author: CALVERT, Chief Justice. CALVERT, Chief Justice.

text:
    OIL FIELD HAULERS ASSOCIATION, Inc., et al., Petitioners, v. RAILROAD COMMISSION of Texas, et al., Respondents.
    No. A-9780.
    Supreme Court of Texas.
    June 3, 1964.
    Rehearing Denied July 22, 1964.

      Clark, Thomas, Harris, Denius & Winters, Wallace A. McLean and James H. Keahey, Austin, for Oil Field Haulers Ass’n, Inc., et al.
    Joe G. Fender, Houston, for Hill & Hill Truck Line, Inc.
    Brooks, Montgomery & Matthews, Dallas, for Chicago, Rock Island & Pacific R. Co. et al.
    Waggoner Carr, Atty. Gen., Austin, Norman V. Suarez, Asst. Atty. Gen., Ralph W. Currie, and John J. McKay, Austin, Dallas, .for Railroad Commission of Texas et al.
   CALVERT, Chief Justice.

This case presents a number of novel procedural, questions, jurisdictional and otherwise, which must be resolved before substantive questions are reached.

•The facts and events, shown in the rec- ■ ord, which give rise to the procedural questions are as follows:

' Pursuant to a • complaint filed by Lone Star Steel Company, the Railroad Commission entered an order on December 18, 1962, reducing rail “rates on wrought iron or steel pipe, in carloads, intrastate in Texas,” the reduction to become effective on January 21, 1963.

' On January 18, 1963, Oil Field Haulers,Inc./filed suit in a district court of Travis County against the Railroad Commission and its members seeking to have the order declared invalid and praying for a restraining order, a temporary injunction and a permanent injunction. A restraining order was granted on January 18, and hearing was set on the prayer for temporary injunction for January 28.

On January 25, a number of railroads intervened on the side of plaintiff. On January 28, Hill & Hill Truck Line, Inc., intervened on the side of plaintiff. On January 28, Lone Star Steel Company intervened on the side of defendants. On January 28, the restraining order was extended. On February 7, a trial amendment was filed by Oil Field Haulers joining a number of trucking companies as plaintiffs. All of these plaintiffs will sometimes be referred to as “Haulers.” On February 8, a temporary injunction was granted, conditioned on the filing by “plaintiffs” of a bond in the sum of $15,000 “payable to the Defendants.” A bond in that sum payable to the Railroad Commission and its members was executed and filed on the same day by the intervening railroads and Oil Field Haulers, Inc., as principals and National Surety Company as surety. It was not executed by any of the trucking companies who had been made plaintiffs by the trial amendment or by Hill & Hill who had intervened.

The Railroad Commission and Lone Star Steel Company both gave notice of appeal, but Lone Star did not file an appeal bond and therefore went out of the case on appeal.

On May 29, 1963, the Court of Civil Appeals reversed the judgment of the trial court and dissolved the temporary injunction. See 369 S.W.2d 931. On June 4, all appellees filed a motion to stay the order of dissolution until they had exhausted their right of review. The motion was granted on June 5, with a short per curiam opinion. See 369 S.W.2d 943. On June 7, Oil Field .Haulers and the trucking company plaintiffs filed a motion for rehearing.- On June 13, Hill & Hill and the railroad intervenors filed separate motions for rehearing.

On June 19, the Court of Civil Appeals acted on the motions for rehearing and in-connection with its action filed a brief opinion. See 369 S.W.2d 943. In the first part of this opinion the Court simply explained what it meant by certain language in its original opinion. In the last paragraph the Court stated that it should not have dissolved the injunction in so far as it related to shipments of cast iron pipe ánd to that extent the injunction should remain in force. The Court concluded its opinion with these words: “In the respect indicated, the Motions for Rehearing are granted; in all other respects they are overruled.” The order actually entered on June 19, as reflected in the transcript, reads:

“THIS DAY came on to be submitted to the Court the Appelleés’ Motion for Rehearing, the Motion for Rehearing by Railroad Appellees and the Motion for Rehearing by Appellee Hill & Hill Truck Lines, Inc., Intervenor, in this cause and the Court having heard and fully considered said motions is of the opinion that same should be granted in part and overruled in part, IT IS THEREFORE considered, adjudged and ordered that Appellees’ Motions for Rehearing be, and same are hereby granted to the extent that the Injunction insofar as it relates to rates on cast iron pipe shall remain in full force and effect; it is FURTHER ordered that in all other respects the motions are overruled; it is FURTHER or--dered that the judgment heretofore entered herein remain in full force and effect except as modified herein.”

On July 1, Oil Field Haulers and the trucking company plaintiffs filed an instrument denominated “Appellees’ Motion to Reform The Trial Court’s Order And Second Motion For Rehearing.” By this motion appellees requested the Court of Civil Appeals to reform the trial court’s order granting the temporary injunction to include in it as an additional reason for granting it that the trial was de novo and therefore the Commission’s order revising freight rates was suspended. On the last page of the seven-page instrument is this paragraph:

“Having due respect for this Court's time, Appellees will not restate herein the Points of Error set out and discussed in their original Motions for Rehearing; but, to avoid any suggestion as to waiver, Appellees hereby incorporate and reurge each of their Points of Error previously urged.”

On July 10, the Court of Civil Appeals overruled this motion with a brief written opinion (see 373 S.W.2d 394) in which it held that the Commission’s order was not suspended by the suit even though it was to be tried de novo.

The Railroads did not file an application for writ of error. In fact, they have “switched sides” and by briefs filed in this Court defend the validity of the Commission’s order. Hill & Hill filed an application for writ of error on August 8. Oil Field Haulers and the trucking companies filed an application for writ of error on August 7. Both applications were granted.

PROCEDURAL QUESTIONS

The procedural questions will be indicated and answered separately.

1. Does this Court have jurisdiction of the application filed by Hill & Hill? We answer this question “No.” A negative answer is clearly compelled by our Rules of Civil Procedure.

If the Court of Civil Appeals’ order of June 19 be interpreted as overruling Hill & Hill’s motion for rehearing, it did not file a second motion (if authorized so to do) and did not file its application for writ of error within the thirty day period prescribed by Rule 468. Filing of the application in the Court of Civil Appeals within thirty days from June 19 was prerequisite to this Court’s jurisdiction to consider the application. Gulf Coast Rice Mills v. Orkin Exterminating Co., 162 Tex. 329, 347 S.W.2d 250.

If the Court of Civil Appeals’ order of June 19 be treated as granting Hill & Hill’s motion for rehearing and entering a new judgment, this Court has no jurisdiction of its application because it did not file a new motion and have it overruled and thus lay a necessary predicate for its application. This Court has no jurisdiction of a party’s application unless and until a motion for rehearing has been filed in and overruled by the Court of Civil Appeals. Bain Peanut Co. of Texas v. Pinson & Guyger, 119 Tex. 572, 34 S.W.2d 1090; Rule 468.

Finally, Hill & Hill cannot take a “free ride” on the Second Motion filed by Haulers even if we have jurisdiction of that application. The situation is analogous to that in which a party attempting to perfect an appeal from a trial court judgment seeks to avail himself of the benefit of another party’s motion for new trial. See Angelina County v. McFarland, Tex.Sup., 374 S.W.2d 417, 421; Neuhoff Bros., Packers v. Acosta, 160 Tex. 124, 327 S.W.2d 434.

2. Does this Court have jurisdiction of the application filed by Haulers and of the points of error contained therein? We answer the first part of the question “yes.” Strict application of the Rules would require a negative answer to the second part, but considering all of the attendant facts and circumstances, we have decided to take jurisdiction of the points.

The correct answer to the first part of the question turns on an interpretation of certain provisions of Rule 458 and of the Court of Civil Appeals’ order of June 19.

Rule 458 provides in pertinent part: “If the Court of Civil Appeals hands down an opinion in connection with the overruling' of a motion for rehearing, a further motion for rehearing may, if the losing party deems same necessary, be filed within fifteen days after such opinion is handed down * * *; but a further motion for rehearing shall not be made as a matter of right in any other case.” It will- be noted that a further motion for rehearing is expressly authorized only when an opinion is handed down in connection with the overruling of a motion for rehearing.

While the Rule does not expressly so state, a new motion or further motion for rehearing is impliedly always required when a prior motion is granted and the judgment is vacated and a new judgment is entered. This is so because under the express provisions of Rule 467 this Court may review only "final judgments of Courts of Civil Appeals upon writ of error,” and a judgment which has been vacated cannot under any circumstances be a final judgment. Bain Peanut Co. of Texas v. Pinson & Guyger, 119 Tex. 572, 34 S.W.2d 1090. A motion for rehearing which seeks a change in a judgment which is subsequently vacated, cannot lay a jurisdictional predicate for an application for writ of error.

But the order of June 19 does not purport either to overrule the original motions for rehearing or to grant them; it is a hybrid type of order which purports to overrule the motions in part and grant them in part. There is no provision in the Rules which either expressly or by necessary implication provides for the filing of new or additional motions for rehearing with respect to such an order. If the order be treated as overruling the motions for rehearing, Haulers was authorized by the quoted provisions of Rule 458 to file a second motion for rehearing if it deemed one necessary. If the order be treated as granting the motions for rehearing, Haulers was required to file a new motion for rehearing. We have concluded that orders of this type must always be treated as granting motions for rehearing, thus requiring the filing of new motions for rehearing. Having so concluded, it is unnecessary in this case to decide whether in a situation in which a motion for rehearing is overruled with written opinion a party may obtain an extension of time for filing application for writ of error by filing a further motion for rehearing when there is nothing in the new writing which could reasonably form a basis for a conclusion that one was deemed necessary.

Our conclusion that the order of June 19 must be treated as granting the motions for rehearing is derived from the fact that it modified the earlier judgment. While the modification in this case was only in a minor particular, modification or changes in judgments on motions for rehearing are often major; and a single rule applicable to all such orders treating them as though they vacate the earlier judgment and re-enter it in its modified form, whether the court expressly so states or not, will be better understood and will provide a more orderly procedure.

The instant order is to be distinguished' from one in which a Court of Civil Appeals states that it grants a motion for rehearing, or grants one in part, when it does not vacate, change or modify its earlier judgment, but only substitutes a new opinion, or adds to, or makes changes in its first opinion. In that situation the Court should not state that it grants a motion for rehearing, either in whole or in part, for it has not done so; it has overruled the motion for rehearing, stating in an opinion in connection therewith new or additional reasons for having done so. This is the precise situation that the 1943 amendment of Rule 458 authorizing second, or further, motions for rehearing was designed to meet. The amendment put in the Rule only what this Court had already declared to be proper procedure. See Bruni v. Vidaurri, 140 Tex. 138, 166 S.W.2d 81, 85. The amendment also rendered obsolete the holding in Roth v. Murray, 105 Tex. 6, 141 S.W. 515, that a change in an opinion giving new reasons for a judgment will, in justice to the losing party, be treated as granting a motion for rehearing even though the judgment is left undisturbed.

We must still decide whether Haulers’ “Motion to Reform The Trial Court’s Order And Second Motion for Rehearing” sufficiently complies with the Rules to form a jurisdictional predicate for their points of error in their application for writ of error. We have noticed the contents of the motion earlier in this opinion. That part of the motion which sought a reformation of the trial court’s judgment, of which more will be said later, cannot properly be treated as a part of the second motion for rehearing since it does not purport to assign error to any holding made by the Court of Civil Appeals in either its first or second opinion. Other than that, the motion contains nothing but the statement that “Appellees hereby incorporate and reurge each of their Points of Error previously urged.”

This Court has jurisdiction of an application for writ of error which is properly prepared and timely filed after the overruling of a motion for rehearing in a Court of Civil Appeals, but it has no jurisdiction to consider points of error contained in the application unless the points have been properly preserved in the motion for rehearing. East Texas Motor Freight Lines v. Loftis, 148 Tex. 242, 223 S.W.2d 613, 615-616; Moore v. Dilworth, 142 Tex. 538, 179 S.W.2d 940, 942. Paragraph (c) of Rule 469 requires that points of error in an application shall have been “assigned as error in the motion for rehearing in the Court of Civil Appeals.” Rule 458 prescribes the form in which assignments shall be stated in the motion. It is there provided that if a party wishes a rehearing of any matter determined by the Court of Civil Appeals, he shall file a written motion for rehearing “in which the assignments of error relied upon for the rehearing shall be distinctly specified.”

Now, obviously, when Haulers simply incorporated assignments appearing in a prior motion into their second motion by reference, they did not distinctly specify the assignments relied upon for rehearing. Adoption by reference cannot be allowed as fulfilling the requirement of the Rule. When a first motion for rehearing is granted and the judgment is vacated and re-entered, the first motion becomes functus of-ficio and may no more be used for incorporation by adoption or reference than an abandoned pleading may be. When a pleading is superseded by amendment, Rule 58 prohibits adoption of it, or of any part of it, by reference. Moreover, we could not approve "adoption by reference” practice of stating assignments as complying with the Rule even if the first motion were not functus officio. When a Court of Civil Appeals hands down an opinion in connection with the overruling of a motion for rehearing and the losing party deems it necessary to file a second motion, the motion should be sufficient in itself to comply with the requirement that all assignments relied upon be distinctly specified.

Adoption by reference is frowned upon in a good many areas of practice. Rule 274 prohibits objection to one part of the charge through adoption by reference of an objection to another part of the charge. In addition, we have held that assignments of error in a motion for new trial which only adopt objections, etc., elsewhere in the record are insufficient. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887. In the same case we held insufficient a motion for judgment non obstante veredic-to which merely recited: “These defendants here adopt, where applicable, as grounds for this Motion, those grounds previously urged upon the Court as set out in their Motion for Instructed Verdict.” It is just as important that the practice not be followed in motions for rehearing in Courts of Civil Appeals. However, inasmuch as this practice in the preparation of motions for rehearing has not been condemned heretofore by Rule or by decision of this Court, we will treat Haulers’ second motion for rehearing in this case as though it had copied therein the points or assignments of error appearing in their first motion.

3.Are the defects in the bond filed by Haulers and others preliminary to issuance of the writ of temporary injunction fatal to an order reinstating the injunction? We answer this question “No.”

It will be recalled that issuance of the temporary injunction was conditioned upon execution by the “plaintiffs” of a bond “payable to the defendants.” It will be recalled also that the bond was executed by Oil Field Haulers, Inc., and by the intervening railroads as principals. Respondents assert, in substance, that the bond is no bond at all because the trucking company plaintiffs and intervenor, Hill & Hill, did not sign the bond, the railroad plaintiffs have lost interest in continuance of the temporary injunction, and Oil Field Haulers, Inc., is a corporation in the nature of a trade association with no justiciable interest in the litigation.

In Lancaster v. Lancaster, 155 Tex. 528, 291 S.W.2d 303, 308, we held void a writ of temporary injunction where no bond was required of given; but in Ex parte Coffee, 160 Tex. 224, 328 S.W.2d 283, 292, we held that a defective bond which, upon motion, could have been amended and corrected to afford full protection would support a writ of temporary injunction. The question here is ruled by Coffee. If respondents regard the bond as insufficient for their protection they may yet apply to the trial court to have it made sufficient. We add, however, that the requirement of a bond in this case seems to be nothing more than a penalty since the Railroad Commission •and its members, the only obligees in the bond, can hardly suffer injury by virtue of issuance of the writ of injunction. See Rule 684. Lone Star Steel, which may suffer injury, is not an obligee in the bond.

4.Does this Court have jurisdiction of Haulers’ first point of error asserting that the Court of Civil Appeals erred in holding that the strict de novo appeal of the Com-, mission’s rate order did not suspend such order? We answer this question “No”.

Under this point of error Haulers argue that a suit in the nature of an appeal from a Railroad Commission rate order is to be tried de novo, citing Texas & N. O. Ry. Co. v. Railroad Commission, 155 Tex. 323, 286 S.W.2d 112; that when such a suit is filed the order from which the appeal is taken is automatically suspended, citing State, by and through State Board of Morticians v. Cortez, 160 Tex. 532, 333 S.W.2d 839; and that since the rate order was suspended by the filing of the suit, the trial court properly enjoined the Commission from putting the order into effect. Whether this argument is sound or unsound is a matter which we have no jurisdiction to decide — and which the Court of Civil Appeals had no jurisdiction to decide — because the question raised by the point of error was injected into the case too late for consideration.

Rule 683 provides that “Every order granting an injunction * * * shall set forth the reasons for its issuance.” In Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549, 553, we held that this Rule does not require the trial court to set forth the reasons why the court believes the applicant will prevail on final trial, and we said: “We interpret the Rule to require in this respect only that the order set forth the reasons why the court deems it proper to issue the writ to prevent injury to the applicant in the interim; that is, the reasons why the court believes the applicant’s probable right will be endangered if the writ does not issue.”

In this case the trial court’s order went further than required by Rule 683 as interpreted in Robertson Transports. In addition to reciting 'reasons why Haulers, et al., would suffer injury if the injunction were not granted, the order recited reasons why Haulers, et al., would probably prevail on final trial.

In its “Motion to Reform The Trial Court’s Order and Second Motion For Rehearing” Haulers asked the Court of Civil Appeals to reform the trial court’s order to include as a reason for granting the injunction that the appeal was de novo and suspended the Commission’s order. The cases cited to the Court of Civil Appeals as authorizing the requested action should be analyzed.

In City of San Antonio v. State, Tex.Civ.App., 195 S.W.2d 421, no writ, the court reformed the decretal part of a permanent injunction. The same type of reformation was ordered by the Austin Court of Civil Appeals in Texas State Federation of Labor v. Brown & Root, 246 S.W.2d 938, N.R.E., and in Texas Finance & Thrift Assn. v. State, 224 S.W.2d 522, no writ, by the Dallas Court of Civil Appeals. In the only other cited case, O’Daniel v. Libal, Tex.Civ.App., 196 S.W.2d 211, no writ, no reformation was ordered by the Court of Civil Appeals; the trial court had itself reformed its order to include “reasons.” These cases do not support the reformation asked in this case; it is one thing to narrow or expand the decretal part of an injunctive order, but something else to reform the trial court’s findings of “probable right.”

In spite of the fact that there appears to have been no sound basis for Haulers’ motion, the Court of Civil Appeals wrote the new opinion of July 10, in which it passed on the merits of the question and held that although the appeal was de novo it did not suspend the Commission’s order. On that basis the motion was overruled. Perhaps the Court thought that while it could not reform the trial court’s order, it could nevertheless uphold the injunction on the ground suggested if it were sound.

In their general attack on this Court’s jurisdiction respondents suggest that the motion was a novel one, and they state: “Not only was this a theory not presented to the Court of Civil Appeals on original submission; it .was also a theory wholly at variance with the theory on which the temporary injunction was obtained from the trial court.” The record supports respondents’ statement.

Obviously what Haulers was trying to do by its motion was to get another “reason” of “probable right” into the trial court’s order, put there by the Court of Civil Appeals. It was not entitled to have that done. Neither was it entitled to assert in the appellate courts for the first time a new ground for the granting of the injunction which had not been asserted in its pleading or presented to the trial court. That a plaintiff may not sustain a favorable judgment on an unpleaded cause of action, in the absence of trial by consent, is the general rule, see State v. J. M. Huber Corporation, 145 Tex. 517, 199 S.W.2d 501; and the general rule has correctly been held applicable to judgments denying in-junctive relief. Hayden v. City of Houston, Tex.Civ.App., 305 S.W.2d 798, 804, writ refused, N.R.E. It is equally applicable to judgments granting injunctive relief.

Having disposed of the procedural questions raised and having thus narrowed to some extent the questions which may be considered in disposing of the appeal, we come to a consideration of

THE CASE ON ITS MERITS.

The only ultimate question before the Court of Civil Appeals and before this Court is whether the trial court abused its discretion in granting a temporary injunction to prevent enforcement of the Commission’s rate order until the case can be tried on the prayer for permanent injunction. Texas Foundries v. International Moulders & F. Wkrs., 151 Tex. 239, 248 S.W.2d 460, 462. There was no abuse of discretion in the issuance of the writ if Haulers pleaded and offered evidence tending to prove a cause of action, that is, a probable right to a permanent injunction and a probable injury. Southwestern Greyhound Lines, Inc. v. Railroad Commission, 128 Tex. 560, 99 S.W.2d 263, 109 A.L.R. 1235; Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549, 552. The Court of Civil Appeals found that the evidence adduced on the hearing established probable injury, but held that as a matter of law Haulers did not and could not show a probable right to a permanent injunction. We disagree; and, accordingly, we reverse the judgment of the Court of Civil Appeals and reinstate the temporary injunction.

Haulers’ application for writ of error contains six points of error. The first point asserts that the Court of Civil Appeals erred in holding that the Commission’s order was not suspended by the filing of Haulers’ suit. We have held in our discussion of procedural matters that this question was not properly before the Court of Civil Appeals and is not properly before this Court for determination. With that problem put aside, we have only to decide whether any one of the other points presents a legal basis for the granting of a permanent injunction and whether the evidence adduced tends to establish Haulers’ right thereto. 1.

We have concluded that the sixth point presents a legal basis for the trial court’s finding of probable right. The point asserts, in effect, that the Commission’s order may be declared invalid because of the hurtful effect of the prescribed rates on competing carriers and on the needs of commerce in this State. The Court of Civil Appeals held that the order cannot be declared invalid if the prescribed rates are fairly compensatory to the railroads, even if enforcement of the order should result in financial ruin of competing carriers. That Court put its thinking in these words (369 S.W.2d 941-942):

“It is our opinion that their [motor carriers] right to avoid these injuries, or even their right of survival, must be viewed from the standpoint of public interest, free enterprise, and our competitive economic system. * * * We believe that the injuries to be sustained by appellee motor carriers represent the price they must pay for their confessed inability to be competitive in this area.”

We do not share that view of the controlling law. While we can agree that Haulers’ right of survival must be viewed from the standpoint of public interest, we are unable to agree that under governing regulatory legislation the public interest turns alone on low rates for one segment of the transportation industry.

Power to adopt, prescribe and change rates to be charged by railroads was first conferred on the Railroad Commission by an Act of the Legislature passed in 1891 creating the Commission. See Gammel’s Laws of Texas, vol. 10, p. 57. The Legislature was not concerned at that time with the effect that regulated or unregulated rail rates might have on intrastate carrier competition. It was concerned, rather, with protecting passengers and shippers against exorbitant and discriminatory charges. Heavy duties were laid upon the Commission to prevent those practices and heavy penalties were prescribed for failure of the railroads to comply with Commission orders and regulations. Provision was made for an appeal to the courts by “any railroad company or other party at interest” dissatisfied with a Commission order, and the burden was placed on, the plaintiff in the trial of "any such suit to show that the rates, orders, etc., .complained of were, “unreasonable and unjust to it. or them.” The appeal provisions of the. Act remain in substantially the same form today, and are to be found in Articles 6453 and 6454.

By the end of the first quarter of the twentieth century, motor vehicle transportation of both passengers and freight, unregulated either in its use of public roads or in passenger fares and freight charges, had begun to clog the highways, posing at the same time a threat of destructive competition to railroads. State regulation of motor vehicle transportation began with enactment by the Legislature in 1927 of a law regulating motor-bus transportation of passengers on the public highways. See Acts 1927, 40th Leg., ch. 270, p. 399. It continued with enactment by the Legislature in 1929 of a law regulating motor carriers transporting property over public highways. See Acts 1929, 41st Leg., ch. 314, p. 698. These acts as subsequently amended now appear in our statutes as Articles 911a and 911b.

From the beginning these regulatory acts have conferred upon the Railroad Commission authority to adopt and prescribe passenger fares and freight charges as well as authority to limit the number and type of vehicles using the highways through a system of certificates and permits. When the Act of 1929 regulating motor carrier's transporting property was largely rewritten in 1931, it included a declaration of public policy, now shown as Sec. 22b of Art. 911b, which reads in part as follows:

“ * * * The rapid increase of motor carrier traffic, and the fact that under existing law many motor trucks are not effectively regulated, have increased the dangers and hazards on public highways and make it imperative that more stringent regulation should be employed, to the end * * * that the use of the highways for the transportation of property for hire may be restricted to the extent required by the necessity of the general public, and that the various transportation agencies of the State may be adjusted and correlated so that public highways may serve the best interest of the general public.-”

In 1940 the Austin Court of Civil Appeals decided Texas & P. Ry. Co. v. Railroad Commission, 138 S.W.2d 927. The primary question in the case was whether an applicant was required to establish public convenience and necessity to obtain a special commodity permit. The applicant claimed a right to the'permit without making that proof, and, incidentally, claimed a right to charge such rates as he saw fit. After an elaborate analysis of the statute, the Court concluded that its primary purpose was to preserve the highways and to protect the public in their use, but added (138 S.W.2d 931) :

“The Act in question clearly discloses the additional purposes of preserving other established lines of transportation, and even though a public need be shown for additional operation, a further studied effort is shown to prevent, through regulation, unfair, discriminatory, or destructive competition between such authorized carriers as would ultimately impair 'their usefulness.”

After the case reached this Court by application for writ of error, the applicable statute was amended by Acts 1941, 47th Leg., ch. 442, p. 713 to require expressly that applicants for specialized motor carrier certificates establish public convenience and necessity. This Court reversed the judgments of the lower courts and' dismissed the suit for mootness. Railroad Commission of Texas v. Texas & P. Ry. Co., 138 Tex. 148, 157 S.W.2d 622.

. The act of 1941, supra, now a part of Art. 911b, prohibits the Commission from granting a certificate authorizing operation of a “Specialized Motor Carrier” unless it is established “(1) that the services and facilities of the existing carriers serving the territory or any part thereof are inadequate; (2) that there exists a public necessity for such service, and (3) the public convenience will be promoted by granting said application.” See Art. 911b, Sec. 5a.(d). Section 1 of the Act makes a legislative “Declaration of Policy.” A part of the declaration reads:

“It is hereby declared to be the policy of the Legislature to * * * provide regulation for all common carriers, without unjust discriminations, undue preferences or advantages, unfair or destructive competitive practices; improve the relations between and coordinate transportation by the regulation of such motor carriers [specialized motor carriers] and other common carriers; preserve the common carriers serving the public in the transportation of commodities generally over regular routes; develop and preserve a complete transportation system properly adapted to the needs of the commerce of this State and of the National Defense Program.”

A suggestion in an amicus curiae brief of The Texas Railroad Association that the declaration of public policy cannot be given effect because not adequately expressed in the bill’s caption is unsound. The declaration is but a statement of the Legislature’s reasons for, or purposes in, enactment of the statute. Sec. 35, Art. 3 of the Constitution, Vernon’s Ann.St., does not require that the Legislature’s “reasons” or “purposes” be expressed in the title of a bill; it requires only that the “subject” of the bill be expressed therein. Cf. Oklahoma Light & P. Co. v. Corporation Commission, 96 Okl. 19, 220 P. 54, and see 50 Am.Jur. 157, Statutes, § 177.

In 1946 the Supreme Court of the United States decided Steele v. General Mills, 329 U.S. 433, 67 S.Ct. 439, 91 L.Ed. 402. Basically the case involved the right of a contract carrier to recover from a shipper the difference between their contract rate for transportation services and the rate prescribed by the Railroad Commission. Incidentally, the shipper contended that the Commission was not authorized by Art. 911b to prescribe rates for contract carriers. The Supreme Court recognized the opinion of the Court of Civil Appeals in Texas & P. Ry. Co. v. Railroad Commission, supra, as correctly reflecting the law of Texas with reference to the Commission’s authority to prescribe rates, and said (329 U.S. 440, 67 S.Ct. 443, 91 L.Ed. 408):

“The Texas motor carrier legislation was designed to be a part of a state transportation regulatory system applicable alike to all lines of transportation which represents a ‘studied effort * * * to prevent, through regulation, unfair, discriminatory, or destructive competition between such authorized carriers as would ultimately impair their usefulness.’ Texas & P. R. Co. v. Railroad Commission, Tex.Civ.App., 138 S.W.2d 927, 930, 931 rev’d on other grounds, 138 Tex. 148, 157 S.W.2d 622. Cf. Stephenson v. Binford, 287 U.S. 251, 272-273, 53 S.Ct. 181, 187, 77 L.Ed. 288 [298, 299], 87 A.L.R. 721.”

The foregoing brief review of legislative enactments and judicial pronouncements renders inescapable the conclusion that the statutes authorizing regulation of carriers of goods and property in this State have broader objectives than merely providing a particular or limited service to the public at the lowest possible cost. They have objectives also of providing transportation services to all segments of business and industry where such services are necessary and of protecting those services against unfair and destructive practices, thus developing and preserving “a complete transportation system adapted to the needs of commerce of this State.” These obj ectives cannot be attained if rates prescribed for one segment of the transportation industry for part of a total service, even though fairly compensatory to that segment, are so low as to destroy another segment of the industry which is necessary to performance of the total service in meeting the needs of commerce.

Haulers hold specialized motor carrier certificates. Those applying for such certificates are under a heavy and strict burden of establishing a public necessity for their services, and the Commission must make full and complete findings of fact showing public necessity or an order granting an application is void. See Art. 911b, Sec. 5a(d); Thompson v. Railroad Commission, 150 Tex. 307, 240 S.W.2d 759. It would be paradoxical to say that the Commission is authorized to put in a transportation service, demanded by public necessity, with its right hand and to destroy it with its left, and that both acts are in the public interest. We therefore hold that Haulers are parties “at interest” within the meaning of Art. 6453 authorizing appeals from orders of the Commission prescribing and adopting rail freight rates, and that they may enjoin enforcement of prescribed rates if they can discharge the burden placed on them by Art. 6454 of showing that the rates are unjust and unreasonable to them in that there is a reasonable likelihood that their businesses and their services, for which there is a- public necessity, will be destroyed or substantially curtailed. We are not persuaded to a contrary conclusion by the opinions in Thompson v. Railroad Commission, Tex.Civ.App., 232 S.W.2d 139, reversed on other grounds, 150 Tex. 307, 240 S.W.2d 759, and Texas Motor Coaches v. Railroad Commission, Tex.Civ.App., 59 S.W.2d 923, affirmed, 123 Tex. 517, 73 S.W.2d 511, cited by the Court of Civil Appeals. Both cases involved matters to be considered by the Commission in the granting of certificates. Neither involved rate-making destruction of a service theretofore found to be a public necessity.

The parties and amici curiae cite many decisions of courts of other states, of United States District Courts and Courts of Appeal, and of the Supreme Court of the United States construing other and different legislative regulatory enactments. None of the enactments are shown to be similar in content or purpose to Texas statutes. It would serve no good purpose to analyze and distinguish them further.

The only question which remains is whether Haulers pleaded and adduced evidence tending to prove its probable right to a permanent injunction. Its pleading contains the following allegations:

“The Order of December 18, 1962, would impose rail pipe rates which would be discriminatory against plaintiff and its members. If put into effect, it will cut the rail rates on pipe to such an extent that the oil field carriers will no longer be competitive. As a result, plaintiff and its members will not participate in the transportation of pipe between any two points in Texas which can be served by railroad. And not only will the Order of December 18, 1962 have the effect of diverting intrastate shipments of pipe to the rail carriers, but it will also divert interstate ex-barge traffic to intrastate rail routes. The .long-haul transportation of pipe is a main source of revenue to plaintiff and its members, and the Railroad Commission erred in ignoring the disastrous effect that its Order of December 18, 1962, will have on the oil field carriers of this State.”

The trial court tried the right to a temporary injunction upon the sworn pleadings and affidavits. The affidavit of Edgar P. Hardin, a witness for Haulers, states:

“If the rates prescribed by the Commission in the order of December 18, 1962, become effective, the over-the-road pipe traffic, now being handled by oilfield carriers will be diverted almost entirely to the railroads. The order of December 18, 1962, cuts the rail pipe rates so greatly that oilfield carriers will be unable to compete for the transportation of pipe between points and areas in Texas * * * As an example of severe rate cutting, note the comparison at 300 miles: At the present time the rail rates are only ^/¡‡ per Cwt. below those of the oilfield carriers; under the order of December Í8, 1962, they would he 280 per Cwt. below the oilfield carrier rates. The oilfield carriers cannot compete under such conditions.
“ * * *; the net effect of the Commission’s order will be to reduce oilfield carriers to short-haul field operators insofar as pipe traffic is concerned. As a result, the oilfield carriers of Texas will be deprived of a substantial portion of the revenue upon which they now depend.”

The affidavit then summarized reports from 14 carriers for the year 1962 showing total revenue of $8,463,164.00, of which pipe shipments provided $1,658,213.00, and that the pipe shipment revenue would have been reduced 19.6% by the Commission’s order. The affidavit also referred to attached exhibits and continued:

“ * * * As is indicated in these Exhibits, the financial condition of the oilfield carrier industry is now extremely precarious; the reduction in traffic and revenue which unquestionably will result from the order of December 18, 1962, would be disastrous to this industry.”

Other affidavits were presented, but we need not examine them as we regard the affidavit just quoted as tending to prove that the businesses and services provided by Haulers will be destroyed, and thus as satisfying the requirement of showing a probable right to a permanent injunction.

It must be remembered that one is not required to prove that he will prevail on final trial in order to invoke the trial court’s discretion to grant a temporary injunction. Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549, 552. Some of the crucial factual statements in Haulers’ pleading and in the affidavit are somewhat in the nature of conclusions, but we regard them as sufficient to support the trial court’s order in the absence of special exception and objection.

In conclusion, it will perhaps be well to' state what we have not held. We have not held that a permanent injunction should issue if the evidence on final trial establishes merely that Haulers will suffer some loss of profits or revenue if the Commission’s order is enforced.

Our order granting Hill & Hill’s application for writ of error is set aside and the application is dismissed for want of jurisdiction.

The judgment of the Court of Civil Appeals is reversed and the temporary injunction granted by the trial court is reinstated.

SMITH, CULVER and NORVELL, JJ.„ concurring in the result.

ON MOTION FOR REHEARING

CALVERT, Chief Justice.

In their motion for rehearing respondents state that they are having difficulty in interpreting our opinion and that they are particularly troubled by the following sentence:

"We therefore hold that Haulers are parties ‘at interest’ within the meaning of Art. 6453 authorizing appeals from orders of the Commission prescribing and adopting rail freight rates, and that they may enjoin enforcement of prescribed rates if they can discharge the burden placed on them by Art. 6454 of showing that the rates are unjust and unreasonable to them in that there is a reasonable likelihood that their businesses and their services, for which there is a public necessity, will be destroyed or substantially curtailed.”

Respondents interpret the sentence in this language:

“It seems plain enough that the Court holds that if the plaintiffs can convince the jury that ‘their businesses and services’ will be destroyed or substantially curtailed (as distinguished from ‘some loss of profits or revenues’) they will have established, as a matter of law,that the rates under attack are unjust and unreasonable to them. Such rates must be set aside regardless of any other factor.”

In their reconstruction of the sentence, respondents omit the modifying phrase “for which there is a public necessity.” The language of the sentence was chosen with care, and to omit the modifying phrase not only does violence to the wording of the sentence but completely distorts its meaning.

The sentence is to be interpreted as written and not as respondents have rewritten it. Moreover, it should be read in context with the remainder of the opinion wherein these statements appear: “The point [petitioners’ sixth point of error] asserts * * that the Commission’s order may be declared invalid because of the hurtful effect of the prescribed rates on competing carriers and on the needs of commerce in this State. * * * While we can agree that Haulers’ right of survival must be viewed from the standpoint of public interest, we are unable to agree that under governing regulatory legislation the public interest turns alone on low rates for one segment of the transportation industry. * * * They [statutes authorizing regulation of carriers] have objectives also of providing transportation services to all segments of business and industry where such services are necessary and of protecting those services against unfair and destructive practices, thus developing and preserving ‘a complete transportation system adapted to the needs of commerce of this State.’ These objectives cannot be attained if rates prescribed for one segment of the transportation industry for part of a total service, even though fairly compensatory to that segment, are so lozv as to destroy another segment of the industry which is necessary to performance of the total service in meeting the needs of commerce.”

Haulers had the burden of showing a “probable right” to a permanent injunction. The statements quoted above from our opinion were made for the purpose of showing a legal basis for Haulers’ “probable right,” as is pointed out in the opinion. The net effect of the criticized sentence is that there is a legal basis upon which Haulers may obtain a permanent injunction against enforcement of the prescribed rates. We then held that the affidavit of the witness Hardin tended, to prove a factual basis for a permanent injunction within the requirements of governing authorities cited in our opinion. All of the requirements for invoking the trial court’s discretion to grant the temporary injunction were thus established: (1) a legal basis for granting a permanent injunction; (2) evidence tending to show that Haulers could prove a factual basis therefor, and (3) admitted probable injury in the interim if the temporary injunction were not granted. ,

Respondents’ motion for rehearing is overruled. A further motion for rehearing will not be entertained.

      . Emphasis ours throughout unless otherwise indicated.

      . All references to Rules are to Texas Rules of Civil Procedure.

      . All Article references are to Yernon’s Texas Civil Statutes.


source: Caselaw Access Project

author: WILSON, Justice.

license: Public Domain

text:
    YELLOW CAB COMPANY, Appellant, v. Jewell SMITH et vir, Appellee.
    No. 4253.
    Court of Civil Appeals of Texas. Waco.
    July 2, 1964.
    Rehearing Denied July 23, 1964.

      Gene Maddin, Waco, for appellant.
    Dunnam & Dunnam, Waco, for appellee.
   WILSON, Justice.

Judgment was rendered for plaintiff, a fare-paying taxicab passenger, on a jury verdict in her personal injury action against the cab company. The cab collided with Salko’s automobile. Roy Douglas was the cab driver. Defendant’s sole point complains of refusal of its requested issue No. 2: “Would a person of ordinary prudence riding in the automobile with Roy Douglas prior to the collision with Salko’s automobile, have objected to the manner in which the automobile was being operated by the said Roy Douglas at and immediately prior to said collision?” Another requested issue, conditioned on the answer to No. 2, was also refused. It would have inquired: “Did such failure” of plaintiff “cause or contribute to cause the accident.?” No complaint is made of failure to submit the latter issue.

Refusal to submit requested issue No. 2 is not ground for reversal. Rule 279, Texas Rules of Civil Procedure, requires a requested issue to be “in substantially correct wording,” which is held to mean “in such form as the court could properly submit as presented.” Thomas v. Billingsley, Tex.Civ.App., 173 S.W.2d 199, writ ref.; Hodges, Special Issue Submission in Texas, Sec. 66, p. 164.

Among the deficiencies in the form of the requested issue which justified its refusal by the trial court are these: (a) The issue neither places nor refers to the burden of proof as required by Rule 277. Superior Ins. Co. v. Burnes, Tex.Civ.App., 278 S.W.2d 934, 939, writ ref. n. r. e. See City of Austin v. Powell, 156 Tex. 610, 299 S.W.2d 273. (b) Standing alone, it is not a basis for judgment. The requested corollary issue does not embody the element of foreseeability in proximate cause. Where the requested special issue is one of a series of interdependent issues, all of which are essential to complete submission of an independent ground of defense not otherwise included in the charge, it is necessary that issues be requested on all of the essential controverted elements. Crain v. West Texas Utilities Co., Tex.Civ.App., 218 S.W.2d 512, 514, writ ref. n. r. e.; Federal Underwriters v. Tubbe, Tex.Civ.App., 193 S.W.2d 563, 566, writ ref. n. r. e.; Attebery v. Henwood, Tex.Civ.App., 177 S.W.2d 95, 97, writ ref. w.

m.; Southern Underwriters v. Cooper, Tex.Civ.App., 138 S.W.2d 563, 567, writ dism., c. j.; City of Wichita Falls v. Lewis, Tex.Civ.App., 68 S.W.2d 388, 391 writ dism.; Hodges, Special Issue Submission in Texas, Sec. 65, p. 163; Sec. 68, p. 168, 169; 3 McDonald, Texas Civil Practice, Sec. 12.33, p. 1153.

Affirmed.


author: MURRAY, Chief Justice.

text:
    FIRE INSURANCE EXCHANGE, Appellant, v. Clarence PAULSON et ux., Appellees.
    No. 14261.
    Court of Civil Appeals of Texas. San Antonio.
    June 24, 1964.
    Rehearings Denied July 22, 1964.
    I. Insurance <&wkey;423(2), 429.1(1)
    Baker, Botts, Shepherd & Coates, B. D. McKinney, Houston, for appellant.
    Austin Y. Bryan, Jr., Houston, for ap-pellee.
   MURRAY, Chief Justice.

This is a suit allegedly based on damages caused by Hurricane Carla. It was instituted by Clarence Paulson and wife, Julia Paulson, against Fire Insurance Exchange, Los Angeles, California, seeking to recover, on a policy of hurricane insurance, for damages done by Hurricane Carla to their home in Palacios, Matagorda County, Texas. This hurricane occurred between the dates of September 9 and 13, 1961.

The jury found, among other things, “that plaintiffs’ residence house on Lot 5, Block 97, Palacios, Matagorda County, Texas, was damaged on or about September 10 and 11, 1961, as a direct result of Hurricane Carla”; that the damage was not a direct result of tornado winds passing in the area of plaintiffs’ property; that plaintiffs’ property did not sustain loss which was directly caused by high water, whether driven by wind or not, and based upon these findings the trial court entered judgment in favor of plaintiffs in the amounts found by the jury, from which judgment the defendant Insurance Company has prosecuted this appeal.

Admittedly, the house was damaged at some time during the passage of Hurricane Carla through Palacios in September, 1961. It was one of the most destructive storms that has visited the Texas Coast, so far as property loss is concerned. Appellees left their home on Saturday, September 9, and when they returned on Wednesday, the 13th, the house was greatly damaged, especially the downstairs portion thereof. The house was left standing; there was very little damage done to the upstairs, and the shingles had not been blown off the roof. There was evidence that the flood waters had gotten up to some four and one-half feet deep in the house, not counting the waves which were very much higher. There are numerous pictures in the record showing the house after the storm had subsided, and from all these pictures it appears that most'of the damage was caused by high water rather than wind. Appellees left their home and, of course, do not know of their knowledge just how the damage occurred. There were three witnesses who stayed in Palacios and rode the storm out, ^ut -they gave no direct evidence as to whether wind or water or both caused the damage to appellees’ house. The evidence shows that at all times before the eye, or center, of the storm reached Palacios the wind .was blowing from a northeasterly direction. After the eye passed inland, due to the counter-clockwise motion of these hurricanes, the wind was reversed and in Palacios it blew in the opposite direction. The' eye reached Palacios between 3 and 4 p. m. Monday, September 11. In advance of the eye there were reports of the wind velocity reaching peak gusts of ISO miles per hour and sustained winds up to 100 miles per hour. The town of Palacios was hot flooded prior to the time the eye had passed inland, but after the eye passed and the wind began to blow from the southwest the water began to rise and the flood waters came into the town to the depth heretofore stated.

The. insurance policy here involved contained the provision that appellant would not be liable for loss caused by “snowstorm, tidal wave, high water, or overflow, whether 'driven by wind or not; nor for any loss caused by rain, whether driven by wind or not, unless the wind or hail shall first make an opening in the walls or roof of the described building, and shall then be liable only for loss to the interior of the building or the insured property therein caused immediately by rain entering the building through such openings.”

It is settled law of this State that the policy provision set out above is valid and that the burden of proving that the damage was caused by wind is on appellees, and to further show that the damage was not caused by a combination of wind and water. Coyle v. Palatine Ins. Co., Tex.Com.App., 222 S.W. 973; Cox v. Queen Ins. Co., Tex.Civ.App., 370 S.W.2d 206; Palatine Ins. Co. v. Petrovich, Tex.Civ.App., 235 S.W. 929; Niagara Fire Ins. Co. v. Muhle, 8 Cir., 208 F.2d 191.

There is of course some evidence that the damage was caused by Hurricane Carla because it occurred .during the time that Carla was passing through Palacios, but it is insufficient to show that such damage was not caused by the combination of wind and water.

There is evidence that'breaking waves in the area of appellees’ house 'could have been expected to.exert a force of approximately 400 pounds per square foot, while a sustained wind of 100 miles per hour would produce a pressure of 30 pounds per square foot and 125 miles per hour a pressure of 46 to 47 pounds per square foot. This would indicate that the damage was much more likely to have been caused by the water rather than the wind. The fact that the house was not blown down, that very little damage ’was done to the upstairs,. that shingles were not even blown off the roof, and that severe damage was done to the downstairs where the water was, all indicate water damage rather than wind damage. Further, the conditions after the storm was over indicated water damage rather than wind damage.

The jury’s answer to Special Issue No. 10, to the effect that appellees’ house did not sustain loss caused by high water is so against the great weight and preponderance of the evidence as to be clearly wrong, and therefore must be set aside.

The Supreme Court on June 10, 1964, rendered a decision in McDonald v. New York Central Mutual Fire Ins. Co., Tex., 380 S.W.2d 545, in which damages were allowed for the destruction of a house in the Palacios area by Hurricane Carla, but in that case there was testimony of eye witnesses that the house had been blown away before the high water came inland. There the house was completely destroyed before the water came, while here the house was left standing and the principal damage was done to the lower story, where the water was from four to five feet deep, to say nothing of high waves.

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


author: ARCHER, Chief Justice.

text:
    H. E. BUTT GROCERY COMPANY, d/b/a H. E. B. Food Stores of Temple and Killeen, County of Bell, Texas et al., Appellants, v. Maxine BROWN et vir, Appellees.
    No. 11217.
    Court of Civil Appeals of Texas. Austin.
    June 17, 1964.
    Haley, Koehne, Fulbright & Winniford, Waco, for appellants.
    Arthur O’Connor, Belton, Jack W. Prescott, Temple, for appellees.
   ARCHER, Chief Justice.

This is an appeal from an order overruling appellant’s Plea of Privilege to be sued in the county of its residence. Ap-pellee herein instituted suit in the District Court of Bell County, Texas to recover damages for alleged malicious prosecution. Named as defendants in this cause are J. J. Balear, Assistant Manager of the H. E. Butt Grocery Company, Temple, Texas, store and a resident of Bell County, and H. E. Butt Grocery Company, a Texas Corporation having its domicile and principal place of business in Corpus Christi, Nueces County, Texas. H. E. Butt Grocery Company, appellant herein, filed a Plea of Privilege asserting that its domicile was at all times and is Corpus Christi, Nueces County, Texas, and that no exception exists in this cause to exclusive venue in the County of one’s residence. Appellee’s controverting Plea alleged that venue in Bell County as to appellant is sustainable on the basis of subdivisions 4, 9, 23 and 29a of Article 1995, Vernon’s Ann. Revised Civil Statutes of Texas and that, moreover, appellant has established a second domicile in Bell County, Texas. A hearing on appellant’s Plea of Privilege was had before the 27th District Court of Bell County and appellant’s Plea of Privilege was overruled. The Court did not indicate the reason for or basis of its order overruling said Plea.

The appeal is predicated on one point and is that the Court erred in overruling appellant’s Plea of Privilege if it did so on the basis of either Subdivisions 4, 9, 23 or 29a of Article 1995 of the Revised Civil Statutes of Texas for the reason that ap-pellee did not allege or prove facts showing a cause of action for malicious prosecution against the resident defendant, which showing is an essential requirement to sustain venue against a nonresident defendant under aforesaid Subdivisions.

Appellee, operator of a restaurant located near Temple, Texas, in the month of May, 1963 cashed five checks aggregating $23.00 for some of her customers, and endorsed the checks to H.E.B. Store and received supplies in exchange therefor.

The checks were not paid by the Bank of Temple on which they were drawn.

On the 23rd day of August, 1963, defendant, J. J. Balear acting for and in the name of said Temple store, swore to a criminal complaint against Maxine Brown before C. C. Curry, Justice of the Peace, Precinct No. 3, Place No. 2, Bell County, Texas, of which complaint the following is a true and correct copy:

"IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS
“Before me, the undersigned authority, this day personally appeared J. J. Balear of H.E.B. Grocery who after being sworn upon oath deposes and says (that he has good reason to believe and ■does believe and charge) that one Maxine Brown on (or about) the 25th day of May, A.D. 1963, and before the making and filing of this complaint, in Justice of Peace Precinct No. 3 of Bell ■County, State of Texas, did then and there unlawfully and fraudulently pass .as true to J. J. Balear of HEB Grocery .5 instruments of writing, which said instruments in writing the said Maxine Brown knew to be forged, and did then and there so pass as true with intent to injure and defraud the said J. J. Balear against the peace and dignity of the State.
“(Signed) J. J. Balear HEB
“Sworn to and subscribed before me, this 23rd day of August A.D.1963.
“(Signed) C. C. Curry J.P.
Justice of the Peace Precinct
No. 3, Place No. 2, Bell
County, Texas”

A warrant of arrest for the arrest of Mrs. Brown was issued and executed by the Sheriff, who took her into custody and carried her to the jail and placed her therein and kept her for a short period.

A Plea of Privilege was filed by appellant, which was duly controverted and overruled by the Trial Court, and this appeal is taken.

The controlling issue in this cause is the sufficiency of appellees’ evidence to establish malice as a necessary element of the cause of action, in order to sustain venue in Bell County under Subdivisions 4, 9, 23 and 29a of Article 1995, V.A.C.S.

We have carefully considered the entire record of the evidence and believe that ap-pellee did discharge the burden imposed and that the Trial Court was justified in entering the order overruling the Plea of Privilege.

Johnnie (or J. J.) Balear testified that he was employed by the appellant and had been for more than eight years and had been Assistant Manager of the Temple store since 1958, and that Gene Swartz was the Manager and in charge of the store.

The witness testified that he knew Mrs. Brown only as a customer of the store and did not take the several checks but such were taken by one of the checkout girls; that the checks were returned “unpaid” by the Bank and Mrs. Brown was called but she did not take up the checks and later the checks were taken to a Justice of the Peace in an effort to collect the money due on the checks, under the instructions of Mr. Swartz; that when the witness arrived at Judge Curry’s office he told Judge Curry that he wanted to get the money out of the checks and for him to file on them and signed some blank forms, and, having been to the office several times before, was familiar with the complaint form, and signed such in blank, but did not know he was filing a criminal complaint.

The witness has a subsequent conversation with the District Attorney of Bell County before a grand jury.

The Justice of the Peace, C. C. Curry, testified that he knew Mr. Balear, but did not know Mrs. Brown; that Balear filed the complaint which was put on the docket; that Mr. Balear said that he had two forgeries and a regular form was used, a forgery complaint was signed in his office. Judge Curry testified that Balear told him that with regard to Mrs. Brown’s checks that some were forgeries. That there was a check for $81.00 by August Laura which shows to be a forgery, but had no connection with Mrs. Brown. Mr. Cacir, District Attorney testified that he was familiar with the case against Mrs. Maxine Brown charging forgery, which was presented to the grand jury, and a “no bill” was returned.

The witness testified as to subsequent conversations with both Mr. Balear and Mr. Swartz concerning the checks and complaint.

Mr. Balear was a man of long experience in business and was familiar with the means used to collect checks that had been returned.

It is inferable that Mr. Balear and Manager Swartz were willing to take any steps to collect the checks, and even to the extent of filing the complaint against Mrs. Brown, and it does not appear to us that Balear used that degree of care, considering the entire transaction, and with due concern for Mrs. Brown’s rights, that he should have done, and that the actions of Mr. Balear were in reckless disregard for the rights of others.

In 37 Tex.Jur.2d, page 534, Section 13, the rule is stated as follows:

“Personal spite or ill will on the part of the defendant toward the plaintiff, when proven, is relevant to the issue of malice, in an action for malicious prosecution, and it may be considered by the jury in determining whether or not malice existed. But personal ill will, anger, hatred, or a revengeful spirit is not essential to the existence of malice, any other sinister motive, disassociated from the public good and violative of the plaintiff’s right to the enjoyment of his liberty and private property, is sufficient. Thus malice may be inferred from wrongful action in reckless disregard of the rights of another, and in a spirit of indifference as to whether the other person is injured or not, even when there is no personal spite or ill will.
“Where want of probable cause is first shown, then malice may be established by proof that a criminal prosecution was not commenced for any other purpose except to subserve the private interests of the prosecutor. Thus the defendant in a malicious prosecution action will be deemed to have acted maliciously, and will be held liable, if he did not act in good faith under a belief in the plaintiff’s guilt, but instituted the original prosecution without probable cause for the purpose of collecting a debt or for procuring possession of property. But if he instituted the prosecution in good faith, believing that the plaintiff was guilty of the offense charged, he is not liable merely because he also desired to collect money owed to him by the plaintiff.
“Malice may be inferred from circumstances, and need not be shown by direct evidence; that is, the circumstances attending the prosecution may

be such as to satisfy the mind that the prosecutor was actuated by wrongful motives in the institution and continuance of the prosecution.” Andrews v. Dewberry, Tex.Civ.App., 242 S.W.2d 685, er. ref., n. r. e.

Since appellee in argument before this Court stated that he was not certain that venue could be maintained on the basis of a second domicile, we do not discuss this counterpoint.

We have carefully considered the brief and the authorities filed and cited by appellants, such as J. C. Penney Company v. Reynolds, Tex.Civ.App., 329 S.W.2d 104, er. ref., n. r. e.; Jackson v. Hall, 147 Tex. 245, 214 S.W.2d 458 and other cases and texts, but do not believe such to be controlling in view of the record in the case.

The judgment of the Trial Court is affirmed.

Affirmed.


author: STEPHENSON, Justice.

text:
    Dr. Ralph W. BRADFORD et ux., Appellants, v. Deward B. FERRELL et al., Appellees.
    No. 6604.
    Court of Civil Appeals of Texas. Beaumont.
    May 7, 1964.
    Leonard E. Choate, Beaumont, for appellants.
    Terrell Buchanan, Silsbee, Carey Williamson, Jasper, Earl Wills, Silsbee, Keith, Mehaffy & Weber, Beaumont, for appellees.
   STEPHENSON, Justice.

This is an appeal from an order of the trial court dissolving a temporary restraining order and denying a temporary injunction. The parties will be referred to here as they were in the trial court.

June 5, 1962, plaintiffs filed suit in the District Court of Jasper County -under Cause No. 6864, as a minority stockholder, against Buna Sales & Service Company, a Texas corporation, and against the majority stockholders. Various kinds of relief were sought including writs of. mandamus, spe-* cific performance of a lease contract, appointment of a receiver and damages. Twenty days later, June 25th, Cause No. '6870 was filed in the same court by Apache Lumber Company, Inc., Worthey Glass & Mirror Company, Inc., and D. B. Ferrell .as creditors against Buna Sales & Service Company for debt and for foreclosure of •certain liens. United Gas Corporation intervened in this second suit on the same date seeking the same type of relief. Also on the same date an answer was filed by ■the Buna Sales & Service Company, Inc., waiving the issuance of citation and service, admitting the amounts sued for were ■due and owing and recognizing the liens ■securing the debts. This answer also alleged that this corporation was insolvent .and that its only asset was the real estate ■subject to these liens. Also on the same •date judgment was entered for each of the plaintiffs and the intervenor for the amount sued for by each, and foreclosing the liens and ordering the property sold to satisfy the judgment.

On the 2nd day of August, 1962 plaintiffs filed an amended petition in Cause No. ■6864, which was the first case filed, naming the original defendants plus the Apache .Lumber Company, Inc., Worthey Glass & Mirror Company, Inc., United Gas Corporation and R. C. Pace, Sheriff of Jasper •County. In this amended petition the plaintiffs sought various types of relief including a temporary restraining order .against the Sheriff enjoining him from •carrying out the order of sale, a hearing and then a permanent injunction against the Sheriff for the same relief. This temporary restraining order was granted by the court, without bond, the order of sale was held to 'be null and void, and a hearing was set for August 29, 1962. On such date, following a hearing, the trial court entered .an order dissolving the temporary restraining order, reinstating the original judgment .and order of sale dated June 25, 1962, denying the injunctive relief sought by plaintiffs, and ordering the Sheriff to carry -out the original order of sale.

Plaintiffs first complain of the action of the trial court in holding the order of sale was not void. The judgment in the trial court in Cause No. 6870 was dated June 25, 1962. The order of sale was issued by the District Clerk July 2, 1962. The sheriff seized the property July 3rd or 4th, and notice was posted of a sale to be held August 7, 1962. Plaintiffs rely upon Rule 627, Texas Rules of Civil Procedure, as authority for their contention, which provides for the clerk to issue execution upon a judgment after the expiration of 20 days after the rendition of the judgment. The law in this state is contrary to such contention. Even though the order of sale was issued less than 20 days after the date of the judgment, the law is settled that such order of sale is not void, but merely voidable. The most recent case in point is Interstate Life Ins. Co. v. Arrington, Tex.Civ.App., 307 S.W.2d 146.

The question as to whether the order of sale was void or voidable is immaterial in determining the issues involved in this appeal. The sale was not held August 7, 1962, as the temporary restraining order was in effect at such time. If there has been a sale of this property, it would have to have been after the order rendered and entered September 7, 1962, which is more than 20 days after the date of the judgment. If there has been a sale of this property by the sheriff, then the question of restraining the sale would now be moot. The validity of such a sale could be tested in a trial on the merits of this case. In any event, there is no showing of an abuse of the discretion of the trial court in denying the temporary injunction. Southwestern Greyhound Lines, Inc. v. Railroad Commission of Texas, 128 Tex. 560, 99 S.W.2d 263.

It is apparent from the entire record that the trial court did not try any of the issues bearing upon the merits of the case, but only the issue as to whether a temporary injunction should be grantfed or denied. .The question as to the validity of the judgment entered in Cause No. 6870 has not' been passed upon. That portion of the judgment entered September 7, 1962 in Cause No. 6864 validating and affirming the judgment in Cause No. 6870 is stricken.

Reformed and affirmed.


author: BELL, Chief Justice.

text:
    L. T. BOLIN, Appellant, v. BRAZORIA COUNTY et al., Appellees.
    No. 14474.
    Court of Civil Appeals of Texas. Houston.
    July 16, 1964.
    Powell, Brown & Maverick, William A. Brown, Houston, for appellant.

      Tom Kenyon, Crim. Dist. Atty., Ogden Bass, Asst. Crim. Dist. Atty., Angleton, for appellees.
   BELL, Chief Justice.

This is an appeal from a judgment refusing to grant a temporary injunction.

Appellant sued the members of the Commissioners Court in their official capacities seeking to enjoin them from taking any further steps, under an order of the court dated March 23, 1964, to open a road across appellant’s property and to enjoin taking of possession of his land.

It appears that for several years a highway facility from Highway 288 at a point about six miles south of Angleton to Hitchcock had been under consideration. Members of the Commissioners Court had been in negotiations with the Texas Highway Commission concerning the construction of the facility. On May 30, 1961, the Highway Commission passed an order reciting that the facility had been under consideration for some time and that an open hearing on the routing had been held. The order then ■directed the State Highway Engineer to transmit to Brazoria County two proposals. The proposal made by the Highway Commission and accepted by Brazoria County stated that the Highway Department would construct by stages a facility ■estimated to cost $3,475,000.00 extending from State Highway 288 at a point approximately six miles south of Angleton at the intersection with a county road under -construction, thence by designated geographical locations to the end of Farm-to-Market Road 646 at the Galveston County line. The distance was 23.6 miles. No •specific description of right of way was ■given. The proposal was conditioned on right of way being furnished free of cost to the State. It was then provided that when the proposal should be accepted by Brazoria County “it is ordered that a Farm to Market Road be designated along said route and the State Highway Engineer is •directed to proceed with engineering surveys, the preparation of plans and right of way deed and to turn over such right of way deeds to the County officials for the procurement of right of way.” It was then provided that when all right of way had been procured the Highway Engineer should bring the project back to the Commission for consideration of financing construction by increments as funds should become available.

On September 30, 1961 the Commission passed an order reciting the acceptance of the proposal by Brazoria County. It then specifically directed the State Highway Engineer to proceed with engineering surveys, the preparation of right of way deeds for Brazoria County to use in procuring right of way. The State Highway Engineer was directed, after the right of way should be procured, to proceed in the most feasible and economical manner with construction annd grading and structures from State Highway 288 to a point east of Chocolate Bayou a distance of 16.5 miles at an estimated cost of $1,500,000.00.

Apparently between the date of this order and the early part of 1964, when the State Highway Commission let a contract to construct a road, the State Highway Engineer was busy doing as he was directed. The exact date of the contract is not shown. It was stipulated, however, that the contract had been executed.

The deeds giving the description of the right of way to be acquired were furnished by the employees of the Highway Department. The deeds call for a right of way 300 feet wide except where a bridge was to be built and at this point it was 350 feet wide.

In December, 1963, freeholders residing in Precinct No. 1 of Brazoria County petitioned the Commissioners Court to open a new road. It is at the same location as the field notes furnished by the Highway Commission. After requisite notice an order was passed calling for the appointment of a jury of view. The jury of view made its report which was accepted by the Commissioners Court by an order dated March 23, 1964. The order classified the road as Farm to Market Road 1561 and provided so much of it as lay within Precinct One should be a part of said Precinct and that the Overseer of Roads should cause said road to be opened in conjunction with the Texas Highway Department. The right of way sought to be acquired in this manner across appellant’s land was 300 feet, except for 350 feet at the bayou. This was the manner in which Brazoria County was acquiring the right of way for the facility referred to in the above mentioned orders of the Highway Commission. Procedure was under Articles 6702-6710, Vernon’s Ann. Tex.St.

When appellant filed his suit the Commissioners Court passed an order authorizing the Criminal District Attorney to answer the suit and to file a cross-action against plaintiff “to acquire rights-of-way upon, over and across the property of plaintiff to be used for Farm to Market Road 1561.” Pursuant to such authority such cross-action was filed under the terms of Article 3269, V.A.T.S., seeking- to condemn the same right of way described by the jury of view. The right of way description is the same as furnished by the State Highway Engineer. The cross-action was in the name of Brazoria County and the State of Texas.

The position of appellant is as follows:

1. This is a county road and the county under the jury of view may not acquire a right of way exceeding 100 feet. Art. 6704, V.A.T.S. Therefore, the proceeding seeking more than 100 feet is void.

2. This is a county road and Brazoria County may not condemn land for road purposes other than by jury of view statutes.

3. The jury of view proceedings are void because the jury of view did not lay out the road but were of the opinion it must accept the road as laid out by employees of the Highway Department.

4. There may not be a proceeding under the statutes on eminent domain, Articles 3264-3271, because this road is not a state highway because it has not been so designated by the State Highway Commission.

5. Even if it has been sufficiently designated there is no authority from the Commission or the Commissioners Court to condemn by this cross-action, because neither body has determined the land.was “necessary and suitable” for the road.

We will now notice testimony given on the hearing in addition to the documentary evidence which we have already noticed. The only witness was Brazoria County Engineer, Mr. Hershey. He had before him the plans for the road prepared by the Highway Department through its employees. These plans showed a right of way of 300 feet except at the bayou where it was 350 feet. The road for which the contract was let would be located 40 feet from the center line of the right of way. Including drainage facilities it would occupy 100 feet of right of way except at the bayou where the bridge and necessary abutments would take 128 feet. The paved surface would be 24 feet. On the overall 300 foot right of way there would be sufficient space for another road of the dimensions of that being constructed to be built.

The Highway Department furnished him with the construction plans, a set of drafts, a right of way map and the field notes for the right of way to be acquired. These field notes include the land involved here. The witness received transmittal from an employee of the Highway Department. He had no knowledge concerning action by the Commission or whether there had been determination by the Commission of the necessity to take this right of way except the project had been thoroughly discussed by the Highway Department and Commissioners Court.

This being an appeal from the judgment of the trial court refusing a temporary injunction, we need only determine whether the trial court ahused its discretion. Unless he abused his discretion we cannot disturb his judgment. Norwood v. Taylor County, Tex.Civ.App., 93 S.W.2d 573, error dism.

We need not pass on the validity of the proceedings under Articles 6704-6710, because of the cross-action filed by the County and State. We think the trial court was justified in impliedly holding that Farm to Market Road 1561 was not a County road but a part of the State Highway system that had been sufficiently so designated by the Highway Commission and that the County, therefore, under Article 6674n had authority to condemn the land under Articles 3264 — 3271. We know of no particular form of order required before it will be held to have effectively designated the road as a part of the State Highway system. The order of the Highway Commission of May 30, 1961, above referred to, provides that when the proposal has been accepted by Brazoria County it is ordered that a Farm to Market Road be designated along said route. It was a road, except for the right of way, to be constructed under contract by the State at its expense. Thereafter the evidence shows the proposal was accepted by Brazoria County and the road is being constructed on a part of the right of way under contract let by the Highway Commission. This designation of a Farm to Market Road suffices to make it a part of the Highway system. Too, this contract was let based on plans prepared by the employees of the Highway Department in compliance with directions of the Highway Commission. W. L. Moody Cotton Co. v. Commissioners Court, Tex.Civ.App., 261 S.W.2d 204, no writ hist.; Article 6673c, V.A.T.S.

Appellant concedes that if the road is a part of the \State Highway system the County has authority to condemn the right of way under Articles 3264 — 3271, provided there has been the requisite determination by the Highway Commission that the right of way sought is necessary and suitable for the road. He says, however, there "has'been no‘such determination. He is correct in- the sense that no order of the Commission appears where it has been expressly so determined. When all facts are considered the trial court could well conclude that what was done by the Commission and the Commissioners Court was necessarily a determination of necessity and suitability. The orders above referred to directed the State Engineer to prepare ’ engineering surveys and the right of way deeds. While at the date of the orders the precise location of the right of way was probably not known, the width was probably known because an estimate of the cost of the project was made. The Commission must have had before it the dimensions of the right of way to be occupied by the road before it could estimate the cost of the road it was to construct. This estimate did not of course include the right of way which was to be paid for by the County. Too, after the plans were drawn and the right of way deeds prepared and the plans showed the location of the right of way, the Highway Commission let a contract to build the road on part of the right of way. It seems to us the trial court could well conclude this was necessarily a determination that the appellant’s land was necessary and suitable for the road.

Even if we be in error in the above conclusion, still we think the judgment of the trial court must be affirmed. There is no showing that the Highway Commission had passed no other orders and in a temporary injunction proceeding we think this burclen was on appellant. We will not presume a State official did not perform its duty or acted illegally. The attorney for appellees did not stipulate there were no other orders. He was careful to say he did not know and would only stipulate the orders introduced were the only ones known to him at that time.

The judgment of the Trial Court is affirmed.


author: GREEN, Chief Justice.

text:
    Gene W. WHITE, Appellant, v. R. J. WELCH, Appellee.
    No. 80.
    Court of Civil Appeals of Texas. Corpus Christi.
    July 9, 1964.
    C. Pearce Schaudies, Harlingen, for appellant.
    Jon Dee Lawrence of Smith, Mcllheran & Jenkins, Weslaco, for appellee.
   GREEN, Chief Justice.

Based on a jury verdict, judgment was rendered for appellee R. J. Welch against appellant Gene W. White for $1,895.00 on a sworn account, plus $500.00 reasonable attorney’s fee. We affirm.

No statement of facts has been filed with us in this case.

From the pleadings of the parties, it appears that appellant and his ex-wife Phyllis K. White, following divorce, employed appellee, a certified public accountant, to perform certain services in connection with the partitioning of their community property. In a suit between the Whites involving the division of such property, being cause No. 39,926B, District Court, Cameron County, Texas, judgment was rendered, paragraph 15 of which reads as follows:

“It is ORDERED, ADJUDGED AND DECREED that the defendant, Gene W. White, assumes and agrees to pay all auditing bills in the amount of $2,215.00 as óf May 4, 1961, due to R. J. Welch, Auditor, arising out of auditing services performed on problems of said Plaintiff and said Defendant prior to such date, and said Defendant agrees to hold said Plaintiff harmless on account of any such bills, claims or services.”

The present suit was filed by appellee R. J. Welch against appellant Gene W. White and Phyllis K. White, to recover judgment for said auditing bills, less a payment by appellant of $319.95, and for reasonable attorney fees. Prior to proceeding to trial, an order of non-suit against Phyllis K. White was entered by the court on motion of appellee (plaintiff), leaving appellant as the only defendant in the case.

Appellant’s brief contains three points upon which he bases his appeal, as follows:

APPELLANT’S FIRST POINT
Appellee (plaintiff below), after filing this suit (#40497 on December 21, 1961), abandoned same and made an election of remedies, and therefore was estopped to pursue this suit, after filing for a Writ of Garnishment (#40614 — B on February 13, 1962), stated therein on oath that he had a valid subsisting final judgment in Cause #39926-B, (which was dated July 12, 1961).
APPELLANT’S SECOND POINT
The Court below erred in allowing Ap-pellee (Plaintiff below) to include paragraph 15 of Cause #39926-B, in Plaintiff’s First Amended Original Petition, over Defendant’s timely exception, and read same to the jury and put same in evidence.
APPELLANT’S THIRD POINT
Phyllis K. White was a necessary party to this suit, as primary obligor, and when the Appellee took a non-suit as to her, he then lost his right to proceed and take a valid judgment against Gene W. White.

None of these points are germane to any assignment contained in appellants Amended Motion for a New Trial filed in the trial court. As stated above, this was a trial before a jury, and the court’s judgment is based on the verdict of the jury. This appeal is from an order of the trial court overruling appellant’s amended motion for a new trial. The one and only ground for new trial contained in said motion was an allegation of improper jury argument by appellee’s attorney. The alleged improper argument is not presented to us by either bill of exception or point of error. The trial court was not advised by said motion that appellant would seek a new trial for any other alleged error.

Appellee’s Counterpoint No. 1 reads as follows:

“No error is presented to the court for consideration in any of appellant’s three points of error because none of the points were preserved in appellant’s Amended Motion for New Trial.”

Under the well-established law of this State, this counterpoint must be sustained. Collins v. Smith, Tex.Com.App., 142 Tex. 36, 175 S.W.2d 407, Nixon v. Nixon, Tex.Civ.App., 348 S.W.2d 438, writ dis.; Geochemical Surveys v. Dietz, Tex. Civ.App., 340 S.W.2d 114, writ ref. n. r. e.; Tindall v. Tacconelly, Tex.Civ.App., 328 S.W.2d 909, writ ref., n. r. e.; Texas Life Ins. Co. v. Jordan, Tex.Civ.App., 253 S.W.2d 906, writ ref.; Rules 320, 321, 324, 325, Texas Rules of Civil Procedure; Appellate Procedure in Texas, Chapter 8, Secs. 8.1, 8.2, 8.11(2); McDonald, Texas Civil Practice, Vol. 4, § 18.04. Since appellant’s Points of Error are not germane to any assignment contained in his Amended Motion for New Trial, and since they do not fall within any of the exceptions contained in Rule 324, T.R.C.P. we cannot consider them as basis for a reversal of the judgment.

Appellant in a supplemental brief says that the points upon which he bases his appeal raise a question of fundamental error having been committed by the trial court. In an appeal of which the appellate court has jurisdiction, if the record discloses fundamental error the appellate court should consider and determine same regardless of whether it is raised by proper assignment. McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265; Appellate Procedure in Texas, Chap. 7, Sec. 7.2. However, a thorough study of the record convinces us that no such fundamental error is present, and we overrule this contention of appellant.

Judgment affirmed.


text:
    AETNA CASUALTY & SURETY COMPANY, Appellant, v. Alma C. SWEARENGIN, Appellee.
    No. 11227.
    Court of Civil Appeals of Texas. Austin.
    July 8, 1964.
    Graves, Dougherty, Gee & Hearon, Austin, for appellant.
    Byrd, Davis & Eisenberg, Austin, for appellee.
   ARCHER, Chief Justice.

This was a workmen’s compensation case, which was brought by appellee against appellant, in which judgment was rendered for plaintiff.

The appeal is predicated on 6 points and are that there is no evidence, or alternatively, that the evidence is insufficient to support the finding of the Trial Court, upon which the judgment is based; that plaintiff was totally and permanently incapacitated as. a result of the accidental injury sustained by her on or about November 16, 1961; that there is no evidence or the evidence is insufficient to support the finding that there were one or more employees of the same class as plaintiff who worked in the same or similar employment in the same or neighboring place for at least 210 days during the year immediately preceding November 16, 1961; that such finding is so against the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust; that there is no evidence or alternatively insufficient evidence to support the finding that an average weekly wage which would be just and fair to both parties herein as of November 16, 1961, would be not less than $57.69; and such finding is sd against the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust.

The plaintiff tripped over an electric cord in the offices of the Austin American-Statesman, of which she was aware, and fell on her right side and testified that she felt pain in her right hip and back, and was taken to a doctor and was x-rayed, and subsequently seen by a specialist.

The appellee, 57 years of age, had worked at the newspaper office since 1957, performing duties assigned to her, the last was verifying advertisements by measuring them and tearing them out' of the paper for transmission to advertisers, and was classified as a clerk.

Mrs. Swearengin had a history of back trouble and surgery prior to her fall. In 1955 she was treated and two laminectomy operations performed to relieve pain, by Dr. LaLonde, and who saw her again in 1959 at which time she was still suffering from pains in her back, and further spine surgery was performed.

At the time of her fall in 1961, Mrs. Swearengin was doing light office work, with a regular attendance, and had not had trouble with her back since May of 1959.

The rule in “no evidence” cases is that all evidence and reasonable inferences from circumstances in evidence must be construed and received in the most favorable light in support of the judgment and all evidence leading to the contrary must be disregarded.

Biggers v. Continental Bus System, 157 Tex. 351, 298 S.W.2d 79, 303 S.W.2d 359.

Under the points of error raising “great weight and preponderance of the evidence” it is our duty to consider and weigh all the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

The plaintiff had been employed by the Austin American-Statesman since 1957, assigned to various duties. Mrs. Swearengin, at her request was assigned to measuring advertisements and sending such to the advertisers, having been a posting machine operator, with no reduction in salary.

We believe that the evidence as a whole supports the Court’s finding that ap-pellee was totally and permanently incapacitated as a result of the accidental injury sustained by her.

The plaintiff was treated by physicians chosen by appellant until in April 1962 when she was told by one of such physicians that her case had been withdrawn from his hands by the insurance company, appellant, and he could not longer treat her.

The appellee left Austin and went to be near and to be cared for by a sister, since she had no funds to pay for treatment. She relied on aspirin and bufferin for relief.

An adjuster for the carrier visited her in Comanche several times and promised plaintiff that she would receive medical treatment, but such was not furnished.

In April 1963, plaintiff’s daughter brought her back to Austin for -medical treatment under the care of Dr. Warran A. Ross, an orthopedic surgeon, who testified that he first saw plaintiff, Mrs. Swearengin, on the 4th of April, 1963 and detailed the history of Mrs. Swearengin as given him, and recited the complaints of Mrs. Swearengin as stated to him, and then set out his findings on the day he examined plaintiff as to the movements of her, that she had a forward flexed position at the hips, with a slight list of the spine to the left, and such movements were extremely slow, and on standing, the spine was extremely rigid, with marked paralumbar muscle spasms present. X-rays were made and revealed narrowing of the lumbosacral intervertebral disc space and other conditions, and it was concluded that Mrs. Swearengin had a chronic lumbosacral strain, post-operative instability, lumbar spine and was suffering significant discomfort. He related her subsequent visits and condition, and prescribed medication and treatments, and that the disability was permanent, caused and aggravated by the injury received by her in November 1961.

There were other physicians who testified and we have read such testimony and the Trial Court heard all of such, saw and observed the witnesses, the plaintiff and found that she was totally and permanently incapacitated as a result of her injury in November 1961, and was justified in such finding.

Even if plaintiff was able to do some light work this would not preclude a judgment for total and permanent incapacity.

Texas Employers Insurance Association v. Smith, Tex.Civ.App., 374 S.W.2d 287, n. w. h., and the cases cited.

It is also our opinion, considering all the evidence, that the finding of the Trial Court of total and permanent incapacity is not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust.

Points Nos. 3, 4, 5 and 6 are directed to the evidence to support the finding of the Trial Court upon which the judgment is based, that an average weekly wage which would be just and fair to both parties, as of November 16, 1961, would not be less than $57.69.

We believe that the findings of the Court on the wage rate issues are supported by the record, and that they are not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust.

Plaintiff had been employed by the newspaper since 1957, doing general office work, and at one time operated a posting machine, at which time another employee, Betty Lange, was running a posting machine.

Mrs. Swearengin requested that she be removed from the posting machine and given another duty within the accounting department doing general clerical work, and was classified as such.

At the time of her injury the plaintiff was making $10.00 per day and would have continued such work for 210 days if she had not taken a leave to have her teeth extracted.

The carrier from the date of injury on November 16, 1961 until April 12, 1962 paid plaintiff compensation at the rate of $34.61 per week, the rate found by the Trial Court, such act on the part of the carrier constitutes some evidence that the amount paid is a correct one.

Southern Underwriters v. Schoolcraft, 138 Tex. 323, 158 S.W.2d 991.

Article 8309, Sec. 1(3), Vernon’s Ann.Civ.St., provided the method of computing compensation where claimant has not been employed for at least 210 days, and such' method was used by the Trial Court in fixing what would be just and fair.

Pan American Insurance Company v. Stokes, Tex.Civ.App., 370 S.W.2d 955.

Southern Surety Co. v. Eppler, Tex.Civ.App., 26 S.W.2d 697, er. ref.

The judgment of the Trial Court is affirmed.

Affirmed.