author: WERLEIN, Justice.

text:
    LIBERTY UNIVERSAL INSURANCE COMPANY, Appellant, v. W. C. GILL, Appellee.
    No. 14701.
    Court of Civil Appeals of Texas. Houston.
    March 24, 1966.
    Rehearing Denied April 14, 1966.

      Fulbright, Crooker, Freeman, Bates & Jaworski, Sam H. Hood, Jr., and Gary B. Webb, Houston, for appellant.
    Raymond L. McDermott and Mabel Grey Howell, Houston, for appellee.
   WERLEIN, Justice.

This is a workman’s compensation case. Appellee, W. C. Gill, sustained an accidental injury on September 6, 1962 as he was attempting to move a four-wheel, two-axle, tandem boat trailer, into his employer’s shop. Based on the jury findings that ap-pellee was totally and permanently disabled in response to Special Issues Nos. 1, 2 and 3, and the further finding that appellee was not partially disabled, the court entered judgment for permanent total compensation and also for the sum of $95.00, which the jury found would compensate appellee for reasonable expenses incurred by him for medical treatment which was required and which had not been paid by appellant.

Appellant asserts that the court erred in submitting Special Issue No. 3, which inquired whether the total disability of appel-lee was permanent, and in entering judgment on the jury’s verdict, since there is no evidence that such disability is permanent. It also complains that the court erred in overruling its motion for new trial since such finding is so against the great weight and' preponderance of the evidence as to be manifestly wrong.

Appellee testified that by trade he was a boat builder and carpenter, and that at the time of his injury he was a working foreman for Ralph Zinnecker Company, that he had only an eleventh grade education and had always made his livelihood with his hands and was not capable of doing any sales work or desk work or - any similar work in which he could not use his hands. He was 53 years old at the time of the trial. Prior to his injury he did heavy labor and could lift weights of 100 to 150 pounds. On the occasion in question he was undertaking to move a metal trailer weighing 1200 to 1500 pounds. As he lifted the tongue of the trailer, the back wheels thereof which had been raised, fell to the ground, thus jerking him down and injuring his back. Next morning he could not get out of bed. Some five or six days later when he could get out of bed he went to Dr. Ashton, a chiropractor.

On or about October 11, 1962, he went back to work for his employer and remained until on or ahout March 8, 1963. During such time he could not lift anything and was in constant pain in his back and both of his legs. He was continuously growing worse. The evidence shows that all he attempted to do after returning to work was light work, and that finally after some five months he could not continue longer, and so notified the insurance adjuster, who referred him to Dr. Lane who officed with Dr. Brownhill. Dr. Brownhill, after treating appellee for some several months, operated on him March 13, 1963, for a large bulging protrusion of the disk between the fifth lumbar and the first sacral vertebrae, which was causing pressure on the nerve roots and ligaments surrounding the disk.

After the operation Dr. Brownhill continued to treat appellee until on or about October 17, 1963. When Dr. Brownhill first saw appellee he prescribed a corset for him, which appellee wore continuously and was still wearing at the time of the trial. After the operation appellee was sent to the hospital on two more occasions because of persistent pain, severe headaches, weakness, and a discrepancy in the femoral pulses. Dr. Brownhill referred appellee to Dr. Henley, a cardio-vascular surgeon, who examined appellee and concluded that he should be hospitalized and that the vascular system in the lower extremities should be evaluated. Because of severe headaches he was sent to Dr. Peiper, who treated him for such condition.

The evidence shows that appellee has engaged in no heavy work such as he did prior to his injury, from the date thereof to the time of trial in March, 1965. Appellant in its brief points to the statement made by appellee that “Well, I can’t do any job where I have to stand up continuously. I can’t do anything — if I can sit for awhile and stand for awhile, but if I sit too long it bothers me real bad, and if I stand too long it is the same thing, but if I can alternate I can stay on the job for eight hours.” Immediately following such statement he was interrogated as follows:

Q Doing what kind of work?
A Light work.
Q Can you do any heavy work at all?
A No, I can’t.
Q Can you pick up and lift ?
A No, I can’t
Q Can you climb, bend or stoop ?
A No, not very well.
Q Do you know of any job that you could work on at this time eight hours a day, day in and day out, week in and week out?
A No, I don’t.

The evidence further shows that when appellee went back to work his employer tried to avoid appellee’s picking up anything heavy or handling sheet supply wood in an effort to make the work easier for him. His employer, Mr. Zinnecker, testified that he needed appellee even if he could do only light work and some overseeing; that appel-lee was not there regularly and on a sustained basis; that he complained of feeling bad and of headaches, etc.; that when he left the employment it was with the understanding that he always would have a job with him, Zinnecker, if he ever got to where he could feel like he could do a reasonable amount of work; and that “obviously from his own recognition of the situation and mine then he was not able to fulfill the job of foreman.”

When he went back to work in June, 1963, Mr. Zinnecker told appellee that he could work as little or as much time as he pleased. The fact that appellee had worked for his employer more than five years on the last occasion prior to his injury and could return to such employment, if he was able to hold down the job even in the capacity of a foreman, is strong evidence that appellee was totally and permanently incapacitated and disqualified from performing the usual tasks of a workman in such a way as to enable him to both obtain and retain employment.

The evidence further shows that some two months after leaving his employment with Zinnecker Company he tried to help his wife run a lounge which she operated. There he did only light work although on a few occasions he lifted a case of beer. He had a helper working there at the lounge who generally handled all the cases of beer and did any heavy work of that kind. The evidence further shows that after the lounge was closed appellee went to work for Atkins & Merrill, Inc., being employed on or about June, 1964. During the time that he was there he did only light work, which according to his testimony consisted of making small table models of Apollo, Ranger and Rocket missiles. Indeed, according to the testimony of a fellow employee, 90% of the work there was light work, and ap-pellee was not called upon to do anything except the light work of making small models, which he did until on or about December 4, 1964, when the shop closed down for some days. Appellee was not called back to work by such company, because it could obtain employees with greater experience in the model building and repairing and displaying for the NASA program.

Dr. Martin A. Zionts, a medical doctor and a specialist in diagnosis and internal medicine, testified with respect to appellee’s physical condition that the tests he made showed that the ligaments in the area of appellee’s lumbosacral joint were having pressure put on them causing further stretching of the ligaments and pain in the nerve supply thereof, and also in the joint itself; that appellee has a weakening of the ligaments of the lumbosacral joint and unstable lumbosacral angle which adds to the weakness of the ligaments, and that he was having disability because of such fact; that while appellee had had some relief of pain in his legs, his low back pain and the instability of his low back has not improved; that he had helped appellee a little but had not restored him to a completely normal functioning back, and that in his professional opinion appellee in reasonable probability would never be so restored.

He also testified that appellee was able to do some things, but there are certain things, lifting, climbing, bending, standing on his feet for lengths of time, making sudden movements, walking over uneven ground, getting into awkward positions, bending and twisting, things like that, that he could not do. He might be able with impunity to do desk work, drive an elevator, perhaps a job where he could walk around, check supplies, and where he could sit down and rest every now and then, but that he was not able to do manual labor and labor involving the use of his back in all conditions, and that such condition was, in reasonable probability, permanent. He further stated that he would not be able to take a job which involved doing manual labor of all sorts eight hours a day and five days a week, week in and week out. Asked to explain why appellee could not so work, he testified that appellee had an unstable back with weakened ligaments by reason of the original trauma, plus surgery, which causes pain, and such movements and lifting would put a greater strain on an already weakened area causing pain which is disabling; and that if he attempts to do such work, the chances are he will be laid up and have to stop work for a few days or a week. He also testified that appellee had marked restriction of movement of his hip, and some straight leg raising difficulties both on the right and left at varying times, which were objective symptoms which he could see; and that in medical probability his disability will probably get worse or it may remain static.

It is true that Dr. Brownhill, who operated on appellee’s back, and who treated him for several months before the operation and for some four months thereafter, testified that it was his feeling that over a period of time with exercise appellee could gradually increase his work activity, and that he estimated appellee’s disability at only about 5% in terms of his over-all capability. On the other hand, Dr. Ashton, appellee’s chiropractor, testified, without objection being made, that in his opinion appellee would not be capable of holding down a job which would involve bending, stooping or climbing or lifting anything over twenty pounds, and that in his opinion such disability had continued since the date of the accident and was permanent. He further testified that in his opinion there was very little probability that appellee would ever be able to return to any regular sustained manual labor, and that if he went out and tried to work he would be right back in his office with a slippage of the vertebra causing pressure against the nerves.

In viewing the evidence most favorably to the verdict, we are of the opinion that there is evidence to support the finding that Mr. Gill is totally disabled to perform the usual tasks of a workman in such a way as to enable him to both obtain and retain employment, and that such total disability is permanent.

There is no fixed rule of evidence by which a claimant is required to establish the fact that he has suffered an injury causing permanent, total disability. See Traders & General Ins. Co. v. Daniel, Tex.Civ.App., 131 S.W.2d 276, dism., judg. cor. As stated in Employers Reinsurance Corp. v. Jones, Tex.Civ.App., 195 S.W.2d 810, writ ref., n. r. e., “The duration and extent of disability resulting from injury is at best an estimate which must be determined by a jury from all the pertinent facts before it.” 63 Tex.Jur.2d p. 455, Sec. 429, and authorities cited.

After carefully reading the entire statement of facts and considering the evidence supporting the verdict and also that militating against it, we cannot say that the jury’s findings are so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. In re King’s Estate, 1951, 150 Tex. 662, 244 S.W.2d 660.

Appellant next complains that the district court erred in submitting to the jury its definition of “partial disability” and in failing to submit appellant’s requested definition of “partial incapacity.” The definition given by the court reads as follows: “By the term ‘partial disability’ as used in this charge, is meant any degree of disability to work less than total disability, as defined above.”

The definition of partial disability follows immediately the definition of total disability in the court’s charge. The court further instructed the jury that a person cannot be totally and partially disabled at the same time. However, a period of total disability may be followed by a period of partial disability; and conversely, a period of partial disability may be followed by a period of total disability.

The definition of partial incapacity requested by appellant is substantially the same as has been used in a number of Texas cases. Traders & General Ins. Co. v. Wright, Tex.Civ.App., 95 S.W.2d 753, aff’d 132 Tex. 172, 123 S.W.2d 314; Southern Underwriters v. Schoolcraft, 1942, 138 Tex. 323, 158 S.W.2d 991; Texas Employers’ Insurance Association v. Hawkins, Tex.Civ.App., 387 S.W.2d 469, writ ref., n. r. e.

In Traders & General Insurance Co. v. Rockey, Tex.Civ.App., 278 S.W.2d 490, writ ref., n. r. e., the insurance carrier requested a definition of “partial incapacity” as meaning “any degree of incapacity less than total.” The court said:

“ * * * In our opinion, appellant’s requested definition is more simple and less confusing than the one given by the trial court. Some courts have defined the term in very brief, simple language. In the case of Texas Employers’ Insurance Association v. Brock [Tex.Com.App.], 36 S.W.2d 704, 705, the Commission of Appeals defined the said term as being ‘any disability less than 100 per cent.’ In the case of Texas Employers’ Insurance Association v. Phelan, Tex.Civ.App., 103 S.W.2d 863, 865, this court said, ‘ “partial incapacity” obviously means less than “total incapacity.” ’ ”

In Texas Employers Insurance Association v. Fowler, Tex.Civ.App., 140 S.W.2d 545, writ ref., the court held that the following definition of the term “partial incapacity” was not in the nature of a general charge:

“ ‘Partial incapacity, as that term is used in this charge or any special issue given you herein, shall have the following meaning : It shall mean any degree of incapacity to work, less than total incapacity, as defined herein. You are further instructed that a person cannot be totally and partially incapacitated at the same time. If the plaintiff was totally incapacitated to any extent lor any period of time, he could not be partially incapacitated for such period of time. Stating it the other way (meaning the same thing) if the plaintiff was partial* ly incapacitated to any extent for any period of time, he could not be totally incapacitated for such period of time.’ ”

In Texas Employers’ Ins. Ass’n v. Brock, Tex.Com.App., 36 S.W.2d 704, the insurance carrier requested and secured a definition of partial incapacity “to mean the ability to perform some of the duties of an ordinary workman; in other words, any disability less than 100 per cent.” The court said:

“This instruction necessarily had the effect to modify and explain the definition given in the court’s main charge of total incapacity, and the two instructions furnished the jury, with the correct rule by which to determine whether the defendant in error had suffered total incapacity, within the meaning of that phrase, as used in the statute.”

Rule 277, Texas Rules of Civil Procedure, provides in part that the court shall submit such explanatory instructions and such definitions of legal terms as shall be necessary to enable the jury to properly pass upon and render a verdict upon the issues. In our opinion the definition of partial disability given by the court in connection with and immediately following the definition of permanent disability to which no objection was leveled, furnished the jury with the correct rule by which to determine whether appellee had suffered total or partial incapacity within the meaning of those phrases, as used in the statute.

Appellant complains that the court erred in admitting into evidence the narrative report of Dr. R. S. MacIntyre found in the hospital records at Methodist Hospital and in permitting Dr. Martin A. Zionts to read it and interpret it, and also erred in admitting the report of Dr. Walter S. Henley as part of the hospital records since both sueh reports allegedly consist of opinions, conclusions and diagnoses based upon medical examination or finding of conditions not obvious nor patently observable to persons generally.

In Martinez v. Williams, Tex.Civ.App., 312 S.W.2d 742, 749, no writ hist., this Court held that where the statement of a physician consisted of an opinion or conclusion or of a diagnosis based upon his medical examination or findings of conditions not obvious or patently observable to persons generally, the same should be excluded. In such case the doctor should be brought into the court where he might be cross-examined by opposing counsel.

We would be inclined to adhere to our opinion as handed down in Martinez v. Williams, but for the fact that we are of the opinion that the Supreme Court of Texas has foreclosed the issue contrary to our holding. In Rodriguez v. Travis Life Insurance Co., 1959, 160 Tex. 182, 328 S.W.2d 434, the court said, with respect to Travis Life Insurance Co. v. Rodriguez, reported in Tex.Civ.App., 326 S.W.2d 256:

“The only point brought to this Court assigns error to the construction by the Court of Civil Appeals of Article 3737e, Vernon’s Texas Civil Statutes. It is our view that the statute has been correctly construed by that court in its opinion published in 326 S.W.2d 256. Accordingly, the application for writ of error is refused. No reversible error.”

We have carefuHy examined the opinion of the Austin Court of Civil Appeals in Travis Life Insurance Company v. Rodriguez. It seems clear to us that the court in construing Article 3737e, Vernon’s Ann. Civ.St., held in effect that hospital reports of doctors giving their opinions and conclusions are admissible. The court in the footnote to its opinion stated that the authority of this Court to make the distinction which we made in the Martinez case in interpreting and construing such article is not apparent to it, and that such distinction is criticized in Section 1262, McCormick & Ray, Texas Law of Evidence, 2d Ed., as follows:

“ ‘However, certain statements (such as psychiatric diagnosis) have encountered resistance in the federal courts and others because they rest on the maker’s inference from data unusually difficult of interpretation, or upon “subjective symptoms” rather than on direct observation. Thus the entry “mental deficiency (organic brain disease)” has been rejected as the doctor’s conclusion, an expert opinion based in part on hearsay. On the whole, however, it is believed that, even as to these controversial diagnoses, the majority view favoring admission is the more expedient one. It works for simplicity by making it unnecessary to draw a difficult line, itself provocative of doubt and dispute; it serves the modern policy of the free use of organizational records; and is not too burdensome on the adversary who may himself call the declarant and thus bring out, if he can, any weakness of the diagnosis.’ ”

The Austin court further said in the Rodriguez case:

“The ‘hearsay’ rule has many exceptions, most of which are court made. We know of no limitation upon the Legislature preventing it from creating an exception to the hearsay rule in civil cases. We believe that this is exactly what the Legislature did when it enacted Art. 3737e. We believe it is a valid statute and one which the courts should enforce.”

The court further said that it was its opinion that Article 3737e should be interpreted and construed so as to authorize the admission in evidence of the hospital records, including the diagnosis of Leukemia.

Had the Supreme Court merely refused a writ, n. r. e., in the Rodriguez case, we would be inclined to follow our opinion in the Martinez case. However, in view of the Supreme Court’s per curiam opinion stating that it was its view that the statute had been correctly construed by the Austin court in its opinion, and further in view of the broad construction placed upon the statute by the Austin Court of Civil Appeals, and its apparent approval of the foregoing statement made by McCormick & Ray, we are of the opinion that the Supreme Court has in effect held that Article 3737e should be so construed as to admit in evidence without limitation medical reports included in the hospital records, made by doctors from their examination of the patient in the hospital although such reports consist of their opinions, conclusions and diagnoses. See Texas Employers’ Insurance Ass’n v. Dennis, Tex.Civ.App., 372 S.W.2d 559, writ ref., n. r. e.; Skillern & Sons v. Rosen, Tex.Sup.1962, 359 S.W.2d 298.

Appellant asserts that the trial court erred in permitting Dr. Ashton to give opinion evidence with respect to neurological and surgical matters. Dr. Ashton is a well qualified and experienced chiropractor. We have carefully examined his testimony, and do not find that he was permitted to give an opinion in the field of surgery. At one point in his testimony when he was beginning to explain surgical processes with respect to the vertebrae, an objection was made by appellant which was sustained by the court. He made no claim to know anything about surgery. In our opinion he was qualified to give opinion evidence with respect to the mechanical restoration of displaced or subluxated vertebrae and the adjustment thereof to relieve pressure on nerves emanating from the spinal column, and to testify with respect thereto. It is our view that the court did not err in admitting such testimony. Furthermore, appellant has not complained that the trial court abused its discretion in permitting the introduction of such evidence. The law is well settled that the trial judge possesses wide discretion in determining the qualifications of an expert witness giving opinion evidence, and that such testimony will not be disturbed by the appellate court in the absence of a clear showing of abuse of discretion. Rayburn v. Giles, Tex.Civ.App., 182 S.W.2d 9, writ ref.; Aetna Ins. Co. v. Collins, Tex.Civ.App., 134 S.W.2d 709; Jones v. Elliott, Tex.Civ.App., 259 S.W.2d 288, writ ref.; Western Union Tel. Co. v. McDavitt, Tex.Civ.App., 257 S.W.2d 319, writ ref., n. r. e.; McCormick & Ray, Texas Law of Evidence, Vol. 2, p. 235, § 1401.

Appellant next complains that the trial court erred in refusing to grant appellant’s motion for mistrial because of the following argument made by appellee’s counsel:

“You have heard what this compensation law provides, which is part of the proof His Honor has permitted you to hear, $35.00 per week, and when you realize the amount involved I think you can realize how important it is that we have no compromise verdict in- this law suit, because I defy any man or woman in this day and time to live on $35.00 per week.”

The court in passing upon appellant’s motion in limine specifically allowed appellee to show that he was paid only $35.00 per week during the time he was paid compensation for the sole purpose of showing the economic necessity of returning to work. Appellee testified that during the time he was not working he was paid $35.00 per week compensation. Appellee’s attorney did not state in his argument for what period of time compensation in the sum of $35.00 per week would be paid. It is our opinion that there is no reversible error in the court refusing to grant a mistrial because of the aforesaid argument. Nothing was said that the jury did not already know, so that na harm could result from such argument. Rule 434, T.R.C.P. Moreover, if improper, such argument was not of the incurable type. At the time the argument was made appellant’s counsel objected thereto as being improper and the court sustained the objection and instructed the jury not to consider the statement. Texas Employers Insurance Ass’n v. Mendenhall, Tex.Civ.App., 334 S.W.2d 850, writ ref., n. r. e.; Transport Insurance Co. v. Nunn, Tex.Civ.App., 375 S.W.2d 484, writ ref., n. r. e.

We sustain appellant’s seventh, eighth, ninth, tenth and eleventh points of error which relate to alleged error in submitting Special Issue No. 10 inquiring as to the amount of the unpaid bill of Dr. Martin A. Zionts, and in entering judgment for $95.00 on the jury’s answer thereto, since there is no evidence or finding by the jury that appellant refused, failed or neglected to furnish appellee medical care or treatment. The evidence shows that appellant furnshed medical care whenever requested to do so. Appellee testified that appellant had never refused to send him to any other doctor or give him any treatment he asked for, and that appellant had honored every request appellee had ever made for medical treatment. Appellee also testified that when he last saw Dr. Brownhill in October, 1963, the doctor said there was nothing else he could do. He never refused to see or treat appellee. Such testimony did not constitute any evidence more than a scintilla that appellant refused, failed or neglected to furnish medical treatment. It certainly did not establish such fact as a matter of law. Appellee failed to obtain a jury finding which would entitle him to recover under the provisions of Article 8306, Sec. 7, V.A.T.S.

The judgment of the trial court is reformed by omitting from .the amount of recovery the sum of $95.00 for medical expenses, and as reformed is affirmed.

Reformed and affirmed.


source: Caselaw Access Project

author: COLEMAN, Justice.

license: Public Domain

text:
    J. M. PARRISH et al., Appellants, v. J. O. PHILLIPS et al., Appellees.
    No. 14505.
    Court of Civil Appeals of Texas. Houston.
    Feb. 3, 1966.
    Rehearing Denied April 14, 1966.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Austin C. Wilson and Richard L. McGraw, Houston; Niemann & Babb, Charles Babb, Austin, of counsel, for appellants.
    Fountain, Cox & Gaines, Joyce Cox and James A. Pakenham, Houston, for appellees.
   COLEMAN, Justice.

This is a class action brought by the Texas Surveyors Association, and certain named Registered Public Surveyors as representing a class, naming as defendants the Texas Society of Professional Engineers, and certain named Registered Professional Engineers as representatives of a class, for a declaratory judgment interpreting Article 5282a, Vernon’s Ann.R.C.S., providing for the licensing of public surveyors, and Article 3271a, providing for the licensing of professional engineers, to determine whether or not Registered Professional Engineers are authorized to (1) establish boundary-lines, (2) make plats of record, and (3) qualify as expert witnesses on land survey problems, without having first been licensed as a Registered Public Surveyor, and, further, to determine the validity of certain regulations adopted by Texas State Board of Registration for Public Surveyors.

The defendants filed an answer and cross-action for declaratory judgment asking that the court declare that (1) Art. 5282a, R.C.S., has no application to Registered Professional Engineers in the practice of their profession, including land surveying; (2) that the State Board of Registration for Public Surveyors has no power or authority to adopt any rale or regulation, the purpose or effect of which would be to require a registered professional engineer to register as a public land surveyor in order to practice public land surveying; and (3) that the oath of the registered professional engineer and the power of the Texas State Board of Registration for Professional Engineers provided by Section 22 of Article 3271a to revoke the registration of any engineer guilty of incompetency in the practice of professional engineering as a registered professional engineer constitute the regulation and discipline to which a registered professional engineer engaged in public land surveying is subject.

The judgment of the trial court provided:

“* * * ORDERED, ADJUDGED and DECREED that the practice of professional engineering within the meaning and intent of Article 3271a, Section 2, of the Revised Civil Statutes of Texas is the practice of the art and science by which the properties of matter are made useful to man in structures and machines, and that the practice of Engineering as authorized by law within the meaning of Article 5282a, Section 3(c), of the Revised Civil Statutes of Texas and Section 11 of said Article as it refers to the Engineering profession does not extend beyond those techniques shared with the surveying profession, namely those which are necessary to the Engineering profession in measuring areas and locating, marking and mapping the same for the purposes of construction, and do not extend to the practice of such techniques for the purposes set forth in Article 5282a, Section 2(b), aforesaid ; * *

The judgment further decreed that the rules and regulations adopted by the State Board of Registration for Public Surveyors (at issue in the case) correctly interpreted the laws referred to therein and properly defined “the functions of the surveying and engineering fields to the extent the same are exclusive one of the other, and to the extent that techniques and procedures are and may be used in common by the aforesaid two professions for the purposes respectively served by each to the exclusion of the other.” The judgment further ordered that the rules and regulations be sustained as lawful and correctly definitive of the matter to which they relate as between the aforesaid two professions.

The judgment then ordered that the decree shall be binding upon all persons licensed now or hereafter as either public surveyors or as professional engineers under existing laws of the State of Texas.

It will be noted that the State Board of Registration for Public Surveyors was not made a party to this suit. Art. 5282a established this Board of six members, all of whom are required to be surveyors actively engaged in the public practice of surveying for at least ten years immediately prior to their appointment to the Board. The Board is authorized by the Act to adopt all rules and regulations it deems necessary in administering the Act, and is charged with the duty of aiding in the enforcement of the provisions of the Act. The Act prohibits practicing, or offering to practice, the profession of public surveying in this State without being registered or exempted in accordance with the provisions of the Act, and provides criminal penalties for its violation. Any member of the Board is authorized to present to a prosecuting officer complaints relating to violations of the Act, and the Board is authorized to assist in the trial of any cases involving alleged violations subject to the control of the prosecuting officers. The attorney general is designated as the legal advisor of the Board and required to render such assistance as may be necessary in enforcing the Act. The Act provides that local prosecuting officers are not relieved by this provision of any of their duties as provided by law.

The Board is authorized to adopt such rules and regulations it deems necessary to administer the Act or for the orderly conduct of its affairs. It appears that pursuant to this authority, and bearing in mind its duty to aid in the enforcement of the Act, the Board adopted rules and regulations defining in detail the services which could be performed for the public only by a licensed public surveyor. The rules then provided certain exceptions including one pertaining to registered professional engineers, reading as follows:

“c. Registered professional engineer when practicing his profession as authorized by law. The prohibitions of the Registered Public Surveyors Act of 1955 do not extend to engineers practicing the science of professional engineering as defined by the Act of 1937, Article 3271a, Vernon’s Civil Statutes of Texas, when such activities involve measurement and land subdivision for the purpose of construction, when such activities do not involve the determination of boundary problems or other activities exclusively to be performed by Registered Public Surveyors, as such other activities are herein defined, though such activities involve techniques and instruments employed by surveyors in the practice of their science and art. The licensed activities of professional engineers are solely such as are necessary to and directed toward the prerogative of construction.”

Section 3 of the Rules adopted by the Board reads as follows:

“In the event of the failure or refusal of any person to comply with the requirements of the Registered Public Surveyors Act of 1955, as interpreted by these rules, it shall be the duty of the Board to present a complaint to an appropriate prosecuting officer in accordance with Section 8 of said Act. This duty shall not, however, prevent in a proper case the institution and prosecution, by either the Board or any other interested organization or person, of an action in a Court of competent jurisdiction to restrain and enjoin the violation of any of the preceding rules.”

Neither the Board, the Attorney General, nor any of the prosecuting officers of the State of Texas have been made parties to this suit. The office of the Attorney General issued an opinion August 9, 1960, addressed to the State Board for Registered Professional Engineers that registered professional engineers are not required to register as public surveyors under the provisions of Art. 5282a, R.C.S. Both appellants and appellees placed in issue the question of whether or not the law was properly interpreted by the Board, and appellants further requested adjudication of the power or authority of the Board to adopt rules, the effect of which would be to require a registered professional engineer to register as a public land surveyor in order to practice public surveying of land.

An adjudication of the power or authority of the Board to adopt the rules in question, and of the validity of the rules adopted, cannot properly be made in an action to which the Board is not a party. Town of Santa Rosa v. Johnson, Tex.Civ.App., 184 S.W.2d 340; Burnett v. Masonic Grand Chapter of Order of Eastern Star, Tex.Civ.App., 340 S.W.2d 81.

Insofar as determining the validity of the rules adopted by the State Board of Registration for Public Surveyors interpreting Art. 5282a in its application to registered professional engineers questions arise as to the justiciable interest of registered public surveyors and their professional society. We question whether the surveyors have a protectable right, rather than a future or speculative right, to require registered professional engineers to register under the Act. The duty of enforcement is placed by the Act on the Board, and its employees, the Attorney General, and his assistants, and the local law enforcement officials. The object of the Act appears to have been to raise the standards of the surveying profession and to prevent the practice of surveying by unqualified persons. That the primary purpose of the Act is to promote the public interest rather than the economic interest of those practicing surveying is recognized by the parties to this cause. If any economic benefit will result to any particular registered public surveyor, or if any economic detriment will result to any particular registered professional engineer, it does not appear in the record. That a benefit or detriment will result to either of the professions depends on the contingency that a registered professional engineer, who is not competent to do land surveying, attempts to enter that field in violation of' the code of ethics to which registered professional engineers are required to subscribe. The profession of engineering encompasses many fields of learning foreign to public land surveying. It appears that there is a division of opinion among those practicing in the field of civil engineering as to whether it is, or should be, a professional activity within their field. There is evidence that civil engineers, who were not competent, have engaged in boundary surveying in the past, and that the examination given registered professional engineers does not thoroughly test the applicant’s knowledge of, and proficiency in, the field of boundary surveying. It might be reasoned that if the law is interpreted as set out in the rules and regulations promulgated by the Board, and is enforced, fees, which might otherwise be collected by registered professional engineers incompetent to perform boundary surveying, will be earned by surveyors belonging to the class represented by the plaintiffs in this action. It cannot be doubted that there is a serious and honest difference of opinion between the professions involved as to the proper interpretation to be given the exemption as to registered professional engineers contained in Art. 5282a. The differences are pinpointed by the rules and regulations issued by the Board in the face of the opinion of the Attorney General previously mentioned.

In United Services Life Ins. Co. v. Delaney, Tex., 396 S.W.2d 855, it was held that the courts of Texas lack jurisdiction to render advisory opinions. In its opinion the Court said: “Actually what we are called upon to do is to answer a question and not render a judgment.” In a dissenting opinion Associate Justice Steakley stated: “Apparently the majority in its reliance upon Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641 (1933), is of the view that the giving of consequential relief is essential to an exercise of the judicial function and prerequisite to the existence of jurisdiction in a court to enter a declaratory judgment.” He further stated: “This Court delineated the true advisory opinion situation in California Products, Inc. v. Puretex Lemon Juice, Inc., 160 Tex. 586, 334 S.W.2d 780 (1960), as one where an actual and real dispute was not before the court and a concrete case was not present; as a consequence, a judgment by the court would settle nothing and be binding on no one.”

United Services Life Ins. Co. v. Delaney, supra, was instituted as a suit for declaratory judgment to determine the meaning of pertinent clauses in certain insurance contracts. A suit to recover on the insurance policy was held in the United States Circuit Court of Appeals, Fifth Circuit, 358 F.2d 714, under a stay order until a decision of the Supreme Court of Texas in a declaratory judgment action could be obtained. In this case the decision of the court appears to be based on the proposition that since any judgment rendered in the case could not be res adjudicata in the case pending in the U. S. Circuit Court of Appeals, the judgment could not be enforced by the Supreme Court of Texas and would amount to an advisory opinion.

The Declaratory Judgment Act, Art. 2524-1, Sec. 11, reads:

“When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. In any proceeding which involves the validity of a municipal ordinance or franphise, such municipality shall be made a party, and shall be entitled to be heard, and if the Statute, ordinance, or franchise is alleged to be unconstitutional, the Attorney General of the State shall also be served with a copy of the proceeding and be entitled to be heard.”

If this Court should determine that registered professional engineers are exempted from registration under Art. 5282a, we entertain serious doubts as to whether the judgment would settle the controversy, and could be enforced, since no one charged with the duty of enforcing the Act was made a party to the suit.

In McDonald, Texas Civil Practice, 1965 Revision of Vol. 1, § 2.05.1, the author states:

“Though a ‘cause of action’ in the sense of a claim upon which consequential relief may be granted is not essential to the maintenance of an action for declaratory judgment, there must exist a justiciable controversy. The court’s inquiry as to this jurisdictional prerequisite cannot be foreclosed by a stipulation of the parties as to its existence. * * * ‘There must be a protectable right, not a future or speculative right.’ The court cannot be called upon to render advisory opinions on abstract, hypothetical, or moot questions. ‘Unknown and undeveloped facts cannot be made the basis of a declaratory judgment.’ And it will not be granted when the facts upon which the relief is sought are subject to mutation and change. * * * ‘The disagrement must not be nebulous or contingent but must have taken on fixed and final shape so that a court can see what legal issues it is deciding, what effect its decision will have on the adversaries, and some useful purpose to be achieved in deciding them.’

“The plaintiff, of course, must have a justiciable interest in the subject of the action. And the parties to be directly affected by the decision must be before the court. * * *

“Declaratory relief should be granted when parties have assumed conflicting, adverse positions respecting their legal or equitable rights or duties in reference to a subject matter in which each has an immediate interest, their dispute being concerned with an existing set of facts and the proceeding being such that it will culminate in a final judgment settling their legal relations and giving relief from their uncertainty, and res judicata in subsequent proceedings. Stated otherwise, ‘there must be a concrete case touching the legal relations of parties having adverse legal interests and susceptible of an immediate and definitive determination of the legal rights of the parties in an adversary proceeding upon the alleged facts.’ * * * ‘Basically, the question in each case is whether the facts alleged, under all the circumstances show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.’ ”

In view of these general principles, as well as the authorities hereinafter cited, we hold that the licensed public surveyors have not shown a substantial controversy between parties having adverse legal interests of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. Orange Ind. School Dist. v. West Orange Ind. School Dist., Tex.Civ.App.1965, 390 S.W.2d 81, ref., n. r. e.; Texas State A.F.L.-C.I.O. v. Brown, Tex.Civ.App.1964, 378 S.W.2d 917, ref., n. r. e.; Lee v. Calvert, Tex.Civ.App.1962, 356 S.W.2d 840, ref., n. r. e.; McKinney v. Blankenship, 1955, 154 Tex. 632, 282 S.W.2d 691, 697; Cowan v. Cowan, Tex.Civ.App. 1952, 254 S.W.2d 862; Southern Traffic Bureau v. Thompson, Tex.Civ.App.1950, 232 S.W.2d 742, ref., n. r. e.; Parks v. Francis, Tex.Civ.App.1947, 202 S.W.2d 683; Anno. 71 A.L.R.2d 726 et seq.

If we are correct in our conclusion that the licensed public surveyors have no such justiciable, or legal, right as would authorize them to maintáin this suit to, in effect, compel registered professional engineers to procure a license as a public surveyor before they at some future date, practice public surveying, it follows that there is a lack of the requisite adverse parties as to the registered professional engineers’ cross-action. Cobb v. Harrington, 1945, 144 Tex. 360, 190 S.W.2d 709, 172 A.L.R. 837; Railroad Commission v. Houston Natural Gas Corp., Tex.Civ.App.1945, 186 S.W.2d 117, ref., w. m.

In view of our disposition of this case, we find it unnecessary to discuss the complications arising from the fact that the violation of Art. 5282a constitutes a criminal offense, and are content to cite the following cases: State v. Parr, Tex.Cr.App., 293 S.W.2d 62; Harris County Tax Assessor-Collector v. Reed, Tex.Civ.App., 225 S.W.2d 586, rev. Texas Automotive Dealers Ass’n v. Harris County Tax Assessor-Collector, 149 Tex. 122, 229 S.W.2d 787; Malone v. City of Houston, Tex.Civ.App.1955, 278 S.W.2d 204, ref., n. r. e.; Law v. Texas Delivery Service, Inc., Tex.Civ.App.1960, 335 S.W.2d 653, ref., n. r. e.; Anno. 129 A.L.R. 751 et seq.

We note that in a case seeking to determine the validity of certain rules adopted by the Texas State Board of Examiners in Optometry, the Board was named as defendant. Texas State Board of Examiners in Optometry v. Carp., Tex.Sup.Ct. 1965, 388 S.W.2d 409.

The judgment of the trial court is reversed and the cause is dismissed for want of jurisdiction for lack of a justiciable interest between the parties.

Reversed and dismissed.


author: CHAPMAN, Justice.

text:
    T. E. McCLANAHAN, Appellant, v. Adrian COOK, Appellee.
    No. 7593.
    Court of Civil Appeals of Texas. Amarillo.
    March 14, 1966.
    Rehearing Denied April 11, 1966.

      Benson & Benson, Lubbock, for appellant.
    Thomas W. Gamblin, Post, for appellee.
   CHAPMAN, Justice.

This is a venue case. Plaintiff below, appellant here, T. E. McClanahan of Lubbock County sued Adrian Cook of Garza County in the former county for damages to his automobile received while sitting on a parking lot in Slaton resulting from a stoek trailer with five calves breaking loose from the pickup pulling it, leaving the highway, and running into the parked 1963 Chevrolet.

Appellee filed in due form his plea of privilege to be sued in Garza County, his domiciliary residence. The plea was controverted by an allegation relying upon Exception 9a of Article 1995, Vernon’s Ann.Tex.St. That exception as material to this cause reads:

“Negligence. — A suit based upon negligence per se, negligence at common law or any form of negligence, active or passive, may be brought in the county where the act or omission of negligence occurred * * *. The venue facts necessary for plaintiff to establish by the preponderance of the evidence to sustain venue in a county other than the county of defendant’s residence are:
1. That an act or omission of negligence occurred in the county where suit was filed.
2. That such act or omission was that of the defendant, in person, or that of his servant, agent or representative acting within the scope of his employment.
3.- That such negligence was a proximate cause of plaintiff’s injuries.”

The court after hearing the evidence offered by both parties sustained the plea of privilege and transferred the case to the adjoining county, Garza County.

We hold that appellant failed in his brief to sustain the burden required under the exception to exclusive venue relied on.

The testimony shows appellant was sitting in the office of the Texaco Bulk Plant, where he works, when he heard a noise. He “* * * finally got up and went to the door and looked.” He saw a two-wheel stock trailer “setting under the backend of my car.”

He first testified he found the pin that came out of the trailer hitch, that it was a regular bolt 4½ to 5 inches long with no place for a cotter pin or wire to pass through the bottom and no place that a “half-moon” attachment could have been a part of it and become detached. He testified he gave the bolt to an officer but he never produced it at the plea of privilege hearing. He then testified on cross-examination that he did not know the bolt he picked up came off appellee’s pickup, that it could have been out of a trailer or a truck that had been by there earlier in the day. The record is void of any information as to how the trailer became detached from the pickup, and appellant has wholly failed to brief the one point raised in his brief to the effect that the court erred in failing to find that an act or omission of negligence by appellee occurred in Lubbock County, which was a proximate cause of appellant’s damage.

Rule 418, Vernon’s Ann. Texas Rules, provides the brief of appellant shall contain, inter alia, a discussion of the facts and the authorities relied upon as requisite to maintain the point at issue. Numerous courts have held that where points are not briefed by appellant they may be assumed as waived. Whitson Company v. Bluff Creek Oil Company, Tex.Civ.App., 278 S.W.2d 339, affirmed 156 Tex. 139, 293 S.W.2d 488; Weatherred v. Kiker, Tex.Civ.App., 357 S.W.2d 182 (N.R.E.); Butterfield Sales Company v. Armstrong, Tex.Civ.App., 278 S.W.2d 194 (N.R.E.); Grady v. Dallas Railway & Terminal Company, Tex.Civ.App., 278 S.W.2d 282 (N.R.E.); Stanford v. Brooks, Tex.Civ.App., 298 S.W.2d 268 (N.W.H.); Pride v. Pride, Tex.Civ.App., 318 S.W.2d 715 (N.W.H.); Hall v. Hall, Tex.Civ.App., 352 S.W.2d 765 (N.W.H.); Kirkman v. Alexander, Tex.Civ.App., 280 S.W.2d 365 (N.R.E.); Kitchens v. Kitchens, Tex.Civ.App., 372 S.W.2d 249 (writ dismissed).

That the citation of authorities constitutes one of the components of a brief has long been recognized by our courts, even before the promulgation of the above stated rule. Even before the adoption of our present Rules of Civil Procedure, when propositions were required instead of points the Supreme Court of Texas in Shanks v. Carroll, 50 Tex. 17, 20 said:

“The brief contemplated and required by the rules should, in short, embrace nothing but the propositions — set forth clearly, distinctly, and separately — relied upon for the reversal of the judgment, the matters in the record pertinent to the proper determination of each proposition, and a citation simply of the authorities relied upon to maintain the validity or correctness of the propositions thus asserted; * * See also Haley v. Davidson, 48 Tex. 615, 618.

Appellant here has not cited any common law or statutory authority; no textual statement from any text book; no case law; no law review or Texas Bar Journal statements; nor even a case note nor comment therefrom to support the point he relies on for reversal of the trial court judgment. (All emphases herein are ours.)

In any event, under the record before us, the trial court properly sustained the plea of privilege. Exceptions to the venue statutes must be strictly construed and clearly established before a citizen can be deprived of his right to be sued in the county of his domicile. Watkins v. McCluskey, Tex.Civ.App., 284 S.W.2d 381 (N.W.H.); Brown v. Clary, Tex.Civ.App., 315 S.W.2d 385 (N.W.H.); Old Lincoln County Mut. Fire Ins. Co. v. Hall, Tex.Civ.App., 214 S.W.2d 203 (N.W.H.).

The positive evidence of appellee shows that at the time of the accident he was using the same type pin in his trailer hitch that is used in 85 per cent to 90 per cent of the trailers in Garza County and at least 75 per cent in Lubbock County. This testimony was corroborated. The testimony shows that the pin being used on the day of the accident had a half-moon safety type device about the size of a lead pencil that attached to the top of the pin, then hooked under the tongue of the trailer, which in effect locked the pin into the hole through which its lower extremity extended; that appellee had checked it before leaving his place in Garza County; and that it was in proper place. He also testified he had purchased it new in November before the accident in the following January and in effect that it was not deteriorated.

An examination of the evidence introduced has led us to the conclusion, that no specific act of negligence, either active or passive was proved on the hearing, and that if such evidence would fix liability upon appellee, it would be under the rule of res ipsa loquitur, which we do not believe his point raises.

The judgment of the trial court is affirmed.


author: GRISSOM, Chief Justice.

text:
    C. T. PIERCE, Appellant, v. FORD MOTOR COMPANY, Appellee.
    No. 4047.
    Court of Civil Appeals of Texas. Eastland.
    March 25, 1966.
    Rehearing Denied April 15, 1966.
    McMahon, Smart, Sprain, Wilson & Camp, Hugh F. Rives, Jr., Abilene, for appellant.
    Upton, Upton, Griffis, Shannon & Porter, John Hofmann, San Angelo, for appellee.
   GRISSOM, Chief Justice.

C. T. Pierce sued Ford Motor Company in Taylor County. Pierce alleged that he bought an automobile from some Ford dealer who gave him a standard retail purchaser’s warranty against defect in material and workmanship for a certain time; that, during that time, while he was operating said automobile in an ordinary manner, it burst into flames, causing the damages for which he sued. Pierce alleged that Ford Motor Company was liable to him for said damages under its contractual warranty. Ford Motor Company filed a plea of privilege to be sued in Dallas County, its legal residence in Texas. Plaintiff filed a controverting affidavit in which he alleged that Ford Motor Company had breached its warranty and that his damages were caused by defects in material and workmanship within its warranty. More specifically, Pierce contends that he has a right to maintain his suit against Ford Motor Company in Taylor County because Ford has an agent and representative in Taylor County, to-wit, Arrow Ford Company, which has the right to exercise its judgment concerning the affairs of Ford Motor Company, “including the right to incur contracts binding on said defendant”, and is Ford’s agent or representative in Taylor County within the meaning of exception 27, Article 1995, Vernon’s Ann.Civ. St. In a trial to the court, judgment was rendered sustaining Ford Motor Company’s plea of privilege and Pierce has appealed.

As stated, appellant’s contention on the trial and on this appeal is simply that under exception 27, he has a right to maintain the suit in Taylor County because Arrow is an agent or representative of Ford Motor Company in Taylor County, acting with discretionary authority and with power to make decisions for Ford concerning the rights and obligations of purchasers of new Ford automobiles under their warranty. Appellant cites in support of that contention Pacific Finance Corporation v. Ramsey, Tex.Civ.App., 305 S.W.2d 297; Shamrock Oil & Gas Corporation v. Todd, Tex.Civ.App., 166 S.W.2d 766; Brazos River Transmission Electric Cooperative, Inc. v. Vilbig, Tex.Civ.App., 244 S.W.2d 266 and Southwestern Greyhound Lines, Inc. v. Day, Tex.Civ.App., 238 S.W.2d 258, 259. We think none of said decisions sustain appellant’s contention. In Pacific Finance Corporation v. Ramsey, a judgment overruling defendant’s plea of privilege was sustained because the evidence established that the defendant foreign corporation had an agent or representative in the county in which the suit was filed. It was there found that Pacific Finance Corporation, operated in the field of consumer loans through a branch, division or subsidiary corporation known as Pacific Finance Loans, which had an office in the county where the suit was filed; that, on various occasions, at the request, of appellant Corporation, Loans had conducted the business of Corporation in the county of suit; that, under an agreement between Corporation and Loans, Loans had discretionary authority to act for Corporation in dealing with its customers. In the present case there is no such evidence. The court, presumably, found all requisite fact issues, if any, against appellant. To obtain a reversal of the judgment appellant has the burden of showing that he conclusively established the venue facts. In Brazos River Transmission Electric Cooperative, Inc. v. Vilbig, the trial court overruled the corporation’s plea of privilege to be sued where its principal office was maintained in Texas. The judgment overruling said corporation’s plea of privilege was reversed because the plaintiff failed to establish that the defendant had an agency or representative in the county where the suit was brought. It held that “agency or representative” within the meaning of the venue statutes relate to commercial or business transactions having to do with corporate affairs of the principal, other than matters of manual or mechanical execution, and denote discretionary power. In Shamrock Oil & Gas Corporation v. Todd, it was held that “agency or representative” within the meaning of exception 27 referred to one subject to control of such corporation and authorized to act for it in promoting its affairs. In Southwestern Greyhound Lines, Inc. v. Day, we sustained the court’s action in overruling such a defendant’s plea of privilege saying that the evidence amply supported the implied finding that the defendant foreign corporation had an agent or representative in the county of the suit. Here, the situation is just the opposite. The trial court has found that the foreign corporation defendant does not have an agency or representative in Taylor County. In determining the sufficiency of the evidence to support such a ruling, we are required to disregard all adverse evidence and to give credit to all evidence favorable to the judgment.

“The general rule of venue is, of course, that a defendant shall be sued in his own county, and however many and important are the exceptions contained in the statute, an equal doubt between the exception and the rule is to be resolved in favor of the rule. Stated differently, the application of the exception must clearly appear.” Goodrich v. Superior Oil Co., 150 Tex. 159, 237 S.W.2d 969, 972.

The plaintiff has the burden of establishing the venue facts, in this case, the existence of Ford Motor Company’s agency or representative in Taylor County, by a preponderance of the evidence. Compton v. Elliott, (Tex.Com.App.), 88 S.W.2d 91; Reynolds & Huff v. White, Tex.Civ.App., 378 S.W.2d 923. Plaintiff’s evidence shows that the only warranty issued was by a retail dealer to his customer; that Ford Motor Company had no connection with it and that Arrow had no authority to act for Ford Motor Company concerning warranty. In General Motors Corporation v. Ewing, Tex.Civ.App., 300 S.W.2d 714, an automobile purchaser sued the manufacturer, alleging a defective condition. The manufacturer filed a plea of privilege. In that case the warranty came from the manufacturer. Complaints directed to the manufacturer were referred to the local dealer for inspection and report. The court reversed the trial court’s judgment overruling General Motor’s plea of privilege saying:

“Our view of the record is that the testimony fails to show that the defendant had any dealings or transactions with the plaintiff as regards the sale of the Buick car; plaintiff made his purchase from an independent automobile dealer. It seems to us that the dealer is in no way connected with defendant other than being in a position to resell the automobiles it buys from defendant.”

Gehl Bros. Manufacturing Co. v. Price’s Producers, Inc., Tex.Civ.App., 319 S.W.2d 955 and Sparks v. Chrysler Corporation, Tex.Civ.App., 353 S.W.2d 477, sustain our conclusion that there was no proof that the defendant foreign corporation had an agent or representative in the county of suit and that Arrow Ford Company is not an agent or representative of the manufacturer authorized to bind it contractually. No evidence has been pointed out which would have supported a judgment overruling ap-pellee’s plea of privilege. It is appellant’s burden to show that he conclusively established that Arrow is Ford Motor Company’s agent or representative within the meaning of exception 27. He has not been able to do that.

The judgment is affirmed.


author: LANGDON, Justice.

text:
    COLONIAL SAVINGS AND LOAN ASSOCIATION OF LEWISVILLE et al., Appellants, v. TEXBORO CABINET CORPORATION, Appellee.
    No. 16712.
    Court of Civil Appeals of Texas. Fort Worth.
    March 18, 1966.
    Rehearing Denied April 15, 1966.

      Biggers, Baker, Lloyd & Carver, and Chandler Lloyd and John C. Biggers, Dallas, for appellants.
    McDonald, Sanders, Wynn, Ginsburg, Phillips & Maddox, and Lee W. Henslee, Fort Worth, for appellee.
   LANGDON, Justice.

This is a venue case.

Texboro Cabinet Corporation, plaintiff, brought suit against L. L. Post, d/b/a Post Construction Co., First Federal Savings and Loan Association of Irving, a corporation, Colonial Savings and Loan Association of Lewisville, a corporation, and others in Tar-rant County where plaintiff has its office and principal place of business.

First Federal Savings and Loan Association and Colonial Savings and Loan Association, hereinafter referred to as defendants, filed separate pleas of privilege to have the case transferred to Dallas and Denton Counties where they maintain their respective residences. Plaintiff controverted both pleas. They were heard jointly by the court without a jury and an order overruling both was entered on September 3, 1965.

Defendants on appeal contend that the cause of action declared upon in plaintiff’s petition is foreign to the grounds for venue relied upon in the controverting affidavit and that since the cause of action was to foreclose a lien based upon a verified sworn account rather than upon a contract in writing requiring payment in Tarrant County that venue could not be maintained against them under subdivision 29a.

Admittedly, the suit is primarily one founded upon an itemized verified account marked Exhibit A which was attached to the plaintiff’s original petition in which it was alleged that the merchandise comprising the itemized account was sold under a contract providing that the purchase price was payable in Fort Worth, Tarrant County, Texas. The contract was more specifically alleged in the controverting pleas. The plaintiff incorporated its original petition and the attached Exhibit A in the controverting pleas and sought to maintain venue as to Post under exception 5 to Article 1995, V.A.T.S., which provides that if a person has contracted in writing to perform an obligation in a particular county, expressly named, or a definite place therein a suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant is domiciled.

The plaintiff sought to maintain venue as to the defendants under exception 29a to Article 1995, V.A.T.S., alleging that both defendants were claiming some interest in real property which was subject to the lien it sought to foreclose and were therefore necessary parties to the adjudication of the priority of the plaintiff’s lien. Exception 29a provides that whenever there are two or more defendants in a suit brought in any county in the State which is lawfully maintainable under some provision of Article 1995 as to any of such defendants then such suit may be maintained in such county against any and all necessary parties thereto.

At the joint hearing of the pleas of privilege there was introduced into evidence: (1) The contract between the plaintiff and Post; (2) the affidavit to affix material-men’s lien duly filed and recorded in Vol. 311, P. 1736, Lien Records of Dallas County, Texas. It was established by the evidence that the contract was for the purchase of merchandise listed and described in the sworn account marked Exhibit A to plaintiff’s original petition and in the account attached to the affidavit to affix the plaintiff’s materialmen’s lien. It was stipulated that the liens of the defendants were upon the same property as the lien of plaintiff.

Since it was established by the evidence that the account arose out of the written contract and included the merchandise specified therein we find no variance between the original petition of plaintiff and the controverting pleas. The itemized verified account upon which the plaintiff’s claim is based arose out of and was initiated by reason of the contract providing for a specific place for the payment of such account.

Where venue is maintainable under exception 5 to Article 1995 upon or by reason of an obligation which provides for payment in a particular county, a suit to foreclose a lien arising out of such obligation will also be maintáinable in that particular county although the lien is upon property located in another county.

In Farmer v. Cassity, 252 S.W.2d 788 (Beaumont Civ.App., 1952, no writ hist.), suit was brought upon a note in Polk County and to foreclose a vendor’s lien on standing timber located in Hardin County. In discussing venue of the cause of action to foreclose the lien, the court stated: “ * * * if the trial court had venue of the suit on the note, then the trial court was authorized to retain venue of the claim for foreclosure of the vendor’s lien to avoid a multiplicity of suits * *

Where a suit was brought upon a note payable in McLennan County and to foreclose a deed of trust lien on property located in Milam County, the court, in Pioneer Building & Loan Ass’n v. Gray, 132 Tex. 509, 125 S.W.2d 284 (1939), stated: “In the case at bar the plaintiff had the absolute right, as against the mortgagors, under subdivision 5 of Article 1995, to maintain a suit upon its note and to foreclose its lien in McLennan county.”

In this case the relationship and connection between the contract and the mechanic’s lien was well established by the pleadings and evidence. Plaintiff’s original petition is upon a verified account arising under a contract and alleges the perfection of the mechanic’s lien which arose therefrom. Plaintiff’s controverting plea more specifically alleges the same. The affidavit to affix mechanic’s lien was made to secure the balance due for materials furnished to the defendant L. L. Post and specifically refers to the fact that the materials were furnished under and by virtue of a contract made and entered into between the plaintiff and the defendant Post.

Venue of plaintiff’s cause of action against Post therefore lies in Tarrant County under exception 5 of Article 1995.

See Beasley v. Barshop, 352 S.W.2d 927 (San Antonio Civ.App., 1961, no writ hist.); Manford v. Kelly Manufacturing Company, 350 S.W.2d 209 (Houston Civ.App., 1961, no writ hist.); Newman v. Texas Farm Products Company, 346 S.W.2d 151 (Beaumont Civ.App., 1961, no writ hist.); Pallets, Inc. v. Stephens, 345 S.W.2d 783 (Beaumont Civ.App., 1961, no writ hist.); Burtis v. Butler Bros., 148 Tex. 543, 226 S.W.2d 825 (1950).

Where venue may be maintained upon the main cause of action, in this case on a sworn account, under subdivision 5 of Article 1995, venue may also be maintained upon an action to foreclose a lien arising by virtue of such sworn account.

It is established by the evidence that the liens of the defendants Colonial Savings & Loan Association of Lewisville and First Federal Savings & Loan Association of Irving are inferior to the lien which plaintiff holds upon the property of the defendant Post. As inferior lien holders they are necessary parties to an action brought by plaintiff to foreclose its superior lien and therefore venue may be maintained against them under subdivision 29a of Article 1995 in Tarrant County. Biggs v. Southland Life Insurance Co., 150 S.W.2d 149 (Dallas Civ.App., 1941, no writ hist.).

In Ladner v. Reliance Corp., 156 Tex. 158, 293 S.W.2d 758 (1956), the Supreme Court generally reviewed the rules as to maintenance of venue under subdivision 29a and included the following statement: “A junior lienholder or person in possession of or claiming an interest in the security is a necessary party to an action to foreclose a note and mortgage on either real or personal property.’’ See also Pierson v. Pierson, 136 Tex. 310, 150 S.W.2d 788 (1941).

All points of error are overruled and the court’s action in overruling the pleas of privilege is affirmed.

Affirmed.


author: McDONALD, Chief Justice.

text:
    STATE of Texas, Appellant, v. W. H. DICKSON et al., Appellees.
    No. 4425.
    Court of Civil Appeals of Texas. Waco.
    March 3, 1966.
    Rehearing Denied March 24, 1966.
    Second Motion for Rehearing Denied April 7, 1966.
    Waggoner Carr, Atty. Gen., of State of Texas, Carroll Graham, Asst. Atty. Gen., Austin, for appellant.
    McKool & McKool, Les King, Dallas, Martin & Martin, Hillsboro, for appellees.
   McDONALD, Chief Justice.

This is a condemnation case wherein the State of Texas condemned 18.64 acres of land (together with a drainage easement of .92 of an acre), out of a 191 acre tract owned by defendants. Trial to a jury resulted in a verdict of $5868 for the land taken, and $36,175 damage to the remainder. The trial court rendered judgment on the verdict for defendants for $7645 ($42,043 less $34,398 deposited by the State after award by the Commissioners).

Plaintiff appeals, contending:

1) The action of defendants’ attorney in qualifying the witnesses Russell and Cypert, before the jury, was highly prejudicial and caused the rendition of an improper verdict.
2) The action of defendants’ attorney in introducing the income of the property before the jury was highly prejudicial and caused the rendition of an improper verdict.
3) There is no evidence, or insufficient evidence, to support the jury’s verdict; such verdict is against the great weight and preponderance of the evidence; and is excessive.

Plaintiff’s first contention is that defendants’ attorney’s action in qualifying the witnesses Russell and Cypert before the jury was prejudicial and caused the rendition of an improper verdict. Both Russell and Cypert had acted as Special Commissioners in the commission phase of the instant case. Defendants called Russell and Cypert to testify as to their opinions of the value in the trial in County Court. Counsel for defendants asked the witness Russell if he was familiar with the Dickson property and Russell replied he had known it all his life. Counsel for defendants then asked Russell who he went on the property with in the latter part of 1961. Russell answered that it was with Mr. Dick Spencer; and in answer to a question as to who he was, answered that he was an engineer with the Highway Department. Substantially the same testimony was elicited from the witness Cypert. Plaintiff contends that this created an impression in the minds of the jurors that these witnesses had actually made an appraisal for the Highway Department.

Plaintiff did not object to the testimony of the witness Russell. Plaintiff did object to the testimony of the witness Cy-pert and the entire testimony of Cypert was struck by the trial court. The contention is without merit.

Plaintiff’s 2nd contention is that defendants’ attorney’s action in introducing the income of the property before the jury was prejudicial and caused the rendition of an improper verdict. The witness Wilson testified that he had been appraising land for some thirty years; that he appraised the defendants’ property; that he had valued the farm from the market data of comparable sales approach; that he used the income approach to check his conclusions. He then testified to the income of the farm for the years 1959, 1960 and 1961. Objection by plaintiff’s counsel to the foregoing was overruled by the trial court. Thereafter the witness Wilson’s written “Appraisal Report,” which contained all of the income figures for 1959, 1960 and 1961 was introduced into evidence without objection. Under the record, we think the evidence as to the past income from the property admissible; but in any event plaintiff waived his objection to same by permitting the same evidence to be later introduced without objecting thereto.

Plaintiff’s 3rd contention is that there is no evidence or insufficient evidence to support the verdict; that the verdict is against the great weight and preponderance of the evidence; and is excessive.

This case involves a taking of 18.64 acres out of a 191 acre tract; plus a drainage easement of .92 of an acre. The taking of the 18.64 acres split the tract diagonally, leaving 56 acres burdened by the .92 acre easement on the north side of the freeway, and 112 acres on the south side of the freeway. The farm was being used as a dairy farm at the time of the taking, which was its highest and best use. The jury found the value of the land taken to be $5868 (or approximately $300 per acre); and found the value of the remainder before the taking to be $72,675; and the value after the taking $36,500, (making a $36,175 damage to the remainder). There is evidence that after the taking, the water through the channel easement caused a ditch to be washed out so the land could not be cultivated; that the grasses below the easement were covered and killed by silt; that after the taking, the unit became too small to operate as a dairy farm and that as a result the highest and best use changed to a row crop operation; that the severance left the barn and improvements on one side of the freeway, and the pasture on the other side; and that as a result the improvements depreciated in value. There is evidence of other sales in the area of up to $325 per acre.

Defendant testified the property taken had a value of $5,868; and that the remainder had a value of $81,900 before the taking; and a value of $40,015 after the taking. The expert appraiser Wilson testified the market value of the land taken to be $5600; and the value of the remainder before the taking $61,000; and $32,700 after the taking. The witness Russell valued the land taken at $5869; the remainder before the taking at $76,182; and after the taking at $47,656. The witness George Dickson valued the land taken at $5868; the remainder before the taking at $81,900; and after the taking at $40,015. The plaintiff’s witness placed a value on the land taken of $3830; the remainder before the taking of $43,930; and after the taking of $36,550.

A jury in matters of this kind may weigh, consider and accept the opinions as to value, or it may form its own opinion from the evidence and by utilizing its own experience and matters of common knowledge. See McCarthy v. City of Amarillo, Tex.Civ.App., (n. r. e.), 307 S.W.2d 595; Roberts v. State, Tex.Civ.App., (n. w. h.) 350 S.W.2d 388.

We think the evidence ample to sustain the verdict, and that such is not against the great weight and preponderance of the evidence, or excessive.

All plaintiff’s points and contentions are overruled.

Affirmed.


author: WALTER, Justice.

text:
    The STATE of Texas, Appellant, v. B. L. STANDARD et al., Appellees.
    No. 4046.
    Court of Civil Appeals of Texas. Eastland.
    March 25, 1966.
    Rehearing Denied April 15, 1966.

      J. Milton Richardson, Asst. Atty. Gen., Austin, Tom Gordon, Abilene, for appellant.
    W. J. Rutledge, Jr., Abilene, for appellees.
   WALTER, Justice.

The State of Texas on behalf of the Permanent Free School Fund filed suit against B. L. Standard and wife, W. J. Rutledge, Jr., W. K. Rutledge and R. M. Rutledge, Trace Mining Company, and Humble Oil and Refining Company to remove cloud from the title to the mineral estate underlying a 60¾ acre tract of land in Taylor County. The Rutledge defendants answered and filed a third party action against Jerry Sadler, Commissioner of the General Land Office, for damages. The court entered an order severing in one cause those issues sought to be presented regarding the validity of (1) the Standard Oil and Gas Lease to Trace Mining Company dated February 24, 1964, (2) agreement between B. L. Standard and the Rutledges and (3) the amended Standard Oil and Gas Lease, and all issues relating to the cancellation or termination of the agency rights under the Relinquishment Act. The other cause to consist of all the remaining issues in the case. The cause relative to the validity of the instruments and the issues relating to the cancellation of the agency rights under the Relinquishment Act is the case that was tried and is now being considered on appeal.

The court granted the Standard group’s motion for a summary judgment and denied the motion for summary judgment filed by the State and Sadler. Humble is not a party to this cause, but remained in the case on the remaining issues. The State and Sadler have appealed.

They contend that the court erred in granting the Standard group’s motion and in overruling their motion for summary judgment. The tract of land was acquired by the State as escheated lands under Article 3281, Vernon’s Ann.Civ.St. Leo Standard and wife acquired the surface of the land by patent from the State in 1939, with reservation of the minerals to the Permanent Free School Fund. Leo Standard and wife conveyed the surface estate of said land to B. L. Standard and wife in 1946. The School Land Board advertised the minerals for lease under Article 5421c-3, V.A.C.S. Humble became the purchaser and secured a lease on November 5, 1963. Thereafter, Standard executed a lease on the land to Trace Mining Company. Sadler refused to file the Trace lease. The Standard group secured a writ of mandamus from the Supreme Court in Standard v. Sadler, 383 S.W.2d 391, directing the Commissioner of the General Land Office to recognize the Standard-Trace lease as a valid lease and ordered him to file a certified copy thereof as required by law. Motion for rehearing was overruled and the State filed a motion to stay issuance of the writ of mandamus. The instruments sought to be declared invalid herein were before the Supreme Court on that motion. The motion to stay was overruled on January 20, 1965. On January 28,1965, the writ of mandamus was served on Sadler and he filed the original and amended lease and the employment contract that the Rutledges had with Standard. In the mandamus suit the Supreme Court said:

“What we hold is that Art. 3281 confers no power on the Commissioner to execute leases for oil and gas and other mineral development on escheated land which has been sold by the State from the Permanent Free School Fund. And we hold further that when the full fee title to es-cheated land is owned by the Fund and the land is sold with a reservation of all minerals, the Relinquishment Act of 1919 constitutes the owner of the soil the agent of the State for the purpose of negotiating and executing oil and gas leases thereon. We assume the Commissioner of the General Land Office will recognize the lease executed by Standard as a valid lease and that he will receive and file the certified copy thereof as required by law. Writ of mandamus will issue only if he refuses to do so.”

The amended Standard lease is in the identical language of the original lease except for the addition of Paragraph 27 which is as follows:

“This lease agreement is executed in amendment of and substitution for an oil and gas lease dated February 24, 1964, by and between the same parties, identical in provisions to those stated hereinabove, recorded Volume 735, page 7 of the Deed Records of Taylor County, Texas, and covering the same land described above, solely in order to show that said lease was executed contemporaneously with and pursuant to an employment contract between B. L. Standard, the landowner, and Rutledge and Rutledge, attorneys at law, dated February 14, 1964, expressly referred to herein and made a part hereof for all proper purposes.”

The Supreme Court has decided that the Standard-Trace Mining Company lease is valid. The same parties are involved in both proceedings. In Swilley v. McCain, 374 S.W.2d 871 (Tex.1964), the court said:

“After a question of law or an issue of fact has been litigated and adjudicated in a court of competent jurisdiction, the same matter cannot be relitigated in a subsequent suit between the same parties or those in privity with them. This is by virtue of the doctrine of res judicata, which thus extends to both questions of law and issues of fact but binds only the parties to the first suit and those who claim under them. It may not be invoked by one who is not bound by the judgment in the earlier proceeding.”
“As originally conceived and as generally applied, the doctrine of stare decisis governs only the determination of questions of law and its observance does not depend upon identity of parties. After a principle, rule or proposition of law has been squarely decided by the Supreme Court, or the highest court of the State having jurisdiction of the particular case, the decision is accepted as a binding precedent by the same court or other courts of lower rank when the very point is again presented in a subsequent suit between different parties.”

Also in Ogletree v. Crates, 363 S.W.2d 431 (Tex.1963), the Supreme Court said:

“The rule of res judicata in Texas bars litigation of all issues connected with a cause of action or defense which, with the use of diligence, might have been tried in a former trial, as well as those which were actually tried.”

In its prayer the State, in effect, asks this court to overrule the Supreme Court and declare that the lands involved herein “shall be subject to lease under the provisions of Article 5421c-3.”

We have concluded that under the doctrine of res judicata and stare decisis the Standard lease and the amended Standard lease are valid.

The School Land Board had leased Standard’s land to Humble under Article 5421c-3, V.A.C.S. Standard contended that he was entitled to lease the land under the Relinquishment Act. The Land Board’s lease constituted a cloud on his title and he was in need of the services of an attorney to remove such cloud. After being turned down by several attorneys, he was finally successful in securing the services of the law firm of Rutledge and Rutledge. Trace Mining Company is a partnership composed of the three Rutledges in the law firm. The employment contract provided that the attorneys had an option to acquire an oil and gas lease on the Standard land for a cash bonus of $10.00 per acre. It further provided that the portion of the lease bonus payable to Standard as the land owner should be returned to the lawyers as part payment for their legal services. It further provided that if Trace Mining Company should develop the lease by drilling, Standard would have an option to acquire a share in the working interest. It further provided that if Trace produced oil from the land and had the management of the property, Standard would have an option on the job of pumper and would receive $500.00 per location as damages.

Article 5367 is as follows:

“The State hereby constitutes the owner of the soil its agent for the purposes herein named, and in consideration therefor, relinquishes and vests in the owner of the soil an undivided fifteen-sixteenths of all oil and gas which has been undeveloped and the value of the same that may be upon and within the surveyed and unsurveyed public free school land and asylum lands and portions of such surveys sold with a mineral classification or mineral reservation, subject to the terms of this law. The remaining undivided portion of said oil and gas and its value is hereby reserved for the use of and benefit of the public school fund and the several asylum funds. Acts 2nd C.S.1919, p. 249; Acts 1st C.S.1921, p. 112.”

Standard was entitled to one-half of the bonus for leasing the land as the agent for the State. He used his part of the bonus to employ a firm of lawyers to represent him. In Lemar v. Garner, 121 Tex. 502, 50 S.W.2d 769 (1932), at page 773 the court said:

“That when a valid and binding lease or conveyance of the minerals is made by the owner of the land, as the agent of the state, then in that event he receives the foregoing amounts as compensation for his services. His share of the rentals, royalties, and bonuses derived from the leases executed by him become property rights during the period of time for which the lease runs.”
“The rule is well established that it is not the policy of the law of this state to favor restraints upon alienation of property. The courts of this state have established the rule that rents or royalties payable under oil and gas mineral leases are severable and separable from the ownership of the surface estate and are property rights, and, having established this rule with respect to such property, we think, under the policy of the law of this state, that they are assignable by the owner thereof.”

Standard had an option to acquire a portion of the working interest under certain conditions. These conditions are not now present and Standard has not exercised his option. He also has an option to secure a job on the lease as a pumper under certain conditions which have not come into existence. Also the conditions under which Standard would receive as damages $500.00 per location are not in existence. If these conditions arise and the State has any interest in them, it could assert them at that time.

We have considered appellant’s points and find no merit in them. They are overruled.

The judgment is affirmed.


author: PARKER, Justice.

text:
    Arthur S. SANDERS, Appellant, v. Ernest DUNLAP, Appellee.
    No. 6804.
    Court of Civil Appeals of Texas. Beaumont.
    March 24, 1966.
    Rehearing Denied April 13, 1966.
    Stephenson, Stephenson & Thompson, Orange, for appellant.
    Sexton & Owens, Orange, for appellee.
   PARKER, Justice.

Ernest Dunlap sued Arthur S. Sanders for the title and possession of a small tract of land in the City of Orange in the ordinary form of trespass to try title and for the rental value of such property occupied by Sanders since February 13, 1962. A jury trial was had. Defendant’s answer consisted of a plea of not guilty, good faith possession for seven years and permanent and va’uable improvements in good faith on said land of $2,640.00. Dunlap filed a motion to disregard the findings of the jury to special issues Nos. 2 and 3 and that judgment be entered for Dunlap upon the remaining findings of the jury, which motion was sustained by the court and judgment entered accordingly, with Dunlap recovering from Sanders the title and possession of the land and $900.00 rent.

The jury findings were: (1) Arthur Sanders and Irene Dunlap Hunt were not married at common law; (2) Arthur Sanders made valuable improvements on the property in question in good faith; (3) $2,640.00 would be reasonable to compensate Arthur Sanders for the value of improvements made upon the property in question; and (4) the rental value per month of the premises in question from February 13, 1962, until date of trial was $30.00 per month.

Irene Hunt was a feme sole at the time she acquired the title in fee simple to the land in controversy by deeds dated March 24, 1936, and August 7, 1937. She died testate February 12, 1962. Her only heirs at the time of her death were her brother, Ernest M. Dunlap, and her sister, Rita Alma Griffith. Her will was dated July 8, 1961, and was duly admitted to probate. Under its terms she devised all of her property to her brother. Although Ernest M. Dunlap and Sanders each made application to be appointed administrator with the will annexed of the estate of Irene Hunt, the probate court appointed Herbert Journeay who duly qualified as such. From this order, Sanders appealed to the district court of Orange County but dismissed the appeal. Journeay qualified as administrator with will annexed on March 22, 1962. On February 25, 1963, the account for final settlement of the estate of Irene Hunt was approved by the court and he was ordered to deliver the estate of Irene Dunlap Hunt to Ernest Dunlap and upon compliance with such order, Journeay was discharged as administrator with will annexed.

Appellant Sanders’ first point of error is the trial court erred in granting judgment non obstante veredicto and denying appellant’s good faith claim for improvements awarded by the jury. The trial court found that the jury’s findings in answer to special issues 2 and 3 should be disregarded on the ground that there was no evidence to raise such issues or sustain the findings of the jury thereon, and for other reasons.

Rule 418, Texas Rules of Civil Procedure, provides that a point of error is sufficient if it directs the attention of the court to the error relied upon. Missouri-Kansas-Texas RR Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931 (1956), held that this rule refers to the particular error relied upon. Discovering from the evidence the facts upon which appellant relies is not the duty of this court. Appellant directs our attention to no evidence as to when the improvements were made, the value of the property without the improvements, the value of the property with the improvements, or. that the improvements enhanced the value of the property in any amount. Further, special issue No. 3 is not an ultimate issue upon which judgment could be rendered. Accordingly, appellant’s first point of error is overruled.

Appellant’s points of error 2, 3, 4, and 5 will be considered together. They are as follows:

“2. The trial court erred in submitting special issue No. 4 concerning rent, because the form of the issue was a comment upon the weight of the evidence by the court.
“3. The trial court erred in submitting special issue No. 4, because there was no proper predicate at law laid for the submission of said issue.
“4. The trial court erred in submitting special issue No. 4, because special issue No. 4 was not framed in a manner that would allow the statutory offset as contemplated by the statutes of the State of Texas.
“5. The trial court erred in refusing to allow any finding on special issue No. 4 to be offset against the jury’s finding on the claim for improvements as contemplated by the statutes of the State of Texas.”

It is undisputed that appellant occupied and used the premises in question from February 13, 1962 until the time of trial. Proof was made of the rental value of the property far in excess of the amount allowed by the jury. Appellant at no time disputed or contradicted the evidence on rental value of the property offered by appellee. All evidence was that it had a rental value. The only objection to the charge as to special issue No. 4 made by appellant was “and there is no issue inquiring or stating any grounds or in any way making a finding that the plaintiff is entitled to any rental.” Under T.R. C.P. Rule 805 there can be no question but that appellee from the date of Irene Hunt’s death was entitled to damages against appellant for the use and occupancy of the premises subsequent to her death. The answer of the jury to special issue No. 1 was the proper predicate for the submission of special issue No. 4.

Appellant’s points of error are each overruled.

Judgment of the trial court affirmed.


author: PHILLIPS, Justice.

text:
    STATE BOARD OF INSURANCE et al., Appellants, v. SOUTHWEST GENERAL INSURANCE COMPANY, Appellee.
    No. 11375.
    Court of Civil Appeals of Texas. Austin.
    March 23, 1966.
    Rehearing Denied April 13, 1966.
    Waggoner Carr, Atty. Gen., Hawthorne Phillips, First Asst. Atty. Gen., T. B. Wright, Executive Asst. Atty. Gen., Paul W. Phy, Ralph R. Rash, Asst. Attys. Gen., for appellants.
    Kuykendall & Kuykendall, F. L. Kuyken-dall, Austin, for appellee.
   PHILLIPS, Justice.

This is a suit for a declaratory judgment. The Southwest General Insurance Company, a Texas corporation engaged in the fire and casualty insurance business and the ap-pellee here, brought suit against the State Board of Insurance, the State Treasurer and the Attorney General, hereinafter referred to as appellants, asking the court to declare that an investment in excess of one million dollars in shares of stock of a Delaware corporation constituted an investment in “Texas securities” as that term is used in Article 7064, Vernon’s Ann.Civ.St. It further asked the court to declare that it was entitled to give effect to such investment in computing the amount of gross receipt taxes it owed the State for the years 1962 and 1963. Both parties filed motions for summary judgment. Appellee prevailed and judgment was rendered against appellants for said taxes, paid under protest, in the sum of $16,223.09, plus interest and costs.

We reverse the judgment of the trial court and render judgment for appellants.

Appellants are before this Court with eighteen points of error, however, inasmuch as we sustain their first two, we need not discuss the others. Appellants’ first two points of error are that of the trial court in overruling appellants’ cross motion for summary judgment on the ground that the record showed as a matter of law that appellee had invested, not in Texas securities, but rather in Delaware securities, which could not be considered as a tax reducing investment under Article 7064, V.C.S.; the error of the court in granting appellee’s motion for summary judgment, there being no showing that appellee had invested in “property in this State.”

There is no dispute as to the facts of this case. Appellee is a Texas insurance company which had purchased 81,780 shares of stock in a Delaware corporation called the San Antonio Corporation at a cost in excess of one million dollars.

Article 7064, V.C.S., imposes a gross receipts tax on insurance companies such as appellee, however, a graduated reduction in taxes is allowed under certain circumstances, not necessary to this opinion, proportioned on its investment in Texas securities. Article 7064 defines Texas securities as follows:

“For the purposes of this Act, Texas securities are defined as real estate in this State; bonds of the State of Texas; bonds or interest bearing warrants of any county, city, town, school district or any municipality or subdivision thereof which is now or may hereafter be constituted or organized and authorized to issue bonds or warrants under the Constitution and laws of this State; notes or bonds secured by mortgage or trust deed on property in this State insured by the Federal Housing Administrator; the cash deposits in regularly established national or state banks or trust companies in this State on the basis of average monthly balances throughout the calendar year; that percentage of such insurance company’s investments in the bonds of the United States of America, that its Texas reserves for the unearned premiums and loss reserves as may be required by the Board of Insurance Commissioners, are of its total reserves; but this provision shall apply only to United States Government bonds purchased between December 8, 1941, and the termination of the war in which the United States is now engaged; in any other property in this State in which by law such insurance carriers may invest their funds." (Emphasis added.)

The controversy here centers around the italicized clause.

It is undisputed that the San Antonio Corporation is a Delaware corporation, its principal office and place of business is in Dallas; that it has paid dividends continuously with the exception of one year 1943-44, from 1942 to the present year; that it has paid over four million dollars in dividends during this time; that all of the property and assets of the San Antonio Corporation, except a small bank account, are physically located in Texas; that at all times since purchasing the stock in the San Antonio Corporation, appellee has physically kept the stock certificates in Texas.

Appellee contends that the “property” alluded to in the italicized portion of the statute set out above is defined by Article 2.10 of the Texas Insurance Code, V.A.T.S. which provides, in part, as follows:

“No company except any writing life, health and accident insurance, organized under the laws of this state, shall invest its funds over and above its minimum capital and its minimum surplus, as provided in Article 2.02, except as otherwise provided in this Code, in any other manner than as follows:
* * *
S. In the stocks, bonds, debentures, bills of exchange or other commercial notes or bills and securities of any solvent dividend paying corporation at time of purchase, incorporated under the laws of this state, or of any other State of the United States, or of the United States, which has not defaulted in the payment of any of its obligations for a period of five (5) years, immediately preceding the date of the investment; * * * provided further:
(a) Any such insurance company may invest its funds over and above its minimum capital stock, its minimum surplus, and all reserves required by law, in the stocks, bonds or debentures of any solvent corporation organized under the laws of this state, or of any other State of the United States, or of the United States.”

No prior decisions control the question presented here. Appellee’s position was rejected by the State Board of Insurance as do we.

The definition of Texas securities in Article 7064 set out above, refers throughout to real estate in this State, bonds in this State, bonds or interest bearing warrants of counties, towns, cities, school districts or any municipality or subdivision thereof located in this State; notes or bonds secured by mortgage or trust deed on property in this State; cash deposits in national or state banks or trust companies in this State and certain bonds of the United States. Then we come to the clause in controversy.

Article 2.10 has no application here. This article refers to investments that companies may lawfully make. Here such investments are not limited to property located within the State such as the property delineated in Article 7064. Article 7064 describes property that may be used as the basis of a tax exemption. Any other construction would do violence to the purpose of this statute and certainly to the rule of ejusdem generis. This rule, used as an aid to statutory construction, is that where general words follow an enumeration of persons or things described by words of a specific and particular meaning, such general words are not to be construed in their widest or broadest meaning, but are to be held as applying only to the persons or things of the same general kind or class as those specifically mentioned. See 53 Tex.Jur.2d 221, Sec. 155 and the cases there cited.

Certificates of stock have been held not to be property. Stock certificates are not property but are only evidence of the interest of the stockholder in the corporation. Greenspun v. Greenspun, Tex.Civ.App., 194 S.W.2d 134, affirmed, 145 Tex. 374, 198 S.W.2d 82; Yeaman v. Galveston City Company, 106 Tex. 389, 167 S.W. 710.

The facts here also bring into application the rule that inasmuch as Article 7064 is a tax statute, any exemptions must be clearly stated and are not to be extended by implication. See City of Longview v. Markham-McRee Memorial Hospital, 137 Tex. 178, 152 S.W.2d 1112.

We reverse and render the judgment of the trial court in that appellee take nothing by its suit.

Reversed and rendered.