author: CONNER, C. J.

text:
    JONES et al. v. CLEMENTS et al.
    No. 12541.
    Court of Civil Appeals of Texas. Fort Worth.
    July 18, 1931.
    Rehearing Denied Sept. 19, 1931.
    H. E. Lobdell, of Decatur, for appellant.
    John D. McComb, of Jacksboro, for appel-lees.
   CONNER, C. J.

Appellant, on September 25,1930, instituted this suit in the district court of Wise county and procured a temporary writ of injunction restraining the tax assessor and the tax collector of Wise county from assessing, collecting, or paying over to the proper authorities of the Wizzard Wells consolidated school district, taxes assessed or collected therefor in Wise county.

The consolidated district, in its corporate capacity and name, intervened and made the plaintiff, the assessor, the collector, the school authorities, by name, parties defendant, and alleged, in substance, that in due time, manner, and form, common school district No. 44 of Jack county had been consolidated with the contiguous common .school district No. 68 of Wise county. As alleged, the consolidation was by virtue of and in strict accord with section 5a, chapter 84, of the Acts of the First Called Session of the 40th Legislature of Texas (Vernon’s Ann. Civ. St. art. 2742b, § oa); the various steps by the various authorities required by the-terms of the act being set forth in clear detail in a lengthy petition. It was particularly alleged that the school authorities named in the act had in due time and form, and upon petitions signed by the requisite number of qualified persons, ■ordered elections for the purpose that were simultaneously held in the several districts named, and which resulted in favor of the consolidation by unanimous vote, and that the intervening petitioners, who were named, were thereafter duly installed as trustees of the consolidated district, and as such entered into and were performing the functions of such office. The prayer was that plaintiff’s temporary writ of injunction be dissolved, and defendants restrained from further intervening.

In a trial before the court without a jury judgment was rendered in accord with the prayer of the interveners’ petition, and the plaintiff Gomer C. Jones has prosecuted this appeal.

The relevant portion of the act under which the interveners alleged that the consolidation was effected, reads as follows: “Whenever a majority of the legally qualified property taxpaying voters residing in two or more contiguous Common School Districts lying in two or more Counties desire to. consolidate said contiguous Common School Districts for school purpose only, they may do so by a petition signed.by twenty or more of the qualified taxpaying voters in each Common School District, presented to the County Board of School Trustees of the County in which the Common School District is situated.”

Appellant’s sole ground of attack on the validity of the consolidated district is that the petition which was presented to the Wise county board of trustees praying for the election was not signed by the required number of taxpaying voters of the district. No assignments of error were filed in the court below as required by the statute, nor is the transcript accompanied by a statement of facts, and it was conceded by counsel of appellant on the submission of the appeal that unless the proceedings involved were absolutely void on the ground asserted that appellant has no standing in court. We therefore address ourselves to' a disposition of that question.

It is to be noted in the beginning that the interveners in express terms alleged that the petitions for the election were duly signed by the requisite number of taxpaying voters in the common school districts in question, and the judgment, in the absence of a state-mont of facts, establishes those allegations by necessary implication, But if this be not so, as seems to be insisted, it is to be further noted that appellant in his petition for the injunction fails to show that he is either a patron or taxpaying voter in either of the common school districts involved, and that his attack on the consolidated district is a collateral one. Nor does he complain that the law under which the consolidation was effected is invalid.

In Kuhn v. City of Yoakum (Tex. Com. App.) 6 S.W.(2d) 91, an extension of an independent school district was questioned. It was held' that the attack could only be by a direct suit in the nature of a quo warranto by the state or by a proceeding in which the state was a party.

In Dyer v. Consolidated School District No. 5 (Tex. Civ. App.) 22 S.W.(2d) 712, it is said: “There being a valid statute under which the election was ordered and conducted, and the only complaint being that the officers acting under the valid statute failed to comply therewith, it is the well-settled law of this state that appellants have not the right to maintain a suit challenging the validity of the district.”

In the case of Floydada I. S. D. v. Shipley (Tex. Civ. App.) 238 S. W. 1026, 1029, private individuals sought to enjoin taxes on their property, óñ the ground that the district has been illegally created. The court there said: “If the district was illegally constituted, the state alone can take advantage of the fact in a proper proceeding for that purpose. * * * It was for all practical purposes treated as a de facto portion of the incorporated district. We think the rule requiring the state alone by a direct proceeding, instituted for that purpose, will apply; that appellee will not be permitted by injunction to restrain the collection of taxes and to assail the incorporation of th.e i,s.chqpl district, in this indirect manner.” • •• -

In El Paso v. Ruckman, 92 Tex. 86, 46 S. W. 25, 26, Chief Justice Gaines said: “The rule is well established that when the creation of a public corporation — municipal or quasi municipal — is authorized by statute, and a corporation has been organized under the color of such authority, its corporate existence cannot be inquired into by the courts in a collateral proceeding,” • by a taxpayer defending a tax suit.

What has already been said conclusively answers, we think, appellant’s further contention that the court erred in refusing to admit “offered proof” that less than the required number of qualified voters had signed ‘the petition for the election ordered by the court board of Wise county. But in deference to the insistence of counsel upon the submission of the appeal, we- venture to ’call attention to the fact, before stated, that that issue was distinctly presented in the petition.of the in-terveners and determined in their favor, and in the absence of a statement of facts it cannot, in any event, be said that the court’s ruling constitutes such prejudicial error as to require a reversal of the judgment. This is particularly true in view of the fact that appellant’s bill of exception fails to set out the evidence, if any, that was offered. The bill merely recites that appellant “offered to prove” that there was an insufficient number of legal signers. There is a clear distinction between “proof” and “evidence.” The “proof” is the conclusion drawn from the evidence, and the court may have concluded that the evidence offered, if any, was not competent and receivable, not only on the ground that appellant, a private person, could not so invalidate the corporate capacity of the consolidated district, but also on the ground that the recitation in the order of the county board of school trustees of Wise county, which was set forth in the petition of the interveners, could not be so impeached and was conclusive in the absence of allegations and evidence of fraud or mistake on the part of the board, and there were no such allegations or evidence offered. The recitation in the order of the county board of the Wise county trustees above referred to was that there was the “requisite number of signatures of resident, qualified voters of said district, and being in every respect in conformity with law.” The court of Civil Appeals of Galveston in the case of City of Houston v. Little, 244 S. W. 247, 255, writ of error refused, in disposing of an ordinance enlarging' a school district by annexing territory outside the city limits which was attacked on the ground that the petition upon which the ordinance was based did not contain the names of a majority of the resident qualified voters of the common school district, had this to say: “The governing body and proper officials of the city of Houston and its schools having made adjudication as to the existence of certain facts in ■the formation of said district, the judgment of no individual or of any one short of the state should be allowed to be substituted for that of the governing body of the city,” citing many cases.

In the case of Ex parte Koen, 58 Tex. Cr. R. 279, 125 S. W. 401, 402, a county attorney had been permitted to show that of the 28 signers to the petition for an election and incorporation, some 20 were not qualified electors as required by article 580, e. 11, Rev. Statutes of 1895. The court held that it was error to admit the evidence, using the following language: “Under all the authorities, when there is a tribunal created by law to pass upon any given state of facts, the findings or conclusions of this tribunal cannot be questioned collaterally, and the remedy, if any exists, is by quo warranto to annul and set aside the incorporation.”

We conclude that the judgment should be affirmed, and it is so ordered.


source: Caselaw Access Project

license: Public Domain

text:
    HOUSEWRIGHT et al. v. HOUSEWRIGHT.
    No. 12431.
    Court of Civil Appeals of Texas. Fort Worth.
    July 18, 1931.
    Rehearing Denied Sept. 19, 1931.
    P. Walter Brown and C. W. Goerte, both of Fort Worth, 'for appellants.
    Elton M. Hyder, of Fort Worth, for ap-pellee.
   CONNER, C. J.

This suit originated in one instituted by Beulah Housewright against A. C. House-wright and wife, in which she alleged that she owned an undivided one-half interest in fee and a life estate in the other one-half of lots 5 and 6, in block 27 in the Fairmount addition to the city of Fort Worth. She further set forth certain liens and needed repairs on the house situated on the premises, which it was charged defendant A. C. House-wright refused to provide for, and she prayed for a partition of the property, or if incapable of partition, that the property be sold and that she receive the valúe of her interest out of the proceeds.

The defendant A. C. Housewright, joined by his then wife, Mary A. Housewright, answered by a general denial, but specially admitted and agreed t.hat the “plaintiff is entitled to a partition of said real estate described in plaintiff’s petition, that is, lots 5 and 6 in Block 27, in Fairmount Addition to the City of Fort Worth, and that the same should be granted and said property divided.”

The defendants, by way of a cross-action, further specially alleged that about September 29, 1927, A. C. Housewright was granted a divorce from the plaintiff Beulah House-wright, alleging in substance that in the. decree therefor the plaintiff had been adjudged the use and occupancy of the lots mentioned, upon which was situated their homestead and which was owned by them in community, together with the household effects; that he was the community owner of one-half of said property; that the property was incapable of partition. He further set up certain in-, debtedness for taxes, liens, attorney’s fees, etc., for which he prayed to 'be reimbursed out of the proceeds of the property when sold.

The trial was before the court without a jury and resulted in a judgment in the plaintiff’s favor in accord with the disposition made of the community property of the parties by the divorce decree, and the defendants have duly appealed.

The trial court filed conclusions of fact and law, which we have concluded sustains his judgment, and but two material questions are presented by appellants’ assignment of error:

First, can appellants in this case, which was one for partition, set aside as void the divorce decree on the ground that the court' was without power to- grant the divorced wife, Beulah Housewright, the right to continue to occupy and use the homestead and household and kitchen furniture during her lifetime or until she remarried, notwithstanding the fact that there were no children ■of the marriage or other constituent member of the family?

Second, does the record sustain appellants’ contention that the judgment from which this appeal has been taken should be set aside on the ground that at the time of its entry neither appellants nor their counsel were present or offered testimony?

That the decree of divorce, which without dispute has never been set aside, is, in this undoubted collateral action, conclusive of the respective rights of Beulah and A. 0. Housewright in the property owned hy them at the time, must be assumed without the citation of authority. Indeed, it was admitted by the able counsel for appellants on the submission that unless, as is contended, the divorce decree is void in the strict sense of that' term, on the ground that the court was wholly without power to vest in Beulah Housewright the right to occupy and use the homestead and household effects during her life or until she remarried, including A. C. Housewright’s community interest therein, appellants had no standing in court. That this may be done seems to be settled contrary to appellants’ contention by the decision of our Supreme Court in the case of Hedtke v. Hedtke, 112 Tex. 404, 248 S. W. 21. It is there said, quoting from the head-notes: “The court, in decreeing a divorce.at suit of the wife which awarded her custody of minor children, was authorized, by article 4634, Revised Statutes, to award the wife and minor children the use as a homestead of land, the separate property of the husband, for the natural life of the wife.”

We are not prepared to hold that the fact that the rule so announced is only applicable, where, as in. the Hedtke Case, minor .children of the spouses exist, for in the later case of Clark v. Clark, 35 S.W.(2d) 189, 190, by the Waco Court of Civil Appeals, writ of error dismissed July 8, 1931, the Hedtke decision was distinctly followed and applied notwithstanding the fact that no children were involved. After referring to the Hedtke and other eases following it, the court concluded by saying: “Unquestionably, under the holding of the Supreme Court in the Hedtke v. Hedtke Case, supra, and the other authorities which have followed same, the district court, in granting a divorce, may decree that the rents, revenues, and income from the separate property of one spouse shall be used for the support of the other.”

Nor do we think we can disturb the •judgment below, as is urged, on the ground that neither appellants nor their counsel were present or offered evidence at the time the, judgment below was entered. We have carefully read the evidence offered on the hearing of appellants’ motion for a new trial on the grounds stated, and think it sufficient under well-settled rules to support the trial court’s conclusions of fact relating to the subject. The evidence shows, and the court finds, that the decree of divorce between Beulah and A. O. Housewright was offered in' evidence; that counsel for the respective parties “in open court agreed that none of said property was capable of partition in kind and that the appointment of a commissioner was an unnecessary expense, and in open court agreed that said property should be sold as under execution and that judgment was rendered herein based on said statement and agreement on the part of said attorneys in open court on the trial of said cause.” The court further finds that “after the agreements had been made as herein-above set forth, that all parties rested their case and the court requested Elton M. Hyder, attorney for Beulah Housewright aforesaid, to draw up a judgment in this case.” The evidence and findings further show that Mr. Hyder prepared the judgment, submitted it to opposing counsel in ample Jime for objection ; that no objection was urged; and that upon the hearing for a new trial no offer of evidence was made in behalf of appellants other than that at the time the judgment was entered neither appellants nor their counsel were present or offered evidence. The record further shows that at the time of the agreements referred to, the decree of divorce was •offered and read in evidence and no application at any time was made in behalf of appellants for delay to secure testimony, nor was any defense, suggested other than that the decree of divorce was void as before stated. The court undoubtedly had jurisdiction of the parties and subject-matter, and upon the hearing of the motion for new trial some showing of a defense to the action was required, for, as has often been held in similar cases, it would be idle to set aside a judgment and be later required to enter the same decree on the undisputed facts and agreements of the parties.

The further contention that the court’s conclusions of fact cannot be considered is without merit for several reasons. It Is true that the conclusions appear not to have been filed within the time required by the statute after the written request therefor had been filed (Rev. St. 1925, art. 2247), but no bill of exception appears to have been taken to the failure, nor does it appear that the court’s attention was called to the written request; on the contrary, it is stated in the court’s conclusion that the court’s attention was not called to the request. See Texas Jur. vol. 3, § 356, p. 508. Moreover, there is a statement of the evidence introduced on the hearing of the motion for a new trial which supports the judgment.

Appellants at no time, as before stated, offered evidence in support of the relief prayed for in the cross-action, nor was there at any time complaint made- of the failure of the judgment to dispose of appellants’ cross action by direct reference, hence it will be implied that the cross action was waived. See Humble Oil & Refining Co. v. Johnston (Tex. Civ. App.) 5 S.W.(2d) 836.

We conclude that the trial court’s .findings of fact and of law should be adopted, and the judgment affirmed.


author: LANE. J.

text:
    NORMAN v. PERTHUIS.
    No. 9602.
    Court of Civil Appeals of Texas. Galveston.
    July 14, 1931.
    J. B. Ross, of Houston, for plaintiff in error.
    Kenyon & Gernsbacher and Allan D. Sanford, Jr., all of Galveston, for defendant in error.
   LANE. J.

C. P. Norman brought this suit in the form of suits of trespass to try title against Mrs. Cecile Perthuis to recover title and possession of all of lot 14 in block C of the Scott Acre Home addition to the town of .La Marque, same being a part of the John D. Moore league, and is shown on a map of record in Galveston county, Tex.

Mrs. Perthuis denied generally the allegations of plaintiff’s petition, and pleaded not guilty. She also pleaded the five-year statute of limitation. She specially alleged that she was the legal owner of lots 26 and 27 in subdivision I of Highland, as per Cook & Stewart’s subdivision, as per map of record in the office of the county clerk of Galveston county, Tex., in Book 81, page 526; said lots being situated in Galveston county and containing five acres of land, more or less. She alleges the Cook & Stewart subdivision, of which her lots are parts, was made, as shown by the recorded plat or map, in 1890, and the subdivision of which lot T4, claimed by the plaintiff, was made, as shown by the map or plat of such subdivision, in 1912.

The pleadings of the parties, together with the maps or plats of the two subdivisions mentioned attached thereto, disclose that the real issue to be determined is as to the true common boundary line between the two properties, as located upon the ground.

The case was tried before the court without a jury. Upon the evidence adduced, the court rendered judgment for the defendant. Such judgment, in effect, recites that the evidence shows that the true north boundary line of the lots 26 and 27 of the Cook & Stewart subdivision is where it was placed by the surveyor who laid it out in 1890, which line is truly shown by a map or plat of such subdivision, duly recorded; that such survey is a survey senior to the survey and platting of the Scott’s Acre Home subdivision, and therefore, its lines as located should prevail over the subsequent survey made for the .Scott’s Acre Home subdivision, where there is a conflict in the lines of the two surveys. Upon such conclusions it was adjudged that the defendant was entitled to judgment for all the land embraced in lots 26 and 27 of the Cook & Stewart subdivision as originally surveyed and platted, and that the plaintiff was not entitled to a recovery of any part of the land lying south of such north line, as claimed by him.

From the judgment rendered C. P. Norman has appealed.

No statement of facts has been filed in this court, but upon request the trial court has filed his findings of facts and conclusions of law, as follows:

“I find that in August, 1890, there was laid out and subdivided in Galveston County, Texas, a townsite known as ‘Highland,’ as per Cook & Stewart subdivision of the John D. Moore League, a plat or map thereof being at said time filed of record in Book 81, p. 526, of the Deed Records of Galveston County, Texas; that there was shown on said map or plat Lots 27 and 26 in subdivision T.’
“2. That said ¿ot 27 was bounded on the west by what was established and called on said plat ‘Bayou Road,’ which had a width of 60 feet. Lot 26 adjoining Lot 27 on the east. Lots 27 ajid 26 were bounded, on the south by what was established and called on said plat ‘Main Street,’ which had a width of 80 feet. Lot 27 was shown on said plat to have a length north and south of 650 feet and width east and west of 285.4 feet. Lot 26 had a length north and south or 650 feet and a width east and west of 315.4 feet. Lots 26 and 27 were bounded on the north by a 9.36 acre tract denominated on said plat as Lot 14 and which had a length east and west of 1,-221.5 feet and a width north and south of '331.3 feet.
“3. I find that the surveyor who laid out the said Cook & Stewart subdivision above referred to correctly established the west line and the southwest corner of said Lot 27 and the south line of Lots 27 and 26, as well, as the northwest corner of Lot 27 and the north line of Lots 27 and 26, and correctly planted stakes at said points and that said stakes and lines so correctly established and marked at the time of the laying out of said Cook & Stewart subdivision were found at their correct location and recognized by C. 0. Washington, County Surveyor of Galveston County, Texas, appointed as surveyor in this cause, when making his survey as ordered herein in Nov. 1929, and that the said original stakes of the Cook & Stewart subdivision so planted at the time of the laying out of said subdivision and as found and recognized by the said Washington in Nov. 1929, are as shown on blue-print prepared by the said Washington and attached to his report made in this cause, a copy of which is attached to the Court’s final decree herein.
“4. That on the 21st day of February, 1899, the defendant, Mrs. Cecile Perthuis, and her husband, Jules Perthuis, purchased, by general warranty deed, said Rots 26 and 27, of subdivision T,’ of Highland, as per Cook & Stewart subdivision, and the said Mrs. Cecile Perthuis has continuously to this date owned and claimed said lots.
“5. That in May, 1912, the persons owning the land in the said Cook & Stewart subdivision above or north of Lots 27, 26, 25 and 24 of subdivision T laid out a new subdivision known as Scott’s Acre Home, a subdivision of parts of Block T and Block ‘J’ of the Cook & Stewart subdivision of the John D. Moore League, a map or plat of Scott’s Acre Home Addition being of record in Book 254, p. 5, of the Deed Records of Galveston County, Texas; that by reference to the maps or plats of the said original Cook & Stewart subdivision and the Scott’s Acre Home subdivision no conflict appears between the lines of said Lots 27 and 26 of the original Cook & Stewart' subdivision and Lot 14 adjoining on the north, which said Lot 14 is denominated ‘Lot 4’ in Scott’s Acre Home Addition. I find, however, that the surveyor, C. S. Shaw, who laid out Seott’s Acre Home Addition, in planting his stakes marking the lots in. Scott’s Acre Home Addition in error failed to locate the correct lines and stakes for the west and south lines of said Lots 27 and 26 and through error planted his stakes in Main Street some distance south of the true south line of Lots 27 and 26 and the southwest corner of Lot 27 a short distance east of the correct position. As a result of this error, the south line of Lot 14 conflicts with the north line of Lots 27 and 26. The error made by the surveyor Shaw is clearly reflected on the blue-print made by the surveyor Washington in this cause attached to the final decree herein.
“6. Some time after' 1912 the plaintiff, U. P, Norman, purchased Lot 4 according to the Scott’s Acre Home subdivision plat, which, as above stated, is the same as Lot 14 in the original Cook & Stewart subdivision.
“7. This litigation arises by reason of the plaintiff, C. P. Norman, claiming that the stakes set by the surveyor Shaw, who laid out the Scott’.s Acre Home subdivision, are correctly placed and not in conflict with the original stakes set by the surveyor who laid out the original Cook & Stewart subdivision, and by Mrs. Perthuis claiming that the stakes set by the surveyor Shaw were incorrectly placed and that the stakes of the original Cook & Stewart subdivision are as located by the surveyor Washington herein and shown on his said blue-print. I find that the blueprint of the surveyor Washington is correct.
“8. I find that no issue of limitation is involved herein.
“Conclusions of Law.
“I conclude that, there being a conflict between the two surveys and the Cook & Stewart subdivision being the older, the lines thereof should prevail. Accordingly, I conclude 'that the plaintiff Norman is not entitled to recover herein and that both parties are entitled to the land described and shown on the blue-print attached to the surveyor’s report and as decreed in the final decree in this cause.”

We think the findihgs of facts filed by the court support the judgment rendered, and, 'since1 there is no statement of facts filed, it must be presumed that the evidence objected to by appellant was properly admitted by the court. The judgment is affirmed.

Affirmed.


author: BAUGH, J.

text:
    TEXAS MOTOR COACHES, Inc., v. RAILROAD COMMISSION et al.
    No. 7615.
    Court of Civil Appeals of Texas. Austin.
    July 16, 1931.
    Rehearing Denied Sept. 23, 1931.

      Cantey, Hanger & McMahon, R. K. Hanger, and Warren Scarborough, all of Fort Worth, for appellant.
    James V. Allred, Atty. Gen., and T. S. Christopher, Asst. Atty. Gen., for appellee Railroad Commission.
    Phillips, Trammell, Chizum, Price & Estes, of Fort Worth, for appellee South Texas Coaches.
   BAUGH, J.

Suit by appellant against the Railroad Commission and the South Texas Coaches, Inc., to perpetually enjoin as illegal and void an order of the Railroad Commission, dated December 5, 1930, granting to the South Texas Coaches, Inc., a permit to operate a motorbus line between Dallas and Fort Worth. A temporary injunction was granted, but at the hearing upon' the merits the trial court sustained a general demurrer and numerous special exceptions to plaintiff’s petition, dissolved the temporary injunction, and upon failure of plaintiff to amend, dismissed its suit; hence this appeal.

Plaintiff alleged that it had prior to September 1, 1927, with the approval of the Railroad Commission, purchased from the various owners 21 licenses or permits theretofore issued by the Railroad Commission to bus operators between Dallas and Fort Worth; and that thereafter it had continuously operated, under the supervision and regulation of said commission, an adequate schedule of bus service over State Highway No. 1, between Dallas and Fort Worth. It also alleged in considerable detail these schedules, the passenger rates between said points, costs of operation, gross and net revenues derived by it over said route covering the period from September 1, 1927, through September, 1930. These allegations showed an investment by appellant of $237,785; and that it had purchased in 1928,' pursuant to orders of the Railroad Commission, 11 new motorbusses at a cost of more than $96,000. It also alleged reduction during said period, with the approval of the commission, of its scedule from 34 to 16 round trips per day between said points; and an increase of its fare from 50 cents to 93 cents for the trip. It further alleged that for the first three-quarters of 1930, ending with September, its net operating losses over said line between Dallas and Fort Worth amounted to more than $10,000. It also alleged facts showing that it had operated its service efficiently and had adequately met the public convenience and necessity in transportation between said points.

The route over which the commission granted a permit to the South Texas Coaches, Inc., to operate a competitive motorbus line between Dallas and Fort Worth and intermediate points, was a highway approximately parallel to Highway No. 1, over which appellant operated, and about 4 miles north of said highway.

The order complained of was alleged to be illegal and void:

1. Because the Railroad Commission failed to tafee into consideration in granting it:

(a) The adequacy of the service rendered by plaintiff between said termini;

(b) The amount of plaintiff’s investment and its return thereon;

(c) The existing motor transportation facilities between said cities;

(d) Whether or not public necessity and convenience required or warranted such additional service;

(e) Whether or not the highway designated was of such type of construction and state of repair, etc., as is prescribed in section 7, chap. 270, General Laws 40th Legislature (Vernon’s Ann. Civ. St. art. 911a, § 7), commonly called the Motor Transportation Act.

2. Because the Railroad Commission—

(f) Erroneously determined that necessity and public convenience demanded additional service between said cities;

(g) Erroneously authorized such competitive service contrary to the provisions, intent, and construction of the Motor Transportation Act.

3. Because if such public convenience and necessity demanded such additional service, under the terms of the Motor Transportation Act, plaintiff should have been permitted to furnish same:

(h) Because the purpose of the application of South Texas Coaches, Inc., was to establish a competitive service at a lower rate contrary to the provisions'and purposes of the Motor Transportation Act;

(i) Because under the Motor Transportation Act plaintiff was entitled to be reasonably protected from detrimental competition.

It was also alleged that the operation ot such competitive line would reduce appellant’s revenue, further impair a fair adequate return from tlie service performed by it under tbe regulation of the Railroad Commission, thus doing it an irreparable injury; and that the issuance of said order and permit was violative of the constitutional inhibitions against taking its property without due process of law, and those guaranteeing to it equal protection of the laws.

Appellees urged a general demurrer and numerous special exceptions, several of which were sustained. Since, however, the general demurrer was sustained, the only question here presented is whether the petition was sufficient as against such general demurrer to state a cause of action, and we need not consider the court’s rulings on the special exceptions. And in so testing the sufficiency of plaintiff's petition every reasonable intendment must be indulged in support of it. Porter v. Burkett, 65 Tex. 383; Bigham Bros. v. Channel & Dock Co., 100 Tex. 202, 97 S. W. 686, 13 L. R. A. (N. S.) 656; Blum v. Kusenberger (Tex. Civ. App.) 158 S. W. 779; Cooper v. Casselberry (Tex. Civ. App.) 230 S. W. 231.

Plaintiff’s allegations were we think sufficient, taken in their most favorable light, to assert the illegality of the order complained of. The order attacked recites that a hearing was had upon the application of the South Texas Motor Coaches, Inc., and other jurisdictional facts, and every presumption of verity is to be given to the acts of the commission. When directly attacked, however, in a proceeding brought for that purpose on the ground that the requirements of the law governing the granting oij, such permit had not been complied with, such presumption does^ not • obtain as against a general demurrer which admits that the allegations are true.

The whole tenor of the Motor Transportation Act (Vernon’s Ann. Civ. St. art. 911a, §§ 1-13, 15-19 and Vernon’s Ann. P. C. art. 1690a) indicates that the welfare of the public is the matter of first consideration, and that permits to individuals or corporations to use the public highway for profit are not to be granted in any event if existing transportation facilities thereon are adequate; nor until and unless the Railroad Commission has ascertained that there is a need of, and a demand for, such additional facilities. Section 6 of the said act (Vernon’s Ann. Civ. St. art. 911a, § 6) provides: “The Commission is hereby vested with power and authority, and it is hereby made its duty upon the filing of an application for a certificate of public convenience and necessity, to ascertain and determine under such rules and regulations as it may promulgate, after considering existing transportation facilities on such highway, the service rendered and capable of being rendered thereby, and the demand for, or need of additional service, if there exists a public necessity for such service, and if public convenience will be promoted by granting said application and permitting the operating of motor vehicles on the highways designated in such application, as a common carrier for hire.’’

Section 7 of said act (Vernon’s Ann. Civ. St. art. 911a, § 7), among other things, provides: “The Commission shall also ascertain and determine if a particular highway or highways designated in said application are of such type of construction or in such state of repair, or subject to such' use as to permit of the use sought to be made by the applicant, without unreasonable interference with the use of such highway or highways by the gen-erál public for highway purposes.”

While the commission is given considerable latitude in the manner in which it may proceed to ascertain the facts prescribed in the statute as prerequisite to the granting of such permit, the duties of the commission prescribed in the act are, we think, mandatory, and the commission is without authority to issue such permit until it has.ascertained the facts prescribed by the statute as essential. It cannot act arbitrarily in such matters and issue such permit without ascertaining such facts.

Plaintiff’s allegations, though somewhat general in nature, in substance charged that the commission had not complied with the requirements of the statute. If they had not the order was, we think, invalid. And the general demurrer admitted as true the allegations made.

If the permit attacked was not granted in accordance with the law, was appellant such “party at interest” within the meaning of section 17 of said act (Vernon’s Ann. Giv. St. art. 911a, § 17) as is entitled to assert its invalidity? Prom the briefs and argument of counsel it appears that the trial court concluded that it was not. We think undoubtedly that it was. The mere fact that the permit was granted over a different and distinct highway does not destroy appellant’s interest in the matter. The permit was to carry passengers between the same cities served by appellant. Obviously the major portion of the passengers would be through passengers between those cities; and the business of such permittee would directly affect that of appellant. We think the Motor Transportation Act itself recognizes appellant as such a party at interest, in requiring that an application for a permit contain, among other things, a map or plat showing not only the route proposed, but on which “shall be delineated the line or lines of any existing transportation company or companies over the highways serving such territory, with the names and addresses of the owner or owners thereof,” etc. (section 8 [Vernon’s Ann. Oiv. St. art. 911a, § 8]). Said act also provides (section 9 [Vernon’s Ann. Giv. St. art 911a, § 9]) that notice of hearing be given by the commission to the owners of such “existing transportation facilities over ilie highways, serving such territory as applicant seeks to serve,” etc. (Italics ours.)

We think the clear and necessary implication of the act itself is not to limit “parties at interest” to those operating on the particular highway involved, but to include those serving the territory adjacent, or, as in this case, operating between the same termini over different highways. - If appellant’s allegations are true, the operation of such competitor would be under a permit illegally issued and result to appellant the same as if it were operating without a permit. Under the allegations made, appellant’s business as a common carrier, whether its permit be deemed a franchise or merely a license, would obviously be injured by the South Texas Motor Coaches, Inc., operation, and entitled to restrain such operation. Tugwell v. Eagle Pass Perry Co., 74 Tex. 480, 9 S. W. 120, 13 S. W. 654; Lindsley v. Dallas Consol. St. Ry. Co. (Tex. Civ. App.) 200 S. W. 207; Ft. Worth Gas Co. v. Latex Oil & Gas Co. (Tex. Civ. App.) 299 S. W. 705; Memphis St. Ry. Co. v. Rapid Transit Co., 133 Tenn. 99, 179 S. W. 635, L. R. A. 1916B, 1143, Ann. Cas. 1917C, 1045; State ex rel. B. & M. Auto Freight v. Dept. of Pub. Works, 124 Wash. 234, 214 P. 164; Davis & Banker, Inc., v. Nickell, 126 Wash. 421, 218 P. 198.

Appellees contend that appellant was required, but failed, to allege clearly and specifically facts showing beyond a reasonable doubt that the order complained of was “unreasonable and unjust to it or them,” such being the burden cast upon any complainant by section 17 of said act. The language there used is identical with that of R. S. art. 6454, relative to fixing rates, etc., on railroads. Such is undoubtedly the rule laid down in numerous cases as applied to fixing and regulating railroad freight rates. See Railroad Commission v. Galveston Chamber of Commerce, 105 Tex. 101, 145 S. W. 573; State v. St. Louis S. W. Ry. Co. (Tex. Civ. App.) 165 S. W. 491; Railroad Commission v. Rio Grande & E. P. Ry. Co., 111 Tex. 178, 230 S. W. 974; Houston Chamber of Commerce v. Railroad Commission (Tex. Civ. App.) 19 S.W.(2d) 583. But there is a necessary distinction between the nature and character of the railroads as common carriers on the one hand and that of motorbus lines as such common carriers on the other. In the ease of the former their roadbed is their own property, fixed, immovable, and permanent in nature. Their right to transact their business thereon cannot under the constitution and laws be abridged nor revoked by the Railroad Commission. The commission’s control over them is purely regulatory.

Whereas, in the case of the state highways no such right exists in any motorbus operator, his right to conduct his business thereon at all is purely permissive. Such right must first be granted by the commission after ascertaining the facts prescribed by the statute, before the commission’s powers and duties in regulating the operation of that business are called into use. The matter of granting a permit, therefore, or the right to do business on the highways, is determined wholly by the needs and convenience of the public, the character of the highway, the ability of the applicant to render the service, etc.; in brief, by the conditions set out in the statute. It is not, therefore, strictly analogous to an order regulating operation after a permit to do business has been granted.

Regardless of such analogy, however, if in fact the commission, without complying with the requirements of the law, granted such permit, thus affording illegal competition to appellant injurious to its business, such order was we think as a matter of law unjust and unreasonable to it, whether appellant attacked it on that specific ground or by the use of the express language of the statute or not.

Appellees attack said pleadings as being insufficient in other respects, but these relate to matters raised by special exceptions. We do not interpret appellant’s pleadings as asserting that it was entitled to a monopoly of motor bus transportation between Dallas and Port Worth. Clearly it was not. Its permit was not exclusive, nor could the Railroad Commission grant it such. Nor was it entitled to be protected against competition, if the public convenience and necessity authorized the granting of such permit to a competing company over the same or a parallel route between said cities.

On the record as presented we have nothing before us to show in what manner the commission exercised its discretion in the premises, if it be assumed that it complied with the statute as to hearings, etc. Wo base our opinion on the allegations, admitted by the 'general demurrer to be true, that the Railroad Commission did not comply with the mandatory requirements of the law; that it did not ascertain the facts prescribed by the law as necessary to the granting of a valid permit. Appellant was entitled to a trial upon those issues. We refrain from a discussion of the issues raised by special exceptions.

Por the reasons stated, the judgment of the trial court is reversed, and the cause remanded for trial.

Reversed and remanded.


author: PARKER, Justice.

text:
    Sallie D. POWELL et al., Appellants, v. The STATE of Texas, Appellee.
    No. 6862.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 17, 1966.
    Rehearing Denied Dec. 29, 1966.

      John E. Collins, Dallas, for appellants.
    Bill A. Martin, Newton, for appellee.
   PARKER, Justice.

George O. Powell, Helen Powell and Mrs. Mamie Mott sued the State of Texas and the Commissioners’ Court of Newton County to declare null and void and to vacate and set aside a judgment styled “The State of Texas v. Mrs. Sallie D. Powell, et al” in the County Court of Newton County, Texas, dated April 23, 1941, and filed April 30, 1941. The trial court overruled and denied the plaintiffs’ motion to set aside the judgment. No jury was impanelled.

Omitting the description of the land involved, the judgment complained of is as follows:

“EXHIBIT ‘A’
No_
THE STATE OF TEXAS VS MRS. SALLIE D. POWELL, ET AL
IN THE COUNTY COURT OF NEWTON COUNTY, TEXAS
JUDGMENT OF THE COURT
On this the 23rd day of April, A. D., 1941, came on for final hearing the above numbered and styled cause, and it appearing to the Court that no objections have been filed to the award of the special commissioners, filed on the 9th day of April, A. D., 1941 which is as follows:
No.
THE STATE OF TEXAS VS. MRS. SALLIE D. POWELL, ET AL
IN THE COUNTY COURT OF NEWTON COUNTY, TEXAS
“On this the 9th day of April, A. D., 1941, came on for hearing before the undersigned R. C. Dickerson, Mark Miller and S. F. Hughes, special commissioners and disinterested freeholders of Newton County, Texas duly appointed by the County Judge of Newton County, Texas to assess the damages accrueing to Mrs. Sallie D. Powell, J. D. Powell, H. B. Powell, E. A. Powell and R. H. Howard by reason of the condemnation and taking a right of way fully described in partitioner’s petition on file herein, which land is owned by Sallie D. Powell, J. D. Powell, H. B. Powell, E. A. Powell and R. H. Howard, defendants herein and described as follows:
[Description omitted]
“AND all parties having been duly notified of the time and the place of meeting as by law required, and all parties appearing in person and by their attorneys, and after fully hearing said parties at the time and place of appointment, and all the evidence as to the damages which will be sustained by said defendants by reason of such condemnation, we assess said damages in the sum of One Hundred Sixty-two Dollars and Fifty Cents ($162.50); and the commissioners court of Newton County, Texas shall pay all cost of this proceeding.
/s/ R. C. Dickerson_
R. D. Dickerson
/s/ Mark Miller_
Mark Miller
/s/ S. F. Hughes_
S. F. Hughes
Special Commissioners
“It is, therefore, ORDERED, ADJUDGED and DECREED by the Court that the Commissioners Court of Newton County, Texas on behalf of The State of Texas, pay to Mrs. Sally B. Powell, J. D. Powell, H. B. Powell, E. A. Powell and R. H. Howard, the Defendants herein, jointly, the sum of One Hundred Sixty-two and 50/100 ($162.50) Dollars and such payment be, and it is hereby adjudged to be full compensation for the title to the hereinafter described property.
“It is further ORDERED, ADJUDGED and DECREED that the title to said property hereinafter described be and the same is hereby divested out of the said Mrs. Sally D. Powell, J. D. Powell, H. B. Powell, E. A. Powell, R. H. Howard, defendants herein, and vested in the State of Texas, said property being described as follows:
[Description omitted]
“It is further ORDERED, ADJUDGED and DECREED that the Commissioners Court of Newton County, Texas shall pay all costs herein incurred.
/s/ Causey Mattox_
Causey Mattox, County Judge Newton County, Texas”

Such judgment is of record in Volume 2, page 386, Minutes of the County Court of Newton County, Texas, and in Volume 63, page 443 of the Deed Records of Newton County, Texas.

This is not a trespass to try title suit. It is a bill of review with appellants seeking to cancel and set aside the judgment of 1941. The time for filing a motion for new trial and for appealing from the judgment of 1941 had expired. Under Rule 329b, Texas Rules of Civil Procedure:

“[A] proceeding in the nature of a bill of review is the exclusive method of vacating a default judgment rendered in a case in which the court had jurisdictional power to render it. Into this category will fall those cases in which a default judgment is asserted to be void for want of service, or of valid service, of process.” McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706, 710 (1961).

Appellants allege in their petition they are the legal heirs of Sallie D. Powell and J. D. Powell; that the County Court of Newton County lacked jurisdiction to render such judgment of 1941 since the con-demnees in the cause did not receive any notice of any kind of the condemnation sought by the commissioners’ court of Newton County on behalf of the State of Texas to take land to be used as a right-of-way for the relocated State Highway 87; that this judgment should be set aside and de-dared null and void since the named con-demnees in the case of The State of Texas v. Sallie D. Powell, et al, had no notice of the commissioners’ hearing and did not appear before such hearing; that the amount awarded to the condemnees was so inadequate as to amount to an unconstitutional deprivation of property without due process of law. They further alleged they have legal title to the land described in the judgment; that they had no opportunity to file objections to the award of the commissioners that any recitations contained in the judgment pertaining to notice given to the parties bears no relation to the actual facts as they existed at that time. They further allege they had no legal remedy at law and that through no fault of their own they have lost the right of appeal. For the same reasons as set forth above, they allege that they have a “good and sufficient defense to the action”.

No answer or pleading of any kind was filed on behalf of appellees. Appellants did not ask for default judgment. Attorney for appellees participated in the actual trial. Under Rules 67 and 90, T.R.C.P., the Supreme Court of this State has held that it is clear

“that even though the defendant wholly fails to file any answer whatever, yet if the parties appear and try the case on certain issues without any objection on the part of the plaintiff to the failure of the defendant to file an answer, the plaintiff cannot raise the issue of insufficiency of the defendant’s pleadings for the first time on appeal.” Bednarz v. State, 142 Tex. 138, 176 S.W.2d 562 (1944).

Of course, the appellants would have had no notice of the hearing held by the special commissioners and no material reason to appear at the hearing because they were not condemnees. Appellants’ points of error are:

1.The trial court erred in denying appellants’ motion to set aside the judgment of April 23, 1941, for the reason that no evidence was presented before the Court to show that notice had actually been served on the landowners to appear at the Commissioner’s hearing: therefore, any judgment issuing out of said hearing should have been declared null and void.
2. The trial court erred in not setting aside the judgment complained of since a defective condemnation proceeding is subject to collateral attack as is any other void proceeding,"'ésp'é'Cially so when there is no notice given to the landowners.
3. The State and County of Newton failed to meet their burden since they, as the condemnors, failed to introduce any evidence that the landowners had been served with notice of the condemnation hearing held on the 9th day of April, 1941.

Pursuant to Rule 377, T.R.C.P., a statement of facts in narrative form was agreed to by counsel for all parties and approved by the trial judge. A deputy of the County Court of Newton County testified that a search had been made for the papers in the 1941 cause “but no records or citations had been found in the case.” Mr. George O. Powell testified his father and grandmother were neither served with papers nor received notice of any kind relative to the condemnation proceedings. He did not identify his father or grandmother by name nor did he state when they died or give any details of their marital history and heirship or whether they died testate or intestate. There is no evidence as to whether or not H. B. Powell, E. A. Powell or R. H. Howard are alive or dead. There is no evidence as to the respective ownership in the land of any of the condemnees. The 1941 judgment ordered the commissioners’ court to pay con-demnees jointly the sum of $162.50. There is no allegation and no evidence that the condemnees were not paid such sum jointly. When the 1941 judgment was recorded in the Deed Records of Newton County it was notice of its existence to all persons claiming under any of the condemnees in the 1941 judgment. Art. 6646, Vernon’s Ann.Civ.St. There is no pleading and no evidence that appellants subsequent to the deaths, respectively, of Sallie Powell and J. D. Powell have proceeded with diligence in filing their bill of review with legal notice of the existence of the 1941 judgment.

The judgment of 1941 not being void upon its face, it was indispensable to a bill of review that it contain an allegation denying no lack of diligence on the part of the appellants' and proof thereof. Appellees raised this question by the evidence and by the contention that time had run on this matter. Appellants in no manner showed they were diligent in filing this suit when they had notice of the 1941 judgment after the death of Sallie D. Powell and J. D. Powell, under whom they claim to be legal heirs. In the instant case, such allegation and proof of diligence on the part of appellants are lacking.

There is no evidence as to the value of the property as of the date of taking by the 1941 judgment or at the time of filing the instant bill of review. Appellants in no manner questioned the authority of the con-demnors to exercise the right of eminent domain. As part of their meritorious defense appellants have not produced evidence that would bring about a different result as to money damages than that of the 1941 judgment, thereby failing to prove the 1941 judgment was adverse to them. To be successful in a bill of review to set aside and cancel a judgment, each and all of the elements of a bill of review must be met. Palmer v. D.O.K.K. Benevolent Ins. Ass’n, 160 Tex. 513, 334 S.W.2d 149 (1960), reversing Court of Civil Appeals of 1959, 329 S.W.2d 916; McDonald v. Finley, 328 S.W.2d 919 (Tex.Civ.App.1959, wr. ref’d).

H. B. Powell, E. A. Powell and R. H. Howard and/or those deraigning title under them are indispensable and necessary parties to this suit and have not been made parties. Sedgwick v. Kirby Lumber Co., 130 Tex. 163, 107 S.W.2d 358 (1937). In appellees’ brief it is asserted that the payment of $162.50 was made to the condemnees in the 1941 suit. This assertion has not been contradicted. Appellants have no allegation in their bill of review that it was not paid to the condemnees. This suit was filed more than 24 years after entry of the 1941 judgment. The presumption of payment obtains. Weems v. Masterson, 80 Tex. 45, 15 S.W. 590, 593 (1891). Con-demnees by accepting this payment were estopped to deny the validity of the 1941 judgment.

The Supreme Court of Texas in Texas Employers’ Ins. Ass’n v. Arnold, 126 Tex. 466, 88 S.W.2d 473, 474, quoted with approval from Humphrey v. Harrell, Tex.Com.App., 29 S.W.2d 963, 964, as follows:

“The only relief to an injured party, other than by appeal, is by direct suit setting up equitable grounds for the relief sought. When such a petition for relief at a subsequent term is brought before the proper court, it is not contemplated that the cause shall be divided and tried by piecemeal; one in which a judgment is rendered setting aside the former judgment and the other in a trial on the merits, but every issue arising on the merits must be disposed of, and the relief prayed for is either denied or granted in the one proceeding.”

Honoring this principle, appellants have failed to meet their burden in order to obtain relief by their bill of review.

Judgment of the trial court is affirmed.


author: COLEMAN, Justice.

text:
    James Henry BLACK et ux., Appellants, v. H. D. BOYD, Appellee.
    No. 14872.
    Court of Civil Appeals of Texas. Houston.
    Nov. 3, 1966.
    Rehearing Denied Jan. 5, 1967.

      Phelps, Kilgarlin & Snell, Jim S. Phelps, Mabel Grey Howell, Houston, George Morris, Conroe, for appellants.
    Henry P. Giessel, Houston, Talbert, Gies-sel, Barnett & Stone, Houston, of counsel, for appellee.
   COLEMAN, Justice.

This is an action for damages resulting from an intersectional collision between the automobile driven by Mrs. Black and a truck driven by Mr. Boyd. Prior to the trial Mr. Boyd died and the suit was continued against the Estate of H. D. Boyd. Based on a jury verdict, judgment was entered that the plaintiff take nothing.

In answer to Special Issues 3, 4, and 5, the jury found that H. D. Boyd failed to yield the right of way to the vehicle, driven by Mrs. Black; that this failure did not constitute negligence; but, that the failure was a proximate cause of the collision.

In answer to Special Issues 9, 10 and 11, the jury found that Mrs. Black failed to keep her vehicle entirely upon her right half of the roadway; that this failure did not constitute negligence; but, that this failure was a proximate cause of the collision.

The jury answered Special Issue No. 20, “Do you find from a preponderance of the evidence that the collision in question was proximately caused by the negligence of either H. D. Boyd and/or Naomi Black?”: “We do not.”

Other claimed acts of negligence on the part of the defendant, and of contributory negligence on the part of Mrs. Black, were submitted to the jury, but it failed to find that any act of negligence constituted a proximate cause of the collision.

The jury did find that before the collision Mrs. Black was faced with an emergency and that after the emergency arose she acted as an ordinarily prudent person would have acted and that the emergency was a proximate cause of the collision.

There was testimony that after having stopped for a few seconds at a stop sign, Mr. Boyd proceeded slowly into the intersection and came to a stop again just short of the center of the intersection. There was evidence that at the time of the collision he was not moving and his motor was dead. There was testimony that some 56 feet from the point of the collision the left front wheel of the vehicle driven by Mrs. Black began to lay down a skid mark and that 46 feet from the point of the collision the right rear wheel began to lay down a skid mark. This testimony was to the effect that the skid marks began on the right hand side of the road and crossed over the center line prior to the point of the collision. While this testimony was contradicted, apparently it was believed by the jury.

It is appellee’s theory that, considering the testimony summarized, the verdict of the jury is consistent and the answers made by the jury are not conflicting. Conceding that the action of Mr. Boyd in entering the intersection when Mrs. Black’s vehicle was so near as to constitute an immediate hazard constituted a failure to yield the right of way, it can be argued that since he stopped before passing the center line of the intersection, his failure to yield the right of way could be excused, and, therefore, the question of negligence was one for the jury. It would follow that since appellant failed to obtain a finding that ap-pellee was guilty of negligence, the further finding that the failure to yield the right of way was a proximate cause of the collision became immaterial.

While. the question of when a statutory violation constitutes negligence per se frequently is troublesome, the procedure to follow in solving the problem has been settled by the case of Hammer v. Dallas Transit Company, 400 S.W.2d 885, Tex.Sup.1966. There the Court said:

. “An analagous situation is found in instances in which one relies upon and proves the fact that his adversary violated a statutory standard. The one charged with such a violation may then go forward with the evidence and show excuse or justification for the violation. See Calvert, Special Issues under Article 6701d, § 86(d), 34 Tex. L.Rev. 971, 977. But it is the one seeking to justify or excuse the violation who has the burden of going forward with the evidence. Younger Bros. v. Marino, 198 S.W.2d 109, 113 (Tex.Civ.App.1946, writ ref. n. r. e.); Jessee Produce Co. v. Ewing, 213 S.W.2d 750 (Tex.Civ.App.1948, no writ); Note, 27 Tex.L.Rev. 866. When he does so, he thrusts upon the other party the burden to obtain a finding that the violation was negligence under the common-law standard. Cunningham v. Suggs, 340 S.W.2d 369, 374 (Tex.Civ.App.1960, writ ref. n. r. e.); Phoenix Refining Co. v. Powell, 251 S.W.2d 892 (Tex.Civ.App.1952, writ ref. n. r. e.); Fisher v. Leach, 221 S.W.2d 384, 390 (Tex.Civ.App.1949, writ ref. n. r. e.); Taber v. Smith, 26 S.W.2d 722 (Tex.Civ.App.1930, no writ); Hodges, Special Issue Submission in Texas, § 25 (1959). The burden of persuasion on the whole case remains on the one relying upon the statutory violation. See Grieger v. Vega, 153 Tex. 498, 271 S.W.2d 85 (1954).”

In Hammer the Transit Company’s bus was in a collision when it was on the wrong side of the road, and the Transit Company proved that its bus was out of control at the time it crossed the center line. The jury found that the Transit Company was negligent in traveling on the wrong side of the road. The Transit Company urged that the fact that the bus was out of control when it crossed to the wrong side of the road excused the statutory violation as a matter of law. The Supreme Court said:

“Pressed to its limits, that argument would mean that one’s grossly negligent loss of control, would amount to a legal excuse. The burden was upon the defendant Transit to go forward with the evidence to prove not merely its own loss of control but that the loss of control was excusable.”

The facts in this case show, and the jury found, that Mr. Boyd failed to yield the right of way by entering the intersection at a time when Mrs. Black’s vehicle was approaching the intersection so closely as to constitute an immediate hazard. As an excuse for the violation there is evidence that Mr. Boyd’s vehicle stopped near the center line of the intersection and that at the time of the collision his motor was not running. There is, however, no evidence that his action in entering the intersection was excusable. There is no evidence that the motor of his vehicle stopped without fault on his part. There is no evidence that there was sufficient time for the Boyd vehicle to cross the intersection in front of the Black vehicle had the motor not stopped.

There must be some evidence that Mr. Boyd’s .action in entering the intersection under the existing circumstances was not negligence. The only evidence tending to excuse his conduct is that after he entered the intersection he stopped before he reached the lane of traffic in which Mrs. Black’s car should have been traveling.

There was testimony that the Boyd truck stopped eight inches before crossing into the lane of traffic in which Mrs. Black was approaching. Other testimony is that the truck stopped eighteen inches short of the center line. Mrs. Black testified that it crossed over the center line. Mrs. Black was going west on F. M. 1960, which had one lane for west-bound traffic and one lane for east-bound traffic. A painted center stripe divided the two lanes. While Mrs. Black denied that the truck stopped prior to the collision, other witnesses testified that it did stop, but none of them were able to estimate the length of time it remained stopped prior to the collision. It is reasonable to infer that it had not stopped before Mrs. Black applied her brakes if the testimony that the truck never entered the lane in which Mrs. Black was traveling is accepted. It is undisputed that the truck was traveling slowly as it moved into the intersection. The jury refused to find that Mrs. Black was driving at an excessive speed. The only evidence of excessive speed was the testimony of Mr. Boyd’s son, who first saw the car after it had begun to skid. While the jury refused to find that Mr. Boyd failed to keep a proper lookout, he testified in answer to an interrogatory that he did not see Mrs. Black’s car at any time prior to the collision. The front of Mrs. Black’s car collided with the right front fender of the truck.

Under the circumstances we are of the opinion that the evidence raised the issue of an excusable violation and that the burden of securing a finding of negligence rested on the plaintiff. We are further of the opinion that the answer made by the jury to the negligence issue submitted is against the great weight and preponderance of the evidence and is clearly wrong.

An issue was also raised as to an excusable violation on the part of Mrs. Black by reason of the evidence that she slid over the center line after having applied her brakes. The jury did not find that her action in crossing over to the wrong side of the road constituted negligence. Under the circumstances this violation of the law of the road was not negligence per se.

We assume that Special Issue No. 20 was intended as a submission of the question of unavoidable accident. No point is raised as to the form of the submission. There is no evidence that a mechanical failure of the truck was a cause of the collision. We are of the opinion that under the evidence the collision was caused by negligence of one or both of the parties. The answer made by the jury to this special issue is contrary to the great weight and preponderance of the evidence.

Other errors are assigned which will not be discussed for the reason that they are not likely to occur on a retrial of this case.

For the guidance of the parties we point out that while it is proper to instruct the jury concerning the duty to yield the right of way, that portion of the statute quoted in connection with Special Issue No. 3 is not a proper definition of the term “right of way”. See Bennett v. Stephenson, 237 N.C. 377, 75 S.E.2d 147; State v. Ray, Ohio App., 156 N.E.2d 837; State v. Arena, 46 Haw. 315, 379 P.2d 594; Cheramie v. Scott, Tex.Civ.App.1959, 324 S.W.2d 87.

The judgment of the trial court is reversed and the case is remanded for a new trial.


author: SHARPE, Justice.

text:
    J. H. BRUNSON and wife, June Brunson, Appellants, v. The STATE of Texas et al., Appellees.
    No. 238.
    Court of Civil Appeals of Texas. Corpus Christi.
    Nov. 30, 1966.
    Rehearing Denied Dec. 29, 1966.

      Mahoney, Shaffer & Hatch, Richard J. Hatch, Corpus Christi, for appellants.
    Woodrow Curtis, Asst. Atty. Gen., Austin, Fischer, Wood, Burney & Nesbitt, James R. Harris, Sorrell, Anderson & Porter, William R. Anderson, Jr., Corpus Christi, for appellees.
   OPINION

SHARPE, Justice.

This appeal is from a summary judgment rendered in favor of appellees against appellants.

This suit was originally filed in the district court by appellee, State of Texas against appellants J. H. Brunson and wife, and two other defendants (who apparently were not served with citation, did not make an appearance, and who are not material to disposition of the suit), as a result of a dispute concerning certain property, consisting of a trailer house, cabana and other items, following a condemnation suit between the same parties which was numbered 332 in the County Court of Nueces County, Texas. In this case the State alleged that it had acquired title to the trailer house and other items in the condemnation proceeding and that the defendants, Brun-sons, et al., had converted the same to their own use, resulting in damages of $3,227.00. Shortly after the instant suit was filed, the State recovered possession of the trailer house from the Brunsons under writ of possession issued out of the County Court, and the State’s damage claim was reduced to $327.00.

The Brunsons filed a cross-action for damages in the instant case against the State as well as against Harry W. Coon and T. O. Foster, Jr., its agents, as third party defendants. They sought damages against all of appellees for conversion or taking of the trailer house and also for alleged slander as .against the cross-defendant Harry W. Coon.

All parties filed motions for summary judgment. The motions of the State and the cross-defendants Foster and Coon were directed against the Brunsons’ cross-action. Brunsons’ motion was for partial summary judgment establishing liability against the State and the third party defendants, which if granted would have left only the issues of damages because of the alleged conversion or taking and for slander to be later determined by the fact finder. The trial court granted the motions for summary judgment filed by the State, Foster and Coon, and refused that of the Brunsons.

Appellants assert seven points of error. Five of them (3, 4, 5, 6 and 7) complain of the granting of the motions for summary judgment. Point 1 asserts that the trial court erred in denying the Brunsons’ motion for partial summary judgment, and point 2 alleges error in not granting Brun-sons’ motion to strike the affidavits and exhibits filed by the State, Foster and Coon.

The material facts involved in the condemnation proceeding will be briefly stated. On May 10, 1962 the State filed petition for condemnation with the County Judge for a right-of-way across Brunsons’ property, described as Lot 12, Ebony Acres, an addition to the City of Corpus Christi, Texas. The Special Commissioners appointed to assess damages held a hearing pursuant to notice on June ^7, 1962, and made an award on June 8, 1962 in the amount of $14,308.00. On June 14, 1962, Brunsons filed objections to the award, and the case then was for disposition by the County Court. On July 9, 1962 the State deposited the amount of the award in the registry of the County Court and Brunsons withdrew it on July 11, 1962. On July 16, 1962 the County Court rendered final judgment in Cause No. 332, granting the State an easement for right-of-way purposes over’Brunsons’ property and awarding them $14,308.00. On or about July 18, 1962 Brunsons removed the trailer house and other items from the location of the easement. On August 23, 1962, the Clerk of the County Court issued a writ of possession commanding the sheriff or constable to deliver possession to the State of the premises covered by the easement and also the house trailer and aluminum cabana. On September 12, 1962 Brunsons filed a cross-action against the State and third party petition against Foster and Coon. On September 13, 1962 the sheriff took possession of the house trailer and delivered it to Foster as agent of the State. Final judgment in the instant case was rendered on January 21, 1966.

The basic dispute between the parties relates to whether the State acquired title to the trailer and other items permanently located on the easement by virtue of the condemnation proceedings in the County Court. The State claims that it did so acquire title, and appellants contend that title remained in them. We will first consider that issue.

We have concluded that the summary judgment evidence does not raise any genuine issue of material fact as to whether the State acquired title to the house trailer and other items formerly located on the easement acquired by the State; that the trial court correctly held that the State was entitled to recover as a matter of law and properly granted the State’s motion for summary judgment.

The general rule applicable to condemnation for an easement upon which permanent improvements are located is that absent an agreement between the parties to remove the improvements, the condemnor “must either take the land with the permanent improvements thereon as it stands and pay for it accordingly, or reject it in toto.” State v. Miller, 92 S.W.2d 1073 (Tex.Civ.App., 1936, n. w. h., opinion per Alexander, J.). The rule is reiterated and the applicable measure of damages stated in Lower Nueces River Water Supply District v. Sellers, 323 S.W.2d 324, 330 (Tex.Civ.App., 1959, wr. ref., n. r. e.), wherein an easement was taken, as follows:

“The general rule, which is applicable in this case, has been stated in 29 C.J.S. Eminent Domain § 175, p. 1044, as follows :
‘Where land is condemned for public uses, the value of buildings or other improvements and fixtures on the land must be considered in determining the owner’s compensation, to the extent that they enhance the value of the land to which they are affixed, the appropriator being required either to take the land with the improvements he finds thereon or to reject it in toto.’
See State v. Carpenter, 126 Tex. 604, 89 S.W.2d 979; 18 Am.Jur. 891; Nichols on Eminent Domain, 3rd Ed. Vol. 4, p. 203.”

The record in this case shows that the house trailer and other items were located on the easement at the time the petition in condemnation was filed and when the Brunsons withdrew the amount of $14,-308.00 deposited by the State following the Commissioners’ award and when the County Court rendered its final judgment of condemnation. That judgment recites that the Brunsons, et al. “should be awarded the total sum of Fourteen Thousand, Three Hundred Eight and no/100 Dollars (14,-308.00) as total compensation for said easement and damages suffered by the Defendants by reason of the taking of said easement.”

In the hearing before the Commissioners, Brunsons took the position, and Mr. Brun-son affirmatively testified, that they wanted the State to take the said permanent improvements and to compensate the owners for same in connection with the taking of the easement. This did not add anything to the State’s obligation of adequate compensation but does show the Brunsons’ intention not to remove the permanent improvements, which was not changed until after the final judgment was rendered in the County Court.

The record herein shows that there was never any agreement between the State and the Brunsons for them to remove the permanent improvements from the location of the easement. Brunsons’ position here is not predicated on any such agreement, but instead is based solely upon the contention that they continued to be the fee owners of the land upon which the easement was granted to the State, and allegedly continued to own the permanent improvements situated thereon. Brunsons further say that although they contended before the Commissioners that they should be paid by the State for the permanent improvements located on the easement, nevertheless, they were entitled to change their position after they filed objections to the award and the case became one for judicial determination by the County Court.

It is well settled that a condemnee is required to recover all his damages upon the trial of the condemnation case and not later on. City of La Grange v. Pieratt, 142 Tex. 23, 175 S.W.2d 243 (1943); City of Corpus Christi v. Polasek, 404 S.W.2d 826 (Tex.Civ.App., 1966, n. w. h.). The cases also make it clear that unless the use of the easement condemned is limited in an express manner, the presumption remains that the condemnor can and will use the land and improvements to the fullest extent possible under the law City of Corpus Christi v. Polasek, supra; Perkins v. State, 150 S.W.2d 157 (Tex.Civ.App., 1941, wr. dism.); Texas Power and Light Company v. Cole, 158 Tex. 495, 313 S.W.2d 524 (1958); Rayburn, Texas Law of Condemnation, Sec. 228, p. 584.

When the State deposited the amount of the Commissioner’s award in the registry of the County Court, it had a right from that time forward to make the fullest possible use of the easement and the permanent improvements situated thereon. The only remaining question was the amount of the Brunsons’ compensation, which included the value of the easement and the permanent improvements to the extent that they enhanced the value of the land to which they were affixed. When the case came on for hearing in the County Court all parties were charged with notice that the State was obligated to pay the Brunsons compensation in accordance with that rule and that the award made by the final judgment would necessarily include all of the Brunsons’ damages.

If the Brunsons did not desire to be compensated for the improvements on the easement they should have made their changed position known prior to entry of judgment so that the State could have been given an opportunity to agree and be relieved of payment in connection with enhanced value because of the improvements. A change in position by the Brunsons concerning the improvements after the final judgment was entered, under these circumstances, was too late.

Under the undisputed facts shown by the summary judgment record herein, we conclude that absent an agreement authorizing removal of the improvements by the Brunsons the judgment of the County Court included compensation to the Brun-sons for the permanent improvements then situated on the easement, and that the State acquired title to all of same. Appellants’ points 3 and 4 relating to the granting of the State’s motion for summary judgment, are overruled.

We now pass to consideration of the action of the trial court in granting the motions for summary judgment filed by Coon and Foster. Under the facts and law hereinbefore set out, Coon and Foster were not liable to the Brunsons on the basis of conversion or unlawful taking of the trailer house and other items. As we have held, the State acquired title to the same and Coon and Foster, its agents, acted lawfully in securing or receiving possession of such items through the Sheriff under writ of possession issued by the County Court in the condemnation case. Their conduct in such respect did not give rise to any cause of action in favor of the Brunsons.

The remaining cause of action asserted by the Brunsons is against Coon for allegedly having published and circulated false and defamatory statements to the effect that the Brunsons had swindled and stolen the house trailer from the State of Texas, such statements allegedly having been made' to members of staff of the County Attorney’s office of Nueces County and to Texas Rangers. Brunsons did not controvert the motion for summary judgment filed by Coon. The record shows that in a deposition Coon was asked if he had made statements of the tenor alleged by the Brunsons, and on the advice of counsel refused to answer on the ground that such communications were privileged. The matter was not further pursued. There is no evidence of probative force showing that Coon made the statements attributed to him although there is some hearsay testimony to such effect. Even if there had been evidence that statements were made to the public officers mentioned, it appears that such communications were privileged. Hott v. Yarbrough, 112 Tex. 179, 245 S.W. 676 (1922); 48 A.L.R.2d 722; Reagan v. Guardian Life Ins. Co., 140 Tex. 105, 166 S.W.2d 909 (1942) affirming Tex.Civ.App., 155 S.W.2d 950; 36 Tex.Jur.2d, Libel and Slander, Sec. 70, p. 357.

The trial court properly granted the motions for summary judgment filed by Coon and Foster as well as that on behalf of the State of Texas. Appellants’ points 5, 6 and 7 are overruled.

It follows from what has been said in connection with the points discussed that appellants’ motion for partial summary judgment was properly overruled by the court. Appellants’ point 1 is overruled.

Appellants’ point 2, complaining of the trial court action in overruling their motion to strike appellees’ exhibits and affidavits, on the basis that the same constitute an attempt to collaterally attack the judgment in the County Court, is also overruled.

The judgment of the trial court is affirmed.


author: SELLERS, Justice.

text:
    CENTRAL SURETY & INSURANCE CORP. (Commercial Union Insurance Co.), Appellant, v. Jesse SMITH et al., Appellees.
    No. 255.
    Court of Civil Appeals of Texas. Tyler.
    Dec. 8, 1966.
    Rehearing Denied Jan. 5, 1967.

      J. W. Patten, Stafford, Williams & Weit-inger, James G. Sargent, Houston, for appellant.
    Kenneth J. Will and Bradley Collins, Gripp, Will & Collins, Houston, for appellee Jesse Smith.
    Donald Hallmark and J. M. Perry Archer, Law Offices of Donald R. Hallmark, Houston, for appellee Liberty Mut. Ins. Co.
   SELLERS, Justice.

This is a suit by Jesse Smith to recover compensation for personal injuries against Liberty Mutual Insurance Company and Central Surety & Insurance Corporation. The question presented on this appeal is which of the defendants is liable for Smith’s injuries.

The undisputed facts show that Wood Brothers Transfer, Inc. was the corporation for which Jesse Smith had been employed for a long time, his duties being that of a truck driver, driving a truck for Wood Brothers Transfer, Inc. in delivering merchandise generally for different merchants over the City of Houston. Liberty Mutual Insurance Company carried Workman’s Compensation Insurance on the employees of Wood Brothers Transfer Company. Wood Brothers Transfer Company, through its President or Vice-President, made a contract with William Volker and Company to furnish a truck and a driver to deliver its freight over a portion of the City of Houston. The appellant, Central Surety and Insurance Corporation, carried Workman’s Compensation Insurance on William Volker and Company, and it was while Jesse Smith was making deliveries of merchandise for Volker and Company that he was injured.

The case was tried to a jury and the jury found that Smith was an employee of Wood Brothers at the time he received his injuries. Liberty Mutual Insurance Company moved for judgment non obstante veredicto to disregard the above finding of the jury and to render judgment against the Central Surety and Insurance Corporation, the insurance carrier of Volker and Company. This motion was granted by the Court and judgment entered against Central Surety and Insurance Corporation, the insurance carrier of Volker and Company, from which judgment Central Surety has duly prosecuted this appeal.

We quote from the evidence given by Mr. Wood, as follows:

“Q All right, sir. Now — did you have some type of arrangement whereby you were to furnish William Volker & Co. a truck and a driver ?
“A That is correct.
“Q When did that arrangement first start ?
“A Late 1959 or early 1960 the best of my recollection.
“Q All right, sir. What was the arrangement with William Volker & Co.?
“A That Wood Bros, was to furnish a truck and driver to make their local deliveries in the City of Houston.
“Q To make their local deliveries?
“A In the City of Houston — yes sir.
“Q Now, did you furnish a truck for this — was that your truck?
“A Yes, sir.
“Q The truck was owned by Wood Bros.
“A Yes, sir.
“Q Was the driver paid by you?
“A That’s correct.
“Q His salary was paid in full by you ?
“A Yes, sir.
“Q Was it necessary for that driver— where did he pick up the truck in the morning?
“A At Wood Bros, terminal.
“Q All right, sir. Did he have any instructions with regard to reporting back in the afternoon?
“A He was to report back in the afternoon after termination of the day.
“Q Did you give him any further instructions then what he was to do or how he was to do it when he reported to William Volker?
“A He was to report to our terminal in the morning to the dispatcher — make his presence known and pick up the truck — go to William Volker and they would in turn give him the bills of lading of the merchandise they desired to have delivered that particular day.
“They would check the merchandise to the rear of the truck and he in turn would check it against the merchandise he had to deliver — the count and condition of the merchandise and load it on the truck.
“Q All right, sir. Now was Jesse Smith working for Wood Bros, in 1964?
“A Yes, he was.
“Q As a matter of fact, when did Jesse Smith first go to work for you?
“A May, 1958.
“Q All right, sir. Did he — what did he do when he first went to work for you?
“A Truck driver, general freight hauling.
“Q What do you mean by general freight hauler ?
“A Well, we make deliveries for various concerns and we consolidate them with general freight merchandising —it is loaded into the truck and they make their deliveries around the city here to various consignees.
“Q. After he had been there for some time, did you assign him or how did he get this run with William Volker?
“A Well, it was necessary in the best of my recollection — approximately March of ’63 to replace a driver we had at Volker’s so we put Smith on there since he had worked there various times as an extra and was familiar with the operation.
“Q Could William Volker fire him if they wanted to ?
“A They could not.
MR. HALLMARK: Objection to what somebody not a party to the lawsuit could do.
THE COURT: That’s overruled.
“Q (By Mr. Stafford) Did you retain that prerogative yourself to hire and fire your drivers ?
“A We did.
“Q Did you pay Jesse Smith’s salary?
“A We did.
“Q Did you withhold Social Security?
“A Yes.”

Under the contract between Wood Brothers Transfer Company and William Volker and Company, as related by the above evidence of Mr. Wood which is uncontra-dicted, it is our opinion that Volker’s control of Smith was nothing more than was contemplated by the parties when the contract was made, and that was to furnish the driver of the truck (Smith) with the merchandise to be delivered, with the necessary bills of lading so Smith could check the merchandise on and off the truck. This kind of control by Volker has been held in a recent case not to create a new relationship of employment since in following the directions of Volker, he (Smith) was doing so merely in obedience to the direction of, and in the performance of, his duty to Wood Transfer Company, Wise v. Texas Employers Insurance Association, Tex.Civ.App., 402 S.W.2d 228, from which we quote:

“Serious consideration must be given to the consequences of a holding that the employees of a trucking concern delivering wares and merchandise to another become loaned employees of that person merely because the person receiving the goods gives directions to the employees unloading the truck to facilitate his checking the quality and quantity of the goods delivered. * * * ((⅜ * *

“In Mercury Life and Health Company v. De Leon, Tex.Civ.App., 1958, 314 S.W.2d 402, writ ref., n. r. e., the court said:

“ ‘An employee in the general employment of one employer may be temporarily loaned to another so as to become a special employee of the second employer. It is held, however, that even though an employee may be subject to the direction of a temporary master no new relationship of employment is created, if, in following the directions of the temporary master, he is doing so merely in obedience to the direction of and in the performance of his duty to his employer.’

“Comment b of Section 227 of the Restatement of Agency 2d reads:

“ ‘In the absence of evidence to the contrary, there is an inference that the actor remains in his general employment so long as, by the service rendered another, he is performing the business entrusted to him by the general employer. There is no inference that because the general employer has permitted the division of control, he has surrendered it.’ ”

We are aware of the evidence of Smith that when he finished a delivery, he was to call Volker and Company and make another delivery if they desired. If he finished his deliveries at three or four o’clock in the afternoon, and Volker and Company had no other deliveries to make, he would report back to Volker and Company and would help unload box cars. He was instructed by Wood under such circumstances to report back to Volker and Company and do whatever Volker desired for him to do.

The fact remains that he was not injured while unloading box cars, and that question is not before this Court for decision. Under the foregoing authority, this Court is of the opinion that the trial court erred in sustaining the appellee’s motion for judgment non obstante veredicto, and judgment is here rendered that Smith recover his damages from appellee, Liberty Mutual Insurance Company, insurer of Wood Brothers Transfer, Inc.