author: PHILLIPS, Justice. HUGHES, Justice

text:
    W. Dave JOHNSON, Appellant, v. C. N. AVERY, Jr., et al., Appellees.
    No. 11371.
    Court of Civil Appeals of Texas. Austin.
    March 16, 1966.
    Rehearing Denied March 30, 1966.

      Long, Aronson & Coleman, Tom Long, Moore & Johnson, Gerald G. Moore, Austin, for appellant.
    McKay & Avery, John J. McKay, Charlie D. Dye, Austin, for appellees.
   PHILLIPS, Justice.

This suit arises out of a conflict of jurisdiction between two district courts in a controversy involving the same subject matter.

Appellant, W. Dave Johnson, filed suit in the 53rd Judicial Court of Travis County, Texas, against one of the appellees, C. N. Avery, Jr., who had previously filed a suit concerning the identical subject matter against the appellant in the 126th Judicial District Court of Travis County, Texas.

Appellee, C. N. Avery, Jr., filed a plea in abatement in the second case asserting the pendency of the prior suit in the 126th District Court. In opposition to this plea, appellant asserted that appellee fraudulently induced appellant’s attorneys to delay the filing of appellant’s suit in order that appel-lee could file his first thus gaining the valuable right for himself of opening and closing the evidence and arguments at trial.

The 53rd District Court found that appellant’s attorneys had been fraudulently induced to delay the filing of appellant’s suit and accordingly denied appellee’s plea in abatement and ordered the parties to trial on the merits of the case.

Subsequent to the hearing on the plea in abatement and the order of the 53rd District Court, the 126th District Court, after a hearing lasting nine days, issued a temporary injunction enjoining appellant and his counsel from taking any further action in the 53rd District Court stating that the injunction was issued without prejudice to defendant and his attorneys to proceed in the cause and on appeals from the cause, “as permitted by law, the rules of procedure and evidence, and to litigate, defensively or affirmatively in this cause, such bona fide causes of action if any they have, as against plaintiffs, arising out of the controversy between the parties thereto.”

Appellant is here on appeal from the order of the court which granted the temporary injunction.

We affirm the judgment of the District Court and sustain its order granting a temporary injunction.

I.

The injunctive proceedings before us were supplementary or auxiliary to the main case filed June 14, 1965 by C. N. Avery, Jr. et al against appellant in the 126th District Court seeking (among other relief) a permanent injunction against appellant to enjoin him from continuing a course of harassment and threats against appellees described in appellees’ petition below as “vexatious, oppressive and ruinous litigation, all without foundation and solely to harass, annoy and wreck malice upon plaintiff Avery and his family. For these reasons injunc-tive relief herein will be sought under the protective and equitable powers of the Court which are here invoked.”

As we stated above, the court heard the phase of the case before us for nine days. The record is extensive and well developed for present purposes. We can only present a brief summary of the evidence here.

Appellant Johnson, his father before him, and his family, as of 1962, owned the controlling stock interest in a local company, Texas Quarries, Inc. This consisted approximately of 3,206 shares, or about 60% of the company.

Of the company’s 5,276 shares outstanding the other 40% of the stock was owned by some 26 stockholders. Of this group of minority stockholders, the appellees herein, C. N. Avery, C. N. Avery, Jr., Robert L. Phinney and wife, Thomas E. Nelson, Jr., and Lewis N. White owned approximately 650 shares; Avery, Jr. owned 35 shares. The largest shareholder of the Avery family group was T. E. Nelson who owned 330 shares.

Appellant was also the sole stockholder of another company, West Texas Stone Company. None of the other Texas Quarries’ stockholders owned any of its stock. None of the other stockholders in Texas Quarries were either directors of or officers of West Texas Stone, save appellant Johnson, and he, his wife, and one P. L. Brady, III were its directors. Both Texas Quarries and West Texas Stone were in similar businesses of quarrying limestone.

Appellant became president of Texas Quarries in 1953. Its directors in 1962 were appellant, Mr. C. H. Kasch, (deceased at time of trial of this case), Kenneth McCalla, C. N. Avery, Sr., and C. N. Avery Jr. C. N. Avery, Jr.’s, law firm were attorneys for Texas Quarries.

Unknown to the Averys, appellant, after becoming president of Texas Quarries in 1953, began a course of conduct whereby he caused checks to be drawn on that company payable to his wholly-owned company, West Texas Stone. By the year 1962 these withdrawals had accumulated to approximately $151,000.00.

To keep the books balanced, appellant had these withdrawals carried as “accounts receivable” on the books of Texas Quarries. On the books of his sole-owned West Texas Stone Company, he carried these sums as “paid in surplus.”

Appellant never reported this practice to the other directors but Directors Kasch and McCalla knew about appellant’s conduct concerning the funds of Texas Quarries, inasmuch as one of them was treasurer and the other manager of the company.

Under date of May 29, 1962, Kasch and McCalla wrote appellant a “personal and confidential” letter, which, among other things, expressed their concern for the affairs of the company; their concern for his use of the company assets for purposes foreign to its best interests, pointing out that he had obtained $150,000 cash advances for his West Texas Stone Company; that this latter company had use of Texas Quarries’ equipment valued at $40,000; that he charged to his personal drawing account over and above his salary, some $14,700; that West Texas Stone had sold Texas Quarries some of its bonds, and that he was depleting Texas Quarries’ assets at the rate of approximately $5,000 a month. He was reminded of his fiduciary duties as a director, and it was pointed out to him that the company was in such dire condition that it might not be able to recover therefrom, and that his handling of company affairs “is highly improper.” The Averys were not advised of this letter or of the situation.

Appellant also admitted that Texas Quarries banked at The American National Bank, and that he knew it was receiving financial statements from time to time which described these funds he had transferred to be “accounts receivable.”

In the letter of May 29, 1962, appellant was also informed by Kasch and McCalla that they were sure that if the bank knew of these acts, it would not extend additional credit and its notes would “very likely be called.” Nevertheless, appellant did not change his methods, and he admitted that he had never revealed to Avery, Jr. how he had handled the company’s funds.

Finally, in early September, 1962, Kasch and McCalla brought a copy of their letter of May 29th to appellee Avery, Jr., informing him of appellant’s mishandling of the Texas Quarries affairs and conferring with him as to what should be done. He informed these men that immediate action to stop these “advances” should be taken, and that The American National Bank should be immediately notified concerning the misrepresentations made to them in the company’s financial statements.

As of this time, Texas Quarries carried a $75,000.00 unsecured note with The American National Bank. The bank’s officers had, from time to time, discussed the financial condition of Texas Quarries with Avery, Jr., and he had given them his opinion that the company was a good risk. He also was aware that the bank had relied on the financial statements furnished it. Neither Johnson, his father before him, nor anyone else had ever informed Avery, Jr. of this transferring and appropriation of the company funds, and when Kasch and McCalla did reveal the situation to him, and asked his advice, they told him the company was in dire condition. They also told him the company had to have additional loans. Acting as attorney for the company and as a member of its board of directors, Avery’s advice was that they discuss this matter with the bank at once, and Kasch, McCalla and Avery having so agreed, did go to the bank and did discuss the situation with various bank officers.

The bank was displeased with this situation and the bank’s officers had various further discussions with Avery, Jr. The bank’s position was that if Johnson remained as president of the company the bank did not wish to do any further business with it and would refuse it further credit. Further, it was the position of the bank that Avery, Jr. was the only other person sufficiently familiar with the company’s affairs who would be acceptable to the bank as company management if the bank was to try to help pull the company through its bad condition and help get it straightened out. Furthermore, the bank made it clear to Avery that he was to inform the others of the bank’s views, and this he did.

The directors were also of the opinion that Johnson should make restitution for his misappropriation of the company funds, and give the company a West Texas Stone company note, guaranteed by him, and secured by 888 shares of Texas Quarries stock. Appellant Johnson presided at a directors’ meeting on September 6, 1962, where he agreed to do this.

Eventually, at the bank’s continued insistence, at a further directors’ meeting held November 13, 1962, Johnson resigned as president. Avery, Jr. was elected to that position, and Johnson was given a “leave of absence” with pay. As Avery explained, his family had known appellant and his family for years, that appellant’s aunt had married Mr. Avery, Sr., and no one had any desire to spread around or publicize the acts of Johnson or the condition of the company; that there was an understanding with Johnson about his taking a leave of absence and Avery’s taking over temporary management and that the minutes would so reflect; that a letter to the stockholders was accordingly prepared and so couched as to save Johnson from embarrassment. As reflected in said minutes of the November directors’ meeting, and as admitted by Johnson, it was understood that the bank held the 888 shares as trustee and could, if it desired, vote them.

Johnson could not pay this note, and a year later executed a renewal and extension, and finally, when he could not pay on the extended due date, agreed, in writing in 1964, that the 888 shares of stock should be turned over to Texas Quarries in partial satisfaction of his indebtedness to it.

Avery, Jr. employed a certified public accounting firm to audit the company books, and while he remained president retained said firm to currently audit the company books.

Avery, Jr. remained president from November, 1962 to August, 1964. Under his management Texas Quarries enjoyed a strong and rapid recovery. The bank loaned it sums aggregating $250,000 of which $125,000 was secured by a deed of trust on the company’s properties and the balance were demand notes. With these funds the company secured various large contracts and jobs and it enjoyed substantial prosperity. In fact, the statement of Mr. A. G. Adams, Vice President of The American National Bank, reflects the situation under Avery’s management.

“As a result of his taking over the management of that company, I can state that the company was afforded a line of credit not otherwise available to it, and from said financial statements as furnished by him during the 1963-1964 period the company steadily gained in strength and in stability so that by the middle of 1964 it was apparent that the company, under Mr. Avery’s general supervision, had so increased its worth that it would in a few months be able to retire all of its indebtedness to this bank when it had collected on its outstanding jobs. Furthermore I will state that during the last half of 1963 and throughout 1964 the company began to reduce its indebtedness to this bank and all of its debts to the bank were paid off in full by December, 1964.”

Accordingly, having done his job, Avery, Jr. offered to resign as president in August, 1964, and did resign. The management of the company was placed with Mr. McCalla. By this time the affairs of the company had been straightened out, it was in condition to retire its bank debts, and the bank, as expressed by Mr. A. C. Bull, Chairman of the Board of the bank, was willing for Avery, Jr. to “turn the reins of the company” to someone else.

The only remuneration to Avery, Jr. for his services was the sum of $500.00 per month as a salary for acting as president, and his law firm received an equal sum per month for legal services rendered. The only other thing of value which may be considered to have moved to the Averys after 1962 was the fact that the equity of the stockholders was naturally increased as the affairs of the company were strengthened, but this was a benefit all stockholders received. Furthermore, the control of the company still remained in the hands of Johnson’s family.

Mr. Johnson admitted that at no time since his removal as president of the company had his family or other substantial stockholders taken any action to re-elect him as president of the company.

As of August, 1964, when Avery, Jr. resigned as president of Texas Quarries, and since February, 1964, its directors were Avery, Jr., Kenneth McCalla, Jr., T. E. Nelson, Jr., Fletcher King and George Reed. The affairs of the company having been put in order, and its finances in excellent condition, appellant Johnson began the following course of conduct.

By letter of August 4, 1964, he wrote Texas Quarries, offering to sell it the stock of West Texas Stone Company for $150,-000.00. The financial statement attached to the offer showed that company to have a net loss of $251,873 for prior years, a 6 months, 1964, net loss of $17,420, and this taking into account the “paid in surplus” (source being the appropriated funds of Texas Quarries). In other words, the company was for all purposes defunct. The directors of Texas Quarries refused this offer. Furthermore, it was undisputed that even if Texas Quarries had wanted to accept this offer, appellant Johnson did not have the stock of West Texas Stone for sale, because it was pledged at the bank to secure certain bonds.

The above offer having been rejected, appellant Johnson next turned his attention to the Avery family, and wrote them a letter on August 28, 1964, containing a proposition to acquire the stock of various other persons at $50 a share, while he proposed to sell his own stock to them at $150 a share, the scheme being one to place “control” of the company in the hands of the Avery family. This offer was rejected.

Again, by letter of December 11, 1964, an offer was made to Texas Quarries to sell it various equipment of West Texas Stone, in which letter Johnson admitted that such equipment was subject to liens, including tax liens. Nothing came of this offer, Texas Quarries refusing to accept it.

Next, appellant caused his attorney to write the directors of Texas Quarries a letter dated March 4, 1965, complaining about the fact that no greater dividends had been made, and stating that “each of you is hereby put on notice” that if the company was required to pay accumulated earnings taxes, Mrs. Johnson and Mr. Owens will take whatever legal action is necessary “to hold each of you, personally, and on a joint and several basis, liable to the corporation for the total amount that the stockholders’ equity in the company is reduced as a result of the payment of such taxes.”

In behalf of appellant, his attorney also sent the Board of Directors another letter, March 9, 1965, enclosing an offer to sell Texas Quarries the West Texas Stone Company stock for $100,000. This offer included a proposition that Texas Quarries would release appellant from any liability. The letter of transmittal gave many reasons why this offer should be accepted, and concluded with these propositions:

(a) If the offer was not accepted, Johnson and West Texas Stone Co. had no alternative than to immediately take voluntary bankruptcy;

(b) If this was done, they would have a claim against Texas Quarries “for resci-sión and restitution” of 490 shares of stock transferred by Johnson to Texas Quarries December 28, 1964;

(c) West Texas Stone Company would have a claim against Texas Quarries for violation of the Texas and Federal Antitrust Laws;

(d) Texas Quarries should be aware of the fact that the Trustee would question the transfer of the 888 shares and the 490 shares of stoek of Texas Quarries. The letter further stated that these transfers “can be set aside, etc.”

These offers were not accepted.

Next, and before the trial below, an additional offer was made to Texas Quarries by appellant’s attorney’s letter of June 29, 1965. This offer was different in that the proposition was to sell to Texas Quarries the assets of West Texas Stone Company, and in event of its refusal, to sell to others. Counsel for appellant stated that he knew that the stock of West Texas Stone was held in trust to secure some bondholders.

Texas Quarries owns $7,200 worth of West Texas Stone Co. bonds, which are convertible into its stock and appellees contend that if this type of a transaction is carried out with third persons, it would injure Texas Quarries, and if Texas Quarries carried it out itself, it would result in injury to actual or potential stockholders other than Texas Quarries.

Before June 5, 1965, Johnson’s attorney had drafted a petition naming C. N. Avery, Jr., as the defendant and said attorney discussed this petition with members of the law firm he was associated with at that time. By June 6, 1965 he had resigned from that firm. He had likewise shown this petition to Mr. Kenneth McCalla and to Mr. Dudley McCalla, an Austin attorney, prior to June 9, 1965, and Avery was informed by June 9th that such a petition existed.

Appellant’s attorney called Avery, Jr., on June 10th, and arranged an appointment for June 11th. On June 11th, said attorney called at Avery’s offices and left a copy of this petition with him, telling him he would give him an opportunity to consider it and make a settlement. Said attorney describes his action as bringing the petition “as the initiation of an offer of compromise and settlement,” and that this was a “settlement conference” and admitted:

«Q * * *
Now, the only reason why you shouldn’t and wouldn’t file that lawsuit was that Mr. Avery or his family would pay your client a sum of money sufficient to satisfy you to prevent filing the suit; wasn’t that true?
A Yes, sir, that is exactly right.”

Appellant testified, concerning this procedure, that the petition was left with Mr. Avery to give “him the opportunity * * * to make an offer.” Appellant further testified that the reason the petition was taken to Mr. Avery was “To give Mr. Avery an opportunity to offer a compromise settlement out of Court.” He said he made it “clear” to Avery that the contact was “to explore settlement.”

Appellant’s attorney was warned by Mr. Robert McGinnis, a senior member of the law firm he had been associated with: “I told Mr. Moore that I felt that the allegations in this petition were of an extremely serious nature, that I felt that there would be a definite injury to the reputation of the defendant if this suit were filed, * * He also stated, “I further explained to Mr. Moore that I felt that Mr. Avery enjoyed a very good reputation in the City of Austin, that I felt that the filing of such a petition would constitute an actual injury to Mr. Avery, * * Also he was informed that a fraud suit was different, particularly when filed against a person of good character, and that such a petition “should not be lightly filed.” Of his law firm, Mr. McGinnis further said that he considered that appellant’s attorney “had very definitely the feeling that the firm would not sign the petition and would not file the lawsuit; ⅝ * * >9

Appellant’s attorney himself told Mr. Avery that the allegations in the petition were “extremely grave.”

Prior to filing such petition, said attorney was specifically warned by C. N. Avery, Jr.’s attorneys that based upon their personal knowledge there “wasn’t any truth whatsoever in the claims in said petition,” and specifically inquired whether said counsel had investigated the facts.

Not only is it considered that C. N. Avery, Jr. is an attorney of high repute in his profession, but his family has held offices of public trust. He himself is a former Assistant Attorney General, former president of the Austin School Board, former president of the Austin Lions Club, and former president of the Headliners Club, a trustee and treasurer of the Board of St. Edward’s University, president of the Development Board of that University, a trustee of St. Andrews School, member of the Board of Directors, American National Bank, and a retired Lt. Colonel in the Army.

Mr. A. C. Bull, called as a witness by appellant, testified on cross examination to the high character and reputation of ap-pellees, and when asked whether the filing of the suit of appellant against Mr. Avery, Jr. would injure the reputation of Mr. Avery and his family stated, “Why, certainly it would.”

Appellant’s petition filed in the 53rd District Court is filled with serious charges described by appellees as malicious and false charges of fraud. The allegations are each prefaced with legal conclusions sueh as charges of “bad faith,” “intent and design to deceive,” “fraudulent misrepresentations” and “concealments,” and with each, that the said Avery did “falsely and fraudulently, etc.” The factual charges against Mr. Avery are:

That he represented that the account with West Texas Stone Company was a valid and enforceable debt owned by one independent corporation to another, and that David Johnson was legally obligated to pay to Texas Quarries the sums heretofore set forth as having been taken by Johnson from Texas Quarries for his use in his wholly owned company.

That he prepared the note and collateral agreement, and advised Johnson that he was obligated to sign them and a renewal agreement thereon.

That he represented to the Board that the bank was displeased about the matter of the $151,-000 “accounts receivable,” reflected in the bank statements, .and would call its loans and not extend additional credit unless Johnson resigned as president and Avery, Jr. was elected president.

That Mr. Avery, orally, and by statements in the minute book, caused stockholders to believe that Johnson had been guilty of gross mismanagement and criminal acts.

That he, by drafting minutes, and by letters, caused stockholders to believe Johnson voluntarily executed the note and collateral agreement and resigned.

That he caused the stockholders to believe that he, Avery, was elected president at the demand and with the approval of the bank, and as a condition to further loans from the bank.

That he wrote a memorandum of law to the directors, causing them to believe it was impossible, etc. for a corporation to enter into a partnership agreement with another corporation.

That he caused stockholders to believe that Johnson had combined with others to hand over control of the company to its competitors.

That he caused the stockholders to believe his salary as president was $200 a month when it was $500.

That on February 11,1963, he transferred the 888 shares of stock to the bank without knowledge or approval of Johnson or the company.

That a drafting of new by-laws was illegal, etc.

That he caused the company’s 90-day notes at the bank to be changed to demand notes.

That he caused the company to mortgage its properties at the bank for a $125,000 loan.

A charge that Mr. Avery stood in a “fiduciary and confidential relationship” with Johnson, and was the latter’s “personal” attorney, hence Johnson relied on him, and had no way of knowing the above acts were false, etc.

This petition sought damages in excess of $700,000.00.

During the nine days that the court heard evidence in this case not a shred of evidence was produced to substantiate any of the allegations asserted by appellant in his petition. On the contrary, extensive testimony presented on behalf of appellees by officials of The American National Bank and others conclusively refuted these assertions. It would unduly lengthen this opinion to discuss this evidence in detail. It can best be summarized in the findings of the court:

“The defendant himself testified at length, and admitted that he, personally, had no knowledge that any of the acts set forth in his said petition were fraudulent or deceitful or false, and testified affirmatively that it was his attorney, Mr. Moore, who had the facts as to such acts constituting fraud, deceit, etc. The defense wholly failed to present to this Court any credible evidence of any kind or sort that any of such acts or conduct constituted a fraud or wrong of any sort committed by plaintiff C. N. Avery, Jr. To the contrary, the very great weight and preponderance of the evidence, and the overwhelming evidence was to the effect that none of said accusations contained in defendant’s petition were true, or had any basis in fact. The evidence was further clear and convincing to this Court that had the defendant, his attorney or authorized representative ever made inquiry of the bank’s loan officers or other officers having knowledge of the facts regarding its requirements, its position as regarded Mr. Johnson, and the demands upon and transactions with plaintiff Avery, the true facts would have been given them, including the demands of the bank as above alluded to, and the Court further finds that defendant’s attorney Mr. Moore knew that Mr. Adams, one of the vice presidents of said bank, had serviced the Texas Quarries’ accounts, and that its chairman of the board had information and the true facts, but at no time did said counsel make inquiry of any of said officers to the and beyond the time of presentation of his said draft of petition used as a basis to demand settlement of plaintiff Avery, Jr. This Court further finds that there was no reasonable excuse or reason given throughout this hearing for the failure of the defense to have first made some fair effort to cheek the truth of the various allegations made, and that the conduct of the defense throughout this hearing has demonstrated that the petition of the defendant Johnson (against filing and prosecution of which the equitable jurisdiction of this Court was previously invoked), was and is a vexatious petition, drawn to threaten and obtain money from plaintiff Avery, Jr., and his family, and to place him and the remaining plaintiffs under duress.”

The court also found that these two companies were entirely separate in entity, and plaintiffs and other minority stockholders in Texas Quarries had no interest whatsoever in defendant’s West Texas Stone Company. And the eourt further found, in striking down the contention that these companies were in a partnership arrangement that:

“The facts of the matter are that there was never any such relationship, none being shown by defendant, and it not being shown that, by charter power, or by resolutions of the directors of said companies, or by applicable law, that any such relationship existed in fact or could exist in law, and plaintiff’s statements or opinions as to the law in this regard were and are the law, and were honest expressions thereof, to protect said Texas Quarries from the fictitional artifice of defendant, which if allowed recognition, would have allowed both him and his company to escape their just obligations to Texas Quarries for the wrongs perpetrated against that company and its stockholders.”

The court found further that as to this entire matter, Avery enjoyed no personal gain by assuming the presidency of the company “and the legitimate interest of defendant Johnson, to the extent that he, through his wife, still held stock in the company, and the interests of the Johnson family who were stockholders, were better served under the management of this plaintiff and no wrongs were perpetrated upon defendant, and his claims to the contrary are false.”

As to the vexatious action filed by appellant, the court found:

“The conduct of the defense, in violating the jurisdiction of this Court by proceeding to file such suit subsequent to the filing of this suit, and failing to show a reasonable investigation for the truth prior to drawing and filing such a vexatious pleading, and as evidenced throughout this hearing, leads this Court to the conclusion that the action of which plaintiffs complain is, in the fullest sense of the terms, a vexatious, groundless action, drawn to embarrass and humiliate, harass and foster unjust vengeance upon innocent persons, including the plaintiff C. N. Avery, Jr., and is therefore condemned by the Court as such. The Court makes these findings in light of the fact that in no instance, as to any of said charges, did the defense offer any credible evidence upon which this Court could conclude that a justiciable issue might exist as to any of the charges made. * * *
Furthermore, the Court finds that from the time the plaintiffs did seek the equitable protection of this Court, the defendant and his attorney have sought to evade and defeat this Court’s jurisdiction and did also immediately commence a practice of undue and unjustifiable harassment by seeking to take the depositions of plaintiff C. N. Avery, Jr. on the Fourth of July weekend, when it was well known that the said plaintiff’s opportunity to invoke the protection of Rule 186b, TRCP would be at a minimum (this being also the weekend of the State Bar Convention), and although this Court had quashed such deposition proceedings, defendant’s attorney nevertheless flaunted this Court’s order and caused a telegram to be sent to plaintiff’s attorney during the midnight hours of July 2, 1965, declaring that he would nevertheless propose to take and would be ready to take such deposition on Saturday, July 3, 1965.”

II.

Appellant is before us on five points of error, the first two briefed together are that of the trial court in issuing a temporary injunction against the appellant in that the 53rd District Court had acquired dominant jurisdiction in the suit and for that reason the 126th District Court was without right or power to interfere; the error of the court in issuing said injunction because the order of the 53rd District Court overruling appellees’ plea in abatement was interlocutory and based on a finding of fact and can only be reviewed by an appellate court after a final judgment is rendered in that cause.

We overrule these points.

This is an appeal from a temporary injunction as provided by Art. 4662, Vernon’s Ann.Civ.St. and Rule 385, Texas Rules of Civil Procedure.

In University of Texas v. Morris, 162 Tex. 60, 344 S.W.2d 426, the Supreme Court held that a District Court having jurisdiction of parties and subject matter may enjoin a party from prosecuting a cause of action in another court when such relief is necessary to avoid vexatious litigation or prohibit the use of judicial processes for purposes of harassment. The court also held that while courts are open to all persons for litigation of their claims and demands, judicial processes cannot be used for purposes of mere harassment in an effort to effect a settlement.

While the court noted in the Morris case that the injunctive process used to deter the filing of suits is a device that should be used sparingly, the facts of the case at bar are such that the trial court did not abuse its discretion in issuing the injunction. We hold that under the power of the court to protect its jurisdiction and also under the equity power of the court to protect a petitioner from irreparable injury where his remedy at law is inadequate that the court was correct in granting the injunction. A reputation' for honesty and integrity built by a lawyer over the years is a valuable asset. As such it cannot be dealt with lightly. While the doors of our courthouses are open to all with legitimate grievances as well as to many whose grievances later prove to be groundless, an attack on one’s reputation for integrity where the charges are patently groundless and the obvious purpose of the suit is to vex or harass or compel a settlement will be abated by a court of equity. For obvious reasons, a remedy at law would only serve as a fulcrum to such a scheme.

The rule is well settled in this State that where a suit has been filed in a court of competent jurisdiction, that court has the power and the right to exercise the active jurisdiction in the suit and no subsequent court in which a suit over the same subject matter is filed at a later date has right or power to interfere. Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063.

The record discloses that appellees filed their suit in the 126th District Court first. Appellant does not question this rule but contends that the 53rd District Court has jurisdiction over this case due to an exception to the rule. This exception is stated in cases such as Russell v. Taylor, 121 Tex. 450, 49 S.W.2d 733 and V. D. Anderson Co. v. Young, 128 Tex. 631, 101 S.W.2d 798. These cases state an exception to the general rule announced in Cleveland v. Ward to the effect that a party may be guilty of such conduct relating to the matter of first filing as to estop himself from asserting the prior active jurisdiction of the court in which the suit is first filed over another court in which a suit containing the same subject matter is subsequently filed. This exception has no application here.

The injunction was brought under the equity power of the court to protect the ap-pellees, temporarily, from irreparable injury where his remedy at law was inadequate. Before seeking the protective arm of the 126th District Court, appellee appeared before the 53rd District Court, presented his plea in abatement wherein he cited the court to the prior lawsuit and was overruled. Here his legal remedy was exhausted.

The abovementioned exception relied on by appellant does not apply for several reasons. Under his theory of equitable estop-pel he must have come before the 53rd District Court with clean hands. This he could not do. In the cases cited by appellant to support his position in this regard, the prevailing parties were due equity by virtue of the conduct of the counter parties. Another difference is that the controversy in these cases was not brought in equity but in law thus making the choice of the forum (except for the usual considerations in a question of venue) unimportant. Both courts had similar jurisdiction.

Appellant’s third point of error is: “The 126th Judicial District Court erred for the reason that contrary to Article 4656, Texas Revised Civil Statutes, 1925, the temporary restraining orders and the temporary injunction restraining appellant from proceeding further in the cause pending in the 53rd Judicial District Court were not made returnable to the 53rd Judicial District Court, and, as such, said temporary restraining orders and temporary injunction were void.

We overrule this point.

Appellant’s point is not well taken for two reasons: First, Article 4656 applies to proceedings to stay a suit or execution on a judgment. The injunction here restrained the appellant and his attorney as persons or parties. Secondly, this injunction is ancillary to the main action and it is well established that such ancillary writs do not come within the purview of the statute. See Lindley v. Easley, Tex.Civ.App., 59 S.W.2d 927; Fielder v. Parker, Tex.Civ.App., 119 S.W.2d 1089.

Appellant’s third point of error is that of the District Court in issuing a temporary-injunction against appellant for the reason that the appellees’ petition and trial amendments thereto for a temporary injunction on their face show as a matter of law that ap-pellees have a complete and adequate remedy at law.

We overrule this point.

We will not discuss this point further as it has been adequately covered above.

Appellant’s fifth point is the error of the court in issuing a temporary injunction against the appellant for the reason that the findings of fact made by the 126th Judicial District Court and which form the basis for its order disposes of appellant’s cause in the 53rd Judicial Court without affording appellant the opportunity to have the fact issues in his cause tried before a jury as guaranteed by Article 1, Section 15, of the Constitution of the State of Texas, Vernon’s Ann.St.

We overrule this point.

The injunction here is temporary and appellant under the wording of the court’s order, set out above, may have his day, with jury if he so desires at further proceedings. 31 Tex.Jur.2d, Sec. 187, p. 301

The judgment of the trial court is affirmed.

Affirmed.

HUGHES, Justice

(dissenting).

Because I am of the opinion that the majority has failed to follow applicable judgments and opinions of the Supreme Court, I respectfully dissent.

In Mitchell v. Allis-Chalmers Mfg. Co., 291 S.W. 1099, Tex.Com. of App., the exact procedural situation was presented as exists here. In holding that the suit last filed had dominant jurisdiction over the parties and subject matter of the suit the Court said:

“The fact that a prior suit is pending in another jurisdiction when a second suit involving the same parties and subject-matter is brought does not automatically deprive the court of jurisdiction of the second suit. Unless the pendency of the suit first filed is set up in the second suit by proper pleading, the abatement of the second suit is waived. Cleveland v. Ward [116 Tex. 1], 285 S.W. 1071, and authorities there cited. We think that, as a corollary of the rule that a party may waive the abatement of the second suit, he may become estopped from urging its abatement, if sufficient grounds are shown upon which to base an estoppel.
If a proposed plaintiff contemplates bringing suit immediately in a given court in which he has the right to bring it, and the proposed defendant, knowing of such intention of the proposed plaintiff, fraudulently induces him to postpone the filing of his suit — the proposed defendant purposing at the time to take advantage of the delay thus fraudulently obtained to forestall the plaintiff’s contemplated suit by another suit in different county — the plainest principles of equity and fair dealing require that such defendant be es-topped from asserting, as ground for abatement, the pendency of the suit so filed by him in consummation of his fraud. In such a case, when the proposed plaintiff files his suit in the court in which he so contemplated bringing it, such court takes and holds the dominant jurisdiction over the parties and subject-matter of the suit, for the reason the defendant will not be permitted to defraud the plaintiff of the benefits of the full and unhampered jurisdiction of that court which, in good conscience, he is entitled to enjoy.
In the instant suit the notes held by the Allis-Chalmers Company were payable in Potter county. In the absence of the pendency of a prior suit involving the same parties and subject-matter, instituted by the defendant, Mitchell, in another jurisdiction without deceit having been practiced on the company for the purpose of defeating such right, the said company had the right to bring its suit on the notes in the district court of Potter county. The defendant, Mitchell, undertook to defraud the company of this right in the manner shown. He should not be permitted to avail himself of the fruits of his fraud.”

In Russell v. Taylor, 121 Tex. 450, 49 S.W.2d 733, Tex.Com. of App., the same procedural problem was present and the Court stated that it was only necessary to quote from Mitchell v. Allis-Chalmers, supra, to ascertain the correct disposition to be made of the matter. After quoting from such decision, the Court stated:

“In the case at bar it appears that the district court of the 14th judicial district in Dallas county has all the parties in interest before it, though it further appears that the 102d district court in Red River county had filed therein the suit previous to the filing of the suit in the 14th judicial district court in Dallas county, and, under the authority of Cleveland v. Ward, supra, the 102d judicial district court of Red River county would be held to have first acquired jurisdiction of the subject-matter of the suit, but for the situation presented by the filing of the plea in abatement in the 14th judicial district court in Dallas county, and the reply thereto, which involves questions of fact determinable only by the trial judge in the 14th judicial district court in Dallas county, which questions of fact are necessary to be finally determined by the judge of the latter named court before the question of dominant jurisdiction in one or the other of the said courts can be determined, and in this respect the case at bar differs in its facts from that of Cleveland v. Ward, supra, and Conn et al. v. Campbell, District Judge, supra [119 Tex. 82, 24 S.W.2d 873],
The relator has the right to have his plea in abatement sustained by the trial judge of the 14th judicial district court in Dallas county, unless the respondent corporation, upon the trial before the judge of the 14th judicial district court in Dallas county, shall be able to sustain its allegations of fact, heretofore stated, in which event the law would compel the judge of the 14th judicial district court to overrule the relator’s plea in abatement, which would have the effect to give to the 14th judicial district court in Dallas county dominant jurisdiction of the case, though it would not necessarily follow that this action would have the effect to abate relator’s suit filed in the 102d judicial court in Red River county, but it would have the effect to postpone any action in that case by the court until the final judgment had been rendered in the case filed in the 14th judicial district court, for the reason that, while the judge of the 14th judicial district court of Dallas county would have the exclusive authority to pass upon these questions of fact, its action would be subject to review upon appeal to the proper appellate court, which appellate court might possibly reach the conclusion that under the facts the district court of the 102d judicial district in Red River county had acquired dominant jurisdiction over the case before the suit was filed in the 14th judicial district court in Dallas county.” (Italics mine.)

The Court thereupon issued instructions that further proceedings in the two cases be absolutely controlled by the final disposition of the plea in abatement filed in the second suit.

V. D. Anderson Co. v. Young, 128 Tex. 631, 101 S.W.2d 798, is an identical case in its procedural aspects. There it was contended that the second suit was not filed first due to the fraud of the opposite parties. There Justice Critz, in speaking for the Court said:

“The general rules of law governing cases of this character have been so well settled by the decisions of this court and its commissions that we deem it unnecessary to repeat them here. In the case at bar both the district courts involved have potential jurisdiction of the subject-matter of this litigation. The real question at issue is which of such courts ought to he allowed to exercise active jurisdiction. In deciding that question, we re-announce the following rules of law:
1. It is the general rule in this state that where a suit has been first filed in a court of competent jurisdiction, and such court has all necessary parties before it, or has the power to bring them before it, it has the prior right to exercise active jurisdiction of such case, and no other court in this state in which such suit is subsequently filed has the right to interfere. 11 Tex.Jur. 787, and authorities there cited; Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063; Conn v. Campbell, 119 Tex. 82, 24 S.W.2d 813.
2. In spite of the above general rule a party may he guilty of such conduct relating to the matter as to estop himself from asserting the prior active jurisdiction of a court in which a suit is first filed over another court in which a suit is subsequently filed involving the same subject-matter and parties. Russell v. Taylor, 121 Tex. 450, 49 S.W.2d 733; Mitchell v. Allis-Chalmers Mfg. Co. (Tex.Com.App.) 291 S.W. 1099.
In the case at bar it appears that the district court of Dallas county has all the necessary parties before it to determine the issue of abatement raised in that court. Also, it has all the necessary parties before it to finally try the case in the event the plea in abatement should be overruled. On the other hand, the reply to the plea in abatement has raised fact issues on at least three very important questions, viz.: (a) Whether the Wheeler county district court can subject all necessary parties to its jurisdiction; (b) whether the Wheeler county suit was filed in good faith; and (c) whether the plaintiffs in the Wheeler county suit were enabled to first file the suit in that court by fraud or deceit. The plaintiffs in the Wheeler county case filed plea in abatement' in the Dallas county case. Surely they had the right to file such plea and have it passed on, and equally as surely the plaintiffs in the Dallas county case had the right to reply to and contest such plea in abatement, and have such reply and contest passed on. The reply and contest raised pertinent issues of fact. If the Dallas county district court had the power, and was burdened with the duty, to pass on such plea in abatement and reply and contest, it had the power, and was burdened with the duty, to hear and determine the pertinent facts. McCurdy v. Gage, 123 Tex. 558, 69 S.W.2d 56; Powers v. Temple Trust Co., 124 Tex. 440, 78 S.W.2d 951.
The district court of Dallas county did properly exercise its power and jurisdiction to pass on and determine the above plea in abatement, reply thereto, and contest thereof, and all pertinent facts. Such court, in exercising its jurisdiction, overruled such plea in abatement, and its order in such matter, being purely interlocutory, can only be reviewed by an appellate court when a final judgment is rendered in the case. It follows, under the circumstances of this record, that the district court of Dallas county should not be interfered with until it has finally tried the case, and until it has been finally determined whether it was in error in its action in overruling the plea in abatement. Of course this will have the effect of postponing any action in the Wheeler county case until final judgment in the Dallas county case. It may be that on appeal, should there be one, the appellate court will determine that the district court of Wheeler county should be allowed to hear and determine the litigation in preference to the district court of Dallas county. We do not decide that question, but leave it for final decision when, and if, the Dallas county case is appealed. Russell v. Taylor, supra. (Italics mine.)

The Court thereupon issued appropriate instructions to implement its decision.

That these decisions are currently respected one needs to read only the opinion in Wheeler v. Williams, 158 Tex. 383, 312 S.W.2d 221. See also Darsey v. Darsey, Tex.Civ.App., 196 S.W.2d 524, Galveston, n. w. h. and McCurdy v. Gage, 123 Tex. 558, 69 S.W.2d 56, where Judge Sharp for the Texas Commission of Appeals held that the judgment of the second court in ruling on a plea in abatement pleading pendency of a prior suit “will be respected until vacated or set aside by proper procedure, where an effective legal remedy is available.”

The majority distinguishes these cases saying, in part, “The injunction was brought under the equity power of the court to protect the appellees, temporarily, from irreparable injury where his remedy at law was inadequate.”

The essence, as I understand it, of ap-pellees’ complaint is that appellant has brought an unjust, unfounded suit against them. Conceding, but as to which I express no opinion, that such be the case, still equity has no power to intervene for the reason that the legal remedy of defense to the suit is adequate.

The rule is stated in 43 C.J.S. Injunctions § 40, p. 481 as follows:

“Matters that will constitute a defense of which complainant may avail himself in an action pending or threatened against him cannot be made the ground of an injunction to restrain proceedings in such action, unless he alleges and proves special circumstances showing that he may suffer irreparable injury if he is denied the preventive remedy, * *

This is the rule in Texas, Lancaster v. Lancaster, 155 Tex. 528, 291 S.W.2d 303, and cases therein cited. In Gibson v. Moore, 22 Tex. 611, Chief Justice Wheeler for the Court stated the law to be, “It is very clear, that matter which will constitute a .defense, of which a party may avail himself in a suit pending against him, cannot be made the ground of an injunction to restrain proceedings in the suit.”

There is no suggestion that appellees may not make any defense they desire to make in the suit filed by appellant in the 53rd District Court. The court below, 126th District Court, recognized that there could be a trial of appellant’s claims because he expressly provided that appellant could litigate, in his court, “defensively or affirmatively, such bona fide causes of action, if any they have, as against plaintiffs, arising out of the controversy between the parties hereto.”

The only question presented here is whether this litigation should be in one court or the other. Under the decisions cited above and accepting the findings made on the plea in abatement proceedings in the 53rd Court, trial of this controversy must be held in the 53rd Court to the exclusion of any present right of the 126th District Court to interfere with it, such trial, of course, to be the subject of an appeal if desired.

I would dissolve the injunction and issue instructions to the trial court similar to those found in the cases as above indicated.

      . “Art. 4656, 4653, 2996 Jurisdiction for trial
      Writs of injunction granted to stay proceedings in a suit, or execution on a judgment, shall be returnable to and tried in the court where such suit is pending, or such judgment was rendered; writs of injunction for other causes, if the party against whom it is granted be an inhabitant of the State, shall be returnable to and tried in the district or county court of the county in which such party has his domicile, according as the amount or matter in controversy comes within the jurisdiction of either of said courts. If there be more than one party against whom a writ is granted, it may be returned and tried in the proper court of the county where either may have his domicile. Acts 1846, p. 363; P.D. 3932; G.L. vol. 2, p. 1669.”


source: Caselaw Access Project

author: LANGDON, Justice.

license: Public Domain

text:
    HARRISON CLINIC HOSPITAL, Appellant, v. TEXAS STATE BOARD OF HEALTH et al., Appellees.
    No. 16709.
    Court of Civil Appeals of Texas. Fort Worth.
    March 11, 1966.
    Rehearing Denied April 1, 1966.
    J. Carroll McConnell, McDonald, Sanders, Wynn, Ginsburg, Phillips & Maddox, and Atwood McDonald, Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., and John H. Chambers, Fort Worth, for appellees.
   LANGDON, Justice.

This is an appeal from an order entered July 15, 1963, by the Texas State Board of Health (Division of Hospital Licensing) cancelling and revoking temporary license No. 91, which had been issued to appellant on January 1, 1960. Dr. F. E. Harrison, administrator and owner of the appellant Clinic, filed a motion in the trial court demanding a trial de novo and by jury. The court in its order overruling the motion decreed that the case should be tried under the substantial evidence rule and that the burden of proof would be upon appellant to establish the invalidity of the order complained of. Judgment was entered on July 26, 1965, sustaining the cancellation of temporary license No. 91.

One basic question is presented by this appeal and that is whether the case should have been tried de novo or under the substantial evidence rule. If it should have been tried de novo then admittedly appellant would be entitled to trial by jury and the burden of proof would be placed upon the appellees.

In 1959 the Legislature enacted Article 4437f, Vernon’s Ann.Texas Civ.St., styled “Texas Hospital Licensing Law”.

Section 8 of the Act provides: “Upon receipt of an application for license, and the license fee, the Licensing Agency shall issue a license if it finds that the applicant and the hospital comply with the provisions of this Act, and the rules, regulations, or standards promulgated hereunder. Each such license, unless sooner suspended, cancelled, or revoked, shall be renewable annually upon payment of the prescribed fee.

“Sec. 9. The Licensing Agency shall have the authority to deny, cancel, revoke, or suspend a license in any case where it finds there has been a substantial failure to comply with the provisions of this Act or the rules, regulations, or standards promulgated under this Act, * * *.

“Proceedings under this Article shall be initiated by filing charges with the Licensing Agency, in writing and under oath. Said charges may be made by any person or persons. If upon investigation of such charge or charges it is found that such charge or charges appear to have merit, then the chairman of the Licensing Agency shall set a time and place for hearing, and shall cause a copy of the charges, together with a notice of the time and place fixed for hearing, to be served on the respondent or his counsel at least ten (10) days prior thereto. * * * At said hearing the respondent shall have the right to appear, either personally or by counsel, or both, to produce witnesses or evidence in his behalf, to cross-examine witnesses, and to have subpoenas issued by the Licensing Agency. The Licensing Agency shall thereupon determine the charges upon their merits.

“Any hospital whose license has been cancelled, revoked, or suspended by the Licensing Agency may, within twenty (20) days after the making and entering of such order, take an appeal to any of the District Courts in the county that the hospital is so located in, ⅜: * ⅜.

“The proceedings on appeal shall be a trial de novo as such term is commonly used and intended in an appeal from the Justice Court to a County Court, and which appeal shall be taken in any District Court of the county where the license has been issued.”

In our opinion the holding of the Supreme Court of Texas in Scott v. Texas State Board of Medical Examiners, 384 S.W.2d 686 (1964), is applicable to and controlling of the facts presented on this appeal.

The Scott case involved an appeal to the District Court from an order of the Texas State Board of Medical Examiners revoking and cancelling a license to practice medicine. Following administrative proceedings before the Board comparable to those in the instant case, Dr. Scott appealed the order of cancellation to the District Court.

The trial court ruled that the case should be tried de novo and that the burden of sustaining the administrative order be placed on the Board. Trial was to a jury. The trial court upon motion for judgment non obstante rendered judgment in favor of Dr. Scott, denying the Board the right to cancel his license. The Court of Civil Appeals reversed and remanded the cause for a new trial, holding that the de novo provision of Article 4506 was unconstitutional. The Supreme Court reversed the Court of Civil Appeals, holding that the de novo trial provision was constitutional and affirmed the judgment of the trial court.

We are unable to find any difference, in so far as constitutional questions are concerned, between the situation presented in an appeal under Article 4506, and in an appeal under Article 4437f, where the appeal is from an administrative order can-celling/or revoking a license. This case does not involve an order denying or refusing an application for a license. The present appeal is from an administrative order, based upon charges brought before the administrative agency, cancelling and revoking a license. As the Supreme Court says in the Scott case, there is a difference, legislatively recognized through the years, between an exercise of the power to examine and issue a medical license, and an exercise of the power to revoke a medical license for cause. The Supreme Court declares it to be self-evident that an appeal from an act of the administrative agency revoking a medical license once granted does not involve a question of public policy and the determination of legislative facts in the sense of the decisions of the Supreme Court in such cases as Davis v. City of Lubbock, 160 Tex. 38, 326 S.W.2d 699 (1959), and Chemical Bank & Trust Company v. Falkner, 369 S.W.2d 427 (1963). The Court says that this points to what should be controlling criteria of constitutionality. The validity of a full de novo appeal requirement turns on the nature of the act of the administrative agency contemplated by the statute to which the appeal requirement refers.

An important consideration is whether the administrative action called for by the empowering legislative act involves public policy or is policy making in effect, or whether the action concerns only the parties who are immediately affected. The question of whether a particular medical practitioner has performed acts and engaged in conduct requiring revocation of his license involves the professional activities of only one person. In resolving such a matter, the administrative agency is not engaged in promulgating rules of general application or in deciding questions of broad public policy. The fact questions inherent in the decision of the administrative agency in such a case are typical of those which can on appeal be decided by a judge or a jury on evidence introduced in court.

Everything that is said in the Scott case can be applied with equal logic to this case. The decision of the Licensing Agency with respect to cancellation or revocation of License No. 91 did not involve public policy, nor was it policy making in effect, but concerned only the parties immediately affected. The question of whether Dr. Harrison had performed acts and engaged in conduct requiring revocation of his license under the standards prescribed by the Legislature involved the professional activities of only one person, to-wit, Dr. Harrison. In passing upon the matter of cancelling the license issued to Dr. Harrison, the Licensing Agency was not engaged in promulgating rules of general application or in deciding questions of broad public policy. The fact questions inherent in the charges brought before the Licensing Agency, and again presented in the District Court, are typical of those which can on appeal be decided by a judge or a jury on evidence introduced in court.

As is said in the Scott case, in a de novo-appeal the court tries the issues anew. The burden of proof in sustaining the order is upon the administrative agency. Whether by the eourt or a jury, fact questions are resolved by a preponderance of the evidence.

The present proceeding, both before the administrative agency and in the appeal to the District Court, was one to cancel a license. It was not a denial of an application for a license. There is no evidence in the record, including the statement of facts which appellees have filed, of any application by appellant for a license other than the application which was made prior to January 1, 1960, in response to which license No. 91 was issued.

There is no distinction in substance between the situations involved in the Scott case and this case. The statutes in question are comparable. They relate to similar fields of activity. The administrative procedures are much the same. Both provide for an appeal de novo to the District Court. In the Scott case there was an administrative proceeding to cancel a medical license. In this case there was an administrative proceeding to cancel a hospital license. In both cases there was an appeal from the order of cancellation of the administrative agency.

The judgment of the trial court is reversed and this cause is remanded to the trial court with instructions that it be tried de novo.

Reversed and remanded.


author: DUNAGAN, Chief Justice.

text:
    D. A. BOWEN, Appellant, v. EAST TEXAS HOSPITAL FOUNDATION, d/b/a Medical Center Hospital, et al., Appellees.
    No. 161.
    Court of Civil Appeals of Texas. Tyler.
    March 3, 1966.
    Rehearing Denied March 24, 1966.
    Wm. Emerson Stone, Jr., Stone & Stone, Jacksonville, for appellant.
    Tom B. Ramey, Jr., and Donald Carroll, Ramey, Brelsford, Flock & Devereux, F„ Wilbert Lasater, Spruiell, Lowry, Potter, Lasater & Guinn, Tyler, for appellee.
   DUNAGAN, Chief Justice.

This suit was instituted in the 7th District Court by the appellant, D. A. Bowen, against the appellees, East Texas Hospital Foundation, d/b/a Medical Center Hospital, Dr. H. H. Muntz, Dr. G. Wm. Burch and Dr. Vernon V. Goss, seeking to recover damages for injuries he received while a patient in the Medical Center Hospital. Appellees Burch and Goss were partners.

In Paragraph 2 of appellant’s first amended original petition upon which he went to trial, he alleges that as a patient of the defendant Muntz and defendants Burch-Goss, he was admitted to the defendant hospital on or about June 18, 1962, for surgery upon his right eye for a detached retina, which operation was performed on June 21, 1962. That as a result of this operation, the plaintiff’s eyes were both covered with bandages and plaintiff was in pain, suffering from discomfort, and would toss and turn, and in fact, would be from all accounts highly irrational, not only during the daylight hours, but also during the nighttime hours as well, which fact was known to the defendants.

In Paragraph 3 of said petition, he further alleges that unknown to him, but prior to June 26, 1962, his family requested that bed rails be placed on the bed because they were afraid that plaintiff would in fact fall out of said hospital bed, and such request went unheeded by the defendant doctors and by the agents, servants and employees of the defendant hospital, and that although requested, the defendants failed to heed the request, which failure to act was the proximate cause of the injuries sustained by plaintiff.

In Paragraph 4 thereof, he alleges that the defendants Muntz and Burch-Goss were either jointly or severally responsible for the care and treatment of the plaintiff, which included the duty to enter such orders on the plaintiff’s chart provided for such purpose, or otherwise see to it that the plaintiff’s person and physical being was not subjected to injury arising out of the care and treatment of the plaintiff, their patient, and said defendants wholly failed to enter such orders for the safety of their patient, which orders were as follows:

(a) The installation of bed rails; and/or

(b) The installation of restraining devices; and/or

(c) The prescriptions of drugs and medications to place plaintiff in a state of physical being that would keep the plaintiff in a controlled environment and which failure to so prescribe as above was negligence and the proximate cause of the injuries and damages sustained by plaintiff as hereinafter alleged.

In Paragraph 5 of the petition, he alleges that in the event the plaintif f is mistaken as to whose duty it was to see to it that his needs were met, and that it was not the duty of the defendant doctors, then and in that event, he says that it was the duty of the defendant hospital to meet the request of the family of the patient and install bed rails and/or such other restraining devices for the protection of the physical well being of the patient which was not done, and which omission to act after notice thereof and request therefor was negligence, which negligence was a proximate cause of the injuries and damages to the plaintiff.

Plaintiff further alleges in Paragraph 6 of the petition that the following injuries and damages were sustained as a result of the negligence aforesaid, to-wit:

(a) That plaintiff has lost the entire use of his right eye drte to the fact that the fall from the bed destroyed the beneficial effects of the surgery previously performed on plaintiff’s right eye; and

(b) That plaintiff received a broken neck as a result of the fall, which fracture thereof was not discovered for a 10 day period through the negligence of the defendants Muntz and Burch-Goss, during which time plaintiff was in pain far more severe and uncomfortable than prior to the fall when plaintiff was recovering from the surgery upon his right eye.

Appellant seeks to recover the sum of $37,900.00 for the alleged injuries against the defendants who are appellees on this appeal.

The case was tried before a jury and at the close of plaintiff’s evidence, each of the defendants moved for an instructed verdict upon the ground: (1) that plaintiff introduced no probative evidence of any negligence on their part; (2) that plaintiff failed to produce probative evidence that any negligence of the defendants was a proximate cause of his injuries. Defendants Burch and Goss further alleged in their motion for instructed verdict that the evidence showed plaintiff disobeyed doctor’s instructions, which conduct was negligence and a proximate cause of his injuries as a matter of law. Dr. Muntz’s motion for instructed verdict contained these additional grounds:

(a) There is no competent medical testimony that careful and skillful practitioners in this area under these conditions would have used bed rails or other restraining devices on the plaintiff;

(b) That the use of restraining devices in this case was a matter for medical judgment and even if some skillful practitioner would and some would not have used restraining devices, there can be no liability for exercise of judgment in making this decision ;

(c) That the decision as to the use of restraining devices and medication for tranquilizing the plaintiff belonged to Dr. Burch and not to him, and that likewise the decision as to whether the second operation should have been performed immediately without cervical x-ray belonged to Dr. Burch and not to him. For these reasons, he could not be guilty of negligence in not making such decision;

(d) That there is no evidence of any damage to the plaintiff’s neck by reason of the 10-day delay in discovering the fracture;

(e) That the evidence shows as a matter of law that the plaintiff and his wife were each guilty of contributory negligence in failing to provide personal attendance.

The defendant hospital moved for an instructed verdict on the following grounds:

(1) That there was no probative evidence showing the defendant guilty of any negligence ;

(2) That there was no probative evidence showing that any act of negligence on the part of the defendant was a proximate cause of the plaintiff’s fall;

(3) That there was no probative evidence that the defendant hospital had the duty to install bed rails or other restraining devices on the plaintiff’s bed;

(4) That, if there was any negligence in failing to install bed rails or other restraining devices, defendant, as a charitable institution would be immune from liability of such negligence.

To properly define the scope of this appeal, it should be pointed out that appellant pleaded that several acts or omissions on the part of doctors Burch and Goss were negligence and a proximate cause of his injuries, to-wit:

(1) Failure to install bed rails on appellant’s bed;

(2) Failure to use other restraining devices ;

(3) Failure to prescribe proper medication;

(4) Failure to discover sooner plaintiff’s neck fracture sustained in his fall.

In his brief in this court, however, appellant makes no factual statement, cites no testimony in the Statement of Facts, cites no case authority, and makes no argument concerning any alleged negligence on the part of any of the appellees, except that concerned with the failure to install bed rails. Although appellant’s Points of Error were broad enough to include all pleaded grounds of negligence, the scope of his Points must be determined by the statements and arguments thereunder. Saldana v. Garcia, 155 Tex. 242, 285 S.W.2d 197, 1956; Musick v. Pogue, 330 S.W.2d 696 (Tex.Civ.App.) 1959, writ refused, n. r. e. Therefore, this court considers all grounds of negligence other than the ones concerning bed rails as waived or abandoned. Rule 418, Texas Rules of Civil Procedure; Maryland Casualty Co. v. Stewart, 164 S.W.2d 800 (Tex.Civ.App.) 1942, writ refused; McDaniel v. Thompson, 195 S.W.2d 202 (Tex.Civ.App.) 1946, writ refused. Under this state of the record, this court will deal only with the question here presented concerning the failure to install bed rails.

Each of the defendants’ motions were granted by the trial court and the case withdrawn from the jury and judgment rendered in favor of appellees and against appellant, to which the plaintiff-appellant excepted and has duly perfected his appeal to this court.

Among other contentions the appellant contends that the trial court erred in ruling that there was no evidence of probative force that either of these appellees were negligent in the care and treatment of D. A. Bowen sufficient to require the submission of said issue to the jury; (2) in rendering a judgment for the appellees, Burch and Goss, on the basis that there was no evidence of probative force that the negligence of these appellees proximately caused the fall and resulting injuries for the reason that there was evidence of probative force to support the submission of the issue of proximate cause as to the appel-lees, Burch and Goss; (3) in rendering judgment for the appellee, East Texas Hospital Foundation, d/b/a Medical Center Hospital, on the basis that there is no probative evidence that this appellee was guilty of any negligence which proximately caused the occurrence in question for the reason that there was evidence of probative force that required the submission of this issue; (4) in rendering a judgment for the appellee, H. H. Muntz, on the basis that there is no evidence that said appellee was guilty of any negligence, which proximately caused Mr. Bowen’s fall, or any damage to Mr. Bowen, for the reason that there is evidence of probative value to support the submission of said issue to the jury.

Appellant Bowen was a patient of Dr. Muntz. He went to Dr. Muntz for a medical examination. Dr. Muntz gave him a complete physical examination. From this examination Dr. Muntz determined that the appellant might have a retinal detachment of the right eye and referred him to Dr. Burch, who is an eye specialist. Dr. Burch has limited his practice of medicine to the field of Ophthalmology during the period of time he has been in Tyler. The appellant was admitted to the Medical Center Hospital where Dr. Burch performed the surgery to correct the detached retina.

Since the burden of proof is upon the appellant to prove both negligence and proximate cause in order to establish a cause of action, Thomas v. Beckering, 391 S.W.2d 771 (Tex.Civ.App.) 1965, writ refused, n. r. e.; Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 13 A.L.R.2d 1 (1949), we do not undertake to decide the question of whether there is any competent evidence of negligence in the failure of appellees Burch-Goss and Muntz to order the use of bed rails or whether the appellee hospital breached any duty to the appellant in failing to install bed rails, but will pass to the issue as to whether there is any testimony of probative force showing that the failure to install bed rails is the proximate cause of the appellant’s fall and injuries resulting therefrom.

Dr. Muntz testified as follows concerning the use of bed rails:

“Q What are bed rails for? What purpose do they serve, Doctor?
“A I think — I like to think of them as reminders to the patient that they are in the bed. If we sedate them at night, often they roll up against the bed rail, they wake slightly enough to realize perhaps that they are at the edge of the bed, since this is a strange environment.
“Q Do they serve any purpose to keep a patient from falling out of bed ?
“A On occasions.
“Q Is that one of their major purposes ?
“A Yes, sir.
⅜ ⅜ *
“Q Doctor, if a patient decides he wants to get up out of bed rather than just rolling out in his sleep or something like that, is a bed rail going to keep him from getting up out of the bed?
“A Usually not.
» ⅜ ⅜ ⅜
“Q Now, then, Doctor, I will ask you: do you think that a bed rail is really a proper kind of device that normally keeps somebody who is wanting to get out of bed and go to the bath room, will that protect them or just protect somebody who is liable to roll out of the bed in his sleep at night?
“A As stated earlier, it is a sort of gentle reminder to wake the patient up.”

Dr. Burch gave the following testimony concerning the use of bed rails:

“Q What, Doctor, is your policy with reference to the use of bed rails * * * ?
“A * * * I use bed rails very frequently but I use bed rails as an agent to warn a person that he is falling out of bed because he is sleeping in bed that is higher than he is accustomed to and often narrower than he is accustomed to, and needs something to warn him about falling off bed. But I have never used bed rails for some one I think is physically strong enough to and mentally disposed to climb out of bed. I have never used bed rails for someone like that.”

Concerning the appellant’s ability to crawl over the bed rails, Dr. Muntz testified:

“Q Up until, Dr. Muntz, the last time when you saw Mr. Bowen prior to the time that he fell, in your opinion, was Mr. Bowen physically able, if he so desired and if he so intended as a conscious effort on his part, was he physically able to have climbed over or gotten out of a bed equipped with bed rails?
“A Could he have done it ?
“Q Yes, sir.
“A I am sure he could have.”

The evidence shows that the plaintiff during his confinement in the hospital was somewhat irrational at times. This was detected primarily by his irrational talk.

The appellees contend that the trial court properly found that there was no probative evidence that failure to install bed rails or failure to have bed rails available was a proximate cause of plaintiff’s fall.

Appellant’s initial burden on this phase of the case was to establish that some act or omission on the part of the appellees or either of them was a cause, in fact, of his injuries; that is, a cause which produced the injuries and without which the injuries would not have occurred. Baumler v. Hazelwood, 162 Tex. 361, 347 S.W.2d 560, (1961). More specifically, appellant was required to show that the failure to install bed rails was the cause in fact of his injuries; and if bed rails had been installed he would not have sustained the injuries. Consequently, proximate cause in this case must be determined by those facts shown to be in existence at the very time that appellant fell.

Before considering the facts surrounding the accident, it is important to keep in mind that the undisputed evidence in the record shows: (1) that patients who are physically able to do so can, and frequently do, crawl over bed rails, especially when they are not rational, and (2) that appellant was physically able to crawl over bed rails if he should try to do so.

Immediately prior to the appellant’s fall from the bed, his daughter, Mrs. Betty Zednick, was the only attendant in the room with him. Concerning the events leading up to the fall, she testified as follows:

“Q Now, at some time then on later in the evening, your father roused himself and addressed a statement to you concerning his intention to get up and go to the bath room? Is that correct?
“A He said he had to urinate.
“Q You of course handed him a bed pan, did you not?
“A Urinal.
“Q Urinal?
“A Yes.
“Q And when you did that he became angry with you, did he not?
“A Yes.
“Q He wasn’t irrational but angry; is that right?
“A He was angry.
“Q Of course, you know the difference between being angry and being irrational do you not?
“A Yes.
“Q And you described it in your deposition and you described it again here this morning that your father was angry with you and told you to get the hell out of the room that he had to go to the bathroom ?
“A That’s right.
“Q He was conscious and knew what he was saying then, was he not?
“A He know he had to use the urinal.
“Q And there wasn’t any equivocation when he told you to get out of the room, was there? He didn’t mumble that conversation; he intended for you to leave, did he not?
“A Yes.
“Q And you left, didn’t you?
“A I did.
(< * * *
“Q You left knowing that he said he had to go to the bath room?
“A Yes.
“Q And you left knowing that he was trying to get up to go to the bathroom and not to use the bed pan, or urinal, did you not?
“A He was not trying to get up when I left the room.”

Mrs. Zednick further testified that she left the room to go down the hall to get her mother. She also testified that after she went down the hall and got her mother, they returned to the room and as they arrived just outside the room, they heard something hit and they went in and saw the appellant lying across the floor. His feet were closer to the bed than his head. Neither his wife nor daughter nor any other witness saw him fall. Appellant testified that he remembered nothing of the accident.

Lacking the testimony of an eye witness to the accident, the record does not show how appellant fell or what unknown factors may have combined to cause his fall. The manner in which appellant fell, i. e., whether he rolled from the bed, stood up in bed and fell; whether he. got off the bed, stood up, walked away and then fell, or fell while attempting to get out of bed or while attempting to sit up and use the urinal, is not disclosed by the record. Nor does the evidence exclude the possibility that the appellant left the bed by going over the end of it where bed rails are not ordinarily installed. The mere fact that appellant fell is not evidence that the fall was proximately caused by the actions or omissions of the defendants-ap-pellees or either of them. Houston Nat. Bank v. Adair, 146 Tex. 367, 207 S.W.2d 374, (1948). As the record is presented to us on this appeal, appellant had the burden of establishing' that “but for” the failure to install bed rails or the failure to have them available, he would not have fallen, Baumler v. Hazelwood, supra; Young v. Massey, 128 Tex. 638, 101 S.W.2d 809 (1937). Under the record in this case it would be futile to ask the jury if the failure to install bed rails was the proximate cause of the accident when the record reveals no cause. The jury would have no facts with which to evaluate the fall and determine if bed rails would have prevented it. All that the jury could determine from the facts was that the fall occurred. From this fact alone, the jury could do no more than speculate or conjecture as to what may have been its proximate cause. It was stated in the case of Talley v. Bass-Jones Lumber Co., 173 S. W.2d 276 (Tex.Civ.App.) 1943, writ refused, want of merit:

“ ‘Upon the other hand, the causal connection between defendant’s act or omission and the injury must not be left a matter of surmise or conjecture, and cannot be established by evidence which is merely consistent with or indicates a mere possibility or probability thereof, as be evidence which merely shows two or more possible causes of the injury, for not all of which defendant is responsible; or which leaves it a matter of speculation or conjecture as between such causes; or which is equally consistent with the theory that the injury resulted from a cause for which defendant is not responsible; or which is equally balanced or permits of equally reasonable inferences or equally permissible conclusions as between a cause or causes for which defendant is responsible and a cause or causes for which he is not responsible; or where the’ injury may with equal fairness or probability or likelihood or as reasonably or with greater probability be attributed to a cause which will excuse defendant as to a cause which will subject him to liability.’ * * * ”

The Supreme Court of this state in the case of Bowles v. Bourdon, supra, said:

“ * * * All it shows is that what respondent did was not a probable but only a possible cause of the contracture; that it was only one of several things that could have caused the injuries complained of. Therefore, this cause is ruled by the language of Circuit Judge Taft, in Ewing et al. v. Goode, supra [cc., 78 F. 442], ‘when the burden of proof is on the plaintiff to show that the injury was negligently caused by defendant, it is not enough to show the injury, together with the expert opinion that it might have occurred from negligence and many other causes. Such evidence has no tendency to show • that negligence did cause the injury.’
“And if the plaintiff would rest upon inferences rather than upon direct evidence, he meets the same rule. ‘The proof must establish causal connection beyond the point of conjecture. It must show more than a possibility. Verdicts must rest upon reasonable certainty of proof. Where the proof discloses that a given result may have occurred by reason of more than one proximate cause, and the jury can do no more than guess or speculate as to which was, in fact, the efficient cause, the submission of such choice to the jury has been consistently condemned by this court and by other courts.’ Ramberg v. Morgan, 209 Iowa 474, 218 N.W. 492, 498.” See also Western Telephone Corporation of Texas v. McCann, 128 Tex. 582, 99 S.W.2d 895 (1937).

Proximate cause cannot be established by mere conjecture or guess, nor may it be presumed. It must be proved. Leatherwood Drilling Company v. TXL Oil Corporation, 379 S.W.2d 693 (Tex.Civ.App.) 1964, writ of error refused, n. r. e.

We have carefully reviewed all of the evidence as set forth in the Statement of Facts in a light most favorable to appellant and have been unable to find any evidence of probative force that the negligence, if any, of the appellees or either of them in failing to install bed rails or failing to have bed rails available, was a cause, in fact, of the injuries complained of by the appellant. Causation not having been established, an instructed verdict was proper.

For the reasons stated, the judgment of the trial court is affirmed.


author: WILSON, Justice.

text:
    WESTERN ALLIANCE INSURANCE COMPANY, Appellant, v. Lilburn A. TUBBS, Appellee.
    No. 4366.
    Court of Civil Appeals of Texas. Waco.
    May 20, 1965.
    Rehearing Denied March 24, 1966.

      Ulmer W. Spinney, William G. Washington, Austin, for appellant.
    W. Lance Corsbie, Waco, for appellee.
   WILSON, Justice.

The workmen’s compensation claimant recovered judgment for medical services under Art. 8306, Sec. 7, Vernon’s Ann. Civ. St., against appellant, the carrier.

By a previous satisfied judgment, not in issue here, claimant was awarded total and permanent disability benefits and medical expenses then accrued. Claimant thereafter sustained a separation of the same fractures which constituted the injuries resulting in the first judgment. The carrier refused to pay for medical expenses alleged to result from the re-injury. A claim for cost of medical services was denied by the Industrial Accident Board, and claimant appealed to the District Court. Although claimant’s petition sought recovery of workmen’s compensation for the re-injury, none was awarded, and no claim for compensation is before us.

The carrier complains that the judgment includes sums for medical services incurred after the date of the decision of the Board appealed from. Its position is that under the provisions of Art. 8307, Sec. 5 (Acts 1957, 55th Leg., p. 1186, ch. 397, Sec. 2) the first final judgment in a workmen’s compensation case becomes res judicata as to all medical expense “which could have been claimed up to the date of such first final judgment”, hut any subsequent medical expense “must be submitted to the Board, and the Board’s award thereon may include only such cost or expense as was incurred for services furnished to the employee not more than six months prior to the date of such award.”

Before the 1957 amendment to Art. 8307, as now, Sec. 5 of that Article provided that all questions unsettled by agreement arising under the workmen’s compensation law should be settled by decision of the Board, subject to the right of appeal from the decision. Although it was settled that a claim for compensation before the Board and final decision of the Board thereon was prerequisite to jurisdiction of the courts to adjudicate compensation, Industrial Accident Board v. Glenn, 144 Tex. 378, 190 S.W.2d 805, 807, it was held that after such claim was denied by the Board the court upon trial de novo on appeal “had jurisdiction to determine all issues between the parties regardless of whether” asserted before the Board. Lumberman’s Reciprocal Ass’n. v. Behnken, 112 Tex. 103, 246 S.W. 72, 75, 28 A.L.R. 1402. It was accordingly the uniform holding before the 1957 amendment that the employee’s claim for medical and hospital expenses under Art. 8306, Sec. 7 is “merely incidental to the claim for compensation, and need not be specifically adjudicated by the accident board” in order to confer jurisdiction over the claim in a trial de novo appeal. Maryland Casualty Co. v. Moore, 129 Tex. 174, 102 S.W.2d 1118, approving id., Tex.Civ.App., 74 S.W.2d 769, 770; Great American Indemnity Co. v. Beaupre, Tex.Civ.App., 191 S.W.2d 883, 888, writ ref. n. r. e.

Has the Legislature evidenced intention to make any change in this rule by adding the second paragraph to Sec. 5 of Art. 8307? The statute directs by its first sentence that no award of the Board, and no judgment of the court, “having jurisdiction of a claim against the association” for medical services, etc., shall include expenses for items not actually furnished and received “prior to the date of said award or judgment.” The carrier’s contention would require a construction of this provision that there must be action by the Board before a court has jurisdiction of a claim for expenses incurred after the award. This, the amendment does not say. It excludes from the Board’s jurisdiction expenses for items not furnished before the date of the award, and it excludes from the court’s jurisdiction expenses for items not furnished before the date of judgment. Although the Board may have jurisdiction of the claim arising before the award and may make an award thereon, a court also has its own separate jurisdiction under the established rule without Board action. We find no language there evidencing intent to change the rule.

The second sentence of the added paragraph makes the first final award “or” judgment res judicata as to expenses only up to the date of award. Again there is no manifestation of an intent to alter the existing holding. The third sentence fixes a six-month limitation period for expenses which may be claimed prior to each successive award by The Board, which is given “continuing jurisdiction” in the same case. This sentence does not restrict the jurisdiction of the courts further than it limits that of the Board. It is true that each of such successive Board awards is made subject to suit to set them aside by a court of competent jurisdiction. This, however, is nothing new; it was true of such awards before the amendment, under Art. 8307a.

A statute which deprives a court of existing jurisdiction is strictly construed, and “when jurisdiction is once granted it will not be deemed taken away by a similar jurisdiction being given to another tribunal.” 3 Sutherland, Statutory Construction (3rd ed.) Sec. 6803, p. 328. In our opinion it was not necessary that the claim be first submitted to the Board, and the district court had jurisdiction, of expenses incurred subsequent to the Board’s award.

Appellant complains of refusal of three requested issues inquiring (1) whether claimant “sustained an accidental injury” on the date of the re-injury; (2) whether “necessary medical services secured by him” after the latter injury were reasonably required to relieve from the effects of that injury; and (3) asking what was the reasonable value of such necessary medical services. The first of these requested submission of an undisputed issue. Appellant urges it was entitled to a determination of whether the re-injury, as distinguished from the original injury, was com-pensable. Answers to the requested issues would not have accomplished this, if it was material.

That portion of the judgment allowing recovery for the reasonable value, based on jury findings, of necessary medical services “secured by plaintiff for himself from members of his family” is complained of. The evidence adequately supports the jury findings. The services inquired about, rendered by claimant’s wife, consisted of feeding, bathing, shaving and turning claimant, taking him to the doctor and generally “taking care of” him in his home while he was an invalid. Appellant says recovery for these was not authorized because Art. 8306, Sec. 7 limits liability to amounts “expended or incurred” by claimant for services, and Art. 8307, Sec. 5 authorizes awards only for “cost or expense” of any such items. We do not find the statutes to make such restrictions. Art. 8306, Sec. 7 requires the carrier to “furnish such” nursing as may reasonably be required, excluding such as are “not ordinarily provided by hospitals as a part of their services,” and upon its failure to furnish these, the injured employee is authorized “to provide” them at the carrier’s “cost and expense.” Another portion of Sec. 7 provides the employee shall not be entitled to recover any amount “expended or incurred” by him without notice and refusal to furnish. This, in our opinion, does not restrict or qualify the liability for services provided by the employee at the carrier’s “cost and expense.” The latter phrase, we think, is what is referred to in this respect in Art. 8307, Sec. 5 limiting the “cost or expense” to be included in an award or judgment to that actually furnished. In our opinion the value of the services was recoverable. See Transport Ins. Co. v. Polk, Tex.Civ.App., 388 S.W.2d 474.

Affirmed.

      . “Sec. 5.
      “Notwithstanding any other provision of this law, as amended, no award of the Board, and no judgment of the court, having jurisdiction of a claim against the association for the cost or expense of items of medical aid, hospital services, nursing, chiropractic services, medicines or prosthetic appliances furnished to an employee under circumstances creating a liability therefor on the part of the association under the provisions of this law, shall include in such award or judgment any cost or expense of any such items not actually furnished to and received by the employee prior to the date of said award or judgment. The first such final award or judgment rendered on such claim shall be res judicata of the liability of the association for all such cost or expense which could have been claimed up to the date of said award or judgment and of the issue that the injury of said employee is subject to the provisions of this law with respect to such items, but shall not be res judicata of the obligation of the association to furnish or pay for any such items after the date of said award or judgment. After the first such final award or judgment, the Board shall have continuing jurisdiction in the same case to render successive awards to determine the liability of the association for the cost or expense of any such items actually furnished to and received by said employee not more than six (6) months prior to the date of each such successive award, until the association shall have fully discharged its obligation under this law to furnish all such medical aid, hospital services, nursing, chiropractic services, medicines or prosthetic appliances to which said employee may be entitled; provided, each such successive award of the Board shall be subject to a suit to set aside said award by a court of competent jurisdiction, in the same manner as provided in the case of other awards under this law.”

      . The opinion in the present case was delivered before the Supreme Court’s opinion, 400 S.W.2d 881, dated March 16, 1966.