author: HAMILTON, Justice. GRIFFIN, Justice. WALKER, Justice.

text:
    Dorothy GADDIS et vir, Petitioners, v. William C. SMITH et al., Respondents.
    No. A-11825.
    Supreme Court of Texas.
    July 5, 1967.
    Rehearing Denied July 26, 1967.

      Huff & Bowers, Robert W. Gauss, Lubbock, for petitioners.
    Crenshaw, Dupree & Milam, Max C. Addison, Evans, Pharr, Trout & Jones, Charles B. Jones and David Hughes, Lubbock, for respondents.
   HAMILTON, Justice.

This is a summary judgment case, wherein petitioners, a patient and her husband, sued respondents, two doctors, for damages allegedly resulting from leaving a surgical sponge inside the patient’s body while performing a Caesarean Section.

Petitioner Dorothy Gaddis and her husband filed suit against respondents on February 21, 1964. They alleged that respondents performed the Caesarean Section upon Mrs. Gaddis on or about January 7, 1959. After a long period of increasing internal pain Mrs. Gaddis submitted to surgery in California in 1963, for what was believed to be a tumor. It was discovered that she did not have a tumor, but that a surgical sponge had been left inside her body, allegedly after the surgery in 1959. Petitioners further pled that Mrs. Gaddis had no knowledge, and no way of knowing, that a surgical sponge had been left inside her body until it was actually discovered in October of 1963.

Respondents answered, interposing the two-year statute of limitations as an affirmative defense. The trial court granted respondents’ motion for summary judgment, and the Court of Civil Appeals affirmed, holding that the statute commenced to run from the date of the operation. 407 S.W.2d 873. We reverse the judgments of the trial court and Court of Civil Appeals ^pd remand the cause for trial.

This case requires that we reexamine our holdings in Carrell v. Denton, 138 Tex. 145, 157 S.W.2d 878 (1942), and Stewart v. Janes, 393 S.W.2d 428 (Tex.Civ. App.1965, writ ref’d.). These cases hold that a cause of action accrues when the incision is closed, rather than when the negligent act is or should have been discovered.

In determining the proper event which starts the period of limitation running in an action of this nature, we are confronted with conflicting policies. The purpose of statutes of limitations is to compel the assertion of claims within a reasonable périod after their origin, and while the evidence upon which their enforcement or resistance rest is yet fresh in the minds of the parties or their witnesses. Harrison Machine Works v. Reigor, 64 Tex. 89 (1885). On the other hand, the nature of negligence actions of this type is such that it is often difficult, if not impossible, to discover that a foreign object has been left within the body within the statutory period of limitation.

A growing number of the courts of other states are embracing what has become known as the “discovery rule” in this particular kind of case: “Where a foreign substance is negligently left in a patient’s body by a physician * * * and the patient is in ignorance of the fact, and consequently of his right of action for malpractice, the limitation period does not begin to run on said action until the patient learns of or, in the exercise of reasonable care and diligence, should have learned of the presence of such foreign substance in his body.” Seitz v. Jones, 370 P.2d 300 (OkL Sup. 1961). The latest case to which our attention has been invited is Berry v. Branner, 421 P.2d 996 (Or.Sup.1966). There the court cited some fourteen jurisdictions which had held that the statute of limitations in malpractice cases commenced to run from discovery, or the time discovery could reasonably have been made. See, for example, Billings v. Sisters of Mercy of Idaho, 86 Idaho 485, 389 P.2d 224 (1964); Johnson v. St. Patrick’s Hospital, 417 P.2d 469 (Mont.Sup.1966); Fernandi v. Strully, 35 N.J. 434, 173 A.2d 277 (1961); Morgan v. Grace Hospital, Inc., 149 W.Va. 783, 144 S.E.2d 156 (1965); Waldman v. Rohrbaugh, 241 Md. 137, 215 A.2d 825 (1966). This is but one of several theories by which the hardships created by a strict adherence to the rule announced in Carrell v. Denton have been alleviated. As stated in Billings v. Sisters of Mercy of Idaho, supra, 389 P.2d 232:

“Indeed, it'appears that most jurisdictions, when faced with the set of facts we have presented herein would, on one theory or another, allow appellants to come into court and present their claims. To apply the label of ‘general rule’ to respondents’ position and minority rule to the discovery doctrine is not only misr leading but erroneous. If, however, it is necessary to apply labels, it appears that the so-called ‘general rule’ as stated in A.L.R. is in fact the minority rule.”

In 1942 this Court rejected the “discovery rule” in Carrell v. Denton, 138 Tex. 145, 157 S.W.2d 878 (1942). In 1965 we again approved this holding when we gave an unqualified refusal to the application for writ of error in Stewart v. Janes, 393 S.W.2d 428 (Tex.Civ.App.1965). In Carrell this Court held that the patient’s cause of action accrued at the time the incision in his body was closed, relying on Houston Water Works Co. v. Kennedy, 70 Tex. 233, 8 S.W. 36 (1888). Houston Water Works was an action to recover damage alleged to have resulted from injury to a house owned by plaintiff, allegedly caused by the cutting of an arch by the water works company in placing a water-pipe in the building. The arch was cut on July 24,1884, and the action was not brought until September 21, 1887, but it was brought within two years after the settling of the corner of the house and cracking of the walls. The cutting of the arch was unknown to the plaintiff until inquiry was made as to the cause of injury to the walls. The Court held that the cause of action accrued when the arch was cut:

“When an act is in itself lawful as to the person who bases an action on injuries subsequently accruing from, and consequent upon, the act, it is held that the cause of action does not accrue until the injury is sustained. * * * If, however, the act of which the injury was the natural sequence was a legal injury, — by which is meant an injury giving cause of action by reason of its being an invasion of a plaintiff’s right, — then, be the damage however slight, limitation will run . from the time the wrongful act was committed, and will bar an action for any damages resulting from the act, although these may not have been fully developed until within a period less than necessary to complete the bar.” 8 S.W. 37.

We do not understand the Houston Water Works case as holding that inability to know of the act of negligence will not under any circumstances postpone the running of the statute of limitations. That case is usually cited for the proposition that where an act causing damage to another’s property is originally lawful, the cause of action does not accrue until the injury occurs; but where the act is originally unlawful, the cause of action accrues at the time of the act. See Tennessee Gas Transmission Co. v. Fromme, 153 Tex. 352, 269 S.W.2d 336 (1954); Stillwell v. City of Fort Worth, 140 Tex. 560, 169 S.W.2d 486 (1943); Parsons v. Uvalde Electric Light Co., 106 Tex. 212, 163 S.W. 1, L.R.A.1916 E, 960 (1914) ; Austin & N. W. Ry. Co. v. Anderson, 79 Tex. 427, 15 S.W. 484 (1891).

Texas Courts have not invariably ignored the inability to know of the existence of the cause of action in determining when such cause of action accrues. For example, a cause of action based on actionable fraud accrues when the fraud is discovered, or by the exercise of reasonable diligence should have been discovered. Wise v. Anderson, 163 Tex. 608, 359 S.W. 2d 876 (1962); Quinn v. Press, 135 Tex. 60, 140 S.W.2d 438, 128 A.L.R. 757 (1940); American Indemnity Co. v. Ernst & Ernst, 106 S.W.2d 763 (Tex. Civ.App.1937, writ ref’d); Glenn v. Steele, 141 Tex. 565, 61 S.W.2d 810 (1933). In an action for damage to plaintiff’s land from water seepage, it has been held that the cause of action accrues when the injury becomes apparent, or should have been discovered by due diligence on the part of the party affected by it. Beck v. American Rio Grande Land & Irrigation Co., 39 S.W.2d 640 (Tex.Civ.App.1931, writ ref’d) ; Crawford v. Yeatts, 395 S.W.2d 413 (Tex.Civ.App.1965, writ ref’d n.r.e.); Geochemical Surveys v. Dietz, 340 S.W.2d 114 (Tex.Civ.App.1960, writ ref’d n. r. e.); Gulf Oil Corporation v. Alexander, 291 S.W.2d 792 (Tex.Civ.App. 1956, writ ref’d n.r.e.).

Other jurisdictions have recognized the “discovery rule” in certain analogous situations. A striking example is the case of Lewey v. H. C. Frick Coke Co., 166 Pa. 536, 31 A. 261, 28 L.R.A. 283 (1895). There the defendant by use of tunnels removed a quantity of coal from under the plaintiff’s land. The coal removed was brought to the surface through the defendant’s pits or openings on its own lands, and used or disposed of as its own. The plaintiff had no knowledge of the trespass upon him or the removal of his coal, and no means of knowledge within his reach. The statute of limitations would have barred his action if it began to run from the time of the taking; the action was timely filed if it ran from the date of discovery. The Court held that the statute of limitations commenced to run when the trespass was known or could have been known to the plaintiff:

“To require an owner, under such circumstances, to take notice of a trespass upon his underlying coal at the time it takes place, is to require an impossibility; and to hold that the statute begins to run at the date of the trespass is in most cases to take away the remedy of the injured party before he can know that an injury has been done him. A result so absurd and so unjust ought not to be possible.” 31 A. 261, 263.

It was held in Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949), that a locomotive fireman’s cause of action filed under the Federal Employers’ Liability Act based on his contracting silicosis was not barred by the three year statute of limitations (45 U.S.C. § 56) when he did not know and should not have known that he had contracted the disease more than three years before filing suit.

Causes of action based upon the alleged negligence of a physician in leaving a foreign object in his patient’s body are proper subjects for the “discovery rule.” All of the procedures for placing objects in and removing them .from the body are in the control of the surgeon. It- is a virtual certainty that the patient has no knowledge on the day following the surgery — nor for a long time thereafter — that a foreign object was left in the incision. Courts out of necessity have made exceptions in order to do justice. Accordingly, we hold that the cause of action for the negligent leaving of a foreign object in a patient’s body by a physician accrues when the patient learns of, or, in the exercise of reasonable care and diligence, should have learned of the presence of such foreign object in his body. Carrell v. Denton, supra, and Stewart v. Janes, supra, are overruled.

We are not unmindful of the arguments that can be and have been made disapproving of the result we have reached here. Respondents contend that this decision will have the effect of obliterating the statute of limitations, not only in medical malpractice actions, but other tort actions as well. The best reply is found in Fernandi v. Strully, 35 N.J. 434, 173 A.2d 277, 285, 286 (1961):

“ ‘[T]he question when a cause of action accrues is a judicial one, and to determine it in any particular case is to establish a general rule of law for a class of cases, which rule must be founded on reason and justice.’ ”
“In the absence of legislative definition and specification, the * * * courts have often been called upon to delineate the statute; they have conscientiously sought to apply it with due regard to the underlying statutory policy of repose, without, however, permitting unnecessary individual injustices. In some instances they have determined that the period of limitations may justly be said to begin to run at a fixed_„date not necessarily related to the earlier date of the wrong and injury.
* * * In many other instances they have invoked their equitable powers to preclude unjust assertions of the bar of limitations.
* * * In still other instances they have declined to find the bar inapplicable though the plaintiff admittedly knew nothing about the cause of action until shortly before the institution of his action; in reaching this result they were not unaware of the individual injustice to the plaintiff but presumably determined that, on balance, it was outweighed by the need for repose and the danger that a different approach might undermine the statutory goal. * * * For present purposes we need not question these instances for we are satisfied that the case at hand falls within a special grouping or ‘class of cases’ * * * where the period of limitations may and should fairly and justly be said to begin to run when the plaintiff knows or has any reason to know about the foreign object and the existence of the cause of action based upon its presence *

It should be noted that our holding here is limited to causes of action in which a physician leaves a foreign object in the body of his patient.

It has been argued that the accrual of this cause of action cannot be distinguished from that received by a person in an automobile accident who is apparently uninjured but years later discovers that the slight trauma produced cancer. See dissenting opinion in Berry v. Branner, 421 P.2d 996, 1001 (Or.Sup.1966). However, the instant case involves the inability to know of the negligent act of leaving a sponge in the patient’s body, while the cancer producing trauma results from the negligent operation of an automobile which act is readily apparent at the moment of impact.

It is contended also that while the plaintiff’s essential evidence to establish a cause of action may well be preserved indefinitely, the defense may be badly hurt by the disappearance of witnesses or dimmed recollections through the passage of time. See dissenting opinion in Fernandi v. Strully, 35 N.J. 434, 173 A.2d 277, 286 (1961). Nevertheless, this is a peculiar type of case which is not particularly susceptible to fraudulent prosecution; furthermore, the disadvantage to the defendant is overbalanced by the shocking results of the contrary rule which would bar a plaintiff from recovery when he could not know of the wrongful act until after the period of time prescribed by the statute of limitations had run:

Respondents assert by way of counterpoint that the trial court correctly rendered judgment in their favor on motion for summary judgment, because there was no material fact issue raised and defendant was entitled to judgment as a matter of law. Mrs. Gaddis admitted on deposition that she had an appendectomy when she was eighteen years old. Respondents contend that all the record shows is that Mrs. Gaddis had two previous operations, one in 1943 and one in 1959, and that the sponge could have been left in either operation; only by pure speculation, guess and conjecture could a jury find that the sponge was left by these respondents in the 1959 operation rather than by another doctor in the 1943 operation.

Respondents cite in support of their contention cases exemplified by Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 13 A.L.R.2d 1 (1949), which case held inter alia that it is not sufficient to show that what the alleged tortfeasor did was not a probable but only a possible cause of the injury. The Bowles case does not control our question here. By filing this motion for summary judgment respondents assumed the burden of showing as a matter of law that petitioners have no cause of action against them. Neigut v. McFadden, 257 S.W.2d 864 (Tex.Civ.App.1953, writ ref’d n.r.e.); Parmlee v. Texas & New Orleans Railroad Company, 381 S.W.2d 90 (Tex.Civ.App.1964, writ ref’d n.r.e.); McGee v. Phillips Petroleum Company, 373 S.W.2d 773 (Tex.Civ.App.1963, writ ref’d n.r.e,). All doubts as to the existence of a genuine issue as to a material fact are resolved against respondents. Great American Reserve Ins. Co. v. San Antonio PI. Supply Co., 391 S.W.2d 41 (Tex.Sup.1965) ; Gulbenkian v. Penn., 151 Tex. 412, 252 S.W.2d 929 (1952). We conclude that the fact that Mrs. Gaddis underwent an appendectomy in 1943 does not discharge respondents’ burden to show that petitioners have no cause of action against them. Respondents’ counterpoint is overruled.

Respondents further assert that petitioners have waived their points of error contending that the cause of action accrues at the date of discovery, or the date the negligent act should have been discovered, and that a material issue of fact was raised, because said points of error were not briefed before this Court. Petitioners’ points are grouped together for argument. Petitioners contend therein that the so-called “discovery rule” should be adopted. The foregoing is sufficient to preserve the above questions on appeal. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943).

We reverse the judgments of the Court of Civil Appeals and the trial court, and remand the cause for trial.

GRIFFIN and WALKER, JJ., dissenting.

DISSENTING OPINION

GRIFFIN, Justice.

I respectfully dissent.

The majority opinion herein sets aside and annuls Art. 5526, Vernon’s Ann.Civil Statutes, which provides: “There shall be commenced and prosecuted within two years after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following description: * * * [ajction for injury done to the person of another.” (All emphasis herein that of the writer.) The statute does not mention discovery of the injury. The majority insert these words in the legislative enactment.

No serious contention is made by any party to this litigation that the date of this injury to the plaintiff was any other date than the date when the surgeon operated on plaintiff and left the sponge inside her body. That act was an unlawful act, an assault upon plaintiff, and was the date she was injured. The record in this case shows that plaintiff suffered pains in the abdominal region for some time prior to the discovery that the sponge was in her body. Were these pains not injuries to her, resulting from the unlawful act of the surgeon in leaving the sponge in her body?

The true rule is that quoted by the majority opinion from the case of Houston Water Works v. Kennedy, 70 Tex. 233, 8 S.W. 36 (1888) and is as follows:

“When an act is in itself lawful as to the person who bases an action on injuries subsequently accruing from, and consequent upon, the act, it is held that the cause of action does not accrue until the injury is sustained. * * * If, however, the act of which the injury was the natural sequence was a legal injury — by which is meant an injury giving cause of action by reason of its being an invasion of a plaintiff’s right— then, be the damage however slight, limitation will run from the time the wrongful act was committed, and will bar an action for any damages resulting from the act, although these may not have been fully developed until within a period less than necessary to complete the bar.” 8 S.W. 37. See also 54 C.J.S. Limitations of Actions § 168, pp. 122-123, and authorities therein cited.

According to the majority opinion, thirty-five of the fifty states in the United States recognize this rule, while only fifteen recognize the rule of the majority opinion.

There can be no distinction between this case and any other personal injury action wherein it is claimed an injury was received many years prior to its discovery. A hypodermic needle, or a part thereof, is broken and left in the body during a single injection of medicine administered by a hypodermic syringe. The needle is sterile and for years causes no pain. After many years the needle begins to move and gets into the blood stream and lodges in a joint of the body causing stiffness and loss of use. The present case allows recovery against whichever doctor or nurse plaintiff elects to sue, who at any previous time gave plaintiff an injection and plaintiff alleges left the broken needle in plaintiff’s body. All of defendant’s records have been lost, misplaced, or destroyed over the intervening years. Evidence is not now available and memories cloudy.

Another example: Two parties in different automobiles have what then seems to be a relatively minor collision. Medical examination of all parties shows only minor injuries from which all parties recover. Litigation results within the two-year statute, and a recovery is had. Many years later one of the parties develops tuberculosis from a sliver of rib in the lungs. Testimony is offered that this sliver entered one lung as a result of the wreck and caused the tuberculosis. The witnesses to the wreck have moved away and are not now available. Despite the previous suit and recovery, additional recovery is permitted under the “discovery” rule of the majority. Res judicata does not apply, for the reason that at the time of the first litigation the present plaintiff did not know of this tuberculosis and therefore could not have pleaded it as a part of the cause of action.

This “discovery” doctrine will lead to hopeless confusion and leave liability open without any limitation “cut off” point. The Legislature has established a “cut off” point, and this Court has no right to pass legislation changing the statute of limitations.

Only two years ago in the action of this Court in giving an unqualified refusal to Stewart v. Janes (Tex.Civ.App., 1965), 393 S.W.2d 428, we refused to follow the philosophy of the majority opinion. I see nothing that has happened in the last two years to call for a different result.

I would affirm the judgment of the Court of Civil Appeals.

DISSENTING OPINION

WALKER, Justice.

I respectfully dissent. Although petitioner did not know it, she undoubtedly had a cause of action from the moment the foreign object was left in her body. The courts in Carrell v. Denton, 138 Tex. 145, 157 S.W.2d 878, and Stewart v. Janes, Tex. Civ.App., 393 S.W.2d 428 (wr. ref.), simply held that the cause of action accrued when it did accrue and then gave effect to the plain provisions of Article 5526. This approach produces harsh results in some instances, but the statute is not ambiguous and its application to the facts of this case has been squarely and repeatedly decided in a manner that seems to carry out the legislative intent as reflected by the terms of the act. In my opinion that should put the matter at rest as far as the courts are concerned. It is then for the Legislature to determine whether and how the statute is to be amended to take care of special hardship cases. Until the Legislature directs otherwise, therefore, I would adhere to the rule laid down in Carrell and Stewart.

      . Art. 6526, Vernon’s Ann.Civ.St.: “There shall be commenced and prosecuted within two years after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following description: * * * Action for injury done to the person of another.” (Emphasis added.)


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    GIBRALTAR SAVINGS ASSOCIATION, Petitioner, v. James O. GERST, Savings and Loan Commissioner of Texas, et al., Respondents.
    No. B-238.
    Supreme Court of Texas.
    July 26, 1967.

      Jacobsen & Long, Joe Long, Brown, Erwin, Maroney & Barber, Frank C. Erwin, Jr., Austin, for petitioner.
    Crawford C. Martin, Atty. Gen., Charles M. Bardwell, Asst. Atty. Gen., John W. Stayton, Austin, Hutcheson, Taliaferro & Hutcheson, Houston, Sneed & Vine, Louis Scott Wilkerson, Austin, DeLange, Hud-speth, Pitman & Katz, C. M. Hudspeth, Houston, for respondents.
   ON APPLICATION FOR WRIT OF ERROR

PER CURIAM.

The Court of Civil Appeals has held: (1) that the ex parte affidavit of Dr. Francis Yeager introduced at the hearing before the Savings and Loan Commissioner may not be considered in determining whether the order of the Commissioner is supported by substantial evidence even though Dr. Yeager testified at the trial in the district court; and (2) that the finding of the Commissioner that there is no public need for the proposed branch office is reasonably supported by substantial evidence. 413 S.W.2d 718. We are in agreement with these conclusions.

Instead of rendering judgment upholding the order of the Commissioner, the intermediate court remanded the cause to the Commissioner in the interest of justice, citing Rules 434 and 505, Texas Rules of Civil Procedure, and the opinion in Ben-oit v. Wilson, 150 Tex. 273, 239 S.W.2d 792. The cited rules and decision deal with remands to the trial court and do not support the action of the Court of Civil Appeals in this case. The remand to the Commissioner is not questioned, however, except by conditional applications for writ of error which must be dismissed because the application of Gibraltar Savings Association is not granted. It is unnecessary for us to determine, therefore, whether the action taken by the Court of Civil Appeals is authorized by Section 11.12 of Art. 852a, Vernon's Ann.T ex.Civ.Stat.

The application for writ of error filed by Gibraltar Savings Association is Refused, No Reversible Error, and the conditional applications filed by the Commissioner and by Houston First Savings Association et al. are dismissed.


author: WALKER, Justice.

text:
    Ex parte John CAMPBELL, Relator.
    No. B-291.
    Supreme Court of Texas.
    July 19, 1967.

      Gerald J. Smith, El Paso, for relator.
    Pearson & Speer, D. Clark Hughes, El Paso, for respondent.
   WALKER, Justice.

This is an original habeas corpus proceeding. It arises out of a divorce action in which John Campbell, relator, was ordered to pay, as temporary alimony and for child support, $150.00 on March 31,' 1967, $150.00 on April 7, 1967, and a like amount on the 7th day of each succeeding month thereafter. The wife filed an application to hold relator in contempt for failing to comply with this order. After a hearing at which both parties appeared in person and by their attorneys, the district court entered a judgment reading, in part, as follows:

“It is, therefore, ORDERED, ADJUDGED AND DECREED by the Court that the Respondent, John Campbell, be, and he is hereby held guilty of wilful contempt of this Court by reason of his failure and refusal to make the payment on April 7, A.D. 1967, in full, his having only paid $50.00, being in arrears in the the amount of $100.00, and that his punishment for such contempt is here affixed by ordering him immediately committed to the County Jail of El Paso County, Texas, until the sum of $250.00 is paid in full, plus all costs in this behalf expended, or until the further order of this Court.”

Relator was taken into custody and confined pursuant to this order until he was released upon our granting his application for a writ of habeas corpus. He contends that the order is void under the authority of Ex Parte Proctor, Tex.Sup., 398 S.W. 2d 917. There the contempt judgment did not recite the amount of the arrearage and did not purport to assess a fine but did fix the punishment at confinement for three days. It then provided that the husband should pay $550.00 to the wife as child support and further directed that he be released from custody upon the payment of such amount plus costs. The husband applied to us for a writ of habeas corpus after serving the three days in jail. We held that the judgment was void to the extent that he was required to pay $550.00 to obtain his release, because it did not appear that the same was ordered either by way of punishment or for the purpose of compelling compliance with the order he was alleged to have violated.

In our opinion the Proctor case is not controlling here. The order now under attack recites that relator was $100.00 in arrears and then directs that he be punished for such contempt by confinement until $250.00 and all costs have been paid. As we construe the judgment, it imposes a fine of $250.00. Under the provisions of Article 1911, Vernon’s Ann.Tex.Civ. Stat., the court had no power to assess a fine of more than $100.00, but this does not mean that the judgment is wholly void. In Ex Parte Ellerd, 71 Tex.Cr.R. 285, 158 S.W. 1145, the applicant was fined $250.00 for disobeying an order of the district court. After granting a writ of habeas corpus, the Court of Criminal Appeals remanded the applicant to custody because it concluded that he was not entitled to be discharged until payment of the $100.00 fine and costs which the district court could legally require him to pay. We are in agreement with this holding. It is in accordance with the general rule that where a court has jurisdiction of the person and the subject matter, an excessive sentence is not void ab initio and the person in custody thereunder cannot be discharged on habeas corpus until he has suffered or performed so much of the sentence as was within the power of the court to impose. See Ex Parte Pruitt, 139 Tex.Cr.R. 438, 141 S.W. 2d 333; Annotation, 76 A.L.R. 468, 476.

Relator is remanded to the custody of the Sheriff of El Paso County, but he is entitled to be discharged upon payment of a fine of $100.00 and costs. If he is not released when such fine and costs have been paid, we will entertain another application for a writ of habeas corpus.

SMITH, J., dissents.


author: DICE, Judge.

text:
    Ex parte Buddy Joe REECE.
    No. 40578.
    Court of Criminal Appeals of Texas.
    July 26, 1967.
    Alfano, Dailey & Pitchford, by Fred H. Dailey, Jr., Houston, Kiibler & Kiibler, by John S. Kiibler, Jr., La Porte, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

This is a habeas corpus proceeding wherein the relator seeks his release from confinement in the Texas Department of Corrections.

The record reflects that on December 28, 1961, the relator was convicted in the 16th Judicial District Court of Cooke County, in Cause No. 15537, of the offense of cattle theft and sentenced to serve not less than two nor more than ten years in the penitentiary. Trial was before the court, a jury being waived, upon relator’s plea of guilty.

Relator was represented by the Honorable Shelby Fletcher, an attorney, appointed by the court on the day of trial.

Relator insists that the judgment of conviction is void for two reasons.

It is first insisted that the judgment is void because no written waiver of the ten days allowed to prepare for trial was executed by relator and his court-appointed counsel, as required by Art. 494, Vernon’s Ann.C.C.P., which was in effect at the time.

The decisions of this court in Ex parte Austin, Tex.Cr.App., 410 S.W.2d 439, Ex parte Cooper, Tex.Cr.App., 388 S.W.2d 939, and other cases holding the provisions of Art. 494, supra, to be mandatory are relied upon by relator in support of his contention.

In Ex parte Meadows, Tex.Cr.App., 418 S-W.2d 666, this court in passing upon a similar contention, said:

“It does not follow that the failure of appointed counsel to waive in writing the 10 days allowed him to prepare for trial is sufficient grounds for post conviction relief, if it appears that such failure did not result in injury to the defendant such as would deprive him of a fair trial or deny him a constitutional right.
“Insofar as they hold or appear to hold that the failure of court appointed counsel, or said counsel and the accused, to waive in writing the 10 days allowed appointed counsel to preparé for trial is ground to set aside an otherwise valid conviction by habeas corpus, or other post conviction or collateral attack, Ex parte Austin, Tex.Cr.App., 410 S.W.2d 439; Ex parte Dowden, Tex.Cr.App., 408 S.W.2d 512; Ex parte Brown, Tex. Cr.App., 404 S.W.2d .590; and Ex parte Cooper, Tex.Cr.App., 388 S.W.2d 939, are overruled.”

In the instant proceeding, relator makes no claim that he was not guilty of the offense charged. He pleaded guilty to the indictment. No injury to relator appears to have resulted from the failuré to execute the written ten-day waiver which deprived him of a fair trial or any constitutional right.

It is next insisted that the conviction is void because the court-appointed counsel, Shelby Fletcher, was, at the time of his appointment in 1961, the duly elected county judge of Cooke County. In support of such contention, relator refers to the provisions of Art. 494b, V.A.C.C.P., in effect at the time of his trial, which read:

“From and after the effective date of this Act, no elected county official in this State, who is a member of the legal profession and licensed to practice law in this State, shall be appointed by any court to represent any person accused of cx-ime, and said official shall be under no duty to defend any such persons under such appointment unless he chooses to do so. Acts 1951, 52nd Leg., p. 752, ch. 408, sec. 1.”

Relator insists that by virtue of his position of county judge his court-appointed attorney, Shelby Fletcher, was — in effect, an arm of the state, and an inherent conflict of interest was raised by virtue of his relationship to relator in opposition to the interest of the state. He also contends a further conflict of interest by reason of the fact that attorney Fletcher, in his capacity as county judge, had committed relator to the custody of the Texas State Youth Development Council in the year 1956. He insists that by reason of such conflict of interest the appointment of attorney Fletcher to represent him constituted a denial of the effective assistance of counsel and the fundamental fairness of due process guaranteed to relator by the Sixth and Fourteenth Amendments to the Constitution of the United States and Art. 1, Sec. 10, of the Constitution of this State, Vernon’s Ann. St.

In Williams v. State, 167 Tex.Cr.R. 503, 321 S.W.2d 72, cert, denied, 359 U.S. 930, 79 S.Ct. 615, 3 L.Ed.2d 632, it was held that a lawyer who is county judge is not —under Art. 494b, supra — disqualified from acting as attorney for an accused when he agrees to serve under appointment of a district judge.

We have carefully considered the out-of-state authorities cited by relator, and adhere to our holding in Williams v. State, supra.

We do not agree with the contention that there was a conflict of interest, by virtue of attorney Fletcher’s position of county judge and his appointment to represent relator, which would in any manner deny relator a fair trial or due process of law under the Constitution and laws of this State and of the United States. The contention is overruled.

The relief prayed for is denied.


author: WOODLEY, Presiding Judge.

text:
    Ex parte Daniel LANE.
    No. 40646.
    Court of Criminal Appeals of Texas.
    July 26, 1967.
    A. W. Davis, Bryan, for relator.
    William R. Vance, Asst. County Atty., and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

This is a habeas corpus proceeding attacking petitioner’s conviction for assault with intent to murder with punishment enhanced under Article 63, P.C.

The conviction was in Cause No. 9147 in the District Court of Brazos County on May 5, 1955.

The prior convictions used to enhance the punishment were in the same court. One was for assault with intent to murder with malice in Cause No. 7843 on October 2, 1933. The other was for burglary in Cause No. 8135 on March 1, 1937.

The evidence adduced at a hearing on petitioner’s application for writ of habeas corpus sustains petitioner’s allegation that he was indigent and unable to employ counsel on March 1, 1937, and that he was not represented by counsel and did not intelligently and understandingly waive his right to counsel in Cause No. 8135.

The state points out that the prior conviction for assault with intent to murder in 1933 in which he was represented by counsel was available to enhance the punishment for a like offense under Art. 62, P.C. Appellant has credit for more than 15 years on his sentence. We need not therefore discuss the necessity of the sentence being reformed so as to provide for a term of IS years under Art. 62, P.C., rather than life under Art. 63, P.C.

For like reason we need not consider the interesting question of the effect of the jury in Cause No. 8135 having assessed petitioner’s punishment at 5 years in the penitentiary in addition to their verdict finding that he had been twice previously convicted of a felony less than capital as charged in the indictment, both of which verdicts were received by the court and judgment rendered and sentence pronounced thereon.

Under recent decisions, the 1937 conviction for burglary is void and was not available to enhance the punishment under Art. 63, P. C. Greer v. Beto, 384 U.S. 269, 86 S.Ct. 1477, 16 L.Ed.2d 526; Ex parte Hammonds, Tex.Cr.App., 407 S.W.2d 779. Petitioner, having credit for more than the maximum term to which he could have been legally sentenced in Cause No. 9147 on May 5, 1955, is entitled to his writ.

The petition for writ of habeas corpus is granted and petitioner is ordered released from further confinement under sentence in said Cause No. 9147.


author: BATEMAN, Justice.

text:
    Rachelle M. KLEPAK, Appellant, v. Henry KLEPAK, Appellee.
    No. 16925.
    Court of Civil Appeals of Texas. Dallas.
    June 16, 1967.
    Rehearing Denied July 14, 1967.

      Wm. Andress, Jr., of Andress, Wood-gate & Condos, Dallas, for appellant.
    E. E. Berwald, of Rosenfield, Berwald & Mittenthal, Roy J. True, Dallas, for ap-pellee.
   BATEMAN, Justice.

The sole question presented by this appeal is whether the trial court abused its discretion in the matter of increasing child support. The parties were divorced in April 1965. The custody of their daughter, Kathryn Louise Klepak, then two and one-half years of age, was awarded to her mother, the appellant, and the appellee, father of the child, was ordered to pay $100 per month for the child’s support. Thereafter various motions were filed by the parties, including one by appellant praying that the child support be increased to $1,000 per month. After an extensive hearing the trial court ordered appellee to pay $150 per month for the support of the child.

The appellant in her brief raises four points of error on appeal, the burden of which is that the trial court erred in holding that his hands were tied by the prior award, thus applying an erroneous rule of law, which constituted legal abuse of discretion. Appellant does not assert a lack of evidence to support the judgment, or contend that the judgment is contrary to the weight and preponderance of the evidence; merely that in making the award the court applied a fallacious rule of law.

In the course of a full hearing appellant testified that on the trial of the divorce case she had told the judge trying the case that she did not want any amount awarded as child support; that she did this in a sincere effort to cooperate with appellee and enable him to settle his debts and get on his feet and with the feeling that “then he would come across with a legitimate sum for the support of his child”; but that the judge trying the divorce case stated that the law imposed upon him a duty to order the father to pay a reasonable amount for the support of the child and that he was fixing the amount at $100 per month. Appellant contended at the hearing of her motion to increase the child support, and contends vigorously in this court on appeal, that it was improper under the circumstances for the trial court to take into consideration the amount of the previous award in arriving at the amount of increased child support. Her contention that he did so and thus applied “the wrong rule of law, constituting legal abuse of discretion,” is based upon the following colloquy between the trial court and appellant after appellant had testified as to her reasons for telling the judge who tried the divorce case that she did not desire the award of any child support:

“THE COURT: There is where you made your mistake though, by tying the Court’s hands.
“MRS. KLEPAK: Well, I realize—
“THE COURT: Actually you have tied the Court’s hands more or less by agreeing to it and entering the Order.
“MRS. KLEPAK: That’s what I understand now but I certainly want you to understand that that was not my purpose at the time and by trying to do what I felt was the right thing to do from the child’s standpoint and from my own standpoint, I seemed to have shot my whole case forever because it seems like now unless the economy shoots sky high, and I have no basis for — I mean I really did want to do what was absolutely right.
“THE COURT: The law is so binding that the Judge, of course has some discretion but yet he is tied by the law.”

In our opinion, the foregoing statement by the court cannot properly be seized upon as an ex cathedra ruling by the court that is so contrary to the law as to indicate that his final decision was based upon it or upon any other consideration than the physical, mental and spiritual needs of the child and the financial ability of the father under all of the circumstances disclosed to the court by the testimony.

Appellant contends that the award of $100 per month for child support by the divorce court in 1965 was arbitrary and alien to the actual needs of the child and was fixed at a minimal amount in the light of appellant’s unfortunate statement that she did not desire such an award in any amount. She points out that in the divorce decree there is no finding that $100 per month was the amount reasonably necessary to support the child; but it is our opinion that the court in making that award impliedly found, as was his duty under Vernon’s Ann.Civ.St., Art. 4639a, that the amount awarded was for the best interest of the child after inquiring into, and taking into consideration, the surroundings and circumstances of the child and the financial circumstances of both parents and their ability to contribute to the support of the child. Gully v. Gully, 111 Tex. 233, 231 S.W. 97, 15 A.L.R. 564 (1921). We have no right to assume that the judge trying the divorce case shirked that statutory duty and made a grossly inadequate award merely because the mother of the child stated that she did not want or need any child support whatever. It must be presumed, in the absence of any showing to the contrary, that the trial judge in each instance faithfully performed his statutory duty, and exercised a proper judicial discretion both in making and increasing the award. Matthews v. Landowners Oil Ass’n, 204 S.W.2d 647, 652 (Tex.Civ.App., Amarillo 1947, writ ref’d n. r. e.); Lucas v. Lucas, 365 S.W.2d 372, 379 (Tex.Civ. App., Beaumont 1962, no writ); A. & M. College of Texas v. Guinn, 280 S.W.2d 373, 377 (Tex.Civ.App., Austin 1955, writ ref’d n. r. e); Dittman v. Model Baking Co., 271 S.W. 75 (Tex.Com.App. 1925, jdgmt adopted).

The statement of facts contains 312 pages of testimony, many of which contain detailed statements pertaining to the needs of the child and the financial circumstances of the parents. No findings of fact or conclusions of law were filed, and we hold that appellant has failed to demonstrate that the judgment appealed from was based on an erroneous legal principle or that it was arrived at by the application of any improper standard ór formula. Appellant’s four points of error are therefore overruled and the judgment is

Affirmed.


author: WILSON, Justice.

text:
    Doris Smith GRATEHOUSE, Appellant, v. Woodrow W. GRATEHOUSE, Appellee.
    No. 4612.
    Court of Civil Appeals of Texas. Waco.
    June 22, 1967.
    Rehearing Denied July 13, 1967.

      Butler, Binion, Rice, Cook & Knapp, Tom Alexander, Houston, for appellant.
    F. W. Moore, Houston, for appellee.
   OPINION

WILSON, Justice.

The question here is whether, as against appellant’s contentions, the Harris County Court of Domestic Relations improperly granted a temporary injunction restraining defendant in a divorce case pending in that court from proceeding as plaintiff in a divorce action in the district court of another county.

Appellee husband filed a divorce suit in the Harris County Court on February 1, 1966. In May, 1966 appellant wife answered alleging generally lack of jurisdiction, estoppel by “actions” in a Louisiana proceeding, condonation and recrimination. On August 24th of that year she filed a cross-action for divorce in the Harris County suit. September 7, 1966 appellant wife filed a divorce suit against appellee in the District Court of San Augustine County. The parties devote extensive discussion to Louisiana separation a mensa et thoro proceedings. They are not the subject of the prayer for injunction or the order.

The husband filed in the latter court on October 3rd a “motion to the jurisdiction” alleging the essence of the foregoing facts, the prior pendency of the Harris County divorce action between the same parties, and the appearance of the wife therein.

Copies of the pleadings in the first suit in Harris County were attached as exhibits. That plea was overruled by the San Augustine County District Court October 3, 1966 by an order which also directed custody of children and awarded child support. Within a week thereafter the husband filed another plea which he denominated a “plea in abatement” in the San Augustine County case, and obtained a setting for its hearing on November 3rd.

The temporary injunction appealed from was granted by the court in the Harris County case on October 28th.

The wife’s point is that, although the Harris County court had general jurisdiction to grant injunctive relief, the temporary injunction was not authorized here because the husband had “an adequate remedy by plea in abatement” in San Augustine County, which was filed but not acted on before the injunction order was entered. Lancaster v. Lancaster (1956) 155 Tex. 528, 291 S.W.2d 303; and Powers v. Temple Trust Co., 124 Tex. 440, 78 S.W.2d 951 are relied on. The effect of the holdings in these cases is that where a subsequent suit involving the same parties and subject matter is filed in another court of co-ordinate jurisdiction, the filing and presenting of a plea in abatement in the latter court is prerequisite to the granting of injunctive relief by the court in which the first suit is filed.

The argument is answered by the fact that a plea in abatement was so filed and presented before the Harris County Court of Domestic Relations acted.

The misnomer of the husband’s pleading does not destroy its effect as a plea in abatement. It contained the essentials of such a plea, although called a “motion to the jurisdiction.” It was not verified, but no exception was presented. A principal purpose of a pleading is to inform the court and the opposing party of the facts relied on and of the pleader’s claims. It is to be “considered for all that it means instead of what it is called.” Glenn v. Dallas County Bois D’arc Island Levee Dist., 114 Tex. 325, 268 S.W. 452, 453; and the name indorsed on it is not controlling. Goodrich v. First Nat. Bank, Tex. Civ.App., 70 S.W.2d 609, writ ref.

Appellant urges injunction was improper because she pleaded the husband had not satisfied statutory residence requirements so as to give the Harris County court jurisdiction, and the husband failed to prove his residence in the hearing on the application for injunction.

Aside from the fact that the wife voluntarily answered and filed a crossr action in Harris County, in which she affirmatively and unconditionally admitted the husband had resided in the State and County for the required time, the issue of whether he had been an inhabitant as required by Art. 4631, Vernon’s Ann.Tex. Stat., is a part of the divorce action, the very subject matter with which the injunction prohibited interference. It is not an issue to be determined on the hearing for temporary injunction as a prerequisite for the granting of that relief. Houston Belt & Terminal Ry. Co. v. Texas & N. O. R. Co., 155 Tex. 407, 289 S.W.2d 217; Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549; Southwest Weather Research v. Duncan, 160 Tex. 104, 327 S.W.2d 417.

In our opinion the injunction order is not subject to the objection raised. Cleveland v. Ward (1926), 116 Tex. 1, 285 S.W. 1063,1072.

Affirmed.

      . There is evidence that the San Augustine County District Court entered an order on November 3, 1966 overruling the husband’s plea in abatement, but staying further proceedings in that case pending determination of the present appeal.


author: BARROW, Chief Justice.

text:
    R. L. STEWART, Appellant, v. H. L. DAVIS, Jr., Appellee.
    No. 14598.
    Court of Civil Appeals of Texas. San Antonio.
    June 7, 1967.
    Rehearing Denied July 12, 1967.
    Simpson, Hancock & Green, Roland J. Bellard, Texas City, for appellant.
    P. Otis Hibler, Harry J. Burns, San Antonio, for appellee.
   BARROW, Chief Justice.

This is an appeal from a take-nothing judgment granted defendant in a suit for breach of contract. Appellant, a licensed insurance agent, brought this suit to recover damages from appellee, d/b/a H. L. Davis & Son, for breach of an exclusive contract authorizing appellant to submit a bid to Galveston County to write insurance coverage on the Galveston County Hospital through the Commerce & Industry Insurance Company of New York. Davis is the general agent for the State of Texas for this Company, hereinafter referred to as C & I. The trial court concluded from depositions before it, that the exclusive contract given Stewart by Davis was in violation of Art. 7426, §§ 1, 3 and 5, Vernon’s Ann.Civ.St. and was therefore void and unenforceable.

Stewart was a local recording agent of Davis, as were five or six other local agencies in the Galveston area. Insurance Code, Art. 21.09 and Art. 21.14, §§ 1 and 2, V.A.T.S. Among other companies written through the Davis general agency was C & I. The evidence establishes that although a uniform basic rate is set by the State Insurance Commission for a stated risk, various companies are permitted to deviate from such basic rate in certain percentages as determined by the Commission. In the fall of 1963, C & I enjoyed the distinct advantage of being the only stock company given a 25% deviation rate from the basic premium.

At this time the building and contents of the Galveston County Hospital were insured with a policy written by another insurance company through an association of Galveston insurance agents. A new hospital wing was under construction and it was recognized that a new policy would be required. Stewart determined that if he could obtain from Davis, the exclusive right to bid for coverage of the hospital through C & I and persuade the Galveston Commissioners’ Court to let the insurance by competitive bids, he could secure the insurance. Stewart testified that counties are required to insure through stock companies. After several discussions, Davis wrote Stewart on January 1, 1964, naming him the exclusive agent for the writing of this coverage through C & I. Stewart then devoted considerable time with the members of the Commissioners’ Court and finally persuaded them to place this insurance by competitive bids. Stewart furnished the plans and specifications to Mr. Connolly, a special agent for Davis, and Mr. Connolly secured the basic premium rate for this risk from the State Insurance Commission.

These facts became known to other Galveston agents and considerable pressure was exerted on Davis to get him to withdraw the exclusive authority given Stewart. C & I officers .complained to Davis that all local agents authorized to write their policies should be given an equal opportunity to bid. The other local agents for Davis in the Galveston area complained of this preferred treatment of Stewart. Davis yielded to this pressure and on February 19, 1964, he wrote Stewart to confirm an earlier telephone conversation advising Stewart that the exclusive arrangement was cancelled. Mr. Connolly furnished the premium rate to other Davis agents, who submitted identical bids with Stewart to insure the hospital through C & I at a deviation rate of 25%. The Commissioners’ Court awarded the bid to Mr. Smith, a local agent of Davis, who had submitted a bid in his name on behalf of an association of Galveston agents, and the commission of 15% was divided among 13 or 14 members of this association. Stewart was not a member and did not share in this commission.

The question before this Court is whether an exclusive contract between a general agent and his local recording agent falls within the provisions of the Anti-Trust Statutes. The rule established in Welch v. Phelps & Bigelow Windmill Co., 89 Tex. 653, 36 S.W. 71 (1896), is that a trust is not created by an agreement growing out of the relationship of principal and agent where the agent is acting in furtherance of the principal’s business, since there is no “combination of capital, skill, or acts by two or more persons, [firms, corporations or associations of persons].” See also, Padgitt, v. Lone Star Gas Co., Tex.Civ.App., 213 S.W.2d 133, no writ; Cunningham v. Frito Co., Tex.Civ.App., 198 S.W.2d 772, no writ; McDaniels v. Schmalstieg, Tex.Civ.App., 36 S.W.2d 278, writ dism’d; 38 Tex.Jur.2d, Monopolies, Combinations, etc., § 15.

Appellee urges that the relationship between Stewart and Davis is not the typical agency situation involving only the internal control of a principal and agent. The agency contract is not in the record, so we must presume same is as provided by the Insurance Code. See Insurance Code, Art. 21.14 § 2, Vernon’s Ann.Civ.St.; Shaller v. Commercial Standard Ins. Co., 158 Tex. 143, 309 S.W.2d 59 (1958). We have not found any case discussing the application of this type of relationship to the Anti-Trust laws. However, it has been held that the general principles of the law of agency apply in the relationship between an insurance company and its agents. Adams v. LaSalle Life Ins. Co., 99 S.W.2d 386, writ dism’d. See also Appleman, Insurance Law and Practice, §§ 8672, 8952.

In Potomac Fire Ins. Co. v. State, Tex. Civ.App., 18 S.W.2d 929, writ ref’d, the Court held that a contract among several insurance companies to limit the commission of their local agents to 20% violated the Anti-Trust Statutes. In doing so, however, the Court pointed out that the contract in question was not one between a principal and agent to prohibit or limit the agent’s dealings, or incident to the agent’s employment, but rather was a combination and agreement between two insurance corporations. The Court, therefore, held, at least by implication, that a contract between a company and its own agents would not have been in violation of the Anti-Trust Statutes.

Appellee cites Southern Health Ass’n v. Harris Memorial Methodist Hospital, Tex. Civ.App., 180 S.W.2d 169, writ ref’d w. o. m., wherein a contract between an insurance company and a hospital was held to violate the Anti-Trust laws of Texas. There is no discussion of the agency question and we do not consider this case in point on the question before us.

We can see no valid distinction in the relationship of a general agent to one of his local recording agents than any other principal-agent relationship, insofar as the application of the Anti-Trust laws are concerned. We therefore conclude that the trial court erred in holding from the record before it that the exclusive contract granted Stewart by Davis was in violation of the Anti-Trust laws and was therefore void and unenforceable.

The judgment of the trial court is reversed and the cause remanded for trial on the merits.

      . The relevant provisions of Art. 7426, Vernon’s Ann.Civ.St., are:
      “A ‘trust’ is a combination of capital, skill or acts by two or more persons, firms, corporations or associations of persons, or either two or more of them for either, any or all of the following purposes:
      1. To create, * * * or carry out restrictions * * * in the free pursuit of any business authorized or permitted by laws of this State.
      2. To fix, maintain, increase or reduce * * * the cost of insurance,
      3. To prevent or lessen competition in * * * the business of insurance, * * *.
      4. To fix or maintain any standard or figure whereby the * * * cost of * * * insurance, * * * shall be in any manner affected, * * *.
      5. * * * to preclude a free and unrestricted competition among themselves or others in the * * * business of * * * insurance, * *


author: TIREY, Justice.

text:
    HOU-TEX CONSTRUCTION COMPANY, Inc., Appellant, v. Tom S. WILLIAMS et ux., Appellees.
    No. 4603.
    Court of Civil Appeals of Texas. Waco.
    June 1, 1967.
    Rehearing Denied June 29, 1967.

      Schlosser & Whitcomb, Paul W. Worn-mack, Houston, for appellant.
    Smith & Lehmann, H. Fletcher Brown, Houston, for appellees.
   OPINION

TIREY, Justice.

The Hou-Tex Construction Company, Inc., brought this action against Tom S. Williams and wife, on a promissory note executed by Williams and his wife in the sum of $20,000.00 dated April 10, 1964, and payable to the order of the Medical Center National Bank, Houston, such note bearing interest from date until maturity at the rate of 6½% per annum. The note was payable in monthly installments and it provided for accelerated maturity and 10% attorney’s fees in certain contingencies. It was secured by a deed of trust of even date with the note on Lots 13 and 16, in Block 2, in Farrell Gardens, an Addition to the City of Houston in Harris County, according to the map of same recorded in Vol. 14, Page 75, of the Map Records of Harris County, Texas, together with all improvements thereon or to be located thereon. The purpose of the note was to pay for the erection of building on the lot duly described in the written contract between the Construction Company Williams and his wife. The note and deed of trust securing it were transferred by the bank to the Construction Company before maturity, the understanding between the parties being that when the Construction Company had completed the building according to the plans and specifications and after it had been accepted by Williams and his wife, that the bank would advance the money to the Construction Company on the note. The Construction Company, after the papers were fully executed, began the construction of the building and before its completion many controversies arose between the Construction Company and Williams. This controversy resulted in the Construction Company bringing this suit for the full amount of the note, together with foreclosure of the deed of trust lien. There is much pleading by the parties. Suffice to say that Williams and his wife sought cancellation of the note and deed of trust lien on the ground that the Construction Company had not performed the contract, and by reason thereof there was a total failure of consideration for the note and deed of trust lien, and made the bank a party-defendant to the suit by its cross-action and asked that the note and deed of trust lien be cancelled. The pleadings are somewhat complicated, but in view of the outcome of the cause in the District Court, and in view of the disposition we make of this cause further comment on the pleadings would be of no precedential value.

At the conclusion of the testimony the court overruled the Construction Company’s Motion for Instructed Verdict. The Bank made its Motion for Instructed Verdict, which was granted, and, thereafter, the Construction Company elected to enforce only its alleged remedy for recovery upon the note and deed of trust lien.

The Court submitted 4 Issues to the jury. They are (omitting the burden of proof clause) substantially as follows:

(1) Do you find that the Hou-Tex Construction Company, Inc., has not substantially performed its building construction contract with defendant, Tom Williams, dated April 6, 1964, to build the building in question? To which the jury answered “We do.”

“You are instructed in connection with the foregoing issue that ‘substantial performance’ as used in said issue means:

“The Contractor must have in good faith intended to comply with the contract, and shall have substantially done so in the sense that the defects are not pervasive, do not constitute a deviation from the general plan contemplated for the work, and are not so essential that the object of the parties in making the contract and its purpose cannot, without difficulty, be accomplished by remedying them. Such performance permits only such omissions or deviation from the contract as are inadvertent and unintentional, are not due to bad faith, do not impair the structure as a whole, and are remediable without doing material damage to other parts of the building in tearing down and reconstructing.”

(2) What sum of money do you find will be required to defray the reasonable cost or expense to complete the building construction contract of Hou-Tex Construction Company, Inc., with defendant, Tom Williams and wife, dated April 6, 1964, according to the terms thereof? To which the jury answered “$7,120.00.”

(3) Do you find that said Construction Company or any of its sub-contractors have prevented Williams from occupying the building at anytime since May 15, 1964? To which the jury answered “We do.”

(4) For what period of time do you find that the Construction Company, or any of its sub-contractors, prevented Williams from occupying the building in question since May 15, 1964? To which the jury answered “May 15, 1964, to continuance.”

The court overruled the plaintiff’s motion for judgment notwithstanding certain jury findings and granted the Williams’ motion for judgment in part. In Williams’ motion for judgment in paragraph one, they asked the Court: “ * * * to enter judgment on the undisputed evidence, the stipulations of the parties, and the verdict of the jury * * Pertinent to this discussion the Court’s judgment awarded to the Construction Company the sum of $326.00 against Williams and his wife, which sum was stipulated by the parties. The court further found and decreed that Williams and his wife are not entitled to recover on their cross-action against the Construction Company for their liquidated damages. The judgment further found and decreed that the Construction Company recover nothing against Williams and his wife upon the note and deed of trust. The judgment further found and decreed that the $20,000.00 note dated April 10, 1964, executed by Williams and his wife to the bank be cancelled and held for naught, and held that the deed of trust lien given to secure the note be removed as a cloud upon the title of the defendants’ real estate described in the note and deed of trust. The Construction Company and Williams and his wife excepted to the judgment entered by the court. Defendant Williams and wife did not file any motion for new trial, and in their brief state that they cross-assign error to the judgment of the trial court wherein it denied them any recovery for liquidated damages. The Construction Company seasonably filed its motion for new trial and has perfected its appeal. It assails the judgment on 7 points. They are substantially that the Court erred:

(1) In rendering judgment on the verdict of the jury because there was an irreconcilable conflict in the jury’s findings between Issues 1 and 2;

(2) In rendering judgment that appellant recover nothing on its note and deed of trust based on jury finding to Issue 1 because there was no evidence having a probative force to support such answer ;

(3) In rendering judgment that appellant recover nothing on its note and deed of trust based on answer to Issue 1 because such answer, when considering and weighing all the evidence adduced at the trial, is clearly wrong and manifestly unjust;

(4, 5, 6 and 7) Raise questions of no evidence and insufficiency of the evidence, and that the jury verdict is against the overwhelming weight and preponderance of the evidence.

We find that Williams and his wife made no exceptions to the Court’s Charge nor did they request any Special Issues. Since the court submitted the cause in the manner we have heretofore stated, and since the jury has found that it would take $7,120.00 to finish the building according to the provisions of the contract, we are of the view that this cause is ruled by the pronouncements of our Supreme Court in Graves v. Allert & Fuess, 104 Tex. 614, 142 S.W. 869, 39 L.R.A..N.S., 591 (1912), and Hutson v. Chambless, 157 Tex. 193, 300 S.W.2d 943, (1957), and cases there cited. See also Texas Digest, Damages ’^‘123. As we understand the above cases, since the court tried this cause in order to find out whether or not the contractor had substantially completed the building according to the contract, and the further inquiry if he had not done so, what it would cost to finish the building so as to make it comply with the terms of the contract, and since Williams and his wife did not object to the theory upon which the cause was tried, nor the theory upon which the court submitted the measure of damages to the jury, they are in no position to complain. See Rules 277-279 and 324 Texas Rules of Civil Procedure. See also West v. Slaughter, Tex.Civ.App., 384 S.W.2d 185 (1964) n.r.e. It is obvious that the judgment entered by the trial court did not conform to the verdict rendered by the jury. The Williams were obligated to pay $20,000.00 for the construction of the building if it were constructed according to the plans and specifications. The jury found it was not so constructed, and further found that it would require an expenditure of $7,120.00 to make the building conform to the plans and specifications. It follows the Williams are entitled to a credit of $7,120.00 on the note for $20,000.00, and that the Construction Company is entitled to recover against them for such difference with 6½% interest thereon from maturity of the note, which was the 1st day of July, 1964 (no payments). The Construction Company is entitled to recover the 10% attorney’s fees provided for in said note on the balance of the principal and interest due on the date the judgment was entered on July 18, 1966, with foreclosure of its lien. So, that part of the judgment entered by the trial court which decreed that the Construction Company take nothing against Williams and his wife on the note in suit is reversed and rendered, and judgment is rendered in behalf of the Construction Company against Williams and his wife on such note for the sum of $12,880.00, with interest thereon at 6½% per annum from 1st day of July, 1964; to date of judgment and until paid. Judgment is further rendered in favor of Paul W. Wommack, and the firm of Schlosser & Whitcomb, for 10% attorneys’ fees on the balance of the note for $12,880.00, and interest thereon up until the date the judgment was entered, and this part of the judgment shall bear interest at the rate of 6% per annum from date of judgment. The judgment in favor of the Construction Company for the sum of $326.00 bears interest from date of judgment at the rate of 6% per annum. It is further ordered, adjudged and decreed that the Construction Company have foreclosure of its deed of trust lien on the property herein described for the payment of the balance due on the note with interest and attorneys’ fees as hereinbefore set out, and the Clerk of the District Court is directed to issue order of sale, and such other writs as may be necessary for the proper enforcement of this judgment, together with all costs incurred herein. The judgment of the trial court rendered in favor of the Construction Company for $326.00 against Tom Williams and wife, Marie Williams, bearing interest from date at 6% per annum from date of judgment is in all things affirmed. The judgment rendered in favor of the Medical Center National Bank of Houston is in all things affirmed. The judgment that Williams take nothing on their cross-action for liquidated damages is affirmed.

It follows that appellant’s points, insofar as they are in harmony with the disposition which we make of this cause, are sustained; in all other respects they are overruled. The cross-points of the Williams and each of their counter-points are overruled.

This cause is affirmed in part, and in part reversed and rendered with foreclosure as herein stated.


author: PRESLAR, Justice.

text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. W. R. BOYDSTUN, Appellee.
    No. 5850.
    Court of Civil Appeals of Texas. El Paso.
    June 28, 1967.
    Rehearing Denied July 26, 1967.
    Stubbeman, McRae, Sealy & Laughlm, Milton L. Bankston, Midland, for appellant.
    G. Bert Smith, Jr., Andrews, for appellee.
   OPINION

PRESLAR, Justice.

This is a workman’s compensation suit arising from an injury received by appellee, W. R. Boydstun, on May 21, 1964, when he lost one and one-half joints of his right ring finger. The case was tried before a jury, submitted on special issues, and judgment was rendered by the trial court for 25% permanent partial loss of use of the right hand. Appellant, The Travelers Insurance Company, contends that the judgment should be reversed and modified to award benefits limited to 85% permanent partial loss of use of appellee’s right ring finger. We agree that the findings of the jury require such a judgment.

Appellee’s injury was caused when, in the process of putting belts on a pumping unit, he got his finger caught under the belt, and it was severed between the first and second joints. This was his right ring finger, and the jury found that he suffered an 85% permanent partial loss of use of such finger; that such injury extended to or affected his right hand to the extent of a 25% loss of use thereof. By its answer to Special Issue No. 17, the jury found that the injury to the finger, or the effects thereof, are not confined to the finger. By Issue No. 18, it was found that the incapacity of appellee was solely caused by the loss of use of the finger. We deem this finding to be fatal to that portion of the judgment awarding benefits for loss of use of the hand.

Appellant pleaded that the incapacity of the appellee was caused solely by the loss of use of appellee’s right ring finger and the jury so found, and such finding is unchallenged as to its correctness, so that appellant is entitled to a judgment limiting the benefits awarded to the loss of use of the finger. Such is the proper judgment to be entered in this case under the holding of the Supreme Court in Texas General Indemnity Company v. Scott, 152 Tex. 1, 253 S.W.2d 651 (1952). The controlling rule of law has recently been restated in Sanchez v. Texas General Indemnity Company, 392 S.W.2d 222, err. ref., n. r. e. (1965), as follows:

“The rule regarding extension of a specific injury to a general injury was recently restated by the Supreme Court in Travelers Ins. Co. v. Marmolejo, 383 S.W.2d 380 (1964), as follows:
“ ‘On the other hand we have stated several times that the claimant must allege, prove and secure a finding that the injury to the specific member extended to and affected other portions of the body. See Texas Employers’ Ins. Ass’n v. Espinosa, Tex.Sup., 367 S.W.2d 667; Argonaut Ins. Co. v.Newman, Tex.Sup., 361 S.W.2d 871; Texas Employers’ Ins. Ass’n v. Brown-lee, 152 Tex. 247, 256 S.W.2d 76; Consolidated Underwriters v. Langley, 141 Tex. 78, 170 S.W.2d 463. It was held in Espinosa and Brownlee, moreover, that pain caused by an injury to a particular member and felt in another part of the body is not, of itself, sufficient to support a recovery for anything more than the original specific injury. Under Workmen’s Compensation Act as interpreted and applied in these cases, the plaintiff does not establish his right to a judgment for general disability by merely showing that a specific injury has affected the body generally and thereby caused incapacity. He must go further and obtain a finding that his incapacity was caused by an extension of the injury to some part of the body other than a specific member.’ ”

The reason for the rule is well set forth in the Brownlee case above cited by the court.

This determination of the case makes it unnecessary to pass on the other points of error presented.

The portion of the trial court’s judgment which awards benefits for loss of the use of the hand is reversed, and the trial court is instructed to enter judgment for appellee of compensation for 85% permanent partial loss of use of his right ring finger, less such payments as may have been made by appellant. The record before us is not complete as to such payments, so that we are unable to render judgment. Costs in the trial court are taxed against appellant, and costs of this appeal are taxed against appellee.


author: McDONALD, Chief Justice.

text:
    NORTEX OIL & GAS CORPORATION, Appellant, v. SCHLUMBERGER WELL SURVEYING CORPORATION, Appellee.
    No. 4620.
    Court of Civil Appeals of Texas. Waco.
    June 8, 1967.
    Rehearing Denied July 13, 1967.
    Lyne, Klein & French, Fritz Lyne, Erich F. Klein, Jr., Dallas, Ralph Balasco, Houston, for appellant.
    Baker, Botts, Shepherd & Coates, John F. Heard, J. C. Hutcheson, III, Houston, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal from a judgment that plaintiff take nothing, rendered by the trial court, after sustaining defendant’s motion to withdraw case from jury and render judgment plaintiff take nothing.

This case arises out of the “slant well” situation in the East Texas oil field. Plaintiff Nortex sued defendant Schlumberger, alleging plaintiff purchased a number of leases in the East Texas oil field from Ebro Oil Company and Burke Royalty Company for some $5,000,000; that plaintiff had no knowledge of the actual conditions, but relied on reports of reputable petroleum engineers and well status reports and other fraudulent information furnished by the sellers; that some 17 wells were illegal slant wells and actually worth only some $1,700,000; that defendant Schlumberger ran electric logs, perforated and assisted in completing the illegally deviated wells. Plaintiff further alleged defendant conspired with the previous owners to illegally drill, complete and conceal the slant wells; that plaintiff, without knowledge, purchased the wells, and that as a direct result of such unlawful conspiracy, plaintiff was damaged in excess of $3,000,000.

The proof showed that defendant performed services on 4 of the wells purchased by plaintiff at the time the wells were being drilled and illegally deviated, and that such wells were far deeper than a normal well in the East Texas field, and that such facts were well known to defendant. The 4 wells were drilled between December, 1958 and June, 1960. Defendant logged and perforated them at the time they were drilled; they were illegally deviated and bottomed on adjacent leases not owned by the sellers. Plaintiff purchased the leases in February and July, 1961; in 1962 it was discovered the 4 wells, together with 13 others located on the leases, were illegally deviated. A vertical well in the East Texas field produces at 3500 to 3700 feet. The slant wells purchased by plaintiff had coreholes up to 5200 feet. Defendant knew the depth of the wells when it logged and perforated them. Defendant knew that any well in the field bottomed at more than 4000 feet was a deviated well.

Prior to discovery of the slant hole situation the leases, upon which the 4 slant wells which were completed with defendant’s assistance, were capable of producing over 18,000 barrels of oil per month, and after discovery of such situation were only capable of producing 4,000 barrels per month.

In 1960 defendant for the East Texas field only, discontinued including the depth of wells on which service was performed upon its service orders, and instituted a procedure whereby the operator placed the depth on a separate slip of paper which was destroyed after charges were computed for the servicing. After discovery of the slant well situation, defendant’s division manager stated that Schlumberger as a service company was not the policeman of the oil patch, and that it was not their job to see that their customers had permits for the drilling of slant wells; defendant destroyed all of its logs over 2 years old; and defendant’s attorneys advised defendant’s employees in connection with the investigation of the slant well situation, “not to remember any more than we had to” and “a poor memory might embarrass you but it wouldn’t get you into any trouble.”

The record further reflects that Schlum-berger assisted in completing a great number of illegally deviated wells in the East Texas field; that Hallmark, a field engineer for defendant, averaged logging a deviated well in the East Texas field once a week for 1½ years.

At the conclusion of plaintiff’s evidence, the trial court granted defendant’s motion to withdraw the case from jury and render judgment that plaintiff take nothing.

Plaintiff appeals on 6 points, contending:
1) The trial court erred in withdrawing the case from the jury and rendering judgment that plaintiff take nothing because the evidence raises a fact issue as to whether defendant as a member of a conspiracy is liable to plaintiff. •
2) The trial court erred in excluding certain evidence.

We revert to contention 2. The trial court excluded evidence that defendant had logged or perforated a number of deviated wells other than the wells here involved; excluded evidence of conversations between defendant’s employees regarding the performance of services on deviated wells; excluded evidence of suggestions by defendant’s attorneys as to how defendant’s employees should handle themselves if contacted about slant hole situations; and excluded evidence of misrepresentations made by the sellers of the properties to plaintiff.

Plaintiff’s cause of action is based upon allegation that defendant was a participant in a civil conspiracy which resulted in injury to plaintiff.

Conspiracies being in defiance of the law are conceived in secrecy, and executed in such a manner as to avoid detection and exposure, and proof of such unlawful enterprises must, in the very nature of things, be made by circumstances, and every circumstance which tends to cast light upon the transaction is legitimate and proper. Allison v. Simmons, CCA (nre) 306 S.W.2d 206; Jernigan v. Wainer, Sup. Ct., 12 Tex. 189; Vittitoe v. Junkin, C.C.A., W/E Dism’d, 54 S.W.2d 166.

In Vittitoe, supra, the court said:
“Those engaged in forming conspiracies * * * do not proclaim their purpose on the hilltops or the highways, but proceed in dark and devious ways to accomplish their unlawful designs. It is, therefore, .always difficult to prove the existence of a conspiracy, and great latitude must be indulged to permit proof of every circumstance, however trivial when standing alone, tending to show a conspiracy.”

Plaintiff’s 1st contention is that the trial court erred in withdrawing the case from the jury and in rendering judgment that ■ plaintiff take nothing.

An actionable civil conspiracy is a combination by two or more persons to accomplish an unlawful purpose. Great National Life Ins. Co. v. Chapa, Sup.Ct., 377 S.W.2d 632. And when a conspiracy is proven, each of the parties thereto is responsible for all acts done by any of the conspirators in furtherance of the unlawful combination. State v. Standard Oil Co., 130 Tex. 313, 107 S.W.2d 550, 559; Berry v. Golden Light Coffee Co., 160 Tex. 128, 327 S.W.2d 436.

Defendant performed services on 4 of the slant wells purchased by plaintiff, and such services were performed at the time the wells were being illegally deviated. Defendant at the time such services (logging and perforation) were performed on such wells, knew that it was unlawful to bottom a well off a lease on which it was surfaced, and that the Railroad Commission’s regulations prohibited the deviation of a well more than 3 degrees without a permit.

But defendant contends that even if there was a conspiracy of which it was a member, still plaintiff is in no position to complain, since plaintiff did not sustain injury as a natural and necessary consequence of the conspiracy, citing Great National Life Ins. Co. v. Chapa, supra, and Sitton v. American Title Co., Tex.Civ.App., 396 S.W.2d 899.

Defendant asserts the conspiracy here, (if any) was to drill illegally deviated wells. The drilling was performed some 12 to 26 months prior to the time plaintiff purchased the leases. Defendant asserts that plaintiff’s injury was not one which could be reasonably anticipated as the probable result of the wrongful act; and that the act of the sellers in defrauding plaintiff was pot in furtherance of the conspiracy.

It was unlawful to drill an illegal slant well bottomed upon another lease. Of course it could be reasonably anticipated that the owner of the lease from whom oil was stolen by reason of the slant well, would be injured, and that the act of stealing such oil was in furtherance of the conspiracy. And we think it could likewise be reasonably anticipated that the lease could be sold, and that an innocent purchaser of the lease would be injured as a result; and that the act of selling the lease upon fraudulent representations was in furtherance of the conspiracy.

We think the excluded evidence should have been admitted, and that the record makes for a fact issue as to whether defendant, as a member of .a. conspiracy, is liable to plaintiff.

Reversed and remanded.


text:
    Joel J. LEWIS et al., Appellants, v. R. J. HAMBROSKY et al., Appellees.
    No. 4605.
    Court of Civil Appeals of Texas. Waco.
    June 22, 1967.
    Rehearing Denied July 13, 1967.
    John H. Holloway, Houston, for appellants.
    Urban, Coolidge, Pennington & Heard, Bryan W. Scott, Houston, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendants Lewis from a judgment enjoining them from using, or permitting to be used, certain premises in Riverside Terrace, Houston, for business purposes.

Plaintiffs Hambrosky, et al., homeowners in Riverside Terrace, Houston, sued Joel Lewis and wife Joann Lewis, and Abraham Lewis and wife Mary Frances Lewis, alleging defendants Own or occupy parts of lots 16 and 17, block 68, Section 13, Riverside Terrace; that same is subject to restriction that same will not be used for business purposes, but for residence purpose only; and that defendants use the property for a place of business in the selling of used automobiles and trucks, in violation of the restrictions. Plaintiffs prayed for injunction against defendants using the premises for business purposes for so long as the restrictions remain in force.

Defendants answered by general denial; that plaintiffs had waived enforcement of the restrictions; and that the restrictions had been abandoned.

Trial was to a jury which, in answer to issues submitted, found:

1) Plaintiffs have not waived the enforcement of the restrictions against defendants.
2) There has not been such a change of conditions in Riverside Terrace, that it is no longer possible to secure in a substantial degree the benefits sought to be realized in the Restrictive Covenants contained in the original Restriction instrument.

The trial court rendered judgment enjoining defendants from using or permitting to be used the premises involved for business purposes or for the purpose of operating a used car business, such injunction to continue until January 1, 1973, and so long thereafter as the restrictions are in force.

Defendants appeal on 22 points, contending:

1) The injunction against Abraham Lewis and Joann Lewis is erroneous as a matter of law, in that there is no evidence they violated the restrictions or intend to do in the future.
2) The finding plaintiffs did not waive enforcement of the restrictions is supported by no evidence or insufficient evidence; and waiver occurred as a matter of law.
3) There is no evidence, or insufficient evidence, to support the jury’s answer to Issue 2.

Defendants’ first contention is that the judgment is erroneous as to Abraham Lewis and Joann Lewis, because the evidence is that Joel Lewis and Mary Frances Lewis were selling used cars from the premises, and that Joann Lewis and Abraham Lewis had never been guilty of violating the restrictions, hence could not properly be enjoined. Abraham and Mary Frances Lewis lived on the property; Joel and Joann Lewis had a deed to the property. Joel and Mary Frances Lewis sold used cars on and from the property. There is evidence that all four defendants owned an interest in the property. Abraham and Mary Frances Lewis are husband and wife; and Joel and Joann Lewis are husband and wife. Approximately 40% of Joel and Joann Lewis’ income is from selling cars on the premises in question; and whatever income Mary Frances Lewis makes is community property with Abraham Lewis. All defendants are proper parties. Davis v. Carothers, Tex.Civ.App., Err.Dism’d, 335 S.W.2d 631; 31 Texas Jur.2d, Sec. 210.

Defendants’ second contention is levelled at the finding that plaintiffs did not waive enforcement of the restrictions.

Defendants assert that plaintiffs knew of the violations of the restrictions, in that plaintiffs were selling cars from the premises as early as 1954; and that one of the plaintiffs, Mrs. Miller, operated a real estate business from her home. The record reflects that plaintiffs discovered defendants were selling cars from the premises in 1954 and in 1959; but that defendants agreed to stop the activity and did for a time, and plaintiffs relied on defendants’ promises. Mrs. Miller did not operate a real estate business from her home; she merely received correspondence concerning, and rent checks for property she owned, at her home. All plaintiffs testified they did not intend to waive enforcement of the restrictions.

Defendants’ third contention complains of the finding that a material change in conditions had not occurred which rendered benefits from the restrictions no longer possible. The record reflects the neighborhood was a nice and high-class residential neighborhood; that it was kept up good; that houses were well maintained and on large lots. Defendants asserted that various violations in the restrictions had taken place in the subdivision, but proof of such violations is largely lacking. The record is that property values have actually increased in the area.

Defendant Joel Lewis testified that he and his mother, defendant Mary Frances Lewis, sold used cars from the premises; that 90% of his income was from this operation; that he ran ads giving the instant premises as the address of his business, and giving the telephone number of the premises as his business telephone; that he had been in such business at the location for the past 12 years; that his mother, Mary Frances Lewis, derived most or all her income from the sale of automobiles at this residence.

The restrictions in question state that no business house, or place of business of any kind shall be conducted, kept or maintained on any of the lots of the addition. See Rudy v. Southampton Civic Club (Tex.Civ.App., n. r. e.) 271 S.W.2d 431.

The judgment is correct. All defendants’ points and contentions are overruled.

Affirmed.