text:
    Jessie M. ROBERTS, Appellant, v. Eulalia E. ROBERTS et al., Appellees.
    No. 8039.
    Court of Civil Appeals of Texas, Beaumont.
    Nov. 10, 1977.
    Rehearing Denied Dec. 1, 1977.
    Lee Roger Ratliff, Silsbee, for appellant.
    Glen L. Kirby, Kountze, for appellees.
   CLAYTON, Justice.

The Metropolitan Life Insurance Company filed this interpleader to have the court determine who was entitled to the proceeds of the insurance policy on the life of Don W. Roberts. The claimants in the trial court were the surviving widow, Jessie M. Roberts, appellant, and the four surviving children of the deceased, appellees. Both parties filed motions for summary judgment. The trial court granted the motion for appellee and denied the motion filed by appellant.

The undisputed evidence shows the following: Don W. Roberts and appellees’ mother were married in 1955 and maintained the insurance, the proceeds of which are in controversy in this case, for approximately twenty years until the marriage was terminated by divorce. The divorce was pronounced on June 2, 1975, and the judgment was entered on July 12, 1975. Appellant married Don Roberts on June 21, 1975. Don Roberts died on January 22,1976. The divorce decree entered July 12,1975, provided that “. . . the four (4) children will be the sole beneficiaries of all insurance policies presently insuring the life of DON W. ROBERTS.” On October 8, 1975, following his marriage to appellant, he, Roberts, signed a “Designation of Beneficiary” form naming appellant as beneficiary, and this form was received by the Civil Service Commission on October 18, 1975. This Designation of Beneficiary” form for this policy was the only such form ever filed.

At the time of his death, the deceased was insured under a group life insurance policy issued by the Metropolitan Life Insurance Company to the United States Civil Service Commission. The insurance which became available under the Federal Employees’ Group Life Insurance Act (5 U.S. C.S. § 8701 (1967), et seq.) provided for United States Civil Service employees while the deceased was an employee of the United States Conservation Service and prior to his retirement therefrom. The life insurance is term insurance, having no surrender value, or any loan, paid up or extended insurance value.

In the judgment of the trial court it was specifically decreed that “the CHILDREN hold a vested equitable interest in and title to the proceeds of the subject insurance policy by virtue and as the date of the judgment of the [divorce decree] ., so the legal interest in and title to the proceeds of the subject insurance policy which passed to the DEFENDANT JESSIE ROBERTS by virtue of the designation of beneficiary dated October 8, 1975, was impressed with a constructive trust in favor of the DEFENDANT ROBERTS’ CHILDREN, and . . . the CHILDREN are entitled to judgment for these proceeds. . . .” By virtue of this judgment, the trial court held that the legal title to the proceeds of the insurance vested in appellant, but that these proceeds were impressed with a constructive trust in favor of appellees resulting from the provisions of the divorce decree.

Appellant’s basic contention is that the Federal statute and regulations prescribe a method of designating a beneficiary to the exclusion of any other method. The Federal Statute, 5 U.S.C.S. § 8705 (1967), states that a beneficiary may be designated only by a signed and witnessed writing received by the employing office of the Civil Service Commission. It provides further in that: “A designation, change or cancellation of beneficiary in a will or other document not so executed and filed has no force or effect.”

In urging the trial court was in error, appellant relies upon a line of cases involving National Life Insurance policies, including McJunkin v. Estate of McJunkin, 493 S.W.2d 278 (Tex.Civ.App.—Dallas 1973, writ ref’d n. r. e.).. In the McJunkin case a son sued his deceased father’s estate for breach of contract arising from the father’s failure to honor a provision in a property settlement agreement. In the provision the father agreed to name the son as irrevocable beneficiary in a National Service Life Insurance policy, but the father later designated another person as beneficiary. The court held that this portion of the property settlement agreement was illegal, void, and unenforceable because of the provisions of §§ 717 and 3101 of 38 U.S.C.S. The insurance involved in the McJunkin case was a National Service Life policy, where the Federal government was the insurer and involved Federal funds. The cases cited and relied upon by appellants involve the same type of insurance policies.

The cases relied upon by appellants cannot be controlling in this case. The applicable Federal statute, 38 U.S.C.S. § 3101 (Supp.1977), provides the proceeds shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.” In our case under review there is no such statutory provision precluding the use of the equitable remedy of constructive trust — once the proceeds are in the hands of the beneficiary.

The appellant does not attack or challenge the validity of the constructive trust created by the trial court. We must assume she concedes that under the facts of this case the constructive trust could be and was a valid exercise of the trial court’s power and authority under the laws of this State. A constructive trust in cases similar to this case has been recognized and upheld by our State courts. See Wunsche v. Equitable Life Assur. Soc., 551 S.W.2d 84 (Tex.Civ.App.—Beaumont 1977, writ ref’d n. r. e.); Box v. Southern Farm Bureau Life Ins. Co., 526 S.W.2d 787 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n. r. e.); O’Neill v. Connecticut Mutual Life Ins. Co., 544 S.W.2d 741 (Tex.Civ.App.—Houston [1st Dist.] 1976, writ ref d n. r. e.).

Appellant contends the trial court erred in overruling her motion for summary judgment because she was the named beneficiary in the policy and as a matter of law was entitled to the proceeds. Appellant incorrectly construes the judgment of the trial court. The court specifically recognized and held that appellant was the named beneficiary in the policy and held that legal title to the proceeds 'vested in her. The court did not hold the children to be entitled to the proceeds as beneficiaries under the policy. The trial court did hold that under the facts of this case the children held a vested equitable interest in and title to the proceeds of the insurance policy.

The judgment of the trial court did not in any manner change, alter, or affect the designated beneficiary of the policy and did not, in any manner, contravene the provisions of the Federal statutes governing the procedures applicable to naming the designated beneficiary. We hold that the trial court’s action in impressing a constructive trust in favor of appellees upon the legal title in and to the policy proceeds which was decreed by the court to be vested in appellant was proper, and the judgment of the trial court is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: KEITH, Justice.

license: Public Domain

text:
    TRINITY UNIVERSAL INSURANCE CO. et al., Appellants, v. J. T. BURNETTE et ux., Appellees.
    No. 8043.
    Court of Civil Appeals of Texas, Beaumont.
    Nov. 10, 1977.
    Rehearing Denied Dec. 1, 1977.

      James J. Zeleskey, Lufkin, Robert L. Fairchild, Center, for appellants.
    John Cely, Lufkin, for appellees.
   KEITH, Justice.

Defendants below appeal from an adverse judgment entered after a trial to a jury. Plaintiffs’ home was destroyed by fire at a time when plaintiffs believed that it was insured by a Trinity policy issued by the local agent, Davis Insurance Agency, Inc. When plaintiffs’ demands for payment were denied, plaintiffs sued alleging both defendants were negligent. The jury agreed with plaintiffs, finding both defendants guilty of negligence proximately causing the loss sustained by the plaintiffs. Each defendant sought indemnity against the other but full indemnity was denied and Trinity was awarded indemnity against Davis only for all it was required to pay in excess of 49% of the total judgment, with Davis being awarded indemnity against Trinity for all in excess of 51% of the total judgment it was required to pay.

Plaintiffs’ dwelling was insured against fire loss by a Trinity policy issued by Davis, and the policy contained an automatic renewal clause which is quoted in the margin. Plaintiffs also relied upon a rule or regulation promulgated by the State Board of Insurance which is also quoted in the margin.

There is no dispute between the parties as to one fact: Neither Trinity nor Davis had any intention of not renewing plaintiffs’ policy at its expiration date. The record is clear that Trinity thought that the policy had been renewed by Davis’ placing it in another of the companies it represented; and, as a matter of fact, Davis’ records incorrectly revealed that the policy had been renewed.

Liability of Trinity

We sustain Trinity’s no evidence point complaining of the submission of Trinity’s negligence to the jury. The plaintiffs have contended throughout the litigation that the policy provision and the regulation (fns. 1 and 2, supra) created a duty on the part of Trinity to give them the thirty days’ notice that the policy was not going to be renewed and that the failure to so give the notice was negligence. We disagree. Notice under either the policy provision or the regulation was required only if the insurer had an intention to decline renewal.

The evidence is uncontroverted that Trinity had no intention to decline renewal of plaintiffs’ policy. John Carroll, a Trinity representative, testified that there was nothing in Trinity’s file to indicate that the policy should not be renewed. Trinity assumed that Davis was renewing the policy through one of the other insurance companies with whom it did business.

Because notice was required only if Trinity intended to decline renewal, and Trinity had no such intention, we hold as a matter of law that Trinity had no duty under a negligence theory to give notice.

It is well settled law that the right to recover for injuries from negligence is founded upon the violation of a duty — when no duty exists, there can be no violation or negligence. Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex.1975); McCall v. Marshall, 398 S.W.2d 106, 108 (Tex.1965); Denison Light & Power Co. v. Patton, 105 Tex. 621, 154 S.W. 540, 541 (1913). Therefore, the trial court erred in submitting a special issue on negligence.

Under the regulation and plaintiffs’ policy, there were only two ways that the policy could not be renewed — at plaintiff’s option or upon at least thirty days’ advance notice by Trinity. Since neither of these alternatives became operative, Trinity renewed the policy as a matter of law.

We affirm plaintiffs’ judgment against Trinity.

Liability of Davis

Davis attacks the judgment with more than twenty points complaining of the sufficiency of the evidence (both factually and legally) to support the submission of the jury issues on Davis’ failure to give the notice, negligence, and proximate cause. Having reviewed the record under the appropriate standards, e. g., Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965), each point is overruled.

The duties of a local recording agent have been succinctly stated in Cateora v. British Atlantic Assurance, Ltd., 282 F.Supp. 167, 174 (S.D.Tex.1968):

“A local agent . . . owes his clients the greatest possible duty. He is the one the insured looks to and relies upon. Most people do not know what company they are insured with. The insured looks to the agent he deals with to get the coverage he seeks, with a sound company who can and will properly and promptly pay claims when they are due. It is his duty to keep his clients fully informed so that they can remain safely insured at all times.”

The evidence is uncontroverted that Davis handled a number of insurance policies for plaintiffs — automobile insurance, boat insurance, and fire insurance on several dwellings. Don [Larry] Davis, the president of Davis Insurance Agency, Inc., testified that his agency had always renewed policies for plaintiffs or notified them when policies were nonrenewed.

Although there was no statutory or contractual duty impressed upon Davis to notify its policyholders of nonrenewal, we hold that Davis was under a duty, as plaintiffs’ insurance agent, to either renew their policy with Trinity, replace the policy with another company, or notify them of its non-renewal so that they could obtain insurance elsewhere. See Jack Criswell Lincoln Mercury, Inc. v. Tsichlis, 549 S.W.2d 255, 258-259 (Tex.Civ.App.—Beaumont 1977, no writ), and cases therein cited.

Davis’ points complaining of the negligence findings are all overruled.

Next, Davis complains of the submission of the issue on proximate cause. We note in passing a series of Supreme Court. decisions holding that the doctrine has two distinct concepts, both of which must be present: “(1) there must be cause in fact, — a cause which produces an event and without which the events would not have occurred; and (2) foreseeability.” Baumler v. Hazelwood, 162 Tex. 361, 347 S.W.2d 560, 564 (1961). See also Kaufman v. Miller, 414 S.W.2d 164, 167 (Tex.1967); Texas & Pacific Railway Co. v. McCleery, 418 S.W.2d 494, 496 (Tex.1967); Enloe v. Barfield, 422 S.W.2d 905, 908 (Tex.1967); Clark v. Waggoner, 452 S.W.2d 437, 439 (Tex.1970).

Larry Davis admitted that plaintiffs were a reasonable risk and that the underwriting requirements of writing the type of insurance coverage necessary to cover the dwelling in question could easily have been satisfied. The evidence is uncontroverted that plaintiffs would have obtained insurance elsewhere if they had known of their policy’s nonrenewal. It was foreseeable that they would not obtain insurance elsewhere if they were never notified that they no longer had coverage. All of Davis’ points complaining of the proximate cause findings are overruled and plaintiffs’ judgment against Davis is affirmed.

Indemnification

Both Trinity and Davis have points of error complaining that each is entitled to a judgment for full indemnity against the other.

Davis claims it is entitled to full indemnity because Insurance Regulation 8(A) (fn. 2, supra) provides that even though the agent is required to notify a policyholder, “the responsibility of giving notice to the insured remains with the company if the agent fails to carry out its instructions to notify the insured.”

Trinity claims it is entitled to full indemnity because Davis breached its contractual duty to either renew plaintiffs’ policy with Trinity or another company or to give them thirty days’ notice of their policy’s nonre-newal. This failure, complains Trinity, was the result of Davis’ own negligence in erroneously noting on its records that the policy had been renewed. We overrule Davis’ points of error and sustain Trinity’s points of error.

Insurance Regulation 8(A), supra, was enacted for the protection of policyholders, not to protect negligent insurance agents. Trinity has a primary responsibility only as to the plaintiffs. However, Trinity does have the right to recover against Davis, the negligent party who in fact caused the non-renewal of the policy in question.

In the limited agency-company agreement signed on March 27, 1974, the first paragraph provides:

“A. AUTHORITY OF AGENT
The Agent is an independent contractor, not an employee of the Company and, subject to requirements imposed by law, the terms of this Agreement, and the underwriting rules and regulations of the Company, is authorized to:
a. Represent the Company for the sole purpose of servicing contracts . placed by the Agent with the Company which are in force on, or renewed at the Company’s election after, March 27, 1974 . . . .” (emphasis added)

On March 27, 1974, Davis also entered a contract, entitled Amendment of Termination Form No. 393, which provides:

“[I]n the event I am unable to renew at expiration with one of my other companies any policy currently in force in the Trinity Universal or Security National Insurance Companies, [I agree] that I will give written notice to the named insured of nonrenewal at least thirty (30) days prior to expiration.” (emphasis added)

Davis was under a contractual duty to service Trinity’s policies — to renew them, to replace them with another company, or to notify policyholders if policies were not being renewed. Although it was physically impossible to give plaintiffs thirty days’ notice of nonrenewal, it was not impossible to renew plaintiffs’ policy or to replace it before its expiration. The error of marking off plaintiffs’ policy as if it were renewed caused the nonrenewal to occur. Therefore, Davis’ failure to properly service plaintiffs’ policy was a breach of its contractual obligation to Trinity as a matter of law, and Trinity is entitled to full indemnity. See Trinity Universal Insurance Co. v. Fuller, 524 S.W.2d 335, 337 (Tex.Civ.App.—Dallas 1975, writ ref’d n. r. e.); National Automobile & Casualty Insurance Co. v. Allco Insurance Agency, 403 S.W.2d 174, 177 (Tex. Civ.App.—Austin 1966, no writ).

We reverse the trial court’s judgment and render judgment for Trinity and against Davis for full indemnification.

AFFIRMED in part and REVERSED and RENDERED in part.

      . “At the option of the insured, this policy must be renewed at expiration unless this company has mailed written notice to the insured of its intention to decline renewal at least thirty days in advance of the expiration date of this policy.” (emphasis added)

      . “A policy must be renewed at expiration, at the option of the policyholder, unless the company has mailed written notice to the policyholder of its intention to decline renewal at least thirty (30) days in advance of the policy expiration date. The company may comply with this provision by requiring or permitting its agent to notify the policyholder. However, the responsibility of giving notice the insured remains with the company if the agent fails to carry out its instructions to notify the insured.”

      . None of the parties have made mention of the failure of plaintiffs to pay or to tender the premiums due on the policy, and we do not reach the question sua sponte.


author: DIES, Chief Justice.

text:
    AMERICAN BANK & TRUST COMPANY, Appellant, v. Bruce B. FREEMAN et al., Appellees.
    No. 7953.
    Court of Civil Appeals of Texas, Beaumont.
    Nov. 10, 1977.
    Rehearing Denied Dec. 29, 1977.

      A. J. Watkins, Houston, for appellant.
    Dale Friend, Houston, Gerald J. Creighton, J. Ritchie Field, Conroe, for appellees.
   DIES, Chief Justice.

Plaintiff below, Bruce B. Freeman, was indebted to a Conroe bank for $125,000 and sought a means to pay off the note. R. D. Philpot, Chairman of the Board of Ameri-can Bank & Trust Company of Shreveport, Louisiana, suggested plaintiff apply for a loan at American. At subsequent conversations, Philpot agreed to sell plaintiff 12,500 shares of his stock in American Bank and see that he was elected to its Board.

On September 20, 1971, plaintiff went to Shreveport, signed a note for $275,000, paid the Conroe bank the $125,000 debt, and gave Philpot a check for $149,000, which the latter deposited in his personal account at American Bank. This $149,000 was for the stock Philpot promised and $24,000 to be invested for plaintiff.

To secure the $275,000 loan from Ameri-can Bank, plaintiff gave a deed of trust on fifty acres of land (a feed lot) near Conroe and induced his mother, Julia, to assign the Bank two notes from Brown & Root, Inc., each in the principal sum of $33,333.33.

Philpot went bankrupt, was unable to get plaintiff on the Board of American Bank, and did not transfer the stock to plaintiff. American Bank demanded their money from plaintiff and, after not receiving it, applied his mother’s (Julia’s) notes to the loan. The feed lot was sold at a trustee’s sale.

Plaintiff brought this suit against defendant Bank alleging fraud in the inducement. He (plaintiff) contended Bank through its Board Chairman, Philpot, induced plaintiff to mortgage his fifty acres of land to Bank, and secured his mother’s (Julia’s) assignment of the Brown & Root notes, on the assurance he (plaintiff) could purchase 12,500 shares of Bank stock owned by Philpot, and that he (plaintiff) would be placed on the Board of Directors of Bank. Plaintiff alleged that these assurances were made with no intention of being fulfilled. Plaintiff’s mother, Julia Freeman, intervened as a plaintiff, adopting and incorporating these allegations.

Trial was to a jury, which found among other things that Philpot was acting within his scope and authority as an agent for the Bank; that he promised plaintiff the 12,500 shares of stock; that the promise was made as Bank’s agent; that his breached promises caused Julia loss of the Brown & Root notes and plaintiff $125,000; that Philpot defrauded both Julia and plaintiff; and that each should receive $10,000 as punitive damages.

Judgment was rendered that Julia recover the value of the two Brown & Root notes plus $10,000 (punitive damages) against defendant Bank. Plaintiff Bruce Freeman was given credit for the $125,000 (purchase stock money), $10,000 punitive damages, and judgment given Bank against plaintiff Bruce Freeman for the balance owed. It is from this judgment, Bank perfects this appeal.

Mrs. Julia Freeman has filed a brief with us, but plaintiff Bruce Freeman has not. We, therefore, are authorized to accept as correct as to Bruce the statements contained in Bank’s (appellant’s) brief as to the facts and the record. Crawford v. Modos, 465 S.W.2d 220, 222 (Tex.Civ.App.—Beaumont 1971, writ dism’d), and the many cases cited therein.

Bank’s first point is there was no evidence, or in the alternative insufficient evidence, to support the jury’s finding that Philpot was the Bank’s agent.

Bank cites us no authority to support this contention. The two authorities cited in Julia Freeman’s (appellee’s) brief do not seem in point. This is in no criticism of the attorneys for the parties, for we have also been unable to find pointed authority.

However, the following authorities seem to us analogous and persuading.

The board of directors are by statute the managers of a Texas corporation. Tex.Rev.Civ.Stat.Ann. art. 2.31 (1956). Individual action by a director ordinarily cannot bind the corporation. Nicholstone City Co. v. Smalley, 21 Tex.Civ.App. 210, 51 S.W. 527, 529 (1899, no writ). In Southern Kansas Ry. Co. of Texas v. Logue, 139 S.W. 11, 14 [Tex.Civ.App.—San Antonio 1911, affirmed, 106 Tex. 445, 167 S.W. 805 (1914)], we find:

“. . .no corporate power can be exercised by any one except the board of directors or by some officer or agent specially empowered by the board of directors to act in their name, place and stead. The president or vice president or one or more of the directors could not bind the corporation in the exercise of its corporate powers by virtue of the office or position held, but there must be action of the board of directors of the corporation either in performing the act or authorizing some one else to perform it. It may be that such authority may at times be inferred from the circumstances surrounding the acts, and undoubtedly the unauthorized act of some officer or agent might be ratified or confirmed by the ■ board of directors.”

The general rule is that a board of directors may exercise its powers only as a body at a meeting duly assembled. Curtis v. Pipelife Corporation, 370 S.W.2d 764, 767 (Tex.Civ.App.—Eastland 1963, no writ); Wichita Falls Electric Co. v. Huey, 246 S.W. 692, 695 (Tex.Civ.App.—Amarillo 1923, no writ). See A. J. Anderson Co. v. Kinsolving, 262 S.W. 150, 151 (Tex.Civ.App.—San Antonio 1924, writ dism’d). In absence of specific authority from the board of directors, the president of a corporation has no authority to contract for the corporation. Standard Underground Cable Co. v. Southern Ind. Tel. Co., 134 S.W. 429, 433 (Tex.Civ.App.—San Antonio 1911, writ ref’d).

While this authority may be express or apparent, the burden of proof is upon him who alleges authority; in the absence of proof no presumption of authority will be indulged. First Nat. Bank v. Slaton Independent School Dist., 58 S.W.2d 870, 875 (Tex.Civ.App.—Amarillo 1933, writ dism’d).

Here, of course, Philpot was Chairman of the Board and not President. However, his authority would certainly be no greater than the President of the Bank.

We have no evidence that the Board of Directors of American Bank ever authorized expressly or impliedly Philpot to contract for the sale of his personal stock in the Bank to Bruce Freeman, or to see that Bruce was put on Bank’s Board Of Directors. So far as the record reveals, Bruce’s decision to borrow from American Bank more money than he owed the Conroe Bank so that he could buy Philpot’s stock was a private matter between him and Phil-pot. The record does not reveal that the Board of Directors ever gave Philpot any authority, express, implied, or apparent, to agree that Bruce would be put on the Board of Directors. Philpot had pledged his stock to another Louisiana institution in an effort to shore up his crumbling business empire and could not have sold it to Bruce anyway.

His mother, Julia Freeman, had no conversations with Philpot or any other officer or director of the Bank, and, therefore, assigned her Brown & Root notes to Ameri-can Bank entirely on the representations and entreaties of her son.

Both Bruce Freeman and Julia Freeman have been sorely abused, but it is not by American Bank. We hold that Philpot was not acting within his scope of authority for American Bank in agreeing to sell 12,-500 shares of his stock to Bruce Freeman, or promising a seat on the Board of Directors to him. Appellant’s point of error is sustained, and it is ordered, adjudged, and decreed that appellees Bruce and Julia Freeman recover nothing of and from appellant American Bank & Trust Company of Shreveport, Louisiana.

REVERSED and RENDERED.


author: J. CURTISS BROWN, Chief Justice.

text:
    Kenneth L. NIXON, Appellant, v. CITY OF HOUSTON, Appellee.
    No. 1539.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Nov. 16, 1977.
    Rehearing Denied Jan. 18, 1978.

      Randy. Martin, James A. Moore, Houston, for appellant.
    Kenneth L. Nixon, pro se on motion for rehearing.
    Otis H. King, City Atty., Alan F. Levin, Senior Asst. City Atty., Dennis C. Gardner, Asst. City Atty., Houston, for appellee.
   J. CURTISS BROWN, Chief Justice.

This is an appeal from a judgment upholding the dismissal of the appellant from the Houston Police Department.

Kenneth L. Nixon (Nixon or appellant) was suspended indefinitely from his position as a captain in the Houston Police Department on November 19, 1975. R. J. Clark, the Acting Chief of Police at that time, suspended Nixon by sending a letter to the Houston Firemen’s and Policemen’s Civil Service Commission (Commission), and by mailing a copy to Nixon in accordance with Tex.Rev.Civ.Stat.Ann. art. 1269m, § 16 (1963). In the letter, Chief Clark outlined the facts supporting his suspension of Nixon in a chronological narrative form. Chief Clark charged that Nixon had violated Civil Service and Houston Police Department Rules by engaging in an extramarital affair, both on and off duty, with the female clerk of Nixon’s substation. Because of the tumultuous nature of the relationship, Nixon allegedly committed numerous acts of misconduct, including the installation of an electronic eavesdropping device on the clerk’s home telephone.

Nixon filed a written appeal from his suspension with the Commission, in which he denied the allegations against him. Following a hearing, the Commission issued a formal order sustaining the suspension and permanently dismissing Nixon from the Department. Nixon appealed to the district court. At the conclusion of a trial de novo, the court found that the Commission’s order was supported by substantial evidence. The trial court upheld the order of the Commission in all respects, therefore, and decreed that Nixon take nothing.

On appeal from the district court’s judgment, Nixon assigns several points of error. He argues, initially, that R. J. Clark had no authority to suspend him. The record reflects that Chief of Police C. M. Lynn resigned in June 1975. Mayor Fred Hofheinz immediately appointed R. J. Clark to be “Acting” Chief of Police. Mayor Hofheinz testified that it was a customary practice to appoint “acting” heads of Police and Fire Departments in the interim between the resignation of a former Chief and the confirmation of a replacement by the City Council. The interim period in this case was from June 27,1975 to January 20,1976. One of the reasons for the delay, according to Mayor Hofheinz, was that R. J. Clark was hospitalized for over a month following a heart attack. When it became clear that R. J. Clark would be unable to serve in a permanent capacity as Chief of Police, May- or Hofheinz appointed B. G. Bond. Chief Bond was confirmed by the City Council in January 1976. There is no evidence that the seven-month delay was intended to circumvent or undermine the appointment process.

Nixon argues that section 34-2 of the Houston City Code provides the only method by which a person may serve as Chief of Police. That section states:

There is hereby created the office of the chief of police in the police department of the city. The chief of police shah be appointed by the mayor and confirmed by the city council. Subject only to the orders and actions of the city council and mayor, the chief of police shall be the executive head of the police department. He shall have management of the department, shall exercise all of the functions assigned to the department, and shall carry out the provisions of law and of ordinances with respect to such functions.

Houston, Tex., Code of Ordinances § 34-2 (1958). Since R. J. Clark was not appointed by the Mayor and confirmed by the City Council upon assuming office in June 1975, Nixon contends that Clark was not the Chief of Police. Nixon argues, therefore, that Clark had no authority to order Nixon’s suspension.

Nixon correctly states that there is no express provision, either in article 1269m or in the Houston City Code, for the appointment of an Acting Chief of Police. Neither is there any time limitation for the appointment and confirmation of a new Chief. Delays between the resignation of one Chief and the confirmation of a new one are unavoidable. Someone must assume the responsibilities of Chief of Police in the interim. Section 34-4 of the Houston City Code provides for such an assumption of responsibilities:

During the absence of the chief of police from duty of the inability of the chief of police to discharge his powers, authority, and duties, the chief inspector of the police department shall be in full and complete charge of all men and equipment in the department, and the chief inspector shall discharge and perform all powers, authority, and duties assigned to and vested in the chief of the police department.

Houston, Tex., Code of Ordinances § 34-4 (1958). This provision deals with the temporary absence of the Chief from his office, and not with a vacancy in the office of Chief following a resignation.

Whenever a power is given or a duty imposed by a city ordinance, everything necessary to make that power effectual or essential to the performance of that duty is conferred by implication. Cf. Terrell v. Sparks, 104 Tex. 191, 135 S.W. 519 (1911). The Mayor of. Houston has no express authority under the City Code to appoint an Acting Chief of Police pending the appointment and confirmation of a permanent Chief of Police. The necessity for such power is clear, nevertheless, since the effectiveness of the Police Department and the safety of the public require the guidance of a Chief of Police at all times. May- or Hofheinz was acting within the scope of his implied authority when he appointed R. J. Clark to be “Acting” Chief of Police. We hold, therefore, that Chief Clark had the power to order Nixon’s suspension.

By his second point of error, Nixon alleges that he was denied due process of law during the Civil Service Commission hearing and the trial de novo because he was not allowed to cross-examine Robert Wilkinson, a radio news broadcaster. Nixon contends that news broadcasts by Mr. Wilkinson about Nixon’s alleged misconduct initiated the investigation ordered by Chief Clark. Mention of the news broadcasts was made in the chronological recounting of Nixon’s activities in Chief Clark’s letter to the Commission, and transcriptions of the broadcasts were attached to the letter. Nixon states that because the broadcasts were a part of the letter of suspension, they were an evidentiary basis for the Commission’s ruling.

At the trial de novo, Commissioner Alvin Henry testified that the news broadcasts were not considered by the Commission in making its decision since they were not a part of the charges in the case. Commissioner Henry also testified that Nixon’s misconduct was independently established by the testimony of witnesses. We agree with the trial court that there was substantial evidence to support the Commission’s determination that Nixon violated Houston Firemen’s and Policemen’s Civil Service Commission Rules and Houston Police Department Rules. The mere fact that the news broadcasts may have initiated the investigation does not mean that the broadcast transcripts were relevant as evidence of Nixon’s misconduct. The trial court did not err in excluding cross-examination of Mr. Wilkinson regarding the transcripts.

By his third point of error, Nixon complains that the trial court erred in finding that the letter of suspension from Chief Clark to the Commission complied with article 1269m, which states in pertinent part:

The written statement above provided to be filed by the department head with the Commission, shall not only point out the civil service rule alleged to have been violated by the suspended employee, but shall contain the alleged acts of the employee which the department head contends are in violation of the civil service rules. It shall not be sufficient for the department head merely to refer to the provisions of the rules alleged to have been violated and in case the department head does not specifically point out the act or acts complained of on the part of such employee, it shall be the duty of the Commission promptly to reinstate him.

Tex.Rev.Civ.Stat.Ann. art. 1269m, § 16 (1963). In support of his assertion that Chief Clark’s letter did not comply with article 1269m, Nixon relies upon City of San Antonio v. Poulos, 422 S.W.2d 140 (Tex.Sup.1967). There, the supreme court held that a letter of suspension was insufficient under section 16 of article 1269m. As in the present case, the letter of suspension listed the specific rules allegedly violated by a police officer, followed by a statement of facts in support of the allegations. The court stated that the letter was insufficient because it failed to allege sufficient facts to substantiate the charges. The supreme court observed that one reason that the San Antonio Police Chief erred in failing to allege sufficient facts was that he recited the alleged violations and facts separately; he did not specify the particular facts he relied upon to establish each individual violation.

Chief Clark’s letter, however, charged Nixon with fourteen violations of the Houston Firemen’s and Policemen’s Civil Service Rules and seventeen violations of the Houston Police Department Rules. The letter then described Nixon’s alleged acts of misconduct in a chronological narrative fashion, spanning twelve single-spaced typed pages. Had Chief Clark listed each alleged violation, followed by the facts relied upon to prove that violation, the letter would have been redundant, overlong and extremely confusing. Chief Clark’s letter of suspension sufficiently apprised Nixon of the charges against him and the facts relied upon to prove those charges. The trial court did not err, therefore, in holding that the letter complied with section 16 of article 1269m. Walker v. City of Houston, 466 S.W.2d 607, 611 (Tex.Civ.App.—Houston [14th Dist.] 1971, no writ).

Nixon assigns as his final point of error the trial court’s finding that the Commission’s final order met the requisites of article 1269m. Nixon argues that the order is invalid because it refers to an invalid letter of suspension. We reject this argument for reasons already stated. Nixon also complains that the Commission made no determination of the truth of the specific charges filed against him, as required by section 16 of article 1269m. The order states that “each of the remaining charges contained in the letter of indefinite suspension . . . [is] in all things true and correct . . . .” The Commission’s failure to set out detailed findings does not void its order of dismissal. City of Houston v. Melton, 163 Tex. 294, 354 S.W.2d 387 (1962). We hold that the Commission’s order complied sufficiently with the requirements of section 16 of article 1269m.

Appellant’s points of error having been fully considered and overruled, the judgment of the trial court is hereby affirmed.

Affirmed.


author: COLEMAN, Chief Justice.

text:
    Barnett Wade GARRISON, Appellant, v. TEXAS COMMERCE BANK, Appellee.
    No. 16943.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Nov. 17, 1977.
    Rehearing Denied Dec. 15, 1977.

      Schleider & Ewing, Ben H. Schleider, Jr., Harry G. Dippel, Paul S. Francis, Houston, for appellant.
    Liddell, Sapp, Zivley & Brown, Willis Witt, R. Bruce LaBoon, John L. Hopwood, Houston, for appellee Texas Commerce Bank National Association, Temporary Admin. of the Estate of Candace Mossier, Deceased.
    Lackshin & Nathan, Herbert N. Lackshin, Bernus Wm. Fischman, and A. R. Schwartz of counsel, of Houston, for appellees Rita Johnson Wilder and Norman Johnson.
    John H. Holloway, Houston, for appellees Daniel Mossier and Christopher Mossier.
   COLEMAN, Chief Justice.

Barnett Wade Garrison appeals an order dismissing his contest to the probate of the purported last will and testament of Candace Mossier, Deceased, on the ground that he was not a “interested person” as required by the probate laws of the State of Texas. Mr. Garrison contends that he was a surviving spouse of Candace Mossier Garrison, therefore a person interested in the estate as provided by Section 3(r) Tex.Prob. Code Ann.

The evidence reflects that on the 3rd day of December, 1975 an order was entered in the Court of Domestic Relations No. 2 of Harris County, Texas, in Cause No. 974,099 entitled In the Matter of the Marriage of Candace Mossier Garrison and Barnett Garrison. This order recites that the cause came on to be heard on the 21st day of October, 1975, and that on the 30th day of October, 1975, the court being of the opinion that the “material allegations in petitioners original petition for divorce . have been proved by full and satisfactory evidence ... it finds that a divorce should be granted to the petitioner, and the petitioner’s name be changed and restored to Candace Mossier.” The court then recited in the order that a Master in Chancery had been appointed and that the property rights of the parties “are not determined at this time, but this court retains jurisdiction of the property rights” of such parties until finally determined at a future date. Finally the court “Ordered, Adjudged and Decreed that an order be, and the same is hereby entered, that the bonds of matrimony between the petitioner Candace Mossier Garrison and the respondent Barnett Garrison be and they are hereby dissolved, and a divorce is granted to petitioner Candace Mossier Garrison . . . It is further Ordered, Adjudged and Decreed that the property rights of the parties herein are not determined at this time, but this court retains jurisdiction of the property rights of the parties until the entry of a final decree of divorce in this cause.” (italics added).

In an order subsequently entered requiring Candace Mossier Garrison to provide security for costs the court stated:

“It is further Ordered that the requirement that Petitioner provide security for costs under this order shall not be construed as an adjudication of ultimate liability for costs, it being the intention of the court to make a determination of ultimate liability for cost at the time of entry of the final judgment herein.”

On October 26, 1976 before the hearings of the Master in Chancery were concluded Candace Mossier Garrison died. Subsequently a will and codicil was presented for probate and a contest was filed by Barnett Garrison. The temporary administrator filed a motion in limine requesting that Barnett Garrison be required to show that he was a person interested in the estate as contemplated by law and that in the absence of such proof his contest to the probate of the will be dismissed.

The probate court entered an order sustaining the motion in limine and dismissing the contest which recited:

“After being fully apprised, the Court finds that Contestant, Barnett Wade Garrison, was divorced from the Deceased, Candace Mossier, by a decree of divorce rendered orally by The Honorable Herman Mead, Presiding Judge of the Court of Domestic Relations Number Two of Harris County, Texas, on the Third day of October, 1975, and formally entered by written decree on the Third day of December, 1975.”

It is well settled that a cause of action for a divorce is purely personal and that the cause of action for a divorce terminates on the death of either spouse prior to the rendition of a judgment granting a divorce. Ex Parte Cahill, 286 S.W.2d 210 (Tex.Civ.App.—Beaumont 1955, no writ history); 1 Tex.Jur.2d, Abatement & Revival § 105; 24 Am.Jur.2d, Divorce & Separation § 182.

A judgment to be final must dispose of all issues and parties in the case. Northeast Independent School District v. Aldridge, 400 S.W.2d 893 (1966); Hargrove v. Insurance Inv. Corporation, 142 Tex. 111, 176 S.W.2d 744 (1944).

Rule 41, Tex.R.Civ.P. authorizes a trial court to sever claims against a party in a law suit and to proceed with each claim separately. A severance divides a lawsuit into two or more independent causes, each of which terminates in a separate, final and enforceable judgment.

Rule 174, Tex.R.Civ.P. authorizes the trial court in the furtherance of convenience and to avoid prejudice to order a separate trial of any claim or issue. The separate trial results in an interlocutory order determining the claim or issue so tried, but there is only one final judgment entered after all claims and issues involved in the suit have been tried. An issue that is tried separately under Rule 174 need not constitute a complete lawsuit in itself. Severance is possible only where the suit involves two or more separate and distinct causes of action. Each of the causes in which the action is severed must be such that the same might properly be tried and determined if it were the only claim in controversy. The severable cause of action may be tried separately under the provisions of rule 174, but an issue that might properly be the subject of a separate trial is not necessarily severable. Kansas University Endowment Association v. King, 162 Tex. 599, 350 S.W.2d 11 (1961).

Tex.Family Code Ann. § 3.63 (1974) provides:

“In a decree of divorce or annulment the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.”

The language of the family code quoted above is mandatory. It has been held that the trial court is not authorized to sever the question of the manner in which the estate of the parties is to be divided between them from the cause of action for divorce. Angerstein v. Angerstein, 389 S.W.2d 519 (Tex.Civ.App.—Corpus Christi 1965, no writ history). The severance of the property issues from the cause of action for divorce would constitute error on the part of the trial court. Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299 (1960).

In Webb v. Jorns, 488 S.W.2d 407 (Tex.1972) the court said:

“. . . The order of October 28,1970, dismissing the hospital was an interlocutory order, because it did not dispose of all parties and issues in the pending suit. Since the trial court did not sever the cause against the hospital from the rest of the case, the interlocutory judgment did not become a final judgment until it was merged into the final judgment which the court rendered on January 18, 1971, disposing of the whole case. . . ”

The judgment entered in the Court of Domestic Relations No. 2 on December 3, 1975, did not purport to sever the divorce action from the property issues. On the contrary the court clearly stated that he retained jurisdiction “of the property rights of the parties until the entry of a final decree of divorce in this cause.” Since the court did not specifically sever the issue of property rights from the issue of divorce, we will not presume that the court intended such an action since such a severance would have constituted error.

It is settled that a trial court has power to set aside an interlocutory judgment at any time prior to the entry of a final judgment. Texas Crushed Stone Company v. Weeks, 390 S.W.2d 846 (Tex.Civ.App.-Austin 1965, writ ref’d n.r.e.).

It is clear from the order entered by the Court of Domestic Relations that the trial court intended to render a judgment dividing the community property at a later time and thereafter to enter the final judgment in the cause. The trial court must be considered to have ordered a separate trial under Rule 174(b). The order entered was an interlocutory judgment.

In those jurisdictions where interlocutory judgments of divorce are required or authorized it is a general rule that after the entry of the interlocutory judgment or decree, the status of the proceeding is that of a pending action and it abates on the death of either party before the final decree is granted. In the absence of specific statutory authority a final judgment of divorce cannot thereafter be rendered. 24 Am. Jur.2d, Divorce & Separation § 435, p. 559.

This rule has been applied by the courts of the State of Texas. In Kinney v. TriState Telephone Co., 222 S.W. 227 (Tex. Comm’n App. Section B 1920, jdgmt. adopted) the court had under consideration a case in which an interlocutory decree of divorce had been entered by the Superior Court of the State of California, County of Los An-geles. In accordance with the law of California at that time a final divorce decree could not be entered until the period of one year from the entry of the interlocutory decree had expired. Under the California law it was necessary that a motion for final judgment be presented after the expiration of the one year period. Some two years after the entry of the interlocutory judgment the plaintiff in the divorce suit died. After his death a motion to make the judgment of divorce final was presented in the court of California and was granted. Thereafter, Nellie Kinney, the defendant in the divorce action, claimed certain death benefits as the wife of H. B. Kinney. Elsie Kinney who had married H. B. Kinney after the entry of the interlocutory decree but before the entry of the final decree also asserted a claim to the death benefits. The Commissions of Appeals held that Nellie Kinney was entitled to death benefits and stated:

“Whether we undertake to construe the effect of the court proceeding in California under the law of California or under the laws of Texas is, in our judgment, immaterial. In our opinion, under the laws of Texas the interlocutory judgment rendered August 19, 1914, possessed no power destructive of the relation existing between Nellie Kinney and H. B. Kinney until it later should be strengthened by a final judgment pronouncing the decision of the court with reference to the rights of the parties. .
******
This order shows, therefore, on its face, that the court held within its bosom the final judgment to be rendered, and that it was postponed, subject to rendition of final decree at some future date.”

The order entered by the Court of Domestic Relations showed on its face that the court “held within its bosom the final judgment to be rendered, and that it was postponed, subject to rendition of final decree at some future date.” Clearly the trial court had continuing control of the interlocutory order granting a divorce with power to set it aside even at a subsequent term of court. Kone v. Security Finance Co., 158 Tex. 445, 313 S.W.2d 281 (Tex.1958).

The appellee contends that the general rules which have been discussed are not applicable, or have not been applied, in many cases decided by the courts of Texas. Cases are cited in which the divorce decree has been upheld on appeal where there was no distribution of property in the judgment although the pleadings prayed for a division of the community property. In Blancas v. Blancas, 495 S.W.2d 597 (Tex.Civ.App.—Texarkana 1973, no writ) such a case was presented and the court stated:

“. . . the trial court either found there was no property, or that such property as existed had already been divided between the parties . . . ”

The judgments in these cases do not show on their face that property rights remain to be adjudicated.

In other cases the courts have established a plan for the distribution of the property either announced in open court or incorporated into a signed judgment. In Cage v. Cage, 209 S.W.2d 626 (Tex.Civ.App.—San Antonio 1948, writ ref’d n.r.e.) a decree was entered dissolving the marriage and approving a property settlement agreement. The decree further stated that it was in interlocutory pending consummation of the agreement. The appellate court held that a final judgment had been rendered despite the language attempting to make the decree interlocutory.

Piro v. Piro, 327 S.W.2d 335 (Tex.Civ.App.-Fort Worth 1959, writ dism’d) is an example of a case in which a final judgment was rendered by the trial court granting a divorce and determining the property rights of the parties. On appeal error was found in the manner of dividing the property. The appellate court in effect severed the cause of action for divorce from the property right issues and affirmed that part of the decree awarding the divorce. The authority of the Court of Civil Appeals to sever a portion of the judgment and remand that portion only to the trial court while affirming the remainder of the judgment is derived from Rule 434, Tex.R.Civ.P. This rule authorizes a partial reversal and remand in cases where the issues are “sev-erable”. Waples-Platter Co. v. Commercial Standard Ins. Co., 156 Tex. 234, 294 S.W.2d 375 (1956). The rule has been construed by some courts as meaning a judgment may be reversed in part and affirmed in part where the valid portion is not so dependent upon the invalid as to fall with it. Eppler v. Wiginton, 252 S.W.2d 513 (Tex.Civ.App.—Eastland 1952, no writ history); Blume v. Weaver, 412 S.W.2d 760 (Tex.Civ.App.—Eastland 1967, no writ history).

Rule 434 was amended effective January 1, 1976, and the pertinent provision now reads:

“. . . if it appear to the court that the error affects a part only of the matter in controversy and that such part is clearly separable without unfairness to the parties, the judgment shall only be reversed and a new trial ordered as to that part affected by such error, provided that a separate trial on unliquidated damages alone shall not be ordered if liability issues are contested.”

If Piro v. Piro, supra, stands for the proposition that the issue of property division is severable from the issue of divorce, it cannot be considered authoritative on that question.

The case of Dunn v. Dunn, 439 S.W.2d 830 (Tex.1969) is also cited. In this case the Supreme Court upheld a judgment granting a divorce although one party died before entry of the judgment which had been orally rendered. The court found that the oral rendition constituted a final judgment because the court not only granted a divorce but also announced a method for the division of the property of the parties.

There is another group of cases which hold that the community property which is not divided in a divorce decree is owned by the parties after a divorce as joint tenants. In these cases the validity of a previously entered divorce decree is not questioned. Article 3.63 of the Family Code requires the trial court to order a division of the property in a decree of divorce, the finality of decree is not dependent upon a finding that all of the property belonging to the parties was divided. When a decree purporting to effect a division of community property fails to provide for and make disposition of certain properties, the law does not vest title to such property in either the husband or the wife. They both remain owners of the property as tenants in common. Ex Parte Williams, 160 Tex. 314, 330 S.W.2d 605 (1960); Busby v. Busby, 457 S.W.2d 551 (Tex.1970). These cases support the proposition that if the issues raised by the pleadings in a divorce case are disposed of in the judgment rendered, though imperfectly or erroneously, the judgment is a final judgment upon which process can issue.

While it may be difficult to rationalize all of the cases involving divorce and property rights with the rule requiring that all issues raised by the pleadings be settled either expressly or by implication in a final judgment, and with the rule forbidding two judgments in one cause of action where there is no severance, we are not persuaded that a different rule is applied in divorce cases from that applied in other types of cases. Where a judgment does not dispose of all the issues raised by the pleading, and does not purport to do so, the judgment is interlocutory.

The appellees rely on the case of Cockerham v. Cockerham, 527 S.W.2d 162 (Tex.1975), as being a case in which two final judgments were entered. The facts in Cockerham v. Cockerham are quite similar to those in the case at bar. The case was called for trial on September 11, 1972 and certain special issues were submitted to a jury. The trial court granted a divorce and based upon the findings of the jury, awarded the care and custody of the children of the marriage to E. A. Cockerham. The judgment entered recited:

“The Court further finds that due to the intervention of the Trustee in Bankruptcy, the property rights of the parties herein are not determined at this time, but this Court retains jurisdiction of the property rights of said parties until finally determined at a future date.” Costs are hereby adjudged to the parties as same might have occurred by each party.
“It is so ordered.”

In September 1973, the cause was again called for trial on the property rights of the parties and a judgment was entered dividing these properties which recited:

“. . . and a divorce having heretofore been granted with custody of the minor children awarded to E. A. Cocker-ham by the jury, and the court having been presented to it the question only of the division of the properties of said parties, the court finds . . . ”

Both the trustee in bankruptcy and Mrs. Cockerham appealed from the judgment insofar as it determined the property rights of the various parties. Neither the court of civil appeals nor the Supreme Court directly addressed the question raised by the fact that two judgments were entered in the same cause. The opinion of the Supreme Court begins in this fashion:

“This is a divorce case in which the wife’s trustee in bankruptcy has intervened. The trial court granted the divorce and made the property division to be discussed hereinafter. . . . ”

Further in the opinion after reciting that the trial court entered a judgment granting a divorce and awarding custody of the children on September 11, 1972, and noting the provision whereby the court retained jurisdiction of the property rights of the parties, the opinion states:

“About a year later, in September 1973, the cause was again called for trial for the purpose of determining the property rights of the parties. . . . ”

It is significant that the court considered a finding made by the jury at the first trial as sufficient reason to set aside a finding made by the court during the second trial. The court stated:

“Though the trial court has wide discretion in dividing the property of the spouses as it feels just and in disregarding advisory answers of the jury, it may not ignore the jury’s answers which extend to issues of fact from which the status of property is determined . . . The action of the trial court in disregarding the jury’s answer regarding the status of the property was error . . . ”

The opinion also states:

“It is well established that the trial court has wide discretion in the division of the property on divorce and it will be disturbed only when an abuse of discretion is shown. . . . Considering the record before us, we are unable to say the trial court abused its discretion.”

It appears that the Supreme Court construed the two orders entered by the trial court as constituting a single judgment. The first order of the court was interlocutory and was made final when the judgment was rendered dividing the property of the parties. The judgment entered dividing the property referred to the judgment granting the divorce thereby impliedly incorporating its terms into the final judgment. We consider that the Supreme Court applied the rule of law announced in McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706 (1961), and reaffirmed in H. B. Zachary Co. v. Thibodeaux, 364 S.W.2d 192 (Tex.1963). The rule announced in the McEwen case is that where an interlocutory order is entered disposing of one defendant, that order becomes final, and there is a final judgment, when a subsequent order is entered disposing of the remaining defendants. See also Lubell v. Sutton, 164 S.W.2d 41 (Tex.Civ.App.—Texarkana 1942, writ ref’d); Sessions v. Whitcomb, 329 S.W.2d 470 (Tex.Civ.App.—Houston 1959, writ ref’d n.r.e.).

The judgment of divorce rendered by the Court of Domestic Relations was interlocutory. Angerstein v. Angerstein, 389 S.W.2d 519 (Tex.Civ.App.—Corpus Christi 1965, no writ); Campbell v. Campbell, 550 S.W.2d 164 (Tex.Civ.App.—Austin 1977, no writ history); Stone v. Stone, 531 S.W.2d 850 (Tex.Civ.App.—Dallas 1975, no writ history); Hottell v. Hottell, 454 S.W.2d 880 (Tex.Civ.App.—San Antonio 1970, no writ history).

The death of Mrs. Candace Mossier Garrison prior to the division of the community property of the parties rendered the cause moot and no final judgment of divorce could thereafter be rendered. The trial court erred in finding that Barnett Wade Garrison and Candace Mossier Garrison were divorced and that Barnett Wade Garrison was not a person interested in the Estate of Candace Mossier Garrison. As the surviving spouse of Candace Mossier Garrison, Barnett Wade Garrison qualified as an interested person as defined in Section 3(r), Tex.Prob.Code Ann. The trial court erred in dismissing Barnett Wade Garrison’s contest of the will of Candace Mossier Garrison.

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


text:
    Allen McCLURE, Trustee, and Metropolitan Savings Bank of Brooklyn, New York, Appellants, v. CASA CLAIRE APARTMENTS, LTD. and Casa Claire Apartments, a general partnership, Appellees.
    No. 7984.
    Court of Civil Appeals of Texas, Beaumont.
    Nov. 23, 1977.
    Rehearing Denied Dec. 15, 1977.

      Joe H. Staley, Jr., Harriet E. Miers, Dallas, for appellants.
    Ron C. Edmondson, Tom Sands, Dallas, for appellees.
   DIES, Chief Justice.

Casa Claire Apartments, Ltd., and Casa Claire Apartments, a general partnership, plaintiffs below, sued Metropolitan Savings Bank of Brooklyn, New York, defendants below, for an amount bid at a trustee’s foreclosure sale in excess of disbursed principal, plus interest due, on a deed of trust note. . Allen McClure, the substitute trustee, bid $2,235,077 on Metropolitan’s behalf at the February 6, 1973 sale. This figure represented $186,590.14 more than the principal disbursed to Casa Claire, plus interest due, and was derived by adding the interest due of $91,777 to the total principal of $2,143,300, instead of to the disbursed principal of $1,956,709.86. Casa Claire demanded this excess amount from Metropolitan, but this request was refused, and this lawsuit ensued.

Trial was to a jury, which found that the substitute trustee, McClure, bid $2,235,077 at a valid trustee’s sale, that McClure had the apparent authority to make the bid for Metropolitan, that the overbid resulted from a unilateral mistake by Metropolitan, that Casa Claire surrendered possession of the property in reliance on the overbid, but that such reliance did not constitute injury to Casa Claire. The trial court granted plaintiffs’ motion to disregard the jury finding that Casa Claire was not damaged by its reliance on the overbid, and then granted judgment on the verdict that Casa Claire recover $200,434.95 from Metropolitan.

Metropolitan appeals by thirty-nine points of error. We find that the trial court incorrectly disregarded the jury finding that Casa Claire was not damaged by its reliance on Metropolitan’s overbid. This answer conflicts with the jury finding that Casa Claire would not have surrendered the property except for the overbid, and we consequently reverse and remand for a new trial.

Casa Claire Apartments, a general partnership, and Casa Claire Apartments, Ltd., attempted to construct and operate an apartment complex financed under the National Housing Act, and sponsored by the Department of Housing and Urban Development. The general partnership borrowed $2,143,300 from Home Savings of Dallas County, and executed a deed of trust and deed of trust note to secure payment of the loan. The general partnership subsequently transferred its interest to the limited partnership, and Home Savings sold the note to Metropolitan Savings Bank of Brooklyn, New York, with Home Savings continuing to act as servicing agent.

Payment of interest on the loan became delinquent by over $90,000, and notice was posted on December 11, 1972, of a trustee’s sale of the apartments to be held on January 2,1973. This sale was postponed by an agreement dated January 2,1973, by which Casa Claire agreed to pay Metropolitan one month’s interest plus one month’s rental receipts, totaling $13,844.81.

Notice was again posted on January 3, 1973 of a trustee’s sale to be held February 6, 1973. Casa Claire offered a postponement agreement identical to the January 2, 1973, agreement, but Metropolitan did not accept this offer. The jury found that Metropolitan did agree to postpone foreclosure if Casa Claire would pay all interest due, and that Casa Claire attempted to pay such interest, but was prohibited from doing so by Clayton Duke of Home Savings at the direction of Richard McIntyre, Vice President in charge of Metropolitan’s Mortgage Service Section. The jury finding that Casa Claire would not have attempted to enforce this oral agreement in the absence of the overbid was disregarded by the trial court.

Metropolitan objects to the actions of the trial court in disregarding the jury answers to Special Issues Nos. 11 and 12. Special Issue No. 12 and its answer were as follows:

“SPECIAL ISSUE NO. 12:
“Do you find from a preponderance of the evidence that Casa Claire Apartments, Ltd. was damaged as a result of its reliance, if any you have found, upon the amount bid by Allen McClure on February 6, 1973?
“Answer ‘Yes’ or ‘No’
“ANSWER: NO”

This finding should not have been disregarded by the trial court.

Answers to issues may properly be disregarded only if there is no evidence to support the answer, or if the issue is immaterial. C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191 (Tex.1966); Frost Nat. Bank v. Nicholas and Barrera, 534 S.W.2d 927 (Tex.Civ.App.—Tyler 1976, writ ref’d n. r. e.); Strickland Transp. Co., Inc. v. Womack, 536 S.W.2d 391 (Tex.Civ.App.—Dallas 1976, writ ref’d n. r. e.). This court must look at the evidence in the light most favorable to the verdict to determine if the issues were properly disregarded. Frost Nat. Bank v. Nicholas and Barrera, supra; Garza v. Alviar, 395 S.W.2d 821 (Tex.1965).

Under this standard, we believe that there was some evidence to support the jury finding that Casa Claire was not damaged by its reliance on Metropolitan’s overbid. Casa Claire surrendered an unfinished, un-derleased project of undetermined value that was costing it over $11,000 per month in interest payments alone, and in exchange it was relieved of a debt in excess of $2,000,000 owing to Metropolitan.

Nor do we agree with the trial court that this finding was immaterial. The jury was asked only if McClure had apparent authority to make the overbid on Metropolitan’s behalf. As our Supreme Court has said in Chastain v. Cooper & Reed, 152 Tex. 322, 257 S.W.2d 422, 427 (1953):

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

Custom Leasing, Inc. v. Texas Bank & T. Co. of Dallas, 516 S.W.2d 138 (Tex.1974). The record before us adequately supports the jury finding that McClure had the apparent authority to bid on Metropolitan’s behalf. Richard McIntyre, Vice President in charge of Metropolitan’s Mortgage Service Section, testified that he never personally calculated the number to be bid, but that he instructed McClure to get the number from Home Savings.

Since apparent authority is an equitable remedy, Casa Claire must prove that it was damaged by its reliance on such authority before it can recover from Metropolitan. Rourke v. Garza, 530 S.W.2d 794 (Tex.1975); Ybanez v. Anchor Constructors, Inc., 489 S.W.2d 730 (Tex.Civ.App.-Corpus Christi 1972, writ ref’d n. r. e.); Insurance Co. of No. America v. Fredonia State Bank, 469 S.W.2d 248 (Tex.Civ.App.-Tyler 1971, no writ); Clark Advertising Agency, Inc. v. Tice, 490 F.2d 834 (5th Cir. 1974). Special Issue No. 12 inquired directly into this issue of damage and was therefore material.

In answer to Special Issues Nos. 3 and 4, the jury found that Casa Claire relied on the overbid in surrendering possession of the apartments, and that it would not have surrendered possession in the absence of the overbid. As our Supreme Court stated in G. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191, 194 (Tex.1966), quoting R. McDonald, 4 Texas Civil Practice 204 § 17.32 (Rev.1971):

“ ‘. . . if a finding upon the issue claimed to be immaterial could if made, or does as made, create a fatal conflict with other findings or otherwise affect the legal significance of the verdict and hence the judgment to be entered, the issue is material and must not be ignored.’ ” (Emphasis added by Supreme Court)

We believe that the answers to Special Issues Nos. 3 and 4 conflict with the answer to Special Issue No. 12, in which the jury found that Casa Claire was not damaged by its reliance on Metropolitan’s overbid, and the trial court improperly disregarded Special Issue No. 12. To reconcile these findings, we would have to assume that the interest in the apartments that Casa Claire surrendered in reliance on the bid was worthless. If Casa Claire’s interest had any value, or if the apartments were actually worth more than disbursed principal, plus interest due, then these findings cannot be reconciled. We note that the record does not reveal the value of the property at the time of the overbid. As was said in Strickland Transp. Co., Inc. v. Womack, supra,

“Without deciding whether there is a technically fatal conflict between the jury’s findings and answers . . we hold that there is at least an apparent inconsistency between these findings . . . .” 536 S.W.2d 391, 395.

The present case discloses at least confusion and apparent inconsistency, and possibly an irreconcilable conflict. Such a conflict cannot be waived by the parties, and “a judgment entered on a verdict containing such a conflict must be set aside.” Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985, 991 (1949). When error has been found in the judgment of the trial court both the Court of Civil Appeals and the Supreme Court may remand a case for a new trial when to do so is in the interest of justice. Scott v. Liebman, 404 S.W.2d 288, 294 (Tex.1966). The conflict regarding the extent of Casa Claire’s injury indicates the necessity for a new trial, and we consequently reverse and remand.

For the benefit of the trial court, we will now deal with some of the other issues raised in this appeal. Metropolitan argues that the trustee’s sale was void because the property was not sold for cash. We believe this contention is without merit. This sale was held pursuant to public notice, by a trustee appointed and paid by Metropolitan. Texas courts have recognized that it would be “idle ceremony” for a noteholder to pay cash at a sheriff’s sale or foreclosure sale, only to have the money immediately returned to him. Crediting the bid against the note has been found to be equivalent to a cash sale. Blum v. Rogers, 71 Tex. 668, 678, 9 S.W. 595 (1888); Thomason v. Pacific Mut. Life Ins. Co., 74 S.W.2d 162 (Tex.Civ.App.—El Paso 1934, writ ref’d); French v. May, 484 S.W.2d 420 (Tex.Civ.App.—Corpus Christi 1972, writ ref’d n. r. e.); Habitat, Inc. v. McKanna, 523 S.W.2d 787 (Tex.Civ. App.—Eastland 1974, no writ).

None of these cases involved a bid in excess of the amount owed on the note, but we do not believe this fact by itself should require cash to change hands, when it otherwise would not. Perhaps the party who was to receive the benefit of the excess bid might have some basis upon which to have the sale set aside for failure to pay cash, but the purchaser certainly is in no position to complain of his own failure to pay cash. Metropolitan took possession of the property following the foreclosure sale and was not injured by its own failure to pay cash. On these facts, we see no basis to differentiate this situation from those cases that have held that when a noteholder credits its own bid against the note, this is equivalent to a cash sale. This point is overruled.

Metropolitan also contends in numerous points of error that the evidence will not support the finding that a specific amount was bid at the foreclosure sale. We disagree. The record contains several documents which support the jury finding that McClure bid $2,235,077 on Metropolitan’s behalf. A yellow sheet from a legal pad set out the amount of $2,235,077. McClure could not remember if he got this sheet before or after the sale, but he testified that his normal practice was to have a specific number when he went to bid. A deed of the property to Metropolitan and a copy stated the purchase price as $2,235,077. These documents were dated February 6, 1973, the same day as the sale, and the original was delivered to Clayton Duke and was in his files at the time of this lawsuit. A bill from McClure to Metropolitan, dated February 12, 1973, specified the price as $2,235,077. Finally, a letter from McClure to Tom Sands, attorney for Casa Claire, was dated February 22,1973, and set out a price of $2,235,077. Clayton Duke, who worked for Home Savings at the time of the sale, was the only witness who testified that he remembered the actual circumstances of the trustee’s sale. Duke testified that no specific number was bid. The assorted documents in the record support the jury finding that McClure bid the specific amount of $2,235,077, and the jury was not required to accept the unsupported testimony that no specific amount was bid.

We now turn to a consideration of Metropolitan’s contention that it is entitled to equitable relief because of the jury finding that the overbid was the result of a unilateral mistake. The two similar cases to which we are referred are not controlling on this issue. In Whitney v. National Exchange Bank, 84 F. 377 (Cir.Ct., D.R.I.1897), the dispute was between a foreclosing fourth mortgagee and a fifth mortgagee, where the fourth mortgagee made the mistaken bid. The court held that the agent’s lack of authority to make the overbid was clear, and further stated that the fifth mortgagee’s interest was of no value at all. The court refused to let the fifth mortgagee use equity to convert this worthless interest into cash at the fourth mortgagee’s expense. In Olmstead v. Melville, 93 Colo. 567, 27 P.2d 589 (1933), there was no evidence of detrimental reliance, and the evidence established that the property was worth less than the amount bid.

Texas courts have recognized that in certain situations, equity may require rescission of a contract when an incorrect bid has been made because of a unilateral mistake. James T. Taylor and Son, Inc. v. Arlington Ind. School Dist., 160 Tex. 617, 335 S.W.2d 371 (1960); Jordan v. City of Beaumont, 337 S.W.2d 115 (Tex.Civ.App.—Beaumont 1960, writ ref’d n. r. e.); State Highway Commission v. Canion, 250 S.W.2d 439 (Tex.Civ.App.—Austin 1952, writ ref’d n. r. e.). In James T. Taylor and Son, Inc. v. Arlington Ind. School Dist., supra, a contractor made an addition error and entered a bid that was approximately $100,000 too low. His bid was accepted, and he was awarded the contract to construct the new school building. He informed the school district of the mistake the day after the bid, and before the contract was executed. The school district awarded the contract to the next lowest bidder and subsequently sued Taylor. Our Supreme Court stated that ordinary negligence in making a unilateral mistake would not necessarily bar the granting of relief when conditions of remedial mistake were present. These conditions were identified as:

“(1) the mistake is of so great a consequence that to enforce the contract as made would be unconscionable; (2) the mistake relates to a material feature of the contract; (3) the mistake must have been made regardless of the exercise of ordinary care; and (4) the parties can be placed in status quo in the equity sense, i. e., rescission must not result in prejudice to the other party except for the loss of his bargain. There may be other circumstances which will govern or influence the extension of relief, such as the acts and extent of knowledge of the parties.” (Emphasis added) 335 S.W.2d 371, 373.

The Court held that Taylor’s faulty computation of his bid was ordinary negligence, and not “such carelessness or lack of good faith in calculation which violates a positive duty in making up a bid. . . .” 335 S.W.2d 371, 375.

Metropolitan’s error in computing its bid was similar to the mistake made by Taylor, but we believe Metropolitan’s actions subsequent to the sale were sufficient to transform a simple mathematical mistake into a situation precluding equitable relief.

In situations where Texas courts have granted equitable relief based on bidding mistakes, the bidder has acted promptly to correct his mistake. In James T. Taylor and Son, Inc. v. Arlington Ind. School Dist., supra, notice of the mistake was given the day after the bid was accepted, and before the contract was executed. In Jordan v. City of Beaumont, supra, notice was given three days after the bid was made, and four days before the City Council accepted the bid. In State Highway Commission v. Canion, supra, notice of the mistake was given the day after the bid was made, and four or five days before the bid was accepted.

In the present case, Metropolitan did not inform Casa Claire that the bid was a mistake until this lawsuit was filed several months after the sale, even though Metropolitan knew of the mistake. McIntyre testified, when asked if he gave notice of the mistake to Casa Claire:

“Q. But even then, you never did get in touch with Mr. Sands or Casa Claire or anyone else?
“A. No, I didn’t feel there was any need to.
“Q. You didn’t feel what?
“A. That there was any need to.
“Q. You didn’t think there was any possibility that they might change their position, relying on that bid and get hurt by doing it?
“A. No, I did not.”

During this time, Metropolitan retained possession of the property pursuant to the February 6,1973, foreclosure sale and eventually resold the property.

We believe that unexplained failure to give notice of its own mistake is one of the “other circumstances” barring equitable relief that our Supreme Court referred to in James T. Taylor and Son, Inc. v. Arlington Ind. School Dist., supra. If a third party had made this mistaken bid, and then sat on his hands for several months until suit was filed, we have no doubt that equity would refuse him relief based on unilateral mistake. We see no reason why Metropolitan should be entitled to different treatment simply because it happens to be the foreclosing mortgagee. Under these circumstances, Metropolitan was not entitled to equitable relief, and the trial court properly refused to enter judgment for Metropolitan based on the finding of unilateral mistake.

Metropolitan claims that the overbid was actually a mutual mistake instead of a unilateral mistake, since Casa Claire was charged with the knowledge of its agent, McClure. We overrule this point. McClure was simultaneously performing two roles at the time of the sale. As substitute trustee, he was required to accept the highest bid made. As an agent for Metropolitan, he had at least apparent authority to bid for his principal. Any mistake by McClure was made in his role as agent for Metropolitan, not in his role as trustee.

We reverse and remand this action because we believe that a new trial will be in the interest of justice.

REVERSED and REMANDED.


author: OSBORN, Justice.

text:
    LUBBOCK MANUFACTURING COMPANY, Appellant, v. MANUELA DE JESUS DE GARZA et al., Appellees.
    No. 6712.
    Court of Civil Appeals of Texas, El Paso.
    Nov. 28, 1977.

      Groce, Locke & Hebdon, Damon Ball, San Antonio, for appellant.
    Hope, Henderson, Hohman & Georges, A. J. Hohman, Jr., Tinsman & Houser, Inc., Richard Tinsman, Franklin D. Houser, Stephen F. Lazor, Bruce M. Miller, San Antonio, Knickerbocker, Abrams & Cowan, V. F. Knickerbocker, Eagle Pass, Law Offices of J. Pat Maloney, Inc., J. Pat Maloney, San Antonio, for appellees.
    Clark, Thornton & Summers, Robert B. Thornton, Robert R. Biechlin, Jr., San Antonio, for intervenor Twin City Fire Ins. Co.
   OPINION

OSBORN, Justice.

This is a venue case. It involves 24 separate suits which were consolidated for purpose of the pleas of privilege hearing. All of the cases are damage suits arising from an occurrence in Eagle Pass on April 29, 1975, when a butane tank trailer overturned and exploded. The trial Court overruled the pleas of privilege of the manufacturer of the tank trailer to have the cases transferred to the place of its residence in Lubbock County. We affirm.

The appeal raises three questions. These involve the sufficiency of the Plaintiff’s pleadings for venue purposes, and the applicability of Subdivisions 4 and 23 of Article 1995, Tex.Rev.Civ.Stat.Ann.

First, we will consider the pleading question. With but one or two exceptions, the pleadings in all 24 cases contained very general allegations that the LPG tank trailer did overturn and explode in Maverick County, Texas, “because of the negligence” of the driver of the truck. The driver was killed in the accident and his administrator was alleged in the controverting pleas to be a resident of Maverick County. Further, it was very generally alleged that the tank was manufactured by Lubbock Manufacturing Company, Appellant, “that said tank was defective in design and/or manufacture,” and that such caused or contributed to cause the explosion and resulting damages. In one case in which special exceptions were filed by Lubbock Manufacturing Company to the general allegations and sustained, an amended pleading was filed to allege more specific design and manufacturing defects. No exception was presented to the general allegations of the negligence of the driver.

At the venue hearing, two experts testified; one as an accident reconstruction expert, and the other as a metallurgical engineer. The first witness described how the accident occurred, and the other testified as to design and manufacture of pressure vessels, the code requirements and their application to this particular tank based upon his inspection and findings. At the conclusion of the evidence, the Appellant filed a motion in each of the 24 cases to hold the controverting pleas insufficient and to sustain its plea of privilege. The motion was based upon the proposition that the controverting plea in each case failed to set out specifically the grounds relied upon to confer venue in Maverick County. It asserted that only opinions and conclusions had been alleged and not the necessary venue facts. The initial contention on appeal is that such motions should have been sustained.

The Appellant relies primarily upon Leonard v. Maxwell, 365 S.W.2d 340 (Tex.1963); Jefferies v. Dunklin, 131 Tex. 289, 115 S.W.2d 391 (1938); and Henderson Grain Co. v. Russ, 122 Tex. 620, 64 S.W.2d 347 (1933). We conclude that those cases are not applicable. In those three cases, the plaintiffs did not incorporate their petitions into and make them a part of their controverting pleas. That was done in the cases now before us. None of the evidence at the venue hearing in this case was objected to because of the insufficiency of the pleadings. Thus, we conclude that even though the pleadings only contained a general allegation of negligence, once evidence of specific acts or omissions were offered and received without objection, the specific acts were before the Court and the issues were tried by consent under Rule 67, Tex.R. Civ.P. In Leonard v. Maxwell, supra, the Court noted that the defendant made proper objections to the introduction by plaintiffs of any evidence of venue facts. The Court said:

“Plaintiffs say that since the amendment of the Rules of Civil Procedure in 1941, a more liberal construction should be given to allegations in a controverting plea. Had the defendant not excepted to the allegations of the controverting affidavit, nor objected to the introduction of evidence to show the necessary venue facts, he could not now be heard to complain of the contents of the controverting affidavit. Defendant did protect his points in both courts below and is urging them here.”

This same issue was before the Court in Republic Bankers Life Insurance Company v. McCool, 441 S.W.2d 314 (Tex.Civ.App.—Tyler 1969, no writ). The Court in that case in applying Rule 67, Tex.R.Civ.P., and holding that a waiver existed said:

“Thus, even though it be conceded, as defendant contends, that the trial court improperly overruled its special exceptions and that there was no waiver of the defective controverting plea at the pleading stage of the trial, nevertheless, under the provisions of Rule 67, supra, defendant is required to go further and reassert its objection to the insufficiency of the pleadings at the proof stage, otherwise the pleadings will be treated as sufficient. Rule 67, supra; Burney v. Winfrey, supra, [Tex.Civ.App., 329 S.W.2d 136]; 2 McDonald, Texas Civil Practice, Sec. 518; [sic] Waiver of Pleading Defects and Insufficiencies in Texas, 36 Texas Law Review, page 459. If the pleadings are to be treated as sufficient because of the failure to object to the evidence offered by plaintiffs, it follows that the error of the court in overruling the exceptions at the pleading stage of the trial was harmless. Rule 434, T.R.C. P.”

In Bednarz v. State, 142 Tex. 138, 176 S.W.2d 562 (1943), the Court held that when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings, and thus an issue could be raised in behalf of a party who had filed no pleading whatsoever. Rule 67 has been held applicable in other venue cases where there were pleading defects and the issues were tried by consent without objection. Mobil Oil Corporation v. Gibbons, 511 S.W.2d 600 (Tex. Civ.App.—Fort Worth 1974, no writ); Atlantic Mutual Insurance Company v. Farmers Cooperative Association, 466 S.W.2d 419 (Tex.Civ.App.—El Paso 1971, no writ). We overrule the point of error complaining of the trial Court’s overruling of the Appellant’s motion to hold the controverting pleas insufficient.

We now turn to the question of whether or not venue can be maintained in Maverick County under Subdivision 4 of Article 1995, Tex.Rev.Civ.Stat.Ann., and we conclude that it can. That Subdivision provides in part:

“ * * * If two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides. * * * ”

One of the Defendants is William Sames, III, an attorney and resident of Maverick County, who is the duly qualified administrator of the estate of Jesus Ver-duzco, deceased, the driver of the tractor truck when the accident occurred. It was necessary that the Plaintiffs prove by a preponderance of the evidence a cause of action against this Defendant who resided in the County where suit was filed. Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 (1936). We conclude that the evidence from the accident reconstruction witness establishes by a preponderance of the evidence that, on the occasion in question, Mr. Verduzco, after crossing over to the left side of the highway, “over-controlled” his vehicle and turned back to the right too sharply for the load he was carrying, causing the tank trailer to overturn and explode. The Court has impliedly found such fact, that it was negligence and a proximate cause, and the evidence supports such finding. That finding was made with evidence in the record that the butane tank was loaded, the tank and tractor were travelling at least 55 m. p. h., and together they had a gross weight of 72,000 pounds.

It is not necessary to prove a cause of action against the non-resident defendant under Subdivision 4. Stockyards Nat. Bank v. Maples, supra. What is required is that the plaintiff allege a joint cause of action against the two defendants, or a cause of action against the resident defendant so intimately connected with the cause of action alleged against the non-resident defendant that, the two may be joined under the rule intended to avoid a multiplicity of suits. Stockyards Nat. Bank v. Maples, supra; Atlas Roofing Co. v. Hall, 150 Tex. 611, 245 S.W.2d 477 (1952).

We conclude that the suit against the manufacturer of the tank trailer is properly joined with the suit against the driver of the truck, and the suit against the two alleged tort feasors may be maintained together. Jefferson Chemical Company v. Forney Engineering Company, 466 S.W.2d 361 (Tex.Civ.App.—Houston [1st Dist.] 1971, writ dism’d); Serv-All Company v. Minatra, 397 S.W.2d 467 (Tex.Civ.App.—Waco 1965, no writ); Pittsburgh Plate Glass Company v. Bragg, 383 S.W.2d 623 (Tex.Civ.App.—Dallas 1964, writ dism’d). We overrule the point of error complaining of the trial Court’s sustaining venue in Maverick County under Subdivision 4.

This holding makes it unnecessary for us to pass upon the application of Subdivision 23, and we do not do so. First of all, it is unnecessary, and second, it being unnecessary we refrain from writing what could become the law of the case on the product liability issues with regard to the alleged design and manufacture defects since those issues will be more fully litigated in the trial upon the merits of the case.

The trial Court’s orders sustaining venue in Maverick County is affirmed.