author: WERLEIN, Justice.

text:
    Dora C. ALLEN, Appellant, v. Bedford E. ALLEN, Appellee.
    No. 14010.
    Court of Civil Appeals of Texas. Houston.
    Dec. 6, 1962.

      Gerald S. Gordon, Houston, for appellant.
    R. Shearn Smith, Houston, for appellee.
   WERLEIN, Justice.

The trial court decreed a divorce in favor of appellant and awarded to her custody of the minor child, child support, and the use of the home until the minor child reaches the age of 18. Appellant has not appealed from such provisions of the decree, but complains of the court’s failure to adjudicate her community interest in railroad retirement benefits, the court’s denial of attorney’s fees, and the court’s alleged errors in several other respects.

The evidence with respect to the railroad retirement benefits of appellee is quite meager. There is evidence that appellant and appellee were married in November, 1936 and separated March 7, 1961. Ap-pellee’s average gross earnings were approximately $450.00 per month plus an allowance for gas and oil for his car. The evidence also shows that he had worked for the railroad for some thirty-odd years, but he did not know what his benefits amounted to and no evidence was introduced concerning the same, other than ap-pellee’s testimony that he would receive “so much a month” when he retired.

There is no mention of railroad retirement benefits in the inventory of property filed by appellant or in the inventory filed by appellee, or in the decree of the court granting the divorce and dividing the property, or in the court’s findings of fact and conclusions of law. In the court’s additional findings of fact and conclusions of law made on request of appellant, the court stated: “Due to the insufficiency of the-evidence as to the status of a railroad retirement benefit, the Court made no findings concerning the same.”

There is nothing in the record to show that appellant excepted to such finding nor is there anything in the record to show that appellant excepted to any of the orders of the court made with respect to the production in court of records of the parties. The court made no specific order requiring appellee to produce any record in connection with railroad retirement benefits. Appellant filed a motion on January 11, 1962 asking the court to reopen the case and to require appellee to produce a complete statement from the Railroad Retirement Board of all his accrued rights and benefits under the Railroad Retirement Act. Pursuant to such motion the court ordered the hearing for January 17, 1962. It is not shown anywhere in the record that such hearing was had nor does it appear why such hearing was not had. There is no bill of exception with respect to such matter and nothing is brought forward in the record preserving any error in such connection, if such there was. We think there was no error in the court’s failure to make any findings of fact concerning railroad retirement benefits.

This Court may take judicial notice of the Railroad Retirement Act of 1937, as amended, 45 U.S.C.A. § 228a et seq.; and of the fact that railroad employees and their employers share the cost of employees’ retirement benefits. The fact that appel-lee’s employer made deductions from ap-pellee’s earnings belonging to the community does not establish, as appellant asserts, that there was any accumulated community property right in railroad retirement benefits susceptible of division when the divorce was granted.

Section 228l of the Retirement Act, which is controlling, provides:

“Notwithstanding any other law of the United States, or of any State, Territory, or the District of Columbia,, no annuity or pension payment shall be assignable or be subject to any tax or to garnishment, attachment, or other legal process under any circumstances whatsoever, nor shall the payment thereof be anticipated.”

It is our view that the trial court had no power to divide any anticipated future railroad retirement benefits or to give appellant any interest therein, and that the court did not err in failing to make a disposition thereof.

In Commonwealth v. Berfield, 160 Pa.Super. 438, 51 A.2d 523, the court said:

“The general language of the provision exempting the annuity or pension from ‘attachment, or other legal process under any circumstances •whatsoever’ (emphasis added) bars a wife from looking to a fund though earmarked for the payment of an annuity to her husband. Under this Act of Congress funds supplied by railroads and their employees are paid into the United States Treasury. Through an administrative agency of government a railroad employee on retirement is entitled to receive from the treasury an annuity based upon his and his employer’s contributions to the fund.”

It is true that in several jurisdictions, courts have held that where railroad retirement annuities or pensions have matured and are being paid to a retired employee, the court may consider such payments as income of the employee in determining the amount of alimony that should be paid a divorced wife. Heuchan v. Heuchan, 1951, 38 Wash.2d 207, 228 P.2d 470, 22 A.L.R.2d 1410, and annotations; Commonwealth v. Berfield, supra. We have neither found nor been cited to any case in which a court has undertaken to apportion or divide a railroad retirement benefit that has not matured and is not being paid in the form of an annuity or pension.

Berg v. Berg, Tex.Civ.App., 115 S.W.2d 1171, writ dism., is distinguishable from the instant case. In that case the employee had retired and was receiving a monthly annuity when the divorce was granted. The court merely awarded the needy wife a portion of the payments being made and secured the payment thereof by a lien on the husband’s separate estate. The case does not hold that the court may make an award of an annuity which an employee may receive at some indefinite period in the future. When such payments are finally made, they will in effect be paid in lieu of the husband’s earnings when he is no longer gainfully employed. Such payments which will be made in the form of monthly annuities or pensions are not property or “the estate of the parties” within the meaning of Article 4638, Vernon’s Annotated Civil Statutes, any more than future wages which might be received by an employee are property subject to division. McBride v. McBride, Tex.Civ.App., 256 S.W.2d 250. Moreover, an examination of Section 228b and the other sections of the Act clearly show that such Act provides definitely and in detail the conditions under which retirement payments will be made and to whom they are payable. No provision is made for a divorced spouse. The supremacy of this Act of Congress over State law must be recognized.

As set out in the complicated provisions of Section 228b of the Railroad Retirement Act, the spouse of a retired annuitant or pensioner may also receive an annuity or pension. The act provides, however, “Such spouse’s annuity shall cease at the end of the month preceding the month in which (i) the spouse or the individual dies, (ii) the spouse and the individual are absolutely divorced * * It is our view that such provision indicates the Congressional intent and that the divorced wife also has no claim to retirement benefits of her divorced husband which have not matured and are not being paid, although earmarked for payment to him after he has retired and his earnings have ceased. In our opinion, the future annuities that may be paid are in the nature of Social Security payments and are no more subject to division than are future Social Security payments. Although the court made no findings relative to railroad retirement benefits and did not state that it was considering the retirement benefits which ap-pellee might receive in the future, or the Social Security benefits of appellant which she might receive in the future, there is nothing to show that the court, which had knowledge of both such future benefits, did not take them into consideration in dividing the community estate.

The court decreed that appellee contribute to the support and maintenance of the minor, Douglas Earl Allen, then II years of age, until such minor reaches 18 years of age, the sum of $100.00 per month in semi-monthly payments of $50.00 each, through the Harris County Probation office, and that the home place, known as 7337 Oak Hill Drive, Houston, being Lot 40 in Block 1 of Oak Plaza, Section 1, an Addition to Harris County, Texas, be set aside unto appellant for the use and benefit of appellant and the minor until he reaches the age of 18. The court ordered that certain personal property be set aside to the minor child as his separate property. The court then decreed to appellant and ap-pellee, equally, all the remainder of the community property, both real and personal, as shown in the inventory on file, and that $1,000.00 debt owed the community estate by Texas Gulf Trust Company as stipulated by the parties.

We think the trial court, in its judgment, erred in referring to the $1,000.00 debt as being owed the community estate by Texas Gulf Trust Company as stipulated by the parties. There is no such stipulation in the record. Moreover, the undisputed evidence shows that such amount was repaid to appellant by said company and that $600.00 of it was returned by her to the savings account from which it vtas drawn and the balance was probably used for living expenses.

There is no merit in appellant’s contention that the trial court erred in failing to spell out with greater particularity who would take care of repairs, taxes, and payments on the home. The court in its additional findings and conclusions stated:

“The equity of the parties in the property known as Lot 40 in Block 1 of Oak Plaza, Section 1, an addition to Harris County, Texas, was awarded to the Cross-Plaintiff and Cross-Defendant and each given an undivided one-half interest therein as of February 27, 1962.”

This means that subject to the right in appellant to use the home for herself and the minor, as hereinabove stated, the home, like all the other property, is decreed to both appellant and appellee, equally, share and share alike. Appellant and appellee are cotenants or joint owners of the home and the other real estate, and their rights inter se are governed by the law applicable to joint owners of realty. The care and upkeep of the property rests upon them collectively, so that if one makes an outlay for the necessary or proper preservation of the common property he or she would be entitled to be reimbursed by the other, and equity would give the one making such outlay a lien to enforce repayment. Schluter v. Sell, Tex.Civ.App., 194 S.W.2d 125; Putty v. Putty, Tex.Civ.App., 6 S.W.2d 136; Gray v. Taylor, Tex.Civ.App., 138 S.W.2d 891, Dism., Judgment correct; Gilroy v. Richards, 26 Tex.Civ.App. 355, 63 S.W. 664; 15 Tex.Jur.2d, p. 169, Co-tenancy, § 12.

The $1,253.00 which appellant contends appellee secreted, and which amount had been drawn out by appellee from bank accounts, and allegedly not included in the inventory, was accounted for by appellee who testified he had paid community debts with such money. The trial court’s finding that he had paid community debts with such money finds support in the evidence. Such finding was not excepted to.

We cannot say that the trial court erred and abused its discretion in failing and refusing to award appellant a reasonable attorney’s fee in the sum of $750.00-With respect to such matter, the court in its additional findings and conclusions stated: “Due to the relative income and ability to pay of the Cross-Plaintiff and Cross-Defendant the Court declined to order the Cross-Defendant to pay attorney’s fees for the Cross-Plaintiff.”

The court in its original findings of fact stated: “That Dora C. Allen has been working regularly for a number of years and is permanently employed, and has a greater take home pay than Bedford E. Allen.”

Appellant failed to show any need or necessity for an allowance of attorney’s fees for the protection of her rights. In Carle v. Carle, 1950, 149 Tex. 469, 234 S.W.2d 1002, our Supreme Court stated: “The attorney’s fee is but a factor to be considered by the court in making an equitable division of the estate, considering the conditions and needs of the parties and all of the surrounding circumstances.”

The law is well settled in this State that in a divorce case thb trial court is clothed with wide power and discretion in disposing of the community property of the parties, and the court’s division will not be disturbed on appeal unless it is shown that the trial court abused its discretion by making an unjust and unfair settlement between the parties. Eaton v. Eaton, Tex.Civ.App., 226 S.W.2d 644. The law is also well settled that in making the division the court may consider the disparity in the earning power of the parties, their business opportunities, capacities and abilities. Stanley v. Stanley, 1956, Tex.Civ.App., 294 S.W.2d 132, writ ref., n. r. e.; Venezia v. Venezia, Tex.Civ.App., 227 S.W.2d 881, and authorities cited; Earnest v. Earnest, Tex.Civ.App., 223 S.W.2d 681.

The judgment of the Trial Court is reformed by deleting therefrom the phrase, “and that $1,000.00 debt owed the community estate by Texas Gulf Trust Company as stipulated by the parties herein,” and, as reformed, is affirmed.


source: Caselaw Access Project

author: STEPHENSON, Justice.

license: Public Domain

text:
    John W. NILES et al., Appellants, v. Frank R. DEAN, Jr., Appellee.
    No. 6573.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 29, 1962.
    Rehearing Denied Dec. 19, 1962.

      George W. Morris, Conroe, R. F. Roberts, Beaumont, for appellants.
    McClain & Harrell, Conroe, for appel-lee.
   STEPHENSON, Justice.

Frank R. Dean, Jr., brought this action in trespass to try. title, against numerous defendants, to recover title to approximately 1280 acres of land in the John W. Niles Survey of Montgomery County, Texas. The jury found favorably for the plaintiff under both the five-year and ten-year statutes of limitation. The trial court rendered judgment for the plaintiff. Notice of appeal was given only on behalf of R. F. Roberts, Genevieve Odell Reedy and husband, S. V. Reedy, J. V. Datin, O. W. Harris, George W. Morris and Dorothy O. Hopkins. The parties will be designated here as they were in the trial court.

These defendants rely primarily upon the contention that the plaintiff’s predecessors in title entered upon the land in question in recognition of the owner’s title to a part of the land, and that there was no repudiation of such owner’s title, and therefore as a matter of law, no adverse possession could be perfected. The evidence in this record in reference to this point, shows the following:

(1) I. B. Price executed a quitclaim deed dated March 17, 1913 to F. R. Dean, W. A. Dean and T. R. Dean covering 1280 acres of land and being all of the John W. Niles Survey “except 240 acres belonging to McDonald and Odell, 20 acres belonging to Amsler, and 10 acres belonging to Monroe Bennett.” This deed was filed for record March 28, 1913 and recorded March 29, 1913 in the Deed Records of Montgomery County, Texas.

(2) March 25, 1935 F. R. Dean, W. A. Dean and T. R. Dean executed an oil and gas lease to Tulane Gordon, covering 1010 acres of land and using the same description as set out in the Price d&ed'above mentioned, including the exception of the 270 acres.

(3) November 7, 1939, F. R. Dean, W. A. Dean and T. R. Dean executed an extension to Humble Oil and Refining Company of the oil and gas lease mentioned above.

(4) December 30, 1944, a partition deed was executed by W. A. Dean, T. R. Dean and F. R. Dean, Sr., conveying to F. R. Dean, Sr., a tract of land containing 1280 acres of land and being all of the John W. Niles Survey except 20 acres of land now owned by Will Kinder.

(5) The evidence showed the plaintiff was the only heir of Frank R. Dean,. Sr. upon his death intestate October 19, 1955. The surviving widow of Frank R. Dean, Sr. conveyed all of her right, title and interest to the property in question to the plaintiff by deed dated January 31, 1956.

There are various ways the title of another may be recognized. The acceptance of a deed in which the description of the land shows a portion of the tract described is excepted, is one way to effect such recognition. The execution of an oil and gas lease describing a tract of land, and excepting a portion of such land, is another way to effect recognition of another’s title to the excepted portion. See Houston Oil Co. of Texas v. Pullen, Tex.Com.App., 272 S.W. 439. However, in this case the appealing defendants have not placed themselves in a position to have the defense of recognition of another’s title available to them. The exception set out in the Price deed, “except 240 acres belonging to McDonald and Odell, 20 acres belonging to Amsler, and 10 acres belonging to Monroe Bennett” does not satisfy the legal requirements. In the first place, the words “belonging to” do not indicate whether the interest of McDonald, Odell, Amsler and Monroe Bennett is legal or equitable. It is not indicated whether the interest is divided or undivided. If the interest is a specific 240 acres, 20 acres and 10 acres, then the location of the property is not shown. Nothing but the surnames “McDonald, Odell and Amsler” are given, and it is not indicated who these persons may be. No evidence was offered upon the trial of this case to identify either the location of the 240 acres, the 20 acres or the 10 acres, or the persons of “McDonald, Odell and Amsler.”

The judgment in the trial court shows “D. A. Odell”, “Sandy McDonald”, “Charles Amsler”, “Samuel Amsler”, “Julia Amsler” and “Monroe Bennett” as being named as defendants, cited by publication, and as defendants against whom plaintiff was given judgment, from which they did not appeal. The judgment also shows a “Frederich P. McDonald” named as an in-tervenor and cross-plaintiff, and that title is divested out of him into the plaintiff, and no appeal is taken by Frederich P. McDonald. The judgment also shows Genevieve Odell Reedy, joined by her husband, S. V. Reedy, filed a petition to remove this case to the Federal Court, which petition was denied, and no error is assigned to this action of the trial court. The Reedys are not parties to this suit, even though they filed such petition to remove, and after judgment they filed a pleading designated: “Motion to Abate and For a New Trial.” No evidence was offered during the trial of this case to identify the parties to the suit named Odell, McDonald and Amsler, or Genevieve Odell Reedy. None of the appealing defendants offered evidence to show a relationship to, or that they were claiming under, Odell, McDonald, Amsler or Monroe Bennett.

Proof of recognition of title by one claiming adverse possession of land, is not the same as showing an outstanding title in a third person in a case in which plaintiff is claiming a record title. Proof ^ of a record title in either the defendant or a third person would not defeat a perfected adverse claim by the plaintiff. Under the circumstances in the case, that is, where plaintiff is claiming a tract of land by adverse possession, and it is contended the plaintiff recognized title in third persons to a portion of such tract, only the third persons in whom such recognition is made, and those claiming under them are entitled to the benefit of such defense. No'' point is raised in this case concerning the sufficiency of the evidence to sustain the findings of the jury in reference to adverse possession. Even if we assume the defendants have proved a recognition of title in Odell, McDonald, Amsler and Monroe Bennett, and further assume the Odell, McDonald and Amsler named as defendants in this suit are the same persons having such outstanding title, this would still be of no benefit to the appealing defendants. Such a situation would be similar to the one in Fowler v. Hardee, Tex.Civ.App., 16 S.W.2d 154. An appealing defendant is not entitled to claim the benefit of proof of an outstanding title in a co-defendant, made a party to the suit by plaintiff, where the title of such non-appealing co-defendant passes to the plaintiff by the judgment in this suit.

Defendant J. V. Datin complains of the action of the trial court in overruling his first motion for continuance. This suit was filed July 15, 1961. Plaintiff’s first amended original petition, upon which the case was tried, was filed October 2nd, 1961. Non-resident notice was issued October 6, 1961, and served on J. V. Datin in Marion County, Iowa, October 11, 1961. Original answer for J. V. Datin was filed October 27, 1961. This case was set by the trial court on December 6, 1961 for trial December 18, 1961. A motion for continuance was filed on behalf of J. V. Datin December 18, 1961, overruled on the same date, and the case proceeded to trial. All of the matters contained in this motion for continuance referred to lack of time to prepare for trial. Counsel for the defendant J. V. Datin makes the statement that he had only 11 days after the date of setting the case to prepare to defend against a limitation claim. Counsel for plaintiff points out this defendant had 2 months and 7 days after being served with non-resident notice for such preparation.

It is well settled that a motion for continuance is addressed to the sound discretion of the law, but that the overruling of a motion is subject to review. Robertson v. Robertson, Tex.Civ.App., 291 S.W.2d 452. We conclude no abuse of such discretion is shown. The statement as to both the facts and law set out in Scaling Oil Corporation v. Head, Tex.Civ.App., 241 S.W. 767, are applicable to this case, as follows:

“This application is not a statutory motion, and shows that the continuance was sought for the sole purpose of enabling the plaintiff in error to prepare its defense to the action, without indicating facts or conditions which show the absence of opportunity for such preparation. The record shows that the plaintiff in error was fully apprised, more than two months in advance of the trial, of the issues it would be called upon to meet, and there is nothing to indicate that this time was not amply sufficient to enable it to prepare its defenses.”

September 22, 1961, Judge J. S. Holle-man, Judge of the Second Ninth Judicial District, entered an order appointing Ernest Coker, Jr. to represent the defendants cited by publication in this cause. There was a second affidavit and publication after that date. On December 11, 1961, Judge Ernest Coker, Sr., entered another order appointing his son, Ernest Coker, Jr., to represent the defendants cited by publication. The case proceeded to trial under Judge Ernest Coker, Sr., and at the conclusion of the trial, this Judge set a fee of $2,500.00 for Ernest Coker, Jr., for services performed. It is the contention of the defendant R. F. Roberts that the father fixing his son’s fee rendered the entire judgment void. This defendant cites the case of Postal Mutual Indemnity Co. v. Ellis, 140 Tex. 570, 169 S.W.2d 482, as authority for this position.

The issue to be decided is whether Ernest Coker, Jr., is a “party” to this suit within the meaning of Article V, Sec. 11, of the Texas Constitution Vernon’s Ann.St.Const. and Article 15, Vernon’s Texas Civil Statutes, Vernon’s Ann.St. Article 15 reads as follows:

“No judge or justice of the peace shall sit in any case wherein he may be interested or where either of the parties may be connected with him by affinity or consanguinity within the third degree, or where he shall have been counsel in the case. Const. art. 5, sec. 11.”

The Supreme Court held in Postal Mutual Indemnity Co. v. Ellis, 140 Tex. 570, 169 S.W.2d 482, that the plaintiff’s attorney in a Workmen’s Compensation case is a party to the suit, but that decision was based primarily on the provision in Article 8306, Sec. 7d, Vernon’s Texas Civil Statutes, which require the judge to award the attorney’s fees out of the plaintiff’s recovery. No such situation existed in this case. The attorney was entitled to be paid a fee regardless of the outcome of this case, and no point is raised that the amount of the fee is unreasonable. It is well settled that an attorney is not a party to a suit SO' as to disqualify the judge hearing the case who is related to him, even though such attorney is to receive a contingent fee based on the amount of the recovery. Winston v. Masterson, 87 Tex. 200, 27 S.W. 768. Ernest Coker, Jr., was not a “party” to the suit and the judgment is not void.

The judgment is affirmed.


author: HUGHES, Justice. RICHARDS, Justice

text:
    Harry HARRINGTON, Jr., et al., Appellants, v. The STATE of Texas, Appellee.
    No. 11059.
    Court of Civil Appeals of Texas. Austin.
    Dec. 19, 1962.
    Rehearing Denied Jan. 9, 1963.
    Wynne, McKenzie, Jaffe & Tinsley, Byron L. Williams, Dallas, for appellants.
    Will Wilson, Atty. Gen., Cecil C. Rotsch and Linward Shivers, Asst. Attys. Gen., Austin, for appellee.
   HUGHES, Justice.

This appeal is from an order overruling the pleas of privilege filed by Harry Harrington, Jr., Reed H. Allgood, residents of Gregg County, and J. W. Baton, resident of Rusk County, in a suit filed by the State of Texas to recover penalties allegedly due the State for allegedly violating the laws of Texas and the rules and regulations of the Railroad Commission of Texas in drilling, producing and plugging oil wells in Gregg County, Texas.

The State controverted these pleas of privilege by filing affidavits, all similar, from which we quote their substance:

“Plaintiff denies, and here avers to- be untrue and false the following allegation of Defendant contained in such plea of privilege:
“ ‘No exception to exclusive venue in the county of one’s residence, provided by law, exists in said cause.’
“As is shown on the face of Plaintiff’s Original Petition, this suit is a civil penalty suit brought under the provisions of the oil and gas conservation laws of this State, and particularly, pursuant to provisions contained in Article 6036, Vernon’s Civil Statutes. Article 6036 provides that such civil penalties are:
‘to be recovered in any court of competent jurisdiction in Travis County, or in the county of the residence of the Defendant, or, if there be more than one Defendant, in the county of the residence .of any of them, or in the county in which the violation is alleged to have occurred, * * ”

The only evi.dence introduced on the venue hearing was the' State’s Original Petition, which was unamended, and the controverting affidavits.

The position of the State is that this suit being brought under the provisions of Art. 6036, V.A.C.S., which prescribes venue of the actions it authorizes, the venue of this suit lies in Travis County as a matter of law which is determinable solely from the allegations of its petition.

It is the position of appellants that the State was required to plead in its controverting affidavits and to prove on the venue hearing that appellants had violated Art. 6036 in order to establish venue in Travis County.

The solution to the problem presented lies in a proper construction of Art. 6036, the pertinent provisions of which we quote:

“Art. 6036. Penalty
“In addition to being subject to any forfeiture that may be provided for by law and to any penalty that may be imposed by the Commission for contempt for the violation of its rules, regulations, or orders, any person violating any of the provisions of this Act or of Title 102, Revised Civil Statutes of Texas, 1925, as amended, or violating any rule, regulation, or order of the Commission promulgated thereunder, shall be subject to a penalty of not more than One Thousand Dollars ($1000) for each and every day of such violation, and for each and every act of such violation, to be recovered in any Court of competent jurisdiction in Travis County, or in the county of the residence of the defendant or, if there be more than one defendant, in the county of the residence of any of them, or in the county in which the violation is alleged to have occurred, such suit by direction of the Commission to be instituted and conducted in the name of the State of Texas by the Attorney General or by the county or district attorney where such suit is brought.”

Since this suit was filed in Travis County, the only portion of the statute actually to be construed is the following:

“ * * * any person violating any of the provisions” of the statute or rule “shall be subject to a penalty * * * to be recovered in any Court of competent jurisdiction in Travis County * * *«

The only manner in which a penalty may be recovered in any court is by suit. We, therefore, interpolate the words “by suit” into this statute so that it reads, in substance, that any person violating any provision of the statute or rules shall be subject to a penalty to be recovered by suit in any court of competent jurisdiction in Travis County.

Clearly, this interpolation is justified since the statute refers to “such suit”, being instituted by direction of the Railroad Commission and directs its prosecution by the Attorney General or the county or district attorney “where such suit is brought.”

The statute being thus interpreted, it is our opinion that as to any suit filed under it in-Travis County venue is determinable solely from the allegations of the petition, filed by the State.

Of course, it is not to be inferred from this conclusion that penalties can be assessed against any one who has not been adjudged guilty of violating the statute or rules. The venue of such suit, however, as to Travis County is not dependent, under the statute, upon proof of any extraneous fact. The statute plainly gives to the proper court of Travis County venue of suits brought under it. Whether or not this is such a suit is proved or disproved by an examination of the State’s Petition. Perfecto Gas Co. v. State, 228 S.W.2d 918, Austin Civil Appeals. Appellants do not contend that this is not such a suit.

Cases which we believe support our decision are Oil and Products of Oil in Certain Pits in Gregg County v. State, 118 S.W.2d 618, Austin Civil Appeals, and Heard v. State, 149 S.W.2d 237, Beaumont Civil Appeals.

In the Certain Pits case suit was brought by the State in Travis County under this portion of Art. 6066a, Sec. 10(b):

“When the Attorney General is advised from any source of the presence and existence of unlawful oil and/or unlawful products it shall be his duty to institute a suit in rem against such unlawful oil and/or unlawful product and against all persons owning, claiming or in possession thereof, such suit to be brought in the name of the State of Texas in any court of competent jurisdiction in Travis County or in the county in which such oil or product is located.”

A plea of privilege was filed by a defendant and controverted by the State on the venue hearing only the State’s Petition was offered in evidence. The Court in sustaining an order overruling the plea of privilege, held:

“Under the undisputed facts and circumstances of the instant case therefore, the provisions of the statute above cited, and the State’s pleadings in this cause, no issue of fact was presented and none necessary to he proved. The issue as to whether the suit was properly laid in Travis County was consequently a matter of law for the trial court to determine, * *

In Heard v. State, the State brought suit in Travis County under Art. 5420, V.A.C.S., which at that time (prior to 1939) read as follows:

“When any public lands are held, occupied or claimed by any person, association or corporation adversely to the State, or to any fund, or when lands are forfeited to the State for any cause, the Attorney General shall institute suit therefor, together for rent thereon, and for any damages thereto. For the purposes of this and the preceding article, venue is fixed in Travis County, concurrently with the county of defendant’s residence and the county where the land lies.”

A plea of privilege was filed by the defendant which was overruled, even though no controverting affidavit was filed. In approving this action the Court held:

“Venue of suits under Art. 5420, as it existed prior to the amendment, is to be determined by the character of the action as disclosed by the allegations of the petition. The petition being sufficient on its face to show that the suit is for the recovery of public lands or lands belonging to any fund of the State fixes the venue in Travis County.”

If in these two cases, under the statutes there involved, it was unnecessary to plead or prove any fact other than the nature of the suit as disclosed by the petition, then in this case the necessity for other pleading or proof is obviously not required.

The words “any person violating” in Art. 6036 merely furnish the occasion which authorizes the penalty suit, just as the “existence of unlawful oil” in Art. 6066a, Sec. 10(b), and the situation, “[wjhen any public lands are held, occupied or claimed by any person”, 'as used in old Art. 5420, furnish the occásions for the suits authorized by the respective statutes. The venue of such suits are, however, not dependent upon proof of the existence of facts which furnished the occasion for the suits.

By way of argument, we also note that Art. 6036 plainly provides that venue may be in the county where “the violation is alleged to have occurred.” Since allegations are only found in pleadings, they, and they alone, are the source of proof necessary to sustain venue.

As we read this statute, it also plainly provides that suit for penalties under it may be brought in any county where any defendant resides, without the necessity of pleading or proving on the venue hearing violation of the statutes or rules.

Our construction of the statute is to make uniform the application of the statute to the three venue situations it describes.

Appellants filed a motion to strike the controverting affidavits filed by the State on these grounds:

“Said instrument does not constitute a controverting plea within the meaning of Rule 86, Texas Rules of Civil Procedure, in that same in no way controverts the Plea of Privilege filed by this Defendant or sets out; specifically or otherwise, the grounds relied upon to confer venue of such cause on this Court.
“II.
“In such instrument the Plaintiff does not set out which exception to Article 1995 it relies upon to confer venue on this Court. Neither does Plaintiff allege in such instrument any cause of action and Plaintiff wholly fails to bring its case within any applicable statutes authorizing such suit.
“HI.
“In sum and substance, Plaintiff has filed only an instrument which quotes a portion of a statute and tells the Court that ‘This suit is a civil penalty suit.’ Since this proceeding is of a penal nature, the facts constituting the offense must be averred with the same certainty as would be required in a bill of indictment.
“IV.
“Plaintiff’s instrument is definitely not a controverting plea and cannot be made so by merely placing such title on it. Plaintiff has failed to file a controverting plea within ten (10) days after receipt of Defendant’s plea of privilege, and therefore, Defendant is entitled to an order sustaining his plea of privilege.”

This motion, in our opinion, was properly overruled by the Trial Court. If we are correct in our interpretation of the statute under which this suit was brought, the most that the State was required to allege in its controverting affidavit was the character and nature of suit which it had filed. It made these allegations, and was, in our opinion, entitled to prove such allegations by offering its petition in evidence.

Appellants here place strong reliance upon A. H. Belo Corp. v. Blanton, 133 Tex. 391, 129 S.W.2d 619, and one of the principal authorities cited in it, Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91, (1935).

The Blanton case was a libel suit and involved Sub. 29, Art. 1995, V.A.C.S. The Compton case involved Sub. 9 of such article, as it then read. Sub. 29 provides an exception to the general rule of venue in libel and slander suits. Sub. 9, provided an exception in suits based on crime and trespass. In neither of these instances was the nature or character of the suit, as disclosed by the petition, solely determinative of the issue of venue. Under those subdivisions additional facts were required to be alleged and proved. These cases are, therefore, not in point here.

' It is our opinion that the judgment of the Trial Court is correct and should be affirmed. If we are incorrect in this conclusion, then we would reverse and remand the case. We would not render judgment transferring it. Rules 434, 505, T.R.C.P., Lanford v. Smith, 128 Tex. 373, 99 S.W.2d 593, Buchanan v. Jean, 141 Tex. 401, 172 S.W.2d 688, London Terrace, Inc. v. McAlister, 142 Tex. 608, 180 S.W.2d 619, Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792, Red Arrow Freight Lines v. Cagle, 206 S.W.2d 1019, Waco Civil Appeals.

The judgment of the Trial Court is affirmed.

Affirmed.

RICHARDS, Justice

(dissenting).

Since this is the last decision in which I will participate as a member of this Court, it is with regret that I dissent from the majority opinion because of my inability to agree with the legal conclusions and the result reached therein.

In Leonard v. Maxwell, Tex.Civ.App., 356 S.W.2d 335, now pending before the Supreme Court of Texas on writ of error, my dissenting opinion was based, among other grounds, upon my conclusion that the .controverting plea filed under Rule 86, Texas Rules of Civil Procedure, was fatally defective because it did not specifically refer to and adopt the allegations of plaintiff’s petition, thereby alleging sufficient venue facts upon which the alleged cause of action was sought to be maintained in the county where the suit was filed.

In my opinion the controverting affidavit in the instant case is even more fatally defective. Here the only reference to the ’ allegations of the petition is a statement:

“As is shown on the face of plaintiff’s original petition, this suit is a civil penalty suit brought under the provisions of the oil and gas conservations laws of this State, and particularly pursuant to provisions contained in Art. 6036, V.C.S. * * * ”.

The affidavit was made by two Assistant Attorneys General1 representing the plaintiff State of Texas, who aver that “they are attorneys for plaintiff in the above entitled and numbered cause, and that the allegations, denials and facts set out in the foregoing controverting affidavit are true and correct.”

To meet the requirements of Rule 86, T.R.C.P., it is necessary for the controverting plea to unmistakably allege that the party who swore to such plea made the petition a part thereof and thereby swore to the essential facts embodied in. the entire petition. A. H. Belo Corp. v. Blanton, 133 Tex. 391, 129 S.W.2d 619, 622. Since the controverting .affidavit constitutes the sole pleadings of the plaintiff on the venue issue, it must allege all of the facts necessary to be proved to, sustain venue in the court where, the suit is filed. A. H. Belo Corp. v. Blanton, supra.

It is also the rule that where the controverting affidavit does not contain any 'language which might be construed to state a cause of action but merely refer to an exception to exclusive venue by pointing out a subdivision of Art. 1995, V.C.S. or does not refer to and adopt the allegations of the petition as a part of the affidavit, it is insufficient to sustain venue in -the county in which the suit is filed as against the right of a defendant to. have the cause transferred to the county of his residence under a properly filed plea of privilege. A. H. Belo Corp. v. Blanton, supra; Henderson Grain Co. v. Russ, 122 Tex. 620, 64 S.W.2d 347, 351; Eastland v. Whitman, Tex.Civ.App., 318 S.W.2d 447, N.W.H.; Crim v. Logan, Tex.Civ.App., 277 S.W.2d 298, N.W.H.

Here, the controverting affidavit does not even refer to an exception to exclusive venue by pointing out an applicable subdivision of Art. 1995, V.C.S., nor does it refer to and adopt the allegations of the State’s petition. Even if the phrase “as is shown on the face of plaintiff’s original petition” might be construed as a-reference to the allegations contained therein, nevertheless 'the jurat does not state that the allegations contained in such petition are true and-correct as was the case in Leonard v. Maxwell, supra.

Appellants properly objected to the sufficiency of the- controverting affidavit by filing their motion to strike under Rule 90, T.R.C.P., which was overruled by the Trial Couft. But appellee relied upon proof of venue by the introduction of the original petition in evidence at the hearing on the plea of privilege. Appellants properly objected to the introduction of the petition, .which objections were overruled by the Trial Court. In my opinion, this was error. Where the controverting affidavit fails to make the petition a part thereof by adoption or reference, it must be tested by its own allegations imaided by the petition. Jefferies v. Dunklin, 131 Tex. 289, 155 S.W.2d 391, 393; Henderson Grain Co. v. Russ, supra.

After .the defects in the controverting affidavit, had been specifically called to the attention of the Trial Court by appellants in their motion to strike, the State did not attempt to amend its controverting affidavit by filing a new pleading under Rule 64 or by trial amendment as provided in Rule 66, T.R.C.P., but elected to stand upon the controverting affidavit as originally filed, presumably relying upon the assumption -that since the Trial Court had overruled the motion to strike, the controverting plea met all of the requirements of Rule 86. In Nolte v. Saenz, Tex.Civ.App., 153 S.W.2d 281, N.W.H., the San Antonio Court of Civil Appeals held that where special exceptions , to the controverting plea were overruled by the Trial Court, the opposing party had no right to presume that such pleadings complied with all of the legal requisites.

The majority opinion stresses the opinions in Perfecto Gas Co. v. State, 228 S.W.2d 918, N.W.H.; Oil and Gas Products of Oil in Certain Pits in Gregg County v. State, 118 S.W.2d 618, N.W.H., by the Austin Court of Civil Appeals, and Heard v. State, 149 S.W.2d 237, N.W.H., by the Beaumont Court of Civil Appeals. In the Perfecto case the controverting affidavit adopted the plaintiff’s petition by reference. In the Oil and Products of Oil case the controverting affidavit of the State adopted its original petition by copying it verbatim in the affidavit. In the Heard case the records of the Beaumont Court of Civil Appeals reveal that the State filed controverting affidavits to the pleas of privilege filed by all defendants, which controverting affidavits referred to and adopted the allegations of the State’s petition.

Since the controverting plea was defective as a matter of law and the Trial Court having erred in permitting the introduction of the State’s petition as evidence of facts sufficient to sustain venue in Travis County, Texas, it became the duty of the Trial Court to sustain the plea of privilege and transfer the cause to the residence of the respective defendants. Fair v. Mayfield Feed & Grain Co., Tex.Civ.App., 203 S.W.2d 801, 804, N.W.H.; Eastland v. Whitman, supra.

In Buchanan v. Jean, 141 Tex. 401, 172 S.W.2d 688, where, although the controverting affidavit was defective, the defendant failed to point out the defects under the provisions of Rule 90, T.R.C.P., the Supreme Court reversed and remanded the cause to the Trial Court for trial of the issues on the merits under properly drawn pleadings of both parties. In the instant case, the defects in the controverting affidavit were properly called to the attention of the Trial Court by appellants’ motion to strike, but the State elected to stand on its controverting affidavit without amendment. The factual circumstances in the instant case are dissimilar to those in Buchanan v. Jean.

I would reverse and remand the cause to the Trial Court with instruction to sustain appellants’ pleas of privilege and transfer this cause to any of the District Courts of Gregg County, Texas, the residence of each of the appellants.


author: HUGHES, Justice.

text:
    C. H. LANGDEAU, Receiver of ICT Insurance Company, Appellant, v. UNITED STATES of America, Appellee.
    No. 11010.
    Court of Civil Appeals of Texas. Austin.
    Dec. 12, 1962.
    Cecil C. Rotsch, Harold G. Kennedy, Austin, for appellant.
    Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, I. Henry Kutz,. George F. Lynch, Attys., Dept, of Justice, Washington, D. C., Ernest Morgan, U. S. Atty., William O. Murray, Jr., First Asst. U. S. Atty., San Antonio, for appellee.
   HUGHES, Justice.

The ICT Insurance Company was adjudged insolvent and placed in receivership by the District Court of Travis County March 5, 1957. On June 7, 1957, the United States filed with the Receiver, C. H. Langdeau a proof of claim for withholding, employment and unemployment taxes assessed against the taxpayer in the amount of $19,910.81, with respect to which liens arose and for which notices of liens were filed with the Clerk of Dallas County, Texas, as follows :

“Kind of Tax
Tax List Notice of
Withholding - Int. Total Signed Lien Filed
4th Qtr. 1956
$6,797.52 $58.22 $6,855.74 3/22/57 4/15/57
Withholding & Employment 1st Qtr. 1957
11,599.81 11,599.81 4/15/57 5/ 3/57
Unemployment 1956-1957
1,278.20 1,278.20 2/28/57 4/15/57’*

On February 28, 1958, the United States filed with the- Receiver a proof of claim for additional unemployment taxes in the amount of $363,59, for which a lien arose on November 15, 1957.

By letter dated August 21, 1959, the Receiver submitted a check in the amount of $18,455.55 in payment of that portion of the claim filed on June 7, 1957, covering the withholding tax for the fourth quarter of 1956, including $58.22 in interest, and the withholding and employment tax for the first quarter of 1957. By this letter, the Receiver notified the Internal Revenue Service that the portion of the claim in the amount of $1,278.20 covering unemployment taxes for 1956 had been approved as that of .a general unsecured creditor; that the claim, filed on February 28, 1958, in the amount of $361.57, had also been approved as a general unsecured creditor’s claim; and that the claim for all interest accruing after the Insurance Company was placed in receivership had been rejected.

In November, 1959, the United States filed suit in the District Court of Travis County wherein it sought priority and allowance. in full of its rejected claims. A hearing was had on April 23, 1962, and the court ordered that the claims of the United States filed with the Receiver on June 7, 1957 and February 28, 1958, “be first satisfied and allowed as prior and preferred. claims, and that, before paying any of the claims of the general unsecured claims of ICT Insurance Company, the Receiver forthwith pay to the United States of America, amounts as follows

1. On the Claim filed June 7, 1957:
(aj $1,278.20 together with interest at the rate of six (6) per cent per annum from January 31, 1957, due on the unemployment tax assessed;
(b) $994.08 due as unpaid interest on $6,855.74 accruing from March 23, 1957, to August 22, 1959, on the withholding tax claim heretofore partially paid;
(c) $1,608.17, due as unpaid interest on $11,599,81, accruing from April 30, 1957 to August 22, 1959, on the withholding tax claim heretofore partially paid; and,
2. On the Claim filed February 27, 1958:
(a) $363.59 together with interest at the rate of six (6) per cent per annum on .$361.67 from March 5, 1957.

From this judgment, the Receiver, C. H. Langdeau, 'prosecutes this appeal.

It is the position of the United States that its claims for taxes, including all interest thereon, assessed against the ICT Insurance Company are entitled to priority of payment ahead of the claims of general unsecured creditors .of the insolvent taxpayer, both by reason of its paramount tax liens under Sections 6321 and 6322 of the Internal Revenue Code of 1954, and by reason of the priority accorded to the United States by Section 3466 of the Revised Statutes of the United States for the payment in cases of insolvency of debtors owing debts to it.

Appellant has three points which, as he states, present only this question, “In those cases in which the estate of an insolvent insurance company is insufficient to pay all of its debts, does the United States Government have a right to take out of the insolvent’s assets enough to pay all of ‘the debts due the United States,’ including taxes, and interest accruing subsequent to the date of the commencement of delinquency proceedings, before any payment can be made to any other creditor, including wage claimants?”

Unquestionably, the answer to appellant’s query would be in the affirmative if the words “insurance company”, were dropped and a different type of company substituted. See United States v. Miller, Tex.Civ.App., 331 S.W.2d 436, writ ref., n. r. e., cert. denied, 364 U.S. 880, 81 S.Ct. 168, 5 L.Ed. 2d 102, and authorities and federal statutes therein discussed.

The significance of the words “insurance company” comes from the fact that federal statutes, known as the McCarran Act,, or the McCarran-Ferguson Act, have given the States a free hand in the regulation and taxation of persons engaged in the insurance business.' We quote the pertinent portions of these statutes:

“§ 1011: Declaration of policy
“Congress declares that the continued regulation and taxation by the several States of the business of insurance is in the public interest, and thát silence on the part of the Congress shall not be construed to imppse any barrier to the regulation of taxation of such business by the several States.”
-“§ 1012. * * *
“(a) The business of insurance, and every person engaged therein, shall be subject to the ■ laws of the several States which relate to • the regulation or taxation of such business.
“(b) No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance, or which imposes a fee or tax upon such business, unless such Act specifically relates to the business of insurance: * ■*'

If the State of Texas has enacted statutes which regulate the “business of insurance”, then these statutes will prevail, even as to the United States, unless Congress has otherwise provided in legislation specifically pertaining to insurance.

In 1951 Texas enacted an Insurance Code (Ch. 491, 52nd Leg.Reg.Sess., p. 868), V.A.T.S., the cáptión reading in part:

“An 'Act'' arranging the Statutes of this State affecting the business of insurance in appropriate Chapters and Articles • into a consistent whole and under a single code; making such editorial changes in context as are necessary ' to that accomplishment; * ⅜ *»

The emergency clause of this Act reads, in part,

“The fact ;that the present laws relating to insurance are in many respects inadequate, containing in many instances overlapping, ambiguous and inconsistent provisions and seriously inter-ferring. with the operation of the insurers as. well as jeopardizing the .Ins.ured.s and protection of the public; .and the further fact that jurisdictional •.uncertainties arising from the United States Supreme Courts’ decision holding that the business of insurance transacted across state lines is interstate' Commerce within the meaning of the Federal ’ Constitution, making it practicable- and necessary that such laws shall be made clear, concise, adequate and' consistent for the protection of the insuring public as well as for the protection of those engaged in the insurance business, * *
In 1955, the above Act was amended.

We quote frbm its caption:

“An Act providing for the amendment of Article 21.28 of the Texas Insurance Code of 1951, such Act concerning the liquidation, rehabilitation, reorganization, or conservation of insurers, and placing same under the Board' of Insurance Commissioners * * *."

In the amending Act there appear these provisions:

“(b) ‘Delinquency proceeding’ means any proceeding commenced in any court of this State against an insurer for the purpose of liquidating, rehabilitating, reorganizing or conserving such insurer.” [Art. 21.28, V.A.C.S., Sec. 1, (b).]
“(e) Conducting of Business. Upon taking possession of the assets of a delinquent insurer the receiver shall, subject to the direction of the court, immediately proceed to conduct the business of the insurer, or to take such steps as may be necessary to conserve the assets and protect the rights of policyholders and claimants for the purpose of liquidating, rehabilitating, reinsuring, reorganizing or conserving the affairs of the insurer.” [Art. 21.28, id., Sec. 2, (e).]
“All wages actually owed to employees of an insurer against whom a proceeding under this Article is commenced, for services rendered within three (3) months prior to the commencement of such proceeding not exceeding Three Hundred Dollars ($300) to each employee shall be paid prior to the payment of every other debt or Claim, and in the discretion of the court may be paid as soon as practicable after the proceeding has been commenced, except that at all times there shall be reserved such funds as will be sufficient for the expenses of administration by the receiver.” [Art. 21.28, id., Sec. 6.]
“(b) Interest. Interest shall not accrue on any claim subsequent to the date of the commencement of delinquency proceedings.” [Art. 21.28, id., Sec. 8, (b).]

With respect to Sec. 6 of Art. 21.28, supra, we are of the opinion that it does not regulate the business of insurance. It regulates the claims for wages of employees of an insurer which is in receivership. It is for their benefit and in their aid alone. It lends no help to the continuance of the business of insurance by the company. In fact, this statute authorizes such wage claimants to exhaust the funds of the company except that enough to satisfy administration expenses shall be retained. This is not a regulation of the insurance business; it is a priority established for a class of creditors of an insurance company. There are many statutes regulating the rights of persons who may have claims against an insurance company such as laborers, mechanics, materialmen, landlords, yet it would hardly be contended that these laws regulate the insurance business simply because they may be invoked against an insurance company.

If the preference given by Sec. 6 is to prevail over the tax claim of the government, then a State may not only prefer employees of the company, but may prefer every other claim and make the debt due the United States last. We find nothing in the McCarran Act to warrant this result.

In the construction of the McCarran Act we have been influenced by the opinion in United States v. Emory, 314 U.S. 423, 62 S.Ct. 317, 86 L.Ed. 315, where the Court in construing and applying Sec. 3466, U.S. C.A., supra, in an equity receivership proceeding in a State Court stated, “Just such proceedings as this, therefore, are governed by the plain command of § 3466 that ‘debts due to the United States shall be first satisfied.’ The purpose of this section is ‘to secure adequate public revenues to sustain the public burden’ * * * and it is to be construed liberally in order to effectuate that purpose. * * * We are aware of no canon of statutory construction compelling us to hold that the word ‘first’ in a 150 year old statute means ‘second’ or ‘third’, unless Congress later has said so or implied it unmistakably. * * * Only the plainest inconsistency would warrant our finding an implied exception to the operation of so clear a command as that of § 3466.”

We are also of the opinion that the Texas Statute denying interest on claims after commencement of delinquency proceedings is not applicable to a tax claim of the United States.

Interest on taxes due the United States is a part of the tax obligation and is expressly secured by the lien provided in Sec. 6321, 26 U.S.C.A., which reads:

“§ 6321. Lien for taxes
“If any person liable to' pay any tax neglects or refuses to pay the same after demand, the amount (including any interest, additional amount, addition to tax, or assessable penalty, together with any cost that may accrue in addition thereto) shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person.”

A person who owes interest is a debtor, the interest being the debt. As such, it is within the provisions of Sec. 191, 31 U.S.C.A., Revised U.S.Statutes, Sec. 3466, which provides, in part, that when any person who is indebted to the United States is insolvent, the debt due the United States shall be first satisfied.

We find nothing in the McCarran Act, certainly not “unmistakably”, to warrant us in holding that the • United States has consented that a state has been given authority to extinguish a tax obligation or debt due the United States.

We are also convinced that the dis-allowance of interest on claims against insurance companies in receivership cannot be accomplished under .the guise that it is a regulation of the business of insurance. We find no relationship between the business' of infeurance and whittling claims owed by an insolvent insurer.

Appellant cites New York v. Saper, 336 U.S. 328, 69 S.Ct. 554, 93 L.Ed. 710, which holds that under the National Bankruptcy Act tax claims of the United States do not bear interest after the date of bankruptcy.

The simple answer to this authority here is that this case is not subject to nor is it controlled by the Bankruptcy Act. Lest we be misunderstood, however, we make these observations. We are not concerned with;, though we approve, the policy of the Bankruptcy Act or the policy of Texas in providing .that interest on all claims shall cease when bankruptcy occurs or delinquency proceedings are commenced.

The problem we have and must decide is whether or not the Texas Statute in providing for the cessation of interest, as stated, is an Act regulating the business of insurance. We believe, and hold, that it is not such an act. It regulates the rights of creditors of an insolvent insurance company, a company which is incapable of doing any business itself and which is in the process of liquidation.

The Federal Bankruptcy Act “ * * * primarily provides a way to gather the unencumbered assets of an insolvent debtor for distribution among his unsecured creditors * * Simonson v. Granquist, 369 U.S. 38, 82 S.Ct. 537, 7 L.Ed. 557.

The Bankruptcy Act does not purport to regulate the business of any bankrupt. It does not do so when it denies interest on a claim after bankruptcy. By the same reasoning, it would seem that the Texas Statute when it denies interest on a claim sub-.-sequent to the commencement of delin-; ■ quency proceedings against an insolvent1 ■ insurer does not regulate the business of insurance.

The judgment of the Trial Court is af- 1 firmed. :

Affirmed.

      . Including accrued interest to June 4, 1957, in the amount of $177.06.

      . Act of March 9, 1945, C. 20, Sec. 1, 59 Stat. 33 (15 U.S.C. 1958 ed., §§ 1011-1015.)

      . Ch. 267, p. 737, Acts 54th Leg., Reg.Sess.1955.

      . The Court in. California League of Independent Insurance Producers v. Aetna Cas. & Surety Co., D.C., 175 E.Supp. 857, gave its understanding of the Mc-Carran Act in these words:
      “This Court is of the opinion that a State regulates the business of insurance within the meaning of § 1012(b) when a State statute generally proscribes » ⅜ * or permits or authorizes certain conduct on the part of the insurance companies.”

      . See New York v. Saper, infra, 336 U.S. 328, n. 18, 69 S.Ct. 554, 93 L.Ed. 710.


author: BELL, Chief Justice.

text:
    The STATE of Texas, Relator, v. Hon. Donald M. MARKLE, District Judge, et al., Respondents.
    No. 14101.
    Court of Civil Appeals of Texas. Houston.
    Dec. 13, 1962.
    Rehearing Denied Jan. 10, 1963.

      Will Wilson, Atty. Gen., and Ben M. Harrison, J. Arthur Sandlin, Thomas H. Peterson and Joe A. Osborn, Asst. Attys. Gen., Austin, for relator.
    Barker, Barker & Coltzer, Owen D. Barker, Armstrong, Bedford & Lambdin, Galveston, for respondents.
   BELL, Chief Justice.

This is an original proceeding in which the State of Texas, through the Attorney General of Texas, seeks to obtain a writ of mandamus against the Honorable Donald M. Markle, District Judge, compelling him to proceed to hear and try a suit for writ of temporary injunction filed by relator against the other respondent, Galveston East Beach, Inc., seeking to enjoin such other respondent from interfering with the use by the public of what is known as “East Beach” in Galveston and to require the removal of barricades erected across the road that is the means of access to said beach.

Cause -No, 97,893, in the 10th District Court of Galveston County was filed February IS, 1962 by respondent Galveston East Beach, Inc., herein called Beach Co. The suit seeks a judgment declaring that it is the owner of the 384 acres described jin its petition and that neither ’the -State oL Texas, its subdivisions, nor the public or any member of the public, has- any easement or any right or claim to the -land' above, the line of mean low tide. -The suit for -a declaratory judgment is brought pursuant to Section 6 of Article 5415-d, V.A.T.S., and the Uniform Declaratory Judgment Act, Article 2524-1, V.A.T.S. Article 5415-d is what is commonly known as the “Open Beaches” bill. Section 6 confers authority on the littoral owner to seek a declaratory judgment. The petition alleges ownership in the Beach Co. and alleges the provisions of Article 5415-d cast a cloud on its title.

To this petition the relator filed its answer contending that the people of Texas had a right of use of a means of access to the shores and waters of the Gulf of Mexico and the right to use and enjoy the beaches from the line of mean low tide to the line of vegetation. The basis of these asserted rights in the public is as follows:

1. Before, at and all of the time since the Menard Grant of a portion of Galveston Island by the Republic of Texas on January 5, 1838, the area extending from the line of mean low tide to the line of vegetation bordering the Gulf of Mexico has been so used by the people, without overt challenge, question or interruption, that such use has become a part of our honored custom and common law. Such inherent right has been retained through continued use by the public.

2. At and before such grant said beach area was dedicated as a public way for use by the public for purposes of fishing, camping, swimming and boating. The long use by the public and acquiescence therein by the Beach Co. and its predecessors in title reflect a dedication to public use.

3. Dedication of such beach area subsequent to the Menard Grant.

4. Acquisition by the public of an easement by prescription.

5. Estoppel against the Beach Co. and its predecessors in title to deny such rights of use in the public because they permitted Galveston County to expend public funds in keeping the beach area free of debris and other obstructions and in maintaining said beach.

On June 14, 1962 relator, having been informed that on June 15 the Beach Co. would place a guard so as to prevent vehicular trafiic to the beach area and the road used in connection therewith, asked for a temporary restraining order. This was refused on June 15 and at that time the hearing on temporary injunction was set by agreement of the parties for July 11. On July 2 relator filed its amended application for a temporary injunction, the only change being the allegation that the action threatened by the Beach. Co. had been taken. The substance of the allegations in the petition for temporary injunction was that the public had the right to access to the beach and the waters of the Gulf of Mexico and the use of the beach between the line of mean low tide and the line of Vegetation for the purpose of boating, swimming, fishing and camping, it having acquired an easement for such purpose through immemorial use, through dedication, both before and after the Menard Grant, and by prescription. It alleges the public had for many years used the property without any interference and such situation was the last placeable uncontested condition and this was changed by respondents’ action. It then alleges erection of barricades which prevent vehicular trafiic and thus prevents use of a road giving full access to the beach and interferes with use of the beach by the public. It alleges the Beach Co. was charging $1.00 for each vehicle admitted by it through the barricade.

The Beach Co. answered this petition, setting up, among other things, that Article 5415-d, V.A.T.S., was unconstitutional because it deprived it of its property without due process of law. We think it unnecessary to notice the other defenses alleged.

When the case, insofar as the temporary injunction is concerned, came on for hearing on July 11, the Court entered an order reciting that the relator’s cause of action was founded on Article 5415-d; that the constitutionality of that statute was raised in this cause, and that the constitutionality of the same statute was involved in Cause No. 93,782, entitled The Attorney General of Texas et al. v. Seaway Company, Inc., in the 122nd District Court of Galveston County, which was on appeal to the Court of Civil Appeals, and the court was of the opinion it was necessary for him to know whether the statute was constitutional before he could properly rule on the application for temporary injunction. It was then ordered that no further proceedings would be held until the appellate courts had finally passed on the constitutionality of Article 5415-d, unless he was ordered to proceed by a court of competent jurisdiction.

The case of the Attorney General of Texas et al. v. Seaway Company, Inc. is now pending on appeal in this Court. The appellant is Seaway Company, Inc. Appellant does assert the unconstitutionality of Article 5415-d. The property involved in the Seaway case is situated on what is called the “West Beach” of Galveston Island and is located some 20 miles from the “East Beach,” the property involved in this original proceeding. The record in the case, which is very voluminous, reflects that judgment was rendered in favor of the State finding an easement in the public based on jury findings establishing such easement by dedication, long continued use, which right has been retained by the public, and by prescription. The area over which such easement was found was between the line of mean low tide and the line of vegetation.

We need not here notice in detail the provisions of Article 5415-d. The article merely declares it to be the policy of the State that members of the public shall have the free and unrestricted right of ingress and egress to the State-owned beaches on the seaward shore of the Gulf of Mexico and to the area between the line of mean low tide and the line of vegetation in the event that the right of use or an easement to such area has been acquired by prescription or dedication, or use has been retained by virtue of continuous right in the public. It is made an offense against said policy for anyone to interfere with such right of ingress and egress, but declares the right to free and unrestricted access over areas landward of the line of vegetation is satisfied by existing roads or ways or which with approval of any governmental authority having jurisdiction may be provided in the future. There is an express provision that nothing in the act shall be construed as affecting title to owners of land adjacent to any State-owned beach. It provides that in any suit brought where it is shown that the area involved is between the line of mean low tide and the line of vegetation the presumption arises that the littoral owner does not have the right to prevent the public from using the area for ingress and egress to the sea and that there has been imposed on the area, subject to proof of easement, a prescriptive right or easement in favor of the public for ingress and egress to the sea. It then places the duty on the Attorney General, County Attorney, District Attorney, or Criminal District Attorney, to file suits necessary to remove any obstruction or barrier interfering with use by the public. The act includes definitions that we need not notice.

The sole question we have before us is whether the trial judge should be required to proceed to trial of relator’s application for temporary injunction.

Relator’s position is that the refusal of the court to hold a trial on its application for a temporary injunction until after the appellate courts have passed on the constitutionality of Article 5415-d is under the facts so unreasonable as to amount to an abuse of discretion and therefore we have jurisdiction, which we should exercise, to issue a writ of mandamus. Respondents contend that a trial court has wide discretion in the control and disposition of his docket and we cannot control his exercise of discretion. Further, respondents say there has been no abuse of discretion in refusing to proceed until after the appellate courts decide the constitutionality of Article 5415-d, which is involved in the Seaway, Inc. case and which is also involved in the Beach Co. case.

It is well settled that under the terms of Article 1824, V.A.T.S., a Court of Civil Appeals has jurisdiction to issue a writ of mandamus to compel a District Judge to proceed to trial and judgment in a case. Allied Store Utilities v. Hunt, Tex.Civ.App., 148 S.W.2d 246; Willis v. Granger, Tex.Civ.App., 195 S.W.2d 831; Bergholm v. Peoria Life Ins. Co., Tex.Civ.App., 63 S.W.2d 1064; 37 Tex.Jur.2d, § 42.

It is frequently said that the Court of Civil Appeals may not through mandamus control the action of the trial court in a matter involving the exercise of discretion. This is, however, too broad a statement. The general rule has its limitations. A writ of mandamus may issue where under the facts of the particular case there is a clear abuse of discretion. Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677.

We here hold that the refusal of the trial court to hear and determine the relator’s application for temporary injunction was a clear abuse of the discretion he has in connection with' the handling of his docket.

A reading of the record-in this proceeding and in the Seaway, Inc. case convinces us that relator is not relying on Article ' 5415-d, exfcept to the extent'that it authorizes and places the duty on the Attornéy 'General to/bring suits to require removal ' of barricades or other obstructions that interfere with the members of the public in the exercise of their rights of ingress and ' egress 'to and from the waters of the Gulf ' of Mexico and in their use of the beaches to the line of vegetation. The act is not relied bn to create any rights in the public and the presumption creatfed, as above pointed out, is not relied on. As a matter of fact, a reading of the act indicates to us that it does not purport to create any rights or interfere with any rights of the landowner, but merely declares the policy of the State to protect such rights as the public may have. It is not necessary, however, that we pass on the validity of the act here. Whát we'have said about it is occasioned by the injection by pleading of respondents of the question of the constitutionality of the act. Actually neither case attacks the constitutionality of the act insofar as it confers authority on the Attorney General. A reading of the relator’s pleadings in both cases shows it must establish rights of access to and the right to use the beaches to the line of vegetation by showing the rights have been acquired by dedication, prescription of long continued use. The alleged statutory presumption was not relied on in the Seaway, Inc. case and there- is no pleading of any presumption in this case. We do not mean it would have to be pled; we merely note there is nothing to show it will be relied on and relator in its brief disavows any intention to rely on it.

Apart from the above, however, even if the constitutionality of the statute were involved in the two cases, it would be no legal or equitable ground for not trying the issue as to whether a temporary injunction should issue.

In determining whether a temporary injunction should issue to preserve the status quo pending a trial of the case on its merits, the court does not finally pass on the constitutionality of a statute or finally determine its proper construction. It does not finally determine the rights of the parties. The only issue is whether the applicant is entitled to an injunction to preserve the status quo pending trial on the merits. To warrant the issuance of such a writ the court merely determines that a probable right and a probable injury are shown. If they are, the court has broad discretion in determining whether or not an injunction should issue. Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549; Richter v. Hickman, Tex.Civ.App., 243 S.W.2d 466.

The policy of our law is that applications for temporary injunction should be heard speedily.

We have read all of respondents’ authorities. They were all cases where an effort was made to obtain a final trial on the merits where the rights of the parties would be finally determined.

We are of the view that relator is entitled to a trial on its application for temporary injunction. We have no doubt the trial court will proceed to trial without the ac- . tual issuance of the writ. It is the order of the Court that a hearing on the application for temporary injunction be set to commence within 60 days from the date . our opinion becomes final. No writ will actually issue unless our order be not complied with.


text:
    Jack GILBERT, Individually and d/b/a Gilbert Plumbing Company, Appellant, v. Gerald T. HAIGLER et al., Appellees.
    No. 14046.
    Court of Civil Appeals of Texas. Houston.
    Dec. 13, 1962.
    Rehearing Denied Jan. 10, 1963.

      Vinson, Elkins, Weems & Searls, Houston, and Sam W. Davis, Jr., Houston, of counsel, for appellant.
    McClure & Lucas, Houston, and Harold Lloyd, Houston, of counsel, for appellee Gerald Haigler.
    Richard H. Powell and George H. Vance, Houston, for appellees San Jacinto Glass Co. and Joe Walton.
   WERLEIN, Justice.

This is an appeal by Jack Gilbert, d/b/a Gilbert Plumbing Company, from a $35,-000.00 judgment against him in favor of ap-pellee, Gerald T. Haigler. Based on the jury verdict the court decreed that Haigler take nothing as against the defendants, San Jacinto Glass Company of Houston and Joe Walton, collectively referred to herein as Walton.

The evidence shows that about 8:30 o’clock a. m. the Haigler 1/2 ton truck, which had been traveling in a westerly direction in Houston on Old Spanish Trail, had come to a stop in the 1900 block thereof about 6 or 7 feet behind an automobile which in turn had stopped in a line of stopped vehicles. Walton testified that the truck of appellee San Jacinto Glass Company, driven by him, had made a normal stop about 10 feet behind the Haigler truck. About 20 to 30 seconds after the Walton truck had stopped Gilbert’s Cadillac, without any warning, struck the Walton truck from the rear, driving it into the Haigler truck, which in turn struck the car in front of it.

All negligence and proximate cause issues with respect to Gilbert’s failure to maintain a proper lookout, failure to properly apply his brakes, rate of speed, and failure to change his course to the right or left, were answered favorably to appellee.

To Special Issue No. 16, inquiring whether the vehicle driven by Walton was stopped immediately before any impact between the Walton vehicle and the Haigler vehicle, the jury answered, “It was stopped.” The jury did not answer any issues with respect to negligent acts or omissions on the part of Walton, since such issues were conditioned upon a negative finding to Special Issue No. 16.

Appellant complains of the error of the trial court in keeping the jury from considering the special issues inquiring as to negligence on the part of Walton by conditioning such issues upon a negative finding to Special Issue No. 16. The issues conditionally submitted inquired only as to negligence of Walton in connection with lookout, application of brakes, speed and alteration of the course of the Walton truck. The law is well established that a defendant is generally entitled to an affirmative submission of his defensive issues pleaded and raised by the evidence, and that a finding on issues submitted is not a finding on issues not submitted. Colorado & S. Ry. Co. v. Rowe, Tex.Com.App., 238 S.W. 908; Montrief & Montrief v. Bragg, Tex.Com.App., 2 S.W.2d 276; Schuhmacher Co. v. Holcomb, 142 Tex. 332, 177 S.W.2d 951; 41-B Tex.Jur., p. 619, Trial, § 470.

Affirmative defensive issues, however, need be submitted only when there is some evidence raising such issues. Dallas Ry. & Terminal Co. v. Darden, Tex.Com.App.1931, 38 S.W.2d 777; Traders & General Ins. Co. v. Peterson, Tex.Civ.App., 87 S.W.2d 322, writ dism.; 41-B Tex.Jur., p. 624, Trial, § 472, and authorities cited.

We have carefully read the statement of facts in an effort to determine whether there is any evidence of probative force that required the unconditional submission of the affirmative defensive issues with respect to negligence on the part of Walton.

The evidence shows that there were 33 feet of skid marks made by Gilbert’s Cadillac and 2 or 3 feet of skid marks made by Walton’s truck. Gilbert did not know whether Walton’s truck had hit Haigler’s truck before he (Gilbert) ran into the rear of Walton’s truck. He merely knew that the impact, when he struck the Walton truck, was hard and that he skidded before striking it, and that there was over $500.00 damage done to the Cadillac.

Walton testified unequivocally that at the time of the collision he had his feet on the clutch and brake of his truck; that he had come to a normal stop 10 feet behind Haig-ler and had been stopped there for about 30 seconds before the Gilbert Cadillac struck the rear of his truck with a hard impact, knocking his truck into Haigler’s truck; that his truck skidded some 3 or 4 feet, and that after the impact with Haigler’s truck he was 2 feet from the rear thereof. He testified that Gilbert said the collision was all his (Gilbert’s) fault, that he was looking down adjusting his heater. Walton also testified that he did not recollect anything like Haigler’s truck bouncing back and striking his truck after Haigler’s truck had struck the car in front of it.

The testimony of Mr. Matthews, who was riding with Walton at the time of the collision, corroborates the testimony of Walton. He said that the Walton truck had stopped and had been stopped for some 20 to 30 seconds before it was struck in the rear by the Gilbert car; that they had no warning whatever; and that the impact was severe. He further testified that the Walton truck was not knocked into the Haigler truck a second time and that there was only one collision therewith.

Sgt. Charles Bell testified that when he investigated the collision Haigler said his truck was struck only once from the rear and that Gilbert said the collision was all his fault. Police Officer James testified to the skid marks, and that Gilbert told him he was going 20 miles per hour and didn’t have time to stop.

Clearly there is nothing in the testimony of Walton, Matthews or the police officers to raise an issue of any negligence on the part of Walton. Haigler testified there were two impacts but that he did not know whether he had one impact with the car in front of him or not, that he was not certain in what order it happened, and didn’t know how it happened, and didn’t know whether or not the Walton truck was knocked into him a second time, and that it was possible that on hitting the car in front of him his truck bounced back and hit the Walton truck. He testified also that he could not tell whether the Walton truck had stopped behind him prior to the collision. He stated that after he had been stopped for some 30 seconds or a minute he looked into his rear view mirror and saw a truck coming at him; that he did hot know how close or how many feet it was, but it was right before the truck hit him and he didn’t have an opportunity to brace himself; that the Walton truck slammed into him and his head flew back and he hit the glass and then his truck struck the car in front of him and he felt his head go back and forward again; and that he was shaken up and dizzy and was trying to clear his head when he got out of his truck. This testimony is consistent with the testimony of the other witnesses and with Haigler’s statement that there were two impacts and the evidence relative to a double whiplash injury.

On cross-examination Haigler testified that he only remembered he had two impacts and believed they were from the rear. It was then shown that in his deposition he had testified that he was hit from the back and then hit the car -in front of him and then he was hit again from the rear. This he affirmed after his memory had been refreshed. Thus there was some evidence of probative force that Haigler’s truck was hit twice from tHe rear.

Assuming that Haigler’s truck was hit twice from the rear, there is still no evidence of any probative force as to any negligence on the part of Walton with respect to lookout, speed, application of his brakes or failure to change the course of his truck. Walton testified that he saw the Haigler truck when he was a block or two away from it; saw it come to a stop, and then he drove up and stopped 10 feet to the rear of it. There is no evidence that he was not keeping a proper lookout or that he did not stop as he said he did. There is no evidence sufficient to raise an issue with respect to speed or change of course. The uncontroverted testimony shows that he did apply his brakes. It is our conclusion, therefore, that there is no evidence that would support the submission of any issue with respect to the alleged negligent acts or omissions on the part of Walton. It is well established law in this State that negligence and proximate cause may be proven by circumstantial evidence, but there must be some evidence from which the jury might find negligence or any other issuable fact. Bock v. Fellman Dry Goods Co., Tex.Com.App.1919, 212 S.W. 635. The mere fact that a collision occurs does not without more evidence establish negligence or proximate cause. Firestone Tire & Rubber Co. v. Rhodes, Tex.Civ.App., 256 S.W.2d 448, 452.

- The rule with respect to the unconditional submission of issues and the circumstances under which the rule is inapplicable is expressed in Western Wood Products Company v. Box, Tex.Civ.App., 248 S.W.2d 974, as follows:

“We recognize that generally thé parties to a suit are entitled to have the issues presented by the pleadings .submitted in an affirmative and uncóndi-, tional way, but this is not the rule when ' 'the findings on other issues necessarily negative the defensive issues or where the evidence is insufficient to raise the defensive issue.”

In the instant case an affirmative answer' to Special Issue No. 16, that the Walton car was stopped before any impact between it and Haigler’s truck, necessarily negatived negligence on the part of Walton prior to being struck by Gilbert, with respect to lookout, brakes, speed and change of course. No issues were requested or submitted with respect to following too close or proper control. Appellant’s only exception to such issue serving as a basis for the conditional-submission of issues as to Walton’s negligence, was limited to preclusion of a consideration by the jury of negligence on the part of Walton following the collision between the Walton truck and Gilbert’s Cadillac.

We find no evidence that would warrant submission of any issue as to negligence on the part of Walton after his truck was struck by the Gilbert Cadillac with such violence that it was knocked into the Haigler truck 10 feet away, knocking it into a car 6 or 7 feet beyond. No issue was requested or submitted with' respect thereto. The evidence, shows that Walton did apply his brakes and skidded several feet. Apparently this is accounted for by the fact that he had his foot on the brake and probably applied it automatically after being struck in the rear by the Cadillac.

We find no merit in appellant’s second and fourth points in which he contends that the court erred in refusing to permit him to show that Haigler had never claimed workmen’s compensation benefits in impeachment of Iiaigler’s testimony that he had not gone to the hospital because he had no money, and the contention that the court erred in allowing counsel for Walton to argue to the jury that they should not make Walton pay for the damages, There is nothing to show that Haigler was covered by Workmen’s Compensation Insurance. There is no bill of exception in the record preserving any error in connection with jury argument. We overrule appellant’s third point. The record does not reflect that any motion in limine with .respect to Dr. David’s testimony, was filed or acted upon by the court.

We have carefully considered all the evidence in an effort to determine whether or not the judgment of $35,000.00 awarded plaintiff is excessive. Haigler testified in substance that when the Gilbert car struck the rear of his truck the impact was severe, and that his head flew back and hit the glass and also hit the glass in front when his head moved forward; that the tail gate of his truck was bent up and his bumper was broken loose and hanging down, and the bed of his truck had been driven into the cab of his truck and there was other damage to his truck, and the oven which he was hauling on his truck had been smashed; that he was shaken up and dizzy though not unconscious; that he started hurting about noon and had a headache, and pain in his neck; that he went home about two o’clock having a severe headache and sharp pains in his neck; that the next day he saw Dr, David and continued to see him three or four times a month and sometimes as often as twice a week at various times; that he had'pains in his neck, sharp pains running down his right arm, and headaches; that the pain in his right arm was like a knife sticking him, and sometimes.the pain went farther down than his elbow; that he continued to see his doctor about. once a month but had seen no improvment in his condition; that he had never been confined to the hospital; that no brace or traction, had been applied and that he had. no cuts; ' and that he was given heat treatments and medicine by his doctor. •

He further testified that he was 29 years of age; that following the injury'which was December 29, 1959, he had been able to do only light'work; that he did no work in January, 1960 and very little physical work thereafter; that in February he'made $60.-00 or $70.00 in delivery service work and about '$100.00 or $150.00 in March; that he could do no hard work or heavy work; that he started an appliance business in his home but.did. no heavy lifting since heavy work would aggravate his condition; that from April to. December, 1960 he made about $1400.00; that he took medicine and saw the doctor about once a month; that he got sick a few times and had to quit and go home, and had to lie down at times and rest; that in 1961 he made about $800.00 in his appliance business, $1200.00 working for Campbell Service Co. and some $800.00 working for Manchester Terminal, such work not involving physical labor.

Dr. David testified in substance that Haigler had received a whiplash injury to his neck and that he was bothered with pain in his neck and referred pain in the right arm down to the elbow; that the x-ray showed that the normal lordotic curve of the cervical spine or forward curve was absent and had been replaced with a com-i píete straight-up alignment with no forward curve; that the forward curve is characteristic of the cervical spine; that the absence, of the lordotic curve was abnormal and was usually brought on by injury to the neck as the result of spasm, rigidity and pain in the neck resulting in the muscle pulling backward toward the back of the neck; that appellee had a loss of grip indicating a nerve injury; that all the muscles on the right side of his neck were tense, painful and spastic, and all movements limited; that appellee had seen him some 25 times; that there was a nerve root pressure on the right side which was probably caused by scar tissue, and that Haigler would continue to have pain from such condition; that scar tissue had the tendency to grow and cause even more irritation; that ap-pellee would have pain for a long, long time in the future and would require medical attention in the future which would amount to $100.00 per year; that he recommended future hospital treatment for at least three weeks in an attempt to alleviate the condition, but stated that this was a chronic case and that hospitalization would not do as much good now as it would have earlier.

The evidence shows that prior to his injury Haigler made approximately $6500.00 per year, whereas in the two years following his injury he made a total of about $4500.00, consisting of about $1800.00 in 1960 and in 1961 about $2750.00 gross. At the time of the trial which was two years after the accident, Haigler was still suffering from diminished earning capacity. He testified he couldn’t lift any more in regular work because of pain, and that he did not feel that there had been any substantial improvement in his physical condition. Dr. David’s diagnosis was whiplash injury to the neck, cervical strain with radiation of pain extending through the right upper extremity and numbness therein, and obliteration of the normal lordotic curve. His bill for services rendered was $350.00.

Dr. Lane, an orthopedic surgeon who was called to the stand by appellant, testified that on examining appellee on October 27, 1961, nearly two years after the date of injury, he found no evidence of any spasms of the neck muscles although appellee complained of tenderness upon pressure on his neck at the lower part of his thoracic spine; that there was no atrophy of the muscles of either arm; that all of appellee’s reflexes were normal; and that there was nothing abnormal manifesting itself. When comparing an x-ray taken by Dr. David December 30, 1959, and appellant’s x-ray taken in October, 1961, he testified that the former shows some straightening which would possibly be the result of muscle spasm. He further testified that if appel-lee has suffered pain in his neck for over a year it would indicate a fracture or ruptured disk. There was no testimony, however, by either of the doctors to the effect that there was either a ruptured disk or a fracture. Dr. Lane testified that the history given him by appellee was compatible with a neck sprain, and not incompatible with a whiplash type of injury.

Appellee’s wife testified as to his complaints of pain and suffering in his arms and neck and his headaches, his inability to do what he formerly could do, his need of frequent rest periods, nervousness, inability to sleep at nights, and her almost daily application of heat and liniments to his back, neck and shoulders.

The determination of the amount of damages in a personal injury suit is primarily with the jury, although the jury verdict is subject to the supervision of the court whether such verdict is too large or too small. Kimbriel Produce Co. v. Webster, Tex.Civ.App., 185 S.W.2d 198, writ ref., w. m. In the present case there is evidence which would support a jury finding that appellee sustained a severe whiplash' injury which has resulted in severe pain, almost continuous suffering and great loss in earnings and earning capacity, with the probability that such conditions will continue for a long, indefinite period in the future.

It is difficult to appraise another’s pain and suffering. As stated in Port Terminal Railroad Association v. Noland, 1956, Tex.Civ.App., 288 S.W.2d 276, writ ref., n. r. e.:

“There is almost no yardstick which may be employed which will remove the decision from the realm of pure subjective thinking. The only objective approach to the problem of which this Court is aware is that of comparing the award made with those which have been approved by other courts in comparable litigation.”

Although the amount awarded ap-pellee appears to be quite ample, we cannot say in light of all the evidence or upon comparison with awards made for similar injuries in other cases, that it is excessive, -or that the amount found by the jury does not constitute fair and reasonable compensation for the injury sustained by appellee. There is nothing to show that the jury was moved by any improper considerations in assessing appellee’s damages. Green v. Rudsenske, Tex.Civ.App., 320 S.W.2d 228; Dallas Transit Company v. Collier, Tex.Civ.App.1958, 317 S.W.2d 557.

The judgment of the Trial Court is affirmed.