author: PHILLIPS, Justice.

text:
    The STATE of Texas, Appellant, v. V. C. BILBO, Appellee.
    No. 11167.
    Court of Civil Appeals of Texas. Austin.
    April 1, 1964.
    Rehearing Denied May 27, 1964.

      Waggoner Carr, Atty. Gen., Norman Suarez, Asst. Atty. Gen., Austin, for appellant.
    Lanham & Hatchell, Austin, for appellee.
   PHILLIPS, Justice.

This case involves the construction of a limited common carrier motor carrier certificate No. 3047 issued by the Railroad Commission of Texas to V. C. Bilbo in 1939.

Appellant, The State of Texas, through its Attorney General and at the request of the License and Weight Division of the Texas Department of Public Safety, brought this suit against Bilbo under the provisions of the Uniform Declaratory Judgments Acts, Art. 2524 — 1, V.A.C.S., alleging the existence of a controversy between Bilbo and the License and Weight Division of the Department of Public Safety, the latter Department having been designated by law to enforce the Motor Carrier Laws of this State.

A number of amici curiae were allowed to tender briefs on both sides of the question before us.

While Bilbo holds, in addition to certificate No. 3047, certificates Nos. 3039 and 5976, the terms of certificate No. 3047 are in controversy. The controversial part of the authority given Bilbo in the last named certificate is as follows:

TO TRANSPORT: HEAVY BUILDING MATERIALS, MACHINERY and SUPPLIES between all points in Texas.

We quote from the State’s (plaintiff) petition :

“In this connection Plaintiff alleges that Defendant has been engaged for a substantial period of time, and is presently engaged in the transportation of commodities which are not those set out in this authorization from the Railroad Commission of Texas as described by the term heavy building materials, machinery and supplies between all points in Texas, namely: cartons of paint, cartons of color cards, cartons of medal spouts NOIBU, rolls of prepared roofing, rolls of prepared roofing on 2,000 lb. pallets, rolls of building paper, rolls of building paper on 2,000 lb. pallets, bundle asphalt shingle, bundles of asphalt shingles on 2,000 lb. pallets, rolls of asphalt siding, rolls of asphalt siding on 2,000 lb. pallets, boxes asbestos siding fixtures, bundle asbestos shingles, bundle asbestos shingles on 2,000 lb. pallets, 55 lb. drums of asphalt, cases of liquid asphalt in cans, packages of advertising matter, rolls of cotton cloth waterproof, rolls of cotton cloth waterproof on 2,000 lb. pallets, 20 lb. bags of fiberglass. Plaintiff contends that the transportation of the enumerated commodities are not ‘heavy building' materials, machinery and supplies’, and, Defendant by its certificate is not authorized to transport such commodities, and therefore Defendant is violating the terms and provisions of its certificate, and furthermore, is guilty of violating the Motor Carrier Law in that the Defendant is transporting such commodities without any authority having been issued by the Railroad Commission of Texas authorizing such transportation, and is therefore, liable for the penalties provided in Article 1690b of the Penal Code of Texas.”

Bilbo, the defendant below, answered with a general denial, then brought a cross action asking the court to enjoin the State from interfering with defendant’s hauling the items enumerated in the State’s petition.

Defendant contends that since 1940 he has been transporting heavy building materials, machinery and supplies between points in Texas under certificate No. 3047. That in the transportation of commodities under said certificate defendant and his shippers must exercise judgment as to what commodities may be transported thereunder. That such judgment must be exercised in consonance with accepted business practices. That from 1940 until the present time defendant has transported thousands of different types of building materials, machinery and supplies, which he considers to be authorized by such certificate, and which his consigners have tendered him as coming within the authority he possesses. That since 1940 he has notoriously carried the items listed above in the State’s petition.

Defendant maintains further that the word “heavy” as used in the certificate modifies only building materials, and that he may transport any type of machinery and supplies, regardless of whether or not they are “heavy.”

Defendant then points out that on numerous occasions he is tendered, for instance, a truckload of asbestos shingles weighing as much as 20,000 lbs. and along with such tender, he will be tendered several boxes of fixtures, or several cans of asphalt which are to be used to hold the shingles in place on a building. That while these incidental accessories are not of themselves “heavy building material, machinery or supplies,” they are an integral part of the main shipment and must be considered as such. That it would be an economical impossibility and an impractical operation for a shipper to tender defendant a load of shingles and then send the accessories which are necessary for use in installing such shingles by another carrier, and, therefore, they become a necessary part of the main shipment.

Defendant contends further that the certificate must be construed in the light of changing methods and manners of shipping building materials, machinery and’ supplies. That because of technological advances and innovations in transportation of building materials, and because of the increasd in costs of operation and in labor costs, it has become economically unsound for shippers to tender to defendant individual bundles of, for instance asbestos shingles. Because of increase in labor costs it is economically impossible for the shippers of such a commodity to load or unload such by individual bundles; consequently they are tendered defendant on pallets loaded by mechanical means, such as forklike trucks. This manner of loading and unloading building materials, machinery and supplies has become universally accepted by the companies engaged in the manufacture of such commodities and such method has become an economic necessity.

Defendant also points out that he has invested thousands of dollars in equipment, which is of a specialized nature and which is suitable for the transportation of such commodities.

The trial was to the court after which the court entered judgment that plaintiff take nothing by its suit.

The court found that in granting defendant his authority the Railroad Commission had the intention of furnishing the building industry “a flexible transportation service more suitable to their peculiar needs than any service available to such industry.”

The court found that there was no controversy between the parties with respect to the authority to transport “machinery” and no claim was made by the plaintiff that defendant had violated the terms of his certificate in transporting machinery.

The court found that many single pieces of various building materials are of such size or weight as to become so heavy that mechanical devices are required to lift in loading or unloading onto and from the 'transporting vehicle.

The court found that manufacturers and shippers of certain other building materials .and supplies, single pieces of which might be manually lifted in loading or unloading, tender such commodities to the carriers as a single unit of such weight as to require mechanical devices in loading or unloading; that such process of “palletizing” or “unitizing” single pieces of the materials or supplies used in building industry is widely used by the manufacturers and shippers for the -protection of the material from, damage in transit and for tíme and -labor economies. That such units are of such weight as to be considered heavy building materials and supplies by- the trade or industry requiring mechanical devices for handling in loading and unloading;- that the defendant’s-certificate in question authorizes him to transport same.

The court further - found that -incidental supplies, or accessories to heavy -building materials tendered to the carrier are integral parts of such shipment of heavy building materials even though such incidental supplies or accessories, standing alone, could 'riot be' considered as heavy building materiáls.' That defendant’s’ authority allowed him to transport such incidental supplies or accessories.

The court held that defendant’s certificate No. 3047 authorizes him, in addition to the transportation of heavy building machinery, to transport building materials and supplies, together with incidental supplies and accessories moving in conjunction with and as an integral part of a shipment of building materials, or supplies, which, because of the size or weight of the unit in which such materials and supplies are tendered to the carrier, require the use of mechanical equipment or devices, such as forklifts, for loading or unloading onto or off of the transporting vehicle.

The court denied the defendant an injunction against the State presuming that the State would abide by the judicial determination made by the court.

We affirm parts of the judgment of the Trial Court and reverse and render others.

There seems' to be no controversy over defendant’s hauling single pieces of heavy-building equipmerit that requires a mechanical device for loading or unloading. The crux of 'the controversy seems to center arourid a device that the manufacturers of building materials have used for the past few years; that is, a “palletizing” or “unitizing” ' of certain items which individually could be loaded manually blit when aggregated or grouped on pallets or boards and strapped together by steel bands become so heavy that’ mechanical devices such as forklift trucks' are necessary for loading and unloading the heavy pallets. A forklift is a self propelled mechanical device that is built to lift and move heavy loads into a position where they can be loaded. Such devices are also used for unloading.

In Alamo Express, Inc. v. Brown Express; Tex.Civ.App., 234 S.W.2d 62, writ refused, n. r. e. the court-held that in arriving at the construction of a certificate, the application for such certificate as well as the order of the Commission must be taken into consideration. This Court so held in Railroad Commission of Texas v. Trinity Houston Truck Line, Tex.Civ.App., 86 S.W.2d 817.

Part of the application of Bilbo for his original authority is as follows:

“ * * * Applicant proposes to haul only heavy building materials such as may not ordinarily be transported by common carrier truck lines because special equipment is required.
“ * * * the applicant proposes here to haul only heavy materials and supplies for building and construction contractors such as may not ordinarily be handled by the regular general commodity common carrier because of the inadequacy and insufficiency of the regular common carrier equipment, and materials and supplies as would ordinarily require special equipment. * *
“The use of any one highway would be negligible because your applicant would only serve the various contractors of the state to points of construction

The pertinent parts of the order of the Railroad Commission in Docket No. 2275, dated September 27, 1939, is as follows:

“APPLICATION OF V. C. BILBO FOR A CERTIFICATE TO OPERATE A COMMON CARRIER SERVICE LIMITED TO TRANSPORTING HEAVY BUILDING MATERIALS AND SUPPLIES, ONLY, WHICH REQUIRE SPECIAL EQUIPMENT AND CAN NOT ORDINARILY BE TRANSPORTED BY COMMON CARRIER TRUCK LINES, FOR BOTH HIGHWAY AND BUILDING CONSTRUCTION CONTRACTORS OVER ANY HIGHWAY WITHIN THE STATE OF TEXAS TO POINTS OF USE OR CONSUMPTION ON IRREGULAR SCHEDULES.
iji jfc ‡ j|í
“THE COMMISSION FINDS from the evidence that the applicant proposes to render a limited common carrier service only, limiting his transportation to the movement of heavy machinery and building materials for construction contractors, such machinery and materials being of such type and nature which may not ordinarily be transported by common carrier truck lines and which by their size and character ordinarily require special equipment. * * *
* * * * * *
“THE COMMISSION FURTHER FINDS THAT building contractors on large construction work, including highways and large building construction, use very heavy machinery and building materials much of which can not be dismantled; that in practically every case where machinery and materials move to the place of construction that some portion of the movement of the said machinery must be accomplished by the use of motor vehicle; that with existing transportation facilities such heavy machinery as contemplated to be used in construction work is moved to the place of construction by what is termed as ‘walking it’ or moving it under its own power which is slow and inex-peditious. This involves movement over highways whereby such machinery is moved on rolling chains with cleats which are very damaging to the highways.
‡ ‡ ‡ ‡ ‡ ‡
“THE COMMISSION FURTHER FINDS that a large percentage of such movement would require special permit to be issued by the State Highway Department under other laws * * * ”

Following such findings the Commission ordered:

“ORDERED BY THE RAILROAD COMMISSION OF TEXAS that the application of V. C. Bilbo for a certificate authorizing the operation of a limited common carrier motor carrier service, limited to the transportation of heavy building materials, machinery and supplies, and using in said operation nine trucks, be and the same is hereby granted.”

Limited Common Carrier Motor Carrier’s Permanent Certificate of Convenience and Necessity No. 3047, dated January 2, 1940, contained the following language.

“TO TRANSPORT HEAVY BUILDING MATERIALS, MACHINERY AND SUPPLIES, using in said operation NINE TRUCKS.”

Said Limited Common Carrier Certificate No. 3047 was reissued April 13, 1961, pursuant to application and order, to reflect certain authority to transport agricultural products in interstate commerce. As reissued, said certificate, as here pertinent, contains the following language:

“TO TRANSPORT: HEAVY BUILDING MATERIALS, MACHINERY AND SUPPLIES between all points in Texas.”

It is a matter of common knowledge that the motor transportation industry as a whole is highly competitive in nature. This fact was recognized by the Legislature of Texas when it enacted the Motor Carrier Act in 1929. The rights to use certain routes and the right to carry certain commodities to various points in this State, as well as in interstate commerce, along these routes are highly regulated and policed by the various agencies responsible therefor in deference, to the public weal.

When Bilbo was granted the certificate in question in 1940, the above mentioned regulation of common carriers by the Railroad Commission was well defined and the commodities that these common carriers were authorized to carry were well defined. To allow the construction given Bilbo’s certificate by the Trial Court with respect to the palletized items would, in effect, with the exception hereinafter pointed out, invade the field of commodities generally conceded to the common carriers. Such an interpretation not only puts the above mentioned language of the application and order to strain but ignores the traditional commodities that the various classes of carriers are authorized to transport. The greater number of items that the State sought to restrain Bilbo from transporting were commodities transported by common carriers when he first sought the certificate as well as commodities that are presently transported by common carriers under lawful authority. The placing of commodities on pallets and strapping them together as a unit for shipping is relatively a new development in the transportation industry. Such method was not in general use when Bilbo’s certificate was first issued in 1940. Such method of packing and shipping is widely used today. If the extent of Bilbo’s authority is to be determined by the weight of the building commodity aggrandized on pallets that require a special device for loading and not by looking to the commodity itself, an interpretation would be given to the authority that was not intended by the Commission when the authority was issued and was certainly not so interpreted by the common carriers, there having been no protest to the original application.

It is generally conceded that the same rules apply to the construction of orders of an administrative agency as those applied to statutes. Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424. In Railroad Commission of Texas v. Texas & New Orleans R. Co., Tex.Civ.App., 42 S.W.2d 1091, writ refused, this Court in a case requiring the construction of a statute used the following language:

“Although the language of a statute is general it may be limited in its operation to cases falling within the mischief intended to be remedied. It is to be presumed that the legislature does not intend to make any alteration in the law beyond what it explicitly declares, either in express terms or by unmistakable implication; or, in other words beyond the immediate scope and object of the statute. In all general matters beyond, the law remains undisturbed. It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give such effect to general words simply because, in their widest and perhaps natural sense, they have that meaning, would be to give them a meaning in which they were not really used. It is therefore an established rule of construction that general words and phrases, however wide and comprehensive in their literal sense, must be construed as strictly limited to the immediate objects of the act, and as not altering the general principles of the law.”

The immediate object of Bilbo’s certificate was to give him authority to transport only heavy building material and supplies “such as may not ordinarily be transported by common carrier truck lines because special equipment is required.” In the application we find this language “* * * applicant proposes here to haul only heavy materials and supplies for building and construction contractors such as may not ordinarily be handled by the regular general commodity common carrier because of the inadequacy and insufficiency of the regular common carrier equipment, and materials and supplies as would ordinarily require special equipment * * *” This wording was incorporated in the caption as well as the body of the Commissions’ order. The general tenor of “the mischief to be remedied” was not to allow Bilbo, in effect, a “flexible” common carrier’s permit where the building trade was involved but to allow him the authority to haul heavy building material, heavy machinery and heavy supplies over irregular routes and, by so doing, filling a gap in the services rendered by the common carriers. For a construction similar to that we have given the word “heavy” as a modifier of each of the words “building materials, machinery and supplies.” See Pierce Auto Freight Lines, Inc. v. R. N. B. Converse d/b/a Converse Trucking Service, 54 M.C.C. 447 (Div. 5, 1952); Converse v. United States, D.C., 109 F.Supp. 807.

In W. J. Dillner Transfer Company— Investigation of Operations, 79 M.C.C. 335, the Interstate Commerce Commission considered whether the bundling, aggregating or palletizing of iron and steel articles and fire bricks so changed the commodities as to render them subject to transportation by a carrier authorized to transport “commodities which because of their weight and size require special equipment” when such aggregated commodities were loaded on flat-bed vehicles by use of lifting devices. The evidence showed that Dillner was transporting bundles of iron and steel articles which, in the aggregate, weighed between 2,000 and 15,000 pounds, and firebrick on wooden pallets, which, following palleti-zation, weighed between 2,800 and 3,500 pounds. The I. C. C. found that the bundles, unitized and palletized units did not come within Dillner’s authority. The I. C. C. stated:

“In bundling, aggregating, or palletiz-ing, it should be the general rule of construction (1) that the individual ‘commodity itself’ is the controlling consideration as respect’s a carrier’s authority ; (2) that the limited exception which the Black case, 64 M.C.C. 443, represents, where commodities are bundled for protection or as otherwise required by their ‘inherent nature’ must be maintained within its strictest limits; (3) that the minimum bundle which is required by the ‘inherent nature’ of the commodity is the size or type of bundle which must be considered in any determination whether necessity exists for the use of special equipment ; and (4) that in order reasonably to maintain these limits it shall be presumed, in the absence of a sound basis for concluding to the contrary, that commodities tendered to carrier, in bundles or aggregations, are within the general rule and not within the limited exception thereto.” Affirmed W. J. Dillner Transfer Co. v. I. C. C., D.C., 193 F.Supp. 823; affirmed per curiam 368 U.S. 6, 82 S.Ct. 16, 7 L.Ed.2d 16 (1961).

We hold that in determining the authority of a carrier, the commodities themselves are looked to and not the weight of the pallets. There is nothing to prevent the common carrier from using mechanical lifts or flat-bed trucks, consequently nothing to prevent them from carrying traditional commodities palletized for convenience or economy and for the protection of the commodity itself.

We also hold that while Bilbo’s authority contemplates special equipment for loading and unloading, special lifting equipment such as forklifts and similar lifting devices satisfy this requirement so long as the commodity itself comes within the purview of his authority.

In light of the recent development of palletizing commodities into loads that cannot be handled manually and in view of the fact the common carriers are lawfully handling such loads even though flat-bed trucks and lifting equipment are necessary, the exception allowed the heavy hauler under his limited common carrier certificate by the Interstate Commerce Commission in the Black case cited above is a reasonable one and a logical one. We quote from the opinion:

“With respect to the bundles of sheet metal here involved, we think bundling was required by the inherent nature of the commodity. Single sheets are unstable, subject to bending or other damage, and having in mind their size, awkward or impossible to handle without bundling. In the case of sheet tinplate, at least, bundling would also seem to be required as protection against damage to the coated surface of the sheets, and the same is true, to a lesser extent, with respect to the rather soft aluminum sheets. Examination of the facts concerning this method of handling convinces us that the bundling is done, not merely for economy and efficiency, but because it is required by the inherent nature of the commodity. When bundled, the commodities are too heavy to handle without the use of special equipment, and we therefore conclude that these four shipments were within respondent’s authority to transport ‘articles requiring special equipment.’ ”

We hold that where palletizing is required for building material or supplies by the inherent nature of the commodity such as is required for protection against damage, that when special equipment is needed for the loading and unloading of such commodity, it is within the purview of Bilbo’s certificate. We hold that the abovementioned authority is not an extension of the original authority but falls within the original authority granted and is-in line with this Court’s holding in York Transport Company v. Railroad Commission, Tex.Civ.App., 315 S.W.2d 313, writ refused, n. r. c.

In the York Transport Co. case the court held that certain derivatives of “petroleum products,” though not in existence at the time the certificate authorizing transportation of “petroleum products” was granted, came under that authority. Though pal-letizing was not contemplated when Bilbo’s certificate was issued, commodities pallet-ized-because of their inherent nature and not merely for convenience or economy, would more naturally fall within that group transported by the heavy hauler than by the common carrier. Bilbo has cited the York Transport Company case for authority that a certificate can “grow.” We do not so construe it.

Appellee plead in his cross action that “* * * employees and representatives of the cross-defendant, Department of Public Safety of the State of Texas, are attempting herein to substitute their judgment for that of the shippers and receivers of freight and for the judgment of the cross-plaintiff herein on what type of commodities may be transported under such certificate * * *” In his judgment the Trial Court found that when the "trade or industry” considers traffic it tenders to be “heavy building materials and supplies,” then such consideration renders such traffic subject to transportation by Bilbo. We must overrule this contention in the light of our decision in State v. Refrigerated Transport, Inc., Tex.Civ.App., 348 S.W.2d 241, error refused, n. r. e. In that case we held that to apply a test of whether or not a shipper requires the service not otherwise authorized is to add to the language of and enlarge the certificate, and would permit the certificate holder to haul almost any shipment tendered.

We hold that Bilbo was lacking in authority to transport any of the items mentioned in the State’s petition with the exception of rolls of prepared roofing on 2000 lb. pallets, rolls of building paper on 2000 lb. pallets, bundles of asphalt shingles on 2000 lb. pallets, rolls of asphalt siding on 2000 lb. pallets, such being commodities that require palletizing for protection by their inherent nature. We reverse and render the judgment of the Trial Court wherein it conflicts with this holding.

We affirm the Trial Court’s holding that incidental supplies or accessories to heavy building materials tendered to the carrier as integral parts of such shipments of heavy building material even though such incidental supplies or accessories, standing alone, could not be considered as heavy building material. This is in line with the holdings of the Interstate Commerce Commission. See P.'Z. Zimmerman Company-Interpretation, 14 F.C.C. paragraph 34856; East Texas Motor Freight Lines-Extension, 10 F.C.C,, Par. 33,112. Under our holding here, possibly the boxes of asbestos siding fixtures mentioned in the State’s petition were legal cargo.

We affirm the court’s finding that Bilbo is authorized to carry single pieces of various building materials of such size or weight that mechanical devices are required in loading or unloading them to or from the transporting vehicle.

We affirm part of the judgment of the Trial Court as indicated and reverse and render the parts indicated.

Affirmed in Part and in Part Reversed and Rendered.

      . Art. 911a et seq. V.A.C.S.

      . In support of the Trial Court’s judgment: The Ruberoid Company, Best-well Gypsum Co., Lumberman’s Association of Texas. In support of the position taken by the State: Brown Express, Ine., Central Freight Lines, Inc.; Merchant’s Fast Motor Lines, Inc., Red Ball Motor Freight, Inc.; Texas-Arizona Motor Freight, Inc. and Transportation League, Ine.


source: Caselaw Access Project

author: McDONALD, Chief Justice.

license: Public Domain

text:
    H. M. THOMPSON et al., Appellants, v. L. B. NEWMAN et al., Appellees.
    No. 4227.
    Court of Civil Appeals of Texas. Waco.
    May 7, 1964.

      Hugh L. Umphres, Jr., Amarillo, for appellants.
    C. G. Clayton, Amarillo, for appellees.
   McDONALD, Chief Justice.

This is an appeal from a judgment discharging the jury, and decreeing that plaintiffs take nothing.

Plaintiffs’ suit was to establish a constructive and resulting trust upon the working interest of an oil and gas lease executed to defendants.

Plaintiffs Thompson, D. A. Griffith and C. A. Griffith, filed this suit against Consolidated Gas and Equipment Company, and L. B. Newman its president and alter ego. Plaintiffs alleged that defendant Newman (acting for himself and Consolidated) advised plaintiff D. A. Griffith that he was interested in acquiring leases on lands near known oil and gas production; that Griffith located unleased lands in Carson County, Texas, and advised Newman. Newman agreed with Griffith that if the leases were passed by his geologist, the working interest would be acquired by defendants, subject to a 14.6 of % override interest in Griffith. After such agreement and in reliance thereon, Griffith disclosed to Newman the location of the land; Newman wanted Griffith to go and lease the lands immediately; that when Griffith could not do so Newman suggested that plaintiff Thompson was availible to secure the leases; Griffith agreed that he would pay Thompson for securing the leases (and assigned him a Ys interest in his Ye overriding royalty for same; and also assigned a Yz interest in the Ye overriding royalty to his father, plaintiff C. A. Griffith).

It was suggested that some of the leases would require payment of a bonus, and Newman said that this should be Griffith’s burden; Griffith agreed, but said he had no cash and Newman agreed to advance the bonus money, and hold it out of Griffith’s overriding royalty payments. Thereafter, Thompson secured the leases which were taken in Consolidated Gas Company’s name. Plaintiffs allege that D. A. Griffith and defendants stood in a position of trust and confidence toward each other, by virtue of which facts when Consolidated took the legal title to the leases there arose by operation of law a resulting and constructive trust in favor of plaintiffs. Defendants drilled and took large sums of oil and gas from the lease but refuse to account to plaintiffs for their Vie override interest (less bonus advance indebtedness). Plaintiffs prayed for judgment that defendants be decreed to hold the lease in trust as to plaintiffs’ Ve override and for accounting.

Defendants answered, among other things, that plaintiffs’ suit was to recover a commission as real estate brokers, and that they had no real estate license; that the alleged trust, if a trust, was an express trust for an interest in real estate, and unenforceable unless in writing; and that plaintiffs’ cause of action is for an interest in real estate upon a parol agreement and is in contravention of the Statute of Frauds.

Trial was to a jury. The evidence reflected (among other things) that plaintiff D. A. Griffith's father, C. A. Griffith, had dealt in the past with defendants on oil and gas leases; that plaintiff D. A. Griffith located 2 or 3 sections of unleased land near production; that the Griffiths went to see defendant Newman. Newman agreed to give D. A. Griffith Vie override for information as to the location of the property; that Newman wanted Griffith to go and lease the land immediately, and when Griffith could not do so, Newman suggested Thompson could do the job, but that Griffith would have to pay him for doing so out of his Vie override. Griffith agreed to this and assigned Thompson of his Vie override. Thompson leased the lands, taking the leases in the name of Consolidated. Consolidated drilled, brought in production, but refused to account to plaintiffs, or to assign them the Vie overriding interest. There is evidence that the leases were to be taken by D. A. Griffith in his name and then be transferred to defendants. At the close of the evidence the Trial Court discharged the jury and rendered judgment that plaintiffs take nothing.

Plaintiffs appeal, contending that the uncontroverted evidence shows that they are entitled to judgment establishing a constructive and resulting trust on the Vie of % override royalty in production from the leases taken in defendants’ name. Plaintiffs further contend that in any event tne evidence raised a jury issue with respect to facts which a jury could have found in their favor which would entitle plaintiffs to the constructive and resulting trust on the leases involved.

Defendants contend the trial court’s judgment correct and that plaintiffs cannot recover as a matter of law, because plaintiffs did not have a real estate broker’s license; that the trust involved is an express trust upon an oral contract; and that plaintiffs’ cause of action is to recover an interest in real estate under an oral contract, in contravention of the Statute of Frauds.

In essence the facts show that defendants promised plaintiff D. A. Griffith that if he would reveal the location of unleased mineral land, which defendants found desirable to drill, then Griffith should have a Vie overriding royalty. In reliance on such promise, Griffith revealed the location of the acreage, which defendants leased and drilled; hut refused to convey to Griffith and his assigns, the promised overriding royalty.

It is our view that under the facts, Griffith did not act as a broker or real estate dealer, hence required no real estate broker’s license. A more difficult question is presented as to whether plaintiffs’ cause of action contravenes the Statute of Frauds. If plaintiffs’ pleading and proof establish a constructive trust, or raise a jury issue with respect to facts, which a jury could find in their favor, which would entitle plaintiffs to a constructive trust on the lease involved, plaintiffs’ cause does not contravene the Statute of Frauds (or the Texas-Trust Act).

We observe that when an appellate court comes to consider the propriety of the trial court’s having given an instructed verdict (and this is the situation here), such court must view the evidence in the light most favorable to the party against whom the verdict was instructed. Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256; White v. White, 141 Tex. 328, 172 S.W.2d 295.

Broadly speaking, a constructive trust may arise wherever- influence has been acquired and is abused, or confidence has been reposed and is betrayed. 89 C.J.S. Trusts § 151, p. 1051. We think Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256; Omohundro v. Matthews, 161 Tex. 367, 341 S.W.2d 401; and Gaines v. Hamman, Sup.Ct., 358 S.W.2d 557, determinative of the instant case.

Such cases hold, among other things, that a constructive trust is imposed by law because the person holding the title to property would profit by a wrong, or would be unjustly enriched if he were permitted to keep the property. A constructive trust arises where a conveyance is induced on the agreement of a fiduciary or confidant to hold in trust for a reconveyance or other purpose, where the fiduciary or confidential relationship is one upon which the grantor can and does rely, and where the agreement is breached, since the breach of the agreement is an abuse of the confidence. The tendency of the courts is to construe the term “confidence” or “confidential relationship” liberally in favor of the confider and against the confidant, for the purpose of raising a constructive trust on a violation or betrayal thereof.

Where one person orally undertakes to purchase land -on behalf of another, it may be argued that the • other cannot enforce a constructive trust because the undertaking is oral and conti’avenes the Statute of Frauds. The' answer to this objection is that the other is not enforcing an oral contract, but is enforcing a constructive trust based upon the violation of a fiduciary duty.

Moreover, the abuse of confidence within the rule may be 'of an informal relationship where one person trusts in' and relies upon- another. And the definition of the term “fiduciary” is approved in the Gaines case, supra, as “The term ‘fiduciary’ is derived' from the civil law. It is impossible to give a definition to'the term that is comprehensive enough 'to cover all cases. Generally speaking, it applies to any person who occupies a position of peculiar confidence towards another. It refers to integrity and fidelity. It contemplates fair dealing and good faith, rather, than legal obligation, as the basis of the transaction. The term includes those informal relations which exist whenever one party trusts and relies upon another, as well as. technical fiduciary relations.”

Under the cited cases, we think the record raises an issue for the jury on the question of the existence of relation of trust and confidence; and that the Trial Court improperly took the case • from the jury and rendered judgment.

The cause is reversed and remanded.


author: BELL, Chief Justice.

text:
    Samuel L. BRATEMAN et al., Appellants, v. UPPER CHANNEL SITE COMPANY, Appellee.
    No. 14004.
    Court of Civil Appeals of Texas. Houston.
    March 19, 1964.
    Rehearing Denied April 23, 1964.
    Second Rehearing Denied May 28, 1964.

      Joel W. Cook, Daniel Schlanger, Houston, for appellants.
    Liddell, Austin, Dawson & Sapp, W. Robert Brown, Houston, for appellee.
   BELL, Chief Justice.

Appellee sued appellants in trespass-to-try title to recover title and possession of 1.1 feet by 50 feet of Lot No. 9, Block 337, Southside of Buffalo Bayou, in the City of Houston. Appellants filed a cross-action contending the strip involved was a part of Lot No. 8 of said Block. The dispute involves the true southern boundary of Lot No. 9 which would be the northern boundary of Lot No. 8. The jury found the south boundary of Lot 9 to be located 102.7 feet south of the south line of Bell Avenue, as contended for by appellee and the court rendered judgment on the verdict in favor of appellee.

Appellants contend there is no evidence to support the jury’s finding; that appellee is estopped from asserting the south line of Lot 9 is more than 100 feet south of the south line of Bell Avenue; and, in the alternative, the answer is contrary to the overwhelming weight and preponderance of the evidence.

Lots Nos. 6, 7, 8, 9 and 10 of Block 337 have as their western boundary the east line of Louisiana Street. Lot No. 10 is located at the northwest corner of the block at the intersection of Bell Avenue and Louisiana Street. Lot No. 6 is located at the southwest corner of the block at the intersection of Leeland Avenue and Louisiana Street. The original boundary markers for the lots in this block and for the Obedience Smith Survey cannot be located, as is true generally with regard to property on the south side of Buffalo Bayou. There seems to be no recorded plat showing a division of the block into lots or showing what the dimensions of the block or the adjoining streets actually were. It seems that in about 1913 a Mr. Sands was City Engineer and he set up a system of reference monuments at certain street intersections and assumed to assign a width of 80 feet to the streets and 250 feet on each side to each block. Surveyors in Houston in making surveys of lots and blocks on the south side of Buffalo Bayou tie in to these monuments because all original boundary markers seem to be missing.

The stipulated common source of title is A. Bering. The two lots here involved came to be owned by Theodore Bering, Jr. Prior to the conveyance from Theodore Bering, Sr. to his daughter, Jennie C. Bering, on June 6, 1905, there is no conveyance by lots and block or by recitation of dimensions. In this deed to his daughter, Theodore Bering, Sr. described the property conveyed as being situated in Block 337 in the City of Houston “at the corner of Bell Avenue and Louisiana Street” and then particularly described it as follows:

“Commencing at the intersection of the south line (emphasis here and elsewhere is ours unless otherwise stated) of Bell Avenue and the east line of Louisiana Street in said block for a corner; Thence southeasterly with said Bell Avenue south line 75 feet for corner; Thence southwesterly parallel with Louisiana Street east line 150 feet for corner; Thence Northwesterly parallel with said Bell Avenue south line 75 feet to the Louisiana Street east line for corner; Thence northeasterly with the said Louisiana Street east line to place of beginning.”

Thereafter, on March 3, 1908, A. Bering executed a correction deed to Theodore Bering, Sr. correcting the deed of June 7, 1859, that he had given, and in the correction deed the property was described as follows:

“Beginning at the corner of said Block 337 at the intersection of Bell Avenue and Louisiana Street; Thence along Bell Avenue in the direction of Milam Street 125 feet to the center point of Lot 11 fronting on said Bell Avenue; Thence at right angles and running through the center of Lot 11 parallel with Louisiana Street in the direction of Leeland Avenue 125 feet to a point on the rear line of said Lot 11; Thence at right angles and running parallel with Bell Avenue 125 feet to Louisiana Street a point on the front line of Lot 8; Thence at right angles and running along Louisiana Street to the point of beginning embracing Lots 9, 10 and the adjoining Yz of Lot 8 and the adjoining Yz °f Lot 11 all in said Block 337.”

We note that while this deed was after the deed from Theodore Bering, Sr. to Jennie C. Bering, the description in the deed corrected was bad, and the corrected description would, under the warranty in the deed to Jennie C. Bering, redound to her benefit under the after-acquired title rule.

On June 11, 1914, Jennie C. Bering conveyed to Theodore Bering, Jr., her brother, the land described as follows :

“ * * * all that certain parcel of land in Block #337, S.S.B.B. * * *, known as fifty feet by seventy-five feet (SO7 x 757) off the front or west end of each lots numbered Eight, Nine and Ten (8, 9 and 10) said property fronting 75 feet (seventy-five) on Bell Avenue and ISO (One Hundred & Fifty) on Louisiana Street * *

'The statement is then made that it is the same property conveyed to her by Theodore Bering by the above noted deed.

On February 10, 1919, Theodore Bering, .Jr., conveyed to Vincent Navarro part of Lot No. 8 in Block No. 337, S.S.B.B., and ■described it as being shown by a plat recorded in Volume J, page 389 of the Deed Records, the lot fronting 50 feet on Louisiana Street and running back at right angles between parallel lines 50 feet apart for .a depth of 75 feet. Appellants hold title by mesne conveyances under this chain of title. No one seems to find a record of this plat.

On August 15, 1921, Theodore Bering, Jr. ■conveyed "parts of Lots Nine (9) and Ten ■(10), and any excess adjoining the same in Block Three Hundred and thirty seven (337),” to C. J. Wright & Company, Incorporated. Then there is a metes and bounds description as follows:

“Beginning at an iron pipe driven in the ground at the northwest corner of the lot in said block heretofore conveyed by me to Vincent Navarro, being the said Navarro northwest fence corner, which point is on the westerly line of said block 337, and the easterly line of Louisiana Street;
“Thence north 35 deg. east along the westerly line of said block 337, and the easterly line of said Louisiana Street 102.7 feet to a point which is north 55 deg. west and distant 11 inches from an iron pipe driven in the center of a vitrified clay pipe buried in the ground in the identical position of the old fence post which stood in said position on said property for more than fifty years up to about the year 1913.
“Thence at right angles and running in the direction of Milam Street along the front line of said property on Bell Ave. on the line of said old fence 50 feet from corner.
“Thence at right angles running parallel with the first line of this tract 102.7 feet to a corner in the northeasterly fence line of the lot sold by me to said Vincent Navarro;
“Thence at right angles and running parallel with the southwesterly line of Bell Avenue, or front line of said property and along the fence line 50 feet to the place of beginning, embracing in said boundaries 50 x 50 feet off of each of Lots 9 and 10 and any excess between said Lot 10 and Bell Avenue.”

Appellee holds by mesne conveyances under this chain of ■ title. The description given in appellee’s petition is as follows:

“BEGINNING at a point for the Northwest corner which is North 55° West and distant 11 inches from an iron pipe driven in the center of a vitrified clay pipe buried in the ground in the identical position of an old fence post which stood in said position on said property for more than fifty years up to about the year 1913;
“THENCE South 55° 00' East and running in the direction of Milam Street along the front line of said property on Bell Avenue on the line of said old fence fifty feet to a point for corner;
“THENCE South 55° 007 West at right angles, running parallel with the Westerly line of Block No. 337 and the Easterly line of Louisiana Street 102.7 feet to a corner in the Northeasterly fence line of a lot conveyed by Theo. Bering, Jr. to Vincent Navarro by Deed dated February 10, 1919, recorded in Volume 416, at Page 482, of the Deed Records of Harris County, Texas;
“THENCE at right angles and running parallel with the Southwesterly line of Bell Avenue or front line of said property and along the fence line a distance of fifty feet to a point for corner;
“THENCE North 35° 00' East at right angles, along the Westerly line of Block No. 337 and the Easterly line of Louisiana Street 102.7 feet to the place of beginning.”

In its petition appellee made clear that the only land involved in the suit was the southerly 1.1 feet of the tract described above, asserting it was a part of Lot 9.

Mr. O. M. Ellis was a surveyor employed to survey the property for appellee. The survey was made in February, 1959. He had the deed into appellee which gave the description recited in the petition which is substantially the same as in the deed out of Theodore Bering, Jr. to C. J. Wright and Company and the intervening conveyances on down to appellant. It will be noted that in each deed the description of the land calls for 102.7 feet along the westerly and easterly sides of appellee’s tract and these lines call for a tie-in on the south with a fence on the north side of the lot conveyed by Theodore Bering, Jr., to Vincent Navarro. Too, the northwest corner of the tract is a point “North 55° West and distant 11 inches from an iron pipe driven in the center of a vitrified clay pipe buried in the ground in the identical position of an old fence post which stood in said position on said property more than fifty years up to about the year 1913.” Mr. Ellis testified he did not in his survey find the fence or the vitrified clay pipe. He testified, however, in making his survey he had before him a survey made by Pat Keating, a surveyor in the City of Houston Engineering Department, made in April, 1919, just two months after the conveyance by Bering to Vincent Navarro, the survey being made for Theodore Bering. The plat showing the result of the survey is in evidence. It shows the position of the former fence post located near the northwest corner of appellee’s tract and shows it to be marked by a vitrified pipe buried in the ground. At the time of the 1959 survey there was a concrete walk over the point where the vitrified pipe was called for. However, Mr. Ellis was able to locate or reconstruct the point by measurement from the City reference monuments marking the center of streets. Actually there is not a city reference monument at each street intersection. Here the nearest monuments were the one at Polk and Louisiana, which is two blocks north of Louisiana and Bell, and the one two blocks south, which is located at the intersection of Louisiana and Pease. Mr. Ellis began his survey by tying in to the monument at Polk and Louisiana. From the point of the vitrified pipe as reconstructed, he was able to survey what he called the theoretical lines. Measuring from such northwest corner south 102.7 feet as called for in appellee’s chain of title from Theodore Bering, the surveyor reached the line which appellee contends is the south line of Lot 9 and the north line of Lot 8. While Mr. Ellis did not find a fence on this south line that was called for in deeds, in ap-pellee’s chain of title beginning with the deed out of Theodore Bering in August, 1921, other testimony locates the remains of old fence posts on said line. Appellee’s counsel employed another man to dig a trench along the line marked by Mr. Ellis as the south line of Lot 9 which he reached in measuring 102.7 feet from the northwest corner which was located by reference to the vitrified pipe also called for in the deeds, and there was found the remains of fence posts set along that line. Also Mr. Liddell, an attorney of the Houston Bar and longtime resident of Houston, testified that he had for many years been familiar with the property and he knew a fence had been located at that point from 1929 to 1955. It was located between a white stucco building situated on Lot 9 and a building on Lot 8 just south of the line as contended for by appellee. Some other witnesses corroborated Mr. Liddell to the extent of showing a fence at that point between the buildings for many years prior to 1955. Also the map prepared by Pat Keating of Lot 8 in April, 1919, shows a fence on the south of Lot 8. It was not found on the ground by Mr. Ellis, but he testified that on locating the point, by measurement, where it should be, and then measuring north to the north edge of a small false front on appellants’ building, which is a point south of the line asserted by appellee, the appellants would have 51.2 feet occupied by them. Mr. Ellis testified he found an old building foundation on Lots 9 and 10. The distance from the northwest corner of Lot 10 to the south end of the foundation was 100.7 feet. (This was apparently the foundation of the old stucco building.)

On cross-examination Mr. Ellis was asked if he surveyed to locate anything about occupation on the south at the time of his survey in 1959. He stated he did not survey it but observed the occupancy. He stated the occupancy was about 6 feet north of the theoretical south line of Block 337 which would be the south line of Lot 6. Measuring from the northwest corner of the line of occupation to the southwest corner of the block as occupied in 1959, Ellis found a distance of 251.7 feet. This 251.7 feet does not measure to Leeland Avenue, but measures to the building line fixed by the City' of Houston in 1920. When first questioned about the distance from the northwest corner of the block to the southwest corner of the block Mr. Ellis answered it was 257.7 feet. He then, based on occupancy with regard- to the building line, subtracted 6 feet. If, of course, this 6 feet were not subtracted there would be an excess in the whole block of 7.7 feet and certainly all 5 lots, that is, Lots 6, 7, 8, 9, and TO would have their 50 feet. Too, if the line between Lots 8 and 9 were located as appellee contends then Lots 6, 7 and 8 to the south would have' at least 50 feet each. However, if the 251.7 feet is taken as the correct measurement, then there is a shortage of 1 foot to the south. If the 102.7 feet allotted to appellee is subtracted, it leaves 149 feet for Lots 6, 7 and 8. If Lots 6 and 7 are actually entitled to 50 feet each, there would be a shortage of 1 foot. It is assumed by the parties that they are and they may well be. We do find, as above recited, that the City, in about 1913, when fixing reference monuments, apparently assigned 250 feet to the blocks on the south side of Buffalo Bayou in this area. If the block is 250 feet, then there is an excess of 1.7 or 1.8 feet, considering 1959 occupany. Under the jury finding as to the correct location of the line appellee would be receiving 102.7 feet. If the line is fixed as contended for by appellants by moving the line north 1.2 feet from the line found by the jury, appellee would have 101.6 feet and Lots 6, 7 and 8 would have 50 feet each.

We previously noted that if the south line of Lot 8 is where the fence was as shown on Mr. Keating’s survey of Lot 8 in 1919, appellants would have from that point north to the line as located by the jury a distance of about 51 feet. We should note that Mr. Ellis’s plat made in 1959 shows a one-story masonry building on Lot 7 that overhangs the location of the line of the old fence on Lot 8 about 1.2 feet.

We 'should also note that to the east adjoining the west 50 feet of Lots 9 and 10 on the west side of the east half of Lots 9 and 10 someone, presumably the owners of the east half, have constructed a curb from the south line of Bell Avenue and it measures 101.6 feet. It makes a turn to the east at that point. If this 101.6 is subtracted from 102.7 called for in appellee’s deed, you get the north line of Lot 8 located 1.1 feet north of where appellee contends and at the point contended for by appellants.

As we stated above, appellants contend that the jury verdict has no support in the evidence, and, alternatively, the evidence is insufficient to ' support the jury finding. These theories for reversal are advanced through Points of Error. Appellants also contend, though there is'no point of error contained in the brief, that appellee is estopped from asserting the south boundary line of Lot 9 is located more than 100 feet south of the south line of Bell Avenue as located on the ground with regard to the vitrified clay pipe and the building line coincident with it as fixed by the City in 1920. The asserted estoppel is based on the theory that when certain deeds into Theodore Bering, Jr. and into appellee described Lots 8, 9 and 10 as being 150 feet from north to south and called for the north line of the property (lot 10) to begin at the northwest corner of the block at the intersection of Bell and Louisiana and then to run along Bell, or the south line of Bell, reference was being made to Bell as fixed by occupancy and therefore the recitals for 100 feet for Lots 9 and 10 measured from Bell are absolutely binding. While there is no point of error asserting estoppel appellants do as a part of their argument urge it.

We have also read appellants’ motion for instructed verdict, their motion for judgment non obstante veredicto, and their motion for new trial, and the theory of estoppel is not advanced. Neither was there any objection to testimony attempting to locate the line more than 100 feet south of the south line of Bell as occupied. We are of the view that estoppel is an independent defense and must be asserted in a point of error and by not asserting it in the trial court and here it is waived. We do not think it is properly encompassed within the points of error of no evidence or contrary to the overwhelming weight and preponderance of the evidence, though of course such recitals may be considered purely as evidentiary of the true location of the line.

As in most cases seeking to locate boundaries where original markers are gone, there is much difficulty here.

We are of the view, however, that there is evidence, and it is sufficient, to support the jury finding locating the south boundary of Lot 9 as contended for by appellee. In holding there is evidence we have viewed the testimony supporting the verdict most favorable to the verdict and in holding it was sufficient we have considered all evidence, that which supports it and that which militates against it. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

As stated above, Theodore Bering, prior to his conveyance to Vincent Navarro, owned at least the west 50 feet of all three lots. He owned the west 75 feet of Lot 8-which he conveyed to Navarro in 1919. In 1921 he conveyed to C. J. Wright and Company, appellee’s predecessor in title. He commenced the description by tying into-the northwest corner of Navarro’s fence, which is described as representing the northwest corner of the lot he had conveyed to Navarro. The third call after the beginning call is for a line to run south parallel with the east line of Louisiana 102.7 feet to-a corner in the northeasterly “fence line of the lot sold by me to said Vincent Navarro.”'

These recitals are by a former owner of both tracts made at a time when there was no controversy and at a time when he had parted with, or was parting with, title as to the location of the north line-of Lot 8, which is also the south line of Lot 9. Bering was dead at the time of trial. Such declaration is admissible and is evidentiary of the true location. McCormick and Ray, Texas Law of Evidence, 2nd Ed., §§ 1361-1364; Hurt v. Evans, 49 Tex. 311; Whitman v. Haywood, 77 Tex. 557, 14 S.W. 166. Too, there was the recital calling for the vitrified clay pipe near the northwest corner of Lot 10. The point of the vitrified, clay pipe could be reconstructed. Too, the-deed recites the fact, though not the amount of excess. When Mr. Ellis located a point 102.7 south of the northwest corner of Lot 9' as located with regard to the vitrified clay pipe, he drove stakes. Then a trench was-later dug by others and at that exact location there were found old fence posts. Testimony of witnesses showed an old fence in that position from 1929 to some time in 1955. It can well be inferred that this was Navarro’s fence referred to in Bering’s-'deed. Too, the evidence shows occupancy “by appellants and their predecessors in title of land south of the location of the fence. 'This shows long acquiescence in the location ■of the line as made by the fence and is evidence of the true location under the facts ■of this case. Further, the evidence shows occupancy by appellants has been of slightly more than SO feet south of the old fence line and there is no evidence of any controversy until shortly before this suit was filed. Also, the old survey made by Pat Keating ■of Lot 8 in 1919 shows a fence along Lot 8 south at least SO feet from the old fence we have just discussed. While it was not found ■on the ground by Mr. Ellis he did testify that locating its position as shown by Mr. Keating’s survey by measurement, it would be 50 feet south of the fence on the north ■side of Navarro’s property.

We will not notice all evidence relied on by appellants, but we do notice their reliance ■on the alleged deficiency of 1 foot south of the line as located by the jury and the recitals in the deeds. It must be remembered that there are no original markers and no original subdividing plat. The one foot •deficiency exists only if we consider the City building line, fixed no doubt under their exercise of police power, the true south line of the block, because Mr. Ellis testified the measurement from the north of the block as fixed by the old vitrified clay pipe to the theoretical south line would be 257.7 feet. He deduced 6 feet to coincide with occupancy in 1959 and the building line. The jury could well conclude there was actually an excess on the south except for the building line. Nothing is shown of ■occupancy on the south that is of ancient vintage. The recitals in the deeds of frontage on Bell did not attempt to locate Bell as of their date.

When, in a case like this, there are no original markers, almost any testimony that will help locate the line is admissible. Reynolds v. Bradford, Tex.Civ.App., 233 S.W.2d 464 (CCA), no writ hist.; Angelina County Lumber Company v. McKnight, Tex.Civ.App., 265 S.W.2d 246 (CCA), ref., n.r.e.

The owners of Lots 6 and 7 were not indispensable parties. This was no suit seeking to allot an excess in the block. It was merely a suit to locate the boundary between property claimed by the parties to this suit. There was no plea in abatement seeking to have owners of other lots made parties. Even if it could be said they were necessary parties, which we need not pass on, there would be waiver by failure to file a plea in abatement.

The judgment of the trial court is affirmed.

On Motion for Rehearing

We remain of the opinion that there was evidence of probative force and it was sufficient to sustain the jury’s location of the dividing line between Lots 8 and 9, Block 337, S.S.B.B., of the City of Houston. The appellee, who had the burden of proof discharged his burden.

In motion for rehearing appellants call our attention to an incorrect statement in our opinion. We stated no one seemed to be able to find the plat referred to in the deed from Theodore Bering, Jr., to Vincent Navarro. We were incorrect in this. It was in evidence. However, it is of such a nature that it affords no aid in determining lot lines. It shows a division into blocks, but no dimensions are shown.

Appellants indicate we attached some significance to the fact they filed a cross-action and have filed a supplemental transcript showing they took a non-suit. While we recited the filing of a cross-action, we attached no significance to this fact in our disposition of the case.

Appellants’ motion for rehearing is overruled.


author: WERLEIN Justice.

text:
    James J. JORDAN, Appellant, v. NEW AMSTERDAM CASUALTY COMPANY, Appellee.
    No. 14311.
    Court of Civil Appeals of Texas. Houston.
    March 12, 1964.
    Rehearings Denied April 16, 1964, May 28, 1964.
    John H. Holloway, Houston, for appellant.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Jerry V. Walker, Larry W. Starr, Houston, for appellee.
   WERLEIN Justice.

This is an appeal from a summary judgment for appellee in a suit brought and prosecuted both as a bill of review to set aside a former judgment rendered in a workmen’s compensation case and as an independent suit for change in appellant’s physical condition.

Appellant sustained an accidental injury on September 12, 1957 allegedly consisting of a ruptured disc between the fourth and fifth lumbar vertebrae, and recovered a judgment in Cause No. 517,127 in the District Court of Harris County against ap-pellee on July 25, 1960 for 55 weeks total incapacity at $35.00 per week and 75 weeks temporary partial incapacity at the rate of $29.07 per week, based on the jury verdict returned into court on October 21, 1959. Prior to the trial of said cause he had undergone an operation for such condition. After said judgment was entered and while appellant’s motion for a new trial was pending, a second operation was performed on his back at the same location. This second operation was pleaded in said cause as newly discovered evidence in appellant’s amended motion for new trial. The trial court denied the motion for a new trial and the case was appealed to the Court of Civil Appeals which reversed the trial court (353 S.W.2d 256). The Supreme Court, on June 20, 1962, reversed the Court of Civil Appeals and affirmed the trial court. See New Amsterdam Casualty Company v. Jordan, Tex., 359 S.W.2d 864.

Thereafter on September 20, 1962 appellant had to undergo a third operation, known as a spinal thalamic tractotomy (chordotomy), which involved the upper portion of the spine beginning at the base of the neck. This operation was at a totally different part of appellant’s back. It was never pleaded or considered in any of the prior court proceedings. Appellant filed this suit on December 10, 1962, alleging that the judgment of July 25, 1960 was manifestly wrong, unjust and based upon false testimony of doctors at the trial to the effect that he did not need any further surgery. He also alleged that such judgment was due to fraud, accident, or mistake, without negligence on his part, and further that there had been a material change in his physical condition since the trial.

We have carefully examined appellant’s pleading and have concluded that the court properly granted appellee’s motion for summary judgment. Appellant has not pleaded nor shown by his exhibits attached to his pleading any ground entitling him to a hill of review and judgment setting aside the judgment of July 25, 1960. The fraud, accident or mistake which he relies upon are alleged to be the medical testimony given on the trial of the case to the effect that appellant would need no further surgery, which testimony appellant says was false and kept him and his attorney from knowing or showing his true physical condition which existed or which might develop in the future.

The testimony of the doctors consisted of expressions of opinion given at the trial of said Cause No. 517,127. If such doctors falsely testified to opinions they did not entertain, their testimony would constitute no more than intrinsic fraud. Appellee’s witness, Dr. Price, when asked whether he had an opinion as to any indication that appellant needed any kind of an operation, testified: “He does not, he is far better than an operation could make him.” Appellant’s own witness, Dr. Emory Ray King; Jr., who performed the first operation on appellant, when asked whether he felt that Mr. Jordan might require any surgery in the future to help his present disability, testified: “I don’t believe surgery would benefit him any, if I did, I would have recommended it quite a while ago.”

The law is well established in this State that to entitle a litigant to set aside a final judgment upon a bill of review, he must prove a meritorious cause of action or defense, which he was prevented from presenting because of the fraud, accident or wrongful act of the opposite party, unmixed with any fault or wrongful act on his part. Alexander v. Hagedorn, 1950, 148 Tex. 565, 226 S.W.2d 996; Garcia v. Ramos, Tex.Civ.App., 208 S.W.2d 111, writ ref. In Crouch v. McGaw, 1940, 134 Tex. 633, 138 S.W.2d 94, the court said:

“Fraud is classified as intrinsic or extrinsic. Included in the term ‘intrinsic fraud’ are false testimony, fraudulent instruments, and any fraudulent matter that was presented and considered in rendering judgment. Intrinsic fraud does not furnish a ground, in an independent suit brought for that purpose, for setting aside a judgment. Fraud must be extrinsic to justify the setting aside of a judgment, and must be collateral to the matter tried, and not something which was actually or potentially in issue in the trial; unless the presentation of such defense was prevented by fraud, accident, or act of the opposing party, without fault or negligence of the party against whom the judgment was rendered.”

In the present case appellant is relying upon alleged false testimony at the trial of Cause No. 517,127 as a ground for setting aside the final judgment rendered in such cause. He even asserts he was prevented by his own doctor’s testimony from showing his true condition, thus overlooking the well-established requirement that the fraud or wrongful act be that of the adverse party. It is clear that appellant has failed to plead any facts or circumstances showing extrinsic fraud which prevented him from proving up his case. Appellant’s injuries and physical condition were in issue in the trial of said cause.

Appellant asserts, however, that subsequent to said judgment being entered and becoming final, there has been a change in his physical condition for the worse, and that the trial court erred in holding that it had no jurisdiction to review on equitable grounds a final workmen’s compensation judgment. He urges that he is entitled to relitigate the issue of “material change in. physical condition” and incapacity under the provisions of the Workmen’s Compensation Act, and in particular Section 12d, Article 8306, Vernon’s Annotated Texas Civil Statutes.

The cases cited by appellant are factually inapplicable to the present suit. The law is well settled that Section 12d, Art. 8306, V.A.T.S., authorizing the Industrial Accident Board, on a proper showing regarding a change of conditions, mistake, or fraud at any time within the compensation period, to review the award or order that it had made, does not authorize a review by the court of its final judgment entered in a suit brought to set aside a decision of the Industrial Accident Board. Federal Surety Co. v. Cook, 1930, 119 Tex. 89, 24 S.W.2d 394. See also Union Indemnity Co. v. Drake, Tex.Civ.App., 42 S.W.2d 839, writ ref..; United States Fidelity & Guaranty Co. v. Brandon, Tex.Civ.App., 31 S.W.2d 846; Globe Indemnity Co. v. McClurg, Tex.Civ.App., 38 S.W.2d 125, error dism.; Pate v. Security Union Ins. Co., Tex.Civ.App., 54 S.W.2d 355.

Judgment of the trial court affirmed.

On Motion for Rehearing

We have reviewed appellant’s pleadings and exhibits attached thereto and have concluded that the foregoing opinion is correct in holding that appellant has failed to plead facts that might entitle him to set aside the judgment of July 25, 1960 on the ground of fraud, mistake or accident in connection with the medical testimony and medical statements as to the condition of appellant at and before the trial in October; 1959.

With respect to appellant’s claim of newly discovered evidence, it is our view that the decision of the Supreme Court in New Amsterdam Casualty Company v. Jordan, Tex., 359 S.W.2d 864, is decisive. .The-evidence shows that appellant underwent back surgery on November 4, 1957, and that his second operation was performed on August 18, 1960, while appellant’s amended motion for new trial was pending. The Supreme Court held that this second operation was a new fact but that it did not “bring to light a new and independent truth,” and that the evidence did not partake of the conclusiveness and decisiveness upon the merits of the case that justice had not been obtained, or that as a matter of law, the trial court abused its discretion in denying the motion for new trial.

The third operation involved the upper portion of appellant’s spine, and was performed on September 20, 1962, more than five years after the injury and more than two years after the second operation. All three operations were on appellant’s back.

Although the third operation was higher up on appellant’s back than the other two operations, it was, according to appellant’s petition, and the statement of Dr. Robertson dated October 23, 1962, attached to appellant’s bill of review and made a part thereof, “ * * * for relief of pain in the left lower extremity.” In Dr. Robertson’s statement of January 8, 1963, it is stated: "The patient returns today, reporting that he has aching pain in the left lower extremity, from foot to knee, on occasions, and in the left hip joint.” In Dr. Robertson’s statement of July 8, 1960, about six weeks before the second operation, it is stated that appellant “complained of pain of a severe nature in the left buttocks and in an area just posterior to the left hip which upon pressure radiates down his left leg.”

Thus it is seen that while the third operation is a new factor or occurrence, it does not bring to light a new and independent truth. It was performed to relieve the same results of the injury, and pain in the same part of appellant’s body generally, as the other two operations. Appellant’s injury and incapacity, if we apply “hindsight”, might possibly be shown to be greater now than anticipated during the trial in 1959, hut no new and independent facts or truths are brought out which disassociate such incapacity and injury from the original injury and the first two operations and attendant consequences of the same. The mere fact that at the time the bill of review was filed appellant’s physical condition may have deteriorated and it might be established that he was injured more severely than anticipated at the time of trial, would not be sufficient to set aside the final judgment rendered in 1959. Moreover, the evidence now relied upon by appellant is merely cumulative of that brought out at the trial in 1959, just as the evidence of the second operation adduced on the hearing of appellant’s motion for new trial was cumulative with respect to his injury. The fact that the third operation was not at the same place on appellant’s back does not prevent such evidence from being cumulative, since it was to relieve the same condition and pain that necessitated the first two operations. The instant case is distinguishable from Anshutz v. Louisville R. Co., 152 Ky. 741, 154 S.W. 13, 45 L.R.A.,N.S., 87; and Missouri-Kansas-Texas R. Co. v. Evans, 151 Tex. 340, 250 S.W.2d 385, referred to by our Supreme Court in New Amsterdam Casualty Co. v. Jordan, supra.

It is our opinion that the evidence relied upon by appellant has been sufficiently set out in our original opinion and this opinion on rehearing.

It has been held in this State that, “With certain limitations, a bill of review will lie on grounds of newly discovered evidence.” 34 Tex.Jur.2d p. 81, Judgments, § 219; Kelley v. Wright, Tex.Civ.App., 184 S.W.2d 649; Bankston v. Bankston, Tex.Civ.App., 251 S.W.2d 768; Nash v. Hanover Fire Ins. Co., Tex.Civ.App., 79 S.W.2d 182; Eddingston v. Acom, Tex.Civ.App., 287 S.W. 96, writ ref. It has also been held that though the trial court may set aside the verdict and grant a new trial on the ground of newly discovered evidence if complainant shows a reasonable ground for his failure to discover it earlier, such relief is not available in a suit in equity to set aside a judgment after it has become final.

Metropolitan Life Ins. Co. v. Pribble, Tex. Civ.App., 130 S.W.2d 332, error ref.

While the rule that a final judgment may be set aside upon newly discovered evidence may be applicable under certain conditions and in certain cases, such rule has no applicability to the facts of the instant suit.

Motion for rehearing overruled.


text:
    H. C. CARTER, Appellant, v. SERVIS EQUIPMENT CO. et al., Appellees.
    No. 14293.
    Court of Civil Appeals of Texas. Houston.
    April 23, 1964.
    Rehearing Denied May 28, 1964.
    Ted Musick, Houston, for appellant.
    Johnson, Guthrie, White & Stanfield; and Robert Lee Guthrie, Dallas, for appel-lees.
   BELL, Chief Justice.

This is an appeal from an order of the trial court sustaining pleas of privilege filed by appellees asserting their right to be sued in Dallas County. Appellant filed suit in the District Court of Harris County against Servís Equipment Company and Al H. Scifres to recover damages for the breach by them of a contract under which appellant allegedly became appellees’ exclusive agent to sell certain equipment in Harris County.

After appellees had filed their pleas of privilege in proper form, appellant filed his controverting affidavit asserting the suit was on a written contract that called for performance in Harris County.

There is no statement of facts. The judgment of the court recites all matters of fact were submitted to the court, a jury being waived, and that the court heard evidence. The burden was on appellant to prove facts showing venue lay in Harris County. In the absence of a statement of facts we must presume there was sufficient evidence to support the trial court’s judgment. Commercial Credit Corporation v. Smith, 143 Tex. 612, 187 S.W.2d 363.

The judgment of the trial court is affirmed.


text:
    Ray A. BENSON, State Savings & Loan Commissioner, et al., Appellants, v. Ellison MILES et al., Appellees.
    No. 11197.
    Court of Civil Appeals of Texas. Austin.
    May 6, 1964.
    Waggoner Carr, Atty. Gen., Joe R. Long, Asst. Atty. Gen., Austin, Akin, Vial, Hamilton, Koch & Tubb, Dallas, for appellants.
    Gibbs & Hooks, Dallas, R. Dean Moor-head, Austin, for appellees.
   PHILLIPS, Justice.

This case involves an appeal from a decision of the Savings and Loan Commissioner denying the application of the ap-pellees, Ellison Miles, et al. for a charter for a new savings and loan association to be located in Farmer's Branch, Texas.

The trial court reversed the decision of the Commissioner and ordered that the charter be issued after certain conditions inserted in. the judgment have been complied with.

We order this appeal dismissed for lack of jurisdiction in this Court as we hold that the judgment before us is not a final judgment and not appealable.

Appellees’ application was submitted June 27, 1962, to the Savings and Loan Commissioner of the State of Texas; a hearing was held on October 9, 1962, and the Commissioner’s order of denial of the charter was entered on March 27, 1963.

The charter was denied upon the grounds that: (1) the public convenience and advantage would not be promoted by allowing the proposed association to be incorporated, taking into consideration that insurance of the shares of the proposed association would probably be refused by the Federal Savings and Loan Insurance Corporation, and taking further into consideration that the chartering of a new association would result in an excessive number of savings and loan associations operating in the neighborhood and surrounding country which would be unduly injurious to all such associations; (2) that the population of the neighborhood ■of the place where the proposed association is to be located and the population of the surrounding country does not afford a reasonable promise of adequate support of the proposed association.

Appellees alleged that the decision of the commissioner in refusing to grant the application for the charter was a violation of his discretion and that he abused his power by doing so.

Appellant Richardson Savings & Loan Association, located in Richardson, Texas, intervened in support of the Commissioner’s order. Richardson Savings & Loan Association has a branch office in a shopping center in Farmer’s Branch, Texas.

At the conclusion of the trial the court entered judgment for appellees, reversing and setting aside the order of the Commissioner and granting the application for mandamus prayed for by appellees and directed the Commissioner to issue the corporate charter for the association. The trial court, however, conditioned its judgment as follows:

“It is further ORDERED, ADJUDGED AND DECREED, however, that the said Ray A. Benson is authorized and directed to withhold the Certificate of Authority for such Association to commence business untih the following requirements are met:
“1. Proof that the plaintiffs herein, for and on behalf of First State Savings and Loan Association of Farmer’s Branch, Texas, have secured insurance of the accounts of such Association with the Federal Savings and Loan Insurance Corporation of Washington, D. C.
“2. Proof that the Association has secured satisfactory, full-time management.
“3. Proof that the Association has secured adequate, independent ground floor quarters out of which to operate.
“This order is intended to, and does, permit the defendant Ray A. Benson reasonable discretion in determining whether and when the aforementioned three requirements are met. At such time as he may, in the exercise of such discretion, determine that such requirements are met, he shall forthwith issue a Certificate of Authority to the Association.”

The trial court made extensive findings of facts and conclusions of law which are not pertinent to this opinion.

We will summarize a portion of the evidence that was adduced with respect to the abovementioned conditions to the trial court’s judgment.

There was evidence presented before the trial court that the Federal Savings and Loan Insurance Corporation requires as a condition for insurance of accounts that an applicant be a member of the Federal Home Loan Bank. The Federal Home Loan Bank concurs in this requirement. A resolution adopted by the Board of Directors of the Federal Home Loan Bank of Little Rock, Arkansas, on March 18, 1963, to the effect that there was no reasonable probability of usefulness and success of the First Savings and Loan Association of Farmer’s Branch, Texas, without creating undue injury to existing associations or other financial institutions in the area. Therefore, it was the recommendation of the Federal Home Loan Bank of Little Rock, Arkansas, that the application for membership in the Federal Home Loan Bank be not approved.

Further evidence was presented the trial court in the form of a letter from the Vice-President of the Federal Home Loan Bank, a Mr. Hugh B. Procter, to the Commissioner, dated March 25, 1963, in which Mr. Procter informed the Commissioner that their Directors had adopted a resolution on March 18, 1963, offering an unfavorable recommendation on the application of First Savings and Loan Association of Farmer’s Branch, Texas, for membership in the bank.

There is substantial evidence in the record that as of the date of the entry of the order here under attack, the proposed association did not have independent ground floor quarters as required by the rules and regulations of the Commissioner.

In addition to Article 881a-2, Vernon’s Ann.Civ.St., governing the requirements of the Commissioner with respect to savings and loan associations, the Commissioner has promulgated certain rules and regulations pursuant to the authority of the abovemen-tioned statute.

Section 2.1, Chapter 2, entitled New Charter Applications of the Commissioner’s rules require, among others, (1) (a) that insurance of accounts of the proposed association has been applied for and that such insurance will probably not be refused by the Federal Savings and Loan Insurance Corporation. (1) (c) requires that such proposed association will have and maintain independent quarters with a ground floor location or its equivalent; (1) (d) that such proposed association will have qualified, full-time management.

At no place in the judgment does the trial court hold that the Commissioner acted arbitrarily or with caprice or that his action in denying the charter was not supported by substantial evidence. The court merely ordered the charter granted subject to the abovementioned conditions.

It is fundamental in this State that although a court is not bound by administrative action that finds no reasonable support in the evidence, it will not usurp an agency’s powers, or exercise discretion conferred on the agency by the Legislature. As to such matters, the agency’s decision will be considered final unless it acted arbitrarily or abused its discretion. See 1 Tex.Jur.2d, Sec. 40, p. 679.

In Phillips v. Brazosport Savings and Loan Association, 366 S.W.2d 929, the Supreme Court said:

“Review under the substantial evidence rule entails the following principles : The order of the Commissioner is presumed to be valid. The courts may not substitute their discretion for that delegated to the Commissioner by the Legislature; thus, the only question before the trial court is whether the Commissioner’s decision was arbitrary and made without regard to facts.”

In the case before us, the trial court was limited to either holding the order valid or invalid. The court has reversed the order of the Commissioner and holds that the charter should be granted; however, the case is, in effect, remanded to the Commissioner to make certain findings in his discretion before granting the Certificate of Authority.

We would have no difficulty in holding that the trial court is without authority to enter such a judgment were it not for the fact that the judgment itself places the issues to be resolved in such uncertainty as to preclude the judgment from being final. The conditions set out therein cannot be considered as incidental or dependent matters left to be determined under the doctrine of Hargrove v. Insurance Investment Corporation, 142 Tex. 111, 176 S.W.2d 744, but involve basic issues which must be determined before a charter can be granted under the statute. Our review is limited to the evidence adduced before the trial court and his judgment relative thereto. The court has not, as yet, ruled on these issues. He must act before we can act. Thus the judgment is not appealable and this Court is without jurisdiction to pass upon it. Art. 2249, V.C.S.

The Attornéy General contends that -the judgment is final. That the question of whether the Commissioner was to issue the charter was the question before the court. That the court has ordered the Commissioner to grant the charter. That the conditions imposed in the judgment are not precedent to. the issuing of the charter but are precedent to the Commissioner’s issuing the Certificate of Authority.

We do not agree. Art. 881a~4, V.C.S., authorizes the Commissioner to issue the Certificate of Authority to do business after he has approved the organization certificate, the proposed by-laws - and shall have issued the certificate of such approval and filing. These are not the conditions that the court sets out in its judgment. The conditions that the court requires resolved are issues to be considered by the Commissioner in arriving at a decision concerning the charter itself. These issues are as yet undecided. They have not been passed upon by the trial court; consequently, this Court is without jurisdiction to pass upon them here. The appeal is dismissed.

Appeal dismissed.

      . Appellees in addition to Ellison Miles are C. J. Kellelier, A. J. Airoldi, Jack Murphy, D. W. Adams, Lawson Ridgeway and E. K. Norton, Jr.