author: STEPHENSON, Justice.

text:
    F. A. EALAND and W. N. Wood, d/b/a Ealand-Wood Lumber Company, Appellant, v. GULF, COLORADO & SANTA FE RAILWAY COMPANY, Appellee.
    No. 6854.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 2, 1967.
    Behearing Denied Feb. 22, 1967.

      Keith, Mehaffy & Weber, Beaumont, for appellant.
    Chilton O’Brien, Beaumont, for appellee.
   STEPHENSON, Justice.

This is an action for indemnity, or in the alternative, for contribution. Trial was by jury and judgment was rendered upon the jury findings for plaintiff Gulf, Colorado & Santa Fe Railway Company for full indemnity against defendant, Ealand-Wood Lumber Company.

J. H. Simpson was injured in the course of his employment with Ealand-Wood Lumber Company when struck by a Gulf, Colorado & Santa Fe Railway Company engine. Simpson recovered workmen’s compensation benefits from his employer’s carrier. Simpson then sued Gulf, Colorado & Santa Fe Railway Company for damages for personal injuries. This trial was by jury and Simpson recovered judgment based upon jury findings that Gulf, Colorado & Santa Fe Railway Company was guilty of various acts of negligence proximately causing his injury. Gulf Colorado & Santa Fe Railway Company v. Simpson, Tex.Civ. App., 331 S.W.2d 785. When this judgment became final, Gulf, Colorado & Santa Fe Railway Company brought this action against Ealand-Wood Lumber Company upon a written agreement providing for both indemnity and contribution.

The jury made the following findings :

Special Issue No. 1: Simpson was injured while on or about the Ealand-Wood Lumber Company spur track.
Special Issue No. 2: That Ealand-Wood Lumber Company failed to provide access to the hammer-hog which could be used without going between the planer mill shed and the spur track.
Special Issue No. 3: That Simpson was permitted to go under the planer mill to service the hammer-hog.
Special Issue No. 4: The steps constructed by Ealand-Wood Lumber Company from the planer mill shed were perpendicular to the spur track so that a person preparing to ascend such steps would be in the path of an engine operating on the spur track.
Special Issue No. 5 : The bottom tread of the steps from the planer mill shed was within 4 feet of the nearest rail of the spur track.
Special Issue No. 6: Ealand-Wood Lumber Company failed to adopt and enforce rules and regulations for the protection of its employees while working on or near the spur track.
Special Issue No. 7: Ealand-Wood Lumber Company failed to require its employees to notify by signals or flags the employees of the Railway Company that they were on or near the spur track.
Special Issue No. 8: That Simpson went into the space between the planer mill shed and the spur track when an engine was approaching on the spur track.
Special Issue No. 9: That Simpson stepped into the path of the engine approaching on the spur track while returning from the hammer-hog beneath the planer mill shed to the planer mill.
Special Issue No. 10: Simpson failed to place some sort of signal or flag to notify employees of the Railway Company that were operating the engine on the spur track that he was working on or near the spur track.
Special Issue No. 11: That the act or acts, omission or omissions that the jury had found in response to issues 2 through 10, was a proximate cause of the injuries to Simpson.
Special Issue No. 12: That the act or acts, omission or omissions, that the jury had found in response to issues 2 through 10, was negligence.

It is contended that Gulf, Colorado & Santa Fe Railway Company is precluded as a matter of law from recovery by Article 8306, § 3. This section was amended in 1963, after this cause of action arose, to provide that the subscriber under the Compensation Act would have no liability to reimburse or hold harmless a third person against whom a judgment had been obtained by an employee, in the absence of a written agreement expressly assuming such liability. It is argued that inasmuch as this was not provided for before 1963, that the law was changed in 1963 and, consequently, at the time this cause of action arose the third party could not recover from the subscriber.

We have found no Texas case passing directly upon this point. We hold that the 1963 amendment to Article 8306, § 3, did not change the law, and that the right of action for indemnity and contribution based upon a written agreement existed before such amendment. We have found no Texas case to the contrary. The point is overruled.

Ealand-Wood Lumber Company’s next point is that Gulf, Colorado & Santa Fe Railway Company as a matter of law could not recover indemnity under the terms of the written agreement between them because both parties were guilty of joint and concurring negligence. This agreement contained the following provision as a part of paragraph 5:

“ * * * The Industry also agrees to indemnify and hold harmless the Railway Company for loss, damage or injury from any act or omission of the Industry, its employees or agents, to the person or property of the parties hereto and their employees, and to the person or property of any other person or corporation, while on or about the Track; and if any claim or liability other than from fire shall arise from the joint or concurring negligence of both parties hereto, it shall be borne by them equally.”

It is argued that Gulf, Colorado & Santa Fe Railway Company was found guilty of negligence in the case brought by Simpson against it, and therefore the liability sued upon in this present case arose from the joint or concurring negligence of both parties and should be borne by them equally. However, a part of paragraph 6 of such agreement is as follows:

“6. That it will at all times keep a space of six (6) feet from the nearest rail of any railroad track entirely clear of structures, material and obstructions of every sort. * * * In case of a breach of these obligations, or any of them, the Industry assumes and agrees to indemnify the Railway Company against all liability for loss, damage, injury and death arising therefrom and to reimburse the Railway Company for any sums which the Railway Company may have been required to pay in the way of damages, fines, penalties or other expense resulting from the violation by the Industry of any statute or order as aforesaid.”

The prior case of Simpson against Gulf, Colorado & Santa Fe Railway Company established the facts that negligent acts of Gulf, Colorado & Santa Fe Railway Company proximately caused the injuries to Simpson. The findings of the jury in the present case in response to issues 2, 3 and 4 established the facts that Ealand-Wood Lumber Company either did or failed to do certain acts. Findings of negligence and proximate cause as to such acts or omissions would bring this case under paragraph S of the agreement above set forth, and Gulf, Colorado & Santa Fe Railway Company would be entitled to contribution from Ealand-Wood Lumber Company.

The finding of the jury in response to issue No. 5 that the bottom tread on the steps was within 4 feet of the nearest rail brought this case within the provision of paragraph 6 of the agreement set out above which required 6 feet of clearance. A finding by the jury that Simpson’s injuries “resulted from” the breach of such obligation on the part of Ealand-Wood Lumber Company if supported by the evidence would bring this case within the terms of paragraph 6 of the agreement and complete indemnity would result.

No point is made in this court complaining of special issue No. 11 which related to proximate cause. Even though this issue is worded in such a manner that it might be interpreted in two ways, neither the parties nor the trial court found any difficulty in this method of submission. The findings by the jury if supported by the evidence that Ealand-Wood Lumber Company had violated the terms of the agreement with Gulf, Colorado & Santa Fe Railway Company as provided by paragraph 6 and that such violation proximately caused the injuries to Simpson were properly the basis for the judgment of the trial court for indemnity. The findings in the previous case that Gulf, Colorado & Santa Fe Railway Company was guilty of certain acts of negligence proximately causing the injuries to Simpson do not preclude Gulf, Colorado & Santa Fe Railway Company as a matter of law from recovery in this action on the written contract between them. Mitchell’s, Inc. v. Friedman, 157 Tex. 424, 303 S.W.2d 775; Houston & T. C. R. Co. v. Diamond Press Brick Co., 111 Tex. 18, 222 S.W. 204, 205.

It is next contended that there was no evidence to support the finding of the jury that the proximity of the steps to the rail was of proximate cause of the accident in question.

In passing upon this “no evidence” point we consider only the evidence favorable to such finding. The jury found that the bottom tread of the steps from the planer mill shed was within 4 feet of the nearest rail of the spur track. No complaint is made as to this finding. The written agreement between the parties provided in paragraph 6, as set forth above, that a space of 6 feet from the nearest rail would be kept clear of all structures, material and structures of every sort. Ealand-Wood agreed to indemnify the Railway Company against all liability arising from a breach of this obligation.

The witness McQueen, employee for Ealand-Wood Lumber Company, testified that he did not see Simpson when he was struck and did not remember any evidence that Simpson had been drug. The witness Yoksh, conductor for Gulf, Colorado & Santa Fe Railway Company, did not see Simpson go in or come out from under the planer mill shed. The witness Stott did not know where Simpson was when he was struck by the train as he did not see him until after the accident. Stott estimated Simpson was 50 feet south of the steps when he saw him after the accident. Stott said there was some evidence that something had been drug the last few feet before the train stopped, but none in the vicinity of the hammer-hog. Simpson was the only other witness to testify who was present at the time of the accident. Simpson testified he had been to the hammer-hog under the planer mill shed, and when he first came out and raised up he was struck by the train. He said the place he was struck was 37 or 37½ feet from the steps. The testimony given by Simpson that it was his intention to go back to the steps and go up them into the planer mill shed is not enough to connect the steps with the accident. We find no evidence to support this finding of the jury.

We now encounter the problem as to whether a violation of paragraph 7 of the agreement would entitle Gulf, Colorado & Santa Fe Railway Company to recover contribution or indemnity. Paragraph 7 reads as follows:

“7. That it will adopt and enforce suitable rules and regulations for the protection of its employees and others while working in or on cars or on or near The Track, and will require such employees and others to notify, by proper signals or flags, the employees of the Railway Company that they are in or on cars or on or near The Track.”

It is noted that this paragraph makes no mention of either contribution or indemnity. The answers of the jury to special issues Nos. 6 and 7 found that Ealand-Wood Lumber Company violated both parts of this paragraph in failing to adopt safety rules and regulations and failing to require its employees to notify by signals or flags the employees of the Railway Company that they were on or near the spur track. No complaint is made as to these findings.

In construing this contract, we have been guided by the law as stated in Mitchell’s, Inc. v. Friedman, 157 Tex. 424, 303 S.W.2d 775. We have applied the ordinary rules of construction in order to ascertain the intention of the parties. In paragraph 5 it is stated that any liability other than from fire arising from the joint or concurring negligence of both parties should be borne by them equally. Paragraph 7 states specific standards of conduct that Ealand-Wood Lumber Company was compelled to comply with. We construe the failure to comply as constituting acts of negligence which when considered with acts of negligence on the part of Gulf, Colorado & Santa Fe Railway Company resulted in liability, resulted in the claim being borne by them equally. If it had been the intention of the parties that these violations result in indemnity, we think they would have been listed in paragraph 6 together with the space requirements. We think the parties must have intended their obligations relating to indemnity should be defined by the paragraph which specifically referred to that subject. Booth-Kelly Lumber Co. v. Southern Pacific Co. (9th Cir.), 183 F.2d 902, 20 A.L.R.2d 695.

The judgment of the trial court is reformed to permit Gulf, Colorado & Santa Fe Railway Company to recover from Ealand-Wood Lumber Company contribution in the sum of one-half, as follows, the sum of $12,519.94, together with interest on $10,306.94 thereof at the rate of 6% per annum from June 22, 1960 until paid, and interest on the remainder of $2,213.00 at the rate of 6% per annum from October 12, 1960 until paid.

Reformed and affirmed.


source: Caselaw Access Project

author: CHAPMAN, Justice.

license: Public Domain

text:
    CERTAIN-TEED PRODUCTS CORPORATION, Appellant, v. Allen L. BELL et ux., Appellees.
    No. 7663.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 12, 1966.
    Rehearing Denied Jan. 30, 1967.

      Folley, Snodgrass, Calhoun & Kolius, Amarillo, V. G. Kolius, Amarillo, of counsel, for appellant.
    Monning & Monning, Amarillo, Robert R. Bradshaw, Amarillo, of counsel, for ap-pellees.
   CHAPMAN, Justice.

This is an appeal by Certain-Teed Products, Inc., a Maryland corporation with the right to do business in Texas, and which had merged with the Institute for Essential Housing, a New Jersey corporation, from a judgment based upon a jury verdict for Allen L. Bell and wife, Gladys Bell. On April 6, 1961, the Bells entered into a written contract with Institute for Essential Housing for construction on Lots Nos. 19 and 20 in Block No. 55 in University Heights Addition to the City of Amarillo, an “I.E.H.” home, Model No. “Cherry Hill,” perimeter type foundation, ceiling height eight feet, completed, material package No. 1 for the consideration of $10,844.23.

About June 1, 1961, the Bells moved into the house and began to notice defects in the construction the latter part of that month. Some of the poor workmanship was corrected after complaints were made but much of it was not, under the contention made by appellees. Appellant refused to make any more corrections so appellees referred the case to their attorneys in November 1961. Suit was not instituted until November 1964, thus presenting the troublesome question as to whether the cause asserted is barred by the two-year statute of limitations, Article 5526,'Texas Revised Civil Statutes, or if the four-year statute, Article 5527, Texas Revised Civil Statutes is applicable.

Appellees pleaded that they entered into a contract with I. E. H. whereby it agreed to furnish all labor and material to construct upon their described lots “ * * * and in accordance with certain plans and specifications agreed upon by the parties the following improvements:

I. E. H. Home — Model known as Cherry Hill, with 8'0" ceiling, peremtter type foundation, completed to finish stage

all of which appears from the written contract between the parties, a copy of which is attached hereto and marked Exhibit “A” and made a part hereof.” The only written contract attached is a mechanic’s lien contract and deed of trust and the only plans and specifications recited therein are those described in the indenture of this paragraph.

Appellees then pleaded that the house was not constructed in a good and workman-like manner in thirteen particulars, the following eight of which were submitted to the jury:

“1. Were the hardwood floors laid in a good and workman-like manner ?
“2. Were part of the sheetrock walls not finished in a good and workman-like manner ?
“3. Were some of the windows in the house not installed in a good and workman-like manner ?
“4. Was the kitchen sink cabinet constructed in a good and workman-like manner ?
“5. Were some of the baseboards not constructed in a good and workman-like manner ?
“6. Was the linen closet in the bathroom not constructed in a good and workman-like manner?
“7. Was the painting on the outside of the house done in a good and workman-like manner ?
“8. Was the weather stripping on some of. the doors and windows not done in a good and workman-like manner?”

The jury’s answers were favorable to appellees in all eight replies and an amount of damage assessed in each, totaling $1,-333.25. In the motion for judgment non obstante veredicto the trial court eliminated the $92 item for correcting the kitchen sink cabinet because of lack of proof of the amount required for correction and rendered judgment for $1,241.25. It is from such judgment that appellant perfected its appeal to this court upon five points of error, the first of which contends that ap-pellees’ suit on an implied contract to build the house in a good and workmanlike manner is barred by the two-year statute of limitation.

Appellant admits by brief that the case was tried upon the theory of implied warranty but takes the position (1) that since there were no written plans and specifications attached to the contract, it was partly oral and partly written and the two-year statute of limitations applies, and (2) suits to enforce implied warranty are governed by the two-year statute of limitations.

We recognize the rule that a contract partly in writing and partly oral is in legal effect an oral contract, Cannaday v. Martin, 98 S.W.2d 1009 (Tex.Civ.App.— Amarillo, 1936, writ dism’d); Railway P. & F. Conductors’ Mut. Aid & Ben. Ass’n v. Loomis, 142 Ill. 560, 32 N.E. 424, 426 (1892), but that is not the exact question we have under consideration here.

We also concede that suits to enforce implied warranties are governed by the two-year statute of limitation unless the breach of the implied warranty grows out of a written instrument, not remotely but immediately, or if the written instrument acknowledges a state of facts from which, by fair implication, the obligation or liability arises.

Appellees’ position is that the contract sued upon is in writing and that the defects listed in their petition are not referred to therein as being deviations from plans and specifications, but deviations from an implied warranty of construction in a good and workman-like manner. It is true they allege I. E. H. agreed to construct upon their lots, “ * * * in accordance with certain plans and specifications, the following improvementsbut the only plans and specifications or improvements mentioned were those above described. The trial court was careful not to admit any testimony concerning specific plans and specifications or specific descriptions of the model house appellees had observed between Odessa and Midland that prompted them to build the one in question. Appellees then allege in Paragraph' 4 of their Second Amended Original Petition upon which they went to trial that the house was not constructed in a good and workman-like manner.

It was stipulated into the record that no written plans and specifications were attached to the contract but counsel for appellant refused to stipulate appellant did not have plans and specifications for the house. He only stipulated that he did not have such plans and specifications in his possession. Mr. Bell testified that when he observed the back door was in the wrong place he asked for the plans and, “They always tell me, ‘Well, its over to the office or over to the next building’ they were building.” He testified he requested the plans and specifications ten or fifteen times but never received them. He did start to testify at one time to the location of the back door in the original house plan he looked at but appellant objected and the court sustained the objection.

It has been held that regardless of the primary obligation to perform the work in accordance with the specifications, the contractor is under the implied obligation to perform such work as he does in a workman-like manner. Metropolitan Casualty Co. of New York v. Medina Rural High School Dist. No. 5, 53 S.W.2d 1026 (Tex. Civ.App. — San Antonio, 1932, writ dism’d). In this connection see also Lincoln v. Pohly, 325 S.W.2d 170 (Tex.Civ.App. — Texarkana, 1959, ref. nre); Garlitz v. Carrasco, 339 S.W.2d 92 (Tex.Civ.App. — El Paso, 1960, ref. nre); New Home Construction Corporation v. O’Neill, 373 S.W.2d 798 (Tex. Civ.App. — Dallas, 1963, ref. nre). In the latter case appellant there had claimed ap-pellees’ cause of action was based solely upon-breach of a written contract to construct his house in accordance with a written warranty, while appellee contended his petition also asserted a cause of action for defects in construction. The Dallas Court of Civil Appeals said:

“We pause here to point out that nonconformity to plans and specifications is one thing; defects in material and workmanship constitute another thing. A house may be well built in all particulars, yet not be constructed in conformity with plans and specifications. On the other hand a house may conform to plans and specifications yet may eventually disclose defects • in construction.”

We feel these cases cited and quoted from establish the principle of implied warranty for good and workman-like construction required of the builder regardless of whether there are written specifications, but as heretofore stated, the troublesome question is whether the two-year statute of limitation applies.

No case has been cited nor have we found one directly in point under facts such as we have in the instant case, but we believe the Supreme Court of Texas has announced some general principles applicable. In the case just cited it was contended that even though the constitution and by-laws of the Pressmen’s Union constituted a written contract between the Union and an expelled member they did not contain any promise to do the things for the non-performance of which the suit was brought and therefore the suit was not “ ‘ * * * one for debt where the indebtedness is evidenced by or founded upon any contract in writing,’ ” as provided for in our four-year statute of limitation, Article 5527. Our Supreme Court held:

“ * * * it is not indispensable that the written instrument relied upon contain an express promise to do the things for the nonperformance of which the action is brought. It is sufficient if the obligation or liability grows out of a written instrument, not remotely but immediately, or if the written instrument acknowledges a state of facts from which, by fair implication, the obligation or liability arises.”

In passing upon the question of whether the two or four-year statute of limitation applied on account of the failure to develop the premises in an oil and gas lease the Eastland Court of Civil Appeals held:

“It is the settled law of this state that, upon acceptance of the lease involved in this case, it became appellant’s duty, upon the discovery of oil and gas in paying quantities, to develop the premises diligently for the purpose of producing such oil and gas if same could be developed profitably to appellant. * * *
“This obligation was in the minds of the parties and became a part of the written contract. The law is a part of every contract. The obligation to develop was therefore a written obligation, although not definitely expressed. * * *
‡ ‡ ‡ ‡ ‡ ⅛
“Appellant insists that the implication to develop arises only after the exploratory or test well had been drilled; that it is an implication of law and not -of fact, and is governed by the two-year statute of limitation, because not in writing. We cannot agree to this contention. We believe the implication to develop after drilling the exploratory well is a part of the written contract and is governed by the four-year statute of limitation. This element of damages was pleaded in the original and first amended petitions and is not barred by limitation.”

In a very recent annotation in 1 A.L.R. 3rd 914 (1965) under a title covering the very subject we are discussing the text writer at p. 917, sec. 3 said:

“Thus, in an action for breach of an implied warranty in the performance of a written contract, it has been held that the warranty is implied into the writing, and that the statute governing written contracts applies.”

There is an abundance of evidence from a building contractor that in many instances the house was not constructed in a good and workmanlike manner. The floors buckled from lack of proper nailing; the kitchen cabinets had to be sawed into and part of them placed on each side of the back door because the door was not hung in the proper place to keep it from bumping the cabinets; the weather stripping was so poorly constructed that when it rained the water came through the windows on the north and ran down onto the floor; the doors were so improperly weather stripped that the wind whistled through them; the kitchen sink was six or seven inches too low and the drain from the sink leaked because it was too short for proper drainage; the sheetrock was not properly perfataped; no linen closet was built at completion and when complaint was made half the closet in the bedroom was taken to make the linen closet, which even then was improperly constructed; and the paint on the outside of the house slaked off the first month. There is some testimony to the contrary with respect to part of the construction but in considering the motion for judgment notwithstanding the verdict all testimony must be considered in a light most favorable to the party against whom the motion is sought and every reasonable intendment deducible from the evidence is to be indulged in such party’s favor. Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547 (1962); Texas Employers Ins. Ass’n v. Smith, 235 S.W.2d 234 (Tex.Civ.App. — Galveston, 1950, writ ref’d).

We are not unmindful of the many cases cited and argued by appellant, but believe none of them announced rules applicable to the instant case. For example) appellant cites and relies upon Cannaday v. Martin, supra, in which a part of the contract to construct a building was in writing and part oral. We are quite familiar with that case and do not consider it applicable to the theory upon which the instant case was tried. There the only description whatever of the building forming the basis for damages for failure to construct a commercial building on Lot 13, Block 85 in Floydada was an oral agreement. Recovery was sought on that oral agreement as part of a written agreement whereby the Cannadays sold the Martins Lots 14, 15 and 16 and constructed a commercial building thereon. The theory of damages was that failure to construct a building by the Can-nadays on Lot 13 reduced the value of the Martin building, the contract for the construction of which was in writing. The contract forming the basis of recovery there was clearly partly oral, whereas, in our case recovery was sought and allowed on an implied warranty of construction in a good and workman-like manner for that which was constructed under the written contract providing for a finished house. Stated another way, the action here is for damages for failure of appellant to do the things impliedly imposed upon it by the written contract. All rights for which ap-pellees seek redress arose by virtue of the agreement between the parties, which was a contract in writing. Article 5527, the four-year statute of limitations, includes “ * * * actions for debt where the indebtedness is evidenced by or founded upon any contract in writing * * * ”

“It is settled that the term ‘action for debt’ as used in the above article [Art. 5527] includes all suits brought to recover money without regard to any technical distinction between debt and damages.” Miller v. Kountze Corporate School Dist., 54 S.W.2d 344 (Tex.Com.App.1932).

The contractor used as a witness by ap-pellees, Mr. Staloch, testified in effect that regardless of the price range of the home, the type workmanship he testified about in the Bell house was not done in a good and workman-like manner. In speaking of the different price range homes he said of the workmen: “If they do good work on a high price, as we are talking about houses in a certain price as compared with houses in a lower price range, I would think they would do the same kind of work on one as they would on another.” The testimony here shows the carpenters had some of their ten, eleven and twelve year old boys working on the house. When Mr. Bell complained he was told they were short handed and those were the people they had to work.

Under the theory upon which the case was tried, and the authorities cited, we hold the two-year statute of limitations was not applicable.

The next two points concern the submission of Special Issue No. 11 to the effect that appellees had actual knowledge of the defects before entering into possession of the premises. The jury found the Bells signed the “Certificate of Acceptance” but in Special Issue No. 11 found that at.the time of signing the instrument they neither knew nor should they have known of the defects in the construction. The points as presented constitute “no-evidence” points, so it is academic that if there is more than a scintilla of probative evidence to support the issue the points are without merit.

Mr. Bell’s evidence shows he observed the incorrect placement of the door during construction, so the trial court refused to submit an issue on that part of the poor workmanship. He also noticed the carpenters were placing several boards in the floor without nailing them and then would nail the outside of a group of boards. When he questioned them they told him that was a new way of putting the floors down. Not being a carpenter, we do not believe he would be bound by knowledge of lack of good and workman-like manner of construction concerning the floors until they buckled, which was subsequent to signing the instrument. The same would be true concerning the weather stripping on the doors and windows, latent defects. A different situation exists as to the back door, the kitchen sink, and cabinets, but since recovery was not allowed on them, those defects are not material. Mr. Bell admitted he complained during construction about not having a linen closet in the bathroom but his recovery was for lack of construction in a good and workman-like manner of the one then constructed. He then testified those items were the only ones he noticed during the construction of the house. The jury had the right to believe him. Considering the record as a whole, we believe there is probative evidence to support the issue as to the items upon which the court allowed recovery. It has been textually stated that: “An express or implied acceptance of work as in compliance with a building contract operates as a waiver of defective performance, but this rule is inapplicable where the acceptance was under protest * * * or where the defects were latent and unknown to the owner.” * * * “An acceptance must be voluntary in order to constitute a waiver, and an acceptance under protest is not a waiver.” 17A C.J.S. Contracts § 514 (2) a, pp. 840, 842. (Emphasis added).

The Texarkana Court of Civil Appeals has held that even though the owners of the home upon which improvements were made signed an affidavit that the work of the contractors was completed to their satisfaction, they were not estopped from later setting up a cross-action for defective work. Clem Construction Co. v. Parker, 272 S.W. 228 (Tex.Civ.App. — Texarkana, 1925, no writ). The points are overruled.

The next two points assert error of the court in receiving a verdict based upon Special Issues 1, 4 and 6 because they were answered by the jury in a sum of money not supported by the evidence and for permitting Mr. Staloch to testify that “profit” was an element of appellees' damages. We believe there is merit to appellant’s contention on these points.

Appellees’ expert witness, Mr. Staloch, testified it would cost $400 to correct the floors and the jury allowed $500. He testified it would take $60 to $75 to correct the linen closet and the jury allowed $86.50. He testified it would cost $200 to $250 to paint the house and the jury allowed $287.50. It is true he later testified that a contractor “as such” would probably add ten to fifteen per cent to that amount. He did not say a carpenter would do so, and we do not believe appellant would be bound to send a contractor to correct the construction. Therefore, there is no evidence to support the amount the jury awarded in these three instances.

Accordingly, the judgment of the trial court is reversed and remanded unless ap-pellees within ten days from the date of announcement of this opinion file their re-mittitur in the sum of $149. If they do so within such time, the judgment of the trial court will be affirmed with the judgment reduced to the amount of $1,092.25.

      . Institute for Essential Housing.

      . International Printing Pressmen and Assistants’ Union, etc. v. Smith, 145 Tex. 399, 198 S.W.2d 729 (1947).

      . Texas Pacific Coal & Oil Company v. Stuard, 7 S.W.2d 878 (Tex.Civ.App. — Eastland, 1928, writ ref’d).


author: PARKER, Justice.

text:
    HARMS MARINE SERVICE, INC., Appellant, v. Eugene SWIERE, Appellee.
    No. 6842.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 29, 1966.

    Rehearing Denied Jan. 25, 1967.

      Eastham, Watson, Dale & Forney, Houston, Feagin W. Windham, Orange, for appellant.
    John L. Fulbright, Beaumont, John T. Lindsey, Port Arthur, for appellee.
   PARKER, Justice.

Eugene Swiere sued Harms Marine Service, Inc., for (1) damages under the Merchant Marine Act of 1920, commonly referred to as the Jones Act, (2) maintenance and cure under the General Admiralty Law, and (3) damages for failure to pay maintenance and cure, also under the General Admiralty Law. Trial was to a jury with the jury findings favorable to the plaintiff on his cause of action for damages under the Jones Act and judgment for the defendant notwithstanding the jury verdict on plaintiff’s causes of action for maintenance and cure, and damages for failure to pay maintenance and cure. For clarity, the parties will be designated as in the trial court.

Defendant has filed a motion to dismiss the appeal of plaintiff, Eugene Swiere. The date of the judgment is August 25, 1965. Plaintiff filed no motion for new trial, but filed his notice of appeal on September 7, 1965. Plaintiff did not file his appeal bond until November 17, 1965. Thus plaintiff failed to perfect his appeal because he did not file his appeal bond within 30 days after the date of the judgment. Rule 356, Texas Rules of Civil Procedure, Neuhoff Bros. Packers v. Acosta, 160 Tex. 124, 327 S.W.2d 434 (1959). Defendant filed its motion for new trial on September 3, 1965 and filed its amended motion for new trial on September 23, 1965. The latter was overruled on October 27, 1965. On November 5, 1965 defendant filed notice of its intention to appeal to this court from that portion, and only that portion, of the judgment “heretofore entered in the cause against it and in favor of plaintiff.” Thereafter, on November 9th attorneys for defendant certified on such date they had mailed copies of notice limiting the appeal of defendant to attorneys for plaintiff, which certificate of service was filed November 10, 1965. Defendant thereby complied with new Rule 353(c), T.R.C.P., which for the first time required service of notice of limiting an appeal. Defendant filed its appeal bond on November 11, 1965. Transcript and statement of facts were filed December 27, 1965.

Under Rules 356(a), 306c and 353 (c), T.R.C.P., plaintiff continued to have the burden of perfecting his own appeal. The pendency of defendant’s motion for new trial did not have the effect of extending plaintiff’s time for filing his appeal bond. Neither did the amendments of the above rules have that effect. The appeal of plaintiff is dismissed for want of jurisdiction. This court limits itself to considering defendant’s appeal including briefs and arguments of plaintiff in response thereto.

In granting judgment for the defendant notwithstanding the jury verdict on all causes of action asserted by plaintiff other than that cause of action under the Jones Act, the trial court found there was no evidence to justify a jury finding for the plaintiff on any of the issues quoted below with the answers of the jury to each:

“Special Issue No. 11. Do you find from a preponderance of the evidence that the Plaintiff’s said injury has not reached the point where medical science can do nothing further in the way of curing said injury?
Answer ‘yes’ or ‘no’.
Answer Yes
“Special Issue No. 12. On what date do you find from a preponderance of the evidence, did the Plaintiff’s said injury reach the point where Medical Science could do nothing further in the way of curing said injury?
Answer by Month, Date, and Year.
Answer:_
If you have answered Special Issue No. 1 ‘yes’ then you will answer the following Special Issue, otherwise do not answer it.
“Special Issue No. 12-A. What sum of money per day, do you find from a preponderance of the evidence, if any, did the Plaintiff spend for food and lodging or incur liability for, during the period of time from the date of such injury to the date of this trial?
Answer in dollars and cents.
Answer $4.00 per day
If you have answered Special Issue No. 1 ‘yes’ then you will answer the following Special Issue, otherwise do not answer it.
“Special Issue No. 12-B. Do you find from a preponderance of the evidence that the Plaintiff’s said injury was aggravated or prolonged as a proximate result of the Defendant’s failure to pay maintenance and cure?
Answer ‘yes’ or ‘no’
Answer Yes
“Special Issue No. 22. What sum or money, if any, if now paid in cash, would fairly and justly compensate the Plaintiff for the aggravation or prolongation, if any, of the injuries, if any, that he suffered as a proximate result of the Defendant’s failure to pay maintenance and cure, taking into consideration the following elements and none other:
(1) Wages, if any, from the date of the injury to the date of the trial hereof, and such wages, if any, that will probably be lost in the future as the result of such failure;
(2) Mental and physical pain and suffering from the date of such injury to the date of trial and such mental pain and suffering, if any, which the Plaintiff will in all probability suffer in the future as the result of such failure; and
(3) Reasonable attorney’s fees incurred by the Plaintiff in bringing this action which were incurred as a result of such failure.
Answer in Dollars and Cents, if any.
Answer: Elements (1) and (2): $10,-500,00
Answer: Element (3): $2,500.00.”

Defendant contends that the submission of such issues constituted a gross comment on the evidence in the case with each issue containing one or more comments on the evidence. Under Rule 279, T.R.C.P., these issues should not have been submitted. Defendant objected to their submission of such issues. After the jury returned its verdict, defendant moved for judgment notwithstanding the verdict of the jury of plaintiff’s causes of action. The court granted such motion as to all causes of action except plaintiff’s cause of action under the Jones Act, with judgment rendered and entered accordingly. Since there was no evidence justifying the submission of such issue or any of its component parts, it was error to have submitted it to the jury but harmless error.

Defendant’s 2nd point of error is:

“The Plaintiff failed to request and the Trial Court failed to submit, jury issues or instructions on the element of foreseeability of harm, an essential element of a Jones Act cause of action.”

There is no evidence and no finding by the jury that the vessel of defendant was unseaworthy. Such being true, reasonable foreseeability of harm is an essential ingredient of negligence under the Jones Act as it is under an F.E.L.A. cause of action. The legal standards are the same. The burden is upon the plaintiff to obtain findings on such necessary element of foreseeability of harm. Gallick v. Baltimore & O. Ry. Co., 372 U.S. 108, 83 S.Ct. 659, 9 L.Ed.2d 618 (1963); Pittsburg Steamship Co. v. Palo, 64 F.2d 198; Swain v. Mississippi Val. Barge Line, 3 Cir., 244 F.2d 821; Lieberman v. Matson Navigation Co., 300 F.2d 661 (9th Cir. 1962); Tiller v. Atlantic Coast Line, 318 U.S. 54, 67, 63 S.Ct. 444, 87 L.Ed. 610, 617; Brady v. Southern Ry. Co., 320 U.S. 476, 484, 64 S.Ct. 232, 88 L.Ed. 239, 245; In-man v. Baltimore & O. Ry. Co., 361 U.S. 138, 140, 80 S.Ct. 242, 4 L.Ed.2d 198, 200.

In the charge of the court “negligence”, “ordinary care” and “proximate cause” are defined as follows:

“By the term ‘negligence’, as used in this charge, is meant a failure to do that which a person of ordinary prudence in the exercise of ordinary care would do under the same or similar circumstances, or the doing of that which a person of ordinary care would not do under the same or similar circumstances.
“By the term ‘ordinary care’, is meant that degree of care which would be exercised by a person of ordinary prudence under the same or similar circumstances.
“By the term ‘proximate cause’, as used in this charge, is meant a cause which in a natural and continuous sequence produces an event and without which the event would not have occurred; and to be a proximate cause of an event, it should have been reasonably anticipated and foreseen by a person of ordinary care and prudence, in the exercise of ordinary care, that the event or some similar event would occur as a natural and probable consequence. There may be more than one proximate cause of an event.”

Special Issues 1-10, and the jury answers are as follows:

“SPECIAL ISSUE NO. 1 — Do you find from a preponderance of the evidence that the Plaintiff, EUGENE SWIERE, was injured in the course of his employment by the Defendant, Harms Marine Service, Inc., as a seaman aboard the Tug “Chris Harms”, on June 12, 1959?
Answer ‘yes’ or ‘no’
Answer: Yes
If you have answered Special Issue No. 1 ‘yes’, then you will answer the following special issue, otherwise do not answer it:
SPECIAL ISSUE NO. 2 — Do you find from a preponderance of the evidence that Capt. J. C. Duhon failed to warn the Plaintiff that the coil of welders or jumper cable being thrust up through the manhole on the occasion in question weighed approximately 150 lbs?
Answer ‘yes’ or ‘no’
Answer: Yes
If you have answered Special Issue No. 2 ‘yes,’ then you will answer the following Special Issue, otherwise do not answer it.
SPECIAL ISSUE NO. 3 — Do you find from a preponderance of the evidence that such failure on the part of Capt. J. C. Duhon was negligence as that term is herein defined?
Answer ‘yes’ or ‘no’
Answer Yes
If you have answered Special Issue No. 3 ‘yes’, then you answer the following Special Issue, otherwise do not answer it.
SPECIAL ISSUE NO. 4 — Do you find from a preponderance of the evidence that such negligence played a part in producing the Plaintiff’s injuries?
Answer ‘yes’ or ‘no’
Answer Yes
If you have answered Special Issue No. 1 ‘yes’, then you will answer the following Special Issue, otherwise do not answer it.
SPECIAL ISSUE NO. 5 — Do you find from a preponderance of the evidence that Capt. J. C. Duhon failed to use the davit and electric capstan as a means of removing the coil of welding or ‘jumper’ cables from the hold of the tug “Chris Harms”, on the occasion in question?
Answer ‘yes’ or ‘no’
Answer Yes
If you have answered Special Issue No. 5 ‘yes’, then you will answer the following Special Issue, otherwise do not answer it.
SPECIAL ISSUE NO. 6 — Do you find from a preponderance of the evidence that such failure was ‘negligent’ as that term is herein defined?
Answer ‘yes’ or ‘no’
Answer No
If you have answered Special Issue No. 6 ‘yes’ then you will answer the following Special Issue, otherwise do not answer it.
SPECIAL ISSUE NO. 7 — Do you find from a preponderance of the evidence that such negligence played a part in producing the Plaintiff’s injuries?
Answer ‘yes’ or ‘no’
Answer-
If you have answered Special Issue No. 1 ‘yes’, then you will answer the following Special Issue, otherwise do not answer it.
SPECIAL ISSUE No. 8 — Do you find from a preponderance of the evidence that Capt. J. C. Duhon failed to tell the Plaintiff to get another seaman to help him lift the coil of welding or jumper cables up through the manhole on the occasion in question?
Answer ‘yes’ or ‘no’
Answer Yes
If you have answered Special Issue No. 8 ‘yes’, then you will answer the following Special Issue, otherwise do not answer it.
SPECIAL ISSUE NO. 9 — Do you find from a preponderance of the evidence that such failure was ‘negligence’ as that term is herein defined?
Answer ‘yes’ or ‘no’
Answer Y es
If you have answered Special Issue No. 9 ‘yes’, then you will answer the following Special Issue, otherwise do not answer it.
SPECIAL ISSUE NO. 10 — Do you find from a preponderance of the evidence that such negligence played a part in producing the Plaintiff’s injuries?
Answer ‘yes’ or ‘no’
Answer Yes”

The phrase “proximate cause” or its equivalent is not used in any Special Issue.

In defendant’s objection to the court’s charge, it objected to Special Issue No. 4 on the ground that “same does not submit the issue on the grounds of proximate cause, but rather inquires 'whether the negligence, if any, of Captain Duhon played a part in producing the plaintiff’s injuries which is an improper definition and a comment and improperly apprises or confuses the jury because there is no definition of ‘played a part’.” Defendant’s motion for new trial asserted the same errors in many ways.

We agree with defendant’s argument that “an act may ‘play a part in producing’ ” an injury without the possibility of harm being foreseeable. To hold a party liable for any consequences of an act, without regard to whether or not such consequences were reasonably foreseeable, makes that party absolutely liable for every factually connected consequence of the act, and does away with the “reasonable standard of care”.

Whether or not such error probably caused the rendition of an improper judgment under the plaintiff’s Jones Act severed cause of action is now considered.

Both plaintiff Swiere and Duhon were employed by defendant, Harms Marine Service, Inc. Each had many years of experience in this line of work. At the time of this accident Duhon was captain of the tugboat “Captain Chris Harms”. Swiere was in charge of the tugboat “Golden Eagle”. On the day in question Duhon went in a pick-up truck to the “Captain Chris Harms” in Cow Bayou to determine what to keep on his tugboat, sorting out all else to be transferred to the “Golden Eagle”. Plaintiff was ordered to take the “Golden Eagle” to where the “Captain Chris Harms” was docked and transfer the salvage material from Duhon’s tugboat to the “Golden Eagle”. The only issue raised by the evidence was whether or not Captain Duhon was negligent in failing to warn the plaintiff of the weight of coil of electric cable, if the coil was of such weight that one man could not safely lift it. Plaintiff took his tugboat alongside the other tugboat. He had his crew with him. Plaintiff rigged a capstan and davits to handle equipment too heavy to lift manually from the hold of the “Captain Chris Harms”. Captain Duhon was in the hold of his tugboat. Swiere testified the work on the main deck of the “Captain Chris Harms” was done by his own crew, acting solely under his direction. The plaintiff used his own discretion in deciding the methods to be used in transferring the material. He rigged the capstan and used it in transferring a large heavy towing hawser on his own initiative. The evidence is conflicting as to the weight of the cable — defendant’s evidence was that it weighed less than 100 pounds and that it was thrust upwards through a manhole 2 feet in diameter in the main deck by Captain Duhon in the hold. Plaintiff’s evidence was that two men, Captain Duhon and a deck hand Michon were below and two men were required to pick up the coil of electric cable to hoist it through the manhole to the plaintiff and crewmembers on the main deck. This electric cable had a rubber coating and was coiled. Captain Duhon could not see how the work was being done on the main deck, or how many men on the deck were lifting the material. The manner of doing this work was left to the plaintiff who had at least two men there subject to his orders. When the coil of wire was thrust through the manhole, plaintiff put his arm through the loop, pushing upward from below continuing until the coil was above deck. When it was turned loose by him or them below, plaintiff testified that for the first time he realized it was heavy. At this time he felt a stinging pain. From birth, plaintiff had an umbilical hernia. On this day plaintiff sustained a right inguinal hernia. His explanation for not using men to assist him was that he thought the coil of wire was a garden hose.

Swiere further testified:

“Q You are claiming that the only thing that they did wrong which caused you to have this hernia is that if Captain Duhon had told you how heavy this cable was, you would have suggested taking the davit and picking it up with the davit and setting it on deck, isn’t that right?
A Right.
Q And you are not claiming they did anything else wrong, are you?
A Not that I know of.
Q That caused your injury in any way?
A Except fail to tell me that it was heavy.”

Plaintiff admitted that Capt. Duhon below deck could not know how many were working on deck or how plaintiff had organized the men because Duhon could not see on the top deck unless he stuck his head through the manhole.

Swiere testified:
“Q So there was no way he could know whether you had three men grabbing it, or four or two?
A No.”

Plaintiff’s position is that if there is any requirement that there be a finding on foreseeability such requirement was satisfied by the jury’s answer to Special Issue No. 21, finding that the plaintiff had sustained damages in the amount of $10,500.00 as a proximate result of the defendant’s negligence. By this answer plaintiff contends the jury “necessarily found that the plaintiff’s injuries and damages were the foreseeable result of the defendant’s negligence.” Proximate result does not encompass foreseeability on the part of the person who was negligent.

Examining the record as a whole, the error complained of in defendant’s (appellant’s) second point of error is 'Sustained, this court finding it probably did cause the rendition of an improper judgment.

Defendant’s first point of error is as follows:

“The Trial Court erred in submitting to the jury Special Issue No. 2 inquiring whether ‘Captain J. C. Duhon failed to warn the Plaintiff that the coil of welders or jumper cable being thrust up through the manhole on the occasion in question weighed approximately 150 lbs. ?’, over the objection of the Defendant that the weight of the coil was a disputed and critical issue, and that the issue, as submitted, was a comment on the weight of the evidence, assumed a fact in issue, and deprived the Defendant of a jury trial on this vital point. This comment on the evidence contaminated the entire charge, since it was tantamount to an instruction that the testimony of the Defendant’s witness should not be accepted, and that the testimony of the Plaintiff’s witness that the coil weighed 150 or more pounds was true.”

Plaintiff claimed that he strained himself lifting a too heavy object. The testimony as to weight was diametrically opposed as hereinbefore stated in this opinion. The issue as phrased was a comment on the evidence, and substantially an instruction to the jury that the plaintiff’s evidence should be believed. Such comments are prohibited by Rule 272, T.R.C.P. The point of error is sustained.

Defendant’s third point of error is as follows:

“The Court erred in submitting to the jury Special Issues No. 8 and 9, because such issues were not controlling or ultimate issues, and they constituted a comment by the court on the weight of the evidence.”

Special Issue No. 8 assumes that Capt. Duhon had the duty to tell plaintiff to get another seaman to help him lift the coil of cable and further assumes that Capt. Duhon had the duty to tell plaintiff to take such action. Plaintiff had testified under oath that the only negligence, if any, of the Defendant Capt. J. C. Duhon was in failing to warn him of the weight of the cable. Such issues 8 & 9 should not have been submitted. Also, according to plaintiff’s own testimony, the plaintiff was in charge of the work on the main deck of the “Captain Chris Harms”. The point of error is sustained.

Defendant’s other point of error (5th point) as to the refusal of the trial court to admit into evidence for impeachment purposes certain abandoned pleadings is without merit and overruled.

The judgment of the trial court denying any recovery by plaintiff on all causes of action asserted by it except that under the Jones Act has been disposed of by dismissal for want of jurisdiction. As to the judgment under the Jones Act, which is the sole cause of action before this court, the judgment of the trial court is reversed and remanded.


author: FANNING, Justice.

text:
    Inez Lee DICKSON, Appellant, v. E. M. STOCKMAN, Appellee.
    No. 7770.
    Court of Civil Appeals of Texas. Texarkana.
    Dec. 6, 1966.
    Rehearing Denied Dec. 27, 1966.

      Herbert Finkelstein, W. T. Dorman, Houston, for appellant.
    Wm. Brantly Harris, Butler, Binion, Rice, Cook & Knapp, Houston, for appellee.
   FANNING, Justice.

Appellant sued appellee upon a promissory note and to foreclose upon certain security for its payment. Judgment was entered for defendant-appellee. Plaintiff-appellant has appealed.

Appellant, Inez Lee Dickson (nee Mathis) sued appellee, E. M. Stockman, to recover the unpaid balance of $11,371.69 upon a promissory note, together with interest at 10% from August 23, 1963, an attorney’s fee of 10% of the principal and interest, for foreclosure of a chattel/' mortgage and cancellation of 24 City of Houston taxi cab permits. Appellant not only in her original petition and also in her first amended original petition, but also in her motion for summary judgment alleged the above amount to be the true and correct amount owed her by the defendant-appel-lee. Mrs. Dickson on December 31st, 1963, also in her supporting affidavit to her motion for summary judgment, swore that the amounts above referred to were the balance due her from defendant-appellee. At that time, according to defendant-appellee’s pleading, the principal amount then owing was $11,338.92 instead of $11,371.69, which was $32.77 less than the principal claimed by plaintiff-appellee; it was defendant-ap-pellee’s further position by its pleading that there had been a certain extension agreement made on August 19, 1958, between the parties for repayment on the original $40,-000.00 note, which note was originally executed on January 8, 1958, and that he had paid appellant various payments amounting to $37,405.00, of which amount $8,743.-92 was applied to interest and the balance to the principal up to the 30th day of August, 1963, and defendant-appellee further alleged that an attorney’s fee was not due because he had paid according to the extension agreement. It thus appears that at the time of the filing of appellant’s motion for summary judgment that there was a genuine and bona fide dispute between the parties as to the balance of the amount due and owing on the note in question. .

The case was settled by agreement of the parties of January 18, 1964, based upon plaintiff’s pleadings then on file in the-district court and based upon the figures set out in plaintiff’s pleadings and her motion for summary judgment, which motion for summary judgment had been set for hearing on January 20, 1964.

Pursuant to such settlement agreement defendant paid to plaintiff the full amounts due under the settlement agreement in the following manner:

1. $4,000.00 by check dated January 20, 1964, payable to Inez Lee Dickson showing an endorsement of “Inez Lee Dickson, for Deposit Only”.
2. $2,500.00 by check dated March 2, 1964, payable to Inez Lee Dickson and endorsed “Inez Lee Dickson, for Deposit Only”.
3. $2,500.00 by check dated April 6, 1964, showing the endorsement “Inez Lee Dickson, for Deposit Only”.
4. Attorney’s fees in the sum of $1,137.-16, payable to W. T. Dorman, dated January 20, 1964, and showing endorsement by W. T. Dorman.
5. Defendant’s receipt from the District Clerk of Harris County, Texas, showing the payment into the Registry of the District Court the sum of $2,992.-38, dated June 18, 1964.

After settling the case in the manner above outlined, the plaintiff-appellant on June 9, 1964, filed her second amended original petition seeking a much larger amount, $19,822.88 as principal and interest and $1,-982.28 as attorney’s fees. Defendant-ap-pellee in answer thereto plead accord and satisfaction by the payment of the settlement agreed upon by the parties, and further plead ratification and acceptance of benefits by plaintiff, and further plead that plaintiff-appellant was estopped, both judicially and equitably, to contend for more than the settlement which had been paid. Defendant-appellee also pleaded again the oral extension agreement with respect to the note in question, and pleaded that the proper interest rate under the terms of the note and extension agreement was 6% per annum and that plaintiff had waived the right to accelerate the maturity of the promissory note and to claim interest at 10% per annum by entering into the oral extension agreement of August 17, 1958, by accepting the extended payments tendered by defendant for approximately 5 years until August 17, 1963, knowing that defendant was relying on the oral extension agreement, without making any statement to defendant that plaintiff was accelerating the note or claiming increased interest thereunder and by accepting payments totalling $10,137.16 under the settlement agreement entered into on or about January 18, 1964, and that plaintiff was estopped to assert that she accelerated the note or increased the interest contrary to said oral agreement. Defendant’s pleading with respect to judicial and equitable estoppel was as follows:

“Plaintiff is judicially and equitably es-topped by having settled the cause of action alleged herein, by having accepted payment of $10,137.16 pursuant to such settlement, and by having filed herein the verified first motion for summary judgment in which Plaintiff alleged under oath facts inconsistent with the claims subsequently and now made in Plaintiff’s Second Amended Original Petition.”

The appellant accepted and cashed checks for installments totalling $9,000.00 on the settlement agreement, and her attorney accepted the stated attorney’s fee of $1,137.16. Appellant declined the final settlement installment of $2,992.38, which was then placed in the registry of the court. The trial court required the plaintiff to pay the aggregate sum of $10,137.16 received by appellant and her attorney subsequent to the settlement agreement into the registry of the court, whereupon appellant filed a trial amendment asserting a right to recover the sum of $24,156.36 and an attorney’s fee of $2,415.63.

In response to special issues submitted the jury found to the effect that the case was settled (Issues 1 and 2), but at the time of settlement no bona fide dispute existed as to the amount then owing (Issue 4), and that an extension agreement was entered into in 1958 by which appellant agreed to allow appellee to continue paying interest at 6% and to make payments of amounts less than the $1,000.00 per month provided in the note but greater than the interest owing. The trial court set aside and disregarded the jury’s answer to special issue 4 and entered judgment that plaintiff take nothing against defendant.

Appellant, among other contentions, contends to the effect that her claim was liquidated and that the trial court erred in disregarding the jury’s answer to issue No. 4 to the effect that there was no bona fide dispute as to her claim, and that there was no accord and satisfaction.

Appellant relies upon the harsh rule that a creditor’s agreement to accept less than the full amount of a liquidated and undisputed claim is unenforceable for lack of consideration. 1 Tex.Jur.2d, Accord and Satisfaction, Sections 13 and 14. This rule has been severely criticized. See Silvers Box Corporation v. Boynton Lumber Company, 297 S.W. 1059 (Tex.Civ.App. Eastland 1927, writ refused) ; Shelton v. Jackson, 20 Tex.Civ.App. 443, 49 S.W. 415 (1899, writ refused). However, the rule only applies to a claim which is liquidated and is not the subject of a bona fide dispute, and the converse of the stated rule is that if either of these elements is not present the settlement agreement is valid and enforceable. Consideration is found in the resolution of the uncertainty which exists as to the validity or the amount of the appellant’s claim. See 1 Tex.Jur.2d, Accord and Satisfaction § 30, wherein it is stated in part as follows:

“A valid accord and satisfaction of a money demand may be based on payment of an amount less than the creditor contends is due, or which may be actually due, where the claim is unliquidated, or where there is a bona fide dispute between the parties as to liability on a liquidated claim. The creditor is bound by such an accord and satisfaction of a disputed money claim, though his acceptance was under protest. This rule, or, as it has been characterized, this exception to the general rule that part payment will not extinguish a liquidated demand, applies though the debt is evidenced by a note, or by a judgment.
“The settlement of an unliquidated claim or of a liquidated claim that has been disputed in good faith is of itself a sufficient consideration to support an agreement of accord. In this situation, the courts will not inquire into the adequacy of the payment made on a money demand. * *

A liquidated demand is one “the amount or extent of which has been fixed or agreed on by the parties.” 1 Tex.Jur.2d, Accord and Satisfaction, § 12. In 1 Am. Jur.2d, Accord and Satisfaction, § 26, it is defined thus:

“Liquidated means made certain as to what and how much is due, and a liquidated claim is one which can be determined with exactness from the agreement between the parties, or by arithmetical process, or by the application of definite rules of law.
“The term ‘Unliquidated’ means simply not liquidated. A demand is not liquidated even if it appears that something is due, unless it appears how much is due * * ⅜»

As of the time the suit was settled, on January 18, 1964 (as found by the jury) the appellant, according to her pleadings, motion for summary judgment, and supporting affidavit, claimed that the amount due her by defendant-appellee was $11,371.69 principal, plus interest at 10% from and after August 23, 1963, plus a 10% attorney’s fee. Defendant-appellee, on the other hand, at said time claimed that the unpaid principal balance was $11,338.92, plus interest at 6% from and after August 30,1963, and claimed that no attorney’s fee was due. There was a discrepancy of $32.77 between the principal balance of $11,371.69 claimed by appellant and the principal balance of $11,338.92 asserted by defendant-appellee as being due. While the sum of $32.77 was not a large discrepancy, yet it was a difference. The defendant-appellee settled the case on January 18, 1964, on the basis of the full claim then asserted by plaintiff-appellant and in doing so he gave up the sum of $32.77 claimed by him on the principal, gave up his contention that interest be computed at 6% instead of 10% after Aug. 23, 1964, and gave up his contention that the 10% attorney’s fee was not due and thereafter paid said claim and attorney’s fee according to the terms of the settlement.

We conclude that under the record in this cause that plaintiff-appellant’s claim was unliquidated. In this connection see First State Bank v. Knapp, 3 S.W.2d 468 (Tex.Civ.App. Amarillo 1928, no writ), and Grindstaff v. North Richland Hills Corporation No. 2, 343 S.W,2d 742 (Tex.Civ.App. Ft. Worth 1962, writ ref’d, n. r. e.). For that reason the trial court correctly set aside and disregarded the jury’s answer to special issue No. 4 and correctly rendered a take nothing judgment by reason of there being a valid accord and satisfaction between the parties.

If we should be mistaken in our view that plaintiff-appellant’s claim was unliquidated, it is our further view that there were, without question, one or more bona fide disputes about the amount of the claim between the parties, which would also make the settlement of Jan. 18, 1964, a valid and binding accord and satisfaction between the parties.

It is our further view that appellant can not avoid the accord and satisfaction upon the ground of mistake because mistake was neither pleaded nor proven.

We think the judgment of the trial court can also be supported for the reasons stated in appellee’s fourth counter-point which reads as follows:

“Appellant is judicially or in the alternative equitably estopped by her sworn motion for summary judgment from asserting that Appellee owed more than $11,371.69 plus interest at ten per cent from August 23, 1963 and an additional ten per cent of such principal and interest as attorneys’ fees.”

The motion for summary judgment was appellant’s final pleading when the case was settled. The case was settled on the basis of that pleading and the amounts claimed in said pleading, with ap-pellee paying $32.77 more than he claimed was due on the principal, and with appellee also acceding to all the other claims claimed by appellant in her motion for summary judgment and sworn to by her supporting affidavit. We hold that under the circumstances in this case, appellant is judicially estopped from contradicting the averments in her motion for summary judgment and supporting affidavit, upon which averments the case was settled. In this connection see Long v. Knox, 155 Tex. 581, 291 S.W.2d 292 (1956). It is our further view that since the motion for summary judgment and supporting affidavit were relied upon by ap-pellee in settling the case, and since appellee paid the settlement amounts as shown by the record, that appellant is also equitably es-topped from contradicting her motion for summary judgment and sworn supporting affidavit.

All of appellant’s points and contentions have been considered and are overruled.

Finding that the trial court entered a correct judgment, the judgment of the trial court is accordingly affirmed.


text:
    The ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant, v. Mrs. U. B. PORTER et al., Appellees.
    No. 7674.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 9, 1967.
    Rehearing Denied Feb. 20, 1967.

      McWhorter, Cobb, Johnson & Cobb, Lubbock, Charles L. Cobb, Lubbock, of counsel, for appellant.
    Lawrence F. Green, Lubbock, Splawn & Maner, John F. Maner, Lubbock, of counsel, for appellees.
   CHAPMAN, Justice.

This is a suit by Mrs. U. B. Porter, et ah, seeking to recover against the appellant railroad company for alleged diversion of the natural flow of surface waters by the construction of a culvert through their roadbed by which they prevented such waters from flowing over their land “ * * * in a harmless and diffused state,” thus causing damage to their property in violation of Article 7589a, Vernon’s Ann. Revised Civil Statutes of Texas.

Appellant railway company defended on averments and proof that the culvert placed through their roadbed was properly constructed so as to permit the surface waters to seek their natural level. It pleaded Article 6328, Revised Civil Statutes of Texas, averring in effect that said statute requires railroads such as theirs in constructing roadbeds to install the necessary culverts or sluices as the natural lay of the land requires for the necessary drainage thereof, which is a continuing duty; that the culvert constructed was for the purpose of complying with such statute; that upon the failure to comply therewith the property owners on each side could compel the erection of such drainage system by injunction; and denied the construction and maintenance has changed the natural flow of surface waters over and across appellees’ lands.

The railroad embankment was constructed in a northwesterly direction from Sudan toward Texico and the area involved is approximately 5½ miles northwest of Sudan.

The trial court, after denying a motion for peremptory instruction made by appellant, submitted the case to the jury upon a question which asked: “Do you find from a preponderance of the evidence that the opening and installation of the culvert in question and the associated railroad embankment have diverted water from its natural flow onto the Porter land?” (All emphases herein are ours.)

The court then inquired if the water so diverted destroyed crops then growing upon the Porter land, and asked the jury to find the amount of damages. The jury answered the first two questions in the affirmative and assessed $650 damages to 6½ acres of Sudex, a forage crop. Appellant filed proper objections and exceptions to the submission of the issues, and after verdict filed its motion non obstante veredicto and motion for new trial. All were overruled and judgment rendered for appellees.

The railroad embankment had been constructed 53 years before the culvert was placed through it. At the time of construction of the roadbed the land in the low areas on each side of the right-of-way was in pasture land and there was no need for the culvert. U. S. Highway 84 parallels the railway tracks on the southwest side at the point in controversy and the evidence shows appellant was under pressure from the State Highway Department (obviously because the embankment, serving as a dam, flooded the highway during excessive rains) to correct their embankment in order for the water to follow its natural flow.

Appellees pleaded a prescriptive right for maintenance of the railway embankment without the culvert and pleaded laches and stale demand by way of an estoppel as against the railway company for placing the culvert in its roadbed after more than fifty years of maintenance without the culvert. The trial court determined the legal questions just mentioned against ap-pellees and submitted the case upon the issues above mentioned. No cross points are brought forward on the questions.

Article 6328, Revised Civil Statutes of Texas, provides: “In no case shall any railroad company construct a roadbed without first constructing the necessary culverts or sluices as the natural lay of the land requires, for the necessary draining thereof.”

The statute just quoted was passed in 1876 and we find no amendment or alteration to it during all these years. Since the railroad was under this statutory duty before the embankment in question was constructed the predecessors in title to appellees were charged with knowing the law as it existed at the time the contract was made for construction of the railway embankment across the land involved, and the statutory duty imposed upon the railroad company necessarily implied a continuing obligation to maintain its roadbed in accordance with the provisions of the quoted statute. Meier v. Thompson, 248 S.W.2d 493, 499 (Tex.Civ. App.-Waco, 1952, writ ref’d n. r. e.); Burlington-Rock Island R. Co. v. Newsom, 219 S.W.2d 129, 132 (Tex.Civ.App.-Waco, 1949).

The statute above quoted makes absolute the duty of the railway company to erect such culverts and sluices as the natural lay of the land requires for the necessary draining thereof. Missouri, K. & T. Ry. Co. of Texas v. Arey, 100 S.W. 963, 966 (Tex.Civ.App.-1907); Ft. Worth & D. C. Ry. Co. v. Suter, 54 Tex.Civ.App. 238, 118 S.W. 215 (1909).

If a railway company fails to construct the proper culverts, sluices or ditches necessary to pass off the surface water by the way it flowed before the railroad was built, it is responsible for the damage incurred from such neglect. Gulf, Col. & S. F. R’y Co. v. Helsley, 62 Tex. 593 (1884) ; Gulf, C. & S. F. R’y Co. v. Holliday, 65 Tex. 512 (1886); Gulf, C. & S. F. R’y Co. v. Donahoo, 59 Tex. 128 (1883).

The Supreme Court of Texas has said: “The object of this statute was to prevent the railroad from unnecessarily interfering with the natural drainage of the land on either side of its right of way.” Dobbins v. Missouri, K. & T. R’y Co. of Texas, 91 Tex. 60, 41 S.W. 62, 38 L.R.A. 573 (1897).

In speaking of this same statute when it was Article 4171 under the Revised Civil Statutes of 1879 the same court in Gulf, Col. & S. F. Ry. Co. v. Helsley, supra, said:

“It was intended thereby to compel railways to construct such culverts or sluices as were necessary to permit water not confined within water-courses, r> as that term is usually understood in legal works, to flow, after a railway is constructed, as it did before, in accordance with the ‘natural lay of the land;’ to compel them to permit the flow of surface water as it aforetime had naturally done; and culverts or sluices which do not permit this are not the necessary culverts or sluices contemplated by the law.
“If a railway company undertakes to change the flowing of surface water, it must see to it that such change does not operate to the injury of the landowner.”

Appellees’ pleadings seek no damages for diversion of the natural flow of the water caused by the railroad embankment. In fact, they assert by brief that: “It is the tunnelling under the embankment and the installation of the culvert through such tunnel, causing the surface waters to be discharged onto Appellees’ land in increased quantities and in concentrated flow, causing damages to Appellees’ crops, that forms the basis of Appellees’ cause of action in the instant case.”

Since no point is raised by appellant on the great weight and preponderance of the evidence, we must, therefore, determine if there is any probative evidence which ought reasonably to satisfy the jury that the fact sought to be proved is established. Texas Law of Evidence, McCormick and Ray, 2d Edition, Vol. 1, p. 8, sec. 4. “To sustain the action of the court in disregarding the finding, there must be no evidence of probative force supporting it.” Iowa Mutual Insurance Company v. Redden, 326 S.W.2d 727 (Tex.Civ.App.-Waco, 1959, writ ref’d n. r. e.). “Judgment non obstante veredicto may be rendered by the trial court only in a case where a directed verdict would have been proper.” Hicks v. Matthews, 153 Tex. 177, 266 S.W.2d 846 (1954). It is our opinion that the motion for peremptory instruction, motion for judgment non obstante veredicto or motion for new trial should have been granted in this case, as we shall attempt to demonstrate from the evidence.

Mrs. Porter Davis, one of the ap-pellees, testified in an effort to show the appellant diverted the water from its natural flow by the construction of the culvert. Neither her mother nor brother, the other owners of the land, testified. She admitted that the low area on their land is part of the same basin south of the railway embankment. It is true she later contradicted her own testimony in this respect but admitted there is a low area on their land. That evidence taken in its most favorable light still would not, in our opinion, show that the construction of the culvert in question diverted the water from its natural flow. Some of the photographs introduced by appellees themselves show the water as it made its exit from the culvert, instead of coming over on their land at that place, ran down the railroad right-of-way in a northwesterly direction. This is material as we study the civil engineering drawings which show the elevation of the land on each side of the embankment and the high and low areas on each side.

Mrs. Davis also attempted to testify that the elevation on their side of the embankment was higher than the elevation on the other side without a proper predicate being laid as to her ability to testify to elevations. A careful study of the statement of facts will reveal that the trial court sustained obj ections to such testimony and that counsel for appellees pursued such testimony no further. She also testified that their land sloped toward the railroad embankment. Since there is a twelve-foot embankment, that testimony also constituted no probative evidence to show the water was diverted by the culvert from its natural flow, to their damage. It must be remembered that Mrs. Davis did not move on the land in question until 1934, twenty-two years after the roadbed had been constructed, so she could not possibly have known the lay of the land in its natural state before it was disturbed by the hands of man, nor which side of the embankment was the lowest. This leaves no probative evidence except the engineering data in that respect.

We feel Exhibit “d-10” and the testimony of appellant’s engineer, B. E. Taylor, in connection therewith, is decisive of the issue. Such testimony shows by civil engineering, scientific data made by transit citings for locations and a level for elevations that the area consisting of 14.45 surface acres on appellees’ land and the basin on the south side of their railway embankment and right-of-way is in the same drainage basin; that it drains from southwest to northeast and that the level at which the railway company constructed the culvert would allow the natural drainage of the surface water through the railroad embankment, permitting surface waters to seek their natural level.

“Q. I will ask you if the basin on the Porter land adjoining the right of way is approximately the same level as the basin on the land just across the highway there from the right of way, are they both low areas ?
“A. Yes, sir, they are. The Porter, or the land on the north side of the right of way is lower. The natural land is lower than the natural land on the south side.”

A study of the “Drainage Area” water shed on the south of the railway right-of-way approximately 6,700 feet south of the right-of-way shows a height of 3,859.8 feet above sea level with a slope down to 3,830.2, then a slight rise at that point on the contour to 3,832.0, which caused the water to flow back north to 3,810.4. The civil engineer testified that the last named point is the lowest natural level in the lake bottom on the south side of the railroad embankment and that the natural level on the north side is lower than the natural level on the south side. There is no probative evidence, in our opinion, to contradict such testimony and engineering data.

Appellees contend by brief that the culvert, constructed after a lapse of more than fifty years, diverted the surface water onto appellees’ land in unnatural and accelerated quantities. We do not agree that the record supports the contention. To the contrary, the testimony shows that when the stream of water makes its exit from the culvert it stays on appellant’s right-of-way, flows northwest down its property to the low point, following the lay of the land, then * * * the water will start creeping and building up. It will stack against our embankment and at the same time moving to the north out on the Porter land until such time as it reaches the overflow elevation of 3812.4,” at which time it overflows to a larger lake east of appellees’ land.

“Q. And that would be the natural flow of the water according to engineering calculations made by you, is that correct, sir?
“A. Yes, sir.”

The testimony shows the water on the south side of the embankment has to build to an elevation of 3,812.4 feet before it passes through the culvert and that is the same elevation at which it escapes from appellees’ land to a larger lake to the east. However, we have been unable to find any probative evidence in the record that the water going through the culvert is “ * * * discharged onto appellees’ land in increased quantities and in concentrated flow” as they contend. To the contrary, the evidence shows it runs down the railroad right-of-way in a northwesterly direction to the low part of the basin, following the lay of the land, then will start creeping over onto ap-pellees’ land, which the engineering data shows is lower than that on the south side of the embankment. There is no probative evidence to the contrary.

We also believe appellant’s fifth and sixth points raise questions which would require this court to reverse and remand the case for another trial. These points go to the submission of the above quoted issue and to the definition of “natural flow of water.”

Appellees admit by brief they were not relying on the embankment built more than fifty years ago as any grounds for diverting the natural flow of the water. Their pleadings seek recovery only for diverting the natural flow of the water by the opening and installation of the culvert. Yet, the issue in question includes the embankment by asking if the opening and installation of the culvert and the associated railroad embankment diverted the water from its natural flow.

Appellant’s Special Instruction No. 1, if given, perhaps would have cured the error, but it was refused. The issue, taken in connection with the definition that: “By the ‘natural flow’ of water, is meant the course that water will or would flow upon the earth’s surface if not affected by man-made works or structures” would lead the jury to believe that both the embankment and the culvert could be taken into consideration in determining if the railroad diverted the natural flow of water to appellees’ damage.

Having held there is no probative evidence to support the judgment, we would have authority to reverse and render. Believing, however, that the case was tried and submitted on the wrong theory, and was not fully developed, we feel the ends of justice would be better served by reversing and remanding. We have such authority under these circumstances. Jackson v. Hall, 147 Tex. 245, 214 S.W.2d 458 (1948) ; Lanford v. Smith, 128 Tex. 373, 99 S.W.2d 593 (1936). In the last cited case the Supreme Court of Texas said:

“If the Court of Civil Appeals determines that the judgment of the trial court is unsupported by the evidence, or that the evidence in support thereof is insufficient, its judgment should be one of remand and not one of rendition, unless it appears that the facts were fully developed at the trial appealed from.”

Accordingly, the judgment of the trial court is reversed and remanded for a new trial.

      . Though the railway ran in a northwesterly direction from Sudan, the area on each side of the right-of-way is referred to generally in the record as the south side and north side. We shall hereafter refer to them as such. Appellees’ land was on the north side.


author: WERLEIN, Justice.

text:
    TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Shannon L. MORRIS et al., Appellees.
    No. 14936.
    Court of Civil Appeals of Texas. Houston.
    Feb. 2, 1967.
    Rehearing Denied Feb. 23, 1967.

      Joe Resweber, County Atty., of Harris County, and Gus Drake, Asst. County Atty., Houston, for appellant.
    R. E. McDaniel, Winnie, and Carey Williams, Houston, for appellees.
   WERLEIN, Justice.

The Texas Department of Public Safety appeals from a temporary stay order granted appellees by the County Civil Court at Law No. 1, of Harris County, Texas, on their appeal from certain orders issued by appellant. Appellees, some 83 in number, whose names appear in their Third Amended Original Petition, alleged that all of them, with the exception of four, were residents of Harris County, and that the suit was brought as a class action under Rule 42, Texas Rules of Civil Procedure, there being a common question of law affecting their rights and common relief sought by them. They prayed for judgment declaring that the Safety Responsibility Law of the State of Texas is unconstitutional, and that the orders of the Department requiring them to surrender their registration and drivers’ licenses are void; that the Department be enjoined from issuing further orders to any of them as long as stay orders were in effect; that the Department be required to renew their drivers’ licenses upon tender of the proper fee; and that the court entér an order staying the surrender orders issued by the Department to them.

The trial court, after considering at some length in its judgment the general purpose of the Safety Responsibility Law of the State of Texas, stated in substance that the court construed Article 6701h, Sec. 2(b), to be mandatory, exclusive and jurisdictional; and that Article 6701h, Sec. 2(c) provided for a trial de novo with the burden of proof on the Department. The court did not make any findings of fact or conclusions of law, but in its judgment found that it was unnecessary to hold the judgments of the County Court of Shelby County valid, void or voidable, or to rule as to whether that court had potential or actual jurisdiction. The court further found that within thirty days from the issuance of “orders or acts” of suspension by the Department all the parties at interest in this case had appealed to the County Court at Law in Harris County, and all, with some exceptions, were residents of Harris County. The court further found that eight of the parties had been convicted or there were criminal complaints brought against them for alleged criminal acts growing out of collisions, and that a stay order could not be allowed as to them unless they filed evidence of their ability to pay the tentative damage deposit required by the Department; that the facts of each individual petitioner’s case varied so greatly that a class suit was not warranted; and that each of the appeals held to be timely and properly brought in Harris County should be severed into separate cases to be as speedily tried on the merits as possible; and that certain of the petitioners should be dismissed because residents of Galveston County, and that such parties would have fifteen days to file an appeal in their respective counties “for good cause shown”.

The court ordered and decreed that nine of the petitioners be dismissed from the proceeding and “that all parties heretofore showing admitted residence in Harris County, and having appealed herein from orders of the Department within 30 days from the latest issuance of such orders of suspension are declared to be properly before this Court and the Court finds that jurisdiction for the determination of their appeal is properly and by Statute in the County Civil Court at Law No. 1 for Harris County, Texas.” The court further decreéd: “All temporary stays will be continued until each of their cases can be adjudicated on the merits of their appeals and each case will be severed from the mass and set up by the County Clerk as a separate docketed case for as speedy a trial and determination as can be orderly arranged;

“All relief not expressly granted is in all things denied.”

Only the Texas Department of Public Safety has appealed. Its first Point of Error is: “The Trial Court erred in granting appellees a temporary injunction because the orders of the Shelby County Court were void.” No appeal was taken from the orders of the Shelby County Court. The present appeal is from the stay orders of the court in the instant case.

Appellant’s second Point is: “The Trial Court erred in granting appellees a temporary injunction because the enforcement of Article 6701-h, Vernon’s Annotated Texas Civil Statutes, does not deprive ap-pellees of any rights secured by the Texas or Federal Constitutions.” The trial court did not find that said Article deprived ap-pellees of any rights secured by the Texas or Federal Constitutions. The order of the trial court denies appellees all relief except the continuance of the temporary stays until each of appellees’ cases can be adjudicated on its merits.

Appellant’s third Point asserts that the trial court erred and abused its discretion in granting appellees a temporary injunction because no good cause for the granting of such injunction was shown. All of appellant’s points are predicated upon the trial court’s granting appellees a temporary injunction. If the court's order is in fact a temporary injunction, then this Court would have jurisdiction of the appeal.

The record shows that on appellees’ application for a stay order of the various orders issued by the Department to them to surrender and forward to appellant all of their drivers’ licenses, registration certificates and license plates, the trial court on May 16, 1966, ordered and decreed that said orders “be, and the same are hereby, stayed and shall be of no force and effect until'further order of the court with reference to said appeal, or until the conclusion of the trial of this cause on its merits, now set for June 13, 1966, or to any week thereafter to which same may be brought on for final trial.”

In its judgment entered June 24, 1966, the court decreed that all the temporary stays will be continued until each of ap-pellees’ cases can be adjudicated on its merits, and each case was ordered severed from the others and separately docketed for as speedy a trial as could be orderly arranged. No complaint is made of the court’s interlocutory order severing each case from all the others. We construe the court’s decree as applying to its own stay order hereinabove referred to, the same being applicable to each severed cause of action until each can be tried on its merits. The court in effect stated in its decree that it was not necessary to hold anything with respect to the validity vel non of the stay orders previously issued by the County Court in Shelby County, Texas. Such orders are not involved in this appeal.

The appeal to this Court is limited to the points complaining of the trial court granting a stay order. The question arises, therefore, as to whether such stay order is appealable to this Court. Appellant asserts that such order is a temporary injunction and therefore it is an exception to the general rule that interlocutory orders are nonappealable. Appellees, on the other hand, contend that such stay order is not a temporary injunction and is not appeal-able and hence this appeal should be dismissed by this Court because of want of jurisdiction.

We hold that the stay order of the trial court is not a temporary injunction. It is in each of the severed cases an interlocutory order which is not appealable. Article 6701h, Sec. 2(b), in providing for a review of any order or act of the Department by the county court at law of the county wherein the aggrieved person resides, provides that the appeal shall be by trial de novo, and further provides, “The Court shall determine whether the filing of the appeal shall operate as a stay of any such order or decision of the Department, with the exception that no stay order shall be granted staying an order of suspension by the Department of Public Safety that is based on a final judgment rendered against any person in this State by a court of competent jurisdiction growing out of the use of a motor vehicle in this State when said judgment is a subsisting final judgment and unsatisfied * * It further provides that under certain other conditions “an appeal shall not operate as a stay of any such other orders or decisions.”

There is nothing in the statute which authorizes an appeal from the stay order of the county court at law or county court. Under the statute the appeal operates as a stay of the Department’s orders if the trial court so determines, subject to the exceptions hereinabove referred to.

The procedure with reference to injunctions is largely covered by the Texas Rules of Civil Procedure. In order to obtain a temporary injunction, the petition must be supported by affidavit or verified. An order granting a restraining order or a temporary injunction must set forth the reasons for its issuance, and a bond is usually required of the applicant. Rules 680, 682, 683, and 684, T.R.C.P. A citation is required to be issued and a writ of injunction must command the person or persons enjoined to desist and refrain from the commission or continuance of the acts enjoined and such person or persons may be held in contempt for disobedience thereof. The clerk issues the temporary injunction order and a true copy must be served on the party enjoined. Rules 686, 687, 688, T.R.C.P.

None of such requirements are necessary in the case of the determination by the court that the appeal shall operate as a stay order. The trial court merely makes the determination as to whether “the filing of the appeal shall operate as a stay of any such order or decision of the Department.” No formal stay order is required, since the court merely determines whether the filing of the appeal shall operate as a stay. Such stay order is in the nature of a supersedeas and in effect a suspension order until the case can be tried de novo on its merits.

We have not found nor been cited to any case directly in point. The question seems to be one of novel impression in this State. In Ex parte State ex rel. Sullivan, 1955, 262 Ala. 188, 78 So.2d 322, an original mandamus proceeding was filed by the Department of Public Safety in the Supreme Court of Alabama to compel the judge of the Circuit Court of Jefferson County, Alabama, to vacate an' order of the trial court which stayed an order of the Director of the Department of Public Safety suspending a driver’s license. The court held that the Alabama Statute contemplated a trial de novo in the Circuit Court, and that “This necessarily means that the taking of an appeal to the circuit court by the filing of the petition provided in the statute ipso facto vacates the director’s order of suspension.” The court so held although the Alabama statute did not provide that the filing of the appeal would operate as a stay order, and there was no express authority to issue a stay order provided in the statute. The court agreed with the trial court “That the allowance of any force or effect to the director’s order of suspension subsequent to the filing of the petition would be utterly incompatible with the duty and jurisdiction of the court to determine anew the matter of whether and for how long the license should be suspended.”

In this State the filing of the appeal would probably not ipso facto vacate the Department’s orders of suspension and surrender since the Texas statute expressly provides that the court shall determine whether the appeal shall operate as a stay of the Department’s order.

The last sentence in Article 6701h, Sec. 2(b), provides:

“The above provision restricting the granting of a stay order in appeals where the aggrieved party has been charged with the violation of any of the laws of the State of Texas or of any of the political subdivisions shall also limit any court in this State in any original action brought against the Department of Public Safety to enjoin or order the enforcement of any order of the Department of Public Safety issued under this Act.”

It is our view that such provision indicates that the Legislature clearly had in mind the difference between a stay order determined by the trial court on an appeal from the Department’s orders and “ * * * any original action brought against the Department of Public Safety to enjoin or order the enforcement of any order of the Department of Public Safety issued under this Act.” Appellees in the instant case did not bring an original action for injunction against the Department. They merely sought in connection with their appeal to the County Court at Law a stay of the Department’s orders, and other relief which was denied them.

The Department’s appeal is dismissed for want of jurisdiction.

Appeal dismissed.