*1 675 perience are such as to entrust to his care only safety his own and that of the
aircraft, safety passengers but the as
well. therefore, hold, that the term
We
“duly pilot,” used licensed or certificated provision limiting liability cases “passenger”
where the insured is a on an pilot, operated by
aircraft such neces
sarily pilot refers who holds a li
cense or certificate which authorizes operate carrying passengers. an aircraft Burns v. Ins.
Cf. Mutual Benefit Life
Co., F.Supp. 847, Mich., (W.D.
aff’d, den., 179 F.2d U.S. cert. per A 1362). 70 S.Ct. 94 L.Ed. holding pilot
son certificate is not student pilot.
such a of the trial af- court is
firmed. J.,
KLINGEMAN, participating.
AMERICAN SMELTING & REFINING
COMPANY, Appellant, doing
William O. RIDGWAY, et al., Appellees.
No. 14981. Appeals
Court Civil of Texas.
Houston.
Feb. 1967.
Rehearing Denied March 1967.
Huggins, Vickery McConnell, Harley & McConnell, Houston, Kucera, Lay Lightfoot, & Lay Bennett Houston, appellees. *2 were WERLEIN, negotiated by checks all endorsed and Justice. 13, appellant; 1961, on July August that on brought upon a ac- This sworn suit was 12, 1961, September 13, 1961, on on October Smelting & by appellant, count American 11, 1961, 1962, 25, September The and on to Company, referred Refining sometimes Ridgway Company, corporation, issued a Metals, being a divi- the latter Federated appellant, checks in to all various amounts Refining Smelting & sion of American Ridgway of said being signed checks “The against Ridgway, Company, William O. Co., Ridg- Inc.” by Ridgway O. or “The W. Company, Ridgway The doing business as Co., way Ridgway, Jr.; by that Inc.” W. O. corporation. Ridgway Company,
and
a
The
nego-
said
were
and
checks
all endorsed
trial,
filed, hut before
After the suit was
by appellant;
the amount
tiated
and that
appellee,
Ridgway,
ad-
William
O.
delivered
sued
was for merchandise
mind,
appellee,
judged
be
unsound
and
to
of
Ridgway
of The
appointed
Ridgway, Jr.,
William O.
Company.
made
guardian
person
of
and estate and
his
by
a
was tried
party to the suit. The case
The
that
indebtedness
court concluded
jury
judgment
the court without a
and
Company,
Ridgway
sued on
that of The
corporation
in
against
and
rendered
a
that of
O.
and not
William
Ridgway,
appellees,
favor of the
O.
William
Ridgway;
and that
had notice
and
Company,
Ridgway
doing business
Company
that The
a
Ridgway
guardian.
his
William O.
at
of
tion
the time of the deliveries
Among
way,
tion was
mined
estate.
lee,
$3,507.34,
on
findings of fact and conclusions
The
and
The
pany;
At the
June
William O.
State of Texas
owing
parties
only
Jr.
was the individual
properly
other
issued
request
1,
as the
and
issue before us
on
1960 a
Ridgway
stipulated
prior
findings,
by
denied
only question
open
certificate of
and
Secretary
the court found
The
account the
of his
William
liability
on such
year
is whether
Ridgway
there was
to be deter-
court made
person and
O.
State
account.
against
sum
appel-
Ridg-
Com-
law.
and
due
n the ths
of
were
Bank
Dr.
Federated Metals
4791.” Each of
check the
ing and
ing;
as to who
1960 has
Special
Ridgway Co.—SPECIAL ACCOUNT”
W. O.
Each
[16]
stamped
“The
inch wide
described in
Ridgway
Refining
of
Acct. 7608
printed
OX-4-4791.”
stamped
Commerce
following:
the five
Ridgway
“For
has
Co.” There is
space on
Division
the checks for
appellant’s petition.
Deposit
five checks
printed
checks drawn
such
Jensen
Co., Inc.,
“The
All of said
space
Houston,
American
in
in the
Ridgway
Drive OX-4—
the left hand
7608 Jensen
face of the
no evidence
issued after
the follow-
deposit.
National
on “The
Texas,
Smelt-
Co.—
by
1960,
Appellant
court erred
May 31,
Ridgway
asserts that
trial
through
O.
William
rendering judgment
take
proprietorship
under
business as a
Ridgway
The
from from
because
Com-
Ridgway
and
name of
change
incorporated
a
purchased supplies
pany
Amer-
without
time
time
from
that he
firm name
did not show
Smelting
Company;
and
Refining
ican
&
1958,
provisions of Arti-
complied
September 10,
on
notice
on
October
1302-2.02,
Annotated Texas
April
and
cle
Vernon’s
on
on
December
provides
in substance
Company,
Statutes.
article
May 9,
Ridgway
Said
issued,
firm desires
whenever
proprietorship,
checks to
$3,300.98
firm
incorporated
change
without
ranging from
various amounts
name,
shall, in
addition
being signed
firm
$5,169.73, all
said checks
such
required at common
AC-
notice of dissolution
“The
Co.—SPECIAL
law,
be-
give
intention
that said
such
Ridgway;
O.
COUNT”
incorporated
come
unmistakably
that,
at least four consecu-
clear
language
“Until
tive
newspaper published
published
weeks
some
at
such notice has been so
for the
the seat
above-named,
in the
government,
period
change
State
full
shall
county in which such firm
principal
place
has its
take
of such firm or
*3
office,
and that
Appellee
“Until such
thereof.”
members
contends
published
period
has been so
only purpose
for the full
the
in-
of said article was to
above-named,
change
place
parties
no
shall take
dealing
form
firm of its
with the
liability
in the
incorporation
of such firm or the members
and that
sent
since the checks
thereof.”
appellant
incorporation
to
the
no-
gave
tice
appellee
had
become
It is
appellee complied
not claimed that
it
necessary
comply
was not
with said
with said
Ridgway,
article. William O.
Jr.
might
ap-
article. There
be some merit in
testified that he did not know whether his
pellee’s
appellant
contention if
actual
had
or
appellant
father notified
that he had incor-
express knowledge
incorporation,
of the
porated
in
and that
the cancelled
presumed
since in such
might
event it
checks
he found
which
were all the evi-
that it
intending
to contract with and
respect
appellant
dence that he had with
goods
question
sell
corporation.
in
being
Colton,
notified. Robert A.
General But such was
case. There was never
Manager
plant
appellant,
Houston
any change in the
dealing.
course of
The
testified that he billed
presumably
by appellee by
material
ordered
individual,
as The Ridgway Company,
telephone
picked up
in 1964 was
from time
from the middle of 1957 until
middle or
by appellee’s
to time
truck as shown
part
latter
changed
and never
Ridg-
invoices which also showed “Sold to
style of the account that he
He
carried.
way Company”.
appellant
also testified that
was never noti-
fied by Mr. Ridgway
that he had a
It cannot be said that
the five
tion, and that there
appel-
in
appellant
delivered to
after the in
lant’s
which
they
file
would reflect that
ever
corporation conveyed
express
actual or
any
received
notification of such
knowledge
incorporation
of the
tion.
is a
There
difference between actual knowl
edge and
might impose upon
notice which
There
is no evidence that
had
duty
one the
making reasonably
diligent
actual knowledge
incorporation
of the
inquiry
might
which
result in actual knowl
The Ridgway Company. The name of the
edge.
Ortiz, 1951,
Woodward v.
150 Tex.
company
incorporation
was the same after
75,
any way of the dealing with that was the ma- stood time prior to the organized had dealing Company, an individual. If and William O. representing the cor- the Estate was in fact Guardian of poration himself, M., jointly dis- and instead of he failed to N. C. severally Ridgway Company, fact and therefore a cor- close such with the poration. became liable to In Anderson Smith, Tex.Civ.App. 398 S.W.2d Reversed rendered. h., defendant, plaintiff Hal n. w. sued Anderson, individually, ren- for services The defendant contended that the
dered. Rehearing On Motion Anderson, owing by indebtedness was Hal Inc., corporation. The further defendant Appellee, in his for rehear motion plaintiff placed upon no- contended that ing, asserts in effect that this com Court upon the based tice ju mitted fundamental error since it lacked plaintiff fact that had received some three judgment against risdiction to render Anderson, checks drawn Hal Inc. The there appellant’s because is no evidence payment by court held that such checks did presented claim was and re not constitute notice that the defendant was jected and that suit was commenced within merely acting agent anas for the days rejected. Ap the claim *5 quoted In the tion. Anderson case the court pellant pleaded: duly “That Plaintiff did Dairy statement made in v. Nor- Saco Co. present his claim attached hereto and ton, 140 Me. 35 150 A.L.R. A.2d ‘B’ marked Exhibit for the above described might as follows: “It be that the well payment Defendant, materials for Wil check was in such manner received routine liam Ridgway, O. and Defendant William that it significance had little on the reject Ap- O. said claim.” question plaintiff.” pellee’s general answer denial contains no any special nor allegation, denial of such carefully haveWe considered the case of which therefore must be taken as true. Wood, Comstock v. 216 Iowa N. Chambers, Bauman v. 91 Tex. 41 S.W. upon by appellant. That relied case Chinn, (1897); Diaz 150 S.W.2d factually distinguishable from the instant (Tex.Civ.App.1941, h.). n. w. In Bauman v. In case. there substantial case was a Chambers, Supreme our held that Court also compliance appel with the statute and the such admitted allegations need not read lant had actual of the form in which McDonald, evidence. See also Texas capital paid participated and had Practice, 7.23,p. Civil sec. 645. appraiser as an in connection therewith. part That judgment of the Trial necessary for It was not Court which decrees that recover attorney’s present claim for fees its against Ridgway Company, 314, Texas required by Section taken, appeal from which no has been will Code, V.A.T.S., the claim was since Probate remain judg- undisturbed. Insofar as the amount. and uncertain for an undetermined ment decrees that take Parr, Tex.Civ. Boykins v. 327 S.W.2d against appellees individually, judg- ref., e., App.1959, n. r. and authorities writ ment of Trial Court is reversed and there cited. rendered that recover
against Ridgway, doing Rehearing overruled.