author: PHILLIPS, Justice.

text:
    RAILROAD COMMISSION of Texas et al., Appellants, v. BROWN EXPRESS, INC. et al., Appellees.
    No. 11387.
    Court of Civil Appeals of Texas. Austin.
    Feb. 9, 1966.
    Rehearing Denied March 9, 1966.

      Waggoner Carr, Atty. Gen., Howard M. Fender, Sam Kelley, Asst. Attys. Gen., and Kelley, Looney, McLean & Littleton, and Rogers Kelley and Jackson Littleton, Edinburg, and Dean Moorhead, Austin, for appellants.

      Baker, Botts, Shepherd & Coates, Edwin N. Bell, Houston; McKay & Avery and C. N. Avery, Jr., Austin; Mills, Shirley & Mc-Micken, Galveston; James, Robinson & Starnes and Phillip Robinson, Austin, for appellees.
   PHILLIPS, Justice.

This suit was filed by appellees Brown Express, Inc., Central Freight Lines, Inc., Red Arrow Freight Lines, Inc., Red Ball Motor Freight, Inc., Santa Fe Trails Transportation Company and Southern Pacific Transport Company as an appeal from an order of the appellant Railroad Commission of Texas, dated November 12, 1964, wherein the Commission approved the sale and transfer by appellant Southern-Plaza Express, Inc., hereinafter called “Southern-Plaza,” to appellant Ryder Truck Lines of Texas, Inc., hereinafter called “Ryder of Texas,” of Common Carrier Motor Carrier Certificates Nos. 3739, 2054, 4014, 3605, 2119 and 3589. In their suit, appellees also attack a December 3, 1964 order of the Commission overruling a “complaint” which they filed in connection with certain aspects of the application to sell and the hearing thereon.

Appellees are competing motor carriers on the routes covered by the six Certificates, and they contested the sale in the proceedings before the Railroad Commission. Appellees’ exceptions to the November 12, 1964 and December 3, 1964 orders were overruled by the Commission in two orders dated December 16, 1964, and appellees filed this suit one day later, securing a temporary restraining order at that time which, together with a subsequent temporary injunction, blocked the proposed sale and kept appellants under temporary restraint until entry of judgment by the trial court, nearly eight months later.

Trial without a jury was had the week of February 8, 1965; and on August 9, 1965, the District Court entered judgment setting aside and declaring void the Commission orders of November 12, 1964 and December 16, 1964 approving the sale, together with the orders of December 3, 1964 and December 16, 1964, pertaining to appellees’ complaint. In addition, the judgment perma-anently enjoined the Railroad Commission from taking any further action pursuant to said orders in its Motor Carrier Docket No. A-1531 (the Docket on the application to sell), and permanently enjoined appellant Ryder of Texas from commencing or conducting any operations under the orders in that docket.

Appellants duly excepted to the judgment and gave notice of appeal to this Court.

We reverse and render the judgment of the trial court.

Appellants are before us with twenty-one points of error; however they state that the following three points are sufficient to bring before us all of the questions involved in this appeal. These points are as follows:

“Point One: The trial court erred in setting aside and declaring void the orders of the appellant Railroad Commission in Motor Carrier Docket No. A-1531, dated November 12, 1964 and December 16, 1964, wherein the Commission authorized appellant Southern-Plaza to sell and transfer Common Carrier Motor Carrier Certificates Nos. 3737, 2054, 4014, 3605, 2119 and 3589 to appellant Ryder of Texas; and the trial court further erred in issuing its permanent injunctions against the appellant Railroad Commission and appellant Ryder of Texas.
Point Two: In setting aside and declaring void the orders in Motor Carrier Docket No. A-1531, the trial court erred in admitting' evidence concerning so-called dormancy and concerning adequacy of service by other carriers, investments of other carriers, possible injury to such carriers, and the other constituent elements of public convenience and necessity; and the trial court further erred in basing its ruling upon such evidence, since neither public convenience and necessity nor dormancy is a proper issue in a sale and transfer proceeding.
Point Three: The trial court erred in setting aside and declaring void the orders of the appellant Railroad Commission, dated December 3, 1964, and December 16, 1964, overruling appel-lees’ complaint.”

The intrastate Certificates involved in this case are owned by appellant Southern-Plaza, which is a Missouri Corporation. That Corporation has had a continuous existence since its incorporation, however, it has undergone certain changes insofar as ownership of its capital stock and its name are concerned. As of the date of this appeal and when the Commission hearing was held and the orders involved in this case were issued, it has reverted to its original name of Southern-Plaza. It operates under that name and legal title to the six Certificates in question is in its name.

Prior to 1958, Southern-Plaza conducted intrastate operations under the six Certificates. Southern-Plaza also owned and operated certain interstate rights derived from the Interstate Commerce Commission.

The Ryder System, Inc. at that time was the parent Corporation of one of the largest carrier systems in the United States and its publicly owned stock is listed on the major exchanges. This parent corporation also operates through numerous subsidiaries.

Through a series of stock transfers between 1958 and 1964 involving the Ryder System, Inc. as parent Corporation and Ryder of Texas as a subsidiary, the Commission was asked to ratify former agreements between Ryder of Texas and Southern-Plaza which specifically provided that the latter would transfer the six Certificates in question to the former when and if Commission approval was had.

It is this contract and this contemplated transfer of the Certificates that is the heart of this lawsuit.

I.

The pertinent parts of the Texas Motor Carrier Law applicable here are as follows:

Section 3 of the Texas Motor Carrier Law (Article 911b Vernon’s Ann.Tex.Civ. St.) provides in part:

“No motor carrier shall, after this Act goes into effect, operate as a common carrier without first having obtained from the Commission, under the provisions of this Act, a certificate of public convenience and necessity pursuant to a finding to the effect that the public convenience and necessity require such operation.”

Elaborating upon this requirement, Section 8 provides:

“The Commission is hereby vested with power and authority, and it is hereby made its duty upon the filing of an application for a certificate of public convenience and necessity to ascertain and determine under such rules and regulations as it may promulgate, after considering existing transportation facilities, and the demand for, or need of additional service, if there exists a public necessity for such service, and if public convenience will be promoted by granting said application and permitting the operating of motor vehicles on the highways designated in such application as a common carrier for hire.”

Section 9 specifies. further matters which the Commission may and shall consider in making its ultimate decision as to the presence or absence of public convenience and necessity upon original issuance of a certificate, or denial thereof.

The first paragraph of Section 5 of the Law provides in part:

“No motor carrier shall hereafter operate as a common carrier for the transportation of property for compensation or hire over the public highways of this State without first having obtained from the Commission, under the provisions of this Act, a certificate declaring that the public convenience and necessity requires such operation;

Insofar as here material, the second paragraph of Section 5 provides:

“Any certificate held, owned or obtained by any motor carrier operating as a common carrier under the provisions of this Act may be sold, assigned, leased, transferred or inherited; provided, however, that any proposed sale, lease, assignment or transfer shall be first presented in writing to the Commission for its approval or disapproval, and the Commission may disapprove such proposed sale, assignment, lease or transfer if it be found and determined by the Commission that such proposed sale, assignment, lease or transfer is not in good faith or that the proposed purchaser, assignee, lessee or transferee is not able or capable of continuing the operation of the equipment proposed to be sold, assigned, leased or transferred in such manner as to render the services demanded by the public necessity and convenience on and along the designated route, or that said proposed sale, assignment, lease or transfer is not best for the public interest; the Commission, in approving or disapproving any sale, assignment, lease or transfer of any certificate, may take into consideration all of the requirements and qualifications of a regular applicant required in this Act and apply same as necessary qualifications of any proposed purchaser, as-signee, lessee or transferee; * * *.”

During the hearing before the examiner, counsel for appellees attempted to use witnesses to establish such matters as to the adequacy of existing service on the routes covered by the Certificates, the investments of the contesting carriers, and the adverse effects that those carriers would allegedly suffer if the sale was approved. Appellees proposed to put on evidence of exactly the same type that is ordinarily used to establish “public convenience and necessity” on the original issuance of the common carrier Certificate.

The examiner sustained objections to this type of evidence.

In addition to attempting to interject the matter of “public convenience and necessity” into the hearing, appellees also attempted to inject the doctrine of “dormancy” or “nonuser,” contending that the six Certificates were not subject to sale because they had become dormant by alleged disuse.

The examiner also excluded this type of testimony from the hearing.

During the trial of the case, the trial court did not so limit the issues and permitted, over repeated objections of appellants, ap-pellees to develop fully all of their evidence pertaining both to public convenience and necessity and to dormancy.

II.

The portions of the Motor Carrier Law set out above cover two entirely separate and distinct matters, viz. (1) the original issuance of the certificate; and (2) a subsequent sale or transfer of such certificate. Sections 3, 8 and 9, together with the first paragraph of Section S, cover original issuance. The second paragraph of Section 5 deals with subsequent sale.

A prerequisite to orginal issuance is that the Railroad Commission act affirmatively. That it make an affirmative finding to the effect that public convenience and necessity require the operation.

No such prerequisite attends subsequent sales since the statute provides that, once issued, a certificate “may be sold, assigned * * * transferred,” without the need for affirmative action or affirmative findings of any character. The Commission’s only power over such sales is a veto whereby it “may disapprove” a proposed sale if it finds and determines that (1) the sale is not in good faith, (2) the purchaser is not capable of continuing the operation, or (3) the sale is not best for the public interest.

When the Commission enters an order originally issuing a certificate, the path is a familiar one. With judicial review being upon the basis of the substantial evidence rule, the court merely follows the procedure of determining whether the Commission’s order is or is not supported by substantial evidence.

However, where, as in the case at bar, the Commission has issued an order approving a subsequent sale of a certificate, the problem of judicial review is entirely different. A Commission order approving such a sale is in effect an order of “no disapproval,” since the statute itself grants the power to make the sale. Therefore, an order of approval is not necessary to confer the power of sale; and any such order can only mean that the Commission is refraining from exercising its veto power. Such an order does mean that the Commission has not found that (1) the sale is not in good faith; (2) the purchaser is not capable of continuing the operation, or (3) that the sale is not in the public interest.

We hold that the trial court erred in permitting the appellees to introduce testimony of either public convenience and necessity or of the question of dormancy or prolonged non-use of the certificate.

In its judgment, the trial court made numerous findings and conclusions concerning dormancy and such elements of public convenience and necessity as adequacy of service of other carriers, investments by other carriers, and injury to other carriers. Evidently, the trial court’s belief that such matters are both proper and necessary issues in a sale and transfer proceeding was the principal factor that lead to its invalidation of the orders of November 12, 1964, and December 16, 1964, approving the sale.

The Texas authorities, culminating with the decision of the Supreme Court in Tarry Moving & Storage Co. v. Railroad Commission, 367 S.W.2d 322, Tex.Sup.Ct.1963, wherein that Court affirmed a judgment of this Court, 359 S.W.2d 62, clearly hold that public convenience and necessity is not a proper issue in a sale and transfer proceeding such as the one at bar. Likewise, the decisions reveal that public convenience and necessity cannot be brought into a sale and tranfer proceeding under the guise that it is an element of the “public interest” or “capability” criteria referred to in the second paragraph of Section 5 of the Motor Carrier Law.

The Tarry case involved a specialized motor carrier certificate. Such certificates are governed by Section 5a of the Motor Carrier Law, rather than by Section 5. However, the two Sections are exactly alike in their frame-work, with each requiring a finding of public convenience and necessity upon original issuance and with each containing identical language giving the Commission the power to disapprove a proposed sale if it finds that the sale is not in good faith, the purchaser is incapable, or the sale would not be in the public interest.

In the Tarry case, four certificates had originally issued and had later been consolidated. At a later date, the consolidated certificate was divided into four certificates, thereby restoring the situation as it was upon original issuance. The owner then obtained Commission approval to sell three of the certificates to three separate individuals, retaining one certificate for himself. At the hearing, as in the case at bar, the Commission did not hear evidence pertaining to public convenience and necessity and made no determination on that issue. In that case, as in the instant case, the opposing carriers contended that the Commission erred in failing to consider public convenience and necessity, urging that such issue was an element in the Commission’s appraisal of “public interest” under the transfer portion of the statute.

In rej ecting such contention, the Supreme Court said:

“We brought the case here to determine the principal point in controver-sey, to-wit: does Section 5a(a) of Article 911b, authorizing the Commission’s disapproval of a sale if ‘not best for the public interest’ when construed in the light of other provisions of the statute, impose the duty upon the Commission to consider the question of public convenience and necessity in passing upon the application to divide and sell the consolidated certificate or a part thereof under the facts above outlined? We now concur with the Court of Civil Appeals in answering that question in the negative.
This exact question had not heretofore been passed upon by our appellate courts nor does the statute itself expressly provide an answer.
Tarry Company contends that this transaction comes squarely within Section 5a (a) which provides that before a specialized motor carrier certificate may be sold or transferred, an application therefor must be presented to the Commission and the Commission may disapprove if it determines that the sale is not (a) in good faith or (b) that the purchaser is unable to continue the operation so as to render the services demanded by public necessity and convenience or (c) that the sale is not best for the public interest. It further contends that since the Commission did not in its hearing require any showing that this transaction was ‘best for the public interest/ the orders of the Railroad Commission cannot stand and must be stricken. Tarry insists that when a certificate has been purchased and consolidated with another certificate, the two have been unified and merged into a single certificate; that the original certificate is dead and cannot be revived; that in fact and in law, the application here was for the issuance of three new certificates, and therefore it would require all the proof and procedure as outlined for a new certificate under the statute. Tarry argues that three additional carriers have been authorized by this order, which indicates necessity for the consideration of public interest. * * *
The Commission insists that the situation here no more affects the public interest than would be the case if the original four certificate holders had sought permission to sell their certificates to four other individuals. Convenience and necessity for the service had already been determined, and by the sale the service would not be altered where the Commission had found upon a hearing that the purchasers had bought in good faith and would continue the operation so as to render the service demanded by public interest and convenience.
In L. A. Norris Truck Line v. Railroad Commission, Tex.Civ.App., 245 S.W.2d 746, wr. ref., the application was to divide from the certificate and sell the right to transport oil-field equipment. The attack made on the Commission’s order granting the application was based on the fact that there had been offered no evidence of public convenience and necessity to support that order. The Court of Civil Appeals in upholding the order observed: ‘The question of necessity and convenience having been determined by the Commission at the time the original cerifí-cate was granted, there was no occasion to or authority for the reopening of such question upon the application for the sale and transfer of the divided por tion of the certificate.’ That holding is strongly persuasive in favor of the Commission’s contention here. If the public interest need not be expressly shown where the application is to divide the certificate as to commodities, then it would be logical to assume that the public interest would not be impaired where the application is to divide the territory. In each case an additional carrier will be created, but no change effected in the character of the service to be rendered. See also Roberdeau et al. v. Railroad Commission, Tex.Civ.App., 239 S.W.2d 889.
Tarry Company demonstrates the similarity between the Federal Interstate Commerce Act, Sec. 5(2) affecting unifications, mergers and acquisition of control, with 5a (a) of our act and cites certain federal decisions which lend support to its contention, among them being Southwest Transportation Company-Purchase-Johnson, 35 M.C.C. 437; McLean Trucking Co. v. United States, 321 U.S. 67, 64 S.Ct. 370, 88 L.Ed. 544; and Pacific Intermountain Express Company-Control and Merger-Union Transfer Co., 12 F.C.C. 40724. These generally hold that operating rights may not be indefinitely removed from active use and preserved for subsequent transfer to an additional motor carrier when conditions may have materially changed in the territory both as to competition and traffic and to allow this practice would be inconsistent with the public interest.
We quite agree that the paramount consideration, in both State and Federal regulations controlling public transportation and common carriers, is that of the public interest. But whether in this case the old certificates lie dormant and thus are subject to sale with the Commission’s approval or new certificates issued to the purchasers is largely theoretical.
It makes no practical difference whether we say the old certificates were revitalized or that new certificates were issued; the result of the division and sale is the same, at least so far as the public is concerned.
Tarry Company also cites Houston & North Texas [Motor] Freight Lines v. Johnson, 140 Tex. 166, 166 S.W.2d 78, for the proposition that in order to authorize the division of an existing certificate into two parts and the sale of one of the parts, the Commission should find that the division and sale will not impair the service to the public. In that case the holding was, that before an application to divide and sell a portion of the certificate could be approved, it must be considered and acted upon at a regular or called meeting of the Commission. Since that procedure had not been followed we reversed and remanded.
We did, however, take occasion to point out in view of the possibility of a later consideration of the matter, the Commission should take the matter of public interest into account. The application there sought to break up one through route into two connecting short routes, thus necessitating an interchange on commodities billed for shipment over the original through route, which in some instances might not serve the public as adequately as before the route was broken up. The application called for a change in the character of service rendered.
It may reasonably be said that since the Commission has found in this case that (1) the purchaser is financially able and capable of maintaining the service authorized; (2) the equipment proposed to be used by him meets all requirements; (3) he agrees to conduct operations in the same manner as theretofore authorized; (4) the appli cation is made in good faith; and the further fact that the Commission found initially that ‘convenience and necessity’ required this service, the public interest has been sufficiently considered.
There is substantial merit in Tarry’s contention. The question is a close one; however, the scales are weighted with the departmental construction consistently given over the past 25 years, namely, that ‘public convenience and necessity’ is not involved in consolidations or divisions of specialized motor carrier certificates. The Director of the Motor Transportation Division, employed in that capacity since 1938, testified the Commission has allowed carriers to divide certificates since 1934 and that at the hearing on such an application no proof of convenience and necessity would be required. He further testified neither division nor consolidated orders change in any manner the authority which existed theretofore. * * *
Taking into consideration the Attorney General’s opinion, the construction placed upon the statute by the Commission, and the custom and practice adhered to over a period of many years, we are constrained to hold that in acting upon the application here considered, it is not necessary for the Commission to require evidence establishing convenience and necessity.” 367 S.W.2d 323-325. (Emphasis added.)

The decision of the Supreme Court in the Tarry case covers every important aspect of the case at bar.

In the first place, the Supreme Court— construing the portion of Section 5a which, in language verbatim with the corresponding portion of Section 5, deals with sales and transfers held that the “public interest” provision of those two Sections does not “impose the duty upon the Commission to consider the question of public convenience and necessity,” and that “it is not necessary for the Commission to require evidence establishing convenience and necessity.”

Secondly, in that case the Commission made the identical four findings in its order approving the sale that it made in its order in the instant case, to-wit, that:

“(1) the purchaser is financially able and capable of performing and maintaining the service as authorized by such certificate; (2) that the equipment proposed to be used in such operation by the purchaser meets the requirements of the law and the rules and regulations of this Commission in respect to safety devices, dimensions, etc.; (3) that the purchaser agrees to conduct such motor truck operation in the same manner as heretofore authorized; and (4) the application to sell and transfer is made in good faith.”

These four findings did not include any specific finding by the Commission, one way or the other, on the matter of “public interest.” In Tarry, as in the case at bar, the protesting carriers made much of the fact that the Commission did not make any express finding on public interest. In that regard, the Supreme Court said:

“It may reasonably be said that since the Commission has found in this case (the Court then recited the four findings quoted above); and the further fact that the Commission found initially that ‘convenience and necessity’ required this service, the public interest has been sufficiently considered.” 367 S.W.2d at 325.

This statement disposes of appel-lees’ argument herein that the Commission order of November 12, 1964, is somehow fatally defective because it does not include any express, specific finding on public interest. In making such statement, the Supreme Court was, as it pointed out in its opinion, expressing the same thought that had earlier been expressed by this Court in L. A. Norris Truck Line v. Railroad Commission, 245 S.W.2d 746 at 748 (refused, 1952) as follows:

“The question of necessity and convenience having been determined by the Commission at the time the original certificate was granted, there was no occasion to or authority for the reopening of such question upon the application for the sale and transfer of the divided portion of the certificate.”

Thirdly, in the Tarry case the opposing carriers tried to get the Supreme Court to accept their dormancy theory by arguing that the Texas statute was comparable in this respect to the ICC Act, and they urged upon the Court Interstate Commerce Commission decisions of the same type as those that appellees have urged here. As the foregoing quotation from the opinion in the Tarry case reveals, the Supreme Court made mention of the ICC decisions cited by the opposing carriers and then refused to follow the dormancy theory.

As a fourth matter, the Court made mention of its earlier decision in Houston & North Texas Motor Freight Lines v. Johnson, 140 Tex. 166, 166 S.W.2d 78 (1942), wherein the Court had said that, upon reconsideration, the Commission should find that the division of the certificate and “sale of a part thereof will not impair the service to the public,” and the Court explained that statement in the Johnson case by saying “The application called for a change in the character of service rendered” — which explanation is what distinguishes the case at bar from that involved in Railroad Commission v. Jackson, 157 Tex. 32, 299 S.W.2d 266 (1957), a case upon which appellees place primary reliance herein.

Finally, in the Tarry case, the Supreme Court attached great importance to the testimony by the “Director of the Motor Transportation Division, employed in that capacity since 1938” concerning departmental construction and departmental practices. As is stated in the opinion of this Court in the Tarry case, the Director of the Motor Transportation Division referred to by the Supreme Court was Mr. Horace Soule, the same gentleman who testified on behalf of appellants concerning departmental practices and construction in the instant case. Concerning Mr. Soule’s testimony, this Court said:

“Mr. Soule in his capacity as Director of the Motor Transportation Division of the Railroad Commission is in charge of administering the provisions of Art. 911b, V.C.S., under the supervision and direction of the Railroad Commission of Texas. In such capacity as well as in his capacity as Examiner for the Motor Transportation Division over a period of almost twenty five years he was eminently qualified to testify as to the long standing departmental construction and interpretation of the statutory provisions by the Railroad Commission of Texas. Departmental construction or interpretation of the statutory provisions which an administrative body or board is empowered to enforce need not be reduced to written words to become effective nor is departmental construction or interpretation of a statute necessarily found in rules and regulations which such administrative body or board by law is authorized to promulgate. Therefore the Trial Court did not err in admitting the testimony of Mr. Horace Soule in his official capacity as Director and Examiner of the Motor Transportation Division of the Railroad Commission of Texas as to the departmental construction and interpretation by the Commission over a long period of time of the powers and authority granted it under the provisions of Art. 911b.” 359 S.W.2d 62 at 67 (1962).

In the case at Far, Mr. Soule gave exactly the same kind of testimony that he did in the Tarry case and much more.

Thus, as he did in the Tarry case, Mr. Soule testified that the Commission has never required, or permitted, testimony concerning public convenience and necessity in a sale and transfer proceeding, or deemed that to be a proper issue in such a proceeding. Additionally, he testified that the Commission has never adopted or followed any theory of dormancy — that the Commission merely determines administratively whether a certificate that is the subject of a proposed sale is “in good standing” insofar as reports, registration, insurance, fees, etc., are concerned; and, if the certificate is found to be in good standing in accordance with those standards, that the application for sale is set down for hearing, with no consideration being given to so-called dormancy.

III.

In addition, with respect to the 10% tax for the Highway Fund which is levied by the Texas Motor Carrier Law, Mr. Soule testified that the Commission has always followed the literal language of the Statute (Sections 5 and 5a) and has applied the 10% figure to the “amount paid as a consideration” for the certificate regardless of what the market value or the appraised value of the certificate might be. Furthermore, he stated that in transactions between a parent and a subsidiary, or other members of the same “corporate family,” the Commission considers the transfer to be in the nature of moving the certificate from one pocket to the other and customarily accepts the amount stated in the application as being the amount of consideration “paid.”

IV.

Consequently, five vital facets of the case at bar were ruled on by the Supreme Court in the Tarry case, either squarely or by necessary implication; (1) Section 5, like Section 5a, does not “impose the duty upon the Commission to consider the question of public convenience and necessity” in a transfer proceeding. (2) The four findings made in the Tarry case, which are identical to the four made in the instant case, plus “the further fact that the Commission found initially that ‘convenience and necessity’ required this service,” demonstrate that “the public interest has been sufficiently considered.” (3) The ICC decisions and the dormancy theory upon which appellees rely were rejected by the Supreme Court. (4) The Jackson case, upon which appel-lees also place reliance, is explainable upon the same ground by which the Supreme Court explained the Johnson case in its opinion in Tarry, viz., that the sale contemplated therein would create a new type of service. (5) The testimony of Mr. Soule concerning departmental practices and policies is of much importance and carries great weight.

Nor does the Supreme Court’s decision in the Tarry case stand alone in its ruling on several of these matters. As the Court’s opinion reflects, in rejecting the contention that public convenience and necessity is a proper issue, the Court followed the earlier decision to the same effect by this Court in the Norris case, wherein the Supreme Court had refused a writ. As will hereinafter be pointed out, in addition to being rejected in Tarry, appellees’ dormancy doctrine was also rejected by this Court in the Norris case.

In addition, when the Tarry case was before it, this Court ruled:

“Under their 6th point of error appellants contend that the Commission’s order authorizing the sale from Jeter to Hafmeister contains no findings required by Section 5a(a), Art. 911b, and does not meet the requirements of Sec. 6(d), Art. 911b, and is therefore void. Under the provisions of Section 5a(a) the Commission is not required to make findings of any nature on its approval of the sale and transfer of the certificate but the only findings required are to be made by the Commission in the event that it disapproves the sale for one of the reasons authorized for disapproval. The provisions of Sec. 6(d), Art. 911b, apply only in the granting of new certificates and therefore are not applicable here.” 359 S,W.2d at 66. (Emphasis added.)

These statements to the effect indicate that an order of approval in this type of case is nothing more or less than an order of “no disapproval,” for which no findings are required and which merely removes the possibility of a veto and thereby clears the •way for the parties to exercise the power of sale that the statute itself grants them. Additionally, these statements point up the conceptual difficulties, also referred to above, of attempting to apply the substantial evidence rule to negative action of this character where no findings are required.

Finally, as the Supreme Court noted in its opinion in Tarry, Roberdeau v. Railroad Commission, Tex.Civ.App., 239 S.W.2d 889 (1951), original opinion reinstated, 244 S.W.2d 887, n. r. e. 1951, also lends support to the views above expressed. As this Court said in Tarry, referring to Rober-deau, “practically the same questions involved herein were (there) decided adversely to appellants’ contention.” 359 S.W.2d at 66.

Therefore, appellees’ contention that the issue of public convenience and necessity must be considered by the Commission in a sale and transfer proceeding, because it is an element of the “public interest” referred to in Sections 5 and 5a, is by no means a novel theory, and the case at bar is by no means a case of first impression on that point. The theory has been twice advanced before the Supreme Court and has been twice rejected by it, first by its refusal of a writ in the Norris case, and next by its ruling in Tarry, plus its reiteration therein of its endorsement of Norris. Additionally, the theory has been thrice rejected by this Court — in Norris, in Roberdeau and in Tarry.

IV.

With -respect to appellees’ contention and with the court’s judgment pertaining thereto respecting the refusal of the Commission to entertain their complaint under Section 12(b) of the Motor Carrier Law providing as follows:

“The Commission at any time after hearing, had, upon notice to the holder of any certificate or permit and after opportunity given such holder to be heard,, may by its order revoke, suspend or amend any certificate or permit issued under the provisions of this Act, where in such hearing the Commission shall find that such certificate or permit holder has discontinued operation or has violated, refused or neglected to observe the Commission’s lawful orders, rules, rates or regulations or has violated the terms of said certificate or permit; provided, that the holder of such certificate or permit shall have the right of appeal as provided in this Act.”

It will be noted that this statute is permissive in nature and says only that, upon a finding of discontinuance of operations, the Commission “may” revoke a certificate, not that it “must.” In Attorney General’s Opinion No. 0-3558, dated June 5, 1941, the Railroad Commission submitted questions concerning a carrier who ceased regular service as authorized to the City of Seguin and began serving that City with a highly irregular schedule. One of the questions submitted was as follows:

“Where an applicant presents proof of public convenience and necessity and of inadequacy of existing facilities and thereby obtains a certificate of public convenience and necessity (intrastate) on the theory that he is going to render a regular service and then renders irregular service, is it mandatory upon this Commission in such case to cancel his certificate?”

With respect to such question, the Attorney General said:

“We do not believe that a carrier’s failure always to operate its certificate over a particular part of its line in accordance with the terms of the certificate will always necessarily require the Commission to enter an order revoking, suspending or amending the same, regardless of reasons which might exist to justify such failure. There is left in the Commission at least a certain amount of discretion in respect to such matters. The statute does not say that such a failure will automatically work a forfeiture of the right to operate a line in connection with which such failure occurs, nor does it say that the Commission must enter an order of revocation, suspension or amendment. * * *
* * * The substitution of irregular schedules in practice would not necessarily make it incumbent upon the Commission to cancel the certificate.”

One of the grievances about which ap-pellees complained in the trial court, and with respect to which the trial court made findings and conclusions, was that they filed a “complaint” with the Commission requesting the Commission to invoke its Section 12(b) jurisdiction and cancel the certificates in question, which complaint the Commission refused to entertain and overruled. With respect to such complaint the Commission refused to entertain and overruled. With respect to such complaints, this Court said in Stotts v. Railroad Commission, Tex.Civ.App., 236 S.W.2d 210, writ refused, 1951:

“We have been cited to no statute and have found none, requiring a complaint to be lodged with the Commission as a prerequisite to exercise of the authority conferred on the Commission by the above statute.”

As this statement reflects, there is no statute which provides that, upon filing of a complaint, the Commission must inevitably call a Section 12(b) hearing, nor is there any statute that even contemplates such complaints. If the Commission has discretion whatever under Section 12(b), it must have discretion to refuse to call a hearing in response to any and all complaints, especially when the statute nowhere provides that the Commission’s jurisdiction shall be initiated by the filing of a complaint and, indeed, when the statute is completely silent on the subject of complaints.

Moreover, under the permissive “may revoke” language of Section 12(b), particularly as that language was construed by the Attorney General nearly a quarter of a century ago, even if the Commission had called a hearing in response to appellees’ complaint and had found as a fact that operations under the certificates had wholly or partially been discontinued, revocation of the certificates would not automatically follow from such finding; and, notwithstanding such finding, the Commission would still have retained discretion to revoke or not revoke as it deemed proper.

While the statute itself is silent on the matter of complaints, such matter is referred to in the Commission’s Rule 59 as follows:

“The Commission, either on its own motion or upon receipt of sufficient written complaints, may at any time after legal notice to all interested parties cite anyone operating under its jurisdiction to appear before it in a public hearing and require it to show cause why his or its operating authority should not be cancelled, or otherwise restricted and limited. * * *” (Emphasis added.)

It will be noticed that this Rule tracks the statute and also uses only the permissive word “may,” rather than providing that under any and all circumstances the Commission “must” call a hearing upon receipt of a complaint. Moreover, in addition to this discretion, the Rule plainly reserves unto the Commission the sole discretion to determine what constitutes a “sufficient” written complaint within the meaning of the Rule.

Consequently, appellees had no absolute vested right to require the Commission to call and conduct a hearing merely because they had filed a complaint, and the Commission violated no duty when it refused to do so. Additionally, even if the Commission had called the hearing and had found that there was a partial or total discontinuance of operations, appellees would not thereby have acquired any kind of right to require the Commission to revoke the certificates, and the Commission would have breached no duty had it failed to do so.

We reverse the judgment of the trial court and render judgment upholding the Railroad Commission orders of November 12, 1964, December 3, 1964 and December 16, 1964 and set aside and dissolve the permanent injunctions issued by the trial court.

Reversed and rendered.

      . The remaining points of error are as follows:
      Point Four: The trial court erred in finding and concluding in paragraph 3 of its judgment that “At no time time during the several years of its existence prior to the entry of the orders under review did Ryder Truck Lines of Mo., Inc., file or keep on file with the Railroad Commission * * * any current schedules of service over the routes and between the points authorized to be served under the terms and provisions of” the six Certificates; there is no evidence to support such finding and conclusion; in the alternative, there is insufficient evidence to support the finding and conclusion; in the further alternative, the finding and conclusion is contrary to the overwhelming weight and preponderance of the credible evidence; and, in any event, the finding and conclusion is immaterial and irrelevant with respect to any proper issue in this case.
      Point Five: The trial court erred in finding and concluding in paragraph 3 of its judgment that “Southern-Plaza Express, Inc., and its predecessor, Ryder Truck Lines of Mo., Inc., in fact discontinued and failed to render scheduled service, or any other character of service, in Texas intrastate commerce at numerous terminal points and at many points and places on and along the routes authorized to be served” in the six Certificates and “discontinued and failed to maintain a level and frequency of service in interstate commerce in Texas sufficient to enable it to offer and to render an active and competitive intrastate service at the remainder o£ the points authorized to be served under said Certificates;” there is no evidence to support such findings and conclusions; in the alternative, there is insufficient evidence to support such findings and conclusions; in the further alternative, the findings and conclusions are contrary to the overwhelming weight and preponderance of the credible evidence; and, in any event, the findings and conclusions are immaterial and irrelevant with respect to any proper issue in this case.
      Point Six: The trial court erred in finding and concluding in paragraph 5 of its judgment that the questions of no service or insufficient service under the six Certificates, together with the question of whether the Certificates were in good standing and subject to transfer and the question of public interest if the Certificates were transferred, were before the trial court in Cause No. 137,014 and were determined on the merits against appellants in the judgment entered in said Cause; there is no evidence to support these findings and conclusions; and they are also legally unsupported.
      Point Seven: The trial court erred in finding and concluding in paragraph 5 of its judgment that, if the orders here under review in Docket No. A-1531 were sustained, “new and substantially different competitive services could come into existence following such transfer as a result of revival and reestablishment of such abandoned and discontinued service;” there is no evidence to support such finding and conclusion; in the alternative, there is insufficient evidence to support such finding and conclusion; in • the further alternative, the finding and conclusion is contrary to the overwhelming weight and preponderance of the credible evidence ; and, in any event, the finding and conclusion is immaterial and irrelevant with respect to any proper issue in this case,
      Point Eight: The trial court erred in the findings and conclusions made in paragraph 6 of its judgment concerning the transfer tax levied by the Motor Carrier Law; there is no evidence to support such findings and conclusions; in the alternative, there is insufficient evidence to support such findings and conclusions; in the further alternative, the findings and conclusions are contrary to the overwhelming weight and preponderance of the credible evidence; and, in any event, the findings and conclusions are immaterial and irrelevant with respect to any proper issue in this case.
      Point Nine: The trial court erred in finding and concluding in paragraph 10 of its judgment that “Determination of the issue of whether a proposed transfer and sale of a common carrier certificate of public convenience and necessity would be ‘best for the public interest’ requires the Railroad Commission to consider” the questions narrated in said paragraph 10, including the question of public convenience and necessity.
      Point Ten: The trial court erred in finding and concluding in paragraph 11 of its judgment that an express finding that approval of the proposed sale and transfer would be best for the public interest “is a mandatory prerequisite to an order approving transfer of these Certificates,” and the court further erred by finding and concluding that “There is no substantial evidence to support either an express or implied finding that approval of said proposed sale and transfer would be best for the public interest.”
      Point Eleven: The trial court erred in finding and concluding in paragraph 12 of its judgment that there is no substantial evidence to support the finding in the Commission’s order of November 12, 1964 that the application to sell and transfer was made in good faith. Point Twelve: The trial court erred in finding and concluding in paragraph 13 of its judgment that there .is no substantial evidence to support the finding in the Commission’s order of November 12,- 1964 that the purchaser is capable of performing and maintaining the service authorized in the six Certificates.
      Point Thirteen: The trial court erred in finding and concluding in paragraph 14 of its judgment that there is no substantial evidence to support the finding in the Commission’s order of November 12, 1964 that the equipment proposed to be used by the purchaser meets the requirements of all applicable laws and regulations.
      Point Fourteen: The trial court erred in finding and concluding in paragraph 15 of its judgment that there is no substantial evidence to support the finding in the Commission’s order of November 12, 1964 that the purchaser agrees to conduct the motor carrier operation in the same manner as theretofore authorized.
      Point Fifteen: The trial court erred in finding and concluding in paragraph 16 of its judgment that there is no substantial evidence to support the conclusion of the Railroad Commission in its order of November 12, 1964 that the application to sell and transfer should be approved.
      Point Sixteen: The trial court erred in its finding and conclusion in paragraph 17 of its judgment that the orders in Docket No. 8-1531, dated November 12, 1964 and December 16, 1964 are unreasonable and unjust as to appellees.
      Point Seventeen: The trial court erred in finding and concluding in paragraph 9 of its judgment that the Commission failed and refused to conduct a full and fair hearing in accordance with law in Motor Carrier Docket No. A-1531 in that the Hearing Examiner refused to permit appellees to develop evidence relating to whether the proposed sale was in good faith, whether the proposed purchaser was capable of rendering services demanded by public convenience and necessity, whether the proposed sale was best for the public interest, and whether the proposed purchaser met all requirements of law; there is no evidence to support such findings and conclusions; in the alternative, there is insufficient evidence to support such findings and conclusions; in the further alternative, the findings and conclusions are contrary to the overwhelming weight and preponderance of the credible evidence; and, in any event, the findings and conclusions are immaterial and irrelevant with respect to any proper issue in this case.
      Point Eighteen: The trial court erred in finding and concluding in paragraph 7 of its judgment that the complaint filed by appellees which is referred to in said paragraph was never heard by the Commission; there is no evidence to support such finding and conclusion; and the undisputed evidence is to the contrary.
      Point Nineteen: The trial court erred in finding and concluding in paragraph 8 of its judgment that the Commission’s orders of December 3, 1964, and December 16, 1964, in the Dockets pertaining to the six Certificates, and the action of the Commission reflected by the orders, were “arbitrary, unreason-sonable, unjust and unlawful, and denied plaintiffs their rights guaranteed under Article 911b V.C.S., and denied plaintiffs Due Course of Law and Due Process of Law as guaranteed by Section 19 of Article I of the Constitution of Texas and the Fourteenth Amendment to the Constitution of the United States;” there is no evidence to support such findings and conclusions; in the alternative, there is insufficent evidence to support such findings and conclusions; in the further alternative, the findings and conclusions are contrary to the overwhelming weight and preponderance of the credible evidence; and, in any event, such findings and conclusions are immaterial and irrelevant with respect to any proper issue in this case.
      Point Twenty: The trial court erred in finding and concluding in paragraph 18 of its judgment that there is no substantial evidence to support the finding and opinion expressed in the Commission’s order of December 3, 1964, in the Dockets pertaining to the six Certificates, wherein the Commission overruled appellees’ complaint.
      Point Twenty-One: The trial court erred in finding and concluding in paragraph 19 of its judgment that the orders of December 3, 1964 and December 16, 1964, in the Dockets pertaining to the six Certificates, are unreasonable and unjust as to appellees.

      . Original opinion reinstated in Tex.Civ. App., 244 S.W.2d 887, wr. ref., n. r. e. (Footnote by the Court)

      . Also, la Roberdeau, this Court emphasized the importance of the departmental practices and policies by the Railroad Commission in a case of this character, 239 S.W.2d at 895, thereby foreshadowing its similar comments in Tarry some eleven years later.

      . Additionally, in Railroad Commission of Texas v. Jackson, 157 Tex. 32, 299 S.W.2d 266 (1957), the Supreme Court observed “ * * * as the usual thing, the transfer of a certificate from one carrier to another does not involve the issue of public convenience and necessity * * *".


source: Caselaw Access Project

author: BATEMAN, Justice.

license: Public Domain

text:
    GEARY, HAMILTON, BRICE & LEWIS, Appellant, v. COASTAL TRANSPORT COMPANY, Inc., et al., Appellees.
    No. 16661.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 4, 1966.
    Andress, Woodgate, Richards & Condos, Dallas, for appellant.
    Vinson, Elkins, Weems & Searls, Ray-bourne Thompson and W. H. Drushel, Jr., Houston, for appellees.
   BATEMAN, Justice.

Appellant sued appellees Coastal Transport Co., Inc. and R. L. Atwell, Jr. for debt. Both defendants filed pleas of privilege to be sued in Harris County, that of Coastal Transport Co., Inc. being as follows:

“PLEA OF PRIVILEGE OF DEFENDANT COASTAL TRANSPORT CO., INC.

“Comes now Defendant, COASTAL TRANSPORT CO., INC., a corporation, claiming its privilege to be sued in the county of its residence and says that it was not at the time of the institution of this suit, nor at the time of the service of process herein, nor at the time of filing of this plea, a resident of Dallas County, the County in which the suit was instituted, but was a resident of Harris County, Texas, post office address Box 66849, Houston, Texas, and no exception to exclusive venue in the county of one’s residence provided by law exists in said cause.” (Italics ours.)

(Proper affidavit of the defendant followed.)

That of appellee R. L. Atwell, Jr. was in similar form. Following each plea of privilege was a special exception and a sworn denial of the account sued on, all filed together as one pleading in three parts. Appellant did not file a controverting plea to either plea of privilege. Both pleas of privilege were sustained and appellant presents two points of error on appeal.

The first point is that in the absence of a prayer in connection with the plea of privilege, the court erred in ordering the case transferred, a prayer being essential to a plea of privilege. We see no merit in this point. The cases cited by appellant, to the effect that a prayer is an essential part of a pleading, have no application here because, as held in Terrell v. Vandergriff, Tex.Civ.App., 351 S.W.2d 910, no wr. hist., a plea of privilege is more than a pleading; it constitutes prima facie proof of the defendant’s right to a change of venue. The pleas of privilege here, by the language used in the very first sentence, put the court and the plaintiff on notice that the defendants were “claiming” the privilege of being sued in the county of their residence, stating it. The pleas also contained all of the other information required by Rule 86, Texas Rules of Civil Procedure. That rule makes no requirement of a prayer. It is our view that the pleas in question were in sufficient compliance with the rules to make prima facie proof of the appellees’ right to be sued only in Harris County, and that in the absence of a controverting plea asserting a right to maintain the suit in Dallas County the district court of that county was powerless to take any action in the case except to order it transferred to Harris County. See also Pennsylvania Ins. Co. v. Storbeck & Gregory, Tex.Civ.App., 391 S.W.2d 811, no wr. hist.; and Kinder & Keach v. Adams Nat. Bank, Tex.Civ.App., 184 S.W.2d 536, wr. dism.

The following is quoted from McDonald, Texas Civil Practice, § 4.43(d) :

“The prayer should indicate the order sought, usually one transferring the action to the county of the defendant’s residence. But the omission of the prayer is not fatal to the plea, especially when the plea and venue hearing disclose that the transfer must be made, and can only properly be made, to one county.” (Italics ours.)

On these authorities and for these reasons the first point is overruled.

By its second point of error the appellant contends that since the special exception and denial are not made expressly subject to the plea of privilege, the jurisdiction of the court was invoked by the prayer at the end of the special exception, and that this constituted a waiver of the plea of privilege, citing Mooney Aircraft, Inc. v. Adams, Tex.Civ.App., 377 S.W.2d 123, no wr. hist.

In the Mooney case we held that a defendant who filed pleas of privilege in two companion cases and thereafter, before a hearing on the venue question, filed and presented to the court a motion to consolidate the cases, which motion was granted, thereby waived his pleas of privilege. That decision was based principally upon the opinion of the Commission of Appeals in O'Neal v. Texas Bank & Trust Co. of Sweetwater, 118 Tex. 133, 11 S.W.2d 791, wherein it was held that a defendant who filed pleas of privilege in two companion suits, and prior to a hearing on either filed a plea to abate one suit pending hearing of the other and, subject thereto, a motion to consolidate the cases, and obtained a hearing of his plea in abatement, waived the pleas of privilege. We made the following excerpt from the opinion in O’Neal a part of our opinion in Mooney:

“We do not hold that mere filing of a plea in abatement (of the kind shown here), even though the question as to privilege of venue be not expressly saved in the plea amounts to a waiver; what we do hold is that, if such a plea with its issues be actually submitted for determination before action on the plea to venue, there is submission to jurisdiction of the court with consequent waiver of the latter plea.”

In both O’Neal and Mooney the pleas invoking the jurisdiction of the court were actually submitted or presented to the court and rulings thereon demanded. In the case before us, however, there is nothing in the record to indicate that the special exception or anything else in the case was presented to the court for decision prior to the hearing of the pleas of privilege. That being true, we are unwilling to hold that a waiver of the pleas of privilege was shown.

Both points of error are overruled and the order appealed from is

Affirmed.


author: CHADICK, Chief Justice.

text:
    Guy MOORE, Appellant, v. Robert Lee SPENCER, Appellee.
    No. 7698.
    Court of Civil Appeals of Texas. Texarkana.
    Jan. 25, 1966.

      Harry Friedman, Harkness & Friedman, Texarkana, for appellant.
    Cahill Hitt, Atehley, Russell, Hutchinson & Waldrop, Texarkana, for appellee.
   CHADICK, Chief Justice.

This is a common law tort action. The judgment of the trial court is affirmed.

Guy Moore, the appellant, following an automobile collision brought this suit as plaintiff to recover damages for personal injury and property damage from appellee Robert Lee Spencer, the defendant in the court below. In the first trial of the ease Police Officer Fred Hazlett testified in person as a fact witness and underwent cross-examination by appellant’s counsel. A mistrial resulted because the jury could not agree upon a verdict. The case was tried a second time, and this is an appeal from a take nothing judgment rendered therein. The jury found Robert Lee Spencer’s negligence in several particulars was the proximate cause of the collision, but that Guy Moore’s contributory negligence in failing to keep a proper lookout was a proximate cause also.

Police Officer Hazlett was not present to testify at the second trial. During the second trial Spencer’s counsel tendered a transcript of a part of the officer’s first trial testimony to be read to the jury. Objection that such testimony was hearsay was interposed, but the trial judge permitted Haz-lett’s previous testimony to be read to the jury.

Preliminary to the admission of Hazlett’s first trial testimony evidence was offered that between the time of the first and second trial Hazlett came by the office of Spencer’s counsel and advised him that he had been employed by the Federal Prison Bureau as a guard at McAlester, Oklahoma, and that he was leaving Texas. Before the second trial date Spencer’s counsel investigated the witness’s whereabouts and found that Hazlett had moved from the residence he formerly occupied in Bowie County. In a period shortly preceding the second trial, a subpoena summoning Hazlett as a witness in the case issued out of the trial court and the Sheriff’s Return on the instrument recites that it was not executed because Haz-lett was “out of state”.

Evidence adduced in previous proceedings, considered as hearsay, is admissible as an exception to the hearsay rule when a proper foundation is laid for its reception. The rule, fully supported by authoritative decision, is stated in 1 Texas Law of Evidence 719, Sec. 941, in this language :

“ * * * statements made in evidence upon a previous judicial proceedings may be received upon a subsequent trial as evidence of the truth of such statements where the witness who gave the evidence upon the former hearing is now dead or unavailable, provided the party against whom the evidence is now offered (or some one else claiming under the same right or title) had the opportunity to cross-examine the witness at the former trial upon the same issue as that upon which the evidence is now offered.”

This rule is modified to some extent in criminal cases by Article 750, Code of Criminal Procedure, but in civil cases it has been consistently held that the absence of a witness from the state is such unavailability as to render his former testimony admissible. Trinity & B. V. R. Co. v. Geary (1917, Galveston) Tex.Civ.App., 194 S.W. 458, 459 (Syl. 2), error refused; Kurz v. Soliz (1921, San Antonio) Tex.Civ.App., 231 S.W. 424 (Syl. 1); Baker v. Sands (1911, Austin) Tex.Civ.App., 140 S.W. 520 (Syl. 1); Morris v. Davis (1927, Austin), Tex.Civ.App.; 292 S.W. 574; Carter v. Irvine (1934, Waco) Tex.Civ.App., 77 S.W.2d 247.

The appellant does not express disagreement with the rule but challenges the sufficiency of the proof that officer Hazlett was out of state and unavailable as a witness, asserting “The basic issue in this case is whether hearsay testimony is sufficient to lay the predicate for the admission of testimony of a witness at a previous trial, when the testimony of that witness is the key testimony of the whole lawsuit”. The specific contention is that evidence that Hazlett stated out of the presence and hearing of appellee, Guy Moore, that he was going to McAlester, Oklahoma, to work as a guard for the Bureau of Prisons is hearsay and without probative force as to Moore, as is the other evidence relating the details of an investigation undertaken to ascertain Hazlett’s whereabouts. The same infirmity, that it is hearsay evidence, is said to render the Sheriff’s Return ineffectual as probative evidence.

The Sheriff’s Return is probative evidence that Hazlett was outside the State of Texas and as a public record was admissible as an exception to the hearsay rule. Art. 37.31a, Vernon’s Ann.Tex.Civ. St; Evidence, 32 C.J.S. Evidence § 633, p. 803; 20 American Jurisprudence 844, Sec. 995; Witness, 61 Texas Jurisprudence 2d 535, Sec. 12; 2 Texas Law of Evidence 151, Sec. 1280. The return was made in the performance of a duty placed upon the Sheriff by law. Rule 178, Vernon’s Ann.Tex. Rules of Civil Procedure. The record contains no evidence contradicting the Sheriff’s Return. The return itself does not show the fact stated therein to be hearsay or a conclusion based upon hearsay. Whether the other evidence tending to show Hazlett to be out of Texas is sufficient as a basis for the admission of Hazlett’s first trial testimony, in the absence of the Sheriff’s Return, is not a decisive issue in this appeal. The judgment of the trial court is affirmed.


author: WERLEIN, Justice.

text:
    Gladys DOBSON, a single woman, Appellant, v. GULF SUPPLY COMPANY, Inc., et al., Appellees.
    No. 14609.
    Court of Civil Appeals of Texas. Houston.
    Feb. 17, 1966.
    Rehearing Denied March 17, 1966.

      Phelps, Kilgarlin & Snell, Jim S. Phelps, Houston, for appellant.
    Bobbitt & Kraft, Karl E. Kraft, Houston, for appellees.
   WERLEIN, Justice.

Appellant brought this suit to recover damages for personal injuries sustained by her in a rear-end collision at about 10:30 a. m. on March 13, 1962. One Joe F. Williams was joined as a party plaintiff in the suit but during the trial he took a non-suit.

Appellant testified in substance that while her car was stopped facing a red light at the intersection of Scott Street and Griggs Road in Houston, waiting for the traffic light to turn green, the rear end of her automobile was struck by a Chevrolet pick-up truck owned by appellee, Gulf Supply Company, Inc., and driven by its employee, one Q. L. Anderson. Anderson, on the other hand, testified in substance that he had driven up behind appellant’s automobile and had come to a stop without striking appellant’s car, and that when the traffic light turned green appellant started up and he started the truck which struck the rear end of appellant’s car when she came to a sudden stop before entering the intersection.

The jury, in answer to Special Issues, found that immediately prior to the collision Anderson failed to keep such lookout as an ordinarily prudent person would have kept in the exercise of ordinary care under the same or similar circumstances, and that such failure was a proximate cause of the collision in question. The jury did not find that Anderson failed to make a proper application of the brakes of the truck, nor did the jury find that Anderson while operating the truck was following the automobile being driven by appellant more closely than a person of ordinary prudence in the exercise of ordinary care would have done under the same or similar circumstances immediately prior to the collision in question.

The jury also found that appellant brought her automobile to a sudden stop before entering the intersection after the signal light had turned green; that she failed to give such warning of her intention to stop her automobile as a person of ordinary prudence would have done in the exercise of ordinary care under the same or similar circumstances; and that such failure was a proximate cause of the collision in question. The jury found $329.00 for medical expenses incurred by appellant as a proximate result of the collision, and $3,500.00 for the personal injuries sustained by her. The court entered judgment on the jury verdict that appellant take nothing. Appellant’s motion for judgment non ob-stante veredicto, and her amended motion for new trial, were overruled.

In her motion for judgment non obstante veredicto appellant alleged that there was no evidence that appellant failed to give ap-pellee Anderson a warning of intention to stop, and further that even if she did fail to give a warning it would not be a proximate cause of the collision since said ap-pellee would never have seen the warning because of his failure to keep a proper lookout. In her amended motion for new trial, appellant alleged that there was no evidence and insufficient evidence to support the jury’s finding to Special Issue No. 7 that appellant brought her automobile to a sudden stop before entering the intersection after the signal light had turned green, and also that there was no evidence and insufficient evidence to support the jury’s findings to Special Issues Nos. 8 and 9, respectively, that appellant failed to give such warning of her intention to stop her automobile as a person of ordinary prudence in the exercise of ordinary care would have done, and that such failure was a proximate cause of the collision in question.

The jury in finding in answer to Special Issue No. 7 that appellant brought her automobile to a sudden stop before entering the intersection after the signal light had turned green, manifestly accepted appellee’s version of the manner in which the collision occurred. We cannot say that there is no evidence or insufficient evidence to support the jury’s finding to such issue. No issue with respect to whether such sudden stop constituted negligence was requested or given, and hence there was no finding that such sudden stop constituted negligence on the part of appellant and, of course, no finding of proximate cause with respect thereto.

The question arises, however, as to whether or not the jury’s answers to Special Issues Nos. 8 and 9 are supported by any evidence and if so whether such answers are against the great weight and preponderance of the evidence. Appellant’s testimony is that her car was stopped at the time of the collision, waiting for the red light to change to green. Whereas Anderson’s testimony was that the light turned green and appellant’s car started up and then came to a sudden stop. Appellant and appellee Anderson were the only eyewitnesses who testified as to what occurred at the time and on the occasion in question. In order to determine whether there was any evidence to support the findings of the jury to such issues, it is necessary to analyze the testimony of Anderson. We quote Anderson’s testimony as to what occurred:

Q Now, when you and she were both moving up, how far were you from her when — how close were you to her when you were moving up? Did you have a car’s length between you when you were moving up or were you bumper to bumper ?
A I wouldn’t say bumper to bumper.
Q How much distance was between you when you were moving up?
A I would say about three feet or something like that.
Q Did you see her brake lights come on?
A I didn’t pay that much attention. When she stopped I put my foot on the brakes and stopped.
Q Did you see her brake lights come on?
A I imagine they did.
Q> Did you see them come on?
A No, I didn’t see them come on.
Q You say she stopped all of a sudden. If you didn’t see the brake lights come on what made you—
A I was watching her car.
Q Watching the rear end of her car?
A I was watching her ear — I mean looking right at it when she stopped.
Q Looking right at her car?
A That’s right, it was in front of me.
Q You are telling us she stopped real fast?
A She stopped all of a sudden.
Q When you stop a car real fast you skid your wheels on the pavement. Did you see any of that? Did she skid her wheels?
A No, I didn’t see any of that.
Q What did you see that made you think she stopped real fast?
A I saw her car stop. I can see when a car is stopped.
Q What did you see that made you think her car stopped fast instead of slow?
A When she stopped, I can tell when a car stops.
Q What did you see that made you think it stopped fast instead of slow? What did you see?
A I saw the car stop all at once.
Q Did it sit down like this? (Demonstrating)
A It just stopped.

It thus appears from Anderson’s testimony that when appellant’s car started up, the distance between the vehicles was about three feet or something like that, and that when appellant stopped suddenly Anderson drove the truck into the rear of her car. As stated above, no negligence was predicated upon appellant’s car coming to a sudden stop but only upon her failure to give a signal or warning of such stop. The burden of proving that appellant gave no warning of her intention to stop was upon the appellees. Anderson, when asked, “Did you see her brake lights come on?” testified, “I didn’t pay that much attention.” When he was asked a second time whether he saw appellant’s brake lights come on, he testified, “I imagine they did.” When asked a third time whether he saw her brake lights come on, he said, “No, I didn’t see them come on.” He said he was looking at appellant’s car and he imagined that her brake lights came on, although he didn’t see them. He was saying in effect that he imagined or supposed or thought they came on but he didn’t see them. See definition of “imagine” in Webster’s New Collegiate Dictionary. He nowhere stated that the brake lights did not come on.

It is our view that appellee Anderson stated in effect that he didn’t know what happened, whether the brake lights came on or not. He just imagined that they did. Certainly this was no evidence of probative force that appellant’s brake lights did not come on. It is our view that appellees have failed to introduce any evidence whatever that appellant’s brake lights did not come on, although the burden was on them to make such proof.

The law is well settled that in considering points of error challenging a jury verdict and a judgment based thereon on the ground of no evidence, an appellate court should disregard all testimony in conflict with the findings, and consider only that evidence most favorable to the answers of the jury, indulging every legitimate conclusion which tends to uphold the same. Barker v. Coastal Builders, 1954, 153 Tex. 540, 271 S.W.2d 798; Fisher Construction Co. v. Riggs, Tex.1959, 160 Tex. 23, 325 S.W.2d 126. On the other hand, if reasonable minds cannot differ from the conclusion that the evidence lacks probative force it will be held to be the legal equivalent of no evidence. Woods v. Townsend, 1946, 144 Tex. 594, 192 S.W.2d 884.

In applying the foregoing rules of law to the instant case, we are of the opinion that the answers of the jury to Special Issues Nos. 8 and 9 are not supported by any evidence of probative force. We have concluded, therefore, that the court should have granted appellant’s motion to set aside such findings and should have entered judgment for appellant non obstante veredicto.

Appellees contend that the fact Anderson testified he didn’t see appellant’s brake lights come on although he was looking at her car, is some evidence that the lights did not come on. We do not agree in view of Anderson’s testimony as a whole. His statement that he imagined appellant’s brake lights came on, coupled with his testimony that he did not pay that much attention, clearly indicates that he didn’t know or remember what happened. Furthermore, there is no testimony by Anderson that he would have seen appellant’s brake lights had they come on or that he could have seen appellant’s brake lights from his position in the truck while following about three feet behind appellant’s car. The fact that he was looking at appellant’s automobile constitutes no evidence more than a scintilla that he was also looking at her brake lights.

If we assume without any proof thereof, that appellant’s brake lights did not come on, such failure would not constitute a proximate cause of the collision in question in view of the fact that according to the testimony of appellee Anderson his truck was only three feet or thereabouts behind appellant’s automobile. Nothing would have been accomplished by the brake lights coming on, since according to Anderson he was looking directly at appellant’s automobile and applied the truck brakes immediately when appellant’s car suddenly stopped. In following about three feet behind appellant’s car he was too close thereto to stop regardless of the illumination or lack of illumination of appellant’s brake lights. Hence the finding of the jury that appellant’s failure to give a warning was a proximate cause of the collision is, for such reason also, not supported by any evidence of probative force.

In view of our holding, it is not necessary to consider appellant’s other assignments of error. This Court is authorized and empowered to enter such judgment as the trial court should have entered. Judgment will be entered for appellant against appellees, jointly and severally, on the jury finding in the sum of $3,829.00 with interest at the rate of 6% per annum from date of judgment, November 20, 1964, and costs of court.

Reversed and rendered.


author: GREEN, Chief Justice.

text:
    UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellant, v. Linda EBERLY et al., Appellees.
    No. 212.
    Court of Civil Appeals of Texas. Corpus Christi.
    Feb. 24, 1966.

      Lee Mahoney, of Mahoney, Shaffer & Hatch, Corpus Christi, for appellant.
    Pat Morris, of Cohn & Morris, Corpus Christi, for appellees.
   GREEN, Chief Justice.

Appellees have filed a motion to dismiss this appeal, alleging that the order appealed from is not a final judgment, since it does not dispose of the damage issues. We sustain said motion, and order the appeal dismissed.

On August 4, 1963, according to appel-lees’ petition, they were riding as passengers in an automobile owned and driven by one Warren Robert Able, when such car was in collision with another vehicle, causing severe damages to plaintiffs in a sum in excess of $10,000.00 to each. This suit, originally brought by appellees against appellant and other defendants, sought a declaratory judgment that appellees (plaintiffs) are “insureds” within the meaning of, and are covered by, a policy of insurance and an “uninsured motorist” rider thereto issued by appellant to Able; that such policy and rider were in full force and effect on the day of the collision; that the collision was with an “uninsured automobile” within the meaning of the “uninsured motorist” rider; that appellant is liable to each plaintiff for her damages to the extent of the limits of liability as described in the policy; and prayed that each plaintiff “recover judgment of and from Defendant United Services Automobile Association for her injuries and damages suffered as a result of said collision.”

The petition sought recovery, in the alternative, against other named defendants.

The cause of action alleged against this appellant was severed, on motion of appel-lees, from all other claims, cross-claims, and causes of action alleged in the pleadings, and upon hearing appellees’ motion for partial summary judgment “for all of the relief sought against said Defendant (appellant) in Plaintiff’s Original Petition, except as to the amount of damages” was granted. Appellees admitted in their motion that an issue of fact existed as to the amount of damages.

It is from this order that appellant appeals. Although we believe that better form would have been for the court’s order to have set out specifically the relief granted, that point is not now before us.

Rule 166-A provides among other things that “a summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to amount of damages.” Such order is, as stated in the rule, interlocutory, and is not appealable. Minchen v. Murrah, Tex.Civ.App., 285 S.W.2d 372, writ ref.; Hill v. Wheat, Tex. Civ.App., 304 S.W.2d 599; Mungia v. Paiz, Tex.Civ.App., 397 S.W.2d 101; Ang-erstein v. Angerstein, Tex.Civ.App., 389 S.W.2d 519. Also see Joseph v. City of Ranger, Tex.Civ.App., 188 S.W.2d 1013, writ ref. w. m.

In the severed cause of action between appellees and appellant, plaintiffs’ petition expressly sought recovery for money damages. This issue was not disposed of by the order of the court. Such order therefore was not a final judgment, and this Court is without jurisdiction to entertain the appeal. Palmer v. D. O. K. K. Benevolent and Insurance Ass’n, 160 Tex. 513, 334 S.W.2d 149.

The appeal is dismissed without prejudice to the rights of appellant to assert on any subsequent appeal from a final judgment in this cause its objections and exceptions to the interlocutory summary judgment entered by the trial court.

NYE, J., not sitting.


author: WALTER, Justice.

text:
    Hilliard GONZALES et al., Appellants, v. FARMERS INSURANCE EXCHANGE, Appellee.
    No. 4016.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 17, 1965.
    Rehearing Denied Feb. 4, 1966.
    Everett & Brasseaux, Houston, Charles B. Everett, Houston, for appellants.
    Baker, Botts, Shepherd & Coates, Houston, William C. Bullard, Houston, for ap-pellee.
   WALTER, Justice.

Hilliard Gonzales and Noe Mata filed suit against Farmers Insurance Exchange for benefits under a family automobile policy written for Ramon Gonzales, the father of Hilliard. The case was tried before the court without a jury. The court rendered a judgment that the plaintiffs take nothing. They have appealed.

Appellants contend the court erred in refusing to award them a judgment because they proved they were entitled to recover under the policy and the insurance company “failed to plead and prove any exclusion denying coverage * *

The facts were stipulated and are substantially as follows:

The insurance company issued a Texas Standard Family automobile policy to Ramon Gonzales covering a 1961 Dart with bodily injury, property damage, and $2,000.00 medical payment coverage. The policy also covered a 1949 Pontiac with bodily injury and property damage coverage only, no medical payment coverage. During the policy period the 1949 Pontiac was exchanged for a 1954 Olds, by the named • insured. The appellants were passengers in the 1954 Olds, during the policy period, when it was involved in a collision and they were injured and received medical treatment. Hilliard Gonzales was the son of Ramon Gonzales and a resident of his household. Noe Mata was neither a relative nor a member of Ramon’s household. The policy was introduced in evidence by stipulation. The pertinent parts of the policy are as follows:

“PART II — EXPENSE FOR MEDICAL SERVICES
Coverage C — Medical Payments. To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical, X-ray and dental services, including prosthetic devices, and necessary ambulance, hospital, professional nursing and funeral services:
Division 1. To or for the named insured and each relative who sustains bodily injury, sickness or disease, .including death resulting therefrom, hereinafter called ‘bodily injury’, caused by accident, while occupying or through being struck by an automobile.
Division 2. To or for any other person who sustains bodily injury, caused by accident, while occupying (a) the owned automobile, while being used by the named insured, by any resident of the same household or by any other person with the permission of the named insured; or (b) a non-owned automobile, if the bodily injury results from (1) its operation or occupancy by the named insured or its operation on his behalf by his private chauffeur or domestic servant or (2) its operation or occupancy by a relative and it is a private passenger automobile or trailer not regularly furnished for the use of such relative.
Definitions. The definitions under Part I apply to Part II, and under Part II:
‘occupying1 means in or upon or entering into or alighting from; ‘an automobile’ includes a trailer of any type.”
“ ‘owned automobile’ means (a) a private passenger, farm or utility automobile described in the policy, (b) a trailer owned by the named insured, (c) a private passenger, farm or utility automobile ownership of any of which is acquired by the named insured during the policy period, provided (1) it replaces a described automobile, *
“When two or more automobiles are insured hereunder, the terms of this policy shall apply separately to each * * *»
“Exclusuons. This policy does not apply under Part II to bodily injury: (a) sustained while occupying (1) an owned automobile while used as a public or livery conveyance, or (2) any vehicle while located for use as a residence or premises; (b) sustained by the named insured or a relative (1) while occupying an automobile owned by or furnished for the regular use of either the named or any relative, other than an automobile defined herein as an ‘owned automobile’ *

The insurance company filed only a general denial. It did not plead any exclusion of the policy which would deny appellants a recovery. The appellants say, therefore, that the insurance company can not rely upon any exclusion in the policy because it failed to comply with Rule 94, Texas Rules of Civil Procedure, by pleading the exclusion.

Appellee contends that the appellants have waived any issue of pleadings by agreeing to submit the case to the court on an agreed statement of facts. The insurance company also contends that the issues were tried by implied consent under Rule 67 of T.R.C.P.

In Patton v. Wilson, Tex.Civ.App., 220 S.W.2d 184, (writ ref. n. r. e.), the court said:

“Appellant contends that we cannot here consider the question of want of consideration or lack of mutuality, because same was not affirmatively pleaded by appellee. We overrule this contention. It will be recalled that this case was submitted to the trial court upon agreed statement of facts, as is provided for by Rule 263 of Texas Rules of Civil Procedure. When a case is submitted to a trial court upon agreed statement of facts all issues with regard to pleadings are immaterial. The Praetorians v. Simons, Tex.Civ.App., 187 S.W.2d 238; Abilene Hotel Corp. v. Gill, Tex.Civ. App., 187 S.W.2d 708; * * *.”

The appellants rely on Southwestern Fire and Casualty Company v. Atkins, Tex.Civ.App., 346 S.W.2d 892 (no writ history). The question presented and decided in Atkins was the limits of coverage rather than the question of coverage. The question we are concerned with in this case is whether the appellants, passengers in the 1954 Olds, have coverage for expenses for medical services.

The record shows conclusively that the named insured did not apply for medical payment coverage on the Pontiac or the Olds.; that he was not charged a premium nor did he pay a premium for such coverage, and there was no intention on the part of the named insured to obtain such coverage nor on the part of the insurance company to furnish such coverage.

Under the “two or more automobiles” provision of the policy, we are compelled to view the policy as a separate policy on the 1961 Dart and a separate policy on the 1954 Olds. Appellants cannot recover under the Dart policy because the car in which they were injured is not described in the Dart policy. When we consider their claim under the policy on the 1954 Olds., we find no coverage for medical payments.

We have considered ail of appellants’ points and find no merit in them. They are overruled. The judgrtient is affirmed.

ON MOTION FOR REHEARING

In further support of our holding that issues with regard to pleadings become immaterial when a case is tried upon an agreed statement of facts, we quote from Bednarz v. State, 142 Tex. 138, 176 S.W.2d 562 (Supreme Court):

“The above rules, we think, make it clear that even though the defendant wholly fails to file any answer whatever, yet if the parties appear and try the case on certain issues without any objection on the part of the plaintiff to the failure of the defendant to file an answer, the plaintiff cannot raise the issue of insufficiency of the defendant’s pleadings for the first time on appeal.”

The motion for rehearing is overruled.


author: RENFRO, Justice.

text:
    David WASHINGTON, Appellant, v. Jessie R. CLEMENTS, Individually and as Next Friend for Tony L. Clements, a Minor, Appellee.
    No. 16705.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 18, 1966.

      Gerald E. Stockard, Denton, for appellant.
    Homer A. Brown, Garland, for appellee.
   RENFRO, Justice.

This is a venue case.

Suit was brought by Jessie R. Clements, individually and as next friend for his minor son Tony, against J. R. Washington and David Washington for damages allegedly sustained when plaintiff’s automobile struck a horse which belonged to defendants.

Appellant David Washington filed a plea of privilege in which he prayed the case as to him be transferred to Travis County.

Appellee’s controverting plea did not challenge defendant David Washington’s sworn statement that Travis County was the place of his residence. The controverting plea merely stated that David Washington committed a trespass in Denton County within the meaning of Exception 9a to Article 1995, Vernon’s Ann.Civ.St. The plea did not, even in general terms, state what acts or omissions were committed by David.

The plea of privilege was overruled.

David Washington appealed on the ground there was no evidence to support the judgment.

Appellee did not file a brief in this court, nor did he present oral argument.

In his brief appellant states that there was no pleading or evidence of any agency relationship between the defendants, no evidence of negligence by appellant or his co-defendant, and no evidence whatever of any acts which would impose liability or responsibility on either defendant. It is provided by Rule 419, Texas Rules of Civil Procedure, that any statement made by appellant in his original brief as to the facts or the record may be accepted by the court as correct unless challenged by opposing party.

The appellate courts have applied the above rule many times.

Representative of such cases are: Rogers v. Dickson, 157 S.W.2d 404 (San Antonio Civ.App., 1941, no writ hist.); Headstream v. Mangum, 174 S.W.2d 496 (Amarillo Civ.App., 1943, no writ hist.); Ammann v. Daniel Oil Co., 220 S.W.2d 181 (Austin Civ. App., 1949, no writ hist.); Van Pelt v. McCabe, 236 S.W.2d 685 (San Antonio Civ. App., 1951, no writ hist.); Clement v. Frantz, 333 S.W.2d 190 (Amarillo Civ.App., 1960, no writ hist.); Rippeteau v. Rippeteau, 287 S.W.2d 238 (Austin Civ.App., 1956, no writ hist.); Coates v. Coates, 355 S.W.2d 260 (Eastland Civ.App., 1962, no writ hist.); Ehrhardt v. Ehrhardt, 364 S. W.2d 471 (Houston Civ.App., 1963, no writ hist.); and Jack Ritter Inc. Oil Co. v. Fred Bandas and Sons, Inc., 387 S.W.2d 70 (Austin Civ.App., 1965, no writ hist.).

It was held in Sunray Enterprises, Inc. v. Rosenaur, 335 S.W.2d 670 (Dallas Civ. App., 1960, ref., n. r. e.), that an appellee who failed to brief the case on original hearing could not on motion for rehearing challenge correctness of appellant’s statement of the facts.

Since the unchallenged statements of appellant show clearly there was no evidence upon which venue could be sustained in Denton County as to appellant, the court erred in overruling his plea of privilege.

Reversed and cause as to David Washington ordered transferred to a district court in Travis County.

Reversed and rendered.