author: ARCHER, Chief Justice. HUGHES, J.,

text:
    The STATE of Texas et al., Appellants, v. CROWN CENTRAL PETROLEUM CORPORATION et al., Appellees.
    No. 11111.
    Court of Civil Appeals of Texas. Austin.
    June 26, 1963.
    Rehearing Denied July 3,1963.

      Waggoner Carr, Atty. Gen., Linward Shivers, Asst. Atty. Gen., James N. Lud-lum, John Davenport, Austin, for appellants.
    Vinson, Elkins, Weems & Searls, Ray-bourne Thompson, W. H. Drushel, Jr., Houston, Clark, Thomas, Harris, Denius & Winters, James H. Keahey, Austin, Cable & McDaniel, Baltimore, of counsel, for appellees.

       Held until time for filing Motions for 1 hearing had expired, viz. July 11,1963.

   ARCHER, Chief Justice.

This is an appeal by appellants The State of Texas, acting by and through its Attorney General, Waggoner Carr, and Merle Hart Duffy, B. Pete Jackson, R. L. Foree, and the Texas Independent Producers and Royalty Owners Association, from an order of the 53rd District Court, Travis County,, sustaining a Motion for Summary Judgment by appellees (defendants below) Crown Central Petroleum Corporation and Crown Central Pipe Line Company, said judgment reciting that appellants “take-nothing” as to their penalty suit against appellees alleging violation of the Texas statutes prohibiting discrimination in the purchasing and transporting of crude oil in Texas. Appellees, after an answer setting out a general denial, filed a motion for summary judgment, which the Trial Court, after opposition filed by plaintiff and inter-venors, sustained and summarily rendered judgment that:

“(1) Neither Plaintiff nor Intervenors have a cause of action for penalties and mandamus for the refusal of Defendants to comply with Special Order No. 7-47,648 issued by the Railroad Commission on February 21, 1962, because Defendants are appealing said Order in the 126th District Court in Cause No. 126,174 and have the right to appeal such Order without, at the same time, being subjected to penalties and/or mandamus for refusing to comply with such Order.

(2) Neither Plaintiff nor Intervenors have a cause of action based on alleged acts of discrimination and not the subject matter of the Railroad Commission Order No. 7-47,648 because the Railroad Commission has exclusive original jurisdiction of all of the complaints of discrimination alleged in this suit and the Plaintiff and In-tervenors must first present their complaints to the Railroad Commission.”

The appeal is predicated on five points assigned as error by the Trial Court in sustaining appellees’ Motion for Summary Judgment (a) because appellants seek only penalties for violation of the discrimination statutes, (b) insofar as appellants are required to submit their complaints to the Railroad Commission, since administrative action is not required, (c) because the effect of the judgment is to prevent enforcement of the anti-discrimination statutes (Articles 6045, 6048 and Section 8 of 6049a) through penalty suits authorized by Article 6047 and Section 11 of Article 6049a, Vernon’s Ann. Civ.St, (d) because the Attorney General had properly determined that violation had occurred (e) and finally because there were genuine issues of material fact raised by the pleadings and the evidence before the Court.

Appellees take the position that appellants have no cause of action for penalties and mandamus for the refusal of defendants to comply with Special Order No. 7-47,648, because appellees are appealing such order and have the right to do so without being subject to penalties for refusing to comply with such order, and that appellants have no cause of action based on alleged acts of discrimination which are not the subject matter of Order No. 7-47,648, and since appellants do not seek penalties for violation of a Commission Order but for violation of the statutes against discrimination the Court correctly rendered judgment; that the Commission has exclusive jurisdiction to enforce the Oil and Gas Statutes, and the Attorney General cannot usurp that function since the Attorney General can bring suits to end discrimination, only after the Commission has determined by a valid order that discrimination exists and finally that this suit is, as a matter of law, barred; that there are no genuine issues of fact which are material.

On September 10, 1961, B. A. Duffy, now deceased, filed a complaint with the Commission requesting a hearing to investigate the refusal of the present appellees to extend a pipeline to the leases of Duffy, and to determine if a pipeline connection should be required by the Commission in order to prevent unreasonable discrimination.

The complaint was filed pursuant to a Commission Order, called the June 4, 1958 Order, prescribing procedures for requiring common carrier pipelines to connect to leases and wells, which order, in brief, provided that the carrier should, upon application and tender of crude oil by a producer, connect to such lease, when (1) such request is made for connection of lease batteries in the general area served by such carrier, which is an affiliate or subsidiary of a common purchaser, as defined by Section 8 of Article 6049a, and (2) within individual fields, when any common carrier possesses the only pipeline serving such field and request is made for connection of an unconnected lease battery; provided that for just cause common carrier pipelines may seek exceptions. There is a further provision that when application has been made for a connection and such is refused, a complaint for failure to connect may be filed with the Commission and an allegation of discrimination is made. When the matter comes to the Commission either as an exception by the pipeline or as a producer’s complaint for failure to connect, ten days notice shall be given to all affected parties, after which a hearing shall be had, and the Commission will require and consider among other factors, evidence relating to ability of the pipeline to transport the quality of oil, the market for tendered oil, and the period required to return the capital investment for the connection.

After a hearing on the Duffy complaint, the Commission by its Order No. 7-47,648, dated February 21, 1962, required the Crown Companies to extend their pipeline and to connect the tank batteries of the leases.

A hearing was overruled and appellees brought suit in the 126th Judicial District Court of Travis County attacking the Order dated February 21, 1962 on the grounds:

(1) That Crown is not now and has never purchased oil at lease tank batteries in the field, and that the Commission is not empowered under any law of this State to order it to do so;

(2) That the purchase by Crown of oil produced from the 11 Duffy-operated leases at the Teague Station rather than at the lease tank batteries does not constitute discrimination;

(3) That the refusal of Crown Pipe Line to construct a gathering system for the Duffy-operated leases does not constitute discrimination prohibited by law;

(4) That Crown Pipe Line has never undertaken to render a pipeline gathering service in the Haskell County Regular Field, and that the order of the Commission requiring the construction of a system to serve the Duffy leases at a cost of $42,000 denies to it due process of law;

(5) That the action of the Commission in ordering the construction of the gathering system, and failing to establish rates and charges, has the effect of taking Crown’s property without due process of law; and finally,

(6) A pipeline gathering system for the Duffy leases is not required by the public convenience and necessity.

The Commission answered by a general denial. Subsequently Duffy et al and Texas Independent Producers and Royalty Owners Association intervened. This case is pending in the 126th Judicial District Court.

On July 23, 1962 the instant suit was filed in the 53rd Judicial District Court, seeking a mandatory injunction to require the Crown Companies to comply with the February 21, 1962 Order which was then under attack in the 126th Judicial District Court.

Appellees answered on August 17, 1962 by general denial and a plea in abatement based on the pendency of the suit in the 126th Judicial District Court.

On September 21, 1962 TIPRO et al and Duffy et al filed petitions in intervention, seeking a mandatory injunction and for the penalties provided for in Section 11 of Article 6049a, and for private damages under Section lie.

On September 24, 1962 the Attorney General filed a First Amended Original Petition, and prayed:

“Plaintiff prays that at the conclusion of the final hearing hereon that this honorable Court enter an order for a permanent mandatory injunction requiring Defendants, Crown Central Petroleum Corporation and Crown Central Pipe Line Company, to obey and comply with the relevant statutes above cited, and to obey and execute the orders of the Railroad Commission above referred to, and, Plaintiff further prays, in accordance with the relevant statutes that the penalties provided by law be imposed upon the respective Defendants, namely, Crown Central Petroleum Corporation and Crown Central Pipe Line Company, in an amount commensurate with its continued violations of law, and in an amount not less than One Hundred ($100.00) Dollars nor more than One Thousand ($1,000) Dollars for each offense, commencing October, 1959, and, in accordance with law, that one-half (½) of such penalties be recovered by the State of Texas and the other one-half (1/2) of such penalties be awarded for the use and benefit of the holders and owners of the producing lands and mineral interests involved, and, Plaintiff further prays for costs of suit and such other and further relief, general or special, at law or in equity, to which Plaintiff, and the owners of the producing lands and mineral interests involved, may be justly entitled.”

On October 8, 1962 appellees filed a plea of privilege to Duffy et al’s alleged private cause of action, which was granted by the Trial Court and sustained by this Court on April 17, 1963 in Duffy, et al. v. Crown Petroleum Corporation, et al., Tex.Civ.App., 366 S.W.2d 956.

On October 9, 1962 appellees filed their Motion for Summary Judgment, urging that as a matter of law that the suit did not lie as long as appellees were in good faith attacking the Commission’s Order, and stating:

“It is self-evident that if these defendants can test the validity of the February 21, 1962, order in the courts only at the risk of having to pay penalties or having to violate a mandatory-injunction, they have in fact been denied their right to a judicial review of said February 21, 1962, order because it would be far better for them to yield to an unlawful order than to ask for the protection of the law.”

On October 18, 1962 appellants filed amended pleadings asserting as additional cause or causes of action for discrimination not based on the Order of February 21, 1962, but independently on “the Statutes of Texas,” or upon the Commission’s general order .of June 4, 1958.

Appellees stated in a supplement to their Motion for Summary Judgment, in answer to the additional causes of action, that &ere was no material issue of fact, and were entitled to a judgment for the following reasons:

“(1) Neither the statutes nor the Commission’s general order of June 4, 1958, requires Appellees to make any extension of their pipeline in the absence of a specific order of the Commission, issued after proper notice and hearing, finding that such extension is reasonable under all of the circumstances and necessary in the public interest;
“(2) And if the statutes or the Commission’s general order of June 4, 1958, be construed as requiring Appellees to make such extension without any specific order by the Commission, then such statutes and general order have the effect of taking Appellees’ property without due process of law and denying to them the equal protection of the law.”

On November 21, 1962 while the motion was pending, the Attorney General amended the pleadings and sued for the State and the aggrieved parties for discrimination by ap-pellees against Duffy et al within the Has-kell County Regular Field and sought penalties.

On January 15, 1963 appellees filed a supplement to their'motion, stating if the injunction and penalties were sought because appellees refused to comply with the Commission’s Order, then as a matter of law the action did not lie; and that if the injunction and penalties were sought independent of the Commission’s Order, and as an original matter the action did not lie because the Commission has exclusive original primary jurisdiction over such matters; that if the injunction and penalties were sought on the basis of different instances of discrimination, the action did not lie because the Commission has exclusive original jurisdiction over such matters and appellants had not exhausted their administrative remedy.

The motion for summary judgment came on for hearing on October 19, 1962, but the hearing was not finally completed until January 24, 1963 when the motion was granted in terms:

“(1) Neither Plaintiff nor Interven-ors have a cause of action for penalties and mandamus for the refusal of Defendants to comply with Special Order No. 7-47,648 issued by the Railroad Commission on February 21, 1962, because Defendants are appealing said Order in the 126th District Court of Travis County in Cause No. 126,174 and have the right to appeal such Order without, at the same time, being subjected to penalties and/or mandamus for refusing to comply with such Order.
“(2) Neither Plaintiff nor Interven-ors have a cause of action based on alleged acts of discrimination and not the subject matter of the Railroad Commission Order No. 7-47,648 because the Railroad Commission has exclusive original jurisdiction of all of the complaints of discrimination alleged in this ■ suit and the Plaintiff and Intervenors must first present their complaints to the Railroad Commission.”

The order provided:

“that the Plaintiff and Intervenors take nothing by this suit and that all costs herein be taxed against Plaintiff and Intervenors; provided, however, that this judgment, shall not be a bar to Plaintiff’s right to bring an action for mandamus and/or penalties should the Railroad Commission’s Order of Febril--ary 21, 1962, which is now under attack in Cause No. 126,174 in the 126th District Court of Travis County, be finally adjudged to be a valid order, and the Defendants should thereafter refuse to obey the same.”

We believe that the Trial Court was justified in entering the judgment appealed from.

The issue before the Commission was whether Crown was discriminating against Duffy’s production in Haskell County Regular Field, this was denied and is being tested in 126th Judicial District Court. Appellants contend that a trial can be had of the acts complained of before the Commission even if it be held the Commission’s order is void.

In Wadley Southern Ry. Co. v. State of Georgia, 235 U.S. 651, 35 S.Ct. 214, 59 L. Ed. 405, it was held:

“But in whatever method enforced, the right to a judicial review must be substantial, adequate, and safely available; but that right is merely nominal and illusory if the party to be affected can appeal to the courts only at the risk of having to pay penalties so great that it is better to yield to orders of uncertain legality rather than to ask for the protection of the law. * * *
“Their legality is not apparent on the face of such orders, but depends upon a showing of extensive facts. A statute, therefore, which imposes heavy penalties for violation of commands of an unascertained quality is, in its nature, somewhat kin to an ex post facto law, since it punishes for an act done when the legality of the command has not been authoritatively determined. Liability to a penalty for violation of such orders, before their validity has been determined, would put the party affected in a position where he himself must, at his own risk, pass upon the question. He must either obey what may finally be held to be a void order, or disobey what may ultimately be held to be a lawful order. If a statute could constitutionally impose heavy penalties for violation of commands of such disputable and uncertain legality, the result inevitably would be that the carrier would yield to void orders, rather than risk the enormous cumulative or confiscatory punishment that might be imposed if they should thereafter be declared to be valid.”

In Culver v. Smith, Tex.Civ.App., 74 S.W.2d 754, er. ref., this Court held the court has no jurisdiction to enforce the statute until the matter has been first passed upon by the Commission, and then it only determines whether or not the order of the Commission is unjust and unreasonable as to the railway company complaining of the same. Such being our view of the law, we do not think the trial court erred in sustaining the exceptions to the state’s plea of intervention, in so far as it related to the spur track.

The Commission has exclusive original jurisdiction to consider complaints of discrimination by common carrier-purchasers under Article 6049a and the appropriate Sections thereunder.

American Liberty Pipeline Co. v. Agey, Tex.Civ.App., 167 S.W.2d 580, affirmed, 141 Tex. 379, 172 S.W.2d 972.

Deep South Oil Company of Texas v. Texas Gas Corporation, Tex.Civ.App., 328 S.W.2d 897, er. ref., n. r. e.

The judgment of the Trial Court is affirmed.

Affirmed.

HUGHES, J.,

dissenting.

For dissenting opinion see 369 S.W.2d 955.


source: Caselaw Access Project

author: MASSEY, Chief Justice.

license: Public Domain

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Jack F. DILL, Appellee.
    No. 16433.
    Court of Civil Appeals of Texas. Fort Worth.
    June 14, 1963.
    Rehearing Denied July 12,1963.
    Nelson & Sherrod and Stan Carter, Wichita Falls, for appellant.
    Kenneth C. Spell, Jr., Mock, Banner & McIntosh and C. Coit Mock, Wichita Falls, for appellee.
   MASSEY, Chief Justice.

This is an appeal from a judgment in behalf of the claimant in a workmen’s compensation case.

Judgment reversed and rendered.

It appears that the claimant, Jack F. Dill, plaintiff below, sustained an injury to his-back in Wichita Falls, Texas, while in the employ of O’Rourke Construction Company on or about November 2, 1960, pursuant to certain lifting or straining in raising and placing in position an angle iron to be integrated into a building. Claimant was a carpenter at the time. The point of injury was to the lower back, near the spinal column, just above the hip. Pain was immediately experienced in the form of a “cold sensation”, “as though you had laid a cold bolt or something up there”. It was-not immediately disabling, and after claimant straightened up and rubbed himself and talked about it to a co-employee he resumed working and completed the day’s-work. Claimant’s back still hurt at close of the day. He returned to work the following day and worked though his back was sore. The next day he reported his injury to his superintendent, who filled out an ac-cid&nt report form and gave claimant permission to go to see a doctor. Throughout the record it is made clear that claimant was given permission to go to any physician of his choice and that he selected his own doctor. Claimant was given some sort of slip or certificate to deliver to the doctor so that he would be informed that it was a case under the Workmen’s Compensation Act and not one in which he should expect payment from the claimant.

Claimant did not seek any particular doctor. He went to the Wichita Falls Clinic Hospital and saw a Dr. Parsons, the first doctor who became available. He was given a prescription (which he later had filled at a drug store) and was told to report back to the doctor in three weeks. He returned to the duties of his employment the following day, and continued to work three weeks, after which he reported back to see the doctor. His testimony was that although he was experiencing pain in his back during the intervening period he was able to efficiently perform his work. Upon calling at the Clinic Dr. Parsons was unavailable, and claimant was notified to call again in one week. Claimant further testified that since he could not see the doctor he decided to go to a chiropractor, and he did do so and underwent a course of some seven to ten treatments in the form of chiropractic adjustments. He did not report back to see Dr. Parsons.

Claimant continued to work until November 28, 1960. He stated that he was discharged from his employment on that date. His testimony was that he subsequently obtained chiropractic treatments from two other chiropractors, and also called upon a medical doctor who told him that he should see a “bone specialist”. He did do so, but the record reflects that such was not done until the Spring of 1961, to-wit: on April 20, 1961, over five and one-half (5½) months after his injury, when he called upon Dr. Maxfield as a physician of his own choice. The record reflects that Dr. Maxfield does the majority of this kind of work for the defendant Texas Employers’ Insurance Association in the Wichita Falls area.

Each time a chiropractor treated him claimant would obtain temporary relief from the pain in his back, but within a few days it would return. He was continuing to work the majority of time, dependent upon the availability of carpenter work, up until about the time he first saw Dr. Max-field. Dr. Maxfield is a physician at the Wichita Falls Clinic Hospital, as was Dr. Parsons. Besides examination and treatment Dr. Maxfield gave claimant a prescription to have filled at a drug store. Neither the doctor nor the drug store ever charged claimant anything, and both then and thereafter the medical and drug bills were sent to the insurance company, which apparently paid all of them. Claimant paid the chiropractors. After April 20, 1961, and until July or August, 1961, claimant saw Dr. Maxfield about once in each two-week period. Certain medical records indicate that June 7 was the last time claimant saw Dr. Maxfield, although his testimony is that he continued to receive treatment from this doctor in July, August, September and October of 1961. Claimant testified that sometime in July Dr. Maxfield told him to “get off that carpenter work and get some lighter work.” He further testified that after Dr. Maxfield told him this he did not do any further carpenter work. He tried to-find lighter work, but did not have much luck. He further testified that he saw Dr. Maxfield on or about October 31, 1961 for the final time before filing his claim for compensation, at which time the doctor told him that he might as well get used to living with his condition because he would not get any better, and that he could not do-any more carpenter work. Dr. Maxfield. prescribed a back-brace which was secured' from the drug store on this same date at the-expense of defendant insurance company..

Claimant testified that up until the occasion on October 31, 1961, he still felt and' hoped that he was going to get better. He-described the pain he was having as a “dull throb” in his back, which pain ran down his-left leg into his foot where it was a dead, dull, warm feeling — “kind of a burning sensation”. On cross-examination the claimant stated that the reason he did not file his claim for compensation until he did file it was because he did not think that he was seriously hurt, although there had been no time since the injury was sustained when he had been free of pain; that though the pain might slack off enough for him to go to sleep he had not had a full night’s sleep since the injury. Despite the pain, he continued to think that his injury was trivial, “a pulled ligament or something like that”, until Dr. Maxfield told him on October 31, 1961, that he was not going to get well. He thought he would get all right even after Dr. Maxfield told him not to do any further carpenter work in July of 1961. By his testimony claimant so limited the premise of his contention of “good cause” for delay in filing his claim.

Further testimony from the claimant was to the effect that between the time he was discharged by O’Rourke on November 28, 1960, and the time in July when Dr. Max-field told him not to do carpenter work he was employed by Hugh Robertson as a carpenter, but had to quit because he could not do the work; worked for the Professional Construction Company, but quit because “the diggin’ got just a little bit rougher than I could take”; worked for P. Kosh & Son, but quit because “I was having an awful time keeping up”; worked for Lawless and Alford, but quit because “It was just a little bit to peart for me; I couldn’t keep up with them”; and worked for Nichols Construction Company putting up “colored transite siding”, which task required “just man-handling it up and I couldn’t do it”.

Testimony from the wife of the claimant was that for a period of one year after the date of his injury he was trying to work and that he would work a day or two and “get to hurting so bad he would have to take off.”

The claimant did not file his claim with the Industrial Accident Board until November 10, 1961, a little more than one full year from the date of injury. May 2, 1961, would have been six months after injury date.

Article 8307, § 4a, Vernon’s Ann.Civ.St. Tex., requires that claims for compensation under the Workmen’s Compensation Act be filed within six months “after the occurrence of the injury”, provided that, “For good cause the Board may, in meritorious cases, waive the strict compliance with the foregoing limitations as to notice, and the filing of the claim before the Board.” Judicial decisions establish the requisite that “good cause” must exist thereafter up until the time claims are actually filed.

In so far as they are relevant and material to the issue the claimant’s pleaded grounds of “good cause” for failure to file his claim within the statutory period, and until the time he did file the same, were that “although being treated by doctors at intervals (he) believed that his injury was not a serious one, and that he would be able to keep on at his regular employment without any disability, and did not discover that his injury was so serious until just before the claim was filed”, and because “All medical bills incurred with Dr. Jack Max-field had been paid by the Defendant up until this claim was filed, and the Plaintiff knew that these bills were being paid even though the six months had run out from the date of his injury.” In the submission of the case to the jury the question was posed thus: “Do you find from a preponderance of the evidence that Jack Dill acted as a reasonable, prudent person in delaying the filing of his claim until November 10, 1961 ?” The jury’s answer was, “He did.”

An argument appears in claimant’s brief to the effect that even though “good cause” for delay in filing a claim might otherwise not exist, continued payment by the insur•ance company of medical and drug bills incurred on account of an injury would constitute “good cause” for such delay. The case of Derr v. Argonaut Underwriters Insurance Company, 1960 (Tex.Civ.App., Austin), 339 S.W.2d 718, writ ref., n. r. e., is cited as authority. Testimony of the claimant failed to advance the fact of such payments as an occasion for the delay in filing claim. Indeed, his own testimony limited the reasons for delay to other circumstances.

It has been held that a good faith belief on the part of a claimant that his injuries were not serious may constitute “good cause” for failing to present a claim within the statutory time. Such belief, however, must meet the primary test of ordinary prudence. Hawkins v. Safety Casualty Co., 1948, 146 Tex. 381, 207 S.W.2d 370.

Taking as true the statements of the claimant concerning the pain and suffering undergone following the accident of November 2, 1960, together with his testimony concerning his subsequent inability to perform work for five different employers after the time of his discharge by O’Rourke Construction Company, we believe that claimant’s action in delaying the filing of his claim beyond the six months period ending May 2, 1961, or at least beyond that time in July of 1961 when Dr. Maxfield told him to quit trying to do carpenter work, does not meet the standard of ordinary prudence. Neither does the further delay in filing the claim from July of 1961 to November 10, 1961 meet the standard. This conclusively appears as a matter of law. There were no attempts between the parties to make a settlement prior to November of 1961, and-the claimant never became acquainted with any representative of the insurance company until about one week before his claim was filed.

To hold that claimant proved ordinary prudence despite the delay would be to effectively nullify the statutory provisions designed to secure the prompt filing of claims and prevent frauds ofttimes incident to the filing of stale demands. We cannot indulge the over-credulous at the risk of admitting the fraudulent, but must follow the public policy of the state as declared by legislative enactment. The trial court should have instructed the jury to find for the defendant insurance company, or, failing this, should have rendered judgment non obstante veredicto. Copinjon v. Aetna Casualty & Surety Co., 1951 (Tex. Civ.App., San Antonio), 242 S.W.2d 219, error refused, and authorities therein cited.

In the event it be held that we err in the above holding, we would reverse and remand the judgment of the lower court because the verdict and judgment were contrary to the great weight and preponderance of the whole of the evidence on the matter of good cause for delay in fifing claim. Under the state of the record made below we overrule all other points of error presented on appeal.

Judgment is reversed and rendered that claimant take nothing.


author: COLLINGS, Justice.

text:
    Gwendolyn Gage Seale WILLIAMS, Appellant, v. James C. MUSE, III et al., Appellees.
    No. 3817.
    Court of Civil Appeals of Texas. Eastland.
    May 24, 1963.
    Rehearing Denied July 26,1963.

      Passman & Jones, Bill C. Hunter and Gerald R. Coplin, Dallas, for appellant.
    Ralph W. Currie, J. C. Muse, Jr., Dallas, for appellees.
   COLLINGS, Justice.

Gwendolyn Gage Seale brought suit against James C. Muse, III, Independent Executor of the Estate of Robert C. New-comb, deceased, and Cornell University seeking to impose a trust upon the properties and estate of the said Robert C. New-comb and to enforce the terms of a will alleged to have been executed by Robert C. Newcomb on January 7, 1955. The will was alleged to have been executed pursuant to and in accordance with a contract and agreement between Newcomb and her father, Carlton Gage, by which Newcomb agreed to devise certain property to plaintiff. Plaintiff alleged that the contract was breached by Robert C. Newcomb by the execution of a subsequent will dated April 19, 1957, in violation of the contract he had made with Gage; that the subsequent will made a disposition of Newcomb’s property contrary to and in violation of the contract between him and Gage. Among other defenses, the defendants pleaded the Statutes of Frauds urging that a parol contract involving both real and personal property which is indivisible is void as to both and cannot be enforced as to either.

Muse, as executor, urged his special exception that appellant had failed to state in her pleadings whether the claimed contract was oral or in writing, and that in the absence of a contract in writing any agreement by Newcomb to devise real estate was unenforcible under the Statute of Frauds.

Cornell University filed a motion for summary judgment. Plaintiff timely opposed the motion but it was sustained and the court granted summary judgment as prayed. At the same time the court sustained the special exception of Muse, Executor, and entered judgment that plaintiff take nothing. Gwendolyn Gage Seale Williams, formerly Gwendolyn Gage Seale, has appealed.

This is the second appeal of this case. In the former appeal (Seale v. Muse, et al., Tex.Civ.App., 352 S.W.2d 534), a summary-judgment in favor of Cornell University and Muse and against appellant was reserved and the cause was remanded. Appellant’s points upon which this appeal is based are in substance that the court erred in sustaining the special exception of appellee Muse, executor, because, (1) such action was taken without notice to appellant or her counsel thereby depriving the appellant of the right to be heard on the questions involved and (2) that the court’s action upon such exception deprived appellant of the right and opportunity to amend her pleadings, if she so desired, prior to the entry of judgment, and (3) that the court erred in rendering a take nothing judgment as to Muse as executor because no proceedings were had or conducted upon which such judgment could be predicated; (4) that the court erred in sustaining Cornell University’s second motion for summary judgment without first disposing of all exceptions on file in the case, and because it does not conclusively appear from the record that appellant has failed to allege or does not have a cause of action against appellees.

Appellant’s alleged cause of action was based upon allegations that her father, Carlton Gage, entered into a contract with Robert C. Newcomb on May 26, 1954, in which it was agreed that Gage would assist Newcomb in a will contest pending in the State of Florida and Newcomb obligated himself to devise and bequeath such property as he might own at his death to appellant and another; that pursuant to and consistent with the contract Newcomb executed such a will on January 7, 1955. A copy of this will was attached as Exhibit A to appellant’s petition. The will disposed of both real and personal property but made no reference to any contract with Gage. Appellant’s petition further stated that in 1957, Newcomb executed another will devising all of his property to Cornell University, naming James C. Muse, III, as Independent Executor. A copy of this will was also attached to appellant’s petition as Exhibit B. The later will likewise disposed of both real and personal property and recited that Newcomb had no responsibility or duty toward any one and had not promised to give or devise to any one “any heirloom or other item of personal property.” The testator directed his executor to ignore and, if necessary, contest any such claim. This second will was admitted to probate. It was alleged in appellant’s petition that the 1957 will breached the contract of May 26, 1954, and her suit sought to impose a trust upon all the properties of Newcomb and to enforce the terms of the 1954 contract which she alleged was evidenced by the 1955 will.

The trial court properly sustained the special exception of Muse, Executor, properly decreed that plaintiff take nothing and entered summary judgment for Cornell University. Appellant’s points are overruled. Considering such points together and substantially in the order presented, we hold that no reversible error is shown in appellant’s first and second points in which it is contended that the court erred in sustaining the special exception of Muse, Executor, at the time of the entry of the judgment without notice to her. Appellant contends that such action deprived her of the right to be heard on the question and deprived her of the right to amend her pleadings prior to the entry of judgment. The special exception of Muse urged in effect that appellant’s pleadings were defective and failed to state a cause of action because such pleadings failed to show whether the alleged contract was oral or in writing. Muse contended that by reason of the Statute of Frauds appellant could only recover if the alleged contract to devise property including real estate were in writing. The contention is well taken, and the exception of Muse was properly sustained.

In the opinion of the Dallas Court of Civil Appeals reversing the former summary judgment it was held that in the absence of a written contract appellant was not entitled to recover but that neither the pleadings of appellant nor the affidavit of appellees showed conclusively that the contract was oral. In this connection it was stated as follows:

“Thus, had Cornell and Muse established affirmatively, and without question, that the contract between New-comb and Gage of 1954 was verbal then there would be no doubt concerning the validity of the action of the trial court in this case.”

After the case was remanded, appellant in answer to requests for admission admitted that the contract between Newcomb and Gage, both deceased, was oral and that the only memorandum in writing relied upon by her was the will itself which she pleaded as an exhibit to her petition. Appellant contends that such will was in writing and should be considered with and as a part of the agreement. It was in this state of the record that the trial court took the action which it did and sustained the second motion of Cornell University for a summary judgment, from which judgment this appeal is taken.

As stated by Justice Williams on the former appeal it is well settled in Texas that a parol contract involving both real and personal property, which is indivisible, is void as to both and cannot be enforced as to either. It is also well settled that “the making of a will pursuant to an agreement to devise land is not a sufficient memorandum of the agreement, where the testator afterwards makes another will revoking the prior one.” Upson v. Fitzgerald, 129 Tex. 211, 103 S.W.2d 147; Arnold v. Starke, Tex.Civ.App., p. 149, 292 S.W.2d 887, (Writ Ref.). In the instant case appellant’s petition incorporated by exhibit both the will alleged to have been executed pursuant to and in accord with the alleged agreement and the later will which revoked the one relied upon by-appellant as a memorandum. The terms of the revoked will does not show it to be contractual.

It thus appears that appellant as plaintiff in the trial court sought to recover upon a contract which she admits to be oral involving both real and personal property, which is indivisible. Both Muse, Executor, and Cornell plead the Statute of Frauds. The contract relied upon by appellant is void and cannot be enforced. The record considered together with appellant’s pleadings conclusively shows that appellant failed to allege a cause of action. The court properly sustained the exception of Muse, Executor.

It is difficult to see how appellant could be injured because the court acted on the exception in her absence and without notice. We see no merit in her complaint that she was not afforded leave to amend prior to entry of judgment. The only amendment which could have helped her position would have been the allegation of facts showing some writing evidencing the alleged contract. This in effect was the-holding of the Dallas Court of Civil Appeals on the former appeal. Appellant made no such amendment. On the contrary when pressed by the court concerning her position she admitted that the agreement between her father and Robert C. Newcomb, deceased, was an oral agreement. She admitted that there was nothing in writingsigned by Robert C. Newcomb except the revoked will. The will in question was not' contractual.

As heretofore noted, the making of a will pursuant to an oral agreement to devise land is not a sufficient memorandum to-avoid the Statute of Frauds where the-testator thereafter executes a revoking will. The holding on the former appeal clearly indicates that the judgment there under consideration would have been affirmed if the record had shown conclusively, as the record here does show, that the contract between Newcomb and Gage was verbal. It was indicated that the exception to appellant’s pleadings should have been sustained. Under the record on this appeal the court properly sustained the special exception of James C. Muse, III, Executor, and in our opinion was justified in deeming appellant’s-pleading amended in accordance with her admission that the contract was oral and in assuming that she had declined to further amend. Appellant has failed to show that she was injured in any way by reason of the manner in which, or the time that the exception was sustained. The court also properly decreed that appellant take nothing and entered summary judgment for Cornell University.

The judgment is affirmed.


text:
    Ellen COKER, Appellant, v. Elizabeth ECKERT, Independent Executrix of the Estate of Minnie Dora Mynatt, Dec., et al., Appellees.
    No. 16435.
    Court of Civil Appeals of Texas. Fort Worth.
    June 21, 1963.
    Rehearing Denied July 19,1963.
    Charles L. Morgan and Ernest May, Fort Worth, for appellant.
    Hudson, Keltner, Jordan, Smith & Cunningham and Walter E. Jordan, Fort Worth, for appellees
   MASSEY, Chief Justice.

Important persons whose identity must be kept in mind for a clear understanding of what we are to say herein are: Minnie Dora Mynatt, who died in 1950, — her brother, William Denson Mynatt, who died about 1953, — another brother, Tom Mynatt, who died on April 4, 1961, — a nephew, Mynatt Coker, who died in 1957, — Sarah Bessie Coker, who is living, — and Dorothy Ann Mynatt Farmer, who is living. Sarah Bessie Coker and Dorothy Ann Mynatt Farmer are the persons who would take the portion of the estate of Minnie Dora Myn-att which is in controversy, should the same pass (out of her) according to the Laws of Descent and Distribution of the State of Texas.

When Minnie Dora Mynatt died in 1950 she left a will. By it she made a niece, Elizabeth Eckert, sole Independent Executrix of her estate and also sole Trustee vested with discretion and authority to do the things called for in her will. Elizabeth Eckert and Dorothy Ann Mynatt (Farmer) were the two nieces mentioned in the will and Elizabeth Eckert is the daughter of Sarah Bessie Coker. Mynatt Coker, who died in 1957, was the nephew mentioned in the will, a son of Sarah Bessie Coker. Mynatt Coker died without child or children surviving him. His widow is Ellen Coker.

By the will of Minnie Dora Mynatt, after disposition of a specific portion of her property, which need not be hereinafter noticed, she cast the balance thereof in trust, with the trustee authorized to use such portion of the income from her estate as might be deemed necessary for the support of her two brothers aforementioned. In the event of necessity the trustee was authorized to invade the corpus of the trust to accomplish such purpose, unrestrictedly and without limitation.

Thereafter the will provided by Paragraph X as follows: “After caring for my two brothers in the manner aforesaid, if the need or necessity has existed, then upon the death of the survivor, all of the balance of my estate then remaining shall be divided into three (3) equal parcels, and one each shall pass to my nephew MYN-ATT COKER and to my nieces ELIZABETH ECKERT and DOROTHY ANN MYNATT, in equal portions, share and share alike; and in the event of the prior death of either, then the interest to which each would have been entitled if living shall pass to and be equally divided among his. (or her) surviving children, in which event the surviving spouse shall act as guardian without bond; and should these beneficiaries die without leaving children surviving, then the interest to which each would have been entitled, if living, shall pass in accordance with the Laws of Descent and Distribution of the State of Texas.” (Emphasis supplied.)

A dispute arose up*in and subsequent to the time of the termination of the trust established by the will, when Tom Mynatt died on April 4, 1961. The persons who would be entitled to take in the place and stead of Mynatt Coker (because of his death in 1957), as the heirs of Minnie Dora My-natt under the Laws of Descent and Distribution, were Sarah Bessie Coker and Dorothy Ann Mynatt Farmer. They claimed one of the three equal parcels mentioned in the will, to-wit: the portion which would have passed to Mynatt Coker, had he been alive on and after April 4, 1961. Ellen Co-ker, surviving widow of Mynatt Coker, also claimed the portion. Her claim was to' the full portion under and by virtue of the will of Mynatt Coker, which left all his property to her. Alternatively, she claimed the lesser interest provided under Texas Probate Code, Art. 38, V.A.T.S., “Persons Who Take Upon Intestacy”, (b) “Intestate Leaving Husband or Wife”, on the theory that the will of Minnie Dora Mynatt provided that the interest of Mynatt Coker would pass (out of him) by the Laws of Descent and Distribution. The dispute resulted in suit for a declaratory judgment to construe the will of Minnie Dora Mynatt.

The question posed by the litigation was actually whether the “remainder” interest in question became an absolute “vested” interest in Mynatt Coker upon the death of Minnie Dora Mynatt, — became an interest which was “contingent” only and not to vest until the date of the death of Tom Mynatt on April 4, 1961, — or became an absolute gift or devise upon the earlier date, defeasible by an executory gift-over in the event Mynatt Coker died prior to Tom Mynatt, without surviving children.

Paraphrased, we believe it might be properly said that the will read and provided as follows: “Upon the death of Tom Mynatt my estate shall be divided into three parcels, one of which shall pass to my nephew Mynatt Coker; and in the event of his prior death the interest to which he would have thereupon become entitled, if living, shall pass to his surviving children; but if he should die without leaving children surviving then the interest to which he would have been entitled, if living shall pass in accordance with the Laws of Descent and Distribution of the State of Texas.”

If, as we believe, the provisions of the will are not distorted and are accurately stated in the language paraphrased, there is no ambiguity in the will and its provisions, and it is specific, definite and certain, and unnecessary of construction. There being no necessity for judicial construction, it remains only to declare the same according to its express import. The testatrix provided that whether Mynatt Coker should ever receive or become entitled to an interest in the “remainder” thereof would be determinable at the death of Tom Mynatt and upon the termination of the trust created by the will, and would be “contingent” upon a condition, precedent, to-wit: that he then be alive to receive it.

The same thing might be said as to any child or children of Mynatt Coker, despite his prior death, for it was plainly required that such child or children must be alive to receive his or their father’s interest in his place and stead on the date of Tom Mynatt’s death.

Application of rules of construction must yield readily and are subordinate to the fundamental principle that the testator’s intention, as gathered from the whole will, is the controlling guide. That this great fundamental rule may prevail and the property of the testator take the posthumous course intended by the owner, other rules are made and unmade. Anderson v. Menefee, 1915 (Tex.Civ.App., Fort Worth), 174 S.W. 904, 908, error refused; 57 Am. Jur., p. 731, “Wills”, § 1135, “Subordination of Rules of Construction to Intention”. Furthermore, in every case the law looks diligently to the context of the will, and if there be any words in the will that indicate, though slightly, that it was not the intention of the testator to vest the estate, they will be given that effect. St. Paul’s Sanitarium v. Freeman, 1909, 102 Tex. 376, 117 S.W. 425, 132 Am.St.Rep. 886. See also 57 Am.Jur., p. 818, “Wills”, § 1237, “Death Alone as a Contingency”.

If legal construction of the will were necessary, although we do not believe such requisite, the principles to be applied would nevertheless result in the defeat of the claim of Ellen Coker. In St. Paul’s Sanitarium v. Freeman, supra, opinion by Judge Gaines, there was a construction of a will provision which read, “ ‘Third. It is my will and desire that in the event the said Robert M. Freeman shall die without issue then it is my will and desire that all of my said property willed as aforesaid be given to St. Vincent de Paul Institution or order, for the benefit of the sick Sisters of that order in Dallas county, Texas.’ ” An antecedent paragraph purported to give all the testator’s property to Freeman. Freeman brought the suit to construe the will, hoping to obtain final adjudication that he held the property of the testator free and clear, forever, of any claim by St. Paul’s. Judge Gaines said: “Now dying without issue is no certain event. Freeman may die without issue, or he may not.” His holding was that the will’s devise was an absolute gift, defeasible by an executory gift-over in the event Freeman should die at any time without child or children. See 17 Tex.Jur., p. 110, “Estates”, § 11, “Base, Qualified, Determinable or Conditional Fee”, and 22 Tex.Jur.2d, p. 649, “Estates”, § 6, “Vested and contingent estates”. Certain language in a later Supreme Court opinion seems to treat a fee which is “vested, but defeasible”, as simply a “conditional” fee. See Harrell v. Hickman, 1948, 147 Tex. 396, 215 S.W. 2d 876, 878.

We find no Texas cases among those annotated in 144 A.L.R. 1155, et seq., “ 'Divide and pay over’ rule, for purpose of determining vested or contingent character of future estate”, — supplemented in 16 A.L.R.2d 1383, et seq. The “Rule” is readily understandable by reference to 57 Am. Jur., p. 811, “Wills”, § 1231, “The ‘Divide and Pay Over’ Rule”. Thereunder it is stated that where the only words of gift in a testamentary disposition of property are contained in a direction to pay, divide, convey, or distribute at a time subsequent to the death of the testator, time is to be taken as of the essence of the gift, and the legacy or devise is to be regarded as “contingent” rather than “vested”. In the instant case there is present none of the limitations, qualifications or exceptions to be found in the section following (§ 1231), and if construction were necessary on the ground of some ambiguity the case could properly be considered as one in which the basic “Rule” would be clearly applicable.

In the brief of Ellen Coker, strong reliance is placed on the case of Caples v. Ward, 1915, 107 Tex. 341, 179 S.W. 856. We do not believe the case authoritative in the present instance. In the opinion itself is stated (179 S.W. at page 858), “The remainder is not made contingent by uncertainty as to the amount of the estate remaining undisposed of at the expiration of the life estate, but by uncertainty as to the persons mho are to take”. (Emphasis supplied.) In 57 Am.Jur., p. 802, “Wills”, § 1217, “Distinctions between ‘Vested’, ‘Contingent’, and ‘Vested Subject to Divesting’ ”, is stated, “ * * * a ‘contingent’ interest (is) one which is uncertain either as to the person who will enjoy it in possession or as to the event on which it will arise.” It is further stated, ■ “ * * * the courts (also) recognize an intermediate interest, commonly called a ‘vested interest subject to divesting, divestiture, or defeasance.’ ” Such an intermediate circumstance was declared to be existent under the holding in St. Paul’s Sanitarium v. Freeman, supra.

Actually we believe the ultimate “remaindermen” contemplated by the will of the testatrix were Minnie Dora Mynatt’s heirs under the Laws of Descent and Distribution in effect at date of her death, their “contingent” interest having been made dependent upon the condition that at the time of the death of Tom Mynatt neither Mynatt Coker nor any child or children of his be alive to take. In turn, Mynatt Coker’s “contingent” interest would depend upon his remaining alive when Tom Mynatt died, that being the time when the grant or devise to him was limited to take effect in possession. 36 Tex.Jur., p. 877, “Remainders and Reversions”, § 7, “ ‘Contingent’ Estates”. When a will makes survival a condition precedent to the vesting of a remainder it must be held contingent. Guilliams v. Koonsman, 1955, 154 Tex. 401, 279 S.W .2d 579, 582, 57 A.L.R.2d 97.

We admit the ambiguity of the will in respect to whether the heirs “in accordance with the Laws of Descent and Distribution” would be Mynatt Coker’s or would be Minnie Dora Mynatt’s, and in respect also as to the proper date to examine the state of the Laws of Descent and Distribution in order to determine the identity of heirs thereunder. Finley v. Finley, 1959, 159 Tex. 582, 324 S.W.2d 551. However, necessity to resolve that question would be contingent upon the existence of some ambiguity as applied to antecedent provisions in Paragraph X of the will, plus a construction thereof contrary to that we said would have been proper had construction been necessary. We hold that no such ambiguity existed requiring application of rules of construction, and that if they were applied the result would nevertheless defeat the claim of Ellen Coker. We do not necessarily reach the question of “what might he” if some different construction “might have been”. Therefore we will not further lengthen this opinion.

What we have said is wholly in accord with the decision and judgment of the trial court. That judgment is affirmed.


author: HUGHES, Justice.

text:
    The CAPITAL NATIONAL BANK IN AUSTIN, Appellant, v. L. B. WOOTTON, Appellee.
    No. 11100.
    Court of Civil Appeals of Texas. Austin.
    June 19, 1963.
    Rehearing Denied July 10,1963.
    Clark, Thomas, Harris, Denius & Winters, Wallace A. McLean, James H. Keahey, Austin, for appellant.
    Terry L. Jacks, San Marcos, for appellee.
   HUGHES, Justice.

The Capital National Bank in Austin sued appellee, L. B. Wootton, to recover the proceeds of a check in the sum of $276.60 drawn by the City of Austin against its account in the appellant bank in favor of appellee as payee which the bank paid to appellee.

Trial was non-jury. Judgment went against the bank. There is no statement of facts. The case is before us on findings of fact made by the Trial Court. The substance of such findings follow:

1. On September 25, 1961, the City of Austin issued its check, No. 7215, payable to the order of appellee for $276.60, drawn on its account in the appellant bank. The special account on which this check was drawn was denominated, “Brackenridge Hospital Refund Account.”

2. By letter dated September 28, 1961, the office manager, Mrs. Nell Bartley, for such hospital .requested the bank to stop payment of such check. This letter was duly received by the bank.

3. On September 30, 1961, Mr. P. T. O’Brien, for the hospital, wrote appellee requesting him to return check No. 7215 to the hospital.

4. On October 15, 1961, appellee received check No. 7215 through the mail. He “in good faith believed the stop payment order to have been rescinded.”

5. On October 16, 1961, appellee, on advice of counsel, presented the check to the bank for payment and one of its tellers “through his admitted negligence, oversight and because he did not consult the stop payment list” paid appellee the amount of the check.

6. The City of Austin refused to allow this check to be charged against its account and insisted upon its rights under the stop payment order.

7. After demand by the bank, appellee refused to refund the proceeds of the check. 8. There is no evidence that appellee had or had not changed his position, presumably in regard to his rights against the City of Austin.

9. There is neither pleading nor proof that the City of Austin was or was not entitled to recover the proceeds of the check from appellee.

The Trial Court concluded that appellee was a holder in good faith of the check when it was paid, and that “When a bank over-looks a stop-payment order on a check and pays the check to the payee, the bank cannot recover the proceeds of the check unless it pleads and proves that the payee was unjustly enriched or that the payee was guilty of fraud, or that the payee was not a good faith holder of the check.”

The bank was guilty of negligence in overlooking the stop payment order and in paying appellee the amount of the check. This negligence, however, is not shown to have injured appellee in any respect. The duty was upon appellee to plead and prove his injury, if any, arising from appellant’s negligence. This is a matter peculiarly within his knowledge. Rule 94, Texas Rules of Civil Procedure; Red Ball Motor Freight Co. Inc. v. Bailey, Tex. Civ.App., 332 S.W.2d 411, Amarillo C.C.A., writ ref., n. r. e.; Natl. Loan & Exchange Bank of Columbia v. Lachovitz, 131 S.C. 432, 128 S.E. 10, 39 A.L.R. 1237.

Art. 342-712, Vol. 1A, Vernon’s Ann.Civ. St., of the Texas Banking Code of 1943 provides, in part, that, “The person primarily obligated to pay an item may at any time prior to presentment thereof for payment instruct the bank by or through which the same is payable not to pay such item, and shall each sixty (60) days thereafter renew such instructions. No bank shall be legally obligated to regard such instructions or renewals unless the same are in writing, dated, signed, and describe the item with certainty. After receipt of stop payment instructions in the form above provided prior to presentment for payment of the item, a bank shall exercise reasonable diligence not to pay the same, and if it thereafter negligently pays the item it shall be liable for the damages sustained in a sum not exceeding the amount of such item.”

Under this statute it is obvious that the bank was under no legal obligation to pay appellee the proceeds of the check upon its presentment for payment on October 16. As to the bank, appellee received from it $276.60 which he was not legally entitled to receive. This creates no equity in his behalf, rather it establishes, as to the bank, his lack of equity. All equities, in our opinion, lie with the bank. It has, so far as this record discloses, committed a harmless act of negligence with a resultant loss of $276.60. Restitution should be made unless some inexorable rule of law intervenes.

The right to recover money paid under a mistake of fact caused by carelessness, negligence or forgetfulness is too well established to be arguable. See 44 Tex.Jur. 2d, Sec. 77, p. 750. “The reason for the rule is that the payee ought not to retain what in conscience does not belong to him as against the person to whom in conscience it does belong.” Id., p. 752.

The conclusion of the Trial Court that appellee was not shown to have been unjustly enriched by having received the proceeds of check 7215 is refuted by the record insofar as such payment to him by the bank is concerned. He has the bank’s money, and he has no right to the bank’s money. This is enrichment; it is also unjust.

A check of itself is not an assignment of any part of the funds to the credit of a drawer with the bank, and the bank is not liable to the holder, unless or until it accepts or certifies the check. Sec. 189, Art. 5947, V.A.C.S. The appellant bank here accepted the check, but it did so under a mistake of fact. It is relief from this mistake which it now seeks.

Appellee emphasizes and strongly relies upon the Trial Court’s legal conclusion that he “was a good faith holder” when the check was paid by the bank.

We are unable to attach legal significance to this conclusion. There is no finding that he paid value for the check. Hence, he was not a bona fide holder for value, and he was not entitled to the rights or equities to which such holders are entitled. He was not a holder in due course because he was the payee in the instrument. Williams v. Jones, 122 Tex. 61, 52 S.W.2d 256.

We presume that the conclusion that appellee held the check in good faith was predicated on the Court’s finding that he in good faith believed the stop-payment order to have been rescinded when the check was presented for payment. This finding, no doubt, would exonerate appellee of mala fides in collecting the check, but it would not alter the fact that he was wrong in his belief and that such order had not been rescinded.

It is our opinion that the Court’s conclusion that appellee was a good faith holder of the check is legally irrelevant.

Appellee cites the case of Huffman v. Farmer’s Nat. Bank, Tex.Civ.App., 10 S.W. 2d 753, (1928), Eastland Civil Appeals, no-motion for rehearing filed, as authoritative in his behalf. In that case Huffman executed and delivered a check to Russell on the Farmer’s National Bank of Cross Plains. Huffman, before the check was presented for payment, instructed the bank not to pay it. The bank, thereafter, having orally advised another bank in Baird that Huffman had sufficient money on deposit to pay the check, paid it and charged it to Huffman’s account. Huffman sued the Cross Plains Bank for the amount of the check and Russell was impleaded. The Court, in its opinion, states that the proceeds of the check were deposited to the account of Russell. It also recites that Russell “sold” the check to the First State Bank of Baird. The Court then states that the “check was presented by a bona fide holder in the due course of business to the defendant bank for payment.” The Court held, “The payment, under the circumstances, was purely a voluntary act on the part of the bank, and it cannot recover the funds so paid out from the original payee, Russell, or any one else.”

This case is unsatisfactory to us for the reason that it is not clear whose right to the money the Court was adjudicating. If, as the Court states, the payee “sold” the check to the Baird Bank, then it was its money, and not the payees’, which was deposited to the account of payee. This would create a factual and legal situation different from the case before us, and as to which we express no opinion.

Such case is distinguishable for the reason that there the Cross Plains Bank consciously and deliberately chose to pay the check rather than to welsh on its implied promise of payment to the Baird Bank. This, the Court held, was voluntary action on its part. No such facts are present here.

Such case is also distinguishable here because it was decided long prior to the enactment of Art. 342-712, supra (1943), which fixes the liability of a bank for negligently violating a stop-payment order .regarding a check. This liability is for “the damages sustained” in an amount not to exceed the amount of the check.

It is our opinion that the Trial Court erred in rendering judgment against appellant. We, therefore, reverse the judgment of the Trial Court and .remand this cause in order that appellee may be given an oportunity to plead and prove his damages, failing in which, judgment should be rendered for appellant.

Reversed and remanded.

      . Art. 342-701, Yol. 1A, provides in part, “As used in this chapter the following terms, unless otherwise clearly indicated by the context, have the meanings specified below:
      “(a) The term ‘bank’ includes any person, firm or corporation engaged in the business of receiving and paying deposits. To the extent that the Legislature has authority to legislate relative to such banks the term includes national banks and banks outside this State.”

      . See authorities cited in foonote 184, p. 307, Vol. 32, Texas Law Review. See footnote 3, post.

      . In 32 Texas Law Review 259, there is an Article by Professors Keith E. Morrison and Joseph T. Sneed of the University Law faculty (1954) entitled Bank Collections: The Stop-Payment Transaction. — A comparative study — in which the authors have made a panoramic discussion of the problems in this area. A complete analysis of Art. 342-712, infra, is given, and we are indebted to their work. The following quotation from this Article, we believe, correctly interprets the Act:
      “Although there are no cases since the adoption of the Texas Act determining the extent to which the drawee bank is entitled to recover against prior parties, it also appears that the position of the drawee bank is favorable under the Texas Act in order to prevent unjust enrichment to third parties and unnecessary loss to the drawee bank.”


author: LANGDON, Justice.

text:
    ALTHEIMER & BAER, INC., Appellant, v. VERGAL BOURLAND HOME APPLIANCES et al., Appellees.
    No. 16438.
    Court of Civil Appeals of Texas. Port Worth.
    June 21, 1963.
    Rehearing Denied July 19,1963.

      See also 362 S.W.2d 201.
    Ungerman, Hill, Ungerman & Angrist, and W. M. Hill, Dallas, for appellant.
    Crocker & McDonald, Irby & McConnico, and Milledge McConnico, Fort Worth, for appellees.
   LANGDON, Justice.

This is an appeal from a summary judgment. On May 1, 1959, the appellant Al-theimer & Baer, Inc., a foreign corporation created and existing under the laws of the State of Illinois, instituted this suit against Vergal Bourland Home Appliances, a Texas Corporation, and Vergal Bourland individually to collect on 33 trade acceptance notes in the total principal sum of $11,676.-28, which were accepted by appellees, and duly signed for merchandise sold and shipped to them by the appellant, the full and prompt payment of which was unconditionally guaranteed by Vergal Bourland individually. Vergal Bourland answered by general denial and adopted the Vergal Bour-land Home Appliance Corporation’s original answer and cross-action. Thereafter the latter was adjudicated a bankrupt and Elmo Irby was substituted as cross-plaintiff in lieu thereof. The cross-action assertedly owned by Elmo Irby was severed from appellant’s action on the trade acceptance notes against the original defendants.

On January 26, 1962, the original defendants and Irby filed a motion for summary judgment contending that because the appellant, a foreign corporation, had not obtained a certificate of authority it was prohibited from maintaining its suit under the provisions of § A, Art. 8.18 of the Business •Corporation Act, Vol. 3A, V.A.T.S.

On February S, 1962, the original defendants herein filed a supplemental answer containing a plea in abatement based on the rsame grounds.

The summary judgment entered by the court on October 19, 1962, contained the following language, “that Altheimer and .Baer, Inc., take nothing against the Defendants by its suit; and that said Plaintiff’s suit be, and the same is hereby dismissed.” Although we have concluded that the judgment of the learned trial court must be reversed on other grounds herein.after stated, we deem it advisable to point out that a judgment denying a recovery .should not be entered against a nonquali-fied corporation. The judgment should be •one merely dismissing the suit. 14 Tex.Jur. 2d, p. 758, § 658, and cases cited therein.

Appellees filed a motion to strike the affidavit of Milton L. Altheimer on the .grounds it violated Rule 166-A, Texas Rules Civil Procedure. The hearing from which this appeal was taken was had on February 8, 1962, at which time the court took the matter under advisement. On June 7, 1962, the court by a letter to the attorneys advised that he was granting ap-pellees’ motion for summary judgment and requested their attorneys to prepare an or•der in accordance with his pronouncement. In the letter the court indicated that the previous affidavit of Altheimer contained ■conclusions. The appellant thereafter requested permission to file an additional affi•davit. The court granted permission and the additional affidavit was sworn to on June 19, and filed June 21, 1962. The record reflects that the court signed a certificate stating: “ * * * I felt that in my discretion I could and did consider the further affidavit of Milton L. Altheimer.” In a subsequent certificate the court stated: “ * * * I read the Affidavit which was filed after my pronouncement of judgment and found in it no grounds for change in my decision which I had announced on June 7, 1962.”

In our opinion the court had discretion under Rule 166-A, T.R.C.P., to permit the filing of the affidavit.

Since the record clearly shows that the court granted permission to file it and that it was read and considered by the court before the summary judgment was signed some 4 months later, we have concluded that the motion to strike the affidavit should be and same is hereby overruled.

The additional affidavit of Milton L. Al-theimer will therefore be considered as a part of the record in this case as it was before the trial court and considered by it.

The only remaining question to be determined on this appeal is as follows: Did the indebtedness which is made the basis of this suit arise out of transactions and activities which are essentially interstate in nature or intrastate ? If they were interstate the appellant may maintain its suit and if intrastate it may not.

In our opinion the evidence is not such as to warrant the trial court to find as a matter of law that the transactions involved were intrastate in nature. We find and hold that the evidence raised an issue of fact.

A review of the record reflects that the following facts are undisputed:

(1) The appellant, a foreign corporation, has not procured nor made any application for a certificate of authority from the Secretary of State of Texas.

(2) That before and during the pertinent period Mr. E. H. E. “Andy” Anderson, hereinafter referred to as Anderson, was employed by appellant as its sales representative in Texas and surrounding states and was authorized to solicit orders for transmittal to appellant’s home office in Chicago, Illinois, for acceptance. He was further authorized to make recommendations for the scheduling of advertising with regard to particular sales promotions and assist the customer in setting up displays for use at such times.

(3) The indebtedness evidenced by the thirty three (33) trade acceptance notes upon which this suit was initiated arose out of the sale of merchandise by appellant to appellees. The purchase orders were obtained by Anderson from appellees and forwarded by him to the appellant’s Chicago office for acceptance. The merchandise was shipped from Chicago, Illinois, to the appellees in Fort Worth, Texas. The purchase orders for such merchandise provided for shipment FOB the shipping point and thus title to all such merchandise vested in appellees upon receipt thereof by the carrier.

(4) The prepared advertising and promotional material utilized in the sales promotions were shipped each time along with the merchandise from Chicago, Illinois, to Fort Worth, Texas, in interstate commerce.

(5) The indebtedness evidenced by the trade acceptance notes has not been paid.

It is readily apparent from the undisputed facts above recited that the indebtedness evidenced by the trade acceptance notes arose out of transactions which were essentially interstate in nature. It now becomes necessary to examine the evidence on the disputed facts concerning the activities of Anderson in handling the sales promotions to determine if the interstate character of the transactions has been altered to such an extent that as a matter of law it has been converted to one that is intrastate in nature.

The contentions of the appellees as reflected by their pleadings and supported by the affidavit of Vergal Bourland are in essence that Anderson as agent for appellant, aside from his advisory role in making recommendations and suggestions and assisting in arranging of displays and instructing the sales personnel concerning displays and special features of the merchandise, also engaged in the following additional activities:

(1) He would and did arrange with the Fort Worth Star Telegram as to the size and dates of all newspaper advertising.

(2) He would and did make all arrangements with a local concern for handling of direct mail advertising when such medium was used. That in this connection he would and did determine the number of pieces to be mailed each day and the day or days for such mailings and issued instructions to the concern to prepare and mail same.

(3) He assisted in instructing the employees of appellees to set up displays of the merchandise and recommended to them the special features of the merchandise.

(4) That Anderson suggested down payment and weekly installments in payment of the merchandise.

(5) That following each sales promotion Anderson would instruct appellees to ship any unsold merchandise to another retail store, some of which were located in Texas, and that appellees would receive credit for such unsold merchandise shipped by it.

The appellant by its pleadings supported by controverting affidavit has denied such additional activity on the part of Anderson. It further contends that if Anderson did engage in such activities he did so without authority.

The first two contentions of the ap-pellees relating to Anderson’s role in handling the newspaper and direct mail advertising appear to have been resolved by the opinion in Sloan v. Miami Margarine Co., Tex.Civ.App., 247 S.W.2d 169, ref., n. r. e., in which it was held that the statute is not applicable when cooperative advertising and sales promotion are merely incidental to the interstate element of the transaction and essential to its completion. In the Sloan case, supra, the advertising costs were to be borne equally by plaintiff and defendant where as in this case all advertising was done in the name of and at the expense of the appellees.

The third and fourth contentions of the appellees to the effect that Anderson assisted in setting up displays and recommended special features of the merchandise and down payment and weekly installments in payment thereof were obviously calculated to promote the sale of merchandise owned by the appellees. The appellees were not obliged to abide by the suggestions or the recommendations made by Anderson or to accept his aid in setting up displays or instructing the sales personnel.

In examining these activities on the part of Anderson it is important to keep in mind that all of the merchandise involved was sold direct to appellees by appellant whereby it became the property of the ap-pellees. They were free to handle the merchandise in any manner desired. The fact that Anderson as agent for the appellant thereafter assisted the appellees’ salesmen in promoting the sale of such merchandise would not necessarily render it subject to the provisions of the Texas Business Corporation Act. Maury-Cole Co. v. Lockhart Grocery Co., Tex.Civ.App., 173 S.W. 262, (no writ history); see also 14 Tex.Jur.2d, pp. 705, 709 §§ 617 and 618 and cases cited therein,

In examining the fifth and final contention of the appellees concerning Anderson’s participation in the disposition of the unsold merchandise it is again emphasized that the title to all such merchandise was in the ap-pellees. As the owners thereof they were not compelled nor obligated to sell it or to ship it anywhere. As an accommodation to them however, the appellant extended to the appellees the option or privilege of shipping such unsold goods to other customers of the appellant and giving them credit on their account for goods so shipped. The shipment of such goods was handled by the appellees. The benefit derived therefrom in the way of credit allowances inured to the appellees. The shipment of such goods to other customers of the appellant in the United States and Canada actually replaced merchandise which the appellant might otherwise have sold to such customers. It would appear that whether the goods were shipped by the ap-pellees to points in Texas or elsewhere would be immaterial, as would the source of the information concerning names and locations of customers to ship to.

This conclusion would seem to be particularly appropriate since the unsold merchandise was the property of the appellees who had the option of retaining it or shipping it and receiving credit for it.

In summation it strikes us that most if not all of the activities on the part of Anderson which the appellees have complained of constituted a real effort on the part of Anderson to serve the best interests of his customers in promoting the sale of their merchandise.

The cases relied upon by the appellees involved contracts which were made and performed wholly within the state by local agents and have no application here.

In each case the transaction involved must be considered in its entirety. Whether the character of the business or transaction is interstate or intrastate must be determined from the facts of each particular case. 14 Tex.Jur.2d, pp. 705, 709, §§ 617 and 618.

As heretofore stated we are of the opinion that the court erred in granting the motion for summary judgment. Further we are of the opinion that unless additional facts are submitted to the court on further trial of this matter which would materially alter the interstate character of the transactions involved that the trial court could properly overrule the appellees’ plea in abatement and try the case on its merits.

Reversed and remanded.


author: COLEMAN, Justice.

text:
    TEXAS LIQUOR CONTROL BOARD, Appellant, v. FALSTAFF DISTRIBUTING COMPANY OF HOUSTON et al., Appellees.
    No. 14091.
    Court of Civil Appeals of Texas. Houston.
    May 9, 1963.
    Will Wilson, Atty. Gen., when appellant’s brief was filed, Waggoner Carr, Atty. Gen., when this case was submitted, Norman Suarez, Irwin R. Salmanson, Asst. Attys. Gen., Austin, for appellant.
    Jake Jacobsen, Austin, Leon Jaworski, W. H. Vaughan, Jr., Alton F. Curry, Houston, Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, of counsel, for appel-lees.
    Clark, Thomas, Harris, Denius & Winters, Martin Harris, Mary Joe Carroll, Austin, for amicus curiae in support of appellant.
   COLEMAN, Justice.

This is an appeal from the judgment of the District Court of Harris County, Texas, permanently enjoining the enforcement of orders of the Texas Liquor Control Board suspending the distributor’s license of Falstaff Distributing Company of Houston for forty-five days, and the agent’s beer license of George Willis.

The principal question involved is whether or not there is a right of appeal to the courts from an order of the Administrator of the Texas Liquor Control Board suspending such licenses.

No question was raised at the trial of this case as to the procedural regularity of the proceedings before the Deputy Administrator. Appellee presented evidence before the Deputy Administrator that the offenses with which it was charged did not occur. There were affidavits before the Deputy Administrator which reflected two violations of the Texas Liquor Control Act. At the trial in the District Court appellant presented a plea to the jurisdiction of the court based on its contention that Section 22 of Article 667, Vernon’s Penal Code, prohibited appeals from suspension orders and prohibited suits of any nature seeking to restrain the Board or Administrator or any other officer from enforcing an order of suspension. The trial court denied this plea and proceeded to hear evidence offered by appellee. Appellant declined to offer any evidence and the trial court entered its judgment permanently enjoining the orders.

Appellant has urged Three Points of Error: (1) that the trial court erred in assuming jurisdiction over the purported appeals since they were from orders suspending licenses; (2) that the trial court erred in its conclusion that the suspensions were tantamount to cancellation; and (3) that the trial court erred in enjoining the enforcement of a criminal statute.

The principal question is the effect to be given to that portion of Sec. 22, Art. 667, Vernon’s Penal Code, reading:

“No appeal shall lie from an order of suspension of license. No suit of any nature shall be maintained in any Court in this State seeking to restrain the Board or Administrator or any other officer from enforcing any order of suspension issued by the Board or Administrator; * *

The problem is raised by the fact that Section 14 of Article 666, Vernon’s Penal Code, provides:

“Unless specifically denied herein an appeal from any order of the Board or Administrator refusing, cancelling, or suspending a permit or license may be taken to the District Court of the County in which the aggrieved licensee or permittee, or the owner of involved real or personal property may reside.”

The first comprehensive act regulating the manufacture, distribution and sale of intoxicating beverages was enacted as House Bill 77 at the Second Called Session of the 44th Legislature in 1935. General Laws of Texas, 44th Leg., 2nd Called Session, p. 1795 et seq. Section 14 of this Act provided for an appeal to the District Court from any "decision, rule, or order of the Board.” The Board was given no authority to suspend licenses issued to those engaged in the manufacture, distribution or sale of beer, although authority was given the Board to cancel or suspend permits to engage in the liquor business under certain conditions. A clear distinction was made in this Act between “permits” required to engage in the liquor trade and “licenses” required to carry on trade in beer, which has been followed generally in subsequent amendments.

In 1937, at the regular session, the 45th Legislature enacted a law amending the Liquor Control Act of the 44th Legislature. This Act contained numerous amendments to Section I and completely rewrote Section II of the original Act. Section 14 of Art. I of the original Act was amended to read as it now appears in Section 14 of Art. 666, V.P.C., and Section 22 of Article II of the Amendatory Act has been codified as Section 22, Art. 667, V.P.C. By the amendatory Act the Board was authorized to suspend beer licenses in two instances. Section 21 authorized suspension of the license of a retail beer dealer for thirty days in the event an act constituting a breach of the peace occurred upon the premises covered by the license, and further provided that at the expiration of the period the license should be revoked unless the licensee should, during the period, show to the satisfaction of the Board or Administrator that the act was beyond his control and did not result from his improper supervision of the conduct of persons permitted by him to be on the premises. Then followed Section 22 providing:

“Any order of the Board or Administrator cancelling a license shall have the effect that it shall immediately be unlawful, after notice thereof is given, for the holder of such cancelled license to sell beer for a period of one year thereafter except during the period that the order of cancellation is superseded pending trial, or unless he shall prevail in any final judgment, rendered upon appeal as herein provided. Appeals from decisions or orders of the Board or Administrator cancelling or refusing a license may be had under the same conditions and provisions prescribed in Section IS of Article I of this Act.
“No appeal shall lie from an order of suspension of license. No suit of any nature shall be maintained in any Court in this State seeking to restrain the Board or Administrator or any other officer from enforcing any order of suspension issued by the Board or Administrator; and if at any hearing thereon it be shown to the satisfaction of the Board or Administrator that any alcoholic beverage was sold on or from the premises covered by a license during the period of suspension, then such proof shall be sufficient to warrant cancellation of the license.
“The cancellation or suspension of any license shall not excuse nor relieve the violator from the penalties provided in this Article.”

A number of causes sufficient to authorize the Board or Administrator to cancel licenses to sell beer were set out in Section 19 of the amendatory Act and the Board or Administrator was authorized to suspend the license of any manufacturer of beer when such licensee does business in violation of the Act or the rules and regulations of the Board until the licensee obeys all lawful orders of the Board requiring such licensee to cease and desist from such violations. By amendment in 1943, Section 19A was added to Art. 667, V.P.C., permitting suspension of licenses, at the discretion of the Board, in all instances where cancellation was previously provided.

Numerous grounds for the suspension of permits to sell liquor are enumerated in Section I of the amendatory Act. In many instances the causes for suspension or cancellation of permits are duplicated in the causes for cancellation of licenses.

Section II of the amendatory Act made specific provision for appeal to the District Court from the action of a county judge, the Board or the Administrator in denying an application for a beer license. It set out the procedure and venue for such an appeal and provided for a trial de novo. Art. 2, Sec. 6, Acts of the 45th Leg., Reg.Session, General Laws of Texas, p. 1101. No similar provision is found in Section II regarding the cancellation and suspension of a license to sell beer. It appears both from the language used in Section 14 of Art. I and from a consideration of the entire amendatory Act of 1937 and the provisions of the original Act of 1935, that the right to appeal, and the provisions pertaining to procedure, venue and trial de novo, contained in Sec. 14 applied to beer licensees as well as to holders of liquor permits.

Considered alone that provision of Sec. 22, Art. II of the amendatory Act providing that no appeal shall lie from an order of suspension of license conflicts with the provision of Sec. 14 of Art. I granting appeals from orders suspending licenses unless specifically denied. The provision of Sec. 22 was not worded as a specific denial, but as a general denial, of the right to appeal from any order of suspension of a license. A specific denial of the right to appeal from an order of cancellation or suspension is contained in Sec. 24, Art. I of the amendatory Act of 1937.

It is a cardinal rule for the construction of a statute that all of its provisions should be construed together, and effect given to all if possible. Lufkin v. City of Galveston, 63 Tex. 437; Spence v. Fenchler, 107 Tex. 443, 180 S.W. 597; Martin v. Sheppard, 129 Tex. 110, 102 S.W.2d 1036. The court should determine the purpose of the legislature and give some effect to every express declaration of legislative intent. Citizens National Bank of Hillsboro v. Graham, 117 Tex. 357, 4 S.W.2d 541; Texas Bank & Trust Co. v. Austin, 115 Tex. 201, 280 S.W. 161. In the case of conflict between a general and a special provision of a statute, the special provision prevails. Nelson v. Texas Employment Commission, Tex.Civ.App., 290 S.W.2d 708, error ref.

In National Surety Corporation v. Ladd, 131 Tex. 295, 115 S.W.2d 600, the Supreme Court of Texas said:

“In a statute like the one before us, it is difficult to define in detail an exact rule for every question that may be presented in the course of the administration of such statute. The dominant objects sought to be expressed in statutes can be stated only in general terms, and the rule of common sense should govern those called upon to construe and enforce them. It is impossible to pick out certain words or phrases or sentences, and detach them from the context of the law, and when thus isolated define them and arrive at the intention of the Legislature expressed in the law. A statute should be construed as a whole in order to arrive at the purposes for which it was enacted.
“Courts are not at liberty to thwart the plain intention of the Legislature expressed in a law that is constitutional, and where the intention is plain the law will be enforced, regardless of the consequences. But where the intention is not clearly expressed in the statute, the rule applies which is stated in 59 Corpus Juris, page 969, as follows: Where, however, the intention of the legislature is so inadequately or vaguely expressed that the court must resort to construction, it is proper to consider the results and consequences of any proposed construction, and the court will, if possible, place upon the statute a construction which will not result in injustice, oppression, hardship, or inconvenience, unreasonableness, prejudice to public interest, or absurd consequences.’ ”

In Lufkin v. City of Galveston, supra, Chief Justice Willie, speaking for the Court, said:

“It is a cardinal rule in the construction of constitutions and statutes that the whole instrument must be taken together- — -the whole scheme had in view by the law-making power must be understood and carried out; and where there are apparent conflicts or inconsistencies between different parts of the instrument, that construction must be adopted which will give effect to every part, rather than that which will render any portion nugatory and of no avail.
“As a natural result of this principle, it follows that where in one section a general rule is prescribed, which without qualification would embrace an entire class of subjects, and in another section a different rule is prescribed for individual subjects of the same class, the latter must be construed as exceptions to the general rule, and be governed by the section which is applicable to them alone.
“This gives effect to both sections, and prevents the otherwise necessary result that the special section would entirely fail to have any force whatever. Erwin v. Blanks, 60 Tex., 583; Warren v. Shuman, 5 Tex. [441] 442; Sedgw. on Con. & Stat. Law, 242; Vattel’s Rules of Construction, No. 8.”

A reading of the entire amendatory Act of 1937 convinces us that the legislature used the word “license” or “licensee” with reference to beer and the word “permit” or "permittee” with reference to wine, malt liquor or distilled spirits. The provision of Sec. 22, Art. II, of the amendatory Act (Art. 667-22, V.P.C.) denying the right of appeal had reference to an appeal from the suspension of a beer license. The provisions of Sec. 14, Art. I, of the amendatory Act (Art. 666-14, V.P.C.) was intended to apply to appeals by any permittee or licensee. With the exceptions previously noted, persons holding licenses to sell beer were liable to be penalized for violations of the Act or the regulations of the Board by cancellation of the license in addition to fines and bond forfeitures. No significant improvement in the conciseness or intelligibility of the Act would have been made by a general provision denying appeals from orders suspending licenses instead of separate provisions specifically denying such appeals in each instance where such suspensions were authorized.

A statute must be given the interpretation which most nearly accomplishes the legislature’s intention as ascertained from the words of the statute and all of its terms. Barber v. Giles, 146 Tex. 401, 208 S.W.2d 553.

Section 19, Art. II, of the amendatory Act of 1937 deals with the causes for cancellation of licenses and Section 20 deals with the procedure for hearing and notice. Section 21 authorizes the suspension of the license of a retail beer dealer where a breach of the peace occurs on his premises and for cancellation if he fails to exonerate himself of responsibility for the occurrence. Section 22 is referable to both Sections 20 and 21 in that it deals with the effect of the cancellation of a license, and specifically authorizes appeals from orders cancelling or refusing a license, and in a separate paragraph specifically denies the right to appeal from an order suspending a license. In the same paragraph it is provided that proof of the sale of any “alcoholic beverage” from the premises covered by a license during the period of suspension shall be sufficient to warrant cancellation of the suspended license. The final paragraph of Section 22, providing that cancellation or suspension of any license shall not relieve the violator from other penalties provided by the Act, shows that the legislature was dealing with all licensees and not with retail beer dealers alone.

In Laughter v. Seela, 59 Tex. 177, a case in which it was urged that two acts of the legislature, passed at the same session and taking effect on the same day, were in conflict by reason of general language contained in one, the court said: “The general rule of statutory construction is that, if there is nothing in the statute to limit its general words, they must have general effect. Courts cannot arbitrarily add or subtract from them. * * * ”

It is possible that the legislature had in mind only retail beer dealers when it considered the provision denying appeals from orders of suspension since they were the only licensees for which such a punishment was authorized, the provision concerning manufacturers apparently being a device to enforce obedience rather than to punish disobedience. However, the words used plainly applied to all licensees, and the legislature did not see fit to limit this wording when the Liquor Control Act was amended in 1943 so as to permit suspension for acts previously punishable only-by fine and cancellation of license.

There is something in the Act to limit the general words of Section 14, Art. 666, V.P. C., but there is nothing limiting the general words used in Section 22, Art. 667, V.P.C.

By construing the denial of appeals provision as controlling orders suspending licenses to sell beer as distinguished from permits to sell wines or liquors, effect can be given to all of the provisions of the Act and to the probable intention of the legislature.

Our 'conclusions in this regard are strengthened by a consideration of paragraph 1:6 of Section IS, Art. I, of the original Texas Liquor Control Act of 1935 as .amended by the Act of 1937, General Laws ■of Texas Acts of the 45th Leg., Reg. Session, p. 1072, reading:

"All such permits shall be applied for and issued, unless denied, and fees paid, upon the same procedure and in the same manner and upon the same facts and under the same circumstances, and for the same duration of time, and shall be renewable in the same manner., as required and provided to govern application for and issuance of Retail Beer Dealer’s Licenses under Article II of this Act, and shall be subject to cancellation or suspension for any of the reasons that a Retail Beer Dealer’s License may be cancelled or suspended, and upon the same procedure. All alcoholic beverages which the holders of such permits are authorized to sell may be sold with the same restrictions as provided in Article II governing the sale of beer, as to prohibited hours, local restrictions, age of employees, installation or maintenance of barriers or blinds in openings or doors, prohibition of the use of the word ‘saloon’ in the signs or advertising and subject to the same restrictions upon consumption of wine as provided for beer in the case of Retail Beer Dealers in Section 16 of Article II of this Act. For the violation of any applicable provisions of Article II the holders of such permits shall be liable for penalties provided in Article II; for the violation of any other provision of this Act the holders of such permits shall be subject to penalties provided in Article I of this Act.” (emphasis added)

Consideration has also been given to the definitions of “licensee” as found in Sec. 1 (e) of Art. II, Texas Liquor Control Act, General Laws of Texas, Acts of the 45th Legislature, Reg. Session, p. 1095, and "permittee” as found in Sec. 3(a) (12), Art. I, Texas Liquor Control Act, Acts of 51st Leg., Reg. Session, General and Special Laws of Texas, Ch. 543, p. 1013. This Act also amended Sec. 12, Art. I, of the Texas Liquor Control Act so as to provide that the Board or Administrator could cancel or suspend for a period not to exceed sixty days any “permit” on a finding that the “permittee” was domiciled with a person having a financial interest in any establishment engaged in selling beer at retail, and Sec. 11 of the same article authorizing the denial of a “permit” to any applicant having a financial interest in an establishment authorized to sell beer at retail, with certain exceptions.

By reason of Art. 667-22, V.P.C., no appeal to the courts is permitted from the order of the Administrator suspending the license to sell beer of Falstaff Distributing Company of Houston and the agent’s beer license of George Willis. Texas Liquor Control Board v. Scrivano, Tex.Civ.App., 256 S.W.2d 598.

Appellant Falstaff says that a suspension of its license for any substantial period of time will result in a cancellation of its distributor’s contract with the manufacturer and that this fact was made known to the Administrator at the time of the hearing. It contends that under such conditions the suspension order was, in effect, an order for the cancellation of its license and, therefore, is appealable. The trial court held that the order of suspension was tantamount to a cancellation.

The Texas Liquor Control Act authorizes the Board or the Administrator to cancel or suspend the licenses or permits of those who deal in the manufacture, distribution or sale at retail of beer and intoxicating beverages as a punishment for the violation of the law. Dealers in these commodities enter into the business knowing that their authorization to continue their business may be suspended for such a violation. The fact that, with such knowledge, they might elect to enter into a private contract with their supplier which authorizes cancellations in the event their authority to transact business should be suspended, cannot be permitted to control the discretion of the Board or the Administrator in assessing punishments authorized by the Act. The result of such a ruling would be to permit all manufacturers of beer to nullify the provisions of the Act prohibiting appeals from suspension orders in the case of their distributors and agents by placing such a provision in their contracts.

The Texas Liquor Control Act provides that authority to engage in any phase of the business of selling intoxicating beverages is a privilege granted by the state subject to suspension or revocation. The State of Texas is authorized under its police powers to regulate the industry. Under such conditions a right to appeal from the decisions of the administrative agency charged with the duty of regulation is not required by the Constitution of Texas or of the United States. Texas Liquor Control Board v. Scrivano, supra.

In view of our disposition of this case, we find it unnecessary to consider the third Point of Error raised by appellant.

The judgment of the trial court is reversed and the case is ordered dismissed.