author: CADENA, Justice.

text:
    SEGUIN INDEPENDENT SCHOOL DISTRICT et al., Appellants, v. Jane W. BLUMBERG et al., Appellees.
    No. 14441.
    Court of Civil Appeals of Texas. San Antonio.
    April 13, 1966.
    Rehearing Denied May 11, 1966.

      J. C. Hinsley, Austin, for appellants.
    Denver E. Perkins, Gonzales, Edgar En-gelke, Seguin, for appellees.
   CADENA, Justice.

Appellees, Jane W. Blumberg, individually and as independent executrix of the estate of H. H. Weinert, deceased, and Hilda B. Weinert, a widow, filed this suit against appellants, Seguin Independent School District, its Board of Trustees, and its Assessor and Collector of Taxes, to set aside assessments placed on appellees’ lands for 1964 property tax purposes by the school district’s board of equalization. Appellants filed a cross-action for the taxes due under such assessments.

The trial court rendered summary judgment setting aside the assessments and ordering the school district to accept, in full payment of the 1964 taxes, the amounts tendered by appellees on the basis of the valuations contained in their sworn renditions. In addition, appellants were enj oined from attempting to collect taxes based on the cancelled assessments.

On April 16, 1964,. appellees handed to the tax assessor their sworn renditions of the lands herein involved. These renditions, which were based on a valuation of approximately $6.00 an acre, declared the value of the Blumberg and Weinert lands, for tax purposes, to be $14,460.00 and $69,500.00, respectively. The assessor received the renditions without expressing any objection to, or disagreement with, such valuations.

Subsequently, the board of equalization notified appellees in writing to appear before the board on June 18, 1964, at which time the board would “hear cause” why the valuation of the Blumberg lands should not be raised to $48,190.00, and that of the Weinert lands to $224,930:00. The depositions of the members of the board of equalization make it apparent that the proposed increases in valuation were based on the theory that no land within the school district had a reasonable cash market value of less than $50.00 an acre. Since it was the practice of the school district to assess land at 40% of its cash market value, the result of the application of this theory was that no land would be assessed at less than $20.00 per acre. All lands which, like the Blumberg and Weinert lands, had been assessed in the past at a lower figure were to be assigned an assessed valuation of $20.00 an acre for 1964 tax purposes.

Appellees, through their agents, appeared before the board and protested the proposed increases. While there was a general discussion concerning the valuation of the lands for tax purposes, no sworn testimony was heard by the board. Some time after this meeting appellees were notified that the proposed increases had been adopted by the board.

The school district began collecting its taxes on October 1, 1964. On November 12, 1964, appellees made an unconditional tender of amounts based on the valuations contained in their renditions, in payment of 1964 taxes. The tax assessor-collector refused such tender, and on that same day this suit was filed. The amount previously tendered was deposited in the registry of the court.

The first question we must consider is whether the failure of the tax assessor to disagree with the valuations contained in appellees’ renditions made such valuations conclusive, disabling the board of equalization to increase such valuations.

Article 7211 provides that if an assessor is satisfied with a person’s rendition of property for taxation, he shall list the same accordingly. If, however, the assessor disagrees with the value set out in the rendition, “he shall at once place on said rendition opposite each piece of property so rendered an amount equal to the reasonable cash market value of such property at the time of its rendition, * *

Art. 7211 is a part of Title 122. The language of the statutes found in Title 122 makes it apparent that such statutes were designed primarily to regulate the assessment and collection of State and county taxes. On matters of taxation, independent school districts, cities and towns are governed generally by the provisions found in Chapter 5 of Title 28. Blewett v. Richardson Independent School Dist., 240 S.W. 529 (Tex.Com.App., 1922). Appellees insist, however, that Article 7211 controls the actions of school district assessors because Art. 1060a, which is a part of Title 28, Chapter 5, recites that the provisions of Title 122 “are made available * * * to all school districts and municipal corporations * * This argument disregards the fact that Article 2791 expressly recites that school district assessors “shall have the same power and shall perform the same duties * * * that are conferred by law upon the assessor and collector of taxes in and for any incorporated city, town or village, * * Under Article 2791, then, it is plain that the procedures to be followed by school district assessors are to be found in Title 28, Chapter 5, rather than in Title 122. Blewett v. Richardson Independent School Dist., supra; Republic Insurance Co. v. Highland Park Independent School Dist., 141 Tex. 224, 171 S.W.2d 342, 347 (1943). Title 28, Chapter 5, contains no provisions requiring that the tax assessor object to, or disagree with, the valuations contained in the taxpayer’s rendition.

Even if it be assumed that Art. 7211 is applicable to this case, the inaction of the school district’s assessor would not have the effect for which appellees contend, nor are the powers of boards of equalization as circumscribed as appellees would have us hold. Even under the provisions of Title 122, a board of equalization has the power, on its own motion and without awaiting complaint from the tax assessor or from any other person, to raise assessments even where the taxpayer has filed a sworn rendition which was accepted without objection by the tax assessor. Brundrett v. Lucas, Tex.Civ.App., 194 S.W. 613, wr. ref.; Feld-man v. Bevil, Tex.Civ.App., 190 S.W.2d 157, wr. dism., w. o. m.

As we view the record in this case, it establishes conclusively that the board of equalization, in raising the valuation of ap-pellees’ lands, heard no sworn testimony from any source. It is the contention of appellants, supported by affidavits and depositions of the members of the board of equalization, that the members of the board had available information which supported their determination of the question of value. There are decisions to the effect that the members of a board of equalization may consider their own experience and knowledge of the particular property and of values generally. See Exporters & Traders Compress & Warehouse Co. v. City of Marlin, Tex.Civ.App., 130 S.W.2d 860, wr. dism., j. c. However, we believe that the better-reasoned decisions are those which hold that, where the owner has filed a sworn rendition, the board of equalization must, before it increases the valuation, hear testimony under oath as to the proper valuation of the property, unless the taxpayer, by failing to appear in response to notice, waives this requirement. Brundrett v. Lucas, supra; Wells Independent School Dist. v. St. Louis Southwestern Ry. Co., Tex.Civ.App., 324 S.W.2d 442, wr. ref., n. r. e.; Bexar County v. Humble Oil & Refining Co., Tex.Civ.App., 213 S.W.2d 882, wr. ref., n. r. e.; Earnest v. Standefer, Tex.Civ.App., 54 S.W. 228, no wr.

Appellants seek to distinguish such holdings on the ground that all such cases involve instances where the protesting taxpayer, at the board hearing, offered sworn testimony in support of his rendered valuation, and in which the board, without producing evidence in support of its own valuation, merely disregarded the taxpayer’s testimony. Since, in this case, appellees produced no sworn testimony at the hearing, appellants insist that the board was under no duty to hear any sworn evidence. The effect of appellants’ contention would be to place upon a rendering taxpayer, at a hearing where a board of equalization is considering an increase in the valuation, the burden of coming forward with sworn testimony in support of his rendition. We do not believe that the statutes, or the cases which appellants seek to distinguish, contemplate the imposition of such a burden upon the taxpayer. At the hearing before the board, the proper valuation is prima facie established by the sworn rendition, and the board cannot fix the valuation any higher without producing evidence to establish the prima facie case established by such rendition. McGinnis v. Northwest Independent School Dist., Tex.Civ.App., 294 S.W.2d 154, wr. ref., n. r. e.

The action of the board of equalization in raising the valuation of appellees’ lands without hearing sworn testimony was, therefore, invalid.

However, even though the board of equalization acted illegally, the trial court erred in rendering summary judgment for appellees. Appellees’ petition contains no allegations, nor did appellees file any affidavits or produce other evidence, indicating the actual reasonable cash market value of their lands. On the other hand, the school district filed affidavits reciting that the reasonable cash market value of the lands was equal, at least to the amounts which were used as a basis for the assessments adopted by the board. In this state of the record, it is apparent that appellees, having waited until the school district’s taxation program for the year 1964 had been put into operation and the school district had been collecting 1964 taxes for more than six weeks, failed to discharge their burden to show substantial injury as a result of the board’s action. Milligan v. Corsicana Independent School Dist., Tex.Civ.App., 381 S.W.2d 97, wr. ref., n. r. e.

The applicable rule is stated in Whelan v. State, 155 Tex. 14, 282 S.W.2d 378, 380 (1955), as follows: “But the mere fact that taxing authorities arbitrarily disregard the true and legal basis of arriving at assessed valuations does not, of itself, entitle a litigating taxpayer to relief. To be entitled to relief he must also show that the arbitrary or unlawful plan or scheme of arriving at assessed valuations resulted in substantial injury to him. * * * City of Arlington v. Cannon, 153 Tex. 566, 271 S.W.2d 414, 417.” See also Milligan v. Corsicana Independent School Dist., supra; Montgomery County v. Humble Oil & Refining Co., Tex.Civ.App., 245 S.W.2d 326, wr. ref., n. r. e.

Appellees contend that the “substantial injury” rule applies only where complaint is being made that the taxing agency has assessed according to a “plan” or “scheme” which is fundamentally erroneous, and the rule is inapplicable here. In support of their contention, appellees rely on Wells Independent School District v. St. Louis Southwestern Ry. Co., supra, wherein the Texarkana Court apparently held that where the board of equalization has raised the taxpayer’s valuation without hearing evidence, there is substantial injury as a matter of law. In so holding, the Court relied on the conclusion of the Supreme Court in State v. Whelan, supra, that the taxpayer was entitled to introduce testimony which tended to show that he had, in fact, suffered injury as the result of the board’s invalid action. It is difficult to understand how a holding that a litigating taxpayer is entitled to introduce evidence showing substantial injury can support the conclusion that he can succeed in his suit without showing such injury.

The precise question before us was considered by the Commission of Appeals in Zachry v. City of Uvalde, Tex.Com.App., 42 S.W.2d 417 (1931). There, as appears from the opinion of the Court of Civil Appeals (24 S.W.2d 517, 518), the taxpayer had rendered the property for taxation. His principal complaint before the Commission of Appeals was that the board, in raising his rendered valuation, had acted “arbitrarily and unfairly” in that no investigation had been made as to the reasonable market value of the property. In holding that the taxpayer was not entitled to relief, the Commission of Appeals said that the valuation placed on the property by the board could not be “set aside merely because at the time it was made the board of equalization made no investigation as to the value of the property.” Before the taxpayer may complain, he must show that his property “has been valued unfairly or in excess of the value of other property similarly situated.” Since the evidence in the case merely showed that the taxpayer, when notified of the proposed increase in valuation, filed a written protest and asked the board to investigate, “the presumption will be indulged that the board of equalization discharged its duty by placing a fair value” upon the property. 42 S.W.2d at p. 419.

The decision in Montgomery County v. Humble Oil & Refining Co., supra, also supports our conclusion. There, after Humble had rendered its property for taxation, and in the absence of any disagreement on the part of the tax assessor, the board of equalization raised the valuation of the Humble properties. Humble complained that the board, in reaching its decision, disregarded all of the evidence adduced during the hearing before the board. The trial court held that the board’s action was invalid, and enjoined the collection of taxes based on such increased valuation. The Court of Civil Appeals dissolved the injunction, holding that, in the absence of evidence as to the fair market value of the property involved, there was no proof that Humble had been injured.

It is true that the application for writ of error in the Montgomery County case was stamped “Refused, no reversible error,” but, as the Supreme Court pointed out in State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569 (1954), the only question presented in the application concerned the necessity of showing injury. It follows, therefore, that the application could not have been refused unless the Supreme Court agreed that the burden rested on Humble to make proof of injury by showing the market value of its properties. 265 S.W.2d at p. 575.

The situation in the Montgomery County case was strikingly similar to the circumstances of this case. The property owner had rendered, and the rendition had been accepted by the tax assessor without objection. The board of equalization then, without producing testimony in support of its action, raised the rendered valuation. The result of this raise in valuation was that the Humble properties were assessed at between 20% and 25% of their market value, while all other properties were assessed at from 10% to 15% of their market value. Here, appellees contend that the result of the board’s action was to value their lands, for tax purposes, at 40% of their market value, while other lands were assessed at 15% of their market value. The only distinction between the two cases is that in the Montgomery County case the board disregarded the undisputed testimony as to the market value of the Humble lands, while here the board heard no testimony whatever. Unless we are to hold that action in the absence of testimony is somehow more reprehensible than action which disregards all testimony, the distinction is immaterial. In either case, the action of the board is without support in the evidence.

It is apparent that in this case the board of equalization acted in the same manner as did the board in Montgomery County. Here the board adopted a “plan or scheme” under which all land within the district which had been previously assessed at less than $20.00 an acre would be assigned a taxable value of $20.00 per acre. The result of the adoption of this plan was to assess appellees’ lands at a higher percentage of market value than was applied to other lands. In Montgomery County the board singled out oil properties for separate treatment and assigned to them an assessed valuation based on a higher percentage of market value than that used as a basis for assessing other properties. It is not necessary, in order to have an invalid “plan or scheme,” that the fundamental error inherent in the plan permeate and render invalid all assessments. The assessment of different classes of property at different percentages of market value constitutes a fundamentally erroneous general plan of taxation. City of Arlington v. Cannon, 153 Tex. 566, 271 S.W.2d 414 (1954).

The trial court also erred in holding that the school district was bound to accept payment of taxes calculated on the basis of the valuation set out in appellees’ renditions. The holding of the trial court finds support in the following language from State v. Richardson, 126 Tex. 11, 84 S.W.2d 1076, 1078 (1935): “It is well settled that if a rendition of property be made by the owner, and if the board of equalization by adopting some arbitrary standard, or by failing to hear evidence, or in some other respect fails to follow the provisions of the statute * * *, fixes a value that is illegal and is afterwards set aside, the taxpayer’s original rendition prevails as a basis upon which taxes are to be paid.”

The precise holding in Richardson, to the effect that in a suit for the collection of taxes, if the valuation set by the board of equalization is set aside, the taxpayer’s original rendition as a basis upon which taxes are to be paid, was expressly overruled in Electra Independent School Dist. v. W. T. Waggoner Estate, 140 Tex. 483, 168 S.W.2d 645 (1943).

Appellees contend that the Richardson rule is still applicable to suits which seek to enjoin the collection of illegal taxes. The Supreme Court, in Republic Ins. Co. v. Highland Park Independent School Dist. of Dallas County, 129 Tex. 55, 102 S.W.2d 184 (1937), cited the Richardson language with apparent approval. The Republic case was, like this case, a suit to enjoin the collection of taxes, and the Court approved the action of the trial court in holding that the taxpayer’s rendition was the basis for the collection of taxes where the hoard of equalization had acted illegally. Republic was decided prior to the decision in Electra. Further, the statement concerning the effect of the rendition was unnecessary to the decision in the case, since the taxing agency was ordered to accept payment of taxes on the basis of the taxpayer’s rendition which had been properly approved by the board of equalization. The vice in Republic lay in the fact that, after the rendition had been approved by the board of equalization, the taxing agency had sought to increase the valuations fixed by the board. It was this increased valuation, not made by a duly constituted board of equalization, which was set aside.

In Electra, the Supreme Court, after noting that the only authorities cited in Richardson in support of the holding concerning the finality of a rendition were suits to enjoin the collection of illegal taxes, said: “Whether such a rule is properly applied in an injunction case we need not now determine.”

To permit reassessment by the taxing agencies in this case would work no greater hardship on the taxpayer than does the rule, approved by the Supreme Court, which allows such reassessment where the suit is one for the collection of delinquent taxes. There is nothing inherent in the nature of an injunction suit which compels giving to the rendition a finality and conclusiveness which it does not enjoy in a suit for the collection-of taxes.

The latest case which we have found concerning the right of the taxing agency to reassess where the collection of- taxes illegally assessed has been enjoined is Nelson v. Blanco Independent School Dist., Tex.Civ.App., 390 S.W.2d 361, no writ. There the Court, after holding that the taxpayer was entitled to a permanent injunction restraining the collection of taxes illegally assessed, expressly said that the judgment would be without prejudice to the right of the school district “to again assess and value the property of appellants in accordance with law and to collect such taxes as may be due thereon.” 390 S.W.2d, p. 367.

Art. 7346 gives to taxing agencies, whenever any assessment has been held invalid for any reason by a district court in a suit to enforce the collection of taxes, the right to re-assess the property in question. In this case, at the time appellees’ motion for summary judgment was heard, unpaid 1964 school district taxes had become delinquent, and the school district, by amended pleadings, had filed a cross-action seeking recovery of the taxes in question. We have before us, then, a case which is both a suit for the injunction of the collection of taxes and a suit for the collection of such taxes. Nothing could be gained from an attempt to determine whether this case partakes more of the nature of a tweedledum or a tweedledee. The fact that appellees arrive at the courthouse before the school district cannot be made determinative, since the 1964 taxes did not become delinquent until February 1, 1965. Under these circumstances, it must be concluded that this case is a “suit to enforce the collection of taxes” within the meaning of Art. 7346.

The judgment of the trial court is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

      . All statutory references are to Vernon’s Annotated Civil Statutes.


source: Caselaw Access Project

author: FANNING, Justice.

license: Public Domain

text:
    BUFFALO INSURANCE COMPANY, Appellant, v. Jimmy W. McLENDON, Appellee.
    No. 7705.
    Court of Civil Appeals of Texas. Texarkana.
    April 19, 1966.
    Rehearing Denied May 10, 1966.

      Larry L. Gollaher, Thompson, Coe, Cousins & Irons, Dallas, for appellant.
    H. J. Yarborough, Yarborough, Yarbor-ough & Johnson, Dallas, for appellee.
   FANNING, Justice.

The opinion of March IS, 1966, is withdrawn and the following opinion is rendered.

A workmen’s compensation case. In response to special issues a jury found to the effect that appellee was injured in the course of his employment resulting in the total and permanent incapacity to his right eye. Based upon the jury’s verdict and other facts which were undisputed, the trial court rendered judgment for plaintiff-ap-pellee for $35.00 per week for 100 weeks and allowed defendant-appellant credit for $744.10 theretofore paid plaintiff-appellee. Defendant-appellant’s motion for new trial was overruled and it has appealed.

Appellant contends that appellee did not perfect an appeal from the award of the Industrial Accident Board and that it had paid the Board’s award and that plaintiff-appellee had accepted the Board’s award. Appellant also contends to the effect that the trial court erred in denying it a jury trial on the questions as to whether the suit was timely instituted and prosecuted by plaintiff and as to whether plaintiff accepted the Board’s award by accepting and cashing the drafts hereinafter referred to.

The primary question involved on this appeal is whether the district court had jurisdiction to try the cause. The trial court held that it had jurisdiction as a matter of law and submitted no issues to the jury with reference to jurisdictional facts.

The award of the Industrial Accident Board was rendered Nov. 8, 1962. Appel-lee’s notice of appeal from the award was filed with the Board on Nov. 20,1962. Suit by plaintiff-appellee to set aside the award of the Board was filed with the District Clerk of Dallas County, Texas, on December 5, 1962. Citation was issued by the District Clerk on Jan. 2, 1963, and was served on defendant-appellant on Jan. 4, 1963. At the time of filing suit plaintiff-appellee’s attorney MacMaster made a $10.00 deposit for costs with the District Court. On Dec. 29, 1962, MacMaster received a letter from Rainwater, head of defendant-appellant’s claim department, in which were enclosed two drafts, one to Jimmy W. McLendon for $483.73 and one to attorney MacMaster for $85.00, the letter stating that it was “as ordered in the IAB’s award of November 8, 1962,” and that the enclosures were “forwarded, in view of the fact no appeal has been perfected within the time required following the filing of the notice of intention to appeal.” However, the drafts were not in accordance with the award of the Board inasmuch as the Board’s award provided for a stipulated portion of its award to be paid in weekly installments, while the drafts paid a lump sum. MacMaster, on Dec. 31, 1962, paid an additional $5.00 costs to the clerk, as required by the clerk, for the issuance of citation, and the citation was issued on Jan. 2, 1963, and served on defendant-appellant on Jan. 4, 1963-, On Feb. 1, 1963, the two drafts above described were deposited for collection by plaintiff-appel-lee and attorney MacMaster and were paid about 5 days later. The trial court did not in any way authorize a compromise settlement of the cause by the method of the payment of the drafts in question or in any other manner.

Article 8307, Sec. 5, Vernon’s Ann.Civ. St. reads in part as follows:

“ * * * Any interested party who is not willing and does not consent to abide by the final ruling and decision of said Board shall, within twenty (20) days after the rendition of said final ruling and decision by said Board, file with said Board notice that he will not abide by said final ruling and decision. And he shall within twenty (20) days after giving such notice bring suit in the county where the injury occurred to set aside said final ruling and decision, * * *.
If any party to such final ruling and decision of the Board, after having given notice as above provided, fails within said twenty (20) days to institute and prosecute a suit to set the same aside, then said final ruling and decision shall be binding upon all parties thereto; *

In Ocean Accident & Guaranty Corporation v. May, Tex.Com.App., 15 S.W.2d 594 (1929) it was stated:

“The Court of Civil Appeals seems to lay stress on the provision of section 5 of article 8307, R.C.S.1925, which provides : ‘If any party to any such final ruling and decision of the hoard, after having given notice as above provided, fails within said 20 days to institute and prosecute (italics ours) a suit to set the same aside, then said final ruling and decision shall be binding upon all parties thereto,’ etc.
“In our opinion the filing of the petition with the clerk of the proper court, with the bona fide intention that process shall be issued and served at once, is all that is necessary to comply with the statute. It is true that the statute says that if the party fails to institute and prosecute the suit within 20 days the ruling and decision of the board shall be final; but we think that the party appealing from the rulings and decision of the board has complied with this statute when he files his petition in the proper court with the bona fide intent that citation shall issue and be served at once upon the defendants. Ricker v. Shoemaker, 81 Tex. 22, 16 S.W. 645. We think further that the word prosecute used after the word institute, in the statute means nothing more than as above held by us. This interpretation is fully justified and substantiated by the provisions appearing in the same article before the above-quoted provision, to the effect, ‘and he shall within twenty days after giving such notice bring suit in the county where the injury occurred,’ etc. In other words, the provision, ‘institute and prosecute,’ and the words ‘bring suit,’ as used in section 5 of article 8307, R.C.S.1925, mean the same thing. There is no showing that the Guaranty Corporation did anything to delay the issuance or service of citation herein.” (Emphasis added.)

In Powers v. Temple Trust Co., Tex.Com.App., op. adopted by Sup.Ct., 124 Tex. 440, 78 S.W.2d 951 (1935) it was stated:

“There is no evidence that plaintiff in error filed this suit without a bona fide intention that process be promptly issued and served, and no evidence that the delay in the issuance of citation was attributable to him. In the absence of proof it will not be presumed that the delay in the issuance of citation was at his direction. The suit was filed when the petition was filed with the clerk. The statute imposes upon the clerk the duty of issuing the citation promptly. Tribby v. Wokee, 74 Tex. 142, 11 S.W. 1089; R.S.1925, art. 2021.”

The case of Maryland Casualty Company v. Jones, Tex.Com.App., op. adopted by Sup.Ct., 129 Tex. 392, 104 S.W.2d 847 (1937), was a case where the trial court held that it had jurisdiction as a matter of law and submitted no issues to the jury with reference to the jurisdictional facts in a workmen’s compensation case involving jurisdictional questions similar to the questions raised in the case at bar. The principal facts in said case are as follows:

The Industrial Accident Board rendered its award on June 20, 1932; employee filed notice of appeal therefrom with the Board on July 7, 1932. On July 21, 1932, plaintiff’s attorney Brown mailed the District Clerk of Lubbock County his petition together with a letter stating “you need not issue service on this petition as a waiver will be entered. Please advise when this has been filed. Costs of court will be forthcoming.” The petition and letter were received by said clerk on July 23, 1932. On July 29, 1932, Mays, an attorney acting for attorney Brown, wrote a letter to an adjuster for Maryland Casualty Company wherein he informed said adjuster that attorney Brown was away on vacation but had requested him to write and ask if service would be waived in the suit. On Aug. 1, 1932, said adjuster wrote attorney Mays that process would not be waived. Attorney Brown had gone on vacation to California and did not return until August 25, 1932. He then instructed the clerk to issue citation, which was done immediately. It thus appears that issuance of citation was withheld at the request of the employee’s attorney from July 23, 1932 until August 25, 1932, a period of 33 days.

We quote in part from the court’s opinion in Maryland Casualty Company v. Jones, supra, 104 S.W.2d 847, as follows:

“This suit arose under the Workmen’s Compensation Law (Vernon’s Ann.Civ. St. art. 8306 et seq.). The only question presented for decision is whether the district court had jurisdiction to try the cause. The trial court held that it had jurisdiction as a matter of law and submitted no issues to the jury with reference to jurisdictional facts. Upon appeal the Court of Civil Appeals reversed the trial court’s judgment and remanded the cause for the purpose of having issues submitted to the jury, the answers to which would determine whether the court had jurisdiction. 73 S.W.2d 668. The employee acquiesced in the judgment of reversal and filed no application for writ of error. The application of the Casualty Company was granted on the conflicts alleged. * * *
“In the May Case, supra, the court was not dealing with a question of waiver, and the language there employed must be understood in the light of the question presented.
“Adapting that language to the situation brought about by the facts of this case so as to take account of the right of a plaintiff to have a waiver substituted for a citation and service, we hold that a party appealing from an award by the board has complied with the statute when he files his petition in the proper court with the bona fide intent that a waiver of the issuance and service of citation will be procured and filed without delay, failing in which he will request that citation issue at once. Of course, there must be a bona fide intention to- prosecute the suit, which must be evidenced by acts of the party filing same,, an undisclosed intention not being sufficient.
“In the instant case it clearly cannot be held, as a matter of law, that the employee had no bona fide intention to prosecute his suit at the time he filed hfs petition. It is our view that the. trial court properly held that, as a matter of law, it had acquired jurisdiction of the cause, but since the employee has filed no application for writ of error, we are not authorized to reverse the judgment of the Court of Civil Appeals.” (Emphasis added.)

Also in the case of Traders & General Insurance Co. v. Spillers, 88 S.W.2d 738, writ refused (Tex.Civ.App.1935), a workmen’s compensation case, it was held that plaintiff’s failure to secure issuance of citation for some 3½ months after filing petition to set aside an award of the Industrial Accident Board was not a failure to “institute and prosecute” suit within the 20 day statutory period after giving notice of appeal from the Board’s award. Also plaintiff had not made any deposit for costs. His attorney testified that if the clerk had requested a cost deposit “he would have attended to the matter.”

We hold that the trial court correctly held as a matter of law that the court had acquired jurisdiction of plaintiff-appellee’s suit against the defendant-appellant and that there were no fact issues with respect to jurisdiction to be submitted to a jury.

Since plaintiff-appellee’s appeal had been duly perfected from the award of the Industrial Accident Board, as shown by the record in this cause, the award of the Board was “vacated and is no longer in force.” Zurich Gen. Acc. & Liab. Ins. Co. v. Rodgers, 128 Tex. 313, 97 S.W.2d 674 (1936).

The payment of the drafts in question did not amount to a “payment of the Board’s award” for two reasons: (1) since the appeal from the Board’s award had been duly perfected and the cause was pending in the District Court the Board’s award was “vacated and is no longer in force”; and (2) the drafts were not in accordance with the award of the Board inasmuch as the Board’s award provided for a stipulated portion of its award to be paid in weekly installments, while the drafts paid a lump sum.

The payment of the drafts in question also did not amount to a court compromise settlement because the same was not approved by the trial court. See Texas Employers’ Insurance Association v. Miller, Tex.Com.App., op. adopted by Sup. Ct., 137 Tex. 449, 154 S.W.2d 450 (1941).

Since the payment of the drafts in question did not constitute a payment of the award of the Industrial Accident Board, which award had been vacated by the perfection of appellee’s appeal to the District Court, and since the payment of the drafts in question was not approved by the trial court and did not constitute a lawful court approved compromise settlement of the case, it must be held that under the undisputed facts in this case that the payment of such drafts did not extinguish appel-lee’s rights under the Texas workmen’s compensation act. Of course the appelleee could not retain the proceeds of the drafts and also in addition thereto recover compensation in full for the loss of his eye; however, since the trial court in its judgment gave defendant-appellant credit for all compensation payments made to appel-lee, including the drafts in question, no harm has resulted to appellant by its payment of the two drafts in question.

Appellant’s points 1 through 4, inch, are overruled.

Appellant’s remaining points, 5 and 6, complain of certain jury arguments made by appellee’s counsel. The arguments in question are shown by bills of exception which bills are qualified by the trial court. After carefully examining the bills of exceptions, the qualifications made thereto by the trial court, and the entire record in the case, it is our view that reversible error is not presented by said points. Rule 434, Texas Rules of Civil Procedure. Appellant’s 5th and 6th points are overruled.

The judgment of the trial court is affirmed.


author: HUGHES, Justice.

text:
    Archie C. FITZGERALD, dba Archie C. Fitzgerald Construction Co., Appellant, v. Nicholas ANDRADE, Appellee.
    No. 11399.
    Court of Civil Appeals of Texas. Austin.
    April 20, 1966.
    Rehearing Denied May 11, 1966.

      McKay & Avery, Charlie D. Dye, Austin, for appellant.
    Byrd, Davis & Eisenberg, L. Tonnett Byrd, Tom H. Davis, Marion S. Roberts, Jr., Austin, for appellee.
   HUGHES, Justice.

This suit is for damages for personal injuries sustained by Nicholas Andrade, ap-pellee, on April 29, 1963, while working on the construction of the Ramada Inn in Brownsville, Texas. Appellant, Archie C. Fitzgerald, doing business as Archie C. Fitzgerald Construction Company, was general contractor for this construction and had control of the entire project. Dave DePue was his assistant superintendent and general carpenter foreman. One of his duties was to manage the carpenters employed on the job and the equipment used by them, and in performing these duties he was acting within the scope of his employment.

Appellee was a painter on this job. He was injured in a fall from a scaffold while engaged in painting some woodwork in the construction.

Two of appellant’s carpenters built this scaffold, and this was within the scope of their employment. No painter on the job built any scaffolds used on the job. This was not in their trade.

Appellant made a written contract with W. L. Hodges to do the paint work on the construction. Appellee worked under and for Mr. Hodges. Before any of the painters employed by Mr. Hodges used the scaffolds built by the carpenters, Mr. Hodges asked and obtained permission from such carpenters for such use. Mr. Hodges also obtained similar permission from Mr. De-Pue, appellant’s assistant superintendent.

Appellee was instructed by Mr. Hodges to use these scaffolds and was told by Mr. Hodges that he had obtained permission from the superintendent on the j ob for their use.

The painters employed by Mr. Hodges had been using these scaffolds for three or four days before appellee’s fall.

Trial was to a jury which returned a verdict favorable to appellee, and on this verdict, judgment was rendered for him.

Appellant’s first three points, jointly briefed, are to the effect that appellee in using the scaffolds was either a trespasser or licensee, or that there was an issue of faet as to Ms states, and that the court erred in not inquiring of the jury what his status was or that, as a matter of law, ap-pellee was a trespasser or licensee and was not entitled to recover on jury findings based on the standard of ordinary or reasonable care.

The contract between appellant and W. L. Hodges, under which the painting was done, was offered in evidence, but excluded. This contract provided that Mr. Hodges, appellee’s employer, should furnish all “rigging” and “scaffolds” necessary for the “complete installation” of the painting. Mr. Hodges did have scaffolds on the job for this purpose but they were not being used by appellee when he fell. The reason for this was, as the evidence shows, that it was the duty of the painters to paint molding which the carpenters were installing around or just under the eaves of the Inn as soon as it was installed. The painters simply followed the carpenters on the carpenters’ scaffold. Under the circumstances, it is easily understood why permission was obtained for the painters to use the carpenters’ scaffolds rather than tearing them down and putting up and using their own.

Mr. F. H. Kohutek, general manager for appellant, testified that his superintendent on the Ramada Inn job was Mr. D. T. Jordan and that he had given Mr. Jordan specific instructions not to permit the painters to use “the scaffolds.” Mr. Kohutek also testified that Mr. Dave DePue, the carpenter foreman, had no authority to authorize the painters to use the scaffolds.

It is our opinion that with or without the painting contract in evidence there is no evidence that appellee was other than an invitee when using the scaffold from which he fell. This conclusion follows from the application of well established rules of law to the undisputed facts.

Appellant as general contractor in control of the Ramada Inn construction was under a duty to use due care to provide for the safety of the employes of his subcontractors. Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 20 A.L.R.2d 853. In order to be entitled to this protection an employe must, however, not go beyond that portion of the premises which was designed for his accommodation or use. Burton Construction and Shipbuilding Co. v. Broussard, 154 Tex. 50, 273 S.W.2d 598.

It is quite true that a person may be an invitee as to certain portions of premises but not as to other portions of the same premises. Appellant would bring itself within this limitation on the general rule of liability above stated, contending that when appellee was on the “carpenters” scaffold he was not where it was anticipated he would be and was on premises not designed for his accommodation and use.

It is beyond question that appellee was at the proper place for doing the work he was hired to do. If he had lawful authority to use the carpenters’ scaffold all doubt as to his status as an invitee is removed. We are of the opinion that he had this authority.

Mr. David DePue testified that he was assistant superintendent or general carpenter foreman for appellant on this job. The scaffolds in question were built under Mr. DePue’s directions. He gave permission •for the painters to use the scaffolds.

We do not understand appellant, under these points, to contend that Mr. DePue was not acting within the scope of his authority when he gave permission for the painters to use the carpenters’ scaffolds. We, in any event, hold that he was, as a matter of law, so acting. Granting such permission was but exercise of sound judgment on a trivial matter in furtherance of the economic and expeditious construction of the Inn and in so doing Mr. DePue was about his master’s business. That such action may have been against his master’s instructions is of no consequence. Sid Katz, Inc. v. Walsh and Burney Co., 142 Tex. 232, 177 S.W.2d 49.

We overrule appellant’s first three points.

Appellant jointly briefs points four through twelve. We take from appellant’s brief its analyses of these points:

“Points of Error 4 through 12 are grouped for presentation inasmuch as they pertain to the action of the trial court in excluding testimony and in refusing requested special issues respecting vital defensive theories raised by the pleading and evidence in the case. By his first amended original answer defendant made allegations respecting his theory of the case on the following matters: (1) that there was some degree of risk inherent in the type work which plaintiff was performing (raising the defense that dangers inherent in the work are classified as ‘transitory dangers’ and ones as to which defendant would have no duty to plaintiff); (2) the affirmative defense of ‘volenti non fit injuria;’ (3) no duty in law concerning the scaffold from which plaintiff fell; (4) no duty inasmuch as the manner in which the scaffold was equipped and constructed was open and obvious; and, (5) contributory negligence of plaintiff in failing to make use of his employer’s scaffold.”

Appellee’s cause of action was, in part, based on allegations that an employe of appellant named Garcia removed scaffold boards near where he was working on the scaffold in such way that it caused the scaffold supports to move resulting in his fall, that this and Garcia’s failure to warn that he was about to move such board was negligence proximately causing his injuries.

The evidence shows that appellee and his co-worker, Wornell, were using only one scaffold board, whereas to the right and left of them the scaffolds were two boards wide. This single board on -which appellee was standing was to the outside edge of the scaffold support, leaving an open space between him and the second floor balcony. The eave of the Inn was about five feet above the scaffold board, and the molding which appellee was painting was in under the eave and it was necessary for appellee to stoop in order to paint it.

Appellant offered, by a competent witness, evidence of the following nature:

“(1) It is dangerous to work on a scaffold.
(2) It is hazardous to work on a scaffold and everybody recognizes this in the construction business.
(3) With respect to exterior scaffolds and based on his experience in the business, he would consider the simple act of working on a scaffold as involving the risk of injury from falling.
(4) The risk and danger in this connection is a known risk and one which is appreciated.
(5) The risk of working on a scaffold is something that in his opinion is open and obvious.
(6) He saw the scaffolds on this job and in his opinion the manner in which the supports were constructed was open and obvious.
(7) The manner in which the scaffold was equipped was, in his opinion, open and obvious.”

This evidence was excluded.

The trial court also excluded evidence of the witness Ernest Robertson that it was not safe for appellee and his co-worker to stand as close together as they stood on the scaffold, he having previously testified that he had seen them standing together talking and smoking cigarettes.

Appellant also here complains of the exclusion of the contract between it and Hodges to which we have made reference.

The jury found that the scaffold fell because of the negligence of appellant’s employe; that appellant’s employe, Garcia, moved the scaffold boards so as to cause the scaffold support to move; that Garcia failed to warn appellee that he was about to moye such boards.

The jury failed to find that appellant’s employes failed to provide adequate support for the scaffolds, or that such failure was a proximate cause of the scaffold falling. The jury also failed to find that such scaffolds were unsafe.

The jury also failed to find that appellee and his co-worker Wornell were standing more closely together than was reasonable and prudent.

The jury failed to find that appellee was negligent in failing to step from the scaffold to the balcony just before falling; also it failed to find that appellee’s failure to check the scaffold before climbing it was negligence.

Appellant sought submission of issues to the jury inquiring if appellee was negligent in using its scaffolds rather than those of Hodges; whether appellee working on the scaffold involved the risk of falling; whether appellee had knowledge of and appreciated this risk; whether appellee voluntarily assumed this risk; and, whether the manner in which the scaffold was equipped and constructed was open and obvious to ap-pellee.

We have previously discussed the failure of the trial court to admit in evidence the contract between Hodges and appellant. For the reasons previously given, we hold that if it was error to admit such contract, it was harmless error under Rule 434, Texas Rules of Civil Procedure.

We hold that it was not error to exclude the proffered opinion of the witness Robertson that appellee and his coworker were standing too closely together on the scaffold for their safety for the reason that the relevant facts were clearly before the jury and it was in an equal position with the witness to draw inferences. See McCormick and Ray, Texas Law of Evidence, 2nd Ed., Vol. 2, Secs. 1397-1400.

We hold that the trial court was not in error in refusing to submit to the jury issues pertaining to the defenses of “open and obvious” and “volenti” doctrines for the reason that they are inapplicable to the negligent acts of appellant’s employe, as alleged and as found by the jury. Hobbs v. Grant, 314 S.W.2d 351, Austin, writ ref., n. r. e., American Cooperage Company v. Clemons, 364 S.W.2d 705, Fort Worth, writ ref., n. r. e.

We add only that there is no evidence upon which a finding could be based that appellee knowingly assumed the risk of an employe of appellant pulling a board from under the scaffold board supports without warning.

There is no evidence to justify submission of an issue as to whether appellee was negligent in using the carpenters’ scaffolds instead of the painters’ scaffolds.

We overrule all the points under discussion. ■

Appellant jointly briefs points thirteen through sixteen.

These points are to the effect that there is no evidence that an employe of appellant named Garcia, within the scope of his employment, removed one of the scaffold boards as alleged or that he failed to give warning of such proposed removal.

We overrule these points. The following summary of the evidence, in our opinion, supports the jury findings in these respects.

“Ernest (Red) Robertson and Floyd (Curley) Wheatley both testified that they were employed by defendant as carpenters on the Ramada Inn job, and that they had assigned to them a Mexican helper named Garcia.
The evidence shows that Robertson and Wheatley had put up moulding along the north side of the building and were in the process of putting up moulding along the east side of the building when .plaintiff fell. Appellee and Wornell had been following Robertson and Wheatley painting the moulding as they were putting it up.
Garcia identified himself as the carpenter’s helper who was working for Curley (Wheatley) and Red (Robertson) and testified that they were the only people in the vicinity when the painters fell. He was also able to identify appellee as one of the painters who fell from the scaffold.
DePue verified the fact that other than the painters, appellee and Wornell, there were no laborers around the scaffold when it fell besides employees of the appellant. * ⅛ *
Wornell testified that while he and appellee were painting from the west toward the east on the north side of the building, a carpenter’s helper was picking up boards from behind them and taking them around and placing them in front of where the carpenters were working. As he and appellee would finish a section of scaffold, the helper would pick those boards up and put them in front of the carpenters, and that while they were about 20' from the east end of the building, the helper pulled one of the boards off of the scaffold behind them and paused the scaffold and them to fall. He saw this helper take hold of the board and jerk it, causing the scaffold to fall. While he didn’t know the helper’s name, he identified him as a Mexican boy who was working for the carpenters that they were following. Wornell further testified that while he was lying on the ground in pain between three and six minutes after the fall, that he told DePue and Hodges that the helper had pulled the scaffold boards and the brace had pulled loose, causing them to fall.
Appellee stated that after he fell, he saw a carpenter’s helper standing there with a board in his hand, and while they were lying there on the ground, he heard Wornell say to DePue that a carpenter’s helper pulled the board out. He also testified that the carpenter’s helper who was working near them at the time pulled a board on the scaffold.
Robertson testified that he and Wheat-ley had worked all the way down the north side of the building, had turned the northeast corner and were on the east side when the painters fell, and that after he and Wheatley had worked around to the east side of the building, that some of the scaffold boards were moved from the north side of the building to the east side. He testified that when the people would get through using a part of the scaffold, they would take the scaffold boards off of that part and put them around to the other end of the scaffold so they could move around the building. In other words, they would take the boards off of the scaffold in back of the painters and move them around in front of the carpenters.
Robertson testified that their helper (Garcia) was getting the boards from the scaffold on the north side and was moving them around to where they were working. He had told Garcia to get boards off of the scaffold they had finished using, and Garcia had gotten one board and brought it back and had gone again for another board just a few minutes before he heard the painters fall. He further testified that when the painters fell, their helper, Garcia, was on the north side (where the painters were) and that he was over there ‘getting me some scaffold boards.’
DePue verified that Garcia was taking the planks from behind the painters and putting them up in front of where the carpenters were working, and that he had been taking planks from several sections of the scaffold back of where the painters were working before they fell.
Hodges testified that at the time ap-pellee fell, about half or two-thirds of the scaffold boards along the north side of the building had already been removed.
It was stipulated that Garcia was at the time the painters fell an employee of defendant construction company and was working in the course of his employment at the time.”

Appellant jointly briefs points seventeen through twenty four.

These points raise the issue that the findings of the jury on the matters discussed under points thirteen through sixteen are not sufficiently supported by the evidence and that such findings are against the great weight and preponderance of the evidence.

We have set out the evidence from ap-pellee’s point of view in disposing of the preceding points contending there was no evidence to support these findings. Appellant relies upon the following evidence.

“In addition to Hodges as the painting sub-contractor, there were other trades on the job in the capacity of sub-contractors under defendant. The other trades also had their helpers and laborers. In fact, Hodges even had helpers on the job for his painters.
The testimony of the following witnesses :
Wornell— ‘ * * * (T)his helper that was carrying the boards, which the boards are overlapped on the places in this position, and he would pull these boards out. Well, when he pulled this board out, the brace pulled around and the boards dropped this way, and, of course, we were on them. * * * (T)he toy * * * pulled the outside board. ⅜ * * >
DePue — at the time of accident the painters remarked that ‘ * * * (A) laborer had jerked a plank out from under them.’
Andrade — He does not know what happened, how the scaffold brace broke, or what caused the brace to break. At the time of the accident he was looking up into the area he was painting.
Robertson — Garcia was his and Wheat-ley’s helper. He and Wheatley were on the backside, or east side, of the building when the accident occurred. He had sent Garcia to get some scaffold boards that were at least ‘30 or 40 feet’ from where plaintiff was working. He does not know what caused the accident to happen. The painters were at the northeast corner of the building when the accident occurred and as to the scaffold boards at this location ‘ * * * (N)obody ever touched them.’
Wheatley — At the time of the accident he, Robertson, and the helper Garcia were around the corner of the building.
Garcia — At the time of accident he was on the east or backside of the building. The painters were on the north side and he was on the east side of the building. He did not pick up any runboards in the area where plaintiff and Wornell were working; he did not pull any runboards out from underneath them; he did not touch any boards upon which they were standing; he did not touch any boards close to where they were standing.”

Considering all the evidence in the record we do not find the jury findings to be against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Neither do we find the evidence to be insufficient to support the findings in question. These points are overruled.

Appellant jointly briefs points twenty five through twenty eight.

These points complain of the action of the trial court in submitting to the jury issues based on general negligence of appellant under the doctrine of res ipsa loqui-tur.

The jury found that the scaffold fell because of the negligence of employes of appellant and that this negligence was the proximate cause of appellee’s injuries.

Since there were findings by the jury of specific acts of negligence of an employe of appellant sufficient to support the judgment, we need not discuss or decide the propriety of these issues, it not being contended that their submission prejudiced any right of appellant.

Points of error twenty nine through thirty one are jointly briefed. These points contend that an issue of fact was presented regarding the authority of David DePue to grant permission for the painters to use the carpenters’ scaffold and as to whether in granting such permission he was acting within the scope of his employment.

We have discussed and answered the substance of these points adversely to appellant in disposing of the first three points. We, therefore, overrule these points.

Point thirty two is that there is no evidence of the reasonableness of or necessity for future medical expenses of ap-pellee to support the jury finding on this issue.

Dr. Robert Milam testified that in all probability appellee would require further medical treatment, that this was a reasonable medical probability. Dr. Milam also testified that further medical treatment was reasonably certain and if so medication and treatment would be necessary. He also testified that $100.00 per year for the next 21 years was a reasonable amount for the treatment of a person with the injuries sustained by appellee.

There being no reversible error, the judgment of the trial court is affirmed.

Affirmed.

      . Appellant complains of this in Point 7.


author: CLAYTON, Justice.

text:
    Bahiyyih CORNELL, a feme sole, Appellant, v. John B. CORNELL, Appellee.
    No. 5781.
    Court of Civil Appeals of Texas. El Paso.
    April 6, 1966.
    Rehearing Denied May 4, 1966.
    Jack T. Niland, El Paso, for appellant.
    Talley, Gade & Schwarzbach, El Paso, for appellee.
   CLAYTON, Justice.

This is an appeal from a declaratory judgment of the Forty-first District Court of El Paso County, Texas interpreting an agreement between appellant and appellee who were formerly husband and wife. Ap-pellee filed suit for divorce from appellant in the Forty-first District Court of El Paso County in cause No. 82,842 on the docket of said court. On December- 20, 1955 a decree was entered by said court granting appellee a divorce and custody of the minor child of the parties, providing for the support of said child during the visitation period granted to appellant, to have said child during six weeks of the summer-time, and reciting:

“The Court finds that the parties herein have entered into a property settlement agreement which is filed with the papers herein, and which property settlement agreement is approved in all respects insofar as this Court has jurisdiction and power to so approve.”

The “property settlement agreement” referred to by the court provides, in paragraph V thereof:

“Plaintiff [appellee here] shall pay to Defendant the following sums: (a) The sum of $150.00 per month for the first six months from the date of the entry of the Divorce Decree," (b) The sum of $100.00 per month for the second six months from the date of said Decree, and; (c) The sum of $75.00 per month thereafter until Defendant shall have remarried or be eligible for social security benefits.”

There was deleted from said paragraph V of this agreement the wording: “In lieu of further participation on the part of Defendant in the community property of the parties”, which wording had appeared just prior to the portion quoted above.

The parties subsequently moved about and later were both residents of Monterey County, California. There, in June of 1958, a suit was filed by appellant Mrs. Cornell against appellee in the municipal court for past due payments under the said “property settlement agreement” which resulted in a judgment against the latter in the amount of $3,425.00. In connection with the judgment there appears a “Memorandum Decision” in which the court finds that the intent of the parties in entering into the “property settlement” was “to settle and divide the community property and not to provide for permanent alimony contrary to Texas law.” This judgment was appealed to the Superior Court of the State of California, and was by that court affirmed. Subsequently that judgment was paid in full. In an “Addendum Decision” of the Superior Court, dated one day after the date of the decision, the court stated: “our decision on this appeal is not the ‘law of the case’, not res judicata in any future litigation as to a defense of merger of agreement in a prior divorce action”.

Subsequently, on August 7, 1964, the instant suit was filed. In his petition plaintiff prayed for judgment establishing that paragraph V of the Property Settlement Agreement was a contract to pay alimony, and as such is contrary to the public policy of the State of Texas and therefore is void and unenforceable. The defendant filed her motion to quash citation which had been served upon her in El Paso, Texas for the reason that she was fraudulently induced to enter the State of Texas solely for the purpose of being served with process in the cause; and that, but for plaintiffs fraudulent misconduct, she would not have been in the State of Texas where process was served upon her, on August 11, 1964, the date of service. In support of this motion defendant testified by deposition that about ten days or two weeks before coming to El Paso she was telephoned by her former mother-in-law, a Mrs. Rinde, who suggested to her that since the defendant’s son had not been with her during the summer, perhaps the defendant would like to accompany the son, the mother-in-law and plaintiff on a trip to Disneyland in California. Defendant asserted that she agreed, and was picked up in California by plaintiff in his car with plaintiff driving, but instead of going to Disneyland, they drove to Flagstaff, Arizona, where they stayed for a while, and then to Gallup, New Mexico and ultimately to El Paso, Texas, the purpose being to allow the mother-in-law and son to see El Paso, where the son had been born. They spent a few days in El Paso and also visited in Mexico, and when they started back to California, plaintiff as-sertedly asked defendant to pick up some copies of the son’s birth certificate in the City-County Building in El Paso, and when she went in -the building to do so, she was served with process by a constable. A general denial was also filed, subject to the motion to quash citation.

The motion to quash was overruled by the court, but no findings of fact or conclusions of law were requested or filed, so we are required to test the validity of the court’s action on the assumption that the trial court found every disputed fact in such a way as to support the judgment. Tregellas v. Jake’s Casing Crews, Inc., 376 S.W.2d 792, 794 (Tex.Civ.App., 1964; ref., n. r. e.), citing cases. And to indulge every reasonable inference in favor of the judgment, Lambert Corporation v. Martin, 369 S.W.2d 703, 704 (Tex.Civ.App., 1963, err. dism.). And to affirm if there is any evidence of probative force to support the judgment upon any theory authorized by law. Railway Express Agency, Inc. v. Bennett, 350 S.W.2d 214, 215-216 (Tex.Civ.App., 1961, n. w. h.). Appellant’s first point of error, complaining of the court’s action, is overruled.

In the second point of error, appellant complains of the failure of the trial court to hold that the California judgment involving the validity of the property settlement was res judicata of all matters herein involved.

The cause of action in which the California judgment was entered was a suit for “back payments” and the judgment was for payment by appellee of a sum of money. The present action, although between the same parties, is for a declaratory judgment. There is sufficient difference between the causes of action and relief sought in the two cases to prevent the one from being a bar to the second. 34 Tex.Jur.2d 546, § 492, recites: “It is established that in order for a judgment in one suit to bar the bringing of a subsequent one, there must be identity in the thing sued for; identity of the cause of action; identity of persons and parties to the action; and identity of quality in -the persons or parties”, citing Philipowski v. Spencer, 63 Tex. 604 (S.Ct.) and numerous other cases. Furthermore, in this instance the Texas trial court is interpreting a contract which had come before it in the divorce action between the parties and which was a Texas contract and subject to interpretation under Texas law. We feel that appellant’s second point must be overruled and the judgment of the trial court affirmed.

Affirmed.


author: PHILLIPS, Justice.

text:
    CITY OF SAN ANTONIO et al., Appellants, v. C. D. J. ENTERPRISES, INC., et al., Appellees.
    No. 11391.
    Court of Civil Appeals of Texas. Austin.
    April 20, 1966.
    Rehearing Denied May 11, 1966.

      Sam S. Wolf, City Atty., San Antonio, Wm. A. Olson, Austin, Rix Rutland, San Antonio, for appellants.
    Cofer, Cofer & Hearne, Douglass D. Hearne, Waggoner Carr, Atty. Gen., Hawthorne Phillips, First Asst. Atty. Gen., T. B. Wright, Executive Asst. Atty. Gen., J. Arthur Sandlin, George C. Black, Jr., Asst. Attys. Gen., Austin, for appellees.
   PHILLIPS, Justice.

This is an appeal from the judgment of the trial court upholding an order of the Texas Water Pollution Control Board. The order granted a permit to C. D. J. Enterprises, Inc., one of the appellees here, authorizing It to discharge treated municipal sewage effluent into a tributary of the Salado Creek in Bexar County, Texas. The plaintiffs below, and the appellants here, are the City of San Antonio and Albert A. Math and his wife who are property owners alongside the proposed sewage treatment plant.

In June of 1964, the appellee C. D. J. Enterprises, Inc., made application to the Texas Water Pollution Control Board for a permit to discharge an average not to exceed 696,000 gallons per day of treated municipal sewage effluent into a tributary of Salado Creek on the outskirts of the City of San Antonio. This application was made pursuant to the terms of Art. 7621d, Vernon’s Civil Statutes.

The application was first considered at a regular meeting of the Board held in September, 1964. The City of San Antonio protested the application at this meeting.

The Board took the application for permit under advisement pending approval of the design and plans of the proposed treatment plant by the Texas State Department of Health.

The Health Department approved the design and plans subject to certain conditions and notice of this approval was conveyed to the Board.

At another meeting of the Board held in January of 1965, the application was again brought up for consideration and after further protests by San Antonio and also by appellants, Maths, the application was granted.

The City of San Antonio and Albert A. Math and wife brought separate suits to set aside the order of the Board granting the permit and, on motion of the Board, the causes were consolidated for trial.

The case went to trial in June of 1965 and was tried before the court without a jury. After a trial lasting four days, the court rendered judgment that the order of the Board granting the permit in question was valid and supported by substantial evidence. It is from this judgment that appellants have appealed to this Court.

We affirm the judgment of the trial court.

Appellant City of San Antonio is before this Court with two points of error, namely, the error of the trial court in holding that the order of the Texas Water Pollution Control Board granting the permit in question was supported by substantial evidence; the error of the trial court in finding and in holding that the construction, location, and design plants of the proposed sewage treatment plant of the appellee, are pertinent only insofar as they may control the point of discharge of effluent.

We overrule these points.

For the purpose of this opinion we shall discuss appellant San Antonio’s second point of error first. We hold that under this Court’s opinion in Corder v. State Water Pollution Control Board of the State of Texas et al, Tex.Civ.App., 391 S.W.2d 83, writ ref., n. r. e., the trial court’s judgment in respect thereto is correct. In Corder, we held that the Board had no jurisdiction over plant design; that design was within the province of the Health Department, citing Article 4477-1, Section 12, Vernon’s Civil Statutes.

A review of the extensive record before us discloses that the major part of the testimony presented by the City of San Antonio attacks the design of the proposed plant in an effort to demonstrate that its design is inadequate for its purpose. This evidence is not pertinent here.

The Texas Water Pollution Control Board was set up by the Legislature to control effluent into our streams, rivers and lakes. Article 7621d, Sec. 4(b) provides:

“Each such permit shall set forth the conditions upon which it is issued by the Board, including, but without limiting such conditions to, the duration of such permit, the maximum quantity of waste which may be discharged thereunder at any time and from time to time, and the quality, purity and character of waste which may be discharged thereunder.”

If the design of the treatment plant had been intended to be a condition before the Board could issue a permit, such a condition would have been included by the Legislature. The failure to provide such a condition, together with the statutory mandate placing such a condition of approval with the Health Department, manifests the legislative intent in this regard.

The Board is primarily concerned with the pollution of the waters of the State. Expert witnesses testified that the efficiency of a treatment plant is primarily dependent upon its operation and maintenance. It is obvious from the testimony before the trial court and from the arguments and briefs of the attorneys for appellants, that they are concerned that the plant will not be maintained or operated properly. This question is not before this Court at this time. The Board controls the operational efficiency of the plant through the conditions that it imposes on the applicant’s permit. In this case this was done by imposing a certain measurable standard on the quality of effluent which is not to exceed 20 parts per million of Biochemical Oxygen Demand; 20 parts per million of total suspended solids; continuously chlorinated to a residual of not less than 0.5 parts per million of chlorine after 20 minutes contact time. The quantity of discharge is limited to an average not to exceed 696,000 gallons per day. In addition, the permit provided for standards of maintenance of the proposed treatment plant; requirements that records must be kept and samples taken; a requirement that operational reports must be submitted to the Health Department.

The evidence disclosed that the very best method of disposing of sewage is through an area wide collection system of sewer lines such as the San Antonio municipal sewer system; however the evidence is conclusive that a tie-in with the San Antonio area wide collection system, is for all practical purposes, impossible at this time. It is agreed that the second best method of collecting sewage is by a treatment plant of the general type before us. The Board recognized the fact that it may be possible in the future for appellee, C. D. J. Enterprises, Inc., to tie into an area wide collection system and one of the conditions in the permit is that if such a tie-in should become possible in the future, discharge must be made into such system, if such is feasible, without respect to loss of investment. The proposed treatment plant wiH be constructed in a matter which will allow integration into an area wide system. The plant is also being constructed so that additional units may be added as required in order to process additional sew'age.

This Court must presume that the Board will follow its mandate in supervising this plant and that the appellee C. D. J. Enterprises, Inc. will fulfill the requirements of its permit.

The appellant City of San Antonio’s first point of error, stated above, is that of the District Court in finding and holding that the order of the Board granting the permit in question was supported by substantial evidence.

We overrule this point.

In Corder we held that the substantial evidence rule governs the trial of cases involving permits for the Board. There is no peed fiere to go into detail concerning the evidence presented on this point. Suffice to say that the eyicjfpce is practically uncontradicted to the effect that if the standard of effluent upon which the permit is conditioned and which is described above, is maintained, that the effluent emitted into the tributary of Salado Creek would be of a very high quality and would not raise the Biochemical Oxygen Demand or solids in any appreciable amount. In other words, there would not be any appreciable pollution to the tributary..

Appellants Albert A. Math and wife are before us on three points of error, briefed together, and being that of the trial court in granting the judgment complained of in that there is no evidence that the Maths were mailed or served with statutory notice by appellee of their hearing on September 24, 1964; because there is no evidence that the Maths were mailed or served with statutory notice of the Board’s meeting or hearing held on January 28, 1965; because there is no evidence that all owners of land in the immediate vicinity of the point of discharge were served or mailed statutory notice of the Board’s hearing on September 24, 1964.

We overrule these points.

The evidence discloses that while the Maths did not attend the meeting of the Board held in September of 1964, they did attend the meeting of the Board held in January of 1965 and were allowed to present testimony of their opposition to the order granting the permit. We hold that in view of the fact that they presented themselves at the hearing, that the statutory notice is waived. See White v. Zoning Board of Adjustment of Arlington, Tex.Civ.App., 363 S.W.2d 955, writ ref., n. r. e.

Since there is no complaint from other alleged parties who -received no notice, appellants Maths are not affected thereby and have.no standing here to complain for them.

We affirm the judgment of the trial court.

Affirmed.


author: CLEMENS, Commissioner.

text:
    FIREMAN’S FUND INSURANCE COMPANY, Plaintiff-Respondent, v. Ardin E. TRIPPE, Defendant-Appellant.
    No. 32277.
    St. Louis Court of Appeals. Missouri.
    April 19, 1966.

      Starkloff & Joseph, by Carl E. Starkloff, Clayton, for appellant.
    McDonald, Wright & Bryan, by Anthony F. Vaiana, St. Louis, for respondent.
   CLEMENS, Commissioner.

This is an action in conversion to recover damages suffered by a brokerage firm when it sent the wrong stock certificates to the defendant and he sold the stock before the broker learned of its mistake. The plaintiff got a $10,000 verdict and judgment, and the defendant has appealed.

The decisive issue: Where the defendant ordered a low-priced stock from his broker, who by mistake mailed him a higher priced stock which the defendant then sold, may the broker recover its damages upon showing circumstantially that defendant knew the stock he received was not the stock he had ordered?

The defendant questions the sufficiency of the evidence, so we will relate the evidence that was favorable to the plaintiff. We will first identify the parties and the securities involved. The defendant was a 31-year-old electrical engineer who developed a sudden interest in the stock market. His dealings began with the St. Louis office of the New York brokerage firm of Merrill Lynch, Pierce, Fenner & Smith, whom we will speak of as “the broker.” The plaintiff insurance company had insured the broker against loss from any “wrongful detention of securities”; and after the transactions herein involved, the plaintiff paid the broker’s $11,250 claim and was subrogated to the broker’s rights. We are concerned here with the stocks of two corporations with similar names. The first is American Investors Corporation, a Tennessee corporation. Its stock is not listed on any stock exchange and is sold only by “over-the-counter” sales; the market value was under $2 per share. The other corporation is American Investment Company, of Illinois. Its stock is actively traded on the New York -Stock Exchange, and the market value was over $20 per share.

The dealings between Mr. Trippe and the broker began on February 21, 1961. He went to the broker’s office and asked its “customer’s man,” Clarence Spiegel-halter, about several stocks, including American Investors Corporation which Mr. Trippe knew was an unlisted, over-the-counter stock. Mr. Spiegelhalter explained that he would have to inquire about the price, and shortly thereafter told Mr. Trippe that the “pink sheets” showed the stock was selling for $1.75 a share. Mr. Trippe ordered 500 shares. Mr. Spiegel-halter then entered an order with the broker’s New York office to buy the stock, and 500 shares were bought for Mr. Trippe at the even lower price of $1.50 a share. The broker billed Mr. Trippe for $780.15, which was promptly paid. Next, on March 7, Mr. Trippe asked Mr. Spiegel-halter to place a sell order for his American Investors stock at $2.25, and Mr. Spiegelhalter placed that order. However, the stock did not reach that price, and on March 16 Mr. Trippe canceled the sell order. From the very first, each transaction was confirmed by the broker’s written memoranda and monthly statements, promptly mailed to Mr. Trippe. Mr. Trippe said that each memorandum bore a designation which jibed with his original order of American Investors, the low-priced stock.

In the meantime, Mr. Trippe’s original purchase order had reached the broker’s stock certificate department in New York. There, the appropriate stock certificates had to be withdrawn from a vault, endorsed by the broker, sent to the proper transfer agent, reissued in the purchaser’s name, and mailed to the purchaser. This procedure takes at least two weeks. During this process the trouble began. The broker’s stock certificate clerk got Mr. Trippe’s purchase order for American Investors stock, but by mistake he picked out stock certificates of American Investment, the higher priced stock. These certificates were duly processed, and on March 6 Mr. Trippe received them by mail. It appears that Mr. Trippe did not then notice the mistake because on the next day, March 7, he asked Mr. Spiegel-halter to try to sell American Investors at $2.25. But on March 16 Mr. Trippe canceled that sell order. Then, on March 18, Mr. Trippe went to see another brokerage firm, Reinholdt & Gardner, and there he learned that the American Investment stock he had received was worth over $20 a share. Mr. Trippe began to sell. On March 21 he sold 100 shares of the American Investment stock through Reinholdt & Gardner for $21.87 a share, and on April 4 he sold another 100 shares at $22.25 a share. That left 300 shares of American Investment stock, and on April 10 Mr. Trippe sold these through still another broker, Edward D. Jones & Co., for $22 a share. For a novice Mr. Trippe had done well on the stock market. In seven weeks his $780 investment had spiraled to $11,000.

Meanwhile, the broker remained unaware of its mistake. But early in May the broker was called upon to deliver the 500 shares of American Investment stock that it had previously been holding for a customer. The broker then discovered that this stock was missing, but that it still had on hand -the 500 shares of American Investor.? stock which Mr. Trippe had bought in February. Mr. Spiegelhalter phoned Mr. Trippe and asked him to examine his safe deposit box to see which stock certificates he had received. Mr. Trippe promised to do so, even though he had already sold the stock through other brokers. A week later Mr. Spiegelhalter again called Mr. Trippe, who first gave the excuse that he had not had a chance to inspect the certificates but then admitted that he had already sold the American Investment stock. Only then did the broker become aware of its impending damage.

Because the broker had by mistake sent Mr. Trippe another customer’s stock certificates, that stock had to be replaced by the broker. So, on June 23 the broker wired Mr. Trippe, demanding that he send it 500 shares of American Invest ment stock or its equivalent in money; that if he failed to do so within five days, it would buy that stock at the market price so that the stock could be delivered to its rightful owner. Mr. Trippe did nothing, so the broker bought 500 shares of American Invest ment stock at a cost of $11,397.50. The broker still held the original 500 shares of American Investor.? stock that Mr. Trippe had ordered; and after notice to him it sold those shares for $594.76, thereby reducing its loss to $10,802.74. The plaintiff-insurer paid this amount to the broker, thus becoming subrogated to the broker’s rights. Suit was filed; trial, verdict, judgment and appeal followed apace.

At the threshold of our review of the points raised by defendant’s brief, we are met by the remarkably parallel case of National Surety Corp. v. Hochman, Mo.App., 313 S.W.2d 776, written for this court by Judge Houser. Because it applies broadly here, we will relate the facts and law of the Hochman case at some length. There, as here, the stock broker’s insurer-subrogee sued the broker’s customer, Hochman, to recover the amount of the broker’s loss occasioned by delivering the wrong stock certificates to Hochman. He had ordered 300 shares of a company’s old 10-par-value stock, but by mistake the broker sent him 300 shares of the company’s new 250-par-value stock. The broker billed Hochman, who paid for the 10 stock knowing he had received the 250 stock. Soon the broker discovered its mistake and demanded that Hochman return the misdelivered stock. When he failed to return the new 250 stock in exchange for the old 10 stock, the broker bought stock to replace the certificates mistakenly sent to Hochman. Later, the broker billed Hochman for its loss and made claim to the plaintiff-insurer. The insurer paid the claim, and as subrogee sued Hoch-man in conversion. Verdict and judgment were for the broker. Note that this Hoch-man case differs from ours in only two, noncritical ways: There, the defendant admitted his knowledge of the broker’s mistake ; here, that knowledge may be inf erred from the defendant’s conduct. There, the defendant’s act of conversion was his refusal to return the stock to the broker; here, it was the defendant’s sale of the stock.

In affirming the plaintiff’s judgment, the Hockman case ruled four decisive issues. (1) Neither the petition nor the plaintiff’s verdict-directing instruction need state that plaintiff had the right to possession; it was sufficient to state facts from which the right to possession, a legal conclusion, could be inferred. We held that the right to possession could be inferred from facts that the customer ordered the 10 stock and that by mistake the broker delivered the 250 stock, which the customer retained. (L.c. 780-781, 783-784; notes 2 and 12.) (2) Although the broker was not the owner of the stock, it was a bailee for the owner; and when it placed the stock in the hands of one having no right thereto, the broker had an immediate, unconditional right to possession, sufficient to maintain the action for conversion. (L.c. 782; notes 5 and 6.) (3) After the broker replaced the missing certificate for 300 shares of 250 stock by purchasing other such stock, it billed the defendant for the cost thereof; and the defendant contended, therefore, that title had passed to him and that the broker no longer had the necessary property right in the stock to support an action for conversion. We ruled that the billing was not for the purchase price of the converted 250 stock, but was a statement of the broker’s damage for replacing that stock; that the act of billing did not detract from the broker’s right to possession of the originally misdelivered stock. (L.c. 781; note 4.) (4) The defendant contended the plaintiff-insurer could not recover because it was a volunteer surety. This, on the theory that (a) its policy excluded any loss the broker had sustained because of an unpaid account, and (b) when the broker billed the defendant for the cost of replacing the converted stock, an account existed between the broker and the defendant; hence, the broker’s claim was an account, not covered by plaintiff’s policy. We ruled that the broker’s loss grew out of the conversion, not out of an unpaid account; that the final billing was merely a statement of the measure of the broker’s damage which it had previously sustained. The rulings on each of these four issues answer most of the questions now before us.

On this appeal the defendant’s first point is that the trial court erred in denying his motions for a directed verdict. This, on three grounds. Initially, he contends that the evidence showed only a unilateral mistake by the plaintiff, not a mutual mistake by both parties. Defendant cites numerous equity cases holding that equity will not rescind a contract for a unilateral mistake. This principle does not aid the defendant, first, because this is a common-law action for conversion, not a suit in equity; second, because the broker is not attacking the parties’ contract but, instead, is relying on it; and, third, because the mistake was not in the making of the contract but in its fulfillment. To support this contention further, the defendant relies heavily on the case of Houston v. Welch, 204 Mo.App. 279, 223 S.W. 1076. That case is akin to ours only in that it concerned the sale of stock of corporations with similar names. In all else it differs. It was an equity suit for rescission of a sale of stock based' on the unilateral mistake of a third party made at the inception of the contract. The case does not support defendant’s contention of unilateral mistake.

Pressing on with his claim for a directed verdict, the defendant next charges that the evidence failed to establish the essential elements of a conversion. The case of Eisenberg v. Nelson, Mo.App., 247 S.W. 244, crisply defines the common-law tort of conversion, at l. c. 247: “Any distinct act of dominion wrongfully exerted over the personal property of another in denial of or inconsistent with the latter’s rights therein constitutes a conversion.” The element of the broker’s property interest in the Ameri can Invest ment stock was sufficiently shown to qualify it to maintain an action for conversion. (Issues 1 and 3 of the Hochman case, supra.) The element of the defendant’s knowledge of the broker’s mistake may not have been essential to plaintiff’s case. See Schulte v. Florian, Mo.App., 370 S.W.2d 623 [4], Nonetheless, the plaintiff pleaded and submitted the issue of defendant’s knowledge of having received the wrong stock. Knowledge, like intent, is a state of mind and may — and usually must — be proved by circumstantial evidence. Herrman v. Daffin, Mo.App., 302 S.W.2d 313 [5]; State v. Chevlin, Mo., 284 S.W.2d 563 [4]; 20 Am.Jur., Evidence, § 336, note 8. On this submitted issue of defendant’s knowledge that he had received the wrong stock, there was evidence that on March 16 Mr. Trippe knew the American Investors stock which he had ordered was selling for less than $2.25; that just two days later he learned that the American Investment stock he had received was selling for more than $20; that he immediately began selling it in small lots through other brokers; and that the next month he falsely led the broker’s agent, Mr. Spiegel-halter, to believe that he still had the stock. From this evidence the jury could have reasonably inferred that the defendant knew he had received the wrong stock. The broker’s right to possession of the misde-livered stock was thereby established. It follows that Mr. Trippe’s subsequent sale of the American Investment stock was an unauthorized act of dominion over the stock and constituted a conversion thereof. Blum v. Frost, 234 Mo.App. 695, 116 S.W.2d 541 [4-6].

The defendant advances one last ground for a directed verdict. He argues that the plaintiff-insurer was not a proper party; that it cannot sue because it was a volunteer surety since it paid the broker’s claim although not liable therefor under the broker’s policy. As in the Hochman case, supra, the policy excluded liability for any loss the broker sustained on an unpaid account. As we ruled in the Hochman case (issue 4), the broker’s loss was caused by the conversion, not an unpaid account. This, because the final billing was no more than a statement of the measure of the broker’s damage which it had previously sustained.

Accordingly, we rule that the trial court wisely denied the defendant’s motions for a directed verdict. The remaining issues concern the defendant’s challenges to the plaintiff’s verdict-directing Instruction No. 2. Defendant has failed to comply with Civil Rule 83.05(a), V.A.M.R., which requires that he set out the instruction in the argument portion of his brief. The plaintiff has done so, however, and we will consider the merits of the defendant’s complaints.

There was no applicable instruction in MAI, so the plaintiff complied with Civil Rule 70.01(e), MAI, by the following instruction which directed a verdict for plaintiff upon the jury’s believing:

“First, defendant Trippe placed an order with Merrill Lynch, Pierce, Fenner and Smith for the purchase of 500 shares of stock of American Investors Corporation, and
Second, defendant Trippe received from Merrill Lynch, Pierce, Fenner & Smith 500 shares of stock of American Investment Company of Illinois, and
Third, defendant Trippe; on March 21, 1961, with knowledge that he had received the wrong stock, claimed a right to control or dispose of said 500 shares of stock of American Investment Company of Illinois.”

The defendant complains first that the instruction failed to require a finding that the plaintiff had the right to immediate possession of the stock. That was not necessary. It was sufficient that the instruction did hypothesize facts from which that conclusion of law naturally followed. (Issue 1 of the Hochman case, supra.) Next, defendant complains that Instruction No. 2 failed to hypothesize the fact of the broker’s mistake. Defendant cites no cases in support of this point nor expands on it in his argument. Assuming, arguendo, that this was essential, it was fairly met by the hypotheses in paragraphs “First” and “Second” and the added requirement in paragraph “Third” that defendant “received the wrong stock.” The instruction is invulnerable to the defendant’s attacks.

The learned trial judge allowed the defendant full range to present his case, even to the extent of giving his proffered instructions on the implausible defenses of unilateral mistake, absence of fraud, and volunteer surety. Although the defendant was armed with these weapons, the plaintiff convinced the jury that the defendant had unjustly enriched himself and that the plaintiff was entitled to recover. We agree.

We find no merit in the points raised by defendant. The judgment should be affirmed.

PER CURIAM.

The foregoing opinion- of CLEMENS, C., is adopted as the opinion of this court. Accordingly, judgment is affirmed.

WOLFE, P. J., and ANDERSON and RUDDY, JJ., concur.