author: KLINGEMAN, Justice.

text:
    J. Lloyd PATTON et al., Appellants, v. U. E. ROGERS et ux., Appellees.
    No. 14579.
    Court of Civil Appeals of Texas. San Antonio.
    June 28, 1967.
    Rehearing Denied July 26, 1967.

      Stone, Tilley, Parker, Snakard, Law & Brown, Thos. H. Law, Sam Denny, Elton M. Hyder, Jr., Fort Worth, for appellants.
    Runge, Marschall, Hall & McLaughlin, William I. Marschall, Jr.,' San Angelo, for appellees.
   KLINGEMAN, Justice.

Suit by plaintiffs, U. E. Rogers and wife, Mary Evelyn Rogers, to cancel an oil, gas and mineral lease, dated March 24, 1962, executed by plaintiffs in favor of J. Lloyd Patton as lessee," covering a tract of approximately 999 acres in Menard County, Texas. The trial court, sitting without a jury, decreed that said lease “is declared to have terminated in accordance with its own terms and provisions on December 28, 1965,” but further ordered that defendants had the right to remove all personal property, including casing, from the lease. No findings of fact or conclusions of law were requested or filed by the trial court. From the judgment cancelling the lease, defendants, J. Lloyd Patton et al., have appealed, and plaintiffs, U. E. Rogers et ux., have appealed from that portion of the judgment authorizing the defendants to draw and remove the casing and other fixtures from the gas well on said land.

The lease in controversy was one of several executed by Rogers to Patton, and was known and identified as the Rogers “C” lease. Such lease was for a primary term commencing on March 24, 1962, the date of such lease, and ending on December 28, 1963, “and so long thereafter as oil, ■gas or other mineral is produced from said land.” It contains a customary shut-in royalty provision that where gas is not being sold or used, leasee may pay as royalty $50.00 per well per year; however, said lease also contains an attached rider providing, among other things, that notwithstanding anything in the lease to the contrary such lease could not be maintained in force solely by the payment of shut-in royalty for a period in excess of two years beyond the expiration of the primary term thereof. In August of 1963, a gas well was completed on the “C” lease, but was shut-in due to lack of a market. Although Patton was the operator of the “C” lease, he had assigned some of the working interest in such lease to the other defendants. No other wells were completed on such lease. Patton was also the operator and owned interest in the Rogers “D” lease, on which there was a producing oil well.

In a nonjury case where no findings of fact or conclusions of law are filed by the trial judge, the judgment should be affirmed if there is evidence to support it on any theory of the case. City of Abilene v. Meek, Tex.Civ.App., 311 S.W.2d 654, writ ref’d; Western Woods Products Co. v. Bagley, 274 S.W.2d 111, writ ref’d n. r. e.; 4 Tex.Jur.2d, Appeal and Error, § 747 (1959). In cases tried before the court without a jury, in the absence of a point that the judgment is contrary to the overwhelming weight and preponderance of the evidence, the rule is well settled that the judgment must be affirmed if there is any evidence of probative value to support it, and that only evidence which tends to support the judgment may be considered. Holley v. Painters Local Union No. 318, 376 S.W.2d 44, 46, writ ref’d n. r. e.; Frazier v. Williams, Tex.Civ.App., 359 S.W.2d 213, no writ. See also Wilson v. Teague Ind. School Dist., Tex.Civ.App., 251 S.W.2d 263, writ ref’d, and Calvert, “No Evidence and Insufficient Evidence Points of Error,” 38 Texas L.Rev. 361 (1961).

Defendants’ first point of error is that the trial court erred in rendering judgment terminating the “C” lease, since a bona fide commercial market for gas produced from the “C” lease existed on December 28, 1965.

It appears from the evidence that Patton had made various efforts to obtain a market for the gas, without success, but that in 1965 he was negotiating with Sinclair Oil & Gas Company and a market was promised. The signed gas purchase contract introduced in evidence bears the date of January 17, 1966. On December 22, 1965, six days before such lease would terminate in the absence of such production as would hold the lease, Patton ran a ½ inch pipe line from the gas well on the “C” lease to a producing oil well on the “D” lease, which said gas line was connected to a gas engine and a “heater-treater” which Patton had just installed on the “D” lease. This oil well had previously been pumped by an electric engine which Patton removed at this time. Patton maintains that he was having trouble with the oil being produced from such “D” well because of excessive emulsion and water in the oil, and that the device installed, which was sometimes referred to as a flow-line heater, was a device commonly employed to remove water and emulsion from oil. Patton testified that it was agreed between the owners of the “C” lease and the owners of the “D” lease that the owners of the “C” lease would be paid on a basis of 16 cents per M.C.F. for all gas taken from the “C” lease and used on the “D” lease, and that there would be a guaranteed minimum royalty payment of $100.00 a month for the gas taken. The working interest owners of the “C” lease and the “D” lease are identical, except for some small interest of which there is not common ownership.

Rogers contends that the implied findings of the trial court that there was not a bona fide commercial market is supported by the following evidence: (a) The nearest gas pipe line was approximately 9 miles away from the well, and the nearest town approximately 20 miles; (b) the agreed price of 16 cents per M.C.F. is almost twice the price of the nearest gas sales, and Patton himself testified that 10½ cents per M.C.F. was a fair market value; (c) such gas purchase for the operation of the “D” lease oil well increased the fuel cost to $1.54 per barrel for each barrel of oil produced, and it actually made the operation of such “D” lease well unprofitable; (d) Patton himself admitted that a good faith operator could not afford to pay $1.54 per barrel for fuel; (e) the production from such oil well decreased from an average of about 80 barrels per month to an average of about 60 barrels per month, following the change to the gas engine; (f) plaintiffs’ expert witness testified that the so-called “heater-treater” was nothing more than a “sophisticated flare,” that such heater could not separate the oil from the water, and that he could not see any useful purpose of such heater on such lease; (g) testimony to the effect that such heater-treater was not even lighted from shortly after its installation until after the suit was filed, a period of approximately three months, which testimony was disputed; (h) the oil produced from such oil well had previously been treated for this condition by a chemical method at a much lower cost than the gas-heat treatment; the average total monthly fuel or power cost for such oil well before the change to gas was about $12.76 a month, and after the gas “purchase” agreement such cost was many times that amount; (i) no real standard was used in arriving at the $100.00 per month minimum payment, except that Patton testified he “figured it would be more than fair,” and on the amount of gas used, according to metering, the price being paid under such minimum payment was almost 70 cents per M.C.F. in an area where the actual sales were at a price of less than 10 cents per M.C.F.; (j) no gas pipe line was being built to the lease on December 28, 1965, and on such date Sinclair didn’t have a gas line within nine miles of the “C” lease well.

While much of the evidence is conflicting, the trial court’s implied finding of lack of a bona fide market is sufficiently supported by evidence in the record and defendants’ “Point One” is overruled.

Defendants’ “Point Two” is that the trial court erred in terminating the lease since on December 28, 1965, Patton was operating the lease in the manner in which a prudent operator would operate under the circumstances.

Defendants assert, and we agree, that the law is well settled that even if a finding of no production in paying quantities is sustainable, in order to terminate the lease, there must also be a finding that a reasonably prudent operator would not have continued to operate the lease under the circumstances. Skelly Oil Co. v. Archer, 163 Tex. 336, 356 S.W.2d 774 (1962); Clifton v. Koontz, 160 Tex. 82, 325 S.W.2d 684 (1959); Ballanfonte v. Kimbell, Tex.Civ. App., 373 S.W.2d 119, writ ref’d n. r. e. However, many of defendants’ contentions in this regard support the proposition that a reasonably prudent operator under the circumstances would attempt to hold or save the lease, and defendants assert that the testimony is uncontroverted that a prudent operator having a signed contract with a major oil company would attempt to hold or save the lease. This is not the test set forth by the Courts in the above cited cases. Our Supreme Court in Clifton v. Koontz, supra, held that in the case of a marginal well the standard by which paying quantities is determined is whether or not, under all relevant circumstances, a reasonably prudent operator would, for the purpose of making a profit and not merely for speculation, continue to operate a well in the manner in which it was operated. In Skelly Oil Co. v. Archer, supra, the Supreme Court held that if the evidence established, as a matter of law, that Skelly was not making a profit from the well or if there is a fact finding, supported by evidence, to that effect, the lease should not yet terminate unless the evidence established as a matter of law, or lessor obtained a fact finding supported by evidence,' that a reasonably prudent operator would not have continued to operate the well under the circumstances.

Rogers, after testifying that he was an operator of oil and gas wells, testified un-qualifiedly that he would not attempt to continue to operate a well under the circumstances that existed. J. V. Northing-ton, Jr., an oil operator, in answer to hypothetical questions assuming that the income was 16 cents per M.C.F. run through the line and that the gross income was assumed to equal $100.00 per month, whether or not a reasonably prudent operator would continue to operate the gas well for the purpose of making a profit and not for speculation, stated that he would not.

Although there is testimony to the effect that a reasonably prudent operator would have continued to operate the well under the circumstances existing, there is also testimony to the contrary, and, giving credit to all evidence favorable to the findings and judgment of the court, the trier of the facts, we have reached the conclusion that there is evidence of probative force supporting the implied findings of the court, and defendants’ “Point Two” is overruled. Clifton v. Koontz, supra; Woodward v. Ortiz, 150 Tex. 75, 237 S.W.2d 286 (1951).

Defendants’ “Point Three” is that the trial court erred in rendering judgment cancelling the “C” lease since it was producing gas in paying quantities on December 28, 1965.

The term “paying quantities” means that the income to the lessee must be sufficient to pay the lessee a profit, though small, over operating and marketing expenses, although it may never repay the cost of drilling a well. Skelly Oil Co. v. Archer, supra; Garcia v. King, 139 Tex. 578, 164 S.W.2d 509 (1942).

The evidence as to whether there was production in paying quantities is conflicting. Defendants’ accountant testified that on a gross income of $100.00 per month, the minimum monthly payment for the sale of gas from the “C” lease to the “D” lease, according to his method of calculating allowable expenses, such well showed a gross profit of $255.85 for a six-month period, or $40.94 a month. Plaintiffs attack this contention on two grounds: (1) That such amount of $100.00 per month was not a bona fide sale, and did not represent an arm’s-length business transaction, but was merely an instance of where the working interest owners of the “C” lease and the “D” lease, whose interests were identical except for a small interest, got together and set a sale price solely for the purpose of showing that the “C” lease was operating at a profit; (2) that the method of allocation of expenses used by defendants’ accountant did not take in account many items of expense properly chargeable to such well, and if such items are considered the well was not producing in paying quantities even at such figure of $100.00 per month income.

In order that there be production in paying quantities, there must be an available market. Gulf Oil Corp. v. Reid, 161 Tex. 51, 337 S.W.2d 267 (1960); Garcia v. King, supra. In the Reid case, the Supreme Court said: “Thus, no matter how great the potential production may be or how many million cubic feet of gas may have been flared, there would be no production or production in paying quantities unless there was an available market; * * Since the court impliedly found that there was not a bona fide commercial market (Defendants’ Point One), under such holding defendants’ contention that there was production in paying quantities can not be sustained.

Plaintiffs assert that, including all of the gas flared, vented or in any manner run from the “C” well at the “agreed” sale price of 16 cents per M.C.F., according to the evidence, the largest amount of gas metered from such runs in any one month would produce a gross income of $25.93 a month, which would be less than the average monthly expense allocable to the “C” well according to defendants’ own accountant, to-wit, more than $36.00 a month. Plaintiffs further assert, assuming “argu-endo” that the figure of $100.00 per month can be considered as a bona fide production, that after taking off the landowner royalty and the severance tax, the gross income for the working interest would be $75.56 a month, and, according to plaintiffs’ method of allocating expenses, the monthly expense would exceed this amount.

The testimony is conflicting as to the expense properly allocable to such well, and this matter is complicated by the fact that Patton operated approximately twenty wells in this immediate area. Plaintiffs contend that a “per well” allocation of expenses would be fair, and there is evidence in the record of per well charges in excess of $100.00 per well in this area. Defendants admit that some of the expenses allocated to the well were on a “per well” basis, and defendants’ allocation of expenses appears to be a combination of expenses that are directly attributable to the well, and some items, such as telephone calls, were allocated on a per well area basis. There was testimony by Patton himself that he made an average of four or five calls a month at an average cost of around $6.00 to $7.00 a call in connection with the “C” lease. In addition, certain items of expense, such as road lease expense, certain employees expense and other expenses, which plaintiffs contended were directly attributable to overhead expenses of operating the well, were not included in defendants accountant’s expenses. There was also a conflict as to the proper amount of depreciation chargeable to such well. Plaintiffs contend, and there is evidence to support it, that if plaintiffs’ method of allocating expenses is accepted, the overhead and telephone expenses alone attributable to the lease, would exceed the $75.56 gross income from the well under the “assumed” sale at $100.00 per month.

The matter of allocation and calculation of expenses is a fact question. Sullivan and Garnett v. James, Tex.Civ. App., 308 S.W.2d 891, writ ref’d n.r.e. The question of whether there is production in paying quantities is a question of fact for the jury. Bain v. Strance, Tex.Civ.App., 256 S.W.2d 208, writ ref’d n. r. e.; Sullivan and Garnett v. James, supra. The trial court having considered all the testimony as to conflicting theories and methods of calculation and as to the various items of income and expense, impliedly found that there was no production in paying quantities. The evidence, though conflicting, is sufficient to support the trial court’s finding.

Defendants’ Points of Error Four and Five involve a construction of the same rider attached to the “C” lease, and such points will be discussed together.

Point Four is: “The trial court erred in rendering judgment terminating the ‘C’ lease since on December 28, 1965, gas was being ‘sold or used’ from the ‘C’ lease.”

Point Five is: “The trial court erred in cancelling the entire ‘C’ lease since a tender of shut-in royalty was made sufficient to keep the 40 acres around the ‘C-l’ well even if the rest of the lease terminated.”

The “C” lease contains a customary shut-in well provision providing for the payment of shut-in royalty of $50.00 per well per year, and also contains the following provision in an attached rider:

“Anything contained herein to the contrary notwithstanding, it is understood and agreed that this lease as to its entirety cannot be maintained in force solely by the payment of shut-in gas royalty for a period in excess of two (2) years beyond the expiration of the primary term hereof; however, if at the expiration of said two-year period, there is located on the above described land a well ' or wells capable of producing gas only (or gas and distillate only) and such gas is not sold or used, the Lessee herein may pay as royalty $40.00 per well per year and immediately release as to the Lessors, their heirs or assigns, all remaining acreage, save and except forty (40) acres in as nearly the form of a square as possible around such shut-in gas well, and upon such payment it will be considered that gas is being produced within the meaning of paragraph 2 above insofar and only insofar as the shut-in gas well or wells and the 40-acre drill-site surrounding same is concerned.”

Defendants paid $50.00 shut-in royalty in August of 1962, 1963, 1964 and 1965. They also tendered $50.00 shut-in royalty in November, 1965, but such tendered payment was returned by plaintiffs.

It is defendants’ contention, under Point Four, that the testimony shows that some gas was being sold and used on December 28, 1965, and that even if it is assumed that it was not in paying quantities lessees’ tender of the $50.00 shut-in payment, when taken together with the sale and use of such gas, was sufficient to hold such lease in its entirety. They contend that “solely” as used in such rider means only that such lease cannot be maintained beyond the two-year limitation period solely by the payment of the shut-in royalty; that if there is sale or use of any gas, whether or not in paying quantities, this is sufficient to maintain said lease in its entirety if such $50.00 payment is made. Plaintiffs’ position is that such provision is an absolute limitation upon how long such lease can be maintained in its entirety by shut-in gas well payments, and that while such lease could be maintained in effect after such two-year limitation period by other means authorized in the lease, it could not be maintained in its entirety beyond the two-year limitation period by the payment of the $50.00 shut-in royalty. They further contend that the $50.00 shut-in royalty applies only to the situation where gas is not sold or used from the well producing gas only, and that lessees cannot take the position that gas was being sold and used, and still rely on such shut-in provision to preserve the lease. It is our opinion that such provision limits the period of time to which such lease can be maintained in its entirety by the $50.00 shut-in payment, to a period of two years beyond the expiration of the primary term. Defendants’ Point Four is overruled.

In support of their Point Five, defendants maintain that because a tender of $50.00 shut-in royalty was made, since this was in excess of the $40.00 payment required in such rider to maintain the lease as to 40 acres around the “C” well, if it did not maintain the lease as to its entirety, that such tender was effective to maintain the lease as to 40 acres around the “C” lease. The applicable provisions of the rider in this connection are that if, at the expiration of such two-year limitation period, there is a well capable of producing gas, and such gas is not sold or used, the lessee may pay as royalty $40.00 per well per year and immediately release to lessor all remaining acreage except the 40 acres around the well, and such lease would be maintained as to such 40 acres.

The tendered $50.00 shut-in royalty check was introduced in evidence. Such check is dated Nov. 18, 1965, and contains this notation: “Shut-in gas royalty— U. E. Rogers ‘C’ #1.” No release as to the remaining acreage was tendered at that time or at any time. We do not believe this is such a tender as would preserve the 40 acres. In general, a rental clause requires strict and timely performance, and an error in the amount or date is fatal. 42 Tex.Jur.2d, Oil & Gas, §§ 220, 223 (1963). Defendants’ tender in no way ties in or identifies itself with the provision in the rider as to the payment of $40.00, it being different in amount, and being the amount provided in the printed portion of the lease for shut-in payments to maintain the lease in its entirety. Neither did lessees offer the release provided for in the rider, and while we do not pass on whether this in itself is fatal, it is some evidence that such tender was for the preservation of the entire lease. Such tender was not in accordance with the applicable provisions of the rider for maintaining the lease as to 40 acres around a well where gas is not sold or used. Defendants’ Point Five is overruled.

Plaintiffs appeal from that portion of the judgment authorizing the defendants to draw and remove the casing and fixtures from the gas well located on the “C” lease, and present two points of error: “POINT I. The District Court erred in authorizing the Defendants to draw and remove the casing and other fixtures from this gas well because the Defendants do not have the right to ruin or destroy a productive well by taking away such fixtures. POINT II. The District Court erred in failing to vest title to the casing and other fixtures in the gas well in the Plaintiffs upon their depositing the reasonable value of such fixtures (after deducting the cost of pulling, plugging and non-recoverable casing) into the registry of the trial court.”

The lease in question contained this provision : “Lessee shall have the right at any time during or after the expiration of this lease to remove all property and fixtures placed by Lessee on said land, including the right to draw and remove all casing.” The evidence appears undisputed that the removal of such casing would destroy the well. There is evidence in the record that such well was originally potentialed for 46 million cubic feet of gas per day, and later repotentialed for 12 million cubic feet of gas per day.

There is ample authority in Texas supporting the proposition that the owner of the casing does not have the right to ruin or destroy a productive well by taking away the casing. The holdings in these cases seem to be predicated on a theory of public policy of preventing waste of our natural resources. One of the earliest decisions in this regard was by this Court in Wisconsin-Texas Oil Co. v. Clutter, Tex.Civ.App., 258 S.W. 265, rev’d on other grounds, 268 S.W. 921 (Tex.Comm’n App. 1925), in which the Court held that while casing may be removed from a dry hole, an owner has no right to remove casing from a producing oil and gas well. The Court further stated that to permit such removal would mean to defy the law against waste in oil and gas production. A late decision on this matter is the case of Eubank v. Twin Mountain Oil Corp., Tex.Civ.App., 406 S.W.2d 789, writ ref’d n. r. e., where the Court held that under appropriate provisions in an oil and gas lease casing may be removed before or after the expiration of a lease from a nonproductive hole, but that the owner does not have the right to ruin or destroy a producing well by taking away the casing. Other cases supporting this proposition are: Woodson Oil Co. v. Pruett, Tex.Civ.App., 298 S.W.2d 856, writ ref’d n. r. e.; Meers v. Frick-Reid Supply Corp., Tex.Civ.App., 127 S.W.2d 493, writ ref’d judgmt cor.; Orfic Gasoline Production Co. v. Herring, Tex.Civ.App., 273 S.W. 944, no writ. Defendants cite the case of Cox v. Miller, Tex.Civ.App., 184 S.W.2d 323, writ ref’d, as supporting their contention that the court properly authorized the defendants to draw and remove the casing and other fixtures from the “C” gas well for the reason that such right was given to them under the lease. The Court in the Cox case, which involved a gas well capable of producing gas, held that the owner had a right to draw and remove the casing, but it is interesting to note that the judgment in that case provided that the plaintiff could keep the casing by paying to the owner of such casing $2,585.00, the value of the pipe in the well, which judgment of the trial court was affirmed by the Court of Civil Appeals. That case did not discuss the matter of public interest in preventing waste of our natural resources.

Defendants contend that none of the cases relied on by plaintiffs involved a situation where the lessor successfully obtained a finding of no production in paying quantities and in the same case was able to prohibit the pulling of the casing on the ground that the well was a producing well. However, the Court in the late case of Eubank v. Twin Mountain Oil Corp., supra, held that a lessee was properly denied the right to remove the casing he owned from three wells which were reasonably capable of producing and probably would produce in paying quantities. There are many cases where leases have been terminated by reason of failure to comply with some of the provisions of limitations in the lease, wherein there were wells involved with large production capabilities, as in Gulf Oil Corp. v. Reid, supra (failure to timely make a shut-in royalty payment), and Stanolind Oil & Gas Co. v. Barnhill, Tex.Civ.App., 107 S.W.2d 746, writ ref’d (lack of market). The decisions by the Courts hereinbefore cited prohibiting the pulling and removing of casing appear to be principally based on a matter of public policy to prevent waste and preserve our natural resources and, in, our opinion, such policy would cover and include such wells as were involved in the Reid case, the Barnhill case, and the case before us. Plaintiffs’ “POINT I” is sustained.

In support of their “POINT II” plaintiffs rely on the case of Eubank v. Twin Mountain Oil Corp., supra, where the Court, after denying the right of the owner (defendant) to remove the casing from three wells reasonably capable of producing, vested title to the casing in plaintiff upon his depositing the sum of $1,800.00 in the registry of the court, which sum was the reasonable value of the removable casing after deducting the cost of pulling and plugging. Plaintiffs ask this Court to reverse that portion of the judgment authorizing defendants to remove the casing and other fixtures from the gas well, and render judgment awarding title to such casing and fixtures to plaintiffs upon their depositing into the registry of the trial court the reasonable value of such casing and other fixtures, after deducting the cost of pulling and plugging and non-recoverable casing. The testimony shows the reasonable market value of the casing and other fixtures at the time of trial to be $2,465.00, without considering the cost of recovering such equipment or plugging the well. The only testimony in the record as to the reasonable market value of the casing and fixtures after deducting the costs of pulling, plugging and non-recoverable casing was by one of defendants’ witnesses who testified that after considering these items one would be lucky to come out with a few hundred bucks, and could come out with a minus figure. Under the state of the testimony, we do not see how this Court could determine the reasonable market value after deducting such costs.

The judgment of the trial court cancel-ling said oil, gas and mineral lease is affirmed and severed from said cause, but that portion of said judgment authorizing the defendants to draw and remove the casing and other fixtures is reversed and the cause remanded to the trial court for further proceedings not inconsistent with this opinion. All • costs are taxed against defendants.


source: Caselaw Access Project

author: WERLEIN, Justice.

license: Public Domain

text:
    CORPUS CHRISTI HARDWARE COMPANY, Appellant, v. Eugene B. FARRAR et ux., Appellees.
    No. 15111.
    Court of Civil Appeals of Texas. Houston.
    June 15, 1967.

      Rankin, Kern, Martinez & Van Wie, Stonewall Van Wie, III, McAllen, for appellant.
    Bing & Willy, Anthony Willy, Freeport, for appellees.
   WERLEIN, Justice.

This is an appeal by appellant, Corpus Christi Hardware Company, from an order of the trial court overruling its plea of privilege in a suit brought against it and R. G. Coleman and wife, Joyce Coleman, defendants in the District Court of Brazoria County, Texas, by appellees, Eugene Buford Farrar and wife. Appellees alleged in their original petition that they were residents of Brazoria County, and that appellant was a business corporation duly incorporated under the laws of the State of Texas, with its principal office and place of business at Corpus Christi, Texas, and the Colemans were residents of Brazoria County.

In its plea of privilege appellant states that it resides in Corpus Christi, Nueces County, Texas. It also states that it was not at the time of the institution of the suit, nor at the time of the service of process therein, nor at the time of the filing of its plea of privilege, a resident of Brazoria County, Texas, and that at such times its residence was and is Corpus Christi, Nueces County, Texas, and its postoffice address was and is Baldwin and Highway 44, Corpus Christi, Nueces County, Texas, and that no exception to exclusive venue in the county of one’s residence provided by law exists in said cause.

In their controverting plea appellees, after denying the statement of appellant in its plea of privilege that no exception to exclusive venue in the county of one’s residence exists, made the following allegations :

“Plaintiffs filed herein, a petition wherein R. G. Coleman and wife, Joyce Coleman of Brazoria County, Texas, are Defendants, in said petition Corpus Christi Hardware Company of Nueces County, Texas is a Co-Defendant, due to the residence of Mr. and'Mrs. R. G. Coleman this Court has venue.
“Plaintiffs would further show, aver, and it is a fact, this suit is to clear title to real property and that said real property is located in Brazoria County, Texas, therefore by the nature of this action this Honorable Court has exclusive venue.
“Plaintiffs would also show that the petition filed in this cause requests specific performance of a sales contract, which contract was entered into and was to be performed in Brazoria County, Texas, due to the foregoing this Court has venue.
“Premises considered, Plaintiffs pray that such plea of privilege be overruled.”

Appellees do not adopt or incorporate in their controverting plea their original petition or any of the allegations of their petition. In the affidavit to their controverting plea they state: “ * * * that the allegations, denials, and facts set out in the foregoing controverting plea are true and correct.” Their controverting plea in itself fails to allege a cause of action against anyone, and is wholly insufficient and inadequate since the allegations in the petition are not adopted or incorporated therein, and appellees do not purport to swear that the allegations in the petition are true. Chapman v. First Nat. Bank of Wellington, 221 S.W.2d 318, Tex.Civ.App., and authorities cited therein; A. H. Belo Corp. v. Blanton, 1930, 133 Tex. 391, 129 S.W.2d 619; Fair v. Mayfield Feed & Grain Co., 203 S.W.2d 801, Tex.Civ.App. 1947; Texas Tel. & Tel. Co. v. Sabine County Rural Citizens Council, 387 S.W.2d 154, Tex.Civ.App.1965.

In their controverting plea appellees do not refer specifically to the particular subdivisions of Article 1995, Vernon’s Annotated Texas Civ.Statutes, upon which they rely, but in such plea it appears that they are attempting to rely upon Subdivisions 4, 14 and 5. Their failure to allege specifically the subdivisions relied upon by them would not in itself deprive them of the right to rely thereupon, if the facts alleged in their controverting plea were sufficient to establish any exception and were properly verified. Southern County Mutual Ins. Co. v. Douglas, 392 S.W.2d 599, Tex.Civ. App.1965, error dism.

Appellees’ petition, even if it could be considered, contains no allegations or prayer with respect to clearing title to any land. Appellees may not rely on the statement in their plea that their suit was to clear title to real property, since their plea cannot supply the omission of such allegation in their petition. The plea may not serve to enlarge the petition. Price v. Mur-rell R. Tripp & Co., 268 S.W.2d 702, Tex. Civ.App.1954; Texas Planting Seed Ass’n v. Hooker, 386 S.W.2d 348, Tex.Civ.App.

Appellees’ cause of action is clearly one for specific performance of a sales contract. The law is well settled that a suit for specific performance of a contract for the sale of land is not within exception 14. Hearst’s Heirs v. Kuykendall’s Heirs (1856), 16 Tex. 327; Miller v. Rusk, 17 Tex. 170; Mixan v. Grove (1883), 59 Tex. 573; Burkitt v. Wynne, 62 Tex.Civ.App. 560, 132 S.W. 816, 1911, error ref.; Hicks v. Hicks, 395 S.W.2d 400, Tex.Civ.App. 1965.

The only evidence introduced during the hearing on the plea of privilege was in the form of written stipulations, all of which were objected to by appellant because of no pleading alleging a cause of action against anyone. In view of appellant’s specific objections to the admission in evidence of the stipulations because of no pleading, the failure of appellant to point out the defects in appellees’ controverting plea will not be considered under Rule 90, Texas Rules of Civil Procedure, as a waiver by appellant of such defects; nor can it be said in view of such objections that there was a trial of the issues by implied consent. Buchanan v. Jean, 1943, 141 Tex. 401, 172 S.W.2d 688. In a hearing on a plea of privilege, the only pleadings that can be considered are such plea and the controverting plea. In the instant suit, the controverting plea and affidavit are insufficient and inadequate to prove any venue facts under any of the subdivisions of said Article 1995, V.A.T.S.

Appellees contend that appellant’s plea of privilege is insufficient since it does not specifically state to what court the cause of action should be transferred. In its prayer appellant prays that the court sustain its plea of privilege. It is our view that its plea of privilege is sufficient. There was no county other than Nueces County to which the suit could have been transferred. Moreover, the plea met all the requirements of Rule 86, T.R.C.P. Terrell v. Vandergriff, 351 S.W.2d 910, Tex.Civ. App.1961; Geary, Hamilton, Brice & Lewis v. Coastal Transport Co., Inc., 399 S.W.2d 878, Tex.Civ.App.1966; Pennsylvania Ins. Co. v. Storbeck & Gregory, 391 S.W.2d 811, Tex.Civ.App.; Kinder & Keach v. Adams Nat. Bank, 184 S.W.2d 536, Tex.Civ.App., writ dism.; Rule 86 T.R.C.P. See also McDonald, Texas Civil Practice, Sec. 4.43(d), where it is stated:

“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.”

The judgment of the Trial Court is reversed and the cause remanded to the Trial Court with instructions to transfer the suit as to appellant, Corpus Christ Hardware Company, to the District Court of Nueces County, Texas.


author: DIXON, Chief Justice.

text:
    LENNOX INDUSTRIES, INC., Appellant, v. MIDWAY NATIONAL BANK OF GRAND PRAIRIE, Texas, Appellee.
    No. 16928.
    Court of Civil Appeals of Texas. Dallas.
    June 30, 1967.

      Sheldon Anisman, of Simon & Simon, Fort Worth, for appellant.
    William A. Barber, of Wright & Barber, Grand Prairie, for appellee.
   DIXON, Chief Justice.

Lennox Industries, Inc. has appealed from an order overruling its plea of privilege whereby it seeks to have this cause of action, now pending in Dallas County, transferred to Tarrant County for trial.

Appellee Midway National Bank of Grand Prairie, Dallas County, Texas brought suit against appellant for alleged conversion of two condensing units, parts of central air conditioning systems, which units appellee alleges were attached to two residential properties in such manner as to make them parts of the realty. Appellee pleaded that it owned first lien mortgages against the real property, which lies in Dallas County.

In its petition appellee Bank alleges that the address of appellant Lennox Industries, Inc. is 4901 Marsalis Avenue in the City of Fort Worth, Tarrant County, Texas, where it has its office. Appellee also alleges that one Tommy Tingle, a resident of Dallas County, Texas, was appellant’s agent in Dallas. County at all times material hereto.

In its plea of privilege appellant asserts that its residence and principal place of business was and is 4901 Marsalis Avenue, Fort Worth, Tarrant County, Texas.

In a controverting plea appellee Bank does not designate the particular subdivisions of Art. 1995, Vernon’s Ann.Civ.St. on which it depends to retain venue in Dallas County. However, in its brief it does name Subdivisions 23 and 27.

Appellant in three points of error contends that (1) appellee failed to establish that appellant has an agency or representative in Dallas County, Texas, within the meaning of Subdivisions 23 and 27 of Art. 1995, V.A.C.S.; (2) appellee failed to prove the application of Subdivisions 23 and 27; and (3) appellee did not plead and prove that it had a cause of action against appellant arising in Dallas County, Texas.

Subdivision 27 applies particularly to foreign corporations. There is neither pleading nor proof that appellant is a foreign corporation. Therefore Subdivision 27 of Art. 1995, V.A.C.S. is not applicable.

As to Subdivision 23 we have concluded that appellee failed to establish either that appellant had an agent in Dallas County within the meaning of Subdivision 23 or that appellee has cause of action against appellant arising in Dallas County.

The only evidence in the record is the testimony of Tommy Tingle, the alleged agent of appellant. He testified that he was the “factory representative” of appellant. However, he said that he did not have any authority to deal in behalf of or for Lennox Industries, Inc. Tingle had a right to testify as to the facts of his alleged agency, Cook v. Hamer, 158 Tex. 164, 309 S.W.2d 54 (1958), and did so in detail, but we shall not consider his opinions and conclusions as the extent and scope of his authority, which are questions of law to be determined by the court from the facts.

As to the facts Tingle testified that he owns and operates his own business known as Tingle Appliance Service and that he buys and pays for the air conditioning systems and parts from appellant at wholesale and thereafter sells, installs and services them at a profit to and for retail purchasers who are his customers, not appellant’s. He himself goes to Fort Worth and picks up the conditioners in his own truck and brings them back to Dallas as he did in this instance. He maintains an account with appellant just as one does with a department store. For some years he has been in the appliance business in Grand Prairie, selling and servicing appliances. His place of business is his home. He stores his merchandise in his garage.

Tingle at the time material hereto was also in business as a contractor, building and owning houses for resale. In this case both condensers were parts of air conditioning systems which had been installed in two houses which he constructed on property he owned.

Appellant Lennox Industries, Inc. has never instructed Tingle how to conduct his business, or had any dealings with his customers. Upon sale of an air conditioning system the customer pays Tingle, not appellant. He employs his own help by “contracting employees” for specific jobs. He pays his own employees and pays his own rent. Lennox Industries, Inc. has never sent him a check in payment of anything— he pays Lennox for what he buys. His funds from the sale and servicing of air conditioners are mixed and mingled with funds derived from his appliance business and his business as a contractor and builder. It is a personal account on which he draws by checks signed by himself. He testified that with appellant’s knowledge and acquiescence he paid for an advertisement in the yellow pages of the telephone directory in regard to Lennox air conditioners which were offered for sale by him. But we think it is common knowledge that many retail merchants advertise “name brand” products which may be purchased from them.

Tingle testified to other facts but we shall not extend this opinion with a recital of further details. In our opinion the undisputed facts show conclusively that Tingle was not such an agent as is contemplated by Subdivision 23 of Art. 1995, V. A.C.S. Pierce v. Ford Motor Co., 401 S.W.2d 355 (Tex.Civ.App., Eastland 1966, writ dism’d) ; Brazos River Transmission Elec. Coop. Inc. v. Vilbig, 244 S.W.2d 266 (Tex.Civ.App., Dallas 1951, no writ); Shamrock Oil & Gas Corp. v. Todd, 166 S.W.2d 766 (Tex.Civ.App., Dallas 1942, no writ). Appellant’s first point of error is sustained.

Appellee alleged in its petition that the two condenser units were attached in such manner as to make them parts of the real estate. It further alleged that it had an interest in the real estate in that it owned recorded first lien mortgages against both real properties. No evidence was offered in support of the latter allegation. There was neither documentary nor par-ol testimony as to the alleged mortgages. The nearest any evidence came to supporting the allegation was a statement by Tingle that the Bank did his interim financing. He does not say whether any money that may have been advanced by the Bank was an unsecured loan, or whether it was secured by mortgage. The burden was on the Bank to prove a cause of action. Clubb Testing Service, Inc. v. Singletary, 395 S.W.2d 956 (Tex.Civ.App., San Antonio 1965, no writ); Grayson Enterprises, Inc. v. Texas Key Broadcasters, Inc., 390 S. W.2d 346 (Tex.Civ.App., Eastland 1965, writ dism’d); Admiral Motor Hotel of Texas, Inc. v. Community Inns of America, Inc., 389 S.W.2d 694 (Tex.Civ.App., Tyler 1965, no writ) ; Furr’s Super Market, Inc. v. Jernigan, 380 S.W.2d 193 (Tex.Civ.App., Amarillo 1964, no writ) ; Drexler v. Architectural and Commercial Sales, 375 S.W.2d 550 (Tex.Civ.App., Corpus Christi 1964, no writ); Gen. Mills, Inc. v. Livingston, 333 S.W.2d 215, 218 (Tex.Civ.App., Eastland 1960, no writ); Gen. Motors Corp. v. Ewing, 300 S.W.2d 714, 718 (Tex.Civ.App., Waco 1957, no writ). Having failed to offer evidence of its alleged first lien mortgage appellee failed to show it had an interest in the real property. It did not prove it had a cause of action against appellant arising in Dallas County. Appellant’s second and third points are sustained.

The judgment is reversed and the cause is remanded to the trial court with instructions to sustain appellant’s plea of privilege.

Reversed and remanded.


author: BATEMAN, Justice.

text:
    AETNA INSURANCE COMPANY, Appellant, v. Monette Guy DURBIN, Appellee.
    No. 16933.
    Court of Civil Appeals of Texas. Dallas.
    July 7, 1967.
    David Westfall, of Bailey & Williams, Dallas, for appellant.
    Harold B. Stone, of Kelsoe & Stone, Dallas, for appellee.
   BATEMAN, Justice.

The appellant Aetna Insurance Company seeks the reversal of a judgment against it in favor of appellee Monette Guy Durbin under the “medical pay” provision of a “Family Combination Automobile Policy” issued by it to her. Appellee also sued Hardware Mutual Casualty Company, which had issued a garage liability policy to one Ralph Byington, d/b/a Byington Motor Company, which policy also had a provision for payment of medical expenses. The judgment of the trial court was that appellee take nothing against Hardware Mutual but have judgment against appellant for the full amount of her claim.

The essential facts were stipulated. The pertinent portion of appellant’s policy obligated it to pay all reasonable medical, surgical, etc. expenses incurred within one year from the date of accident by the named insured (appellee) caused by accident “while occupying or through being struck by an automobile.”

The Hardware Mutual policy provided similar protection to any person accidentally injured while using, with the permission of the named insured (Byington), an automobile used principally in Byington’s garage operations.

Both policies provided that in the event of an accident written notice thereof “shall be given by or for the insured to the company or any of its authorized agents as soon as practicable.”

Both policies also provided that as soon as practicable the insured or other person making claim shall give to the company written proof of claim including full particulars of the nature and extent of the injuries, treatment, and other details entering into the determination of the amount payable.

Appellee was injured while driving a certain automobile belonging to and with the permission of By'ngton, which car was covered by the Hardware Mutual policy.

Appellee did not file written proof of loss with either company, although she did “report” the accident to Byington at the time of the accident. She did not report it to Hardware Mutual until January 1965. On Monday, March 8, 1964, following the accident on Saturday, March 6, 1964, appellee went to the office of Bud Turner, of the Turner Insurance Agency at Decatur, Texas, which, as agent of appellant, had issued the Aetna policy to her. Turner told her that he was engaged in the trial of a lawsuit that day and did not have time to talk to her. She told him that she had some insurance business to report to him, and he told her to call him at a later time. On March 16, 1964, appellee called Turner by long distance telephone from California and reported the accident and claim to him in full, requesting him to advise her of any additional information which he would need in order for him to fully handle the claim with appellant, to which Turner replied that he had all of the information which he needed and that nothing further would be required of her. Her first written notice to appellant was in a letter dated July 24, 1964 from appellee’s attorney to Turner again supplying him with the facts regarding the accident.

By its first two points of error on appeal the appellant complains of the judgment because (1) written notice of the loss was not given as soon as practicable as required by the contract, and (2) appellee failed to submit a proof of loss in accordance with the contract. Appellee replies that notice satisfactory to appellant was given and that appellant waived any further notice and is estopped to rely on the policy provisions requiring written notice and proof of loss, and that appellant did not specially plead want of noticeMmder oath; also, that appellant waived any right it might have had to íequire proof of loss other than that furnished to it by telephone.

The requirements of written notice and written proof of loss or claim are clearly designated in the policy as conditions precedent to liability. Therefore, no right of action lies against the insurer until those conditions are performed, or performance thereof has been waived or otherwise excused. Whitehead v. National Casualty Co., 273 S.W.2d 678, 680 (Tex.Civ.App., Fort Worth 1954, writ ref’d).

A leading case is New Amsterdam Casualty Co. v. Hamblen, 144 Tex. 306, 190 S.W.2d 56 (1945) wherein it was held that, when the policy makes the notice requirement a condition precedent to liability, failure to give such notice “as soon as reasonably possible invalidates the claim for indemnity,” regardless of whether prejudice results to the insurer because of delay in giving it.

In Klein v. Century Lloyds, 154 Tex. 160, 275 S.W.2d 95 (1955), the insurer learned of the accident a few days after it happened and employed an insurance adjuster to investigate it, but did not receive written notice for thirty-two days after the accident. It was held as a matter of law that such notice was not in compliance with the policy provision and that there could be no recovery.

In Allen v. Western Alliance Ins. Co., 162 Tex. 572, 349 S.W.2d 590 (1961), it was held as a matter of law that notice given 107 days after the accident was not “as soon as practicable.” In Trinity Universal Ins. Co. v. Weems, 326 S.W.2d 302 (Tex.Civ. App., Austin 1959, no writ) notice given three and one-half months after the accident was held not to be “as soon as practicable.” In National Surety Corp. v. Diggs, 272 S.W.2d 604 (Tex.Civ.App., Fort Worth 1954, writ ref’d n. r. e.) it was held that a delay of 104 days in reporting an accident was, as a matter of law, not “as soon as practicable.” See also Houck v. State Farm Mutual Automobile Ins. Co., 394 S.W.2d 222 (Tex.Civ.App., Beaumont 1965, writ ref’d n. r. e.), and Kellum v. Pacific National Fire Ins. Co., 360 S.W.2d 538 (Tex.Civ.App., Dallas 1962, writ ref’d n. r. e.).

In the case at hand, even if the information given orally to appellant’s agent on March 8 and March 16, 1964 may be assumed to have given appellant all of the information which written notice would have given, nevertheless the policy provided for written notice and no such notice was given for more than four months after the accident, and we hold that as a matter of law, because of her failure to perform conditions precedent, or show a valid excuse for not doing so, appellee was not entitled to recover.

The same principles apply to the admitted failure of appellee to furnish any proof of loss or claim as required by the policy. Metropolitan Life Ins. Co. v. Wann, 130 Tex. 400, 109 S.W.2d 470, 115 A.L.R. 1301 (1937); Commercial Union Assur. Co. v. Preston, 115 Tex. 351, 282 S.W. 563, 45 A.L.R. 1016 (1926); Williams v. Bankers Fire & Marine Ins. Co., 277 S.W.2d 742 (Tex.Civ.App., Waco 1955, writ dism’d).

Of course, such policy requirements may be waived by the company, but only by an officer or agent authorized to do so. There was no showing here that the agent, Turner, had either actual or apparent authority to waive those requirements, or to do anything for appellant other than to issue policies and receive such notices and proofs of loss or claim as might be furnished by claimants. The intent of the parties in this connection is reflected by paragraph 14 of the “Conditions” of the policy, to-wit:

“Notice to any agent or knowledge possessed by any agent or by any other person shall not effect a waiver or a change in any part of this policy or estop the company from asserting any right under the terms of this policy; nor shall the terms of this policy be waived or changed, except by endorsement issued to form a part of this policy.”

Appellee contends that appellant waived its right to defend on the ground that notice and proof of loss were not furnished in accordance with the policy requirements because appellant’s pleadings setting forth those defenses were not under oath, as required by Vernon’s Ann. Civ. St., Art. 5546 and Rule 93, Vernon’s Texas Rules of Civil Procedure. We do not agree with appellee. It is true that Art. 5546 provides that in such cases “it shall be presumed that notice has been given unless the want of notice is especially pleaded under oath”, and that subdivision (m) of Rule 93, T.R.C.P., provides that a pleading setting up that notice and proof of loss or claim for damage has not been given, as alleged, shall be verified by affidavit and that unless such plea is filed “such notice and proof shall be presumed and no evidence to the contrary shall be admitted.” Some of the older cases, decided prior to the adoption of the Rules of Civil Procedure held that unless the defensive pleading of lack of notice or proof of loss were sworn to, the courts must indulge “the conclusive presumption” that notice and proof of loss were in fact duly furnished. Appellant plainly alleged these defenses in its answer, appellee made no complaint of the lack of verification, and the parties stipulated the undisputed facts with respect thereto. Rule 67, T.R.C.P. provides that when issues not raised by the pleadings are tried by express or implied consent they shall be treated in all respects as if they had been raised in the pleadings; and Rule, 90 T.R.C.P. provides that every defect, omission or fault in a pleading, either of form or of substance, not specifically pointed out by motion or exception in writing and brought to the attention of the trial court before judgment shall be deemed to have been waived. Therefore, in our opinion, the issues as to whether appellee complied with her policy by furnishing the notice and proof of claim as required thereby were tried by consent and appellant’s failure to swear to its pleadings raising those issues was waived. Bednarz v. State, 142 Tex. 138, 176 S.W.2d 562 (1943); American Casualty & Life Co. v. Butler, 215 S.W.2d 392, 397 (Tex.Civ.App., Galveston 1948, writ ref’d n.r.e.); Helms v. Day, 215 S.W.2d 356 (Tex.Civ.App., Fort Worth 1948, writ dism’d); Shaw v. Porter, 190 S.W.2d 396 (Tex.Civ.App., Fort Worth 1945, writ ref’d w.o.m.); Mullins v. Berryman, 296 S.W.2d 805 (Tex.Civ. App., San Antonio 1956, writ ref’d n.r.e.); Heusinger Hardware Co. v. Frost National Bank, 364 S.W.2d 851 (Tex.Civ.App., East-land 1963, no writ). Appellant’s first two points of error are sustained.

By its third point of error the appellant contends that the protection provided by its policy issued to appellee is “excess insurance”, that the policy issued by the Hardware Mutual Casualty Company, since it covered the very automobile in which appellee was riding when injured, provided the “primary insurance”, and that appellant was not liable until the protection afforded by the Hardware Mutual policy had been exhausted. We do not find it necessary to decide that question in this case for, under the record now before us, the question is immaterial. Hardware Mutual Casualty Company’s alleged liability under its policy was presented to the trial court, which found that it was not liable thereon and rendered judgment that ap-pellee take nothing as to it. That part of the judgment is not appealed from and is therefore final and res judicata as to the contention now made by appellant under its third point of error. On that ground we overrule appellant’s said third point of error.

Both parties agree that the case has been fully developed. Therefore, because of appellee’s failure and obvious inability to show performance, or a valid excuse for nonperformance, of conditions precedent to appellant’s liability, the judgment is reversed and here rendered that appellee take nothing.

Reversed and rendered.

       E. g., Francis v. International Travelers’ Ass’n, 260 S.W. 938 (Tex.Civ.App., Dallas 1924, affirmed in International Travelers’ Ass’n v. Francis, 119 Tex. 1, 23 S.W.2d 282); Fidelity & Deposit Co. of Maryland v. Fidelity Finance Co., Ill S.W.2d 809 (Tex.Civ.App., Dallas 1937, writ dism’d). Compare, however, Travelers’ Ins. Co. v. Scott, 218 S.W. 53 (Tex.Civ.App., Fort Worth 1920, writ ref’d), holding, as we do in the instant case, that the contention that the pleading of lack of notice was not verified comes too late when raised for the first time on appeal.


author: WALTER, Justice.

text:
    MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. WHITTENBURG & ALSTON, Appellee.
    No. 4172.
    Court of Civil Appeals of Texas. Eastland.
    June 30, 1967.
    Rehearing Denied July 21, 1967.
    Kleberg, Mobley, Lockett & Weil, Corpus Christi, for appellant.
    North, Bladmon & White, Corpus Christi, for appellee.
   WALTER, Justice.

Whittenburg & Alston recovered judgment against Missouri Pacific Railroad Company for damages to two shipments of tomatoes from Laredo, Texas to Toronto, Ontario, Canada. The railroad has appealed. In order to shorten the record on appeal the parties stipulated that at the trial there was evidence to support each of the answers of the jury and there was evidence to the contrary. They further stipulated that the only questions on appeal are whether, accepting the verdict of the jury as valid, the court should have entered a judgment for the plaintiff, for the defendant or declared a mistrial. They also stipulated that neither party made any objections to the charge. The stipulation discloses that it is to be considered on appeal in lieu of a statement of facts.

The appellee sets forth two separate causes of action in its petition identical in all respects except as to the number of the car in which the shipment was made and the amount of damages. The tomatoes were transported in Car ART No. 50365 and Car PFE 63636. We will write on points relating to the shipment in the first numbered car which will also dispose of the points relating to the other shipment.

The jury found in answer to special issue number one that the tomatoes in the first numbered car upon arrival at Toronto, Ontario, Canada were in no worse condition than they should have been considering their quality and condition at Laredo, Texas.

The jury found that the condition of the tomatoes at destination was due entirely to one or more of the following':

“ (a) The condition of the tomatoes when the bill of lading was signed at Laredo, Texas;
(b) The operation of natural laws upon such tomatoes;
(c) The inherent tendency, if any there be, of the tomatoes to deteriorate and decay.”

The jury also found the reasonable cash market value of the tomatoes upon arrival in Toronto at the time and in the condition in which they should have been when delivered was $3,339.28, and that their value in the condition they were in when they were delivered was $2,092.23.

In Missouri Pacific Railroad Company v. Elmore & Stahl, 377 U.S. 134, 84 S.Ct. 1142, 12 L.Ed.2d 194, the United States Supreme Court said:

“It is settled that this statute has two undisputed effects crucial to the issue in this case: First, the statute codifies the common-law rule that a carrier, though not an absolute insurer, is liable for damage to goods transported by it unless it can show that the damage was caused by '(a) the act of God; (b) the public enemy; (c) the act of the shipper himself; (d)public authority; (e) or the inherent vice or nature of the goods.’ ”
“Second, the statute declares unlawful and void any ‘rule, regulation, or other limitation of any character whatsoever’ purporting to limit this liability.”
“Accordingly, under federal law, in an action to recover from a carrier for damage to a shipment, the shipper establishes his prima facie case when he shows delivery in good condition, arrival in damaged condition, and the amount of damages. Thereupon the burden of proof is upon the carrier to show both that it was free from negligence and that the damage to the cargo was due to one of the excepted causes relieving the carrier of liability.”

The appellee says: “Appellant complains in its ‘Statement on All Points’ that the plaintiff failed to establish a prima facie case. A prima facie case was established by the introduction of the Bill of Lading and the destination inspection certificate.” We fail to find any evidence in the record that the Bill of Lading or the destination inspection certificate were introduced. No issue was presented to the jury asking whether the shipments were in good condition at origin. We cannot presume that matters omitted from the record sustains the judgment. In Warren Petroleum Corp. v. Martin, 153 Tex. 465, 271 S.W.2d 410 (1954), the court said:

“There is no evidence in this record that the petitioner used more land than was reasonably necessary. No issues were submitted to the jury on this question. The court cannot presume a finding unless the evidence supports such a finding. Therefore, respondent cannot recover on such theory.”

The shipper failed to establish all the elements of a prima facie case. Having failed in discharging its burden of proof, judgment should not have been rendered for appellee.

The judgment is reversed and because the case was not fully developed and in the interest of justice the cause is remanded.


author: CLAYTON, Justice.

text:
    Richard TELLES, Appellant, v. Enrique VASCONCELOS, Appellee.
    No. 5892.
    Court of Civil Appeals of Texas. El Paso.
    July 5, 1967.
    Rehearing Denied July 26, 1967.

      Owen & Steinberger, Ben A. Endlich, Sam J. Dwyer, Jr., El Paso, for appellant.
    William L. Merkin, Victor R. Arditti, El Paso, for appellee.
   OPINION

CLAYTON, Justice.

Vasconcelos, plaintiff below, filed this suit to recover for personal services allegedly rendered by plaintiff for defendant, appellant here. In his amended pleadings plaintiff alleges that he and defendant entered into a verbal contract on or about January 3, 1963 whereby plaintiff was to act for defendant as his private secretary in the latter’s capacity as a County Commissioner of El Paso County, receiving the mail and answering the phone in the Commissioners’ office on certain mornings during the week, keeping note of telephone calls for defendant or constituents who called upon defendant while he was out of the office, and holding himself available for defendant during the afternoons or perhaps evenings when required to accompany defendant to rallies or meetings, writing speeches and being in readiness to aid defendant when and in the manner required by defendant. That for. such services plaintiff was to receive from defendant a salary of $250.00 per month. In performance of these duties, plaintiff alleges that he worked for defendant for approximately 18 months up to and including June 30, 1964 without pay, although he had on various occasions made requests of defendant that he be paid, which requests were put off by assurances and excuses of defendant until plaintiff terminated his employment on June 30, 1964.

In the alternative, plaintiff relied on quantum meruit for the amount of $4,500.00, the fair and reasonable value of the work done and services performed for defendant.

In the further alternative, plaintiff alleged substantial performance of the conditions of the verbal contract between himself and defendant, and although defendant, during such period of 18 months, received the benefits of plaintiff’s efforts, labor and services, amounting to $4,500.00 defendant repudiated the contract and agreement between the parties, by not paying the plaintiff. Plaintiff further alleged malice and asked for exemplary damages of $4,500.00 and attorney’s fees of $2,500.00.

Trial was to a jury, which returned the following answers to special issues:

1. That defendant agreed to hire plaintiff as a private secretary at $250.00 per month salary.

2. That plaintiff agreed to work for defendant as a private secretary at $250.00 per month salary.

3. Plaintiff did not perform services for the defendant as a private secretary at $250.00 per month salary.

4. Conditioned upon an affirmative answer to Issue No. 3, this issue was not answered.

5. Conditioned upon the negative answer to Issue No. 3, the jury found that plaintiff did perform services for the defendant as a private secretary' for the defendant.

6. The defendant knowingly accepted the benefit of plaintiff’s services as a private secretary.

7. The amount of $4,000.00 would fairly and reasonably compensate plaintiff for his services as a private secretary to defendant.

8. The amount of $2,500.00 would compensate plaintiff’s attorney for his services rendered the plaintiff.

9. That the services of plaintiff for defendant were not performed for the defendant in the defendant’s official capacity as a County Commissioner of El Paso County.

After motions for judgment by both plaintiff and defendant, the court entered judgment for plaintiff in the amount of $4,000.00 plus attorney’s fees in the amount of $2,500.00 and defendant perfected this appeal. Appellant presents thirteen points of error in which he urges that the trial court was in error in:

1. Overruling defendant’s motion for judgment on the verdict.

2. Overruling defendant’s motion for continuance.

3. Rendering judgment on the verdict for there was no evidence, or insufficient evidence to sustain the jury’s findings, nor sufficient evidence to prove the allegations contained in plaintiff’s second (first?) amended original petition.

4. Rendering judgment for plaintiff as there is an irreconcilable conflict in the jury’s answers to the special issues submitted.

5. Allowing plaintiff to recover judgment against defendant on the basis of his being a private secretary to the defendant in his official capacity as a County Commissioner of El Paso County.

6. In granting judgment on the jury’s verdict based on its answers to Special Issues Nos. 5, 6 and 7.

7. Refusing to submit certain special issues requested by defendant.

8. Rendering judgment for attorney’s fees in behalf of plaintiff.

9. Submitting the special issues submitted as there was no evidence, or insufficient evidence to sustain a jury finding thereon.

10. Overruling defendant’s special exceptions.

11. Overruling defendant’s motion for summary judgment.

12. Overruling defendant’s motion to set aside and vacate the judgment.

13. Overruling defendant’s motion for new trial.

The first point of error attacks the action of the court in overruling the defendant’s motion for judgment on the verdict. Appellant takes the position in his motion that the jury’s answer to Special Issue No. 9 fails to support the Plaintiff’s pleading that the agreement between the parties was for plaintiff to work for defendant as his private secretary “in his capacity as a County Commissioner of El Paso County, Texas” whereas the jury found, in answer to Special Issue No. 9, that the services of plaintiff for defendant were not performed in defendant’s official capacity as a County Commissioner (embodied in defendant’s fifth point of error). Further, that the jury’s answers to Issues Nos. 1 and 2 showed that plaintiff and defendant had entered into a contract of employment, but by the answer to Issue No. 3, that plaintiff did not perform the services thereunder but breached the contract and therefore was not entitled to recover. That since plaintiff could not, under the verdict, recover for his services, he was not entitled to recover attorney’s fees under Article 2226, Vernon’s Ann.Tex.St., nor is the attorney entitled to recover his fees, since he is not a party to this suit.

It is our opinion that appellant’s position, as reflected in his motion for judgment on the verdict, arises from a misconception of the meaning of the jury’s answers to the special issues referred to in the motion. It seems to us quite evident that the jury found that although the parties had agreed upon a monthly salary of $250.00 to he paid the defendant, that the latter’s actual services were not performed on the basis of that salary, but on some lesser amount, as reflected by the jury’s answer that $4,-000.00 would fairly and reasonably compensate him for the approximately 18 months of service which is brought out in the evidence and which was claimed in the pleadings, which would have amounted to $4,500.00. Nor would this be at variance with plaintiff’s pleading of substantial compliance. Under these pleadings of substantial compliance, we believe that the testimony shows, while the performance by plaintiff of the services for defendant were not precisely in accordance with their oral agreement, the services were substantially in compliance with those outlined in the oral agreement and complied with the conditions set out in Christy v. Williams, 292 S.W.2d 348, 352 (Tex.Civ.App., 1956; err. dism., w. o. j.) :

“In all domains of law, unless it is otherwise provided, either expressly or by necessary implication, a substantial compliance with the specified requirements is the legal equivalent of compliance.”

In our view of this record, the first point of error must be overruled.

Appellant briefs his fifth point of error along with his first point. In the fifth point, as stated, appellant calls attention to the jury’s answer to Special Issue No. 9, saying that plaintiff had breached his agreement by not performing his services for defendant in the latter’s official capacity “as a County Commissioner of El Paso County, Texas.” In support of this point, defendant had produced a Chief Deputy County Clerk and an Assistant County Auditor of El Paso County to testify that the Commissioner’s Court Minutes did not reflect that plaintiff had been appointed or employed by the County in any capacity whatever, nor did his name appear on the County payroll. This is the basis of the jury’s answer to Special Issue No. 9. But this proof does not conflict with the plain intent of the pleadings that defendant, an official of the County, had agreed to employ plaintiff to serve him as private secretary, with which agreement the plaintiff had sufficiently complied, as the jury found in answer to Special Issues Nos. 5 and 6. The record shows that it has never been contended by the plaintiff that he was hired in any official capacity by the County and the County was never made a party to this suit. The fifth point of error is overruled.

As to the second point of error, relative to the overruling of defendant’s motion for continuance, there is no showing that in doing so the court abused his discretion to the prejudice of defendant, and this point must be overruled. See Erback v. Donald, 170 S.W.2d 289, 291 (Tex.Civ.App., 1943; ref., w. o. m.):

“In 9 Tex.Jur., 670-676, will be found discussions and citations of authorities pertaining to continuances sought on the ground of absence of a party to the litigation. A motion for such a continuance is addressed largely to the discretion of the trial court. His action will not be disturbed on appeal unless there has been a clear abuse of discretion. Mere absence of the party is not enough to entitle him to a continuance. It must be shown both that the absent party had a reasonable excuse for not being present, and that his absence resulted to his prejudice. A reasonable excuse for the absence will not • require a reversal where no prejudice is shown.”

Appellant then briefs together his third, sixth and ninth points of error by merely pointing out what has been said under the fifth point of error, above, that plaintiff’s name does not appear in the Minute Records of the County, or the payroll. In so far as these points assert “no evidence” or ■ “insufficient evidence”, we apply the accepted tests: for “no evidence”, the reviewing court considers only the evidence favorable to the jury’s finding and must sustain the finding if there is evidence of probative force to support it. Hartford Accident & Indemnity Company, v. Gant, 346 S.W.2d 359, 360, and Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696, 698. For “insufficiency of the evidence”, we must consider and weigh all the evidence and set aside the verdict and remand for a new trial if we conclude that the finding is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. All the evidence is considered — that which supports the verdict as well as that which is against it. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661. Under the accepted tests, we find evidence, and sufficient evidence, to sustain the jury’s findings complained of, and therefore overrule the third, sixth and ninth points of error.

The fourth point of error, relative to an irreconcilable conflict in the jury’s answers to special issues, is not briefed by appellant, so we are not informed as to just what is being claimed as an irreconcilable conflict in the jury’s answers (except for statements contained in his motion for new trial). However, we believe that we have probably touched on plaintiff’s contention in our discussion of the first point of error, and we overrule the fourth point.

The seventh point of error is that the trial court erred in refusing to submit certain special issues which were requested by the defendant. These requested issues are not set out in the point of error, but in his brief the appellant listed requested issues, as follows:

“Requested Special Issue Number One reads as follows:
“Do you find from a preponderance of the evidence that under the agreement, if any, between the Plaintiff and the Defendant, the parties agreed that the Defendant was to employ the Plaintiff for a period of four years beginning January 3, 1963? Answer ‘yes’ or ‘no’
“Requested Special Issue Number Two reads as follows:
“Do you find from a preponderance of the evidence that the agreement between the Plaintiff and the Defendant was an oral agreement? ANSWER: “it was an oral agreement or ‘it was not an oral agreement’
“Requested Special Issue Number Two A reads as follows:
“Do you find from a preponderance of the evidence that the Plaintiff after the Defendant breached his agreement, if you so found, failed to minimize the damages he sustained as a result of said breach? Answer ‘we so find’ or ‘we do not so find.’
“Requested Special Issue No. Three reads as follows:
“Do you find from a preponderance of the evidence that the Defendant breached his agreement with the Plaintiff? Answer ‘yes’ or ‘no’
“Requested Special Issue No. Four reads as follows:
“From a preponderance of the evidence on what date do you find that the Defendant breached his agreement with the Plaintiff?”

These requested special issues were refused by the court. Appellant in his pleadings and deposition denied that there had been any contract between the parties, or if there was one, it was in violation of the Statute of Frauds. The only testimony supporting the first requested special issue is taken from the Statement of Facts which, in turn, refers to a previous oral deposition of plaintiff taken on March 22, 1966, as follows:

“A He sat in a chair that I have right there close to my bed, to the head of my bed, and said the following: — ”
Q Mr. Telles said this.
A —‘Brother Vasconcelos, I owe you so many favors, I have thought that during my term of four years, you will be my private secretary, and I promise you from this instant a salary of $250.00 per month. Here’s a key to the office.’ And turned it over to me.
Q Was that the truth that you were testifying to on March 22, 1966?
A I’m going to answer that. That was a verbal promise that he made to me of a job and salary without any compromise on his part or on mine, four years, three or one or one month or two. If he was satisfied with my services and I with the treatment that he was affording me, then I would continue, but at any time that I would want to, he had no obligation to me nor I to him, I could quit.
Q Sir, the question to you was if you testified to this statement: ‘Brother Vasconcelos, I owe you so many favors, I have thought that during my term of four years, you will be my private secretary, and I promise you from this instant a salary of $250.00 per month. Here’s a key to the office.’ ‘And turned it over to me.’ Now, my question to you is if you testified to that on March 22, 1966, that’s all I want to know.
A Yes, yes, sir, but at that time I didn’t understand it to be that I was obligated to work for him for four years. I came to work for him under the understanding, without any compromise on his part or mine or any obligation on his part or mine to continue working for four years, three years, two or one month or whatever it should be.”

As to the second requested instruction, there was no testimony, and therefore no issue, as to any agreement between the parties being other than an oral agreement. Regarding the other requested issues— breach of agreement by defendant and the time of such breach — these seem to be legal matters for the court to rule on from the facts adduced. We are of the opinion that there was no reversible error or abuse of discretion on the part of the court in overruling the requests for special issues. We accordingly overrule the seventh point of error.

The eighth point of error charges error of the court in rendering judgment for attorney’s fees in behalf of plaintiff, without any showing that plaintiff had conformed with the requirements of Article 2226 V.A.T.S. That Article reads:

“Any person having a valid claim against a person or corporation for personal services rendered, * * * may present the same to such person or corporation or to any duly authorized agent thereof; and if, at the expiration of thirty (30) days thereafter, the claim has not been paid or satisfied, and he should finally obtain judgment for any amount thereof as presented for payment to such person or corporation, he may also recover, in addition to his claim and costs, a reasonable amount as attorney’s fees, if represented by an attorney.”

The testimony relative to plaintiff’s claims for payment of his salary is:

“Q When did you make a request for your wages formally, sir ?
A The first time in the month of June.
Q That’s June, 1963?
A Yes, sir. At that time he said for me to please — for me to please excuse him because the business the cigarette business that he has established on Seventh Street was in bad shape and that all of his salary which he was earning as a Commissioner, was being employed, being employed there and he was leaving just enough for the necessities of the home, but for me not to worry, that he would pay me at either way, ip either way he’d pay me, in some way he’d pay me.
Q Did he acknowledge when you asked for your wages- in June of 1963, the fact that he owed you for five or six months of wages at $250.00 a month?
A Yes, sir.
Q Did you ever have occasion to again formally ask for your money after June of 1963?
A I called his attention to it on a second occasion in October of that same year, and he gave me the same execuses, the same excuses, the same promises that he would pay me some way.”
“Q All right, sir. Now, after October of 1964, did you ever make another demand on him for wages?
A Yes, the third was in the month of February.
Q Was that 1964 now ?
A Yes, sir.”

The wording of the issue here under attack is Issue No. 8 which reads:

“From a preponderance of the evidence what amount of money, if now paid in cash, would fairly and reasonably compensate the Plaintiff’s attorney, William L. Merkin, for his services rendered the Plaintiff, if any?”

to which the jury answered $2,500.00. This amount was awarded by the court’s judgment to the plaintiff, Enrique Vas-concelos, to reimburse him for the amount he would have to pay the attorney for his services and we believe that the requirements of Article 2226 V.A.T.S. have been complied with. Hudson v. Smith, 391 S. W.2d 441, 451 (Tex.Civ.App., 1965; ref., n. r. e.). We overrule the eighth point of error.

The tenth and eleventh points of error assert that the trial court erred in overruling the defendant’s special exceptions and motion for summary judgment. These are not set out, except by reference to the transcript and the following statement as to Paragraph I of such special exceptions, reading as follows:

“The Plaintiff as basis for his cause of action seeks to recover an alleged salary for work allegedly performed by him as a private secretary to the Defendant in his capacity as a County Commissioner of El Paso County, Texas.-
“Under the laws of this State any person performing duties of a county employee must be appointed by the Commissioners Court and salary fixed by the Commissioners’ Court and is contrary to public policy for any person to perform the duties of a county official or of a county employee who is not employed according to law and the alleged contract and services are being contrary to law and public policy of the State even if true, which Defendant denies, are unenforceable and illegal and as a matter of law Defendant is entitled to a judgment dismissing said suit.”

We have already treated this matter in this opinion relative to the fifth point of error, and found that such position reflects a misconception on the part of appellant, and the fifth point was overruled. Since all paragraphs of the special exceptions and the motion for summary judgment rely on the reasons set forth in paragraph I and are to be disposed of in the same manner, the tenth and eleventh points of error are overruled.

The twelfth and thirteenth points of error are set out in appellant’s brief as follows:

“Twelfth and Thirteenth Points: The trial court erred in overruling the Defendant’s Motion to Set Aside and Vacate the Judgment * * * and also erred in overruling the Defendant’s Amended Motion for a New Trial * * * for the reasons and under the authorities cited hereinabove in the discussion of Points of Error No. One through No. IV.”

Since we have already reviewed these points of error, we deem it unnecessary to repeat here, and overrule these points of error.

Having examined all points of error and finding no error, the judgment of the trial court is in all things affirmed.


author: WILSON, Justice.

text:
    Joyce WOLFING, Individually, and as next friend of David and Dale Wolfing, Appellants, v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Appellee.
    No. 4618.
    Court of Civil Appeals of Texas. Waco.
    June 15, 1967.
    Banister, Boswell & O’Toole, John H. Boswell, Houston, for appellants.
    Baker, Botts, Shepherd & Coates, John Held, Houston, for appellee.
   OPINION

WILSON, Justice.

The beneficiaries named in a life insurance policy issued by appellee on the life of deceased insured sued to recover benefits. The insurer admitted liability under Rule 266, Texas Rules of Civil Procedure, subject to its alleged right of rescission for misrepresentations by insured in applying for the insurance, known by him to be false and made to induce issuance of the policy Judgment was rendered for insurer on a favorable jury verdict. The beneficiaries appeal. We affirm.

Appellants’ sole contention is that the issues concerning false statements by insured omitted to inquire, and there was no finding as to whether the statements were “made wilfully and with intent to deceive”; and there was no affirmative finding “that the misrepresentations were made wilfully and with the intent to induce the issuance of the policy.” They say judgment was therefore improperly rendered on the verdict.

Appellants did not present or obtain an order of the court on objections to the charge, as required by Rules 272 and 273, Texas Rules of Civil Procedure; they requested and the court refused issues asking whether the statements found by the jury to have been made, were made wilfully and with intent to deceive the insurer “into issuing the policy.”

The charge submitted issues which inquired whether insured made seven specified statements, all of which the jury answered affirmatively. As to each of these statements issues were also submitted asking whether (a) the statement was false, (b) was known by insured to be false, (c) was made for the purpose of inducing issuance of the policy, (d) was material to the risk and (e) was relied on by the insurer. These likewise were answered affirmatively in the case of each statement of insured inquired about.

Appellant apparently insists that under Clark v. National Life & Accident Ins. Co., (1947) 145 Tex. 575, 200 S.W.2d 820, Syl. 5, it is necessary for the issues and findings to include the words, “made wilfully and with design to deceive or defraud”.

The utterance of a known false statement made with intent to induce action “is equivalent to an intent to deceive.” Allen v. American National Insurance Company (Tex.Sup.1964) 380 S.W.2d 604, 608; Texas Industrial Trust, Inc. v. Lusk, Tex.Civ.App. (1958) 312 S.W.2d 324, writ ref. It is obvious that such a statement is thereby also made “wilfully.”

' The findings included the elements which appellants say were omitted. Their points are overruled. Affirmed.


text:
    R. L. FOREE et al., Appellants, v. CROWN CENTRAL PETROLEUM CORPORATION et al., Appellees.
    No. 4619.
    Court of Civil Appeals of Texas. Waco.
    July 6, 1967.
    Rehearing Denied July 27, 1967.

      Billy E. Lee, Houston, John Davenport, James N. Ludlum and James Ludlum, Jr., Austin, H. Clayton May, Dallas, for appellants.
    Vinson, Elkins, Weems & Searls, Ray-bourne Thompson, W. H. Drushel, Jr., Houston, Cable & McDaniel, John S. McDaniel, Baltimore, Md., for appellees.
   OPINION

WILSON, Justice.

Summary take-nothing judgment was rendered against appellants, who summarize the allegations in their suit for damages against appellees as follows:

(1) Between October 15, 1959 and November 1, 1964, appellee Crown Central Pipe Line Company owned pipeline facilities and the Teague Receiving Station in the Sojourner Sand Unit Field immediately adjacent to the Haskell County Regular Field where appellants’ production was located. (2) Appellee Crown Central Petroleum Corporation was a purchaser of crude oil and a producer of crude oil in both of these fields. (3) Appellee Crown Central Pipe Line Company is a common carrier and appellee Crown Central Petroleum Corporation is a common purchaser as those terms are defined in Title 102, Vernon’s Ann.Civ.St. (4) Appellees discriminated in favor of their own production and against that of appellants by purchasing their own crude oil at the lease tank batteries while purchasing appellants’ crude oil at the Teague Receiving Station, the effect of which was to require appellants to transport their oil by truck from their lease tanks to the Teague Station at appellants’ expense. (5) Appellees connected their wells in the Sojourner Sand Unit Field by pipeline to the Teague Receiving Station but refused to so connect the wells of appellants, even when ordered to do so by the Railroad Commission of Texas. (6) • Appellants’ damages are 11 cents per barrel which they allege was the cost to them for truck transportation of their oil production to the Teague Receiving Station, which costs would not have been required if the appellee Crown Companies had treated the appellants’ oil production in the same manner as appellees treated their own oil production. (7) The Railroad Commission of Texas ordered ap-pellees to connect appellants’ lease tank batteries by pipeline in a unanimous order issued on February 21, 1962, but appellees did not comply with such order. Appellants secured compliance with such order on November 1, 1964. (8) The discrimination above alleged is in violation of the statutes contained in Title 102, V.C.S., particularly Articles 6045, 6048, and Section 8 of Article 6049a thereof.

Appellees contend the summary judgment was proper because the Railroad Commission of Texas has exclusive original jurisdiction of appellants’ complaints, and there is no existing Railroad Commission order finding discrimination on which appellants may base their suit.

Art. 6049a, Vernon’s Ann.Civ.Stat, the “Common Purchaser Act,” empowers the Railroad Commission to establish and enforce rules governing the character of facilities to be furnished by operators of public crude petroleum storage facilities in connection with pipelines, and governing gathering and transportation of petroleum; to require common carriers to extend or enlarge their pipelines if it is found to be reasonable and required under prescribed conditions; and to prevent discrimination in purchases. Provision is made for notices and hearing. For violation of regulations and orders a monetary penalty is provided, one-half of which may be recovered for the use of any person unlawfully discriminated against. Sec. 11c of the statute provides that “a cause of action for damages” in case of discrimination “shall lie against said common purchaser” in any court of competent jurisdiction.

Appellees concede that only a court has jurisdiction of an action for damages, such as appellants’ present suit; hut their position is that there must first be a final determination by the Railroad Commission that unlawful discrimination actually exists, and the action must be based on a Commission order. We agree, and affirm.

In 1958, after hearings, the Railroad Commission denied a request for a general order requiring all common carrier pipelines to connect to all producers when requested unless the carrier showed cause for not connecting. This order recited the request was not in keeping with Commission policy of “holding special hearings on individual problems”. The order also authorized the filing of a complaint with the Commission where the carrier refused a request to connect. It provided the complaining producer “may allege discrimination,” and expressed factors to be considered at Commission hearings.

In 1961 the predecessor in interest of some of appellants filed a complaint before the Commission requesting a hearing, under the order, to investigate appellees’ refusal to give a pipeline connection to tank batteries on leases operated by complainants. After an extensive hearing the Commission issued its February, 1962 order determining that “a reasonable extension of the pipeline transportation system and connections to” ' complainants’ tank batteries as prayed for in the complaint were reasonably necessary to prevent discrimination; that the extension was reasonable, and required in the public interest; and that the expense involved would not impair the carrier’s ability to perform its duty to the public.

Appellees then filed suit in the District Court of Travis County attacking the latter order as being arbitrary and unreasonable. Other litigation intervened; and on August 21, 1964 while the suit was pending, the Railroad Commission, by special order which recited the purposes of the February order had been accomplished by the proposal of another pipeline company, formally withdrew its February, 1962 order. Appellees’ Travis County suit attacking the latter order was then dismissed.

Sec. 11c of Art. 6049a authorizes an action for damages when any person “is discriminated against” by crude petroleum purchasers affiliated with a common carrier by pipeline. Determination of discrimination is a prerequisite to what appellants concede is a cause of action based on that statute. Only the Railroad Commission has jurisdiction in the first instance to make that determination. State v. Crown Central Petroleum Corporation, Tex.Civ.App., 369 S.W.2d 458, 463, writ ref., n. r. e.; Deep South Oil Co. of Texas v. Texas Gas Corp., Tex.Civ.App., 328 S. W.2d 897, 908, writ ref., n. r. e. It has not' done so by any final order. The summary judgment was proper.

It is not necessary to pass on the other questions presented.

Affirmed.

      . See Duffy v. Crown Central Petroleum Corporation, Tex.Civ.App., 366 S.W.2d 966; State v. Crown Central Petroleum Corp., Tex.Civ.App., 369 S.W.2d 457, 458.


text:
    FANNIN BANK et al., Appellants, v. Delma Faye BLYSTONE, Appellee.
    No. 4604.
    Court of Civil Appeals of Texas. Waco.
    July 6, 1967.
    Rehearing Denied July 27, 1967.
    Reynolds, White, Allen & Cook, Grant Cook, Houston, for appellants.
    Rachel Johnston, Pasadena, Henry N. Love, Baytown, for appellee.
   OPINION

WILSON, Justice.

A husband executed a deed of trust on unimproved non-homestead community realty during pendency of a divorce action, after he had entered appearance and had been enjoined from encumbering or disposing of the property.

While the divorce was pending appellant, mortgagee in the deed of trust, foreclosed under the power of sale and the other appellant corporation became the purchaser at the sale. The husband soon filed this suit against appellants, mortgagee and purchaser, to set aside the foreclosure proceedings. His wife intervened seeking judgment for title and possession, alleging the deed of trust was executed in fraud of her rights. Final divorce decree was after-wards rendered, and the subject land was thereby awarded to the wife.

Judgment in the present non-jury action was that the husband take nothing, and the wife recover title and possession subject to an outstanding first lien and a judgment lien.

The parties brief this case on the question of whether the mortgagee bank and the purchaser at the trustee’s sale were bona fide purchasers. Appellants’ thesis is that there is no evidence of their notice of the divorce proceedings or of facts placing them on inquiry; that no lis pendens notice was filed in connection with the divorce case. Appellee points to circumstances relied upon to the contrary.

Neither party briefs the effect of Art. 4634, Vernon’s Ann.Civ.Stat. as a lis pen-dens notice. That article provides in effect that after suit is brought for divorce it shall not be lawful for the husband to dispose of lands belonging to the community, “and any alienation made by him after that time shall be null and void, if it be proved to the satisfaction of the court that such alienation was made with a fraudulent view of injuring the rights of the wife.”

The trial court found that the deed of trust was executed in fraud of the wife’s rights. The finding is not challenged. On oral argument appellants’ counsel stated appellants did not take issue with the determination that the deed of trust was executed in fraud of the wife’s rights.

It is not necessary under these circumstances that a statutory lis pendens notice be filed, as provided by Art. 6640 et seq., in order to impart notice. Appellants were purchasers pendente lite.

At common law the doctrine of lis pen-dens, derived from Roman law, was applicable as to realty in all types of judicial proceedings. Barton, History of a Suit in Equity (1847) 195 ; 34 Am.Jur., Lis Pen-dens, Sec. 5, p. 365 ; 54 C.J.S. Lis Pendens § 1, p. 571. Texas enforced the common law principle until 1905, when the statutory restrictions on its application, which made mere pendency of the ordinary suit no longer sufficient, were enacted.

By force of Art. 4634 the pend-ency of a divorce suit, however, makes the doctrine of lis pendens applicable as therein provided to encumbrances and conveyances of community realty by the husband while the action is pending. Moore v. Moore (1889) 73 Tex. 382, 11 S.W. 396, 399; Berg v. Ingalls (1891) 79 Tex. 522, 15 S.W. 579; Hines v. Sparks (1912) Tex. Civ.App., 146 S.W. 289, writ dism.; Meador Bros. v. Hines, Tex.Civ.App. (1914), 165 S.W. 915, 921, writ ref.; 37 Tex.Jur.2d, Lis Pendens, Sec. 6, p. 413. See Sparks v. Taylor (1906), 99 Tex. 411, 90 S.W. 487. Appellants were charged with notice of the pending divorce action. The deed of trust was void.

Since title to the property was awarded to the wife by the final divorce decree, judgment was properly rendered here that the husband take nothing and that the wife recover the entire title.

Appellants urge estoppel and laches against the wife. Viewed most favorably to appellants there is evidence that the mortgagee bank’s representative telephoned the wife September 3, 1964 requesting that she sign a deed of trust which her husband was executing on the subject property. She did not tell the bank’s agent a divorce suit was pending. There was testimony from the wife that she was asked to sign some papers; that she was not told a mortgage was involved; that she refused to sign, saying she would talk to her husband about it; that she did so, and her husband said, “Forget about it; it has already been taken care of”; that she relied on the effectiveness of the court order restraining conveyance or encumbrance by the husband and “was under the impression he couldn’t sell or mortgage.” She testified that she was not told the husband was “putting a mortgage on the property.”

The deed of trust was filed for record September 4, 1964. The trustee’s deed was recorded March 4, 1965. The husband filed the present suit April 30, 1965. The wife testified she first found out the husband had mortgaged the property in April or May, 1965 when she was informed by her attorney. On May 18, 1965 she filed a contempt motion in the divorce suit, and her plea in intervention September 27, 1965, after the divorce decree rendered the preceding month.

The trial court found that the wife had no actual notice of the execution of the deed of trust or of the sale until April or May, 1965. This finding is not attacked.

The evidence does not establish the elements of estoppel or laches so as to preclude, as a matter of law, appellee’s recovery.

Affirmed.