author: MOORE, Justice.

text:
    Douglas B. MOORE, Appellant, v. Walter A. SUSSDORF et al., Appellees.
    No. 303.
    Court of Civil Appeals of Texas. Tyler.
    Nov. 16, 1967.
    Rehearings Denied Dec. 7, 1967.

      Ramey, Brelsford, Flock & Devereux, Tom B. Ramey, Jr., Michael A. Hatchell, Tyler, for appellant.
    Spruiell, Lowry, Potter, Lasater & Guinn, F. Wilbert Lasater, Tyler, for appellees Sussdorf and McFarlane.
    Johnston & Johnston, Luther C. Johnston, Palestine, for appellee J. W. McFarlane.
    B. R. Reeves, Palestine, for appellees Frossard and Black.
   MOORE, Justice.

This is an appeal from a summary judgment. Appellant, Douglas B. Moore, filed suit against appellees, Walter A. Sussdorf, et al., for breach of contract, alleging that he and Sussdorf were duly licensed real estate brokers; that on December 31, 1963, he, Moore, secured a non-exclusive listing from J. E. Morrison, the agent of O. P. Leonard, authorizing him to sell a large tract of land containing approximately 15,000 acres known as the Leonard Ranch, situated in Anderson County, Texas, for the sum of $110.00 per acre; that shortly thereafter, he advised Sussdorf of the listing and he and Sussdorf entered into an oral contract to work together in the sale of the land and to divide any commissions received thereon; that as a part of the agreement, Sussdorf agreed not to seek a listing from the owner; that contrary to the agreement, Sussdorf secured a listing from the owner; that subsequently, through the joint efforts of Sussdorf and the other appellees, J. W. McFarlane, J. H. Frossard and W. D. Black, Jr., the land was sold to the State of Texas; that as a result of the sale, Suss-dorf and appellees McFarlane, Frossard and Black were paid a total commission in the amount of $98,439.10 by the owners. Appellant further alleged that he was entitled to his share of the real estate commissions, but that appellees withheld same from him and as a result he suffered damages in the amount of $85,841.98.

Appellee Sussdorf denied generally the allegations of the petition, and specially pleaded that the contract was without consideration. He further alleged that the contract was void and unenforceable in that the listing with appellant Moore from the owners was not in writing in violation of the Real Estate Dealers License Act, Article 6573a, and the Statute of Frauds, Article 3995, Vernon’s Ann.Tex.Stat.

As grounds for a cause of action against McFarlane, Frossard and Black, appellant alleged after he and Sussdorf contracted to work together in the sale of the Leonard Ranch, McFarlane, Frossard and Black entered in a joint venture with Sussdorf for the purpose of selling the land, as a result of which Sussdorf became their agent, servant or employee, and as a consequence, they became jointly and severally liable in damages for loss of commission suffered by appellant by reason of Sussdorf’s breach of contract with him.

Appellees McFarlane, Frossard and Black denied generally the allegations, and specially denied that either of them had any knowledge of the alleged contract between Moore and Sussdorf, or induced Sussdorf to breach the contract. They also set up a plea of failure of consideration upon the alleged contract between Moore and Sussdorf and asserted that the alleged contract was void upon the same grounds alleged in Sussdorf’s answer.

Neither O. P. Leonard nor any of the other owners of the Leonard Ranch were made parties to the suit.

After a hearing, the trial court entered a summary judgment in favor of the ap-pellees, rendering a take-nothing judgment against appellant Moore, from which he perfected this appeal. For convenience, the parties will hereinafter be referred to by their last names.

The record contains the pleadings, depositions and affidavits of all parties as well as the depositions and affidavits of O. P. Leonard and his agent, J. E. Morrison.

In summary judgment proceedings, the burden of proof is on the movant and all doubt as to the existence of a genuine issue of material fact must be resolved against him, arid the pleadings, depositions and affidavits must be reviewed in a light most favorable to the party opposing the summary judgment. Gulbenkian v. Penn, 1952, 151 Tex. 412, 252 S.W.2d 929.

When viewed in a light most favorable to appellant, the evidence shows that Moore and Sussdorf maintained separate offices in Palestine, Texas, and as real estate agents, they had frequently cooperated in real estate transactions in the past and had shared in the commissions earned thereon. In the present case, the evidence shows that in the fall of 1963, Moore contacted J. E. Morrison, a real estate agent in Fort Worth who was an agent of O. P. Leonard. Morrison advised Moore that O. P. Leonard and the other owners were contemplating the sale of the Leonard Ranch. On December 31, 1963, Morrison wrote Moore and advised him to go ahead with the sale as planned, at $110.00 per acre without mineral rights. Morrison orally advised Moore that the owners had agreed to pay a five percent broker’s commission and thereupon they agreed to divide the commission equally. It is undisputed that the listing was upon a non-exclusive basis. Shortly after Moore secured the listing, he advised Sussdorf thereof. According to Moore’s testimony, he did not tell Sussdorf that he and Morrison had agreed to split the five percent commission, because it was none of his business. Although he testified that he told Sussdorf that the ranch could be sold at $110.00 per acre, he testified that he told him that in order for them to make any money, it would have to be sold at a figure in excess of $110.00 per acre. He testified that during their discussion, he and Suss-dorf agreed to work together in selling the land for $125.00 per acre and agreed to equally divide any commission or profits received thereon. Sussdorf admits the discussion was held, and testified that he told Moore that he did not believe that the land could be sold for $125.00 per acre, and even though they were able to find a buyer at that price, he doubted Mr. Leonard would allow them to make a $15.00 per acre commission. Nevertheless, he did not say that he refused to work with Moore on the proposal. Shortly after this conversation, the evidence shows that Sussdorf contacted a real estate broker in Crockett, Texas, by the name of Beall, who advised him that he and other brokers in San Antonio, Texas, had a client interested in a large tract of land. Sussdorf advised him of the Leonard Ranch and subsequently went to Moore’s office and advised Moore. He then secured from Moore a map of the Leonard Ranch and delivered it to Beall in Crockett. At a later date, Sussdorf again visited Moore’s office and Moore inquired of the progress being made with Beall. Upon being advised that no progress had been made, Moore suggested that Sussdorf call Beall from his office and check on the progress. After the telephone conversation with Beall, Suss-dorf reported that no progress had been made because Beall’s client had been out of the county for some time, and it was not known when he would return. Moore testified that when he first learned that Suss-dorf was negotiating with Beall, he called J. E. Morrison in Fort Worth and requested authority to sell at $125.00 per acre and that Morrison granted such authority agreeing to the additional $15.00 per acre over and above the $110.00 per acre as commission. In his affidavit attached to his reply to the motion for summary judgment, Moore stated that he notified both Beall and Suss-dorf that he had authority to sell at $125.00 per acre and to take the remainder as commission. Both Morrison and Leonard denied that they had ever granted Moore such authority. Although there is no evidence showing further negotiations with Beall, there is nothing in the evidence suggesting that the negotiations with him had been terminated.

In the meantime, appellee Frossard, who was a licensed real estate broker in Madi-sonville, Texas, and appellees J. W. Mc-Farlane and W. D. Black, Jr., who also resided in Madisonville but were not licensed brokers, had learned that the State of Texas was interested in acquiring a large tract of land in the vicinity of the Leonard Ranch for the Prison System, and were attempting to assist the State in acquiring sufficient acreage in that area to satisfy its needs. On April 1, 1964, Frossard contacted Suss-dorf and inquired whether Sussdorf could get an exclusive listing on the Leonard Ranch. Sussdorf agreed to try. Without mentioning the conversation to Moore, he secured an exclusive listing for 60 days whereby Leonard agreed to sell for $125.00 per acre and pay a five percent brokerage commission. Frossard and Sussdorf then agreed to divide the commission whereby Sussdorf was to receive $1.00 per acre as his share. As it subsequently developed, the State needed several thousand acres in addition to the Leonard Ranch and in addition required that a substantial portion of the land contain all mineral rights. Much of the Leonard property was without mineral rights. The State agreed that if sufficient land could be acquired, the State would pay $135.75 per acre for the land with the mineral rights and $125,00 per acre without mineral rights. In view of the State’s additional requirements, O. P. Leonard and appellees set out to acquire enough additional land and mineral rights to satisfy the State’s need. In the meantime, Sussdorf’s exclusive listing expired and Leonard refused to renew it. However, the evidence shows that Leonard, with the assistance of appellees, continued acquiring additional lands and minerals. Finally on June 18, 1965, Leonard succeeded in acquiring sufficient land and succeeded in consummating a sale to the State for a total consideration of $2,400,000.00, which was paid to the owners.

The evidence shows that the consideration for the purchase of additional lands and minerals was furnished by O. P. Leonard. In the process of buying' and selling the land and minerals, other than the Leonard Ranch, there resulted a profit of $98,439.10. Subsequently, Leonard and the owners issued a check to McFarlane, Frossard and Black in the amount of $98,439.10 for their services in assisting in securing additional land and minerals. These funds were divided equally, between them. Leonard also paid Sussdorf a commission of $1.00 per acre for his service in the sale of the Leonard Ranch, totalling the sum of $14,992.35. According to the evidence, Sussdorf also received the sum of $3,150.28 from Frossard and a like amount from Black. They both testified that they voluntarily paid Sussdorf such sums for his assistance in securing additional land.

As we view the appellant’s pleadings, he first asserts a cause of action for damages against Sussdorf for breach of their agreement to work together in the sale of the property, and then asserts that the other appellees were jointly liable with Sussdorf for damages as a result of Sussdorf’s breach of his contract with Moore.

Appellant first contends that the rendition of a summary judgment against him was improper because the evidence was sufficient to raise a material issue of fact upon the question of whether he and Suss-dorf agreed to work together and share the commission.

It is generally held that an agreement between brokers to work together and share a commission on consummation of a deal constitutes a joint adventure and is enforceable. 9 Tex.Jur.2d, Sec. 82, p. 773; Miller v. Watson (Tex.Civ.App.), 257 S.W.2d 839; Finney v. Terrell (Tex.Civ.App.), 276 S.W. 340; Keiswetter v. Rubenstein, 235 Mich. 36, 209 N.W. 154, 48 A.L.R. 1049.

It has also generally been held that the relationship thus created is in the nature of a particular partnership and is governed by most of the same principles which apply to partnerships, including a fiduciary relationship, requiring each member to exercise the highest degree of good faith toward the other. Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256; Gilmer v. Graham (Tex.Com.App.), 52 S.W.2d 263; Mann v. Jones (Tex.Civ.App.), 233 S.W. 989. If Moore and Sussdorf, in fact agreed to unite their efforts and share in the benefits, Sussdorf would not, of course, be permitted to terminate the partnership for the fraudulent purpose of obtaining an exclusive listing and selling the property for his own benefit.

After a careful review of the record, we are persuaded to believe that the evidence is sufficient to raise an issue upon the question of whether or not Moore and Suss-dorf agreed to a joint adventure. As we see it, appellant’s testimony, together with other facts and circumstances, was sufficient to raise a material fact issue upon the question of whether or not the parties agreed to work together in selling the property and upon the consummation of a sale to share the commissions. Jordan v. Afton Engineering Co. (Tex.Civ.App.), 397 S.W.2d 512. Accordingly, we take the position that the court erred in rendering a summary judgment in favor of Sussdorf.

In assuming his negative burden of showing, as a matter of law, that Moore has no cause of action against him, Sussdorf contends that the summary judgment in his favor must be sustained because the agreement was not supported by consideration. As we view it, the judgment cannot be sustained on this basis. According to Moore’s testimony, there was a mutual agreement to work together for their mutual benefit for a profit. It has been held that mutual promises by the parties to a joint adventure are a sufficient consideration to support their contract. Thompson v. Corbin (Tex. Civ.App.), 137 S.W.2d 157, citing cases; Nichols v. Anderson (Tex.Civ.App.), 164 S.W.2d 268. The question of consideration thus turns upon the original question of whether the parties in fact mutually agreed to a joint venture.

It is next contended by Sussdorf that even though the agreement was supported by consideration, the summary judgment was nevertheless proper because Moore’s listing from the owner was not in writing and therefore void under the provisions of Articles 6573a and 3995, supra. We think the contention is without merit. While the provisions of the Real Estate Dealers License Act, Art. 6573a, prohibits a suit against the owner in the absence of a written contract, this did not preclude Moore’s right to enforce against Sussdorf his alleged agreement to share in the commission. Hohenberger v. Schnitzer (Tex. Civ.App.), 235 S.W.2d 466. Nor were the provisions of Article 3995 available to Suss-dorf since he was not a party to the alleged contract between Moore and Leonard. The statute merely establishes a rule of evidence which is personal to the landowner and which he may or may not choose to rely upon.. Yarber v. Iglehart (Tex.Civ.App.), 264 S.W.2d 474. Moreover, there is authority to the effect that if joint adventurers agree to sell a specific piece of property and share the commission, a recovery of commissions by one of the joint adventurers will be permitted even though at the time no prior agreement, authority to sell, or listing from the owners existed. Bauer v. Crow (Tex.Civ.App.), 171 S.W. 296; Hohenberger v. Schnitzer, supra; Trice & Ludolph v. Cone (Tex.Civ.App.), 163 S.W. 587.

Finally, Sussdorf contends that the summary judgment in his favor must be sustained because his subsequent contract with Leonard involved land owned by Leonard in addition to the Leonard Ranch. We think this contention is likewise without merit. It is generally held that a broker’s right to a commission on property listed with him is not affected by the fact that the ultimate sale includes more or less acreage or is sold for a greater or lesser price than originally contemplated. Webb v. Harding (Tex.Civ.App.), 159 S.W. 1029, Id. Tex.Com.App., 211 S.W. 927; Frost v. Texas Gulf Sulphur Co. (Tex.Civ.App.), 17 S.W.2d 121, writ ref.

We turn now to appellant’s cause of action against appellees, McFarlane, Frossard and Black. The theory upon which appellant seeks to predicate liability upon these parties is by no means clear. Appellant first says in his brief that liability against these defendants, other than Suss-dorf, is predicated upon the theory that they were joint venturers with Sussdorf, or that they were his principals and liable for his action. In other words, he would predicate liability upon the proposition that when Sussdorf joined them in the venture, appellees McFarlane, Frossard and Black immediately became jointly and severally liable upon any and all previous contracts to which Sussdorf may have been a party. Consequently, he concludes that they became jointly and severally liable with Suss-dorf for damages as a result of his breach of contract with Moore. We think this contention is untenable. The authorities cited by appellant do not support such a proposition and we have been unable to find any authority in support thereof. The evidence fails to show privity of contract between Sussdorf and the other appellees. Nor is there any evidence showing they assumed or ratified his contract with Moore. Under these circumstances, these appellees cannot be liable to Moore upon a cause of action ex-contractu. 44 Tex.Jur.2d, Sec. 65, p. 393; First State Bank of Riesel v. Dyer, 151 Tex. 650, 254 S.W.2d 92.

The case of Bauer v. Crow, supra, cited by appellant, does not support his position. In that case, one of the partners to the older partnership took into the new partnership a prospective purchaser belonging to the older partnership, and the new partnership merely consummated the sale, and the court held the new partnership liable to the older partnership for a share of the commission. Such was not the case here. Sussdorf did not consummate a sale with a prospective purchaser belonging to the alleged joint adventure of Sussdorf and Moore.

Perhaps we should let the matter rest here, but appellant goes further and states that the suit against these appellees is one for compensatory damages, and is not a suit to recover commissions. Thus it appears that appellant is also asserting a cause of action against these appellees, in tort, based upon wrongful interference with his contract with Sussdorf. Even so, we have concluded that the evidence fails to raise a material issue of fact in this respect.

We recognize the broad principle of the law of torts which makes actionable wrongful interference by one with the contractual right or relationship of others. Yarber v. Iglehart, supra; 146 A.L.R. 1410, 1418. However, in that type of situation, it must also be shown that defendant’s wrongful act was the proximate cause of the breach and the resulting damages. 55 Tex.Jur.2d 629, Sec. 5; Ringler v. Ruby, 117 Or. 455, 244 P. 509, 46 A.L.R. 245 ; 84 A.L.R. 51. As we view the facts in the present case, no legal injury was caused by these appellees. There is no evidence showing that either McFarlane, Frossard or Black had any knowledge of the alleged agreement between Moore and Suss-dorf until long after Sussdorf had obtained the exclusive listing from Leonard. Until appellees negotiated to sell to the State, neither Moore nor Sussdorf had earned anything as a result of the alleged joint adventure. Nor had they found a purchaser ready, willing and able to purchase the property. The conduct of appellees McFar-lane, Frossard and Black did not damage Moore, but on the contrary, their conduct actually resulted in a benefit to him, because when they consummated the sale to the State of Texas, Moore’s alleged right to share in the commission earned by Suss-dorf accrued. It was Moore’s contention from the beginning, as we understand it, that he and Sussdorf agreed to share equally any commission earned by either of them as a result of the sale of the property. To say that these appellees destroyed or interfered with that which they in reality created is, of course, illogical. As we see it, their conduct cannot be said to have been a cause in fact of any loss or damage to Moore. Madden v. Shane (Tex.Civ.App.), 185 S.W. 908. For the reason stated, we have concluded that no material issue of fact was raised with reference to appellant’s alleged cause of action against appellees McFar-lane, Frossard and Black.

In view of the fact that appellant’s cause of action against appellees McFarlane, Frossard and Black is severable from that alleged against Sussdorf, the summary judgment in their favor will be affirmed, and reversed and remanded as to Sussdorf.

Affirmed in part, and reversed and remanded in part.


source: Caselaw Access Project

author: DUNAGAN, Chief Justice.

license: Public Domain

text:
    TEXAS GENERAL INDEMNITY COMPANY, Appellant, v. J. C. ELLIS, Jr., Appellee.
    No. 309.
    Court of Civil Appeals of Texas. Tyler.
    Nov. 16, 1967.

      Saunders & Caldwell, Gene W. Caldwell, Tyler, for appellant.
    Richard W. Fairchild, Nacogdoches, for appellee.
   DUNAGAN, Chief Justice.

This is a workmen’s compensation suit. The case was tried before a jury. Upon the findings of the jury, the trial court entered a judgment for total and permanent disability for the appellee in the sum of $13,703.39. Appellant duly perfected its appeal from such judgment to this court.

Appellant first contends that: “The trial court erred in failing to grant Appellant’s Motion for a Mistrial, made after improper argument of counsel for the Appellee.” We overrule this contention.

The argument of which appellant complains, and on which it filed its motion for new trial, was as follows: “And then his wife out there had been sick for two years from childbirth — a young woman and 7 little tots, that he loves, just like you love yours, and he has got the same God given right to love them — and not have paid Doctors and paid lawyers to come in here and — ”.

At this point, counsel for appellee was interrupted and the sentence was not completed. Counsel for appellant objected on the ground that due to certain stipulations, such argument was improper and requested the court to instruct the jury to disregard it. The court sustained the objection and instructed the jury to “disregard the last argument of Counsel about the financial circumstances of the Plaintiff and his family.” Counsel for appellee then pointed out that he had said nothing about the financial circumstances of plaintiff (appel-lee) and his family, but had said that he had the right to love his family just as the jury loved theirs; and further stated that if he had said anything about finances, he apologized and withdrew it, though he felt he had a right to discuss that under the circumstances of this case, “because that’s why he is working.”

Counsel for appellant then moved for mistrial for the reason that the argument was so prejudicial that an instruction would not remove it from the jury’s mind.

Immediately before the argument objected to and quoted above, counsel for ap-pellee had argued that the defense was that Ellis had been working and therefore was able to work, that he had no income, that the appellant knew it owed him, and if it had paid him, he wouldn’t have had to work.

We do not consider the argument complained of to be a reference to the financial circumstances of appellee and his family. Evidence was admitted without objection that Ellis was 28 years old and had a wife who had been sick from childbirth for about two years and that he and his wife had seven children. Under the record in this case, we do not view the argument as being improper.

However, if it should be considered that the argument was a reference to the financial circumstances of appellee and his family, it still was not improper. As counsel for appellee pointed out at the time, the defense was that because Ellis had done some work since his injury, he was therefore able to work. Ellis had testified without objection that while he did some work after his injury, he was not able to work without suffering, that working or trying to work aggravated his pain. In supporting his wife and children, he had to work. Since appel-lee had the right to show that he had worked since the injury under the whip of financial necessity, to avoid the inference that he would not have worked if he had not been physically able to do so (Muro v. Houston Fire And Casualty Insurance Co., 310 S.W. 2d 420, Tex.Civ.App., San Antonio, 1958, writ ref., n. r. e. and Bituminous Fire & Marine Insurance Co. v. Jones, 398 S.W.2d 577, 580, Tex.Civ.App., Tyler, 1966, writ ref., n. r. e.), his counsel had the right to argue, on the basis of the evidence admitted without objection, that appellee had worked since his injury, not because he was able to do so, but because he had to work to support his wife and seven children, whom he loved.

In any event, in the light of the evidence before the jury without objection, the action of the trial court in promptly instructing the jury not to consider the argument objected to, and counsel for appellee withdrawing any reference to the financial circumstances of appellee, if any were contained therein, the argument was not of such nature as was reasonably calculated to cause, nor did it probably cause, the rendition of an improper verdict and judgment. Consolidated Underwriters v. Whittaker, 413 S.W.2d 709, 717, 718 (Tex.Civ.App., Tyler, 1967, writ ref., n. r. e.); Younger Brothers, Inc. v. Myers, 159 Tex. 585, 324 S.W.2d 546, 550 (1959); and Royal v. Cameron, 382 S.W.2d 335, 343 (Tex.Civ.App., Tyler, 1964, writ ref., n. r. e.).

Next, appellant contends that the court erred in permitting appellee’s counsel to question its witness, Dr. Colquitt, about future medical treatment of the appellee and in failing to grant appellant’s motion for mistrial pursuant to the court refusing to allow it to go into the beneficial effects of surgery before the jury.

On re-direct examination, testimony of Dr. Colquitt was elicited, without objection, to the effect that in the future appellee would need medical attention, medicines, and treatment. No inquiry was made as to what treatment would be required.

Later in the trial, after the court had refused to allow appellant to offer before the jury evidence as to the possible beneficial effects of surgery, appellant moved the court to instruct the jury to disregard the testimony as to the necessity for future medical attention as it was beyond the scope of the pleadings and not proper to be considered by the jury in arriving at its verdict. Counsel for appellee agreed that such instruction should be given. Appellant then moved for mistrial on the ground that such instruction could not remove the prejudice. The trial court denied the motion for mistrial but instructed the jury to disregard the testimony as to the necessity for future medical expenses.

No issue as to future medical was submitted to the jury, nor was recovery for future medical sought in the pleadings. But, since Dr. Colquitt had testified that appellee’s physical condition resulting from the injury had required medical attention to the time of the trial, that it had disabled him to work, that it was permanent, and that it would continue to disable him to work in the future, the testimony as to the continuing need for medical attention in the future was admissible, not as a basis of recovery for expenditures therefor, but as a circumstance tending to show that appellee’s physical condition, as it had existed to the time of trial, would remain unchanged in the future.

In any event, however, the action of the trial court in instructing the jury not to consider the testimony relative to the need for future medical attention effectively destroyed any likelihood of injury to the appellant, for the testimony was not of such nature that the likelihood of harm could not be removed by instruction not to consider it. Moreover, it added nothing of substantial significance to the testimony of Dr. Col-quitt that appellee had been at the time of trial and would in the future continue to be disabled to work as the result of the physical condition caused by the injury. Appellate Procedure in Texas, Chapter 17, Harmless Error, Sec. 17.12(3).

Under the record before us, we do not think the court committed error in excluding testimony offered by appellant as to the beneficial effects of surgery. No reason appears, and appellant gives none, why the offering of testimony as to the necessity of future medical care should operate as a waiver of the general rule regarding the admissibility of evidence as to the beneficial effects of surgery. The reason for the rule excluding such evidence (Truck Insurance Exchange v. Seelbach, 161 Tex. 250, 339 S.W.2d 521, 524, 525, 1960) continues to exist in the presence of evidence as to the continuing need for medical attention. 63 Tex.Jur.2d 468, and. cases cited.

Moreover, if any waiver was effected by the introduction of the evidence pertaining to the necessity for future medical attentions, the waiver no longer existed after the trial court, on motion of appellant, withdrew the evidence and instructed the jury not to consider it. Appellant’s contention is overruled.

The appellant also contends that the court erred in overruling appellant’s request that certain exhibits be sent into the jury room.

While the jury was deliberating its verdict, appellant requested the court to send into the jury room Defendant’s Exhibits Nos. 1 and 2, which the court refused.

Defendant’s Exhibits Nos. 1 and 2 are claims for hospital and medical benefits under a group policy of insurance carried by Tyler Pipe & Foundry on its employees. On the face of these instruments appears: “Statement of Insured” and the “Assignment.” Each bears the signature .“J. C. Ellis, Jr.” Defendant’s Exhibit No. 1 is dated December 7, 1964. The “Statement of Insured”, as reflected in this exhibit, describes the illness as “fever — chills—sore throat;” Defendant’s Exhibit No. 2, which is undated, describes the illness as “tonsillitis”.

On the back of each instrument is an “Attending Physician’s Statement”, which shows to have been signed by E. R. Moser, M. D. Each of these statements reflects the nature of the illness to be acute tonsillitis, not arising out of the patient’s (appellee) employment. Each such statement reflects the patient first consulted the doctor for the condition on December 3, 1964.

Dr. E. R. Moser was not called to testify upon the trial of this case nor does the record reflect any attempt to establish that Dr. Moser in fact signed the statement.

Appellee identified the signatures on the face of each exhibit under “Statement of Insured” as being his signatures, but stated that he had not read the instruments.

Appellee testified that Dr. Moser was his family physician and that after his injury he went to Dr. Moser about his back; that Dr. Moser examined his back; that he did not know that he was treated for tonsillitis; that his throat was not hurting him; that he did not know what Dr. Moser treated him for other than for his back — that he went for his back.

Appellee testified further that he hurt his back loading a pipe on or about August 7, 1964, while at his work for Tyler Pipe & Foundry; that he reported his injury promptly to his pusher, Gennie Vickers, who sent him to the foundry dispensary where a nurse put a heat light on his back and gave him some pills and told him to go back to work, which he did; that having meanwhile talked to one of his bosses, Hugh Richardson, Jr., he went back the next day and was given the same treatment and pills; that he went to the dispensary a total of about 8 or 10 times and on each visit was given the same treatment; that on one of such occasions, he saw a company doctor, who did the same thing the nurse had done ; that later he was taken in a company car to Dr. P. M. DeCharles, who examined and x-rayed him, gave him a prescription, and told him to lay off work until Monday and then, if he didn’t get better, to come back; that he didn’t get better and asked Richardson and Vickers for permission to go see Dr. DeCharles but they only sent him back to the dispensary and he had to go where they sent him.

Dr. P. M. DeCharles, a witness for appellant, testified: that he first saw the ap-pellee on August 21, 1964, and Ellis told him he had had some back pain on the 13th or 14th of August, 1964, when he turned to pick up a pipe. He saw the ap-pellee for Tyler Pipe & Foundry. As a result of his examination, he reached the conclusion that Ellis had a mild back strain from some pulled ligaments and muscles in the low back. He further testified that appellee was in pain and there was no question but that he was hurt at that time. He did not see appellee again until he examined him at the request of appellant on October 24,1966. On this occasion he found nothing wrong with Ellis and his opinion was that he was fully able to work.

Dr. L. A. Colquitt, a witness for appellee, testified: that he first saw appellee on March 10, 1965. He had seen him 11 times since then, the last time being on October 24, 1966 (the same day he was last examined by Dr. DeCharles). He also saw him twice a day during the 4 days he hospitalized him for a myelogram.

Appellee gave a history on the first visit that he had had a sharp pain in his back on August 27, 1964, while lifting a pipe. He complained of continuous pain in the low back with some radiation into the thighs and legs, with the pain being aggravated to some extent by activity and to some extent relieved by rest. He prescribed a back brace for Ellis on this first visit.

Dr. Colquitt further testified that each time he has seen appellee, he has found substantially the same things he found at first — complaint of pain and muscle spasm in the areas of such complaints. To the present time, appellee has not improved substantially; that appellee’s condition is a permanent thing.

He also testified that during the time he had seen appellee, he had not been able to work and make.a living free of pain and suffering at any time, nor had he been in such physical condition that he could pass a physical examination for manual labor; that he would not expect appellee to be able to return to hard manual labor in his present condition. He knows of nothing that appellee could do day in and day out to make a living that requires his being on his feet, exerting his body, lifting, climbing, straining, stooping, bending, or squatting, without suffering as a result of it.

Upon recall, appellee testified that he did not tell Vickers or Richardson that he hurt his back working on his car. He said he did not hurt his back working on his car. He says he knows nothing about a car.

While appellee was being interrogated by counsel for appellant, concerning Exhibits 1 and 2, he testified that over his signature on Exhibit 1, it appeared therein that he had gone to the Gladewater Municipal Hospital on December 7, 1964, and had seen Dr. Moser for treatment of fever, chills and sore throat, and that over his signature on Exhibit 2, the date of his illness was shown to be December 3, 1964, and that the exhibit showed his illness was tonsillitis.

Defendant’s Exhibits 1 and 2 were offered into evidence in their entirety without any limitation whatsoever. It appears from the record that the court permitted counsel to read to the jury only a part of the exhibits without exhibiting them or passing them to the jury, because they were claims for insurance benefits and the trial court had granted a motion in limine excluding any reference to insurance benefits. Under the state of the record, we cannot say the court committed error in refusing to grant appellant’s request to send the said exhibits to the jury room.

Rule 281 of Texas Rules of Civil Procedure provides that where a part only of a document is read in evidence, the jury may not take the entire document with them unless the part so read to them is detached from that which was excluded. This rule applies to instruments attached or affixed to or constituting a part of writings in evidence. Michalak v. Dzierzanowski, 270 S.W.2d 276 (Tex.Civ.App., Austin, 1954, n. w. h.). Since only parts of Defendant’s Exhibits 1 and 2 were read in evidence, and appellant’s request was to send said exhibits in toto to the jury, the trial court correctly refused it.

It seems to be the settled law of this state that where evidence is offered as a whole, only a part of which is admissible, the court does not commit error in sustaining an objection to such testimony and in such case it is not the duty of the court nor the party objecting to the same to separate the admissible from the inadmissible. Missouri, K. & T. Ry. Co. of Texas v. Washburn, 184 S.W. 580 (Tex.Civ. App., Austin, 1916, writ ref.) ; Kincaid v. Chicago, R. I. & G. Ry. Co., 119 S.W.2d 1084 (Tex.Civ.App., Dallas, 1938, writ dism.); Texas General Indemnity Co. v. Scott, 246 S.W.2d 228 (Tex.Civ.App., Amarillo, 1951, reversed on other grounds), 152 Tex. 1, 253 S.W.2d 651. We think this rule of law equally applies where a party requests the court to send to the jury room an instrument in its entirety when only a portion thereof was read to the jury, that is, admitted into evidence before the jury for its consideration. Therefore, to put the trial court in default, it was necessary that appellant select the admissible parts of the exhibits (the parts read to the jury and admitted into evidence) and request that such parts only be sent in to the jury. McCormick & Ray, Texas Law of Evidence, Vol. 1, page 20, Sec. 21.

Moreover, if the action of the trial court, in refusing to send the exhibits to the jury, be error, under this record, which we have examined in its entirety, it cannot be said that it amounted to such a denial of the rights of appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Rule 434, T.R.C.P. The admissible portions of the exhibits (those portions appearing over the signature of appellee) were merely cumulative of undisputed evidence already before the jury, as appellee had admitted to the jury that the exhibits on their faces bore his true signature, that he signed them, and admitted further the material contents of each exhibit. The record does not reflect what portions of these exhibits were read to the jury, however, it may safely be assumed that only the material and admissible portions thereof were read to the jury. Dallas Ry. & Terminal Co. v. Orr, 147 Tex. 383, 215 S.W.2d 862 (1948) ; Continental Fire & Casualty Ins. Corporation v. Drummond, 220 S.W.2d 922, 928, 929 (Tex.Civ.App., Waco, 1949, writ ref;, n. r. e.); Medrano v. City of El Paso, 231 S.W.2d 514 (Tex.Civ.App., El Paso, 1950, n. w. h.) ; Texas Employers’ Ins. Ass’n v. Hale, 242 S.W.2d 796 (Tex.Civ.App., Amarillo, 1951, n. w. h.); Texas Employers’ Ins. Ass’n v. Bounds, 218 S.W.2d 496, 499 (Tex.Civ.App., Beaumont, 1949, n. w. h.).

Furthermore, the exhibits do not relate to material issues in this case, for they do not reasonably tend to establish that appellee was not suffering any disability as a result of a back injury. If, as the exhibits reflect, appellee signed a claimant’s statement for hospital and medical benefits for tonsillitis under a group policy carried by his employer, such does not have any reasonable tendency to establish that he was not suffering also from an injur}' to his back, nor that he was not also treated for the back trouble, as he testified he was. That appellee had complained of back trouble (as well as tonsillitis) was established by the testimony of his pusher, Vickers, and his foreman, Richardson, and that he actually had a back injury was confirmed by the testimony of appellant’s own witness, Dr. DeCharles. The basic controverted issues were whether appellee’s back injury was sustained in the course of his employment, and the extent and duration of incapacity resulting therefrom — the exhibits did not bear upon either of these issues. Whether or not the failure of the trial judge to comply with the appellant’s motion to send into the jury room the exhibits in question is reversible error is to be tested on the basis of the materiality and the admissibility of such exhibits. Texas Employers Insurance Ass’n v. Applegate, 205 S.W.2d 412, 414 (Tex.Civ.App., 1947, Texarkana, writ ref., n. r. e.). The effect of the exhibits to impeach appellee, if any, was already accomplished by the interrogation of appellee as to the contents thereof and the reading of such parts of the exhibits to the jury. And, finally, such impeachment of appellee, if any, as might result from such exhibits was with reference to a matter which, under this record, was not material, but collateral. McCormick & Ray, Texas Law of Evidence, Vol. 1, page 535.

Appellant finally contends: (1) “There is no evidence to support the finding of the jury that the disability of the appellee .is permanent.” and (2) “There is insufficient evidence to support the findings of the jury that the disability of the appellee is permanent.”

We have considered all the evidence, that which supports as well as that which is contrary to the verdict and judgment. As we view the record, the evidence is ample to support the verdict and judgment. We have considered all of appellant’s points of error. They are overruled.

Finding no reversible error, the trial court’s judgment is affirmed.


author: WILSON, Justice.

text:
    Glenn ELLISON, Appellant, v. Raymond KNAPEK, Appellee.
    No. 4643.
    Court of Civil Appeals of Texas. Waco.
    Oct. 26, 1967.
    Rehearing Denied Nov. 16, 1967.

      Kacir & Kazanas, George E. Kacir, West, for appellant.
    Beard & Kultgen, Pat Beard, Waco, Tom Beard, Hillsboro, for appellee.
   OPINION

WILSON, Justice.

This action involves a farm lease contract.

The trial pleading of appellee-plaintiff Knapek alleged that he and appellant-defendant Ellison signed a handwritten contract by which Ellison leased his 234-acre farm to Knapek for 1966 and 1967: “except land that will be put 40% diverted land program (feed grain) of which I (Ellison) will be owner and operator. I will receive all total government payment on diverted land program (feed grain)”. Subsequently, it was alleged, Ellison submitted to Knapek for signature a typewritten contract form which he represented was the same as the handwritten agreement except that it was in typewriting.

The typewritten agreement changed the exception to read: “except the land which will be put into the diverted land program of which I will be owner and operator.” The parties signed it.

Knapek alleged the typewritten document was without consideration; or that, on the ground of mutual mistake, it should be reformed to conform to the handwritten agreement; or that it should be so reformed because of a known false representation as to its contents, made to induce its execution. It was pleaded that Ellison excluded Knapek from possession after the latter had plowed 60 acres. Ellison pleaded, in effect, that he was authorized to put all the “cultivated land in the farm into the U.S.D. A. Diverted Land Program” under the typed agreement, and thereby Knapek had no right of occupancy. Knapek’s position is that the 40% diversion limitation in the handwritten agreement was the true contract. Damages consisting of the fair rental value of the land and loss of profits were sought by Knapek. Ellison filed a cross-action for damages alleged to have resulted from Knapek’s complaint to the local U. S. Department of Agriculture Committee. A take-nothing judgment was rendered on his claim.

The jury verdict included findings: (1) that Ellison represented the typewritten agreement contained the same terms as the handwritten contract; (2) that the representation was false, but (3) Ellison did not know it was false; (4) that it was made to induce Knapek to sign the typewritten agreement; (5) that he relied on it; (6) that Knapek was denied possession of the cultivated land for 1966 and 1967; and (7) of pasture land for 1966; (8) that “no consideration was furnished” for signing the typewritten document; that (9) Knapek would have made a profit of $20 per acre for 2 years; and (10) the reasonable cash rent value per acre was $5.50.

Additional findings were that Ellison “did not perform his part” of the typewritten lease; that he “relied on” it, and “entered into” it because of the reliance; that by his conduct Knapek led Ellison to believe “the typewritten contract would not be questioned”; that Ellison sustained no damages as a result of a complaint by Knapek (with “probable cause”) to the U. S. Department of Agriculture.

Ellison’s motion that “the findings of the jury be disregarded and that he have judgment” was overruled. Knapek’s motion that the third finding as to Ellison’s knowledge be disregarded as being without support in the evidence, and that judgment be rendered for him on the-remaining findings, was sustained. He recovered judgment for $4992.50. We affirm.

Ellison’s first group of points asserts Knapek “waived the right to rely” on the handwritten lease, that he is estopped to rely on it, and the evidence “conclusively establishes plaintiff’s ratification of the typewritten contract.” His contentions concerning waiver, ratification and estoppel are based on the following: (1) Knapek and his wife read the typed lease before he signed it, retaining a copy. (2) Knapek complained to the County Committee (A.S.C.) of the U. S. Department of Agriculture, “claiming to be a tenant under the typed lease,” and appealed to the State Committee, which “ruled he was not a tenant of Ellison.” His claim resulted in withholding of payments to Ellison on other land for five months. (3) Knapek originally sued on the typed agreement and answered a request for admission that “he relied on” it. (4) After his summary judgment motion was overruled he amended his pleading to declare on the holographic instrument.

The argument concerning the reading and retaining of the typed form is answered by the jury findings as to Ellison’s representations that it contained the same terms as those in the agreement written by hand. Neither waiver, ratification or estoppel are established as a matter of law in the face of the verdict. There is adequate evidence to support the material findings. Where a representation is relied on in contract cases, “no definite rule can be laid down as to what degree of ignor-anee or condition of mind” is necessary, and special circumstances surrounding the transaction are important. Safety Casualty Co. v. McGee, 133 Tex. 233, 127 S.W.2d 176, 121 A.L.R. 1263. Knapek had an eighth-grade education; Ellison, a school superintendent, had two college degrees. There was testimony that Ellison said to Knapek concerning the handwritten paper: “I don’t have a typewriter. Let’s just sign this. You come back in a few days and we’ll type two copies”; and that he said of the typed paper, “It’s the same thing.”

Once it is established that a misrepresentation has induced the signing of a contract by plaintiff, “it is no answer to his claim to be relieved of it to tell him that he might have known the truth by proper inquiry. He has a right to retort upon his objector: ‘You at least, who have stated what is untrue, * * * for the purpose of drawing me into a contract, cannot accuse me of want of caution because I relied implicitly upon your fairness and honesty.’ ” Safety Casualty Co. v. McGee, above, 127 S.W.2d p. 180. See Indemnity Ins. Co. of North America v. W. L. Macatee and Sons, 129 Tex. 166, 101 S.W.2d 553; Granger v. Kishi, Tex.Civ.App., 153 S.W. 1161; Wilder v. Malone, Tex.Civ. App., 212 S.W.2d 938.

The contention that Knapek claimed “under the typed lease” to the county and state committees is met by the testimony of Knapek that he presented to them “both of the contracts; both of them leases.”

Amendment by Knapek of his pleading (after filing the original petition which declared on the typed document, and after motion for summary judgment under that pleading was overruled) does not entitle Ellison to judgment as a matter of law. Apparently it is urged that the original pleading and the motion constitute an admission. Abandoned pleadings, those superseded by amendment, are not admissions unless introduced in evidence; and then they are not conclusive. Houston, E. & W. T. Ry. Co. v. De Walt, 96 Tex. 121, 70 S.W. 531, 537; 45 Tex.Jur.2d, Pleading, Sec. 88, p. 530.

The argument as to Knapek’s answer to a request to admit, under Rule 169, Texas Rules of Civil Procedure, that he relied on the typed agreement is likewise without efficacy: His answer was, “True, but not solely.” This qualified response (even if not considered a reply to a request for a legal conclusion) did not entitle Ellison to judgment.

It is argued that it was erroneous for the court to disregard the jury’s answer that Ellison did not know his representation was false. The evidence to support the converse of the finding is undisputed. Ellison testified the second was not “supposed to be the same agreement” as the first. His testimony was simply to the effect he did not make the representation found by the jury.

Even if the evidence was not thus conclusive, the issue was immaterial. In a case of this nature “it is not an essential element of fraud that the party charged therewith must know of the falsity of the representation in question.” Graves v. Hartford Accident & Indemnity Co., 138 Tex. 589, 161 S.W.2d 464, 466; Poindexter v. Davis, Tex.Com.App., 27 S.W.2d 139, 141, 25 Tex.Jur.2d, Sec. 17, p. 632; id., Sec. 18, p. 636.

If appellant seeks to avoid jury findings on his alleged damages, as we interpret his argument, the complaint by Knapek to the local and state committees is too remote to constitute a cause of damage alleged, as we held in Brown v. Gray, Tex. Civ.App., 383 S.W.2d 950, 953, writ ref. n.r.e.

Ellison urges that the decision of the State Committee that he was “not a tenant” is final and conclusive. One seeking to show a right under the decision of a special tribunal must show the tribunal had jurisdiction to render it. Todd Shipyards Corp. v. Texas Employment Commission, 153 Tex. 159, 264 S.W.2d 709. Appellant points to no law empowering the committee to make that decree. In our opinion, it had no such power.

As a general rule principles of res judicata are not applicable to decisions of federal administrative agencies of the present nature where there is no statute making the decision final and conclusive. District 50, United Mine Workers of America v. N. L. R. B., 4 Cir., 234 F.2d 565. See 2 Am.Jur.2d Administrative Law, Secs. 494-506.

In the present case the State A. S. C. Executive Director reported that Knapek’s complaint “involves some legal questions that the Committee feels in no position to determine.” In our opinion there is nothing in the record to indicate the Committee undertook or purported to decide the questions involved in this action. It merely undertook to decide for conservation payment purposes, whether Knapek was a tenant for 1966.

Other points are overruled.

Affirmed.


text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. John William Herbert VARLEY, Appellee.
    No. 4646.
    Court of Civil Appeals of Texas. Waco.
    Nov. 2, 1967.
    Rehearing Denied Nov. 22, 1967.

      Dawson, Dawson & Brown, Corsicana, for appellant.
    Mays, Jacobs & Pevehouse, Corsicana, for appellee.
   OPINION

WILSON, Justice.

Plaintiff recovered judgment in a non-jury case against the insurer on a group health and accident policy for hospital room and board expense. Recovery of benefits claimed for miscellaneous medical care and treatment was denied.

The policy provisions which give rise to the present problems, and which require interpretation are italicized:

“Part EH — Hospital Expense
Benefits. Section A — For Daily Board and Room Expense: If the employee shall be confined as a resident patient in a legally constituted hospital on account of accidental bodily injury or bodily disease not hereinafter excepted * * * the Company will pay to the Employee, subject to the provisions hereinafter contained, an amount equal to the charge made by the hospital to the employee for board and room * *

The “Miscellaneous Fee” provision is included in Part EH, and specifies that if the employee shall necessarily receive medical care and treatment “on any day of hospital confinement for which benefits are payable under Section A” the company will pay to the employee “actual expense to the Employee” of such charges.

Part EDMX (employees and dependents major medical expense benefits) after providing for an annual $100 deductible, reads in part:

“The medical expenses covered under this part shall include reasonable charges actually incurred by the Employee” in connection with treatment.
Listed are ‘‘Charges made” for room and board, necessary medical care and treatment, X-Rays and medical supplies. The policy was issued in 1957.

Plaintiff alleged he incurred $528.30 in expenses covered by the policy: 1 day, room and board $12; electrocardiogram $12.50; room and board (14 days at $17) $238; drugs, dressings and laboratory fees $155.80. The insurer answered that all but $40 of these expenses (tendered to plaintiff) “were incurred by, became the liability of, and were duly paid by the Social Security Administration through the Medicare program.” (42 U.S.C.A. Sec. 1395c et seq.).

The insurer’s position is that the policy obligated it to pay only for room and board charges made by the hospital “to the employee” ; that the employee was not “charged”; that he was a Medicare patient, and Medicare was charged with, and paid for, his room and board. It relies on wording in various sections of the Social Security Act to the effect that the hospital qualifying thereunder (as was the present hospital) is required to file an agreement “not to charge * * * any individual or any other person” for services covered by and to be paid under the Act. (42 U.S.C.A. Sec. 1395cc(a) (1) (A).

We do not agree. The policy was issued eight years before the 1965 Medicare provisions of the Social Security Act became effective, and that law was not within the contemplation of the parties when the contract was entered into. We find nothing in the terms of Part EH of the policy which has the prospective effect of absorbing or embodying a subsequently enacted law. Statutes which are not curative or remedial are not ordinarily held to operate retrospectively. Government Personnel Mut. Life Ins. Co. v. Wear, 151 Tex. 454, 251 S.W.2d 525, 529.

The Act itself, however, even if it should be regarded as controlling, expressly provides that nothing in the subchapter concerning health and hospital insurance for the aged shall be construed to preclude “any individual from purchasing or otherwise securing protection against the cost of any health services.” 42 U.S.C.A. Sec. 1395b.

The question of insured’s personal liability for board and room under Part EH is simply one of interpretation of the words, “charge made by the hospital to the employee.” The word “charge” is one of common meaning. It is not a term of art. It is derived from a Middle English word referring to the loading of a wagon. It means here “To set to, as a debt; to place on the debit side of an account; as to charge a man with the price of goods sold to him”; to “fix or set down at á price named,” as distinguished from “to put liability on a person; to make liable for a purchase”; or to “subject to a financial burden.” I Webster’s New Twentieth Century Dictionary, unabridged (1964) 304; I Century Dictionary and Encyclopedia (Rev. ed.) 929.

Whether the Department of Health, Education and Welfare paid the hospital or not, the board and room cost was initially placed on the debit side of plaintiff’s account at the hospital. Sec. 1395d(a) of the Act relied on by insurer provides, “The benefits provided to an individual by the insurance program” entitled him “to have payment made on his behalf.” Payment could be made on his behalf, obviously, only if the price of hospital services had already been placed on the debit side of plaintiff’s account, and “charged” to him. Sec. 1395y, 42 U.S.C.A., further excludes from coverage and forbids payment for services “for which the individual furnished such items or services has no legal obligation to pay”, and for which no other person has a legal obligation to pay. It likewise excludes coverage for services covered under a workmen’s compensation law. Id., (b).

The cases relied on by insurer, e. g., Dillingham v. American Security Life Insurance Co., Tex.Civ.App., 384 S.W.2d 920, no writ; Mercury Life & Health Co. v. Morales, Tex.Civ.App., 325 S.W.2d 459, no writ; and Washington National Insurance Co. v. Fincher, Tex.Civ.App., 157 S.W.2d 164, no writ, involved policies in which coverage was limited to reimbursement for “the amount actually expended”; or expressly excluded loss where “facilities are furnished by the State.” The Fincher case turned on lack of proof of the nature of expenses paid.

The fact that no formal demand was made on plaintiff by the hospital does not relieve insurer of liability, as it contends.

Plaintiff’s cross-point challenges that portion of the judgment denying him recovery for hospital room and board beyond $10 per day, and denying recovery for X-ray, drugs and laboratory fees. The hospital charge for room and board was 1 day at $12, and 14 days at $17. The court concluded that the maximum policy benefit was $10 per day, and allowed $150. The basis for the conclusion was that “Part EH”, quoted above limited “miscellaneous fees” for medical care and treatment to “actual expense to the employee”, and limited board and room charges to “the Maximum Daily Benefit hereinafter specified.” A separate table specified the maximum hospital expense benefit under Part EH “(for one day of confinement)” was $10.

Whether plaintiff may recover under the “Miscellaneous Fee” section of Part EH depends upon the meaning of “actual expense to the employee.” The insurer argues he had no actual “expense,” but that Medicare bore it. “Expense” means “money spent; disbursing of money; cost, charge, money to pay for charges”; “cost with the idea of loss, damage, or sacrifice”; “a drain on one’s finances, as ‘one’s sickness is always an expense’ ”; “outlay, the burden of expenditure”. I Webster’s New Twentieth Century Dictionary (2d ed. 1964) 644; Webster’s New International Unabridged Dictionary 896.

When qualified by the emphatic adjective, “actual”, and when circumscribed by the restrictive words, “to the employee”, it is unreasonable in our opinion to conclude the claimed benefits are recoverable under the Miscellaneous Fee Section. There was no actual expense to the employee.

Plaintiff urges he is not subject to these limitations, but is entitled to recover the amount he claims under the further portion of the policy coverage, Part EDMX. It provides that if the Employee shall necessarily incur medical expenses exceeding a specified deductible amount (computed by formula), the insurer will pay 75% of the excess.

It is apparent that the formula requires inclusion in “Basic Benefits” the Medicare “plan or law” provided for “by or through action” of the United States Government. When this deductible is ap- . plied there is no sum remaining in an excess to which the 75% payment formula is subject. Plaintiff may not recover under Part EDMX. Appellee’s cross-points are overruled.

The judgment is affirmed.

      . “The deductible amount is the sum of two parts, one called the Basic Benefits Deductible, and the other called the Cash Deductible” ($100). The Basic Benefits Deductible is defined as the total benefits provided through any “Basic Benefits” plan. “Basic Benefits”, in turn, is defined as benefits under all parts of the policy except EDMX, and under any plan, “including any federal or state plan or law,” toward the cost of which the Employer has contributed or makes payroll deductions; and benefits under “any plan solely or largely tax supported or otherwise provided for by or through action of any government.” The policy excludes coverage under Part EDMX of charges in any hospital “which makes no charge that the employee is required to pay.”


author: CLAYTON, Justice.

text:
    Louis FOIX, Appellant, v. Enriqueta Bringas JORDAN, Appellee.
    No. 5905.
    Court of Civil Appeals of Texas. El Paso.
    Nov. 1, 1967.
    Rehearing Denied Nov. 29, 1967.

      Joseph J. Roybal, A. L. Carlton, El Paso, for appellant.
    Galvan & Galvan, El Paso, for appellee.
   OPINION

CLAYTON, Justice.

This is a contest over the right to act as administrator of the estate of Adolfo Jordan, Sr., deceased.

Adolfo Jordan, widower whose wife died intestate in 1950, entered into a church wedding ceremony with Maria de Jesus Padilla in Chihuahua, Chih., Mexico, on September 10, 1950, and after a reception and brief honeymoon in Mexico, they came to El Paso, Texas, to reside, and also lived on a farm in El Paso County, Texas. They separated in July 1951 and Maria de Jesus Padilla returned to Mexico to live. During the time they were living in El Paso County, they lived together as husband and wife, and introduced each other as husband and wife. Adolfo Jordan, Sr., died in El Paso on November 21, 1960, intestate. However, Adolfo Jordan, Sr., entered into a marriage ceremony with Enriqueta Bringas, appellee, before a Justice of the Peace in Anapra, Dona Ana County, New Mexico, on April 8, 1951, while Maria de Jesus Padilla was still living and without any divorce. Maria de Jesus died on November 14, 1963.

Enriqueta Bringas Jordan filed her application to be appointed administratrix of the estate of Adolfo Jordan, Sr., deceased. The children of Adolfo Jordan, Sr., to-wit, Esther J. Cervantes, Josephine J. Garibay, Mary Louise Tirrell, joined by their respective husbands, and Adolfo Jordan, Jr., filed their respective waivers to be appointed administrator of the estate of Adolfo Jordan, Sr., in favor of appellant, Louis Foix, as also did Maria de Jesus Padilla. Enriqueta Bringas Jordan, appellee herein, claiming to be the widow of Adolfo Jordan, Sr., filed her application to be appointed adminis-tratrix, in which she was joined by Maggie J. Perez, another child of Adolfo Jordan, Sr., and both contested the appointment of Louis Foix, who filed his application to be appointed administrator. Louis Foix was appointed the Administrator of the Estate of Adolfo Jordan, Sr., by the Judge of the County Court at Law, and all other applications were denied. An appeal was taken to the District Court for a trial de novo and the case was docketed as In re: Adolfo Jordan, with Louis Foix designated as plaintiff and Enriqueta Jordan and Maggie

J. Perez as defendants, and was tried to a jury-

In answer to special issues the jury answered “No” to the first special issue, which was:

“QUESTION NO. 1
“Do you find from a preponderance of the evidence, that the deceased, Adolfo Jordan, and one Maria de Jesus Padilla, after September 10, 1950, in El Paso County, Texas, agreed and consented the one with the other to become then and there, and from that time forward, husband and wife? Answer ‘yes’ or ‘no’
“In connection with this issue, you are instructed that an agreement to become husband and wife, may be expressed or implied, and an implied agreement is one where the conduct of the parties with reference to the subject matter is such as to induce the belief in the minds of the contracting parties that they intend to do that which their acts indicate they have done.”

The second special issue, as to the cohabitation of the parties in El Paso County, Texas, pursuant to such an agreement, being conditioned on an affirmative answer to Question No. 1, was unanswered. The third special issue, whether the parties held each other out to the public as husband and wife, went unanswered, being conditioned on an affirmative answer to Question No. 2. On this verdict the court overruled a motion of plaintiff for judgment n. o. v. and sustained a motion by defendants for judgment on the verdict and denied the application of Foix for appointment as administrator and appointed Enriqueta Jordan as administratrix of the deceased, as his surviving wife. This appeal resulted.

Appellant Foix presents a sole point of error, that “this case should be reversed and judgment rendered for the Plaintiff, because the Trial Court refused to grant the Plaintiff’s Motion for Judgment Non Obstante Veredicto.”

We feel that this motion should have been granted. Appellant stated in his motion:

“The Jury heard evidence that the parties entered into a valid contract in a ceremony on the 10th day of September, 1950. That no evidence to the contrary was heard by the jury. That the parties having entered into a valid contract on said date, every act of cohabitation and every act of holding each other out as their respective spouse in El Paso County, Texas, was a ratification and confirmation of said agreements between the parties on September 10, 1950.
“That in answering Question No. 1 in the negative, such answer was without support and contrary to the undisputed evidence, and so clearly against the overwhelming weight of credible testimony as to be manifestly wrong. And for that reason, said verdict of the Jury should be held for naught, set aside, and Judgment entered non obstante veredicto in favor of Plaintiff.
“The Defendant in this case submitted no evidence whatsoever by which the relationship of the parties was refuted in any manner whatsoever. That there was no evidence offered to refute the positive and credible testimony that all the elements of a common-law marriage were clearly established.”

There is no contention by appellant that the church ceremony in Chihuahua, Chih., Mexico, between Maria de Jesus Padilla and Adolfo Jordan, Sr., on September 10, 1950 was, under Mexican law, a valid marriage ceremony. Mr. Arellano Gonzalez Vargas, a reputable Mexican attorney, testifying on behalf of appellee, stated that it was not valid and that valid marriages in Mexico can only be performed by an officer of the Civil Registry. But the same witness further testified that when a couple go before a priest and signify their consent and agreement to enter into a marriage, they would thereby perform ar agreement and contract between themselves, but outside the participation of the law, and which has no effect in the Mexican law. But such agreement is an essential factor in common-law marriages in Texas, and in this case the agreement between Maria de Jesus and Adolfo Jordan, Sr., was probably heard by a number of people at the ceremony and certainly by at least three witnesses, who testified at the trial. Furthermore, by way of confirmation and ratification of the agreement of the parties, several witnesses heard the parties introduce each other as husband and wife and described their living accommodations in more than one location as containing one bedroom with one bed. This, we believe, establishes all the elements of a common-law marriage in Texas. In De Shazo v. Christian, 191 S.W.2d 495, 496 (Tex.Civ.App., 1946; ref., n. r. e.), it is stated:

“ * * * It has been steadfastly maintained by our courts, however, that in order to establish such a marriage there must be proof that the man and woman between whom the marriage is sought to be established entered into an agreement between themselves, either express or implied, to take each other for husband and wife during their natural lives, and the proof must further show that such agreement was followed by cohabitation and living together professedly as man and wife. The term ‘professedly’ means that there must be evidence that they held each other out to the public as their respective spouses. None of these three essentials standing alone, is sufficient to constitute a common-law marriage, but all three of them must appear and must be alleged and shown by the testimony in any case in which such a relationship is brought into question.” (Citing cases.) (Emphasis supplied.)

There was no refutation of the above testimony, either by cross-examination or by other witnesses. The motion for judgment n. o. v. raises a “no evidence” point. On such a point the evidence must be examined in a light most favorable to its proponent, and every legitimate intendment favorable to the proponent must be indulged and all evidence adverse to him must be disregarded. In Bolin v. Pacific Finance Corporation, 278 S.W.2d 879, 884 (Tex.Civ. App., 1954; n. w. h.) it is held:

“We are aware of the rules of law giving a jury the right to pass on controverted issues and that a jury verdict is binding if there be any evidence of probative force to support it. However, such evidence must legally have some probative force. Mere detached statements of witnesses which alone have no probative force and which do no more than possibly furnish a basis for suspicion or speculative argument are not controlling as pitted against positive unimpeached testimony to the contrary that is without suspicion, given even by interested parties. Rule 301, Vernon’s Texas Rules of Civil Procedure, authorizes the trial court to render judgment non obstante veredicto if a directed verdict would have been proper. The courts have repeatedly approved such provisions of this rule and have repeatedly held that such a judgment must stand if there be no evidence of probative force upon which the jury could have made the findings relied upon.”

Also see Leggio v. Millers National Insurance Co., 398 S.W.2d 607, 610 (Tex.Civ.App., 1965; ref. n. r. e.) where it is recited:

“It is fundamental that a reviewing court, in passing upon a contention that there is no evidence to sustain a jury’s finding, whether raised by a ‘no evidence’ point or by a motion for judgment notwithstanding the verdict or by a motion for instructed verdict, must view the evidence in a light most favorable to the appellant, indulging every legitimate conclusion favorable to him, and disregard all evidence adverse to the appellant. Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256; Texas & P. Ry. Co. v. Hagenloh, 151 Tex. 191, 247 S.W.2d 236.”;

Rule 301, Texas Rules of Civil Procedure.

As stated, we are of the opinion that the motion for judgment n. o. v. should have been granted. The court recited in his judgment that Enriqueta Jordan was appointed Executrix of the Estate of Adolfo Jordan, Sr., “as his surviving wife.” But under the view we take of this record, this could not be so. She entered into the marriage ceremony while Maria de Jesus Padilla — the common-law wife — was still living and undivorced from Adolfo Jordan, Sr. and thus such attempted marriage of Enriqueta and Adolfo was void, and Maria de Jesus was still his lawful wife and, later, his surviving widow; and as such should have been granted the preferential right to have been appointed administratrix. Her waiver of this right in favor of Louis Foix should have been honored.

We accordingly reverse the judgment of the trial court and render judgment appointing Louis Foix as Administrator of the Estate of Adolfo Jordan, Sr., in accordance with his application.

Reversed and rendered.


author: DIXON, Chief Justice.

text:
    T. L. YOUNG, Appellant, v. CITY OF SEAGOVILLE, Appellee.
    No. 16981.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 10, 1967.

      Ronald R. Waldie, Dallas, for appellant.
    B. Robert Baker, of Saner, Jack, Sallin-ger & Nichols, Dallas, for appellee.
   DIXON, Chief Justice.

Appellant T. L. Young has appealed from a judgment against him in a suit whereby he sought to enjoin appellee City of Seago-ville, Texas from enforcing the provisions of the City’s Ordinance No. 132. The ordinance among other things provides that a pool parlor may be operated in Seagoville upon payment to the City of an annual license fee of $10.00.

Appellant owns and prior to February 24, 1967 maintained in use within the City of Seagoville three coin-operated billiard tables on which he has paid the 1967 state annual occupation tax of $5.00 on each table as required by Title 122A, Taxation — General, Art. 13.02, Vernon’s Ann.Civ.St. (Vol. 20A). After being warned to close his establishment and refusing to do so, he was arrested, placed in jail, released on bond and convicted in the Corporation Court of Seagoville. The judgment of conviction is at present on appeal in the Dallas County Criminal Court of Appeals.

Ordinance No. 132 which the City seeks to enforce was enacted by the City in 1955. In that year Art. 4668, Vernon’s Ann. Civ.St., and Art. 633a, Penal Code, passed by the Legislature in 1919, were in full force and effect. Articles 4668 and 633a in unambiguous language prohibited the operation of pool halls in the State of Texas. The City’s Ordinance No. 132 by undertaking to permit the operation of a pool parlor upon payment of a license fee, was in direct conflict with Art. 4668, V.A.C.S. and Art. 633a, Penal Code. The ordinance was therefore void when enacted. Constitution of Texas, Art. 11, Sec. 5, Vernon’s Ann.Civ.St.Art. 1165, V.A.C.S.; City of Wink v. Griffith Amusement Co., 129 Tex. 40, 100 S.W. 2d 695, 698 (1936); City of Corpus Christi v. Texas Driverless Co., 144 Tex. 288, 190 S.W.2d 484 (1945); City of Fort Worth v. McDonald, 293 S.W.2d 256 (Tex.Civ.App., Fort Worth 1956, writ ref’d n. r. e.); City of Fort Worth v. Atlas Enterprises, 311 S.W.2d 922 (Tex.Civ.App., Fort Worth 1958, writ ref’d n. r. e.) ; City of Austin v. Clendennen, 323 S.W.2d 158 (Tex.Civ.App., Austin 1959, writ ref’d n. r. e.) ; Prescott v. City of Borger, 158 S.W.2d 578 (Tex.Civ. App., Amarillo 1942, writ ref’d) ; City of Lubbock v. South Plains Hardware Co., 111 S.W.2d 343 (Tex.Civ.App., Amarillo 1937, no writ) ; 39 Tex.Jur.2d 601.

In 1963 the Legislature amended Title 122A, Taxation — General, Art. 19.01 by adding Section 10; and in doing so expressly repealed Articles 4668, V.A.C.S. and 633a, Penal Code. But the repeal itself alone could not breathe life in Ordinance No. 132, which was born dead — void ab ini-tio because it was in direct conflict with the above cited constitutional and statutory provisions and judicial authority. Board of Elections for Franklin County et al. v. State ex rel. Schneider, 128 Ohio St. 273, 191 N.E. 115, 97 A.L.R. 1417 (1934); Norris v. Town of Union City, 184 Ga. 283, 191 S.E. 105 (1937); 12 Tex.Jur.2d 391.

Under some but not all circumstances the Legislature has authority to enact laws validating city ordinances which were not valid at the time of their adoption. City of Lubbock v. Magnolia Petroleum Co., 6 S.W.2d 80 (Tex.Com.App., 1928); 39 Tex.Jur.2d 651. But we need not concern ourselves here with the question whether Ordinance No. 132 comes within the classification of ordinances which could have been validated, for the Legislature has not passed any statute attempting to validate ordinances such as Ordinance No. 132.

In its brief on appeal appellee City cites and relies on the 1963 amendment of Title 22A, Taxation—General, Art. 19.01. The amendment in addition to repealing Art. 4668, V.A.C.S. and Art. 633a, Penal Code, authorizes cities and towns to pass ordinances prohibiting, regulating or licensing the ownership and operation of billiard tables. However, that provision of the amended statute is of no avail to the City of Seagoville in this case, for the City has not enacted any ordinance pursuant to the newly granted authority.

Appellee in support of its right to enforce Ordinance No. 132 cites and quotes from the opinion in B & B Vending Co. v. City of El Paso, 408 S.W.2d 545 (Tex.Civ.App., San Antonio 1966, writ ref’d n. r. e.). The holding in that case is not in point here. In the B & B Vending case the City of El Paso adopted its ordinance after the prohibitory articles were repealed and pursuant to the authority granted in the amendment of Art. 19.01 to cities and towns to pass prohibitory, regulatory and licensing ordinances with reference to pool halls. No such action is shown to have been taken by the City of Seagoville in this case.

The City of Seagoville is now attempting to prohibit appellant from using and operating his coin-operated billiard tables by invoking the terms of an ordinance which does not prohibit the use and operation of billiard tables, but is void because it sought to do just the opposite: it undertook to license and permit such operation contrary to state prohibitory laws.

Appellant insists that the provisions of Art. 19.01 as amended in 1963 are not applicable in this case because the 1963 amendment provides only for the taxing of billiard tables “where the player thereon does not or is not required to make a coin deposit causing an electrical connection of any nature or kind before such game may be actually commenced, * * Appellant’s contention is that he comes under Articles 13.01 to 13.16 of Chapter 13 of the Taxation—General statute, which chapter is entitled “Tax on Coin-Operated Machines”; whereas Chapter 19 upon which appellee relies, is concerned only with a different subject: “Miscellaneous Occupation Taxes.”

We do not agree with appellant. The definition of a billiard table and the provision authorizing cities and towns to prohibit, regulate or license the ownership or operation of billiard tables are in sections of the 1963 amendment of Art. 19.01 separate from the taxing sections. We think they are applicable in those cases where a city or town has passed ordinances pursuant to such authority. It is so held in B & B Vending Co. v. City of El Paso, 408 S.W.2d 545 (Tex.Civ.App., San Antonio 1966, writ ref’d n. r. e.).

Appellant in his points of error asserts that the court erred (1) in failing to apply Title 122A, Chapter 13, V.A.C.S., Taxation General; (2) in denying appellant’s prayer for injunctive relief, the court’s decision being based on Ordinance No. 132; and (3) because of the uncontradicted testimony of an employee of the State Comptroller’s office. We overrule the first and third points. We sustain the second point.

Ordinarily an injunction will not lie to enjoin a criminal prosecution, but injunction is a proper remedy when the enforcement of a void ordinance seriously impairs or destroys property rights. City of Fort Worth v. McDonald, 293 S.W.2d 256 (Tex.Civ.App., Fort Worth 1956, writ ref’d n. r. e.); State v. Ferguson, 133 Tex. 60, 125 S.W.2d 272, 277 (1939); Bielecki v. City of Port Arthur, 12 S.W.2d 976 (Tex.Com.App., 1929); Crossman v. City of Galveston, 112 Tex. 303, 247 S.W. 810, 26 A.L.R. 1210 (1923) ; Brown Cracker & Candy Co. v. City of Dallas, 104 Tex. 290, 137 S. W. 342 (1911).

We are of the opinion that the City is attempting to enforce a void ordinance and in doing so harms appellant’s existing property rights. That being so we think that appellant is entitled as a matter of law permanently to enjoin the enforcement against him of the City’s Ordinance No. 132.

The judgment of the trial court is reversed and judgment is here rendered granting appellant a permanent injunction as prayed.

Reversed and rendered:


author: TIREY, Justice.

text:
    COMBINED AMERICAN INSURANCE COMPANY, Appellant, v. The CITY OF HILLSBORO, a Municipal Corporation, Appellee.
    No. 4645.
    Court of Civil Appeals of Texas. Waco.
    Nov. 2, 1967.
    Rehearing Denied Nov. 22, 1967.

      Brundidge, Fountain, Elliott & Churchill, Bob Dyess, Dallas, for appellant.
    Steven Kazanas, West, Dunnam, Dun-nam & Dunnam, Waco, for appellee.
   OPINION

TIREY, Justice.

The Combined American Insurance Company, a life, health and accident insurance company, incorporated under the laws of the State of Texas, and duly authorized to do business as such under the laws of the State of Texas, brought this action in the District Court of Hill County to enjoin the City of Hillsboro, a municipal corporation, from enforcing the provisions of its Peddlers’ and Vendors’ Ordinance against it. On trial, without the aid of a jury, the court denied the insurance company any relief and it has perfected its appeal to this court.

The judgment is assailed on three points. Point 1 is to the effect that the court erred:

In denying plaintiff a permanent injunction enjoining the city, its officers, agents and employees from enforcing or attempting to enforce its Ordinance No. 65-3 against it, its agents and employees and from collecting or attempting to collect or threatening to collect from plaintiff any fees or licenses.

We overrule this contention. As we understand the record appellant is now operating by virtue of the fact that it has complied with the ordinance for the year 1967. We cannot assume that the appellee will insist on appellant complying with this ordinance for the year of 1968 in the conduct of its insurance business. We think the rule in Texas is to the effect that if a statute or ordinance is invalid it affords no ground for injunctive relief unless the enforcing officers perform some act (or are threatening to do so) which is not authorized by law, and which constitutes an unlawful interference with their legal rights. See Missouri, K. & T. Ry. Co. of Texas v. Shannon, 100 Tex. 379, 100 S.W. 138, 140, 10 L.R.A.,N.S., 681. Past acts will not afford a basis for injunctive relief absent a showing they will recur. Luccous v. J. C. Kinley Company (Tex.Sup.1964), 376 S.W.2d 336, 341.

Point 2 is to the effect that the court erred:

In refusing to declare the ordinance invalid insofar as such ordinance can be construed to apply to plaintiff, its agents and employees.

We sustain this view and hold that appellant is entitled to a declaratory judgment to the effect that the ordinance is invalid and unforceable insofar as it relates to the selling and taking orders for insurance policies, and as it relates to appellant and its insurance salesmen licensed by the State Board of Insurance Commissioners. Therefore, we accordingly modify the judgment of the trial court and render a declaratory judgment in favor of appellant as above stated. The judgment denying the injunc-tive relief is affirmed.

The insurance company went to trial on its second amended original petition duly verified. Pertinent to this discussion it alleged that it was an insurance company doing business in the State of Texas under the Insurance Code, and that its principal office and place of business is in Dallas County, Texas, and that on or about January 19, 1965, the City of Hillsboro, acting by and through its City Council enacted ordinance No. 65-3 (Peddlers’ and Vendors’ Ordinance), which ordinance provides in part that it shall be unlawful for any person to go from house to house or from place to place in the City of Hillsboro, soliciting, selling, or taking orders from or offering to ^sell or take orders for any goods, wares, merchandise, or services, without having applied for and obtained a license to do so frorq_ the City Secretary. Such ordinance also provides that persons desiring to do the enumerated acts shall file, together with their application, a bond in the penal sum of $500.00, and that such person shall pay a license fee of Thirty ($30.00) Dollars plus an additional license fee of Ten ($10.00) Dollars for each agent or employee engaged in the enumerated acts; that such ordinance further provides that failure to post the required bond and pay the required license fees shall be a misdemeanor and authorized a fine of $10.00 to $100.00 for each and every day of violation.

Plaintiff further plead that Article 4.06 of the Insurance Code, V.A.T.S. of the State of Texas provides:

“No occupation tax other than herein imposed shall be levied by the State or any county, city or town, upon any insurance organization herein subject to the occupation tax in proportion to its gross premium receipts, or its agents. The occupation tax imposed by this chapter shall be the sole occupation tax which any company doing business in this State under the provisions of this chapter shall he required to pay.” It further alleged that Article 7064a, Vernon’s Ann.Tex.Civ.St, provides that every association or corporation, specifically including insurance organizations transacting the business of life insurance, personal accident insurance, life and accident insurance, or health and accident insurance for profit shall file an annual statement showing the gross amount of premiums collected during the preceding year; such article then provides a tax upon such insurance organizations based upon a percentage of the gross amount of premiums collected annually. Such article further provides:
“The taxes aforesaid shall constitute all taxes and license fees collectible under the laws of this State from any such insurance organization * * * and no other taxes shall be levied or collected by the State or any county, city or town except State, county and municipal ad valorem taxes upon real or personal properties of such insurance organization.” (emphasis added)

It further alleged that Article 11, Section 5 of the Constitution of the State of Texas, Vernon’s Ann.St. provides that cities having more than 5,000 inhabitants may adopt charters,

"[Providing that no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State or of the general laws enacted by the Legislature of this State.”
(emphasis added)

It further alleged that plaintiff is an insurance organization as contemplated by Article 4.06 of the Texas Insurance Code and by Article 7064a, V.A.T.S., and is subject to the taxes imposed by such statute; that plaintiff’s soliciting agents who sell in the city of Hillsboro and elsewhere are licensed by the State of Texas pursuant to Article 21.07 of the Insurance Code; that defendant’s ordinance is in conflict with Article 4.06 Texas Insurance Code, Article 7064a, V.A.T.S., and with the Constitution of the State of Texas, Article 11, Section S, and is therefore unconstitutional, invalid and void insofar as such ordinance applies to plaintiff, its agents and employees; that plaintiff advised defendant of the conflict between the applicable state statutes and provisions of the State Constitution and defendant’s ordinance, but nevertheless defendant had warned plaintiff that plaintiff’s agents would be subject to the terms of such ordinance; and that because of defendant’s insistence that its ordinance applied to plaintiff’s agents, and because of the penalties provided in such ordinance, plaintiff’s agents have paid the fees required by defendant’s ordinance at all times applicable hereto.

The evidence tendered conclusively sustains each of the foregoing allegations, and there is no evidence to the contrary.

Since it is undisputed that appellant is a life, health and accident insurance company, incorporated under the laws of the State of Texas, and has fully complied with the laws of the State of Texas, and has been issued a Certificate of Authority by the State Board of Insurance, certifying that it has complied with the laws of Texas, it is our view that appellant is authorized to transact the business of life, health and accident insurance in the State of Texas, and that the City of Hillsboro, its officers, agents and employees are without authority to interfere with it in the soliciting of its business.

Point 3 is to the effect that the court erred:

In holding that the enforcement against plaintiff of defendant’s ordinance is a valid exercise of police power by the City.

Since we have sustained appellant’s point 2 for the reasons stated, it follows that we are of the further view that the city cannot enforce the ordinance against appellant as a valid exercise of its police power, and if we could reach this point it would be sustained. We feel further comment is unnecessary.

Accordingly, under the views heretofore expressed, the judgment in this cause is modified by entering a declaratory judgment to the effect that the ordinance is inapplicable and unenforceable against the appellant, its agents, servants and employees. The judgment denying the injunction is affirmed. We assume that under the judgment here rendered the city of Hillsboro will make no further attempt to enforce the ordinance against appellant, its servants, agents and employees.

Under Rule 448, Texas Rules of Civil Procedure, we tax all costs on appeal and in the court below equally against appellant and appellee.


author: McDONALD, Chief Justice.

text:
    LORENA INDEPENDENT SCHOOL DISTRICT NO. 907 et al., Appellants, v. ROSENTHAL COMMON SCHOOL DISTRICT NO. 007 et al., Appellees.
    No. 4644.
    Court of Civil Appeals of Texas. Waco.
    Sept. 28, 1967.
    Rehearing Denied Nov. 16, 1967.

      Beard & Kultgen, David B. Kultgen, Waco, for appellants.
    Frank Fitzpatrick, Jr., Waco, for ap-pellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal from a judgment of the District Court decreeing an order of the State Board of Education invalid.

Rosenthal Common School District and Lorena Independent School District are contiguous county line districts located in both McLennan and Falls Counties. Certain residents of Rosenthal District petitioned the McLennan County School Trustees to detach a 4 square mile area located in McLennan County from the Rosenthal District and annex same to the Lorena District. Their petition was denied by the Mc-Lennan County Trustees. The residents (and Lorena) appealed to the State Commissioner of Education, who by written decision sustained the McLennan County Trustees. The residents and Lorena then appealed to the State Board of Education which “overruled” the decision of the Commissioner of Education, “and the order will be to de-annex the property involved in this appeal.”

Rosenthal District (joined by McLennan County School Trustees) thereafter filed suit in the 19th District Court of McLennan County, to have the order of the State Board of Education, detaching territory from Rosenthal and annexing same to Lorena, declared invalid.

The District Court, after trial without a jury, entered judgment finding:

1) That portions of Lorena and Rosen-thal Districts are located in both Mc-Lennan and Falls Counties;
2) That no application had been presented to the County School Trustees of Falls County for concurrence or other action; and
3) That Falls County Trustees had neither approved or refused the proposed detachment and annexation.

Such judgment then decreed the order of the State Board of Education detaching the property from Rosenthal and annexing same to Lorena District invalid and of no force or effect.

Lorena School District and the Residents appeal, contending the trial court erred in setting aside the order of the State Board.

Where two school districts, as here, are partly in McLennan County and partly in Falls County, an order by the Board of School Trustees of McLennan County transferring territory from one district to the other, is invalid to effectuate the transfer, without the concurrence of the County Trustees of Falls County. Art. 2742f, Vernon’s Ann.Tex.Civ.St; South Taylor Co. Ind. School District v. Winters Ind. School District, 151 Tex. 330, 249 S.W.2d 1010; County Board of School Trustees of Leon County v. Leon Ind. School Dist., Tex.Civ. App. (nwh), 328 S.W.2d 928; County School Trustees of Leon County v. Leon Ind. School Dist., Tex.Civ.App. (nwh), 336 S.W.2d 809.

As noted, this case originated with the McLennan County Board, and was appealed through administrative channels to the State Board. Suit was thereafter filed by Rosenthal and the County Board for review of the State Board’s order.

Rosenthal and the County Board assert the substantial evidence rule applicable to the appeal from the County Board to the Commissioner and the State Board, and say since there was substantial evidence before the County Board to sustain its action, that its order must be upheld.

We reject the contention. The substantial evidence rule applies to appeals taken from an administrative agency to the courts, and not to appeals from lower to higher administrative agencies. Thus the district court would determine if there was substantial evidence before the State Board to sustain its order. Brazoria Ind. Sch. Dist. v. Weems, Tex.Civ.App. (nwh), 295 S.W. 268; Whitmarsh v. Buckley, Tex.Civ. App. (nwh), 324 S.W.2d 298; State ex rel. Marrs v. Abshier, Tex.Com.App., 263 S.W. 263; Gerst v. Nixon, Tex., 411 S.W.2d 350.

This brings us to just what was the matter before the State Board. Such matter was whether the order of the Commissioner of Education sustaining the McLennan County Board, should be affirmed or overruled. The McLennan County Board had denied the transfer of the territory.

The Minutes of the State Board reflect that it “overruled” the Commissioner, and “ordered” the transfer of the territory. Thus the State Board’s order was substituted for the order of the McLennan County Board. Had the McLennan County Board “ordered” the transfer in the first instance, such order would not have effectuated the transfer until the Board of Falls County concurred. So, when construed in connection with the matters the State Board had under consideration, the meaning of their order is clear. As stated in Gragg v. Hill, Tex.Civ.App., Er. Ref., 58 S.W.2d 150, 152:

“Proceedings before boards of this kind are more or less informal and it is not necessary that the minutes of their proceedings contain all of the essential elements of a judgment in a court of law. It is only necessary that such minutes be sufficiently clear to disclose the intention of the board.”

We think the board’s order sufficiently clear to disclose the intention of the State Board, and that such was to order the transfer, insofar as the McLennan County Board had the right to so order. This was all that the State Board had under consideration. If the order of the State Board, as reflected in its minutes, is not accurately worded, we think it is still valid to effectuate all action necessary by the McLennan County Board in furtherance of the transfer. The order is obviously invalid to ac- ' tually effectuate a transfer of the territory without concurrence of the Falls County Board.

The judgment of the trial court is reformed to hold the board’s order valid to effectuate all necessary action solely by the McLennan County Board in furtherance of the transfer; and is otherwise affirmed.

Costs of appeal are divided equally between appellants and appellees.

Reformed and affirmed.