(dissenting).
I am unable to agree with the conclusion reached by the majority - opinion in this cause and respectfully register my dissent.
The facts and issues are clearly set out by Justice HUGHES and I find no fault in that respect. By the contract the Association acknowledged notice of the rules of the Company and agreed that the failure of the Company at any time to enforce any rule “shall not be deemed as a waiver théreof” nor a bar to its enforcement for any subsequent violation.
It-is my opinion that the authority of the Board of Arbitration was limited to a determination of the issue of “just cause” for dismissal on a factual basis and did not permit a finding from admitted violations of the Company’s rules that just cause-for dismissal did not exist. A jury’s verdict or a court’s judgment finds no support if it is rendered against admitted facts. Under the contract here the rules of the Company and a waiver thereof were not matters to be considered by the Board and its award should be measured by the same rules that govern jury verdicts and judgments.
To uphold the decision of the Board here has the effect of rendering the Company powerless to enforce its rules against speeding which is a violation of the State law, is a hazard to the safety of the Company’s passengers, to its civil liability and perhaps to the goodwill of the traveling public. It simply takes control of the speed of its buses away from the Company and places it in the control of the driver who in this instance is an admitted violator of the law and the rules. The award is contrary to the undisputed evidence, the rules of the Company and as noted supra compels the Company to condone violations of the law.
It is my opinion that the judgment of the trial court should be affirmed.
HUGHES, Justice.We did not specifically discuss ap-pellee’s motion for summary judgment in our original opinion. Its point was that since appellant did not deny the grounds upon which the motion was based that it should have been granted. We have examined the motion and find that it incorporates by statement or reference the entire record made before the arbitrators. The right to summary judgment, on the motion is, as we understand it, a question of law. It was not incumbent on appellant to file denials or counter affidavits under thesq circumstances in order to resist the motion. There was nothing to deny or verify.
Neither did we in our original opinion discuss appellee’s point to the effect that to enforce the award of the arbitration board would be contrary to public policy, this under the theory that the award sanctions violation of State laws and rules of regulatory bodies.
The award does not sanction such violations. It merely evidences the conclusion that the infractions proved or admitted do not justify appellant’s discharge. Arrow *199has many times reached the same conclusion.
The collateral question of public policy, which in our opinion is not involved in this case, if reached would disclose, insofar as we have been able to find, that no pertinent statute or rule or regulation of any State or Federal agency requires an employee’s discharge under the facts of this case. There simply has been no expression of public policy to such effect and we are not inclined to announce one to the extent advocated by appellee.
As extrinsic proof of the ambiguous nature of the contract between Arrour and the Association we quote from the written argument which Arrow filed with the arbitrators after the hearing:
“It is therefore true that the question of whether Couey was discharged for cause or not has not been submitted to this arbitration Panel for original action. On the contrary, the submission of such question to this Panel is in the nature of an appeal, the purpose of which is to review the action of the general manager, this method of review being in lieu of review by a court or the NRLB.
“The only submission to this Panel is the question of whether Couey was discharged for cause or not, or in other words, whether the general manager abused his discretion in the matter. There is a most apt analogy between this review and the review of discretion exercised by an appellate court over a trial court.”
Arrow has apparently abandoned this interpretation of the contract as it is not .presented here.
In regard to the statement made by> Associate Justice GRAY in his dissent that our opinion takes the control of the speed of buses away from the company and places it in the control of the driver we call attention to the evidence, that Arrow has its buses equipped with governors which control their speed. Mr. I. F. Bay, Arrow’s General Manager, testified:
“Q. Now, do you have or maintain governors on these busses? A. Yes, sir.
“Q. Now, who is it. that puts them on or services them or sets them or looks after them? A. The garages.
* * * * * *
“Q. What is the purpose of those governors then? A. To control the RPM of the motor and not the top, speed of the bus.
“Q. Well, to what degree or to what extent will that governor govern: the speed of the bus? A. It will cut your motor out at whatever speed,' whatever RPMs you set it at, but that is riot shown on ,your speedometer, ■that is the RPMs, and that is a different thing.
* * * * * *
“Q. Can you set that governor to where the bus will not. exceed 60 miles an hour? A. It would be possible to. do it but then you would lose' your power.
⅝ ⅜ ⅜-⅜ ⅜ . ⅜
“A. We don’t set them by speed at all. We set them by RPMs.
“Q. All right, how many RPMs will that thing have to make to go 60 miles per hour? A. I don’t know the exact relationship there.
“Q. Then the governor on that bus is within the control of the mechanics in the shop that the bus operates out of? A. Yes, sir.”
Appellant testified:
“ * * * If it is a ' question of whether or not they want to stop this speeding then all they have got to do is to set the governor to where they wori’t go that fast. It is a very simple operation.”
Mr, E. P. Swift, one of Arrow’s operators, testified:
*200“Just one question, Mr. Swift. You understand now that if you get caught speeding again you will be discharged under Mr. Bay’s statement, do you understand that? A. Yes, sir, if that is the way they want it that is all right. I will he perfectly frank with you, anytime they tell me to drive 55 I will drive 55.”
To say that the company has lost control of the speed of its buses and placed it in the hands of the operators is to ignore the initial authority of the company to discharge and is to assume that if there is an arbitration that the arbitrator named by the Federal District Judge for the Western District of Texas will in every instance be under the control of the discharged employee.
We also labor under the very definite impression that the police officers in this State have an important part in enforcing our speed laws, the driver’s lack of consent notwithstanding.
The motion is overruled.
Motion overruled.
GRAY, J., dissenting.