author: DENTON, Chief Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. L. D. HAWKINS, Appellee.
    No. 7431.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 25, 1965.
    Rehearing Denied Feb. 22, 1965.
    Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for appellant.
    John W. Herrick and Massie Tillman, Fort Worth, for appellee.
   DENTON, Chief Justice.

This is a workmen’s compensation case. Texas Employers’ Insurance Association has appealed from a judgment based on a jury verdict finding L. D. Hawkins to be totally and permanently incapacitated as the result of a low-back injury sustained on October 4, 1960, while lifting a heavy pipe. The first trial of this case resulted in a judgment for the claimant for total temporary incapacity for a period of one week. That judgment was reversed and remanded on the ground the trial court gave an incorrect definition of “total incapacity.” Tex.Civ.App., 363 S.W.2d 788, affirmed Tex., 369 S.W.2d 305. That question is not before us on this appeal.

Appellant’s first four points of error contend there is no evidence to support the finding of total and permanent incapacity, and no evidence to support the finding of no partial incapacity; and such findings are against the great weight and preponderance of the evidence as to be manifestly unjust. The trial court correctly defined “total incapacity” and “partial incapacity” as follows:

“The term TOTAL INCAPACITY does not imply one’s absolute inability to perform any kind of labor, but means that one must be so incapacitated that he becomes disqualified for performing the usual tasks of a workman to such an extent that he cannot procure and retain employment.”
“By the term ‘partial incapacity’ is meant incapacity less than total where an employee, by reason of injuries sustained in the course of his employment, is only able to perform part of the usual tasks of a workman, but, nevertheless, he is able to procure and retain employment reasonably suitable to his physical condition and ability to work, or he is only able to perform labor of a less remunerative class than he performed- prior to his injury whereby he suffers a depreciation or reduction in his earning capacity.”

These points of error require a brief summary of the evidence, and to consider the evidence in like of In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

We are aware of the well-settled rule that an employee may be totally and permanently incapacitated under the workmen’s compensation act although he continues to work and earn money. Trinity Universal Ins. Co. v. Scott, (Tex.Civ.App.), 342 S.W.2d 348, (Refused, NRE), and the many authorities cited therein. However, the evidence may be such that it will not support such a finding; in which event it is the court’s duty to remand the cause for a new trial.

Evidence which tends to support the jury verdict is that Hawkins, an experienced boilermaker, was admittedly injured in the course of his employment while lifting a heavy pipe on October 4, 1960. Dr. Gerald King testified by deposition that Hawkins suffered a probable ruptured disc; he was of the opinion he was totally disabled from performing labor which required him to bend, lift, stoop, climb ladders, and get in awkward positions; and that this, disability would be permanent Dr. James Holmes examined Hawkins and was of the opinion he had sustained nerve root compression, probably from a ruptured disc. Hawkins testified he wore a back brace every day and that he could not perform work requiring bending, lifting, and stooping; that he had continuous pain in his back; and that his back was in about the same condition it had been since October of 1960. Fellow workmen who had worked with Hawkins since the injury testified to his inability to stoop, bend, and lift heavy objects. Hawkins testified the reason he had worked almost continually the three years since the injury was to pay off notes on his pickup truck and a lot and “I still like to eat.” In viewing the evidence most favorable to the verdict, we conclude there is evidence to support the finding Hawkina was totally and permanently disabled.

In considering all of the record, we conclude that as a matter of fact Hawkins was. not totally and permanently disabled. The record shows Hawkins returned to work on December 14, 1960, some ten weeks after receiving the injury. He was assigned to this job, as well as the subsequent jobs, by his union. He continued to work for the Riley Stoker Corporation from December 14, 1960, until April 5, 1961, and received $3.85 per hour, the same hourly wage he was receiving at the time of his injury. After completing the work for Stoker, he went to work almost immediately for Monical & Powell. He was employed as a boilermaker and was paid at the rate of $3.90 per hour. This work continued until September 26, 1961. Hawkins testified he worked as a regular boilermaker on one of the jobs and “flagging the rig” and cleaning bolts on the other, but that neither of these jobs required him to use his back. Following the Monical & Powell job he worked for Nuder Construction Company. He left this job after one month to go to Fort Worth to be examined by Drs. King and Holmes. He then went to Stinnett, Texas where this case was tried the first time. He received $3.90 per hour for a forty-hour week while working for Nuder, where he served as a steward, which is a representative of the union on the job and handles grievances. In his absence his job with Nuder was filled and within four or five days he began work for Riley Stoker a second time on a job for Monsanto at Chocolate Bayou and was employed as a boilermaker supervisor or subforeman at an hourly wage of $4.35 for a forty-hour week. This job lasted until May of 1962. He worked for M. B. J. & Bundick from June of 1962 until September of that year with some time off in that period because of a strike called by the millwrights. Hawkins then worked on successive jobs for Erlick Construction Company, Catalytic Construction Company, and Kirkley & Chambers. Only a few days elapsed between these jobs for the various companies named, and he remained on the jobs until they were completed. On the Erlick job he was assigned as a steward but was carried on the payroll as a boilermaker. His pay rate on that job was $4.10 per hour. In the other two jobs he served as boilermaker foreman at the rate of $4.60 per hour. Hawkins’ next employment was with A. M. Lockett where he worked as a boilermaker foreman from June 19, 1963, until November 6, 1963, at the rate of $4.60 per hour. Of the one hundred working days of his employment with Lockett, Hawkins worked ninety-five days. Three of the five remaining days were holidays, and two days’ work was lost because of rain. Following the Lockett job he worked three days in Fort Worth for Riley Stoker on a boiler job for Dallas Light & Power Company. The record does not indicate his duties or hourly wage on this job. At the time the present suit began on December 17, 1963, Hawkins was subforeman on a job that was to continue for approximately five months. It is conceded Hawkins had worked “pretty well continuously ever since the time” of his injury in October of 1960 until the time of the trial. But he contends he was unable “to perform the usual tasks of a working man such as bending and lifting and stooping.” All of Hawkins’ jobs, both before and after his injury, were assigned to him by his union business agent. Hawkins was qualified as a boilermaker foreman and sub-foreman. It was contrary to union rules for a foreman or subforeman to “work on the job.” Hence no stooping or bending was apparently required to- handle these jobs. Hawkins was examined by Dr. A. Ross Davis on June 21, 1961, at the defendant’s request. By deposition Dr. Davis testified he was of the opinion Hawkins had not suffered a ruptured disc, but had sustained a lumbar sprain which would not produce a permanent incapacity. Hawkins had received no treatment since January 23, 1961, and had not seen any doctor since October 27, 1961, when he was examined by Drs. King and Holmes for the purposes of giving their depositions on that date.

It is apparent from Hawkins’ counsel’s questions directed to his witnesses and the jury argument that his contention throughout the trial was that Hawkins’ total incapacity was based on his inability to perform a job requiring him to bend, stoop and lift This contention restricts the approved definition of total incapacity. “An employee is not entitled to recover for total incapacity merely because he is unable to procure and retain employment in his usual occupation. The term implies disability to perform the usual tasks of a workman and not merely the usual tasks of any particular one trade or occupation.” Texas Employers’ Ins. Ass’n v. Mallard, 143 Tex. 77, 182 S.W.2d 1000. A boilermaker foreman or subforeman are related occupations to claimant’s pre-injury trade. It is uncontradicted Hawkins was a highly competent and qualified boilermaker subforeman and foreman. The evidence is clear Hawkins’ condition did not, in the three years between the injury and second trial, prevent him from procuring and retaining regular, well-paying employment in the same field he was engaged in prior to the injury. In our opinion his work record is not one of a person totally incapacitated. He had a continuing earning capacity. We are convinced the jury finding of total and permanent incapacity was against the great weight and preponderance of the evidence. Appellant’s points of error one and two are overruled; the third and fourth points of error are sustained.

Appellant has brought forward other points of error dealing, among other things, with alleged improper jury argument and lump sum recovery. In view of our disposition of this case, we shall not pass upon the other points since they would probably not arise in another trial.

The judgment of the trial court is reversed, and the cause is remanded for another trial.


source: Caselaw Access Project

author: MOORE, Justice.

license: Public Domain

text:
    ADOLPHUS GARAGE, Appellant, v. Paul A. NELSON, Appellee.
    No. 105.
    Court of Civil Appeals of Texas. Tyler.
    Feb. 11, 1965.
    Rehearing Denied March 4, 1965.

      John A. Gilliam and Pinkney Grissom, Thompson, Knight, Wright & Simmons, Dallas, for appellant.
    L. W. Westerlage, Dallas, for appellee.
   MOORE, Justice.

Plaintiff, Paul A. Nelson, brought this suit against Adolphus Garage alleging that on January 30, 1963, he was the owner of a 1962 Thunderbird automobile which was delivered to the defendant’s garage for storage; that at the time he delivered the automobile to defendant same was in good condition and free of any damage; that defendant thereby became a bailee of the automobile and was therefore bound to re-deliver same to the plaintiff in the same condition as when left with defendant. That when plaintiff sought re-delivery of his automobile he discovered that it had been severely damaged. It was stipulated that the damages amounted to $922.79.

Defendant denied generally the allegations of plaintiff’s petition and further alleged that the damages to the plaintiff’s automobile was not caused by its negligence, but was caused by a collision between plaintiff’s automobile and a 1960 Cadillac driven by one of defendant’s parking station attendants when the brakes thereon failed; that the failure of the owner of the Cadillac to notify defendant of the defective brakes was a sole proximate cause of the damages. Defendant also pled unavoidable accident.

After a trial before the court without the intervention of a jury, judgment was rendered for the plaintiff in the sum and amount of $922.79, from which defendant perfected this appeal.

In response to defendant’s request, the court filed the following findings of fact and conclusions of law: (1) that on January 30, 1963, plaintiff was the owner of the Thunderbird automobile (2) which was left with the defendant who was in the business of operating a parking garage for consideration (3) which was paid; (4) that at the time of delivery the automobile was undamaged; (S) that defendant had exclusive control of the automobile at all times including the time it was damaged; (6) that it was parked on defendant’s premises and that (7) thereafter the defendant had exclusive control of the 1960 Cadillac; (8) that defendant’s employee, R. D. Crouch, drove the Cadillac from the first floor on defendant’s premises, up a ramp and approximately 100 feet to the end of a ramp where he collided with plaintiff’s automobile which was parked on the second floor (9) while in the scope of his employment (10) causing plaintiff’s automobile to be thrown in contact with another automobile (11) causing damages of $922.70; (12) that Crouch failed to keep the Cadillac under such control as would have been kept by a person of ordinary prudence in the exercise of ordinary care (13) which was a proximate cause and (14) that he drove the Cadillac at a rate of speed greater than a person of ordinary care would have driven same (15) which was a proximate cause; (16) that the failure to apply the emergency brake (17) was not negligence nor (18) the proximate cause; (19) that the foot brakes on the Cadillac failed (20) which was a proximate cause of the collision; (21) that the collision was not the result of an unavoidable accident; (22) that the owner of the Cadillac did not commit any negligent act or omission. In Conclusions of Law the court found (1) that the agreement between the parties amounted to a bailment for hire, and (2) that the facts and law being with the plaintiff, he was entitled to recover his damages.

Defendant contends that plaintiff was not entitled to judgment because plaintiff’s case was based only on presumed negligence under the doctrine of res ipsa loquitur, and that when defendant offered proof showing that the defective brakes on the Cadillac were a cause of collision and damages that such proof, as a matter of law, amounted to a satisfactory explanation showing no negligence on defendant’s part and hence plaintiff’s case based on the theory of res ipsa loquitur was destroyed, and not having alleged any negligence in his pleadings, he cannot recover on negligence. Defendant further contends that there was no evidence to support the judgment, and alternatively that the judgment. was against the overwhelming weight and preponderance of the evidence.

. The findings of fact and conclusions of law do not indicate whether the judgment is based upon the theory of presumed negligence under the doctrine of res ipsa loquitur or whether the judgment is based upon an affirmative finding of negligence against the defendant. It will therefore be necessary for us to determine whether the judgment may be supported on either theory.

Plaintiff’s original petition, on which he went to trial, alleged facts showing only that at the time he left his automobile with defendant it was in good condition, but that when he returned, he found it to be severely damaged. Negligence was not alleged, either generally or specially.

The doctrine of res ipsa loquitur has been applied by the Texas courts in bailment cases. Hislop v. Ordner, 28 Tex.Civ.App. 540, 67 S.W. 337; Barclay v. Burge, 245 S.W.2d 1021 (Tex.Civ.App.). When the bailee alleges a case of presumed negligence, it has been held that:

“ * * * the burden of proof on the whole case, including the issue of negligence, is on the * * * bailor, but as stated in Wigmore on Evidence, 3rd Ed., § 2508, ‘Where goods have been committed to a bailee, and have either been lost or been returned in a damaged condition, and the bailee’s liability depends upon his negligence, the fact of negligence may be presumed, placing on the bailee at least the duty of producing evidence of some other cause of loss or injury.’ Without prejudice to the burden of proof being at all times on the bailor, the bailor under this latter rule makes a prima facie or presumptive case of negligence by proving the bailment and either the return of the goods by the bailee in a damaged condition, non existing at the time of their delivery to him, or a failure by him to return them at all. The rule is said to be based on the just and common sense view that the party in possession or control of an article is more likely to know and more properly charged with explaining the damage to it or disappearance of it than the bailor who •entrusted it to his care. It is evidently ■supported by the weight of authority in the United States, including our own state.” Trammell v. Whitlock, 150 Tex. 500, 242 S.W.2d 157, 159. (Citing cases.)

The presumption on which the bailor may rely is a mere rule for the conduct of the trial. It puts upon the bailee the risk of a directed verdict if he does not meet it but does no more; once he has done so, it disappears from the case. Beck v. Lasater, 286 S.W.2d 957 (Tex.Civ.App.).

Under such a situation to avoid a right to an instructed verdict for the bailor, it is incumbent upon the bailee to produce evidence explaining that the loss was brought about by some other cause, and the proof offered must be such as would prohibit the court from granting bailor an instructed verdict. Trammell v. Whitlock, supra.

In rebuttal of the plaintiff’s prima facie case, defendant called as witnesses R. D. Crouch, the driver of the Cadillac, who testified that although he exercised due care, he was unable to avoid the collision- because of a sudden failure of the brakes; and C. E. Williams, an automobile mechanic, who testified that the cause of the failure of the brakes was a break in the hydraulic line. The defendant pled that the defective brakes were the sole proximate cause. We think the proof offered is sufficient to prevent the court from granting an instructed verdict for the plaintiff and was, therefore, effective to rebut the prima facie case. Exporters’ & Traders’ Compress & Warehouse Co. v. Schulze, 265 S.W. 133 (Tex.Com.App.), and Mustang Aviation, Inc. v. Ridgway, 231 S.W.2d 677 (Tex.Civ.App.), er. ref.

We turn now to the question of whether or not the plaintiff has sufficiently pled and proved negligence as would be required in an ordinary negligence suit. Plaintiff’s proof, by reason of the nature of the occurrence was confined to the testimony offered by the witness for the defendant. By cross-examination plaintiff sought to show that defendant’s employee Crouch was guilty of negligence in driving the Cadillac at an excessive speed and in failure to keep the same under proper control. Defendant objected on the ground that there was no pleading alleging negligence. The objections were overruled and the court proceeded to hear the testimony.

Defendant now contends that the trial court erred in admitting the testimony relating to negligence and basing his judgment upon negligence because there was no written pleadings alleging negligence. We overrule the contention.

Defendants seek to deny the plaintiff not only the right of cross-examination, but also the right to rely upon the evidence solicited thereby. Even in the absence of any pleadings at all, plaintiff would have the right to cross-examine the witnesses and develop the facts. If the facts showed negligence, evidence of such would thus be properly before the court. At anytime before judgment, with leave of court, plaintiff would have a right to file a trial amendment meeting such proof.

The record reveals that after trial and before judgment, plaintiff requested leave to file a trial amendment. The amendment alleged among other acts of negligence that the defendant employees were guilty of negligence in driving the automobile at an excessive rate of speed and in failing to keep the same under proper control. Defendant’s objection, thereto was overruled and the trial court ordered the trial amendment filed. The instrument shows to have been filed with leave of the court. On the same day it was filed, the court directed a letter to all attorneys advising that he was ordering the trial amendment filed, but “without leave of court.” Despite the statement in his letter, the trial court ordered the amendment filed • and apparently considered the same in filing the findings of fact and in rendering, his judgment. The amendment is thought to be sufficient to support the finding of negligence as well as the judgment based thereon.

Defendant has failed to demonstrate that the error, if any, in admitting the testimony prior to the time of the filing of the trial amendment amounted to such a denial of the rights of the defendant as was calculated to cause and probably did cause the rendition of an improper verdict. Rule 434, Texas Rules of Civil Procedure.

The statement of facts, when examined in the light most favorable to the judgment reveals ample evidence of probative force to support the court’s finding and the judgment based thereon. Under these circumstances, the judgment of the trial court is binding on this court. Cavanaugh v. Davis, 149 Tex. 573, 235 S.W. 2d 972. Nor is the judgment thought to be against the overwhelming weight and preponderance of the evidence. Defendant’s points 1 through 23 are overruled.

Defendant’s final point complains of the trial court’s refusal to file additional requested conclusions of law.

The requested conclusions seek to have the court find as a matter of law that the proof showing brake failure was sufficient to destroy the presumption of negligence, thus requiring the bailor to assume the burden of pleading and proving that the bailee was negligent, and since the bailor failed to plead negligence, all evidence showing negligence was inadmissible and the trial court was precluded from rendering judgment against bailee based upon negligence. The trial court refused to make any additional conclusions of law.

Although we feel that the court should have filed additional conclusions of law setting forth the legal theory upon which his judgment was based, since the record before us affirmatively shows that the defendant has suffered no injury by reason of the trial court’s failure to file-additional conclusions of law, the error, if any, is not reversible. San Antonio-Water-Works Co. v. Maury, 72 Tex. 112, 12 S.W. 166; Wagner v. Riske, 142 Tex. 337, 178 S.W.2d 117.

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

Affirmed.


author: BATEMAN, Justice.

text:
    M. M. MANNING et al., Appellants, v. E. Cameron HELMS et ux., Appellees.
    No. 16460.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 29, 1965.

      Touchstone, Bernays & Johnston, and Duffield Smith, Jr., Dallas, for appellants.
    Geary, Brice & Lewis, and Ray Besing, Dallas, for appellees.
   BATEMAN, Justice.

This is an appeal from an order overruling certain pleas of privilege in a suit filed in the District Court of Collin County by the appellees E. Cameron Helms and wife for damages for personal injuries alleged to have been received by Mrs. Helms in a collision between an automobile in which she was riding and a truck owned by M. M. Manning, leased to W. G. Cantrell and driven by Frank Clayton Nash, who was alleged to be the agent, servant or employee of the other defendants. The original petition named M. M. Manning, W. G. Cantrell, Frank Clayton Nash, and Continental Oil Company as defendants. All of them filed pleas of privilege to be sued in the counties of their respective residences. These pleas of privilege were duly controverted by appellees on the ground that the acts of negligence complained of occurred in Collin County, where venue lay by virtue of Subdivision 9a of Article 1995, Vernon’s Ann.Civ.Stat. Thereafter Manning died and appellees filed an amended petition not naming him as a defendant and joining Mrs. Almeda Manning, independent executrix of his estate, as an additional party. Mrs. Almeda Manning, Independent Executrix of the Estate of M. M. Manning, Deceased, having been served with citation, filed a plea of privilege to be sued in Grayson County, where she resided. This plea was not controverted. After hearing evidence the court overruled all pleas of privilege, including that of M. M. Manning. All of the defendants except Cantrell and Nash bring this appeal.

To sustain venue in Collin County the burden was on appellees to prove by a preponderance of the evidence that a negligent act or omission was committed in that county by the appellants in person or by their servant, agent or representative acting within the scope of his employment, and that such negligence was a proximate cause of Mrs. Helms’ injuries. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91. The gravamen of this appeal, set forth in points of error 2 through 19, is that the court erred in overruling the pleas of privilege because there was no evidence, and alternatively that the evidence was insufficient, to establish that either of the appellants was guilty of any negligence proximately causing the injuries complained of or that the driver of the truck, Frank Clayton Nash, was the servant, agent or representative of either of them, acting within the scope of his employment, at the time in question. We have read the entire record of the evidence adduced at the hearing of these pleas of privilege and find no evidence whatever to the effect that either of the appellants was guilty of any negligence, and no evidence that' at the time of the collision the driver of the truck, Frank Clayton Nash, was the servant, agent or representative of either of these appellants at any time or in any respect. The only evidence we find as to what Nash was doing on the occasion in question, or for whom he was acting, is his own testimony to the effect that he was working for Mr. Cantrell and was “on duty” at the time. Appellees wholly failed to carry the burden imposed upon them to prove that this cause, as to the appellants, was within one of the subdivisions of Art. 1995, V.A.C.S. These points of error are sustained.

The other two points of error (1 and 20) involved procedural problems which we do not find it necessary to decide in view of what we have said above.

The judgment is reversed and the cause remanded with instructions to the trial court to sustain the pleas of privilege of the appellants and transfer the cause as prayed therein and pursuant to Rule 89, Texas Rules of Civil Procedure.

Reversed and remanded with instructions.


author: STEPHENSON,' Justice.

text:
    TRADERS & GENERAL INSURANCE COMPANY, Appellant, v. Martha M. RICHARDSON et vir, Appellees.
    No. 6744.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 11, 1965.
    Rehearing Denied March 3, 1965.

      Vinson, Elkins, Weems & Searls, Houston, for appellant.
    Carey Williams, Houston, for appellees.
   STEPHENSON,' Justice.

This is a subrogation suit. Defendants plead a former judgment as res judicata and in bar. Trial was before the court and judgment was for defendants. The parties will be designated as they were in the trial court.

Plaintiff, Traders & General Insurance Company, insured a truck owned by Jack and George Haflin, d/b/a Jack’s Refrigeration. This truck was damaged in a collision with Martha Richardson November 28, 1960. Plaintiff paid $1,304.50 for such damages and was subrogated to the rights of Jack and George Haflin January 31, 1961. In May, 1961, Jack Haflin, individually and Jack and George Haflin, d/b/a Jack’s Refrigeration, a partnership, brought suit against Martha M. Richardson and husband, Charles R. Richard son. This petition was in general terms and alleged that “plaintiffs” sustained injuries and damages in the sum of $35,-000.00. Special exceptions were filed to this petition but apparently were never passed upon. Plaintiff, Traders & General Insurance Company, had notice of this suit, but did not intervene and wás not im-pleaded. Martha Richardson and her insurance carrier, Olympic Insurance Company, were notified of plaintiffs subrogation claim. In July, 1962, a compromise agreement was made for a consideration of $4,750.00 paid to Jack and George Haf-lin and an agreed judgment that “plaintiffs” take nothing was entered in their suit against Martha Richardson and husband. November 6, 1962, this present suit was brought

The trial court filed conclusions of law holding that the judgment entered in the former suit was a bar to the present suit, and that the former judgment was res judi-cata as to the question of liability. The trial court also held that Traders & General Insurance Company was estopped to deny it was bound by such judgment

There was one cause of action arising out of the collision between Jack Haflin and Martha Richardson. This was a cause of action for damages which included property damages to the truck and personal injury damages to Jack Haflin. Both elements of damages could be recovered in the suit by Jack Haflin and George Haflin against Martha Richardson. Even though there may be doubt as to whether or not the pleadings in the original suit were specific enough to include property damage to the truck, there is no doubt but that this was a proper element of damages which could be recovered under the one cause of action. The payment of money by Traders & General Insurance Company to Jack and George Haflin and the execution of the subrogation papers by Jack and George Haflin to Traders & General Insurance Company did not effectively split the cause of action. The splitting of the cause of action for damages under the circumstances in this case is not permitted under the law of this state. Garrett v. Mathews (Tex.Civ.App.1961) 343 S.W.2d 289; Cormier v. Highway Trucking Co. (Tex.Civ.App.1958) 312 S.W.2d 406. Traders & General Insurance Company could have protected itself by filing an intervention while the first suit was pending. The judgment in the first suit is a bar to any recovery in this present suit.

Judgment affirmed.


author: BELL, Chief Justice.

text:
    Trudy MORROW, Appellant, v. Otis Lee MORROW, Appellee.
    No. 14469.
    Court of Civil Appeals of Texas. Houston.
    Feb. 18, 1965.
    Thomas J. Lykos, Nile E. Ball, Houston, for appellant.
    No brief filed for appellee.
   BELL, Chief Justice.

Appellant was awarded a divorce from appellee. There was a division of the community property and appellant complains here of the court’s judgment only insofar as the division of the property is concerned.

The judgment of the court awarded the appellant the equity in the home at 7706 Greendown Street in Houston, which equity he could have found to be valued at approximately $1189.00. The furniture in the house, which the court could have found to be of the value of approximately $1,000.-00 was awarded to appellant. The Chevrolet Impala, valued at $1890.00, was awarded appellant. Appellee was ordered to pay an indebtedness of $418.00 owed on the automobile, and an indebtedness of $468.12 owed on the furniture. Appellee was also ordered to pay appellant $1100.00 in cash.

The judgment awarded appellee the community interest in the Allen Plumbing Company and the Denver-Alien Plumbing Company, both of which were partnerships, the value of which the court could have found to be $3,000.00. There were two- pieces of real estate owned by appellee before his marriage that were awarded to him. The court could have found $1820.00 of community funds had been used to reduce the separate indebtedness of appellee against one of these properties. Too, certain furniture in the house on Ridgeway Street of the value of $472.00 was awarded appellee.

Taking the above values of the property as awarded by the court to appellant and considering the $1100.00 cash awarded the appellant, we find the total value of properties to her was $6,180.00. Considering the values of the property awarded by the court to appellee, he received property of the value of $5,292.00, but appellee had to pay debts of $886.00.

Appellant attacks the court’s findings that the equity in the home was worth $1190.00; that the furniture awarded appellant was worth $1,000.00; and that the interest in the two plumbing companies was of the value of $3,000.00. Too, appellant says even if these values are correct the division is so inequitable as to require it to be set aside.

Appellant filed a motion asking that a supplemental transcript containing the findings of fact be filed. In previous action we determined to carry the motion with the case. We have now determined that we cannot consider the findings of fact, but we grant the motion to file the supplemental transcript because it does contain the motion calling the court’s attention to failure to file the findings of fact.

The order overruling the motion for new trial was signed April 27, 1964. On May 12, 15 days later, a request was made to the judge that he file his findings. This was not within the time for such request required by Rule 296, Texas Rules of Civil Procedure. On May 22, a motion was filed calling attention to the failure to file the findings. The findings were not signed by the judge until November 12, 1964. Additional findings were not filed until November 17, 1964. The transcript was filed in this Court June 18, 1964 and the statement of facts was filed August 3, 1964. Our jurisdiction had vested and the time provided for filing findings of fact had long expired before they were approved by the judge.

We have, however, a full statement of facts which we have studied. We can consider the point urged by appellant, that the division of the property is so inequitable as to be unjust. In appraising this point we can look to the statement of facts and see if evidence as to values of the property set aside to each party, as reflected by the statement of facts, makes the division inequitable.

Appellant argues that the equity in the home awarded appellant was only $671.-00. Th'is is based on evidence showing a reduction in the indebtedness on the house and the cost of some materials, as testified to by appellant, in improving the property. There is other evidence that the value of the home above the indebtedness was about $1500.00. She argues that the value of the community interest in the furniture awarded her was only $445.00. Frankly, the evidence on this point is most confusing, though there is some testimony this was its value. However, we think on deciphering the testimony there is testimony from appellee that there was more value than this and that appellant in fact got some of his separate property. Further in argument appellant says the community interest in C. W. Allen Plumbing Company and Denver-Alien Plumbing Company must have been undervalued by the court. From the evidence the court could have concluded that the market value of the interest was $3,000.00. The book value was substantially in excess of $3,000.00, but there is testimony that the market value was approximately $3,000.00. It must be remembered that these concerns were partnerships and no partner owns any of the specific property that can be reached and sold as individual property, and a withdrawal of a partner dissolves the partnership, necessitating liquidation. These factors greatly affect the market value of partnership property.'

We cannot say the division of the property made hy the Court is inequitable.

Affirmed.


author: HIGHTOWER, Chief Justice.

text:
    Ellen D. BAY et al., Appellants, v. John W. MECOM, Trustee, et al., Appellees.
    No. 6624.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 7, 1965.
    Rehearing Denied Feb. 17, 1965.
    Overton B. Banks, Houston, for appellants.
    Fouts, Moore, Williams & Caldwell, Houston, Orgain, Bell & Tucker, Beaumont, for appellees.
   HIGHTOWER, Chief Justice.

We dispose of this appeal by sustaining all appellees’ motions to dismiss same.

The following history of the controversy and the procedural matters arising in the same between the parties in the trial court are largely as outlined in the appellees’ motions to dismiss:

Ellen D. Bay originated Suit No. 16695, being the sole plaintiff therein, and- naming initially as defendants John W. Mecom, Overton B. Banks, Sun Oil Company, and others. The controversy then as initiated by Ellen D. Bay and as was continued by Overton B. Banks and W. F. Hooks as cross-plaintiffs after Ellen D. Bay settled and had judgment entered disposing of her claims centered around the validity of a unit designation executed by John W. Me-com, Trustee, on December 29, 1954, and recorded in the deed records of Liberty County, Texas. Sun Oil Company answered the original Ellen D. Bay suit by motion to stay, abate and dismiss and by interpleader setting forth that it was the purchaser of oil and as such-a mere stakeholder not interested in the subject matter of the suit other than to pay the money in dispute to the persons justly entitled to re7 ceive it and making tender of the funds accruing from its purchases.

The trial court at an early date took note of the fact that the real controversy arose over the validity of the unit designation and that the Sun Oil Company was a mere stakeholder and not concerned with such controversy. Under date of November 13, 1959, therefore, the court entered an order acknowledging the interpleader position of Sun Oil Company and severing the action against Sun Oil Company into separate suit given the number 16695-A to be heard and determined “after the validity of said unit and the other matters involved in this suit are disposed of.” When pleadings were still filed against Sun Oil Company (although the claims against it had thus been severed from the main suit), the court on July 21, 1961, entered another order again recognizing the position of the Sun Oil Company as a stakeholder who had filed an inter-pleader action and again ordered that all proceedings against Sun Oil Company he stayed until the determination of the main action.

Prior to the entry of the order on July 21, 1961, staying proceedings against the Sun Oil Company, Ellen D. Bay, the original plaintiff, who had brought the suit contesting the validity of the unit designation, through her then attorneys, entered into a compromise and settlement, which was consummated by the entry of final judgments disposing of her suits in both the original and the severed actions. She released John W. Mecom, Trustee, and the other defendants who had been named in the main suit and ratified the unit designation. Her suit was severed from the cross-action which was being prosecuted by Overton B. Banks and W. F. Hooks as cross-plaintiffs, in which they themselves then and now contest the validity of the unit. The severed action of Bay v. Mecom, et al., was assigned No. 16695-B and final judgment entered on March 22, 1960, in such severed action disposing of the suit of Ellen D. Bay against John W. Mecom, John W. Mecom, Trustee, Carnes W. Weaver, Freeport Sul-phur Company and Sinclair Oil Company.

While this disposed of the original action of Ellen D. Bay against the main defendants, this still left her severed action 16695-A against Sun Oil Company (in which Sun had filed interpleader) pending. In order to dispose of that action Ellen D. Bay filed a motion to dismiss the suit against Sun Oil Company with prejudice and on June 1, 1960, the court entered the order dismissing the Bay suit against Sun Oil Company with prejudice and ordering Sun Oil Company to pay to Ellen D. Bay her royalty interest under the unit as recognized and ratified.

Thus, insofar as Ellen D. Bay and the Sun Oil Company were concerned, the litigation had terminated with the entry of such judgment on June 1, 1960.

At this stage of the proceedings all claims against Sun Oil Company including the cross-action of Overton B. Banks and W. F. Hooks remained severed from the main action and assigned No. 16695-A. The position of Sun Oil Company under their interpleader had been recognized and all proceedings against Sun Oil Company had been stayed until the determination of the main action No. 16695 wherein Overton B. Banks and W. F. Hooks, as cross-plaintiffs, still contested the unit designation and no final judgment has yet been entered in this severed action 16695-A.

It was at this point that Ellen D. Bay, who had departed from the scene by entry of the judgments on November 22, 1960 and June 1, 1960 re-appeared by the institution of a new suit against Sun Oil Company, which for some unexplained reason bore the No. 16695-A.

Citation was served on Sun Oil Company and they answered by pleading the prior disposition of the case by compromise, ratification of the unit and the actual payment to Ellen D. Bay by Sun Oil Company, and acceptance by her, of the payments made pursuant to such compromise.

Contending that as a matter of law there were no allegations made in this second suit by Ellen D. Bay giving her the right to any of the relief sought (which would involve setting aside her compromise and the prior judgments) and that by reason of the undisputed matters shown of record she was not entitled to any relief, Sun Oil Company filed its motion for summary judgment against Ellen D. Bay. The motion for summary judgment was sustained and judgment entered in favor of Sun Oil Company and against Ellen D. Bay on November 5, 1962. As shown by appellee’s motion to dismiss the Ellen D. Bay appeal against Sun Oil Company, there has been no bond, affidavit or deposit filed to appeal from this judgment.

Overton B. Banks and W. F. Hooks in No. 16695-A had filed on October 16, 1962, a motion for summary judgment against Sun Oil Company. Whether this motion was in the old proceeding so numbered or in the new Bay suit is uncertain but it must be held that it was filed in the old suit as they never sought or obtained leave to become parties in the new suit brought by Ellen D. Bay. Ellen D. Bay had likewise filed in her suit a motion for summary judgment. The court denied the motion for summary judgment filed by Bay, Banks and Hooks.

Appellants’ briefs intermingle and confuse the two suits and proceedings. Banks and Hooks were not parties to the new suit No. 16695-A and never perfected any appeal from the judgment in such case entered November 5, 1962. The appellant, Ellen D. Bay, against whom a final judgment was entered never perfected her appeal against Sun Oil Company by filing bond or deposit.

The briefs of the appellants do not distinguish between the two suits and are most confusing by points which intermingle their contentions in the separate suits. We sustain the motions of all appellees to dismiss the appeals of all appellants, first, because it is obvious that said appellants have attempted to prosecute appeals from two separate judgments in two separate proceedings under one appeal and one transcript. This is not to be condoned. Missouri, K. & T. Ry. Co. of Texas v. Davison, Civ.App., 55 S.W. 188; Mohr v. Cochran, 20 Tex.Civ.App. 183, 49 S.W. 677. Banks and Hooks are appealing from the judgment rendered in favor of Mecom, et al., in Cause No. 16695 and Ellen D. Bay is appealing from the order dismissing her from said suit. In Cause No. 16695-A, Ellen D. Bay is appealing from the judgment rendered against her and in behalf of Sun Oil Company.

Second, in her suit against Sun, Ellen D. Bay has failed to file an appeal bond or costs in lieu thereof. Moreover, in connection with appellants Banks’ and Hooks’ attempted appeal in the suit with appellant Bay against Sun, we have observed that they have no position in the case. They were not parties to the suit or judgment, Bay being the sole plaintiff against Sun, the sole defendant. Even had they been parties to the judgment they, as Bay, never did perfect an appeal by filing bond, affidavit or deposit. The only thing shown in the transcript in this respect is the acknowledgment of deposit in lieu of costs by Bay, Banks and Hooks in Cause No. 16695. This acknowledgment in lieu of costs in No. 16695 in a judgment between Banks and Hooks v. Mecom, Freeport and Weaver can have no application to the judgment between Bay and Sun.

The motions of all appellees herein to dismiss the appeals of all appellants herein are accordingly sustained and said appeals are ordered dismissed.

PARKER, J., disqualified and took no part in the decision of the Court


author: WILLIAMS, Justice.

text:
    AIRKEM OF NORTH TEXAS, INC., Appellant, v. B. Monroe LOVELACE, Appellee.
    No. 16510.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 29, 1965.
    Rehearing Denied Feb. 26, 1965.
    Irion, Cain, Cocke & Magee, Dallas, for appellant.
    Ross H. Scott, Dallas, for appellee.
   WILLIAMS, Justice.

Airkem of North Texas, Inc. (hereinafter called Airkem) sought a temporary injunction in the district court to restrain a former employee, B. Monroe Lovelace, from violating the terms of a restrictive covenant contained in a written agreement executed by Airkem and Lovelace on December 17, 1963. Lovelace answered with a general denial and plea of no consideration for the written agreement relied upon by plaintiff. The trial court denied Airkem’s application for interlocutory temporary injunction, and this appeal followed. Both parties in their briefs cite the recent case decided by this court, John L. Bramlet & Co. v. Hunt, Civ. App., 371 S.W.2d 787, wr. ref. n. r. e., wherein, inter alia, we said:

.“It is' well settled that in appeals .'from interlocutory orders in injunction cases the narrow question is whether the trial court abused its discretion in entering the order appealed from. Therefore, the order of a trial court in granting or in refusing to grant a temporary injunction will be reversed only when a clear abuse of discretion _■ is shown. (Citing authorities) How-:.evér, it is equally well settled that if ,.,the facts are undisputed and only questions of law are presented, it does . constitute an abuse of the trial court’s •' discretion to fail properly to apply the .> law to the facts, (citing authorities)”

Appellant Airkem contends that we should reverse the trial court’s order refusing the temporary injunction because of its .failure to apply the undisputed facts to the law of the case. Appellee responds with the contention that the facts are not undisputed and that the trial court did not abuse its discretion in entering the order appealed from. We agree with appellee and affirm the judgment.

Only two witnesses testified at the hearing before the district judge. Both were interested witnesses. Appellant’s president, Damon Shipp, testified that Airkem is; a Texas corporation engaged in the business 'of furnishing and applying chemicals fomthe purpose of removing the odor of smoke from buildings, upholstery, clothes, automobiles and other objects following a fire, in a number of counties of North ■Texas, including Dallas County, under a franchise granted it by Airkem, Incorporated; of New York. On May 1,1962 ap-pellee Lovelace was employed by Airkem ¡as a salesman under an oral employment contract. Lovelace continued to operate under this oral contract for a period of one year. On May 1, 1963, under another oral agreement between appellant and ap-pellee, appellee was promoted to sales manager and made superviser of appellant’s Smoke Odor Removal Division. Shipp testified that both oral contracts were on a “month to month” basis. He also said that on the occasion of each oral contract Lovelace agreed verbally that he was not to compete with Airkem for a period of two years after quitting or being fired. Shipp said that had Lovelace not agreed to this he would not have retained him in the employ of Airkem. During the first.part of December of 1963, Shipp asked Lovelace to enter into a written agreement and on December IS or 16, 1963 Shipp demanded that the agreement be signed by Lovelace. Such agreement, being dated December 17, 1963, was signed by both Shipp and Lovelace and contained, inter alia, a statement.to the effect that Lovelace would not engage upon, directly or indirectly, the same or similar type of business in the area covered by Air-, kern’s franchise in North Texas, for a period of two years following the date of severance of employment. This instrument does not refer to the prior oral contracts of employment. Shipp testified that if Lovelace had declined to put the agreement in writing he would have fired him that day and would not have continued his employment. On April 30, 1964 Lovelace’s ' employment with Airkem was terminated by appellant. Shipp related that following appellee’s severance from Airkem he had entéred into a competitive business of his own in the same territory. He testified that during the month of June 1964, being the only full month after the date of the hearing in which appellee had been in competition with appellant, appellant’s income from Smoke Odor Service was only $1,607.49 whereas the same month in 1963 it was $3,290.79, representing approximately a SO per cent decrease for that particular month. Shipp opined that if Lovelace was permitted to continue to compete with appellant that appellant would suffer irreparable losses.

Lovelace testified concerning his two verbal contracts of employment with Air-kem. He said that the two verbal contracts Were on a “year to year” basis rather than a “month to month” basis.

Relating to the question of an agreement not to compete, and especially with reference to the written agreement of December 17, 1963, Lovelace testified that the first time there was ever a discussion concerning such a restrictive covenant was when Shipp asked him to sign the agreement on December 17, 1963 and that the only reason he executed such agreement was at Shipp’s request so that he, Shipp, could use such agreement to influence other salesmen to sign a similar agreement. Thereafter, a few days prior to the termination of the one year’s verbal agreement, he asked Shipp if he was going to renew his contract whereupon Shipp advised him that the contract would not be renewed and he was discharged.

From this summarization of the material evidence it is quite apparent that rather than being uncontroverted, as contended by appellant, the testimony was directly conflicting in many material respects. This renders the case entirely different from Bramlet, supra. In Bramlet the testimony was uncontroverted that the original employment contract contained the restrictive covenant; that it was mutually understood by both parties that there was a restrictive covenant; and that both parties knew and understood that unless the employee executed the restrictive covenant he would not be employed. Such is not the case under the testimony related above. Lovelace had been employed originally under a verbal agreement and the same had been renewed at the end of one year with another verbal agreement. While Shipp testified that he would not have employed Lovelace had he not agreed to a restrictive condition, there is no evidence whatsoever that such understanding on Shipp’s part was ever communicated to Lovelace. To the contrary, Lovelace testified that the first time he ever discussed the restrictive covenant was when Shipp asked him to sign the agreement on December 17, 1963 as a part of a scheme or device tb persuade other salesmen to execute a like agreement. Under Lovelace’s testimony there was no consideration whatsoever for the execution of the December 17, 1963 agreement. , '.Í

In addition to this the testimony is conflicting as to the issue of irreparable damage to appellant. Appellant nowhere alleges that appellee is insolvent and the testimony is clear that appellee does have some property subject to execution in the event of judgment against him. Furthermore, Shipp’s testimony as to loss of profits during the one-month period following Lovelace’s separation from the company is vague and indefinite. On cross-examination he conceded that profits varied from month to month depending upon the number of fires. From this the court could have reasonably concluded that the SO per cent decrease in profits for the month of June 1964 was not proximately caused by the invasion of Airkem’s business by Lovelace.

We have carefully considered the entire record in this case and from such it is quite obvious to us that the trial judge has not transgressed that large area of discretion wisely vested in him by the law in such cases. The trial judge saw and observed the witnesses and heard their testimony. From this he concluded to believe Lovelace’s theory and not that of Airkem. We cannot say that the trial judge abused his discretion in denying the issuance of the temporary injunction. Texas Foundries, Inc. v. International M. & F. W. Union, 151 Tex. 239, 248 S.W.2d 460; Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549.

Appellant’s second point relates to the court’s refusal to allow appellant to introduce evidence relating to training imparted to appellee by appellant prior to the execution of the written agreement of December 17, 1963. We do not think the court committed error in this connection. Appellant’s pleading was based solely upon the written contract and not upon any verbal agreement. The trial was before the court, without a jury, and we are to assume that the court considered only material and admissible evidence in arriving at his conclusion to deny the relief sought. Moreover, any error in refusing to permit such evidence is harmless since appellant has not demonstrated that such refusal is reasonably calculated to have resulted in the rendition of an improper judgment by the trial court. Rule 434, Texas Rules of Civil Procedure.

The judgment of the trial court is affirmed.

Affirmed.


author: HOLMAN, Judge.

text:
    STATE ex rel. STATE BOARD OF REGISTRATION FOR the HEALING ARTS, Relator, v. R. Kenneth ELLIOTT, Judge, Seventh Judicial Circuit of Missouri, Respondent.
    No. 50955.
    Supreme Court of Missouri, En Banc.
    March 8, 1965.
    Thomas F. Eagleton, Atty. Gen., Albert J. Stephan, Jr., Asst. Atty. Gen., Jefferson City, for relator.
    Reed O. Gentry, Rogers, Field & Gentry, Kansas City, William B. Waters, Hale, Coleberd, Kincaid & Waters, Conn Withers, Liberty, for respondent.
   HOLMAN, Judge.

In this original proceeding relator, State Board of Registration for the Healing Arts (composed of William D. Perry, M. D., D. Elliott O’Reilly, M, D., Raymond C. Conrad, M. D., R. A. Michael, D. O., H. Graham Parker, M. D., Raymond A. Ritter, M. D., and Harry S. Still, D. O.) seeks to prohibit respondent, Honorable R. Kenneth Elliott, a judge of the Seventh Judicial Circuit of Missouri, from taking action to enforce a Stay Order issued by respondent on July 8, 1964, which required relator to “stay any further proceedings ‘In the Matter of Virgil A. Bittiker, D. O.’ and to take no further action in said matter until the further order of this court.” We issued our provisional rule on July 16, 1964.

The facts appearing in the pleadings; exhibits, and stipulation are as follows: On December 26, 1963, the Relator Board initiatéd proceeding's against Virgil A. Bit-tiker, D. O. (hereinafter sometimes referred to as “licensee”) by serving upon him a notice that it would hold a hearing, on January 25, 1964 (all dates hereinafter mentioned are in 1964), to inquire into charges to the effect that said licensee had solicited patronage by means of advertisements in various magazines, and to determine upon the evidence whether his license to practice the healing arts should be revoked. The hearing was held on the date mentioned and evidence taken, at the conclusion of which Dr. Bittiker filed a motion for dismissal, and, within 30 days thereafter, filed a brief with relator. On May 20, relator issued an “order for further hearing and the taking of additional evidence on July 11,” and same was served upon licensee, together with a subpoena commanding him to appear at said hearing. Thereafter, on June 29, relator made an order continuing the said hearing until July 18.

On July 8, licensee (a resident of Clay County) presented to respondent his verified “Petition for Stay of Proceedings and Removal of Proceedings,” wherein, in addition to the facts heretofore stated, licensee alleged that relator’s action in ordering a further hearing, and its refusal to decide the motions presented at the initial hearing, constituted an unreasonable delay on the part of relator within the meaning of § 536.100 (all statutory references are to RSMo 1959, V.A.M.S.), and the similar provisions of. Civil Rule 100.03, V.A.M.R., and prayed that the court (a) enter its order temporarily staying any further proceedings on the part of relator, and (b) to remove the proceedings from the relator to the Circuit Court of Clay County for decision upon the pleadings and evidence theretofore taken before said Relator Board.

On the basis.of licensee’s petition, and apparently without notice to relator, the court entered an order requiring relator and the individual members thereof to stay any further proceedings “in the matter of Virgil A. Bittiker, D. O.” and to take no' further action in said matter until the further order of the court, and set licensee’s petition for hearing on July 30, on the question of whether relief should be granted in accordance with the “unreasonable delay” provision of § 536.100.

After the issuance of our provisional rule relator proceeded to hold the hearing on July 18 and licensee filed a brief with relator on August 21. On September 19, relator entered an order revoking the license of Dr. Bittiker to practice the healing arts, effective immediately. Thereafter, Dr. Bittiker filed a petition in the- Circuit Court of Clay . County, under the ■ provisions of § 536.100, to review said order revoking his license and said review proceedings are now pending in said court It has been stipulated that relator voluntarily stayed the enforcement of its order of revocation pending disposition of said review proceedings.

The primary contention stated by relator in its application for prohibition was that the petition filed by licensee with respondent on July 8 was not a petition for review within the meaning of §§ 536.100, 536.110, and 536.120; that said last named section did not authorize the respondent to enter the stay order heretofore described, and further, that the respondent was without any jurisdiction in the case because the venue thereof was in the Circuit Court of Cole County and not in the Clay County Circuit Court. In its brief filed herein relator, in addition to the foregoing contentions, also contends that the proceeding is how moot because it has decided the matter, revoked Dr. Bittiker’s license, and its action in that respect is now properly pending in the Circuit Court of Clay County upon review proceedings.

Section 536.100 reads as follows: “Any person who has exhausted all administrative remedies provided by law and who is aggrieved by a final decision in a contested case, whether such decision is affirmative or negative in form, shall' be entitled to judicial review thereof, as provided in section 536.100 to 536.140, unless some other provision for judicial review is provided by statute; provided, however, that nothing in this chapter contained shall prevent any person from attacking any void order of an agency at any time or in any manner that would he proper in the absence of this section. Unreasonable delay on the part of any agency in deciding any contested case shall be grounds for an order of the court either compelling action by the agency or removing the case to the court for decision.” (The portion which licensee sought to invoke is italicized.)

Section 536.110 provides, in part, as follows: “1. Proceedings for review may be instituted by filing a petition in the circuit court or court of common pleas of the county of proper venue within thirty days after the mailing or delivery of the notice of the agency’s final decision. * * * 3. The venue of such cases shall, at the option of the plaintiff, be in the circuit court of Cole county or in the county of the plaintiff or of one of the plaintiff’s residence. * * * ”

Section- 536.120 .contains the following: “Pending the filing and final disposition of proceedings.-for review under sections 536.100 to 536.140, the agency may stay the enforcement of its order and may temporarily grant or extend relief denied or withheld. Any court in which such proceedings for review may be pending may issue all necessary and appropriate process to stay or require the agency to stay the enforcement of its order or temporarily to grant or extend or require the agency temporarily to grant or extend relief denied or withheld, pending the final disposition of such proceedings for review. * * * ”

In his brief respondent contends that the. petition filed on July 8 was a proceeding seeking a judicial review within the meaning of the applicable sections of Chapter 536, and therefore § 536.110 authorized Dr. Bittiker to choose Clay County for the venue of his suit, and § 536.120 authorized the Stay Order entered on the date aforesaid.

It is apparent from the contentions of the parties, as hereinbefore stated, .that (aside from the question of mootness) the decision in this case will turn on the question as to whether or not the petition filed with respondent constituted a proceeding for “judicial review” within the meaning of that phrase as it appears in §§ 536.100 to 536.140, inclusive.

For the reasons hereinafter stated we have concluded that Dr. Bittiker’s petition, which admittedly sought a transfer of the proceeding from relator to the circuit courf for an initial decision, did not constitute a' proceeding for “judicial review” within the meaning of the sections heretofore mentioned. It necessarily follows from' the foregoing that the venue of the case was not in Clay County, and, there being no contention of waiver of venue, the’ respondent had no jurisdiction over the person of relator and hence could not law-' fully enter the Stay Order or take any other action in the case.

There is no dispute about the fact thatj the proceeding pending before the relator was a contested case and therefore § 536.-. 100 was applicable to it. In analyzing thatt section it will be seen that the part .thereof down to and including the figures “536..-140” is the only portion of the section whichj relates to a judicial review by reason-of. Chapter 536. That part clearly states that a person is entitled to such a review if he has exhausted all administrative remedies and is aggrieved by a final decision in a contested case. The remainder of the section relates to relief other than review under the provisions of §§ 536.100 to 536.140. It states that review under those sections is not available if “some other provision for judicial review is provided by statute.” It also specifies that a void order of an agency may be attacked at any time and in any manner that would be proper in the absence of § 536.100. Then follows another exception to the review provision, i. e., that unreasonable delay in deciding any contested case shall he grounds for an order of court (1) compelling action by the agency or (2) removing the case to the court for decision.

We have been unable to determine where the General Assembly obtained the suggestion for the provision that unreasonable delay should be grounds for removing the case to the court for decision. It is not included in the Model State Administrative Procedure Act, 9C Uniform Laws Annotated 170. Nor is it contained in the Federal Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq. It is not in harmony with the basic theory of all the remainder of §§ 536.100 to 536.140 because all of the other provisions relate to judicial review and the scope of review of final.decisions of the administrative agency. The provision under consideration relates to a situation where there has been no decision by the agency and provides for an initial decision by the court. It is therefore obvious that it does not provide for a judicial review because there has been no decision which could be reviewed. In Black’s Law Dictionary, Fourth Edition, the word “review” is defined: “To reexamine judicially. A reconsideration; second review or examination; revision; consideration for purposes of correction. Used especially of the examination of a cause by an appellate court.” And in Webster’s Third New International Dictionary, the word “review” is defined as, “to re-examine judicially.” The phrase, “judicial review,” as used in the sections under consideration, is obviously intended to have a meaning similar to the word “appeal,” and in Black’s, supra, it is said that “an ‘appeal’ is a step in a judicial proceeding, and in legal contemplation there can be no appeal where there has been no decision by a judicial tribunal.”

In support of his contention that the venue of Dr. Bittiker’s petition is in Clay County respondent relies upon the provision in § 536.110(3) to the effect that in proceedings for review, the venue, at the option of plaintiff, may be in the county of his residence. That section, however, is expressly limited in subdivision (1) to “proceedings for review” which “may be instituted by filing a petition in the circuit court or court of common pleas of the county of proper venue within thirty days after the mailing or delivery of the notice of the agency’s final decision.” (Italics ours.) Since there had been no final decision in the matter when the petition under consideration was filed, § 536.110 would have no application and would not affect the venue of the suit.

Respondent also contends that the petition filed July 8 seeks a “judicial review” because plaintiff therein alleged that the matter pending before relator should be transferred to the circuit court and that a decision should be made solely upon a consideration of the evidence theretofore taken before relator. The main difficulty with that contention is that Dr. Bittiker had no right to specify the terms upon which the decision would be made. The provisions of § 536.140, restricting the court in review proceedings to the record made before the agency, do not apply to the transfer provision of § 536.100. In some cases that may be transferred, it could be that no evidence had been taken before the agency and hence all of the testimony would, of necessity, be heard in the circuit court. In other cases, while the court could likely consider the evidence taken before the agency, we doubt that the court could restrict the evidence to that so taken because it would be a proceeding calling for an initial decision by the court. In such cases the court would at least have the discretionary power to permit either party to offer additional evidence.

We have heretofore held that the proceeding pending before respondent is not a proceeding for “judicial review” and hence the venue provision contained in § 536.110 would have no application to that action. We further hold that since relator (defendant therein) is a state agency, required by § 334.125 to maintain its office in Jefferson City, the venue of actions such as the ■one instituted by licensee (there being no other statutory provision) is in Cole County. See § 508.010, State ex rel. State Tax Commission v. Walsh, Mo.Sup., 315 S.W.2d 830, State ex rel. Toberman v. Cook, 365 Mo. 274, 281 S.W.2d 777, and State ex rel. Dalton v. Oldham, Mo.Sup., 336 S.W.2d 519.

It follows from the foregoing that respondent does not have jurisdiction over the person of relator, and, since he assumes ■so to have, prohibition is the proper remedy. State ex rel. Toberman v. Cook, supra.

Our provisional rule in prohibition is •made absolute.

EAGER, C. J., and STORCKMAN, HYDE, HENLEY and FINCH, JJ., and STONE, Special Judge, concur.

DALTON, J., not sitting.


author: HIGGINS, Commissioner. PER CURIAM.

text:
    Milton M. THOMSON, Appellant, v. The KANSAS CITY STAR COMPANY, a Corporation, Respondent.
    No. 50476.
    Supreme Court of Missouri, Division No. 1.
    March 8, 1965.
    Ray D. Jones, Jr., Kansas City, for plaintiff-appellant.
    Douglas Stripp, Allan L. Bioff, Kansas City, Watson, Ess, Marshall & Enggas, Kansas City, of counsel, for respondent
   HIGGINS, Commissioner.

Action for $25,000 actual and $100,000 punitive damages for libel. The trial court dismissed plaintiff’s petition for failure to state a claim, and plaintiff has appealed.

Plaintiff’s petition relates to an article in The Kansas City Times (The Morning Kansas City Star) July 30, 1960. The ar-tide, with letter designations and emphasis on specific portions mentioned in subpara-graphs A through E, paragraph 3, and in paragraph 5 of the petition, follows:

A. “MONEY FLOWS INTO PRIMARIES
“Johnson County is Witnessing New Approach in Campaign by Democrats
“HOT RACE FOR SHERIFF
B. “Some Party Members Show Concern
Over Source of Funds
By Dick Nichols (A Member of The Star’s Staff)
“Soaring registration and intense activity clear down to the precinct level give indications of one of the liveliest primary elections in years in Johnson County.
<rWith the campaigns winding up this weekend for all practical purposes, the voters have a brief opportunity to reflect on their choices to represent the party tickets.
“Plenty of Democrats.
“For legislative and county offices, the Democrats give the widest choice with six races among 13 candidates. The G.O.P. has contests in only four offices.
“A new element has been injected into the Democratic primary. Where in past years money has been in particularly short supply, C. a few candidates have come out with campaigns that provide signs of well-heeled backing with (all) the trimmings.
“The 3-man race for the sheriff nomination has served as a prime example of the effect of money. In that one, Milton M. Thomson, a private detective who was defeated in the 1958 general election, has plastered the county with his signs.
“The personable Thomson within the year has passed more or 5. less unmarked through two brushes with the law. He is opposed by the Merriam chief of police, Jack Dodson, and Bob Stewart of Overland Park, who is employed privately in police work also.
“Many Signs Up.
"Many party organisation Democrats have expressed concern over Thomson’s candidacy and the source of his campaign funds. An D. opposition party candidate estimated that 2,000 reflector-type signs for Thomson, costing about 50 cents each, had been put up.
“Johnson County Democrats long have feared encroachments by E. their more powerful colleagues in Kansas City and Jackson County. Even ministers in the suburban territory have expressed their concern in recent sermons.
“Political observers in Johnson County believe that both parties will gather record vote totals in the primary. Estimates that the combined total will exceed 35,000 have not been ruled out of line.
“A traditional split would give the Republicans 20,000 total votes and the Democrats 15,000. Normally things are somewhat closer in the general election.
“Senate Race-, is Hot.
“Hottest race going in the county on the G.O.P. side is between two lawyers, seeking the office of state senator. In that one Qark Kuppinger, who served five terms as the sole member of the House from Johnson County, is opposed by Wayne Zeigler, young Roeland Park city attorney.
“Kuppinger, whose home is in Prairie Village, has his long record going for him, but Zeigler has waged the more intensive campaign.
“Another G.O.P. battle that bears watching is between Herbert W. Walton, an assistant county attorney, and Warren G Neal, lawyer, for the probate judge nomination. The Republicans also provide a repeat of the 1958 primary in the contest between Mrs. Louise Hale and William A. Baker for the assessor nomination.
“Mrs. Hale won the first round two years ago, but lost to Thomas R. Martindale, Democrat, in the general election. He is running again. Martindale is unopposed.
“Two from Olathe.
“The Democrats also have a race for state senator in which an Olathe lawyer, Lawrence Loftus, is running against a businessman there, William O. Turner.
“In another area, Commissioner Harry King, jr., is seeking the Democratic mantle for a second term, opposed by Kenneth Heard, a Shawnee city councilman who operates real estate and professional bonding agencies.
“Two women hold the spotlight in one Republican battle. Mrs. Betty West, clerk of the district court, is opposed for the nomination by Mrs. Marie Murphy from Prairie Village.”

Among other things plaintiff alleged that “defendant maliciously and without just cause or excuse liabled (sic) plaintiff by publishing and circulating over 300,000 copies of a false and malicious article about plaintiff’s candidacy which imputed a criminal act to plaintiff and the false reported facts and malicious comment about plaintiff tended to expose plaintiff to public contempt and to deprive him of public confidence * * * ”; that the article is false and untrue in the following particulars (Set forth here are items A through E and 5 above, together with complaints respecting each item which will be considered later); that the article imputes to plaintiff a violation of the Kansas statute governing the amount a candidate may spend; that the “article improperly comments plaintiff ‘has passed more or less unmarked through two brushes with the law’ without stating the entire facts relating to plaintiff’s court proceedings and said article is intended to create the impression that plaintiff is a law violator who somehow escaped conviction and therefore * * * tends * * * to injure plaintiff in his campaign for sheriff”; that “Plaintiff was liabeled (sic) and said liable (sic) tended to disparge (sic) and injure plaintiff in his business as a private detective, as a candidate for public office * * * and * * * tended to expose plaintiff to public hatred, contempt and ridicule, and to deprive him of the benefits of public confidence and social intercourse, and * * * tended to blacken his reputation as a man capable of law enforcement free of political influence, and * * * imputed crime and unsavory political dealings and connections thereby, * *

Plaintiff has limited his appeal to a single issue, stating that “The question for determination is whether or not the publication was libelous on its face.” He contends “the following false statements, Ministers Show Concern; Money Flows Into Primary; Party Leaders Show Concern over Thomson candidacy and the source of his campaign funds and other statements conveyed the idea to the reader that plaintiffs character was questioned by moral and political leaders, therefore the article was libelous per se on its face * * * by reason this article tended to expose him to public hatred, contempt, or ridicule and tended to deprive him of the benefits of public confidence.”

In this situation we must determine if the published words constitute libel per se. This function was stated in Langworthy v. Pulitzer Publishing Co., Mo., 368 S.W.2d 385, 388 [5, 6] : “ ‘In determining whether language is libelous per se, it must be viewed stripped of any pleaded innuendo. The meaning of the phrase “per se” is “taken alone, in itself, by itself.” Words which are libelous per se do not need an innuendo, and, conversely, words which need an innuendo are not libelous per se.’ Shaw Cleaners & Dyers, Inc. v. Des Moines Dress Club, 215 Iowa 1130, 245 N.W. 231, 86 A.L.R. 839. The motion to dismiss * * * does not admit the construction of the words pleaded in an innuendo, Fritschle v. Kettle River Co., 346 Mo. 196, 139 S.W.2d 948; Hylsky v. Globe Democrat Pub. Co., 348 Mo. 83, 152 S.W.2d 119, and whether the alleged libelous words, when given their natural meaning, Bernhardt v. Armbruster, Mo.App., 217 S.W.2d 759; Lightfoot v. Jennings, 363 Mo. 878, 254 S.W.2d 596, are ‘capable of the defamatory meaning ascribed to them’ is a question of law for the court to decide on a motion to dismiss. Cook v. Pulitzer Pub. Co., 241 Mo. 326, 145 S.W. 480, 485.”

Section 559.410 RSMo 1959, V.A. M.S., defines libel: “A libel is the malicious-defamation of a person made public by any printing, writing, sign, picture, representation or effigy tending to provoke him to-wrath or expose him to public hatred, contempt or ridicule, or to deprive him of the benefits of public confidence and social intercourse, * * Any language which, reasonably construed, comes fairly within-the statutory language is libelous per se, Seested v. Post Printing & Pub. Co., 326 Mo. 559, 31 S.W.2d 1045, 1052 [4-7]; Moritz v. Kansas City Star, 364 Mo. 32, 258 S.W.2d 583, 588 [8]; Coots v. Payton, 365 Mo. 180, 280 S.W.2d 47, 53 [11, 12]; however, the allegedly libelous language must be defamatory in its nature in order to support an action for defamation, and if a publication cannot reasonably bear a defamatory meaning, it cannot be the basis for an action for libel. Diener v. Star-Chronicle-Pub. Co., 230 Mo. 613, 132 S.W. 1143, 33 L.R.A.,N.S., 216; Hylsky v. Globe Democrat Pub. Co., 348 Mo. 83, 152 S.W.2d 119; Julian v. Kansas City Star Co., 209 Mo. 35, 107 S.W. 496; Walsh v. Pulitzer Pub. Co., 250 Mo. 142, 157 S.W. 326; Creekmore v. Runnels, 359 Mo. 1020, 224 S.W.2d 1007.

The application of the statute is illustrated' by the second case of Diener v. Star-Chronicle Pub. Co., 230 Mo. 613, 135 S.W. 6, 11: “(I)t is argued that the tendency of the publication was to expose plaintiff to ‘public hatred, contempt, or ridicule, or to deprive him of the benefits of public confidence and social intercourse,’ * * *. But he who-thinks that an article merely having that tendency is either a civil or a criminal libel has studied the law of libel to little purpose. The controlling words * * * are ‘malicious defamation by means of printing and writing, etc., tending to provoke him to wrath or expose him, etc. There must be defamation in a libelous sense before there can be a libel. * * * To make a libel there must be defamation in the sense of the law, before the public scorn and contempt feature is operative. Defamation includes the idea of calumny, aspersion by lying; the injury of another’s reputation in that way. To defame is to speak evil of one maliciously, to dishonor, to render infamous.” This application was amplified in Coots v. Payton, supra, 280 S.W.2d 1. c. 53 [14] : “ ‘ * * * the defamatory words must be of such a nature that the court can presume as a matter of law that they will tend to disgrace and degrade the person or hold him up to public hatred, contempt, or ridicule or cause him to be shunned and avoided; * * * they must reflect on his integrity, his character, and his good name and standing in the community, and tend to expose him to public hatred, contempt, or disgrace. * * * It is not sufficient, standing alone, that the language is unpleasant and annoys or irks plaintiff * * *.’ ”

We turn now to the parts of the article alleged to be libelous which we have previously designated and emphasized for ready reference. Plaintiff charged that item A was false and untrue in that plaintiff received approximately $45 from local political amateurs; that B was false and misleading in that no one showed a concern over a source of funds, and that such subheadline was inserted for the purpose of connecting plaintiff to improper sources of funds connected with trickery and deceit; that C was false in that his campaign was not well-heeled, his entire financing being approximately $45; that D is false because his signs cost but eight cents apiece; that if the statement were true, he would be guilty of violating criminal statutes, and that no Democrat expressed concern; that E is false because no ministers have expressed concern, and that the article imputes a connection between plaintiff and a powerful political party; that 5 fails to state the entire facts relating to plaintiff’s court proceedings and creates an impression that plaintiff is a law violator who escaped conviction.

These constructions, whether of the article in entirety or of its parts out of context, are forced and strained, a vice in which we shall not engage. Diener v. Star-Chronicle Pub. Co., supra, 132 S.W. l. c. 1148. We cannot infer criminal activity by plaintiff, nor can we connect him with sources involved in trickery and deceit from the headline (A) or from any of the recitals such as C which suggest that plaintiff has financial backing. Neither does the subheadline (B) or the concern of Democrats or ministers as recited in items D and E lead to an inference that plaintiff’s character was questioned, or to any inference suggested by plaintiff. The article itself answers the matters of “concern” when it states plainly in E that the fear or concern of Johnson County Democrats is that of encroachment by powers in Kansas City and Jackson County, Missouri, and it is this same fear of intrusion into local affairs by interests fin the neighboring large city which is attributed to ministers. We can find no defamation in such statements. Even if they can be said to imply support or financing by Democrats in Kansas City, Missouri, such statements are free of defamation because there is nothing unlawful, improper or immoral on the face of such assistance. For the same reason, plaintiff could not be libeled if it be said that the article imputes connection with a powerful political party (E). Such would more likely be a desirable situation if the candidate hoped to attract support from his political party.

We find nothing in the article which imputes political support to plaintiff by persons of ill repute. If such a strained construction be possible, we have held in Walsh v. Pulitzer Pub. Co., supra, that a newspaper’s statements, “‘(H)is sponsors and his associates are survivors of the most degraded regime that St. Louis ever knew,’ ” and “ ‘(h) e can have no proper motive in aspiring to the place/ ” were not libelous of a lawyer seeking to become circuit attorney. The court said that “Something more than the mere general allegation as to the character of plaintiff’s sponsors and his association with such characters as are designated is necessary to impute a crime to the plaintiff (citing cases), and that he ‘can have no proper motive in aspiring to the place’ is not a charge against his character or a reflection ón his reputation, but a mere matter of opinion of which the voters are to be the judges.” 157 S.W. 329 [6,7].

Plaintiff’s charge that the article imputes a violation of Kansas law also does not stand the test of libel per se. There is nothing in the recital (D) that an opposition party candidate estimated that 2,000 signs costing about 50 cents each had been put up, that is libelous or defamatory on its face. Plaintiff seeks to aid this allegation by pleading extrinsic facts to the effect that the law limits a candidate to an expenditure of ten per cent of the first year’s salary of $8,900, and an expenditure of $1,000, therefore, would be in violation of the law. The article does not say that Thomson himself spent any money, and he complains elsewhere that the article implies that his backing comes from sources other than himself. To find this language defamatory would call for another forced and strained inference to be placed on otherwise innocuous language plus a resort to inconsistent innuendo.

The statement (5) to the effect that plaintiff has passed unmarked through two brushes with the law is not charged to be false, plaintiff’s only complaint being that the article failed to state “the entire facts relating to plaintiff’s court' proceedings.” Such complaint thus admits the existence of court proceedings and no authority need be cited for the proposition that truth is a defense to alleged defamation. Plaintiff would again construe a statement as libelous by a forced and strained suggestion that the recital leads to an inference that he is a “law violator” who “escaped conviction.” We cannot reach that result because one who passes unmarked through legal proceedings and thereby remains free of conviction, normally does so because he is not a law violator. .

Plaintiff contends that he is supported by (1) Moritz v. Kansas City Star, supra, (2) Meriweather v. Publishers: George Knapp & Co., 120 Mo.App. 354, 97 S.W. 257, and (3) Lightfoot v. Jennings, 363 Mo. 878, 254 S.W.2d 596. Those cases are readily distinguished, however, because on their own facts, they held: (1) that it was libelous per se to charge an attorney with soliciting business, a charge, of unprofessional conduct; (2) that a question was raised for the jury when a publication charged plaintiff with associating with or being like another- person who had already been established as a- vile, dishonest, corrupt, and criminal defendant;' and (3) that imputation of political principles such as communism, objectionable to the average person in a community, is defamatory and actionable per se.

We have interpreted the article in the present case from its four corners and, giving the article its ordinary meaning in the plain and popular sense and construing the words fairly by their natural import, Jacobs v. Transcontinental & Western Air, 358 Mo. 674, 216 S.W.2d 523, 525 [4], we agree with the trial court that the article and its words do not constitute a libel actionable per se within the meaning of the tests here cited.

Defendant has briefed the defense of privilege also, but, having reached this result, we need not extend our opinion to cover that subject

The petition was properly dismissed, and the judgment of dismissal is affirmed.

HOUSER and WELBORN, CC., concur.

PER CURIAM.

The foregoing opinion by HIGGINS, C., is adopted as the opinion of the court.

All concur.