author: BELCHER, Commissioner. WOODLEY, Judge. McDONALD, Presiding Judge

text:
    Webb WASHINGTON, Appellant, v. The STATE of Texas, Appellee.
    No. 37361.
    Court of Criminal Appeals of Texas.
    Jan. 6, 1965.
    On Rehearing March 24, 1965.
    Rehearing Denied April 28, 1965.
    James H. Martin, Jerry Chamberlain, Michael E. Schwille, Phil Burleson (on appeal only), Dallas, for appellant.
    Henry Wade, Dist. Atty., A. D. Jim Bowie, William F. Alexander, Edwin Davis and C. M. Turlington, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for murder; and the punishment was assessed at death.

The evidence of the state reveals that the appellant, an employee of the deceased who was a woman, committed a cruel and brutal murder by beating her with a hammer and choking her.

A written statement, made and signed by the appellant, and introduced in evidence by the state shows a violent killing of the deceased by the appellant without justification. The physician who performed the autopsy testified that the death of the deceased was caused by strangulation and head injuries.

Dr. Holbrook, a psychiatrist, testified that he examined the appellant, and based upon his examination he expressed the opinion that he knew the difference between right and wrong, and understood the nature and consequences of his acts.

The appellant did not testify, but called his brother and two other lay witnesses who related a spree by the appellant of drinking beer and whiskey all during the night before the killing and also of being drunk.

Appellant called one other witness, a psychiatrist, who testified that he had seen the appellant three different times since the killing and that in his opinion he was not mentally bright, that his level of intelligence was in the lower four per cent of the population, and that he answered questions on intelligence tests at about the second and third grade level. On cross-examination he expressed the opinion that appellant knew the difference between right and wrong, and understood the nature and consequences of his acts.

The appellant insists that the trial court erred in admitting in evidence certain items and objects removed by the officers from his home on the ground that they were obtained under an illegal search warrant.

During the examination of Officer Sims, a state’s witness, by appellant’s attorney the record reveals the following:

“Q. Mr. Sims, after you arrested this man here, he carried you, went with you and showed you where his home was, didn’t he?
“A. Yes sir.
“Q. Prior to that time you didn’t know where it was, did you ?
“A. I don’t recall whether I did or not.
“Q. And, anyway, he went with you?
“A. Yes sir.
“Q. To his house. And gave you permission to go in and search the house, did he not?
“A. Yes, sir.
“APPELLANT’S ATTORNEY:
Well, Your Honor, a search warrant would be unnecessary, and its just a matter of show and glamour. And we object to it. They didn’t need the search warrant, they had permission of the defendant to search the premises, the search warrant is unnecessary.
“THE COURT: All right.”

It is evident, that it is not necessary to consider the validity of the search warrant in view of the testimony of Officer Sims and the statement of appellant’s counsel.

Appellant contends that the trial court erred in admitting in evidence before the jury the written statement of the appellant without first having a hearing before the court on the issue of its voluntary nature; and also erred in failing to charge the jury on the issue of the voluntary nature of the written statement.

The testimony of Officer Dhority reveals that he told the appellant that he did not have to make any statement at all, that any statement he made could be used in evidence against him, and that the appellant then made to him a voluntary statement in writing which he signed. The statement was offered in evidence by the state.

At this time appellant’s attorney stated:

“APPELLANT’S ATTORNEY: Your Honor, I would like to ask Mr. Dhority a couple of questions on voir dire.
“APPELLANT’S ATTORNEY: I believe, Mr. Dhority, you testified that the statement which is now being offered into evidence was taken on October 17, 1963, is that correct?
“A. Yes sir, it was.
“Q. Now, the Defendant was arrested on October IS, 1963, was he not ?
“A. Yes sir.
“Q. And he was placed in the Dallas City jail on October IS, 1963.
“A. Yes sir.
“Q. Now, he had not been released from jail between October 15 and October 17, the time that the statement was made, was he?
“A. No sir.
“Q. And during that time he did not have any visitors and was not permitted visitors, was he?
“A. I don’t know. I was off two days.
“Q. You didn’t permit any visitors to visit him, did you?
“A. No sir.
“Q. He was not released from jail on any writ or court order, was he?
“A. No sir.
“APPELLANT’S ATTORNEY: All right, thank you.
“APPELLANT’S ATTORNEY: Your Honor, the Defendant will object to the admittance of the statement made by Mr. Dhority, for the reason that it is not a voluntary statement. By the testimony’ of the witnesses who testified in the case. The Defendant was incarcerated for approximately two days before any statement was made. We feel that this continual incarceration itself was an inducement, or effected a threat to the Defendant to give the statement. And for that reason we object to it, on the grounds that it violates the Fifth Amendment of the United States Constitution, that a person may not be called on to testify against himself; further that it violates the Fourteen_, Amendment, in that it was not taken according to the due process of law. That this Defendant remained in the jail for a period of over fifty hours before his voluntary so-called confession was taken, and we object to it on the grounds that it was involuntary.
“THE COURT: The Court overrules your objection, and admits the statement in evidence.
“APPELLANT’S ATTORNEY: Note our exception.”

The above quoted testimony adduced by appellant’s counsel reflects that he was not restricted in developing any evidence relating to the taking of his written statement, or that appellant was denied any request at this time.

The appellant did not testify.

The fact that the appellant was arrested on October 15, 1963, and placed in jail where he remained until October 17 when he made a written statement to Officer Dhority, does not, standing alone, raise any issue as to the voluntary nature of his written statement. Therefore the failure to have a hearing before the court on the issue of the voluntariness of the written statement, and the failure of the court to charge the jury on the issue of the voluntary nature of the statement was not error. Humphries v. State, 163 Tex.Cr.R. 601, 295 S.W.2d 218.

The evidence is sufficient to support the conviction and no error appearing, the judgment is affirmed.

Opinion approved by the Court.

ON APPELLANT’S MOTION FOR REHEARING

WOODLEY, Judge.

Appellant re-urges his contention that the court erred in allowing the introduction in evidence of items recovered in an illegal search of his home (Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; Aguillar v. State, Tex.Cr.App., 382 S.W.2d 480; Etchieson v. State, Tex.Cr.App., 382 S.W.2d 478; Mayfield v. State, Tex.Cr.App., 382 S.W.2d 940); his claim that the trial court erred in admitting appellant’s confession without first having a hearing on the issue of voluntariness (Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908); his contention that the trial court erred in failing to withdraw the confession after all of the evidence had been introduced and his contention that the court erred in refusing to submit to the jury the issue as to the voluntariness of the confession (Lopez v. State, Tex.Cr.App., 384 S.W.2d 345).

Appellant points to the following as the total circumstances surrounding the taking of the confession: Confined for approximately 50 hours after arrest and before confession; a Negro; of low intelligence; little education; no experience in crime; under illegal arrest and not advised as to right to counsel.

Captain Fritz testified that he talked to appellant on October 15, and for a few minutes on October 16. He talked to him again on the 17th for something less than an hour, following which conversation he “asked him to go with Detective Dhority into an adjoining office, or another office near there, where he could reduce what he told me to writing. And he did, he went with Dhority in there. Q. And Officer Dhority reduced it to writing? A. Yes, sir.”

Dr. Holbrook, psychiatrist, testified that appellant’s I.Q. “would place him at the very extreme lower limits of normal in his functioning.”

Dr. Beavers, Assistant Professor of Psychiatry at the University of Texas Southwestern Medical School, Consultant at the Terrell State Hospital; on the staff of Parkland Hospital and in charge of the men’s ward of Woodlawn Psychiatric Hospital, saw appellant on November 7, November 11 and November 14, at the request of defense attorney, for evaluation. In addition to the testimony set out in our original opinion, he testified:

“This man, it became apparent, as I worked with him, is not bright. He has a very small amount of general information. And his ability to comprehend information and put it together is quite limited.
* * * I feel that I can make two diagnoses on this man, the first being a mild mental retardation, from the clinical evaluation and from the psychological testimony; the second diagnoses is one of inadequate personality based on his response to the clinical interview, and the other history of borderline adjustment.”

We do not agree with appellant’s contention that the trial court erred in admitting the confession to the jury or in failing to withdraw it at the conclusion of the evidence.

Neither do we agree with the state’s contention that the undisputed evidence shows that the confession was voluntarily made and was admissible.

We have concluded that the trial court should have responded to appellant’s objection and exception to the charge and submitted to the jury the issue of the volun-tariness of the confession. Lopez v. State, Tex.Cr.App., 384 S.W.2d 345.

While Jackson v. Denno does not support appellant’s contention that the trial court erred in admitting the confession and does not require that a jury rather than the court resolve disputed issues of fact concerning the voluntariness of the confession, it is authority for the proposition that it is now axiomatic that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 915, citing Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760.

“A defensive theory when raised by the evidence should always be submitted to the jury. The defendant has a right to an affirmative instruction on every defensive issue raised by the evidence whether the evidence is produced by the state or by the defense, whether it is strong or feeble, whether it is unimpeached or contradicted, or whether it is conflicting.” 31 Tex.Jur. 2d p. 660, Sec. 110.

Though the evidence shows a cruel and brutal murder, appellant’s guilt is established only by the confession and corroborating evidence obtained as the result of a search of his home with his consent, while under arrest.

The omission of a charge requiring the jury to disregard the confession unless they found beyond a reasonable doubt that it was voluntarily made was calculated to injure the rights of appellant and requires reversal

Appellant’s motion for rehearing is granted, the affirmance is set aside and the judgment is reversed and the cause remanded.

McDONALD, Presiding Judge

(dissenting)-

In deciding a question raised by the record on appeal the appellate court will, as nearly as possible, place itself in the position of the trial judge when testing the ruling made by him.

When the written statement was offered in evidence by the state, the appellant asked and was permitted to examine on voir dire the officer to whom it was made, as shown by the original opinion. No request was then made to offer any further evidence on the issue of the voluntary nature of the statement.

I am not aware of any case where the the accused did not testify, as in this case, that custody and interrogation, alone, of an accused were sufficient to require that the .issue of the voluntary nature of his written statement be submitted to the jury.

I respectfully dissent.


source: Caselaw Access Project

author: COLLINGS, Justice.

license: Public Domain

text:
    GRAYSON ENTERPRISES, INC., Appellant, v. TEXAS KEY BROADCASTERS, INC., Appellee.
    No. 3937.
    Court of Civil Appeals of Texas. Eastland.
    Feb. 12, 1965.
    Rehearing Denied March 12,1965.

      Wagstaff, Alvis, Pope, Doscher & Charl-ton, John H. Alvis, Abilene, Douglas E. Bergman and John W. Hicks, Jr., Dallas, for appellant.
    McMahon, Smart, Sprain, Wilson & Camp, T. J. McMahon, Abilene, for ap-pellee.
   COLLINGS, Justice.

Texas Key Broadcasters, Inc. brought this suit against Texas Telecasting, Inc. and Grayson Enterprises, Inc. alleging a breach of contract on the part of defendants and failure of consideration for the contract, praying for damages and rescission. Thereafter by supplemental petition plaintiff sought a temporary injunction. Subject to its plea of privilege the defendant Grayson filed its answer contending that plaintiff’s petition for a temporary injunction showed on its face that plaintiff had an adequate remedy by way of damages for any alleged breach of the contract sued upon. The court granted a temporary injunction enjoining Grayson Enterprises, Inc. from deducting and appropriating any money or funds collected or received by it under any purported agency contracts between the parties. Grayson Enterprises, Inc. has appealed.

The allegations of plaintiff’s petition indicate that appellee, Texas Key Broadcasters, Inc. entered into a contract with Texas Telecasting, Inc. of Lubbock, Texas, which became effective on or about December 1st, 1960, under the terms of which Texas Telecasting, hereinafter designated as T.T.I. leased to appellee a monochrome micro-wave transmission system for the purpose of conducting KPAR T.V. in Sweetwater and Abilene. The contract was composed of two parts, first that designated as exhibit “A” which dealt with the micro-wave contract purporting to regulate and define the rights and duties of the parties with relation to the transmission signal; that T.T.I. agreed that it would operate and maintain the said micro-wave system and make such repairs as were necessary to assure its continuous operation, and for such service was to receive $2610.00 per month. The remaining portion of the contract designated as exhibit “B” dealt with the rights and obligations of the parties with relation to equipment involved, including that used at the transmitter site then located at Sweetwater and subsequently at Trent, including also some equipment used at the broadcasting studios. Appellee further alleged that on October 31, 1961, Grayson Enterprises, Inc., hereafter referred to as Grayson, purchased all of T.T.I.’s facilities and became its successor in relation to the contract in question, and soon thereafter assumed active control of the micro-wave system, and assumed the obligations imposed upon T.T.I. under the terms of the contract.

Appellee, Texas Key Broadcasters, alleged that the defendants failed to operate and maintain said micro-wave system and to make such repairs as were necessary to assure its continuous operation; that at the time of making the contract the parties knew that the purpose thereof was to enable appellee to broadcast televised programs of a quality that would enable appellee reasonably to compete with other telecasting broadcasting systems operating in that area; that from the inception of the contract the quality of said signal gradually deteriorated and was subject to frequent interruptions for periods averaging from a few minutes to hours and even days at a time; that on one occasion there was a complete absence of any signal over said system for a period of more than two weeks; and by reason of such breach and failure appellee was compelled to procure said signal from another source at a cost of $5,000.00 per month. Plaintiff alleged that the constant failure of appellant to comply with the requirements of said contract to maintain such signal amounted to a complete breach thereof; that the consideration therefor, insofar as appellee was concerned, wholly failed and that appellee was entitled to a complete rescission thereof.

- By the terms of that portion of the contract attached to appellee’s petition and designated as exhibit A it was further provided that T.T.I. was appointed national sales agent to sell national advertising placed on KPAR T.V. and that T.T.I. would remit to KPAR the net proceeds of such national sales received by it subject to the provisions of paragraph 13. By the terms of paragraph 13 it was provided that KPAR thereby assigned to T.T.I. the net proceeds of national sales each month to the amount of the lease installments due each month as set out in the contract to guarantee payment thereof; that said exhibit A was collateral to exhibit B and that any default by appellee of the terms of exhibit A should be deemed a default of the terms of exhibit B, and any default by appellee of the terms of exhibit B should be deemed a default of the terms of Exhibit A.

Thereafter appellee filed its first supplemental petition in which it, under oath, alleged, among other things, the following:

“2.
“Plaintiff would show unto this Honorable Court that notwithstanding the filing of this action and the asserted termination of the contract marked Exhibit ‘A’ attached to Plaintiff’s Original Petition herein, and notwithstanding the allegations of said petition reflecting a complete and total breach thereof by the defendants, and the prayer of plaintiff for cancellation of said contract and for relief insofar as this plaintiff is concerned of fulfillment and performance of any obligation purportedly imposed upon the plaintiff thereby, said defendant has arbitrarily deducted from the amount of money belonging to this plaintiff, representing the proceeds of advertising over the telecasting station of this plaintiff, the sum of $2610.00, purported to be the rental for the micro-wave system for the month of June, 1964.
“3.
“Plaintiff would further show unto this Honorable Court that notwithstanding the allegations of the plaintiff’s petition filed herein reflecting the termination of said contract for said micro-wave system, said defendants will continue to appropriate said purported monthly rental until such time as they are prevented from doing so by this Honorable Court.”
* íjí Jfc % *
“6.
“This plaintiff would show unto this Honorable Court that it has no adequate remedy at law in the premises; that in view of the installment nature of both Exhibits ‘A’ and ‘B’, plaintiff will be subjected throughout the pend-ency of this action to recurring problems in relation to its status under the terms of — said contract, which problems can only be alleviated by permitting and requiring all moneys in the hands of either party hereto belonging to the other to be paid into the registry of this Honorable Court for ultimate distribution in accordance with the terms of any judgment which may be rendered by this Honorable Court.”

The order of the court provides:

“Said defendants, and each of them, are hereby enjoined and restrained, during the pendency of this suit, from deducting and retaining to their own use and benefit any sum of money out of funds in their hands belonging to plaintiff as purported rent payable under the terms of Exhibit ‘A’ — the aforesaid restraints shall be fully operative and effective throughout the pendency of this suit on condition that plaintiff each month pay into the registry of the court, at such times as same would otherwise be due, a sum equal to what otherwise would be rent under the terms of said Exhibit ‘A’ attached to plaintiff’s petition in this cause, which said fund so paid into the registry of the court by plaintiff shall remain in the registry of the court pending the determination of this cause and the proper and rightful owner of said fund.”

In several points appellant Grayson complains of the action of the court in granting the temporary injunction enjoining it from deducting the micro-wave lease payment from the proceeds of the national advertising sales, and in permitting appellee to pay the micro-wave rental payments into the registry of the court pending final disposition of this case instead of making such payments to Grayson. Appellant contends that the temporary injunction was improper because appellee failed to allege and offered no proof of irreparable injury; that the allegations of appellee’s petition show that it has an adequate remedy at law, and that the granting of the injunction results in a change of the status quo.

Generally speaking, contractual rights will not be enforced by writs of injunction. It is well settled that this rule prevails in a suit for damages for breach of a contract when there is no showing of irreparable injury, or when an adequate remedy at law is available. Hill v. Brown, Tex.Com.App., 237 S.W. 252. Appellee did allege that it had “no adequate remedy at law”, but such an allegation standing alone is a mere conclusion. Specific facts should be alleged showing the probability of irreparable injury. Wilson v. Whitaker, Tex.Civ.App., 353 S.W.2d 945; 24-A Tex.Jur. pg. 281.

It is appellee’s contention that in the absence of a denial under oath a verified petition may constitute valid and sufficient evidence to support the granting of a temporary injunction. Assuming without deciding this contention to be correct we cannot agree that appellee’s verified pleadings in the instant case support the granting of this temporary injunction. By the terms of this contract as described and exhibited as a part of appellee’s petition, appellant agreed to furnish to appellee a micro-wave signal. In consideration therefor appellee agreed to pay appellant $2610.00 per month, and to guarantee appel-lee’s performance, appellant was authorized to deduct from proceeds of designated funds in its possession belonging to appellee an amount sufficient to cover said monthly lease payment. The action of the court in enjoining appellant from making this deduction was a modification of the contract and a change of the status quo which is not favored in equity. The general rule is that a court’s discretion may be exercised to maintain the status quo. This suit, as shown by appellee’s petition, is for a rescission of the contract because of the alleged breach by appellant, and for damages alleged to have been sustained by appellee because of the breach. Appellee did not allege nor is there any showing that Grayson is insolvent and will or may be unable to respond in damages if a trial on the merits reveals that Grayson is guilty of a breach of the contract as alleged. We agree with appellant’s contention that under these facts there is no showing that appellee has suffered irreparable injury. We are of the opinion that the record shows that appellant has an adequate remedy at law in its suit for damages. Appellant’s points in this connection are sustained.

Appellee further contends that since there is no statement of facts in the record or other showing concerning the existence or nonexistence of evidence it must be presumed that sufficient evidence was introduced to support the judgment. The general rule is that in the absence of a statement of facts on appeal it must be presumed that sufficient evidence was introduced to support the findings and judgment of the trial court. Lane v. Fair Stores, 150 Tex. 566, 243 S.W.2d 683. In the instant case, however, the judgment recites the things which it considered in rendering judgment and evidence was not included therein. The judgment says: “The court having considered the petition filed herein by plaintiff and the sworn supplemental petition filed herein by plaintiff, and having heard argument is of the opinion that plaintiff is entitled to the relief prayed for * * , Because of this recitation in the judgment of the matters which were considered in rendering judgment it cannot be presumed that the court considered evidence.

For the reason stated the judgment is reversed and judgment rendered dissolving the temporary injunction.


author: BELL, Chief Justice.

text:
    James A. SNYDER, Appellant, v. Bess SCHILL, Appellee.
    No. 14461.
    Court of Civil Appeals of Texas. Houston.
    Dec. 3, 1964.
    Rehearing Denied March 18, 1965.

      Collins, Moore & Putnam, Gene E. Putnam, Houston, for appellant.
    Bernard & Bernard, Donald R. Bernard, Houston, for appellee.
   BELL, Chief Justice.

Appellee was the surviving mother of Margelet F. Snyder, deceased. Mrs. Snyder, who prior to her alleged marriage to appellant was Margelet Fowle, was an assured under a group life insurance policy issued by Metropolitan Life Insurance Company. Appellant allegedly married the deceased March 12, 1960. The insurance policy provided that in the absence of a named beneficiary the proceeds would be paid to the surviving spouse of the deceased and if there was no surviving spouse to the parents or surviving parent. Appellant claimed the proceeds of the policy as the surviving husband. Appellee, asserting that appellant was never legally married to deceased because he was at the time of the marriage ceremony between him and deceased legally married to another, claimed the proceeds.

Appellee filed suit against the insurance company. The insurance company filed a cross-action interpleading appellant. It tendered the amount of the policy, $6,000.00, into the registry of the court, prayed for attorney’s fees and asked that it be discharged. On trial before the court without the intervention of a jury, the court rendered judgment discharging the insurance company with its attorney’s fee; rendered judgment that appellant take nothing and that appellee recover the proceeds of the policy, less the attorney’s fee.

The court filed its findings of fact and conclusions of law. It found these facts:

1. That appellant married Reta R. Knapp on February 1, 1958, in Geneva, Ohio.

2. That appellant attempted to consummate a ceremonial marriage to Margelet Fowle March 12, 1960.

3. That appellant admitted to Margelet, Bess Schill and Ruth Anson, at a time subsequent to his purported marriage to Mar-gelet, that he was still married to Reta R. Knapp. That again after the death of Margelet on May 15, 1961, appellant admitted to Bess Schill and Ruth Anson that he was still married to Reta R. Knapp and was not entitled to any of the estate of Margelet because he was not legally married to her. (Emphasis ours)

4. James Snyder never denied his own admissions to his prior existing marriage.

5. Based upon the uncontroverted evidence of appellant’s admissions against interest it was found that he was married to Reta R. Knapp when the marriage ceremony was performed between appellant and Margelet.

The court filed conclusions of law that these admissions were sufficient to overcome the presumption of termination of such prior marriage arising from the subsequent attempted ceremonial marriage to Margelet. The existing valid marriage of appellant to Reta R. Knapp was a legal impediment which rendered his attempted marriage to Margelet wholly void.

Appellant contends there was no evidence to support the trial court’s finding that he was still married to Reta R. Knapp when he attempted to marry Margelet. Also, he asserts such finding to be against the overwhelming weight and preponderance of the evidence.

Appellant is correct in his contention that where a person marries again, after having once been married, a presumption arises that the previous marriage had been dissolved at the time of the subsequent marriage and the burden is on the person attacking the validity of the subsequent marriage to overcome this presumption by proving the previous marriage had not been dissolved by annulment, divorce or the death of the previous spouse.

The question we have is whether ap-pellee discharged that burden. We must review the evidence.

Appellant, for some reason, was not present at the trial of his case. This fact appears from the unchallenged statement contained in appellee’s brief.

Mrs. Schill and Mrs. Anson were the only witnesses testifying though a part of appellant’s deposition was introduced in evidence.

The portion of Mrs. Schill’s testimony material to our inquiry, given in question and answer form, is as follows:

“Q. Did you ever discuss anything concerning the relationship between James A. Snyder and your daughter with James A. Snyder ?
“A. * * * When they came to me and told me his wife had called her, my daughter, and told her, she says, ‘You are not married.’ ”

Objection was made to this on the ground it was hearsay. The court did not specifically sustain the objection but did state the attorney was asking what conversation she had with Snyder. The above testimony was never stricken nor was request made to have it stricken. The witness then answered, “Oh, I see. Well, there was both of them. I talked to both of them. I talked to both of them at once.” The court then told the witness not to state what the daughter said.

“Q. * * * My question is about when the two of them came to your house and discussed the matter with you. The judge would like to know what James A. Snyder told you at that time.
“A. He just said he thought he had been divorced, but he didn’t know it didn’t go through. That is one thing he said.
“Q. What else did he say?
“A. He said that he was going to take care of it right away and straighten it out.
“Q. * * * Did you talk to him again about this?
“A. Well, no, because she passed away and he came over and talked to me alone.
“Q. Well, what did he say at the time that he talked to you?
“A. Alone? He said that * * * He was sitting there talking and I said, ‘James, you know you can’t get Margaret’s (Mar-gelet’s) insurance or anything because you are not legally married to her’ and I says, ‘you have not got a divorce,’ and he said, ‘I Know it.’
“Q. James A. Snyder said that he knew he was not legally married ?
“A. He says, T know it.’
“Q. Mrs. Schill, will you state whether or not on the occasion * * * when you were in bed with a broken hip * * * James A. Snyder mentioned the name Reta R. Knapp to you ?
“A. Well, no, he didn’t mention that name at that time.
“Q. At what time? When did he mention it to you?
“A. Well, he mentioned it when they came over and told me he was not divorced.
“Q. When was that?
“A. It was some time, I think in October & % %
“Q. Of the year before she passed away?
“A. Yes.
“Q. And he mentioned that name as being the name of the person he was still married tot (Emphasis ours)
“A. Yes.”

Mrs. Anson, the sister of the deceased, gave the following testimony:

“Q. Will you state to the Court on what occasion, that is, where, when, who was present, when you discussed this matter with James Snyder? (His relationship to deceased)
“A. Well, this was in my mother’s home. I was visiting her on the weekend.
“Q. When was that?
“A. The latter part of October or the 1st of November, 1961. (1960)
“Q. * * * Will you state what you discussed with James Snyder at that time?
“A. Well, he discussed with us the fact that he was not married legally to my sister, that he had a second wife and was not divorced from her, and it was a discussion between all of us. (Emphasis ours)
“Q. Did you talk to James A. Snyder on any other occasions about his marital relationship with his former wife?
“A. Yes.
“Q. Will you state on what occasion you discussed this with him?
“A. This was after my sister’s death, and he came to my mother’s home. * * * and my mother mentioned to him * * * and I was standing right by him * * * that he should take care of this divorce business if he hadn’t already done it.”

There was evidence introduced from the District Clerk of Harris County that he had checked the Index Cards of his office covering the period from January 1, 1958 through May 30, 1962, and no divorce had been granted on a proceeding involving appellant and Reta R. Knapp. By deposition appellant had testified he was working in Harris County in 1959 and 1960.

In his deposition appellant denied that he had ever been married to anyone except Shirley Chambers, from whom he was divorced in about 1956 in Sullivan, Indiana. He had three children by her. He was not specifically asked about a marriage to Reta R. Knapp. He was asked about his marriage to a woman named “Frieda” and he denied such and said he did not know where that name came from. Apart from the admissions above set out, the marriage to Reta R. Knapp was sufficiently proven by a certified copy of the marriage certificate and admissions of fact made therein by appellant.

We think there was evidence of probative force to support the trial court’s finding that appellant’s marriage to Reta R. Knapp had not been dissolved at the time he purported to marry the deceased. We are also of the view that such finding is not contrary to the overwhelming weight and preponderance of the evidence.

There is, of course, a presumption that arises from the fact of a subsequent marriage that previous marriages have been dissolved. It is said to be one of the strongest presumptions known to law and that the presumption is itself evidence that may even outweigh positive evidence to the contrary. The strength of the presumption increases from the lapse of time, acknowledgment by the parties to the marriage, and the fact that the legitimacy of a child may be involved is a factor in sustaining the validity of the marriage. The presumption is grounded on public policy that favors morality, innocence, marriage, and legitimacy. Texas Employers Ins. Ass’n v. Elder, 155 Tex. 27, 282 S.W.2d 371.

The presumption, however, is not a conclusive one and may be overcome by evidence which standing alone negatives dissolution of the previous marriage. She is not required to prove absolutely or to a moral certainty that the previous marriage has been dissolved. Dockery v. Brown, Tex.Civ.App., 209 S.W.2d 801, no writ hist.

Appellant’s position is that the only reasonable inference that can be drawn from the above testimony is that appellant had never procured a divorce from Reta R. Knapp. He says that it follows there is no evidence to support the trial court’s finding that this marriage had not been dissolved because Reta could have procured a divorce or annulment and for all the evidence shows she could have been deceased when he married Margelet.

Appellee’s position is that the above testimony does not merely show that appellant had never procured a divorce from Reta but it shows, because of appellant’s admissions, that he was still legally married to Reta when he married Margelet, and that he recognized he needed to obtain a divorce. This admission, she says, established that the previous marriage had in no way been dissolved.

The effect of the above testimony is to show that someone, purporting to be the wife of appellant, called Margelet and told her that she (Margelet) and. appellant were not legally married. Whether the person calling was actually Reta, we are not specifically informed. In the light of common experience, it would seem permissible to draw the inference that it was in fact Reta because who else would likely call about such a matter? On what the person who called based her statement we are not specifically informed because the court did not permit the conversation of Margelet with her mother to be completed though the evidence shows appellant was present, participating in the conversation and from what he said it appears he did not deny that his wife called and stated appellant and Margelet were not legally married. However, it is a matter of common knowledge that persons know that, apart from death, a marriage is dissolved only by divorce or annulment. It seems not to be an unreasonable inference that she was saying she had not procured a divorce or annulment. In this conversation appellant said he thought he had been divorced and didn’t know it didn’t go through and he would straighten it out. Considering the surrounding facts and circumstances appellant’s statement amounted to much more than that he had not procured a divorce. Having at least heard from Margelet that his wife had called and told her that Mar-gelet and appellant were not legally married, he, for reasons of his own, accepted such statement as true and merely explained he had thought a divorce had been procured. Then he said since it had not he would take care of it and straighten it out. Too, Mrs. Anson said in that same conversation appellant discussed “ * * * the fact that he was not married legally to my sister, that he had a second wife and was not divorced from her * * * ” This is more than evidence that he had not gotten a divorce from Reta because the discussion was a part of the conversation in which Margelet had said appellant’s wife had called and said appellant and Margelet were not legally married. His speaking of the fact that he was not divorced was merely a recognition by appellant that Reta was still living, had not herself procured a dissolution of the marriage relationship and that he had not. Then, after Margelet’s death, Mrs. Schill stated to appellant, in the light of this previous conversation, that appellant could not get Margelet’s insurance or anything because he was not legally married to her and he “had not got a divorce [meaning from Reta].” Appellant answered, “I know it.” Then the leading question was asked, “James A. Snyder said he knew he was not legally married?” The witness answered, “He says, T Know it.’ ” Here again the inference may be drawn that he recognized he was still married to Reta and that it was necessary for him to procure a divorce from her. When all evidence is considered the inference is permissible that he was affirming that he was still married to Reta.

These were admissions by a party to the suit and the only party who could be adversely affected by the admissions. Generally, admissions made by a party to the suit that are inconsistent with the position being taken by him in the suit are admissible, not only for impeachment but also as substantive evidence on a material issue to which they may be relevant. McCormick & Ray, Texas Law of Evidence, 2d Ed., § 1121. This is true, as to the party to the suit making the admission, even though his admission may be based wholly on hearsay.

In the case of McNeely v. Southwestern Settlement and Development Corp. et al., Tex.Civ.App., 284 S.W.2d 167, no writ hist., the trial court had instructed a verdict against McNeely on his claim of adverse possession because it concluded McNeely’s admission of unopposed possession by persons claiming under the record owner destroyed the adverseness of his possession. The facts had merely been told McNeely by his wife but he testified to them as facts. The contention that the testimony was purely hearsay was overruled. The court said:

“George McNeely seems to have been out of the county at the time of the intruding use * * * so could not have had personal knowledge of this use; but he is a party to the suit and his testimony * * * was an admission and admissible as such, to prove the truth of the facts related by him, because of the inconsistency between his testimony and the position he takes as a claimant by adverse possession; and it was not necessary that he have personal knowledge of the facts he testified to, * * * ”

In McCormick and Ray, Texas Law of Evidence, 2d Ed., § 1125, the rule is stated thus:

“In general it may be said that admissions are not subject to the rules of testimonial qualifications. In particular, personal knowledge. * * * is not required in respect to admissions. Thus if party makes a statement as a matter of fact, it is admissible against him, although his knowledge is based entirely on hearsay.”

See also Wigmore on Evidence, 3rd Ed., § 1053.

The fact that the admission made by a party is a conclusion or opinion does not prevent its use. McCormick and Ray, Texas Law of Evidence, 2d Ed., § 1126, and Wigmore on Evidence, 3rd Ed., § 1053.

As we observed earlier, the presumption of the dissolution of a prior marriage is itself evidence. It is stronger when the lapse of time between the two marriages has been long and where legitimacy of children is involved. Here only a little less than three years had elapsed between the two marriages. There is no question of legitimacy of children involved, because there is no evidence of children of the subsequent marriage. We have here no question of a continuance of the second marriage because the innocent party to it is dead. The basic reasons for the policy are, therefore, absent. The only party whose rights are affected by giving effect to the admissions of appellant is appellant himself and he is no innocent party.

Under the facts of this case, we feel ap-pellee discharged her burden.

The judgment of the trial court is affirmed.


author: MURRAY, Chief Justice.

text:
    MOTOR TRUCK SALES COMPANY, Appellant, v. W. B. HAUCK, Sheriff, et al., Appellees.
    No. 14349.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 17, 1965.
    Rehearing Denied March 17, 1965.

      Matthews, Nowlin, Macfarlane & Barrett, William H. Nowlin, San Antonio, for appellant.
    Donald Peters, Houston, for appellees.
   MURRAY, Chief Justice.

This suit was instituted in the District Court of Bexar County by Motor Truck Sales Company against W. B. Hauck, Sheriff of Bexar County, Bambeck Trust Estates, Lawyers Surety Corporation, and L. L. Barnes, doing business as Bottlers Service Company, to recover the sum of $1,687.44, for the alleged wrongful sequestration of one 1960 G.M.C. truck-tractor, Serial No. BA 5505-M1041G. The plea of privilege of Bambeck Trust Estates was granted and the cause as to it was severed and transferred to the District Court of Harris County, Texas. The cause as to the other defendants was heard before the court, and judgment was rendered in favor of Motor Truck Sales Company against L. L. Barnes, doing business as Bottlers Service Company, in the sum of $1,687.44, together with interest and attorney’s fees; and further judgment was rendered that Motor Truck Sales Company take nothing as to W. B. Hauck, Sheriff, and Lawyers Surety Corporation, from which judgment Motor Truck Sales Company has prosecuted this appeal.

The facts are not disputed and are as follows: On December 31, 1962, General Truck Sales of Houston, Texas, delivered the G.M.C. truck-tractor here involved to L. L. Barnes under a conditional sales contract. A certificate of title was issued to Barnes, reciting a lien in the sum of $4,608.-00 in favor of Bambeck Trust Estates. Thereafter on November 27, 1963, Bottlers Service Company delivered said G.M.C. truck-tractor to Motor Truck Sales Company, appellant herein, for the purpose of having certain repairs made. An order was signed by a duly authorized agent of Bottlers Service Company, but not by mortgagee, for this repair work, which order contained an express mechanic’s lien to secure the amount of repairs. Appellant made the repairs to the G.M.C. truck-tractor, but has never been paid for this work, amounting to $1,687.44. On December 30, 1963, while Motor Truck Sales Company was holding in its possession the G.M.C. truck-tractor to secure its bill for making the repairs thereon, under its contractual and statutory lien, W. B. Hauck, Sheriff of Bexar County seized the vehicle and took it from the possession of appellant, under and by virtue of a writ of sequestration issued out of a lawsuit which was instituted on December 21, 1963, in the 164th District Court of Harris County, Texas, in which Bambeck Trust Estates was plaintiff, and L. L. Barnes, doing business as Bottlers Service Company, was defendant. Appellant was not a party to this suit and was a stranger to the writ of sequestration. It is appellant’s contention that the seizing of this G.M.C. truck from its possession by virtue of this writ of sequestration was wrongful, and this suit was instituted for the purpose of recovering the damages which it suffered thereby.

At the trial, the certificate of title held by Barnes was introduced. It showed on its face that there was a lien against said truck in the sum of $4,680.00 in favor of Bambeck Trust Estates, and no other liens were shown in the certificate. The conditional sales contract was introduced in evidence which showed, among other things, that the title to said motor vehicle was to remain in the seller, and “if the owner of this contract shall feel insecure or believe said motor vehicle will be lost to him * *, the owner of this contract may take possession of said motor vehicle without notice or demand and with or without process of law * * It is apparent that appellant’s lien is not shown in the certificate of title, and it is a junior lien to that held by the Bambeck Trust Estates, which was the basis of the writ of sequestration. It is further apparent that appellant was not claiming title to the G.M.C. truck, but was merely holding it as security for its repair bill. It is appellant’s contention that the writ of sequestration was void as to it, and that the Sheriff was without authority to seize the truck from its possession when it was not a party to the suit in which the writ of sequestration was issued. The lien retained in the conditional sales contract and shown in the certificate of title was a prior lien to that held by appellant, and appellant failed to show that it had any right to retain possession of the truck as against the holder of the first lien. Commercial Credit Co. v. Brown, Com.App., 284 S.W. 911; Perkins v. Martel, Tex.Civ.App., 277 S.W.2d 741; Williams v. Cawthon, Tex.Civ.App., 237 S.W.2d 652; Fritz Motor Co. v. Gabert, Tex.Civ.App., 41 S.W.2d 72; General Motors Acceptance Corp. v. Merritt, Tex.Civ.App., 16 S.W.2d 296; Overland Auto Co. v. Findley, Tex.Civ.App., 234 S.W. 106; Jesse French Piano & Organ Co. v. Elliott, Tex.Civ.App., 166 S.W. 29; 36 A.L.R.2d p. 232, § 3.

The enactment of the “Certificate of Title Act” has changed the law as to the recording of chattel mortgage liens on motor vehicles. Now the liens must be shown in the Certificate of Title. Art. 1436 — 1, Vernon’s Ann. Penal Code. Christian v. Boyd, Tex.Civ.App., 222 S.W.2d 157; Higgins v. Robertson, Tex.Civ.App., 210 S.W.2d 250; 7 Tex.Jur.2d 404.

Appellant contends that the levy of the writ of sequestration and the seizure of the truck while in its possession was illegal because it was not a party to the suit. We can not agree. Osage Oil & Ref. Co. v. Mulber Oil Co., 10 Cir., 43 F.2d 306. If appellant could have shown that its lien was superior to that of Bambeck Trust Estates, its contention that the seizure was unlawful would be valid. But where the evidence clearly shows that its lien was subordinate to that of Bambeck Trust Estates, the fact that it was not a party to the suit is unimportant. It has now had its day in court and it has failed to establish that it had any right to obtain possession of the truck as against the Bambeck Trust Estates that holds a prior lien. The trial court properly rendered judgment that, appellant take nothing as against the appellees herein.

The trial court did not err in admitting in evidence the certificate of title and sales contract, because they established the fact that Bambeck Trust Estates held a superior lien to that of appellant’s.

The judgment is affirmed.


author: PARKER, Justice.

text:
    G. G. MALLETT, Sr., Appellant, v. HOUSTON CONTRACTING COMPANY, Appellee.
    No. 6740.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 11, 1965.
    Rehearing Denied March 10, 1965.

      Fred A. White, Port Arthur, for appellant.
    Orgain, Bell & Tucker, Beaumont, for appellee.
   PARKER, Justice.

G. G. Mallett, Sr., sued Houston Contracting Company for damages sustained by him due to the blocking of a public road to Mallett’s farm, resulting in loss of a hay crop, loss of sale of building material, the value of one cow, and the expense of mulching the rotten hay on his land. Trial was to a jury. At the close of evidence, the court instructed the jury to return a verdict for Houston Contracting Company. Judgment was entered thereon. The motion for instructed verdict is not found in the transcript. Mallett will be designated as plaintiff. Houston Contracting Company will be designated as defendant.

In plaintiff’s original petition he identifies the location of the road after which he alleges: “Said route constitutes a public road and has been used by the public generally and indiscriminately since about the year 1903.” This allegation contains a legal conclusion. The entire petition gives fair notice to defendant of the cause of action relied upon by plaintiff. Defendant did not avail itself of the provisions of Rule 91 and specially except to this allegation in any manner, thereby waiving whatever the pleading may lack in the way of particularity as to how the road became a public road. Defendant did avail itself of Rule 91 as to another matter. Its answer consisted of a general denial a special plea that the road was a private road, a special denial that the loss of plaintiff’s hay crop was due to the blocking of a road; that the plaintiff failed to exercise ordinary care in minimizing the damage to his hay crop by refusing the offer of defendant to assist in the moving of the hay baling equipment to plaintiff’s field. Plaintiff’s pleading was sufficient to raise the question of whether or not a public road was involved.

Let us see what the evidence is to support this pleading. J. C. Courts was 62 years at the time of trial. He had been familiar with this road since he was a small boy, traveling the road once a week in his younger days. The road was open to the public. No one ever stopped him from using the road. At the end of the road was plaintiff’s farm and what was known as the Old Eliza Hillebrandt home. He traveled this road from 1914 until 1948.

Elam Rice testified that he farmed plaintiff’s land for 5 years, beginning in 1947; that he used this road as other people also did. Before he farmed this tract of land, he was familiar with people living in the area that had to use the road.

N. A. Peveto testified that he had been acquainted with the road since 1931; that he traveled the road 2 or 3 times a week; that within his knowledge the road had been traveled by the public before he moved out there; that he went over the road 2 or 3 times a week for IS or 20 years; that the county kept the bridges in repair across the canal, there being 3 of them and that the county maintained the road while he was there.

E. M. Randall testified that he was employed by Jefferson County, worked under County Commissioners Helmke and Walker in Road Construction, Maintenance and Repair; that he maintained the road in question for the county beginning in 1948 until he retired in August of 1963. He further testified that said road was a thoroughfare open to everyone to travel.

Plaintiff testified that he had been familiar with the road for 33 or 34 years; that the road had been used over 30 years by people who owned property near his property, having egress and ingress over the road without any “molestation”.

J. T. Fisher with the Jefferson County Engineering Department prepared a map under the direction of the County Engineer, which was adopted by the Commissioners’ Court of Jefferson County, Texas, showing the road in question. He testified that it was maintained by the City and by the County for some 16 years to his knowledge and was traveled generally by the public. One of the bridges on the road he knew was built by Drainage District No. 6. Prior to the preparation of the map he was instructed to show all roads over which traffic was traveling. A survey team for the County informed him there was traffic on this road and for that reason it showed as a road on the map.

There is considerable evidence supporting plaintiff’s contention that this was a public road. Aerial map of 1953 shows this road. In 1892 Gladys City Oil, Gas & Mfg. Company, a corporation acquired title to some 1400 acres, including that part of the road blocked by defendant. Damages in the sum of $7,000.00 were paid by defendant to Mr. E. W. McCowan, who was a lessee of Gladys City, including damage to the roadway. Although there is no direct evidence of any specific declaration on the part of the ancient owners indicating an intention on their part to dedicate to public use such roadway, there is substantial evidence that since 1903, some 60 years before the institution of this suit, that the use of such roadway by the public generally has been open, continuous and adverse to the owners thereof. From the conduct of the owner as the road was used by the public generally, the jury could find as a fact that the owner consented to the use of its land as a highway to the extent that it dedicated such roadway to public use. O’Connor v. Gragg (S.Ct.1960) 339 S.W.2d 878, dealing with like facts held:

“In the case of Owens v. Hockett, 151 Tex. 503, 251 S.W.2d 957, 958, this court quoted with approval language in the case of Abbott v. Mills, 3 Vt. 521, 527, 23 Am.Dec. 222, which we think is equally applicable here. In that case the court said: ‘ * * * the act of throwing open the property to the public use, without any other formality, is sufficient to establish the fact of a dedication to the public; and if individuals, in consequence of this act, become interested to have it continue so, * * * the owner cannot resume it.’
“Common law dedications, such as the one here involved, are subdivided into two classes, express and implied. This dedication falls in the latter class. The unequivocal acts and conduct of the petitioner, O’Connor, and his predecessors in title, show an implied intention to appropriate the roadway to public use. ‘ * * * If the open and known acts are of such a character as to induce the belief that the owner intended to dedicate the way to public use, and the public and individuals act upon such conduct, proceed as if there had been in fact a dedication, and acquire rights which would be lost if the owner were allowed to reclaim the land, then the law will not permit him to assert that there was no intent to dedicate * * *.s Elliott, Roads and Streets (2d Ed.), Sec. 124, p. 121 ”

In Dunn v. Deussen, (Tex.Civ.App.1954) 268 S.W.2d 266, 269, the court said:

“ * * * In the Owens case the Supreme Court quoted with approval from Brown v. Kelley, Tex.Civ.App., 212 S.W.2d 834, by this court: ‘ “However, the theory of implied dedication carries with it the idea that the owner consented to the use of his land as highway to the extent that the court will hold that he dedicated it to public use, whether by express words, overt acts, or even by such inaction on the part of the owner as would justify a conclusion that he intended to dedicate his land to public use!” ’
“A dedication may be shown by circumstances. Owens v. Hockett, supra.”

It is undisputed that the defendant blocked this road so that it was impassable for some time. There is evidence that plaintiff was damaged as set forth in his petition. It cannot be said that as a matter of law such road was a public road and plaintiff’s point of error claiming error upon this ground is overruled.

There is no evidence that the owners of the land over which the road passed ever objected to its use by anyone. There is evidence that the road has been in the same location for many years. Issues of fact were raised as to whether such road was a public road. Issues of fact were raised as to the damages sustained by plaintiff by reason of the blocking of said road. Plaintiff’s points of error complaining of the ruling of the court to the contrary are sustained.

Judgment of the trial court is reversed and the cause remanded for trial.


author: DUNAGAN, Chief Justice.

text:
    G. L. FLORENCE, Appellant, v. Ruth B. FLORENCE, Appellee.
    No. 75.
    Court of Civil Appeals of Texas. Tyler.
    Feb. 4, 1965.
    Rehearing Denied March 18, 1965.

      Troy Smith, Smith & Smith, Tyler, M. G. Mell, Gilmer, for appellant.
    F. L. Garrison, Garrison & Bolding, Gil-mer, for appellee.
   DUNAGAN, Chief Justice.

This is an appeal from a temporary injunction restraining appellant from disturbing the appellee at her work or at their residence and an order allowing appellee to continue use of the residence of the parties during the pendency of the suit. This appeal grows out of a presently pending divorce suit in which appellee is cross plaintiff and appellant is cross defendant.

On November 12,1962, appellant filed suit for divorce against appellee in the 115th Judicial District Court of Upshur County, Texas. Appellee duly filed her first amended original answer, which in addition to denying the allegations in plaintiff’s amended petition, she prayed for a division of the property, for attorney’s fees, and that plaintiff take nothing by his suit.

On October 29, 1963, the case went to trial before a jury and a verdict was returned on the 30th day of October, 1963. The verdict of the jury was against appellant.

On January 8, 1964, appellant filed a motion requesting the court to enter a judgment against him and in favor of the defendant in accordance with the answer of the jury to the special issues submitted to them. The motion was set for hearing on January 24, 1964.

On January 24, 1964, prior to pronouncement or entry of the judgment denying appellant a divorce, appellee filed a cross action in said cause wherein she sought divorce from appellant, a division and adjudication of the property rights existing between the parties, and that she be awarded the use and benefit of the residence of the parties therein described during the pendency of the suit, or until further order of the court.

On February 7, 1964, appellee filed her application for temporary injunction which in part she makes the following allegation:

“Accordingly, cross plaintiff prays the Court to enter its order fixing a time and place for hearing this her application to be awarded the temporary use and occupancy of the residence house herein described, during the pendency of this suit, or until further orders of this Court.
“Cross plaintiff shows to the Court that at the time of the filing of said cross action, the attention of the Court was not called to the above quoted paragraph by reason of the fact that cross plaintiff understood that her quiet, peaceable and exclusive occu-pany of the property hereinabove described was to continue uninterruptedly.
“Cross plaintiff shows to the Court that on Friday, January 31, 1964, on Monday, February 3, 1964, and on Wednesday February S, 1964, the cross defendant has demanded of cross plaintiff a key to such residence and the right to freely enter into said house at will, to live therein, if he chose, and in short to do any and all other things necessary to establish and maintain complete dominion of and over such house, this cross plaintiff and her children. Cross defendant has further stated that he, at all costs, intended to enter said house, even to the extent of chopping a door in or down, for the purpose of gaining entrance.”

Cross plaintiff further alleges “that while she has had the uninterrupted and peaceable use, possession and occupancy of the residence house formerly occupied by both cross plaintiff and cross defendant, she fears that unless the Court makes and enters its order awarding to her the right to live in such house, cross defendant will in some manner or fashion attempt to dispossess cross plaintiff and her children from said house. In this connection, cross plaintiff alleges and shows to the Court that she had no home other than the home occupied by her at this time.” The appellant further alleges that the parties became separated on the 4th day of October, 1962, by appellant leaving, and that since such time the appellee has lived in such residence and has the exclusive use and occupancy of it as a home for herself and children.

Appellee therein prayed that “the Court make and enter an order at this time maintaining the status quo which has existed between the parties for a period of 16 months by awarding to cross plaintiff the exclusive use and benefit of the premises owned by the parties and located and situated at 504 S. Montgomery Street, Gilmer, Up-shur County, Texas. And that until a hearing can be had on such application, the Court temporarily restrain and enjoin the cross defendant from coming around, about or upon such premises, or from in any way molesting or harassing cross plaintiff or in any manner interfering with cross plaintiff’s right to the exclusive use and benefit of such premises and the quiet, peaceable possession thereof, and that on hearing hereof the cross defendant be permanently enjoined in like manner during the pendency of this suit, or the further orders of this court, and for such other and further relief, generally and specially, to which cross plaintiff may show herself entitled to recover herein.”

On February 7, 1964, appellee was granted a temporary restraining order as prayed for. A hearing on her application for temporary injunction was set for hearing on February 15, 1964.

Although appellant was duly cited and served with notice of the date of hearing on the application, he failed to appear or answer therein.

On February 15, 1964, upon the hearing of appellee’s application, a temporary injunction was granted restraining and enjoining appellant from “coming around, about or upon the premises where cross plaintiff may be living or working, or may otherwise be, and from molesting or threatening her in any manner.” The court further in said order awarded ap-pellee the use, possession, occupancy and control of the residence homestead of the parties during the pendency of the suit.

From this order appellant has perfected his appeal to this court.

The trial court, pursuant to request therefor, filed his findings of fact and conclusions of law. We quote in part from such findings and conclusions as follows:

“Plaintiff voluntarily left the residence homestead of the parties on October 4, 1962 and has not made any attempt to resume residence at the homestead until on or about the 1st day of February, 1964.
“Since the date of separation of the parties, defendant and cross plaintiff has had the exclusive use and occupancy of the residence homestead of the parties without any opposition on the part of cross defendant.
“Cross plaintiff’s counter claim filed herein on the morning of January 24, 1964, reflects her pleading to the effect that she feared that unless the court entered an order awarding her the exclusive use and occupancy of such residence, the cross defendant probably would attempt to dispossess her and her children from said house.
“On cross plaintiff’s application for a temporary restraining order, filed herein on February 7, 1964, to restrain cross defendant from trying to effect entry into the residence of the parties, and from coming about cross plaintiff or harassing her in any manner, this court did grant such relief to her without notice to cross defendant. Notice of this action was duly served on cross defendant and as well a notice for him to appear in the district courtroom on February 15, 1964, and show cause why such order should not continue as a temporary injunction effective during the pendency of this action.
“Cross defendant and two of his attorneys of record were present in the Upshur County Courthouse previous to the hearing, but they personally advised the court that cross defendant and his counsel would not make appearance in the district courtroom during such hearing on the mentioned show cause order.
“Subsequent to the filing of cross plaintiff’s counter claim, cross defendant on or about February 1, 1964, began demanding of her the key to the residence house and telling her that he was coming back into the house whether he got a key or not and would do whatever was necessary to effect entrance.
“Cross defendant came to the place of employment of cross plaintiff on three occasions and each time he created a disturbance by threatening that he would gain entry into the residence regardless of opposition, which greatly embarrassed cross plaintiff as well as causing her to be fearful of cross defendant for her personal safety as well as her peace of mind.
“Cross plaintiff has no home of her own and has no funds to provide herself with another home during the pendency of this action and is in need of a home for herself and her children until final disposition of this cause.”

At the outset of this opinion we desire to reiterate and emphasize that the trial in the district court was confined solely to the issues of the application for equitable relief in the form of a temporary injunction and the order granting appellee the right to use the home during the pendency of the suit. In an action, of this kind it is only necessary for the proponent of the application for equitable relief to show a reasonable necessity therefor.

The appellant contends that the trial court abused its discretion in granting the temporary injunction for several reasons, one being “that the pleadings in this case are wholly insufficient to authorize the granting of an injunction.” In light of this contention we have carefully examined appellee’s cross action and application for temporary injunction. We reach the conclusion that the pleadings were sufficient to warrant the trial court’s action in granting the temporary injunction.

In a hearing on an application for temporary injunction the only question before the court is the right of the applicant to a preservation of his status quo of the subject matter of the suit pending a final trial of the case on its merits. To warrant the issuance of the writ the applicant need only show a probable right and a probable injury; he is not required to establish that he will finally prevail in the litigation. Where the pleading and evidence present a case of probable right and probable injury, the trial court is clothed with broad discretion in determining whether to issue the writ and its order will be reversed only on a showing of a clear abuse of discretion. There is no abuse of discretion in the issuance of a writ if the petition alleges a cause of action and the evidence adduced him to sustain it. Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549; James v. E. Weinstein & Sons, 12 S.W.2d 959 (Tex.Com.App.); Texas Foundries, Inc. v. International Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460; Southwestern Greyhound Lines, Inc. v. Railroad Commission of Texas, 128 Tex. 560, 99 S.W.2d 263, 109 A.L.R. 1235; Chesterfield Finance Company v. State of Texas, 331 S.W.2d 368 (Tex.Civ.App.) error refused.

The “status quo” to be preserved by temporary injunction is “ ‘the last, actual, peaceable, noncontested status which preceded the pending controversy.’ ” Transport Co. of Texas v. Robertson Transports, Inc., supra; Lone Star Mining Company, Inc. v. Texeramics, Inc., 340 S.W.2d 871 (Tex.Civ.App.) writ ref., n. r. e.

The granting of a temporary injunction is largely within the discretion of the trial court, and unless a clear abuse of that discretion is shown on appeal his acts will not be disturbed. Texas Foundries, Inc. v. International Moulders & Foundry Workers’ Union, supra; Southwestern Greyhound Lines, Inc. v. Railroad Commission of Texas, supra.

In suits for temporary injunction, the trial judge is endowed with broad discretion to grant or deny the injunction. Accordingly, the scope of appellate review in such cases is limited to the narrow question of whether the action of the trial judge in granting or denying the temporary injunction constitutes a clear abuse of discretion. Janus Films, Inc. v. City of Fort Worth, 163 Tex. 616, 358 S.W.2d 589.

Furthermore, the court may make such temporary orders respecting the property and parties in a pending divorce action as are necessary and equitable. Article 4636, Vernon’s Ann.Civ.St. provides:

“Pending suit for a divorce the court, or the judge thereof, may make, such temporary orders respecting the property and parties as shall be deemed necessary and equitable.”

Although the power given the trial court is not unlimited, it appears the District Judge has the broadest possible powers in making necessary temporary orders. Allen v. Allen, 366 S.W.2d 650 (Tex.Civ.App.) no writ history; Kinsey v. Kinsey, 77 S.W.2d 881 (Tex.Civ.App.) no writ history.

It has been held by the Supreme Court of Texas in the case of Ex parte Godeke, 163 Tex. 387, 355 S.W.2d 701, that:

“ * * * A cause still pends in a trial court so long as a judgment rendered therein remains subject to attack by motion for new trial or subject to judicial vacation or modification by such court under the terms and provisions of Rule 329b.”

Applying this rule of law to the record before us, this case was pending in the trial court at the time the order was entered granting a temporary injunction to appellee.

Appellant next contends that the questions involved in this case are solely questions of law. He says that “the rule is well established that a court abuses its discretion in granting an injunction when only questions of law are involved.”

In support of this contention the appellant cites the case of Southland Life Ins. Co. v. Egan, 126 Tex. 160, 86 S.W.2d 722. This case is authority for the proposition that if the undisputed facts submitted upon the hearing for a temporary injunction, in support of the application therefor, are such that solely questions of law are presented, the trial court’s action is reviewable, and should be reviewed on appeal. Tyree v. Road Dist. No. 5, Navarro County, Tex.Civ.App., 199 S.W. 644, writ ref.; Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517.

Appellant further contends that appellee’s cross action was a nullity and therefore the court abused his discretion in granting a temporary injunction because :

A. “Final Judgment having been rendered in Florence v. Florence, the claimed Cross-Action in Ruth B. Florence v. G. L. Florence could not be filed in that case.
B. “Ruth B. Florence, under rules, was required to file her Cross-Action in due tiitie so the same could be tried and disposed of at same time G. L. Florence’s case was tried.
C. “Judgment in the case of Florence v. Florence, No. 12,834, is res judicata of the matters to be raised in the so-called Cross-Action filed by Ruth B. Florence and she is estopped by that Judgment.”

The record in this case reveals that appellant on March 2, 1964, filed a plea alleging that the trial court had no jurisdiction as to the cross action of the ap-pellees. As we view this pleading it encompasses the same questions of law which appellant attempts to raise in this court on this appeal. The trial court has never been granted an opportunity to pass on the questions raised by the plea to the jurisdiction because same was never presented to that court for its determination insofar as this record shows. We hold that these questions of law cannot be determined by this court until they have been adjudicated by the trial court and brought forward through proper channels before this court for review.

It is the settled law of this state that the appellate court cannot act until the court whose decision it had power to review has made a decision. Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641; 3 Tex.Jur.2d, page 294, Section 26.

The matters here complained of were not raised on the hearing for temporary injunction. In fact, the appellant nor either of his attorneys appeared at the hearing nor contested appellee’s application for temporary injunction. Neither did appellant, prior to the order of the court granting the injunction, file any pleading in the trial court challenging appellee’s right to maintain and prosecute her cross action.

Finding the pleadings sufficient and the evidence in this case ample to support the court’s findings and judgment, the judgment is affirmed.


author: CLAYTON, Justice.

text:
    F. I. DYER, Appellant, v. The STATE of Texas, Appellee.
    No. 5677.
    Court of Civil Appeals of Texas. El Paso.
    Feb. 17, 1965.

      Finley & Scogin, Kermit, for appellant.
    Waggoner Carr, Atty. Gen., Charles Lind, Leslie King, T. B. Wright, Ass’t Attys. Gen., Austin, Ed Keys, Monahans, for ap-pellee.
   CLAYTON, Justice.

This is a condemnation case filed in connection with the construction of a road in Ward County, Texas for which the county is acquiring right of way and 50% of the expense of which acquisition is to be reimbursed by the State of Texas. Plaintiff’s (appellee’s) Statement was filed in the County Court of Ward County, and thereafter Special Commissioners were appointed who assessed the damages to the owner-appellant from the taking of the right of way easement at $4,372.50. Date of taking was fixed at January 16, 1961. The State filed its Objections to said award of damages and the matter was tried before a jury. In answer to special issues the jury found that the market value of the land taken was $7,500.00 and that the value of the owner’s remaining land remained the same after the taking. Judgment was rendered on this verdict and the landowner appeals.

Appellant presents twenty-seven points of error arranged in various groups, which grouping will be followed, in general, by this court. The first nine points relate to the testimony of one Lomax, a witness for the State, while Points Ten through Twelve level similar complaints against the testimony of one Rash (Raish?), another State’s witness. The complaints include alleged error in allowing the witnesses to testify on direct examination to the mental processes by which each witness arrived at his opinion or conclusion as to the value of property, with no limitation of purpose for which such testimony was offered; that such testimony involved the examination of deed records and revenue stamps and statements of third persons, all of which was hearsay, and also involved remote sales of improved property as compared to the unimproved property in this cause, all without limitation as to purpose.

A review of the record fails to reveal that any objection was made to the admission of the indicated testimony unless limited to the purpose for which it was admitted. The objections to the testimony seem to be confined to the fact that it involved hearsay or as to remoteness of comparable sales, together with the complaint that the witnesses were allowed on direct examination to reveal the details or mental processes by which each witness arrived at his conclusion as to the value of the land at issue. This last objection seems to be based upon certain language in the Supreme Court decision in City of Austin v. Cannizzo, 153 Tex. 324, 267 S.W.2d 808, 816: “* * * but inquiry into the details or mental processes by which the witness arrives at his conclusion is only proper on cross examination for the purpose of testing the credibility of the witness or for laying a predicate for impeachment.” This language in the Can-nizzo case is, however, modified in the later Supreme Court decision in State v. Oakley, 163 Tex. 463, 356 S.W.2d 909, where, at page 914, it is stated:

“In a sense, of course, testimony of an expert witness concerning comparable sales which he has considered in reaching his opinion touching the value of the property under consideration involves an inquiry into the mental processes of the witness; the real question, however, is whether such testimony, which is inadmissible to prove the facts of such sales as evidence of the value of the property condemned, is likewise inadmissible in another capacity, that is, to show a basis of the opinion value stated by the expert witness and in which capacity the testimony is not hearsay in the true sense. The better reasoned view, in our opinion, is that the testimony is proper in such latter capacity, where, as in the case at bar, the testimony is given by a professionally qualified appraiser whose qualifications, and the comparability of the sales to which he testified, are not challenged. The discretion of the trial judge, particularly in these latter respects, together with the opportunity on cross-examination to bring' out facts contradictory to the statements and conclusions of the expert, and the instruction of the court limiting consideration by the jury of the testimony beyond the purposes for which it was admitted, are substantial safeguards against its misuse. Moreover, whatever facilitation of expert testimony in a condemnation proceeding there may be under our holding is available alike to the condemnor and condemuee.”

The same holding is found in a still later Supreme Court case: State v. Baker Bros. Nursery, Tex., 366 S.W.2d 212, where such testimony was offered for the "limited purpose of showing what the appraiser considered in arriving at his opinion of the value” and not as direct original evidence of the facts stated therein, and the court admitted such testimony for this limited purpose. See also the 1964 Civil Appeals case of State v. Rumery, 381 S.W.2d 87 (ref., n. r. e.), in which the court states, at pages 89 and 90:

“In the search for market value the information an appraiser might gain from sales here shown is worthy of note, though the tracts are dissimilar in very important respects. There are safeguards against these sales being accorded weight by the jury other than as a factor considered by the appraiser in arriving at his value conclusion. The court’s instruction limiting the purpose for which the evidence is admitted and cross examination that emphasizes the negative aspects of comparability are the protective shields of the party resisting the impact of the appraisers’ testimony.” (Citing cases).

While we feel that on the basis of the above authorities the complained-of testimony of the two witnesses, Lomax and Rash (or Raish), was probably not admissible without a limiting instruction by the court, if such limiting instruction had been requested, we fail to find in the record any request that the testimony be so limited to the purpose for which such testimony was admitted. See Fisher Construction Company v. Riggs, 320 S.W.2d 200, 209 (Civ.App., 1959, rev. other grounds, 160 Tex. 23, 325 S.W.2d 126); Travelers Insurance Company v. Barrett, 366 S.W.2d 692, 695 (Civ.App., 1963, n.w.h.), in the latter of which it is held: “Had there been a request on the part of the defendant to limit the purpose for which the testimony might be considered it unquestionably would have been so limited by the trial court, but no such request was made”, citing the Riggs case and 17 Tex.Jur. 361, § 122. In the appellant’s amended motion for new trial, containing 37 assignments of error, only two assignments relate to the failure of the trial court to limit the testimony. These assignments are in identical language, one directed to Lomax’ testimony and the other to Rash or Raish’s testimony, and read as follows: “The error of the Court over objection of Defendant in permitting Plaintiff’s witness,-, on direct examination to go into hearsay sales with no limitation thereon but for the reason of prejudicing the Jury with certain sales picked from the records by Plaintiff’s expert witness, -, and disregarding others.” We do not feel that these assignments properly preserved the alleged error, nor do we feel that the error (if such it was) amounted to such a denial of the rights of appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in this case. Rule 434, Texas Rules of Civil Procedure. The Commissioners’ award to appellant was $4,372.50, and the jury awarded appellant $7,500.00 damages. The first twelve points of error are overruled.

We find no merit in the thirteenth and fourteenth points of' error complaining of the court having permitted State’s counsel, over objection, to cross-examine one of appellant’s witnesses on the definition of an appraiser, and the difference between an appraiser and a realtor. The points are overruled.

In his fifteenth through twentieth points of error appellant assigns as error the overruling of his motion for dismissal of the cause after the State had rested, and in overruling appellant’s motion for new trial for the failure of the State to prove “negotiations” and its failure to prove that prior to filing its petition in condemnation that it had made an effort in good faith to agree with the defendant on compensation for the land taken and in damages to the remainder of the land involved; for failing and refusing to submit a requested special issue inquiring of the jury whether such an effort had been made and in finding as a fact that all prerequisites and jurisdictional facts had been complied with, since there was no evidence, and no competent evidence, and insufficient competent evidence to sustain a finding that the State had made such a bona fide effort to agree with appellant prior to filing petition herein.

Section 3264 of Title 52, “Eminent Domain”, Texas Revised Civ.St., sets out the rules of procedure to be followed by a condemning authority. It states in part: “ * * * the party desiring to condemn the property after having failed to agree with the owner of the land on the amount of damages shall file a statement in writing with the county judge of the county in which the land or a part thereof is situated. It shall describe the land * •* * and that the plaintiff and the owner have been unable to agree upon the value of the land or the damages.” (Emphasis supplied). Such a statement was filed in this case, alleging inability to agree with F. I. Dyer, the owner of the property, and in support of such allegation the State put the County Judge, as Judge of the Commissioners’ Court, on the stand and the following transpired:

"DIRECT EXAMINATION
“By Mr. Lind:
“Q Judge Estes, are you familiar with the subject property, the Dyer property under condemnation?
“A I am.
“Q Do you know the owner, Mr. F. I. Dyer?
“A I do.
“Q Did you make Mr. Dyer an offer?
“A I did.
“Q What did he do, sir ?
“A He refused the offer.
“MR. LIND: Pass the witness.
“CROSS EXAMINATION
“By Mr, Finley:
“Q Judge Estes, at the time that you talked to Mr. Dyer, did you make just one offer and that was all.
“A Just one.
“Q Without stating the amount, was that the amount that was selected by the staie that you were told to make an offer to him ?
“A I shall answer it this way, I was limited by what I could offer him by the State on a 50-50 right of way.
“Q Then actually you could not raise that price, that’s what I was getting at, you were limited, and you couldn’t raise that price?
“A Correct.
“Q So all that you could do, you couldn’t negotiate, all you could do was just make him an offer.
“A That’s right.
“MR. FINLEY: I believe that’s all, thank you.”

The foregoing constitutes all the evidence in support of the “failure to agree” allegation. However, the record further recites that the owner of the land was duly notified of the hearing before the Special Commissioners and that he was present at such hearing and the granting of award of damages. According to the holding in Jones v. City of Mineola, 203 S.W.2d 1020, 1023 (Civ.App., 1947; wr. ref.), had appellant made his appearance before the Special Commissioners and resisted the condemnation proceedings upon the merits, he would have waived whatever lack of efforts to reach a settlement there might have been. The record is silent as to the extent of participation indulged in by appellant at the hearing, but the appellant filed no plea in abatement or other pleading raising the jurisdictional question of the absence of a prior bona fide effort to reach agreement with the landowner, and under these circumstances we deem the matter to have been waived, even if the testimony quoted above should be considered insufficient to establish the question as a matter of law. See Rayburn, Texas Law of Condemnation, pages 268, 269, sec. 72(2); Rule 279, T.R. C.P.

Special Issue No. Two, as submitted to the jury, is as follows:

“SPECIAL ISSUE NO. 2: Do you find from a preponderance of the evidence, if any, that the market value of the Defendant’s remaining land was decreased, increased, or remained the same in value as a result of the taking by the State of Texas of the 17.49 acre strip of land and the use to be made of said . strip ? Answer ‘increased’, ‘decreased’, or ‘remained the same’.”

The jury answered “Remained the same”. Appellant attacks, in Points Twenty-one through Twenty-three, the judgment based on the answer to this special issue for the reasons that there was no evidence, or no competent evidence, or insufficient competent evidence, to warrant this jury finding. In support of this contention appellant points out that two witnesses asserted the remaining land had decreased in value in the amounts of $16,070.00 and $17,290.00, respectively, while two other witnesses testified the value had increased in the amounts of $5,057.00 and $3,700.00, respectively. In overruling a similar contention, the court in Coastal Transmission Corporation v. Lennox, 331 S.W.2d 778, 782 (Civ.App., 1960, n.w.h.) held: “They [the jury] valued the land, both that condemned and the remainder, and both before and after taking, well within the range between the highest and lowest estimates of the expert witnesses and well within the range between the highest and lowest sales prices of comparable lands, as shown by the record.” The same was done in this case. These points must be overruled.

Appellant’s twenty-fourth point is abandoned on appeal.

In appellant’s final points, Twenty-five through Twenty-seven, the judgment is attacked as being based upon the jury’s answer to the first special issue which found that the value of the land taken was $7,-500.00, which is claimed to be inadequate, and that the jury’s findings reflected passion and prejudice against the appellant. It is pointed out that the testimony as to the value of the 17.49 acres taken ranged from $1,250.00 per acre to $315.20 per acre, while the jury finding of $7,500.00 was $428.81 per acre and the value of the remaining property did not change. Here again we refer to the holding in Coastal Transmission v. Lennox (supra) in support of the answer of the jury to Special Issue No. One as being within the range of testimony and therefore supported by the evidence. The language of the Commission of Appeals in an adopted opinion in Southern Pine Lumber Co. v. Andrade, 132 Tex. 372, 124 S.W.2d 334, 335, is appropriate here:

“ * * * we would not be justified in assuming that prejudice or improper influence was responsible for the jury’s answers convicting defendant in error of contributory negligence when there is in the record substantial evidence supporting those answers and no evidence that prejudice or improper influence entered into or caused them.” (Citing cases).

The last three points of error are without merit and are overruled.

Having reviewed all points, and finding no error in this cause, the judgment of the trial court is affirmed.


text:
    CITY OF SAN ANTONIO, Appellant, v. UNITED GAS PIPE LINE COMPANY, Appellee.
    No. 14340.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 3, 1965.
    Rehearing Denied March 3, 1965.

      Samuel S. Wolf, City Atty., Crawford B. Reeder, Asst. City Atty., San Antonio, for appellant.
    Carl Wright Johnson, William R. Sim-cock, San Antonio, for appellee.
   MURRAY, Chief Justice.

This is an injunction suit brought by the City of San Antonio against United Gas Pipe Line Company, to enjoin it from using a highway and two public streets of the City of San Antonio for its gas pipe line without a franchise from the City. United Gas answered, stating that it had a license from Southern Pacific Railroad Company to construct its pipe line along the railroad right-of-way, that the city streets constituted only easements across this right-of-way, that the pipe line had been tunneled under the city streets, that cities have no power with respect to such subsurface installations, and that the statutes, charter and ordinances granting the City the right to control its streets are unconstitutional.

The trial was before the' court without the intervention of a jury. Both injunctions, temporary and permanent, were denied, and the City has prosecuted this appeal. We have concluded that the trial court erred in refusing the injunction, and therefore the judgment must be reversed and judgment here rendered granting the writ of injunction as prayed for by the City.

San Antonio is a home rule city and has been given exclusive control of its streets and alleys. The highway and two streets under which United Gas had tunneled its pipe line were City of San Antonio streets, and regardless of who owned the fee simple title under such streets the City had the exclusive control thereof.

In 12 McQuillin, Municipal Corporations, § 34.14, we find the following statement:

“In determining whether a municipality has the power to grant to a pub-lie utility company the right to use a street or streets, it is wholly immaterial whether the municipality owns the fee in the soil over which the streets are laid out, or only an easement; * *

The City based its right to control its streets on §§ 16 and 12 of Art. 1175, Art. 1436b, and Art. 6021, Vernon’s Ann.Civ. Stats., all of which grant to the City exclusive power to consent to the use by a utility company of public streets within its corporate limits. All powers conferred by these statutes have been adopted by the charter and ordinances of the City of San Antonio.

We fully agree with the following statement contained in appellant’s brief:

“The power to control its streets granted to the City by the statutes has been held to include the power to prohibit subsurface installation of utility services, even where the surface of the street is left completely intact. In West Texas Utilities Company v. City of Baird, 286 S.W.2d 185 (Eastland Civ.App., 1956, writ ref. n. r. e.), the Court upheld the permanent injunction requiring the removal of the subsurface electric lines, holding that ‘the construction and maintenance of distribution lines by tunneling under the street is a use of the street as contemplated in the statutes under which incorporated cities derive their power and control over streets and alleys.’
“The Courts have also held that a city’s powers and the public’s rights with respect to Streets extend to railroad crossings the fee simple title to which is owned by the railroad, even where the street has never been formally dedicated and the railroad has maintained the street within the right-of-way area. City of Dublin v. Barrett, 242 S.W. 535 (San Antonio Civ.App., 1922, writ dis.).
“The authorities also are clear that a city’s police power over its streets extends to street crossings within railroad right-of-way, even where the right-of-way was acquired before the city street came into existence. Houston & T. C. Ry. v. Dallas [98 Tex. 396], 84 S.W. 648 (1905); City of Beaumont v. Priddie, 65 S.W.2d 434 (Austin Civ.App., 1933, reversed on other grounds [Texas & N. O. R. Co. v. Priddie, Tex.Com.App.,] 95 S.W.2d 1290).
“These statutes and these three lines of cases fully uphold the power of the City of San Antonio to control the use of its streets whether they are downtown thoroughfares or railroad crossings, whether the fee ownership under the street is in an adjoining landowner or in the railroad, whether the desired use is to operate a bus system on the street or to install utility lines under the street, and whether the railroad or the street was there first. The City’s power to control the streets necessarily involves the authority to prohibit the utility’s use of the streets entirely if the judgment of the City Council dictates it and certainly the duty to do so if the utility has no franchise.
“United Gas admits that it has no franchise from the City of San Antonio, but contends that a franchise is unnecessary because (a) it has a permit from the Southern Pacific Company to lay the pipeline along the railroad’s right-of-way and the City has only an easement for the use of the surface at crossings along the right-of-way; (b) the pipeline was laid under the surface of Shane Road, Graf Street and Interstate Highway 410, and (c) if the first two reasons are wrong, the statutes, charter and ordinances granting the City the right to control the streets are unconstitutional for a variety of evils, including the deprivation of property rights, indefiniteness, arbitrariness, absence of standards or guides, and denial of equal protection of the law. It should be noted that reasons (b) and (c) are attacks upon the City’s power to control all of its streets, not just those crossing railroad rights-of-way.”

Texas courts have consistently held that, regardless of fee ownership, where a utility company desires to install a pipe line, even by tunneling under a city street, a franchise from the city is necessary. Hooks Telephone Co. v. Town of Leary, Tex.Civ.App., 352 S.W.2d 755; Davis v. State, Tex.Civ.App., 298 S.W.2d 219; West Texas Utility Co. v. City of Baird, Tex.Civ.App., 286 S.W.2d 185; 39 Tex.Jur. § 8, p. 518.

Appellee contends that the factual situation in the City of Baird case and the one at bar is different. We fail to see any material difference. We can see no distinction between the abutting property owners, who own the fee title to the street, giving a utility company, that does not have a city franchise, authority to tunnel under the street, and a railroad company that owns the fee underlying a street, giving a utility company authority to tunnel under such street.

Appellee further contends that the statutes, charter provisions and City ordinances cited here are illegal, unconstitutional and void, insofar as they would give a city’s governing body unlimited control over public streets and require consent of such governing body to the use of public streets without establishing any guide or standard for the giving or withholding of such consent. We do not agree. The cases cited by appellee in support of this contention are not in point. None of them relates to a city’s right to give or deny a utility company the right to use the city’s public streets to carry on its utility business.

We are impressed by what is said in State ex rel. Spokane & B. C. Telephone & Telegraph Co. v. City of Spokane, 24 Wash. 53, 63 P. 1116 (Supreme Ct. of Washington), as follows:

“ * * * The volition to consent or refuse is one of the powers vested by the legislature in cities of the first class, and this continuing power cannot be devested without the sanction of the legislature. The legislature, within constitutional limitations, has sovereign control of the streets and highways of the state and the cities. The primary purpose for which highways and streets are established and maintained is for the convenience of public travel. The use of such highways and streets for water mains, gas pipes, telephone and telegraph lines is secondary and subordinate to the primary use for travel, and such secondary use is permissible only when not inconsistent with the primary object of the establishment of such ways. Cincinnati Inclined-Plane Ry. Co. v. City & Suburban Tel. Ass’n. [48 Ohio St. 310,] (Ohio) 27 N.E. 890, [12 L.R. A. 534]; Hudson River Tel. Co. v. Watervliet Turnpike & R. Co., [135 N.Y. 393] (N.Y.) 32 N.E. 148, [17 L.R.A. 674]; Halsey v. [Rapid Transit St.] Railway Co. [47 N.J.Eq. 380] (N. J.Ch.) 20 Atl. 859. It would seem that, within the fundamental limitations mentioned, the legislative control of ways and streets for the secondary use is absolute, and that the legislative discretion in this regard is not subject to judicial intervention. That the legislature may delegate to municipalities such powers and act through their instrumentality is unquestioned. 2 Dill. Mun.Corp. (3d Ed.) §§ 70S, 724.”

We feel that West Texas Utilities Co. v. City of Baird, supra, is on all fours with the case at bar and settles all questions here raised against appellee.

The judgment of the trial court is reversed and judgment here rendered granting to the City a writ of injunction as prayed for.