author: RICHARDS, Justice. HUGHES, Justice

text:
    The STATE of Texas, Appellant, v. Glenn L. KINGHAM, D/B/A Kingham Conoco Station, Appellee.
    No. 10907.
    Court of Civil Appeals of Texas. Austin.
    Jan. 3, 1962.
    Rehearing Denied Jan. 24, 1962.

      Will Wilson, Atty. Gen., Marvin Thomas, Asst. Atty. Gen., Sam Lane, Asst. Atty. Gen., for appellant.
    Donald W. Callahan, Houston, for appel-lee.
   RICHARDS, Justice.

This is a suit by the State of Texas against Glenn L. Kingham d/b/a Kingham Conoco Station to recover unemployment compensation taxes and penalties under the Texas Unemployment Compensation Act, Art. 5221b-1 et seq., Vernon’s Civil Statutes, for the year 1958 and the first three quarters of 1959. The case was tried before the Court without a jury and resulted in a judgment in favor of Kingham, from which judgment the State of Texas has perfected this appeal.

At the outset we are confronted with the question of the jurisdiction of the Trial Court. It appears from the petition filed in the 98th District Court of Travis County, Texas, that the suit was brought under the provisions of Art. 5221b-12(b), the venue being laid in Travis County, Texas “as this is a suit for taxes other than ad valorem” under the provisions of Arts. 1.04(1) and 1.04(2), Chap. 1, Title 122A, V.C.S.

Art. 5221b-12(b), V.C.S. is in part as follows :

“Collections: If, after due notice, any employer defaults in any payment of contributions, penalties or interest thereon, the amount due shall be collected by civil action in the name of the State and the Attorney General, and the employer adjudged in default shall pay the cost of such action; * *

Article 1.04, Title 122A provides that all delinquent State taxes and penalties therefor due and owing to the State of Texas of every kind and character whatsoever, including all excise and all other State taxes which become delinquent, other than State ad valorem taxes on property, shall be recovered by the Attorney General iñ a suit brought by him in the name of the State of Texas and the venue and jurisdiction of all such suits is conferred upon the courts of Travis County.

The unemployment compensation taxes or contributions sought to be recover* ed by the State are in the nature of excise taxes and as such are State taxes other than ad valorem. Friedman v. American Surety Co., 137 Tex. 149, 151 S.W.2d 570, 576. As alleged in the petition, the State seeks to recover contribution or excise taxes in the sum of $305.94, together with statutory penalties which had accrued under Art. 5221b-12(a) in the amount of $56.00, together with additional penalties accruing before and after the entry of final judgment, which, under the provisions of Art. 5221b-12(c) cannot exceed 25% of the amount of the taxes due at the time suit is filed.

It is provided in Sec. 8, Art. V, Constitution of Texas, Vernon’s Ann.St., that the District Court shall have original jurisdiction of all suits when the matter in controversy shall be valued at or amount to $500.00 exclusive of interest and by Sec. 16, Art. V the County Court is vested with exclusive original jurisdiction in all civil cases where the matter in controversy shall exceed $200.00 and not exceed $500.00, exclusive of interest. It is therefore clear from the face of the petition that the 98th District Court of Travis County was without jurisdiction of the subject matter of this suit when it was filed, since the total amount which could be recovered by the State is less than $500.00.

The question of jurisdiction was not assigned as error by either of the parties. However, the lack of jurdisdiction of the Trial Court over either the parties -or the subject matter of the suit is a question of fundamental error which can be raised at any time by this Court of its own volition. This Court has both the authority .and it is its duty to consider fundamental error apparent on the face of the record although not assigned, and the exercise by the Trial Court of jurisdiction where none •existed is fundamental error. Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979, 983; Wagner v. Warnasch, 156 Tex. 334, 295 S.W.2d 890, 893; McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265, 266; Murray v. Brisco, Tex.Civ.App., 209 S.W.2d 976, 977, no writ history.

The State of Texas has filed a supplemental brief contending that since section 8, Art. V, Constitution of Texas, provides that the District Court shall have •original jurisdiction in “all suits in behalf •of the State to recover penalties, forfeitures and escheats” and in its petition the recovery of statutory penalties is sought, the '98th District Court of Travis County, Texas was vested with original jurisdiction of this •cause under the opinion of this Court in Lally v. State, Tex.Civ.App., 138 S.W.2d 1111, no writ history.

The Lally case was a venue case as is ■shown by the following quotation from the •opinion upon which the State of Texas relies:

“The question raised as to whether the District Court has jurisdiction of the suit because the amount of the contributions or taxes sued for is less than .$500, is not determinable on this appeal from the interlocutory order determining only the venue issue. But if so, the •contention is without merit because the suit is also one for penalties due the State, and Sec. 8, Art. 5, of the State •Constitution, Vernon’s Ann. St., provides that, ‘the District Court shall have original jurisdiction * * * in all suits in behalf of the State to recover penalties, * * ”

It is manifest that the holding by Judge ZBlair was obiter dictum and therefore is not binding since the Supreme Court of Texas did not pass upon the question. The Lally case has been cited and approved in many opinions by the Supreme Court and the Courts of Civil Appeals of Texas but only upon the questions of venue and the holding that the contributions due under the Texas Unemployment Act are “excise” taxes.

As stated above, this suit is brought for the recovery of contributions under the Unemployment law in the nature of excise taxes. The failure to pay the contributions when due causes the penalties sought to be recovered in this suit to accrue by operation of law. Art. 5221b-12(a), V.C.S.; Quick Pay Ins. Co. v. State et al., Tex.Civ.App., 225 S.W.2d 243, no writ history.

It is substantive law in Texas that a suit to collect delinquent taxes and penalties is a suit on debt and should be brought in the court having jurisdiction of the amount. State v. Trilling, Tex.Civ.App., 62 S.W. 788, no writ history; Delling v. Waddell, Tex.Civ.App., 64 S.W. 945, no writ history; Aquilla State Bank v. Knight, 60 Tex.Civ.App., 221, 126 S.W. 893, no writ history.

Since the amount here in controversy exceeds $200.00 and does not exceed $500.00, the County Court at Law of Travis County, Texas is vested with original jurisdiction of this suit and the 98th District Court of Travis County being without jurisdiction, the judgment of the Trial Court is reversed and the suit ordered dismissed.

Reversed and Dismissed.

On Motion for Rehearing.

In our original opinion it was stated that the opinion of this Court in Lally v. State, Tex.Civ.App., 138 S.W.2d 1111, no writ history, had been cited and approved in many opinions by the Supreme Court and the Courts of Civil Appeals of Texas “but only upon the questions of venue and the holding that the contributions due under the Texas Unemployment Act are ‘excise’ taxes.” Such statement was erroneous in part since in the Motion for Rehearing filed by the State of Texas our attention is directed to the opinion by the El Paso Court of Civil Appeals in Harry Kestner v. State of Texas et al. in which application for writ of error was filed in the Supreme Court of Texas October 11, 1942 and was refused for want of merit. In this opinion, which was not reported at the request of the Court of Civil Appeals, the Lally case is cited and approved. Since the opinion in the Kestner case was not reported, reference thereto • could not be found either in the Texas Writ of Error Tables or in Shepard’s Citator, as a result of which the erroneous statement has at least some justification.

The opinion of the El Paso Court of Civil Appeals is in part as follows:

“The suit was to recover $101.01 unemployment contributions and $12.88 interest and penalties alleged to be due for the year 1938 under Art. 5221b, Vernon’s Statutes, 1925.”

The opinion then recites that among other defenses the defendant filed a plea to the jurisdiction which was overruled and states that :

“Under the authority of Lally v. State, supra, there is no error in overruling the plea to the jurisdiction. It is there held the sum sued for are penalties and the jurisdiction fixed by sec-. 5, Art. 8 [art. 5, § 8] of the Constitution of the State.”

After the Court of Civil Appeals had affirmed the judgment in favor of the State, Kestner filed an application for writ of error in the Supreme Court of Texas, docketed as Application No. 26602. The application for writ of error contained forty assignments of error, only the first six of which were briefed. The 21st assignment of error was directed to the error of the Trial Court in overruling the plea to the jurisdiction and the .25th assignment of error was directed to the action of the Trial Court in overruling the special exception directed to the jurisdiction of the Trial Court.. Neither of these assignments of error were-briefed.

The application for writ of error being-filed after the effective date of the Texas-Rules of Civil Procedure, we must presume that since the 21st and 25th assignments were not briefed as required by Rules-418 and 469, the Supreme Court of Texas did not consider either assignment since they were not properly briefed and therefore-were waived. Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396, 401. Since the Supreme-Court refused the application for want of merit and not by straight refusal, it is presumed that the quoted holding on the jurisdictional question in the opinion of the-Court of Civil Appeals was not approved..

Appellant also cites the case of Erwin v. Blanks, 60 Tex. 583, in which it was held that the provision in Sec. 8, Art. V of the-Texas Constitution giving the District Courts jurisdiction of all suits for trial of right to property levied upon by virtue of any writ of execution, sequestration or attachment, when the property levied on shall be equal to or exceed in value $500.00 is not controlled by Sec. 16, Art. V providing that-the County Court shall have exclusive jurisdiction in all civil cases where the matter in controversy shall exceed in value $200.00' and not exceed $500.00, exclusive of interest. The Supreme Court held that under the rules of construction that where a conflict exists the general provision shall yield' to a special provision, the special provision, governing suits for trial of right to property contained in Sec. 8, Art. V controlled..

Appellant contends that under the foregoing rule the provision contained in Sec. 8, Art. V that the District Court shall have-original jurisdiction “in all suits in behalf of the State to recover penalties, forfeitures and escheatsis a special provision which-prevails over the general provision contained in Sec. 16, Art. V giving the County-Courts exclusive jurisdiction of civil cases-where the amount in controversy exceeds-the sum of $200.00 and does not exceed $500.00 exclusive of interest.

As stated in the original opinion, it affirmatively appears from the petition filed by the State of Texas that it is a suit for taxes other than ad valorem. The penalties sought to be recovered by the State are penalties which are imposed by operation of law because of appellee’s failure to pay the taxes when they became due. It is axiomatic that if a tax is paid when it becomes due under the law no penalty is imposed or can be recovered but when the taxpayer fails to pay a tax when it becomes due under the law, the penalty for failure to comply with, the law is automatically assessed against the taxpayer. Conversely stated, if the tax is not delinquent, no penalty attaches or can be recovered.

If the State here sought the recovery of the penalties alone without seeking to recover the delinquent taxes, there would be no question that the suit, regardless of the amount involved, must be filed in the District Court. Or if the suit was for the recovery of ad valorem taxes on real property secured by a statutory lien for which foreclosure is sought, only the District Court would have original jurisdiction thereof under Sec. 8, Art. V. But here, there is no statutory provision giving the State any lien upon property, real or personal, for delinquent taxes or penalties, State v. Mauritz-Wells Co., 141 Tex. 634, 175 S.W.2d 238, and therefore the suit is primarily a suit for personal debt and should be brought in the court having jurisdiction of the amount involved.

We adhere to the conclusion of law stated in the original opinion and appellant’s motion for rehearing is overruled.

Motion Overruled.

HUGHES, Justice

(dissenting).

On February 20, 1870, Geo. W. Paschal in a preface to Volume Thirty of his Texas Reports stated:

“It is proper to explain that, under other provisions of the law of that year, the court designated what opinions should be published. The consequence is that some opinions are not published. This mode, which commenced with the court over which Chief Justice Moore presided, and, to a limited extent, has been continued, has caused inquiries for unpublished decisions. In what light decisions withheld from publication can be regarded is for the profession and the courts to determine. Those who know the value of the smallest precedent must regret that all are not published: it matters little if they but affirm some well-settled principle, or if they have been overruled. These very facts are often valuable to show that a principle has been settled, or else that it was once erroneously ruled.” (Italics supplied.)

The’wisdom of this statement is exemplified here. The unreported case of Kestner v. State, cited in the majority opinion on rehearing, unearthed by diligent counsel for the State, is, as far as I am concerned, decisive on the question of jurisdiction of the Trial Court.

Rule 496, Texas Rules of Civil Procedure, provides that if a party “elects to file in this (Supreme) court a brief in addition to the brief filed in the Court of Civil Appeals” it shall conform to certain prescribed rules.

This rule, it seems to me, clearly means that a party to a writ of error proceeding in the Supreme Court may rely upon his brief filed in the Court of Civil Appeals, but that if he elects to file a brief in the Supreme Court it will be cumulative of his brief filed in the Court of Civil Appeals.

The brief filed in the Court of Civil Appeals in Kestner is not available. From the Court’s opinion in that case, it would appear that the question of jurisdiction of the Trial Court was briefed.

I do not believe that the jurisdictional question was waived in Kestner. Furthermore, I do not believe a jurisdictional question can be waived. The error here, if there was error, was apparent on the face of the record, and was fundamental error.

I respectfully dissent.


source: Caselaw Access Project

author: MURRAY, Chief Justice.

license: Public Domain

text:
    Edmonia Tenberg LEACH, Appellant, v. Herman BROWN et al., Appellees.
    No. 13832.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 10, 1962.
    Rehearing Denied Feb. 14, 1962.
    Fred V. Klingeman, Karnes City, Lang, Byrd, Cross, Ladon & Oppenheimer, San. Antonio, for appellant.
    Vinson, Elkins, Weems & Searls, Thomas Fletcher, Roy L. Merrill, Houston, Morrill & Patton, Beeville, Dean J. Capp, Houston, Scarborough & Roberts, Kenedy, Butler, Binion, Rice & Cook, Houston, Cox, Smith & Smith, San Antonio, Neal Powers, Jr., Houston, for appellees.
   MURRAY, Chief Justice.

This is the fourth time this cause has-been before us. Our opinion on the first appeal is found in Tex.Civ.App., 251 S.W.2d 553, styled Leach v. Brown et al., opinion dated October 15, 1952, writ refused. In that suit Edmonia Tenberg Leach sought to recover the sum of $4,910.51, alleged to-be due her as royalty under the provisions, of an oil, gas and mineral lease executed by her on July 10, 1944, covering a one-half interest in 177 acres of land, a part of' the James Johnson Survey in Karnes County, Texas. She further alleged that her interest in the 177 acres, known as “The-Tenberg Lease,” had been invalidly- pooled or unitized with other leases in the Burnell Field, and that she was entitled to 7/16 of 1/8 of the royalty from her land, and that-the other lease and royalty owners in the-Burnell Field had no interest in the 7/16-of the 1/8 of the royalty. Mrs. Leach sued only for money alleged to be due her, but she could not recover unless her interest-■in the 177 acres of land was freed from the unitization agreement.

The trial court held that the other lease and royalty owners in the Burnell Field were indispensable parties to the suit, and upon Mrs. Leach’s refusal to amend, dismissed her suit, and on appeal this Court affirmed the judgment of the trial court. The Supreme Court refused to grant a writ of error, and thus this judgment of dismissal became final.

Thereafter, on August 7, 1953, Mrs. Leach filed a pleading under the same title and number as the original suit, and styled such pleading as “Plaintiff’s First Amended Original Petition.” The trial court sustained pleas of abatement to that petition and again dismissed the cause, and Mrs. Leach again appealed to this Court. In an opinion styled Leach v. Brown et al., Tex.Civ.App., 287 S.W.2d 304, a majority of this Court decided that this appeal was from an attempt to file an amended pleading in a disposed of cause and ordered the appeal dismissed. Justice Norvell filed a dissenting opinion expressing the belief that the petition was improperly described .as an amended petition, and improperly given the number of the old cause, but was sufficient to constitute the filing of a new suit. The Supreme Court granted a writ of error and agreed with Justice Norvell’s dissenting opinion, and in an opinion reported in 156 Tex. 66, 292 S.W.2d 329, styled Leach v. Brown, reversed our majority decision and remanded the cause to this Court for the purpose of passing upon other questions raised in the appeal.

This Court in Leach v. Brown, Tex.Civ.App., 298 S.W.2d 185, decided that this new suit, filed August 7, 1953, was such a suit as might be filed as a class suit, and reversed the judgment of dismissal and remanded the cause to the trial court.

This new suit is essentially the same suit as Mrs. Leach’s original suit. She is still suing for the purpose of trying to free her one-half interest in the 177 acres known as the “Tenberg Lease”, and from the Burnell Unitization Agreement executed on February 22, 1949, and recorded in both Bee and Karnes Counties on February 24, 1949. Thus this new suit was filed four years, five months and thirteen days after the Unitization Agreement was filed for record, but due to her coverture was not barred by the four-year statute of limitation. Article 5529, Vernon’s Tex.Civ. Stats.

Thereafter the cause proceeded in the trial court as a class suit, the necessary parties of the various classes having been made parties. Both sides made motions for summary judgment. Appellant’s motion was as to liability only, while appellees’ motion was on the whole case. Appellant’s motion was overruled, but appellees’ was granted. The plaintiff below, Edmonia Tenberg Leach, has prosecuted this appeal.

The principal points raised by appellant in this appeal turn upon the interpretation or construction to be given paragraphs 4 and 12 contained in the oil and gas lease executed by Mrs. Tenberg, a feme sole, as lessor, to M. H. Marr and Herman. Brown, in equal proportions as lessees, covering an undivided one-half interest in a tract of land located in Karnes County, containing 177 acres, more or less, and now known as the “Tenberg Lease”. This lease was signed and acknowledged by Mrs. Ten-berg on June 10, 1944, and recorded in the Deed Records of Karnes County, Texas, on June 12,1944.

Paragraph 4, which is a part of a printed form used by the parties, reads as follows:

“4. Lessee, at its option, is hereby given the right and power to pool or combine the acreage covered by this lease or any portion thereof with other land, lease or leases in the immediate vicinity thereof, when in Lessee’s judgment it is necessary or advisable to do so in order properly to develop and operate said premises in compliance with the spacing rules of the Railroad Commission of Texas or other lawful authority, or when to do so would, in the judgment of Lessee, promote the conservation of the oil and gas in and under and that may be produced from said premises, such pooling to be into a unit or units not exceeding 40 acres each. Lessee shall execute in writing an instrument identifying and describing the pooled acreage. The entire acreage so pooled into a tract or unit shall be treated, for all purposes except the payment of royalties on production from the pooled unit, as if it were included in this lease. If production is found on the pooled acreage, it shall be treated as if production is had from this lease, whether the well or wells be located on the premises covered by this lease or not. In lieu of the royalties elsewhere herein specified, Lessor shall receive on production from a unit so pooled only such portion of the royalty stipulated herein as the amount of his acreage placed in the unit or his royalty interest therein on an acreage basis bears to the total acreage so pooled in the particular unit involved.”

Paragraph 12, which was a typed-in paragraph, reads as follows:

“12. Lessee shall have the continuing and recurring right as to all or any part of the land covered hereby to pool and/or combine and/or unitize the leasehold estate and the royalty estate created hereby as to the gas and condensate and all other hydrocarbons contained in said gas with similar estates in other lands so as to form, by such combinations, a unit or units embracing all or part of the land overlying the producing reservoir or reservoirs for the production of gas and condensate and all other hydrocarbons contained in the gas by ordinary production methods or through a cycling plant or plants; and in the event such unit is formed, lessors shall receive as royalty from the unit production of gas and condensate and all other hydrocarbons contained in the gas and extracted therefrom, the proportionate part of the royalties herein provided for. The drilling of and production from a unit well or wells or operations upon a unit which includes all of the land covered hereby shall maintain this lease in force as to all of the land covered hereby in the same manner and to the same extent as though such operations were upon or such production were from the identical land covered hereby even though such operations are on or such production is from other land within such unit. In the event any portion of the leased premises is included in a. unit furnishing gas to a cycling plant or plants, lessee or the owner of such plant (through permission of lessee) may drill and operate an input well or wells on such unitized portion of the lease and any such input well shall have the same effect as to maintaining this lease in force as though it had been completed as a producing well, so long as said leased premises or said portion thereof is included in said unit.
“Lessee shall have the further right after the formation of one or more units under the provisions hereof, to rearrange, diminish, expand or combine the unit or units thus formed with another unit or units so as to rearrange and/or consolidate leasehold and royalty interests in the pool or reservoir to an extent sufficient to cover and conform to all .or a part of the known productive area. In such event, lessors'" royalty participation shall be adjusted to conform with the revised unit.
“If any portion of the unitized part of the lease is found to be non-productive, such non-productive portion may be excluded from unit participation by the action of the unit leasehold owners, and this shall be evidenced by an instrument of writing describing the land excluded and shall be filed of record in the office of the County Clerk, and in such event, Lessors’ participation in the unit royalty production shall be reduced accordingly, provided that lessors shall not be required to account dor any royalties theretofore paid.
“Any unit or units formed or any changes thereof as herein provided for, shall become effective at 7:00 o’clock A.M. on the first day of the month following the date of filing notice by Lessee in the records of the county in which the above described land is located, designating the units or unit formed, or any changes thereof.
“The right of unitization shall not apply to oil or oil rights at any depth, nor to casinghead gas produced with oil; and for the purposes hereof, the term ‘oil’ as used herein shall be considered to be any mixture of hydrocarbons, regardless of gravity, naturally occurring substantially as" liquids in the reservoir from which obtained and capable of being produced at the well head in liquid form by ordinary production methods, and which are not the result of condensation of gas after it leaves the reservoir.”

Appellant’s first point is that the trial court erred in holding that appellees were authorized to unitize appellant’s royalty interest without regard to the provision in paragraph 4, reading in part as follows: ■“In lieu of the royalties elsewhere herein specified, Lessor shall receive on production from a unit so pooled only such portion of the royalty stipulated herein as the amount of his acreage placed in the unit or his royalty interest therein on an acreage basis bears to the total acreage so pooled in the particular unit involved.” If this provision is given effect, then appellees had no authority to pool or unitize appellant’s property with other property except upon a surface acreage basis.

On February 22, 1949, appellees entered into two unitization agreements with reference to appellant’s property. The 177 acres were divided into two tracts, one numbered 13, and the other 14. One of these agreements related to Tract 13, and the other to Tract 14. These two unitization agreements were both based, not on an acreage basis, but upon a productive sand basis. If such agreements were authorized, such authority must be found in paragraph 12, because it is prohibited by paragraph 4.

Appellees contend that in this respect there is a conflict between paragraphs 4 and 12, and that 12 should be given' controlling effect. We fail to find any conflict between these two paragraphs in this respect. The only provision in Paragraph 12 as to the payment of royalties is as follows: “ * * * and in the event such unit is formed, lessors shall receive as royalty from the unit production of gas and condensate and all other hydrocarbons contained in the gas and extracted therefrom, the proportionate part of the royalties herein provided for.” This provision does not conflict "with paragraph 4, but rather refers to it to determine what royalties are provided. There being no conflict between these two paragraphs, each should be given a meaning, if possible, and construed together, and when that is done it is plain that appellees had no authority to enter into any unitization agreement, except upon an acreage basis. Appellees acted without authority in entering into the unitization agreements and they are not bindng on appellant.

We have been cited by appellees to Tiller v. Fields, Tex.Civ.App., 301 S.W.2d 185; Leopard v. Stanolind Oil & Gas Co., Tex.Civ.App., 220 S.W.2d 259, and Phillips Petroleum Co. v. Peterson, 10 Cir., 218 F.2d 926. We have read these cases and find them not in point here.

The summary judgment granted by the trial court was based upon the validity of the unitization agreement and thus the trial court was in error.

Our opinion rendered on November 22, 1961, is set aside and withdrawn, as is our judgment based thereon. The judgment of the trial court is reversed and this cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

BARROW, J., not participating.


author: RICHARDS, Justice.

text:
    TEXAS EMPLOYMENT COMMISSION et al., Appellants, v. Ronald L. HAYS, a Minor, Appellee.
    No. 10910.
    Court of Civil Appeals of Texas. Austin.
    Jan. 31, 1962.
    Rehearing Denied Feb. 21, 1962.
    Will Wilson, Atty Gen., Sam Lane, Asst. Atty. Gen., C. M. Turlington, E. E. Palmer, Texas Employment Commission, Austin, for appellants.
    Sam Houston Clinton, Jr., Austin, for appellee.
   RICHARDS, Justice.

Suit was brought by Ronald L. Hays, a minor, appellee, through his mother as next friend, pursuant to Art. 5221b — 4(i), Vernon’s Annotated Civil Statutes, to obtain judicial review of a decision of the Texas-Employment Commission, appellant, which denied him unemployment compensation benefits under the provisions of the Texas Unemployment Compensation Act (Arts. 5221b-l to 5221b-22aa inc. V.C.S.). The Trial Court, without the intervention of a jury, entered judgment setting aside the decision of the Texas Employment Commission and awarded appellee judgment for unemployment benefits in the amount of $144.00 with interest and costs from which adverse judgment Texas Employment Commission has perfected its appeal herein. For the purpose of brevity appellee will hereinafter be referred to as “claimant” and' appellant Texas Employment Commission as the “Commission.”

This appeal involves the construction of certain provisions of the Unemployment Compensation Act, which are:

Art. 5221b-2 (in part).
“An unemployed individual shall be eligible to receive benefits with respect to any benefit period only if the Commission finds that:
“(a) He has registered for work at, and thereafter has continued to report at, an employment office in accordance with such regulations as the Commission may prescribe;
“(b) He has made a claim for benefits in accordance with the provisions of Section 6(a) of this Act;
“(c) He is able to work;
“(d) He is available for work;”

and Art. 5221b-3, V.C.S. (in part):

“An individual shall be disqualified for benefits:
******
“(c) If the Commission finds that during his current benefit year he has failed, without good cause, either to apply for available, suitable work when so directed by the Commission or to accept suitable work when offered him, or to return to his customary self-employment (if any) when so directed by the Commission. * * *
“(1) In determining whether or not any work is suitable for an individual, the Commission shall consider the degree of risk involved to his health, safety and morals, at the place of performance of his work, his physical fitness and prior training, his experience and prior earnings, his length of unemployment and prospects for securing local work in his customary occupation, and the distance of the available work from his residence.”

At the time of the trial in the court below claimant was eighteen years old, in the twelfth grade at McCallum Senior High School and was a part time employee at a drive-in grocery in Austin, Texas, which employment had been secured by him in April, 1960 through the employment office of the Commission. In 1958 claimant worked for H. E. Butt Grocery Company as a part time employee from 5 P.M. to 9 P.M. on week days and all day on Saturdays from June 1958 until sometime in the fall of 1959, at which time such employment was terminated. On December 2, 1959, being unable to find other permanent part time employment claimant registered for work with the Commission, at the same time filing a claim with the Commission for unemployment compensation benefits, in accordance with Art. 5221b-2(a) and (b), which claim was denied on December 18, 1959 by the Commission in an “initial determination” which states that while he was “not disqualified from receipt of benefits,” he was ineligible to receive benefits during the period from “12-2-59 to Forward” since because of his school activities he was not available for full time work and that the law provides that he must be available for work before he can be eligible for payment.

The “initial determination” by the Commission was evidently based upon the fact that claimant, at the time he applied for employment at the employment office of the Commission, limited his application for work to “after school” hours on week days and all day on Saturdays and that such employment must be on the “north side” of the City of Austin.

On appeal from the “initial determination” the Appeal Tribunal of the Commission found that claimant was not willing to quit school in order to accept full time employment and had not determined if the school hours could be changed in order to enable him to accept full time work. The Appeal Tribunal then held that although the evidence established that claimant was actively seeking evening work which he could perform after school hours, yet in order to become available for work claimant must show that he is ready to at once accept employment deemed suitable by the Commission that is brought to his attention regardless of his school duties and since according to claimant’s statement he was not willing to accept work which would interfere with his school duties and was not willing to quit school in order to accept full time employment, claimant was not available for work as required by Art. 5221b-2(b) and therefore ineligible to receive unemployment compensation benefits from the date ■of his initial claim. The majority of the ■Commission having affirmed the decision •of the Appeal Tribunal, one Commissioner dissenting, claimant then instituted suit for judicial review of the Commission’s decision.

This case was properly tried in the ■court below under the “substantial evidence” rule. Nelson v. Texas Employment Commission, Tex.Civ.App., 290 S.W.2d 708, error ref. Under the statutory provisions, ■quoted supra, it is the duty of the Commission in its discretion after hearing the evidence to decide whether claimant was “available for work” and also to decide whether claimant had failed without good cause tq •accept suitable work when offered him. If there is substantial evidence to support the finding of the Commission that claimant was not “available for work” or that he did not “accept suitable work when offered him,” then claimant would of necessity be barred from receiving unemployment compensation benefits even though otherwise •qualified therefor.

Under the uncontroverted evidence adduced at the trial it is clear that claimant had complied with the provisions of Art. 5221b-2(a) and (b) and that he was available for part time employment after school hours on week days and all day on Saturdays which are the same conditions under which he had qualified for unemployment compensation benefits in his previous employment.

The evidence also shows that he was ■available for work and had accepted suitable work under the limitations contained in his application for employment by the 'Commission itself when through the employment office of the Commission claimant obtained suitable part time employment at a-drive-in grocery under- such limitations or •conditions.

From the foregoing facts when applied to the statutory provision that the •claimant must be “available for work”, it is manifest that since the Commission itself found claimant available for work in suitable part time employment under the same part time employment conditions under which claimant had previously acquired his right to unemployment benefits, the Commission’s order was not reasonably supported by substantial evidence and therefore was void.

The judgment of the Trial Court is in all things affirmed.


author: CHAPMAN, Justice.

text:
    MID-CONTINENT CASUALTY COMPANY, Appellant, v. John E. BUSICK, Appellee.
    No. 7093.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 22, 1962.
    Rehearing Denied Feb. 26, 1962.

      Crenshaw, Dupree & Milam, Lubbock, for appellant.
    Warren Burnett, Odessa, Lee Arnett, Odessa, of counsel, for appellee.
   CHAPMAN, Justice.

This is an appeal from a judgment awarded appellee, John Busick, against appellant, Mid-Continent Casualty Company, based upon a jury verdict in a Workmen’s Compensation case. Appellee first pleaded a general injury then by trial amendment pleaded total loss of use of his right arm above the elbow, a specific injury. The case was submitted on that theory and the jury found total loss of use of appellee’s arm beginning on the day of injury, September 18, 1958, that such total loss of use was permanent and there was no partial loss of use sustained. It is from the judgment based upon such verdict that appeal is perfected.

The first group of points contends there was no evidence upon which to submit the question as to whether the total loss of use of the arm was permanent or temporary and that the court erred in failing to grant a new trial because the jury’s answer that the total loss of use was permanent and that he did not suffer any partial loss of use was so contrary to the great weight and preponderance of the evidence as to be clearly wrong and unjust. To pass upon this group of points requires a review of the record.

In connection with the issue inquiring if the injury to appellee’s right arm resulted in total loss of use of said arm the court gave the following explanation or definition:

“By the term ‘total loss of use’ as used in this charge is meant that the member is so affected as to substantially and materially impair the use thereof in the practical performance of its function in the pursuit of a laboring man.”

Because of the material relationship of the definition just quoted to the question of whether the testimony preponderates against the verdict we deem it necessary to first discuss appellant’s contentions to the effect that the definition as given constitutes reversible error. We believe appellant’s position is without merit in this respect. Traders & General Ins. Co. v. Porter, Tex.Civ.App., 124 S.W.2d 900 (writ refused); Texas Employers’ Ins. Ass’n v. Olesky, Tex.Civ.App., 288 S.W. 244 (writ dismissed); E. K. Local Ins. Co. No. 1 of Seymour v. Lilly, Tex.Civ.App., 1 S.W.2d 490 (N.W.H.).

The Porter case just cited was submitted on both a general injury and a specific injury. The exact definition in connection with the specific injury in that case was given as the one we are here considering in this case. The jury found with claimant on both the general injury and specific injury and judgment was rendered on the general injury. Nonetheless the court passed upon the specific injury definition by saying “the definition [the same as the one here given] may be said to be substantially correct under the decisions.” The Supreme Court has approved it by refusing a writ. We recognize other definitions may be correct for “total loss of use” used in connection with questions submitted upon a specific injury such as the one we are here considering. This does not necessarily militate against the correctness of this definition. We have found no case so holding nor have we been cited to one.

Even with this definition, considerably more favorable to appellee than the one requested, we are still compelled to say, after a careful study of the record, that the jury’s findings to the effect that the total loss of use was permanent is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. In making this finding “it becomes the duty of this court to weigh and consider that which supports the verdict and that which does not, and to set aside the judgment and remand the case if after such consideration we conclude the verdict is so contrary to the overwhelming weight of all the evidence as to be manifestly unjust, regardless of whether there is some evidence to support it.” E. O. Prewitt v. M. V. Watson, Tex.Civ.App., 317 S.W.2d 954, 159 Tex. 305, 320 S.W.2d 815 (Supreme Court); In re King’s Estate (King v. King), 150 Tex. 662, 244 S.W.2d 660; Purvis v. Morehead, Tex.Civ.App., 304 S.W.2d 221; Chantly v. Chrystal, Tex.Civ.App., 274 S.W.2d 765.

Appellee is an iron worker. The trade is unionized. This is admitted in ap-pellee’s brief. The testimony shows that iron workers do not go to employers and ask for jobs but that the Union Business Agents, who know what type work one can handle, assigns the work. The testimony also shows that all iron workers are paid the same price. It is without contradiction in the record that appellee returned to work eleven weeks after the accident and with the exception of the time missed on account of an unrelated foot operation has received the same or higher wages after the accident than before; has worked the same hours as other iron workers assigned to the same type work; has made generally from $27.00 to $29.00 each 8-hour day, working 40 hours a week, and has not found it necessary to go to a doctor since he started back to work after the accident, for any physical disability related thereto.

We, of course, are familiar with the rule in an ordinary general injury case to the effect that an employee receiving the same or better wages after the injury is not precluded from recovering for total and permanent disability. We have ourselves so held. Of course a person also usually has a permanent total loss of use where a member or part of a member is severed from the body. The facts in this case show a different situation. Here we have a claimant who has done just as well or better financially since the accident while doing the same type of work generally, has worked just as many hours as other iron workers, has performed his duties just as easily and has received no gratuity from any employer. Additionally, he still has the member intact on his body for which the jury gave him total and permanent loss of use, and is using the member each day with almost as great efficiency as before. The testimony does show he cannot completely straighten the arm but does not show to what extent it is thus impaired. At least it is against the great weight and preponderance of the evidence from the record in this case to say “the member is so affected as to substantially and materially impair the use thereof in the practical performance of its function in the pursuit of a laboring man.”

This holding makes it unnecessary for us to pass upon the other questions of jury argument and the evidence question raised.

Conforming to what we have said, the judgment of the trial court is reversed and remanded for another trial.

      . Texas Employers’ Insurance Association v. Johnson, Tex.Civ.App., 323 S.W.2d 345.


author: GRISSOM, Chief Justice.

text:
    Martha Frances BULLOCK et vir, Appellants, v. Dewitt C. GREER et al., Appellees.
    No. 3690.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 2, 1962.
    Rehearing Denied Feb. 23, 1962.
    Harrell & Thompson, William G. Thompson, Breckenridge, for appellants.
    Will Wilson, Atty. Gen., Morgan Nesbitt, John B. Webster, Asst. Attys. Gen., McMahon, Smart, Sprain, Wilson & Camp, Stanley Wilson, Abilene, Sidney Callender, San Antonio, for appellees.
   GRISSOM, Chief Justice.

West Central Texas Municipal Water District is constructing a dam and reservoir in Stephens and Shackelford Counties. The plan provides for a flood level at 1202 feet. A portion of U. S. Highway 180 will be submerged when the water in the reservoir rises above 1202 feet. In order that such portion of said highway might be relocated and raised so that the highway would not be under water, the Water District entered into a contract with the State for such relocation and raising at an agreed place. The Water District agreed to furnish the State an easement for the highway right of way at such place. To carry out that agreement the Water District instituted condemnation proceedings. It involved five tracts, but only one tract of about two and one half acres, which belongs to the Bullocks, was sought to be condemned for highway use, the other four tracts were required for reservoir and flooding purposes. An award of damages was made. Said condemnation suit is now pending in the County Court of Stephens County. The Water District, although it was not required to do so by virtue of Article 8280-162, Section 10, deposited the amount of the award in court and became entitled to possession of the condemned land.

In accord with the contract between the Water District and the State, the highway department through its contractor moved onto Bullocks’ land and started to relocate a portion of said highway thereon. Thereupon, the Bullocks filed this suit in the District Court to enjoin the highway commission and its contractor from using their land for the purpose for which it had been condemned by the Water District. The temporary injunction was denied and the Bullocks have appealed.

The controlling question is whether the Water District had the power to condemn appellants’ land for the relocation and raising of said highway. The District was created by Article 8280-162. Section 8 thereof provides that the District is authorized to acquire land and other facilities necessary or useful for the purpose of impounding, processing and transporting water. Section 9 empowers it to acquire land and other facilities necessary or useful for the purpose of diverting, impounding, storing, processing and transporting water. Section 10 provides that, for the purpose of carrying out any power or authority conferred by the act, the District shall have the right to acquire land and easements by condemnation. Section 10a provides that if the District, in the exercise of the power of eminent domain or any other power granted to it, makes necessary relocation or raising of any highway that such relocating or raising shall be accomplished at the expense of the District.

The District, in the exercise of the powers granted by the act and in carrying out the purposes of its creation, made necessary the relocation and raising of the highway. The provisions of the act creating said District, particularly Sections 10 and 10a show the legislative intent' to empower the District, under the circumstances mentioned, to condemn land for the purpose of relocating and raising the highway. This conclusion is supported by the decision in Weyel v. Lower Colorado River Authority, Tex.Civ.App., 121 S.W.2d 1032 (Writ Ref.) It was there held that the legislature did not intend to restrict said River Authority’s power of condemnation to property, or to uses thereof, which the District itself intended to use permanently in its own operation and that it was authorized to do whatever was reasonably necessary and convenient to accomplish the purposes of its creation. The statutes creating the two Districts mentioned in granting power to condemn do not use the same language but, we think, that so far as it is here material that they have the same effect. We hold that when the Water District, in the exercise of the powers granted to it and in carrying out the purposes of its creation, made necessary the relocation and raising of a portion of the highway that it had authority to condemn land for use as a highway. Since the place of relocation has been determined by the Highway Commission and the District, and the Water District has deposited the amount of the award, it had authority to turn its possession over to the highway department for the purpose for which the land was condemned. The judgment is affirmed.


author: ARCHER; Chief Justice.

text:
    Walter R. MILLER et al., Appellants, v. RAILROAD COMMISSION of Texas et al., Appellees.
    No. 10913.
    Court of Civil Appeals of Texas. Austin.
    Feb. 7, 1962.
    Rehearing Denied Feb. 21, 1962.

      Lanham & Hatchell, Austin, for appellants.
    Will Wilson, Atty. Gen., Leon F. Pesek, Marvin Sentell, Asst. Attys. Gen., Albert G. Walker, Sr., Albert G. Walker, Jr., Austin, of counsel, for appellees.
   ARCHER; Chief Justice.

This is an appeal from a judgment of the District Court upholding an order of the Railroad Commission granting a Certificate of Public Necessity and Convenience to Lively Trucking Contractors to transport certain named commodities as a specialized motor carrier over irregular routes on irregular schedules and within limited distances.

The appeal is founded on two points assigned as error and are as follows:

“Point No. 1: The Trial Court erred in entering judgment holding that the order of the Commission dated January 14, 1960 is legal and valid because such order does not contain findings of fact as required by Section 5a(d), Article 911b, V.A.C.S.
“Point No. 2. The Trial Court erred in entering judgment holding that the order of the Commission dated January 14, 1960 is legal and valid because such order is not supported by substantial evidence.”

As is stated, the appellants contend that the order is not valid, because it did not contain findings of fact as required by Section 5a(d), Article 911b, Vernon’s Annotated Civil Statutes.

The order of the Commission recites the filing of the application and the hearing and made the following findings:

“The Commission finds that the application proposes the transportation of commodities as a specialized motor carrier, over irregular routes on irregular schedules, in the area described. The Commission finds as a fact from the evidence that this type of service is not rendered by the regular route common carrier motor carriers and the rail lines. The Commission further finds as a fact from the evidence that the existing specialized motor carrier service is inadequate in that the service is not available when needed, and further, that trucks and facilities are not available when needed.
“The Commission further finds from the evidence and its own records that satisfactory proof has been made of the financial responsibility of the applicant; that the equipment proposed to be used in said operation meets the requirements of the laws of the State of Texas in regard to safety devices, dimensions, etc.; and that the highways designated in the application are of such type of construction and maintenance and subject to such use as to permit the use sought to be made by the applicant without unreasonable interference with the use of such highways by the general public for highway purposes.
“The Commission further finds from the evidence and its own records, after carefully considering the existing transportation facilities and demand for and the need of the additional service, that the service and facilities of the existing carriers serving the territory are inadequate; that there exists a public necessity for such service; and that public convenience will be promoted by granting said application and permitting the operation of motor vehicles on the highways designated in said application as a common carrier for hire.
“Therefore, after carefully considering the evidence, the laws, and its own records, rules and regulations, the Commission is of the opinion that the application should be granted in part. Accordingly, it is ordered by the Railroad Commission of Texas that the application of M. B. Lively & Bill M. Lively, DBA Lively Trucking Contractors, for a certificate authorizing operation of a specialized motor carrier service, be, and the same is hereby granted in part, as follows

On the trial in the District Court, appellant offered the testimony of William P. Danforth, an employee of the Commission as a hearing examiner, and who heard the application of Lively Trucking Contractors and after the hearing submitted his recommendation to the Commission, which granted the application in part, and that the witness drafted the order on an xeroxed form in general use by the Commission. On cross examination he stated that that order contained the findings of fact.

Thomas M. Dye testified that he lived in Dallas and was a hauling contractor under authority issued to him by the Commission authorizing him to transport gravel, rock and various commodities used in construction of highways; that he had been operating for eleven years and he testified as to terminals, equipment, etc. The witness testified that he would have been willing to handle any business tendered. On cross examination he stated that the industry was already overcrowded.

Walter Miller testified that he lived in Austin and was engaged in truck contracting by authority issued by the Commission as a specialized motor carrier to haul certain commodities from a distance of 250 miles from the point of origin; that his main office was in Austin and that he at one time had a terminal at Burnet; that he could supplement his trucks as needed and could perform any service requested under his operating authority. The witness testified that he made efforts to solicit business by telephone calls, visits and contacts at highway lettings which he attended once a month and that he appeared at the hearing on the application and protested such application; that neither George Probst nor William P. Campbell ever called on him to render a service that he did not have the equipment available for such service; that the granting of the permit would further overcrowd the trucking business and that any revenue detracted from him would have an adverse effect on his business income.

Martin D. Lively testified that he lived in Austin and was a partner in Lively Trucking Contractors and that he had two trucks and two tandem trailers and that he had been connected with the hauling business since 1938 for the general public and that he was, at the time of the hearing before the Commission, under a lease agreement with Walter Miller, a certified carrier. The witness testified that he was unable to make hauls he had been called on to make because he was not a certified carrier and could not run the risk of bootlegging them but that he did haul a lot by bootlegging them; that he had competent drivers.

George Probst, a witness for the defendant, testified that he was employed by Zachary Company now but was employed by G. C. McBride, Inc., in Waco from September 1959 to February 1960 and was in charge of hot mix paving and that he made arrangements for jurisdictional hauls and had difficulty in securing truckers frequently and that if Lively was granted authority, his Company would use his trucks and that service was needed. On cross examination he stated that he did not call the A & O Truck Co., T. M. Dye Hauling Contractors, Charlie Evans, or National Materials Corporation.

E. B. Snead, called by defendant, testified that he lived in Austin, was the Chief Executive Officer of Texas Crushed Stone; that he had difficulty in securing certified haulers during the fall of 1959 and early in 1960, and stated certain occasions; that he sent one of his employees to testify before the Commission. On cross examination the witness stated that he had not called on A & O Truck Service, Evans Trucking Company or Dye Hauling Contractors and had not called on several other haulers for service.

Our Supreme Court, in Alamo Express, Inc. v. Union City Transfer, 158 Tex. 234, 309 S.W.2d 815, which is the latest pronouncement on the authority of the Commission and its duties in connection with the issuance of motor carrier’s certificates, fully discussed, in its decision, the law and the applicable cases and nothing could be said by this Court at this time that would be of aid to an understanding of the law and the numerous cases, many of which are cited and referred to in the Supreme Court’s decision.

We believe that the Commission was justified in exercising its discretion in granting the permit and that there was evidence on which the Commission could and did act in granting the permit and that such order was not unreasonable, arbitrary or capricious and that the judgment of the Trial Court in upholding the order finds reasonable support in the record.

The judgment of the Trial Court is affirmed.

Affirmed.


author: ARCHER, Chief Justice.

text:
    Armand J. ALCAZAR, Appellant, v. SOUTHWESTERN BELL TELEPHONE COMPANY, a Corporation, Appellee.
    No. 10926.
    Court of Civil Appeals of Texas. Austin.
    Jan. 17, 1962.

      John Noyola, Laredo, for appellant.
    J. G. Hornberger, John E. Fitzgibbon, Laredo, Ed Gossett, Whitney R. Harris, Joe L. Randle, Dallas, for appellee.
   ARCHER, Chief Justice.

This action was brought by appellant against appellee seeking damages for trespass allegedly occurring when appellee’s employee Inez Sanchez removed two of appellee’s telephones from appellant’s home. Appellant alleged in his petition that Mr. Sanchez willfully, unlawfully and maliciously broke and entered appellant’s home without appellant’s consent to his damage in the amount of $125.00 for loss of tools, $4,000.-00 for inconvenience, annoyance, loss of time, humiliation, mortification and embarrassment, plus $4,000.00 exemplary damages.

Trial was had with a jury and on the jury’s verdict judgment was entered that appellant take nothing and from this judgment the appeal is taken.

The appeal is based on 28 points assigned as error by the Trial Court in overruling exceptions and objections to the filing of defendant’s amended answer.

A Trial Court has wide discretion in allowing the filing of amended pleadings and no abuse of such discretion is shown. The amended answer was filed prior to the taking of any evidence and no claim of surprise was made.

Rule 63, Texas Rules of Civil Procedure; Whaley v. Nocona Independent School District, Tex.Civ.App., 339 S.W.2d 265, error ref.

The exceptions made by plaintiff to the amended answer concerned the allegations of defendant’s tariffs, circumstances under which the entry was made and the agency of Alicia Castillo, etc. The exceptions were properly overruled, since the petition sufficiently alleged material facts.

McDonald Texas Civil Practice, Vol. 2, p. 644.

The third, fourth and fifth points are that the Court erred in not permitting evidence of embarrassment, humiliation, loss of time, etc., and as to mental pain, and that the trespass violated plaintiff’s constitutional rights.

It does not appear from the record that the Court ruled on defendant’s objection to offer evidence on embarrassment and did not refuse plaintiff permission to testify as to mental pain. There were no pleadings filed pertaining to violation of plaintiffs civil rights.

Plaintiff did not make or offer proof of any evidence as to humiliation and violation of civil rights and cannot here be heard to complain, as no formal bills of exceptions were made and these points of error are overruled. Garcia v. Lacey, Tex.Civ.App., 316 S.W.2d 183.

The jury found no actual damages sustained by the plaintiff.

The sixth point is directed to the failure of the Court to permit plaintiff to file a trial amendment, which merely included plaintiff’s wife as a party plaintiff and elements of damage.

There is nothing in the record to show that plaintiff requested permission to file a trial amendment and nothing to show that the proposed amendment was presented to the Court.

The defendant objected to the filing of the trial amendment because of surprise, such being filed on the second day of the trial and such objection was sustained, to which plaintiff excepted.

Since the record does not show the proposed amendment and the evidence proffered, such cannot be reviewed on appeal.

3 Tex.Jur.2d pp. 649-650, 662-663.

The allowance of a trial amendment ordinarily is within the discretion of the Court.

Coffey v. Fort Worth & Denver Railway Co., Tex.Civ.App., 285 S.W.2d 453, no writ history; Rules 37 and 66, T.R.C.P.

The seventh and eighth points are directed to introduction, over objection, of the General Exchange Tariff and as to the reasonableness of such.

The Tariff, (Rules and Regulations applying to all customer contracts) is as follows, in part:

“OWNERSHIP — Equipment, instruments and lines on customer’s premises, furnished by the Telephone Company, shall be and remain the property of the Telephone Company whose agents and employees have the right to enter said premises at any reasonable hour for the purpose of installing, inspecting, maintaining or repairing the equipment, instruments and lines or for the purpose of making collections from coin boxes and, upon termination of the service, for the purpose of removing such equipment, instruments and lines. Such equipment, instruments and lines are not to be used for performing any part of the work of transmitting, delivering or collecting any message where any toll or consideration has been or is to be paid any party other than the Telephone Company without the written consent of the Telephone Company.”

The Tariff was admitted after the parties had stipulated that such would be admitted into evidence subject to the question of its reasonableness being presented to the jury, such was submitted and the jury found it not to be unreasonable and such points are overruled.

The Tariff was binding on plaintiff as a subscriber to defendant’s telephone service and is not dependent on plaintiff’s actual knowledge of the Tariff.

Faber v. Southwestern Bell Telephone Company, 155 F.Supp. 162 (S.D.Tex.1957).

The ninth and tenth points complain of the Court’s definitions and instructions on circumstantial evidence and agency because there were no pleadings or evidence to raise such instructions and same were multifarious.

We believe that the objections were too general and were without merit and that there were no specific objections to the matters complained of to meet the requirements of Rule 274 and Rule 434, T.R.C.P. McDonald Texas Civil Practice, Vol. 3, p. 1141.

The eleventh, twelfth and thirteenth points are directed to the action of the Court in sustaining objection to the testimony of a person not connected with the lawsuit as to the removal of a telephone at some prior date. There was no offer of testimony or bill of exceptions relating to the testimony of such witness and no error shown. Objections were made to Special Issues Nos. 1 and 2. These issues sufficiently submitted the questions of the Tariff and the removal of the telephones in reliance thereon. The jury found that the Tariff was reasonable.

Points Nos. 14 and 15 are directed to the action of the Court in overruling objections to Special Issues Nos. 4 and 5 which inquire of the jury if Alicia Castillo had express or apparent authority to act for the plaintiff, and conditioned on affirmative answer, if Alicia Castillo gave the employee of the telephone company permission to enter the premises for the purpose of removing the telephone instruments. The jury answered both of the issues in the affirmative.

We believe that the issues submitted, in a sufficient manner, the fact question as to the authority of Miss Castillo and the permission inquired about, and that the evidence reasonably supported the jury’s answer and no prejudicial error was shown: Texas Employers Ins. Ass’n v. McKay, 146 Tex. 569, 210 S.W.2d 147.

Points Nos. 16 to 28 are directed to the refusal of the Court to submit plaintiff’s requested issues and instructions to the effect that the land owner is entitled to at least nominal damages for trespass and that any invasion of private property is a trespass and that “willful” is a result of the exercise of one’s will; that the owner of property may take possession of it anywhere, provided he does not commit a trespass, and that the burden of proof was on the defendant to prove that Alicia Castillo, a minor, was the agent of the plaintiff and if Miss Castillo had the authority to authorize Inez Sanchez to enter the house and if so, did she give such permission.

We do not believe the Court erred m refusing to give the several affirmative issues but believe that the charge as given fairly-submitted the fact issues to the jury. The requested issues were not in strict compliance with Rule 276, T.R.C.P.

Then, too, all such requested issues were conditioned on the jury finding that the defendant was guilty of trespass, which was not done. The requested issues became moot.

41B Tex.Jur.; Trial-Civil Cases, Sec. 512, p. 677.

The judgment of the Trial Court is affirmed.


author: McDONALD, Chief Justice.

text:
    FULTON FIRE INSURANCE COMPANY, Appellant, v. FIRST STATE BANK OF WILLIS, Texas, et al., Appellees.
    No. 3936.
    Court of Civil Appeals of Texas. Waco.
    Jan. 18, 1962.
    Rehearing Denied Feb. 8, 1962.

      Bryan & Patton, Houston, for appellant.
    Darden, Fowler & Creighton, Conroe, for appellees.
   McDONALD, Chief Justice.

This is a suit upon 2 fire insurance policies brought by the owners of the insured house, Mike Lucher and wife, Lucy Lucher, and the First State Bank of Willis (as lien-holder on the house), as plaintiffs, against the defendant insurance carrier. Defendant defended on the ground that the fire was a fraudulent loss, and alleged that plaintiffs Lucher and wife either burned the house, or caused and procured other persons to burn it, so that they could collect the insurance thereon.

Trial was to a jury which, in answer to issues, found that the house burned to a total loss, and that Mike Lucher did not burn the house, did not procure some other person to burn it, and did not consent to the burning of it.

The Trial Court entered judgment on the verdict for plaintiffs for $4500, the amount of the 2 policies.

Defendant Insurance Company appeals, contending the Trial Court erred:

1) In refusing to allow the witness Williams to testify to his conclusion that the house had been set on fire.

2) In refusing to admit in evidence portions of a prior written statement of the plaintiff Lucy Lucher.

3) In refusing to allow cross examination of plaintiff Lucy Lucher regarding prior statements she had made.

We revert to defendant’s 1st contention that the Trial Court erred in refusing to allow the witness Williams to testify that it was his conclusion that the house had been set on fire. Defendant plead that the house was burned by the Luchers or someone procured by them. The plaintiffs’ witness Perry, who was Fire Chief of Willis, testified that the house was a total loss; that after the fire there was left only a bunch of rubble and tin and tinware from the house and rubbish from the furnishings; that he made an examination of the premises; found no gas jets open; and found no evidence whatever of arson; and he had no opinion as to what caused the fire. Thereafter, the defendant tendered the witness Williams, who testified that he had extensive experience and training in investigating fires and in determining their cause; that he examined the debris of the burned house and that it was his opinion that the fire started on the floor; that the burning pattern indicated that a petroleum product was on the floor at the time of the fire. Williams then testified that “he had examined the debris and saw the place had been set on fire”; and that “it was not an accidental fire.” The Trial Court sustained objection to the foregoing and instructed the jury not to consider same for any purpose, and instructed the witness to state what he found without giving his conclusion.

We think the Trial Court probably erred in sustaining objection to the testimony of the witness Williams and in instructing the jury not to consider it for any purpose. A witness who qualifies by training and experience as an expert on the origins of fire, can, after investigation, give the jury the benefit of his opinion. The weight of such testimony is for the jury. Capra et al. v. Phillips Co., S.Ct.Mo., 302 S.W.2d 924; State v. Paglino, S.Ct.Mo., 319 S.W.2d 613.

The jury heard the witness say several times that “the place had been set on fire” (even though objection to such evidence was sustained) ; and heard the witness testify without objection several times that “inflammables” or “oil substances” had been “used” or “poured” on the floor. The witness further testified without objection that “he found nothing that could set off an accidental fire”. Thus the jury had before it for intents and purposes the “sense” and full effect of the testimony of the witness Williams. In view of the foregoing, and in view of the record as a whole, we think the trial court’s action, if error, was harmless under Rule 434, Texas Rules of Civil Procedure, and could have in no manner “probably caused the rendition of an improper judgment in the case.”

Defendant’s 2nd and 3rd contentions complain of the action of the Trial Court in excluding portions of a prior written statement made by the plaintiff Lucy Lucher; and in refusing to allow cross examination of Lucy Lucher in regard to the prior statements.

After the house burned down, defendant’s representative, (the witness Williams), took a statement from Lucy Lucher, which was signed by her. On the trial of the case defendant offered the statement in evidence. The entire statement is set forth below. The Trial Court, on objection by plaintiffs, excluded from the jury the italicized portions:

STATEMENT BY LUCY HYMAN LUCHER
“Houston, Texas
January 26, 1959
“My name is Lucy Hyman Lucher. I am 48 years of age, having been born February 7, 1910 in Montgomery County, Texas. I presently reside at 9409 Grady St., Houston, Texas, with my daughter Dorothy May Mathis. I married Mike Leon Lucher October 21, 1925, at St. Joseph Catholic Church, New Waverly, Texas. I lived with Mike Lucher off and on for approximately 32 years, up until approximately September, 1958, at which time I left him. On September 2, 1958 Mike Lucher came to my house which I was renting in WiUis, Texas, and after I let him inside the house I could tell that my husband had been drinking and shortly thereafter he pulled his pocket knife and cut the back of my neck clear around to my right cheek bone. I staggered out of the house and ran about 3 yards, fell, then got up and finally received some help in Willis, Texas.
Excluded Portion # 1.
“I know that my husband is presently under indictment charged with attempt to murder m Conroe, Texas, for cutting me on the day of September 2,1958.
Excluded Portion # 2.
“I lived with Mike Lucher at Willis, Texas, in a house we owned previous to the house which burned December 22, 1958. Mike tried to get me to burn this house on 2 different occasions. Mike told me how to burn this house without being detected and explained that I should burn the house by turning 2 of the gas heaters on and then turning the other gas heater on and lighting the gas and to be sure and close all the windows and doors so that when the house filled up with gas that it would cause an explosion and burn the house. I told Mike I would not burn the house. However, he insisted that I burn the house to collect the insurance, but I would not burn the house for him.
“About 2 years ago Mike and I traded this house for the one which burned on December 22, 1958, and this house is also located in the town' of Willis, Texas. About a year ago I attended a bingo party with my 2 daughters at the New Waverly Catholic School, New Waverly; - Texis, and this bing© party started about 8 in the evening oh this particular night and bróke up at 12 midnight.
“When I arrived at my house I found that a light was burning inside the house and when I got inside the house I discovered that one of our heaters was on but was not lit and the other heater was burning with the door propped against the heater, and I also found my woolen sweater wrapped around my electric iron and plugged into the wall outlet and was turned on to its highest heat. As I entered the house I could smell my woolen sweater burning and I ran inside and found my woolen sweater wrapped in the iron sitting in the back room and I unplugged the iron just in time to prevent an explosion because the room had been filling up with gas fumes. A few minutes later after this occurred, my husband, Mike Lucher, came inside the house and asked me what happened and I told him you ought to know what happened because you caused it and he did not deny it.
Excluded Portion $ g
"I do not recall the exact dates but I do distinctly remember Mike’s looking to me and indicated that he intended to burn our house down to collect the insurance. When I heard about Mike’s fire which occurred on December 22,1958, it did not surprise me because he had talked to me previously about burning the house down.
“I can read and write the English language and I have read this statement and it is true and correct.
“/S/ Lucy Hyman Lucher
Lucy Hyman Lucher.”

(Below follows an acknowledgment)

Lucy Lucher was separated from Mike Lucher in February 1958 and went to Houston where she was living with a daughter when the fire occurred on 22 December 1958. After the fire, defendant’s agents took the statement from Lucy Lucher. There can be no question but that the excluded portion denominated “Excluded Portion '#1” above, was properly excluded. Such has no bearing on the issues involved except to impeach Mike Lucher’s credibility as a witness. Since he had not been found guilty by conviction; and was not admitting his guilt at the trial, such was properly excluded. Texas & N. O. R. v. Parry, Tex.Com.App., 12 S.W.2d 997; Travelers Ins. Co. v. Jordan, (n. r. e.), Tex.Civ.App., 339 S.W.2d 235.

The portion denominated “Excluded Portion #2,” we think, is cumulative of the prior sentence which was admitted into evidence. The whole conversation refers to another house and to a previous time. If the exclusion of this portion was error, we think same harmless under Rule 434 T.R.C.P.

The portion denominated “Excluded Portion #3”, we think, was properly excluded; but if we be mistaken, we think such error harmless under Rule 434, T.R.C.P.

The court admitted the statement “Mike tried to get me to burn this house on 2 different occasions.” Defendant’s attorneys cross examined Lucy Lucher about this and she admitted signing the deposition, but further testified: “But I felt so bad I read through some of it, but didn’t read all the way through”; and then flatly testified: “Mike ain’t never tried to get me to burn no house down.” Thus, both the statement that Mike tried to get her to burn the house, and her testimony to the contrary were before the jury.

In view of the record as a whole, we believe that if the court erred in excluding the portions denominated #2 and #3, same was harmless as heretofore noted.

The judgment of the Trial Court is affirmed.


author: NORTHCUTT, Justice.

text:
    Rubie WHALEN et vir, A. D. Whalen, Appellants, v. E. K. RICHARDSON et al., Appellees.
    No. 7090.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 22, 1962.
    Wicks & Wicks, Ralls, for appellants.
    T. Wesley Hook, Alvarado, Key, Carr, Carr & Clark, Lubbock, for appellees.
   NORTHCUTT, Justice.

In this case appellant Rubie Whalen, joined pro forma by her husband, A. D. Whalen, sued appellees, E. K. Richardson, appellant’s father, W. H. Richardson, and John W. Richardson, who are appellant’s two stepbrothers, and Jett Cowden, an alleged lien holder, in a trespass to try title to recover title and possession of 320 acres of land situated in Crosby County, Texas.

The case was tried to a jury, but at the close of the evidence, the trial court peremptorily instructed the jury to return a verdict in favor of the appellees and against the appellants. Judgment was rendered declaring appellee, E. K. Richardson, to be the owner in fee simple of the real estate involved in this suit and declaring appellee, Cowden, to be a lawful lien holder upon a portion of said real estate. Said judgment further declaring that appellees, John W. Richardson and W. H. Richardson and wife, Dama Richardson, should take nothing. From that judgment appellants perfected this appeal.

Since Mr. Richardson and Mr. and Mrs. Whalen are the interested parties herein, Mr. and Mrs. Whalen will hereinafter be referred to as appellants and Mr. Richardson as appellee.

In December, 1912 E. K. Richardson and Martha Alabama Leatherwood were married. Prior to this marriage Martha Alabama Leatherwood inherited from her father’s estate the section of land here in question as her separate property. There were two daughters born to Mr. and Mrs. Richardson, one died in infancy, and Mrs. Whalen was the only surviving child of this marriage. Mrs. Richardson died in August, 1946, intestate. Mrs. Whalen was formerly, married to Thomas C. Ratheal and he died December 7, 1940. Mrs. Ratheal, together with her daughters, returned to the home of Mr. and Mrs. Richardson and resided there until the death of her mother. Mrs. Ratheal continued to live with her father until she and Mr. Whalen were married in December, 1946.

On July 19, 1947, Mr. and Mrs. Whalen executed an instrument releasing, relinquishing and quit-claiming unto E. K. Richardson, Mrs. Whalen’s father, all their right, title, interest, and estate in and to the estate of Alabama Richardson, Mrs. Whalen’s mother, both real and personal, which Mrs. Whalen may or might have in and to said estate by virtue of being the daughter of Alabama Richardson, except the 200-acre homestead. Said instrument further provided that Mrs. Whalen, joined by her husband, accepted the 200 acres of land together with all the improvements situated thereon as her full share in and to the estate of her mother. Prior to the death of Mrs. Richardson, she and Mr. Richardson had built a nice, brick home upon the 200 acres in question. This same instrument gave to Mr. Richardson the remaining 440 acres of said section.

On January 24, 1948 in Cause No. 2082 in the District Court of Crosby County, Texas, Mrs. Whalen filed suit against her father, and others, for the title and possession of the real estate that she had transferred to her father on July 19, 1947. On March S, 1948, Mr. Richardson, who had remarried, and his wife, Elta Richardson, and Mr. and Mrs. Whalen entered into a partition deed stating that E. K. Richardson and Rubie Whalen were the sole and only heirs of Martha Alabama Richardson, and that they held in common the section of land in question, and by said partition deed Mrs. Whalen received 320 acres of said section which included all improvements, and Mr. Richardson received the remaining 320 acres.

On April 7, 1948, Mr. and Mrs. Whalen filed in said Cause No. 2082 the following motion:

“Now comes the plaintiffs, Rubie Whalen, et vir, A. D. Whalen, and respectfully show to the court that all matters in dispute in the above entitled and numbered cause have been satisfactorily settled between the plaintiffs and defendants as evidenced by certain instruments of writing appearing in the office of the county clerk of Crosby County, Texas, filed since January 24, 1948, the date when said suit was filed.”
“The plaintiffs therefore say that they will no further prosecute said suit and pray the court that the same be dismissed at the cost of the plaintiff.”

The instrument here referred to as being: filed since January 24, 1948 was the partition deed.

As requested in said motion said Cause-No. 2082 was dismissed on April 7, 1948 at the cost of Mr. and Mrs. Whalen. On July 20, 1959, Mr. and Mrs. Whalen brought this, suit to recover title and possession of the-320 acres deeded to Mr. Richardson in the-partition deed dated March 5, 1948. In the-partition deed Mr. and Mrs. Whalen bound1, themselves and their heirs to warrant and’ forever defend all and singular said premises unto E. K. Richardson, and E. K. Richardson gave the same warranty to Mr. and. Mrs. Whalen as to the other 320 acres.

By appellants’ first and second points of' error it is contended the court erred in> granting judgment for the appellees since-there was sufficient evidence to be submitted’ to the jury to authorize a verdict for the-appellants. By appellants’ own testimony-the only way she contends that the appellee-defrauded her was that appellee contended-, they owned the property equally and she' testified before making the partition deed) that she had consulted an attorney and learned what her rights were. Appellants did not seek to have the deed given by appellants to the appellee cancelled and neither did appellants offer to place the parties in status quo but appellant, Mrs. Whalen, testified she was not willing for the appellee and wife to return and have the property as appellees’ home but that Mr. Richardson could come and live with her but could not come with his wife.

A deed obtained by fraud is not void but voidable only as between the parties to this suit, appellee’s title is prima facie good, and it could only be avoided by decree annulling and cancelling the deed executed by appellants. Deaton v. Rush, 113 Tex. 175, 252 S.W. 1025; Michna v. Crane, Tex.Civ.App., 28 S.W.2d 837; Wilkins v. Abercrombie, Tex.Civ.App., 162 S.W.2d 445; Meiners v. Texas Osage Cooperative Royalty Pool, Tex.Civ.App., 309 S.W.2d 898.

Here the appellants are depriving the appellee of his right to the use of the homestead so long as he lives, and state they are not willing to permit him to have said homestead. Here the appellants are seeking to recover title and possession of the land they deeded to the appellee without seeking to cancel the deed, but if they recovered title and possession it would have the effect of depriving appellee of his homestead rights. The appellants cannot repudiate their instrument and retain the benefits received thereunder and deprive the appellee •of his homestead rights. In the case of Texas Company v. State of Texas et al., 154 Tex. 494, 281 S.W.2d 83, by the Supreme Court, it is stated:

“It is a familiar rule of equity that ‘He who seeks equity must do equity.’ Thus it is held that one seeking a cancellation of an instrument, with certain exceptions not pertinent here, must restore the original status; he cannot repudiate the instrument and retain the benefits received thereunder. Gibson v. Landcaster, 90 Tex. 540, 39 S.W. 1078; 7 Tex.Jur., Cancellation of Instruments, § 46, p. 958, et seq. In Black on Rescission and Cancellation, Second Edition, Vol. 3, § 616, p. 1482, it is said: ‘ * * * it is necessary that a party seeking a rescission should offer or tender a restoration to the other and that the court, if appealed to, should be able to accomplish that result by its judgment or decree.’ That restitution of benefits may be required even though their recovery in an action at law would be barred by the statute of limitations is also settled.”

In the partition deed it is shown that there was some $10,000.00 indebtedness against the section of land and the appellants and appellee agreed that each would assume the payment of one-half of said indebtedness. Each of the parties made application to the Federal Land Bank for a loan, and each stated they owned the 320 acres in order to receive a loan to pay the original amount. Mrs. Whalen knew appellee had made the request for the loan and knew he claimed he owned the land. He told her he had made application for the loan and she knew that he stated in the application that he owned the land and she knew that he claimed the land. She acknowledged she had known for 12 years he was claiming the land in question. Appellee could have retained the homestead as long as he lived but he moved away and delivered possession to the appellant when the first deed was executed giving him the 440 acres of land and the appellant received the homestead. Then the appellant brought suit to recover the 440 acres. The appellee then agreed to return 120 acres to the appellants and pay one-half of the indebtedness. It was after the return of the 120 acres by appellee and the assumption of one-half of the indebtedness against the land that the parties made the partition deed, and appellants stated to the court that all matters of dispute had been satisfactorily settled between them and asked the court to dismiss the case, and on that request the case was dismissed. We think all of the claims of the appellants are barred by the statute of limitations.

Mrs. Whalen also testified that she deeded a right-of-way on her part of the land and knew appellee gave a like deed as to part of his land and she did not question his right to sell the roadway. We are unable to see where there is any legal evidence to support a jury finding that the appellee was guilty of any fraud in connection with the partition deed in question or that appellants have the right to take advantage of any of the asserted technicalities urged by appellant. Accordingly, we overrule all of appellants’ assignments of error, and affirm the judgment of the trial court.


author: RENFRO, Justice.

text:
    LEGAL SECURITY LIFE INSURANCE COMPANY, Appellant, v. Alton ALLEN, Appellee.
    No. 16285.
    Court of Civil Appeals of Texas. Port Worth.
    Jan. 26, 1962.
    Rehearing Denied Feb. 23, 1962.
    Douglas E. Bergman and John W. Hicks, Jr., Dallas, for appellant.
    Fields & Fields and Robert H. Fields, Athens, for appellee.
   RENFRO, Justice.

Plaintiff Allen sued Legal Security Life Insurance Company to recover benefits under a hospitalization and surgical indemnity insurance policy for expenses incurred by reason of surgery and hospital care for plaintiff’s wife. From an adverse judgment the defendant appealed.

On May 11, 1960, the following surgery was performed on Mrs. Allen: appendectomy, uterine suspension, salpingectomy, posterior repair.

Defendant denied liability by reason of sub. (3) of Sec. 2 of the policy under “Limitations and Exclusions”, which reads: “ * * * loss or disability incident to which any of the organs not common to both sexes are treated, removed or repaired shall be covered only if the cause thereof originates after this policy has been in continuous force for the preceding ten months; * At the time of surgery the policy had not been in force ten months.

The ten months’ waiting period did not apply to appendectomy.

The trial court found that all the hospital and surgical expenses incurred were incurred as a result of the appendicitis and the appendectomy surgical operation and that there was no loss or disability incident to which any of the organs not common to both sexes were treated, removed or repaired.

Dr. Holt testified that he saw Mrs. Allen about May 10, 1960, and diagnosed her complaints as appendicitis. He did remove her appendix and the specimen was termed by pathological findings as periappendicitis, which means subacute appendix. As plaintiff’s family physician he knew Mrs. Allen needed a “little corrective work inside, which was done.” Infection of the appendix had not spread anywhere. The only charge made was for the appendectomy. He cut into the patient’s abdominal area for appendicitis. Her length of stay in the hospital and expenses would have been the same had the corrective surgery not been done.

Defendant relies strongly upon the holding in Legal Security Life Ins. Co. v. Gilcrease, Tex.Civ.App., 351 S.W.2d 263, wherein the court held that the same “Limitations and Exclusions” clause as heretofore set out precluded plaintiff from recovery because the policy had not been in effect ten months. In that case, however, the parties stipulated that the surgical operation performed on plaintiff’s wife was the result of an affliction of an organ not common to both sexes.

In the instant case the evidence supports the trial court’s findings that the doctor performed an appendectomy on plaintiff’s wife and that all the expenses incurred were incurred as a result of such appendectomy and following hospitalization therefor. The appendectomy was separate and apart from the corrective surgery on the female organs of plaintiff’s wife. There was no connection between the appendectomy and the other surgery. The operation for appendicitis did not necessitate any of the others.

Defendant makes no contention it would not have been liable for expenses incurred by plaintiff for the appendectomy if surgery had not been performed also on organs not common to both sexes.

Under the record we hold that plaintiff’s loss, that is, expenses incurred, was due to the appendectomy, and the loss was not “incident to which any of the organs not common to both sexes are treated

Judgment is affirmed.


author: WERLEIN, Justice.

text:
    R. E. WILSON, Appellant, v. Comer WHITAKER et al., Appellees.
    No. 13876.
    Court of Civil Appeals of Texas. Houston.
    Feb. 1, 1962.

      See, also, 349 S.W.2d 753.
    Bracewell, Reynolds & Patterson, Carlton Wilde, Houston, for appellant.
    Thomas F. Lay, Pasadena, for appellees.
   WERLEIN, Justice.

This is an appeal from the order of the trial court denying appellant, R. E. Wilson, a temporary injunction.

Appellant, an employee of the City of Pasadena, Texas, sued appellee, Comer Whitaker, individually and as the Mayor of the City of Pasadena, Texas, joining the City of Pasadena as a necessary party, .to restrain appellee, Comer Whitaker, from interfering with appellant in the exercise of the duties of the office of Inspector in the Water and Sewer Department of the City of Pasadena, and for an injunction ordering appellee Whitaker to sign, as May- or, all just warrants for compensation which are or may become due and owing to appellant so long as he remains an officer and employee of the City.

The court in his order denying the injunction, stated:

“ * * * the Court having considered the verified petition of Plaintiff, and the Defendants having filed no sworn petition (sic) in contravention thereof, and before hearing on Defendants’ exceptions and motion to dismiss, and having heard the argument of counsel, and it appearing to the Court that based on Plaintiff’s petition, mandamus is the proper remedy rather than the temporary injunction sued for, the said temporary injunction is hereby denied, * *

The law is well settled in this State that the granting or refusing of a temporary injunction is within the sound discretion of the trial court, and that the court’s action will not be disturbed on appeal, unless it clearly appears that the court has abused its discretion. Harding v. W. L. Pearson & Co., Tex.Com.App.1932, 48 S.W.2d 964; Southwestern Associated Tel. Co. v. City of Dalhart, Tex.Civ.App., 254 S.W.2d 819, error ref., n. r. e.; 24-A Tex.Jur. 382, Injunctions § 265 and cases cited. The sole question before us is whethér the trial court abused its discretion.

The trial court had before it only the verified petition of appellant. In such petition appellant alleges that unless the ap-pellee Whitaker is restrained from unlawfully interfering with appellant’s office, he will continue to obstruct appellant from enjoying the office and will withhold from him his just compensation for his services as fixed by the City Commission; that under the city charter Comer Whitaker must sign all warrants issued to appellant in payment of compensation and said Comer Whitaker has stated that he will not do so until ordered by a court; that appellant would show that he has no adequate remedy at law and will suffer irreparable and immediate injury unless the court by its order restrains and enjoins appellee from obstructing appellant in the conduct of his office and orders ap-pellee to sign as Mayor all just warrants for payment of compensation to appellant so long as he remains an officer and employee of the City of Pasadena. Appellant also alleges that he had been appointed by the City Commission to the office of Inspector in the Water and Sewer Department, and was receiving as compensation therefor the sum of $472.50 per month.

The allegations in appellant’s petition that he has no adequate remedy at law and will suffer irreparable injury are mere conclusions. Appellant has not alleged or established by any evidence facts showing either lack of an adequate remedy or irreparable damage. He has not pleaded that either of the appellees is insolvent or that they could not respond in damages. There is no evidence to such effect. An irreparable injury is “an injury of such a nature that the injured party cannot be adequately compensated therefor in damages, or that the damages which result therefrom cannot be measured by any certain pecuniary standard.” Lowe & Archer, Injunctions and Extraordinary Proceedings, § 312, p. 321; Gulf Oil Corporation v. Walton, Tex.Civ.App., 317 S.W.2d 260, and authorities cited. Specific facts should be alleged in the petition which show the probability of irreparable injury. 24-A Tex. Jur., § 176, p. 281, and authorities cited.

The petition must state all, and negative all, which is necessary to establish a right. Gillis v. Rosenheimer, 64 Tex. 243; Pearson v. Black, Tex.Civ.App., 106 S.W.2d 787; Birchfield v. Bourland, Tex.Civ.App., 187 S.W. 422.

It is true that the trial court, in denying the temporary injunction, stated that it appeared to the court that mandamus is appellant’s proper remedy rather than the temporary injunction sued for. The court was merely expressing its conclusion of law. We find it unnecessary to determine on this hearing whether such conclusion is right or wrong. The order of the court clearly shows that the court did consider the verified petition of appellant and heard the argument of counsel and denied the temporary injunction. The law is well settled that an appellate court will sustain the judgment of the trial court if it is correct on any theory of law applicable to the record, regardless of whether or not the trial court gives the correct legal reason for its judgment, or gives any reason at all. Southwestern Associated Tel. Co. v. City of Dalhart, Tex.Civ.App.1952, 254 S.W.2d 819, writ ref., n. r. e.; Construction & General Labor Union, Local 688 v. Stephenson, 148 Tex. 434, 225 S.W.2d 958; Gulf Land Co. v. Atlantic Refining Co., 134 Tex. 59, 131 S.W.2d 73.

This Court is required to view all the evidence and legitimate presumptions consistent with the record in the light most favorable to the judgment of the trial court’s exercise of discretion in denying the temporary injunction. Southwestern Associated Tel. Co. v. City of Dalhart, supra; Bond v. Owen, Tex.Civ.App., 257 S.W.2d 833; Daniel v. Goesl, Tex.Civ.App.1960, 336 S.W.2d 890, reversed on other grounds, 341 S.W.2d 892. It is our view that appellant’s petition fails to establish his right to the temporary injunction sued for. It does not appear that the trial court abused its discretion.

Affirmed.