author: HUGHES, Justice.

text:
    Glen MEALOR, Appellant, v. S. H. LEGGITT & CO., Appellee.
    No. 17964.
    Court of Civil Appeals of Texas, Fort Worth.
    May 18, 1978.

      Bader, Wilson, Menaker, Cox & Branson, and Bertrán T. Bader, III, Dallas, for appellant.
    Charles Ways, Dallas, Gardere, Porter & DeHay, and Gordon H. Rowe, Jr., Dallas, for appellee.
   OPINION

HUGHES, Justice.

Glen Mealor sued S. H. Leggitt & Co., a corporation, for damages in a personal injury suit. Trial court granted a motion for directed verdict requested by Leggitt at the time both parties had closed. Mealor has, appealed from the take-nothing judgment based on such verdict.

We reverse and remand.

Mealor, at the time he fell through the Leggitt ceiling, was owner and operator of an appliance shop and repair service. Leg-gitt engaged Mealor’s company to repair a furnace. Mealor went to Leggitt’s warehouse to assist Mealor’s employee, Dan Whitaker, repair a furnace unit sitting on a wooden platform on top of joists in the attic of such warehouse. Mealor went into the attic with Whitaker, carrying a flashlight which he said he was using. He sat down, by his testimony, at the front of the heating unit to see if the pilot light was on. While leaning back to look up under a cowl covering the pilot light he fell into an unfloored part of the attic where there was only soft insulation covering the ceiling material attached to the joists on their under side. He went through the ceiling material and fell 5 to 8 feet to the floor of the coffee room below.

Mealor alleged Leggitt was negligent in:
1. Failing to adequately light the area where he was working;
2. Failing to warn Mealor of the small flooring area at the front of the furnace;
3. Failing to warn Mealor that the flooring in front of the furnace was not large enough for him to lean back to inspect the pilot light without getting on to the ceiling;
4. Failing to warn Mealor that the area around the floor would not support him;
5. Maintaining a ceiling not strong enough to support workers invited by Leggitt to work on its premises; and
6. Failing to provide Mealor a safe place to work.

The motion for directed verdict made by Leggitt urged that:

1. The danger, if any, was open and obvious;
2. No evidence raising any issue of negligence by Leggitt; and
3. Mealor was guilty of contributory negligence in failing to keep a proper lookout, which was the sole cause of the accident.

The injury in this case occurred on November 16, 1970. Comparative negligence was not in effect until September 1, 1973, and then with no retroactivity to cases arising before such date.

.No findings of fact and conclusions of law were requested in this case. Tex.R.Civ.P. 296. We must sustain the judgment of the trial court if it is sustainable on any theory of the case. 4 Tex.Jur.2d Part 2, § 735 (1959), bearing in mind that we can only uphold the directed verdict judgment after determining whether there is any evidence of probative force to raise fact issues in material questions presented. In this connection, we must consider all evidence in its most favorable light in support of Mealor’s position, discarding all contrary evidence and inferences. Anderson v. Moore, 448 S.W.2d 105 (Tex.1969). Where reasonable men may differ as to the truth of controlling facts, a jury issue is present. Najera v. Great Atlantic & Pacific Tea Co., 146 Tex. 367, 207 S.W.2d 365 (1948).

Mealor admitted on the witness stand that he had heard about Whitaker’s falling through the same ceiling on a previous repair trip but had “completely forgot about it.”

Referring to the amount of light in the attic and his conduct at the time of his fall the testimony of Mealor was:

“Q What was under you right at the area right immediately around the furnace?
“A Well, around the furnace where the furnace themselves set and an area around it was, there was some kind of lumber there, flooring, and I would say it was probably made, and I’m guessing, probably made out of two by sixies or something like that. I do know it was solid.
“Q Lumber setting up on top of the joists, made a flooring?
“A Yes, just a regular flooring, like the floor down here.
“Q 'And it was both at the furnace and right in the immediate area of the furnace?
“A Yes sir.
“Q It’s my understanding that the floor, I believe, was more at the back towards the controls and there was less flooring about where the pilot light was?
“A Up towards the front of it there was evidently not too much flooring.
“Q Can you describe the lighting conditions up there, sir, as you recall?
“A Yes, sir. As I recall it, it was rather dark. Now, when I say ‘rather dark,’ I don’t mean it was like night by no means. But I would describe it as dusky dark because we was using a flashlight to see what we was doing around the furnace. There definitely was not enough light up there that you could see what you were doing without a flashlight.
“And there was no lights overhead burning, period. I’ve heard the testimony otherwise but it wasn’t there.
“Q How about skylights? You remember seeing any skylights there?
“A Not to my knowledge. I’m not saying they wasn’t there but they wasn’t over the area where I was working.
“Q In any event there was not a great deal of light in the area?
“A No, sir.
“Q All right, sir. Now, after you got through fiddling with the controls on the side or on the back where did you go?
“A Well, Dan was back there with the controls. I went to the front of it to be sure the pilot light was on since the, I mean, the thermo-coupler won’t work unless the. pilot light is burning. And I sat down in front of the furnace to look at the controls or look at the pilot light inside of the furnace, up inside of it.
“Q What kind of position did you have to get into to be able to look up into it?
“A Well, I sat down on the floor, and as I remember, the furnace was right down against this floor and that piece you had to look into was pretty close to the bottom.
“Q All right, sir.
“A And I sat down on the floor by, in front of the furnance, (sic) and I leaned back here to look at the pilot light. (Illustrating)
“Q And when you did that what do you remember next?
“A When I did that, the best I know, I leaned back and fell through that, whatever you call it, the ceiling.
“Q You apparently got off of the hard flooring and onto the softer material?
“A Yes, sir.
“Q Did you realize you had gotten off of the flooring until after you had fallen?
“A No, sir.
“Q Now, you could see up there, couldn’t you?
“A Sir, I could see after I got up there although it was dark. It was not nighttime-dark.
“Q You had a flashlight there, didn’t you?
“A We had a flashlight; yes, sir.
“Q All right. And you had an opportunity to shine that light around there and see everything there was about that place, did you not?
“A I suppose I had an opportunity; I don’t know. I didn’t.
“Q All right. You weren’t paying too much attention to it?
“A I was interested in the furnace, sir. That’s what I was called there for, and that’s where I went.
“Q You weren’t paying too much attention to anything else around there?
“A I wasn’t surveying the building; no, sir.”

Even though Mealor’s own testimony reflected actual knowledge of the danger of falling through the same ceiling as his servant had done previously as well as his knowledge of the poor lighting and the narrow platform provided for his use, we cannot hold that, as a matter of law, he failed to keep a proper lookout. “It is the law that the ordinary invitee can presume that the premises are safe and it is not his duty to search the things offered for defects.” Blanks v. Southland Hotel, 149 Tex. 139, 229 S.W.2d 357 (1950). Walgreen Texas Co. v. Shivers, 131 S.W.2d 650 (Tex.Civ. App. — Beaumont 1939), rev’d on other grounds, 137 Tex. 493, 154 S.W.2d 625 (1941).

We sustain the point of error citing insufficient evidence for a finding of contributory negligence as a matter of law.

Since evidence of probative value was introduced from which a jury might have found negligence on the part of Leg-gitt in not having a large enough platform to keep workmen from going through the ceiling. Leggitt had the knowledge of Whitaker’s fall to put him on notice. This, plus the poor lighting testified to by Mealor, moves us to sustain the point of error citing introduction of sufficient evidence of probative value of Leggitt’s negligence causing injury to Mealor.

Though the circumstances in this case indicate an open and obvious danger of which Mealor should have been aware the fact is without any conclusive effect in view of the abolition.of the former doctrines of “no duty” and of “volenti non fit injuria”. Farley v. M M Cattle Company, 529 S.W.2d 751 (Tex.1975); Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex.1978).

We reverse and remand the judgment of the trial court.


source: Caselaw Access Project

author: AKIN, Justice.

license: Public Domain

text:
    Ross E. GREENSTREET, Appellant, v. C. Michael EDERER, Appellee.
    No. 19528.
    Court of Civil Appeals of Texas, Dallas.
    May 18, 1978.

      Bill Walls, Robert G. Boydston, Roberts, Walls & Boydston, Dallas, for appellant.
    James M. Hurst, Dallas, for appellee.
   AKIN, Justice.

Appellee, Michael Ederer, an attorney, sued Ross Greenstreet, his client, on a promissory note. Ederer was granted a summary judgment and from this judgment Greenstreet appeals. We hold that the affidavit of appellant filed in response to the motion for summary judgment raised an issue of material fact as to whether appellant executed the promissory note under duress. Accordingly, we reverse and remand for a determination of appellant’s affirmative defense.

Appellant’s affidavit in opposition to the motion for summary judgment recites:

I deny that I am indebted to C. Michael Ederer for the sum of $9,000.00 plus interest under that one certain promissory note executed by me in favor of Mr. Ederer on June 12,1977. I executed that note at a time of great stress and under the duress of Mr. Ederer in that he threatened to withdraw as my attorney for an important meeting within the hour concerning my defense on Federal criminal charges unless I signed the note. [Emphasis added]

Appellee argues that this affidavit consists only of legal conclusions and fails to present any facts that would justify the client’s belief that he was forced to sign the note against his will. We cannot agree. Disregarding the conclusory statements contained in the affidavit, appellant’s affidavit is sufficient to raise a fact issue with respect to whether he signed the note under the duress created by his attorney’s threatened withdrawal from his case. Although the question of what constitutes duress is a matter of law, the question of whether it exists in a particular situation is generally a question of fact dependent upon all the circumstances and the mental effect on the party claiming duress. Sanders v. Republic National Bank of Dallas, 389 S.W.2d 551, 554 (Tex.Civ.App.—Tyler 1965, no writ); Tower Contracting Co., Inc. of Texas v. Burden Brothers, Inc., 482 S.W.2d 330, 335 (Tex.Civ.App. — Dallas 1972, writ ref’d n. r. e.); Pierce v. Estate of Haverlah, 428 S.W.2d 422, 425 (Tex.Civ.App. — Tyler 1968, writ ref’d n. r. e.).

The attorney argues, however, that his “threat” to withdraw from representing appellant cannot, as a matter of law, constitute duress because he had a legal right to withdraw. In support of this contention, he cites Dial Temp Air Conditioning Co. v. Faulhaber, 340 S.W.2d 82, 87-88 (Tex.Civ. App.—Dallas 1960, writ ref’d n. r. e.). In that case, this court held, as a matter of law, that absent a fiduciary relationship, a statement that a party would be liable on a lease if that party did not sign a release could not be duress because that party had a- legal right to enforce the lease. Since an attorney-client relationship, which is a fiduciary one, exists here, the rule in Faulhaber is not applicable.

Indeed, this record is devoid of summary judgment evidence as to whether the attorney had a right to withdraw. The Rules and Code of Professional Responsibility, DR 2-110(A) (Vernon 1973) provides:

(A) In general.
(1) If permission for withdrawal from employment is required by the rules of a tribunal, a lawyer shall not withdraw from employment in a proceeding before that tribunal without its permission.
(2) In any event, a lawyer shall not withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including giving due notice to his client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, and complying with applicable laws and rules.
(3) A lawyer who withdraws from employment shall refund promptly any part of a fee in advance that has not been earned.

No proof has been made as to whether the federal court in which the criminal case was pending requires leave of court before withdrawal of counsel is permitted, nor is there proof of the conditions on which such leave may be granted.' In any event, the summary judgment burden was upon the movant to establish that he had such a right as a matter of law.

The attorney asserts, nevertheless, that the withdrawal of an attorney is expressly permitted by State Bar of Texas, Rules and Code of Professional Responsibility, DR 2-110(C)(1)(f). This rule provides that an attorney may request permission to withdraw if the client “[Djeliberately disregards an agreement or obligation to the lawyer as to expenses or fees.” The summary judgment proof fails to establish that appellant disregarded any agreement or obligation concerning the fee. Neither does it show that appellee could have requested and obtained permission to withdraw before the next occasion on which an attorney’s services would have been required. Consequently, the summary judgment proof does not establish as a matter of law that appellee threatened to do only what he had a legal right to do. Under these circumstances, we hold that appellant’s affidavit sufficiently raises fact issues as to duress. Accordingly, we reverse the judgment of the trial court and remand for trial on the issue of duress.

      . This case arose before amended Rule 166-A became effective January 1, 1978.


author: JAMES, Justice.

text:
    CITY OF SAN ANTONIO, Appellant, v. HEATH & STICH, INC., Appellee.
    No. 5827.
    Court of Civil Appeals of Texas, Waco.
    May 19, 1978.
    Rehearing Denied June 15, 1978.

      Jackson C. Hubbard, Asst. City Atty., James M. Parker, City Atty., San Antonio, for appellant.
    Roy L. White, Roy C. Brock, Brock, Bing-ham & Person, San Antonio, for appellee.
   OPINION

JAMES, Justice.

This case involves the construction of a written contract. Plaintiff-Appellee Heath and Stich, Inc., (hereinafter called “Contractor”), brought this suit against Defendant-Appellant City of San Antonio for specific performance of a public works contract calling for construction of a project known as “Nogalitos Storm Drainage Project No. 42.” The contract, dated April 14, 1975, by definition consisted of the contract instrument proper, the plans, specifications, contract bonds and change orders.

Part of the work contemplated by the contract consisted of cutting up and excavating the existing pavement of several blocks of Nogalitos Street in the City of San Antonio, Texas. On or about June 3, 1975, the Contractor while digging up said pavement discovered that underneath the asphalt surface of the street was a concrete slab or base about six inches in thickness covering the entire length and breadth of that portion of Nogalitos Street included in the project. Learning this, the Contractor wrote a letter to the City dated June 6, 1975, advising the City that the Contractor expected to be paid for the cutting up and removal of this concrete base covering No-galitos Street under Pay Item No. 103-B of the Project Specifications, entitled, “Remove Concrete Slab,” same being at the bid unit price of 63<f per square foot.

The City replied by a letter dated June 16, 1975 to the Contractor, denying that Contractor was entitled to be paid for this work under Pay Item 103-B, but stating that Contractor’s entitlement to pay for this particular work came instead under Pay Item 104, “Street Excavation,” wherein the bid unit rate called for $2.07 per cubic yard. This disagreement was never resolved; however, Contractor proceeded on with the work, and about six months after commencement of the project work, Contractor completed the excavation of Nogali-tos Street called for by the contract by cutting up and removing some 156,000 square feet of concrete slab. For this portion of the work the Contractor asserted he was entitled to $96,929.03, which the City refused to pay; whereupon the Contractor brought suit against the City by way of specific performance for the aforesaid amount.

Trial was had to the court without a jury, after which the trial court entered judgment in favor of the Contractor against the City for specific performance of the contract, wherein the City was ordered to “perform in accordance with the contract and pay the plaintiff” $96,929.03 and costs. No findings of fact and/or conclusions of law were requested by the City and none were made by the trial court. From this judgment the City appeals. We affirm.

Both parties agree by statements in their respective briefs that the sole dispute in this case is whether such work accomplished by the Contractor hereinabove described should be paid for by the square foot unit price under Pay Item 103-B “Remove Concrete Slab” as contended by Contractor, or by the cubic yard unit price under Pay Item 104, “Street Excavation,” as maintained by the City.

The Project Specifications for Pay Item No. 103 in its pertinent parts contain the following language:

“ITEM NO. 103
“REMOVE CONCRETE
“103.1 DESCRIPTION: The work covered by this section shall consist of breaking up, removing and satisfactorily disposing of existing concrete, as classified, at locations shown on the plans or as directed by the (City) Engineer.
“103.2 CLASSIFICATION: Existing concrete when removed under this section, will be classified as follows:
“1. ‘Concrete Curb’ (not applicable).
“2. ‘Concrete Slabs’ will include, but not be limited to patio slabs, porch slabs, paved slope (rip-rap), and traffic slabs.
“3. ‘Sidewalks and Driveways’ (not applicable).
“103.3 CONSTRUCTION METHODS: The existing concrete shall be broken up, removed, and disposed of by the Contractor.
“103.5 PAYMENT: This item will be paid for at contract unit price bid for . ‘Remove Concrete Slab’ .
“Payment will be made under: . .
“PAY ITEM NO. 103-B: Remove Concrete Slab Per Square Foot.

The quantity estimated by the City for Pay Item 103-B was 100 square feet. The Contractor bid 63$ per square foot for this particular work.

The Project Specifications for Item 104, entitled, “Street Excavation” in its pertinent parts contain the following language:

“ITEM NO. 104
“STREET EXCAVATION
“104.1 DESCRIPTION: The work covered by this section consists of excavating and properly utilizing or otherwise satisfactorily disposing of all excavated material, of whatever character, within the limits of the work and the constructing, compacting, and shaping, and finishing of all earthwork on the entire length of the street and approaches to same in accordance with specification requirements herein outlined and in conformity with the required lines, grades, and typical cross sections, shown on the plans or directed by the Engineer.
“104.2 CLASSIFICATION: All excavation shall be unclassified, and shall include all materials encountered regardless of their nature or the manner in which they are removed, except those covered by pay items of this contract.

The City estimated 32,700 cubic yards to be excavated under Item 104, and the Contractor’s bid price was $2.07 per cubic yard.

The entire written contract in question consisting of the contract instrument proper (labelled “Construction Contract”), plans, specifications, and attached instruments, is necessarily very lengthy, and most of same has no direct bearing on the controversy at hand. Therefore we will quote from, or make reference to, the following excerpts therefrom which we feel have a bearing upon the dispute, to wit:

1. Paragraph 3 of the contract instrument proper (the printed form contract la-belled “Construction Contract”) reads as follows:

“3. WORK UNDERSTOOD BY CONTRACTOR. Contractor declares that prior to the submission of his bid proposal on this contract he has thoroughly examined the location of the work to be performed, is familiar with local conditions, and has read and thoroughly understands the ‘included instruments’ as they relate to the physical conditions prevalent or likely to be encountered in the performance of the work at such location. Contractor hereby accepts such ‘included instruments’ as satisfactory in all respects to accomplish the proper performance of the work at the project site and accordingly assumes the risk of any delays or additional costs which might arise from errors or miscalculations in such ‘included instruments’ or from erroneous assumptions upon which same may have been predicated as to the physical conditions at the work site including, but not by way of limitation, latent defects or conditions of the subsoil.”

2. Paragraph 4 under “General Conditions” in the Specifications portion again requires that bidders are required to thoroughly familiarize themselves with all aspects of the contract and the work, and then among other things provides: “Quantities included in the plans and proposal are estimated and are to be regarded as approximate only.”

3. Then paragraph 6 under the heading “Materials” in the Specifications reads as follows:

“6. Estimated Quantities and Measurement.
“The estimated quantities of the various classes of work to be done and material to be furnished are approximate only and are given as a basis for comparison of proposals and award of contract. It is understood and agreed that the actual amounts of work to be done and material to be furnished may differ somewhat from these estimates. The quantities of work performed will be computed by the Engineer on the basis of measurements taken by the Engineer or his assistants, and these measurements shall be final and binding.”

Mr. H. B. Heath, the president of Heath and Stich, Inc., testifying for the Plaintiff Contractor, testified that the Contractor had no knowledge that the entire area of Nogalitos Street encompassed by the contract was covered with a concrete base until on or about June 3,1975, when work on the project commenced. There was evidence that the City knew of this concrete base situation prior to the time the contract was executed; however, the City never told the Contractor about it, nor were there any recitations concerning same in the contract, plans, or specifications. The City contends that Pay Item 103-B, “Remove Concrete Slab” called for an estimated quantity of 100 square feet because the City intended this to cover only the breaking up and removal of a paved slope of rip-rap located at one end of the project; however, there is nothing in the contract which says that this is what Pay Item 103-B is supposed to cover.

The City asserts the trial court erred in decreeing specific performance in favor of Plaintiff Contractor based upon payment to Plaintiff under Pay Item 103-B, and contends that payment for the work in question should have been paid for under Item 104, “Street Excavation.” However, the City never offered any evidence as to how much money Plaintiff Contractor would have been entitled to, had the payment been computed as a part of Item 104.

In the case at bar, we are called upon to determine whether the Plaintiff Contractor is entitled to be paid under Pay Item 103-B for the concrete removal work in question, as determined by the trial court, or under Pay Item 104, as contended by the City. In order to make such a determination, we have the duty to interpret and construe a contract that at first blush appears to be ambiguous.

Our Supreme Court has held that a contract is not ambiguous if it is so worded that it can be given a certain or definite meaning or interpretation, and may be considered ambiguous only when the application of pertinent rules of construction to the face of the instrument. leave it genuinely uncertain as to which of two meanings is the proper meaning. Universal C. I. T. Credit Corp. v. Daniel (1951) 150 Tex. 513, 243 S.W.2d 154, 157; Lewis v. East Texas Finance Co. (1941) 136 Tex. 149, 146 S.W.2d 977, 980. Also see Don Drum Real Estate Co. v. Hudson (Dallas Tex.Civ.App.1971) 465 S.W.2d 409, no writ.

In the case at bar, the contract in question appears on the surface to be ambiguous; however, we believe the apparent ambiguity may be resolved by the application of a well-settled rule of construction, to wit: that if general terms appear in a contract, they will be overcome and controlled by specific language dealing with the same subject. Guadalupe-Blanco River Authority v. City of San Antonio (1947) 145 Tex. 611, 200 S.W.2d 989, 1001; Reynolds v. McMan Oil and Gas Co. (Comm.App.1928) 11 S.W.2d 778, 782; Scanlan v. Houston Lighting and Power Co. (Galveston Tex.Civ. App.1933) 62 S.W.2d 537, 540, writ refused. Also see Leopard v. Stanolind Oil and Gas Co. (Dallas Tex.Civ.App.1949) 220 S.W.2d 259, 263, NRE; Gulbenkian v. Penn (Amarillo Tex.Civ.App.1953) 276 S.W.2d 939, 941, NRE; 13 Tex.Jur.2d, “Contracts,” section 139, p. 319.

In the contract before us, Item 104, “Street Excavation” is general in nature, and covers “all excavated material, of whatever character, within the limits of the work,” with the specific provision that “all excavation shall be unclassified, and shall include all materials encountered regardless of their nature or the manner in which they are removed, except those included in pay items of this contract.”

On the other hand, Pay Item No. 103, “Remove Concrete,” is specific in both its work description and classification. The work description provides that it shall consist of breaking up, removing, and satisfactorily disposing of existing concrete as classified; and that “Concrete Slabs” are specifically classified to include “traffic slabs.”

We therefore are of the opinion and hold that Plaintiff Contractor was entitled to be paid for the work in question under Pay Item 103-B “Remove Concrete,” and that accordingly the judgment of the trial court is correct.

In addition to the above, we believe there is another well-settled rule of construction that resolves the apparent ambiguity in favor of Plaintiff-Appellee Contractor, as follows: Where ambiguity exists in a contract, the agreement will be construed most strictly against the party who drafted it and thus was responsible for the language used. Amory Manufacturing Co. v. Gulf, Colo. & Santa Fe Ry. Co. (1896) 89 Tex. 419, 37 S.W. 856, 857. Also see Smith v. McMillan (Houston Tex.Civ.App.1961) 352 S.W.2d 871, 877, affirmed in part, 363 S.W.2d 437; Ervay, Inc. v. Wood (Dallas Tex.Civ.App.1963) 373 S.W.2d 380, 384, NRE; Stowers v. Harper (Tyler Tex.Civ. App.1964) 376 S.W.2d 34, 41, NRE; Wolcott v. McWilliams (Amarillo Tex.Civ.App.1964) 376 S.W.2d 49, 50, NRE; 13 Tex.Jur.2d, “Contracts,” section 121, page 285. In the case at bar, it was the City who prepared the contract, plans, and specifications, and the application of this last-named rule of construction requires us to resolve the apparent ambiguity against the City as author of said contract.

For the reasons hereinabove set out, we affirm the trial court’s judgment.

AFFIRMED.


author: REYNOLDS, Justice.

text:
    The STANDARD FIRE INSURANCE COMPANY, Appellant, v. Thelma Clark GRIGGS, Appellee.
    No. 8898.
    Court of Civil Appeals of Texas, Amarillo.
    May 22, 1978.
    Rehearing Denied June 19, 1978.

      Jones, Trout, Flygare & Moody, James L. Wharton, Lubbock, for appellant.
    McCleskey, Harriger, Brazill & Graf, Don Graf, Lubbock, for appellee.
   REYNOLDS, Justice.

The trial court, ruling that the word “jewelry” as used in an exclusionary clause of an insurance policy was ambiguous when applied to the Indian belts and bolo ties in controversy and should be construed against the insurer, directed a verdict for the insured on the issue of liability and rendered judgment for the values of the items found by the jury. In its context, the word “jewelry” is not ambiguous and the court should have submitted the requested special issues for the jury to factually determine whether each item was jewelry. Reversed and remanded.

The Standard Fire Insurance Company issued its Texas Standard Homeowners Policy to Thelma Clark Griggs. In one of the policy’s insuring provisions is this language:

COVERAGE B — UNSCHEDULED PERSONAL PROPERTY owned, worn or used by the Insured
EXCLUSIONS — Coverage B does not cover:
******
e. Loss in excess of $500 (any one loss) of gems, watches, jewelry or furs. .

The policy does not contain a definition of jewelry.

While the insurance policy was in force, Mrs. Griggs’ home was burglarized. Among the property taken and never recovered were items admitted to be jewelry exceeding the value of $500 and seven Indian belts and four bolo ties.

One of the belts was an old Indiana beaded belt with the beadwork attached to wool yarn. The other six were Navajo belts, made of leather with conchas. One of the six had copper conchas, and the other five had silver conchas which, on two of the belts, were set with turquoise and separated by “butterflies” made of silver.

The bolo ties were of braided leather. One had a large turquoise stone set in a silver notched bezel and silver tips on the leather. Another was a shadow box bolo tie with a single turquoise stone set in an oval bezel and silver cone tips on the leather. One tie had two turquoise stones and one coral stone in an irregular shaped bezel with leaf forms overlapping, and a squash blossom on silver cone tips. The other was an old Zuni mosaic of a ceremonial “Rainbow man” inlaid with turquoise, jet, coral and mother of pearl with carved silver tips.

The Standard Fire Insurance Company paid Mrs. Griggs $500, but refused any payment for the loss of the belts and ties on the contention that they were jewelry for which any coverage in excess of the $500 payment made was excluded by the policy. This lawsuit resulted.

The evidence revealed that Mrs. Griggs has been interested for thirty years in, and is an active collector of, Indian artifacts and crafts. She had acquired the belts and ties during her travels, some of which were taken as a member of the Acquisition Committee of the West Texas Museum in Lubbock, Texas, charged with locating and acquiring Indian artifacts of museum quality. She expressed the opinion that the concha belts and bolo ties were not considered to be jewelry, but were worn as articles of clothing, the concha belts being worn to assist in holding up pants or cinching in blouses. Introduced in evidence were checks showing some of her personal purchases and carrying the notation “Indian Jewelry” to which had been added in some instances, after the paid checks were returned to her, the words “Bolo ties,” “and concho belt,” “& belt,” and “& concho belt.”

Paul Summers, who has been interested in Indian items for almost sixty years and has collected and traded Indian artifacts since the early 1920’s testified that he considered concha belts as clothing, and that neither he nor Indians nor other traders referred to them as jewelry. He stated that a bolo tie is a man’s item for wear, and he saw no reason to designate the bolo ties as Indian jewelry.

Carla Lee Tanner, Professor Emeritus in the Anthropology Department at the University of Arizona and author of published articles and books about Indians and Indian art, related the history, use and nature of various Indian artifacts, including concha belts and bolo ties. She testified that con-cha belts and bolo ties were worn for adornment; that the belts were never used as support for pants, skirts or blouses, and that bolo ties are not worn to hold the collar in position. She expressed the opinion that the concha belt and all bolo ties are always considered as objects of adornment, pieces of jewelry; yet, she declined to say that all decorated belts and buckles were jewelry, stating that it depended upon how decorated they were.

Upon the adduction of all evidence, the trial court ruled that the word “jewelry” as used in the policy is ambiguous as a matter of law when applied to the facts in this case and should be construed against the insurance company. Refusing the insurance company’s requested special issues for a factual determination whether each item is jewelry, the court directed a verdict for Mrs. Griggs on the issue of liability, submitting to the jury only issues inquiring of the value of each item. Receiving the jury’s verdict on values, the court rendered judgment decreeing that Mrs. Griggs recover the sum of $4,825 from the insurance company.

The Standard Fire Insurance Company appeals. Consideration is given first to its contentions that the court erred in directing a verdict on the holding that the term “jewelry” is ambiguous and in refusing to submit its requested special issues inquiring whether each item is or is not jewelry.

Because neither party subscribes a technical meaning to the use of the undefined word “jewelry,” the meaning to be given it is the ordinary lay meaning to the general public. De La Cruz v. Combined American Insurance Company, 527 S.W.2d 820, 821 (Tex.Civ.App. — Amarillo 1975, writ ref’d n.r.e.). The absence of Texas authority on the meaning of the undefined term in the insurance policy warrants resort to the dictionary. Ramsay v. Maryland American General Insurance Company, 533 S.W.2d 344, 346 (Tex.1976). Webster’s New International Dictionary (2d Ed.) imparts this information: “jewelry, n. Jewels collectively; personal ornaments, as badges, bracelets, brooches, pendants, set or studded with jewels; as, a bride’s jewelry; fraternity jewelry; hence, pieces of precious metals, crystal, etc., shaped and worn for adornment.”

The parties do not differ on the definition; indeed, they both refer to the dictionary definition and recite it to some extent. Their difference is in the consequence of its application to the described belts and ties. In essence, the insurance company urges that the definition encompasses the belts and ties in controversy; Mrs. Griggs is just as insistent that the definition does not apply to the items, further submitting that if the word “jewelry” is susceptible of more than one reasonable construction, the construction which favors the insured should apply.

Admittedly, if a word used in an exclusionary or limiting clause of an insurance policy is ambiguous, the courts will apply the construction which favors the insured and permits recovery. See Ramsay v. Maryland American General Insurance Company, supra, at 349. But, in this connection, “ambiguous” denotes that the word is susceptible of more than one meaning. Where, to the contrary, the word has a well-defined and understood meaning, it is not ambiguous. Cf. Universal C. I. T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154, 157 (1951), where it is said that a contract is ambiguous only when, after application of the the pertinent rules of construction, it is genuinely uncertain which of two or more meanings is the proper meaning.

Here, there is no uncertainty in the proper meaning of the word “jewelry;” therefore, it is not ambiguous. The uncertainty is created, not from the meaning of the word, but by the application of the meaning to the described belts and ties. Even the experts disagreed whether the items were, or fit the definition of, jewelry. Given the agreed definition and the disagreeing evidence, the disputed fact issues whether each item was jewelry should have been submitted for the jury’s determination. See White v. White, 141 Tex. 328, 172 S.W.2d 295, 296 (1943).

There remains Mrs. Griggs’ argument that if there is leeway for a jury to decide whether or not a particular item is or is not jewelry, an ambiguity exists which, on the authority of Ramsay v. Maryland American General Insurance Company, supra, must be construed against the insurance company to permit her recovery. In our view, Ramsay is not dispositive of the particular matter. There, the adverse parties offered reasonable and conflicting interpretations of the meaning of the term in question; here, to the contrary, the parties agreed on the meaning of the word “jewelry,” but offered reasonable and conflicting evidence bearing on the issue whether the' items are or are not jewelry.

In view of the foregoing, the trial court erred in directing a verdict and in refusing to submit the requested special issues. Accordingly, the insurance company’s points of error directed to these actions are sustained, but the points concerning the court’s refusal to direct a verdict for the insurance company are overruled.

The judgment of the trial court is reversed and the cause is remanded.


author: DODSON, Justice.

text:
    Ralph BRITTEN et al., Appellants, v. The STATE of Texas, Appellee
    No. 8896.
    Court of Civil Appeals of Texas, Amarillo.
    May 22, 1978.
    Underwood, Wilson, Sutton, Berry, Stein & Johnson, Jerry N. Smith and Thomas R. Dixon, Jr., Amarillo, for appellants.
    John L. Hill, Atty. Gen., Charles R. Lind, Austin, for appellee.
   DODSON, Justice.

This case concerns an alleged clerical error in a jury verdict. The State of Texas, appellee, initiated this action against the appellants Ralph Britten and wife Mary Britten, as owners, and the State National Bank, as a lienholder, to condemn 43.646 acres of land situated in Carson and Gray counties for highway purposes. Upon a jury’s verdict the trial court entered judgment for the Brittens and the bank in the amount of $35,430 for their respective interests in the 43.646 acres taken and for damages to the remaining land. Ralph and Mary Britten filed a motion for new trial alleging a unanimous clerical mistake in the jury’s verdict. After a hearing, the trial court overruled the motion. The Brittens appeal from the judgment of the trial court. We affirm.

The Brittens bring one point of error alleging that the trial court erred in overruling their motion for new trial because the uncontradicted affidavits of eleven of the twelve jurors and the uncontradicted testimony of one juror at the hearing on the motion for new trial showed that the jury made a unanimous mistake in the nature of a clerical error in recording its answer to special issue number three.

The case was tried before twelve jurors. At the close of the testimony, the trial court submitted the case on three special issues. The three special issues asked the jury to decide:

(1) The market value of the 43.646 acres of land condemned by the State as of September 12,1973, when considered as severed land.

(2) The market value of the Brittens’ tract of land, exclusive of the strip of land condemned, immediately before the strip was taken for highway purposes.

(3) The market value of the remainder of the Brittens’ tract of land immediately after the taking of the strip of land condemned for highway purposes.

The jury answered $30,450 to issue one, $92,835 to issue two, and $87,855 to the third issue. The result of this verdict was the judgment for $35,430.

The alleged unanimous mistake in the nature of a clerical error concerns the dollar amount in the jury’s answer to the third special issue. In a joint affidavit, six of the jurors said that the answer to special issue number three should have been transcribed $79,455 rather than $87,855. Five other jurors each stated, in their respective affidavits, that they did not recall “the specific dollar amounts the jury found to be the answers to each of the three Special Issues submitted to them.” However, these jurors in their respective affidavits, further concerned themselves with what they thought the Brittens should have received under the verdict. As reflected by the affidavits, these jurors did not agree on the amount each thought the Brittens should have received. Two jurors said they thought the appellant should have received $43,500. Three other jurors each said three different amounts ranging from $42,000 to $45,000.

The Brittens rely on Caylat v. Houston E. & W. T. Ry. Co., 113 Tex. 131, 252 S.W. 478 (Tex.Com.App.1923, opinion adopted) in support of their position. In Caylat, the Commission of Appeals noted that the great weight of authority supports the proposition that a unanimous mistake of the jury in the nature of a clerical error in writing or reporting their verdict already arrived at may be shown by the affidavits of the jurors, and, where the evidence is conclusive that such mistake was made, relief may be granted. A proper application of Caylat to these facts does not support the Brittens’ position. The affidavits of the eleven jurors do not unanimously and conclusively show the specific amount ($79,455) the Brit-tens allege “the jury arrived at” as its answer to special issue three. And these affidavits also fail to show a unanimous clerical error in either reporting or writing the alleged answer. The affidavits give no information concerning the position of the twelfth juror.

Only one juror appeared and testified at the hearing on the motion for new trial. Her testimony shows no more than what she thought the answer to special issue number three should have been. In Angelina Casualty Company v. Spencer, 310 S.W.2d 682-83 (Tex.Civ.App.—Beaumont 1958, writ ref’d n. r. e.), the court stated that the testimony of one juror merely presents a fact question of the existence of a clerical error. In the case before us, the juror acknowledged, on cross examination, that the jury’s verdict was returned in open court and that the court also read the verdict in open court and all the jurors said “yes” when asked if the verdict was theirs. However, this juror claimed that she and some of the other jurors were not “listening to the court” when it read the verdict and asked the question.

The affidavits and the testimony of the juror presented no more than a fact question for the trial court to decide. Neither the affidavits nor the testimony of the one juror conclusively established a unanimous mistake in the nature of clerical error in recording or announcing the verdict “arrived at” by the jury. The trial court properly exercised its discretion by overruling the Brittens’ amended motion for new trial. See Commercial Standard Ins. Co. v. Miller, 48 S.W.2d 618 (Tex.Com.App.1932, judgmt. adopted); Commercial Standard Ins. Co. v. Moore, 144 Tex. 371, 190 S.W.2d 811 (1945); City of Carrollton v. Rawlins, 291 S.W.2d 955 (Tex.Civ.App.—Eastland 1956, writ ref’d); Stone v. Moore, 442 S.W.2d 746 (Tex.Civ.App.—Houston [14th Dist.] 1969, writ ref’d n. r. e.)

The Brittens’ point of error is overruled and the judgment of the trial court is affirmed.


text:
    Don H. WALTON, Appellant, v. Mary Katherine WALTON, Appellee.
    No. 8902.
    Court of Civil Appeals of Texas, Amarillo.
    May 22, 1978.
    Kolander & Hamilton, J. M. Kolander, Amarillo, for appellant.
    William H. Mann, III, Amarillo, for ap-pellee.
   DODSON, Justice.

This is an appeal of an order of the trial court increasing monthly child support for one child. Don H. Walton, appellant, and Mary Katherine Walton, appellee, were divorced in the Court of Domestic Relations of Potter County, Texas, on July 17, 1974. As a part of the divorce judgment, Mr. Walton was ordered to pay the sum of $75 per month for the support of the couple’s minor male child. Mrs. Walton filed a motion requesting the court to increase the amount of child support. Mr. Walton duly answered. After a hearing, the court entered its order directing Mr. Walton to pay the sum of $160 per month in semi-monthly installments of $80 each for the support of his child. Prom this order, Mr. Walton appeals to this court. We affirm.

On appeal, Mr. Walton claims that the trial court erred by applying a formula in arriving at its judgment, rather than considering the evidence and using its discretion. We do not agree.

The undisputed testimony shows that at the time of the divorce Mr. Walton was earning less than $400 per month while attending college and working as an insurance salesman. When he began employment with the insurance company, his monthly salary was $600 for three months. However, after the three month period with the insurance company, his income dropped to approximately $200 per month. He also was receiving GI benefits at the rate of $187 per month.

At the time of the hearing on the motion to increase the child support payments, he was employed by Santa Fe Railroad Company and earning net pay of $1,346 per month. He testified that his monthly expenses were $1,340 per month. Also, the evidence showed that he had remarried and that his present wife is expecting a child.

At the time of the hearing Mary Katherine Walton was gainfully employed at the Santa Pe Railroad, earning a net monthly salary of approximately $796.61. She also received $55 per month child support for a child by a previous marriage and had received an income tax refund of $1,200 in the prior year. These amounts were in addition to the $75 a month child support payment made by Mr. Walton. She testified to fixed monthly expenses of approximately $1,199.50.

After hearing all of this evidence, the trial judge commented that both parties were lucky to have good jobs but that “I know that right now, temporarily, until you can recover from some of the debts each of you have built up, your finances are in the hole.” The judge found “there has been a change in the circumstances since the decree and I will order that child support to be increased to $160.00 per month and . I don’t have any objection to splitting that into two payments a month.”

At this point Mr. Walton’s attorney said “$160.00, Judge?” To this question the court replied “Yes.” Then, Mr. Walton’s attorney said, “It will help, I don’t know if he can do that.” This exchange was followed by a comment by the judge: “The— that amount is consistent with the schedule we use as a guideline and that schedule, I think, in many instances is a very minimal figure and especially in keeping with what the incomes are. If you desire me to, I will divide that into two equal payments on the first and fifteenth. Do you get paid on the first and fifteenth?” To this question Mr. Walton replied “Yes.”

Mr. Walton’s attorney, in support of his motion for new trial, stated “I think the court was guided more than it should have been by the schedule . . The court responded:

. for your own knowledge, I use the schedule for reference. ... I received the copy of the schedule through the Family Law Section of the State Bar. . My own personal feeling is that probably the support is low and the chart is helpful to me to keep me from having to multiply out the figures each time to determine what a man’s monthly salary is if he only gives me a weekly salary . it appears if I had actually followed the chart to the letter I would have awarded a minimum of $20.00 more support. . In having taken into consideration in making that decision the income of the Movant for the motion to increase and her circumstances and also the circumstances of indebtedness, I did set that amount at lower than what the chart would have reflected. I, also, in most cases I hear — or at'least half of them, the people have more debts than they can really service properly and to set a man’s child support based on what he feels he has left over, ends up awarding [sic] the spendthrift and not adequately providing for the care of the children.

In support of his position, Mr. Walton relies on Barlow v. Barlow, 282 S.W.2d 429 (Tex.Civ.App. — El Paso 1955, no writ). In Barlow, the court reversed a child support order because the trial court had a declared formula (one-fourth of net salary) to determine the amount of child support payments which it employed in each case, without regard for or consideration of any other evidence.

In the case before us the record reveals that the trial court explicitly stated that he only made reference to the so-called schedule to aid him in calculating a party’s monthly salary when the testimony revealed a weekly rate. He expressed his disagreement with the suggested guidelines in the chart concerning support payments. He commented that the chart figures were probably low. He observed, in retrospect, that had he applied the suggested guidelines in the schedule to the evidence in this case, the support payment would have been $180 per month rather than the $160 he ordered. We must point out that there is no evidence in the record that the trial court had a pre-determined policy of following the guidelines suggested in the schedule in determining the amount of child support in this or any other case. Thus, we do not. consider Barlow controlling in the case before us.

The court should strive to give fair and equal treatment to all of the various parties similarly situated which daily appear before it. This effort best serves the ends of justice. And likewise, we do not condemn the trial court for comparing its decision with a schedule or suggested guidelines for similar cases. This is particularly true when, as here, the trial court explicitly disagreed with the suggested guidelines and the record is absent of any evidence that the trial court followed the schedule.

Mr. Walton maintained that child support payments should not be increased because his monthly expenses exceeded his net monthly take-home pay and because Mrs. Walton was gainfully employed and could do a better job of managing her own finances.

In support of this contention Mr. Walton directs us to Gully v. Gully, 111 Tex. 233, 231 S.W. 97, 100 (1921), where the Court stated: “In determining the duty of the husband to supply necessaries to his children, before or after divorce, it is to be borne in mind that his duty corresponds to his financial ability, having due regard to all his lawful obligations, which may include those assumed to another wife and to other children . . .” However, this rule was never intended to preclude a debt-burdened father from paying a reasonable amount of child support. Any economic change brought about by Mr. Walton’s remarriage must not militate against his dependent child. Beaird v. Beaird, 380 S.W.2d 730 (Tex.Civ.App.—Dallas 1964, no writ).

By necessity, the trial court must have wide discretion in determining questions of child support payments. Dennis v. Dennis, 512 S.W.2d 699, 701 (Tex.Civ.App.—Tyler 1974, no writ). Each case must stand on its own facts. The amount of child support depends upon the ability of the father and the needs of the children, bearing in mind their station in life. Brooks v. Brooks, 480 S.W.2d 463 (Tex.Civ.App. — Eastland 1972, no writ). However, the court’s child support order must serve the best interest of the children. Dennis v. Dennis, supra.

Under the circumstances of this case, we conclude that the trial court did not abuse its discretion and committed no reversible error by its actions in the matter complained of. Mr. Walton’s point of error is overruled and the judgment of the trial court is affirmed.


author: J. CURTISS BROWN, Chief Justice.

text:
    LIBERTY MUTUAL INSURANCE COMPANY, Appellant, v. Lawrence MARINER, Appellee.
    No. 1783.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    May 24, 1978.
    Rehearing Denied June 14, 1978.
    Rex N. Leach, Ervin A. Apffel, Jr., Mcleod, Alexander, Powel & Apffel, Galveston, for appellant.
    Roy E. Brown, Gene S. Hagood, Britt, Brown & Todd, Alvin, for appellee.
   J. CURTISS BROWN, Chief Justice.

This is an appeal from a judgment in a suit to set aside an award of workers’ compensation benefits by the Texas Industrial Accident Board.

Lawrence Mariner (appellee) sustained neck injuries on November 5, 1975 in the course and scope of his employment as a journeyman pipefitter. He filed a claim with the Industrial Accident Board for workers’ compensation benefits. Liberty Mutual Insurance Company (Liberty or appellant), the workers’ compensation insurance carrier for Mariner’s employer, appealed the Industrial Accident Board’s award of benefits. On a trial de novo in the district court, a jury found that the appellee had been totally and permanently disabled. The appellant appeals from a judgment for $25,909.24 rendered in accordance with that verdict.

In its sole point of error, the appellant attacks the factual sufficiency of the evidence to support the jury’s finding of total and permanent disability. In considering the appellant’s factual insufficiency point, we must review all of the evidence, and we may set the finding aside only if it is so contrary to the overwhelming weight of all of the evidence as to be clearly wrong or manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). The appellant contends that the jury’s finding is contrary to the overwhelming weight of all of the evidence because of the existence of the following three factors: (1) the appellee worked as a pipefitter foreman for thirteen months immediately following his injury; (2) the appellee obtained new employment after the injury and retained that employment up until the time of trial; and (3) the appellee’s income has increased each year despite his injury. The appellant cites the following cases in support of its position: Texas Employers’ Insurance Ass’n v. McClellan, 490 S.W.2d 946 (Tex.Civ.App.—Amarillo 1973, writ ref’d n. r. e.); Commercial Insurance Co. of Newark, N. J. v. Kempe, 440 S.W.2d 919 (Tex.Civ.App.—Dallas 1969, no writ); Texas Employers’ Insurance Association v. Hawkins, 387 S.W.2d 469 (Tex.Civ.App.—Amarillo 1965, writ ref’d n. r. e.).

We disagree with the holdings in those cases. While those factors certainly should be considered in determining the extent and duration of the appellee’s disability, they do not conclusively establish that his disability was neither total nor permanent. Texas State Highway Department v. Kinsler, 230 S.W.2d 364 (Tex.Civ.App.— Beaumont 1950, writ ref’d). The appellee presented testimony that tended to establish the following facts: The appellee sustained permanent neck injuries that cause him to suffer constant, intense pain. Those injuries will worsen and will eventually require surgery. He has been unable to obtain employment as a pipefitter or do any kind of manual labor since his accident on November 5, 1975. He was able to obtain employment after the accident, however, as a pipefitter foreman, a supervisory position that requires relatively little physical exertion. The appellee has no assurance that he will be able to retain his supervisory position, and, because of his physical condition, he may experience difficulty in obtaining another job that involves such limited physical activity. That the appellee’s income has increased each year .since 1973, two years before he was injured, may be attributed to “cost-of-living” pay increases and to the difference between the union pay scale rates for pipefitters and pipefitter foremen. After carefully reviewing all of the evidence, we have concluded that there was sufficient evidence from which the jury could have determined that the appellee has been totally and permanently disabled. See Texas Emp. Ins. Ass’n v. Wilson, 563 S.W.2d 685 (Tex.Civ.App.—Fort Worth 1978, no writ history).

The appellee requests in a cross point that this court assess an additional ten percent penalty against the appellant because this is a frivolous appeal. See Texas Employers’ Insurance Association v. Dempsey, 508 S.W.2d 858 (Tex.Civ.App.— Houston [1st Dist.] 1974, writ ref’d n. r. e.); Tex.R.Civ.P. 435, 438. We disagree with the appellee’s characterization of this appeal as frivolous. The appellant’s point of error raised a legitimate question concerning the sufficiency of the evidence to support the jury’s finding.

The appellant’s point of error and the appellee’s cross point having been fully considered and overruled, the judgment of the trial court is hereby affirmed.

Affirmed.


author: BROWN, Chief Justice.

text:
    Willie P. CLABON et al., Appellants, v. HARRIS COUNTY HOSPITAL DISTRICT, Appellee.
    No. 1804.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    May 24, 1978.
    Rehearing Denied June 14, 1978.
    Richard P. Hogan, Rodney V. Steinberg, Helm, Pletcher, Hogan & Burrow, Houston, for appellants.
    Joe Resweber, County Atty., Oliver J. Guiberteau, Asst. County Atty., Houston, for appellee.
   BROWN, Chief Justice.

This is an appeal from a summary judgment granted the defendant in a wrongful death action on the basis of governmental immunity.

The Harris County Hospital District (ap-pellee) is a governmental subdivision of the State of Texas. C. L. Clabon was admitted to Ben Taub General Hospital, a facility operated by the appellee, on June 12, 1974 for treatment of a pulmonary function disorder. Hospital personnel began administering oxygen to him on June 16, 1974. He was in a confused mental state and had to be physically restrained. At approximately 4:15 a. m. on June 17, while C. L. Clabon was strapped to his bed and receiving oxygen, an unknown source ignited his oxygen-saturated bed linens and he burned to death. A patient from another room was discovered in the deceased’s room immediately after the fire.

The appellants, who are the survivors of C. L. Clabon, instituted this wrongful death action against the appellee. The appellee answered and moved for summary judgment, which the trial court granted on October 11, 1977 for the reason that the appellee is immune from liability under the common law doctrine of governmental immunity.

The appellants contend, in their sole point of error, that the trial court erred in granting summary judgment. We note, initially, that summary judgment is a harsh remedy, and it may be upheld only if the record establishes the movant’s right thereto as a matter of law. Wilcox v. St. Mary’s University of San Antonio, 531 S.W.2d 589 (Tex.Sup.1975); Tex.R.Civ.P. 166-A. Rule 166-A, the summary judgment rule, is therefore strictly construed against the movant, and summary judgment should be granted only if the record establishes as a matter of law that there is no genuine issue as to any material fact in the case. In re Price’s Estate, 375 S.W.2d 900 (Tex.Sup.1964).

The appellants contend that the ap-pellee’s alleged negligence in failing to supervise adequately the use of oxygen equipment to administer oxygen to C. L. Clabon and in providing warning signs inadequate to discourage unauthorized personnel from entering the hospital room bring this case within the limited waiver of immunity provisions of the Texas Tort Claims Act. The act provides:

Each unit of government in the state shall be liable for money damages for property damage or personal injuries or death when proximately caused by the negligence or wrongful act or omission of any officer or employee acting within the scope of his employment or office arising from the operation or use of a motor-driven vehicle and motor-driven equipment, other than motor-driven equipment used in connection with the operation of floodgates or water release equipment by river authorities created under the laws of this state, under circumstances where such officer or employee would be personally liable to the claimant in accordance with the law of this state, or death or personal injuries so caused from some condition or some use of tangible property, real or personal, under circumstances where such unit, of government, if a private person, would be liable to the claimant in accordance with the law of this state. Such liability is subject to the exceptions contained herein, and it shall not extend to punitive or exemplary damages. Liability hereunder shall be limited to $100,000 per person and $300,000 for any single occurrence for bodily injury or death and to $10,000 for any single occurrence for injury to or destruction of property.

Tex.Rev.Civ.Stat.Ann. art. 6252-19, § 3 (Supp.1978) (emphasis added).

The appellee asserts that C. L. Clabon’s death was not caused by “some condition or some use” of the oxygen equipment because the equipment was neither defective nor improperly installed, and because the equipment did not require constant supervision. We reject this argument. There was deposition testimony that the oxygen mask used in this case was of a type that allows oxygen, which supports combustion, to seep out of the mask and saturate bed linens. An allegation that C. L. Clabon’s death was caused by a failure to provide adequate supervision of the use of that oxygen equipment, when its use was known to increase the risk and severity of fire, is an allegation that his death was caused by some use of tangible property. The allegation that the warning sign placed on C. L. Clabon’s hospital room door was inadequate to discourage the entry of unauthorized persons into the room is, likewise, a claim that Clabon’s death was caused by some condition or some use of tangible property. We hold that the appellants alleged a cause of action within the limited waiver of immunity provisions of the Texas Tort Claims Act. See Lowe v. Texas Tech University, 540 S.W.2d 297 (Tex.Sup.1976); Overton Memorial Hospital v. McGuire, 518 S.W.2d 528 (Tex.Sup.1975); Mokry v. University of Tex. Health Science Ctr., 529 S.W.2d 802 (Tex.Civ.App.—Dallas 1975, writ ref’d n. r. e.); Tex.Rev. Civ.Stat.Ann. art. 6252-19, § 3 (Supp.1978). Whether the hospital negligently failed to provide adequate supervision of the use of the oxygen equipment or negligently provided inadequate warning signs are fact questions that should be resolved in a trial on. the merits. The trial court erred, therefore, in granting summary judgment.

The appellants’ point of error having been sustained, the judgment of the trial court is reversed and the cause is remanded for a trial on the merits.

Reversed and remanded.

      . Amendments to Tex.R.Civ.P. 166-A, effective January 1, 1978, are inapplicable in this case since judgment was rendered prior to that date.

      . That point is sufficient to challenge the summary judgment on appeal. Malooly Brothers, Inc. v. Napier, 461 S.W.2d 119 (Tex.Sup. 1970); Tex.R.Civ.P. 418.


author: COULSON, Justice.

text:
    CITY OF PASADENA et al., Appellants, v. Thomas W. BARRON et al., Appellees.
    No. 1814.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    May 24, 1978.
    Rehearing Denied June 14, 1978.
    Charles A. Easterling, City Atty., City of Pasadena, Pasadena, for appellants.
    Robert E. Ballard, Michol O’Connor, Kronzer, Abraham & Watkins, Houston, for appellee John M. Ballard.
    John Emmett Crow, Pasadena, for appel-lee Thomas W. Barron.
   COULSON, Justice.

On March 24, 1977 Leroy Mouser, Chief of the Pasadena Police Department, indefinitely suspended officers Thomas W. Barron and John M. Ballard. Chief Mouser took this action based on his belief that the two men had conceived and executed a plan to furnish false evidence of an assault on Barron and thereby develop a plausible explanation for Barron’s use of deadly force against a misdemeanor theft suspect. In essence, the officers’ plan required Barron to tell his superiors that Michelle Ann Ever-sole, the misdemeanor theft suspect he had attempted to arrest, had pointed a pistol at him as she drove past him, and that it was in reaction to this threat that he fired six pistol shots at her automobile as it sped away; Ballard agreed to supply a “throw down gun” to substantiate this story. This plan was put into effect and Ballard placed a pistol along the route driven by Eversole, so that it would appear that she had the weapon when she escaped from Barron and had discarded it so as to avoid having it found in her possession. Ballard then told another officer where the pistol could be ■found, as indeed it was. Other policemen were skeptical about Barron’s report, even following, or perhaps because of, the production of the pistol. This skepticism culminated in the indefinite suspensions. The Civil Service Commission of the City of Pasadena found that the charges contained in the letters of indefinite suspension filed by Chief Mouser were true and correct, and permanently dismissed the officers from the force. Barron and Ballard appealed this action to the district court which held that the dismissals were improper and ordered reinstatement. The City of Pasadena has appealed from that decision. Since we find that the Commission’s dismissal orders were supported by substantial evidence, we reverse the judgment of the trial court and render judgment that the dismissal orders are valid.

Judicial review of appeals from orders suspending or dismissing policemen or firemen is governed by the substantial evidence rule. Fire Department of City v. City of Fort Worth, 147 Tex. 505, 217 S.W.2d 664 (1949). Under that rule, the burden is entirely upon the party challenging a commission’s order to show that it is illegal or not supported by substantial evidence. Herron v. City of Abilene, 528 S.W.2d 349 (Tex.Civ. App.—Eastland 1975, writ ref’d). An order will be deemed to be supported by substantial evidence unless it can be said that a reasonable mind could not have reached the conclusion the commission must have reached in order to justify its action. Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424, 441 (1946). In practice this means that “it has not taken much evidence to qualify as substantial. In fact, the evidence may be substantial and yet greatly preponderate the other way.” Lewis v. Metropolitan S. & L. Ass’n, 550 S.W.2d 11, 13 (Tex.Sup.1977).

A considerable amount of argument in this case has centered on the admissibility of statements allegedly made by Barron and Ballard during questioning by other officers conducting an investigation into the incident. It was successfully urged in the trial court that these statements were inadmissible since they were not preceded by Miranda warnings and they were made under circumstances which would have required the giving of such warnings as a prerequisite to their admission in a criminal action. Since we find that there is substantial evidence to support the Commission’s orders apart from these statements, we do not reach this issue, and express no opinion on it.

The evidence supporting the Commission’s orders is as follows:

(1) Barron testified that he “possibly” discussed the need for a throw down gun “in a joking manner” with Ballard.
(2) Ballard directed another officer to the exact location where the pistol was found. Ballard told the other officer where he had seen a “suspicious object” during his search of the area and added that he did not want to be listed as the finder since he and Barron were friends and it would “look better” if someone else made the discovery.
(3) In an earlier search of the area where the gun was found, it had not been noticed. This point was developed in the testimony of Sergeant Ralph McAninch:
Q What were your first thoughts when you got out of the car and saw the pistol lying there in the position that you saw it?
A I first thought there was no way that pistol could have been put there by the suspect.
Q That was for what reason?
A Because not one hour prior to that time I had been standing in that very spot, looking at the pick up.
Q And the pistol was not there?
A No, sir. It was not.
(4) There were no scratches or other marks on the pistol which would indicate it had been thrown from a moving vehicle.
(5) In order for the weapon to have been thrown by Eversole out of her car and have landed in the place where it was found she would have had to throw it in an arc over the roof of her car.

This testimony, though it certainly does not compel the conclusion reached by the Commission, is adequate to support it under the substantial evidence rule. Consequently, the Commission’s orders must be upheld.

Two other points remain before this court: Whether the City has brought a sufficient challenge to the trial court’s judgment and whether Chief Mouser’s letters of suspension were adequate.

The trial court filed numerous findings of fact and conclusions of law in this case. Many of these have not been directly challenged by the appellant and it is urged that these are binding on it. We think not. The trial court is not to substitute its discretion for that delegated to the Commission by the Legislature. Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424, 441 (1946). The only issues properly before the trial court were whether the Commission’s orders were free from the taint of any illegality and whether they were reasonably supported by substantial evidence. Fire Department of City v. City of Fort Worth, 147 Tex. 505, 217 S.W.2d 664, 666 (1949). Error was properly presented on these two points. There is, moreover, some question whether findings of fact are even appropriate in this situation. Reavley, Substantial Evidence and Insubstantial Review in Texas, 23 S.W.L.J. 239, 241 (1969).

Finally, the argument that Chief Mouser’s letters were inadequate since they listed the rules violated and then set out a narrative outline of the acts which constituted violations of those rules is without merit. Previous opinions by this court have addressed this point and we find no cause to vary our earlier holdings. Nixon v. City of Houston, 560 S.W.2d 447 (Tex.Civ.App—Houston [14th Dist.] 1977, writ ref’d n. r. e.); Walker v. City of Houston, 466 S.W.2d 607 (Tex.Civ.App.—Houston [14th Dist.] 1971, no writ).

Reversed and rendered.

BROWN, C. J., not participating.


author: WARD, Justice.

text:
    Hortencia TIBUNI, Appellant, v. EL PASO ELECTRIC COMPANY et al., Appellees.
    No. 6674.
    Court of Civil Appeals of Texas, El Paso.
    May 24, 1978.
    Rehearing Denied June 21, 1978.
    Dick Stengel, Law Offices of L. Taylor Zimmerman, P. C., L. Taylor Zimmerman, El Paso, for appellant.
    Kemp, Smith, White, Duncan & Hammond, Joe Lea, Jr., El Paso, for appellees.
   OPINION

WARD, Justice.

This is an appeal by the Plaintiff from a summary judgment granted in favor of two Defendants in an equitable bill of review case. Because the Plaintiff affirmatively pled and the proof showed that she was seeking to relitigate issues which she either previously litigated or had full opportunity to litigate in the first trial of the case, we affirm.

Hortencia Tibuni filed suit in Cause No. 73-941, 120th District Court, against El Paso Electric Company for injuries arising out of an automobile accident which occurred August 6, 1972. A deposition of Thomas Alexander was taken August 27, 1974, and he testified that he was driving the Electric Company car but was not on duty and was not acting for the Company in the course and scope of his employment. In December, 1974, the Plaintiff joined Alexander to the suit as a party Defendant, but on July 23, 1976, his plea of two-year Statute of Limitation was sustained and he was dismissed from the lawsuit. On the same day, a motion for summary judgment on behalf of El Paso Electric Company was heard and granted and a take nothing judgment was entered against the Plaintiff. Thereafter, on August 2nd, a motion for new trial was filed by Ms. Tibuni complaining of the trial Court’s actions regarding the two Defendants, and that motion was overruled September 7, 1976. No appeal was then taken.

On February 24,1977, the Plaintiff Tibu-ni, in the same Cause No. 73-941, 120th District Court, filed her present bill of review against El Paso Electric Company and Thomas Alexander alleging the same cause of action as previously made. She further alleged that she had a meritorious cause of action against the said two Defendants, and a meritorious defense to the motion to dismiss filed by Alexander and to the motion for summary judgment filed by the Electric Company; as the Plaintiff was misled; that the Defendant Electric' Company had concealed from the Plaintiff that the Defendant Alexander was not in the course and scope of his employment; that “Plaintiff did not discover until August 27, 1974 that the Defendant, THOMAS EDGAR ALEXANDER, was not in the course and scope of his employment with the Defendant, EL PASO ELECTRIC COMPANY;” that the representatives of the Electric Company had known since May or June, 1974, that Alexander was not in the course and scope of his employment; and that the Defendants lulled Plaintiff’s attorney into a sense of false security. Thereafter, on March 31, 1977, the present motion for summary judgment of the Defendants, El Paso Electric Company and Thomas Alexander, was heard and it was granted on May 10, 1977, and a take nothing judgment was entered against the Plaintiff on her bill of review action against the said two Defendants. It is this judgment that is now appealed.

The Plaintiff’s first point is that the trial Court erred in originally granting the Alexander plea of limitation and the summary judgment in favor of the Electric Company. This point is directed to the final judgment entered in the first suit in July, 1976. The complaint is entirely foreign to the present appeal and presents nothing for us to review at this time. The point is overruled.

The Plaintiff’s second point is to the effect that the trial Court erred in granting the summary judgment in the present bill of review as there were fact issues present, and that Plaintiff had fulfilled all the equitable principles of a bill of review. The Plaintiff’s theory is that claim agents and attorneys for the Defendants concealed the facts from her that Alexander was not acting within the course and scope of his authority with the Electric Company at the time of the accident, and that this constituted some sort of fraud upon her which became a defense to both Alexander’s plea of limitation and the Electric Company’s original motion for summary judgment. Regardless of the questionable merits of such a plea, the Plaintiff has both alleged and established by the record that her attorneys knew of the alleged concealment and of the true facts by August 27, 1974, almost two years before the first suit was finally disposed of. The matter should have been presented to the trial Court in the first trial for favorable consideration, or to the appellate Court if rejected by that trial Court. The Plaintiff is not entitled to a bill of review as she has failed to show that she was prevented from presenting her meritorious defense through extrinsic fraud, accident or mistake, wholly unmixed with any fault or negligence of her own. Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950); Johnson v. Potter, 384 S.W.2d 747 (Tex.Civ.App.—Tyler 1964, no writ); Falsetti v. Lowman, 405 S.W.2d 796 (Tex.Civ. App.—Eastland 1966, writ ref’d n. r. e.); Armstrong v. Jacobs, 439 S.W.2d 848 (Tex.Civ.App.—Dallas 1969, no writ).

The second point is overruled and the summary judgment appealed from is affirmed.


text:
    William C. SEIFERT, Appellant, v. EL PASO NATURAL GAS COMPANY, Appellee.
    No. 6676.
    Court of Civil Appeals of Texas, El Paso.
    May 24, 1978.
    C. R. (Kit) Bramblett, El Paso, for appellant.
    Grambling, Mounce, Sims, Galatzan & Harris, John A. Grambling, Don Hagans, El Paso, for appellee.
   OPINION

WARD, Justice.

A summary judgment was rendered in favor of the Defendant, El Paso Natural Gas Company, in this suit for slander. The sole question before us is whether the summary judgment proof offered by the Defendant/corporation was sufficient to sustain the judgment because the employee was not acting in the course and scope of his employment when he made the alleged slanderous statement. Plaintiff appeals and we affirm.

William C. Seifert was employed in the Engineering Department of El Paso Natural Gas Company and his employment was terminated by the Company on May 25, 1972. He filed suit against the Company in February, 1976, and complained that in August, 1974, and again in January, 1976, Walter McGee, a Natural Gas Company employee also in the Engineering Department, in answer to two telephone inquiries had stated that the Plaintiff was “untrustworthy, unethical and of very poor character and that he became so unreliable that El Paso Natural Gas Company fired him.”

Motion for summary judgment was thereafter filed by the Defendant on the basis that, if any such statement was made by McGee, he was not then acting within the course and scope of his employment for the Company. The summary judgment proof offered by the Defendant consisted of attached affidavits of McGee and of James Malone, the Director of Personnel Administration of the Gas Company, and certain admissions made by the Plaintiff to request for admissions. Opposing affidavits were filed on behalf of the Plaintiff.

In this proceeding, the Defendant has assumed the so-called negative burden of establishing as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the Plaintiff’s cause of action. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970). To establish the Defendant’s liability that McGee was acting within the course and scope of his employment when he made the alleged statement, the Plaintiff would normally only have to undertake the burden stated in Texam Oil Corporation v. Poynor, 436 S.W.2d 129 (Tex.1968):

“ * * * ‘An action is sustainable against a corporation for defamation by its agent, if such defamation is referable to the duty owing by the agent to the corporation, and was made while in the discharge of that duty. Neither express authorization nor subsequent ratification is necessary to establish liability.’ * *

Therefore, in this slander case, on motion for summary judgment, the Defendant/movant had the burden of proof to establish that the alleged defamation was not referable to any duty owed by the .agent to the corporation and was not made while in the discharge of that duty. Jackson v. Cheatwood, 445 S.W.2d 513 (Tex.1969).

As pointed out, the movant has supported its position by the two affidavits from its employees. The substance of the affidavits established the movant’s position that McGee, when he made the statemen ts, was not acting within the course and scope of his employment, that his duties with the Engineering Department never included that of furnishing information or recommendation to outsiders about former employees, and was wholly unrelated to his employment in the Engineering Department of the Gas Company. This is uncon-tradicted evidence, but since it is from interested witnesses, the question of its credibility is raised. In this case, we do not believe the question of credibility is at issue. The evidence is clear, direct and positive and there are no circumstances in evidence tending to discredit or impeach the testimony. Cochran v. Wool Growers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904 (1942). If this were not true, the Plaintiff should have been well able to have disproved that testimony through the normal discovery process. Actually, the Plaintiff’s only argument is that the affidavit of McGee contains the conclusionary statement that any information which he may have furnished to anyone concerning the Plaintiff was completely unrelated to his employment with the El Paso Natural Gas Company. While that portion of the statement is conclusionary, we believe that the balance of the statement, together with the affidavit of Malone, the Personnel Director, established the necessary proof that McGee, as an employee in the Engineering Department, was never authorized or even permitted by the Company to furnish any information pertaining to the work performance of any former employee, that requests for information or references pertaining to former employees would only be furnished on behalf of the Company by Mr. Malone or a person within the Personnel Administration section acting under his supervision, and then only dates of employment and position held could be given and nothing further. No genuine issue on course and scope of the employment is present in this case. See Wagner v. Caprock Beef Packers Company, 540 S.W.2d 303 (Tex.1976); and Galvan v. Sisk, 526 S.W.2d 717 (Tex.Civ.App.—Amarillo 1975, no writ).

The judgment of the trial Court is affirmed.


author: HALL, Justice.

text:
    Harlan FRIEND, Appellant, v. John Curtis BEARD, Appellee.
    No. 5790.
    Court of Civil Appeals of Texas, Waco.
    May 25, 1978.
    Rehearing Denied June 22, 1978.
    Richard N. Evans, Evans & Lee, Beaumont, for appellant.
    Wayne Fisher, Fisher, Roch & Gallagher, Houston, for appellee.
   HALL, Justice.

This appeal is from an order overruling the defendant lawyer’s plea of privilege in a malpractice suit against him. In question are the legal and factual sufficiency of the evidence to support findings of negligence and proximate cause. We affirm the trial court’s ruling.

Plaintiff John Curtis Beard filed this suit in Harris County against Harlan Friend, the defendant attorney, alleging that plaintiff received severe personal injuries which were proximately caused by the negligence of Humble Pipeline Company in certain particulars; that plaintiff employed defendant attorney to represent him in his action for damages; that defendant filed suit against Humble Oil and Refining Company instead of Humble Pipeline Company; that defendant negligently failed to determine “through interrogatories or requests for admissions, or otherwise,” whether Humble Oil and Refining Company was the correct defendant; that “because of such negligent and careless handling of plaintiff’s cause of action” defendant permitted the cause to become barred by the two-year statute of limitations by negligently failing to file suit against Humble Pipeline Company within the required time; that defendant “also failed to keep plaintiff adequately and properly informed as to the facts surrounding the development of his suit”; and that as a proximate result of defendant’s negligence plaintiff has suffered particularized damages totaling $500,000.00.

Defendant filed his plea of privilege to have the case transferred to Liberty County, the county of his residence. Plaintiff controverted the plea and asserted the suit could be maintained in Harris County under .the provisions of § 9a, Article 1995, Vernon’s Tex.Civ.St. After a hearing without a jury, the plea of privilege was overruled. Defendant appeals.

Findings of fact and conclusions of law were not requested nor filed. Accordingly, the presumption obtains that the court implicitly made all necessary fact findings in support of the judgment. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 613 (1950).

In its pertinent parts, subdivision 9a, Article 1995, permits a lawsuit to be filed and held outside the county of the defendant’s residence provided the plaintiff establishes by a preponderance of the evidence (1) that a negligent act or omission of the defendant occurred in the county of suit, and (2) that the negligence was a proximate cause of the plaintiff’s injuries. In our case, defendant contends there is no evidence to support the implied findings that he committed a negligent act in Harris County, or that such negligence if committed proximately caused injury to plaintiff. Alternatively, defendant asserts those findings are against the great weight and preponderance of the evidence.

The following facts are shown in the record. Defendant attorney resides in the City of Liberty, in Liberty County, and maintains his office there for the practice of law. Plaintiff also resides there. On September 27, 1967, plaintiff was a laborer for T & T Pipeline Contractors engaged in laying four pipelines in Harris County for Humble Pipeline Company. On that day he was seriously injured when he unscrewed a “bull plug” from the end of one of the pipelines he was installing. A bull plug is a cap which is screwed onto the end of a pipeline to hold pressure inside the line for conducting tests. Plaintiff was told to unscrew the bull plugs by an inspector employed by Humble Pipeline Company to oversee and supervise the work of the T & T crew. The inspector told plaintiff that all four lines had been depressurized and that it was therefore safe to remove the bull plugs. Plaintiff removed two plugs without incident. However, the third line had not been depressurized, and the plug on it blew out when plaintiff attempted to remove it causing injury to him. He was hospitalized forty-eight days in Harris County for treatment. While he was in the hospital defendant visited him and he employed defendant there to represent him. Defendant filed a workmen’s compensation case in a District Court in Harris County and settled that case, and approved the judgment rendered on the settlement, in Harris County on December 12,1969. On that date the two-year statute of limitations began to run on plaintiff’s third-party action against Humble Pipeline Company under the election-of-remedies provisions of Article 8307, § 6a, Vernon’s Tex.Civ.St., at that time. On February 23,1970, defendant filed a lawsuit on behalf of plaintiff against Humble Oil and Refining Company in a District Court in Harris County for recovery of plaintiff’s personal injury damages. Before the suit was filed, and during the period between December 12, 1969, when the statute of limitations in the lawsuit against the correct third-party defendant, Humble Pipeline Company, began to run, and December 12, 1971, when that third-party action became barred by limitations, defendant failed to ascertain and did not attempt to ascertain through any vehicle of judicial discovery or otherwise whether Humble Pipeline Company was the correct defendant. In October, 1971, before the action was barred by limitations, defendant filed an agreed motion to pass a trial setting, signed by him, in the District Court in Harris County where the case was pending. Again, in March, 1972, defendant filed in that court a motion for continuance signed by him. In November, 1973, defendant and plaintiff appeared in court in Harris County for a trial setting. Defendant then learned for the first time that he had filed suit against the wrong party, and that the case was therefore barred by limitations. He did not tell plaintiff those facts, but instead told him there in Harris County that the trial had been postponed. Thereafter, plaintiff contacted defendant at intervals of two or three months at defendant’s office inquiring about the status of the case. Defendant would tell plaintiff that he was continuously working on the case. Finally, in 1976, plaintiff secured the case file from defendant and learned that the wrong defendant had been sued and that the case was barred by the statute of limitations. The suit was dismissed in April, 1976. Expert testimony was adduced to the effect that defendant’s conduct in filing the lawsuit without making some effort to verify he had the proper defendant, and in failing to advise plaintiff the wrong defendant had been sued when that was learned, fell below the standard of ordinary care of lawyers practicing in Harris County and Liberty County.

The recited evidence is legally sufficient to support implied findings to the effect that plaintiff suffered personal injuries as a proximate result of the negligence of Humble Pipeline Company’s inspector; that defendant’s act of filing plaintiff’s suit for damages (which was done in Harris County) against the wrong party without first attempting to determine the proper party to sue was negligence; that such negligence was a proximate cause of the suit being barred by the two-year statute of limitations and the resulting loss to plaintiff; that when plaintiff and defendant were in Harris County together in November, 1973, and defendant first learned he had filed the suit against the wrong party and the suit was barred, defendant’s failure to apprise plaintiff of those facts was negligence; and that such negligence was a proximate cause of plaintiff continuing thereafter to make visits to defendant’s office every two or three months until 1976 to learn the status of the case, thereby necessarily causing plaintiff some monetary loss.

Those findings support the judgment. In the light of the whole record they are not against the great weight and preponderance of the evidence.

The judgment is affirmed.


author: GUITTARD, Chief Justice.

text:
    KUTNER-JONES DEVELOPMENT CORPORATION, Appellant, v. FIDELITY TITLE COMPANY, Appellee.
    No. 19526.
    Court of Civil Appeals of Texas, Dallas.
    May 26, 1978.

      Michael Lowenberg, Akin, Gump, Hauer & Feld, Dallas, for appellant.
    Edward J. Drake, Brady, Drake & Wilson, Dallas, for appellee.
   GUITTARD, Chief Justice.

This suit was brought by Kutner-Jones Development Corporation against Fidelity Title Company to recover $122,000 alleged to have been improperly paid by Fidelity out of the proceeds of a loan to Kutner-Jones. The trial court granted Fidelity’s motion for summary judgment, and Kut-ner-Jones appeals, contending that fact issues are raised with respect to Fidelity’s violation of its escrow instructions and its negligence in making the payment. We hold that the summary-judgment proof fails to establish the absence of fact issues in these respects. Consequently, we remand the case for trial.

Kutner-Jones alleges in its petition that it entered into an agreement with J. H. Jones and Whispering Oaks Development Corporation to acquire the assets of Whispering Oaks; that the agreement provided “that in consideration for such acquisition, Kutner-Jones Development Corporation would re-finance certain obligations of Jones and Whispering Oaks which were secured by the property in question which was a certain tract of land in Dallas County;” that Kutner-Jones made an agreement to borrow from National Bank of Commerce a sufficient amount to finance the acquisition and provide additional money for Kutner-Jones’ business; that Kutner-Jones entered into an agreement with Fidelity Title Company wherein Fidelity agreed to act as escrow agent in closing the loan transaction; that when the loan was closed, National Bank of Commerce furnished to Fidelity loan proceeds in the amount of $460,000; that Fidelity wrote a check on its escrow account payable to Mercantile National Bank in the amount of $172,000 and improperly delivered it to J. H. Jones, who deposited it to the account of Whispering Oaks at the Mercantile National Bank; that Whispering Oaks subsequently drew $122,000 out of the account and used it for its own purposes; that the disbursement instructions obligated Fidelity to pay out the proceeds of the loan only to the extent necessary to obtain a release of the lien from Mercantile National Bank sufficient to enable National Bank of Commerce to obtain a first lien deed of trust on the property; and that Fidelity’s disbursement of this $122,000 to Jones was a breach of Fidelity’s fiduciary responsibility and contractual obligation to Kutner-Jones and also a failure to use reasonable care in disbursing the proceeds of the loan.

Fidelity’s motion for summary judgment is based on the affidavits of Lynn Nicholson, its closing officer, and Charles Dees, vice president of Mercantile National Bank. Fidelity acknowledges that it “had a fiduciary .duty to disburse the amount of dollars necessary to place National Bank of Commerce in a first-lien position — no more and no less,” but contends that the summary-judgment proof establishes that it did exactly that by making a proper inquiry concerning the amount Mercantile required to release its lien and paying out the $172,000 that Mercantile demanded.

Kutner-Jones argues that even though the indebtedness of Whispering Oaks to Mercantile may have been as much as $172,-000, that entire amount was not required for a release of the lien on the property in question because the deed of trust securing this indebtedness covered also a tract of land in Collin County not included in the sale from Whispering Oaks to Kutner-Jones and that Mercantile was willing to accept and did accept a substantially smaller amount for release of the lien on the Dallas County land, thus permitting Whispering Oaks to obtain and convert to its own use a portion of the proceeds of the $172,000 check. Kutner-Jones asserts that Fidelity failed to comply with its instructions in that it asked the entire amount of the indebtedness rather than the amount required for a release of the lien.

We conclude that the summary judgment evidence is subject to the interpretation advocated by Kutner-Jones. Nicholson’s affidavit states that he requested of Mercantile “the payoff balance required by Mercantile in order to release those properties located in Dallas County from Mercantile’s deed of trust,” and that he was advised by Mercantile’s vice president Dees “that the payoff balance required in order for Mercantile to release its lien on the property involved was $172,000.” This statement, however, is not corroborated by Dees. Dees states that before Mercantile received the check for $172,000, Fidelity “had asked the amount of the debt of Whispering Oaks,” and that, in response to that inquiry, “[t]he $172,000 figure was quoted to the title company.” Thus, Dees does not state that $172,000 was the amount Mercantile required for a release of its lien on the Dallas County property, or that he told Fidelity that Mercantile would require that amount for such a release. Consequently, a fact issue may exist as to whether Nicholson simply asked the wrong question, and that a different response might have been elicited if he had asked the question in accordance with Fidelity’s instructions from National Bank of Commerce.

The record does not disclose what Dees would have responded if Nicholson had asked how much Mercantile required for execution of the release on the Dallas County property. Dees stated in his affidavit that Mercantile did execute a release of the Dallas County land to Whispering Oaks, but he does not state the amount paid by Whispering Oaks for such release. The release itself is in evidence. It does not show the amount paid by Whispering Oaks, but recites a “partial payment” of the $150,000 note, and expressly stipulates that it releases only the property in Dallas County and does not impair or affect Mercantile’s lien with respect to the property in Collin County. Thus, the summary-judgment proof establishes that Mercantile did in fact release the property in question from its deed of trust without requiring Whispering Oaks to pay the full amount of the indebtedness, and this evidence provides circumstantial support for Kutner-Jones’ contention that if Nicholson had asked the amount required for a release of the lien on the land in question, instead of the amount of the indebtedness, Dees would have responded with an amount somewhat smaller than $172,000.

Fidelity argues that since the Dees affidavit states that Mercantile received the $172,000 check, which was payable to its order, Fidelity committed no breach of its instructions by delivering it to Jones. Though Mercantile may have received the check, that fact would not excuse Fidelity from its error in failing to determine the proper amount required for a release of the lien. Moreover, the summary-judgment proof does not show how Mercantile applied the proceeds of this check. Thus, we do not know how much was applied to the indebtedness of Whispering Oaks, or whether some of it was credited to the checking account of Whispering Oaks, as Kutner-Jones alleges. Neither is there any proof that Whispering Oaks did, or did not, withdraw any of such funds for its own use. So far as the summary-judgment evidence shows, Jones and Whispering Oaks may, indeed, have been able to make off with $122,000 of the loan proceeds, as Kutner-Jones alleges.

Although the record does not show what instructions Fidelity had concerning disbursement of the loan proceeds above the amount required to satisfy the liens and expenses of the closing, the record clearly implies that it was obligated to pay any balance to the borrower, Kutner-Jones. Since the summary-judgment proof fails to establish as a matter of law that Fidelity paid no more than the amount required to satisfy the lien, Fidelity has failed to establish as a matter of law that it complied with its instructions. It has also failed to establish as a matter of law that it used reasonable care to determine the amount necessary to satisfy the liens.

Fidelity urges an alternative ground for affirming the summary judgment in its favor. It asserts that Kutner-Jones has made an election of remedies in previous litigation with J. H. Jones and other parties in that it made a claim in that litigation against Jones for converting the same funds that it now alleges Jones was improperly permitted to make off with because of Fidelity’s failure to follow its escrow instructions. The pleadings in that litigation are included in the present summary-judgment proof. On examination of those pleadings, we conclude that no election has been made. The facts alleged in Kutner-Jones’ claim against Jones are entirely consistent with the facts alleged in its petition in this case. If Kutner-Jones had actually recovered a judgment against Jones in that case and Jones had paid it, then, perhaps, Kutner-Jones would already have been compensated for the loss it now alleges. The present record shows, however, that the earlier suit was dismissed for want of prosecution. Consequently, we find nothing in that suit that would support the summary judgment in the present case.

Reversed and remanded.

      . We note that Kutner-Jones alleges that the agreed consideration for its purchase of .the properties in question was that Kutner-Jones “would re-finance certain obligations of Jones and Whispering Oaks which were secured by the property in question, including a secured loan made by Mercantile National Bank of Dallas.” The affidavit of Jonathan Kutner states the agreement in these same terms. This allegation may be subject to the interpretation that Kutner-Jones was obligated to pay the entire balance of the indebtedness to Mercantile, rather than only the amount Mercantile required for a release of the property in question. If Kutner-Jones was obligated to pay the entire amount of the indebtedness, then perhaps Kut-ner-Jones would have no reason to complain that Fidelity enabled Whispering Oaks to use the $172,000 check to discharge the entire $150,000 note held by Mercantile, together with any other indebtedness from Whispering Oaks to Mercantile, regardless of what instructions Fidelity may have received from National Bank of Commerce. No such contention, however, is raised on this appeal.