author: CADENA, Justice.

text:
    EMPLOYERS MUTUAL CASUALTY COMPANY, Appellant, v. Mrs. Eugene W. SAMUELS, Appellee.
    No. 14460.
    Court of Civil Appeals of Texas. San Antonio.
    June 22, 1966.
    Rehearing Denied Nov. 9, 1966.

      Strasburger, Price, Kelton, Miller & Martin, Royal H. Brin, Jr., Robert K. Drummond, Dallas, for appellant.
    Schweppe, Schweppe & Allison, Stahl & Sohn, San Antonio, for appellee.
   CADENA, Justice.

This is a suit by appellee, Mrs. Eugene W. Samuels, against appellant, Employers Mutual Casualty Company, to recover for the death of her husband, Eugene W. Samuels, under a policy of insurance issued by appellant. Both parties filed motions for summary judgment and, after a hearing, the trial court entered judgment granting the motion of appellee and denying the motion of appellant. The judgment allowed appel-lee recovery in the sum of $11,952.01.

Samuels was an officer of a corporation which, as a subscriber to the Texas Workmen’s Compensation Act, had obtained a policy of Workmen’s Compensation and Employers’ Liability Insurance from appellant. The policy contained a “voluntary compensation endorsement” which specifically covered Samuels. This endorsement amended the basic policy by adding thereto additional coverage, designated as “Coverage C,” under which appellant agreed to pay, if Samuels sustained death or injury “under circumstances which would have rendered the insured liable for compensation if the injured employee and the insured had been subject to the workmen’s compensation law * * * with respect to such employment, an amount equal to the compensation and other benefits which would have been payable under such law had the injured employee and the insured been subject to such law with respect to such employment.”

Paragraph 3 of the voluntary compensation endorsement provided that the policy “applies under Coverage C only to injury or death sustained in the United States of America, its territories or possessions, or Canada.”

On July 20, 1963, Samuels was required to make a business trip by airplane from San Antonio, Texas, the home office of his employer, to Brownsville, Texas. The airplane was owned by the employer and piloted by the employer’s president. On the return trip from Brownsville to San Antonio, the aircraft crashed into the Gulf of Mexico, about twenty-one miles from the Texas coast, at a point between Port Isabel and the seaward edge of the so-called Outer Continental Shelf. The crash resulted in the death of Samuels.

Appellant contends that the trial court erred in rendering judgment against it, because, under the stipulations relating to the location of the fatal accident, Samuels did not sustain injury or die “in the United States of America, its territories or possessions.”

A little more than 500 years ago it was frequently contended that the sea could be appropriated by a nation to the exclusion of all others. Vague and exaggerated claims were made by nations over portions of the sea, but gradually these “vain and extravagent pretensions,” as they were called by Chief Justice Cockburn in Regina v. Keyn (1876), 2 Exch. Div. 175, were abandoned. See Hall, Treatise on International Law (8th ed., 1924), p. 189. Today, the generally accepted doctrine may be summed up as follows: The high sea does not form part of the territory of any nation. No nation can have over it any right of ownership, sovereignty or jurisdiction. At least in times of peace, no nation can claim to dictate laws for the high seas. The Mariana Flora, 1 Wheat. (U.S.) 1, 43, 6 L.Ed. 405; United States v. States of Louisiana, etc., 363 U.S. 1, 33, 80 S.Ct. 961, 4 L.Ed.2d 1025, 34th Report, Institute of International Law, pp. 101 et seq.

Article 2 of the Convention on the High Seas, adopted by the United Nations Conference on the Law of the Sea, held in Geneva in 1958 (U.N.Doc. A/CONF. 13/L. 53), declares that no nation may validly purport to subject any portion of the high seas to its sovereignty.

In the case of a littoral nation, a certain portion of the seas adjacent to its coasts is subject to its jurisdiction. The sea within this limit of territorial jurisdiction is generally referred to as “territorial waters,” “the territorial sea,” “the marginal sea” or “the maritime belt.” The sea beyond the limits of these territorial waters is called the high sea and forms no part of the territory of any nation. Article 1, Convention on the High Seas.

While there is not universal agreement on the extent of a nation’s territorial waters, the United States, along with Great Britain and other countries, has consistently adopted the three-mile limit. 1 Hackworth, Digest of International Law (1941), pp. 634-642.

Under these traditional concepts relating to national jurisdiction and sovereignty, it would follow that the fatal accident with which we are now concerned did not occur in the United States, its territories or possessions. However, appellee contends that, because of recent developments and claims advanced by various nations, including the United States, with reference to the so-called continental shelf, this accident, which occurred on the waters above such shelf, must be considered as having occurred within the United States, its territories or possessions.

The term “continental shelf” refers to the submerged bed of the sea, contiguous to a continental land mass, which is formed in such a manner as to be really an extension of, or appurtenant to, the land mass, but generally not situated at a greater depth beneath the sea level than 200 meters (100 fathoms). At approximately this depth there occurs, as a rule, the first substantial “falloff” to the vastly greater ocean depths and submarine slopes. Because of technological advances in the art of oil drilling, making it possible to exploit submarine oilbearing strata found in these submerged lands, coastal nations have, especially within the past quarter-century, become vitally interested in these submarine areas.

In 1945 the President of the United States, 59 Stat. 884, by proclamation, declared that “the Government of the United States regards the natural resources of the soil and sea bed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control.” However, the Presidential Proclamation expressly recites-that “[t]he character as high seas of the waters above the continental shelf and the right to their free and unimpeded navigation are in no way thus affected.” 40' Am.J. of Int.Law(1946), Supp., pp. 45-46.

Subsequently, the United States Congress-adopted the Submerged Lands Act (43-U.S.C.A. §§ 1301-1315) and the Outer Continental Shelf Lands Act (43 U.S.C.A. §§• 1331-1343). One of the primary purposes of these 1953 enactments was to settle a long-standing controversy concerning the respective rights of the Federal Government and the various States in the submarine areas off their shores. See United States v. State of California, 332 U.S. 19, 67 S.Ct. 1658; United States v. State of Louisiana, 339 U.S. 699, 70 S.Ct. 914, 94 L.Ed. 1216; United States v. State of Texas, 339 U.S. 707, 70 S.Ct. 918, 94 L.Ed. 1221. Cf. State of Alabama v. State of Texas, 347 U.S. 272, 74 S.Ct. 481, 98 L.Ed. 689.

The Submerged Lands Act recognizes the rights of each coastal State in the natural resources of the submerged lands off its shores out to its offshore boundary, subject to the constitutional powers of the United States in the fields of commerce, navigation, defense and international affairs. Under this statute, the seaward boundary of Texas, insofar as title to natural resources is concerned, is three marine leagues, or nine nautical miles, from the Texas coast line. United States v. States of Louisiana, etc., 363 U.S. 1, 80 S.Ct. 961.

The Outer Continental Shelf Lands Act, insofar as pertinent here, is an assertion of Federal sovereignty. The Act first declares the policy of the United States to be that “the subsoil and seabed of the outer Continental Shelf appertain to the United States and are subject to its jurisdiction, control, and power of disposition” as provided in the Act. 43 U.S.C.A., § 1332(a). Section 1333(a) (1) provides that the “Constitution and laws and civil and political jurisdiction of the United States are extended to the subsoil and seabed of the outer Continental Shelf and to all artificial islands and fixed structures which may be erected thereon * * * to the same extent as if the outer Continental Shelf were an area of exclusive Federal jurisdiction located within a State * *

Since the accident occurred twenty-one miles seaward from the Texas coast, it is apparent that it did not occur within the boundaries of the State of Texas. Those boundaries are established under the Submerged Lands Act at a point nine nautical miles, or 10.359 statute miles, seaward from the Texas coast. We conclude, further, that the death did not occur within the United States, its territories or possessions.

While the language of the Outer Continental Shelf Lands Act expressly amounts to an assertion of jurisdiction, the words make manifest that federal jurisdiction and control are extended only to the subsoil and seabed of the shelf, and to all artificial islands and fixed structures which may be erected thereon. The enactment explicitly disclaims, as did the Presidential Proclamation of 1945, any intention to affect the “character as high seas” of the waters above the shelf. 43 U.S.C.A. § 1333(a) (3).

If, as the Presidential Proclamation and the Outer Continental Shelf Lands Act expressly recognize, these unilateral declarations of the United States concerning the subsoil and seabed of the shelf do not affect the status of the superjacent waters as “high seas,” then it follows that the crash which took the life of Mr. Samuels occurred in an area which is the territory of no nation.

In Guess v. Read, 290 F.2d 622 (5th Cir., cert.den., 368 U.S. 957, 82 S.Ct. 394, 7 L.Ed.2d 388), it was held that the crash of a helicopter about nine miles from the shore of the State of Louisiana did not occur within an area “over which the United States had declared its jurisdiction.” The Court, in its consideration of the Outer Continental Shelf Lands Act, pointed out that such legislation does not include “the sea above the subsoil and seabed and does not include the air above the sea.”

Our conclusion finds support in the provisions of the Convention on the Continental Shelf (U.N. Doc. A/CONF. 13/L. 55), adopted by the United Nations Conference on the Law of the Sea, April 29, 1958, and acceded to by the United States on April 12, 1961. Broadly speaking, this document recognizes and gives effect to the doctrine underlying the unilateral declarations by the United States and other nations asserting jurisdiction and control over the continental shelf and associated offshore areas, but its provisions stop short of acknowledging any unlimited jurisdiction by a littoral nation over shelf waters. While Article 2 of the Convention confers “sovereign rights” to the coastal nation over the continental shelf, it does so only “for the purpose of exploring it and exploiting its mineral resources.” Article 3 declares that the rights of the littoral nation over the continental shelf “do not affect the status of the superjacent waters as high seas, or that of the air space above such waters.”

The holding in Pure Oil Co. v. Snipes, 293 F.2d 60 (5th Cir.), on which appellee relies, is in no way inconsistent with our holding here. In that case plaintiff sustained an injury when he fell from a rig onto the drilling platform erected over the continental shelf 65 miles from the Louisiana coast. The actual holding in Snipes, to the effect that the maritime law, rather than the law of Louisiana, was applicable to a cause of action arising out of the accident, cannot be construed as a holding that the place of the accident was within the United States, since the Court expressly said: “In every sense of the word this happened on the high seas.” 293 F.2d at p. 64. In any event, the accident in Snipes occurred on a “fixed structure” erected on the continental shelf. As already pointed out, the Outer Continental Shelf Lands Act extends the “Constitution and laws and civil and political jurisdiction of the United States” to “fixed structures” which may be erected pn the shelf “to the same extent as if the outer Continental Shelf were an area of exclusive Federal jurisdiction located within a State * * *.” The Act contains no similar assertion of complete jurisdiction to the superjacent waters.

It is true that the United States Coast Guard is authorized to make and enforce safety regulations concerning the structures and “waters adjacent thereto.” 43 U.S.C.A. § 1333(a) (3) (e) (1), (2). But this is a far cry from that assertion of exclusive jurisdiction which would have the effect of making the waters over the shelf a “territory” or “possession” of the United States. This provision merely reflects that Congress, cognizant of the fact that the erection of artificial islands and other structures on the surface waters would necessarily present dangers to navigation and to persons working on such structures, desired to insure that appropriate measures would be taken to minimize such hazards. Paragraph 3 of Article 5 of the Convention on the Continental Shelf confers to the maritime nation authority to construct on the shelf installations necessary for the exploration and exploitation of the minerals of the submarine lands, to establish safety zones around such structures and to take, in such zones, measures necessary for their protection. But paragraph 3 of that Article declares that such safety zones may extend to a distance of 500 meters around such installations, and paragraph 4 explicitly states that such installations shall not have the "status of islands,” and that such installations, although under the jurisdiction of the coastal state, have no “territorial sea of their own,” and their presence “does not affect the delimitation of the territorial sea of the coastal state.”

It thus appears that the Presidential Proclamation of 1945 and the 1953 Federal legislation relating to the continental shelf do not amount to that assertion of sovereignty, at least insofar as the superjacent waters of the continental shelf are concerned, which would have the effect of transforming such waters from their status as high seas into a status as territories or possession of this country. Cf. United Nations Secretariat, Memorandum on the Regime of the High Seas (1950), p. 81 (U.N. Doc. No. A/CN. ⅜2).

We do not believe that the geographical limitation on coverage contained in the policy under which appellee claims is so worded as to create ambiguity, when an effort is made to apply it to an accident which occurred twenty-one miles off the Texas coast. Cf. Snyder v. Motorists Mutual Ins. Co., 2 Ohio App.2d 19, 206 N.E.2d 227.

The transcript in this case contains a stipulation by the parties that “the only issue in this case is whether the injury or death of Eugene W. Samuels was sustained in the United States of America, its territories or possessions, or Canada.” In view of this stipulation, we do not consider the contention of appellee that the geographical limitation of coverage is invalid because in confict with Sec. 19 of Article 8306, Vernon’s Ann.Civ.St. Nor do we, in view of such stipulation, express any opinion on the question of whether such geographical limitation should be construed as being applicable to a situation where, as here, the injured employee strayed, unwittingly, outside the United States, its territories or possessions, while in the course of a journey between two points in Texas, and while flying in what appears to be a direct route between the two Texas points.

Since both appellee and appellant filed ■motions for summary judgment and we bave held that the trial court erroneously ■granted appellee’s motion for summary judgment, we are authorized to review the action of the trial court in overruling appellant’s motion for summary judgment and enter the judgment which the trial court should have rendered. Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396 (1958); Rule 434, Texas Rules of Civil Procedure. In view of the stipulation to which reference has been made, coupled with our conclusion that, as a matter of law, the injury resulting in the death of Mr. Samuels did not occur within the United States, its territories or possessions, it necessarily follows that the appellant’s motion for summary judgment should have been granted.

The judgment of the trial court is reversed and judgment is here rendered granting appellant’s motion for summary judgment and ordering that appellee take nothing by her suit.

On Motion for Rehearing.

In her motion for rehearing appellee calls our attention to Article 5415a, Vernon’s Ann.Civ.St., which, as originally passed in 1941, declared that the seaward boundary of the State of Texas was located at a point in the Gulf of Mexico twenty-seven marine miles from the Texas coast. Acts 1941, 47th Leg., p. 454, Ch. 286, § 1. In 1947 the Legislature amended Article 5415a by extending the marine boundary of this State to the outer edge of the Continental Shelf. It is appellee’s contention that, in view of this legislation, the accident in question, which occurred on the waters above the Continental Shelf, took place within the United States of America within the meaning of Paragraph 3 of the voluntary compensation endorsement.

Section 2 of the statute declares that “[sjubject to the right of the government of the United States to regulate foreign and interstate commerce under Section 8 of Article 1 of the Constitution of the United States, and to the power of the United States over cases of admiralty and maritime jurisdiction under Section 2 of Article 3 of the Constitution of the United States,” Texas has “full sovereignty” over all the waters of the Gulf of Mexico within the boundaries fixed by the statute. Section 3 asserts that Texas owns, “in full and complete ownership,” such waters and the lands covered thereby.

In United States v. State of Louisiana, 339 U.S. 699, 705, 70 S.Ct. 914, 917 (1950), the Supreme Court of the United States, speaking of state statutes purporting to extend the seaward boundaries of the states, said: “We intimate no opinion on the power of a State to extend, define, or establish its external territorial limits or on the consequences of any such extension vis a vis persons other than the United States or those acting on behalf of or pursuant to its authority.” Appellee contends that, since this case involves no dispute between ap-pellee and the United States of America, Article 5415a controls the disposition of this case.

Appellee further relies on City of Galveston v. Menard, 23 Tex. 349 (1859), where the Texas Supreme Court, in a case involving a dispute concerning ownership of certain lands in the Gulf of Mexico, considered the effect of the 1836 act of the Congress of the Republic of Texas, which established the seaward boundaries at a point in the Gulf three leagues from the coast. 1 Gammel’s Laws 1193. Justice Roberts used the following language:

“ * * * This claim of the Republic upon her coast may not have been admitted by other nations, further than one marine league from the shore. * * * That would very much have depended upon her power to enforce her claims, as we have seen in the case of the British seas and the Danish sound. * * * But as between her own citizens, in respect to the rights of the soil, which they might respectively acquire, the boundaries, prescribed and proclaimed by the government, is conclusive. * * * ” 23 Tex. at pp. 391-392.

Article 5415a is, on its face, an attempt by the State of Texas to acquire new territory, since prior to 1941 this State’s historical claim extended only three marine leagues into the Gulf. Appellee’s theory is that Art. 5415a necessarily has the effect of making the waters and lands included within the extended boundary a part of the United States.

The power to acquire new territory and annex it to the United States so that it becomes a part thereof rests in the federal government. 1 Willoughby, Constitutional Law of the United States (2d ed., 1929), 407-425; Burdick, Law of the American Constitution (1922), 272-282; Wright, The Control of American Foreign Relations (1922), 129-134. According to some authorities, this right passed by implication with the grant of the treaty-making and war powers. The treaty power gives authority to acquire new territory by cession, while the war power carries the right to acquire it by conquest. American Ins. Co. v. Canter, 1 Pet. 511, 7 L.Ed. 688 (U.S., 1828) ; Stewart v. Kahn, 11 Wall. 493, 20 L.Ed. 176 (U.S.1870) ; United States v. Huckabee, 16 Wall. 414, 21 L.Ed. 457 (U.S.1872); Jones v. United States, 137 U.S. 202, 11 S.Ct. 80, 34 L.Ed. 691 (1890) ; De Lima v. Bidwell, 182 U.S. 1, 21 S.Ct. 743, 45 L.Ed. 1041 (1901); Downes v. Bidwell, 182 U.S. 244, 21 S.Ct. 770, 45 L.Ed. 1088 (1901). Another explanation is that the power rests in the federal government as an attribute of sovereignty. Sere v. Pitot, 6 Cranch 332, 3 L.Ed. 240 (U.S., 1810). See United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255 (1936); 1 Willoughby, op. cit., 206

It is difficult to understand how the State of Texas, by its unilateral act and without the consent of the federal government, can extend the boundaries of the United States. It is true that, to some extent, a State may, by legislation, exercise its authority over its own citizens on the high seas. Thus, in Skirotes v. State of Florida, 313 U.S. 69, 61 S.Ct. 924, 85 L.Ed. 1193 (1941), the Supreme Court of the United States upheld Florida legislation prohibiting the use of diving equipment for taking sponges in the Gulf of Mexico within nine nautical miles of the Florida coast. It is significant to note that Congress had, in 1868, approved Florida’s claim to a seaward boundary located three leagues from the Mainland. United States v. States of Louisiana, Texas, Mississippi, Alabama and Florida, 363 U.S. 121, 80 S.Ct. 961, 4 L.Ed.2d 1096 (1960). It is also clear from the Skirotes opinion that the result there was not based on the fact that the Florida claim had the effect of making the waters beyond the three-mile limit territorial waters of the State of Florida, or of the United States. Mr. Chief Justice Hughes said: “We are not unmindful of the fact that the statutory prohibition refers to the ‘Gulf of Mexico, or the Straits of Florida or other waters within the territorial limits of the State of Florida.’ But we are dealing with the question of the validity of the statute as applied to appellant from the standpoint of state power. The State has applied it to appellant at the place of his operations and if the State had power to prohibit the described conduct of its citizen at that place we are not concerned from the standpoint of the Federal Constitution with the ruling of the state court as to the extent of territorial waters. The question before us must be considered in the light of the total power the State possesses.” 313 U.S. at p. 79, 61 S.Ct. at 930.

Clearly, then, Skirotes is based on the power of a State to control the conduct of its citizens, and not on the power of the State to annex territory and thus extend the boundaries of the United States.

Paragraph 2 of the preamble of the 1941 version of Article 5415a, and the emergency clause of such original act (Sec. 5), make evident that the purpose of the boundary extension was the protection of rights of Texas citizens to fish and take natural resources from the waters, and to reserve the rights of the Permanent Free School Fund to any oil-bearing lands within the extended boundaries. Acts, 1941 Leg. p. 454, ch. 286. The statute itself contains no provisions regulating the conduct of Texas citizens. Even if we should be inclined to hold that appellant, which is described in the stipulations as Mutual Casualty Company of Des Moines, Iowa, is a citizen of Texas, we would not have a situation in which the State of Texas is exercising its power to regulate the conduct of its citizens on the high seas with respect to insurance matters.

Article 5415a, insofar as it attempts to extend the boundaries of Texas beyond the three-league limit and to assert the ownership of the State in the waters and submerged lands beyond that limit, is inconsistent with the provisions of the Submerged Lands Act, 43 U.S.C.A., §§ 1301— 1315. As pointed out in the original opinion herein, the effect of such legislation was to fix the boundary of Texas at three marine leagues from the Texas coast. The following language from the opinion in United States v. States of Louisiana, etc., 363 U.S. 1, 80 S.Ct. 961, 4 L.Ed.2d 1025 (1960), is pertinent: “The power to admit new States resides in Congress. The President, on the other hand, is the constitutional representative of the United States in its dealings with foreign nations. From the former springs the power to establish state boundaries; from the latter comes the power to determine how far this country will claim territorial rights in the marginal sea as against other nations. Any such ■determination is, of course, binding on the States. * * * It is sufficient for present purposes to note that there is no question of Congress’ power to fix state land and water boundaries as a domestic matter.” 363 U.S. at p. 35, 80 S.Ct. at p. 982.

Whatever may be the effect of Art. 5415a, from the viewpoint of the power of the State of Texas to regulate the conduct of its citizens beyond the three-league limit, we cannot rely on that statute as a basis for holding that the airplane which carried Mr. Samuels to his death crashed “in the United States of America.” We need not decide whether Texas can claim title to land which is not within the territorial limits of the United States. But it would certainly be an anomaly for this Court to hold that the waters above the continental shelf are within the United States, its territories or possessions when the United States has consistently maintained the position that such waters are part of the high seas and, therefore, subject to the control of no nation.

The motion for rehearing is overruled.

      . The “outer continental shelf” is that portion of the shelf which lies beyond the seaward boundaries of the coastal states as established by the Submerged Lands Act.


source: Caselaw Access Project

author: ARCHER, Chief Justice.

license: Public Domain

text:
    Eleanor M. FARRELL, Appellant, v. Dean F. FARRELL, Appellee.
    No. 11448.
    Court of Civil Appeals of Texas. Austin.
    Oct. 26, 1966.
    Rehearing Denied Nov. 16, 1966.

      John A. Pace, Dallas, for appellant.
    Wise & Stuhl, Joseph M. Stuhl, Dallas, for appellee.
   ARCHER, Chief Justice.

This is a trespass to try title suit filed by plaintiff-appellant against defendant-appellee seeking to recover title to a tract of land in Dallas County, Texas, which had been conveyed by general warranty deed to appellant as her separate property by the appellee during their marriage. The parties were subsequently divorced and the Domestic Relations Court divested appellant of title to the real estate involved and vested title in the appellee in a division of property. An appeal was taken in which this divestiture was one of several errors asserted. The case was affirmed by the Eastland Court of Civil Appeals, 370 S.W.2d 241, with no comment or statement as to the trial court divesting appellant of title to her separate real estate. The application for writ of error to the Supreme Court was denied, 374 S.W.2d 870, the Court in a Per Curiam opinion stating it had no jurisdiction because of the failure of the Eastland Court of Civil Appeals to mention or comment on this point in its decision. Subsequently, appellant instituted this suit asserting that the district court was without authority to divest her of title to her separate real estate. Upon a trial before the 44th District Court, judgment was rendered for the defendant-appellee. From this judgment appellant prosecutes this appeal.

The appeal is based on four points assigned as error in the trial of the suit and are to the effect that the court erred in failing to grant judgment to appellant for the title to the land, because the Domestic Relations Court was without jurisdiction to divest appellant of title to her separate real estate in a divorce suit, and the deed from appellee to appellant vested fee title in appellant, and the parol evidence rule prevents any claim contrary to the recitals in the deed; that there was no testimony in the divorce suit asserting any claim contrary to the recitals in the deed, and finally no Court has authority in a divorce suit to divest appellant of title to her separate property.

All of appellant’s points are argued together.

The parties in this appeal were divorced on September 12, 1962.

Lot No. 9 in Block A of Carder Crest Addition in the town of Duncanville, Dallas County, Texas, was deeded by appellee to appellant, as her separate property on September 22, 1961.

In the decree of divorce it was provided:
“And it further appearing to the Court that the plaintiff and defendant own the following described property: Lot 9,” as hereinabove described,

Such property was awarded to the defendant subject to any indebtedness thereon.

On appeal the judgment was affirmed, 370 S.W.2d 241, and application for writ of error was denied by the Supreme Court in 374 S.W.2d 870.

The facts in the case are fully discussed in the opinion of the Court of Civil Appeals as well as the law, and given consideration by the Supreme Court in a Per Curiam opinion.

Appellee takes the position that the issues involved in this appeal are a collateral attack on the judgment of the Domestic Relations Court which had entered a final judgment and that such judgment had been affirmed, and that the issue had been resolved by the Court and that such was res judicata of and a bar to relitigation of the same issue between the same parties.

The Domestic Relations Court had the jurisdiction and the duty to adjudicate the title to the property and having done so and such action and judgment having been in all things affirmed, the issue is final and a bar to a relitigation of such. Kahn v. Kahn, 94 Tex. 114, 58 S.W. 825; Wolfe v. Brown, Tex.Civ.App., 340 S.W.2d 851, n. w. h.; White v. White, Tex.Civ.App., 380 S.W.2d 672, er. ref., n. r. e.; Davidson v. Davidson, Tex.Civ.App., 378 S.W.2d 702, er. ref.; Ladd v. Ladd, Tex.Civ.App., 402 S.W.2d 940.

The judgment of the trial court is affirmed.

Affirmed.


text:
    DALLAS ATHLETIC CLUB PROTECTIVE COMMITTEE et al., Appellants, v. DALLAS ATHLETIC CLUB, Appellee.
    No. 11445.
    Court of Civil Appeals of Texas. Austin.
    Oct. 26, 1966.
    Rehearing Denied Nov. 16,1966.
    Andress, Woodgate, Richards & Condos, Wm. Andress, Jr., Dallas, for appellants.
    Strasburger, Price, Kelton, Miller & Martin, Royal H. Brin, Jr., Dallas, for appellee.
   ARCHER, Chief Justice.

This is a summary judgment case, where both parties moved for summary judgment on the pleadings, admissions, and interrogatories. There are no affidavits or depositions.

The suit had for its purpose allegedly to stop diversion of certain funds and actions in violation of the By-Laws, by the board members.

The Club has approximately 2600 members and owns and operates a Country Club, and owns 90% of the capital stock of a large office building, with assets in excess of Two and a half million dollars.

The Club operates under By-Laws, with a Board of IS directors, 1/3 elected annually.

Originally, complaint was made as to the use of a property improvement fund but this fund has been abolished and is no longer at issue in the case.

The motions for summary judgment were heard and considered, and the motion of appellants was overruled and that of ap-pellee sustained, and from this judgment this appeal was taken.

We believe that the trial court was justified in denying appellants the relief sought and correctly granted appellee a summary judgment.

The record herein is long but we have carefully considered it, and an intervention in the internal affairs of this association is not warranted.

The individual appellants, (three in number) do not have property rights such as to give them a Iitigable interest in the matters involved herein.

The election of directors in March 1965 was in substantial compliance with the ByLaws, and does not require intervention by the courts.

The Dallas Athletic Club is a voluntary association for athletic, health and social purposes, organized as a non-profit corporation.

Gaines v. Farmer, 55 Tex.Civ. App. 601, 119 S.W. 874, error dism., w. o. j., which even appellants recognize to be a leading case in this field, states:

“We think it is a well-established rule of law that the civil courts will not interfere with the internal operations of such associations of private individuals, or assume to review their failure to conduct their business affairs according to the laws and rules of the order, except for the purpose of protecting some civil or property right of the party complaining.”

This principle continues to be followed by our courts down through the latest cases, such as Guadalupe Valley Electric Cooperative, Inc. v. South Texas Chamber of Commerce, Tex.Civ.App., 374 S.W.2d 329 (1963), dealing with a non-profit corporation financed by membership dues and private subscription and holding applicable to it the language of Brotherhood of Railroad Trainmen v. Price, Tex.Civ.App., 108 S.W.2d 239, that:

“Courts are not disposed to interfere with the internal management of a voluntary association. The right of such an organization to interpret its own organic agreements, its laws and regulations, after they are made and adopted, is not inferior to its right to make and adopt them, and a member, by becoming such, subjects himself, within legal limits, to his organization’s power to administer, as well as to its power to make, its rules.”

In Hoey v. San Antonio Real Estate Board, Tex.Civ.App., 297 S.W.2d 214, opinion by Justice Pope, now on the Supreme Court, the Court in dealing with an incorporated voluntary association, declared:

“We are here dealing with a voluntary association, not an act of the Legislature. The applicable rule is stated in Brotherhood of Railroad Trainmen v. Price, Tex.Civ.App., 108 S.W.2d 239, 241, which states:
[ * * * To say that the courts may exercise the power of interpretation and administration reserved to the governing bodies of such organizations would plainly subvert their contractual right to exercise such power of interpretation and administration. So long as such governing bodies do not substitute legislation for interpretation, do not transgress the bounds of reason, common sense, fairness, do not contravene public policy, or the laws of the land in such interpretation and administration, the courts cannot interfere. Shaup v. Grand International Brotherhood, etc., 223 Ala. 202, 135 So. 327. Without such latitude of action, associations organized to promote the legitimate welfare of its members would be deprived of power to do so.’ ”

In Mid-West Electric Cooperative, Inc. v. West Texas Chamber of Commerce, Tex.Civ.App., 369 S.W.2d 842 (1963), the Court declared:

“To hold as appellants ask would constitute judicial intervention to change the policy of West Texas Chamber of Commerce. Courts are not to interest themselves in the internal policy of a non-profit organization such as appellee, except to see that it is fairly administered and is not contrary to law. Screwmen’s Ben. Ass’n v. Benson, 76 Tex. 552, 13 S.W. 379, 380; 14 Tex.Jur.2d 342 ; 6 Tex.Jur.2d 532. Whether the policy be wise, be in the best interests of its membership, or be acceptable to the court are not questions justifying the interposition of judicial action.”

This case affirms a summary judgment in favor of a non-profit organization.

As stated:

“A court will not, at the instance of a minority of the shareholders, interfere with the management, by its directors and officers, of the affairs of a corporation in matters involving merely the exercise of discretion. A court will not substitute its judgment, on questions of policy, for that of the governing body of the corporation, in order to decide business questions, nor set aside the acts of the majority, because the court may think that another course would have been wiser, or even that the course adopted was plainly unwise.” 14 Tex.Jur.2d, Corporations, Sec. 226, p. 342.

Quilliam v. Hebbronville Utilities, Inc., Tex.Civ.App., 241 S.W.2d 225, er. ref., n. r. e.

The appellants have not demonstrated any valuable property rights such as would lead the courts to take jurisdiction.

Post No. 581, American Legion Department of Texas v. Department of Texas, American Legion, Tex.Civ.App., 290 S.W.2d 712, n. w. h.

The board of directors of the Club is the proper body to interpret its By-Laws in connection with elections, submission of amendments and the requirements for special meetings, and its exercise of discretion was not such as to be overturned by the courts.

Brotherhood of Railroad Trainmen v. Price, Tex.Civ.App., 108 S.W.2d 239, er. dism., declares:

“ * * * The right of such an organization to interpret its own organic agreements, its laws and regulations, after they are made and adopted, is not inferior to its right to make and adopt them.”

United Brotherhood of Carpenters etc. v. Carpenters Local Union No. 14 etc., Tex.Civ.App., 178 S.W.2d 558, er. ref.

The judgment of the trial court is affirmed.

Affirmed.


author: PHILLIPS, Justice.

text:
    K. S. WENDLER CONSTRUCTION CO., Inc., et al., Appellants, v. AUSTIN MECHANICAL CONTRACTING COMPANY, Appellee.
    No. 11437.
    Court of Civil Appeals of Texas. Austin.
    Oct. 26, 1966.
    Morgan Nesbitt, Austin, for appellants.
    William B. Hilgers, by William C. Fielder, Austin, for appellee.
   PHILLIPS, Justice.

This is an appeal from an order of the trial court overruling a plea of privilege.

The appellee, Austin Mechanical Contracting Company, filed suit in the district court against K. S. Wendler Construction Company and the Fidelity and Deposit Company of Maryland.

Appellee had alleged as its cause of action against Wendler that it had furnished labor and materials to Wendler on a construction project in Mercedes, Texas, and that upon completion of the work, certain sums were still due and unpaid by Wendler to appellee.

As its cause of action against Fidelity, appellee alleged that this surety company executed a payment bond, whereby Fidelity bound itself to pay to appellee all sums of money due and owing for the material and labor furnished in the event that Wendler failed to pay.

Fidelity filed its plea of privilege to be sued in its residence county of Dallas County, Texas. The trial court overruled the plea, hence, this appeal.

We affirm.

Appellant is before us with three points of error, briefed together, complaining of the judgment of the trial court in that mandatory venue of a suit upon a bond of the type here involved is placed by Article 7.01, Texas Insurance Code, V.A.T.S. in the county wherein the bond is filed (Hidalgo County), and the trial court erred in sustaining venue in Travis County; the error of the trial court in failing to sustain Fidelity’s Plea of Privilege, for the reason that the provisions of Article 7.01, Texas Insurance Code, are mandatory in nature, and should prevail over the exceptions to the right to be sued in the county in which one has his domicile, contained in Article 1995 Vernon’s Ann.Civ.St., and relied upon by appellee, which exceptions are permissive only and not mandatory; the error of the trial court in failing to sustain Fidelity’s plea of privilege and under the doctrine announced by the Supreme Court in Tunstill v. Scott, 138 Tex. 425, 160 S.W.2d 65, the cause should have been transferred to the county of Fidelity’s residence.

We overrule these points.

A defendant in this State has the right to be sued in the county of his domicile unless the action falls within one or more of the statutory exceptions. Subdivision (4) of Article 1995, V.C.S., states that if two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides. In Smiser v. Petroleum Refining Company, 398 S.W.2d 177, the Court of Civil Appeals held that in order to maintain venue under Subdivision 4 of Article 1995, the plaintiff must establish by the preponderance of the evidence that one of the defendants resides in the county where the suit is filed and that he has a cause of action against the resident defendant. He must allege facts showing that the nonresident defendant is properly joined in the suit but he need not prove a cause of action against the non-resident defendant.

All the elements necessary to this exception are present in this case.

Appellant contends that Article 7.01, Texas Insurance Code, is a mandatory provision as opposed to the permissive character of subdivision (4), Art. 1995; consequently, the former takes precedence over the latter, thus establishing venue in Hidalgo County,- Texas. We cannot agree with this contention as there was no pleading on the part of any of the defendants in this case asking that venue be placed in Hidalgo County; consequently, the provisions of Article 7.01 were waived. Tunstill v. Scott, 138 Tex. 425, 160 S.W.2d 65. Weems v. Frost National Bank of San Antonio, affirming on rehearing, Tex.Civ.App., 275 S.W.2d 956, writ dism., w. o. j.

Appellant cites Tunstill in his own behalf for the proposition that Fidelity has. the right to be sued in the county of its residence. In Tunstill there were three defendants, two from Tarrant and one from Harris County. The suit was filed in Tarrant County however the Court of Civil Appeals ordered the suit transferred to a county where the land in question was-located under Section 14, of Art. 1995. In answer to certified questions presented the Commission of Appeals, the court held that since none of the defendants had raised their right to venue under Section 14, they had waived it; and, further since the plaintiff therein had failed to show a cause of action against the defendants where the suit was filed (Tarrant County) the case should have been transferred to-Harris County under the Harris County Defendant’s plea. This is not our situation here.

We affirm the judgment of the trial court.


author: WILSON, Justice.

text:
    James HARPER et al., Appellants, v. FMC CORPORATION, NIAGARA CHEMICAL DIVISION, Appellee.
    No. 4526.
    Court of Civil Appeals of Texas. Waco.
    Sept. 29, 1966.
    Dawson, Dawson & Price, R. Matt Dawson, Corsicana, Billy Colvin, Ennis, Milton Hartsfield, Waxahachie, for appellants.
    V. H. McClintock, Tommy P. Herring and J. Robert Sheehy, Waco, for appellee.
   OPINION

WILSON, Justice.

In this plea of privilege appeal we hold that plaintiff failed to prove the essential venue fact under Subd. 4, Art. 1995, Vernon’s Ann.Civ.St., that it had a cause of action against the resident defendant.

The suit was on a sworn account, as authorized by Rule 185, Texas Rules of Civil Procedure, against an alleged partnership and its partners, two of whom are nonresident appellants. The only evidence to show a cause of action is an affidavit incorporating a number of invoices directed to “Chambers Creek Farms.” A regional manager of plaintiff corporation testified he was familiar with plaintiff’s books and records, that the list of invoices totalled the amount sued for, and they were prepared under his supervision from defendants’ records kept in the regular course of business. It is not contended the invoices were established under the Texas Shopbook rule or business records act, Art. 3737e, V.A.C.S.

The affidavit is hearsay, is inadmissible, and even absent objection to its admissibility is not evidence of probative force to establish the alleged debt. McCormick & Ray, Texas Law of Evidence, Sec. 787 ; 24 Tex.Jur.2d, Sec. 573, p. 89.

Reversed and remanded.


author: McDONALD, Chief Justice.

text:
    William Charles LEWIS, Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
    No. 4518.
    Court of Civil Appeals of Texas. Waco.
    Oct. 20, 1966.
    John L. Sandstedt, College Station, for appellant.
    William R. Vance, Bryan, for appellee.
   OPINION

McDONALD, Chief Justice.

This is a driver’s license case. The Justice Court, Precinct 4, Brazos County, rendered judgment suspending appellant Lewis’ driver’s license for three months, finding he was an habitual violator of the traffic law. Lewis appealed to County Court of Brazos County. (Article 6687b, Sec. 22(c) Vernon’s Ann.Civ.St). That Court rendered summary judgment that "defendant (Texas Department of Public Safety) be authorized to suspend (Lewis’) Texas Operator’s License No. 3181743 and driving privileges for a period of time not to exceed one year * *

Lewis appeals, contending the trial court erred:

1) In effect finding he was an habitual violator within the meaning of Article 6687b, Sec. 22(b) V.A.T.S., because two of the alleged judgments of conviction are void.
2) In entering judgment authorizing the Department of Public Safety to suspend his license for a period of time not to exceed one year; such being violative of Article 6687b, Sec. 22(c).

Suspension of Lewis’ driver’s license was predicated on affidavit that Lewis had seven convictions in a 24 month period. Such affidavit was supported by “Notice of Conviction” forms furnished by the State Highway Department for the asserted convictions.

The record affirmatively reflects that the asserted judgments of conviction of September 16, 1963 and of February 29, 1964, both of which levied fines, did not conform to the requirement of Article 42.-15 Vernon’s Ann.Code of Criminal Procedure, which provides:

“When the defendant is only fined the judgment shall be that the State of Texas recover of the defendant the amount of such fine and all costs of the prosecution, and that the defendant, if present, be committed to jail until such fine and costs are paid; or if the defendant be not present, that a capias forthwith issue, commanding the sheriff to arrest the defendant and commit him to jail until such fine and costs are paid; also, that execution may issue against the property of such defendant for the amount of such fine and costs.”

Such purported judgments by reason of such omission are no judgments at all; and are void. Ex parte Leachman, 150 Tex.Cr. R. 145, 199 S.W.2d 661; Ex parte Barstow, 169 Tex.Cr.R. 28, 331 S.W.2d 937; Tex. Dept. of Public Safety v. Richardson, Sup.Ct., 384 S.W.2d 128; Crow & Wallace v. Tex. Dept. Public Safety, Sup.Ct., 406 S.W. 2d 201.

Without valid conviction on the two above dates, the finding of seven convictions in a two year period falls, and there remains no basis for suspension of appellant’s driver’s license.

Further, the judgment of the trial court did not suspend appellant’s license (as required by Article 6687b, Sec. 22(c), but authorized the Department of Public Safety “to suspend (Lewis’) license for a period of time not to exceed one year.” The trial court has no power to delegate its judicial function to the Texas Department of Public Safety. The judgment is void on its face.

Both appellant’s contentions are sustained. The judgment is reversed and judgment rendered for appellant, setting aside suspension of appellant’s driver’s license.

Reversed and rendered.


author: GRISSOM, Chief Justice.

text:
    R. E. MIZE, Appellant, v. Elbert LAVENDER, Appellee.
    No. 4101.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 14, 1966.
    Rehearing Denied Nov. 4, 1966.

      John J. Watts, James D. Cunningham, Odessa, for appellant.
    John P. Camp, Abilene, for appellee.
   GRISSOM, Chief Justice.

R. E. Mize sued Elbert Lavender for damages suffered by his wife which was the alleged result of Lavender’s negligence and a proximate cause thereof. A summary judgment was rendered for Lavender and Mize has appealed.

Appellant’s only point of error is that the court erred in rendering a summary judgment for Lavender because there was a genuine issue of material fact as to whether Lavender was negligent in having a carpet on the floor of his restaurant that was “too thick” under the circumstances. We hold that the evidence raised no issue of fact as to the alleged negligence or that it was a proximate cause of Mrs. Mize’s injury. The mere fact that an invitee falls in a place of business does not render the owner liable. Here, there is no evidence that thickness of the rug either caused the fall, was negligence or a proximate cause of Mrs. Mize’s injury. When Lavender’s motion was granted the record consisted of plaintiff’s amended petition, defendant’s answer, defendant’s motion for a summary judgment with Barton’s affidavit attached, plaintiff’s reply thereto and the depositions of Mr. and Mrs. Mize and Mr. Barton. Appellant says the only question is whether the record shows there was a genuine issue of material fact raised by pleadings and evidence as to whether appellee was negligent in having a carpet on the floor that was too thick; that he alleged appellee was guilty of negligence in having a carpet on the floor that was too thick under the circumstances and since he so alleged, the question is whether appellee produced evidence, sufficient as a matter of law, to negative such allegation and, therefore, it is necessary only to see whether appellee discharged his alleged burden of proving that he was not negligent in having a carpet that was too thick.

The controlling question is whether the record shows there was no issue of fact as to appellee’s negligence in having a carpet that was “too thick under the circumstances.” Appellant says there is a conflict in the testimony as to whether the carpet was too thick. He says the affidavit of Barton was defective because it failed to comply with Rule 166-A, Section e. The affidavit shows it was based on Barton’s knowledge and that he can testify to the facts stated. Appellant says an issue of fact was raised as to whether the carpet was too thick by the testimony of Barton because he is one of the partners and the the manager of Lavender’s Cafeteria. He then points to the testimony of Mrs. Mize that the carpet was in good condition; that it looked heavier “than this”; that it was a thick carpet, if she remembered right; that it was heavier than some unknown material shown her. Thus, appellant contends, a material question of fact was raised as to whether the carpet that covered the restaurant floor was “too thick under the circumstances” and, presumably, that its use constituted negligence which was a proximate cause of her injury. Clearly, whether the carpet was thick or thin was not an ultimate issue. We find no evidence that use of a “thick” carpet constituted negligence or a proximate cause of Mrs. Mize’s injury.

Appellee presents counterpoints that the court correctly sustained appellee’s motion for a summary judgment because (1) the evidence shows the condition of the carpet •did not involve an unreasonable risk of harm, as a matter of law; (2) its condition was open and obvious and appellee owed Mrs. Mize no duty with respect thereto and i(3) the evidence conclusively shows the condition of the carpet was not approximate cause of her fall. Certainly, said counterpoints one and three are correct.

Mrs. Mize’s testimony was in substance that she was attending a banquet at Lavender’s Cafeteria. The members congregated in a dining room where they were seated and food served them. Mrs. Mize thought the carpet on the floor was a hard-weave, but she was not sure. She did not see any foreign matter on the floor. Mrs. Mize had eaten there twenty times before. She did not see any hole, tear or depression in the floor or carpet. The carpet seemed to her to be in good condition. After eating, Mrs. Mize arose. She testified that she was sitting at the table with her feet flat on the floor and that she tried to move her “chair” backward while she was sitting in it but it would not move. She kept on pushing with her feet flat on the floor and the chair “gave a little” and she stood up. After she stood up she felt sick in her stomach, had a pain in her hip and, as she turned and moved to her left, she fell; she was on her feet a second or two before she fell; she did not trip over anything; she was sitting in and had some of her weight on her chair when she tried to move it backward; she weighed 164 pounds; she realized that any chair in which a person is sitting will not slide as easily on a carpet as on a hard surface.

Mr. Mize inspected the premises a week later. He found no hole or defect and no evidence of repair of the carpet. The carpet seemed to be in good condition. It was soft, but he testified that chairs would slide across the carpet “all right.” He found no defect in the carpet.

The affidavit of Mr. Barton was as follows :

“The carpet upon which the chair m which Mrs. Mize had been sitting just before she fell was a hard weave, closely woven woolen carpet designed for use in cafeterias and other commercial establishments. * * * It was laid on a concrete floor with a thin pad under it. It had very little ‘give’ to it. A chair would slide easily across this carpet with a person sitting in the chair. Shortly after Mrs. R. E. Mize fell, I looked at the carpeting where Mrs. Mize had been sitting and it was just like all the other carpeting in the place. There were no holes, depressions, ragged spots or defects in the carpeting, and nothing to prevent a chair from sliding easily when a person sitting in the chair pushed it back.”

Appellee says, and we think correctly, that in a suit by an invitee against an occupier of premises the invitee must prove he was injured as a proximate result of encountering a condition on the premises involving an unreasonable risk of harm; that he was injured as a proximate result thereof and that the occupier owed him the duty to take reasonable precautions to warn him, or to protect him from such danger. Halepeska v. Callihan Interests, Inc., (Sup. Ct.), 371 S.W.2d 368, 378. To be entitled to the summary judgment the defendant has the burden of establishing that there were no issues of material fact determinative of liability. We think it is evident that appellant did not raise a question of fact as to whether Mrs. Mize was injured as a proximate result of encountering a condition on appellee’s premises involving an unreasonable risk of harm. Appellee says he negated the existence of such a condition by showing there were no holes, depressions, defects, or ragged spots in the carpet and nothing to prevent a chair from sliding across it and that appellant offered nothing to the contrary. Appellant’s contention that the carpet was thick and appellee’s contention that it wasn’t very thick did not raise a material issue of fact. Thickness alone furnishes no measure of defendant’s culpability. The important thing is that there was no evidence of a condition on appellee’s premises involving an unreasonable risk of harm. No conclusion that a condition existed on the ap-pellee’s premises involving an unreasonable risk of harm can be drawn from mere proof of her fall. Under the decisions in Halepska v. Callihan Interests, Inc., supra, and Houston National Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374, we hold there was no evidence that a dangerous condition existed that was a proximate cause of Mrs. Mize’s fall. No issues of fact concerning the essential elements of appellant’s alleged cause of action were raised by the evidence. See Medallion Stores, Inc. v. Eidt, Tex.Civ.App., 405 S.W.2d 417, 421 and 61 A.L.R.2d 122, Sec. 6. Appellant’s points are overruled.

The judgment is affirmed.


text:
    Wesley D. RISTER, Appellant, v. J. W. BUCK, Jr., Appellee.
    No. 4104.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 21, 1966.
    Rehearing Denied Nov. 11,1966.

      Scarborough, Black, Tarpley & Scarborough, Abilene, for appellant.
    Wagstaff, Alvis, Pope, Doscher & Charlton, Abilene, for appellee.
   GRISSOM, Chief Justice.

Wesley D. Rister sued J. W. Buck, Jr. and Donald Ray Atkinson for damages caused by injuries he received when he was knocked from his pickup by poles which, he alleged, projected an unlawful distance from a Chevrolet pickup parked at a cafe at night on a public highway and street in Anson, Jones County, Texas. J. W. Buck filed a plea of privilege to be sued in Lubbock County, where he resides. The case against Atkinson was severed and is not directly involved here. In a trial to the court, at the conclusion of the evidence the court rendered judgment sustaining the plea of privilege of Buck. Rister has appealed.

Appellant contends, in substance, that the court erred in sustaining Buck’s plea of privilege because he conclusively established, in accordance with the requirement of Section 9a, Article 1995, that Buck committed an act or omission of negligence in Jones County or that his employee, while acting within the scope of his employment, was guilty of such act or omission of negligence, which was a proximate cause of Rister’s injury.

There is no question but that Mr. Rister was sitting on a tire in the back end of his pickup, while it was being driven by his young daughter, and that he was knocked therefrom by something protruding from the parked Chevrolet pickup which belonged to Buck. Atkinson, an employee of Buck, is certainly shown, so far as his (Atkinson’s) liability is concerned, to have left the car parked at the cafe before the accident which happened about 8:00 o’clock on a Saturday night. There is evidence that the pickup, or its load, extended more than four feet into the highway and street and, for present purposes, we shall assume that the evidence established a violation by someone of Section 120, Article 6701d, prohibiting projection of a load four feet or more “beyond the bed or body of such vehicle” without the statutory red flag or warning.

In the absence of findings of fact, and none was here required or filed, we are required to presume that the court found every fact necessary to support the judgment. Under the established rules, appellant had the burden to allege and to prove, by a preponderance of the evidence, an act or omission of negligence committed in Jones County which proximately caused an accident for which Buck was responsible. It is evident that Buck’s responsibility was not conclusively established. It was not conclusively established that the act of Atkinson in parking Buck’s pickup, if he did, with the load thereon extending four or more feet beyond its bed or body without the warning sign thereon, as required by Article 6701d, Section 120, was done in the course of Atkinson’s employment for Buck. Stated differently, the liability of Buck was not conclusively established and the court was authorized to find that his liability for Atkinson’s act or omission had not been established and to sustain Buck’s plea of privilege. This holding is not in conflict with the decision in Broaddus v. Long, 135 Tex. 353, 138 S.W.2d 1057, 1059. It is in accord with our decision in Cox v. Hedges, Tex.Civ.App., 344 S.W.2d 919, 922.

The judgment is affirmed.


author: NORTHCUTT, Justice.

text:
    Earle T. RUNCIE, Appellant, v. Gail Gallaher RUNCIE, Appellee.
    No. 7642.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 10, 1966.
    Rehearing Denied Nov. 14, 1966.
    Simpson, Adkins, Fullingim & Hankins, Amarillo, A. B. Hankins, Amarillo, of counsel, for appellant.
    Lockhart & Wilds, Amarillo, Connally Lockhart, Amarillo, of counsel, for appellee.
   NORTHCUTT, Justice.

Gail Gallaher Runcie, hereinafter referred to as appellee, brought this suit against Earle T. Runcie, hereinafter referred to as appellant. For convenience we will use the appellee’s statement of the nature of the case.

Appellant and appellee were formerly husband and wife. They were divorced in the Court of Domestic Relations in Potter County, Texas, May 14, 1963. In connection with the divorce, they entered into a property settlement agreement.

The property settlement agreement entered into by appellant and appellee provided that “all other community property of the parties not expressly given to the husband” goes to the wife. Said property settlement agreement further provided that life insurance policies on the life of appellant were given to appellee, as Trustee, for the use and benefit of the children of appellant and appellee; and appellant assumed and promised to pay the outstanding indebtedness then existing against said life insurance policies in the approximate amount of $3,200. No provision was made in the property settlement agreement as to when the amount owed on the life insurance policies placed in trust should be paid by appellant.

On the date of the divorce, the parties owned a deed of trust note on some Borger real estate in the approximate sum of $3,400 which is referred to as the Davis Note. A similar amount was likewise owed by the parties to the American National Bank in Amarillo. The note to the American National Bank in Amarillo was assumed by appellant in the property settlement agreement. The Borger note was not mentioned in the property settlement agreement.

On July 31, 1963, the maker of the Borger note, G. M. Davis, forwarded a check payable to the order of the appellant and appellee in the amount of $1,935, in payment of one installment on the Davis note. This check was applied on the note these parties owed to the American National Bank, which note had been assumed by appellant. Both appellant and appellee endorsed the above referred to check.

On August 1, 1964, G. M. Davis sent a second check in the amount of $1,831, payable to the order of appellant and appellee in payment of the remaining balance of the Davis note, also, enclosing a release of the deed of trust lien. Both parties endorsed this check and it was delivered to the American National Bank where it was applied to the balance of the note owed by appellant to the American National Bank. Both parties signed and acknowledged the release of the deed of trust on the Davis property and it was sent to Davis.

This suit was instituted by appellee seeking a judgment for the monies paid by Davis on the vendor’s lien note which monies had been applied to appellant’s note at the American National Bank. Further, appellee sued in her capacity as Trustee for judgment against appellant for his failure to pay indebtedness on the life insurance policies which appellant had transferred to appellee, as Trustee, for the use and benefit of their children.

The trial was before the court and a judgment was entered in favor of appellee and against appellant in the amount of $3,776, being a judgment only on the Davis note above referred to. The court denied judgment to appellee, in her capacity as Trustee,' on the indebtedness of the insurance policies assumed by appellant, which policies were being held by appellee, as Trustee, for the use and benefit of the children of the parties.

From that judgment appellant perfected this appeal as to the judgment granting the appellee judgment for amount of the indebtedness due and paid on the Davis note. The appellant presents this appeal upon three assignments of error contending the trial court erred in entering judgment in favor of appellee for the monies represented by the Davis note because she had voluntarily endorsed and paid' the monies from the proceeds of that note to the indebtedness owed the American National Bank; irrespective of whether the property settlement agreement was ambiguous, the parties by their conduct construed the contract to mean that the Davis note was to be used to retire their indebtedness to the American National Bank, and the trial court erred in not so holding and that the trial court erred in concluding that the conduct of appellee in voluntarily endorsing the two drafts did not constitute a waiver of any right she had to the monies received in payment of the Davis note.

We deem it best to repeat a portion of the matters here above given. The property settlement gave the appellee certain personal property naming the articles “and all other community property of the parties not expressly herein given to the husband.” It is by virtue of this quotation appellee sought the judgment herein. The Davis note was never mentioned in the contract of settlement. It is also true that appellant agreed in the settlement agreement to pay the note held by the American National Bank. The principal of the indebtedness due the American National Bank and the amount of the Davis note were practically the same.

The Davis vendor’s lien note executed in June 1961 was in the principal sum of $5,-799, payable in three annual installments and the first installment had been paid prior to May 14, 1963, the date appellee secured a divorce from appellant. On the date the divorce was granted there were still unpaid on the Davis note two installments, one for $1,935 due August 1, 1963, and one for $1,831 due August 1, 1964, making the total of $3,766 still unpaid when the divorce was granted. It was the total of those two installments that judgment was granted in favor of appellee.

On July 31, 1963, Davis paid the $1,935 by his check made payable to appellant and appellee. The check was endorsed by appellant and appellee and ⅛ was paid and the proceeds paid to the American National Bank upon its note. On August 1, 1964, Davis issued his check payable to appellant and appellee in payment of the last installment due on the note in the sum of $1,831 and they both endorsed the check and it was paid and both executed a proper release of the vendor’s and deed of trust lien securing the payment of the Davis note. The proceeds from the last mentioned check were delivered to the American National Bank in final payment of the Runde note.

Appellee did not plead or prove that she endorsed the checks and permitted the money to be applied to the payment of the bank note because of any fraud, deception, duress, coercion or compulsion on the part of appellant and the burden to do so was on her. The evidence shows that appellee was familiar with all of the facts.

It has been well established in this state that money voluntarily paid with full knowledge of all the facts and without fraud, deception, duress or coercion cannot be received back although it was paid upon a void or illegal demand or upon a claim which had no foundation in fact and was paid without consideration. Pennell v. United Ins. Co., 150 Tex. 541, 243 S.W.2d 572; Burnett v. Masonic Grand Chap, of Order of East. Star, Tex.Civ.App., 369 S.W.2d 513; American Casualty And Life Insurance Co. v. Boyd, Tex.Civ.App., 394 S.W.2d 685 and the many cases cited in each of these cases.

We are of the opinion, and so hold, that the trial court erred in rendering judgment in favor of appellee for the $3,766 represented by the Davis note since she voluntarily endorsed and permitted to be paid the monies from the proceeds of that note to the indebtedness owed the American National Bank. That part of the judgment granting appellee to recover the sum of $3,766 is hereby reversed and judgment rendered that appellee recover nothing thereby.

Appellee filed her cross-point of error contending the trial court erred in holding that a reasonable, time had not elapsed', for appellant to pay the indebtedness which was assumed against the life insurance policies in the property settlement agreement. Under the agreement certain insurance policies issued on the life of appellant were' given to appellee in trust for their children. Certain loans had been secured upon those-policies and appellant agreed to pay the insurance company the loan existing against the policies. No time was provided as to when such loans were to be paid. Appellant acknowledges he is to pay said loans and will pay them and has paid interest to the insurance company. Nothing is shown herein where appellee has been damaged by appellant’s failure at this time to have paid said loan. We overrule appellee’s cross-assignment of error.

Judgment of the trial court is reversed and rendered in part and affirmed in part.


text:
    REPUBLIC INSURANCE COMPANY et al., Appellants, v. Ira T. SHOTWELL, Jr., et al., Appellees.
    No. 7648.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 17, 1966.
    Rehearing Denied Nov. 14, 1966.

      Evans, Pharr, Trout & Jones, Lubbock, Charles B. Jones, Lubbock, of counsel, for appellants.
    Willard G. Street, Jr., Littlefield, for ap-pellees.
   NORTHCUTT, Justice.

Ira T. Shotwell, Jr., and R. E. Maurer, d/b/a Medical Arts Clinic Hospital, as plaintiffs, brought this suit against Mrs. Callie Compton and husband, A. B. Compton, and Republic Insurance Company and Vanguard Insurance Company, as defendants, alleging that Mrs. Callie Compton was injured in a collision with an automobile owned by Roy Bussey and operated by his wife. Plaintiffs allege further that as a result of injury from the accident, Mrs. Compton was brought to Medical Arts Clinic Hospital in Littlefield, Texas, and that she incurred a hospital bill as a result of treatment for the injuries. The plaintiffs allege further that the hospital properly filed a hospital lien under the provisions of Article 5506a, Vernon’s Ann.Civ.St.

The defendant insurance companies had issued a policy of insurance providing liability coverage for the Bussey automobile to the extent of $5,000 for injury to one person. The insurance companies settled the claim against the Busseys by payment of $4,000 to Mr. and Mrs. Compton. The hospital lien was filed in the county where the accident occurred before the $4,000 was paid to the Comptons. After the settlement the plaintiffs brought this suit to recover the amount of the hospital bill.

The case was tried to a jury upon special issues. In answer to the special issues the jury found that $14 was a reasonable daily charge for the hospital room without bath; that Mrs. Compton was necessarily confined to her room without bath for twenty-five days; that $16 was a reasonable daily charge for the hospital room with bath; that Mrs. Compton was necessarily confined in a room with bath for eighty-five days; that $608 would fairly and reasonably compensate the hospital for its doctors' services; that $420.50 would fairly and reasonably compensate the hospital for its laboratory tests and X-rays necessarily made upon or for Mrs. Compton; that $519.95 would fairly and reasonably compensate the hospital for its drugs and medicines necessarily dispensed to Mrs. Compton; and that $133 would fairly and reasonably compensate the hospital for the cast room and cast diathermy treatments necessarily furnished to Mrs. Compton. Article 5506a limits the hospital recovery to $15 per day for room charges for no longer than one hundred days.

Judgment was entered reciting the holdings of the jury and then recited concerning the pleadings, the evidence, the jury’s verdict in answering the special issues and the argument of counsel. The court was of the opinion further that the plaintiffs should recover of the defendants, Mrs. A. B. (Callie) Compton, individually and as community survivor of A. B. Compton, deceased, and of the defendants, Republic Insurance Company and Vanguard Insurance Company, jointly and severally, the sum of $1,922.45 and that the plaintiffs should further recover against the defendant, Mrs. A. B. (Callie) Compton, individually and as community survivor of A. B. Compton, deceased, the sum of $1,593 and in addition that the plaintiffs recover of Mrs. Compton, individually and as community survivor of A. B. Compton, deceased, their reasonable attorney’s fees in the sum of $750. Judgment was entered in favor of the plaintiffs in the exact manner as set out in the above findings by the court. From that judgment Republic Insurance Company and Vanguard Insurance Company perfected this appeal and will hereafter be referred to as appellants and plaintiffs will hereafter be referred to as appellees. Before considering the points of error here involved let it be shown that neither the appellants or appellees have cited us any authorities determining the matters here involved and neither have we found any.

Appellants present this appeal upon three points of error. By the first point of error it is contended the trial court erred in overruling appellants’ motion for instructed verdict and its motion for judgment for the reason that nowhere was there any testimony to show that Mrs. Compton had any claim against the insurance companies for the alleged negligence of said companies. This is not an action against appellants to recover because of their negligence. There is no question herein about appellants not being the ones carrying the Bussey insurance. Neither is there any question herein about Mrs. Compton being injured by the negligence of Mrs. Bussey. Appellants must have conceded the fact that Mrs. Bussey caused Mrs. Compton’s injuries or they would not have paid Mrs. Compton the $4,000. Appellees do not seek any judgment against appellants because of their negligence but seek to recover from them because after filing the lien the appellants paid the money to Mrs. Compton without the hospital bills being paid in accordance with Article 5506a, V.A.T.S. We overrule appellants’ first assignment of error.

By appellants’ second point of error it is contended the court erred in overruling appellants’ motion for instructed verdict or for judgment in its behalf for the reason that nowhere was there any evidence to show negligence, proximate cause or liability on the part of either Roy Bussey or his wife. We do not believe under the facts of this case that the question of the negligence, proximate cause or liability on the part of either Roy Bussey or his wife are involved in this case. Naturally, Mr. and Mrs. Bussey would not be liable to Mr. and Mrs. Compton for Mrs. Compton’s injuries if such injuries were not caused by the neg-_ ligence of the acts of Mrs. Bussey and such acts were the proximate cause of the injuries. However, in this case it is undisputed that the appellants paid to Mr. and Mrs. Compton $4,000 in settlement of their claim against Mr. and Mrs. Bussey. The question of liability of Mr. and Mrs. Bus-sey must have been determined by the appellants or they would not have paid the Comptons. Under Article 5506a appellees were entitled to a lien upon any and all rights or actions, suits, claims or demands of the Comptons since they had filed their lien as required under said Article and such lien extended to the proceeds of the settlement made between appellants and the Comptons. Mr. and Mrs. Compton had no claim for any damages as against Mr. and Mrs. Bussey after they had signed the release and accepted the $4,000. The appellants must have been responsible to the Comptons because of the acts of Bussey or they would not have paid for such actions. They should not have paid the Comptons until the hospital bill was paid as the hospital bill would be an item in connection with any recovery the Comptons might have against Bussey. We overrule appellant’s second point of error.

By appellants’ third point of error it is contended the answers of the jury to Special Issues 2-b, 3, 4 and 5 are without support in the evidence or in the alternative are against the overwhelming weight of the evidence for the reason that the jury’s answers as to the amounts of the hospital charges under the undisputed testimony includes charges for treatment of disease or conditions not connected with her injuries.

In answer to 2-b the jury found that Mrs. Compton was necessarily confined in a room with bath for eighty-five days as a proximate result of the injuries in question. As to the answer of the jury to Issues 3, 4 and 5 these were in the amounts above set out except the item of $133. The judgment rendered herein was not in compliance with the findings of the jury. Although the appellees sought to recover judgment herein for the sum of $2,745.45, judgment was granted in favor of appellees in the sum of $1,922.45 as against Mrs. Compton and appellants, jointly and severally, and the further sum of $1,593 as against Mrs. Compton individually making the total judgment against Mrs. Compton being $3,515.45. Mrs. Compton did not appeal from that judgment and we will not consider that further.

We think it is so plainly expressed in Article 5506a that appellees’ lien would only apply to services rendered on account of personal injuries received in the accident that no citation of authorities are necessary. It is undisputed in this record that the appellees had been treating Mrs. Compton for kidney trouble and also skin trouble prior to this accident and during the time here involved continued to treat her for those conditions. It is undisputed that she could have left the hospital before she did but she wanted to stay longer. Dr. Shotwell, one of the appel-lees, testified he could not break down the different charges made by the hospital but they had it in the office. The breakdown was never given in evidence. We are unable from this record to determine how the judgment rendered herein was ever determined. Since the hospital was treating Mrs. Compton for other troubles not connected with the accident at the same time she was being treated for the injuries received in the accident, and never separated such charges, we will sustain appellants’ third point of error.

Judgment of the trial court is reversed and remanded.


author: MURRAY, Chief Justice.

text:
    H. T. HORN, Appellant, v. E. J. MAPLES et al., Appellees.
    No. 14521.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 5, 1966.
    Rehearing Denied Nov. 2, 1966.

      Walker F. Means, Barstow, Murray J. Howze, Monahans, for appellant.
    Norman C. Davis, Marfa, Johnson & Dionne, Fort Stockton, for appellees.
   MURRAY, Chief Justice.

This suit was instituted by John L. Shaw, Walker Bryan, Ralph J. Harris, James M. Robertson and Norman C. Davis, seeking to recover the amount of principal, interest and attorney’s fees due on two promissory notes, and to foreclose a vendor’s lien upon certain real and personal property. The two promissory notes were executed by H. T. Horn, Raymond Burbach and Marion Horn Burbach. Certain junior lienholders were also made defendants.

Later, E. J. Maples intervened, alleged that he had purchased the interest of all the original plaintiffs in this lawsuit on August 11, 1965, and asked that he be made the party plaintiff.

The trial was to a jury and, after hearing of evidence, resulted in an instructed! verdict in favor of appellees and the rendition of a judgment in favor of E. J.. Maples and Norman C. Davis against H. T. Horn, Raymond Burbach and Marioru Horn Burbach, for certain sums of money and for foreclosure of the vendor’s liem securing the two promissory notes sued on. H. T. Horn alone has prosecuted this-appeal by filing a transcript but no statement of facts.

Appellant sets out two points of" error in his brief, contending that they present fundamental error. His two-points read as follows:

“1. Florence Burbach, the widow of original defendant, Raymond Burbach,. and an owner in her own right of part of the property upon which alleged! vendor’s liens were attempted to be foreclosed by the judgment, was both a necessary and an indispensable party to-the foreclosure suit, but was not made a party to such suit and the trial Court-committed fundamental error in proceeding to enter judgment without her being brought in as a party to the action.
“2. The judgment foreclosing the alleged vendor’s lien upon the personal property was so uncertain and indefinite as to be incapable of being carried into-execution by ministerial officers without, ascertainment of facts not stated therein; and would require fact findings of a court or jury to determine the relief it-grants and is void, and the entry of such an uncertain and indefinite judgment by-the trial Court was fundamental error.”'

As to the contention made in point “1”' that Raymond Burbach died before the trial and that his wife, Florence Burbach, was a necessary and indispensable party to-the foreclosure suit, there is absolutely nothing in this record to show that Raymond Burbach is dead and Florence Bur-bach is his widow. There was no suggestion of death filed and, so far as this record shows, there is nothing to substantiate •appellant’s contention that Raymond Bur-bach is now dead, other than the statement to that effect contained in his brief. The judgment recites that Raymond Bur-bach appeared by his attorney and announced ready for trial, and, in the absence of something in the record to the ■contrary, we are bound by the recitals in the judgment. H. T. Horn stated in his verified pleading that he had purchased the interest of Raymond Burbach and Marion Horn Burbach in the property bere involved, so why should he now be permitted to complain because the alleged wife of Raymond Burbach was not made a party to this suit ? He does not show that be has been injured by a failure to make her a party to the suit.

The personal property involved in the judgment was described as follows:

“Together with all of the buildings, machinery, equipment, tools and all other personal property, including fixtures, constituting and comprising all of the ice-making facilities and plant situated in the Town of Presidio, Pre-sidio County, Texas; heretofore occupied and used in the operation of the manufacture and making of ice by the West Texas Utilities Company, and by the West Texas Ice Company in the Town of Presidio, Presidio County, Texas.”

The personal property located at Marfa was similarly described. The real estate located at Presidio and Marfa was fully ■described in the judgment by metes and bounds.

The descriptions of the personal property were not so vague and indefinite as to render this judgment void.

Appellant attempts to set out in his brief his version of the evidence given on the trial as to the description of the property, but of course we cannot consider this in the absence of a statement of facts.

The basis of the claim to this property by H. T. Horn is the warranty deed executed by the original plaintiffs to Raymond Burbach, Marion Horn Burbach and himself, in which the vendor’s lien was retained. The description in the judgment is the same as was contained in the deed. It is plain that the intention was to foreclose on the same property conveyed by the original deed. In the absence of a statement of facts we are unable to determine whether there had been changes in the original property, and what those changes were, if any.

There is nothing in the record to indicate that the officer executing the order of sale experienced any difficulty in locating the personal property.

The judgment is affirmed.


author: DENTON, Chief Justice.

text:
    Wayne Gilbert WELCH, Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
    No. 7647.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 17, 1966.

      Harris E. Lofthus, Amarillo, for appellant.
    George E. Dowlen, Canyon, for appel-lee.
   DENTON, Chief Justice.

This is a driver’s license suspension case in which the trial court sustained a motion for summary judgment of the Department of Public Safety, suspending the license of appellant, Wayne Gilbert Welch. Appellant has timely perfected this appeal. No brief has been filed by the Department.

The sole question is whether or not the Department of Public Safety was authorized to suspend appellant’s driver’s license as an habitual violator of the traffic laws upon the basis of appellant having been convicted of four or more moving violations within a period of twelve months under the provisions of Article 6687b, Section 22(b), Vernon’s Ann.Civ.St. No question is raised relative to the procedural steps taken by the Department in suspending appellant’s license. The four notices of conviction, which form the basis of the suspension, show four moving traffic violations within a period from June 17, 1963 to November 6, 1963. One notice shows a plea of guilty by appellant in the Justice Court of Amarillo, Texas and the other three relate to proceedings had in the Corporation Court of Amarillo. The latter three notices show on their face the following notation: “Defendant did not appear in open court. Fine paid at window in clerk’s office.” These notices of conviction carry the identical notation and came from the same Corporation Court as those in Crowe v. Texas Department of Public Safety and Wallis v. Texas Department of Public Safety, (Supreme Court) 406 S.W.2d 201, motion for rehearing overruled October 5, 1966. The only distinction in those cases and the case at bar is that in the former, the record contained an affidavit by the Judge of the Corporation Court which stated in substance that the alleged offenses were disposed of by the clerk of the court and no disposition of the tickets were made by the judge. This same information appears on the notices of conviction themselves upon which the Department relies for the suspension here. It is to be further noticed the space which is to be used to indicate how a defendant has pleaded is left blank. This omission on all three notices of conviction, coupled with the notation quoted brings this case squarely under the rule of the Crowe and Wallis cases. Here, as in Crowe and Wallis, all that happened was that Welch paid fines to the clerk. Thus, the question of impeachment of the judgments of conviction is not raised. Under this record there can be no presumption that the notices reflect judgments of the court. It affirmatively appears there were no judgments of conviction to support the allegation appellant was an habitual violator of the traffic laws under Section 22(b) of Article 6687b. It necessarily follows that the suspension order of the Department of Public Safety is unenforceable.

The judgment of the trial court is reversed and judgment is here rendered for appellant that the Department’s action in suspending appellant’s driver’s license is set aside.

Reversed and Rendered.


author: FANNING, Justice.

text:
    Robert L. STEVENS, Appellant, v. Billy F. SPENCE, Appellee.
    No. 7776.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 25, 1966.
    Conway F. Jordan, Jr., League City, for appellant.
    Simpson, Hancock & Green, Harry C. Green, Texas City, for appellee.
   FANNING, Justice.

Plaintiff sued defendant. Trial was to the court without the aid of a jury. Plaintiff-appellant has appealed from the judgment rendered by the trial court.

No findings of fact or conclusions of law were filed by the trial court. Appellant has brought forward no statement of facts. The transcript filed in the case shows no fundamental error.

Appellant’s points are of such character that error is not shown in the absence of a statement of facts. Lane v. Fair Stores, 150 Tex. 566, 243 S.W.2d 683; Ehrhardt v. Ehrhardt, Jr., Executor of Estate of Ehrhardt, deceased, et al., Tex.Civ.App., 368 S.W.2d 37, writ refused.

The judgment of the trial court is affirmed.


author: BARROW, Justice.

text:
    TEXAS EMPLOYMENT COMMISSION, Appellant, v. CHECKER CAB COMPANY OF EL PASO, Appellee.
    No. 14516.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 12, 1966.
    Rehearing Denied Nov. 9, 1966.

      Waggoner Carr, Sam Lane, Austin, for appellant.
    Lipscomb, Fisk, Cox & Ehrlich, El Paso, for appellee.
   BARROW, Justice.

Appellee, Checker Cab Company of El Paso, a corporation, brought this suit in the 41st District Court of El Paso County against appellant, Texas Employment Commission, and Roberto H. Urteaga, seeking judicial review under Art. 5221b-4, Vernon’s Ann.Civ.St., of a decision of the Commission finding Urteaga eligible for unemployment insurance benefits and charging appellee’s account with the Commission with a charge-back of benefit wages in the amount of $512.80.

Appellant urges that the trial court erred in refusing to dismiss this suit for want of jurisdiction. The Unemployment Compensation Act provides for judicial review in a court of competent jurisdiction. Jurisdiction is therefore determined by the amount in controversy. Texas Unemployment Compensation Comm. v. Tyus, Tex.Civ.App., 202 S.W.2d 687. Appellee’s petition alleged that its account with the Commission “became subject to charge back in the sum of $512.80.” There is no allegation of the monetary value of such a “charge-back.” It is necessary to ascertain the nature of a “charge-back of benefit wages” under this Act to determine the amount in controversy.

Art. 5221b — 5, supra, requires the employer to make contributions under the Texas Unemployment Compensation Act. Subd. (c) (2) (A) of this section provides for charging the employer’s account with the amount of wages earned during. the base period by an individual who is paid unemployment benefits. This sum is called “benefit wages.” The result of the charge is, under a complicated formula provided by the Act, a possible increase in the rate of payroll taxes of the employer over the rate which he would otherwise have enjoyed.

Morton C. Stewart, an accounts examiner for appellant, described a charge-back as follows: “The charge-back is the amount of wages earned by an individual in the first four of the last six quarters, and to arrive at the tax rate the total of charge-backs against the employer for a period of three years is divided by the total taxable wages for a three-year period, from which is derived a percentage figure. That percentage figure is then taken to a table which has been prepared and from that table and the percentage figure, the tax rate for that individual is determined.”

Urteaga was employed as a part-time worker for appellee during two quarters of 1964 and earned a total of $512.80. This amount of “benefit wages” is charged to the account of appellee under the decision of the Commission under review. The total payroll of appellee was approximately $80,000.00 at the time of the decision and its tax rate was .001'% (one-tenth of one percent). The only other charge-back to its account was $46.50. Under the uncon-tradicted evidence, the charge-back in question would not increase appellee’s tax in any amount. A charge-back of at least $4,000 would be necessary before appellee’s taxes would be increased over a three-year period by the sum of $500.00.

Appellee’s petition, complaining of a “charge back in the sum of $512.80,” does not allege an amount in controversy in excess of $500.00 so as to invoke the jurisdiction of the district court. In Texas Employment Commission v. International Union of E. R. & M. Workers, 163 Tex. 135, 352 S.W.2d 252 (1961), the Supreme Court considered the right of judicial review given by this Act. It was said in speaking of the effect of the venue provisions of same: “These provisions are exclusive and come under the accepted rule that statutory proceedings are strictly governed by the statute of their creation. Those availing themselves of the statutory remedy are not free to select a forum not authorized by the statute creating the remedy.” Here appellee was required to seek review in a court of competent jurisdiction.

The district court was without jurisdiction of appellee’s suit under the provisions of Art. 5, § 19, of the Constitution, Vernon’s Ann.St. The trial court erred in refusing to dismiss this suit for want of jurisdiction.

The judgment of the trial court is reversed and the cause is dismissed for want of jurisdiction.

      . Art. 5221b — 4(i) provides in part: “Within ten (10) days after the decision of the Commission has become final, and not before, any party aggrieved thereby may secure judicial review thereof by commencing an action in any court of competent jurisdiction in the county of claimant’s residence against the Commission for the review of its decision, * * (Emphasis ours.)


text:
    Dorothy GADDIS et vir, Appellants, v. William C. SMITH et al., Appellees.
    No. 7646.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 10, 1966.
    Rehearing Denied Nov. 14,1966.

      Huff & Bowers, Lubbock, Robert W. Gauss, Lubbock, of counsel, for appellants.
    Crenshaw, Dupree & Milam, Evans, Pharr, Trout & Jones, Lubbock, Max C. Addison and David Hughes, Lubbock, of counsel, for appellees.
   DENTON, Chief Justice.

This is a malpractice case. Suit was brought by Dorothy Gaddis and her husband against Dr. William C. Smith and Dr. Stuart Nemir, Jr. for damages for personal injuries suffered by the plaintiff as a result of a surgical operation performed by the defendants. Plaintiffs alleged the defendants performed a Caesarean Section upon Mrs. Gaddis on January 7, 1959 and that during such operation the defendants negligently left a surgical sponge inside her body. This suit was filed February 21, 1964. Both defendants invoked the two-year statute of limitations by their answers and by motions for summary judgment. The trial court granted the motions for summary judgment.

The plaintiffs’ pleadings alleged the defendants performed an operation upon Mrs. Gaddis on January 7, 1959. She experienced an apparent uneventful recovery and had no complaints until she was examined by another doctor in 1963 when she complained of backaches. Shortly thereafter, on October 10, 1963, the doctor discovered and removed a surgical sponge when he performed another operation.

The issues here, namely, that the pleadings, motions and depositions raised a material issue of fact; and the application of the two-year statute of limitations deprived plaintiffs of a property right without due process of law, have been settled by the Supreme Court. Stewart v. Janes, Tex.Civ.App., 393 S.W.2d 428 (Writ.Ref.) is squarely in point here and involved substantially the identical fact situation and questions of law. The court held the trial court properly granted a summary judgment. A Writ of Certiorari was denied in that case by the United States Supreme Court on March 28, 1966. The Stewart case followed Carrell v. Denton (Tex.Comm.App.), 138 Tex. 145, 157 S.W.2d 878 (Opinion adopted), which held that where suit is based on negligence in failing to remove a gauze sponge from the body of the plaintiff the cause of action accrued at that time, notwithstanding the plaintiff’s ignorance of such fact until some four years later. There were no allegations in the petition sufficient to toll limitations. Wright v. Bida (Tex.Civ.App.) 359 S.W.2d 661.

The judgment of the trial court is affirmed.


text:
    Corynne M. PARKS et vir., Appellants, v. Everett JONES et ux., Appellees.
    No. 4525.
    Court of Civil Appeals of Texas. Waco.
    Oct. 20, 1966.
    Rehearing Denied Nov. 10, 1966.

      Carl E. Mason, Waco, for appellants.
    William B. Martin, Hillsboro, for ap-pellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by the Parks from a judgment against them for $2000 damages for dispossessing the Jones from a farm.

Plaintiffs Parks sued defendants Jones in trespass to try title for title and possession of 206 acres of land, and by sequestration dispossessed the Jones from possession. The Jones, by cross-action, alleged an oral lease to the property for the year 1963, and sought recovery of $2406.90 damages for loss of the use of the premises for 1963. Trial was to a jury which, in answer to issues submitted, found:

1) Lena Caldwell leased the premises to the Jones for the year 1963.
2) Corynne Parks or Claud Parks had actual knowledge of such lease agreement before November 8, 1962.
3) The Jones were damaged $2000 as a result of loss of use of the property for the year 1963.

The trial court entered judgment decreeing title and possession of the property to the Parks; and further entered judgment for the Jones on their cross-action for $2000. against the Parks and the sureties on their sequestration bond.

The Parks appeal, contending:

1) The trial court erred in not permitting the Parks to open and close jury argument.
2) There is insufficient evidence to support the finding that the Jones had leased the premises for 1963.
3) There is no evidence, or insufficient evidence, that the Jones had been damaged $2000 for the year 1963 by having to move from the premises.
4) The Jones failed to prove that they attempted to mitigate any damages they suffered by having to move from the premises.

We revert to appellants’ contention 1, that the trial court erred in not permitting the Parks to open and close jury argument. Parks filed the instant case as a trespass to try title suit; and Jones cross-acted alleging an oral lease on the property for the year 1963. The three issues submitted to the jury were issues on Jones’ cross-action, and upon which Jones had the burden of proof. Rule 269 Texas Rules of Civil Procedure provides that the party having the burden of proof on the whole case, "or on all matters which are submitted by the charge,” shall be entitled to open and close. City of Teague v. Stiles, Tex. Civ.App., n. r. e., 263 S.W.2d 623, 625. The trial court correctly permitted Jones’ counsel to open and close jury argument.

Appellants’ 2nd contention is that there is insufficient evidence to support the finding that the Jones had the premises leased for 1963. Mrs. Caldwell owned the 206-acre farm which for five years she had been renting orally on a year to year basis to Jones and wife. The Jones rented the property in 1962. On October 8, 1962 Mrs. Caldwell sold the property to Mrs. Parks. Mr. Jones testified that Mrs. Caldwell leased the premises to him for 1963 orally on or about July 10, 1962. Mrs. Caldwell testified the lease was subject to the possibility of sale. Mr. Jones was in possession in 1962 and in 1963 until dispossessed by sequestration in January, 1963. Mr. Jones had cattle on the place, hay stored in the barn, and had plowed the land. We think the jury authorized to find that Mrs. Caldwell had leased to the Jones for 1963, and that such finding is supported by sufficient evidence.

Appellants’ third contention is there is no evidence, or insufficient evidence, that the Jones were damaged $2000 by having to move from the premises. Jones testified that he made a net profit of $396. from crops on the place, and $1750. on the cattle on the place in 1962. The evidence reflected that 1963 was a better year for farming in the vicinity than 1962. Jones was out moving expenses as a result of being wrongfully dispossessed. We think the evidence ample to support the finding.

Appellants’ fourth contention is that the Jones failed to prove that they attempted to mitigate any damages they may have suffered by having to move. The burden; was on appellants to plead and prove that the Jones failed to mitigate their damages-No error is shown. Polis v. Alford, Tex.Civ.App., Er. Ref., 273 S.W.2d 79; 17 Tex.Jur.2d, p. 114.

Appellants’ points and contentions are overruled.

Affirmed.