author: CULVER, Justice. CALVERT, Chief Justice

text:
    PRITCHARD & ABBOTT et al., Petitioners, v. Patrick H. McKENNA et al., Respondents.
    No. A-8297.
    Supreme Court of Texas.
    Oct. 3, 1961.
    Rehearing Denied Nov. 8, 1961.

      Fulbright, Crooker, Freeman, Bates & Jaworski, Ekraston, B. J. Bradshaw, Houston, with above firm, for Pritchard & Abbott and others.
    Markwell, Stubbs, Decker & Dalehite, Galveston, Graves, Dougherty & Gee, Austin, for Galveston County and others.
    Tramonte & Urbani, Galveston, and Leo Brewer, San Antonio, for Patrick H. Mc-Kenna et al.
   CULVER, Justice.

This suit was brought by McKenna and certain other taxpaying citizens of Galveston County praying that a certain contract entered into by and between Galveston County acting through its Commissioners Court and the partnership of Pritchard & Abbott, an appraisal firm, be declared void and that the Commissioners Court and each member thereof be enjoined from paying to Pritchard & Abbott any sums of money that might be due under the terms of the contract. The trial court held the contract null and void and issued the injunction as prayed for..

The Court of Civil Appeals affirmed, 343 S.W.2d 752, 754, holding (1) that the Commissioners Court in entering into this contract usurped the functions, duties and prerogatives of the County Assessor and Collector and therefore that the contract is ultra vires the powers of the Commissioners Court; (2) that under the contract Pritchard & Abbott were employed to provide “a system for the tax assessor” as defined by Article 7264a, Vernon’s Annotated Civil Statutes, and since the contract was not joined in or approved by the State Comptroller as required by that article it is invalid.

Admittedly the Commissioners Court is not expressly clothed with constitutional or statutory authority to contract for the services detailed in this agreement, but we think that authority is implied from the powers that have been expressly granted to and the duties imposed upon this body by law.

Section 18, Article V, State Constitution, Vernon’s Ann.St., provides in part: “The County Commissioners so chosen, with the County Judge as presiding officer, shall compose the County Commissioners Court, which shall exercise such powers and jurisdiction over all county business, as is conferred by this Constitution and the laws of the State, or as may be hereafter prescribed.” The Constitution also provides that “Taxation shall be equal and uniform. All property in this State, whether owned by natural persons or corporations, other than municipal, shall be taxed in proportion to its value, which shall be ascertained as may be provided by law.” Section 1, Article VIII. The County Commissioners Court is constituted as a board of equalization for the County. Section 18, Article VIII, State Constitution.

The law places upon the County Equalization Board a heavy responsibility and of necessity it must be given considerable power to carry out this responsibility. The Board is charged with the inspection, correction, equalization and approval of assessments made by the County Assessor. The Board is expressly authorized to require the production of relevant books and papers and to summons persons and examine them under oath in order to ascertain the value of the taxable property and to raise or lower the same as may be warranted. Article 7206. The statute requires that when the Commissioners Court convenes as a board of equalization each member of the court, including the County Judge, shall take an oath that he will faithfully perform the duties imposed upon him to see that all property subject to taxation shall stand on the tax rolls at its true cash market value, Article 7215, and if any member ■of that Board shall knowingly fail or refuse to fix the value of property rendered for taxation in compliance with the laws of the State that failure or refusal shall con^ stitute malfeasance in office and shall be ■cause for his removal. Article 7216.

Respondents say the contract calls for and results in taking over the functions of the Tax Assessor by the Commissioners Court and that this conclusion is borne out by the evidence introduced in the case.

So far as the consideration of the ■evidence introduced in the case is concerned the Court of Civil Appeals, we think, correctly reviewed the provisions of the contract as being clear and free of ambiguity. That being true its validity vel non is to be determined from an inspection of that document alone without the aid of any other evidence and without taking into account any acts and conduct of the parties in attempting to comply with the terms of the agreement. The following cases cited by the Court of Civil Appeals do not hold otherwise. Lone Star Gas Co. v. X-Ray Gas Co., 139 Tex. 546, 164 S.W.2d 504; Gulf Coast Water Co. v. Hamman Exploration Co., Tex.Civ.App., 160 S.W.2d 92, writ refused, and City of Athens v. Andrews, Tex.Civ.App., 231 S.W.2d 928, writ refused.

We are fully in accord with respondents in pointing out, as they do, that the County and the County Commissioners Court are not synonymous nor are they one and the same. We quite agree that the County Commissioners Court is not charged with the management and control of all of the County’s business affairs. Each of the various elected officials, including the Assessor-Collector, has the sphere that is delegated to him by law and within which the Commissioners Court may not interfere or usurp. But that is not to say that the functions of the Board of Equalization and those of the Assessor-Collector are so diverse that information may not be lawfully contracted for and obtained by the Equalization Board because it may likewise be of aid to the Assessor in the performance of his duties. It is the duty of the Assessor as well to determine the value of all taxable property in the county.

The statutory procedure outlined in Article 7206 is that the Commissioners Court shall convene as a board of equalization on the second Monday in May of each year or at least before the first day of June. At that time the Assessor is to bring before the Board his assessment list for inspection and correction if necessary. After the Board has examined, corrected and approved the Assessor’s list, the Assessor prepares the tax roll and furnishes copies to the Tax Collector, the State Comptroller and to the County Clerk.

Many thousand pieces of real property are located in Galveston County, including residential and business structures of various kinds, vacant lands, harbor facilities, oil properties and installations and other types. Without expert assistance the Board could not begin to carry out its functions and sworn obligations and a thorough appraisal of all taxable property is a task that would necessarily involve months of preparation. We think it is of no moment that the contract called for this work to be done prior to' the meeting of the Equalization Board and to the presentation to the Board of the assessment list made up by the Assessor.

The contract is set out in full in the opinion of the Court of Civil Appeals and will not here be duplicated. Actually the opening paragraph of the contract sets forth the substance of the services to be rendered by Pritchard & Abbott as well as the benefit to be gained by the County from those services as follows:

“That, Whereas, the County of Galveston, State of Texas, acting by and through its Commissioners’ Court, has determined that there is a necessity for, and that it will be to the best interest of said County and its citizens generally, to employ experts, skilled in the appraisal and valuation of oil and/or gas producing properties, industrial properties, and lands and buildings, and to make a permanent record of all lands and buildings within the County, so that all properties may be properly valued for the purpose of taxation and values thereof equalized”.

Respondents seem to concede that if this contract were restricted to the appraisal of oil and gas or other properties that required special skill and experience “not possessed by the ordinary person” the contract would not be invalid. This would be true, they say, because as a matter of “sheer necessity” in that field skilled appraisers must be employed. We do not agree with that reasoning. The matter of skill required to appraise different kinds of property is one of degree. The appraisal function not only requires an expert in the field of oil and gas, but also an expert in the field of what may be said to be ordinary real estate values. “The ordinary person” is no more qualified to value real estate than he is to value oil and gas properties. Each requires special training, experience and qualifications.

The fact that there may be more qualified experts in the field of ordinary real estate values than in that of oil producing properties and installations cannot be material in determining the power of the Board of Equalization to retain expert advice. To say that the Board may hire experts in one field but not in another is borne out neither by logic nor by the authorities.

In Roper v. Hall, Tex.Civ.App., 280 S.W. 289, 291, no writ history, the Commissioners Court was held to have implied power to contract with an individual for compilation of data for its use while sitting as a board of equalization in determining the taxable value of oil and gas properties in the county. The court held “The services-contracted to be rendered called for information and experience not possessed by the ordinary person. So far as they affected the discovery, assessment, and valuation of unrendered oil properties, they could not have been performed by the County Assessor unless he possessed extraordinary-information and experience along the required lines”. Respondents say this rule-should not be extended so as to cover all of the real estate in the county. This apparently is based on the theory that the Tax Assessor is always to be considered as a qualified expert as to the usual run of real properties. Even if this premise be true which it is not, the Board of Equalization is not bound by the values fixed by the Assessor no matter how expert he may be. We fail to see why the Board may not seek independent expert information as to all forms of taxable property, otherwise the members of the Board would not be in position to revise or correct the Tax Assessor’s list but would be derelict in their duty. There is nothing in the Roper case to indicate that the court intended to limit such a contract to the appraisal of oil and gas interests.

As to the exact question before us the authorities are somewhat meager and not wholly decisive.

In Federal Royalty Co. v. State, Tex.Civ. App., 42 S.W.2d 670, suit was brought by the State of Texas to recover taxes and foreclose tax lien on a royalty interest in oil and gas lands. The company defended on the ground that the assessment was void because not made by the County Assessor. The County had theretofore employed an expert to secure and furnish to it information as to oil and gas properties in the county for use in equalizing assessments. The court concluded that both the Assessor and the Board could make use of this information and that such practice did not void the assessment. In passing upon this question, probably by way of dictum, the court observed that “where, as in this state, no express authority is given to employ such expert aid, the power to do so is implied, and the expedience of doing so is within the discretion of the commissioners’ court.” It is evident that the company in that case did not contend that the contract was illegal. The decision is rendered less authoritative also because this court in affirming did not discuss that matter, but disposed of the case by holding that the royalty interest in question was taxable as real estate.

In Whelan v. State, 155 Tex. 14, 282 S.W. 2d 378, the Commissioners Court employed an expert to assist in arriving at the value of producing oil and gas properties. In setting aside the assessments we observed that “the enlistment of expert assistance in such matters is not to be condemned”. We are further reinforced in our conclusions that the Commissioners Court has the implied power to contract for expert services by the proviso contained in Article 7212. The Legislature set out in that article that the Commissioners Court “after hearing the evidence, shall fix the value of such property in accordance with the evidence so introduced and as provided for in the preceding Article, and their action in such case or cases shall be final; provided however, that if the Commissioners Court of any county who contracts with or employs any individual, firm, or corporation to compile taxation data, the compensation of such individual, firm or corporation may be paid on a pro rata basis from each county fund receiving any taxes derived from such valuation”. The implication is patent, we think, that the “evidence” referred to in the article may include expert advice contracted and paid for and that such contract is within the authority of the Board.

Respondents in their brief and oral argument frequently cite and heavily rely upon the decisions in Marquart v. Harris County, Tex.Civ.App., 117 S.W.2d 494, writ dismissed, and White v. McGill, 131 Tex. 231, 114 S.W.2d 860. They single out Marquart as the best reasoned and leading authority for their contention that the Commissioners Court did not have the authority to make the contract in question. But what the Marquart decision stands for is the proposition that the contract made by the Commissioners Court of Harris County was “in connection with the collection of delinquent taxes within the meaning of Articles 7264a and 7335a, Vernon’s Ann.Civ. Stats.” Marquart follows White v. McGill that struck down a Commissioners Court contract by reason of the “tax ferret” provisions in which the so-called tax ferrets were to discover and point out property that had escaped taxation and were to be paid a fee of 15 per cent, of the amount of taxes collected on personal property discovered by them.

The Court of Civil Appeals has correctly rejected this argument holding that the contract between Galveston County and Prit-chard & Abbott was not entered into in connection with the collection of delinquent taxes and so for that reason did not require the approval of the State Comptroller. Consequently the decisions in Marquart v. Harris County and White v. McGill are not in point.

In our opinion subparagraph 2 of paragraph 1 of the contract is not invalid so as to vitiate the whole. It reads as follows :

“Analyze and review the permanent record card system heretofore compiled by First Party, so as to bring appraisals thereon to current condition as of January 1, 1959, adding (due to the extraordinary growth of Galveston County during the period of operations of First Party therein) all new properties, necessitated by construction and changes in ownership as of January 1, 1959, thereby supplying to Second Party permanent record cards for each lot or tract of land, showing its description and location, together with a diagram of all improvements located on each lot or tract of land, showing the square or cubic feet in each building, the cost per square or cubic foot to re-porduce these buildings, the depreciated value, taking into consideration the age, economic, and obsolescent features. The card will show the dimensions of the tract of land, the unit front foot price on lots and acreage values on tracts of all real property located in Galveston County, Texas, a copy of such card, marked Exhibit ‘A’, being attached hereto and made a part hereof.”

The duties imposed upon Pritchard & Abbott by that subparagraph are incidental to and in aid of the only purpose and objective of the contract, namely: “So that all properties may be properly valued for the purpose of taxation and values thereof equalized.” If the Commissioners Court is authorized to contract for and on behalf of the County for expert assistance in arriving at correct property appraisals and valuations surely it follows that those appraisals to be of any substantial benefit, must be supplied to the County in such form that they may be readily accessible to include new construction and changes in ownership and other necessary and detailed information. In summary that is all that the subparagraph provides. It is not a “tax ferret” contract nor does it purport to furnish any information that would not be in aid of the Equalization Board in the performance of its duties. This contract would not be rendered void merely because this information is placed in a permanent form so that it may be used by the Board for the current year and in the future as well.

We are of the opinion that sub-paragraph 2 does not provide for such a “system for assessors” as contemplated by Article 7264a so as to require the joinder of the State Comptroller in the contract of employment of Pritchard and Abbott in this case. This Article mainly has to do with the adjustment and collection of delinquent taxes, Section 1 thereof reading as follows:

“It is hereby declared the Policy of the State to adjust delinquent taxes, correct errors, to eliminate conflicts in surveys of land, and to collect the delinquent, occupation, franchise and Ad Valorem Taxes, in order to clear this State of such taxes, errors and conflicts at the earliest date possible, and to provide a system for assessors, in order to eliminate the numerous errors that now appear on the tax rolls each recurring year.”

Section 2 of the Article provides for meeting the expense of the collection of delinquent taxes. It also provides that the cost of installing “[the] tax or plat system” shall not exceed 15% of the delinquent taxes collected. Section 4 reads in part: “This Act is not intended to change any law now in effect regarding the collection of delinquent taxes, but to be an aid to the officials in the discharge of their duties, * * There is nothing in the contract to indicate that the information furnished and set down on the record cards is for the benefit of the assessor or to be turned over to him for his use. To the contrary, the services and cards are to be supplied to the county. Moreover, paragraph 4 of the contract recites in part, “and it being necessary to maintain and correct the basic records herein provided for on a current basis, in order that the same may furnish a reliable guide in the equalization of all classes of properties for tax purposes in Galveston County”. The system provided for in Article 7264a is for the stated purpose of eliminating “the numerous errors that now appear on the tax rolls each recurring year”. Also, the Article provides that this “tax or plat system” may be installed by any county to clear up errors, conflicts, and unknown owners and paid for by a percentage of the delinquent taxes collected not to exceed IS percent. The character of the system is also indicated by the language used in the emergency clause by which this Article was enacted as follows:

“The fact that officials have let State taxes become delinquent to the amount of approximately twenty million dollars, most of which can be collected by adjustment and correction of errors, and the further fact that counties where land conflicts causes millions of dollars of property to appear on the tax rolls does not exist, which facts show the necessity for a tax system, and the further fact that the state and counties ara in need of their money, creates an emergency and a public necessity exists requiring the suspension of the Constitutional Rule * * *.” Laws 1931, 42nd Legislature, p. 384, ch. 229, Section 5.

Furthermore, subparagraph 2 of paragraph 1 of the contract did not impose upon Pritchard and Abbott the obligation to install “a tax or plat system,” but to only analyze and review the record card system theretofore compiled and make such corrections and additions as might be necessary.

The information to be furnished and put on record cards by Pritchard and Abbott was concerned wholly with appraisals of the value of real properties and furnishing data in support of those appraisals. It was not a plat system as described in Section 2 of the Article which would ordinarily indicate a series of maps of the county.

The respondents argue that even if the Commissioners Court had the authority to make the contract in question, nevertheless the contract cannot be upheld because the district court in the exercise of its “general supervisory control” over the Commissioners Court has struck it down, and that should end the matter. Section 8, Article V of the Constitution does provide that “The District Court shall have appellate jurisdiction and general supervisory control over the County Commissioners Court with such exceptions and under such regulations as may be prescribed by law; * This provision has never been construed by the courts to mean that the district court is empowered to superintend the deliberations and decisions of that body or to substitute its judgment for that of the Commissioners Court in determining what is best, proper and advantageous. Possibly the Legislature might enact “such exceptions” and “such regulations” as would clothe the district court with that power but it has not seen fit to do so.

In Haverbekken v. Hale, 109 Tex. 106, 204 S.W. 1162, 1165, in considering the extent of control given to the district court by that section of the Constitution we said:

“ * * * The power of the District Court to supervise the proceedings of the Commissioners’ Court here involved gave the injunction suit the character of a direct attack upon those proceedings rather than a collateral one. Crawford v. McDonald, 88 Tex. 626, 33 S.W. 325. This permitted a full inquiry for the purpose of seeing- whether throughout the proceedings the Court had complied with the law, unhindered by any presumptions ordinarily indulged in a collateral attack upon a judgment of a court of general jurisdiction. Not otherwise could the District Court supervise and control its action.”

So that the power of supervision is limited to a determination as to whether or not the Commissioners Court has proceeded according to law or acted arbitrarily or abused its discretion. In this case the only question before the district court and the only one here is whether or not the Commissioners Court in entering into this contract acted within its lawful authority. We are not concerned with the propriety of that action nor was the district court. See also Stovall v. Shivers, 129 Tex. 256, 103 S.W. 2d 363.

Being therefore of the opinion that the contract is not ultra vires the powers of the Commissioners Court but lies within the scope of its authority, the judgments of the trial court and of the Court of Civil Appeals are reversed and judgment here rendered denying all of the relief sought by the respondents in the trial court.

CALVERT, C. J., and SMITH and NORVELL, JJ., dissenting.

CALVERT, Chief Justice

(dissenting).

The net effect of my disagreement with the majority is probably more philosophical than real as it affects petitioners’ right of recovery, but it is more real than philosophical as it bears on the legal principles involved. I would hold the contract invalid because subparagraph 2 of paragraph I of the contract is ultra vires the powers of the commissioners court, but would permit recovery by petitioners of the reasonable value of services and materials furnished for which the commissioners court had power to contract.

One of the crucial issues in the case is whether the contract, or any part of it, is ultra vires the powers of the commissioners court. A proper resolution of that issue does not turn on whether the commissioners court by contracting for the services of petitioners has usurped the constitutional and statutory powers and duties of the assessor and collector of taxes. The contract for services and materials may not at-all usurp the powers and duties of the tax assessor but yet may be ultra vires.

There can he no question but that if any part of the contract is invalid the entire contract must fall. The contract provides for payment to petitioners of $86,500, in installments, for all services and materials furnished. The first installment of $26,500 has been paid. The contract is indivisible. There is no basis on which a certain portion of the consideration can be allocated to services and materials for which the commissioners court has power to contract and a certain portion to services and materials for which the court has no power to contract. That being true, if sub-paragraph 2 of paragraph I of the contract is ultra vires, the contract is invalid in its entirety. Sylvan Sanders Co. v. Scurry County, Tex.Civ. App., 77 S.W.2d 709, 710, writ refused; 13 Tex.Jur.2d 428-431, Contracts, § 213; 12 Am.Jur. 739-740, Contracts, § 221.

A commissioners court is not a court of general or unlimited jurisdiction. By the provisions of Section 18 of Article V of the State Constitution its “powers and jurisdiction over all county business” is only such “as is conferred by this Constitution and the laws of the State”. Moreover, its powers when acting as a board of equalization are only those “The Legislature shall provide”. Section 18, Article VIII, Constitution of Texas. Thus the power of a commissioners court to enter into a particular contract must be expressly given by statute or it must be implied as reasonably necessary to a discharge of duties imposed on the court by law; otherwise, the contract is ultra vires. Clark v. Finley, 93 Tex. 171, 54 S.W. 343, 346-347; Mills County v. Lampasas County, 90 Tex. 603, 40 S.W. 403, 404; Childress County v. State, 127 Tex. 343, 92 S.W.2d 1011, 1016; Canales v. Laughlin, 147 Tex. 169, 214 S.W. 2d 451, 453; 15 Tex.Jur.2d 261, 317, Counties, §§ 35, 92.

The services which were to be performed by petitioners under sub-paragraph 2 were to

“Analyze and review the permanent record card system heretofore compiled by First Party, so as to bring appraisals thereon to current condition as of January 1, 1959, adding (due to the extraordinary growth of Galveston County during the period of operations of First Party therein) all new properties, necessitated by construction and changes in ownership as of January 1, 1959, thereby supplying to Second Party permanent record cards for each lot or tract of land, * *

The cards were to contain certain descriptive information.

I can find no statute expressly authorizing a commissioners court to contract for the type of services provided for in sub-paragraph 2. I do not understand the majority to sustain the validity of that portion of the contract on the basis of express authority. The only questions which remain, therefore, are whether that portion of the contract is impliedly authorized and whether it was executed pursuant to the court’s implied power. I suggest that on the basis of a careful analysis of the record before us both questions should be answered in the negative.

I quite agree that there is no ambiguity in the provisions of sub-paragraph 2 relating to the type of services to be performed by petitioners. On the other hand, there is much ambiguity in the other matters to which the sub-paragraph refers. What was the “permanent record card system” theretofore compiled by First Party? For whom and for what purpose was it compiled? When were the cards to be completed and delivered ? These questions must be answered before we can say that the further services relating to the card system were reasonably necessary to a discharge by the commissioners court of its duties as a board of equalization and that the court, therefore, had implied power to contract for such services.

The testimony in the record discloses that the Commissioners Court of Galveston County entered into a contract with petitioners about 1955 to prepare a permanent record card system containing substantially the same information provided for in sub-paragraph 2. The 1955 contract was not introduced in evidence, but the testimony of the Tax Assessor and Collector of Galveston County and his chief deputy, and of Truett Pritchard and one of petitioners’ employees leaves the following matters uncontrovert-ed : A separate card was to be prepared for each lot, tract or parcel of land listed on the assessor’s rolls; no card was to be prepared for any lot or tract not appearing on the rolls; there would be a total of approximately 100,000 cards; Pritchard and Abbott were to provide 48 steel cabinets for the tax assessor’s office, capable of containing 120,000 cards, in which the cards were to. be filed; the cabinets were delivered to the tax assessor’s office in 1959; when the cards were completed they were to be delivered to the tax assessor for filing in the steel cabinets; when so delivered and filed they were to become a permanent record in the assessor’s office; they were to be used by the tax assessor in appraising property as a basis for figuring assessed valuations to be presented to future boards of equalization; the cards had not been completed when the contract of 1959 was executed; the parties to the 1959 contract did not contemplate that the cards would be completed or available until after the board of equalization had concluded its work for the year of 1959; the cards had not been completed when this suit was filed in October, 1959, and had not been delivered when this case was tried. A sample card is in the record.

From the undisputed testimony here summarized it is quite clear that the “permanent record card system” referred to in sub-paragraph 2 was a new type of permanent property record to be constructed for the office of the tax assessor, primarily for his use in the discharge of his statutory duties. That the system may have been of some incidental value to the board of equalization in reviewing assessments made by the assessor does not alter that fact. All permanent records in the assessor’s office are of some value to the board of equalization. While the validity of the 1955 contract is not directly in issue here, its validity must be determined, incidentally, in deciding whether the commissioners court was authorized to contract for further services in reviewing and revising the work product of that contract.

The statutes expressly provide the types of permanent records which must, and may, be provided for a tax assessor to aid him in discharging his official duties. The commissioners court must furnish the assessor with books in which he must keep a record of all surveys of land in the county and in which he must show by whom the land is rendered and the value thereof. Arts. 7195 and 7196, V.A.T.S. The court must also furnish the assessor with books in which he is required to make and keep a record of all blocks and subdivisions of cities, towns and villages, showing the owners and values thereof. Art. 7197, V.A.T.S. The statutes referred to are mandatory in prescribing the exact form of these records. In addition, a commissioners court may contract, with joinder of the State Comptroller, for preparation of “a tax or plat system”. Art. 7264a, V.A.T.S. No other types of property records or systems are authorized by law. Petitioners insist, and the majority have held, that the “permanent record card system” which they were to construct and deliver to the Tax Assessor and Collector of Galveston County is not the tj'pe of “tax or plat system” authorized by Art. 7264a. They must so contend, for otherwise their contract would be void since approval by the State Comptroller is not even suggested. For purposes of this dissent I shall assume the majority are correct in sustaining that contention. The net result is that the Commissioners Court of Galveston County contracted with petitioners in 1955 for services in the construction of an extensive type of permanent property record for the tax assessor’s office which is unauthorized by law, either expressly or impliedly. That the type of record to be prepared might be far better, and far more useful, than any authorized by law, does not make the contract legal. The power to determine what types of permanent property records shall be furnished to and kept by tax assessors is conferred by the Constitution on the Legislature and not on commissioners courts or on this court. If the contract of 1955 is not the type of contract contemplated by Art. 7264a, it is clearly ultra vires the powers of the commissioners court, and sub-paragraph 2 of paragraph I providing for further services in the completion of the 1955 contract, unapproved by the State Comptroller, is likewise ultra vires. The rights of the parties under the 1955 contract are not in issue here and need not and cannot be decided.

The foregoing conclusion does not mean that petitioners should be denied a recovery for their services for which the commissioners court had power to contract. The trial court refused to admit evidence of the reasonable value of those services, and that court and the Court of Civil Appeals held, as a matter of law, that petitioners cannot recover on quantum meruit on their cross-action for any of the services and materials furnished. In my opinion this holding is erroneous.

The parties agree that there can be no recovery on quantum meruit for services or materials furnished a municipal corporation under a contract which the corporation has no power to make. See Nunn-Warren Pub. Co. v. Hutchinson County, Tex.Civ.App., 45 S.W.2d 651, writ refused; Aldrich v. Dallas County, Tex.Civ.App., 167 S.W.2d 560, writ dismissed; Noel v. City of San Antonio, 11 Tex.Civ.App., 580, 33 S.W. 263, writ refused; Baldwin v. Travis County, 40 Tex.Civ.App. 149, 88 S.W. 480, writ refused. They also agree that a recovery may be had on quantum meruit for services or materials furnished a municipal corporation under a contract which the corporation has power to make but which is invalid for other reasons. See City of Houston v. Finn, 139 Tex. 111, 161 S.W.2d 776; West Audit Co. v. Yoakum County, Tex.Com. App., 35 S.W.2d 404; Sluder v. City of San Antonio, Tex.Com.App., 2 S.W.2d 841; City of San Antonio v. French, 80 Tex. 575, 16 S.W. 440. No cases have been cited by the parties, and I have found none, dealing directly with the right to recover on quantum meruit for services and materials furnished for which a municipal corporation has power to contract when the contract therefor also requires the furnishing of services and materials for which the corporation has no power to contract.

Petitioners do cite Galveston County v. Ducie, 91 Tex. 665, 45 S.W. 798, as authority. That case involved the right of a physician to recover damages for breach by Galveston County of a two-year contract to render medical aid to prisoners and paupers and attend inquests for an agreed compensation of $80 per month. In answer to a certified question we held that the county had the power to make the contract for services to prisoners and paupers but had no power to contract for the physician’s attendance at inquests; and we further answered and held that the physician could recover damages for breach of the contract less what his services would be reasonably worth for attending inquests.

Whatever may otherwise be said from an analysis of Galveston County v. Ducie, it must be admitted that a just result was reached. All of the cases hereinbefore cited for the proposition that one may recover for services or materials furnished to a municipal corporation under an invalid contract which it has power to make, rest their holding in equity and justice. By way of example, this court said in City of Houston v. Finn, 139 Tex. 111, 161 S.W.2d 776, 777: “In the instances under discussion the illegal agreement is not enforced as a contract. To the contrary, the illegal agreement as such is not enforced at all. The contract that is enforced is one that the law implies, because justice demands that a municipality shall not be permitted to receive and retain the benefits of an agreement without paying the reasonable value of such benefits.”

In the instant case Galveston County had the power to contract for all of the services and materials to be furnished save those required by sub-paragraph 2. But for the inclusion of that sub-paragraph the contract would not be void. All of the services and materials required under all other parts of the contract have been furnished and Galveston County has had the benefit of them. Justice requires that the county should pay for them. Petitioners should be permitted to recover the reasonable value of all services rendered and materials furnished under all of the provisions of the contract, not to exceed the contract consideration of $86,500, less the reasonable value of services to be performed under sub-paragraph 2 and less the sum of $26,500 heretofore paid.

The judgments of the trial court and the Court of Civil Appeals should be reversed and the cause should be remanded to the trial court for further proceedings consistent with this opinion.

SMITH and NORVELL, JJ., join in this dissent.

      . Federal Royalty Company v. State, 124 Tex. 290, 77 S.W.2d 1021, 80 S.W.2d 741.


source: Caselaw Access Project

author: DICE, Commissioner.

license: Public Domain

text:
    Joe Edward SMITH, Appellant, v. STATE of Texas, Appellee.
    No. 32533.
    Court of Criminal Appeals of Texas.
    Jan. 11, 1961.
    Certiorari Denied Oct. 16, 1981.
    See 82 S.Ct. 126.
    Joe Ed Winfree, Sr., and Joe Ed Win-free, Jr., Houston, for appellant.
    Dan Walton, Dist. Atty., Samuel H. Robertson, Jr., Lee P. Ward, Jr., Gus J. Zgourides, Assts. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The offense is murder; the punishment, death.

The appellant and Adrian Johnson were jointly charged by indictment with the murder of William Merrill Bodenheimer.

Upon the granting of a severance, Johnson was separately tried and convicted with his punishment assessed at death. Upon appeal to this Court, the judgment of conviction was affirmed in an opinion which is found reported in Johnson v. State, Tex.Cr.App., 336 S.W.2d 175.

The facts in the two cases are similar and show that on the afternoon of July 20, 1959, the deceased, a young boy twelve years of age, left home on his bicycle to go swimming. Upon his failure to return at the expected hour, a search was made for him which ended at 9 :45 a. m. on the following morning, July 21, when the nude dead body of the deceased was found inside a closed refrigerator in a small shack.

It was shown that on the evening of July 20, the appellant was seen around 6 p. m. with Adrian Johnson and some other boys at the Chuck Wagon, an eating place located a short distance west of the shack where the deceased body was found. At such time the deceased was also seen at the place and, as the appellant and his companions walked by, appellant was heard to say “Lets get the white boy when he leaves here.” Thereafter, the deceased was seen to get on his bicycle and travel in the same direction the appellant and his companions had gone.

On July 21, appellant was arrested with•out a warrant at his home around 11:15 p. m. by Lt. T. F. Clark of the Robbery Division of the Houston Police Department and taken to the police station for questioning concerning several robbery cases. During the questioning, appellant impli•cated himself in the murder of the deceased, and after being duly warned by Lt. Clark, made and signed a written statement on July 22 at 7:25 a. m. concerning the killing of the deceased which was introduced in evidence over appellant’s objection as State’s Exhibit No. 13.

In the statement appellant stated that on July 20, 1959 he was in company with his brother Ira Lee Saddler, Adrian Johnson, David Clemens, and Charles Archer; that •around 6 p. m. as they were walking on West Gray, Charles Archer hit and knocked a white boy off a bicycle who looked to be about “ten or eleven”; that appellant and Adrian Johnson then grabbed the boy and ■“packed” him across the street; that Clemens picked up the boy and “packed” him to a little house while Archer was holding the boy’s mouth to keep him from “hollering” ; that Clemens took the boy inside the house and they all went inside except appellant’s brother who stayed outside and brought the hoy’s bicycle to the house. Appellant then related how, after going inside the house, Clemens and Archer took off the boy’s clothing and Clemens, Adrian Johnson, the appellant, and Charles Archer, in the order named, proceeded to commit rectal sodomy upon him. Appellant stated that after he had finished committing the act he went outside, that he went home, and that later in the night he saw David Clemens who told him that Adrian Johnson and David Clemens “had put the white boy in the ice box that was inside the little house.”

It was shown by the testimony of Chemist and Toxicologist Robert F. Crawford of the Houston Police Department that a human hair found in the hip pocket of the trousers of Ira Lee Saddler (appellant’s brother) compared with and had identical characteristics with hairs taken from the head of the deceased and from his pubic and anus region. It was also shown that on July 24 Chemist Crawford examined the bodies of the appellant and Adrian Johnson and was present when pictures were taken of them. He stated that in his examination of the appellant he found “on the underneath side of his penis near the head * * * what appeared to be an abrasion or a bruise which was close to the head of the penis” and on the body of Adrian Johnson he found “a bruise on the underneath side of his penis.” The photographs were introduced in evidence by the State.

Dr. Joseph A. Jachimczyk, Harris County Forensic Pathologist, testified that on the morning of July 21 he went to the scene of the crime where he observed the body of the deceased inside the refrigerator and that he later performed an autopsy upon the body. Dr. Jachimczyk testified that his external examination of the body disclosed various bruises, cuts and scratches including two bruises on each side of the neck which were compatible to a person being choked. He further testified that his internal examination of the body revealed a tear in the left leaf of the diaphragm with a rupture in the fundus, or the top side of the stomach, which was compatible to a person’s body being crushed in a “bear hug”. He further stated that his examination revealed tears and overstretching of the rectum and that smears taken from the rectum, upon being examined, indicated that they contained sperm heads. He further stated that the injuries found in the anal orifice of the deceased were such that could have been caused by a male erected penis and that the injuries and bruises on the penes of appellant and Adrian Johnson were such that would have been caused by the insertion of a male penis in an erected state into a tight orifice. Dr. Jachimczyk testified that in his opinion the cause of death of the deceased was “asphyxia due to pressure on the neck, and on the left chest” in association with the act of sodomy. He further expressed the opinion that the deceased was dead or near death when placed in the refrigerator and that the injuries would have caused his death irrespective of whether he had been placed in the refrigerator.

Testifying in his own behalf, appellant denied molesting the deceased and being present when he was killed. In his testimony, appellant repudiated his written statement made to Officer Clark and swore that it was not true. Appellant testified that, while he was being interrogated, the officers slapped, struck, kicked and beat him, held a gun to his head, made him stand against the wall with his hands outstretched, and that the reason he signed the confession was because of what the officers had done to him and to keep them from beating him.

Appellant also called witnesses who testified in support of his defense of alibi.

The State called in rebuttal Officer Clark and the other officers named by appellant to have mistreated him who categorically denied the acts of brutality which appellant testified they committed upon him before he signed the written statement introduced in evidence.

In addition to the officers, the State called a newspaper reporter who testified that he was present at the police station during a part of the time appellant was being questioned and that he did not see any of the officers abuse or mistreat him in any manner. A television news cameraman was also called who stated that he saw appellant around 7:30 or 8:00 on the morning of July 22, 1959 and did not observe any bruises or skinned places on or about him. He further testified that at such time he asked appellant if he had been in any way mistreated and he answered “No”.

The court submitted to the jury the issue as to the voluntary nature of appellant’s written confession and instructed the jury that if they believed from the evidence, or had a reasonable doubt, that appellant made the statement through fear, or because he was beaten, or because of duress, coercion or any promise, then they would not consider said statement for any purpose. Appellant’s defense of alibi was also submitted to the jury.

In submitting the issue of appellant’s guilt to the jury, the court authorized the jury to find appellant guilty of murder with malice if they found from the evidence beyond a reasonable doubt that appellant either acting alone or as a principal killed the deceased as alleged in the indictment by: (1), choking or strangling him with his hands, or (2), smothering or suffocating him by placing his arms, hands, and fingers over his nose and mouth, or (3), smothering or suffocating him by squeezing or pressing his chest with his arms or hands, or (4), smothering or suffocating him by placing him inside a refrigerator and closing the door of said refrigerator and thereby sealing him inside of said refrigerator. In addition thereto, the court instructed the jury with reference to the provisions of Art. 42, Vernon’s Ann.P.C., and authorized the jury to find the appellant guilty if they found beyond a reasonable doubt that he, either acting alone or as a principal, did kill the deceased “in some way or manner or by some means, instruments or weapons to the Grand Jury unknown, through a mistake or accident while intending to commit the offense of sodomy, or while in the act of preparing for or executing the offense of sodomy.”

The charge, to which no objections were made, clearly and fairly submitted the issue of appellant’s guilt to the jury and we find the evidence sufficient to sustain their verdict.

Appellant insists that his conviction should be reversed for two reasons:

First, he contends that his arrest without a warrant was illegal.

Second, he contends that, in addition to his illegal arrest, his confession was not freely and voluntarily made and was therefore obtained in violation of the due process clause of the 14th Amendment of the Constitution of the United States and of Art. 727a of the Vernon’s Ann.Code of Criminal Procedure of the State of Texas. The contention is further made that the confession was, as a matter of law, void because it is shown that he was not taken before a magistrate by the officer making the arrest as required by Art. 217, Vernon’s Ann.C.C.P.

The evidence, as heretofore stated, shows that appellant was arrested at his home on July 21 at 11:15 p. m. and thereupon taken to the police station. After being questioned for some IS minutes, he was placed in jail at 11:45 p. m. Later, between 2 and 3 a. m., he was brought from his jail cell to the robbery division office in the police station and further questioned for 20 or 30 minutes. He was then returned to his jail cell and later brought back to the office at 6:30 a. m., where, after further questioning, he made and signed the written statement on July 22 at 7:25 a. m.

The evidence shows no undisputed facts which, as a matter of law, would render the confession inadmissible.

The failure of the arresting officer to carry the appellant forthwith before a magistrate as required by Art. 217, supra, did not in itself vitiate the confession. Dimery v. State, 156 Tex.Cr.R. 197, 240 S.W.2d 293; Golemon v. State, 157 Tex.Cr.R. 534, 247 S.W.2d 119, certiorari denied 344 U.S. 847, 73 S.Ct. 60, 97 L.Ed. 659; Henson v. State, 159 Tex.Cr.R. 647, 266 S.W.2d 864; Walker v. State, 162 Tex.Cr. R. 408, 286 S.W.2d 144, certiorari denied 350 U.S. 931, 76 S.Ct. 299, 100 L.Ed. 814; and Williams v. State, 166 Tex.Cr.R. 368, 314 S.W.2d 308. It is the rule that the failure to carry an accused before a magistrate vitiates the confession only when there is some causal connection between such failure and the making of the confession. Walker v. State, supra. There is no showing in the instant case of any causal connection between the failure to take appellant before a magistrate and the making of his confession.

We need not pass upon the legality of appellant’s arrest as it is the illegal detention and not an illegal arrest which, under certain circumstances, will vitiate a confession. Head v. State, 160 Tex.Cr.R. 42, 267 S.W.2d 419 and Walker v. State, supra. We are unable to say that appellant’s detention for approximately seven hours under the circumstances shown was such as to vitiate his confession.

The disputed issue as to the voluntary nature of the confession was submitted to the jury and, under the record, we would not be authorized to disturb their verdict.

The case of Payne v. State of Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975, cited by appellant, is not, under the facts, here controlling because in that case the confession was obtained after the accused had been held incommunicado for three days and among other things was admittedly threatened with mob violence by the officer to whom the confession was made. No such facts are shown in the instant case.

The judgment is affirmed.

Opinion approved by the Court.

McDONALD, J., not participating.


author: McDONALD, Chief Justice.

text:
    Adolphus Doc ARMSTRONG, Appellant, v. Odell ARMSTRONG, Appellee.
    No. 3912.
    Court of Civil Appeals of Texas. Waco.
    Sept. 14, 1961.
    Gordon R. Wellborn, Henderson, for appellant.
    Garrison, Renfrow, Zeleskey, Cornelius & Rogers, Lufkin, for appellee.
   McDONALD, Chief Justice.

This is a divorce case which was tried before the Court, and resulted in the plaintiff being granted a divorce from defendant.

Defendant appeals, contending that the pleading relied on by the plaintiff failed to constitute recognized grounds for divorce under Article 4629 Vernon’s Ann.Tex.St.; and that the proof offered fails to meet the full and satisfactory evidence requirement made by Article 4629 V.A.T.S.

Plaintiff plead that defendant’s treatment of her was intolerable, and that “defendant was guilty of acts of cruelty, outrages, and excesses toward the plaintiff of such a nature as to render their further living together insupportable.” Defendant answered by general denial. The plaintiff’s petition is sufficient. See: McCullough v. McCullough, 120 Tex. 209, 36 S.W.2d 459, opinion adopted. On the trial plaintiff testified that during the years of their marriage (1939-1960) defendant continued a course of “week end after week end of drinking and cruelty”. “On Saturday night before I left him it just seemed to climax the whole 20 years of living with him. I mean he had been cruel and drunk so many times, but this week end, it just seemed like I couldn’t take any more. He got on one of his regular week end drunks and roughed me up pretty much, hit me, broke my glasses”. She further testified he fussed and nagged all the time, and she had to go to a doctor because of same.

The defendant offered no evidence whatsoever.

It is true that acts constituting excesses, outrages and cruel treatment must be established by full, clear and satisfactory evidence. However, the question and weight of the evidence necessary to meet these requirements must of necessity be left to the sound discretion of the trier of the facts. Mobley v. Mobley, Tex.Civ.App., 263 S.W.2d 794; McGinnes v. McGinnes, Tex.Civ.App., 322 S.W.2d 417; Guerra v. Guerra, Tex.Civ.App., 327 S.W. 2d 625; Batte v. Batte, Tex.Civ.App., 349 S.W.2d 112. The evidence is sufficient to support the trial court’s finding of cruel treatment. Defendant’s points are overruled, and the judgment of the trial Court is affirmed.


author: DIXON, Chief Justice.

text:
    Arnold J. VROCHER et al., Appellants, v. TEXAS LIQUOR CONTROL BOARD, Appellee.
    No. 15960.
    Court of Civil Appeals of Texas. Dallas.
    Sept. 29, 1961.
    Rehearing Denied Oct. 27, 1961.

      Wm. Andress, Jr., Dallas, for appellants.
    Will Wilson, Atty. Gen., Norman V. Suarez, John E. Leonarz, Assts. Atty. Gen., for appellee.
   DIXON, Chief Justice.

This is an appeal from a District Court judgment upholding an order of the County Judge of Dallas County, Texas, refusing the joint application of Arnold J. Vrocher and Oscar Dunston for a retailer’s beer license for the year 1961 as operators of a drive-in restaurant located at 2006 North Industrial Boulevard in the City of Dallas.

For four years prior to 1961 Vrocher alone had held a beer license for the premises in question. His last license expired November 7, 1960, but he forgot to apply for a renewal license within the time required by the statute, Art. 667-7 of the Penal Code. Therefore in order to obtain a license it was necessary for him to apply for a new or original license pursuant to Art. 667-5 of the Penal Code. After hearing evidence the County Judge made a statement to the effect that the application should have been made in the name of Vrocher and Dunston as partners, not in the name of Vrocher alone. Vrocher’s application was refused. No appeal was taken from the order.

Thereafter Vrocher and Dunston jointly filed an application as partners in the operation of the cafe. The testimony showed that there had been no change in the status of the parties since the previous hearing. At this second hearing the attorney for the Liquor Control Board recommended that the second application should also be refused because Vrocher had made a false statement in the previous application when he had said he was the sole proprietor of the restaurant. The County Judge took the matter under advisement and some time later made an order refusing the second application — the joint application of Vro-cher and Dunston. From the latter order an appeal was taken to the District Court.

Practically all the testimony at the trial in the District Court was concerned with the issue as to whether the restaurant was operated by Vrocher alone as sole proprietor, or was owned and operated by Vro-cher and Dunston as partners. The trial judge made extensive findings of fact which in part were as follows: (1) Vrocher has been lessee of the premises at 2006 North Industrial Boulevard under a written lease from Vincent Tuminello dated October 13, 1956 and terminating August 31, 1962; (2) at all times during his occupancy Vrocher had wine and beer retail permits; (4) fire insurance had been issued in his name, and (5) all utilities had originally been contracted for in his name, and the gas and water are still in his name, but sometime in 1959 or 1960 Oscar Dunston had the telephone and electricity put in his name; (8) Oscar Dunston has operated the cafe as manager under an oral agreement with Vrocher for a percentage of the profits, but was not to bear any losses, and the agreement was terminable at any time; (9) Dunston has the entire management of the cafe, making necessary purchases, including beer for cash, and hiring and firing employees, but Vrocher sometimes makes suggestions about employees, discussing them with Dunston in person or by telephone about twice a week; (10) since Dunston has been manager Vrocher had made and paid for improvements, the work being superintended by Dunston; (11) Dunston does not now claim any interest or partnership in the business; (12) Vrocher overlooked renewing his wine and beer retail permit which expired November 7, 1960 by failing to make application for such renewal in proper time, and was therefore required to make an application for a new permit; (13) the new application for wine and beer retail permit made by Vrocher individually was made in the same manner as the prior application upon which he had such permits for approximately four years; (14) at the time of the first hearing before the County Judge neither the Liquor Control Board nor the Police Department made any protest in open court, and the operation has at all times been conducted in a respectable and decent manner; (15) however, at the hearing the attorney for Tuminello, Vro-cher’s landlord, contended that Vrocher was not sole owner, but that Dunston had an interest therein; (16) Tuminello, the landlord, has tried on another occasion to break the lease on the premises; (17) the County Judge denied the application of Arnold J. Vrocher alone and said that the application should have been in a partnership form by Vrocher and Dunston; this denial by the County Judge took place in November 1960, and no appeal was taken from such ruling; (18) thereafter Vrocher and Dunston made a new application jointly, being the application involved in this appeal; (19) at the hearing on the joint application the County Judge was advised that the application should be refused; on December 27, 1960 the County Judge denied the joint application of Vrocher and Dun-ston because of a false representation, and the appeal to the District Court followed.

The testimony showed that the withholding taxes and unemployment taxes are made out in the name of Dunston alone. The business is operated under the name of “Oscar’s”.

The trial court reached conclusions of law as follows: (1) there was some evidence from which the County Judge could have concluded that Oscar Dunston owned the business or had some interest in the restaurant, and that the restaurant was not the sole proprietorship of Vrocher; (2) the evidence was conflicting on the issue; and (3) the District Court should not substitute its judgment in the matter for the County Judge.

Judgment was entered sustaining the order of the County Judge refusing to approve the joint application of Vrocher and Dunston.

Opinion

In five points on appeal appellants allege that (1) when appellants, at the instruction of the County Judge, filed a joint application for a beer license for a cafe operation which they both considered to be a sole proprietorship, the statements in the prior sole proprietorship applications were not false statements justifying denial of the joint license; (2) statements in prior applications that a business was a sole proprietorship, even if erroneous conclusions of law, were not such false statements as to mandatorily require refusal of the joint application filed for the same operations at the County Judge’s suggestions after he had held the operation to be a joint one; (3) the legal conclusion by an applicant for a beer license that his business was a sole proprietorship does not become a false statement because the County Judge erroneously concludes that it is a joint venture or partnership; (4) the County Judge’s holding that refusal of a joint beer license was mandatory for false statements that operation was a sole proprietorship in the prior applications, there being no other objections or basis for refusal of the license, was arbitrary, capricious and wrong as a matter of law, and therefore reversible as an abuse of discretion; and (5) applicants for beer license who overlooked renewing former license, who had continuously operated a cafe under license for four years without complaint or violation of the Liquor Control Act or record of Police calls, where applicants also had licenses at other locations without blemish, should not be refused license on sole ground that the County Judge viewed their former operation as joint, which operation they had considered and still do consider a sole proprietorship and management contract, the County Judge construing their version of its legal effect to be a false statement compelling him to refuse their application.

In reply to the above five points, appellee presents two counterpoints in which it is alleged that the judgment of the trial court is correct since (1) appellants Vrocher and Dunston failed to discharge their burden of proof in showing that the order of the County Judge was not supported by substantial evidence or was arbitrary, or illegal ; and (2) the order of the County Judge was supported by substantial evidence introduced in the trial court, and was not ■arbitrary or illegal.

The case presents several unusual features. For one thing appellants contend, and they insist that the undisputed evidence shows, that they were not at the time of the trial and had not ever been partners or joint enterprisers, but that their relationship is and always has been that of employer and employee, with Vrocher as sole proprietor and employer and Dunston as employee. If appellants are correct in their •contention it follows that the County Judge properly refused to grant them the license, for certainly they are not entitled to a license as partners if one of them is the ■sole proprietor and the other is merely an ■employee.

Appellants now say that the County Judge was in error when he refused the application of Vrocher as sole proprietor, giving as a reason his opinion that the cafe was ■operated as a partnership between Vrocher and Dunston. However, no appeal was taken from the order refusing Vrocher’s ■application. The only appeal before us is from the later order refusing the joint application of Vrocher and Dunston.

The order of the County Judge refusing the joint application of Vrocher and Dun-ston, from which order the appeal was taken to the District Court, and thence to this Court, was not offered in evidence in the District Court, and is not shown anywhere in the record before us.

In their brief appellants say, “Essentially this is a renewal of permits held at the same location for four years by Arnold J. Vrocher individually * * The basis for this statement is the testimony of Vro-cher that for four years he had operated the restaurant with beer permits each year, but that through oversight he failed to make application for the 1961 renewal license in time, so made a brand new application for a permit.

We are unable to agree with appellants’ statement that this is essentially an application for the renewal of beer permits. We must hold to the contrary for these reasons: (1) from the legal standpoint when a licensee fails to apply in time for the renewal of his beer permit his permit expires under its own terms after one year, Art. 667-7 of the Penal Code of Texas; (2) having failed to renew his license, Vrocher had to begin over again and file an application for an original license as provided in Art. 667-5 of the Penal Code; (3) the procedure for obtaining a renewal license pursuant to Art. 667-7 of the Penal Code is quite different from the procedure to obtain a new or original license as required by Art. 667-5 of the Penal Code.

The procedure for obtaining a renewal of an existing license is comparatively simple. The application for renewal is presented to the County Tax Assessor and Collector, and is forwarded by that officer to the State Liquor Control Board. Unless the application for renewal is rejected by the State Liquor Control Board, no hearing before the County Judge is required. On the other hand, the procedure for obtaining a new or original license requires a much fuller statement in the application, a notice to the public, and a hearing before the County Judge. It is unfortunate for Vro-cher that he failed to renew his old license. Nevertheless, it is now necessary for us to apply the standards laid down by legislative enactment for the issuance of a new original license, not the standards for the issuance of a renewal license.

We agree with appellee that the burden was on appellants Vrocher and Dunston to prove that the order of the County Judge refusing their license was not supported by substantial evidence. Hernandez v. The Texas Liquor Control Board, Tex.Civ.App., 317 S.W.2d 552; Texas Liquor Control Board v. Armstrong, Tex.Civ.App., 300 S.W.2d 146; State v. Peeler, Tex.Civ.App., 200 S.W.2d 874. It is the evidence introduced in the District Court, not that which was introduced before the County Judge or the Liquor Control Board, to which we must look in determining whether appellants failed to discharge their burden. Texas Liquor Control Board v. Luke, Tex. Civ.App., 340 S.W.2d 504; Texas Liquor Control Board v. Metcalf, Tex.Civ.App., 256 S.W.2d 117; Sikes v. Texas Liquor Control Board, Tex.Civ.App., 243 S.W.2d 395; Jones v. Marsh, 148 Tex. 362, 224 S.W.2d 198.

Art. 667-5, subd. 2 provides that the County Judge shall refuse an application for a beer license if he has reasonable grounds to believe and finds certain things to be true. The statute then lists eight grounds on which, if one of them exists, the County Judge must refuse a license.

Art. 667-5, subd. 3 provides that the County Judge may refuse a license if he has reasonable grounds to believe and finds certain things to be true. The statute then lists sixteen grounds on which, if any one of them exists, the County Judge may refuse a license.

Since the burden was on appellants in the District Court to show by evidence introduced in the District Court that the order of the County Judge was not supported by substantial evidence, it was necessary for appellants to negative every one of the statutory grounds upon which the County Judge was required to refuse a license, or upon which he might have refused a license. This appellants failed to do.

Neither the first application by Vrocher alone, nor the second application by Vro-cher and Dunston jointly was offered in evidence and neither of them is shown anywhere in the record. Neither the first order of the County Judge refusing the application of Vrocher alone (from which order no appeal was taken) nor the second order refusing the application of Vrocher and Dunston jointly (from which order an appeal was taken) was offered in evidence and neither of them is shown anywhere in the record.

True, the trial court found that the County Judge refused the order because he considered that Vrocher had made a false statement in his first application concerning the ownership of the restaurant. But was this the only ground on which the application was refused? Appellants have failed to prove that it was.

The trial judge did find that the new application for wine and beer permit made by Vrocher individually was made in the same manner as prior applications upon which he had permits for approximately four years. Doubtless this finding means that the applications were made in the same manner only with reference to the ownership of the restaurant. Certainly the court could not have meant the applications were otherwise made in the same manner, for the earlier applications were for renewal of the license, whereas the last application by Vrocher individually was for a new original license.

The evidence in the District Court fails to show whether Vrocher or Dunston was finally convicted of a felony during the two years next preceding the filing of their application (Art. 667-5, subd. 2(f); or whether they have been finally convicted in a court of competent jurisdiction for the violation of the Texas Liquor Control Act. (Art. 667-5, subd. 3(a); or whether they have failed to answer or falsely answered questions in their application (Art. 667-5, subd. 3(d) (the application was not introduced in evidence); or whether Tuminello, their landlord, has a license to manufacture or distribute beer (Art. 667-5, subd. 3(p). There is no testimony in regard to these and other grounds listed in the statute upon which a refusal may be based. Appellants have failed to discharge their burden.

As we earlier pointed out, appellants undertook to show in the District Court that the operation of the restaurant is not and was not a partnership operation of Vro-cher and Dunston. They both insist that it has always been operated as a sole proprietorship by Vrocher. They claim that the undisputed evidence so shows. If they are correct they should have appealed from the order of the County Judge refusing Vrocher’s application as sole proprietor. And if the undisputed evidence establishes that they were not joint owners and operators, as they now claim, then they should not now be granted a license on their application wherein they assert that they were joint owners and operators.

Appellants say that the issue of ownership, that is, whether the operation was that of a partnership, is simply a law question. We do not agree. Though most of the evidence is uncontradicted it was offered by interested parties. Intention is one of the many factors to be considered in deciding whether a partnership in fact exists. Lovell v. Lovell, Tex.Civ.App., 202 S.W.2d 291; Luling Oil & Gas Co. v. Humble Oil & Refining Co., 144 Tex. 475, 191 S.W.2d 716. The intention of the parties is to be determined from all the surrounding circumstances, not alone from the claims of the parties. In this case the trial judge concluded that the evidence as to the true and sole ownership of the restaurant was conflicting. Conflicts in evidence must be in favor of the upholding of an order of an administrative agency. Texas Liquor Control Board v. Redd, Tex.Civ.App., 285 S.W.2d 400; State v. Farris, 239 S.W.2d 419; Texas Liquor Control Board v. Jones, Tex.Civ.App., 112 S.W.2d 227; Texas Liquor Control Board v. Floyd, Tex.Civ.App., 117 S.W.2d 530.

Appellants’ five points on appeal are overruled. Appellee’s two counterpoints are sustained.

The judgment of the trial court is affirmed.


author: McNEILL, Justice.

text:
    James R. ALEXANDER et al., Appellants, v. TEXAS AND NEW ORLEANS RAILROAD COMPANY, Appellee.
    No. 6401.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 28, 1961.
    Rehearing Denied Oct. 30, 1961.

      Carl Waldman, Bill Sanders, Beaumont, for appellants.
    Keith, Mehaffy, McNicholas & Weber, Beaumont, for appellee.
   McNEILL, Justice.

Appellants James R. Alexander, Tommy Pasley and Joseph Palique instituted this suit in the district court of Jefferson County against appellee to recover for personal injuries alleged to have been sustained by them when a car in which they were riding, going southerly along Franklin Street in the City of Lake Charles, Louisiana, started across appellee’s railroad crossing containing five parallel railroad tracks of the ap-pellee running east and west, and struck the exposed rails of appellee’s tracks, causing the parties to be thrown about in the car and injured. At the conclusion of appellants’ testimony the court upon appellee’s motion instructed a verdict against appellants and this appeal resulted.

The accident happened while it was still dark about 4 o’clock on the morning of July 28, 1954 as the car was being driven by appellant Alexander. Appellants were not familiar with the street and did not know that it turned at an angle of some 30° toward the east as it crossed the railroad tracks, and as they reached the crossing their vehicle continued straight on striking the exposed rails of the first of appellee’s tracks.

After describing the accident generally in paragraph 3 of their petition, evidently as a basis for drawing certain grounds of negligence therefrom, paragraph 4 was as follows :

“4. Your plaintiffs further show unto the Court that had the railroad company placed a sign notifying oncoming traffic of the turn in the street in which your plaintiffs were traveling, that the incident in question would not have happened. That the defendant, Texas & New Orleans Railroad Company, was guilty of the following acts and omissions, to wit:

“(a) In failing to place a warning sign at the intersection of Franklin Street and the railroad tracks to warn on-coming traffic that Franklin Street did not continue straight across the railroad tracks in a southerly direction.
“(b) In failing to have a flagman to notify the plaintiffs that the street upon which he was traveling did not continue across the railroad tracks in a southerly direction.
“(c) In failing to warn the plaintiffs that said Franklin Street was a dead-end street and did not continue across in a straight fashion.
"(d) In failing to have the roadbed at the end of Franklin Street between the railroad tracks in a reasonably safe condition.
“(e) In failing to have a barricade at the juncture of Franklin Street and the railroad tracks.

And that each and all of the above and foregoing facts, either of omission or commission, constituted negligence, amounted to negligence, and were each and all a proximate cause of the injuries and damages made the basis of this suit.”

The evidence showed that there was no warning sign at the intersection of Franklin Street and the railroad tracks to warn motorists of the curve or turn in the street, nor did the appellee maintain a flagman therefor. It also showed that the exposed rails the car struck were more than 6 inches high and that the collision with the rails caused the parties to be thrown about, bruised and otherwise injured; that the width of the street on the crossing was some 25 feet. Appellant Pasley testified that there was only one railroad crossing sign as they approached the crossing, and this was the crossbuck situated some 35 to 40 feet west of the roadbed of the actual crossing; that this crossbuck was lined up with the telephone poles and other structures along the edge of the road or street and this, along with the fact that the crossing was not well defined and that it was about 6 feet above street level, together with the fact that there was no warning sign that the street would turn, caused the witness to think the street extended straight over the railroad tracks. The witness further testified that the street blacktop paving ended some 85 feet from the nearest rail and gravel and dirt served for the approach and crossing; that as they neared the crossing, “everything appeared it was going to be a normal, just a crossing there.” That since the crossbuck was about 30 feet west of the crossing, coupled with the fact that it was lined up with the blacktop section of the street and the telephone and utility poles as well as houses and buildings on Franklin Street just north of the crossing, the operator of the car was misled into believing and thinking- that Franklin Street continued straight across the railroad tracks.

The driver of the car, Alexander, testified that he was driving about 30 or 35 miles per hour; that the car’s headlights were on and that he saw the crossbuck as he approached the crossing; that the crossing appeared to be about 3 feet higher than the blacktop of the street. He stated that he saw the crossbuck after he ran off the end of the blacktop onto the gravel “and the way the sign was situated, there was all indication the road goes straight over the railroad tracks, but it didn’t.”

Appellant Joseph Palique testified: “A. Well, we were heading south on Franklin, and it looks like it would be a pretty nice street, houses all lined up even, that would indicate a straight thoroughfare there. And the first thing we knew we hit gravel and hit a hump down, and it was pitch dark, and we hit a hump down and then a sudden up, and before we knew it we had landed out on some tracks, there. The road jogged off to the left there, with no indication that the road jogged off at all. It just left us.”

At the close of appellants’ evidence the trial court granted the motion for instructed verdict. Appellants’ brief contains six points of error urging, in effect, there was evidence raising issues of fact to be submitted to the jury as to the negligence of appellee. The principal theme of their brief is that the evidence in the case raised the issues that the location of appellee’s cross-buck variously estimated to be between 20 and 45 feet from the crossing caused a “delusion” that the street continued straight; and, second, that the appellee, by the location of its crossbuck, invited motorists to cross the railroad tracks at a place other than the actual crossing. Appellee urges that consideration should not be given these two points for the reason that appellants failed to plead as grounds of negligence that appellee’s crossbuck caused an illusion that the street continued straight on across the tracks, nor that by its location motorists were invited to cross the tracks at a place other than the actual crossing.

By reply brief appellants quote part of paragraph 3 of their petition as follows:

“the defendant railroad company had placed a sign or caused a sign to be placed there at the edge of the roadway, indicating to traffic traveling in a southerly direction on Franklin Street or in the same direction in which your plaintiffs were traveling, that Franklin Street continued in a straight road completely across the tracks owned and operated and maintained by the defendant, Texas & New Orleans Railroad Company.”

If this language, or similar language, had been contained in a specification of negligence, appellants’ point that it alleged a misleading illusion existed would have merit, but since neither the language quoted nor similar expression was contained in any specification of negligence as set forth in paragraph 4 of appellants’ petition, we cannot recognize it as a ground of negligence upon which appellants can rely. An examination of paragraph 3 of the petition indicates that it was simply a summary of the accident and its cause, not purporting to set forth the grounds upon which appellants sought to hold appellee liable. Since appellants set out specifically the several grounds of negligence in paragraph 4 of their petition, each of which was alleged to be a proximate cause of appellants’ injuries, they thereby limited themselves to these specific grounds. Lancaster v. Hall, Tex.Civ.App., 277 S.W. 776. See, also, 29 Tex.Digest, Negligence, ^119(4).

However, we have conclued that the evidence raised an issue to go to the jury as to whether appellee was negligent in failing to place a warning sign at the intersection of Franklin Street and the railroad tracks to warn oncoming traffic that the street did not continue straight across the tracks in a southerly direction. By motions granted under Rule 184a, Texas Rules of Civil Procedure, we take judicial notice of applicable law of the State of Louisiana. In Lee v. Gulf, C. & S. F. Ry. Co., Tex.Civ.App., 157 S.W.2d 424, it is said to be a generally recognized rule that a railroad company owes the duty to maintain that part of a road or street lying within its right of way in a reasonably safe condition for the traveling public. This is the law of Louisiana. Wallace v. Louisiana & A. Ry. Co., La.App., 6 So.2d 63. As a corollary to this principle of law, a railroad company owes a duty to the traveling public to warn of an unsafe condition of the crossing, created or contributed to in part by virtue of its own acts. The testimony here shows circumstances tending to create an illusion to the driver of appellants’ car that the crossing was one directly across the tracks and, if such illusion was created, it became the duty of the railroad company to exercise reasonable care to warn that such was not the case. We think our view is justified under the law of Louisiana as announced in Darby v. New Orleans T. & M. R. Co., 139 La. 213, 71 So. 490. In that case the crossing was defective, making the railway company liable. Since the direction a street shall take is within the sole control of the City, appellee could not straighten the street nor plan the roadbed across the railroad other than as the City approved. Neither does it appear that barricades could be safely constructed along and between its tracks because of its own operations. The net result of this, therefore, would leave appellee open to the question of whether it owed a duty to give warning of the turn in the street so that the traveler, unaware of the turn, may avoid hitting the exposed rails. The testimony was sufficient to raise the issue whether ap-pellee was negligent in failing to warn that the street turned as it crossed its tracks.

Our holding is not contrary to that of the Supreme Court in City of Fort Worth v. Lee, 143 Tex. 551, 186 S.W.2d 954, 159 A.L.R. 125, relied upon by appellee. The facts there are easily distinguishable from those of the present case. In the Lee case the railroad built its line through a cut in the year 1894. Several years later an addition adjoining the railroad right of way was dedicated and 30th Street ran perpendicularly to the right of way of the railroad. This street was opened and graded except for the last 25 feet adjacent to the railroad right of way. A youngster delivering packages for a drug store at night on a bicycle was traveling along 30th Street thinking he was on another street, and ran off the end of the street over the embankment, falling some distance in the railroad cut onto the tracks, severely injuring himself and suit was brought in his behalf against both the City of Fort Worth and the railroad company. The Supreme Court held that since the railroad company had created the cut and built its roadway long previous to the opening of 30th Street that there was no duty upon the part of the railroad company to warn travelers or erect a barricade under the circumstances at the end of 30th Street. Such duty was held to be solely upon the City of Fort Worth. In the case at bar we cannot say which reached the area involved first, the City’s street or the railroad company. The outstanding distinguishable quality, however, between the two cases is that in the Lee case there was no joint use of the same area as there was in the present case.

The judgment is reversed and the cause is remanded.


author: WILLIAMS, Justice.

text:
    Robert J. CANTRELL, Appellant, v. CITY OF DALLAS, Texas, Appellee.
    No. 15923.
    Court of Civil Appeals of Texas. Dallas.
    Sept. 29, 1961.

      Edgar P. Haney and Robert J. Cantrell, Dallas, for appellant.
    H. P. Kucera, City Atty., and N. Alex Bickley and Ted P. MacMaster, Asst. City Attys., Dallas, for appellee.
   WILLIAMS, Justice.

Robert J. Cantrell sued the City of Dallas alleging that he was the record owner of a 2-acre tract of land situated in Dallas, Texas, and that the City had failed and refused to issue a building permit enabling him to complete a structure above a basement which had previously been authorized by the City. Plaintiff charged the City with having failed to provide him with electrical service, water service, sanitation facilities, gas service, and garbage collection services, and by way of equitable relief plaintiff urged the trial court to issue its writ of mandamus directing the City to issue to plaintiff a building permit; to recognize and accept Vida Drive as a dedicated public street; and to supply plaintiff with water and sanitary facilities and garbage pick-up. In another count, plaintiff alleged that due to the unreasonable and wrongful activities on the part of the City in failing to provide services as aforesaid, that plaintiff and his wife have been injured and damaged by virtue of physical, mental, and emotional pain in the amount of $22,000. Furthermore, plaintiff sought $11,000 additional as exemplary damages against the City. By way of answer, the City, in its paragraph 1, leveled a special exception to that part of plaintiff’s petition having to do with damages on the ground that no lawful notice had been given to the City as provided by the City Charter. The City also pled affirmative defenses having to do with the other phase of the litigation involving granting a building permit.

Following a pre-trial hearing on November 7, 1960, the trial judge granted the following order:

“On this the 7th day of November 1960, came on for pre-trial the above styled and numbered cause, and for consideration by this Court the Defendant’s Motion to Dismiss the portion of this cause relative to damages claimed and alleged by the Plaintiff, contained in Paragraph 1 of Defendant’s Original Answer, and the Court having considered the pleadings, the exhibits previously introduced in this cause, the statements of counsel, and the City Charter, City Ordinances, and State Laws applicable thereto, is of the opinion and hereby finds that the Motion to Dismiss as to any claim for damages on the part of Plaintiff should be, and it is hereby, dismissed.”
“It is therefore Ordered, Adjudged And Decreed that the above suit insofar as damages are claimed on behalf of the Plaintiff are hereby dismissed.”

It is from this order that appeal reaches this Court. Appellant’s brief is not within the rules of briefing as required by our Rules of Civil Procedure, rule 418. Instead of points of error appellant presents seven “propositions”, each of which are vague, indefinite, argumentative, and having no relation to the requirements of Rules concerning points of error. These “propositions” are not followed by statements or arguments, but contain, within themselves, arguments and citations of authorities. While appellant’s brief does not conform to briefing rules we have attempted to ascertain the intent of appellant from a reading of his “propositions” so as to apply the liberal rules of construction, so long recognized by our courts. Wyche v. Noah, Tex.Civ.App., 288 S.W.2d 866; Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478. Having given due consideration to such liberal rules of construction we are impelled to the conclusion that there is no merit to any of his positions and that they should be overruled.

However, it becomes unnecessary for us to further elaborate on these points or “propositions” because it is apparent upon the face of this record that the order of the trial court which is attempted to be appealed to this court is not a final or appeal-able order. Upon a reading of the order quoted above it is immediately apparent that the trial judge, on pre-trial hearing, was merely acting upon one special exception of the defendant City directed to only a part of the cause of action asserted by plaintiff.

It is so fundamental as to hardly require citation of authorities that an order, judgment or decree must possess the essential characteristic of finality before an appeal will lie from it. 3 Tex.Jur.2d Par. 76, pp. 337-338, and cases cited. “Ruling which merely sustains exception without expressly disposing of case, even though it notes that pleader has taken an exception to the ruling and given no notice of appeal, is not final judgment for purposes of appeal.” McDonald, Tex.Civ.Practice, Vol. 3, Par. 10. 14, p. 882; Vol. 4, Par. 17.09, p. 1334. See also Ship Ahoy, Inc. v. Whalen, Tex.Civ. App., 347 S.W.2d 662, Syl. 1. A judgment is not final and appealable unless it disposes of all the issues in the case. 3 Tex.Jur.2d Par. 88, p. 353, and cases therein cited. It is axiomatic that an appellate court cannot take jurisdiction of a case in which there has not been a final judgment rendered in the court below. "3 Tex.Jur.2d Par.. 63, p. 327. A final judgment is one that determines all the issues involved in the suit, fully determines the rights and liabilities of all parties with reference to the matters in controversy, and finally disposes of the entire case. 3 Tex.Jur.2d Par. 77, pp. 340-314, and cases cited.

Jurisdiction of this court cannot be conferred by agreement or consent of the parties, but must be expressly demonstrated by the record. This record clearly demonstrates the absence of the essential characteristic of finality of the judgment appealed from and therefore we have no jurisdiction to consider the matters presented.

When we apply these fundamental and well-founded rules to the case under consideration we find that the order of the trial judge upon pre-trial hearing merely disposing of one special exception having to do with only one phase of plaintiff’s case, and not in any wise expressly or by implication determining the other questions involved, does not meet the test of finality which will confer jurisdiction upon this court.

The appeal is dismissed for want of jurisdiction.


text:
    PACIFIC INDEMNITY COMPANY, Appellant, v. Charles C. ANDERSON, Appellee.
    No. 15865.
    Court of Civil Appeals of Texas. Dallas.
    Sept. 29, 1961.

      Strasburger, Price, Kelton, Miller & Martin, Hobert Price, Dallas, for appellant.
    Wilson & Menaker, Dallas, for appellee.
   DIXON, Chief Justice.

Appellee Charles C. Anderson brought this Workmen’s Compensation suit for partial loss of the use of his right foot due to an injury sustained May 29, 1957 while he was an employee of Temco Aircraft Corporation. A jury returned a verdict of temporary partial disability of 35% for a period of 137 weeks. Inasmuch as Art. 8306, § 12, Vernon’s Ann.Civ.St. provides compensation for a maximum period of 125 weeks for the loss of a foot judgment was entered for compensation for only 125 weeks.

In its first two points on appeal appellant Pacific Indemnity Company charges error on the part of the trial court in refusing to hold (1) that the jury’s verdict is contrary to the undisputed evidence, and (2) that there is insufficient evidence to sustain the jury’s verdict. Both points are without merit.

We here present a résumé of appellee’s testimony bearing on the above two points: On the occasion of his injury appellee was standing on a makeshift scaffold which consisted of a box three feet tall with a board across it. The scaffold collapsed and ap-pellee fell to a concrete floor, fracturing his ankle. He was taken to a company doctor who put a cast on the ankle and leg below the knee. The cast was not well made. It broke the next day. The company doctor then put on a heavier cast. This cast pulled appellee’s foot “sideways”. It had to be removed because it was rubbing appellee’s foot and leg. Appellee was taken to another doctor, who examined him but did not treat him.

At the time of his injury appellee was an aircraft painter using a spray gun to paint an F38 wing. He had to stand, sometimes on tiptoe, while doing his regular job. He was proud of his regular job, for he had been selected because of his ability.

For about a week after his injury he went back to his regular job. Then they took him off his job and gave him an assignment where he could sit at a table while working. He was unable to use his right foot on his regular job. He has never been put back on his regular job. He does no scaffold work at all now. Most of his work on his regular job was scaffold work.

At the time of the trial in May 1960 ap-pellee was still bothered by his foot. On his present job he is on his feet about 75% of the time. When he stands an excessive time his foot feels somewhat like a sprained ankle; it feels like his heel is twisted to the left; constant walking on it or standing on it will cause the pain to start and it will swell. Sometimes he will sit down, take off his shoe, and rub his foot. The quantity, though not the quality of his work has been adversely affected.

Appellee further testified that there has not been any progress in the condition of his foot. Before his injury he played in a softball league and in a bowling league, kept a garden as a hobby and kept his yard in trim. He has had to give up all of these activities.

A fellow employee testified that appellee limps, seems to be in pain- at times, sometimes props his foot on a rag, massages his foot, and isn’t as fast at his work as he used to be.

Though earning capacity is not an issue in this case, there is evidence in the record that appellee has not suffered a deduction in his hourly rate of pay. In fact he has received two raises in pay. However, his annual earnings have dropped from about $6,000 per year to $4,627 per year due to the fact that he had a lot of overtime work on his regular job before his injury, but has not had overtime work on the jobs to which he has been assigned since his injury.

Appellant’s first two points on appeal are overruled.

In its third and fourth points appellant complains of the alleged error of the trial court (3) in permitting appellee Anderson to testify that his supervisor had complained of his work subsequent to his injury and had transferred him from his regular job to other work, to which testimony appellant had objected on the ground that it was hearsay; and (4) in permitting ap-pellee’s witness Russell, a fellow employee, to testify that the supervisor had pulled appellee off his job, to which testimony appellant had objected on the ground that it was hearsay.

In this connection we quote from appel-lee’s testimony:

“Q. (By Mr. Wilson) Now, Mr. Anderson, was any complaint made about the character of your work on that wing that you are talking about, from which you were transferred, was any complaint made by anyone in a position of authority or supervision over you, at that time?
“Mr. Newberry. I object to that as calling for hearsay evidence, the people not subject to cross examination. * *
“Mr. Wilson. Just answer whether or not a complaint was made.
“The Court. Just yes or no. * * A. Was a complaint made? Yes.
“Q. All right, now, by whom was that complaint made ? A. By the supervision, (sic)
“Q. And specifically who, do you recall? A. The particular supervisor at that time was named Archie Clark.
⅜ * *
“Q. Now, what reason did he give you for transferring you off that job?
“Mr. Newberry. Same objection.
“The Court. I will sustain that objection as being hearsay.
“Mr. Wilson. Note our exception.
“Mr. Newberry. And I ask the Court to instruct the jury to disregard this line of testimony.
■“The Court. Well, lie hasn’t made any answer to it.”

We quote from Russell’s testimony:

“Q. All right now, will you tell the jury what, if anything, you have observed about his condition since he got hurt? A. Well I have noticed — noticed that he limps, and when he will step out of a car or something on his right foot, he will, it will give on him, and he will grunt, and I will ask him what is wrong, and he said his foot give on him.
“Q. All right. A. And they taken him off right after me and him were transferred from Grand Prairie to the Garland Plant, they pulled him off—
“Mr. Newberry. We object to that as calling for hearsay evidence, Your Honor; he is talking about some other people who are not subject to cross examination here.
“The Court. I will overrule the ob j ection.
“Q. (By Mr. Wilson). You say they pulled him off of the job after he got transferred to Garland ? A. They pulled him off, and said he wasn’t fast enough.
“The Court. Now, wait a minute, I will sustain the objection to that.
“Mr. Wilson. No, don’t say what anybody else said.
“The Court. And I will instruct the jury not to consider what they said, it is hearsay.
“Q. (by Mr. Wilson). All right, without saying what they said — ■
“Mr. Newberry. Your Honor, I am also objecting to the fact that he is trying to get a conclusion or opinion by somebody else before the jury in an indirect manner, and they are not subject to any cross examination.
“The Court. I will overrule that obj ection.
“Mr. Newberry. Note my exception.”

Does the above quoted testimony show that the court committed reversible error in permitting hearsay testimony? Plainly it does not. We so hold for three reasons: (1) the court sustained appellant’s objections when the witnesses undertook to testify what the supervisor said; (2) similar testimony had earlier been elicited without objection to the effect that appellee had been “pulled off” his regular job and transferred to another job (which testimony need not be quoted); and (3) we cannot in truth say that the admission of the testimony about appellee’s being “pulled off” his job (even if we were to hold it was error) was calculated to cause and probably did cause an improper verdict. Rule 434. Appellant’s third and fourth points are overruled.

In its fifth and sixth points appellant asserts that the trial court erred (5) in substituting corrected Special Issue No. 1 for the original Special Issue No. 1; and (6) in overruling appellant’s objection to such substitution.

The original Special Issue No. 1 was as follows:

“Special Issue No. 1
“Do you find from a preponderance of the evidence that C. C. Anderson has or will suffer any partial loss of the use of his right foot as a result of the injury to said foot on May 29, 1957?”

After due deliberation the jury returned a verdict answering “no” to the above issue. However it answered other issues as follows: (2) the partial disability was temporary; (3) the partial disability covered a period of 137 weeks; and (4) the percentage of such disability was 35%. Thereupon the trial judge, by express agreement of counsel, orally called the jury’s attention to the obvious conflict between their answers to Special Issue No. 1 and the other issues; and instructed the jury to retire and further deliberate in order to correct the conflict.

The jury again retired and thereafter sent a note to the judge as follows:

“Your Honor: Does the use of the word ‘has’ in Special Issue Number 1 mean ‘has had in the past’ or ‘has now’. Signed ‘Foreman.’ ”

It was then that the court submitted a corrected Special Issue No. 1 in substitution of the original Special Issue No. 1. The corrected charge, including a corrected Special Issue No. 1, and the jury’s answers thereto was as follows:

“Members Of The Jury
“Special Issue No. 1 of the Court’s Charge is changed to read as follows:
“Do you find from a preponderance of the evidence that C. C. Anderson sustained any partial loss of the use of the right foot as a result of the injury to the said foot on May 29, 1957?
“Answer “yes” or “no”.
“Answer: Yes.
“/s/ Paul Swadek, Jr. Foreman
“I give you this corrected issue as a part of the Court’s Main Charge and ask that you answer the same under the same instructions as are contained in the Court’s Main Charge.
“/s/ Claude Williams Judge.”

The court after submitting the corrected charge offered counsel an opportunity to present further jury argument. Counsel declined.

We see no error in the action of the Court. It is proper for the court to point out a conflict in the jury verdict and retire the jury for further deliberation. Traders & General Ins. Co. v. Carlile, 138 Tex. 523, 161 S.W.2d 484; Burnett v. Rutledge, Tex.Civ.App., 284 S.W.2d 944. The court may correct and modify the charge. Cockrell v. Egger, Tex.Civ.App., 99 S.W. 568; Goode v. Ramey, Tex.Civ. App., 48 S.W.2d 719, 722; Rule 286 T.R.C.P. Appellant’s fifth and sixth points are overruled.

The judgment of the trial court is affirmed.

WILLIAMS, J., not sitting.