author: GRISSOM, Chief Justice.

text:
    Lazar KOPILOWITZ et al., Appellants, v. CITY OF EL PASO, Appellee.
    No. 4128.
    Court of Civil Appeals of Texas. Eastland.
    March 31, 1967.
    Rehearing Denied April 28, 1967.
    Norman Rosen, Malcolm McGregor, El Paso, for appellants.
    Travis White, City Atty., Hardie, Gram-bling, Sims & Galatzan, Peticolas, Lus-combe & Stephens, W. C. Peticolas, El Paso, for appellee.
   GRISSOM, Chief Justice.

Lazar Kopiiowitz and KBS Realty Corporation sued the City of El Paso seeking to have their deeds to the City conveying seven sections of land in fee simple cancelled, or reformed so as to convey only the water rights thereunder. The case was submitted to a jury that answered only one question. That answer was in substance that the City represented to Plaintiffs before they conveyed said seven sections to it that to furnish the City with an adequate and wholesome supply of water, it was extending, improving and enlarging its waterworks system, including water supply reservoirs, riparian rights, standpipes and water sheds, and was digging and drilling water wells and constructing pump stations, water supply reservoirs, dams, drains, storm sewers and access roads, and constructing, building, erecting and establishing necessary appurtenances and facilities which would furnish to its inhabitants an abundant supply of wholesome water, and that it was necessary for said purposes that the City acquire the surface of the seven sections conveyed by the Plaintiffs in fee simple to the City. The jury failed to answer question number 2, which inquired whether such representation was false, or any other question. The judgment recites that before submission to the jury the City had filed a motion for an instructed verdict and the court, at the time of rendering judgment, was of the opinion that it should have granted such motion and, it further appearing, that the jury could not answer any question except the one stated, the court discharged the jury and granted the City’s motion for judgment notwithstanding the inability of the jury to answer any other question. The cause was withdrawn from the jury; the jury’s answer to issue number 1 was set aside and judgment was rendered for the City. Lazar Kopiiowitz and KBS Realty Corporation have appealed.

Appellants sought to either cancel or reform appellants’ deeds on the grounds that the City had falsely represented that it needed the surface, as well as the water rights, for development and protection of its water supply and that they relied thereon. The City answered by pleading the four year statute of limitation, ratification of the settlement agreement, estoppel, a general denial, and a special plea that appellants’ land was acquired for the purpose of protecting and developing the water supply of the City, in other words that the representation found by the jury to have been made, was true. Many of appellants’ points are to the effect that the court erred in rendering judgment for the City on the grounds that a determination by the City that the surface was needed was binding on appellants because the evidence showed that (1) no determination of need was ever made; (2) the amount of land taken was arbitrary and excessive and (3) that the deeds were obtained by fraud. Most of appellants’ additional points present the contention in effect that the court erred in rendering judgment as it did because the evidence raised questions of fact as to whether the surface was needed for water purposes; whether the City’s misrepresentation that it was needed for water purposes was a material misrepresentation; whether appellants relied thereon and whether appellants’ cause of action was barred by the four year statute of limitation. Appellants also contend that the court erred in so rendering judgment against them on the ground that appellants were unable to restore the status quo; because appellants had not tendered the compensation they received for their land; because it was not shown, as a matter of law, that appellants had ratified the settlement agreement; because there was a fact issue as to whether appellants then had full knowledge of the City’s fraud; because the court erred in holding appellants were estopped because they had voluntarily released their rights to retain the surface; because the evidence raised a fact issue as to whether the settlement agreement was procured by fraud and because appellants had failed to prove that they sustained pecuniary damages.

Appellee’s first and second counter points are, respectively, that the court did not err in rendering judgment for the City because (1) determination by the City that the surface was needed is binding on appellants, in the absence of fraud or arbitrary action, and there was no evidence of fraud or arbitrary action and that (2) the evidence showed, as a matter of law, that there was no fraudulent representation because it was undisputed that appellants’ land was needed for the City’s water supply.

In 1952, the City adopted an ordinance creating the Public Service Board under authority of Art. 1115, to take over management and control of its water and sewerage system. Mr. Hugg was appointed General Manager of said board and continued in that capacity until October, 1958. In 1952 the Board was engaged in a drilling program on the Northeast mesa as well as the Canutillo area, trying to find a new source of water for the City. The Board was greatly concerned about a water supply for the City and its military facilities. The United States Geological Survey made available in 1953 a paper discussing water under the mesa. The Board was also interested in obtaining a bond issue to develop their water supply. Distinguished hydrologists were employed to prepare a report for the Board to present to the City and its voters as to where water was available in the area. The Board desired to acquire the surface and the water for the City’s future water supply. The hydrologists recommended that the City get control of the ground water reservoir to prevent depletion by others. The Board determined that it needed the fee simple title to appellants’ land and determined to acquire it, and others, if and when a proposed bond issue passed. In July 1954, the Council passed a resolution authorizing condemnation suits for the fee simple title to appellants’ land for public use by its department of water and sewage. The United States Geological Survey demonstrated to the satisfaction of the Board and City that the water recharge area was on the land in controversy then owned by appellants. Among the reasons that prompted the Board and City to determine that the surface of appellants’ land was needed was the need to control the land above the water for location of pipelines, to prevent contamination, for access, for recharge, and to prevent others from depleting said water supply. Appellants’ land is in the recharge area.

Other land, known as the Crump land, was being pumped. In order to stop pumping of water from under the Crump land, the City traded a half section, without water rights, for the half section owned by Crump and those pumps were shut down. El Paso Electric Company planned to build a powér plant in New Mexico just above the Texas line and to drill its own water wells. It purchased 1046 acres there. The Board and City believed that water thus taken in New Mexico would result in depleting the water on the Texas side. The Board persuaded the Electric Company to move on City land and traded them such land for the water rights on the Electric Company’s New Mexico land, however, leaving wells in Texas under the control of the City and preventing said Company from depleting the City’s water supply. This trade, also, occurred after acquisition of appellants’ land, but demonstrated the wisdom of the City and said Board in acquiring the surface of appellants’ land. Before the bond election, for the purpose of procuring $20,000.00 which the Board had to have to obtain an option on seventeen sections owned by Price, the City agreed to sell two and one-half sections to Tempron Corporation. The City obtained the water rights under these two and one-half sections and Price’s land. These are some of the deals that appellants point to in an effort to show that the City did not acquire the surface of their land for the purposes represented, but for the purpose of obtaining a monopoly on land adjacent to the City which it could sell to a desired industry. Appellants contend that the matters mentioned show that the representation that the City needed the surface for protection of its water supply was false, or, at least, raised a question of fact as to its falsity. On the contrary, we think the record establishes that the land was acquired for the purpose of developing and protecting the water supply. In the first place the matters so relied on occurred after acquisition of appellants’ land and could not have induced their action. Furthermore, the manager and some members of the Board did talk about selling excess land to industry, but it was determined that, if any sales were made, they would be made in such a way as to protect its water supply from contamination, protect the well sites and protect its locations for pipe lines. A sale of land was later made to Northrup. It is evident that it did not interfere with the well sites and pumping stations and that said Company was expressly required to prohibit radioactive waste being placed on the surface. Mr. Hugg testified that no part of appellants’ land had ever been used for anything except a water supply for the City. There was no evidence to the contrary. The City did convey to the Electric Company a strip of land 50 feet wide over Sections 1 and 2, which formerly belonged to appellants, for their power line, but the City retained all water rights and put restrictions in the deed. A 200 foot strip was also conveyed to the Electric Company for its power line. Nevertheless, we conclude that the record establishes that the purpose of acquiring appellants’ land was to protect and develop its water supply and that the representation found by a jury to have been made was true.

The City was unable to agree with appellants on the purchase price for their land and filed three condemnation suits to acquire the fee simple title thereto. Mr. Kopilowitz testified that the City told him it wanted his land to carry out an overall plan to protect the underground water; that, although he was satisfied that the City didn’t need the surface and instructed his lawyer to offer the City the underground water so he could keep the surface of the land, the City persisted in its contention that it needed the surface and, in settlement of the three condemnation suits he conveyed the fee simple title to the City, was paid $148,800.00 therefor, and the City, among other things, gave him an option to purchase 160 acres at the price the City paid for it. He testified, in substance, that before he accepted the consideration paid for his land, he learned something that he had always suspected, which made him think the City was not going to use the land for water but to sell to industry; that, therefore, he required a letter from the Board stating what it intended to use his land for. His purpose was to make sure his land would not be used for anything but a water supply. He received such a letter. He testified that he acquired the land on the mesa in 1944, as well as leases on T & P land; that they had between 25 and 30 sections; that he had it appraised in 1953; that he was represented by reputable lawyers in the condemnation proceedings and they are still his attorneys; that he considered them to be highly competent, but that they did not raise a question as to the City’s right to take the surface, but he did; that he was not satisfied with the price fixed by the Commissioners and appealed; that he tried to get everything for his land that he could; that the City condemned it and he tried to salvage everything possible. In July, 1955, the parties hereto made an agreement settling their controversy. The City paid appellants $148,800.00 for their land, gave them an option to purchase from the City 160 acres at the price the City paid for it, gave appellants the first refusal of a grazing lease within two years, permitted them to remove an adobe shack, wire corrals, a steel tank and a windmill and to retain possession of their land until January 1, 1956. Thereafter, in July 1955, appellants conveyed the land to the City, but were permitted to retain the minerals. Appellants received and kept $148,800.00 for their land; they exercised their option to purchase 160 acres which they thereafter sold at a profit and which, of course, they can not return to the City. The three condemnation suits were dismissed at the request of all parties. We conclude that appellants are estopped to assert a right to cancel and that they have ratified their deeds. Texas Company v. State, 154 Tex. 494, 281 S.W.2d 83, 91.

El Paso is a Home Rule City authorized to take fee simple title for sewer systems, reservoirs, water sheds, water supply sources, wells and water systems. Article 1175(15). By Article 1107 the City was authorized to condemn property for, among other things, the following purposes:

“2. To construct water mains, or supply reservoirs, or standpipes for water works or sewers.”
“4. To construct and maintain sewer pipes, mains and laterals * * *”
“6. To dig or drill water wells * * * or produce water from or construct pump stations or reservoirs thereon * * * ”

Article 16, Sec. 59 of the Constitution of Texas, Vernon’s Ann.St. provides:

“The conservation and development of all of the natural resources of this State, including the control, storing, preservation and distribution of its storm and flood waters * * * the conservation and development of its * * * water * * *, and the preservation and conservation of all such natural resources of the State are each and all hereby declared public rights and duties; * *

Appellants’ main contention is that there was no determination that the fee simple title was needed and, if so, that such finding was not binding on appellants, because the City did not acquire the surface for protection of its water supply but to enable it to sell that part of the surface not needed for water to industry. We agree with ap-pellee that the record does not sustain that contention and that no question of fact was raised in support thereof. There was a determination by the City that the fee simple title was needed. A resolution of the City recited that its legal staff was authorized to file suit for condemnation of the fee simple title to appellants’ land “needed for public use by the Department of Water and Sewage.” We are not called upon to determine whether there is merit to appellants’ contention that there was no finding that other land was needed. We are directly concerned only with the land conveyed to the City by appellants. Said resolution shows it was determined by the City that the fee simple title to appellants’ land was needed for public use by the water department of the City. In answer to appellants’ further contention that there was, at least, a fact issue raised as to whether the surface was needed and a determination thereof made, appellee says that in determining this question we must consider facts that were apparent to the Board and City when such determination was made. Appellee says the Legislature determined the City’s need for the surface in authorizing sale of 14,000 acres of public land to the City to expand its sources of water and protect its wells. We do not agree that this is controlling. However, the evidence establishes that the Board and City determined that the City needed the fee simple title to appellants’ land to protect and develop its water supply. The record shows that when the settlement agreement was made appellants raised the question of the need of the City for the surface but the City refused to accept only the water rights and required the fee simple title. With this question in dispute, appellants chose to convey fee simple title to the City for the consideration agreed upon, which was paid. We agree with appellee that there was no evidence of fraud or arbitrary action on the part of the City, unless it can be said that the City did not need this land for development and protection of its water supply and that it acquired the surface for the purpose of selling land to industry it selected. In determining whether there was any evidence that the City acquired more than was needed for its water supply and the protection thereof, it should be remembered that both the Board and City act as a body and statements of their members are not binding on them. Webster v. Texas & Pacific Motor Transport Co., 140 Tex. 131, 166 S.W.2d 75; Swink v. City of Dallas, (Tex.Com.App.), 36 S.W.2d 222; Camp v. Thomas, Tex.Civ.App., 26 S.W.2d 470, (writ ref.). We conclude that there was no evidence that when the City acquired appellants’ land it intended to use it for any purpose other than the protection and development of its water supply. It is undisputed that, except for necessary public roads and utilities, it has been used exclusively for such purposes.

The minutes of the Board in December 1952, show it was then concerned about securing an adequate new or supplemental supply of water and that the City and the United States Geological Survey and the military authorities were undertaking to locate a new source of water. There was testimony that the Army, the Air Force and the City could not grow much more until a new supply of water was found. The minutes of the Board of 1952 show that the United States Geological Survey was then testing the City’s wells to ascertain how long they would produce. The Board’s minutes show that it was also concerned about the military and farmers drilling wells that might help deplete the City’s water supply. Bids for drilling test wells were received in December, 1952. There were discussions by the Board as to whether the land should be annexed or purchased. Minutes of a later meeting of the Board show that the United States Geological Survey thought it would be wise for the City to buy the land where the test wells were being drilled; that the Board was in favor of buying the land and instructed its manager to discuss the matter with some major property owners. The manager of the Board, in February 1953, was authorized to obtain options on 50 sections of land discussed by the Board, including appellants’ land. In June 1953, the Board specifically discussed purchasing appellants’ land. Kopilowitz was then asking $255,000.00 for his land. Hugg was authorized to advise Tempron Corporation that the Board would sell it some land then owned by Price, if and when the Board acquired it from Price. In February 1954, the Board passed a resolution requesting the Mayor to sign an option agreement with Tempron on three sections. The City granted Tempron an option for $20,000.00 which it used to acquire an option on 17 sections owned by Price. After the settlement agreement of July 28, 1955, and after appellants had been paid for their land, the Board heard that Northrup wanted to purchase a section and one-half; that a sale to Northrup was made in December 1955, but it was made in such a way as to protect the water owned by the City, and no part of appellants’ land was involved. In April 1955, Border Steel Rolling Mills explored the possibility of buying 265 acres out of Section 12. These facts are urged by appellants as showing that their land was not acquired for the purpose represented by the City and is urged by the City as showing the City’s determination that it needed the surface of appellants’ land. Appellee says, and we think correctly, that none of the facts deemed by appellants to constitute evidence that their land was acquired to sell to industry have any relation to appellants’ land, except, possibly, the inquiry made by Border Steel Rolling Mills, nearly four years after appellants conveyed their land to the City. This could not be material or raise the issue suggested by appellants. The Tempron sale does not constitute evidence of a plan to acquire appellants’ land to sell to industry. The Board was anxious to obtain an option on 17 sections of laud owned by Price before bonds were issued. To do that it was required to obtain $20,000.00 option money. This was advanced by Tempron. In other words, Tempron got two and one-half sections of the City’s land, with a protection of the City’s water supply thereunder, and the City was thereby enabled to obtain the option money for 17 sections of Price’s land. This does not tend to show that the City’s purpose in acquiring appellants’ land was to engage in land speculation. Appellants do nothing more than show that the Board used good business judgment in obtaining 17 sections from Price for its water supply. For the City to obtain the T & P land by negotiation it was necessary for the Board to take all of its land in that area. Some of the T & P land was not suitable for water. Such excess non water producing land was acquired because T & P wouldn’t sell just the land the City wanted. This is not evidence that the City did not obtain appellants’ land for the purposes represented. The evidence shows that the land acquired by the City from the appellants was acquired for and has always been used only for water and that it is, at least in part, in the recharge area. There is much further discussion of similar matters in the briefs, such as the mentioned trade by the City with El Paso Electric Company. None of those things, in our opinion, constitutes evidence that the City acted arbitrarily or fraudulently, or that the land was acquired for any purpose other than to preserve and protect its water supply. We conclude that the City’s representation, found by the jury, was true. There was no evidence to the contrary. Wagoner v. City of Arlington, Tex.Civ.App., 345 S.W.2d 759, (Ref. n. r. e.); City of Dallas v. Malloy, Tex.Civ.App., 214 S.W.2d 154, (writ dism.); West v. Whitehead, Tex.Civ.App., 238 S.W. 976, (writ ref.); McInnis v. Brown County Water Improvement District No. 1, Tex.Civ.App., 41 S.W.2d 741, 745, (writ ref.) ; The McInnis case upheld the right of a water district to take the fee simple title and held that the extent of the estate taken for public use presented a legislative not a judicial question. See also Meaney v. Nueces County Navigation District No. 1, Tex.Civ.App., 222 S.W.2d 402 (writ ref.); Goldsmith v. Cathey, Tex.Civ.App., 331 S.W.2d 358, (ref. n. r. e.).

We conclude there was no evidence of fraud, or arbitrary or capricious action by the City, nor that the representation that appellants’ land was to be used for the protection and development of the City’s water supply was false. We further hold that there was no evidence that appellants relied upon the alleged false representation. On the contrary, Kopilowitz’ testimony shows that at the time he conveyed his land to the City he knew all the material facts about the alleged false representation, upon which he alleged he relied, as he knew at the trial. The evidence concerning later transactions was not material on that issue. We agree with appellee that appellants should not be permitted, with such knowledge to make the settlement agreement and obtain its benefits and then to rescind the transaction, after they had made it impossible to return what they had thereby obtained.

We have considered all of appellants' points. We conclude that none of them present reversible error. They are overruled. The judgment is affirmed.


source: Caselaw Access Project

author: WILSON, Justice.

license: Public Domain

text:
    Montague F. SCHWANTZ et al., Appellants, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
    No. 4601.
    Court of Civil Appeals of Texas. Waco.
    April 27, 1967.
    Rehearing Denied May 18, 1967.

      R. E. McDaniel, Winnie, William T. Moore, Bryan, for appellants.
    Crawford C. Martin, Atty. Gen. of Texas, Austin, Hawthorne Phillips, J. C. Davis, Lewis E. Berry, Jr., Asst. Attys. Gen., for appellee.
   OPINION

WILSON, Justice.

The question presented by appellants in this case is whether Art. 6701h, Sec. 2(b), Vernon’s Ann.Civ.Stat, is a mere venue provision, or whether it fixes exclusive jurisdiction in a single county for review of orders of the Texas Department of Public Safety.

A petition was filed in the County Court of Chambers County by 24 plaintiffs seeking a declaratory judgment that Art. 670lh is unconstitutional for a number of asserted reasons; that orders of the Department suspending drivers’ licenses and registration certificates of plaintiffs arising from accident cases be declared void and their enforcement enjoined; that it be declared the statute does not confer exclusive jurisdiction for review of Department orders. The plaintiffs alleged their action was “both an appeal” from the suspension orders as contemplated by the statute “and is a suit for declaratory judgment.”

Plaintiffs pleaded: “None of the plaintiffs are residents of Chambers County.”

Sec. 2(b) of Artr6701h, as material here, provides:

“Any order or act of the Department, under the provisions of this Act, may be subject to review within thirty (30) days after notice thereof, or thereafter for good cause shown, by appeal to the County Court * * * at the instance of any party in interest and in the county wherein the person aggrieved by such order or act resides.”

The trial court .sustained the Department’s motion to dismiss the case for want of jurisdiction because the pleading showed on its face that plaintiffs were not residents of Chambers County. Plaintiffs’ sole point is that the court erred in dismissing the case for want of jurisdiction.

The Department answers that this is a declaratory judgment action; that it is a suit without consent against the State under such decisions as W. D. Haden Company v. Dodgen, 158 Tex. 74, 308 S.W.2d 838, and the judgment should be affirmed on that ground. Although this is more than a declaratory judgment action, being also an appeal from the suspension orders complained of, it is not necessary for us to pass on the contention.

Texas statutory provisions for review of administrative decisions frequently prescribe the county in which proceedings are to be instituted.

Although decisions of an administrative agency “which do not affect vested property rights or otherwise violate some constitutional provision” are not invalidated hy the mere fact judicial review is denied by the legislature, City of Amarillo v. Hancock, 150 Tex. 231, 239 S.W.2d 788, 790, “property rights of parties cannot be determined by orders of an administrative agency, without a right of judicial review of such orders.” Board of Ins. Com’rs v. Title Ins. Ass’n of Texas, 153 Tex. 574, 272 S.W.2d 95, 97. The constitutional guaranty of due process implies such right if it is not expressed. Brazosport Savings & Loan Ass’n v. American Savings & Loan Ass’n, 161 Tex. 543, 342 S.W.2d 747, 750; Chemical Bank & Trust Co. v. Falkner (Tex.1963), 369 S.W.2d 427.

A license or permit to drive an automobile on public highways is not a property right; it is a privilege. Gillaspie v. Department of Public Safety, 152 Tex. 459, 259 S.W.2d 177 (1953) cert. den., 347 U.S. 933, 74 S.Ct. 625, 98 L.Ed. 1084; Texas Department of Public Safety v. Richardson (Tex.1964), 384 S.W.2d 128, 132; IV Baylor L.Rev. 1. (1951).

No right of appeal from the orders involved in the instant case, therefore, exists “in the absence of statutory authority; and where such authority is given the proceeding authorizing it is a special one and governed strictly by the provisions of the authorizing statute.” City of Strawn v. Board of Water Engineers, Tex.Civ.App., 134 S.W.2d 397, 398, writ refused. “The general rule is that where the cause of action and remedy for its enforcement are derived not from the common law but from the statute, the statutory provisions are mandatory and exclusive, and must be complied with in all respects or the action is not maintainable.” Mingus v. Wadley (1926), 115 Tex. 551; 285 S.W. 1084, 1087. See Goff v. State Board of Insurance, Tex.Civ.App., 319 S.W.2d 383, 385, no writ.

In Cunningham v. Robison, 104 Tex. 227, 136 S.W. 441, the Supreme Court considered the statute governing removal of disabilities of minority (now Art. 5922, V.A.C.S.), under which, it is enacted, the petition shall be filed in the District Court where the minor resides. The Supreme Court noted that the statute conferred a “special authority” and a “special jurisdiction” on the court. It was held the provision was jurisdictional, and the court had “no jurisdiction except over such minors as may reside within the county.”

In Alpha Petroleum Co. v. Terrell, 122 Tex. 257, 59 S.W.2d 364, 372, a Rule 37 case, Art. 6049c, Sec. 8, V.A.C.S., was construed. Its language was that parties affected by rules or orders of the Railroad Commission “shall have the right to file a suit in a Court of competent jurisdiction in Travis County, Texas, and not elsewhere, against the Commission.” It was held the “requirement is one of jurisdiction, and not a mere question of venue.” The statutory limitation, “and not elsewhere,” was not the primary basis of the holding, although it was noted this language precluded invasion of the legislative prerogative by extension. The Supreme Court turned the case on the reasoning that if the" court where the suit was filed had jurisdiction “it must be conferred either by the Constitution, the common law, or by statute.” None of these having conferred it on a court in the county where the suit was filed, jurisdiction was held to be absent.

It does not appear to have been the legislative intent to permit aggrieved parties to arbitrarily or capriciously pick a forum willy-nilly or at random as whim or personal wish and fancy might suggest. We think the Legislature vouchsafed the valuable privilege of suit in the county of the licensee’s residence, and there it stopped.

In our opinion the provision of Art. 6701h, Sec. 2(b) authorizing appeals to a court “in the county wherein the person aggrieved by such order or act resides” confers exclusive jurisdiction, and it is not a mere venue statute. The judgment of dismissal is affirmed.

      . Art. 6687b, Sec. 22(a) V.A.C.S., provides, as to hearings, that “jurisdiction is vested” in the county or subdivision thereof where the operator or licensee resides. Sec. 22(c), id., provides, as to license suspension orders, the licensee “may” bring suit in the County Court, or County Court at Law of his residence. See Texas Department of Public Safety v. King (Tex.1963), 366 S.W.2d 215. Sec. 31, id., as to denial cancellation or revocation, prescribes that the licensee “shall have the right” to file a petition for hearing in the county court or county court at law “in the county wherein such person shall reside.”

      . They are not uniform in their terms. E. g.: State Board of Public Accountancy: Shall be filed “in the District Court of the county where the defendant resided at the time the acts complained of were committed.” Art. 41a, V.A.C.S.; Commissioner of Agriculture: “may appeal to any Court of competent jurisdiction within the county in which such premises lie situate.” Art. 135a-2, Sec. 4, V.A.C.S.; Securities Commissioner: “May file” in the District Court of Travis County. Art. 581-27, V.A.C.S.; Board of Control: “[N]o other suit shall be brought against the Board of any other character, except in the District Court of Travis County.” Art. 606, V.A.C.S.; Secretary of State (trade marks): Shall be “subject to judicial review in the State District Court of Travis County.” Art. 851-C, V.A.C.S.; Commissioner of Health: “May file an action” in “any of the district courts of Travis County.” Art. 4476-5, V.A.C.S.; Texas State Board of Medical Examiners: “May” take an-appeal “to any of the district courts in the county of his residence.” Art. 4506, V.A.C.S.; id., Texas Board of Chiropractic Examiners. Art. 4512b, Sec. 14, V.A.C.S.; Board of Tuberculosis Nurse Examiners: “In the county court where” the certificate of registration “is recorded.” Art. 4528b, Sec. 6; State Board of Pharmacy: “May” take an appeal “to any of the District Courts where said applicant resided at the time the offense was committed.” Art. 4542a Sec. 12 (i); Texas State Board of Dental Examiners ; State Board of Morticians (Art. 4582b, See. 4(4), V.A.C.S.); Texas State Board of Examiners in Optometry (Art. 4563, V.A.C.S.); “May” take an appeal “to the District Court of the residence” of the licensee; Texas State Board of Chiropody: “May” after cancellation of license, “have his right of action for reinstatement against such board in the district court of Travis County.” Art. 4573, V.A.C.S.; State Board of Registration for Professional Engineers: “Shall have the right to file suit * * * in the district court of the county of his residence, or of the county in which the alleged offense” occurred. Art. 3271a; Unemployment Compensation Commission: Judicial review may be secured by commencing action “in any court of competent jurisdiction in the county of claimant’s residence.” Art. 5221b-4 V.A.C.S.; Commissioner of the Bureau of Labor Statistics: “May” appeal the decision “to the District Court of Travis County.” Art. 5221a-6 Sec. 7; Texas Liquor Control Board (refusing cancelling or suspending license): Appeal “may be taken” to the District Court of the County where aggrieved party “may reside.” Art. 666-14, Vernon’ Ann.P.C. In all other suits against the Board “venue shall be in Travis County.” Id.; Comptroller (permits) ; Appeal “may be taken to the District Court of Travis County.” Taxation General, Art. 9.16, V.A.T.S.; State Board of Veterinary Medical Examiners: “May appeal * * * to the district court of the county in which the applicant or licensee maintained his principal office.” Art. 7465a, Sec. 16 (a), V.A.C.S.; State Board of Water Engineers (petitions) Appeals “may be taken to any district court sitting in any county in which any part of the proposed district may be.” Art. 7880-21, V.A.C.S.

      . Insurance Code, 1.04(f), V.A.T.S. provides that appeals from Board orders “may” be filed in the District Court of Travis County “and not elsewhere.” Art. 21.14, Sec. 18, id., provides appeals concerning licenses under that Article, may be by suit in the district courts of Travis County, or in the county of applicant’s residence “and not elsewhere.” As to construction of Probate Code Sec. 6, V.A.T.S., concerning the county in which wills may be admitted to probate, see White v. Baker, Tex.Civ.App., 118 S.W.2d 319 (1933), no writ; Interpretative Commentary, 17A, V.A.C.S., pp. 39, 340, 342.

      . Our opinion is not inconsistent with Halsell v. Texas Water Commission, Tex.Civ.App., 380 S.W.2d 1 (1964), writ ref. n. r. e., a diversion permit ease. The parties do not cite it. There, Art. 7590 authorized appeals from decisions of the Board to the district court “of the county in which such diversion is proposed to he made.” But Art. 7477(12) later enacted, authorized filing of the review action as to “any ruling, order, decision, or other act of the Board.” The “venue in any or all such actions is hereby 'fixed exclusively in the District Court of Travis County, Texas,” it prescribed. The Court stated it held only that the first quoted statute was not jurisdictional “in the sense that appeals of the nature therein described can only be filed in the County of diversion and that the District Court of Travis County is without jurisdiction.” It said the court would “be inclined to hold,” if the two are in conflict, that the one later in time, authorizing suit in Travis County, should prevail.
      American Canal Co. of Texas v. Dow Chemical Co., Tex.Civ.App., 380 S.W.2d 662, 665, no writ, is not referred to by any of the parties. There the Houston Court held that under Art. 7590, V.A.C.S., (which provided “appeal may be taken” to the district court of the county in which diversion is proposed), “there was no other court to which an appeal could be taken so the venue granted was necessarily exclusive.” This, it was said, is “no longer true” after enactment of Art. 7477 (12), fixing venue in Travis County. That decision is not inconsistent with our opinion.


author: BARROW, Chief Justice.

text:
    David HALPENNY, Jr., Appellant, v. Philip MALDONADO, Appellee.
    No. 14569.
    Court of Civil Appeals of Texas. San Antonio.
    April 19, 1967.
    Rehearing Denied May 17, 1967.

      Evans & Egger, Samuel L. Egger, San Antonio, for appellant.
    J. Anthony Guajardo, San Antonio, for appellee.
   BARROW, Chief Justice.

This suit was brought by appellee against his co-maker on a promissory note, to recover for payments made by appellee to Groos National Bank, the payee of said note. Judgment was rendered following a jury trial, whereby appellee recovered from appellant the sum of $600.00 which the jury found was paid on the note by appellee, together with reasonable attorney’s fees of $60.00.

The principal contention asserted by appellant on this appeal is that he is not liable on the note, in that it has been fully paid and is now in the possession of the comaker. Appellant asserts that the note has been thereby discharged under Sec. 119, Subds. 1 and 5 of Art. 5939, Vernon’s Ann. Civ.St. (Repealed, Acts 1965, 59th Leg. Eff. June 30, 1966.)

Appellant did not testify at the trial and the facts are largely uncontradicted. On September 6, 1963, appellee manufactured jewelry and operated a retail jewelry store. On this date he sold a matched engagement and wedding ring to appellant for $600.00. This purchase was financed through the Groos Bank in accordance with appellee’s practice where a customer desired to finance a purchase of over $200.00. A promissory note, payable $29.32 monthly, was executed in the amount of $703.68, which included the principal sum, together with credit life insurance and interest. This note was co-signed by appellant and appel-lee, and the sum of $600.00 was then transferred by the Bank to appellee’s account. After a few payments on the note were made by appellant, he and his wife separated, and he refused to make further payments for the stated reason that his wife kept the rings. Appellee made the remaining payments on the note, totaling $600.00. After the payments were completed, the Bank assigned the note to appellee without recourse and he filed this suit.

It is significant that this is a suit between the co-makers without the intervention of the rights of an innocent third party or holder in due course of the note, and there is no question of limitations. In this situation the appellee had the right to show that as between the original parties, it was intended that he be secondarily liable. The record fully supports an implied finding that appellee was only secondarily liable and that there was no intention to cancel the note. The purpose of the note was to secure financing in order that appellant could purchase rings from appellee. Unless the note was paid by appellant, appellee would receive nothing for this purchase. This intent is further evidenced by the fact that the ledger account on this note was set up by the Bank solely in the name of appellant.

Sec. 121 of Art. 5939, supra, provides in part that where the instrument is paid by a party secondarily liable thereon, it is not discharged. In Fox v. Kroeger, 119 Tex. 511, 35 S.W.2d 679, 77 A.L.R. 663 (1931), the Supreme Court construed §§ 119 and 121 of the Negotiable Instruments Act together, and held that payment by the principal debtor or by the party accommodated discharges the instrument, but payment by a party secondarily liable does not discharge or extinguish the debt. See also, Cook v. Service Finance Corp., 143 Tex. 211, 183 S.W.2d 436 (1944); Garza v. Resendez, Tex.Civ.App., 251 S.W.2d 747, no writ; First Nat. Bank of Ft. Worth v. Brown, Tex.Civ.App., 172 S.W.2d 151, writ ref’d w. o. m.; 9 Tex.Jur.2d, Bills and Notes, § 213.

The judgment of the trial court is supported by the implied finding that the parties to the note intended that appellee be secondarily liable thereon and that the note was not discharged by appellee’s payment of same.

The judgment is affirmed.


author: RENFRO, Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Richard THOMAS, Appellee.
    No. 16821.
    Court of Civil Appeals of Texas. Fort Worth.
    April 14, 1967.
    Rehearing Denied May 19, 1967.
    Nelson & Sherrod, and David A. Smith, Wichita Falls, for appellant.
    Peery, Wilson & Jameson, and Don B. Morgan, Wichita Falls, for appellee.
   OPINION

RENFRO, Justice.

The plaintiff Thomas sued Texas Employers’ Insurance Association in Wichita County for benefits under the Workmen’s Compensation Law. He alleged he had complied with all jurisdictional requirements.

Defendant filed a plea of privilege to be sued in Dallas County.

Plaintiff claimed venue in Wichita County under the provisions of Art. 8306, Sec. 19, Vernon’s Ann.Tex.Civ.St.

The plea of privilege was overruled.

Defendant on appeal contends the plaintiff failed to prove that his injury was sustained in the course of his employment.

Plaintiff was employed in Wichita County, Texas by Johnston Grain Company, Inc., to drive trucks in and out of Texas. On May 21, 1966, while driving his employer’s truck on a return trip from Kansas, he was injured. About ten miles north of Wellington, Kansas, he saw a car that had had an accident. He testified, “They had the highway blocked * * * the guy hit the bridge and came over there on my intersection.” The car was a 1956 Chevrolet. “ * * * when I got up there, there was a car had the highway blocked.” It was the car that had hit the bridge. Plaintiff pulled off the highway and put on his blinkers. He got out of the truck and went to the car to see if anyone was hurt. A man in the back seat seemed “hurt pretty bad.” Plaintiff returned to his truck for a flashlight. When he returned with the flashlight two of the men from the wrecked car asked for use of his flashlight for the purpose of looking for a billfold. While they were looking for the billfold plaintiff and another truck driver went to the car and looked at the boy in the car. He seemed to be “okay” so “we went up there to see if we could help them find it, and when we got up there I slipped and fell off the bridge,” a distance of 42 feet. The billfold belonged to one of the boys that was in the wreck. He testified again, “ * * * I gave them the flashlight when I went back over to see if that other guy was hurt.”

It is obvious from the evidence that the flashlight had not been returned to plaintiff when he fell off the bridge.

We do not find a Texas case close in point on the facts. Defendant contends, however, Borel v. United States Casualty Company, 233 F.2d 385 (Sth Cir., 1956), and Safety Casualty Co. v. Wright, 138 Tex. 492, 160 S.W.2d 238 (1942), preclude recovery for plaintiff in this suit. We disagree.

We think the fact situations in those cases distinguish them from the instant case. In those cases there was no “emergency” and no one in “distress.”

In the case at bar there was an emergency in that the road was “blocked.” Some one was in distress since three men were in a wrecked car and one of them was “hurt pretty bad.” Plaintiff testified twice that the road was blocked by the wrecked car. There was no evidence that the road was still blocked when plaintiff fell off the bridge, but the trial court, under the evidence before him, could believe that the road was still blocked and that plaintiff could not have proceeded in the truck if he tried.

The remedial statutes in the Workmen’s Compensation Law should be liberally construed with a view to accomplish its purpose and to promote justice. Lumberman’s Reciprocal Association v. Behnken, 112 Tex. 103, 246 S.W. 72, 28 A.L.R. 1402 (1922). They are given a broad and liberal construction by the courts in order that the humane purpose of their enactment may be realized. Hartford Accident & Indemnity Co. v. Frye, 55 S.W.2d 1092 (Tex.Civ.App., 1932, writ dism.).

In Shelton v. Standard Insurance Company, 389 S.W.2d 290 (Tex.Sup., 1965), Justice Walker speaking for the Court stated: “The problem in each case is to determine whether the relationship between the travel and the employment is so close that it can fairly be said that the injury had to do with and originated in the work, business, trade or profession of the employer.”

In the same case Justice Walker points out that in determining “scope of employment” the Workmen’s Compensation Act must be given a liberal construction to carry out its evident purpose and quoted from the Behnken case, “ ‘An injury has to do with, and arises out of, the work or business of the employer, when it results from a risk or hazard which is necessarily or ordinarily or reasonably inherent in or incident to the conduct of such work or business.’ ”

In the Shelton case the employee, traveling from Abilene to Kansas, registered at a motel in Dallas for the purpose of spending the night. While walking across a street enroute to a cafe he was struck by an automobile. The Supreme Court concluded its opinion by holding “Petitioner’s trip to Dallas clearly was not made in furtherance of any of his personal or private affairs, and his only purpose in crossing the street was to obtain food. Once it is determined that the accomplishment of this purpose was one of the incidents of his employment, we think it necessarily follows that the trip across the street was also made to further the business of the employer rather than petitioner’s personal or private affairs.”

In the instant case plaintiff’s trip was not in furtherance of any of his personal or private affairs.

The evidence was such that the trial court could find that plaintiff stopped because the road was blocked and because of his desire to assist any one who might have been injured in the wrecked car. His help in looking for the billfold was, in our opinion, a continuing part of clearing the road so he could proceed with his employer’s business. At least, under the record, the trial court could so find.

A servant does not cease to be in the course of his employment merely because he is not actually engaged in doing what is specially prescribed to him, if in the course of his employment an emergency arises, and, without deserting his employment, he does what he thinks necessary for the purpose of advancing the work in which he is engaged in the interest of his employer. United States Casualty Co. v. Hampton, 293 S.W. 260 (Tex.Civ.App., 1927, no writ hist.). In Hartford Accident & Indemnity Co. v. Frye, supra, the Supreme Court held, “ * * * a causal relation was established between the injury and the employment, and the appellee did what he might reasonably do under his employment.”

In our opinion the plaintiff in the instant case did what was reasonable and what his employer would have expected him to do under the circumstances as set out in the record. See 62 Tex.Jur.2d 701, § 117.

In a somewhat similar fact situation the Supreme Court of Illinois in Puttkammer v. Industrial Commission, 371 Ill. 497, 21 N.E.2d 575, after discussing a number of decisions, held: “These decisions indicate that there is no break in the employment where the thing done was natural and foreseeable. Whether Puttkammer went to see whether he could pass the damaged automobiles safely or to lend aid to the injured child he was carrying when struck and killed, both acts were foreseeable and it is immaterial whether they were foreseen or not. His injury and death arose out of and in the course of his employment.” See 99 C.J.S. Workmen’s Compensation § 257(2), pp. 889-890.

The plaintiff, for venue purposes, presented a prima facie case of injury while in the course of his employment.

Affirmed.


author: TIREY, Justice.

text:
    The DEPARTMENT OF PUBLIC SAFETY of the State of Texas, Appellant, v. Clifford Ellis SHIELDS, Sr., et al., Appellees.
    No. 4630.
    Court of Civil Appeals of Texas. Waco.
    April 27, 1967.
    Rehearing Denied May 18, 1967.
    Ogden Bass, Criminal Dist. Atty., Angle-ton, Wallace N. Shaw, Asst. Dist. Atty., for appellant.
    Richard J. Higgins, Angleton, for appel-lees.
   OPINION

TIREY, Justice.

This is an appeal from a trial de novo in the County Court in which appellees sought to have set aside an order of the Department of Public Safety suspending all operators’, commercial operators’ and chauffeurs’ licenses of the appellees, and the registration of all motor vehicles owned by the appellees, pursuant to the provisions of Article 6701h, Vernon’s Ann.Civ.St. of Texas (1925). The Public Safety Department filed its request for admissions, and thereafter filed its motion for a summary judgment, which was denied, and the cause proceeded to trial on its merits without the aid of a jury, and thereafter the court rendered a judgment in behalf of the appel-lees. The Department of Public Safety has appealed. We reverse and render. The trial court filed extensive Findings of Fact and Conclusions of Law.

The judgment is assailed on 6 points. Point 1 is that the trial court erred in overruling motion for summary judgment, which is wholly without merit, and it is overruled.

Points 2 and 3 are sustained under the authority of Gillaspie v. Department of Public Safety, 152 Tex. 459, 259 S.W.2d 177, cert. denied 347 U.S. 933, 74 S.Ct. 625, 98 L.Ed. 1084.

Points 4 and 5 are to the effect that there is no evidence or insufficient evidence to bring this cause within the exceptions to the provisions of Article 6701h of R.C.S., and that the judgment is against the weight and overwhelming preponderance of the evidence, and is wrong.

Point 6 is to the effect that the cause should be reversed and rendered ■because of the admissions of appellees in evidence, and that under such admissions the commercial operator’s license and chauffeur’s license should be suspended under the provisions of Article 6701h, aforesaid. We sustain each of the foregoing points.

In appellees’ brief we find this statement:

“A three-way automobile accident occurred, involving a car owned and driven by Allen, a car owned and driven by Yanez, and a car owned by Shields, Sr., and driven by his son, Shields, Jr.; Allen had liability insurance on his car, Shields had no liability insurance on his car, and it does not appear from the records whether Yanez had liability insurance on his car or not; the damages to the Shields car were paid for by Allen’s liability insurance carrier; Yanez signed a release in favor of Shields, but Allen refused to sign such a release, although requested to do so by Shields; damages to each of the three cars amounted to more than $100.00; Shields does not satisfy the provisions of Sections 5 or 6 of Article 6701h; * *

As we understand appellees’ brief it is their contention that under the amendment of Section 2(b) of Article 6701h, by the 58th Legislature, that the county court had the authority to enter the judgment it did suspending the Department’s order. We overrule this contention because the result here is controlled by Section 5 of Article 6701h. In the court’s Conclusions of Law 4, 5, 6 and 7, we find:

“4., That pursuant to the provisions of Section 5(b), Article 6701h, Revised Civil Statutes of Texas, the Department of Public Safety of the State of Texas properly entered and notified Clifford Ellis Shields, Sr., and Clifford Ellis Shields, Jr., of its order suspending all Texas registrations of motor vehicles owned by the said Clifford Ellis Shields, Sr., and the said Clifford Ellis Shields, Jr., and all Texas Operators, Commercial Operators and Chauffeur’s licenses of the said Clifford Ellis Shields, Sr., and the said Clifford Ellis Shields, Jr., and of its order requiring such persons to post security in accordance with the provisions of Section 5(b) in the amount of $1100.00.
“5. That none of the conditions specified in Section 5(c) or Section 6, Article 670lh, Revised Civil Statutes of Texas, existed at the time the suspension order aforesaid was entered by the Texas Department of Public Safety and none of such conditions have existed at any time up to the date of this judgment.
“6. That neither Clifford Ellis Shields, Sr., nor Clifford Ellis Shields, Jr., have satisfied the requirements of Section 7, Article 6701h, Revised Civil Statutes of Texas, at any time up to the date of this judgment.
“7. That neither Clifford Ellis Shields, Sr., nor Clifford Ellis Shields, Jr., should have their Texas Registration of motor vehicles owned by them or all Texas Operators, Commercial Operators and Chauffeurs licenses issued to them suspended because the payment of the property damage claim of Clifford Ellis Shields, Sr., by the insurer of Schley Admiral Allen and the release given by Ynosente Yanez to Clifford Ellis Shields, Sr., had the effect of terminating all questions of liability between the parties.”

It is obvious that the foregoing conclusion Number 7, is erroneous. We think it is well settled that the settlement by Allen’s insurer is not necessarily determinative of his rights, nor binding on him. See 32 A.L.R.2d 937; City Transportation Company of Dallas v. Vatsures, Tex.Civ.App., 278 S.W.2d 373, writ. dism. We are of the further view that there is nothing in the amendment of Section 2(b) of Article 6701h by the 58th Legislature that authorized the county court to decide the case on what it seems it thought was an equitable basis. Perhaps it may be that Allen deliberately refused to sign the release in order to force Shields to buy their peace, but the trial court could not assume that he was so doing, nor can we.

Accordingly, the judgment of the trial court is reversed and rendered.


author: LANGDON, Justice.

text:
    WESTERN GILLETTE, INC., Appellant, v. David MALONE et al., Appellees.
    No. 16822.
    Court of Civil Appeals of Texas. Fort Worth.
    April 14, 1967.
    Rehearing Denied May 19, 1967.
    Hill, Paddock & Street, John G. Street, Jr., and Clifford F. McMaster, Fort Worth, for appellant.
    Crouch & Pringle, and H. G. Wells, and John Whiteside, Fort Worth, for appellees.
   OPINION

LANGDON, Justice.

This is an appeal from an order overruling appellant’s plea of privilege to be sued in Dallas County, Texas. There was no evidence of any fact giving rise to an exception to Article 1995, Vernon’s Ann.Civ. St. of Texas adduced at the hearing. The trial court held that Western Gillette, Inc., had, as a matter of law, waived its plea of privilege. We affirm.

On May 17, 1966, a collision occurred in Tarrant County, Texas involving an automobile owned by appellant and driven by Ray L. Hamilton and a vehicle occupied by appellees (or persons through whom ap-pellees claim).

On June 21, 1966, appellees filed suit against appellant and Ray L. Hamilton in Cause No. 44,876-C, in the 17th District Court of Tarrant County, Texas. On that same date the appellant and Ray L. Hamilton filed suit against appellees in Cause No. 44,892-C in the 48th District Court of Tar-rant County, Texas. Both suits sought recovery of damages sustained in the collision of May 17, 1966.

Appellant filed its plea of privilege in ap-pellees’ suit (Cause No. 44,876-C) against it in due order of pleading and filed an answer subject to such plea. The appellees thereafter filed an amended petition and a controverting plea. Meanwhile, two ap-pellees, Benny J. Butler and wife, Luetha Butler, filed an answer and a counter-claim against appellant and Hamilton in Cause No. 44,892-C, the suit filed by appellant and Hamilton against appellees. The appel-lees, David Malone and Lloyd Richardson, filed a plea in abatement to appellant’s suit. They contended that since the suit of appel-lees (No. 44,876-C) was filed first and involved the same principal parties, arose out of the same transaction and involved the same questions of law and fact as appellant’s suit that the latter suit should be abated.

Appellant and Hamilton in the suit against appellees thereafter filed a supplemental petition in reply to the counterclaim of Benny J. Butler and wife, Luetha Butler. Then subject to its plea of privilege appellant filed an answer to the plea in abatement and a motion to consolidate the appellees’ suit against them with its suit. In the motion to consolidate appellant pointed out that the two cases involved the same accident and parties and suggested it would be right and proper for the court in its order of consolidation to order appellees to re-plead in the cause by way of counter-claim. The motion to consolidate with appellant’s case was on the basis that citations were first served in appellant’s cause. It is undisputed that appellees’ cause was filed first.

On September 9, 1966 an order was entered in both suits consolidating them into appellant’s suit but making no requirement that appellees replead by way of counterclaim. The order of consolidation specifically recited that same was entered without prejudice to appellant’s plea of privilege.

The appellees then filed a second amended petition and controverting plea to appellant’s plea of privilege. The controverting plea alleged venue to be in Tar-rant County, Texas under exceptions 9a, 23 and 4 to Art. 1995, V.A.C.S. Texas, and further alleged that appellant by filing its suit against appellees in Tarrant County, Texas had waived its plea of privilege.

David Malone made a request for admissions addressed to appellant and Hamilton. Both, subject to the plea of privilege, moved the court to quash the request for admissions. Hamilton and appellant then answered such request for admissions as were not quashed.

Benny J. Butler and wife, Luetha Butler, filed a motion for summary judgment as to appellant’s plea of privilege.

The appellant’s plea of privilege was heard and overruled on the grounds that appellant had waived same by: (1) filing its suit against appellees in Tarrant County, Texas, and (2) by filing its motion in Cause No. 44,892-C to consolidate the two cases.

It is the position of appellant that it has not waived its right to be a defendant in Dallas County as distinguished from being a cross-defendant in Tarrant County where it sought the status of plaintiff with the attendant advantages.

In the case of Mooney Aircraft, Inc. v. Adams, 377 S.W.2d 123 (Dallas Civ.App., 1964, no writ hist.), the court in considering an appeal involving virtually the same questions as here stated: “The primary question is that of waiver vel non of appellant’s plea of privilege. After careful consideration of the factual situation presented by this record we have concluded that appellant, by his own action in invoking the general jurisdiction of the court by its motion to consolidate the two causes, has effectively waived its plea of privilege.” The court cited and relied upon the holding in O’Neal v. Texas Bank & Trust Co. of Sweetwater, 118 Tex. 133, 11 S.W.2d 791 (1929), adopted by the Supreme Court, in which it was stated: “A ‘plea of privilege’ is one of venue and of personal privilege, and, per force, waivable at pleasure. We do not hold that mere filing of a plea in abatement (of the kind shown here), even though the question as to privilege of venue be not expressly saved in the plea amounts to a waiver; what we do hold is that, if such a plea with its issues be actually submitted for determination before action on the plea to venue, there is submission to jurisdiction of the court with consequent waiver of the latter plea.”

It was further said in Mooney Aircraft, Inc. v. Adams, supra, that: “Thus our courts have said that when the party seeking a change of venue does not first secure a ruling on the plea of privilege its benefits may be waived by submitting, for determination by the court, a plea in abatement; * * * (citing authorities).” Referring again to the holding in the O’Neal case, supra, the court stated, “We think the reasoning of the court in this case (the O’Neal case, supra), relating to a plea in abatement, bears equal weight on the question of motion to consolidate. In each instance the general jurisdiction of the court is invoked on matters other than the venue question.” See 59 Tex.Jur.2d 609, § 158, and McDonald Texas Civil Practice, 1965 Revision, Vol. 1. § 4.40, pages 566-574 and authorities cited under each.

In Zachry v. Robertson, 147 Tex. 307, 214 S.W.2d 949 (1948), the Supreme Court held that, “When the plaintiff instituted this suit in Tarrant County he submitted himself to the jurisdiction of the District Court of Tarrant County as to all matters arising out of or incidental to the subject matter of the suit, and thereby waived his right to be sued in the county of his domicile in a cross-action arising out of such cause of action. Bailey v. Federal Supply Co., Tex.Com.App., 287 S.W. 1090; Mumme v. Spies, Tex.Civ.App., 15 S.W.2d 137.” The opinion continued, “ * * * after the cross-action has been filed it is too late for the plaintiff to dismiss the original suit and object to having the issues of the cross-action determined in the forum of the original suit, rather than in the forum of the residence of the defendant in the cross-action.” (Authorities cited.)

The points of error urged by the appellant are in all things overruled.

The order of the trial court is affirmed.

Affirmed.


author: MASSEY, Chief Justice. RENFRO, Justice

text:
    Paul C. HOLMES, Appellant, v. Otis N. CAMPSEY et ux., Appellees.
    No. 16826.
    Court of Civil Appeals of Texas. Fort Worth.
    May 5, 1967.

      Kelly, Morris, Walker & Maynard, and Jearl Walker, Fort Worth, for appellant.
    Byrom, Wright, Butcher & Prager, and Robert L. Wright, Fort Worth, for ap-pellees.
   OPINION

MASSEY, Chief Justice.

Venue case. Plea of privilege of defendant Paul C. Holmes was overruled. He appealed. The nature of the cause of action of plaintiffs Otis.N. Campsey and his wife was for personal injury damages growing out of an automobile collision in Tarrant County. Plaintiff’s wife had stopped her automobile at a street intersection in obedience to a traffic signal-control light, and afterward, while awaiting the change of the light to the green and “Go” signal, was struck from the rear by a vehicle driven by the defendant in the same direction as that traveled by the plaintiffs’ vehicle until it was stopped at the traffic signal.

Upon hearing, the only testimony concerning the manner in which the collision occurred came from the lips of plaintiff’s wife. The defendant did not testify. On cross-examination she related the fact that approximately two hours after the collision the defendant appeared at her hospital room. He held a conversation with her. We quote from her testimony:

“Q. Well, I am not asking you for the exact words, but did Mr. Holmes tell you anything about how the accident took place ?
“A. He did.
“Q. And was there anything said by either you or Mr. Holmes about the accident resulting from a failure of brakes?
“A. There was.
“Q. Now, who said that?
“A. Mr. Holmes.
“Q. All right. Now, what did Mr. Holmes say. Now, give us the substance, if not the exact words ?
“A. That his brakes had failed him and he could not stop.”

The position of the defendant, in view of the fact that plaintiff’s wife so testified on cross-examination, is stated as follows:

“This Defendant-Appellant is familiar with that line of cases originating with this Court’s decision of Renshaw v. Countess, 289 S.W.2d 621 (Fort Worth Civ.App., 1956, no writ hist.), to the effect that both negligence and proximate cause may be inferred from the circumstances presented from the evidence. This Defendant has no dispute with that line of decisions.
“However, Defendant feels there is sufficient difference in the facts as to distinguish the instant case from that of Ren-shaw v. Countess.
“If there had been no evidence in the instant case except that the Plaintiff stopped and Defendant’s automobile ran into the rear end of the Plaintiffs’ automobile, this case would fall squarely under the decision of Renshaw v. Countess, in that the circumstances, in the absence of an explanation, would warrant an inference of negligence and proximate cause. On the other hand, if there is evidence of such a nature as to explain the cause of the accident and establish, in the absence of any evidence to the contrary, that the accident was not the proximate result of any negligence but of brake failure, then the ‘inference’, being of the nature of a presumption, of Renshaw v. Countess vanishes, and the judgment must be founded solely upon the single evidence of fact before the trial court, to wit, brake failure. To hold otherwise, would be resorting to inference and presumption rather than evidence. 23 Tex.Jur.2d, Evidence § 65 et seq., p. 101; Gilbert v. Haigler (1962), 363 S.W.2d 337, syllabus 5, Writ Refused, n. r. e.; Rankin v. Nash-Texas Company, 129 Tex. 396, 105 S.W.2d 195.”

We are of the opinion, and hold, that the defendant is confusing the effect of the testimony of the plaintiff. True it is that the wife of the plaintiff testified that the defendant stated to her that “his brakes failed and he could not stop”. But such testimony amounts to mere evidence that the defendant made such a statement to her — and even if it were admissible would not have probative force and effect to establish that the actual cause of defendant’s failure to stop was failure of his brakes.

The testimony was objectionable on the ground that it was “hearsay” and indirectly self-serving as introduced by the defendant in behalf of his defense. It was objected to. However, under the circumstances it did not amount to evidence in any event, being incompetent and without probative force. No reason appears in the record to depart from general rules concerning inadmissibility of “hearsay” and self-serving statements.

Though we recognize the resourcefulness of defendant’s counsel in seeking to take advantage of the fact that his client appeared before plaintiff’s wife some time after the collision and stated that “his brakes failed and he could not stop”, we think it would be unrealistic to credit defendant with having thereby obtained any advantage upon the hearing of the plea of privilege when he did not personally appear and testify in substantiation of his defensive theory under circumstances affording his adversary an opportunity for cross-examination.

Reference is made to the text of 24 Tex.Jur.2d, p. 51 et seq., “Evidence”, upon “Hearsay”, § 557 et seq., and at p. 160 upon “Self-Serving Declarations”, § 611, “In general; Admissibility — Civil cases.”

Judgment is affirmed.

RENFRO, J., concurs.

RENFRO, Justice

(concurring).

I concur in the result. I do not agree that the statements made by defendant to the plaintiff were inadmissible. Though admissible the court was not bound to accept the statement made to plaintiff and testified to by plaintiff, as true. It was not a statement plaintiff could readily have discredited or contradicted; hence the court was not bound to accept it as true.

The general rule that the testimony of an interested witness, such as a party to the suit, though not contradicted, does no more than raise a fact issue to be determined by the trier of fact applies, rather than the exception recognized by the Supreme Court in Cochran v. Wool Growers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904.


author: WERLEIN, Justice.

text:
    Norman SCHLANG, Appellant, v. Jacqueline SCHLANG, Appellee.
    No. 15009.
    Court of Civil Appeals of Texas. Houston.
    April 20, 1967.
    Rehearing Denied May 11, 1967.

      Norman Schlang, pro se.
    Murray L. Lieberman, Houston, for appellant, on motion for rehearing.
    Carol S. Vance, Dist. Atty., James L. Muldrow, Asst. Dist. Atty., Houston, for appellee.
   WERLEIN, Justice.

This is an appeal from the judgment of the Court of Domestic Relations No. 2 of Harris County, Texas, rendered under the Uniform Reciprocal Enforcement of Support Act, decreeing that appellant, Norman Schlang, pay the sum of $100.00 per month for the support and maintenance of his child, Cynthia Lynn Schlang, born May 18, 1964. The court decreed that the support payments beginning July 25, 1966 be paid to Harris County Support Department in Houston for transmittal to Family Court, State of New York, Nassau County, West-bury, New York. Appellee’s petition for support, with all necessary attachments, was filed on May 18, 1966 in the office of the District Clerk of Harris County, Texas.

Appellant represented himself without the aid of counsel in the trial court, and is so representing himself on this appeal. Pursuant to the order of this Court he has rebriefed his case, but his amended brief filed herein consists in large part of irrelevant matters making it very difficult to sift out any alleged assertions of error on the part of the trial court pertinent to the evidence adduced at the trial. It is elementary that in passing upon appellant’s points of error, this Court is restricted to the record before it. We are not authorized to consider statements in appellant’s brief that are wholly outside the record and wholly unsupported by the evidence adduced at the trial.

Appellee’s petition filed under the Uniform Support of Dependents Law of the State of New York, which is similar to the Texas Uniform Reciprocal Enforcement of Support Act, was accompanied by a copy of the New York Act duly certified. Said petition with its appendages was duly served on appellant, a resident of Harris County. Appellant filed his answer and motion to dismiss, a memorandum of points and authorities in support of such motion, and a “Declaration in Explanation of Respondent’s Proceeding in forma pauperis.” None of such documents was verified. The trial court found on the hearing of appel-lee’s verified petition for support that appellant owed a duty of support of his minor child, Cynthia Lynn Schlang, and ordered payments as hereinabove stated. The case is before us on an agreed statement of facts, the pertinent part of which is here set out verbatim:

“The Respondent immediately stated to the Court that a Motion to Dismiss, previously submitted to the Court by the respondent, had not been acted upon; the Court thereupon inquired of Petitioner's legal representative whether or not he had received copies of said Motion, and said representative answered, yes: The Court then ORDERED Respondent to proceed, and at that time Respondent asked, ‘does the Court desire depositions to be taken of the’ Petitioner or if service upon Petitioner of interrogatories should be made:’ Thereupon, Respondent stated that under the Uniform Support of Dependents Law of the State of New York that he had a right to file cross-interrogatories. At this juncture, Petitioner’s legal representative interposed and stated that he had no objections to the filing of cross-interrogatories by the Petitioner. The Court then inquired of respondent as to whether or not he had ever been married to Petitioner, and he testified that he had; that a divorce decree had been awarded Petitioner and Respondent in the State of California on or about September 28, 1965. The Court then asked Respondent “whether or not the California divorce decree made a final determination as to whether or not a child was born to Petitioner and Respondent during their marriage?” The Respondent then replied ‘that the California Court had determined that a child, CYNTHIA LYNN SCHLANG, was born on May 18, 1964, and that he appeared personally and contested the same, but the California Court’s only interest was for child support and his spouse’s attorney fees, and that his purpose was to contest the paternity of said child in that proceeding, and that his purpose now is to contest the paternity of said child in this proceeding,’ and Respondent further demanded the right to do so by filing cross-interrogatories for Petitioner, JACQUELINE SCHLANG, in the State of New York to answer. The Court overruled Respondent’s request and ruled that ‘the paternity of the minor child, CYNTHIA LYNN SCHLANG, was res adjudicata, inasmuch as Respondent was personally present at the hearing in the California divorce action. The Respondent then presented the argument to the Court that the Court was without Jurisdiction to adjudicate such matters or to make an order of support, and stated, ‘that there had been a previous order in the California divorce decree, which prohibited the Petitioner, JACQUELINE SCHLANG, from removing the minor child, CYNTHIA LYNN SCHLANG, from the State of California to the State of New York, or any other State;
“Thereupon, Respondent, NORMAN SCHLANG, argued to the Court, that for the Court to make and enter an order of support requiring him to pay child support to Petitioner, for the benefit of said child, violated his constitutional rights of the U. S. Constitution, in that such an order indirectly compels him to contribute money to a religious belief unorthodox to his, that the child CYNTHIA LYNN SCHLANG, was being brought up and taught a religious order different than his. The Court then inquired, ‘whether or not his former wife JACQUELINE SCHLANG, had been awarded legal custody of the minor child, CYNTHIA LYNN SCHLANG, in the California divorce decree.’ Respondent replied, 'yes’. The Court then overruled this argument and stated that, ‘the issue of religion was not germane to the issues raised in this cause of action,’ and the Court further ruled that the primary issue was ‘whether or not Respondent, NORMAN SCHLANG, owed a duty of support.’ The Court then inquired of the Respondent, whether or not he was ordered to pay child support in the California divorce action, and he replied, ‘Yes,’ one hundred ($100) dollars per month, but that subsequent actions and contempt proceedings in the State of California adjudicated his non-liability for support, and Respondent cited California cases in support thereof. Then the Court asked Respondent, ‘whether or not he was employed, and he announced ‘Yes.’ The Court thereupon ruled and so ordered the Respondent, NORMAN SCHLANG, to pay the sum of $100 per month as child support, beginning July 25, 1966; to be paid through the Harris County Probation Department, and further ORDERED him to make a like payment in the amount of $100 on th.e 25th day of each succeeding month thereafter for the support of said minor child. To this ruling the Respondent took exception, and announced in open Court, on said date, that he was filing Notice of Appeal.”

Appellant was the only witness who testified at the hearing. The evidence adduced at the trial amply supports the court’s finding that appellant owes a duty of support of his minor child, and also supports the judgment entered by the court. As near as we can determine from appellant’s brief, he contends that the trial court should have transmitted his answer to appellee’s petition to the Court in the State of New York, the initiating state; that appellee was not entitled to bring suit in the initiating state because the final judgment of divorce between the parties was in the State of California ; that appellant was denied the right to cross-examine appellee by taking depositions and filing interrogatories; that ap-pellee was not entitled to any relief because she was the deserting party, and came into court without clean hands, and denied appellant access to the child; that it was not established that appellant was the father of the child; that the trial court entered its order without considering the financial circumstances of the parties; that the court erred in requiring appellant to support a child in a faith inimical to his religion, the one in which he and appellee were married; that he did not have the benefit of counsel and that the atmosphere of the court was characteristic of totalitarianism and not that of a free society. But for the fact that appellant had no counsel representing him, we would be inclined to overrule all of the foregoing points summarily as being without merit.

There is nothing in the record to show that appellant- was ever denied counsel or the right to counsel, or the right to file interrogatories or to take depositions. The laws of this State provide adequate methods for the taking of depositions and the filing of interrogatories. Instead of taking any action to obtain the testimony of appellee by depositions or interrogatories, appellant at the hearing asked the court whether the court desired depositions to be taken of the petitioner or if service upon petitioner of interrogatories should be made. The statement of facts shows that the trial court ascertained that appellant was employed. Based upon such fact and the further fact that the California court had ordered appellant to pay child support in the sum of $100.00 per month and there was no evidence with respect to any change in appellant’s ability to pay such amount, the trial court ordered that appellant pay such amount monthly. Appellant was in court and could have offered evidence of his inability to pay the amount ordered by the court, if he was in fact unable to pay the same. It is too obvious for discussion that the religious faith of appellee and that of appellant cannot be considered in determining whether appellant has a duty of support of his minor child. Appellant’s testimony was that the paternity of the child was adjudicated in the divorce proceedings by the court in the State of California, and hence was res adjudicata. Furthermore, appellant offered no evidence of non-access.

The law is well settled that the presumption that a child horn during marriage is legitimate cannot be rebutted by the testimony of the husband or wife that sexual intercourse did not take place between them. Simon v. State, 1892, 31 Tex.Cr.R. 186, 20 S.W. 399; Meyer v. State, Tex.Cr.App., 41 S.W. 632. “Nor may any declarations of the husband or wife be received for the purpose of showing non-access or otherwise assailing the legitimacy of the child.” McCormick and Ray, Texas Law of Evidence, page 112, Sec. 90, and cases cited. The presumption of the fact of ‘legitimacy of a child is one of the strongest known to the law. As stated in Pinkard v. Pinkard, Tex.Civ.App., 252 S.W. 265, “To bastardize a child born in lawful wedlock, the most clear and conclusive evidence of nonaccess is required.” There was no such evidence in the instant case. See also Lawson v. Baker, Tex.Civ.App., 1961, 351 S.W.2d 571; Byrd v. Travelers Insurance Co., Tex.Civ.App., 275 S.W.2d 861, writ ref., n. r. e.

Appellant has misconstrued the procedure which must be followed in proceedings under the Uniform Reciprocal Enforcement of Support Act. There is no requirement under the Texas Act which governs the hearing in Texas that the trial court transmit appellant’s answer to New York, the initiating state; nor does the fact that the final judgment of divorce was decreed in California prevent appellee from bringing her suit for child support in New York, the initiating state. The function of the certificate of the court of the initiating state is to establish that such court upon examination of the plaintiff’s petition has found such probable duty of support as to warrant transmittal of the petition, certificate and a copy of the Support Act to the court of the responding state. The court of the responding state then holds a hearing, after proper notice or service of process upon the defendant, to determine whether a duty of support actually exists and if so, it enters the proper orders. The statements made in the certificate, based upon the plaintiff’s petition, and without notice to the defendant, are not to be considered by the court of the responding state as evidence of the facts alleged in the plaintiff’s petition. See 42 A.L.R.2d, p. 768, for annotation on the Uniform Reciprocal Enforcement of Support Act, and authorities there cited.

The record does not reflect that the trial court accepted appellee’s statements in her petition for support as evidence of facts alleged in such petition or that the trial court in rendering its decision considered the certificate as constituting any evidence of probative force. The record indicates that the trial court understood and followed the proper procedure. Neff v. Johnson, 391 S.W.2d 760, Tex.Civ.App.1965, n. w. h.

Judgment affirmed.

COLEMAN, J., not sitting.


author: WOLFE, Judge.

text:
    Noel SMITH, Plaintiff-Appellant, v. LEWIS COUNTY ABSTRACT AND INVESTMENT COMPANY, a Corporation, Defendant-Respondent.
    No. 32407.
    St. Louis Court of Appeals. Missouri.
    March 21, 1967.
    Motion for Rehearing Denied April 25, 1967.
    Tom B. Brown, Edina, J. Andy Zenge, Jr., Canton, for plaintiff-appellant.
    Earl L. Veatch, Monticello, J. Patrick Wheeler, Canton, for defendant-respondent.
   WOLFE, Judge.

This is an action whereby the plaintiff seeks to recover from the defendant abstract company the sum of $5,000 in damages. It alleged that the damages arose by reason of an omission in an abstract of title whereby the plaintiff was caused to lose his claim of title to certain real estate that he had purchased. The defendant filed a motion to dismiss the petition. The court sustained the motion to dismiss and thereafter the plaintiff appealed.

The petition is as follows:

“Plaintiff, for his cause of action against the defendant, states:
“1. That the defendant is and was at all times herein mentioned a corporation duly organized under the laws of Missouri with its principal office in Monticello, Lewis County, Missouri.
“2. That at all times herein mentioned the defendant was engaged in the business of searching records, preparing and extending abstracts and certifying titles to real property in Lewis County, Missouri.
“3. That the defendant either prepared or extended an abstract covering land in which was included the following described real estate:
A part of the Southeast Fourth of the Southeast Quarter of Section Twenty-six (26), Township Sixty (60), Range Six (6) West, beginning at a stone at the Northeast corner of said Southeast Fourth of the Southeast Quarter of said Section Twenty-six (26), thence South 96 feet, thence West 213 feet to the East line of the right-of-way of Missouri State Highway #61, thence North Io 15' West 98 feet, thence East 216 feet to the place of beginning, all in Lewis County, Missouri;
that at various times at the request of the plaintiff the abstract was re-extended by the defendant and following each of said extensions, and following the initial preparation of the abstract the defendant caused a certificate to be affixed to the abstract certifying in substance that all matters of record affecting the title to the real estate described in the caption were included in the abstract as the same appeared from the records of deeds, mortgages, judgments, probate proceedings, taxes and liens of Lewis County, Missouri.
“4. That the defendant negligently, carelessly and unskillfully conducted such an examination and carelessly failed to ascertain if said abstract and the subsequent extensions thereof did, in fact, contain all deeds and matters of record affecting the title to the land described in said abstract as fully as same appeared on the records in the Recorder’s Office in Lewis County, Missouri; that the plaintiff relied upon the abstract and the extensions thereon made and paid the required fee for extending said abstracts as requested by defendant and the plaintiff relied upon the correctness of said abstract when he purchased the property and in his subsequent dealings with said property.
“5. That in truth and in fact a deed dated the 29th day of December, 1931, by and between Public School District No. 8, also known as Walnut Grove, which was duly filed for record in the Recorder’s Office of Lewis County, Missouri, on the 2nd day of February, 1932, was recorded and was of record in Lewis County, Missouri, but that the same was negligently and carelessly omitted by the defendant, its agents, servants and employees, when the abstract was prepared and subsequently extended.
“6. That the La Grange Reorganized School District No. R-VI of Lewis County, Missouri, subsequently made claim to the land hereinabove described which had been purchased by this plaintiff, relying upon the abstract prepared and extended by the defendant; that a suit was filed in the Circuit Court in Lewis County, Missouri, by which the said School District, as a successor to the Walnut Grove School District, asserted the title to said property and sought to establish their title by court action against the plaintiff; that the plaintiff obtained counsel and defended the title which he claimed, relying upon the abstract which had been prepared and extended by the defendant; that the plaintiff lost the suit in the trial court but appealed to the Supreme Court of Missouri, where the plaintiff again lost and title was held to be vested in the School District in a final judgment dated April 14, 1958, at which time plaintiff’s cause of action arose.
“7. That the plaintiff was compelled to and did retain counsel to defend the law suit in the Circuit Court of Lewis County, Missouri, and. to perfect the appeal for which he expended substantial sums of money; that he was compelled to advance money for the transcript on appeal and for the printing of a brief; that he was compelled to and did pay expenses and costs, together with the expense of prosecuting the appeal in the Supreme Court of Missouri; that the value of the land which was held to belong to the School District was $3,500; that by reason of the negligence and carelessness of the defendant, its agents, servants and employees in preparing the abstract and making subsequent extensions thereof in failing to correctly abstract the deed which was of record which purported to give the School District’s predecessors in title a claim to the property and the subsequent attempts to defend the title to said property have caused the plaintiff expense and damages in the sum of Five Thousand Dollars ($5,000.00).
“8. That the decision of the trial court and the Supreme Court of the State of Missouri were based primarily on the fact that the omitted deed from the abstract was notice to the world that the School District was claiming a title but that by reason of same having been omitted from the abstract upon which the plaintiff had a right to and did rely, his claim to title was defeated and he has suffered the damages as hereinabove set forth.
“WHEREFORE, Plaintiff prays judgment against the defendant in the sum of Five Thousand Dollars ($5,000.00), together with his costs.”

The defendant filed a “motion to dismiss”, which simply stated that the defendant moved to dismiss the petition on the “ground that the petition fails to state a claim upon which relief can be granted.” This is all that the record discloses except that a subpoena was issued directed to the plaintiff to produce the abstract mentioned in the petition. The record does not disclose whether or not the abstract was produced. There is no evidence of it of record nor record of any other evidence offered to the court.

The respondent asserts here in support of the court’s action in dismissing the petition that the petition “does not allege facts showing that the cause of action if any was not barred by the statute of limitations.” The defense of the statute of limitations is an affirmative defense and if the defendant relies upon it he must plead it. Curlee v. Donaldson, Mo.App., 233 S.W.2d 746; Kopp v. Moffett, 237 Mo.App. 375, 167 S.W.2d 87. The defendant herein did not file an answer or in any way of record assert such a defense, therefore it was not before the court and the action of the court in dismissing the petition could not be sustained upon this ground.

It is also contended that the petition should have been dismissed because it did not allege privity of contract. With this we cannot agree. In determining whether or not a petition states a claim upon which relief may be granted its allegations must be given a liberal construction and they are to be accorded their reasonable and fair intendment. We cannot hold a petition insufficient merely because of a lack of definiteness or certainty in allegation or because of informality in the statement of an essential fact. Myers v. City of Palmyra, Mo., 355 S.W.2d 17, 92 A.L.R.2d 791; Jacobs v. Jacobs, Mo., 272 S.W.2d 185 Applying these rules to the quoted petition we believe it states a cause of action, and that the court erred in holding to the contrary.

It may be that both defenses here asserted are available to the defendant. If this is true and there are no issues of fact properly tryable to a jury or the court the defendant has available to him the remedy of moving for a summary judgment after properly complying with Rule 74.04, V.A.M.R., in relation thereto.

For the reasons stated judgment of the trial court in dismissing the petition is reversed and the cause remanded.

ANDERSON, P. J., and RUDDY, J., concur.