author: PHILLIPS, Justice.

text:
    UPSHUR-RURAL ELECTRIC COOPERATIVE CORPORATION, Appellant, v. STATE of Texas ex rel. SOUTHWESTERN ELECTRIC POWER COMPANY, Appellees.
    No. 11252.
    Court of Civil Appeals of Texas. Austin.
    July 29, 1964.
    Rehearing Denied Aug. 19, 1964.

      Powell, Rauhut, McGinnis, Reavley & Lochridge, Herring & Werkenthin, Austin, Hollie G. McClain, Gilmer, R. Dean Moor-head, Austin, for appellant.
    Clark, Thomas, Harris, Denius & Winters, Austin, Arnold & Arnold, Texarkana, Ark., Baker, Botts, Shepherd & Coates, William R. Brown, Charles G. Thrash, Jr., Houston, for appellees.
   PHILLIPS, Justice.

This is a proceeding in quo warranto wherein the State of Texas, on relation of Southwestern Electric Power Company, seeks to prevent Upshur-Rural Electric Cooperative Corporation from: (1) Constructing and operating its own plant for generating the electricity which it furnishes to its members. Upshur presently purchases all of its electricity from the Relator Southwestern Electric Power Company under a contract which will expire on January 11, 1965; and (2) from entering into a proposed agreement with the Southwestern Power Administration (SPA) whereby Upshur’s generating plant would interconnect with SPA’s system thereby enabling Upshur among other things, to sell or dispose of its electric energy to SPA.

The Trial Court held against Upshur on all grounds and granted an injunction which prevents Upshur from constructing' the proposed generating plant and from entering into the proposed agreement with SPA. Upshur has duly perfected its appeal to this Court complaining of the Trial Court’s ruling.

We reverse and render that portion of the Trial Court’s judgment which prohibits Upshur from constructing and operating its own generating plant; however, we affirm that portion of the judgment that prohibits Upshur from selling or disposing of electricity to non-members.

Upshur-Rural Electric Cooperative Corporation was incorporated in 1937 under the Texas Electric Cooperative Corporation Act, Article 1528b, Vernon’s Ann.Civ.St. As of November 30, 1963, it had 2,630 miles of distribution lines and 52 miles of transmission lines, with approximately 11,514 members in 10 counties of Northeast Texas.

Since its incorporation, Upshur has obtained its supply of electric energy from Relator Southwestern Electric Power Company, with the exception of a portion of its requirements during the years 1952-1962 which was purchased from the Southwestern Power Administration but was delivered over Relator’s lines. In 1963 Up-shur paid Relator $328,937.44 for electric energy that it purchased. Upshur’s present purchase contract with Relator will expire on January 11, 1965.

Upshur proposes to build a steam driven turbine generator plant at Ore City on Lake O’the Pines in Upshur County. The plant would have one unit, a turbine and generator of preferred standard design with 33,000 kilowatt nameplate capacity, but with a net capacity output of 38,000 kilowatts.

The proposed generating plant would also serve the Texas requirements (approximately 50%) of the Panola-Harrison Electric Cooperative, Inc., which was incorporated under the same statute and serves 6,-104 members in Harrison and Panola Counties of East Texas as well as in the Louisiana Parishes of Caddo and DeSoto. Pano-la-Harrison also purchases all of its electric energy from Relator, and in 1963 its purchases from Relator amounted to $190,-490.73.

In connection with the operation of the proposed generating plant, Upshur has been negotiating for a contract to interconnect the plant with the system of the Southwestern Power Administration. Up-shur states in its brief: “No final contract between Upshur and SPA has been entered into, but, unless precluded by the final judgment in this case, Upshur believes that a contract can be made which will be substantially the same as a proposed draft dated November 14, 1963, which is in evidence herein as Plaintiff’s Exhibit 7.”

Upshur has questioned the authority of this Court to ascertain the validity of a contract that is not yet in existence and whose provisions are not definitely known by either quo warranto or declaratory judgment. We overrule this point as the evidence discloses that the building of the generating plant presently contemplated is dependent to some extent on a contract between Upshur and SPA wherein a provision for the sale or disposal of energy to SPA must be contemplated. Consequently, quo warranto is the proper remedy to question Upshur’s power to enter into this provision of the contract. State ex rel. Averitt v. Wofford, 90 Tex. 514, 39 S.W. 921; Town of De Kalb v. State, Tex.Civ.App., 71 S.W.2d 299.

The SPA is a marketing agency of the Federal Government which, since 1943, has operated in six states of the Southwest. It markets hydroelectric power to 10 Federal projects and has inter-connection arrangements with some 25 towns and many private power companies.

Upshur states that whatever contract it might eventually conclude with SPA is expected to provide as follows:

SPA will provide standby protection for Upshur out of its power pool in the event that the Ore City Unit breaks down or is closed down for repair or maintenance. For this standby protection, Upshur will pledge 3,800 kilowatts of the capacity of the Ore City plant to the SPA power pool, to be available at all times when the plant is operating.

Upshur will be entitled to shut its plant down and take all of its energy from SPA when the small load demand makes operation of the plant costly.

During the first years of the contract, before the demands of Upshur and Panola-Harrison absorb all of the capability of the plant, the excess capacity will be purchased by SPA. The needs of Upshur and Panola-Harrison will come first, and SPA may acquire only any excess that remains after such needs are satisfied. Upshur maintains that, over the life of the contract, it will obtain far more capacity from SPA than SPA will receive from it.

Upshur’s first two points of error briefed together are: (1) That the Trial Court erred in holding that the Upshur-Rural Electric Cooperative is not authorized to construct the proposed generating plant, and in enjoining Upshur from constructing such plant; (2) In committing this error, the Trial Court erred in concluding that the members of Upshur-Rural Electric Cooperative Corporation are presently receiving “central station service” from Relator Southwestern Electric Power Company within the meaning of Article 1528b, V.A.C.S.

As stated above, we agree with Upshur in both of these arguments.

Section 4(4) of the Texas Electric Corporation Act (Article 1528b) that corporations organized thereunder “shall have the power:”

“To generate, manufacture, purchase, acquire, and accumulate electric energy and to transmit, distribute, sell, furnish, and dispose of such electric energy to its members only, and to construct, erect, purchase, lease as lessee and in any manner acquire, own, hold, maintain, operate, sell, dispose of, lease as lessor, exchange, and mortgage plants, buildings, works, machinery, supplies, equipment, apparatus, and transmission and distribution lines or systems necessary, convenient, or useful.”

The language quoted above plainly authorizes and empowers Upshur to construct and operate the generation and transmission facilities which are here under attack.

In seeking to circumvent the specific language in the statute just quoted, Relator relies entirely upon which is commonly called the “central station service” restriction or limitation.

Such restriction appears at two places in the Act. One, in Section 3, dealing with corporate authorization, and in Section 12, dealing with eligibility for membership in a cooperative corporation organized under the Act. In Section 3 the restriction is that a cooperative is authorized to serve certain persons who are not “receiving central station service” at the point of delivery, while Section 12 provides that all persons in certain areas are eligible for membership in a cooperative “who are not receiving central station service” at the point of delivery of electricity to them. In this regard, Section 3(5) provides:

“The words ‘central station service’ as used in this Act refer to electric service provided by a municipally owned system or by a public utility corporation, as described in Article 1435, Vernon’s Revised Statutes of Texas.”

This restriction plainly means that, if a person is already receiving service at a particular point from either a municipal plant or a private utility, neither Upshur nor any other co-operative would be authorized to serve him. Such a person would not be eligible to be a member of a cooperative, and a cooperative could not lure him away from the service he was receiving.

On the other hand, if a certain person was in a rural area and was receiving no electric service of any kind, or if he was receiving service only from a source such as a Delco plant, he would be fully eligible for membership and could be served by Up-shur or by any other cooperative.

Relator argues that, although, the “central station service” restriction in no way inhibits Upshur from serving its present members, Upshur can continue to serve such members only if it continues to purchase its electric energy from Relator Southwestern Electric Power Company, or some other power company, and it will violate the central station service restriction if it generates its own energy.

The central station service restriction does not apply to a situation such as the one under discussion. The restriction applies only to authority to serve and eligibility to be served. It was designed solely to prevent competition between cooperatives and utilities with respect to customers already being served by the latter. Once a cooperative has acquired an eligible member and is serving him as it is authorized to do, the restriction in no way forever commits the cooperative to continue to serve him from the same wholesale source, or precludes it from switching to some other source of energy.

The definition of “central station service” that is contained in Section 3(5) of the Act refutes Relator’s contention. The definition states that the words central station service: “refer to electric service provided by a municipally owned system or by a public utility corporation * * * ” (emphasis added).

In the case at bar, Upshur and Upshur alone provides its members with service. It is Upshur’s lines with which the members are connected. It is through these lines that the service is provided. It is Upshur that the members pay for such service. Consequently, within the plain meaning of the statutory definition, Upshur’s members are not receiving central station service because they are being provided electric service by the cooperative, rather than by a muncipally owned system or by a public utility corporation.

Since Upshur now purchases all of its electric energy from Relator, it is true that the “electric energy” received by Upshur’s members came originally from Relator. Because of this, Relator argues, Upshur’s members are now receiving central station service within the statutory definition. Such a conclusion requires substituting the words “electric energy” for the words “electric service” in which the definition is couched. While Relator does provide electric energy for Upshur, it is Upshur which in turn uses such energy in providing electric service for its members.

We would be putting the statute to .strain should we hold that the plain wording of Section 4 authorizing the cooperative to build a generating plant is restricted by the central station service provision of Section 3 in that where once a cooperative such as Upshur has begun purchasing electric energy from a private utility, it is forever committed to that or a similar source and cannot thereafter switch to generating its own energy. Relator is in effect saying that a cooperative loses its statutory power to generate energy for its members if it does not exercise such power at the very beginning of its operations.

In State ex rel. Southwestern Gas & Electric Co. v. Upshur-Rural Electric Cooperative Corporation, 156 Tex. 633, 298 S.W.2d 805 (1957), Chief Justice Hickman speaking for the Supreme Court said:

“We are aided in our understanding of Article 1528b (the Texas Act) by referring to an Act of Congress known as the Rural Electrification Act of 1936,
“It will be observed that the rural area and central station service limitations and the definition of rural area in our ECC Act follow the pattern of the Federal Rural Electrification Act of 1936.”
The Federal Act (7 U.S.C.A. § 904) au- ' thorizes the Administrator:
“ * * * to make loans for rural electrification to persons, corporations, •States, Territories, and subdivisions -and agencies thereof, municipalities, "peoples’ iitility districts and cooperative, nonprofit, or limited-dividend associations, * * * for the purpose of ■financing the construction and operation of generating plants, electric transmission and distribution lines or systems for the furnishing of electric energy to persons in rural areas who are not receiving central station serv-1C6 ^ ^ **

In an opinion of the Solicitor of the Department of Agriculture, dated May 26, 1944 we find:

“The Act prescribed no fixed chronological sequence for the construction of the various parts of the borrower’s system — that is, it does not require that the generating plant, transmission lines, and distribution lines all be constructed, or the financing of all of these parts be provided for, simultaneously. The reason is clear and bespeaks sound judgment and full recognition on the part of Congress with respect to the essential problem involved. Rarely, if ever, does it occur that a cooperative with 500 miles of distribution line springs into being "and operation complete in a single stage.”

Upshur’s third and fourth points of error, briefed together, are as follows:

(1) The Trial Court erred in holding generally that Upshur-Rural Electric Cooperative Corporation cannot enter into any contract to sell “or dispose of” electric energy to a non-member or to a person who would resell such energy for use by others, and in enjoining Upshur from entering into any such contract; (2) The effect of the holding and restraint complained of in the third point is to enjoin Upshur-Rural Electric Cooperative Corporation from entering into the proposed interconnection agreement with the Southwestern Power Administration, and the Trial Court erred in issuing an injunction which prevents Upshur from entering into an interconnection agreement with SPA.

We overrule these points and affirm the judgment of the Trial Court with respect thereto.

Here the principal effect of the Trial Court’s judgment is to forbid Upshur from entering into any contract to sell “or dispose of” electric energy to a non-member. Nowhere in the judgment does the word “interconnect” appear. It is the sale or other disposition of electricity to non-members that is proscribed. Should Upshur interconnect its lines with those of another for any purpose that has been declared herein to be invalid then such interconnection would be ill advised. An interconnection for any other purpose is not a part of this lawsuit.

As stated by the Supreme Court in the Upshur case, cited above:

“ * * * Whatever powers cooperatives possess are derived from, and therefore measured by, the Act which created them. To our minds that Act places these definite restrictions upon their powers: (1) A cooperative may serve its members only. * * * ” (298 S.W.2d 807-808)

This holding is supported by the unequivocal language of Section 4 of the Act, consequently Upshur’s arguments as to implied powers that it might have, or reference to the fact that the Act expressly provides that it shall receive a liberal construction must fail.

The judgment of the Trial Court is reversed and rendered in part and affirmed in part.

Reversed and rendered in part and in part affirmed.

      . The Southwestern Power Administration (SPA) is an Agency of the Federal Government. It is to be distinguished from the Ilelator Southwestern Electric Power Company, which is a private utility that operates in East Texas and elsewhere.

      . The Trial Court’s judgment is as follows:
      “On the 4th day of March, 1964, at a regular term of this Court and pursuant to previous setting, came on to be heard on its merits the above entitled and numbered cause, in which the State of Texas is plaintiff, Southwestern Electric Power Company is relator, and Upshur-Rural Electric Cooperative Corporation is defendant, and all parties by and through their attorneys of record, after having waived trial by jury, announced ready for trial; and the Court having heard the evidence and having considered said evidence, together with all arguments of counsel and trial briefs; and the Court being of the opinion that the law and the facts are with the plaintiff and relator, and against the defendant, it is accordingly:
      “ORDERED, ADJUDGED, DECREED AND DECLARED by the Court that the proper construction of Article 1528b, Tex.Rev.Civ.Stat., and other statutes and the common law applicable to the parties under the facts involved in this case, is that:
      “(1) Where the members of a cooperative corporation organized under said Article 1528b are receiving through the cooperative electric service provided by central generating stations, as the members of Upshur-Rural Electric Cooperative Corporation and Panola-Harrison Electric Cooperative Corporation now are, such constitutes the receipt of central station service, as that term is used in said Article 1528b, and the construction of an electric generating plant, with related transmission facilities, by such a cooperative to duplicate and displace the function of the central station and related facilities presently providing electric service would be ultra vires and unlawful because, since the corporate purpose of bringing central station service. to those who do not have it has been fulfilled, such construction would be beyond the corporate purposes of said cooperative as set forth in said Article 1528b; and
      “(2) A cooperative corporation organized under said Article 1528b is authorized by such statute to sell or dispose of electric energy to its members only; by said Article 1528b the class eligible to be, become, or remain members is limited to persons (which term, as. defined by the statute, includes any natural person, firm, association, corporations, business trust, partnership, Federal agency, State or political subdivision thereof or any body politic), using or agreeing to use such electric energy at the dwelling, structure, apparatus or point of delivery on which the membership is based; and the sale or disposition of electric energy by such a cooperative corporation would be ultra vires and in violation of said Article 1528b if made: (a) to a non-member, such as Southwestern Power Administration has been admitted to be with respect to membership in the defendant cooperative, or (b) to any ‘person’ (as above defined), other than another cooperative corporation organized under said Article 1528b, if such ‘person’ would not use such energy at the dwelling, structure, apparatus or point of delivery on which the membership is based but would resell the same for use by others.
      “It is further ORDERED, ADJUDGED AND DECREED by the Court that defendant, Upshur-Rural Electric Cooperative Corporation, its officers, directors and employees, are hereby enjoined from building an electric generating plant, with related transmission facilities, for the purpose of the furnishing of electric energy to its members and to certain members of Panola-Harrison Electric Cooperative Corporation because such members are already receiving central station service under the law as above set forth and declared ; and
      “It is further ORDERED, ADJUDGED AND DECREED by the Court in accordance with the law as above set forth and declared, that the defendant. Upshur-Rural Electric Cooperative Corporation, its officers, directors and employees, are hereby enjoined from selling or disposing of, or entering into any contract to sell or dispose of, electric energy: (a) to a non-member or (b) to any ‘person’ (which term includes any natural person, firm, association, corporation, business trust, partnership, Federal agency, State or political subdivision thereof or any body politic), other than another electric cooperative corporation organized under Article 1528b, when such ‘person’ will not use such energy at the dwelling, structure, apparatus or point of delivery on which the membership is based but will resell the same for use by others; and
      “It is further ORDERED, ADJUDGED AND DECREED that the costs of suit be, and the same are hereby, taxed against the defendant, Up-shur-Rural Electric Cooperative Corporation, for which let execution issue.
      “Defendant, Upshur-Rural Electric Cooperative Corporation, duly excepted in open Court to tbe above and foregoing ruling and judgment and gave notice of appeal to the Court of Civil Appeals for the Third Supreme Judicial District of Texas at Austin.”


source: Caselaw Access Project

author: RUARK, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri ex rel. Connie L. POWERS, Petitioner, v. T. J. (Tommy) WALKER, Sheriff of Stone County, Missouri, Respondent.
    No. 8389.
    Springfield Court of Appeals. Missouri.
    Aug. 13, 1964.
    John E. Hosmer, John B. Newberry, Springfield, for petitioner.
    Tom N. Douglas, Galena, for respondent.
   RUARK, Presiding Judge.

Petitioner, Connie L. Powers, was defendant in complaint filed in magistrate court, charged with what the parties all agree was intended as a charge of molesting a minor under § 563.160. Specifically the charge was that he did “unlawfully, fe-loniously and wilfully, place his hands and detain a minor girl, and did suggest an immoral, lewd and lascivious act, with said minor by holding and fondling said minor.” Warrant was issued on the charge of “fe-loniously molesting a minor”; defendant was arrested, hearing was held; he was bound over to circuit court, and, in default of five-thousand-dollar bond, was committed to jail, all as shown by the transcript of the magistrate.

Subsequently, it was decided to “make the charge a misdemeanor.” The prosecuting attorney filed an information in magistrate court charging, not on fact but on information and belief, that defendant did “unlawfully and wilfully, place his hands [on] and detain a minor girl, and did suggest an immoral, lewd, and lascivious act, with said minor by holding and fondling said minor.” It will be noticed that the wording of the information in magistrate court is almost identical with that of the charge under which the defendant has been bound over to circuit court, except that the word feloniously was omitted. The docket of the magistrate court then shows the following :

“9851 State of Missouri v. Connie L. Powers — Molesting a Minor
10-29-63 — On this 29th day of October, plea of not guilty. Hearing by Court and found guilty, fined $500.00 and six months in jail. Suspended on good behavior, and all costs $518.00 Total”.

On November 4, 1963, the prosecuting attorney dismissed the case in circuit court.

On July 3, 1964, the magistrate issued a “Committment for parole violation” and Powers was rearrested and placed in jail. It is to secure discharge from this confinement that he presented his petition for ha-beas corpus. At our hearing after the return of the sheriff, it developed that the stay of execution was granted by the magistrate on the oral condition that the petitioner stay out of the county; that the prosecuting attorney was informed that petitioner had returned to or was within the county and requested the magistrate to “revoke his parole.” This was done without sentence or hearing.

Various grounds for discharge, are asserted; we think we need deal with only one. The magistrate did not have jurisdiction. to try, adjudge, and convict, for the supposed crime. The charge was obviously intended to be made, and petitioner was-tried and convicted of a crime defined in §; 563.160, which is entitled “molesting minor with immoral intent.” The punishment fixed by that statute is imprisonment in the-penitentiary, imprisonment in jail, or a fine-not exceeding five-hundred-dollars, or both such fine and imprisonment; in other words,, what lawyers often call a “mixed felony.”' See State v. Thomas, Mo., 343 S.W.2d 56. Section 556.020 provides that a felony is-any offense for which the offender, on conviction, shall be liable by law to be punished' by death or imprisonment in the penitentiary. A so-called mixed felony is a felony under this section. State v. Kollenborn, Mo., 304 S.W.2d 855; State v. Combs, Mo.App., 301 S.W.2d 529.

Section 541.020 provides that, except as otherwise provided by law, the circuit courts shall have exclusive jurisdiction in all cases of felony. Section 543.010’ grants magistrate courts concurrent jurisdiction with circuit courts in all cases of misdemeanor, but it does not “otherwise-provide” for jurisdiction to try and sentence for a felony. Jurisdiction of magistrate court in felony case is limited to a preliminary examination, discharge or binding over to circuit court, and admission to bail. State v. Cooper, Mo., 344 S.W.2d 72, 76. The circuit court has exclusive jurisdiction-to fry felony cases. State v. Crouch, Mo., 353 S.W.2d 597(8).

• It is suggested that the charge could not be that of a felony exclusively withim the jurisdiction of the circuit court because-the word feloniously was not included im - thé information. The molesting statute is a-special statute enacted for the protection' of minors and the public generally. • It. does not require that the act be done “fe-loniously.” One who violates the section by committing the acts therein specified is-.guilty and punishable regardless of- whether the acts are charged to have been feloniously done. State v. Klink, 363 Mo. 907, 254 S.W.2d 650, 655; State v. Updegraff, Mo., 214 S.W.2d 22; State v. Burton, 324 Mo. 214, 22 S.W.2d 1049; State v. Frazer, 363 Mo. 77, 248 S.W.2d 645, 646; State v. Gentry, 329 Mo. 282, 44 S.W.2d 27, 30; State v. Nienaber, 347 Mo. 615, 148 S.W.2d 1024.

Finally, it is urged that the conviction and sentence should he sustained as being for common assault. This we think is an afterthought. The information uses words which are applicable to the molesting statute. The case was docketed and tried as a molesting charge, and the punishment fixed (which included a five-hundred dollar fine) could not possibly have been assessed as a penalty for common assault (559.220). It is true that the improper “laying on of hands” inflicted upon a woman not consenting thereto is an assault if the acts be such as to produce a sense of shame or other disagreeable emotion resulting from undue familiarity. State v. Higgins, Mo.App., 252 S.W.2d 641(6). (As to consent, see 6 C.J.S, Assault and Battery § 90, p. 941; State v. Jeffords, Mo.App., 94 S.W.2d 915). But here we have a charge of laying of hands upon an unnamed person (her name not endorsed) of unknown age. Whether this was done against her will, or whether she was of an age which would not permit consent (as against a charge of assault) is not disclosed.

As stated heretofore, the crime of molesting a minor is a felony created and defined by a special statute, complete in itself. State v. Randall, Mo., 248 S.W.2d 860(4). One cannot be brought into court on one offense and convicted of another entirely different. State v. Bowles, Mo., 360 S.W.2d 706(2). While the act done might also involve an assault, it (molesting a minor) is not a crime which can be graded down to a lesser degree and common assault does not merge into it. State v. Kornegger, 363 Mo. 968, 255 S.W.2d 765, 769; State v. Klink, supra; State v. Akers, Mo., 328 S.W.2d 31. The prosecuting officers cannot create a misdemeanor charge of molesting by omitting the word feloniously. If there are facts which justify the prosecution of petitioner on the felony charge of molesting, he should be so prosecuted. If the facts are such that he was guilty of common assault, he could be so charged, but he cannot be prosecuted under some theory which compromises molesting into a misdemeanor.

A void trial is no trial. Thompson v. Sanders, 334 Mo. 1100, 70 S.W.2d 1051, 1055. The lack of jurisdiction in the magistrate court is of the subject matter. That cannot be waived. Crockett Oil Co. v. Effie, Mo.App., 374 S.W.2d 154, 157; Weiler v. Weiler, Mo.App., 331 S.W.2d 165; Berry v. Chitwood, Mo., 362 S.W.2d 515.

Since the petitioner is not held under sentence by a court having jurisdiction, and since it is agreed no other charge is pending, it appears that he must be discharged. It is so ordered.

STONE and HOGAN, JJ., concur.

      . All statutes referred to herein are RSMo 1959, V.A.M.S.


author: NORVELL, Justice.

text:
    AMMEX WAREHOUSE COMPANY, Inc., et al., Petitioners, v. Hon. Roy C. ARCHER, Chief Justice of the Austin Court of Civil Appeals, et al., Respondents.
    No. A—10117.
    Supreme Court of Texas.
    July 29, 1964.

      R. Dean Moorhead, Austin, O. C. Hamilton, Jr., McAllen, for relator.
    Waggoner Carr, Atty. Gen., Austin, Howard M. Fender and Brady S. Coleman, Asst. Attys. Gen., for respondents.
   NORVELL, Justice.

Ammex Warehouse Company and six allied business establishments seek an original writ or writs of mandamus against the Justices of the Court of Civil Appeals in and for the Third Supreme Judicial District of Texas and the Texas Liquor Control Board and its Administrator, Hon. Coke R. Stevenson, Jr.

History of Litigation

Relators sell whiskey and other liquors under a scheme or plan which they contend is exempt from state regulation because of Acts of Congress passed under the commerce clause of the United States Constitution. Their establishments are located near the Mexican border and they claim that their operations are in essence the same as those carried on by Idlewild Bon Voyage Liquor Corporation which were recently considered by the Supreme Court of the United States in Hostetter v. Idlewild Bon Voyage Liquor Corporation, 377 U.S. 324, 84 S.Ct. 1293, 12 L.Ed.2d 350 (1964). The Administrator of the Texas Liquor Control Board asserts that the operations of relators were and are being conducted within the territorial boundaries of Texas and are subject to state control and regulation.

The District Court consolidated a number of cases in which the relators were plaintiffs and the Texas Liquor Control Board and its Administrator were defendants under Cause No. 132,400 on the docket of said Court. On March 6, 1964, the Court rendered two orders; one being a decree permanently enjoining the Texas Liquor Control Board and its Administrator from enforcing or attempting to enforce the state regulatory liquor laws as against the defendants and their operations; the second was styled, “Order modifying and extending temporary injunction.” It is accurately stated by the Court of Civil Appeals in the prohibition proceedings hereinafter mentioned that it appears without dispute that:

“Comparison of the final judgment with the so-called order modifying and extending temporary injunction reveals that the restraining provisions are substantially identical in each instrument, the major difference being that by the final judgment Defendants are 'permanently enjoined,’ while the * * * extension of the temporary injunction purports to restrain and enjoin Defendants ‘pending final determination of this consolidated cause on the merits by the highest appellate court to which the judgment on the merits may be appealed by any of the parties.’ ” Texas Liquor Control Board v. Jones, District Judge, Tex.Civ.App., 378 S.W.2d 898, 1.c. 900, original proceeding (1964).

The temporary order also expressly provided that:

“This order shall not merge with any injunctive relief which might be granted by the Court in the judgment which will hereinafter be entered upon the merits of this cause, but shall at all times, until final determination of this case by the Court of last resort, remain separate and apart therefrom.”

As there seems to be a substantial federal question here involved, it is readily seen that the purpose of the temporary order was to prevent supersedeas and restrain enforcement of the state regulatory liquor laws until this litigation could make its way through the Court of Civil Appeals to this Court and ultimately to the Supreme Court of the United States.

The Court of Civil Appeals considered this temporary order to be an interference with its jurisdiction of the case which had been invoked by giving notice of appeal from the final judgment rendered in said consolidated Cause No. 132,400. Accordingly, upon application of the Administrator, it issued a writ of prohibition forbidding the enforcement of the temporary injunction or stay order issued by the District Court. Texas Liquor Control Board v. Jones, District Judge, supra. In so doing the Court relied primarily upon its prior decision rendered in Railroad Commission of Texas v. Roberts, Tex.Civ.App., 332 S.W.2d 745, original proceeding. (1960), wherein it was said that:

“[W]e are convinced that the effect of the temporary restraining order issued on February 8, 1960 was to deny to the Railroad Commission its rights accorded it by the statutes of this State to supersede the judgment of February 3rd and that such rights are the proper subject of protection by this Court as ancillary to the appeal from the final judgment of February 3, 1960, and that under Article 1823 which authorizes this Court to issue writs necessary to protect its jurisdiction that the writ of prohibition for which the relator prays should be awarded.”

This Court granted leave to file an application for writ of mandamus presented by relators and issued a temporary order staying all action on the part of the Texas Liquor Control Board and its Administrator until we could determine this cause. See, State ex rel. Yelkin v. Hand, 160 Tex. 414, 333 S.W.2d 108(1960) and Hand v. State, 160 Tex. 415, 333 S.W.2d 109 (1960). The relief prayed for by way of mandamus in this Court would have the effect of rendering the temporary injunction or stay order of the District Court effective until this cause had been determined by the court of last resort which, as above pointed out, could well be the Supreme Court of the United States.

The Right of the State to Supersedeas

It is asserted by the relators that Article 279a and 2276 do not authorize the State to supersede a judgment of a trial court. It is said that to construe such articles as allowing a supersedeas by the State without giving a bond would render the statutes unconstitutional under the due process clauses of the state and federal constitutions. It is also pointed out that certain articles of the Revised Statutes relating to the right of a governmental entity or department to appeal without giving bond specifically mention “supersedeas bonds” as well as cost bonds. See Article 1174 relating to cities and Article 2072a relating to the Banking Department.

Article 2276 reads as follows:
“Neither the State of Texas, nor any county in the State of Texas, nor the ■Railroad Commission of Texas, nor the' head of any department of the State of Texas, prosecuting or defending in any action in their official capacity, shall be required to give bond on any appeal or writ of error taken by it, or either of them, in any civil case.
“Executors, administrators and guardians appointed by the courts of this State shall not be required to give bond on any appeal or writ of error taken by them in their fiduciary capacity.”

In Railroad Commission of Texas v. Roberts, supra, it was held that:

“The effect of notice of appeal by and on behalf of the Railroad Commission was to supersede the final judgment entered by the 126th District Court.”

In Inman v. Texas Land & Mortgage Company, Tex.Civ.App., 74 S.W.2d 124, no wr. hist. (1934) the Court stated that:

“Rev.St. Art. 2276, provides that a guardian appointed by the courts of this state shall not be required to give bond on any appeal or writ of error taken by him in his fiduciary capacity. It is further held that, when a guardian, as such, has appealed by giving the required notices and filing the record in the reviewing court, the appeal suspends the execution of the judgment or order appealed from without the necessity of filing a supersedeas bond. 21 Tex.Jur. 368, § 106, 370, § 107, and authorities cited.”

Similarly in Wallace v. Adams, Tex.Civ.App., 243 S.W. 572, wr. dis., 1922, it was said that:

“The state may appeal without bond, so may guardians and administrators; •yet the judgments from which such appeals are prosecuted are automatically suspended without any specific statutory directions that such shall be the result.”

While these decisions by the Courts of Civil Appeals are not binding upon this' Court, the holdings made by such Courts are in accord with the plain unequivocal wording of the statutes and the Rules of Civil Procedure relating to supersedeas. Rule 364 makes only one requirement as a prerequisite for a supersedeas and that is the filing of a bond. It is stated that, “An appellant desiring to suspend the execution of the judgment may do so by giving a good and sufficient bond. * * * ”. The statute provides that the State shall not be required “to give bond on any appeal or writ of error taken by it * * * in any civil case.”

We see nothing in this exemption statute which is repugnant to any constitutional provision. The Legislature could have provided that any judgment of a trial court should remain in effect until final disposition of the cause by an appellate court of last resort. It did not so provide, but on the contrary prescribed that a final judgment of a trial court could be suspended by supersedeas.

It is true that if the Texas law is enforced as to relators and it should thereafter be determined that the federal law had exclusive application, such relators could not recover damages or indemnity against the State. The State by the very nature of its political organization cannot give bond nor expend money without Legislative approbation, but this circumstance does not operate to deprive the State of the right of supersedeas. No one would seriously question the right of the State of Texas to regulate the manufacture and sale of intoxicants within its borders. Such regulations may at times entail hardship. Administrators may make mistakes, but hardships and mistakes are incidental to each and every law enforcement effort by huirían being's. The Legislature was well' within its constitutional boundaries in providing that the State and the heads o£ its departments : are exempt from giving bond when they elect to supersede a judgment of a trial court.

The Asserted Immunity of the Trial Court’s Temporary Injunction, or Stay Order from Control by the Court of Civil Appeals .

When the State’s right to super-sedeas 'is recognized, there can be little doubt as to the power ofthe Court of Civil Appeals to.forbid enforcement of the trial court’s temporary ' order when an appeal has been perfected to the appellate court from‘a final judgment. As above pointed out the temporary order is in substantially' the same terms as the perpetual injunction. It is based upon no independent equity. The same considerations that support the perpetual injunction likewise support the tern- ■ porary order. The purpose of the tempo- ■ rary order was to prevent a supersedeas of the perpetual injunction. It would operate - to restrain the Administrator from attempting to enforce the state’s regulatory liquor control laws as to relators until final - disposition of this cause by the Court of last resort. It may be that litigants’ substantive rights would be better protected by allowing enforcement of a trial court’s judgment pending appeal. Decisions of trial judges are usually free from error. It is arguable that in the greater number of cases the ends of justice would be better served by making their judgments fully effective until they are reversed or set aside. Perhaps it would follow that super- ’ sedeas should not be allowed at all, or that it should be allowed only at the trial court’s discretion, or that it should be allowed only when the party ultimately prevailing would have some redress by recourse against an indemnity bond. However, when and how supersedeas- should be allowed is a policy question peculiarly within the legislative sphere and the Legislature has determined that the State and certain political subdivisions thereof may supersede judgments of trial courts.

In Yett v. Cook, 115 Tex. 175, 268 S.W. 715 (1925) this Court considered a temporary injunction having for its' purpose the enforcing of a writ of mandamus which had been superseded pending appeal. The temporary order was characterized as being “absolutely void.” This Court said that:

“[T]he injunction was applied for for the purpose of rendering ineffective the appeal and supersedeas which might be taken as against the judgment awarding the peremptory mandamus, and its purpose and effect was simply an attempt to nullify the rights of the relators granted them by the statute permitting them to supersede the mandamus judgment.”

It is a rule of general application that when an appeal is perfected to the Court of Civil Appeals, the latter Court (subject to the right of the. trial court to grant a motion for new trial in term time, Bergman v. West, Tex.Civ.App., 262 S.W.2d 435, no wr. hist., 1953; Cude v. Sanderson, Tex.Civ.App., 235 S.W.2d 927, no wr. hist., 1951, and absent statutory exception), acquires plenary exclusive jurisdiction over the entire controversy. Thompson v. Kelley, 100 Tex. 536, 101 S.W. 1074 (1907); Whaley Farm Corporation v. Bieloh, Tex.Civ.App., 9 S.W.2d 273, original proceeding (1928), 3 Tex.Jur.2d 598, Appeal’and Error — Civil Cases § 340. Similarly, when an application for writ of error is filed in this Court, our jurisdiction, which is likewise exclusive in nature, attaches to the cause. Johnson v. Sovereign Camp, W.O.W., 125 Tex. 329, 83 S.W.2d 605 (1935).

After an appeal is perfected from a final appealable judgment, the Court of Civil Appeals is expressly authorized to issue writs of mandamus and all other writs necessary to enforce its jurisdiction. Article 5, § 6, Constitution of Texas, Vernon’s Ann.St., Article 1823, Appellate Procedure in Texas, § 1 — 1. The writ of prohibition has been issued by the Court of Civil Appeals to protect its jurisdiction, and, in our opinion, this Court is not authorized to exercise its original jurisdiction to disturb the prohibition order.

In McDowell, District Judge v. Hightower, Chief Justice et al., 111 Tex. 585, 242 S.W. 753 (1922), it appeared that McDowell, as judge of the 60th District Court, had removed T. H. Garner from the office of Sheriff of Jefferson County. Garner appealed to the Court of Civil Appeals for the Ninth Supreme Judicial District and gave a supersedeas bond. The Court of Civil Appeals on application of Garner issued an injunction against Judge McDowell restraining him from interfering with Garner’s discharge of his duties as sheriff of Jefferson County. Judge McDowell then sought a mandamus from this Court ordering the Court of Civil Appeals to vacate its order above mentioned. In denying the application for mandamus this Court said:

“Any action in disregard of a super-sedeas is contempt of the jurisdiction of the court in which an appeal, with supersedeas, is pending. 3 C.J. 1327. It is doing no more than protecting its own jurisdiction for the court to inquire into and prevent such acts as would be in defiance of the effect of the supersedeas.
“It cannot, therefore, be doubted that the Beaumont Court of Civil Appeals was authorized to consider and determine the right of Garner to continue in office during the pendency of his appeal, and to protect and enforce that right, if affirmed, in the exercise of' the court’s power, under article 1592 (now article 1823) of Vernon’s Sayles’ Texas Civil Statutes, to issue all writs necessary to enforce its jurisdiction. Having jurisdiction to hear and determine the application of Garner for the enforcement of his asserted right, in and to the subject-matter of the removal suit, pending the appeal, the action of the Court of Civil Appeals was not void, regardless of the correctness of the court’s construction of the statutes relating to a sheriff’s suspension or removal from office and relating to appeals.
“The conclusion that the order of the Court of Civil Appeals cannot be successfully attacked as a nullity precludes the award of any relief to re-lators in this proceeding. This court is bound by the law as is each and every citizen. The law’s behests must be obeyed, if civilized government is to endure. The court has no original jurisdiction to issue writs of mandamus save such as has been conferred by the Legislature. The Legislature in its grant to the court of original jurisdiction in mandamus cases has expressly provided that in its exercise the writ of mandamus shall issue against any district judge, or Court of Civil Appeals, or judge of a Court of Civil Appeals, or officer of the state government except the Governor, only in accordance with the principles of law regulating such writ. There is no principle of law regulating the issuance of a writ of mandamus longer or better established in this state than that mandamus never lies to control official discretion or to correct mere errors in the exercise of judicial power.”

The ■ Duty of the Court of Civil Appeals to Exercise its Original Jurisdiction to Prevent a Destruction of the Subject Matter of the Litigation

In City of Dallas v. Dixon, Chief Justice et al., Tex.Sup., 365 S.W.2d 919 (1963) this Court held that where the duty was mandatory as distinguished from discretionary and the Court of Civil Appeals had failed to exercise the power vested, in it under the provisions of Article 1823, this Court could and would issue a mandamus under Article 1733 directing the Court-of Civil Appeals to take action to protect its jurisdiction. As an alternative contention, the relators say that the failure of the Court of Civil Appeals to act and stay the hand of the Administrator will result in a destruction of the subject matter of this litigation so as to render such judgment as may be rendered by the Court of Civil Appeals wholly inoperative and ineffective; that the Court of Civil Appeals should have acted. to protect its jurisdiction, and that under authority of the Dixon case, this Court should compel action.

We have been cited to no case by this Court in which the issuance of the suggested species of stay order in the teeth of the statute authorizing a supersedeas has been sustained. Whether such a writ could issue in a proper case we need not now determine. ' It seems that the subject matter of this litigation is the asserted right of relators to operate their business free" of state regulation. Relators, however, -insist that their business, as heretofore operated by them free of state control, will be destroyed. While the business of rela-tors may be damaged or, as they say, need to be reconstructed after the pending litigation is terminated in their favor (if such be the final result), it is difficult to see that this would destroy the subject matter of the litigation, namely, the asserted right to do business free of state regulation. However that may be, the Administrator has filed a sworn reply herein stating in substance that relators’ physical properties will not be destroyed. Should they be required for a while to operate in accordance' with state law, the subject matter of 'the litigation would not be destroyed. At most, a fact issue is raised which this Court cannot decide and we cannot say that the Court of Civil Appeals is under a mandatory duty to issue the writ as asserted by relators. Teat v. McGaughey, 85 Tex. 478, 22 S.W. 302 (1893).

Conclusion

It is not our intention to pass upon .the merits of the State’s appeal now pending in the Court of Civil Appeals and which is potentially subject to our writ of error jurisdiction. Further, it may be said that an original proceeding in this Court is in no sense an appellate review of action taken by the Court of Civil Appeals. This Court has no appellate jurisdiction over proceedings originating in the Court of Civil Appeals. In Texas Liquor Control Board v. Jones, Tex.Civ.App., 378 S.W.2d 898, supra, the Court stated that the holding in City of Athens v. Gulf States Telephone Company, Tex.Civ.App., 374 S.W.2d 757, original' proceeding (1964) is inconsistent with the rule followed in Railroad Commission of Texas v. Roberts, Tex.Civ.App., 332 S.W.2d 745, supra. After the actions taken by the Courts of Civil Appeals in both the Athens and Roberts cases, motions for leave to file applications seeking to invoke an original jurisdiction were overruled by this Court. See Rule 474. Our original jurisdiction, under the constitution and statutes is not primarily designed to settle conflicts between or among decisions of the Courts of Civil Appeals and hence our refusing to issue original writs following Court of Civil Appeals action in such cases is not to be taken as approving or condemning such action. However, we approve the holdings of Railroad Commission v. Roberts upon the points indicated by the citations thereto contained in this opinion.

Of course, in the exercise of our original jurisdiction, we may, under certain circumstances, not present here, order a Court of Civil Appeals to act, or restrain a Court of Civil Appeals from interfering with an order of this Court issued in the exercise of its original jurisdiction. City of Dallas v. Dixon, Chief Justice et al., Tex.Sup., 365 S.W.2d 919, supra; Johnson v. Court of Civil Appeals, 162 Tex. 613, 350 S.W.2d 330 (1961) ; Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063 (1926); Gulf, Colorado & Santa Fe Ry. Co. v. Muse, 109 Tex. 352, 207 S.W. 897, 4 A.L.R. 613 (1919), Appellate Procedure in Texas, Mandamus, § 1.4.

Accordingly, as to this case, we conclude that:

(1) The State has a valid statutory right to a supersedeas without filing a bond upon perfecting its appeal by giving proper notice. Unless a contrary intention is made known to the Court, the State’s notice of appeal operates as a supersedeas.

(2) As the restraints of the temporary order are in substance the same as those of the perpetual decree, there exists no “independent equity” upon which the temporary order may be based. Article 4642, § 2 has no application to this case. Yett v. Cook, 115 Tex. 175, l.c. 183, 268 S.W. 715, l.c. 718 (1925).

(3) The perpetual decree entered by the trial court is subject to supersedeas. Railroad Commission of Texas v. Roberts, District Judge, Tex.Civ.App., 332 S.W.2d 745, original proceeding (1960); Kimbrough v. State, Tex.Civ.App., 139 S.W.2d 165, original proceeding (1940); Ross v. State ex rel. Shook, Tex.Civ.App., 97 S.W.2d 505, original proceeding (1936).

(4) The Court of Civil Appeals was vested with jurisdiction and authority to issue its writ of prohibition to protect the State’s right to supersedeas. McDowell v. Hightower, 111 Tex. 585, 242 S.W. 753 (1922).

(5) The Court of Civil Appeals, on the record before us, was not under a mandatory duty to issue an injunctive writ to protect the subject matter of the litigation. City of Dallas v. Dixon, Chief Justice et al., Tex.Sup., 365 S.W.2d 919, supra; Teat v. McGaughey, 85 Tex. 478, 22 S.W. 302, supra.

The application for writ of mandamüs and all ancillary relief is denied. The stay order heretofore issued by us is vacated. No motion for rehearing will be entertained. • ■

HAMILTON, T., dissented.

      . Article 279a reads as follows:
      “Neither the State of Texas, nor any county, nor any state department, nor the head of any state department, nor the Federal Housing Administration, nor any National Mortgage Association, nor any National Mortgage Savings and Loan Insurance Corporation created and/or to be created by or under authority of any Act of the Congress of the United States of America as a National Relief Organization operating -territorially on a state-wide basis, nor the Veterans Administration, nor the Administration of Veterans Affairs, shall' be required to give any bond incident to any suit filed by any such agency, .official, and/or entity, for costs of court Or for' any appeal or writ of error taken out by it or either of them, nor any surety for' the issuance of any bond for the taking out of writs of attachments, sequestration, distress warrants, or writs of garnishment in any civil suit. Provided that no county or district attorney shall be exempted from the filing of bonds in the taking out of an extraordinary writ, unless said county or district attorney shall first obtain the approval by proper order of the Commissioners Court of the county in behalf of which such action is taken or the approval of the Attorney General in actions brought in behalf of the State.” • • .

      . Article references are to Vernon’s Ann. Tex.Stats. ■

      . It is the relators’ contention that this Court is empowered to act by reason of the provisions of Article 1733 which reads as follows:
      “The Supreme Court or any Justice thereof, shall have power to issue writs of procedendo, certiorari and all writs of quo warranto or mandamus agree- . able to tbe principles of law regulating such writs, against any district judge, or Court of Civil Appeals or judges thereof, or any officer of the State Government, except the Governor.”

      . Reversed on the issue of the authority of a state court to enjoin parties from litigating in the federal courts, Donovan v. Dallas, 377 U.S. 408, 84 S.Ct. 1579, 12 L.Ed.2d 1579.


author: COLLINGS, Justice.

text:
    Lloyd PRESSWOOD, Appellant, v. Dorothy JONES et vir, Appellees.
    No. 3901.
    Court of Civil Appeals of Texas. Eastland.
    July 24, 1964.
    Rehearing Denied Aug. 21, 1964.

      Yates & Yates, Abilene, for appellant
    Robinson, Wilson & Graham, Abilene, for appellees.
   COLLINGS, Justice.

Dorothy Jones and her husband brought suit against Lloyd Presswood seeking damages for injuries to property and to the person of Mrs. Jones, alleged to have been sustained in an automobile accident. The trial was before a jury which found the defendant guilty of acts of negligence proximately causing the damages sustained by plaintiffs. The jury further found that Mrs. Jones was not guilty of the various acts of contributory negligence alleged by defendant. Based upon the verdict, judgment was rendered for plaintiffs. Lloyd Presswood has appealed.

The evidence shows that on April 22, 1963, at about 8:30 a. m., Dorothy Jones was on her way to work driving her car West on North 6th Street in the city of Abilene, Texas. Her three months’ old baby was lying beside her on the front seat of the car. Pine Street, which runs North and South, had two traffic lanes in each direction and the evidence shows that there was a traffic light at the intersection of Pine and North 6th Streets. As Mrs. Jones approached the intersection of North 6th and Pine there was a car directly in front of her proceeding West on 6th Street and another car was behind her. There were no cars proceeding East on 6th Street at or near the intersection. To appellee’s left there were two cars on Pine Street facing North waiting for the light to change before crossing the intersection. Appellant Presswood was at the time proceeding South on Pine Street, and collided with Mrs. Jones while she was in the intersection.

The jury found that the traffic signal light at the intersection in question was red for North and South traffic; that Press-wood failed to stop for the red light and that such failure was a proximate cause of the collision. Appellant’s first six points urge that there was no evidence to support such findings, and that such findings were against the great weight and preponderance of the evidence. These points are overruled. Ap-pellee Mrs. Jones testified that as she approached the intersection going West on 'North 6th Street and as she entered the intersection the traffic signal light was green; that both she and the car in front of her entered the intersection and neither of them stopped because the light was green; that the light had not turned to yellow prior to the time of the collision ; that after the collision appellant got out of his car, came to her car, inquired about her condition and the condition of her baby, and then told her that he was sorry "that he had “run the red light”. She also testified that two other cars headed North on Pine Street were stopped at the intersection waiting for the light to change before crossing 6th Street. This constituted some evidence that the traffic light at the intersection at the time in question was red for North and South traffic on Pine. There was still other evidence tending to support such findings.

Contrary to appellant’s contention the record as a whole does not show that the findings in question were against the great weight and preponderance of the evidence. An illustration of the evidence which appellant urges in support of his contention in this respect is his own testimony that the light was green when he entered the intersection. There was, however, the testimony of the officer who investigated the accident and stated that when he asked appellant about the matter shortly after the time of and at the site of the accident, appellant stated that he did not know “whether the light was green or-red”. In support of his contention appellant also urges the testimony of a witness who saw the cars collide and testified that he was watching when the collision occurred, and he then looked at the light to “see which way it was” and at that time the light was in the process of changing but that he did not remember whether it was changing from red to green or from green- to red. Appellant also particularly urges that there was no evidence as to whether "the traffic light was operating properly at thé timé of the collision, and that in view of tli’é absence of such testimony it can not be concluded that appellant entered the intersection against a red light based solely upon evidence to the effect that appellee was at the time "entering the intersection from the East on a green light. Actually the only evidence contrary to the findings complained of was that of appellant to the effect that the light was green at the time he entered the intersection, and this was weakened by his statements to Mrs. Jones and the officer just after the accident. In’our opini ion there is not only ample evidence to support the findings complained of, but also a consideration of the record as a whole doeá not show that such findings are against the great weight and preponderance of the evidence.

In answer to special issue number 4, the jury found that appellanf Presswood failed to keep a proper lookout immediately prior to the collision and in answer to special issue number 5, that such failure by appellant was a proximate cause of the collision. Appellant presents a point urging that the court erred in failing to grant a new trial on the ground that the finding that appellant failed to keep a proper lookout was against the great weight and preponderance of the evidence. We have considered the evidence as a whole and find that the point is not well taken.

Appellant urges in other points that there was no evidence to support the finding that his failure to keep a proper lookout was a proximate cause of the collision and that such finding was against the great .weight and preponderance of the. evidence. .We also overrule these points. Appellant, ■who was called as an adverse witness, .testified that- he had just reached the intersection in question when he first saw ap-pellee’s car which was then in the intersection. The evidence shows that other cars were also in . the intersection going the .same way as appellant, and that two other .cars headed North on Pine Street were Stopped on the South side of 6th Street waiting for the light to change. Appellant .testified that he did not see any traffic meeting him and that the only car he saw in the intersection was appellee’s car, and that when he saw her the first time she was in front of him in the intersection. Appellant also testified that when the officer who investigated the accident asked him what had happened he replied, “Well, I don’t know.” The evidence in our opinion supports the finding that appellant’s failure to keep a proper lookout was a proximate cause of the collision and the record as a whole does not show that such finding was against the great weight and preponderance of the evidence.

• The jury found in answer to special issues 6, 7, and 8 that appellant failed to apply his brakes in time to avoid the collision; that such action was negligence and a proximate cause of the collision. We overrule appellant’s points contending that there was no evidence to support the findings that his failure to apply his brakes was negligence and that such negligence was a proximate cause of the collision. We also overrule appellant’s contention that such findings are against the great weight and preponderance of the evidence. Appellant testified that he had just reached the intersection when he first saw Mrs. Jones’ car; that when he saw her car he applied his brakes, but when again asked whether he had reached the intersection at the time, appellant replied: “Well when you have a wreck like that you just don’t know whether you — where you are at, right just at the ■moment.” The officer who investigated the accident at the time testified that the only skid mark found by him was a slight one at about the point of the collision. Appellant’s points in this connection are overruled.

Other special issues (numbers 12, 14 and 19a) were submitted to the jury which inquired (12) whether appellee failed to keep a proper lookout, (14) whether ap-pellee failed to apply her brakes in time to avoid the collision, (19a) whether appellee failed to turn her car to the right or left in time to avoid the collision. The answers to each of these issues was “No”. Appellant urges points contending that each of these answers was against the great weight and preponderance of the evidence. We have examined the entire record and find that neither of these points is well taken. Mrs. Jones testified that she looked to the right about the time she entered the intersection and saw the car driven by Mr. Press-wood when he “wasn’t too far from the light”. She further testified that the signal light was green for East and West traffic on 6th Street and that she and the car in front of her proceeded into the intersection with the green light; that two other cars headed North on Pine Street were stopped at the 6th Street intersection waiting on account of the red light. Mrs. Jones testified that she thought appellant Press-wood was going to stop and that when she saw that he was not going to stop she tried to speed up to avoid the collision but couldn’t do so because of the car in front of her. She also testified that there was another car behind her proceeding in the same direction that she was. It was under these circumstances that Mrs. Jones testified that she didn’t do anything but “just drove right on, straight ahead”. Appellant’s points in this respect as above set out are overruled.

In answer to special issue number 21, the jury found the amount of plaintiff’s damages resulting from the accident to be the sum of $4,000.00. Appellant urges points contending that there was no competent evidence, to support the finding of the jury in regard to such damages, that such finding was contrary to the great weight and preponderance of the evidence and that the finding was under all the evidence grossly excessive and unjust. The essence of appellant’s contention in this respect is concisely stated in his argument to be that appellee has failed to show that the neck and back injuries of which she complained at the time of the trial were caused by or were the result of the collision in question. Appellant urges that the evidence actually fails to show that Mrs. Jones was injured as a result of the collision; that appellee has failed to show that the back and neck injuries of which she complained were caused by or were the result of the collision rather than some other cause. Appellant contends that there is a material gap in the evidence; that the evidence considered to be favorable to appellees leaves open the probability that the injuries of which appellee complains were caused in some manner other than by the collision here involved. Appellant urges that appellee did not testify that her back and neck were hurt in the collision or that they were not hurt at some time prior to the collision; that appellee did not testify whether her injuries might have occurred or might not have occurred after the time of the collision and prior to her visit to Dr. Tull. Appellant points out that Dr. Tull’s testimony was simply that Mrs. Jones told him on April 26th that she was in a collision on April 22 which injured her back, knee and neck. Appellant urges that this testimony was hearsay and was no evidence of such facts. Dr. Tull did testify that after he had completed his physical examination of Mrs. Jones/taking into consideration the objective findings he saw, the subjective findings based upon what the patient told him and taking into consideration the x-ray examination, he arrived at a diagnosis of her difficulties; and that it was his opinion that she had a definite injury to the soft structure of her neck and the soft structure of her low back, and that her condition would not get better but would grow worse. The doctor also testified that, in his opinion Mrs. Jones received her injuries in the wreck. Under the circumstances shown, the testimony of the doctor as to the cause of Mrs. Jones’ condition was admissible and properly considered in determining the injuries and resulting damages. Texas Employers’ Insurance Association v. Wilkerson, Tex.Civ.App., 199 S.W.2d 288; Powell v. Sanders, Tex.Civ.App., 324 S.W.2d 587.

We have carefully examined the evidence and find that it supports the'findings of the jury on the question of damages,- and that such finding is not against the great weight and preponderance of the evidence. Mrs. Jones in reply to a question whether she was injured at the time of the collision testified “Yes; my knee and my leg started hurting me at the time it happened.” She stated that her husband took her to a doctor’s office that day; that the doctor was out of town and she then Went home thinking she wasn’t hurt too bad, but that she didn’t rest all night “So then I went to see another doctor.” She testified that she then went to see Dr. Tull who examined her and at that time she could hardly walk; that Dr. Tull gave her some pills for pain and also gave treatments for her back; that it was about six weeks before she was able to go back to work and .that she was then unable to work all day; that even at the time of the trial she didn’t try to put in a full day’s work. Mrs. Jones’ husband also testified concerning his wife’s injuries as a result of the accident. He stated that she had not had any -trouble with her neck and back before the accident and had not missed any work, but that since the accident she has missed work; that she still complains of pain in her back, neck and right leg; that her pain continues both day and night; that she wakes up at night on account of the pain and that he has to rub her back before she can rest. He stated that she had not improved much since the collision.

Appellant’s points are all overruled. The judgment is in all things affirmed.