author: BLAIR, Justice.

text:
    HUMBLE OIL & REFINING CO. et al. v. TURNBOW et al.
    No. 8842.
    Court of Civil Appeals of Texas. Austin.
    Oct. 18, 1939.
    Rehearing Denied Nov. 15, 1939.
    John E. Green, Jr., and Joe S. Brown, both of Houston, and Stanley Hornsby, of Austin, for appellant Gulf Oil Corporation.
    R. E. Seagler and H. E. Bell, both of Houston, and Powell, Wirtz, Rauhut & Gideon, of Austin, for appellant Humble Oil & Refining Co.
    Gerald C. Mann, Atty. Gen., and Edgar Cale, Asst. Atty. Gen., for appellee Railroad Commission of Texas.
    Carl L. Phinney, of Dallas, and Felts, Wheeler & Wheeler, of Austin, for appel-lees W. C. Turnbow and W. C. Turnbow Petroleum Corporation.
   BLAIR, Justice.

This is a Rule 37 case. It involves the validity of the special permits to reopen and operate two oil wells drilled on a 2%-acre tract of land out of the Sanches Survey, Gregg County, in the East Texas Oil Field. The land, the wells, and the parties (except appellee W. C. Turnbow Petroleum Corporation) were involved in the cases of Barnsdall Oil Company et al. v. Railroad Commission et al., 90 S.W.2d 663; Turnbow et al. v. Barnsdall Oil Co. et al., 99 S.W.2d 1096, heretofore before this court. In the first case it was held that the permits to drill the two wells, issued September 25, 1934, were invalid because issued without notice to the proper parties. In the second case it was held that the permits, issued November 9, 1934, covering the same two wells were invalid for two reasons: (1) because the agreed judicial partition of the 21/2-acre tract constituted a voluntary subdivision of it from the larger 41-acre" tract, in violation of special Rule 37 then applicable to the East Texas Oil Field; and (2) because the question of the validity of the permits to drill the two wells was still pending in the first suit when the second permits were issued; and that the Commission therefore had no jurisdiction. After the judgments became final in these cases, appellees filed an application to reopen and to operate the two wells upon the ground of changed conditions; and on September 23, 1937, the Commission after notice and hearing granted the special permits to reopen and .to operate the two wells, reciting as basis for the order the following facts:

“ * ⅜ * and it appearing to the Commission that 22 wells had been drilled in the area immediately surrounding said 2%-acre tract since permits to drill said wells 1 and 2 were originally granted by the Railroad Commission of Texas, and that in view of such changed conditions and the additional wells so drilled in said area, the Railroad Commission of Texas should grant permission to operate said wells 1 and 2; and it further appearing
“That the subdivision of said 2%-acre tract of land and its being set apart to the McGrede heirs was the result of a forced partition in a court of competent jurisdiction and was not a voluntary subdivision for the purpose of circumventing Rule 37; and it further appearing
“That the testimony of two qualified petroleum engineers, to-wit: Gordon Griffin and J. S. Hudnall, before the Railroad Commission of Texas on this application was to the effect that the drilling and operation of said wells 1 and 2 on said tract would not cause waste but would tend to prevent waste and that if said two wells were drilled and operated, oil would he recovered which would otherwise not be recovered, the testimony of these two witnesses being in accord with the previous findings of the Commission based upon numerous hearings and investigations that the closer the wells are drilled, the greater will be the recovery from the area so drilled; and it further appearing
“That it is necessary for well No. 2 on said 2%-acre tract to be drilled and operated in order to prevent drainage of oil from beneath said tract by well No. 8 of the Humack Oil Company; and it further appearing
“That it is necessary to drill said wells 1 and 2 and produce oil'therefrom in order to enable applicant to have an opportunity. to recoyer the oil from beneath said lease, to prevent waste, and to prevent the confiscation of applicant’s property; and
“It further appearing from the .uncon-tradicted evidence that if said wells 1 and 2 are permitted to be produced, said wells will have to be produced for not less than 7 or 8 years in order to enable applicant to recover the estimated recoverable oil in place beneath said tract under present proration schedules, and that the production of oil from beneath said tract will not injure the adjacent tracts; and
“It further appearing that the petition shows good cause; that no injustice will be done by the granting of such exceptions and that such exceptions should be granted.”

The Commission granted the application to reopen and to operate the wells upon the ground of changed conditions, and because of the drilling of 22 additional wells in the immediate area since the two wells in question were originally granted. This action is not attacked and is in accord with the decision of the Supreme Court in the New Process case, Magnolia Petroleum Co. v. New Process Production Co., 129 Tex. 617, 104 S.W.2d 1106, 1111, wherein the court say:

“If conditions change, rights change, and the governing statutes place the matter of ascertaining such rights and determining the facts relating thereto in the first instance under the jurisdiction of the Railroad Commission.”

The appeal otherwise presents nothing new nor novel. That is, appellants attack the permits upon the usual grounds raised in numerous Rule 37 cases which have come before this court, as follows:

1. That the judgment decreeing a partition of the 2y2-acre tract from the larger 41-acre tract in 1934, constituted a voluntary subdivision by the owners of the larger tract which was capable of being developed as a whole without an exception to Rule 37; and that the granting of the permits to prevent confiscation was, therefore, in violation of the Rule 37 applicable.

2. That the wells were not necessary to preyent waste.

We regard the question of voluntary subdivision as having been finally adjudicated in the last above cited case (Turnbow et al. v. Barnsdall Oil Co., 99 S.W.2d 1096), and it need not be further noticed here. The fact, however, that there was a voluntary subdivision of the tract of land in question is no impediment to the granting of the wells to prevent waste. Such is the holding in the recent case of Gulf Land Company v. Atlantic Refining Company, Tex.Sup., 131 S.W.2d 73, 83, wherein the court say:

“As we interpret Rule 37 and the Rule of May 29, the fact that a tract of land is a subdivision within the meaning of the rule last mentioned is no impediment to the granting of a well permit thereon as an exception under Rule 37 to prevent waste. In other words, the rule pertaining to subdivisions has no application to well permits granted to prevent waste.”

The evidence adduced by appellants showed that there was substantial evidence to sustain the permits to reopen and to operate the two wells in order to prevent waste of oil. The Commission held four hearings with respect to the two wells in question, — two hearings with respect to the permits passed on in the first two cases above cited, and two hearings on the application to reopen and to operate the wells on the ground of changed conditions. On the last hearing, September 23, 1937, appellants requested and the Commission considered all the records and evidence before it on the three previous hearings, and also received much evidence on both the issue of confiscation and the issue of waste. In the trial court appellants introduced a complete transcript of all proceedings and evidence had and adduced on the four hearings before the Commission, and also introduced the testimony of two expert geologists, which on the whole was merely contradictory of or in conflict with the testimony of the two expert geologists who testified on the last two hearings before the Commission. The foregoing presents a statement of facts here of 822 pages, most of which is not material. At the conclusion of appellants’ testimony the trial court, trying the case without a jury, sustained the motion of appellees for judgment.

Briefly, the geologists referred to in the Commission’s findings of fact testified that the operation of the two wells would prevent.waste of oil because it would shorten the drainage area of the wells; that the two wells would ultimately increase the total recovery of oil from the tract of land in question and from the entire field; and one of them testified that there would be recovered a minimum of from 25,000 to 30,000 barrels by the operation of the two wells, which would not be recovered by any other well, but would be left in the ground and lost. Both of these geologists testified that if the 2%-acre tract be regarded as a part of the 41-acre tract from which it was subdivided, that the two wells would cause recovery from the 41-acre tract of the additional oil as stated.

The foregoing evidence presents a case on all fours with the case of Humble Oil & Refining Company v. Railroad Commission et al., Tex.Civ.App., 112 S.W.2d 222 (writ dismissed). In that case a 3-acre tract was partitioned by court decree from a 100-acre tract. The Commission granted permits to drill two wells on the 3-acre tract. A geologist testified that if the second well on the tract were not drilled, there would be left in the ground beneath the tract more than 34,000 barrels which would never be recovered by the owners, nor by any other lease owner.

The above facts also bring the instant case squarely within the definition of waste as defined in the case of Gulf Land Company v. Atlantic Refining Company, supra, wherein the Supreme Court say:

“The term ‘waste,’ as used in oil and gas Rule 37, undoubtedly means the ultimate loss of oil. If a substantial amount of oil will be saved by the drilling of a well that otherwise would ultimately be lost, the permit to drill such well may be justified under one of the exceptions provided in Rule 37 to prevent waste. We will deal further with this question later in this opinion.”

The later discussion of the term “waste” did not modify in any way the quoted definition of it, but merely held that the Commission could not be compelled to grant a permit to drill a well on the lone question of whether such well would save oil that otherwise would be lost, and that “the Commission should be left reasonably free to exercise its sound judgment and discretion” in the matter. That has been done in the instant case.

The judgment of the trial court is affirmed.

Affirmed.


source: Caselaw Access Project

author: BAUGH, Justice.

license: Public Domain

text:
    SHELL PETROLEUM CORPORATION v. RAILROAD COMMISSION et al.
    No. 8862.
    Court of Civil Appeals of Texas. Austin.
    Sept. 27, 1939.
    Rehearing Denied in Part Nov. 1, 1939.

      A. E. Groff and R. H. Whilden, both of Houston, and Greenwood, Moody & Robertson, of Austin, for appellant.
    Gerald C. Mann, Atty. Gen., and Dur-ward D. Mahon, Asst. Atty. Gen., for ap-pellee Railroad Commission.
    No briefs filed for other appellees.
   BAUGH, Justice.

This is a Rule 37 case. Decision herein has been withheld pending disposition by the Supreme Court of the case of Gulf Land Co. v. Atlantic Refining Co. See 131 S.W.2d 73.

The trial court upheld a permit granted by the Commission to Mrs. Whitehead on March 17, 1938, to drill a well on a narrow strip of land in Gregg County, Texas (339½ varas long, 16.11 varas wide at the north end, and 11.66 varas wide at the south end), containing .835 of an acre, as an exception to Rule 37 to prevent confiscation of property. The Shell, which protested the granting of the permit and brought suit to set it aside and for injunction, has appealed.

The grounds of the Shell’s protest were:

1st: That the strip of land involved was included within the boundaries of the Shell’s lease; or, at least, that there was a bona fide dispute as to title;

2nd: That, if not within the Shell lease, it was a voluntary subdivision by the owner from a larger tract capable of development as a whole without an exception to Rule 37, after that Rule became applicable to this area;

3rd: That the well was not necessary either to prevent waste or to prevent confiscation of property.

On September 11, 1930, John Douglas and his children leased to S. S. Laird 227 acres of land, which lease was subsequently assigned to the Shell. Along part of the west side of this leasehold was a lane, fenced on both sides, used for road purposes. In December, 1937, Mrs. Whitehead obtained from the purported heirs of John Douglas (he having died since the execution of the original lease) a quitclaim deed to the strip constituting this lane and being land here involved, on the theory that it was outside of the field note calls in the original John Douglas lease; and that John Douglas had acquired a limitation title thereto.

Without setting out the evidence here, it was clearly sufficient, we think, to sustain a finding that the east half of the strip of land here involved was within the boundaries of the Shell lease, and to that extent, in any event, a bona fide title dispute was presented. But the trial court held that the Shell, in its amended petition, waived its right to have the title question adjudicated; and apparently did not pass upon the contention, which was not waived in said pleading, that there was presented before the Commission and to the trial court, sufficient evidence to show that there was a bona fide dispute'as to the land involved. In such situation this court has held that the Commission should either deny the permit or hold the application therefor in abeyance until the title question is adjudicated in a court of competent jurisdiction, or removed by agreement of the parties. Railroad Comn. v. Lamb, Tex.Civ.App., 81 S.W.2d 161; Altgelt v. Texas Co., Tex.Civ.App., 101 S.W.2d 1104. Proper venue in such title suit would, of course, lie in Gregg County.

Regardless of this, however, and assuming that Douglas owned the land in controversy, we think the record presents a clear case of a voluntary subdivision by the original fee owner in his lease to Laird on September 11, 1930, now owned by the Shell, of this narrow strip of land which could not be developed for oil without an exception to Rule 37, from a larger tract capable of development as a whole without the necessity of such exception; and that the granting of the permit here involved constituted a violation by the Commission of its own amendment of May 29, 1934, to Rule 37 wherein by general order it expressly denied to the owner or leaseholder of any subdivision of land which would require an exception to spacing provisions of Rule 37 to develop it, any right to such an exception to prevent confiscation of property. This May 29, 1934, amendment is set out, fully discussed, and applied by the Supreme Court in Gulf Land Co. v. Atlantic Refining Co., 131 S.W.2d 73, and need not be further noticed here.

The Railroad Commission (Mrs. Whitehead has filed no brief herein) urges that when the original lease was executed, the area here involved was not proven territory, and that the rule announced against voluntary subdivisions in Sun Oil Company v. Railroad Commission, Tex.Civ.App., 68 S.W.2d 609, and in cases reported therein, pages 609 to 625, and repeatedly reaffirmed since and approved by the Supreme Court, does not apply in instances where subdivisions were made prior to the time the field was proven to be oil producing territory; citing in support of this contention Nash v. Shell Pet. Corp., Tex.Civ.App., 120 S.W.2d 522, and Shell Pet. Corp. v. Railroad Comn., Tex.Civ.App., 120 S.W.2d 526. These cases present instances where there was a conveyance of the fee title to the land involved prior to the discovery of oil in the vicinity of the land. There was nothing in those cases to show that such conveyances were for the purposes of, or in contemplation of, oil development. Manifestly such was not the purpose of such conveyances. But where lands are leased expressly for the purposes of oil development, an entirely different situation is presented. In the latter instance, whether the lease be in proven territory or not, the conservation laws become applicable to the subsequent development thereof; and the rights of the parties become referable to the rules and regulations of the Commission governing the development of the property which the lessor himself contemplated and which he required of the lessee. Nash v. Shell Pet. Corp., supra. Under these circumstances, application of the provisions of the rule, as a conservation measure, is as essential in a given area before the discovery of oil as it would be after such discovery.

Nor can the permit be sustained under the Century case (Railroad Comn. v. Magnolia Pet. Co., 130 Tex. 484, 109 S.W.2d 967), as urged by the Commission, on the ground that if the larger tract (the leasehold on which was owned by the Shell) and the small tract (owned by Mrs. Whitehead, assuming that she did own it, a controverted issue) -be taken together and treated as one tract, the combined tracts would have been entitled to an additional well thereon in order to give the larger tract parity of development as compared with tracts surrounding and adjacent to such combined area. This for the reason that not only did the Shell, as owner of the larger leasehold from which the strip involved was segregated, not seek an additional well, but has continuously protested and opposed the drilling of the additional well. Not only is this true, but it is not controverted but that if the permit had been applied for on that basis, the required notices were not given to all owners of leaseholds on lands adjacent to such combined tract, who were interested parties. And it affirmatively appears that in the hearings before the Commission on the application, the inquiry was confined entirely to a consideration of the segregated strip as a separate tract, and whether it was entitled to a well to protect it from confiscation, and the order of the Commission so shows. After reiterating the rule laid down in the Century case, the Supreme Court in Gulf Land Co. v. Atlantic Refining Co., supra, uses the following significant language [131 S.W.2d 84]: "Such rule, however, cannot mean that the district court can determine a material controverted fact question which was not passed on at all by the Commission in order to sustain a Commission order.”

Not only was this fact question — i. e., whether the combined tracts treated as one tract, would have been entitled to an additional well to give it parity of production with surrounding tracts — not passed on by the Commission, but that question was not even considered by the Commission.

The same is true with reference to the issue of waste. That is, whether the permit can be sustained on the ground that it was necessary to prevent waste. The Commission did not grant the permit on that ground. In the trial court substantial evidence was introduced to show not only that this well was not necessary to prevent waste, but that it would tend to cause waste. In brief, that was a controverted fact issue on which the Commission made no finding, and under the express holding of the Supreme Court in the Gulf Land Company case, supra, where, as here, the Commission made a specific finding on the confiscation issue only, it cannot be presumed in support of its order that the Commission did find that such well was necessary to prevent waste.

The trial court having rendered judgment for the defendants upon their motion therefor at the close of the plaintiff’s evidence, its judgment will be reversed and the cause remanded for another trial.

Reversed and remanded.

On Railroad Commission’s Motion for Rehearing.

In a motion for rehearing the Attorney General on behalf of the Railroad Commission urgently insists that our holding that a bona fide title dispute was presented to the Commission, and that it should have withheld such permit until that issue were settled, is in conflict with, or inconsistent with, our holding's in Nash v. Shell Pet. Corp., Tex.Civ.App., 120 S.W.2d 522; and Shell Pet. Corp. v. Railroad Commission, Tex.Civ.App., 120 S.W.2d 526.

The facts in the cases cited and in the instant case are so nearly similar that confusion might readily result from the discussion of that issue in the instant case. We made it clear, however, in our original opinion, that our decision was not grounded upon the title dispute asserted. And in order that there may be no confusion arising from the matters complained of by the Attorney General, that portion of our opinion wherein the title dispute issue was discussed is withdrawn and may be wholly disregarded; and our reversal based entirely upon the other grounds stated.

To this extent the motion is granted. In all other respects it is overruled.

Granted in part and in part overruled.


author: SPEER, Justice.

text:
    DUNCAN et al. v. DENTON COUNTY.
    No. 13964.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 13, 1939.
    Rehearing Denied Nov. 24, 1939.

      A. S. Jackson, of Dallas, for appellants.
    Gerald Stockard and Earl L. Coleman, both of Denton, for appellee.
   SPEER, Justice.

This appeal involves venue, the plea of privilege and controverting affidavit, under Articles 1995, 2007 and 3264 et seq., Vernon’s Ann.Civ.St. arts. 1995, 2007, and 3264.

Denton County, the plaintiff, at the instance of the State Highway Department, sought to condemn a strip of land for highway purposes, through a tract owned by defendants, Duncan and wife. The Duncan tract consists of 470 acres, a part of which lies in Denton County and a part in Dallas County. The county line runs through the one large tract. Duncan and his family reside on that part of the tract lying in Dallas County. Denton County sought to condemn only a part of the land in Denton county. The description of that part to be condemned is described definitely.

Duncan timely filed his plea of privilege to be sued, if at all, in Dallas County, the place of his residence. Plaintiff, through its county attorney, filed its controverting affidavit. Duncan filed a general demurrer to the controverting affidavit. The issue of venue was thus made and tried to the court without the intervention of a jury. The plea of privilege was overruled and this appeal was perfected by Duncan.

There are two assignments of' error brought forward in the brief. They are: (1) “The court erred in overruling defendants’ general demurrer to plaintiff’s controverting affidavit, to defendants’ plea of privilege. And (2) the court erred in overruling defendants’ plea of privilege to be sued in Dallas County, the county of their residence, this being a condemnation, suit, and the tract of land, owned by defendants, a part of which is sought herein to be condemned, lying partly in Denton County and partly in Dallas County, and the defendants being bona fide residents of Dallas County.”

The transcript contains the whole proceeding: The petition, order appointing commissioners, their oaths, notice of hearing, decision of the commissioners and defendants’ exceptions and objections thereto. The plea of privilege and controverting affidavit, along with stipulated facts, supporting each, are likewise incorporated in the transcript. '

The controverting affidavit, to which the general demurrer was directed, alleged that the action was one by the county to condemn certain portions of defendants’ land situated in Denton County, for highway purposes; that the lands to be condemned are located exclusively in Denton County, Texas, and that no part of any land to be condemned, belonging to defendants, lies in any other county than said Denton County. The controverting plea further set out specifically that the provisions of Article 3264, R.C.S., conferred jurisdiction and venue in Denton County, the county in which the land was situated. The certificate of the officer who purported to administer the oath to the pleading, omitting formal parts, reads: “Before me, the undersigned authority, personally appeared Gerald Stockard, County Attorney, Denton County, Texas, attorney for said Denton County, and after by me duly sworn on his oath deposes and says the above and foregoing is true and correct.”

Appellant Duncan argues in his brief that the general demurrer should have been sustained because the controverting affidavit was not sworn to as provided by law. If it could be said that the point raised could be reached by a general demurrer, a question we find it unnecessary to determine here, we think the pleading signed “Gerald Stockard, County Attorney, Denton County, Texas”, taken in connection with the instrument to which the officer’s certificate is attached, is a substantial compliance with Article 2007,- R.C.S., which provides that if such plea is filed the plaintiff must do so under “oath”. 2 Tex.Jur. p. 350, sect. 13 et seq. Even to concede that the plea was not made under “oath” and that the trial court, for that reason, should have sustained the general demurrer, it would not be determinative of the issue of venue, the only point before us," but the plea could be amended and meet the objection raised, requiring another hearing upon a state of facts which are stipulated to be true. Texas Acceptance Corporation v. Strickland, Tex.Civ.App., 91 S.W.2d 1179. The last cited case did not turn upon the sufficiency of the officer’s certificate but upon allegation of the specific facts relied upon by plaintiff to confer jurisdiction. The plea was held to be a conclusion of the pleader and not of facts supporting the conclusion. We see no merit in the assignment and it is overruled.

The second assignment mentioned above raises the points (a) that the controverting affidavit does not mention either of the exceptions to Article 1995, R.C.S., as one relied upon by plaintiff to confer venue in Denton County, and (b) since the stipulated facts disclose that defendants are the owners of a tract of land lying in both Den-ton and Dallas Counties, and that they reside in Dallas County, venue in this proceeding is in Dallas and not Denton County.

We think the better practice is that plaintiff, who seeks to hold venue in a county other than the residence of defendants, the controverting affidavit should state specifically the subdivision of the general statute relied upon. But this cannot be made the test for the reason the statute does not require it in so many words, nor by necessary implication. Article 2007, R. C.S., provides, among other things, on this question: “ * * * If the plaintiff desires to controvert the plea of privilege, he shall within five days after appearance day file a controverting plea under oath, setting out specifically the fact or facts relied upon to confer venue of such cause on the court where the cause is pending.” It will be noted that the plea must contain the specific facts and not the law relied upon.

Article 1995, sect. 30, reads: “Special vemie.- — Whenever in any law authorizing or regulating any particular character of action, the venue is expressly prescribed, the suit shall be commenced in the county to which the jurisdiction may be so expressly given.”

The controverting affidavit in this case specifically plead that the land sought to be condemned lay wholly in Denton County and that no effort was being made to condemn land, or any part thereof, situated in any other county. It further plead: “That under Article 3264, R.C.S. of 1925 that such suit for condemnation may be tried in the county in which the land or any part thereof, is situated.”

The whole of the article of the statute plead by plaintiff, insofar as applicable to this appeal, reads: “When real estate is desired for public use by the State or by a county * * * 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 sought to be condemned, state the purposes for which it is intended to be used, the name of the owner, if known, and that the plaintiff and the owner have been unable to agree upon the value of the land or the damages. Where the land lies in two or more counties, in one of which the owner resides, the statement shall be filed in the county of the owner’s residence.” All the requisites contained in the statute were complied with in this case. The only contention made by defendants in this respect, is that plaintiff sought to condemn a part of their land, and although that part lay in Denton County, yet it was a part of the large tract which lay in both counties, and that since defendants resided in Dallas County, the statement referred to in the statute should have been filed in Dallas County, as a basis for a suit in that county for condemnation. It is contended that such filing being a prerequisite to the institution and prosecution of a condemnation suit against them, their plea of privilege should have been sustained.

We think that where, as in this case, plaintiff, Denton County, sought only to condemn land which lay in that county, even though it was for public highway purposes, and it was reasonably contemplated that a continuation of the right of way would be procured by Dallas County over lands in that county belonging to the same owner, Denton County was well within the provisions of the statute quoted when it instituted the suit for that purpose in the county where the land was situated.

The last part of the quoted statute, which reads: “Where the land lies in two or more counties, in one of which the owner resides, the statement shall be filed in the county of the owner’s residence”, is referable to instances in which a condemner attempts to take lands of another located in more than one county. To give the statute the construction contended for by defendants would be to hold (a) that Denton County is seeking to condemn land in Dallas County, and (b) that the courts of Dallas County could condemn land in Denton County for highway purposes. In view of the fact that plaintiff did not attempt to take any of defendants’ land situated in Dallas County, it becomes unnecessary for us to express our opinion upon whether or not that county could condemn land in Den-ton County for the purposes mentioned.

That part of the statute last above quoted has been applied in only two instances by our courts, insofar as we have been able to find. Houston & T. C. Ry. Co. v. Postal Telegraph Cable Co., 18 Tex.Civ.App. 502, 45 S.W. 179, and Postal Telegraph Cable Co. v. Texas & N. O. R. Co., Tex.Civ.App., 46 S.W. 912. Those were cases in which a telegraph company sought to condemn an easement for constructing its poles and lines along the right-of-way of a railway company, extending through two or more counties. But, as stated, the cause of action sought condemnation of the property in more than one county, whereas in the case at bar no such question is before us. We overrule the assignment.

There being no error in the judgment of the trial court overruling the plea of privilege, its judgment is affirmed.


author: McClendon, chief justice.

text:
    COMMUNITY NATURAL GAS CO. v. LANE.
    No. 8245.
    Court of Civil Appeals of Texas. Austin.
    Oct. 25, 1939.
    Rehearing Denied Nov. 22, 1939.
    Writ of Error Dismissed Jan. 10, 1940.
    See 134 S.W.2d 1058.

      Cox & Brown, of Temple, and Thompson, Knight, Baker & Harris and Pinkney Grissom, all of Dallas, for appellant.
    Ned Elnor Moore and De Witt Bowner, both of Temple, for appellee.
   McClendon, chief justice.

This is a gas explosion case. This court held as a matter of law that there was no duty on the part of the Gas Company to inspect the piping inside the building at the time it turned the gas into the system supplying the south apartment, reversed the trial court’s judgment and rendered judgment for the Gas Company. Tex.Civ.App., 97 S.W.2d 703. Our judgment was reversed by the Supreme Court upon the holding that the Gas Company was not absolved as a matter of law from making such inspection, and the cause was remanded to this court to pass upon other assignments of error urged by the Gas Company which were rendered immaterial under our above holding, but which became material under the Supreme Court’s holding. 123 S.W.2d 639. The facts upon the issue of liability, that is negligence vel non of the Gas Company, are quite fully detailed in each of the above opin ions. We shall not reiterate them here, but refer to those opinions for their statement.

There are several assignments of error attacking the sufficiency of the evidence to support certain specific jury findings. These assignments rest upon the same contentions as those asserting insufficiency of the evidence to support actionable negligence; and are overruled under the Supreme Court’s holding in this regard.

The remaining assignments .relate to: the charge (special issues); the argument of counsel; the judgment, as to excessiveness ($20,000);' the lack of necessary parties plaintiff (a married son and daughter of the Lanes). These assignments will be considered in the order named.

Complaint is made of refusal to submit a special issue “that the occurrence complained of was the result of an accident,” which was defined as “an occurrence which happens without the fault of either the plaintiff or the defendant.” The issue and definition were correctly fram>* ed, and the question thus presented is whether the evidence raised factually the issue of “accident” or “unavoidable accident” as it is usually denominated in the decisions. The undisputed evidence showed that the building, originally a single dwelling, had been converted by the owner into a duplex apartment, with but a single bathroom, situated in the south apartment, for use by the two tenants. The owner later had each apartment piped for gas with a system of. its own entirely disconnected from the system in the other apartment. Later the owner had a by-pass installed connecting the two systems in the bathroom, so as to allow the bath heater to be supplied with gas from either system. The gas which caused the explosion escaped from an uncapped pipe in the Lane’s (north apartment) kitchen. The only way this gas could get into the north apartment system, which was then cut off from the supply pipe at the property line, was through this by-pass; and the gas could only get into the by-pass when both cocks or cut-offs in the two lines leading to the heater were open. Nor could it then escape into the kitchen if the pipe were capped. In other words, there must exist simultaneously (1) the cock leading from the south system into the heater open, (2) the cock leading from the heater to the by-pass open, and (3) the pipe in the Lane kitchen uncapped. This condition could not have existed prior to the date of the explosion, for the reason that the bath heater had been used constantly by both families for about three months prior thereto and no escape of gas from the kitchen pipe detected. Either in some way unexplained by the evidence the bypass cock was opened or the pipe uncapped sometime during the day, of the explosion. Now we have affirmative testimony that the pipe was not capped for some time before the date of the explosion. Mr. Lane so testified, but he was not certain how long before that date he first observed it. This testimony, if accepted as conclusive on the point, would indicate that the bypass cock was closed up to the date of the explosion. There was also testimony By Mrs. Hargrove and her daughter that they did not open or manipulate the by-pass cock. However, it must have gotten open in some way on that date, if the kitchen pipe was uncapped prior thereto. If we assume that the actionable negligence vel non of the Gas Company was a fact issue for the jury (a subject discussed later), then (absent such negligence) the proximate cause of the explosion is referable to one or more of a series of occurrences. There was no contention and no intimation in the record of any negligence on the part of either Mr. or Mrs. Lane. It is true that the physical situation that brought about the explosion is relatively simple; but it does not follow that determining the causal act, omission, or circumstance producing this situation is of simple solution. See San Antonio & A. P. Ry. v. Behue, Tex.Com.App., 231 S.W. 354. In the chain of events leading up to the explosion might be noted: (1) the act of the owner in installing the by-pass; (2) his failure to notify the Gas Company thereof; (3) his failure to notify or warn the tenants of the situation; (4) failure on someone’s part to cap the kitchen pipe, or the removal of the cap by someone; (5) opening of the by-pass cock by someone. Absence of either 1, 4 or 5 would certainly, and of 2 or 3 would probably, have prevented the explosion. It is now firmly established in the law of negligence in this state that an occurrence, brought about without negligence on the part of either party to a suit, is an accident, and where the evidence raises the issue as a fact question, the defendant, upon proper request, is entitled to have it submitted to the jury. The subject is fully treated with citation of authorities in 30 'Tex.Jur., pp. 673-675, § 26. We sustain this assignment.

Complaint is made of the court’s definition of “proper inspection” as follows : “The phrase ‘proper inspection’ as used herein means an inspection only of such gas pipings, connections and other gas fixtures inside the house as are visible to the eye without removing any flooring or walls in such house, and it means an inspection made with such care as a person of ordinary prudence would exercise under the same or similar circumstances.”

The jury found that a proper inspection (as defined) was not made at the time the gas was turned into the south apartment. The pertinent special issue is copied in the Supreme Court’s opinion. The objection to the definition (among others) was that it placed “too great a burden upon defendant, in that, as a matter of law there was no burden upon the defendant to inspect the pipes 'whatsoever by the use of the eye.” The clear import of the definition was to instruct the jury that it was the duty of the Gas Company when it turned the gas into the south apartment to inspect “such gas pipings, connections and gas fixtures inside the house as are visible to the eye,” etc. Considering all the circumstances in evidence, we think clearly it was a question of fact whether a duty rested upon the Gas Company to make an inspection of the pipes inside the house. That was the holding in the leading case of Schmeer v. Gas Light Co., 147 N.Y. 529, 42 N.E. 202, 30 L.R.A. 653, where the facts supporting liability were much stronger than in this case. There, there was but one system of piping, the plans of which were known to the Gas Company, leading into a building occupied by several tenants. Here, there were two separate systems, wholly disconnected from each other originally, and later connected by a by-pass without the knowledge of the Gas Company. We hold that it was a question of fact for the jury to determine whether the character of inspection it made, the meter test, met the requirements of ordinary care; and that the definition was erroneous in the respect complained of.

The definition of proximate cause was objected to because it was “not a full and complete and correct definition of said phrase, and because said definition does not account for the element of new and independent cause or intervening agency.” The objection was good if there was evidence of such new and independent intervening agency. See Texas & N. O. R. Co. v. Robinson, Tex.Civ.App., 57 S.W.2d 938. There is no evidence as to when the kitchen pipe became uncapped. If it was capped when the gas was turned into the south apartment, then we think the issue of independent intervening cause would be raised as a fact question.

Complaint is made of a number of references in the charge to the gas turned into the south apartment as “defendant’s gas,” on the ground that such references assumed that the title to the gas was in the Gas Company after it had been delivered into the pipes of the owner of the building upon request of the tenant of the south apartment. The title to the gas is wholly immaterial to any issue in the case, therefore the error- (if error) was harmless.

The special issue upon the amount of recovery reads: “Answering from a preponderance of the evidence, and fixing the same at such- sum of money, if anything, as if paid in cash in hand at this time, will fairly and justly compensate the plaintiff for the death of his wife, Emma Lane, taking into consideration as elements of damage so far as shown by a preponderance of the evidence to result naturally and probably from her death, the following: Reasonable value of the services of said Emma Lane to plaintiff from February 11, 1933, for and during such time thereafter as you may believe she may have lived except for the explosion in question, at what sum, if anything, do you assess plaintiff’s damages?”

There were a number of objections to this issue, only one of which we think has substantial merit, namely, that it failed “to give the jury the elements of expense to which the plaintiff would be subjected during her lifetime in providing for her maintenance and support, probable illness or other proper and natural items of expense in connection therewith.” This objection was well taken under the holding in Gulf C. & S. F. R. Co. v. Prazak, Tex.Civ.App., 181 S.W. 711 (Chief Justice Key writing for this court).

Appellee contends that this defect in the charge, being one of omission only, cannot be reached by objection; but requires tendering a correct special issue upon the subject, citing Missouri K. & T. R. Co. of Texas v. Hurdle, Tex.Civ.App., 142 S.W. 992. That decision was under the law as it existed prior to the requirement (R.C.S. Art. 2185) that objection to the charge be made before it is read to the jury. Presentation of a special issue or charge is not now required. Gulf C. & S. F. R. Co. v. Conley, 113 Tex. 472, 260 S.W. 561, 32 A.L.R. 1183, approving Hines v. Kelley, Tex.Com.App., 252 S.W. 1033, and Houston & T. C. R. Co. v. Gant, Tex.Civ.App., 175 S.W. 745.

There are seven assignments of error complaining of different portions of the argument of appellee’s counsel. As to six of these we do not regard the argument as transcending the bounds of legitimate discussion of the evidence. The remaining assignment we now consider. After a long and somewhat involved discussion of the question of liability, counsel said, “Wouldn’t that be the devil of a lot of consolation to you if that had been your wife.” The argument was clearly improper. It was an appeal to sympathy based upon the most sacred family tie; and clearly had no place in a discussion of the issue of negligence of the Gas Company. It is unnecessary to determine whether it constituted reversible error, absent objection at the time it was made. In support of these assignments appellant cites Dallas Ry. & Terminal Co. v. Smith, Tex.Civ.App., 42 S.W.2d 794, and Brown Cracker Co. v. Castle, Tex.Civ.App., 26 S.W.2d 435. In view of the writer’s comment on the latter case in Texas & N. O. Ry. v. New, Tex.Civ.App., 95 S.W.2d 170, it should be observed that the argument in those cases related to the amount of damages to be awarded for physical pain and suffering and the jury were referred to their own experience in fixing the amount. Regardless of the correctness of the holding in those cases, the above argument was manifestly improper; and should be avoided upon another trial.

The assertion that the amount of the judgment ($20,000) is excessive is predicated upon the following contentions: There was no evidence from which any element of damage could be considered other than the services of Mrs. Lane as a housewife, and the amount of the judgment was out of all proportion to what such services were reasonably worth; and especially so, since her contribution to plaintiff was limited by the probable duration not only of her life, but also of that of Mr. Lane, and there was no evidence of his age, condition of health or life expectancy. In addition to her services as housewife, plaintiff plead that Mrs. Lane assisted him in his fruit stand business, the value of. which assistance he alleged at $150 per month. The evidence showed these services, but there was no evidence of their value, and no evidence from which their value could be estimated. It is now well established that “a jury can estimate” the value of the services of a wife as such from testimony detailing the character of such services “as well as any witness likely to be called. It is not necessary that witnesses should give money estimate of such value.” Gainesville H. & W. Ry. Co. v. Lacy, 86 Tex. 244, 24 S.W. 269. However, where it is sought to predicate recovery upon the value of the wife’s services in a profession or business, or in any other “peculiar way,” the rule seems to be that there must be evidence of the value of such services. Missouri K. & T. R. Co. v. Vance, Tex.Civ.App., 41 S.W. 167. As regards lack of,proof of Mr. Lane’s health, etc., we quote from the Lacy case, above: “Mrs. Lacy testified in person before the jury, and was subject to-their observation. The defendants cross-examined her, but asked her no question as to her age, nor did they offer any testimony upon the question. We do not mean to assert that a jury may act upon what they observe during a trial as a general rule; but upon a question like- this, in which age is but a help to arrive at the conclusion sought, we think her presence is proper to be considered by this court in determining the sufficiency of the evidence. The evidence was sufficient to enable the jury to approximate the age of the plaintiff with reasonable certainty.”

The evidence showed that Mrs. Lane was 41 years old, in good health, and performed all her duties as a wife well. Even eliminating her services in Mr. Lane’s business, we do not feel that the amount of the judgment is so large as to be unconscionable, dr to warrant our setting it aside on that ground alone. Of course this issue is immaterial, if our other holdings are upheld.

Upon the issue of defect of necessary parties plaintiff thé facts are these: the suit was filed in March, 1933. In December of that year defendant took the deposition of plaintiff who testified in response to interrogatories propounded by defendant that Mrs. Lane was survived by two children (a son and daughter), both of whom were adults and married. There were two trials of the case, one begun February 5, 1934, and the other June 18, 1934, in each of which Mr. Lane gave the same testimony on this point as in his deposition. The question of defect of parties was raised for the first time in appellant’s amended motion for new trial. In opposition to this motion, appellee showed by affidavits of the son, the daughter and her husband that neither Mr. nor Mrs. Lane had ever contributed to their support or otherwise in any manner since their respective marriages, that they had no claim whatever against the Gas Company; that they were not entitled to share in any benefits of the death statute; that they had requested Mr. Lane not to join them in the suit; and that’they released the Gas Company from any liability to them. There was a hearing upon the motion of which appellant’s attorney was notified, but declined to attend. At this hearing the son, daughter and son-in-law appeared in person and testified to all facts stated in their affidavits. Mr. Lane testified to the same effect. It was also shown that the son was present in the court room during the first trial and was introduced to appellant’s counsel. After, the hearing and before the court’s ruling on the motion, appellant filed exceptions to the action of the court in permitting the son, daughter and son-in-law to testify, on the ground that such testimony could only be given “during the regular progress of the trial on its ¡merits,” and that “any such release or waiver testified to on the part of such unjoin-ed heirs is without consideration, a nudum pactum, and void, and could not in law constitute an effective bar and defense against a future action on their part, since they are not parties to the suit, and any decision of this court with respect thereto would not be res ad judicata.” The case most nearly in point in support of appellant’s contention is Ft. Worth & D. C. Ry. v. Wilson, 85 Tex. 516, 22 S.W. 578, 579. The controlling distinction between that case and this is that there, in opposition to the motion for new trial, the plaintiff tendered a release of all claims against the defendant by the unjoined party (father of deceased). In holding that the showing in opposition to the motion was' insufficient to cure the defect of parties, the court said:

“Such proof should be made during the progress of the trial, under the rules governing the introduction of other evidence, and subject to the valuable privilege of cross-examination.
“Notwithstanding a paper purporting to be a release by the parents of the deceased was filed, it would be worthless to the defendant in a suit hereafter brought by them, if they should prove that they never executed a release. The certificate of the notary public that they acknowledged its execution was not proof of the fact. It was accepted and acted upon without the offer of any other evidence of its genuineness.”

The situation is altogether different here. The son, daughter and son-in-law appeared in person at the hearing on the motion and testified orally to the same effect as in their affidavits. This appearance and testimony were in support of appellee’s opposition to the motion to set aside the judgment, and were for the known and acknowledged purpose of upholding the judgment. In so far as concerns the issue of res adjudicata, clearly neither the son nor the daughter could thereafter assert any liability against the Gas Company, since to do so they would have to repudiate their sworn statements, given in open hearing for the very purpose of upholding the judgment. By every principle of estoppel they would be barred from thereafter asserting liability against the Gas Company, —as much so as if they had been parties to the action and a judgment had been rendered against them.

Independently of this holding, the record conclusively shows that the son and daughter had no justiciable interest in the suit, and therefore the failure to make them parties was harmless. The fact that the evidence was given in the hearing upon motion for new trial, and not during the progress of the trial, is not material in view of its conclusive effect. Had the issue been raised in the trial a. directed verdict against the son and daughter would have been required under this testimony. Under these circumstances it was not material whether or not the jury actually heard the testimony; their function being to pass upon controverted facts only. An analogous situation was presented in Law-ther Grain Co. v. Winniford, Tex.Com.App., 249 S.W. 195. The right of cross-examination was afforded appellant. Its failure to exercise it was of its own choosing.

The trial court’s judgment is reversed and the cause remanded.

Reversed and remanded.


author: ALEXANDER, Justice.

text:
    TREVINO et al. v. KIBBE et al.
    No. 2179.
    Court of Civil Appeals of Texas. Waco.
    Nov. 9, 1939.
    Lloyd & Lloyd, of Alice, and James Tafolla, Jr., of San Antonio, for appellants.
    Whipple & Rabel and Tabor Stone, all of San Antonio, for appellees.
   ALEXANDER, Justice.

This is an appeal from an order of the trial court overruling pleas of privilege. The appellants failed to file briefs within the time required by law, and, as a consequence, the appellees have filed a motion for affirmance of the judgment. Appellants have now filed a suggestion of fundamental error and have asked that the record be considered for this purpose.

O. P. Kibbe and wife sued J. O. Trevino, Sr., and his son, J. O. Trevino, Jr., in Bexar county, for damages for personal injuries growing out of an automobile collision which occurred in the city of San Antonio.- They alleged that J. O. Trevino, Jr., while intoxicated and driving an automobile as the agent of and on an errand for his father, J. O. Trevino, Sr., negligently ran the automobile being driven by him against the automobile in which Mrs. Kibbe was riding and inflicted severe personal injuries to her. Both J. O. Trevino, Sr., and his son filed pleas of privilege to be sued in Duvall county, the county of their residence. The trial court, after hearing the evidence, overruled the pleas of privilege.

Appellants apparently concede the sufficiency of the pleadings to establish a trespass within the meaning of section 9, Art. 1995, Revised Civil Statutes, so as to authorize a suit in Bexar county, but have gone into the testimony at great length to show that the evidence was insufficient to prove that J. O. Trevino, Jr., was. acting as the agent of his father at the time of the collision. However, as above stated, the case is presented on fundamental error only, and the rule appears to be that in order for an error to be fundamental, it must be apparent of record, and an error is not apparent of record or fundamental if its discovery necessitates an extended examination of the statement of facts and the weighing of the evidence pertinent thereto. 3 Tex.Jur. 817; Houston Oil Co. v. Kimball, 103 Tex. 94, 122 S.W. 533, par. 7; Ford & Damon v. Flewellen, Tex.Com.App., 276 S.W. 903; Blackmon v. Trail, Tex.Com.App., 12 S.W.2d 967. Since the error, if any, here contended for cannot be discovered without an extended examination of the statement of -facts and is therefore not apparent of record, appellants are not entitled to have the judgment reversed on account thereof.

Appellees’ motion for affirmance is granted.


author: GRAVES, Justice.

text:
    JOE HUGGINS LUMBER CO. v. GOOSE CREEK INDEPENDENT SCHOOL DIST. et al.
    No. 10892.
    Court of Civil Appeals of Texas. Galveston.
    Nov. 9, 1939.
    Kayser, Liddell, Benbow & Butler and W. O. Huggins, Jr., all of Houston, for appellant.
    Bailey & Blum, of Houston (Ben Blum, of Houston, of counsel), for appellee General Gulf Co.
    Bailey & Blum, of Houston, for appel-lee Maryland Casualty Co.
   GRAVES, Justice.

This appeal is from a judgment of the court below, sitting without a jury, wherein the appellant was awarded a personal judgment for $168 against Edwin P. Allison for a bill of lumber furnished by it to him as the sub-contractor in the construction of improvements on the Goose Creek High School under a contract between its Independent School District and the General Gulf Company as general contractor, but denying it any recovery against such general contractor or its bondsman, the Maryland Casualty Company, or against the Goose Creek Independent School District.

“The Court filed findings of fact and conclusions of law, finding, in -substance, that the facts were all as declared in appellant’s petition and, in addition, not only that the Goose Creek Independent School District owed the general contractor $200.-00 at the time of due and statutory notice by appellant to the school District, but that the general contractor had notice of appellant’s claim on or about September IS, 1937, and thereafter paid Edwin P. Allison over $200.00 on account of work done under his sub-contract; further, that at the time of the notice by appellant to the Goose Creek Independent School District on December 14, 1937, the general contractor had paid Edwin P. Allison all it owed him under his sub-contract; that the Goose Creek Independent School District withheld $200.00 of the funds owing to the General Gulf Company under such tract, and that on or about the 8th day of February, 1938, General Gulf Company filed a release-bond with the Maryland Casualty Company as surety; that this suit was first filed in the justice court of Harris County, Texas, Precinct No. 1, within six months after date of notice of appellant’s claim was filed with the School District, and that $20.00 was a reasonable attorney’s fee for the prosecution of plaintiff’s suit.

“The trial court concluded as a matter of law:
“1. That appellant was entitled to a personal judgment against Edwin P. Allison for its debt in the amount of $168.00 and costs;
“2. That the release-bond executed by the general contractor released the Goose Creek Independent School District of liability and, therefore, no recovery should be had against it;
“3. That no right to a lien on funds on hand in the School District was established and, therefore, no right of recovery on the release-bond, because it was not shown that the general contractor, General Gulf Company, was indebted to said sub-contractor, Edwin P. Allison, at the time appellant’s notice of its claim was given to the School District.”

The learned trial court’s reason for denying any recovery to appellant upon the release-bond so given by the general contractor through the Casualty Company was couched in this language:

“That the plaintiff is not entitled to recover under the pleadings and facts because it failed to prove that at the time the notice of its claim was filed with the proper authorities of the Goose Creek Independent School District, the General' Gulf Company owed Edwin P. Allison anything under its contract with him or moneys in an amount in excess of the claim of Joe Huggins Lumber Company or in any amount whatsoever, and that plaintiff would therefore not have been entitled to a lien on any funds in the hands of the Goose Creek Independent School District owing to the General Gulf Company under said contracts and therefore plaintiff is not entitled to recover on said release bond.”

The sole question the appeal presents is whether or not such denial of any recovery on the release-bond was sound, that is, within the construction that should be given Vernon’s Ann.Civ.St. Art. 5472a; the only authority relied upon by the ap-pellees is a construction, thus allegedly made in their favor by this language of Commissioner Leddy in Smith v. Texas Company, Tex.Com.App., 53 S.W.2d 774, 775, 777, to-wit:

“We think it fairly- appears from a consideration of the general scheme of legislation upon this subject that it was the intention of the Legislature to enable those furnishing labor, material, and equipment to a subcontractor for any public improvement to receive payment therefor to the extent of any unpaid balance due said subcontractor at the time notice required by statute is given.”

This court, upon a careful consideration of the matter, concludes that the trial court erred in its quoted construction, and that the copied extract from the Commission’s opinion constitutes no holding to the contrary, in that it -seems plainly to have been a mere dictum not consistent with the authoritative declarations in the opinion otherwise, and not relating to a point at issue on the facts in that cause; in other words, no question was ever there raised as to whether funds were due the sub-contractor, Paul Schriewer, at the time the Texas Company filed notice of its claim. That expression was, therefore, not authoritative nor binding.

Furthermore, not only did the Commission’s authoritative holdings otherwise in that cause import a contrary conclusion, but the very able opinion of the Waco Court of Civil Appeals in that same cause, which is reported under the style of Texas Company v. Schriewer in 38 S.W.2d 141, 143, which the Commission of Appeals in all material features approved, expressly holds the other way, in this declaration:

“For many years it has been the established policy of the state, as disclosed by general legislation on the subject, to secure the laborer or materialman by a lien to insure payment for the labor and material so furnished by him. One furnishing labor or material, either to a general or subcontractor, for private improvements is given a lien on the improvements constructed with the labor or material so furnished. * * *

“The state was furnishing the funds for such improvements, and it had the right and it was its duty to provide that those who supplied the' labor and material for such improvements should be compensated therefor. It is the duty of the courts, therefore, to so construe the statute as to accomplish this end, if they can do so, without doing violence to the language used.

“To give the statute that construction contended for by appellee and to hold that those who furnish labor and material to the general contractor may impound the funds, but that those who furnish such labor or material to a subcontractor have no lien thereon, would be a discrimination without warrant. We can perceive no good reason why the Legislature should prefer the laborer who furnishes labor direct to the general contractor over the one who furnishes such labor to a subcontractor. In each case the general contractor gets the benefit of the labor and material necessary for the improvements and for which he has obligated himself to pay. The state likewise gets the benefit of such labor and material and is likewise interested in seeing that it is paid for. ⅜ * *
“If the general contractor desired to protect himself against bills incurred by the subcontractor, he should have demanded a bond from the subcontractor. Huddleston & Work v. Kennedy [Tex.Civ.App.] 57 S.W.2d [255], decided by the Eastland Court, Feb. 20. * * *
“Articles 5472a and 5472b [Vernon’s Ann.Civ.St.] were passed by the Legislature for the purpose of providing a more expedient and efficient method to those furnishing material, apparatus, fixtures, machinery, or labor to any contractors for any public improvements in this state for the collection of their claims therefor. The remedy provided by these statutes is in addition to the remedy provided by Article 5160 [Vernon’s Ann.Civ.St.], which was in force at the time of their passage.
“We think that the notice is sufficient if it is given before the last, or any other installment, is paid.
“So long as there yet remains in the hands of the state or municipality a payment that has not been made to the contractor, the same may be impounded and subjected to the claim of the laborer or materialman by the giving of the notice to the proper authority. Huddleston & Work v. Kennedy, supra.”

If this appraisal of the statute involved and the two holdings construing it is correct, it settles this controversy in appellant’s favor, in that the question has thus already been authoritatively foreclosed in its favor. It would accordingly seem unnecessary to further extend the discussion, since this court is convinced that it is sound.

These conclusions require that so much of the trial court’s judgment as awarded the $168 personal recovery should be affirmed, but that, so much of it as denied it a recovery as against the General Gulf Company and the Maryland Casualty Company should be reversed, and that judgment should be here rendered awarding it a like recovery against both such companies for the sum of $168, plus the cost of the suit, inclusive of an attorney’s fee of $20, which the trial court found to be a reasonable one, if recoverable. It will be so ordered. In support hereof, these authorities are cited: Article 5472b—1, § 2, Vernon’s Ann.Civ.St.; Smith v. Texas Co., Tex.Com.App., 53 S.W.2d 774; Texas Company v. Schriewer, Tex.Civ.App., 38 S.W.2d 141.

Affirmed in part.

Reversed and rendered in part.


author: BROWN, Justice.

text:
    KUNSCHIK, Com’r Bureau of Labor Statistics, et al. v. NICHOLS et al.
    No. 14027.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 6, 1939.
    Rehearing Denied Nov. 24, 1939.

      Gerald C. Mann, Atty. Gen., of Texas, and Geo. W. Barcus, Morris C. Hodges, and A. S. Rollins, Assts. Atty. Gen., for appellants.
    Dee Estes and T. F. Morrow, both' of Fort Worth, for appellees.
   BROWN, Justice.

The appellees are owners of establishments that use high pressure steam boilers, which are subject to the provisions of an Act passed by the 45th Legislature of Texas, known as House Bill No. 352 and called “Steam Boiler Inspection law”, and being Article 5221c of Vernon’s Anno. Revised Civil Statutes of the State of Texas.

They brought suit in the 96th District Court against Joe Kunschik, Commissioner of the Bureau of Labor Statistics of Texas, alleging that they are subject to the provisions of such law and that the defendant Commissioner is threatening to have their said boilers inspected by wholly incompetent inspectors, who will demand of them the fees provided for in the said Law, and who will make such inspection without sufficient knowledge of and experience in such matters, and that such inspection by such unqualified inspectors will not afford the plaintiffs the protection that the said law guarantees to them, in that they are entitled to have their boilers inspected by competent and experienced men. They prayed “for a temporary restraining order or a temporary writ of injunction without notice”, and that the defendant be cited to appear on a day certain to show cause, if any, “why he has not complied with the requirements of law in selecting competent inspectors to inspect plaintiffs’ said boilers. And plaintiffs further pray for citation to issue to the defendant in the manner provided by law, and that upon a final hearing hereof, defendant be perpetually enjoined from the violation of law in respect to the examining and selecting of Boiler Inspectors in Texas, and from unlawfully demanding inspection fees from them, and from in any manner molesting or interfering with them in the lawful conduct of their business,” etc.

They particularly name one Charles W. Kellum, who was appointed by the said Commissioner as Chief Boiler Inspector, and allege his disqualifications and his lack of qualification to perform such services.

The petition having been presented to the trial court on May 18, 1939, the court made an order granting a temporary restraining order, as prayed for, effective until June 5, 1939, and ordering the Clerk of such Court to notify the defendant to appear before the court on said June 5, 1939, to show cause, if any, why he should not be temporarily enjoined, as prayed for in plaintiffs’ petition. Such official notice was served upon the said Commissioner on May 22, 1939, and he failed to appear on such date, to-wit, June 5, 1939, or to answer therein.

Judgment by default, after a hearing had, was entered by the trial court, granting the plaintiffs a temporary injunction against “Charles W. Kellum, his agents, servants and employees, from inspecting or causing to be inspected, plaintiffs’ boilers, and from demanding inspection fees from them and from in any manner molesting them in the lawful conduct of their business.” The court expressly found “that the said Kellum has not had sufficient experience to qualify under the law as boiler inspector.”

The court refused to grant the prayer for an injunction against the Labor Commissioner.

The Labor Commissioner and Inspector Kellum have appealed.

As we 'view this case, the .plaintiffs below and appellees here are not attempting to evade the provisions of the statute, under which their boilers must be inspected at proper intervals. They are asking that competent inspectors be delegated to make such inspections, for their protection and that of the public.

Evidence having been adduced on the issue and the trial court having found that Charles- W. Kellum, Chief Boiler Inspector, is not competent to make such inspections, we think the trial court warranted in enjoining him from making the inspections and putting the plaintiffs to the expense thereof.

The trial court has made no effort to enjoin the Labor Commissioner from doing or having done the acts of inspection that are necessary by and through any competent Deputy Inspector, the appointment of whom is enjoined upon the Commissioner by the provisions of Section 8 of said Article.

The following assignments of error are presented: (1) The trial court erred in taking jurisdiction of the case and in granting the injunction because the suit is an attack on the right of Commissioner Kunschik to hold such office, and such action may only be had through a quo war-ranto suit; (2) the trial court erred in granting the injunction against Kellum preventing him from performing the duties of his office, because, in any event, he is a de facto officer and his right to hold office and to perform the duties relating thereto may only be questioned in a quo warranto proceeding; (3) the trial court erred in granting the injunction against officer Kellum because he is not a party to the suit, was not served with process and made no appearance in the case.

If the language used by the petitioners in part presents an attack upon Commissioner Kunschik’s right to hold office, such portion of the pleading found no favor with the trial court, and such court only looked to and considered that portion of the petition which asserts that the Commissioner has appointed one Kel-lum as Chief Boiler Inspector, that he is wholly unqualified and is threatening to demand the right of inspection of petitioners’ boilers, to inspect same and charge fees therefor, to petitioners’ injury. The trial court has not enjoined the Commissioner from having petitioners’ boilers inspected by competent inspectors, and under the very provisions of the said statute, the right of the Commissioner to appoint qualified deputy inspectors is conferred.

As we see the order of the trial court, the Commissioner may at any time order and make an inspection of the petitioners’ boilers by any qualified deputy inspector.

We do not believe that the cases cited, to-wit, Williams v. Castleman, 112 Tex. 193, 247 S.W. 263, and Snow v. State, Tex.Cr.App., 114 S.W.2d 898, control the case at bar.

Our Supreme Court, in Caruthers v. Harnett, 67 Tex. 127, 2 S.W. 523, 525, in discussing the right of a citizen to injunc-tive relief as against' a public officer, quoted from High on Injunctions, as follows: “He who seeks to restrain an improper or unlawful conduct on the part of public officers must allege sufficient facts to show that he has such an interest in the public welfare as to make him a proper party to prevent the commission of a public wrong.”

In an exhaustive opinion by Mr. Justice Brady, of the Austin Court of Civil Appeals, the right to injunctive relief against the acts of public officers is fully discussed, and the following quotation from High on Injunctions is cited: “The preventive jurisdiction of equity extends to the acts of public officers, and will be exercised in behalf of private citizens who sustain such injury at the hands of those claiming to act for the public as is not susceptible of reparation in the ordinary course of proceedings at law.” Lawson v. Baker, Tex.Civ.App., 220 S.W. 260, 264.

It being made to appear to the trial court that the Chief Boiler Inspector, Kel-lum, who was appointed by the Commissioner, and who is acting under his orders, is wholly disqualified to inspect petitioners’ boilers, we believe that the trial court did not err in granting the temporary injunction as against Kellum.

As to the contention that Kellum was not cited and did not appear in the case, and that the trial court had no jurisdiction over him, we do not think the point well taken.

Kellum is a part of the official family of the said Commissioner. He was appointed by the Commissioner, who was served with process, and, according to the petition, Kellum is not only not qualified to inspect petitioners’ boilers but is threatening to do so and his acts will cause injury to petitioners, which is peculiar to them, and, a.t the same time, will prove injurious to the public.

We do not believe that Chief Inspector Kellum had to be served with process before he could be enjoined from making such inspections, under the direction and supervision of his superior, who was duly served with process.

This is an appeal from an order granting a temporary injunction. No effort has. been made to dissolve the injunction or to-try the cause on its merits.

The trial court was of opinion that the injunctive relief should be granted to the extent that the order shows, and we do> not believe that he has abused his discretion in such matter.

The judgment is therefore affirmed.


author: SMITH, Chief Justice.

text:
    STAGGS et al. v. PENA et al.
    No. 10738.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 18, 1939.
    Rehearing Denied Nov. 22, 1939.
    Oscar T. Vale, of Rio- Grande City, R. M. Bounds, of McAllen, L. R. Brooks, of Rio Grande City, and Seabury, Taylor & Wagner, of Brownsville, for appellants.
    Swearingen & Miller, of San Antonio, and Strickland, Ewers & Wilkins, of Mission, for appellees.
   SMITH, Chief Justice.

This proceeding was brought by Esteban Pena and others for the appointment of a receiver with power and instruction to sell and execute a mineral lease upon all un-leased lands situated in Porcion 82, in Starr County, comprising approximately 6,000 acres. Howard L. Staggs and others intervened below, and upon a hearing Honorable J. E. Leslie was appointed receiver as prayed for. The interveners, only, have appealed.

The application for the appointment of a receiver, constituting the plaintiffs’ unverified first amended original petition, was as follows:

“Now come Esteban Pena and Jose G. Guajardo and Nicasio Villareal who reside in Starr' County, Texas, suing herein for themselves and for the benefit of all other parties similarly situated, hereinafter called ‘Plaintiffs,’ complaining of Juan Ramirez and Pedro Ramirez, who reside in Starr County, Texas, and Federico Ramirez, who resides in Hidalgo County, Texas, and who are sued herein both individually and as representatives of that class of persons comprising all the owners of all the unleased land and the oil, gas and other minerals therein in Porcion No. 82, Nicolas Vela, Original Grantee, aggregating 6000 acres of land, more or less, in Starr County, Texas, hereinafter called ‘Defendants’, and with leave of the Court file this their First Amended Original Petition, and respectfully say:
“1. Undivided Ownership. Plaintiffs and Defendants are the owners of all titles and interests within said entire Porcion, which interests are not covered by oil, gas or mineral leases.
“2. Numerous Owners. The number of persons so owning such unleased interests in said Porcion is so great and multitudinous that the joinder of all of them personally and individually as parties to this Cause would be impracticable, would produce interminable delay and would probably obstruct the purposes of justice. Moreover, the residence, as well as the legal status of many of such legion owners are unknown, many of such owners being nonresidents of the State of Texas and of the United States, and others being under various legal disabilities. The named parties hereto fairly represent the interests, titles and rights involved of all such owners of unleased interests in said Porcion and of the class comprised of all such owners, and the unnamed members of such class have a common interest with such named parties before the Court, and there is no antagonism or adverse interests as between the named and unnamed members of such class, such that through the named parties to this suit as representatives of such class the Court will be able fairly and fully to adjudicate the question involved, and it will be practicable through such named parties to settle the issues presented for the benefit of all parties comprising such class.
“3. Drainage. Said Porcion 82 adjoins on the East and West Porciones 81 and 83, in both of which adjoining Porciones there have been completed by other persons numerous oil and gas wells which are now producing oil and gas in paying and commercial quantities, some of which wells are offsets to the boundary of said Porcion 82. By such wells the oil and gas beneath the surface of said Porcion 82 is being drained and withdrawn by third persons. Other and additional wells are in contemplation and will be drilled on said adjoining Porciones, which threaten and will increase further drainage from said Porcion 82 of its said mineral content. By such drainage, actual .and threatened, the rights, titles and interests in said Porcion of the parties hereto are being and are in danger of being lost, removed and materially injured, and subjected to irreparable injury and waste.
“4. Prevention of Drainage. Because of the multitudinous numbers of the parties to this Cause and also because of their being widely scattered, the unknown where■abouts of many of them, the legal disabilities of others and also because of the want -of adequate skill, experience, equipment and money on the part of said parties, they are unable and will remain unable themselves to drill and complete the oil and gas wells on said Porcion 82 necessary to prevent the ■ above described drainage of its mineral content, and to avoid the irreparable injury to such parties and each of them through such drainage.
“5. Mineral Lease. The only practicable means by which such parties can secure the drilling of such required wells necessary ,to prevent such drainage is by the making, execution and sale of an oil, gas and mineral lease from such parties, as lessors, to some third person, as lessee, creating in such third person an oil, gas and mineral leasehold estate, which third person, as such lessee and the owner of such mineral leasehold estate, will be a person of such skill and experience and having such equip-.ment and financial strength as are required to drill such wells on said Porcion 82.
“6. Receiver. The making of such mineral lease necessary to prevent such drain- . age, by the parties hereto, acting personally and individually in the sale, execution and delivery of any such lease, is impossible for all practical purposes because of their multitudinous numbers, their widely scattered residences and the unknown whereabouts • and legal disabilities of many of them, such that if such lease is to be made and such drainage to be prevented, it is necessary that a Receiver of said unleased interests in said Porcion be appointed to act for and on behalf of all such owners of such un-leased interests in said Porcion in the making, sale, execution and delivery of such mineral lease, pursuant to the orders and directions of this Honorable Court.
“Premises considered, Plaintiffs pray the Court, the Defendants having been duly cited, that upon a hearing hereof a Receiver of all such unleased interests in said Por-cion be appointed to make and execute an oil, gas and mineral lease covering such un-leased interests, for such consideration and upon such terms and provisions as the Court may direct, and for general relief.”
“The unnamed (class) defendants” answered, through a court-appointed attorney ad litem, by general demurrer and general denial, and the named defendants filed like answers, through attorneys of their own selection.

The various interveners interposed general and special demurrers to the plaintiffs’ petition, raising the questions presented in this appeal, denied the allegations in the petition by verified traverse, and affirmatively set up ownership of the fee, or undivided interests, in certain segregated parcels of land in Porcion 82, praying for adjudication of their titles and for removal of cloud claimed to have been cast thereon by plaintiffs’ suit. In response to plaintiffs’ pleas in abatement, the trial court struck interveners’ prayers for affirmative relief, thereby restricting the issue to one for appointment of a receiver.

Upon a hearing after notice the trial judge appointed Honorable J. E. Leslie as receiver, with authority and instruction to sell and execute, subject to the court’s approval, an oil and gas lease upon all lands in said Porcion 82 which were not under recorded lease at the time of execution of such lease by the receiver. It was further provided in the order that all lands in said Porcion under existing oil and gas leases were expressly excluded from the operation of the judgment for every purpose.

None of the named, or “unnamed,” defendants have appealed from the order, but Howard L. Staggs and the other interven-ers below have prosecuted this appeal.

It is obvious that appellees sought the appointment of a receiver by virtue of § 1, Art. 2293, R.S.1925, which provides:

“Receivers may be appointed by any judge of a court of competent jurisdiction of this State, in the following cases:
“1. In an action * * * ■ between partners or others jointly owning or interested in any property or fund, on the application of the plaintiff or any party whose right to or interest in the property or fund or the proceeds thereof is probable, and where it is shown that the property or fund is in danger of being lost, removed or materially injured. * * * ”

It is first contended by appellants, in effect, that this action having been brought primarily or solely for the appointment of a receiver, independently of any suit for permanent or ultimate relief, it is unauthorized and will not lie; that a receiver will not be appointed except in a proceeding ancillary to some action for permanent or other relief. We are of the opinion that the contention is sound, and accordingly sustain appellants’ first proposition of law. 36 Tex.Jur. pp. 13, 20, §§ 4, 7, and authorities cited. It is said in Tex. Jur.:

“The ordinary purpose of a receivership is to take full charge and possession of property involved in litigation, in order to protect, defend and preserve it, to impound and hold it subject to the order of the court, or, if necessary, to administer or manage it, ‘upon a principle of justice for the benefit of all concerned,’ pending final determination of the litigation and the rights of the parties. The remedy is intended to aid in the ‘efficient exercise’ of the court’s powers, and to secure the property for the one (or those) who may ultimately be ascertained to be entitled to it, with the least possible injury; not to destroy the rights of persons, nor to defraud or embarrass them in the assertion of rights, nor to destroy, dissipate or dispose of the property. Thus when mortgaged property is placed in receivership, the purpose is to aid in saving the property from waste and deterioration until it can be sold by virtue of a decree of court. And when a receivership is created after the rendition of a verdict, its object is to carry out the provisions of the judgment directing a sale of the property and the payment of the proceeds to the parties entitled thereto. ⅝ ⅜ ⅜
“With rare exceptions resting upon statutory provisions, the right to a receiver does not exist apart from some other right, or the infringement of some right, so as to constitute an independent cause of action. Indeed, many of the decisions affirm that the remedy is merely ancillary or auxiliary to a pending ‘main’ suit or action for some ultimate relief, or to establish or vindicate some right, other than the appointment of a receiver. In short, a receivership is not usually regarded as an end in itself, but must stand or fall with the pendency of the main suit, to which it is incidental.”

Obviously, the primary and sole purpose of this proceeding was to procure the appointment of a receiver. No other relief was sought or granted. It is true that appellees prayed and the court directed that the receiver sell and execute a lease upon indefinite and unascertained portions of Porcion 82, but such prayer was for, and such provision in the appointing order was no more than, a mere instruction to the receiver as to his duties, and did not raise the application for receivership to the dignity of a lawsuit. 36 Tex.Jur. p. 24, § 7.

The action was one solely for the appointment of a receiver wholly dissociated from any action for permanent or ultimate relief, in flagrant contravention of the rule stated.

We think appellees’ petition was subject to other vital and fundamental objections, but it is not necessary to undertake to point out any of them, except the one discussed above.

The judgment will be reversed, and the receivership vacated, at the cost of appel-lees.