; and that due to the defendant’s refusal to retain an attorney to defend him in the prior suit, he had been required to employ his own attorney, thereby becoming obligated to pay attorneys fees and expenses in the total sum of $3,934.00. The defendant insurance company denied liability, alleging that the prior action stated only a cause of action against Swayzer as an individual and did not assert a claim against the partnership entity covered by its insurance policy. After a nonjury trial, the court entered judgment in favor of the plaintiff for the amount in suit, finding that the allegations of the plaintiff’s pleading in the prior suit were of the kind for which coverage was afforded by the insurance policy.

“. . .in determining the duty of a liability insurance company to defend a lawsuit the allegations of the complainant should be considered in the light of the policy provisions without reference to the truth or falsity of such allegations and without reference to what the parties know or believe the true facts to be or without reference to a legal determination thereof.”

Heyden Newport Chemical Corp. v. Southern General Insurance Co., 387 S.W.2d 22, 24 (Tex.1965).

The petition filed by Wallace in the prior action alleged that he had sustained personal injuries as a result of the negligence of the defendant, Frank E. Benjamin, an employee of the defendants, Southwest Spe-ciality Company, Bracey E. Batson and/or Frank Swayzer. The pertinent portion of the plaintiff’s petition in that case alleged

“While he (Wallace) was thus situated, Defendant, Southwest Specialty Company and or Frank Swayzer, was engaged in the course of its business of furnishing trucks and truck drivers to haul or transport cargo away from said dock. A truck owned, rented or leased by Southwest Specialty Company and/or Bracey E. Batson and/or Frank Swayzer was being driven and operated by Defendant, Frank E. Benjamin, who was at the time, an agent or employee of either Defendant, Southwest Specialty Company, Defendant, Bracey E. Batson and/or Defendant, Frank Swayzer. Defendant, Frank E. Benjamin was at all times in the course and scope of his agency or his employment with said Defendants.”

The insurance policy in question imposes a duty upon the insurance company “to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent.” The policy further provides, however:

“This insurance does not apply to bodily injury or property damage arising out of (1) non-owned automobile used in the conduct of any partnership or joint venture of which the insured is a partner or member and which is not designated in this policy as a named insured, or (2) if the named insured is a partnership, an automobile owned by or registered in the name of a partner thereof.”

The designation of the parties who are insured is shown on the face of the policy in the following manner:

This designation of the “named insured” is unambiguous. It clearly shows that coverage is extended to S & B Trash Service, a partnership, and as to that firm’s liability, the plaintiff would be protected in his individual capacity. However, the policy coverage did not extend to Southwest Specialty Company, and even though the plaintiff Swayzer was named individually in the policy and was, himself, a member of Southwest Specialty Company, he did not have policy coverage for that company’s liability. Hartigan v. Casualty Co. of America, 227 N.Y. 175, 124 N.E. 789 (New York Court of Appeals 1919).

The policy provides that coverage is extended to “any partner or executive officer . . but with respect to a non-owned automobile only while such automobile is being used in the business of the named insured.” It further provides that an “insured” includes “any other person while using an owned automobile or a hired automobile with the permission of the named insured.”

It is undisputed that the truck in question was not owned by the named insured S & B Trash Service and that the driver of the truck, Frank E. Benjamin, was not an employee of S & B Trash Service. It was also uncontroverted that at the time of the accident the truck was owned by Southwestern Specialty Company. The testimony negates any inference that the truck was owned or controlled by S & B Trash Service or being used in its business.

Since the contract provision designating the named insured under the policy is unambiguous and the policy coverage did not extend to the cause of action asserted in the prior suit, it was error for the trial court to hold that the insurance company was obligated to defend the plaintiff in that action.

The trial court’s judgment is reversed and judgment is rendered that the plaintiff take nothing by his action against the defendant.

WALLACE and WARREN, JJ., also sitting.