author: COLLINGS, Justice.

text:
    John BENSON, Appellant, v. Millie R. BENSON, Appellee.
    No. 3814.
    Court of Civil Appeals of Texas. Eastland.
    May 17, 1963.
    Rehearing Denied June 7, 1963.
    Lawrence E. Steinberg, of Johnson, Guthrie & Stanfield, Dallas, for appellant.
    Emmett Colvin, Asst. Dist. Atty., Dallas, for appellee.
   COLLINGS, Justice.

This action was brought under the Uniform Reciprocal Enforcement Support Act by petitioner Millie R. Benson against John Benson. Judgment was rendered for petitioner adjudging that defendant owed the duty to support the named minor child and decreeing the amount of such support. John Benson has appealed.

On July 7, 1961, appellee Millie R. Benson filed a petition in the Superior Court of the State of California in the County of Los Angeles alleging a duty of support owed by appellant to appellee’s daughter. The petition set out that appellant and appellee were married in Tiajuana, B. C., Mexico, on or about March 4, 1957, and that this marriage was annulled on or about April 28, 1960; that appellee is the mother of and appellant is the father of the named dependent child, born September 19, 1957. Appellant was given no notice of the filing of such petition in the California court, nor was he ever within the territorial jurisdiction of the State of California at or since the filing of such petition. On or about July 10, 1961, without notice to appellant, the Judge of the Superior Court of the State of California in and for Los Angeles County, made a finding, certificate and order that the verified complaint shows facts from which it may be determined that appellant owes a duty of support to said dependent child, and that the District Court of Dallas County, Texas might obtain jurisdiction over John Benson or his property. Such cause including certified copies of the petition and the order and finding of the California Court were then transmitted to the proper court in Dallas County. See Article 2328b-3 Vernon’s Ann.Texas Civ.St.

On August 8, 1961, notice was issued by the Juvenile Court of Dallas County, Texas, ordering appellant John Benson to appear on August 23, 1961, to show cause why he should not pay support according to the Reciprocal Uniform Support Law. Appellant duly filed an answer which was later verified in which it was stated that no lawful marriage ever existed between appellant and appellee and that he had been a resident of the State of Texas at all times since October of 1957 and that, as a matter of law, no duty of support exists. On May 31, 1962, appellant Benson filed motion for summary judgment stating that no genuine material fact issue exists in the case and that under the pleadings he was as a matter of law entitled to judgment. On October 16, 1962, the Juvenile Court entered an order overruling appellant’s motion for summary judgment and entered judgment declaring that appellant owed a duty of support to the minor child, and ordered him to pay into the registry of the court the sum of $40.00 per month for the support and maintenance of said minor child. At the trial no evidence was offered by appellee nor was any offered by appellant. The parties did, however, agree upon the extent of appellant’s ability to support said minor child.

Appellant’s contentions in his first, second and third points to the effect that the court erred in overruling his motion for summary judgment because (1) child support can only be awarded in connection with a suit for divorce, (2) no duty of support exists by the father when there is no lawful marriage and (3) there was never a valid duty of support created in the State of California since the California court at no time had jurisdiction over him are not well taken.

Appellant is correct in his contention that the applicable law in determining whether a duty of support exists in this case is Texas law, but we cannot agree that appellee’s petition shows that no duty of support exists because of the allegations of the annulment proceeding show there was no lawful marriage. Section 42 of the Texas Probate Code, V.A.T.S., provides that the issue of “marriages deemed null in law shall nevertheless be legitimate.” Hayworth v. Williams, 51 Tex.Civ.App. 146, 120 S.W. 1138 and cases cited therein.

Article 2328b-3, Section 13, V.A.T.C.S. provides: “If the court of the responding state finds a duty of support, it may order the defendant to furnish support or reimbursement therefor and subject the property of the defendant to such order.” This portion of the statute obviously provides a remedy other than an order by the court in a suit for divorce, and appellant’s point urging that support can only be awarded in a proper divorce case is overruled.

It is not contended by appellee and it was not held by the trial court that appellant owes any duty of support by virtue of an order or decree of the State of California. The Superior Court of the State of California in Los Angeles County where ap-pellee’s petition was originally filed was “an initiating state” and it entered no final decree to the effect that appellant had a duty of support of the minor child in question. It simply found that appellee’s petition set forth facts from which it might he determined that appellant did owe a duty of support and that a District Court in Dallas County, Texas, might obtain jurisdiction over appellant and his property, and then transmitted the case including certified copies of the record to the Dallas County Court for further action.

In appellant’s fourth point it is contended that the judgment should be reversed because appellee failed to discharge her burden of proof. Appellant urges that appellee had the burden of establishing her cause of action and to establish the existence of facts showing that she was entitled to prevail, and that appellee has wholly failed to so show; that appellee offered no evidence at the trial and that appellant made no admissions other than to agree to the extent of his ability to pay child support.

Appellee concurs with the statement that a plaintiff normally has the burden of establishing the cause of action alleged^ but contends that in the instant case there was no dispute as to the alleged facts material to her right to recover and that such facts are therefore to be taken as true and no proof was necessary. In support of this contention appellee relies upon Fontenot v. Davis, Tex.Civ.App., 296 S.W.2d 939. That was a suit for damages arising from a collision of automobiles at a street intersection. Both parties pleaded and sought to prove that the other wrongfully drove into the intersection against a red light in violation of the state penal laws. The San Antonio Court of Civil Appeals speaking through Judge Murray held that such allegations constituted pleadings that the traffic lights at the intersection were lawfully installed and in operation because “such an act could amount to a violation of the penal statutes only if the traffic lights controlling traffic at the intersection had been lawfully installed there by competent authority.” It was held that all parties to a law suit are bound by allegations in their pleadings and that facts alleged by both parties would be accepted as established without proof.

It is true as urged by appellee that appellant Benson made no general denial to appellee’s pleadings but we cannot agree with her contention that appellant admitted all material facts alleged in appellee’s original petition, and that the only issue in the case is an issue of law, namely, whether a duty of support exists under such allegations. Appellant did question the right of appellee to recover even if all the allegations in her petition were true. Appellant’s contention in this respect is set out near the close of his pleading as follows : “Wherefore, plaintiff’s petition does not state a cause of action against defendant, since no duty to pay child support exists under the facts and circumstances alleged in plaintiff’s petition.” It is true that in-passing upon an exception to a pleading it will be presumed that the facts alleged therein are true, but it does not follow that such presumption prevails upon the trial of the case. We cannot agree with appellee’s contention that appellant Benson’s answer or his motion for summary judgment should be construed as an admission that the parties were married on or about May 4, 1957, that the marriage was annulled on or about May 28, 1960, and that Benson is the father of the named dependent child born September 19, 1957. The establishment of appel-lee’s cause of action depended upon the existence of the marriage and of the fact that appellant was the father of the child as alleged in her petition. She offered no proof to establish such facts and appellant’s point urging that she has failed to discharge her burden of proof is well taken.

For the reasons stated the judgment is-reversed and the cause is remanded.


source: Caselaw Access Project

author: BARROW, Justice.

license: Public Domain

text:
    RIO REFRIGERATION COMPANY, Appellant, v. THERMAL SUPPLY OF HARLINGEN, INC., Appellee.
    No. 14087.
    Court of Civil Appeals of Texas. San Antonio.
    May 1, 1963.
    Rehearing Denied June 5, 1963.

      Polk Hornaday, Harlingen, for appellant.
    Johnson, Hester, Jenkins & Toscano, Harlingen, for appellee.
   BARROW, Justice.

This suit was filed by Thermal Supply of Harlingen, Inc., against Rio Refrigeration Company, a Texas Corporation. The suit was on an account for goods, wares and merchandise furnished Coastal Refrigeration Service, a co-partnership composed of Tony Doster and Archie A. Henager, by United Supply Company. Thermal Supply has succeeded to all rights of United Supply Company. Thermal Supply alleged that appellant, Rio Refrigeration Company, had, by written contract with Coastal Refrigeration, agreed to pay this account. Appellant filed a third-party action for judgment over against Doster and Henager, but only Dos-ter was served with citation. After a trial before the court, judgment was rendered against appellant for $2,161.35, the full amount of the account, plus interest and $750.00 attorney’s fees. Appellant was denied any recovery against Doster, but has not briefed any points against him.

Appellant presents three points: 1. The contract whereby appellant purchased the assets of Coastal Refrigeration and assumed its debts was ultra vires; 2. The contract was breached by Coastal Refrigeration by Doster’s failure to comply with his agreement to work for appellant for five years; and 3. Thermal Supply is not entitled to recover attorney’s fees.

Findings of fact and conclusions of law were not filed by the trial court and it is presumed that the trial court found every issuable fact proposition necessary to support the judgment which is supported by evidence. McDonald, Texas Civil Practice, § 1610(d). It is our duty to examine the evidence in the light most favorable to appellee and indulge every reasonable inference in favor of the judgment. Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696.

For some time prior to June 18, 1958, Coastal Refrigeration had purchased parts and supplies from United Supply on open account, and on that date owed $2,161.-35. Both Coastal Refrigeration and Rio Refrigeration were in the business of selling and servicing refrigeration and air-conditioning units. On June 18, 1958, a written contract was entered into between these parties whereby Rio Refrigeration bought all the business of Coastal Refrigeration, including three trucks, all of Coastal’s inventory of parts, supplies and tools, all office equipment and accounts receivable. As part consideration, Rio Refrigeration assumed payment of all of Coastal’s accounts payable, specifically including the one sued on herein. As a part of the contract, Doster was employed and accepted employment as Rio Refrigeration’s service manager for a period of five years. The contract contained a provision whereby this employment could be terminated by either party on sixty days notice. A copy of this contract was delivered to United Supply, which shortly thereafter made demand upon Rio Refrigeration for payment of the account. Rio Refrigeration took possession of all assets and the contract proceeded without incident until early in May, 1959, when Doster’s employment contract was terminated.

Rio Refrigeration was incorporated in 1948, for the purpose of buying and selling goods, wares and merchandise of any description by wholesale and retail. It has never adopted the Texas Business Corporation Act enacted in 1955, which by Art. 2.04, Vernon’s Ann.Civ.St. abolished the defense of ultra vires. It is our opinion, however, that this defense is here- without merit. It is not ordinarily necessary for the conduct of a corporation’s business that it lend its credit to another business, and in the absence of an express charter power, a corporation has no right to stand as surety or guarantor for the debt of another. L. G. Balfour Co. v. Gossett, 131 Tex. 348, 115 S.W.2d 594; Cameron County Lumber Co. v. Al & Lloyd Parker, Inc., 122 Tex. 487, 62 S.W.2d 63. Here the contract was of direct and material benefit to appellant, in that it eliminated a competitor and purchased parts, supplies and equipment used in appellant’s business. The law is well settled that in all grants of corporate powers there exist not only the powers expressly granted, but also such implied powers as are necessary or reasonably appropriate to the exercise of those powers expressly granted. L. G. Balfour Co. v. Gossett, supra; 14 Tex.Jur.2d, § 417. It is our view that the powers granted appellant would include the power to assume payment of Coastal’s account with United Supply as partial consideration for the assets purchased from Coastal.

In any event, appellant is estopped to assert the defense of ultra vires in that it had operated under and attained the benefits of the contract. Kincheloe Irr. Co. v. Hahn Bros. & Co., 105 Tex. 231, 146 S.W. 1187; Religious Films v. Potts, Tex.Civ.App., 197 S.W.2d 592; Temple Lumber Co. v. Miller, Tex.Civ.App., 169 S.W.2d 256.

Appellant asserts that the contract was repudiated by Doster when he left its employment, and there was no consideration for the payment of this account. The trial court impliedly found, in rendering judgment for Doster on appellant’s third-party action, that the contract was not repudiated by Doster, and there is evidence to support this finding. Doster testified that he was dissatisfied in that he was not receiving his agreed commission and had difficulty cashing the salary checks issued by appellant. Appellant’s president testified that Doster lacked confidence in his ability as manager. The trial court impliedly found that the employment was terminated by mutual agreement. There was also evidence that appellant had used some of the parts and supplies purchased from Coastal, and at the time of trial still retained some of the purchased assets, such as the trucks, customer lists, and some refrigeration supplies. We overrule appellant’s point that the contract was repudiated.

We sustain appellant’s point that Thermal Supply is not authorized to recover its attorney’s fees under Art. 2226, Vernon’s Ann.Civ.Stats. The Supreme Court in discussing this statute, in Meaders v. Biskamp, 159 Tex. 79, 316 S.W.2d 75, said:

“It has been held that a sworn account is defined according to its popular sense and applies only to transactions between persons, in which there is a sale upon one side and a purchase upon the other, whereby title to personal property passes from one to the other, and the relation of debtor and creditor is thereby created by general course of dealing (which may include only one transaction between the parties). It does not mean transactions between parties resting upon special contract.”

See also Langdeau v. Bouknight, 162 Tex. 42, 344 S.W.2d 435; McCamant v. Batsell, 59 Tex. 363; Kirkwood & Morgan, Inc. v. Roach, 360 S.W.2d 173; Hicks v. Smith, Tex.Civ.App., 330 S.W.2d 641; Mercantile National Bank at Dallas v. McCullough Tool Co., 250 S.W.2d 870, rev. on other grounds, 152 Tex. 471, 259 S.W.2d 724.

In all of the cited cases, it is seen that the right to recover attorney’s fees under this statute is strictly construed. Even though the suit in several instances was brought in the form of a sworn account, attorney’s fees were not allowed unless a transaction was shown between the parties whereby goods, wares or merchandise was sold. There is no evidence that any of the parts or supplies involved in this account were sold by United Supply to Rio Refrigeration, and the liability of Rio Refrigeration is predicated solely on its contract assuming this debt. In this situation attorney’s fees are not recoverable.

The judgment of the trial court is affirmed as to the recovery by Thermal Supply of Harlingen, Inc., against Rio Refrigeration Company for the sum of $2,161.35 only, and recovery is denied for any attorney’s fees; and, as so reformed, the judgment is affirmed. Costs are adjudged three-fourths against Rio Refrigeration and one-fourth against Thermal Supply.


author: MURRAY, Chief Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Elonzo H. VAN HOOSE, Appellee.
    No. 14068.
    Court of Civil Appeals of Texas. San Antonio.
    May 1, 1963.
    Rehearing Denied May 29, 1963.
    Lewright, Dyer & Redford, James W. Wray, Jr., Walter Dunham, Jr., Corpus Christi, for appellant.
    Jean Day, Port Lavaca, for appellee.
   MURRAY, Chief Justice.

This is a workman’s compensation case. Based upon a jury verdict, Elonzo H. Van Hoose recovered judgment against Texas Employers’ Insurance Association in the sum of $2,596.37, for a fifty per cent loss of use of his right arm below the elbow, from which judgment Texas Employers’ Insurance Association has prosecuted this appeal.

Appellant’s first contention is that there is “no evidence to support the jury’s finding that the Appellee will have a 50% permanent partial loss of use of the hand,” and in any event such finding “is so against the overwhelming weight and preponderance of the evidence as to be manifestly unjust.”

The evidence shows that appellee received an accidental injury to his right hand on December 5, 1960. He was working as a machinist for Bauer Dredging Company, Inc., in Calhoun County, at the time of the injury. He was working forty-five hours a week and earning $2.10 an hour, with time and a half for overtime. He was injured while tightening a tool post with a wrench when his foot slipped. All of his weight was on his right hand at the time, and he felt something popping in his right wrist and it stunned him for a while. He had to just stand there for a little while. He heard it pop; it hurt around his whole wrist, but the pain was more on the thumb. He did not think it serious enough to go to a doctor, but did report it to his employer. His hand kept hurting but he continued to work for close to a month. He went to a doctor on January 4, 1961, because his wrist really started hurting him again. His wrist troubled him during the month he continued to work, but he did not have occasion to do any real hard work during that time. He went to Dr. Lester, after reporting to A.dolph Melchar, his immediate superior, that his wrist was hurting, and the doctor told him he had a ligament pulled loose in his wrist. He testified that he was immediately laid off by Melchar, and was unable to find another job for several months. He finally got a job with Jimmy Payne in Lolita as a roustabout doing odd jobs. His pay was $1.25 an hour. He was compelled to work in order to support his wife and three children. He did not tell any one about his injury, and no one discovered it. He was afraid to complain because he feared he would lose his job as he did with Bauer Dredging Company.

Appellee left the job with Jimmy Payne for a better job with Barrett Manufacturing Company in Houston, as a machinist at $2.-50 an hour. This job did not involve big equipment as did his job with Bauer Dredging Company. His hand hurt him all the time. He left the job with Barrett because there was not enough work to keep him busy. He was not earning enough money. Appellee next got a job with Brown and Root'as a machinist. He took a pre-employment physical examination by a doctor selected by Brown and Root. He was paid $3.39 an hour, but was laid off because there was not enough work. While he was working no one discovered he had an injured right wrist. Later, he again got a job with Brown and Root as a welder’s helper at $2.00 an hour. His hand hurt while doing this work, but not as bad as it did while working at his regular trade, because the work was not as heavy. He held this job until about two weeks before the trial. He told no one about his sore hand because he was afraid that if he complained he would be laid off.

After leaving that job he secured employment with Conti Machine & Welding in Victoria, and is still employed there. He earns $1.75 an hour and works five and a half days, or forty hours, a week. On this job he does welding, painting, straightening bent metal, and some machinist work. The painting work causes his hand to harden up inside and become numb. He has to stop about every hour for five or six minutes and massage his hand. It also causes his hand to hurt when straightening bent metal even more than painting. He doesn’t have the grip he used to have and cannot work as fast. The hand seems to be getting worse. He could not do some of the lifting required as a machinist, that he could do before the accident; he could not put a strain on wrenches or things of that nature as before; he would be required to use his left hand; he did not think he could do the heavy work he was doing at Bauer Dredging Company; he had not complained on the jobs he had, because he was afraid he would lose the job.

Dr. S. W. Lester, who was a doctor for Bauer Dredging Co., and also appellee’s 'family doctor, testified that he made an examination of appellee’s right wrist on January 4, 14 and 16, 1961. He found no swelling in the wrist. Appellee complained to him of pain in his right wrist and tenderness to pressure. There was no swelling, redness or stiffness apparent at the time. The range of motion was normal, but appel-lee testified it was painful. Appellee also complained of pain on palpation over the radial aspect of the wrist. The doctor injected some hydrocortisone into the wrist joint. There were no objective signs of any permanent injury when the doctor examined appellee on January 27, 1962. There were no visible signs of atrophy in his fight arm. On January 4, 1961, the doctor diagnosed the injury as a probable sprain of the wrist and an injury to one of the supporting ligaments of the wrist joint. There were signs of Dequarvanes disease, but the doctor concluded that appellee did not have this condition. Dr. Lester concluded: “Ordinarily a sprain will clear up completely. You can’t specify any given length of time but usually a sprain will clear up completely.” On cross-examination Dr. Lester testified that it would be possible for.a sprain not to heal up if there was a severe tear of the ligament, and that it might be possible for a sprain not to heal.

The appellee called as witnesses, Mrs. Norma Chambers, Richard A. Moses, .and Mrs. Ann Vickery, but their testimony sheds very little light upon the question here raised.

We conclude that the evidence set out above constitutes some evidence of probative force tending to support the finding of the jury that appellee had sustained a 50% permanent injury to his right wrist. Texas Employers’ Insurance Ass’n. v. Fletcher, Tex.Civ.App., 356 S.W.2d 359; American General Ins. Co. v. Florez, Tev.Civ.App., 327 S.W.2d 643.

We have considered all of the testimony and conclude that the findings of the jury are not so against the overwhelming weight and preponderance of the evidence as to be manifestly unjust. Cunningham v. Texas Employers’ Ins. Ass’n., Tex.Civ.App., 363 S.W.2d 880.

In its motion for new trial, appellant set up among other things that the jury was guilty of misconduct because it was stated and argued in the jury room, during their deliberations, that appellee was only suing for the sum of $1,000.00, and that if they allowed him 50% disability he would only receive the sum of $500.00. The trial court made and filed findings of fact as to this matter as follows:

“I. In the course of the jury’s deliberations there was some discussion by some jurors to the effect that the maximum amount for which the Plaintiff was suing was $1,000.00 and that a verdict of 50% permanent partial loss of use of the hand would result in a judgment for $500.00, or 50% of the maximum amount being sued for.
“II. Such discussions were had by the jury prior to the answering of Special Issues Nos. 5 through 9.
“III. The statements made in connection with such discussions found in Findings I and II above .were not rebuked or qualified by the foreman, or any other juror.
“IV. The foregoing discussion by the jury was misconduct but did not cause probable harm to the defendant.”

We agree with the court in overruling appellant’s motion for a new trial. The testimony shows at most that some of the jurors were mistaken as to the amount that appellee was suing for, and therefore what he would receive if they allowed a 50% disability. The plaintiff plead that he was entitled to recover in excess of $1,000.00, and some of the jurors understood from this that all that he was asking for was $1,000.00. Based upon the jury's answers, the trial court rendered judgment in the sum of $2,596.37. The jury was not required to find any specific sum of money, but only to answer as to percentage of disability. The fact that the jury got confused as to the pleadings or the evidence does not require that their verdict be set aside. It involves nothing more than the mental processes of the jury. The evidence does not show that the jury entered into an agreement as to what appellee should receive and then agreed to answer the issues so as to put their agreement into effect. In the absence of such an agreement, the mistaken idea of some of the jurors as to what sum would ultimately be recovered by appellee does not call for a setting aside of the jury’s verdict. Whited v. Powell, 155 Tex. 210, 285 S.W.2d 364; Ford v. Carpenter, 147 Tex. 447, 216 S.W.2d 558; Maryland Casualty Co. v. Hearks, 144 Tex. 317; 190 S.W.2d 62; Trousdale v. Texas & N. O. R. Co., Tex.Civ.App., 264 S.W.2d 489, affirmed 154 Tex. 231, 276 S.W.2d 242; W. W. Auto Parts, Inc. v. Hyak, Tex.Civ.App., 346 S.W.2d 918; 12 Baylor Law Review 355, “Jury Misconduct and Harm”; 40 Texas Law Review 849, “The Mental Operations of Jurors.”

The judgment is affirmed.


author: WALTER, Justice.

text:
    MARYLAND CASUALTY COMPANY, Appellant, v. R & L CONSTRUCTION COMPANY et al., Appellees.
    No. 3800.
    Court of Civil Appeals of Texas. Eastland.
    May 17, 1963.
    Rehearing Denied June 7, 1963.
    Thompson, Coe, Cousins & Irons, Dallas, for appellant.
    Henry Klepak, Dallas, for appellee.
   WALTER, Justice.

Maryland Casualty Company filed suit again R & L Construction Company upon an indemnity agreement. Based on a verdict, judgment was rendered that Maryland také nothing and it has appealed.

R & L Construction Company contracted with Ross and Levy, Inc. to erect a building. Maryland Casualty Company issued its bond guaranteeing performance. R & L executed an indemnity agreement to Maryland in connection with its application for a performance bond. Service Bureau Corporation, the tenant, was assigned the performance bond in consideration of its acceptance of the premises as lessee of Ross and Levy, Inc. Service Bureau made a claim against Maryland under the bond contending that R & L had failed to complete the building according to plans and specifications. Maryland paid Service Bureau $4,000.00 on this claim. Maryland sought to recover the $4,000.00 from R & L under the following indemnity agreement:

“The undersigned will at all times indemnify and keep indemnified the Company, and hold and save it harmless from and against any and all liability for damages, loss, costs, charges and expenses of whatever kind or nature (including counsel and attorney’s fees) which the Company shall or may, at any time, sustain or incur by reason or in consequence of having executed the hond(s) herein applied for, or any and all other bonds executed for us or at our instance and request; and will pay over, reimburse and make good to the Company, its successors and assigns, all money which the Company or its representatives shall pay, or cause to he paid, or become liable to pay, by reason of the execution of any such instruments, or in connection with any litigation, investigation or other matters connected therewith, such payment to be made to the Company as soon as it shall have become liable therefor, whether the Company shall have paid out such sum, or any part thereof, or not. In any accounting which may be had between the undersigned and the Company, the Company shall be entitled to credit for any and all disbursements, in and about the matters herein contemplated, made by it in good faith under the belief that it is or was liable for the sums and amounts so disbursed, or that it was necessary or expedient to make such disbursements, whether such liability, necessity or expediency existed or not, and vouchers or other evidence of such disbursements shall be taken as conclusive evidence against the undersigned of the fact and extent of the undersigned’s liability to the Company.”

Concerning the rule of construction to be applied in construing an indemnity contract, our Supreme Court in the case of Mitchell’s Inc., v. Friedman, 157 Tex. 424, 303 S.W.2d 775 at page 777, said: “It is somewhat misleading to say that an indemnity agreement must be strictly construed in favor of the indemnitor and against the indemnitee. Although the distinction has not been frequently noted, the doctrine of strictissimi juris is not a rule of construction hut is a principle of substantive law which is applicable after the intention of the parties has been ascertained by ordinary rules of construction.”

Maryland called upon R & L to make payment to Service Bureau. R & L refused and denied liability. Maryland made a settlement with Service Bureau for $4,000.00. If it acted in good faith, Maryland had the right to make a reasonable settlement. Having made the settlement, Maryland assumed the responsibility of showing that the settlement was made in good faith and that it was a reasonable and prudent settlement. Gulf, Colorado & Santa Fe Railway Company v. McBride, 159 Tex. 442, 322 S.W.2d 492 (Sup.Ct.). Good faith is an ordinary term and its meaning is presumed to be understood by men of ordinary intelligence. Dunning v. Badger, Tex.Civ.App., 74 S.W.2d 151 (Dismissed).

We recite the pertinent testimony of the witnesses. Mr. W. P. Bostick testified he worked for Service Bureau, which is a wholly owned subsidiary of International Business Machine Corporation, located on North Central Expressway in Dallas. Other than as a local representative of the company, he had nothing to do with the negotiations of the lease executed by his company and Ross and Levy, Inc. Service Bureau made a claim against Maryland, under the bond, asserting that R & L had failed to brick the south wall, failed to install proper conduit for electrical wiring and failed to waterproof certain portions of the buillding. On cross-examination, he testified that he did not have any instrument of any kind or character to show the jury that the plans and specifications called for a brick wall on the south side. He had nothing to do with signing the lease.

Hon. Paul Carrington testified that he was a member of the law firm of Carring-ton, Johnson and Stephens and had practiced in Dallas since 1919 and that he represented Service Bureau in presenting their claim to Maryland under its performance bond.-

Vernon Koger, an adjuster with Maryland Casualty Company, testified that he worked on Maryland’s claim against R & L. On cross-examination he testified that during his investigation he did not see an agreement in writing specifying that the south wall was to be a brick wall. He never did see any plans or specifications that called for a brick wall on the south side. The principal object of his investigation was to find out for his company whether it should recognize the claim of Service Bureau, and determine whether it would be advisable for his company to settle. He was asked the following question: “Now, in order to give your company some advice as a result of your investigation, you would want to see whether or not there was a contract that obligated the putting up of a brick wall or waterproofing a wall or imbedding this electrical wiring in the concrete, wouldn’t you ?” And he answered, “Yes, sir.” “You didn’t do that, though, did you?” and he answered, “I do not recall if I did, or not.”

J. E. Hall, Jr., claims division manager for Maryland in the Dallas area, testified that it was doubtful whether he could collect the $4,000.00 paid Service Bureau Corporation from Mr. Ross and Mr. Levy, because they told him they were broke. He testified: “I don’t see why I have to consider getting into a lawsuit which is going to cost several thousand dollars more to defend when I was having no cooperation from them is something.”

Mr. Cerf Ross, one of the appellees, testified that he was a licensed architect; that plaintiff’s Exhibit No. 9 was a blueprint, only a check set of prints and not signed. He then introduced defendants’ Exhibits 2 and 3, which were two pages of blueprints he described as a contract set of blueprints which showed the floor plans, the basement plan and the first and second floor plan, as well as the mechanical, the wall sections and the stairway sections. These two sheets of blueprints constituted the contract set that were initialed by J. S. Karlton, the representative of Service Bureau. Maryland objected to these prints as follows: “If Your Honor please, we are going to object to the introduction of Defendants’ Exhibits 2 and 3 for the reason that the issue is not what the actual plans show; the issue is the good faith of Maryland Casualty in making payment; until such time it is shown that these were in fact called to the attention of Maryland Casualty Company, at the time the negotiations were going on, it would be hearsay, they would be completely irrelevant and immaterial to any issue before this Court.” Service Bureau occupied about 60 percent of the building and he occupied about 28 or 30 percent and another firm occupied about 10 percent of the building. He was handed plaintiff’s Exhibit No. 4 which was a letter from Mr. Bostick to Cerf Ross Associates dated December 18th, 1957, in which letter Mr. Bos-tick in behalf of Service Bureau Corporation accepted the premises subject to 8 exceptions. He complied with all of the 8 requirements described in the letter. There is nothing in the letter requiring a brick wall on the south. He explained to Mr. Hall, claims manager for Maryland, that he had complied with all of Service Bureau’s requirements. He had several conversations with Mr. Hall and on one occasion Hall informed him there was great pressure on him to settle this claim and that Maryland had been threatened with a law suit and “The fact they were doing business with IBM and SBC, and that they just had to make a settlement of this thing, and I took the position that I didn’t feel that there was anything to settle; they were tenants, we did everything they asked us to do, and I felt no further obligation to them.” That Mr. Karlton told him in his letter of January 21, 1958, being defendants’ Exhibit No. 1, that it would not be necessary to install the brick wall; that as a result of this building deal he was forced into bankruptcy but did not list this claim in the bankruptcy proceedings. Service Bureau moved into the building in December ’57. The prints introduced by R & L and initialed by Ross and Mr. Karlton do not indicate that there was to be a brick wall. On this job he was the architect, contractor and owner of the building. He actually completed and did all the things that were demanded of him in Mr. Bostick’s letter of December 18, 1957, and a lot more. Mr. Ross further testified that the parties did not enter into a formal written contract for the construction of this building. No formal specifications were drawn. The lease was executed on June 28, 1957, which was approximately two months before any plans were submitted for approval.

In view of the jury’s finding that Maryland did not act in good faith, the burden is upon Maryland to show that the record conclusively demonstrates that it acted in good faith. We have concluded that the testimony set forth above, constitutes some evidence of probative force to support the jury’s finding that Maryland did not act in good faith.

In answer to a special issue the jury found that Service Bureau intended to waive any right it asserted to have the south wall bricked. Maryland contends there was no evidence or insufficient evidence to sustain such a finding and as a matter of law such finding was not binding on it. We have concluded that the only issue in this case is whether Maryland corn-promised the claim in good faith. We have also concluded that the appellant has not shown that the submission of the issue on waiver was 'reasonably calculated to cause, and probably did cause, the rendition of an improper judgment. Rule 434 T.R.C.P.

We have examined and considered all the evidence and conclude that the findings of the jury are not against the great weight and preponderance of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

We have considered all of appellant’s points and find no merit in them. They are overruled.

The judgment is affirmed.


author: GRISSOM, Chief Justice.

text:
    D. T. FRIDDELL, Appellant, v. Frederick I. MASSENGILL, Jr., Appellee.
    No. 3810.
    Court of Civil Appeals of Texas. Eastland.
    May 10, 1963.
    Rehearing Denied May 31, 1963.

      W. H. Frank Barnes, Terrell, W. Newton Barnes, Dallas, Jack Morgan, Kaufman, for appellant.
    Wynne & Wynne, Wills Point, for ap-pellee.
   GRISSOM, Chief Justice.

Dr. D. T. Friddell sued Frederick I. Mas-sengill, Jr., to recover $42,400.00, which plaintiff alleged the defendant unlawfully obtained from him in the following manner : that in April 1961, Friddell signed his name to a blank check form of The Terrell State Bank and wrote therein the figures 42,400’.00; that this instrument was kept by Massengill until May 28, 1962, when he wrongfully and fraudulently dated said instrument May 28, 1962, wrote therein the name of The Terrell State Bank as payee, wrote Forty Two Thousand Four Hundred on the line before the word “dollars” printed on said form, for the purpose of making said instrument appear to be a check drawn by plaintiff on said bank, all of which was done without plaintiff’s knowledge or consent and without authority ; and, about 7:00 a. m. on May 28, 1962, defendant took said purported check and, with additional funds, purchased from said bank two Cashier’s checks for $25,000.00 each. Plaintiff alleged that said instrument was not intended as a check; that it was without consideration; that it was never intended to be used as a check to withdraw funds from his bank account; that defendant knew it was not a check and he had no right to convert it into an apparent check and to withdraw said money from his account; that defendant, after holding said instrument about a year, wrongfully and unlawfully filled in said instrument so that it appeared to be a check and used it to take said amount of money from plaintiff’s account; that upon learning thereof plaintiff demanded the return of said $42,400.00, which defendant refused. Massengill answered that plaintiff gave him a check on said bank for $42,400.00 in partial payment of losses in a poker game and that the entire transaction sued upon had its inception in, was based upon and concluded in a gambling transaction and that the court should not take cognizance thereof, but should leave the parties where it found them. Plaintiff filed a supplemental petition denying said allegations and alleging that plaintiff never delivered such a check to the defendant for any purpose; that the instrument was not delivered with the intention that it should be completed as a check or become a negotiable instrument.

In answer to defendant’s request for admissions Friddell denied that the transaction made the basis of his suit arose out of a poker game. He said the suit arose out of the fraudulent alteration by defendant of a blank form of a check signed by plaintiff so as to make it appear to he a valid check on plaintiff’s account. Plaintiff denied that the instrument was given in payment of gambling losses and swore that the writing was executed only as a memorandum of his standing in a continuing poker game. He denied under oath that there was delivery of a check. He testified in effect that, in accord with a custom between defendant and plaintiff and their companions, he put said instrument in a poker game as evidence of his then standing in a continuing game; that they were in the habit of thus keeping a record of their standing and that defendant had no right, nearly a year thereafter, to fill in the memorandum and make it appear to be a check on his bank account. The court sustained the defendant’s motion for a summary judgment and rendered judgment that plaintiff take nothing. Plaintiff has appealed.

Appellant’s first point is that the court erred in sustaining appellee’s motion for judgment and in summarily rendering judgment that he take nothing. Appellant contends that his verified petition shows an action based on the wrongful and fraudulent acts of appellee in converting such a memorandum into what purported to be a check on his account and cashing it, thereby wrongfully acquiring $42,400.00 of appellant’s money. Appellant says in substance that his pleadings and evidence, at least, raise issues of fact; that it is a fact question whether said memorandum was intended as a check and was delivered as such in payment of gambling losses or whether it was signed and delivered only as a memorandum of appellant’s standing in a poker game.

In Pattison v. Highway Insurance Underwriters, Tex.Civ.App., 292 S.W.2d 694 (Writ Ref.), the court said:

“Where briefs * * * on appeal from summary judgment for defendants disclosed no theory of fact or of law under which it conclusively appeared that plaintiffs could not make a case to go to the jury, plaintiffs were entitled to trial of the case and summary judgment would have to be reversed.”

In Smith v. Bolin, 153 Tex. 486, 271 S.W.2d 93, our Supreme Court held that in determining whether material issues of fact were raised the court was required to view the evidence in the light most favorable to the one against whom a summary judgment had been rendered, to disregard conflicts in the testimony and to indulge, in favor of the loser, every intendment reasonably deducible from the evidence. In said case the holding in Gulbenkian v. Penn (Sup.Ct), 151 Tex. 412, 252 S.W.2d 929, was reiterated, that if a motion for summary judgment involved the credibility of affiants, the weight of the showing, or a mere ground of inference, the motion should be denied.

Viewing the entire record in accord with such rules, we are compelled to conclude there was an issue of fact as to whether the instrument, by which appellee obtained $42,400.00 from appellant’s bank account, was executed and delivered only as a memorandum of appellant’s standing in a poker game and not intended as a check. 32 Tex.Jur. 662. There was evidence that a memorandum of a party’s standing was sometimes kept in the manner disclosed by appellant’s testimony, or by merely noting same on an envelope kept at the place where the parties usually played. All the evidence came from interested witnesses. See Valley Stockyard Company v. Kinsel, 6 Supreme Court Journal 343 and Box v. Bates (Tex.Sup.Ct.), 346 S.W.2d 317. It is undisputed that appellee did nothing with the instrument for almost a year after he acquired possession. Ordinarily a person having possession of an instrument intended as a check for that much money would not wait long before cashing it. Appellant’s asserted cause of action is not conclusively shown to have arisen out of and as a part of a gambling transaction. Under appellant’s contention the gambling transaction is only explanatory of the alleged fraudulent change of such a memorandum into a purported check on appellant’s bank account. Hall v. Edwards (Tex.Com.App.), 222 S.W. 167; Finley v. Stripling, Tex.Civ.App., 15 S.W.2d 711; Heidenheimer v. Beer, Tex.Civ.App., 155 S.W. 352.

The judgment is reversed and the cause is remanded.


author: PHILLIPS, Justice.

text:
    HOUSTON PIPELINE COMPANY et al., Appellants, v. Martha YBANEZ et vir, Appellees.
    No. 11081.
    Court of Civil Appeals of Texas. Austin.
    May 1, 1963.
    Rehearing Denied May 22, 1963.
    Perkins, Floyd, Davis & Oden, Lawrence H. Warburton, Jr., Alice, Groce & Hebdon, Thomas H. Sharp, Jr., San Antonio, for appellants.
    Harry J. Schulz, Three Rivers, W. L. Hardwick, George West, for appellees.
   PHILLIPS, Justice.

This case is before us on a plea of privilege arising out of a suit for damages wherein the appellees and plaintiffs below, Martha Ybanez, joined by her husband, brought suit against the Houston Pipeline Company, Houston Natural Gas Corporation and a contractor Sheppard-Geiger Construction Company, appellants in this court, alleging a personal injury sustained by Mrs. Ybanez when she fell on a right-of-way easement owned by appellant Houston Pipeline Company in Live Oak County.

Sheppard-Geiger Construction Company had constructed a pipeline on the easement and had completed it approximately sixteen months prior to the date of the alleged accident. Each of the three defendants filed pleas of privilege which were controverted by appellees.

Each of the appellants are private corporations with offices in Houston, Harris County, Texas, and in Corpus Christi, Nueces County, Texas. None of the appellants have an agent or place of business in Live Oak County, Texas.

All appellants filed pleas of privilege under Art. 1995, Vernon’s Ann.Civ.St. to transfer the cause of action to the place of their residence, however the appellants, Houston Pipeline Company and Houston Natural Gas Corporation, have additionally requested that the entire proceeding be transferred to Nueces County, Texas.

Appellees controverted the pleas claiming venue under section 9a, Article 1995, in that there were alleged acts of negligence on the part of the defendants. Appellees also plead exceptions 23 and 29a to Article 1995.

The trial court, after hearing evidence, overruled the pleas of privilege and retained venue in Live Oak County, Texas.

We hold that the action of the trial court was correct.

Appellees filed their petition on July 10, 1962. Appellants Houston Natural Gas Corporation and Houston Pipeline Company were subsequently served with citation and filed general denials in the case on July 27, 1962. Thereafter, on July 31, 1962, these two appellants made an attempt to withdraw the general denials; however the District Clerk had already filed them. Thereafter on July 31, 1962, these appellants filed their pleas of privilege.

Appellees maintain that appellants Houston Natural Gas Company and Houston Pipeline Company waived their pleas of privilege by filing pleas to the merits and the trial court so held. Leyendecker v. Harlow, Tex.Civ.App., 189 S.W.2d 706, writ ref. w. o. m., Reed v. Garlington, Tex.Civ.App., 233 S.W.2d 185, no writ history, 1 McDonald, Texas Civil Practice, Sec. 4.40.

Appellees maintain that venue lies in Live Oak County as against the appellant Sheppard-Geiger Construction Company under Sections 9a, 23 and 29a of Article 1995, V.A.C.S.

Under Section 9a of Article 1995, appellees may maintain their suit in Live Oak County against appellants by showing by a preponderance of the evidence that the alleged acts of negligence occurred there; that such act or omission was that of the defendant, in person, or that of his servant, agent or representative acting within the scope of his employment; that such negligence was a proximate cause of ap-pellee Martha Ybanez’s injuries.

In August of 1960, appellee, Mrs. Ybanez, was proceeding from her yard in a residential section of town to her brother’s yard which was adjoining. These lots are in the Reyes Subdivision, a residential area within the corporate limits of George West, Texas. In going from her yard to her brother’s she had to cross the pipeline easement owned by appellant Houston Pipeline Company. When appellee, Mrs. Ybanez, stepped on the earth covering the pipeline, one of her legs sank into the ground over the ditch and the other leg was doubled back under her. She was pregnant at the time and weighed two hundred and fifteen pounds. Her descent into the hole was stopped when her stomach came to rest at the edge of the hole that was made by her leg.

Appellee, Mrs. Ybanez, stated that the ground where she walked gave the appearance of being safe, and that there was nothing to cause her to think that there might be danger of the ground giving way.

This fall caused the injuries for which appellee, Mrs. Ybanez, is bringing this action.

Mr. Homer Brown, District Foreman of the Houston Pipeline Company, called as an adverse witness, testified his company owns the pipeline that crossed the property where appellee fell, and that the line was built in the spring of 1959. He further testified that Houston Natural Gas Company owns and controls Houston Pipeline Company, that their officers are the same persons, and that the Gas Company owns the gas transported through the line.

Appellees also called as an adverse witness, J. U. Sheppard, Jr., president of Sheppard-Geiger Construction Company, who testified that his company had built the pipeline in question, that Houston Pipeline Company furnished the right-of-way, the easement, the pipe, valves and fittings, and that his company furnished the labor, dug the ditch, added the pipe and did the back filling; that it was the duty of his company to back fill the ditch which they did by using back fillers to pull the dirt into the ditch until it was approximately level and then “walk” the area with tractors and maintainers. He stated that it was the duty of his company to fill and compact the ditch so that no one would fall into it and also fill it and compact it so that it would not cave in when someone stepped on it. He further stated that if the ditch had been properly back filled and compacted it would not normally cave in when a person stepped on it. Sheppard also admitted that a ditch can be filled in properly so that the weight of a person would not cause it to cave in. He also testified that pipeline specifications are different from sewer line specifications and that it would be too expensive to spend money “tamping and stuff like they do in sewers out here in the streets” and.that “the reason they tamp around sewer lines is that sewer lines are usually laid in cities where people are apt to walk across the lines.” He further stated that if this pipeline had been tamped in this area and filled in like a sewer line it would have been less likely to cave in.

Mr. Sheppard, who testified he spent a lifetime building pipelines, stated that after pipelines had been constructed and turned over to the pipeline company for use, such pipelines require maintenance and inspection to see if there are any holes or if there are any weak spots; to see that they are properly taken care of; that a trained pipeline man could spot weak areas likely to cave in that would look normal to the average person. Mr. Sheppard stated that it was the general practice for companies to inspect their pipelines, especially the first two or three years after they are laid in and, that normally, after the construction company turns the line over to the pipeline company it is the duty of the pipeline company to check for weak spots and defects; that as a rule it is a matter of common practice for pipeline companies to regularly inspect and patrol pipelines that are built; that such is the custom among pipeline companies; that this need for inspection is especially important the first two or three years after the line is built.

Appellees contend that the evidence discloses that the area that caved in under ap-pellee was caused by an improperly filled ditch made soft by rains which could have been detected and corrected had the pipeline been properly inspected and maintained.

Appellants contend that the hole complained of was caused by heavy rains in the vicinity and that there was no testimony of any negligent or incorrect methods used by appellant construction company in their work on the ditch.

In her petition appellee alleges the following acts of negligence:

“1. In failing to properly compact the earth surface around the pipeline to avoid the plaintiff’s (appellee) falling into the ditch as described above.
“2. In failing to take proper precautions to insure that plaintiff would not fall into the ditch. * * *
“3. In failing to erect or give proper warnings in order that plaintiff would have been aware of the danger that existed.
“4. In allowing a dangerous condition to exist in a heavily populated area.
“5. In failing to properly maintain such pipeline right-of-way in a safe manner.”

The petition alleges that the above-mentioned acts of negligence are the proximate cause of the injuries sustained by the appellee, Martha Ybanez.

Appellees have alleged that the appellant construction company failed to properly compact the earth around the pipeline. There is evidence the appellee Martha Ybanez’s leg sank to her hip into the soft earth and that she sustained injury. The testimony of the president of the construction company was to the effect that if the ditch is properly filled a person should be able to step on it without sinking. The pipeline company had the duty of packing the earth in the ditch so that a person could walk safely thereon.

In Texas Pipe Line Company v. Vaught, Tex.Civ.App., 294 S.W. 865, writ dismissed, the plaintiff alleged that he was injured by reason of the defendant’s negligence in not properly restoring the dirt taken from the ditch where the pipe was laid; that the ditch was not properly filled in; that the dirt was loose and did not afford a safe and firm passage for crossing over the ditch. The evidence disclosed that the point of the plaintiff’s plow after the front foot of one of his horses had gone down in the soft earth, hit the solid ground on the other side of the ditch and jerked and jarred the plow, and caused plaintiff to fall from the plow. The jury found that the pipeline company was guilty of negligence in the way and manner of filling the ditch where the injury occurred. The other elements necessary to sustain a judgment for the plaintiff were found and the trial court rendered judgment thereon.

The Court of Civil Appeals reversed the judgment due to the exclusion of testimony that the defendant had used methods in filling the ditch used by those engaged in that character work. The court held that it was a question of fact for the jury whether the dirt from the ditch constructed over the land was properly restored and the ditch properly filled.

We hold that under the Vaught case, ap-pellees have raised fact issues in respect to negligence that should go to the jury.

In view of the fact that appellees have brought their case under exception 9a, Article 1995, it will not be necessary to discuss the other exceptions pleaded.

Appellees have urged the fact that there were heavy rains in the vicinity just before the accident occurred. This would have no bearing on our holding at this stage of the proceedings but would present a possible fact situation to be considered at the trial on the merits. See Secs. 28 and 20, 40 Tex.Jur.2d and the cases cited.

Inasmuch as the appellants Gas Company and Houston Pipeline Company have submitted to the jurisdiction of the District Court in Live Oak County, their pleas of privilege are not in the due order of pleading they come too late and they are waived. The judgment of the Trial Court is affirmed.

Affirmed.


text:
    CITY OF CORPUS CHRISTI, Appellant, v. SOUTHERN COMMUNITY GAS COMPANY, a Corporation, Appellee.
    No. 14083.
    Court of Civil Appeals of Texas. San Antonio.
    May 8, 1963.
    Rehearing Denied June 5, 1963.

      I. M. Singer, City Atty., W. D. Pilcher, Asst. City Atty., Corpus Christi, for appellant.
    Lewright, Dyer & Redford, Corpus Christi, Sears & Burns, Houston, for ap-pellee.
   BARROW, Justice.

This is an appeal by the City of Corpus Christi from a summary judgment granted Southern Community Gas Company. The case involves a construction of Chapter 470, Acts 52nd Legislature, 1951, now Article 1436b, Vernon’s Ann.Civ.Stats.

In October, 1954, the City annexed an area which included a portion of appellee’s gas distribution system. On February 2, 1955, City passed an ordinance which granted a five-year franchise to appellee and provided as part consideration for the granting of this franchise, that appellee should pay to City two per cent of its annual gross receipts from the sale of gas in the annexed area. This ordinance was to be effective upon the written acceptance of appellee. Appellee refused to accept the terms of this ordinance, although it did pay two per cent of its annual gross receipts for the year 1955. Appellee’s president advised City on several occasions that appellee was in a refinancing program, and if City would not then file suit, appellee would not contest the rental fee. Appellee made no further payments and on February 7, 1961, City filed suit to recover reasonable compensation for rental of its streets and alleys for the years 1956 to 1961, which it alleged was two per cent of appellee’s annual gross receipts'.

Appellee filed motion for summary judgment in which it asserted that by virtue of the provisions of Art. 1436b, appellee had the legal right to operate its gas distribution system in the annexed area without payment to the City of any street rental charge. Appellee further asserted that the pleadings, the affidavits, and depositions show that there is no genuine issue of material fact, and that appellee, as a matter of law, was entitled to entry of summary judgment. The summary judgment was based upon the pleadings and affidavits of appellee’s president, the City’s gas superintendent, and an assistant City Attorney. It was stipulated that the City has never passed an ordinance providing for any payment by appellee other than the one not accepted by it. The City asserts that a fact issue is raised on implied contract to pay a reasonable sum for rental of the streets, because of the conduct of appellee in accepting the benefits of use of the City streets and public ways after promising to pay City. The trial court granted appellee’s motion and entered a take-nothing judgment.

Appellant is a home rule City. The parties agree that the State, through the Legislature, has primary and plenary power to regulate public roads and streets; that the State may delegate that power to cities and, with certain exceptions, has delegated the power to prohibit their use without the consent of the City. It is further agreed that the power of the State to control public roads and streets, being primary and plenary, the Legislature may revoke or modify the power delegated to the City. State v. City of Austin, 160 Tex. 348, 331 S.W.2d 737. Art. 11.03, Title 122-A, Vernon’s Ann.Civ.Stats., recognizes the City’s right to levy a street rental fee against public utilities of not to exceed two per cent of gross revenues for the utilities’ use of the public streets and ways. Appellee asserts that the Legislature by enacting Art. 1436b, supra, revoked or modified the City’s power to make a charge for the use of its streets, alleys, and public ways under the terms of this Act. The City first asserts that Art. 1436b has no application to the area in question which was “annexed” as distinguished from an area becoming an “incorporated city or town.”

Sec. 2 of Art. 1436b provides: “If after the effective date of this Act an unincorporated area becomes incorporated, any person, firm or corporation or incorporated city or town which, at the date of such incorporation, has pipes, mains, conductors or other facilities within such area so incorporated, may continue to exercise the rights conferred by Section 1 hereof for ten (10) years after the date of such incorporation without consent but subject to the direction of the governing body.”

The key words involved in City’s first point are: “an unincorporated area becomes incorporated.” It is a settled rule of statutory construction that it is proper to look at all parts of the legislative act to ascertain its proper construction and meaning, and thereby determine the legislative intent. In applying this rule, the courts will not look to any one phrase, clause or sentence but to the entire act. This includes the caption, the body of the act and the emergency clause. Trawalter v. Schaefer, 142 Tex. 521, 179 S.W.2d 765.

The caption of this Act provides in part that it is an Act to facilitate and encourage the distribution of gas to the inhabitants of cities, towns, villages and rural areas. Sec. 1 provides in part that a gas company distributing gas for public consumption in an incorporated city or town shall have the power to lay its lines over public streets and public ways only with the consent and subject to the direction of the governing body. Such company “shall notify the State Highway Commission or the Commissioners Court having jurisdiction, * * * when it proposes to lay any such pipes, mains, conductors and other fixtures for conducting gas within the right-of-way of any state highway or county road outside the limits of an incorporated city or incorporated town, whereupon the Highway Commission or the Commissioners Court, if it so desires may designate the place upon the right-of-way where the same shall be laid.” The emergency clause of the Act provides in part that the fact that in many rural and urban areas the growth and spread of population is rapid; the fact that the furnishing of a gas supply substantially contributes to the growth and expansion of such areas; and a clarification of the gas company’s right to lay lines in public streets and ways will encourage the furnishing of an adequate gas supply by private corporations and contribute to the growth of rural and urban areas.

It seems clear that the Legislature in providing for “rural areas” was thinking of areas other than those of “unincorporated cities and towns” provided for in Art. 1436a, which was enacted in 1949 and gives some of the same rights to electric companies as 1436b gives to gas companies. It is our opinion that an unincorporated area can become incorporated by original incorporation proceedings or by annexation to an incorporated city. To give full meaning and purpose to Art. 1436b, the Act must apply if the area becomes incorporated by annexation as well as original incorporation proceedings. We overrule City’s first point.

Appellant asserts that the trial court erred in granting the summary judgment because there was no showing that appellee had complied with the requirements of Sec. 1, Art. 1436b, before annexation. It is seen that this section gives a gas utility company the power to use public highways and ways, if outside the corporate limits of an incorporated city or town. If within the corporate limits, the right is dependent upon the consent of the governing body of the city or town. Outside of an incorporated city or town, the utility is charged with the duty of notifying the State Highway Commission or the Commissioners Court having jurisdiction, and that body, if it so desires, may designate the place on the right-of-way where the pipes, etc., shall be laid. Thus consent of the Highway Commission or Commissioners Court is not required under this section. We overrule this point.

The City contends that even if this Article gives the appellee the right to maintain its pipes, etc., for a period of ten years from annexation, the City is still entitled to receive a street rental charge. Sec. 2 of Art. 1436b provides, substantially, that the gas company which has facilities within the incorporated area may continue to exercise the rights conferred by Sec. 1, “for ten (10) years after the date of such incorporation without consent but subject to the direction of the governing body.” Appellee does not question the power of the City to levy and collect ad valorem taxes, to regulate rates and to exercise police power over appellee’s lines. It is seen that although Art. 1436b gives appellee the right to maintain and operate its lines for ten years after said area was annexed by the City, the City retained its police power over said lines and the right to regulate and control them. The City was authorized to make reasonable charge for the expense of this control and regulation. City of Garland, v. Texas Power & Light Co., Tex.Civ.App., 342 S.W.2d 816; Reed v. City of Waco, Tex.Civ.App., 223 S.W.2d 247; Booth v. City of Dallas, Tex.Civ.App., 179 S.W. 301; Southwestern Telegraph & Telephone Co. v. City of Dallas, Tex.Civ.App., 174 S.W. 636.

The question presented in this appeal, however, is the City’s right to make a street rental charge, as distinguished from a regulatory fee. It is now settled that a city has the authority, where authorized by its own charter, to make a street rental charge as consideration for granting a franchise. Fleming v. Houston Lighting & Power Co., 135 Tex. 463, 138 S.W.2d 520, reh. den. 135 Tex. 463, 143 S.W.2d 923; West Texas Utilities Co. v. City of Baird, Tex.Civ.App., 286 S.W.2d 185; McQuillin, Municipal Corporations, § 34.37. A franchise is not required of the City where a gas company is using the public streets and public ways under authority of Art. 1436b. This statute is very similar in its powers given, to Art. 1436a, insofar as consent is concerned, and the application and purpose of Art. 1436a were fully discussed by the Supreme Court in. City of Mason v. West Tex. Utilities Co., 150 Tex. 18, 237 S.W.2d 273.

In that case the Utilities Company was granted a fifty-year franchise in 1925, by the Commissioners Court of Mason County, to operate and maintain its electric lines on the streets and public ways of unincorporated towns. The City of Mason was incorporated in 1945 and thereafter filed suit for mandatory injunction to compel the Utilities Company to remove its property from the public streets and alleys of the City. In upholding the Utilities Company’s right to maintain its lines in the City, without the City’s consent, for a period of ten years from the City’s incorporation, the Supreme Court said :

“The clear purpose for the enactment of the law was to permit the company involved in this case and other companies similarly situated to operate their lines in such unincorporated towns for a period of ten years from and after the dates of their incorporation ; this privilege materially reducing the losses to be sustained.”

Since consent of the City of Corpus Christi was not required under the provisions of Art. 1436b, it was not necessary for appellee to secttre a franchise from the City, and it necessarily follows that City would not be authorized to make a street rental charge for this consent. If the Legislature so desired, it could have permitted cities to make such a street rental charge, as was done in enacting Art. 1436a. It did not do so and thus revoked or modified the City’s right to charge a street rental fee.

The City also asserts that if this statute took away its right to collect a street rental fee that the Act is unconstitutional. Since the Legislature acting for the State has primary and plenary power to control and regulate public roads and streets, we are of the opinion that this Act is not unconstitutional. City of Mason v. West Texas Utilities Co., supra; State v. City of Austin, supra; Huffaker v. Lea County Electric Cooperative, Inc., Tex.Civ.App., 344 S.W.2d 915.

The judgment of the trial court is affirmed.


text:
    Mabel Theo STREETY, Appellant, v. Eugene V. CHAMBERS et al., Appellees.
    No. 3789.
    Court of Civil Appeals of Texas. Eastland.
    May 3, 1963.
    Rehearing Denied May 31, 1963.
    Carter, Gallagher, Jones & Magee, Billy B. Joiner, Dallas, for appellant.
    Brundidge, Fountain, Elliott & Bateman, Dallas, for appellees.
   GRISSOM, Chief Justice.

The widow of Alvah James Streety sued Eugene V. and Hiram L. Chambers to recover damages resulting from the death of her husband caused by blasting rock on defendants’ premises. Burlison owns the 58 acre tract of land upon which the rock quarry is located. Burlison sold the rock, in place, to Dallas County and it contracted with the Chambers to blast and crush the rock. The Chambers entered on said premises in March, 1959, to conduct blasting operations. They completed that contract in July, 1959, and moved their equipment. They returned to the rock quarry on April 4, 1960, to conduct further blasting operations, moving their equipment back. On April 5th, the Chambers made the necessary preparation and detonated a blast at 4:45 P.M. The body of Mr. Streety was discovered on the rock pit floor, covered by rock, at 10:00 A.M., April 6th, by one of Chambers’ employees. A geologist’s hammer and leather pouch was by his body. On July 15, 1959, soon after the first blasting operation by the Chambers, an article appeared in a Dallas newspaper to the effect that fool’s gold had been blasted out of the ground at a rock pit near Cedar Hill. The deceased was a rock hound and collected fool’s gold and fossil rocks, as a hobby. He read that article and prior to the day of his death had visited the Burlison Rock Pit. Numerous fool’s gold collectors visited the pit after July 15, 1959. When defendants were blasting there in 1959, four signs were on the premises bearing the word “explosives” in white letters on a red background. The defendants did not post such signs on the premises when they returned on April 4, 1960. There was no evidence that defendants knew Streety was about the quarry, nor was there evidence that he was an invitee, or that defendants willfully, wantonly, or through gross negligence injured him. The jury found he was a trespasser. Appellant does not contend that this finding is without support in the evidence. It was undisputed that two persons searched the floor of the .rock quarry fifteen to twenty-five minutes before the fatal blast and that one of the defendants drove down the road north of the quarry a few minutes before the blast and found no people or automobiles in the area and that traffic on old highway 57 was blocked both south and north of the quarry until after the blast and that a few minutes before the detonation defendants’ employee looked into the pit and yelled, “Fire in the hole!”

The case was tried on the theory that (1) defendants owed a high degree of care to members of the public, but that (2) if deceased was a trespasser there was no liability. Defendants objected to the submission of issues based on the theory that defendants owed a “high” degree of care. A jury found that (1) Streety died as a result of the dynamite explosion; (2) that defendants, in the exercise of a “high” degree of care, should have known that some member of the public was likely to be within the danger area of the blast; (4 and 5) that the failure of the defendants to post signs warning of the blasting was a failure to use a “high” degree of care and a proximate cause of the death of Streety; (6 and 7) that defendants failed to keep a proper lookout and that such failure was a proximate cause of Streety’s death; (10 and 11) that deceased failed to keep a proper lookout but that such failure was not the proximate cause of his death; (13 and 14) that the failure of the deceased to make his presence known to defendants was negligence but not a proximate cause of his death.

In answer to issue 15, the jury found that deceased was a trespasser on defendants’ premises. Plaintiff objected to the submission of that issue upon the ground that Streety’s status as a trespasser was immaterial because defendants were engaged in the highly dangerous activity of blasting with dynamite and that an affirmative answer thereto would not .require a judgment for defendants. The court sustained defendants’ motion for judgment predicated upon the theory that the jury’s finding that deceased was a trespasser entitled them to judgment. Judgment was rendered for the Chambers and Mrs. Streety has appealed.

Appellant contends the court erred in overruling her motion for judgment on the verdict and in sustaining defendants’ motion because the finding that Streety was a trespasser was immaterial in a case tried upon the theory that a user of explosives is under a duty to exercise a “high” degree of care for protection of the public. Appellant says the general rule that the possessor of land owes a trespasser no duty other than to refrain from injuring him by intentional or wanton conduct is too well established to require citation of authority; that the inapplicability of that rule to cases involving the use of explosives is not so well known but that in such cases the trespasser status of the person killed is immaterial. Appellant says that the user of explosives owes a duty to the public to use a high degree of care to protect it from the negligent operation of such a highly dangerous activity and the fact that a member of the public is a trespasser on defendants’ premises does not affect defendants’ liability. .

Appellant relies principally upon the Supreme Court’s decision in Dezendorf Marble Company v. Gartman, 161 Tex. 535, 343 S.W.2d 441. She says that opinion is decisive of the proposition that a user of explosives is under a duty to exercise a “high” degree of care for the protection of the public and that the trespasser status of the person killed is immaterial. Appellant points out that in the Dezendorf case there was a specific finding that the defendant knew, or should have known, that “young children” were likely to be present on the premises. It cites decisions in railway cases to the effect that a user of dangerous instrumentalities is under a duty to exercise care for members of the public, without regard to the trespasser status of the injured person. The important question presented by appellant is whether, although Streety was an adult trespasser on appellees’ premises and his death did not result from their willful or wanton acts, or their gross negligence, they are, nevertheless, liable in damages for his death. As we understand the law, under such circumstances, there is no liability. In Burton Construction & Shipbuilding Company, Inc. v. Broussard, 154 Tex. 50, 273 S.W.2d 598, our Supreme Court, in a paint explosion case, held that where an adult plaintiff was a trespasser on defendant’s property the defendant owed him only the duty not to injure him willfully, wantonly, or through gross negligence. See also 65 C.J.S. Negligence § 24, p. 442; 40 Tex.Jur.2d 548-551; Texas-Louisiana Power Co. v. Webster, 127 Tex. 126, 91 S.W.2d 302 and Mendoza v. T. & P. R. Co., Tex.Civ.App., 70 S.W.2d 261, 10 A.L.R.2d 22; Murphy v. City of Rotan, Tex.Civ.App., 139 S.W.2d 134, 139, (Writ Dis., C.J.); Wimberly v. Gulf Prod. Co., Tex.Civ.App., 274 S.W. 986; 22 Am.Jur. 139-145; Corder v. Houston Lighting & Power Co., Tex.Civ.App., 38 S.W.2d 606, (Writ Ref.); Missouri, Pac. R. Co. v. Hance, Tex.Civ.App., 310 S.W.2d 374, 376, (Ref. N.R.E.); McGinty v. Texas Power & Light Co., Tex.Civ.App., 71 S.W. 2d 354, (Writ Ref.).

In Galveston Oil Company v. Morton, 70 Tex. 400, 7 S.W. 756, 758, it was stated in 1888 in an opinion adopted by the Supreme Court that

“The doctrine is established * * * that a trespasser * * * who is injured by any dangerous machine or contrivance on the land or premises of another cannot recover damages unless the contrivance is such that the owner may not lawfully erect or use, or when the injury is inflicted willfully, wantonly, or through the gross negligence of the owner or occupier of the premises.”

Citing the above case as authority our Supreme Court, in 1941, in Carlisle v. J. Weingarten, Inc., 137 Tex. 220, 152 S.W.2d 1073, 1074, said

“ * * * if plaintiff was on the premises merely as a licensee, the only duty that defendant owed her was not to injure her wilfully, wantonly, or through gross negligence.”

In Texas Cities Gas Company v. Dickens, 140 Tex. 433, 168 S.W.2d 208, 210, our Supreme Court said

“The rule that there is no duty to keep premises safe for trespassers or licensees is for the protection of the property owner. So long as he creates no nuisance, he is entitled to use his property as he sees fit. He is entitled to assume that his possession will not be disturbed by outsiders. It would be placing an unreasonable burden upon him to require that he keep his premises safe for strangers who come uninvited on his land for purposes of their own. Such persons must take the premises as they find them; and if they fall into an unsuspected danger, the loss is their own. Galveston Oil Co. v. Morton, 70 Tex. 400, 7 S.W. 756, 8 Am.St.Rep. 611; City of Greenville v. Pitts, 102 Tex. 1, 107 S.W. 50, 14 L.R.A.,N.S. 979, 132 Am.St.Rep. 843.”

Citing the Galveston Oil Co. v. Morton case, supra, and Fry v. Hillan, Tex.Civ.App., 37 S.W. 359 as authority the applicable, and, we think, correct rule is stated in 40 Tex.Jur.2d 551 as follows

“A trespasser or mere licensee who is injured by a dangerous machine or contrivance on the land or premises of another may recover damages only if the contrivance is one that the owner may not lawfully erect or use, or when the injury is inflicted wilfully, wantonly, or through the gross negligence of the owner or occupier of the premises.”

See also Restatement of the Law of Torts, Volume 2, Section 333, page 901—Section 337, page 917; 30B Tex.Jur., page 241-249; Houston & T. C. R. Co. v. Sympkins, 54 Tex. 615, 621; Wheeler v. Kallum, Tex.Civ.App., 68 S.W.2d 591 and Tex.Com.App., 101 S.W.2d 225; City of Greenville v. Pitts, 102 Tex. 1, 107 S.W. 50, 14 L.R.A.,N.S., 979.

All of appellant’s points have been considered. They are overruled. The judgment is affirmed.


author: GRISSOM, Chief Justice. GRISSOM, Chief Justice.

text:
    J. T. GERON, Appellant, v. CITY OF SWEETWATER et al., Appellees
    No. 3771.
    Court of Civil Appeals of Texas. Eastland.
    March 1, 1963.
    On Motion for Rehearing May 17, 1963.
    Second Motion for Rehearing Denied May 31, 1963.
    Mays, Leonard, Moore & Dickson, R. Temple Dickson, Sweetwater, for appellant.
    Nunn, Griggs & Beall, Charles R. Griggs, Sweetwater, for appellees.
   GRISSOM, Chief Justice.

In 1961 the City of Sweetwater enacted an ordinance which provided for the discharge of all employees when they reached the age of 65 years. Mr. Geron, a city policeman, reached that age and was discharged for that reason alone. He brought this suit against said City and its Chief of Police to compel the City to reinstate him and to recover his salary. The facts are undisputed. Both sides filed motions for summary judgment. The defendants’ motion was sustained and judgment was rendered for the defendants. Geron has appealed.

In 1948 the City adopted the provisions of the Firemen’s and Policemen’s Civil Service Act as provided for in Section 27(a) of Article 1269m. Geron was then a policeman in said City and by virtue of Article 1269m became a classified employee of the police department under civil service. Ger-on was removed in July, 1961, as an employee of the City solely because of the adoption of a policy by the City of discharging all employees over 65 years of age. No charge of violation of civil service rules was made. In Section 5 of Article 1269m there is a provision that the Civil Service Commission shall prescribe what will constitute cause for removal or suspension but that no such rule shall be valid unless it involves one of certain stated grounds. None of the listed permissible grounds for removal or suspension was charged against Geron. After his discharge Geron filed a petition with the local Civil Service Commission asking for reinstatement. It refused to consider his complaint. The permissible grounds for discharge do not include age.

Section 16 of Article 1269m provides that the Chief of Police shall have power to suspend indefinitely any employee under his jurisdiction for violation of the civil service rules, but that the Chief shall, within forty-eight hours, file a written statement with the Commission giving the reasons for such suspension and furnish a copy to the discharged employee. It provides that said order of suspension shall inform the discharged employee that he has ten days to file a written appeal with the Commission. It provides that the Commission shall hold a hearing and render a decision within thirty days. It further provides that no employee shall be discharged by the Commission except for violation of the civil service rules and then only upon a finding by the Commission of the truth of specific charges which have been filed against him. One of the declared purposes of the civil service statute is to secure to the employees of the police department permanent tenure of employment. Section 16a. Section 17 provides that a discharged policeman may appeal to the Commission by filing a statement denying the truth' of the charge against him or taking exception to the legal sufficiency of the charge and asking for a hearing by the Commission. Section 18 provides that in the event a policeman is dissatisfied with the decision of the Commission he may, within ten days after rendition of its decision, file a petition in the District Court asking that the order of suspension be set aside and that he be reinstated.

To dismiss appellant the City was required to charge him with one of the grounds for removal stated in the statute. The fact that Geron was past 65 years of age did not bring him within the reasons given in the civil service statutes for which he might be discharged. The City was also required to follow the procedure prescribed by the civil service law heretofore mentioned. It did not do so. We believe that the City was restricted to the provisions of that law and its procedures in discharging appellant. We think the appellant should have been ordered reinstated and that he should have recovered his salary.

As illustrative of our conclusion that the City was restricted to the reasons and procedure provided for in the civil service statutes in discharging appellant, we call attention to the very recent decision of our Supreme Court in Skates v. City of Paris, Tex., 363 S.W.2d 425. There, the City in discharging a policeman for incompetency attempted to follow the procedure provided by the civil service statute. The order of dismissal by the Commission did not show that it was based upon a finding by the Commission of the truth of specific charges filed against Skates. On appeal from the Commission’s decision the court sustained Skates’ motion for a summary judgment, ordered him reinstated and rendered judgment against the City for his salary during the period of his suspension. The Supreme Court upheld that judgment finding that Skates was illegally discharged because the decision of the Commission did not show that it was based upon a finding of the truth of the specific charges filed against the policeman as required by Section 16 of Article 1269m. It so held despite the fact that the Commission later filed findings of the truth of the specific charges filed against the policeman. In Bichsel v. Carver, 159 Tex. 393, 321 S.W.2d 284, the Chief of Police filed written charges against a policeman alleging that he had violated rules of the police department. Carver appealed to the Commission and excepted to the legal sufficiency of the charges. During a hearing before the Commission the City conceded that the charges were legally insufficient and requested permission to withdraw them stating that Carver would be reinstated. The request was granted. The next day the Chief again suspended Carver and served him with a second set of charges growing out of the same incident. The difference in the charges was that the second was that Carver had violated the civil service rules while the first was that he had violated the rules of the police department. Before a hearing on the second charge Carver obtained from the District Court an injunction restraining the Commission from holding the second hearing and a mandamus compelling his reinstatement. The Supreme Court held that mandamus was a proper remedy. It held that the controlling questions concerned the scope of the statutory power of the administrative agency and that those questions were judicial rather than administrative. It quoted the following from City of Sherman v. Arnold, 148 Tex. 516, 226 S.W.2d 620, 622, "The full performance of all conditions established by the civil service laws is an essential prerequisite to the jurisdiction of the removing body over the subject matter of the removal of an officer.” The court then said that since the charges were not legally brought under the civil service statute, the Chief of Police was not authorized to remove Carver on those charges and the Civil Service Board had no authority to uphold his suspension. It affirmed the judgment of the District Court compelling reinstatement of the policeman. In French v. Cook, 173 Cal. 126, 160 P. 411, 413, the court said “The party having a vested right in the performance of the act * * * has also the right to have his claim as to the facts judicially determined.” Our Supreme Court in Stauffer v. City of San Antonio, Tex.Civ.App., 344 S.W.2d 158, quoted the above statement of the law with approval. The Stauffer case was a suit against the City et al. to compel reinstatement of a fireman who had returned from a military leave of absence. The District Court ordered reinstatement and awarded him his back salary and the City appealed. The Court of Civil Appeals dismissed the case holding that under the civil service statute, which entitles firemen who return from a military leave of absence to reinstatement, if physically and mentally fit, but contains no language suggesting that the Commission is to decide the question of fitness, that the District Court has jurisdiction to decide whether the fireman is fit. The court said that since the power to hear and determine that question is not conferred by law upon some other tribunal, the District Court has jurisdiction to decide the same by virtue of Texas Constitution, Article V, Section 8, Vernon’s Ann.St. Mandamus lies to restore to office an incumbent removed without authority.

Full performance of all conditions required by civil service regulations is essential to jurisdiction of the removing body over dismissal of a municipal officer. The effect of adoption of the civil service statute is to establish standards of employment, rules for the discharge of policemen and to create permanence of tenure. Provisions of the civil service statute form a part of every contract of employment between the city and a policeman. No policeman may be dismissed without a finding by the Commission of the truth of the specific charges filed against him. 39 Tex.Jur. 495-510. See also City of Dallas et al. v. McDonald, (Sup.Ct), 98 S.W.2d 167, James v. Consolidated Steel Corporation, Tex.Civ.App., 195 S.W.2d 955, 960, 1 Tex.Jur. 677, 62 C.J.S. Municipal Corporations § 518, pp. 968, 969.

The judgment is reversed and the cause is remanded with directions to render judgment reinstating appellant and awarding him the amount of his salary during the period of his illegal suspension.

ON MOTION FOR HEARING.

GRISSOM, Chief Justice.

In appellees’ motion for rehearing they say that certain material issues were not determined and that no findings of fact thereon were made in the opinion wherein we .reversed the judgment and remanded the cause with directions to render judgment reinstating appellant and awarding him the amount of his salary during the period of his illegal suspension. Appellee asks the court to make the following findings:

“a. The employment of Appellant Geron, as a member of the Classified Service of the City of Sweetwater, was terminated September 30, 1961, (Tr. p. 18).
“b. On September 30, 1961, Appellant Geron had accumulated 77½ days of sick and injury leave of absence under the provisions of Section 26, Article 1269m, Revised Civil Statutes of Texas.
“c. On September 30, 1961, Appellant Geron received payment in a lump sum for his accumulated sick and injury leave of absence time in the amount of $1,064.08 minus $164.40 withholding tax.
“d. On September 30, 1961, the Appellant Geron accepted the lump sum payment of his accumulated sick and injury leave time and has not repaid the same to the City of Sweetwater; neither has he offered or tendered payment of the same to the City of Sweet-water. (Tr. p. 19-20)
“e. The only appeal made by Appellant Geron to the Civil Service Commission of the City of Sweetwater in connection with the subject matter of this appeal was by written petition filed' with such Civil Service Commission on January 18, 1962. (Tr. p. 20)”

All of said facts were admitted upon the trial except those requested under paragraph “d” and, being undisputed, there is no necessity for a finding thereon. We do not find the facts as requested in paragraph “d”. Instead, we find that at the time of Geron’s discharge by the City he was paid, and he retained, the amount of money stated in paragraph “c”.

Under Article 1269m he was not entitled to such payment until his employment was lawfully terminated. It has not been lawfully terminated. The City is entitled to a credit for said amount. To that extent the motion for rehearing is granted. Our former judgment is set aside. Judgment is now rendered reversing the judgment of the trial court and remanding the cause with directions to render judgment reinstating appellant and awarding him the amount of his salary during the time of his illegal suspension, less such credit to the City.