author: DODSON, Justice.

text:
    Kenneth Eugene DAVIS, as guardian of the Estate and Person of Cameron Eugenia Davis, an Incompetent, Appellant, v. David Curtis THOMPSON and Hoffman Brothers Packing Company, Appellees.
    No. 8937.
    Court of Civil Appeals of Texas, Amarillo.
    April 30, 1979.
    Rehearing Denied May 21, 1979.
    Templeton & Garner, John Judge, Amarillo, for appellant.
    Gibson, Ochsner & Adkins, S. Tom Morris, Amarillo, for appellees.
   DODSON, Justice.

Plaintiff Kenneth E. Davis, individually and as guardian of his daughter Cameron E. Davis, instituted this suit to recover damages for personal injuries sustained by Cameron when the automobile she was operating collided with a truck owned by Hoffman Brothers Packing Company and operated by David C. Thompson. The case was tried to a jury, which was instructed by the trial court on unavoidable accident. The trial court entered judgment that plaintiff take nothing against defendants Thompson and Hoffman Brothers Packing Company based upon the jury’s verdict.

On appeal, plaintiff attacks the legal sufficiency of the evidence to raise the unavoidable accident instruction and challenges the instruction on several other grounds. We determine that the evidence raises unavoidable accident, that the trial court’s instruction was erroneous, but that the erroneous instruction is harmless under the circumstances of this case. Affirmed.

The accident occurred at approximately 11:00 a. m. on July 13,1973, on the Canyon Expressway near the northeast end of an elevated overpass crossing Western Street in Amarillo, Randall County, Texas. At the Western Street overpass, the Canyon Expressway is a six lane highway with three lanes for southbound traffic and three lanes for northbound traffic which are separated by a grassy median. The southbound and northbound lanes of the overpass are separated by an open area in the structure. Traffic is protected from the open area by a U-shaped steel guardrail.

Prior to the accident, David Olivier, William Boyd VanDover, and Cameron Davis were each driving vehicles along the southbound lanes of the Expressway. Olivier was in the lead in a 1969 Ford van. Van-Dover followed in a 1967 Mack truck and trailer rig. Cameron Davis was driving a Volkswagon at some distance behind Van-Dover.

Rain fell on the highway for several minutes before, and continued during the course of events surrounding, the accident. The southbound lanes of the Expressway were unusually slick north of the Western Street overpass. Olivier, VanDover, and Miss Davis each lost control of their vehicles.

Olivier was driving in the center lane at a speed of approximately 50 miles per hour. He said his vehicle “just hit a slick spot and it just went crazy on me.” He further testified “it just went sideways until it hit the median. . . . When my two wheels hit the median it [the vehicle] just swerved to the right, just almost straight across and down the embankment and across the service road and I ended up on this service station parking lot . .” His vehicle remained upright. Olivier checked his vehicle and then continued his journey to the city of Canyon.

VanDover was traveling in the center lane behind Olivier’s vehicle at a distance of approximately 200 feet to one city block. He stated that his speed was approximately 50 to 55 miles per hour, that he saw the Olivier vehicle go out of control, that he let up on the accelerator, moved to the left, and then his vehicle jackknifed onto the grassy median. When his vehicle stopped it was facing to the north.

The evidence shows that the Davis vehicle went out of control, passed to the right of the VanDover vehicle, crossed the grassy median, and then hit the overpass protective guardrail. When the vehicle hit the guardrail it became airborne, traveled a distance, then landed on the Expressway in the center lane for northbound traffic.

David C. Thompson was driving on the Expressway in the center lane for northbound traffic. He testified as follows:

I saw the Volkswagon when it hit the guardrail. I would say it flipped end over end over that possibly spinning around or turning around like — you know, it might have turned around in the air like this. But I remember seeing this, seeing that Volkswagon, seeing that red vehicle do that, which it landed just over the white line in the middle lane about 20 foot in front of me. It was that — it happened fast. Boom, I hit it; boom, that was it.

He further stated that before the accident occurred his truck was in eighth gear, that his speed was approximately 50 miles per hour, that he was looking down the road, that he did not see the events which occurred in the southbound lanes, and that he first saw Miss Davis’s Volkswagon when it hit the guardrail. When testifying in reference to a picture slide of the accident scene, Thompson further described the occurrence as follows:

I’d say I was about right here when I applied my brakes and started to swerve to the right when I saw that vehicle coming my way after it had hit that nose — that abutment. I swerved like that, but it just wasn’t in time enough. It was just like that. That’s how fast it was.

Miss Davis received severe personal injuries and was unable to testify at the trial. Kenneth E. Davis brought this action, individually and as Guardian of the Estate and Person of Cameron Davis, against David Curtis Thompson, Hoffman Brothers Packing Company, William Boyd VanDover, individually, C. L. VanDover and William Boyd VanDover, a partnership doing business as VanDover Livestock Haulers, Danny Olivier, W. D. Turner Construction Company (who constructed the Expressway), and the Texas State Department of Highways and Public Transportation.

Before the trial began, Davis took a non-suit as to W. D. Turner Construction Company and the Texas State Department of Highways and Public Transportation. During the trial and before the case was submitted to the jury, Davis also took a nonsuit as to William Boyd VanDover, individually, C. L. VanDover and William Boyd Van-Dover, a partnership doing business as Van-Dover Livestock Haulers, and Danny Olivier. After the nonsuits were taken, only the defendants David Curtis Thompson and Hoffman Brothers Packing Company remain in the case.

The court submitted the case to the jury on twenty-two special issues. In summary, the jury found:

(1) That Thompson was not driving his vehicle at a greater rate of speed than a reasonable and prudent person would have driven under the existing circumstances; that he did not fail to keep a proper lookout; that he did negligently fail to apply the brakes to his vehicle and his trailer, but that such negligence, in either event, was not a proximate cause of the occurrence in question; and then answered the discovered peril issue in favor of Thompson.

(2) That Olivier and VanDover, respectively, kept a proper lookout, did not drive at an excessive rate of speed, did not negligently fail to apply their brakes, and did not negligently fail to steer their vehicles on the occasion in question.

(3) That Cameron Davis kept a proper lookout, did not negligently drive at an excessive rate of speed, maintained a clear distance between her vehicle and the Van-Dover truck, did not negligently fail to apply her brakes, did not negligently fail to steer her vehicle, and did not negligently fail to keep her vehicle on the right half of the divided highway.

(4) The jury refused to find any of the monetary damage issues in favor of Davis. The parties do not challenge the jury’s answers to the special issues.

Davis maintains that the evidence is legally insufficient to support an instruction on unavoidable accident. In determining this question, we must view the evidence in the light most favorable to the submission. See Foremost Dairies, Inc. v. McClung, 421 S.W.2d 178,180 (Tex.Civ.App. — Dallas 1967, writ ref’d n. r. e.). In essence, the evidence shows that the southbound lanes of the Canyon Expressway were unusually slick north of the Western Street overpass. Olivier, VanDover and Cameron Davis each lost control of his or her respective vehicle on the slick highway. Miss Davis crossed the median, hit the protective guardrail at the north end of the overpass, then immediately flipped into the path of the vehicle driven by Thompson.

Our Supreme Court determined in Yarborough v. Berner, 467 S.W.2d 188, 191 (Tex.1971), that unavoidable accident was raised by the evidence when a child too young to be negligent darted into the path of the defendant’s vehicle. In the case before us, the fact that Olivier, VanDover, and Miss Davis lost control of their respective vehicles on the unusually slick highway raises non-negligence as to each of them. See Blanton v. E. & L. Transport Co., 203 S.W.2d 312 (Tex.Civ.App. — Amarillo), rev’d, 146 Tex. 377, 207 S.W.2d 368 (1948) (but approved holding that unavoidable accident was raised).

Thompson contends that unavoidable accident is raised as to him because the evidence shows that there was no time for him to avoid the collision and therefore his conduct was not a cause. The evidence does show that Thompson did not see the Davis vehicle until it hit the guardrail. The distance from the guardrail to the point of impact was approximately 27 feet. The Davis vehicle hit the guardrail at an estimated speed of 38 to 42 miles per hour. The vehicle’s estimated speed at the point of impact was from 0 to 15 miles per hour. The evidence further shows that Thompson’s speed was approximately 50 miles per hour when he saw the Davis vehicle hit the guardrail. Thompson said the Davis vehicle landed 20 feet in front of him and that “it happened fast. Boom, I hit it . . . .” The fact that the Davis vehicle hit the guardrail and immediately flipped into the path of the vehicle driven by Thompson raised non-negligence on the part of Thompson. Under the circumstances, we hold that the evidence raised the submission of unavoidable accident.

Davis contends that the trial court committed reversible error by giving the instruction on unavoidable accident because the instruction is a comment on the weight of the evidence. We disagree. The challenged instruction is as follows:

(g) You are instructed that an occurrence may be an unavoidable accident, that is, an event not proximately caused by negligence of any party to the occurrence. If you believe from a preponderance of the evidence that the occurrence which is the subject of this suit was an unavoidable accident, then you may not find any party to the occurrence was guilty of negligence which was a proximate cause of the occurrence.

In Metal Structures Corp. v. Plains Textiles, Inc., 470 S.W.2d 93, 102 (Tex.Civ.App. — Amarillo 1971, writ ref’d n. r. e.), the court said:

To constitute a comment on the weight of the evidence, the special issue must be worded so as to indicate an opinion by the trial court as to the verity of the fact inquired about. In our opinion the issue did not assume the nature of the answer.

This principle equally applies to an instruction in the charge. In McDonald Transit, Inc. v. Moore, 565 S.W.2d 43, 45 (Tex.1978), our Supreme Court said:

Under Rule 277 it is mandatory that an instruction not be worded so as to indicate the opinion of the trial judge as to the verity or accuracy of the facts in inquiry.

In the case before us, the instruction does not indicate any opinion by the trial court that the occurrence was or was not an unavoidable accident. We conclude that the instruction is not a direct commitment on the weight of the evidence. See Tex.R. Civ.P. 277.

Davis further maintains that the trial court committed reversible error because the instruction placed undue emphasis on unavoidable accident which was reasonably calculated to cause and probably did cause an improper verdict. He specifically objects to the second sentence of the instruction which provides as follows:

If you believe from a preponderance of the evidence that the occurrence which is the subject of this suit was an unavoidable accident, then you may not find that any party to the occurrence was guilty of negligence which was a proximate cause of the occurrence.

In Wheeler v. Glazer, 137 Tex. 341, 153 S.W.2d 449, 452 (1941), our Supreme Court expressed the prevailing view that:

The only legitimate purpose to be served in submitting unavoidable accident is to call the matter to the attention of the jury, so that it will not be overlooked, and so that the jury will understand that they do not necessarily have to find that one or the other parties to the suit was to blame for the occurrence complained of. This purpose is fully accomplished when the jury is told that the occurrence in question was an unavoidable accident if it happened without the negligence of either of the parties to the suit (emphasis added).

The Yarborough Court quoted with approval the above language from Wheeler. The Court further noted a great departure from the original function of the unavoidable accident issue. The Supreme Court transformed the issue into an instruction by amending Rule 277 of the Texas Rules of Civil Procedure effective September 1,1973. The amendment prohibits the submission of inferential rebuttal issues.

In Scott v. Atchison, Topeka & Santa Fe Railway Co., 572 S.W.2d 273, 280 (Tex.1978), the Court pointed out that when “Act of God” is raised by the pleadings and the evidence, then the defendant is entitled to an explanatory instruction which “should focus the effect of the concept on the relevant issues that are to be considered, but without reference to the result thereof.” These principles are equally applicable to unavoidable accident.

The second sentence of the challenged instruction departs from the original function of unavoidable accident which is set forth in Wheeler. The instruction also goes further than merely focusing the effect of the concept on the relevant issues to be considered by the jury. Under the circumstances, we conclude that the trial court erred by including the second sentence of the challenged instruction in its charge. Our disposition of this case does not require a new trial; therefore, we respectfully refrain from suggesting a dictum instruction on unavoidable accident.

Rule 434 of the Texas Rules of Civil Procedure provides, in part:

[Tjhat no judgment shall be reversed on appeal and a new trial ordered in any cause on the ground that the trial court has committed an error of law in the course of the trial, unless the appellate court shall be of the opinion that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case .

Harmful error may not be presumed. Walker v. Texas Employers’ Insurance Association, 155 Tex. 617, 291 S.W.2d 298, 301 (1956). Davis also has the burden of showing harmful error. See City of Galveston v. Hill, 151 Tex. 139, 246 S.W.2d 860, 863 (1952). In State v. Parrish, 159 Tex. 306, 320 S.W.2d 330, 332-33 (1959), the Supreme Court said:

The reversal of the trial court’s judgment is not justified unless an examination of the record as a whole leads to the conviction that the error was calculated to cause and probably did cause the jury to give the answer it did to all issues which will support the judgment.

As we stated above, the jury refused to find Thompson guilty of any negligent conduct which was a proximate cause of the occurrence in question. Davis does not contend in this court that he conclusively established any negligent conduct which was a proximate cause of the occurrence in question, nor does he contend that the jury’s failure to make such findings is so against the great weight and preponder-anee of the evidence as to be manifestly unjust. Although the jury’s failure to find a fact vital to Davis’s action need not be supported by affirmative evidence, Traylor v. Goulding, 497 S.W.2d 944, 945 (Tex.1973), a reading of the Statement of Facts shows there is ample evidence to justify the jury verdict. In essence, Davis failed to persuade the jury that Thompson was guilty of any negligent conduct which was a proximate cause of the occurrence in question. Under the circumstances, we must conclude that the erroneous instruction is harmless error under Rule 434.

Davis complains in points of error one, three, four, six, and seven, respectively, that the trial court committed reversible error because the challenged instruction improperly placed the burden of proof, conditioned the charge on an inferential rebuttal issue, denied an independent submission of the negligence and proximate cause issues, informed the jury of the effect of and made reference to the results of the unavoidable accident concept, and was not raised by the pleadings. However, he did not object to the instruction on any of these grounds. Rule 274 of the Texas Rules of Civil Procedure specifically provides:

A party objecting to a charge must point out distinctly the matter to which he objects and the grounds of his objection. Any complaint as to an instruction, issue, definition or explanatory instruction, on account of any defect, omission, or fault in pleading, shall be deemed waived unless specifically included in the objections. .

Under the circumstances Davis waived these matters, Punch v. Gerlach, 153 Tex. 39, 263 S.W.2d 770, 771 (1954), and thereby failed to preserve such complaints for consideration by this court.

Davis also asserts that the trial court committed reversible error by chastising his expert witness in the presence of the jury because the chastisement was a prejudicial comment on the weight of the evidence. We do not agree.

The record reflects that the witness had made numerous unresponsive answers to questions which called for a yes or no answer. The court instructed the witness as follows:

THE COURT: I’ve set here for about an hour and a lot of these questions take a yes or no answer and you’re not doing it, and I’m telling you right now you’ll answer yes or no. Do you understand?
MR. RUBLE: Very clearly, sir.
THE COURT: Proceed.

In Sands v. Cooke, 368 S.W.2d 111, 112-13 (Tex.Civ.App. — San Antonio 1963, no writ), the court pointed out that:

[A] ‘judge is necessarily allowed some discretion in expressing himself while controlling the trial of a case, and a reversal of a judgment should not be ordered unless a showing of impropriety, coupled with probable prejudice, is made.’

The court’s instruction to the witness is not a comment on the weight of the evidence. The judge did no more than exercise his duty to control the trial of the case. Under the record before us, we are not able to say his comments were reasonably calculated to cause the rendition of an improper judgment in the case. Tex.R.Civ.P. 434.

In his brief, Davis asserted eleven points of error complaining of the matters which are discussed in this opinion. We overrule points of error two, five, eight, and ten. Our determination of these points is disposi-tive of this appeal; therefore, we deem it unnecessary to discuss further the remaining points of error. Accordingly, the judgment of the trial court is affirmed.

      . A vehicle passing through or over the guardrail would likely descend onto Western Street.

      . In this connection, we note that the Texas Pattern Jury Charges suggests:
      If ‘unavoidable accident’ is raised, the Committee recommends the following instruction, to be placed between the definitions of negligence and proximate cause:
      An occurrence may be an unavoidable accident, that is, an event not proximately caused by the negligence of any party to it.
      1 State Bar of Texas, Texas Pattern Jury Charges 3.03 (Supp.1973). We expressly refrain from approving or disapproving this recommended method of submission of unavoidable accident.


source: Caselaw Access Project

author: ROBINSON, Chief Justice.

license: Public Domain

text:
    CITY OF LUBBOCK, Texas, and its Board of Civil Service Commissioners, and its Chief of Police, J. T. Alley, Appellants, v. Robert ESTRELLO, Appellee.
    No. 8960.
    Court of Civil Appeals of Texas, Amarillo.
    April 30, 1979.
    Rehearing Denied May 29, 1979.

      Fred O. Senter, Jr., City Atty., James P. Brewster, Trial Atty., J. Worth Fullingim, Asst. City Atty., Lubbock, for appellants.
    Bill M. Wischkaemper, Lubbock, for ap-pellee.
   ROBINSON, Chief Justice.

Robert Estrello brought suit to set aside an order of the City of Lubbock Civil Service Commission indefinitely suspending and permanently dismissing him from his position as an officer of the Lubbock Police Department. The trial court rendered judgment that the Commission’s order be set aside and that Estrello be reinstated to his former position. Defendants, City of Lubbock, et al., appeal challenging the trial court’s conclusions of law that the Lubbock Civil Service Rules under which Estrello was suspended were too vague and indefinite to afford him due process of law and that there was not substantial evidence to support the findings of the Commission. Reversed and rendered.

On June 4, 1976, J. T. Alley, Chief of Police for the City of Lubbock, issued an order indefinitely suspending Officer Es-trello for violations of Lubbock Civil Service Rule XIV, section 54, paragraphs (f) and (i). The relevant portion of Rule XIV follows:

RULE XIV — DISMISSAL

Section 53. Order for Suspension: When it is the intention of the department head to discharge an employee in the classified service, he shall first enter an order for indefinite suspension without pay.
Section 54. Grounds for Dismissal or Suspension: The following shall constitute the only valid grounds for dismissal or suspension of a civil service employee:
* * * * * *
(f) Commission of acts showing lack of good moral character.
* * * * * *
(i) Conduct prejudicial to good order.
Section 55. Commission Finding: No employee shall be suspended or dismissed by the Commission except upon a finding by the Commission of the truth of the specific charges against him.

The order specifically charged that Es-trello, while on duty on June 1, 1976, was talking on a handset telephone connected by wires and alligator clips to a telephone terminal box attached to the rear of the building where Associates Financial Services Company had its offices. The order stated that Estrello was not authorized by either Southwestern Bell Telephone Company or Associates Financial Services Company to use such telephone facilities; that his acts amounted to an unauthorized and fraudulent use of the telephone equipment or system; and that by his acts he engaged in conduct prohibited by Section 31.04 of the Texas Penal Code.

Section 31.04. Theft of Service provides:

(a) A person commits theft of service if, with intent to avoid payment for service that he knows is provided only for compensation:
(1) he intentionally or knowingly secures performance of the service by deception, threat, or false token;
(2) having control over the disposition of services of another to which he is not entitled, he intentionally or knowingly diverts the other’s services to his own benefit or to the benefit of another not entitled to them. .

Tex.Penal Code Ann. § 31.04 (Vernon Supp. 1978-1979).

Estrello appealed to the Lubbock Civil Service Commission. A full hearing, at which Estrello was represented by counsel, was held. Evidence of each of the facts alleged in the suspension order was adduced. A police sergeant testified that about 3:30 on the morning in question he noticed a marked patrol unit parked behind the Associates Financial Services Company about one foot from the building. As his lights hit the unit he saw Officer Estrello sitting behind the steering wheel. It appeared to him that Officer Estrello had some type of telephone in his hand and that he was talking on it. The sergeant testified as follows:

I got out of my unit, walked around to the driver’s side of his. He was facing the east right up against the back of that building. I got out of my unit and I could see the wires coming out of the window of his attached to one of the telephone boxes that was attached to the back of the building. There were two of them there, one approximately 6 inches below the other. He had the bottom one open and these wires were attached to two terminals inside this box. As I walked up to his car, he took — he just put the telephone down in his lap. It was still attached to the building. I got hold of the phone and I pulled it out by the wires and as I got the telephone out of his car, Officer Estrello reached out and just undid the alligator clips — that is how it was attached — from this terminal box.
I asked him what he was doing, and he said, “I was calling IHOP to order my breakfast so it would be ready when I got there.”

Further, Estrello testified to his use of the handset. He testified that he bought the handset at a surplus center in Alaska when he was in the Army Signal Corps; that he was attempting to call a restaurant to order breakfast; and that he had received a busy signal. It is undisputed that he was not authorized to use the telephone facilities.

The Civil Service Commission issued its order, upholding and affirming the Police Chief’s order, and permanently dismissed Estrello from the service as a police officer. Estrello sought review in the district court. By agreement, the evidence in district court was limited to the transcript of the proceedings and evidence before the Commission. The district court set aside the order of the Civil Service Commission, reinstated Estrel-lo to his former position as a police officer and awarded him full pay, allowances, and fringe benefits from the date of suspension to the date of reinstatement. Defendants appeal from the district court judgment.

The scope of judicial review by the district court is limited by the substantial evidence rule. In applying the substantial evidence rule the court considers all of the evidence and may evaluate such evidence, but does not pass upon the preponderance of the evidence. Firemen’s & Policemen’s Civil Service Commission of San Antonio v. Shaw, 306 S.W.2d 160, 163 (Tex.Civ.App.— San Antonio 1957, writ ref’d n. r. e.). The standard to be applied is whether reasonable men might, from the evidence, reach the conclusion which the agency reached. Cusson v. Firemen’s & Policemen’s Civil Service Commission of San Antonio, 524 S.W.2d 88, 90 (Tex.Civ.App. — San Antonio 1975, no writ). The reviewing court is concerned with a reasonableness of the action, rather than with its “rightness.” Id. at 90. The court may not substitute its judgment for that of the administrative agency. The decision of the administrative agency should be accepted unless there is no substantial evidence on the record as a whole to support it. Watson v. Gulf Stevedore Corp., 400 F.2d 649, 651 (5th Cir. 1968), cert. denied, 394 U.S. 976, 89 S.Ct. 1471, 22 L.Ed.2d 755 (1969). Thus, the trial court can set aside the order of the Commission only if the evidence as a whole shows that reasonable men could not have reached the conclusion that the Commission reached.

In the case before us, some evidence in the record supports each of the specific allegations in the order of suspension. Most of the evidence was uncontroverted. After reviewing the entire record, we are of the opinion that a finding by the Civil Service Commission that Estrello committed the alleged acts is supported by substantial evidence.

We next consider whether paragraphs (f) and (i) of Lubbock Civil Service Rule XIV section 54 are so vague and indefinite that Estrello was denied due process of law. Rule XIV follows the Tex.Rev.Civ.Stat. Ann. art. 1269m (Vernon 1963). Section 5 of article 1269m provides that the Civil Service Commission shall make rules and regulations prescribing what shall constitute cause for removal or suspension of policemen and that no such rule shall be valid unless it involves one or more of certain named grounds. Included in the named grounds are acts of employees showing a lack of good moral character and conduct prejudicial to good order. Section 16 of article 1269m sets out the procedure for indefinite suspension. It provides:

The written statement above provided to be filed by the department head with the Commission, shall not only point out the civil service rule alleged to have been violated by the suspended employee, but shall contain the alleged acts of the employee which the department head contends are in violation of the civil service rules. It shall not be sufficient for the department head merely to refer to the provisions of the rules alleged to have been violated and in case the department head does not specifically point out the act or acts complained of on the part of such employee, it shall be the duty of the Commission promptly to reinstate him. . No employee shall be suspended or dismissed by the Commission except for violation of the civil service rules, and except upon a finding by the Commission of the truth of the specific charges against such employee.

In City of Wichita Falls v. Harris, 532 S.W.2d 653 (Tex.Civ.App. — Fort Worth 1975, writ ref’d n. r. e.), the court considered the constitutionality of article 1269m. In that case a fireman was charged with violating a rule proscribing “conduct unbecoming a gentleman and/or prejudicial to good order.” Following the general statement the order specified the hour, date, and the specific acts made the basis of the suspension. The court held that under the facts of the case the grounds for suspension given by the Fire Chief were not unconstitutionally vague and sustained the City’s point of error that the trial court erred in holding that section 5 of article 1269m was “unconstitutionally vague and general and invalid.”

The court in Harris cited and adopted the following language from Bolieu v. Firemen’s & Policemen’s Civil Service Com’n, 330 S.W.2d 234, 236 (Tex.Civ.App. — San Antonio 1959, writ ref’d n. r. e.):

We do not hold that such civil service hearings are subject to the stringency of the criminal law, but only that Section 5 of Article 1269m recognizes that the general charge supported by specific acts is a suitable procedure for a profession which demands a state of readiness, strict discipline, and a measure of obedience and valor not expected in ordinary callings. 62 C.J.S. Municipal Corporations § 606a.

In City of Wichita Falls v. Fowler, 555 S.W.2d 920 (Tex.Civ.App. — Fort Worth 1977, no writ), the court held that a rule adopted pursuant to article 1269m, section 5 and proscribing “conduct unbecoming to a gentleman and/or prejudicial to good order” was not unconstitutionally vague. In so holding the court cited and followed Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974), in which a federal statute authorizing removal “[only for] such cause as will promote the efficiency of the service” was held to be not unconstitutionally vague. In Arnett, Justice Rehnquist stated:

Congress sought to lay down an admittedly general standard, not for the purpose of defining criminal conduct, but in order to give myriad different federal employees performing widely disparate tasks a common standard of job protection.
⅛ * * * * *
Because of the infinite variety of factual situations in which public statements by Government employees might reasonably justify dismissal for “cause,”, we conclude that the Act describes, as explicitly as is required, the employee conduct which is ground for removal.

Id. at 159-61, 94 S.Ct. at 1647-1648, 40 L.Ed.2d 36-37.

In Fowler, supra, the court also found that the rule was not vague as applied to the specific conduct in that case. The court stated:

Nor do we think that the rule is unconstitutional as applied. The conduct in which the commission found Fowler engaged might well be punishable under Tex.Penal Code Ann. § 42.01(a)(1) which prohibits as “disorderly conduct” the use of “abusive, indecent, profane, or vulgar language in a public place [where] the language by its very utterance tends to incite an immediate ‘breach of the peace.’ ”

Id. at 925.

The courts recognize that a statute may be vague as to some conduct while other conduct is clearly within its ambit. For example, in Allen v. City of Greensboro, North Carolina, 452 F.2d 489 (4th Cir. 1971), a policeman was charged with making improper advances toward a young woman during an official investigation. He was disciplined under a regulation prohibiting “conduct unbecoming an officer and a gentleman.” The court, in overruling a contention that the regulation was unconstitutionally vague, said:

While the argument that the regulation prohibiting conduct “unbecoming an officer and a gentleman” is so vague as to provide no guidance to police officers in ascertaining the proper standard of conduct may well be valid under other circumstances, we agree with the district court that under the particular facts of this case it is without merit.

Id. at 491. See also Paulos v. Breier, 507 F.2d 1383 (7th Cir. 1974).

One whose conduct is clearly within a statute may not challenge it for vagueness. Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974). Thus, the question for our determination is whether the regulations would give a reasonable man notice that a police officer was prohibited from doing the acts with which Estrello was charged.

Estrello was charged with violation of regulations prohibiting acts showing lack of good moral character and conduct prejudicial to good order by the commission, in the course of duty, of acts which constitute theft under section 31.04 of the penal code. We are of the opinion that a reasonable man would have had fair notice that those acts were prohibited under the regulations in question. We conclude that the regulations were not unconstitutionally vague as applied to the acts with which Estrello was charged. Estrello does not have standing to assert that the regulations might be vague as to some other conduct by some other employee. Further, we find that there was substantial evidence to support the findings of the Commission.

Accordingly, the judgment of the trial court is reversed and judgment rendered affirming the order of the Civil Service Commission.

      . Justice Rehnquist announced the judgment of the Court in an opinion in which Burger and Stewart joined. Five opinions were filed in this case.


author: WARD, Justice.

text:
    CONTINENTAL NATIONAL BANK, Appellant, v. McCall SANDERS, Appellee.
    No. 6797.
    Court of Civil Appeals of Texas, El Paso.
    May 2, 1979.

      Guevara, Rebe & Baumann, Sal Rebe, El Paso, for appellant.
    Edwards, Belk, Hunter & Kerr, Crawford S. Kerr, Jr., El Paso, for appellee.
   OPINION

WARD, Justice.

This is a case involving the midnight deadline rule of Section 4.302 of the Tex. Bus. & Comm.Code Ann. (Tex.UCC1968). The payee on a check filed suit for the amount of the check against the payor bank where that bank held the demand item for eight days without paying, returning or sending notice of dishonor'of the item. The trial Court sitting without a jury entered judgment for the payee in the face amount of the check, together with interest. We affirm.

The Plaintiff and Payee on the check is McCall Sanders. Continental National Bank is Defendant. Eggs, Inc. was purchasing eggs from McCall Sanders. On August 20, 1976, Eggs, Inc. issued its check in the amount of $14,548.50 to the Plaintiff, McCall Sanders, the check being drawn on the account of Eggs, Inc. at the Continental National Bank located in El Paso. On August 23, McCall Sanders deposited the check in his account in the Hill Bank and Trust Company located in Weimar. Hill Bank and Trust Company accepted such check from the Plaintiff for deposit to his account, and gave him credit for the amount of said check. On the same day, August 23, Hill Bank and Trust Company sent the check in question directly by United States mail to Continental National Bank of El Paso for payment. The check in question was received by Continental National Bank on August 25 and was held by that institution until the check was returned unpaid by reason of insufficient funds on September 3, 1976. The check was received back by Hill Bank and Trust Company of Weimar on September 7, and re-presented a second time to the Continental National Bank through Federal Reserve channels. The re-presented check was received by the Continental National Bank the second time on September 9 and returned on September 10, 1976, the check on this occasion being returned before midnight of the following day after the Bank received it. At the time the check in question was re-presented the second time to the Continental National Bank, there were still not sufficient funds to clear the check on the account of Eggs, Inc. with the Continental National Bank. The check has never been paid, and on September 23,1976, Eggs, Inc. was adjudicated a bankrupt.

The Plaintiff’s petition against Continental National Bank is based on the sole ground that the Defendant became liable to the Plaintiff in the amount of $14,548.50 by retaining possession and control of said check from August 25 to September 3, 1976 without paying for or returning the item or sending notice of dishonor until after the expiration of its midnight deadline, and that liability existed under Section 4.302, Tex.Bus. & Comm.Code Ann. (Tex. UCC1968). That section is to the effect that if an item is presented on and received by a payor bank, the bank is accountable for the amount of a demand item other than a documentary draft whether properly payable or not if the bank, in any case where it is not also the depositary bank, retains the item beyond midnight of the banking day of receipt without settling for it or, regardless of whether it is also the depositary bank, does not pay or return the item or send notice of dishonor until after its midnight deadline. Section 4.104, Tex. Bus. & Comm.Code Ann. (Tex.UCC1968), defines “item” as meaning any instrument for the payment of money even though it is not negotiable but does not include money. That section also states that “midnight deadline” with respect to a bank is midnight on its next banking day following the banking day on which it receives the relevant item or notice or from which the time for taking action commences to run, whichever is later.

With this factual and legal background, the trial Court entered judgment for the Plaintiff against Continental National Bank for the sum of $14,548.50, together with interest on said sum from August 28, 1976 to date of entry of judgment in the amount of $1,570.79.

This Court in Marfa National Bank v. Powell, 512 S.W.2d 356 (1974, ref’d n. r. e.), pointed out that under Section 4.302, a pay- or bank in the absence of a valid defense becomes strictly liable when it does not timely act upon a demand item when presented. One of the authorities there cited was the leading case of Rock Island Auction Sales, Inc. v. Empire Packing Co., Inc., 32 Ill.2d 269, 204 N.E.2d 721, 18 A.L.R.3d 1368 (1965). The facts in that case are similar to those in the one before us. There, the payor bank, after receiving the check and finding the account inadequate, relied on its customer’s assurance that additional funds would be deposited and held the check beyond the midnight deadline without further action. The court imposed strict liability for the face amount of the check upon the bank, gave the reason why liability was created independent of negligence, and stated as follows:

The role of a payor bank in the collection process, on the other hand, is crucial. It knows whether or not the drawer has funds available to pay the item. The legislature could have considered that the failure of such a bank to meet its deadline is likely to be due to factors other than negligence, and that the relationship between a payor bank and its customer may so influence its conduct as to cause a conscious disregard of its statutory duty. The present case is illustrative. The defendant, in its position as a payor bank, deliberately aligned itself with its customer in order to protect that customer’s credit and consciously disregarded the duty imposed upon it. The statutory scheme emphasizes the importance of speed in the collection process.

That rule and the reason for it is now accepted. New Ulm State Bank v. Brown, 558 S.W.2d 20, 27 (Tex.Civ.App. — Houston [1st Dist.] 1977, no writ); see Annot., 18 A.L.R.3d 1376 sec. 9.

Defendant’s first point is that the second presentment of the check to the Defendant constituted a waiver and a knowing relinquishment of the Plaintiff’s cause of action as a matter of law. The first argument made under the point is that Hill Bank and Trust Company was the collecting bank, and as such it acted as agent under the terms of Section 4.201(a), Tex. Bus. & Comm.Code Ann. (Tex.UCC1968), and that in resubmitting the item the second time it waived notice of dishonor under Section 3.511(b)(1) (Tex.UCC1968). It is noted that under this last section it is provided that notice may be entirely excused when “the party to be charged has waived it expressly or by implication . . ” This obviously refers to an endorser, who can be held liable for an instrument in an action by the payee only if he has received timely notice of dishonor. We fail to see where the defense of waiver of notice of dishonor is available as a defense under an action brought pursuant to Section 4.302, Tex.Bus. & Comm.Code Ann. (Tex. UCC1968), as there is no party here to be charged. Cases cited by the Defendant involve an endorser’s waiver of notice of dishonor, where notice would be required to fix liability on the endorser, and are inapplicable. See Armour & Co. v. Guaranty State Bank, 253 S.W. 1110 (Tex.Civ.App.— Fort Worth 1923, no writ).

The Defendant next argues that the resubmission of the check constituted an effective waiver under general principles of law outside the commercial code. We reject this argument. In the first place, there was no pleading raising such an affirmative defense. Rule 94, Tex.R.Civ.P.; Smith v. Central Mutual Insurance Company, 555 S.W.2d 891 (Tex.Civ.App. — Beaumont 1977, no writ). Pleading aside, waiver generally is defined as the intentional relinquishment of a known right or intentional conduct inconsistent with such a claim. Massachusetts Bonding and Insurance Co. v. Orkin Exterminating Company, 416 S.W.2d 396 (Tex.1967). The Plaintiff testified that he had no knowledge that the checks were ever returned the second time. He could have had no intention to waive his claim against the Bank. The Defendant’s argument that Hill Bank and Trust Company was the collecting bank and as such was the Plaintiff’s agent is rejected. That agency was only to the limited extent as provided in Article 4.201, Tex.Bus. & Comm.Code Ann. (Tex.UCC1968). It did not make that Bank the Plaintiff’s agent for the purpose of releasing the liability that the Defendant Bank had already incurred. The facts do not create any waiver of the Defendant’s liability. Kane v. American National Bank & Trust Company, 21 Ill.App.3d 1046, 316 N.E.2d 177 (1974). The first point is overruled.

The Defendant’s second point is to the effect that the Defendant’s duty to give notice of dishonor was excused as the Plaintiff had no reason to expect that the item would be paid by the Defendant Bank, and that Section 3.511(b)(2) of Tex.Bus. & Comm.Code Ann. (Tex.UCC1968) excuses the giving of notice of dishonor within the time limitations required under Section 4.302, Tex.Bus. & Comm.Code Ann. (Tex. UCC1968), when the party demanding payment has no reason to expect that the instrument in question would be paid. Here, findings of fact and conclusions of law were neither requested nor filed. There was testimony by one of the owners of Eggs, Inc. that the Plaintiff knew that it was doubtful that there was money to cover Eggs, Inc.’s check. On the other hand, there was testimony by the Plaintiff that he did not have knowledge of this fact, and that he expected payment. This testimony was corroborated by the evidence that the Plaintiff made two shipments to Eggs, Inc. for which he accepted two checks for over $20,000.00 near the time that he received the check in question. The Plaintiff’s knowledge was a fact issue in the case. Here, the judgment of the trial Court must be affirmed if it can be upheld on any legal theory that finds support in the evidence. Seaman v. Seaman, 425 S.W.2d 339 (Tex.1968). The judgment therefore implies that the trial Court found the Plaintiff believed that the check would be paid promptly when presented. Because of this, we need not pass upon the application of Section 3.511(b)(2), Tex.Bus. & Comm.Code Ann. (Tex.UCC1968), as a defense to an action brought under Section 3.402, Tex.Bus. & Comm.Code Ann. (Tex. UCC1968). The second point is overruled.

The judgment of the trial Court is affirmed.


author: SHANNON, Justice.

text:
    Ex parte Carl GROTHE, Relator.
    No. 13028.
    Court of Civil Appeals of Texas, Austin.
    May 2, 1979.

      Carol E. Prater, Temple, for appellant.
    Charles C. Smith, Jr., Cameron, for appel-lee.
   SHANNON, Justice.

This is an original habeas corpus proceeding by which relator Carl Grothe seeks discharge from custody of the sheriff of Milam County. Relator was committed to jail by a judgment of contempt entered by the district court of Milam County. Upon presentation of relator’s application, this Court directed issuance of the writ and relator’s release on bond.

The contempt proceedings arose from a suit for divorce filed in the district court of Milam County by Linda A. Grothe against relator. On November 9, 1976, the district court in a “Temporary Order” ordered relator to pay $500.00 each month as temporary alimony and child support. On August 18, 1978, the district court entered a “Revised Temporary Order” reducing the temporary alimony and child support to $350.00 each month. The district court entered the “Final Judgment” on September 19, 1978. By that judgment the court dissolved the marriage, named managing and possessory conservators, divided the property between the parties, and ordered relator to pay $125.00 each month in support of each of his two children.

The judgment of contempt was signed on March 5, 1979. Relator was adjudged guilty of three contumacious acts: (1) refusal to pay temporary alimony and child support payments for February, 1977; March, 1977; July, 1978; and August, 1978, in violation of the “Temporary Order” signed November 9,1976; (2) refusal to pay temporary alimony and child support payments for September, 1978, in violation of the “Revised Temporary Order” signed on August 18, 1978; and (3) refusal to pay child support payments for October, 1978, and November, 1978, as ordered by the “Final Judgment” signed on September 19, 1978.

The district court assessed separate punishment for each contumacious act. For each act of contempt the court committed relator to jail for seven days, and for such further time as he failed to comply with the respective order.

On March 5, 1979, the date of the order of contempt, the temporary orders of November 9, 1976, and August 18, 1978, were not valid, subsisting orders. Both temporary orders had been superseded by entry of the divorce decree of September 19,1978. Ex Parte Deckert, 559 S.W.2d 847 (Tex.Civ.App.1977). Those parts of the judgment of contempt based upon disobedience of the temporary orders not in existence at the time of the signing of the contempt judgment are void.

Relator’s third contumacious act was his alleged refusal to pay child support payments for October, 1978, and November, 1978 “ . .in the manner provided by . ” the divorce decree. In support of his contention that his commitment was invalid, relator filed the affidavit of the district clerk of Milam County, Leola Ko-mar. The affidavit showed that on December 1, 1978, relator paid into the clerk’s office the October, 1978, and November, 1978, child support payments. By the terms of the divorce decree, the October payment was due on October 9,1978, and the November payment was due on November 9, 1978.

By making the October and November support payments on December 1, 1978, relator did not pay the child support “ . . . in the manner provided by . ” the divorce decree. The district court properly adjudged relator in contempt and assessed punishment as seven days in jail. The contempt judgment provided further that relator remain in jail until he complied with the divorce decree. Since relator made the October and November, 1978, support payments, the coercive part of the judgment is void.

It appearing to this Court that relator has served four days of the punishment assessed in the county jail, he is remanded to the custody of the sheriff of Milam County, Texas, to serve three days in jail. When relator has served three days, he shall be discharged.

Relator Remanded to the Custody of the Sheriff.


author: McDONALD, Chief Justice.

text:
    FORD MOTOR CREDIT COMPANY, Appellant, v. Alberto URESTI et al., Appellees.
    No. 5966.
    Court of Civil Appeals of Texas, Waco.
    May 3, 1979.
    Rehearing Denied May 24, 1979.

      Doyle L. Coatney, Kelfer & Coatney, San Antonio, for appellant.
    John L. Sanders, LeLaurin, Adams, Ei-chelbaum & Sanders, P. C., Walter C. Wolff, Jr., Wolff & Wolff, San Antonio, for appellees.
   OPINION

McDONALD, Chief Justice.

Plaintiff (appellant) Ford Motor Credit Company sued (appellees) defendants Ures-ti and Hernandez alleging Uresti purchased a used Ford 4000 diesel tractor from Farmers Tractor and Equipment Company, executing a retail installment contract dated July 3, 1975 for same; that Farmers Tractor and Equipment Company transferred such installment contract to plaintiff; that Uresti was in arrears $2,978.80 on such contract; and that Uresti had transferred the tractor to Hernandez. Ford sought judgment for $2,978.80, $446. attorneys’ fees, and foreclosure of its lien against Uresti; and judgment for possession of the tractor against Hernandez.

Uresti answered that the retail installment contract violated Title 15, Section 1601 of the United States Code (the Truth in Lending Act) and Article 5069 Texas Civil Statutes (the Consumer Credit Code), prayed plaintiff take nothing, and that he be awarded penalties and attorneys’ fees provided by such laws.

Hernandez answered he had paid Uresti $5,000. for the tractor without actual notice of Ford’s security interest, and that the retail installment contract was invalid under the Federal Truth in Lending Act and the Texas Consumer Credit Code. Hernandez prayed Ford take nothing as to him; and cross claimed against Uresti for $5,000. plus attorneys’ fees in the event Ford should recover possession of the tractor from him.

Trial was to the court which rendered judgment: 1) For plaintiff Ford against defendant Uresti for $2,978.80 (due on the installment contract) plus $446. attorneys’ fees; less an offset of $1,000. for violation by Ford of the Federal Truth in Lending Act plus $850. attorneys’ fees; leaving net judgment for Ford against Uresti for $1,574.80; 2) For defendant Hernandez for the tractor free and clear of lien.

Plaintiff Ford appeals on 3 points contending among other matters:

The trial court erred in rendering judgment the tractor was property of Hernandez, free and clear of any lien, as Hernandez had constructive notice of the lien.

Farmers Tractor and Equipment Company sold Uresti a used Ford tractor July 3, 1975. Uresti executed a retail installment contract to Farmers which assigned same to Ford July 9, 1975. Ford filed the financing statement which retained a lien on the tractor with the County Clerk. In July 1976 Uresti sold the tractor to Hernandez, representing the tractor was free and clear of lien. Hernandez had no actual knowledge of the lien; but did not check the records of the County Clerk. Uresti defaulted in his payments in early 1977 and Ford declared the entire amount payable, and filed this suit April 14, 1977, seeking judgment for $2,978.80 due (plus attorneys’ fees), and foreclosure of lien from Uresti, and judgment for possession of the tractor from Hernandez.

The description of the security interest retained by the seller is sufficient. Plaintiff properly filed the retail installment contract with the County Clerk and such was sufficient to place Hernandez upon constructive notice of plaintiff’s security interest in the tractor. Plaintiff’s contention is sustained, and requires a reversal of the take-nothing judgment as to defendant Hernandez.

Defendant Hernandez asserts cross points: 1) complaining of the failure of the trial court to grant defendant’s relief for plead violations by plaintiff of the Texas Consumer Credit Code; and 2) seeking indemnity against Uresti for any judgment awarded against him.

Sustaining of plaintiff’s contention (supra) requires a reversal of the take-nothing judgment as to defendant Hernandez. We, however, remand to the trial court in the interest of justice under the rule laid down in Morrow v. Shotwell, Tex., 477 S.W.2d 538; Scott v. Liebman, Tex., 404 S.W.2d 288; and Littlejohn v. Kariel, Tex. Civ.App. (Waco) NWH, 568 S.W.2d 452.

Generally a reversal of judgment as to a party appealing therefrom will not justify reversal against other non-appealing parties, but such rule does not apply in cases where the rights of appealing and non-appealing parties are so interwoven or dependent on each other as to require a reversal of the whole judgment when a part thereof is reversed. Lockhart v. A. W. Snyder & Co., Tex., 163 S.W.2d 385; Bates v. First National Bank of Waco, Tex.Civ.App. (Waco) NWH, 502 S.W.2d 181.

We accordingly reverse and remand the entire case including all parties defendant to the trial court for trial on the merits.

REVERSED AND REMANDED.


author: HALL, Justice.

text:
    GENERAL DYNAMICS CORPORATION, Appellant, v. Maxine M. HARRIS, Appellee.
    No. 5979.
    Court of Civil Appeals of Texas, Waco.
    May 3, 1979.
    Rehearing Denied May 24, 1979.
    David Fielding, McDonald, Sanders, Ginsburg, Phillips, Maddox & Newkirk, Fort Worth, for appellant.

      Gary J. Campbell, Kennedy, Minshew, Evans, Campbell & Cain, P. C., Sherman, for appellee.
   OPINION

HALL, Justice.

Appellant General Dynamics Corporation brought this appeal for review of a judgment against it granting appellee Maxine M. Harris recovery of retirement benefits in the sum of $2,783.22 which accrued to ap-pellee’s former husband during his employment with appellant, but were awarded to appellee by court order as part of the division of community property when she and Mr. Harris were divorced. Among other grounds for reversal, appellant asserts the court erred in denying its plea to abate this case until Mr. Harris was joined as a party. We overrule that contention, and the others, and affirm the judgment.

Appellee and Lloyd Dean Harris were married July 22, 1943. They were divorced on May 12, 1975, by judgment of the 15th Judicial District Court of Grayson County, Texas. Mr. Harris’s employment with appellant began in April, 1952, and ended on July 9, 1971, for reasons other than retirement. When his employment was terminated in 1971, he was a member of appellant’s retirement plan for salaried employees, which was funded by contributions from the employees and appellant. Also, at the time of termination, he was subject to an employment recall for a period of two years. When his recall period ended without action on July 9, 1973, he became a vested member of the retirement plan with a vested benefit under the terms of the plan in the amount of $2,783.22.

The judgment divorcing appellee and Mr. Harris was rendered on May 12, 1975. It recites that Mr. Harris waived issuance and service of citation, and that the case was determined by the court without a jury. It awarded custody of the couple’s ten-year-old daughter to appellee, required Mr. Harris to make monthly child support payments, and granted him rights of visitation with the child. The property found to be community property was divided by the court in this manner: Shares of the stock of appellant General Dynamics Corporation were awarded to Mr. Harris. Appellee was awarded the parties’ house and lot located in the City of Sherman, and the contents of the house, subject to any indebtedness thereon; and also “those certain community property retirement benefits accruing to [Mr. Harris] while married to [Mrs. Harris] and attributable to his employment with General Dynamics, Convair Aerospace Division, San Diego, California, and to his participation in and contributions to the General Dynamics Retirement Plan for Salaried Employees.” The divorce decree then provided, “[Mr. Harris] is directed to execute a release of these retirement benefits directing General Dynamics, Convair Aerospace Division, San Diego, California, to pay said benefits to Petitioner, and should he fail to do so within a reasonable time following the entry of this Decree, then this Decree shall be self-executing and operate as a conveyance of [Mr. Harris’s] interest in said benefits to [Mrs. Harris].”

Thereafter, appellee furnished appellant a copy of the divorce decree, and requested payment of the retirement benefits to her. Appellant refused. Appellee then brought this suit in August, 1976, in the 15th Judicial District Court of Grayson County, Texas, against appellant and the trustee of the retirement plan for recovery of the benefits. Eventually, on joint motion of the parties, the trustee was dismissed from the suit.

Appellant moved to abate the suit until Mr. Harris was joined as a party, pleading that the retirement benefits in question were his vested interests in the plan as a former salaried employee of appellant and as a former member of the plan; that his and appellant’s rights and interests in respect to the benefits are defined in the plan; that payment of the benefits to ap-pellee would be contrary to and in violation of the terms of the plan; and that it “should not be compelled to make any disposition of said benefits in violation and in breach of said plan unless and until the said Lloyd Dean Harris has been made a party to this suit.” After a hearing in August, 1977, the plea in abatement was denied. Appellant expressly reserved its objection to the ruling.

The case was then heard on its merits by the court without a jury in March, 1978. On the trial, the parties stipulated that the retirement benefits attributable to Mr. Harris’s employment with appellant totaled $2,783.22; that, under the terms of the plan, when Mr. Harris’s employment recall period ended in July, 1973, appellant “was obligated to pay” that sum to Mr. Harris “as the total value of his vested benefits under the retirement plan”; that because Mr. Harris did not execute an option for an annuity within the time allowed the benefits were payable in a lump sum; and that in the divorce judgment those benefits were awarded to appellee. At the conclusion of the trial, the judgment in question was rendered in favor of appellee against appellant in the amount of $2,783.22, which the court found in the judgment was “the value of such retirement benefits” awarded to appellee in the divorce decree.

Findings of fact and conclusions of law were not requested by the parties nor filed by the court.

Appellant first asserts that under the provisions of Rule 39, Vernon’s Tex.Rules Civ.Proc., Mr. Harris should have been joined as a party to this action and that the court erred in denying the plea in abatement. In its pertinent parts, Rule 39 contains these provisions:

(a) Persons to be Joined if Feasible. A person who is subject to service of process shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant, or, in a proper case, an involuntary plaintiff.

Appellant recognizes that under Texas law the divorce court was empowered to divide the Harris’s property (including the retirement benefits) in the manner done. See, Busby v. Busby (Tex.1970) 457 S.W.2d 551. And, as we have said, appellant stipulated that in the divorce decree appellee was awarded the retirement benefits in question, and that it was at that time “obligated to pay” the benefits to Mr. Harris. However, appellant argues that Mr. Harris’s “refusal” to comply with the decree and execute a release of the benefits to appellee “shows that he claims an interest in the retirement benefits,” and that for this reason he should have been joined under Rule 39 to “protect his rights in the retirement plan” and to “protect appellant from possible double liability.” We overrule those contentions. First, no evidence was adduced on the hearing of the plea in abatement showing that Mr. Harris had not executed the release or that he was claiming any interest in the benefits. Appellant’s present contention in those regards must be based under the record on the following testimony of appellee on the trial on the merits: “I understand that under the terms of the divorce judgment Mr. Harris was ordered to execute an assignment of these benefits to me. And, alternatively, if he did not, then under the terms of the judgment that would not be required. I talked to him just two weeks ago and there was no way he was going to contest it in any way. He hasn’t cooperated with me, but he hasn’t refused anything, either.” That testimony supports appellant’s contention that Mr. Harris has not executed the release, but it does not establish as a matter of law that he claims any interest in the benefits. Rather, it supports an opposite implied finding by the court. Second, by the time the plea in abatement was heard in August, 1977, the divorce judgment by its terms had effected the release. Finally, with or without the release by Mr. Harris, the divorce decree unqualifiedly awarded the retirement benefits to appellee. The benefits were vested in Mr. Harris at that time, and were owed to him by appellant. Accordingly, prior to the divorce appellant held the benefits in trust for Mr. Harris; after the divorce, appellant held the benefits in trust for appellee who was then sole owner thereof. Teacher Retirement System Of Texas v. Neill, 563 S.W.2d 873, 874-875, (Tex.Civ.App. — Waco 1978, writ ref’d n. r. e.). The trial court correctly found that Mr. Harris had no interest in the benefits and no legitimate claim thereto. Without such interest, Mr. Harris was a stranger to this suit, and his joinder was not required under Rule 39. The plea in abatement was properly overruled.

The regulation and administration of the retirement plan before us fall within the ambit of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001 et seq. Appellant asserts that State action over the subject matter of our suit was preempted by ERISA, and that under § 1144(a) and § 1132(a)(1)(B) appellee may not maintain this action. We disagree.

§ 1144(a) provides in relevant part that ERISA “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.” § 1132(a)(1)(B) provides, “(a) A civil action may be brought (1) by a participant or beneficiary . . . (B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” Additionally, we also notice subsection (e)(1) of § 1132, which sets forth these provisions: “Except for actions under subsection (a)(1)(B) of this section, the district courts of the United States shall have exclusive jurisdiction of civil actions under this sub-chapter brought by . . .a participant [or] beneficiary. State courts of competent jurisdiction and district courts of the United States shall have concurrent jurisdiction of actions under subsection (a)(1)(B) of this section.”

It is undisputed that appellee is neither a “participant” nor a “beneficiary” within the meaning of those terms as defined and used in the Act. Accordingly, appellant asserts that under § 1132(a)(1)(B) she has no standing to bring this action, and the court erred in assuming jurisdiction over it.

Because ERISA was only recently enacted, few cases have construed its preemption feature. The case most factually in point with ours is Stone v. Stone, 450 F.Supp. 919 (N.D.Cal.1978). Under the community property laws of the State of California Mrs. Stone was awarded an interest in her husband’s vested retirement benefits under a plan subject to ERISA when the parties were divorced. In that case the identical contention made by our appellant, with reliance upon the same sections of ERISA cited by appellant, was considered and rejected by the federal court and it was held that Mrs. Stone was entitled to sue and recover judgment against the Pension Plan for the benefits awarded to her by the State court. In an exhaustive opinion which also dealt with other issues, the court held that neither the preemption clause nor a provision against transfer of the retirement benefits contained in ERISA prevented the award of the interest to Mrs. Stone. The court then reasoned that if the transfer of benefits was proper, then the cause of action set forth in § 1132(a)(1)(B) for recovery of the benefits was also transferred. The court said, “If Congress intended to permit divorced nonemployee spouses to receive their community interest in benefits directly from employee benefit plans, it is reasonable to conclude that Congress intended to give them the means to obtain the benefits which belong to them.” [450 F.Supp. 933, n. 17], We follow that reasoning. Under § 1132(e)(1), supra, the state courts and the federal courts have concurrent jurisdiction of that cause of action. See also, Kerbow v. Kerbow, 421 F.Supp. 1253 (N.D.Tex.1976).

Appellant’s remaining points are also without merit. They are overruled.

The judgment is affirmed.

      . In the recent case of Hisquierdo v. Hisquier-do, -U.S. -, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979) it was held that an award to the wife of an interest in her husband’s expectation of future benefits under the Railroad Retirement Act of 1974, 45 U.S.C. § 231, was prohibited under that Act. The features of that Act upon which the decision was based, expressing the congressional intent and purpose of the Act, are so distinguishable from those in ERISA that we do not consider the ruling dispositive of our problem. For example, the benefits under the Railroad Retirement Act are funded from federal taxes, the assignment and anticipation of benefits are prohibited “under any circumstances whatsoever” except for the limited purpose of satisfying child support payments or an alimony obligation (which does not include a transfer to the employee’s spouse under a division of their property), and the benefits accorded the spouse of a worker who dies are terminated when those parties are absolutely divorced.


text:
    Roger A. BURLESON et ux., Appellants, v. R. D. FINLEY et al., Appellees.
    No. 12856.
    Court of Civil Appeals of Texas, Austin.
    May 23, 1979.
    Rehearing Denied June 20, 1979.

      James L. Cutcher, Barkley & Cutcher, Taylor, for appellants.
    H. Lee Godfrey, Graves, Dougherty, Hearon, Moody & Garwood, Austin, for ap-pellees.
   SHANNON, Justice.

This is an appeal from the judgment of the district court of Williamson County in a trespass to try title and assault case.

Appellants Roger A. and Mary D. Burle-son, husband and wife, filed suit against appellees R. D. Finley, his wife Ruth Finley, and others to try title to a 1.02-acre tract located in Williamson County. In their trial answer, appellees R. D. and Ruth Finley asserted a cause of action in assault against Burleson. As a part of the relief sought, appellees applied for an order enjoining Burleson from interfering with their use and enjoyment of the land in question.

After trial to a jury, the district court entered judgment for appellees for possession of and title to the tract of land. The judgment also provided that R. D. and Ruth Finley recover $9,600.00 in actual and exemplary damages against Burleson. In addition, the judgment permanently enjoined Burleson from interfering with appellees’ use and enjoyment of the land.

In 1937, the Burlesons bought a 580-acre ranch in Williamson County. The deed to Burleson described the east boundary of the part of the ranch here involved to be the center of Brushy Creek. In June of 1977, appellees held record title to a 192-acre parcel of land from the center of Brushy Creek to the east from the Burleson land.

The 1.02-acre tract in dispute lies east of Brushy Creek. The factual foundation for the Burlesons’ claim to that tract is Roger Burleson’s assertion that in 1939 or 1940 he orally agreed with appellees’ predecessor-in-title, William I. Insall, that Insall would maintain a portion of the fence on Burle-son’s side of the creek and that Burleson would keep up a piece of fence on Insall’s side, and that each would own the strip of land where his respective cattle would roam. Burleson later built a road on the tract and a dam across the creek.

In 1976, appellee Finley purchased, for the purpose of subdivision, part of what had been the Insall ranch. In September, 1976, Finley told Burleson that he intended to take down the fence on the east side of the creek that partially bounded the east side of the 1.02-acre strip. An argument resulted, and Burleson attempted to strike Finley. Some time thereafter, Finley began development of the subdivision.

On June 26, 1977, appellees Finley and another couple were driving about viewing the subdivision. They stopped their automobile near the fence of the 1.02-acre tract. Finley crossed the fence and removed some “no trespassing” signs which Burleson had placed within the tract. Burleson happened to be nearby and heard the racket occasioned by the removal of the signs. He took a pistol from his pickup and walked through the pasture toward the noise. Finley, in the meantime, had recrossed the fence and was standing by his automobile. After an argument between Burleson and Finley, Burleson fired his pistol five times. Burleson testified that he was trying to scare Finley so that he would not return. Some of the slugs struck Finley’s automobile, but no person was struck. Finley and the others fled in the automobile as hastily as possible.

The next day Burleson filed suit to establish title to the 1.02-acre tract and for in-junctive relief restraining appellees from removing the fence bounding the subject tract of land.

The jury refused to answer affirmatively the first issue of a Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114 (1921) submission, that an agreement existed between Burleson and Insall to transfer ownership of the 1.02-acre tract to Burleson. The jury refused to find that Burleson had peaceable and adverse possession of the tract for ten years prior to June 27, 1977. The jury answered that the Finleys suffered $1,600.00 in damages as a result of the shooting. In addition, the jury answered that the shooting was malicious and that the Finleys should be awarded $8,000.00 as exemplary damages.

Appellants complain of the judgment by ten points of error. The most serious question in the appeal is raised by appellants’ point of error one, “The Court erred in overruling Plaintiff’s Motion for Mistrial when Defendants’ attorney violated the Court’s ruling and informed the jury on voir dire that Roger A. Burleson had killed Mr. Insall.”

In 1953, Burleson shot and killed William I. Insall, the Finleys’ predecessor-in-title, and the person with whom Burleson claimed to have made an oral agreement concerning ownership of the 1.02-acre tract. Burleson was tried and acquitted for the killing.

Prior to trial counsel for appellants filed a “motion in limine” requesting the court to instruct counsel and appellees’ witnesses not to refer to the fact that Roger A. Burleson “. . . was at one time tried for the offense of murder in the District Court of Williamson County.” No order granting the motion appears in the transcript; however, the word “sustained” appears written in the margin opposite each ground asserted in the motion. Although the word “sustained” is not initialed or signed by the district court, the parties have treated the notation as an order by the court sustaining the motion in limine.

During jury voir dire counsel for appel-lees stated to the panel, “Mr. Insall is the man Mr. Burleson said he had this oral agreement with back in 1939. Mr. Insall is dead. Mr. Burleson killed him.” Counsel for appellants began an objection to the statement. At that time the court admonished the jury that they should not consider the statement for any purpose. Later, outside the presence of the jury, counsel was permitted to state fully his objection and move for a mistrial. The court overruled the motion for mistrial.

During trial of the cause R. D. and Ruth Finley were permitted to testify that they were aware that Burleson had killed a neighbor. The court instructed the jury to consider the testimony only as bearing upon the Finleys’ state of mind and not as tending to show that Burleson had ever inflicted harm upon another person.

In general, broad latitude should be allowed on voir dire to enable counsel to intelligently exercise his peremptory challenges. Fort Worth & D. C. Ry. Co. v. Kiel, 195 S.W.2d 405 (Tex.Civ.App.1946, writ ref’d n. r. e.). We have concluded that counsel’s statement on voir dire examination was not improper, and, as a result, the court did not err in refusing to declare a mistrial.

In a suit for assault, proof of prior assaults committed by the defendant is not admissible to show that the defendant committed the assault in question. Nevertheless, if exemplary damages are sought for the assault, evidence of prior assaults is admissible on the issue of exemplary damages. Jacques v. Ellis, 219 S.W.2d 104 (Tex.Civ.App.1949, no writ).

Furthermore, as a part of their claim for damages for the assault, appellees pleaded, in effect, that as a result of the attack they had suffered fright, emotional disturbance, and mental anguish, and that they would continue in the future to so suffer. Appellees were aware that Burle-son had killed a neighbor at the time he shot at appellees, and appellees were prepared to testify, and did testify, to that knowledge and its effect on their state of mind.

Evidence that appellees knew that Burle-son had killed Insall was relevant and material (1) to show appellees’ state of mind in connection with their claim for compensatory damages for fright, emotional disturbance, and mental anguish and (2) to the issue of exemplary damages. Accordingly, the district court did not err in refusing to grant appellants’ motion for mistrial.

Points three, four, and five complain of the district court’s refusal to strike the intervention of Dick M. and Fern D. May-field, appellees’ immediate predecessors-in-title. The claimed error is grounded upon the alleged fact that appellees agreed with intervenors, that provided intervenors paid one-half of the attorney’s fees intervenors would be relieved of any liability on their covenant of general warranty irrespective of the outcome of the suit.

Any party may intervene in a suit, subject to being stricken by the court for sufficient cause on motion of the opposite party. Tex.R.Civ.P. 60. When a party is sued for lands, the warrantor may make himself a party defendant in the suit and shall be entitled to assert such defenses as if he had been the original defendant. Tex. R.Civ.P. 786. The question whether the Mayfield’s intervention, as warrantors, should have been stricken constituted a matter addressed to the discretion of the district court. 1 McDonald, Texas Civil Practice § 3.47 (1965 Rev. Vol.). Regardless of whatever agreement existed between in-tervenors and appellees, regarding their liability inter se, the intervenors still remained potentially liable to remote grantees under their covenant of general warranty. Alvord v. Waggoner, 82 Tex. 615, 32 S.W. 872 (1895). The district court then acted within its discretion in refusing to strike the intervention. The points are overruled.

By point of error six appellants claim that the district court erred in overruling their motion to sever their cause of action in trespass to try title from the cross-action for damages for assault.

In their motion for severance appellants alleged that if the causes were not severed, their cause in trespass to try title would be prejudiced by proof of the shooting incident. Appellants averred further that the two causes of action were not dependent upon each other and that separate evidence would be necessary to prove each of the causes of action. Appellants, by the motion, did not move to sever appellees’ application for injunctive relief.

Texas R.Civ.P. 41 provides that, “[a]ny claim against a party may be severed and proceeded with separately.” A severance is appropriate if a controversy involves two or more separate and distinct causes of action, each of which might constitute a complete lawsuit within itself. Hall, Severance and Separate Trial in Texas, 36 Texas L.Rev. 339 (1958). An examination of the transcript shows that the suit involved two or more separate and distinct causes of action and was therefore subject to severance.

An order of severance or refusing severance will not be disturbed on appeal except for abuse of discretion. Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677 (1956); Hamilton v. Hamilton, 154 Tex. 511, 280 S.W.2d 588 (1955). Had the district court severed the trespass to try title suit from the suit for assault, nevertheless, evidence of the shooting episode would have been admissible in the trespass to try title suit. This is so since appellees had applied for injunctive relief to restrain Burleson from trespassing on the land in question. To prove their right to injunctive relief, appel-lees would have been entitled to prove the shooting incident. There was no abuse of discretion in the denial of the motion for severance. Point six is overruled.

By point of error eight appellants claim that the court erred in excluding the testimony of Michael Burns to the effect that appellee Finley had threatened him with a shotgun and had run over him with an automobile.

During cross-examination counsel interrogated Finley concerning the presence of a shotgun in his vehicle. In response to questions, Finley denied that he had ever drawn the shotgun on anyone. On re-cross examination appellants’ counsel asked Finley if he had “pulled” a shotgun on Michael Burns in January of 1977. Finley answered, “I did. I’m sorry. I forgot the incident.” Counsel interrogated Finley further about the incident with Michael Burns, and Finley consistently replied that he had drawn the shotgun on Burns and that he had forgotten about it until counsel had questioned him about the specific incident. Finley denied that he tried to run over Burns.

Burns testified on bill of exception that Finley drew the shotgun on him and that Finley ran over him with his car. These transactions arose from a quarrel between Finley and Burns concerning a check allegedly stolen by Burns. Burns admitted that just prior to the shotgun incident, he had intentionally attempted to provoke a fist fight with Finley by making infamous remarks about Finley’s daughter. After Finley drew the shotgun, he speeded away in his car and Burns was allegedly struck by the side view mirror of the car.

The district court did not err in excluding Burn’s testimony. The quarrel between Burns and Finley was collateral and immaterial to any issue to be determined in the trial and therefore was inadmissible. 1 McCormick and Ray, Texas Law of Evidence §§ 683, 684 (1956).

Point of error seven is “[t]he Court erred in admitting into evidence the statement of R. D. Finley as to what he had been told by certain hunters about Roger A. Burleson.” Finley had leased his land for deer hunting. Finley testified without objection that his deer hunters related to him that while they were hunting on Finley’s land Burleson appeared carrying a gun and told them to stay away from the fence. Appellants insist that Finley’s statement is hearsay.

Communications made or received by a person will often be relevant, not as evidencing that the facts are as stated in the communication, but instead as tending to show the knowledge or belief of the person who communicated or received the statement. 1 McCormick and Ray, Texas Law of Evidence § 799 (1956). The hunters’ communication was not admissible for the truth of the facts stated therein but it was admissible and probative as tending to show its effect upon Finley’s state of mind. The evidence was relevant and material to Finley’s claim for damages for fright, emotional disturbance, and mental anguish.

Point of error two is that the district court . erred in admitting the Affidavit of Clinton P. Rippy into evidence.” Appellees called Rippy, a surveyor who had surveyed Burleson’s land in 1973. On direct examination, counsel asked Rippy whether Burleson had told him that his property line was the center of Brushy Creek. Rippy answered, “I’m going to try to answer that, and I don’t think I can answer it ‘yes’ or ‘no’ as such. But I can answer it in this fashion, if I may.” Rippy then testified that he had discussed the matter with Burleson and had told Burleson that the field notes went to the center of the creek, and that “. . . at that time, it was understood between he and I [sic] that we were supposed to survey up the center line of Brushy Creek, and not to go to the fence on the other side.”

The court, over objection of appellants’ counsel, permitted Rippy to read an affidavit signed by him in June, 1977. The affidavit states, in part, “At the time I surveyed the property of Mr. Burleson, I was told by him that his property line ran to the center of the channel of Brushy Creek and not to the fence which was located on the property of Dick M. Mayfield and wife, Fern D. Mayfield.”

Appellees defend the admission of the affidavit upon the basis that they were entitled to impeach their witness Rippy because he had “. . . attempted to qualify or contradict his earlier sworn statement [the affidavit]. . .

Where a party is surprised by the testimony of his own witness, the party is entitled to impeach the witness by showing statements made by the witness at another time that are contradictory to his testimony given at trial. The testimony sought to be discredited must be such as disproves, in some degree, the ease of the party by whom the witness is called. “It is not enough that the witness simply disappoints the expectations of such party, by failing to give testimony as beneficial as was expected.” Morgan v. Stringer, 120 Tex. 220, 36 S.W.2d 468 (1931).

The only “surprise” shown by Rippy’s testimony was counsel’s statement that he was surprised. Although surely disappointing to appellees, Rippy’s testimony did not disprove, in any degree, appellees’ case. Morgan v. Stringer, supra.

Appellants’ objection to the admission of the affidavit was, “Your Honor, this is nothing more than a self-serving affidavit. I think if the Court will look at it, that the Court will come to that conclusion. . Our same objection, Your Honor, that the witness is here and he’s able to do his own testifying, and this is nothing more than a self-serving affidavit prepared by somebody at that time.”

A valid objection to the offer of evidence is one that names a particular rule of evidence that will be violated by the admission of the evidence. De Garca v. Galvan, 55 Tex. 53 (1881); Walker v. Great Atlantic & Pacific Tea Co., 131 Tex. 57, 112 S.W.2d 170 (1938); University of Texas System v. Haywood, 546 S.W.2d 147 (Tex.Civ.App.1977, no writ). The purpose of requiring a specific objection is, of course, to enable the trial court to understand the precise question and to make an intelligent ruling and to afford the offering party an opportunity to remedy the defect if possible. 1 McCormick and Ray, Texas Law of Evidence § 24 (1956).

An examination of appellants’ objections to the offer of the evidence shows that counsel did not specify a particular rule of evidence that would be violated by the admission of the affidavit. As a result, the trial court never had the opportunity to understand the precise objection to the offer. By objecting generally, appellants waived the complaint that appellees’ offer of the affidavit was an effort to impeach their own witness without showing surprise and without showing that the witness’ testimony disproved, in some degree, appellees’ case.

Point of error nine is that the court erred in admitting into evidence a “Xerox” copy of an executory contract of sale of a part of the 1.02-acre tract. Appellants asserted by objection that the admission into evidence of the copy was a violation of the best evidence rule and was hearsay.

Assuming the court erred in admitting the “Xerox” copy of the executory contract of sale, appellants have not shown that the error was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. Tex.R. Civ.P. 434.

The judgment is affirmed.

Affirmed.

      . Counsel’s statement was not technically a violation of the court’s order in limine. The ultimate question raised by the point is whether the statement made by counsel referred to evidence that would be admissible during the course of the trial.