author: MOORE, Justice.

text:
    DAIRYLAND COUNTY MUTUAL INSURANCE COMPANY of Texas, Appellant, v. Bobby Joe KEYS, Appellee.
    No. 1140.
    Court of Civil Appeals of Texas, Tyler.
    June 29, 1978.
    Rehearing Denied July 27, 1978.

      Melvin R. Wilcox, III, Roberts, Harbour, Smith, Harris, French & Ritter, Longview, for appellant.
    Bill D. Rosenstein, Stephens, Corn & Ro-senstein, Tyler, for appellee.
   MOORE, Justice.

Appellee, Bobby Joe Keys, instituted this suit against appellant, Dairyland County Mutual Insurance Company, to recover benefits alleged to be due him under the terms of an automobile insurance policy insuring against loss due to fire or theft. As grounds for a cause of action, appellee alleged that during the policy period his 1972 automobile was stolen, stripped and burned. The insurance company denied generally the allegations of the petition and filed a verified denial alleging that the appellee failed to give the proper notice of proof of loss in accordance with the terms of the policy. The cause was submitted to the jury on two special issues inquiring as to the value of the automobile before and after the alleged theft and burning. Pursuant to the jury’s verdict the trial court rendered judgment in favor of the appellee for the sum of $1,400.00, from which judgment the insurance company perfected this appeal.

We affirm.

Appellee testified that his automobile was stolen on October 17, 1975. It was found by the police on the following day in a remote area near the city of Tyler where it had been completely stripped and burned. Appellee reported the loss to appellant’s agent from whom he purchased the policy. He was advised to come to the agent’s office and fill out a report. He went to the office on October 20, 1975, and the appellant’s agent filled out a form stating the details of the theft. This instrument was signed by appellee and was offered into evidence upon the trial. The instrument appears to have been a form prepared by the insurance company. It was headed “Dairyland County Mutual Insurance Company of Texas” and immediately thereunder was printed the address and the phone number of the insurance company. The instrument was titled: “AUTOMOBILE ACCIDENT AND LOSS REPORT.” The completed report was sent to the insurance company and received by it on October 22, 1975. The report listed the name, address and phone number of the insured; the policy number; the name and address of the insurance agent; date of the loss or accident; place of the loss or accident; the description and serial number of the automobile, etc. Near the end of the report a blank space was provided for the insured to state briefly what happened. In this space appellee furnished the following information: “Car was stolen on October 17 or 18 from the home of Grant Adams, Rt. 2 Box 418A, Tyler, Texas (this is a friend of the owner who had been helping him work on the car). The car was found about 6:15 p. m. Oct. 18, 1975 by Edgar Shelton, Constable, from a report that there was a fire near the Hawthorne Cemetery about 10 miles S., S.W. of Tyler or 2½ miles west of Noonday community, (car had 327 V-8 engine — automatic transmission and air conditioning — 23 channel CB radio and mag wheels.) Owner estimates value at about $2,000 due to added features above mentioned.”

The evidence shows that upon receipt of the loss report appellant sent its claims adjuster to investigate the claim. The claims adjuster called on appellee on October 28, 1975, and took a written statement from him with regard to the loss. In his statement, appellee detailed where the automobile was situated at the time it was stolen and the condition in which he found it after it had been stripped and burned. Thereafter appellant’s claims adjuster again called on appellee on November 13, 1975, and took an additional statement from him detailing the conditions surrounding the theft and fire. At the time the latter statement was taken, the adjuster advised the appellee that the company was of the opinion that this was a case of insurance fraud and that they would not pay the claim, whereupon appellee filed the present suit on January 5, 1976.

In response to request for admissions the insurance company admitted that it issued the policy in question and that appellee had paid all premiums due thereon. It appears that the policy, as such, was never delivered to appellee. Instead, the company’s agent delivered what appears to be a skeleton form of a policy, or a binder. While the loss payable clause attached thereto indicates that the parties contemplated that the insured was required to file some type of proof of loss, no proof of loss requirement was specifically set forth therein.

Under the first point appellant asserts that the trial court erred in refusing to grant its motion for judgment non obstante veredicto because the appellee failed to request or obtain a jury finding that he filed a proof of loss in accordance with the terms of the policy. In reply, appellee maintains that the evidence shows, as a matter of law, that he filed a proof of loss and therefore no issue was created for the submission to the jury. Appellant takes the position that the instrument received by it titled “AUTOMOBILE ACCIDENT AND LOSS REPORT” does not amount to a proof of loss. At no time, however, did appellant ever advise appellee that the instrument was insufficient as a proof of loss or otherwise advise appellee that it was defective in any respect.

Where an insurance policy makes the furnishing of a proof of loss a condition precedent to the enforcement of the policy, and a proof of loss is not furnished or waived, the insured will not be permitted to recover. Farmers Mutual Protective Assoc, of Texas v. Thompson, 365 S.W.2d 226 (Tex. Civ.App.—Houston 1963, writ ref’d n. r. e.). However, all that the insurance company is entitled to receive by way of a proof of loss is to be apprised of the facts. Francis v. International Travelers’ Assoc., 260 S.W. 938, 946 (Tex.Civ.App.—Dallas 1924), affirmed 119 Tex. 1, 23 S.W.2d 282 (1930).

It is generally held that substantial compliance with a policy provision requiring proof of loss is all the company may require and that an unverified proof of loss, containing the required information, constitutes substantial compliance with the policy provision. 32 Tex.Jur.2d Insurance sec. 372, p. 577; Universal Automobile Ins. Co. v. Morris Finance Corp., 16 S.W.2d 360, 362 (Tex.Civ.App.—Eastland 1929, writ dism’d); Austin Building Co. v. National Union Fire Ins. Co., 403 S.W.2d 499, 506 (Tex.Civ.App.—Dallas 1966, writ ref’d n. r. e.); Anchor Casualty Company v. Bowers, 385 S.W.2d 568, 569 (Tex.Civ.App.—Houston 1964), rev’d on other grounds Tex., 393 S.W.2d 168 (1965).

Where an insurance company takes the position that the proof of loss furnished by the insured is defective, the company must, within a reasonable time, object to the proof and point out the defects so that the insured, if he desires, may correct the same. In the absence of such objection, the company waives its right to complain of the proof of loss furnished. 32 Tex.Jur.2d Insurance sec. 383, p. 593 and cases cited therein.

In view of the fact that the “AUTOMOBILE ACCIDENT AND LOSS REPORT” was sufficient to apprise the appellant of the facts surrounding the loss, and appellant acted thereon without objecting or pointing out wherein it was defective, we think the evidence is such as to establish conclusively that the “AUTOMOBILE ACCIDENT AND LOSS REPORT” constituted a sufficient proof of loss. Consequently, we hold that proof of loss was conclusively established under the evidence and therefore the submission of the matter to the jury was not required. Rule 279, Tex.R. Civ.P. Appellant’s first point is overruled.

We find no merit in appellant’s contention that the trial court erred in denying its motion for a continuance because of the absence of two of its witnesses.

The record reveals that at the call of the docket on May 27,1977, the case was set for trial on Monday, June 20, 1977. On that date counsel for appellant appeared and announced ready for trial subject to the presence of his witnesses. The trial judge then announced that the case would be put over until Wednesday, June 22nd. Counsel then caused subpoenas to be issued for witnesses Jimmy Massey and Sammy Lipsey. When the case was called for trial on Wednesday, counsel filed a motion for continuance alleging that the witness Massey had not been served because he was out of the State of Texas and that the witness Lipsey, who was a resident of Shreveport, Louisiana, had not been served and could not be present because of a previous subpoena requiring his presence in Amarillo, Texas on that date.

Appellant’s motion was in substantial compliance with the requirements of Rule 252, Tex.R.Civ.P., and alleged that appellant used due diligence to procure the testimony of the witnesses by issuing a subpoena for them on June 20, 1977. Nowhere in the motion, however, did appellant seek to excuse its failure to place the witnesses under subpoena at the time of the call of the docket on May 27, 1977, nor did appellant seek to excuse its failure to take the deposition of the witnesses at some time prior to the June setting as provided by Rule 186, Tex.R.Civ.P.

Rule 252, supra, requires that the party seeking the continuance make affidavit “that he has used due diligence to procure such testimony, stating such diligence,” and Rule 251, Tex.R.Civ.P., directs that a continuance shall not be granted “except for sufficient cause.” Of course, the absence of a material witness is “sufficient cause,” but only if proper diligence has been used to procure the testimony of the witness.

In the instant case, it appears that appellant elected to forego its right to take the depositions of the two witnesses. At the “eleventh hour” appellant asked the issuance of subpoenas which could not be served because the witnesses were either out of the state or under previous subpoena. These facts, in our opinion, do not constitute that degree of diligence which the law requires. Fritsch v. J. M. English Truck Line, 151 Tex. 168, 246 S.W.2d 856 (1952); Mikell v. La Beth, 344 S.W.2d 702 (Tex.Civ. App.—Houston 1961, writ ref’d n. r. e.). The trial court did not abuse its discretion in overruling appellant’s motion for a continuance.

Accordingly, the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: KEITH, Justice.

license: Public Domain

text:
    S. J. MARTIN et al., Appellants, v. C. L. THALMAN et ux., Appellees.
    No. 8165.
    Court of Civil Appeals of Texas, Beaumont.
    June 29, 1978.

      Eugene D. Stewart, Carrizo Springs, for appellants.
    James B. Davis, Donald F. Robillard, Houston, L. L. Duckett, El Campo, Sherry L. Hartman, Dallas, J. G. Hornberger, Laredo, for appellees.
   KEITH, Justice.

Defendants below appeal from an adverse summary judgment in a suit for specific performance of a settlement agreement. In an earlier appeal, Porter v. Thalman, 516 S.W.2d 755 (Tex.Civ.App.— San Antonio 1974, writ ref’d n.r.e.), the court of civil appeals made an extensive statement of the underlying facts of this case, and we find no reason to recite again in detail the events up through the first appeal.

For the purposes of this opinion, it is sufficient to state that in 1969, Eunice Porter and C. L. Thalman entered into a settlement agreement in an injunction suit brought by Mrs. Porter. They agreed to exchange two forty-acre tracts of land and equal mineral interests. Two deeds were exchanged, and the suit was dismissed with prejudice against Mrs. Porter. When oil was discovered on the tract conveyed to Thalman, he discovered that Mrs. Porter had retained a one-half mineral interest and failed to convey any mineral interest to him; whereas, he and his wife had conveyed a one-half mineral interest to Mrs. Porter. This suit resulted.

After remand, plaintiffs amended the original petition. They requested that Mrs. Porter be required to specifically perform the terms of the agreement by conveying a one-half mineral interest, or that the deed from Mrs. Porter be reformed to carry out the agreement, or that the conveyance of one-half mineral interest to Mrs. Porter be held null and void for want of consideration and that any royalty payments for such land be paid to them. Eunice Porter died and her heirs, S. J. and George Martin, were joined as defendants to represent her estate. Plaintiffs filed a motion for summary judgment requesting specific performance, and it was granted. A judgment was entered that the Porter Heirs convey to plaintiffs the one-half mineral interest retained by Mrs. Porter and that plaintiffs recover all royalty payments received by Mrs. Porter, with interest, and all royalty payments held in escrow by Sun Oil Company. The court severed plaintiffs’ cause of action against Sun Oil Company.

Defendants appeal on ten points of error. We find it necessary to discuss their second point only. Defendants contend that the trial court erred in granting a summary judgment requiring specific performance of the settlement agreement because the agreement contains no legal description of the property to be conveyed.

The Statute of Frauds requires that contracts for the sale of real estate be in writing. Tex. Bus. & Comm. Code § 26.01 (1968), as amended, (Supp. 1978). For the contract to be valid and enforceable by specific performance, it must contain a property description that makes the subject matter to be conveyed identifiable. Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150, 152 (1945). “To be sufficient, the writing must furnish within itself, or by reference to some other existing writing, the means or data by which the land to be conveyed may be identified with reasonable certainty.” Morrow v. Shotwell, i'll S.W.2d 538, 539 (Tex. 1972); accord, Kmiec v. Reagan, 556 S.W.2d 567, 569 (Tex. 1977); U.S. Enterprises, Inc. v. Dauley, 535 S.W.2d 623, 627 (Tex. 1976); Williams v. Ellison, 493 S.W.2d 734, 736 (Tex. 1973).

The settlement agreement contained the following description of the two properties to be exchanged:

“The compromise and settlement agreement provides, and it shall be related to what will be marked here as a joint exhibit, Plaintiffs and Defendants Joint Exhibit # 1 for reference, that the defendant, Mr. Thalman, will exchange a forty acre tract of land, which he owns, and which appears to be Survey 84 in the portion of the county map, which is here in evidence as Joint Exhibit # 1, which forty acre tract would then be adjoining Mrs. Porter’s 321.85 acre tract and Mrs. Porter will in consideration for said conveyance to her convey to Mr. Thalman, her forty acre tract which abuts and adjoins the forty acre tract of Mr. Thalman, conditioned, however, that the mineral rights which the parties may convey to each other in this exchange of forty acre tracts is equal, not referring to value but equal in realty interest.”

Citing Pritchard v. Burnside, 140 Tex. 212, 167 S.W.2d 159 (1943), plaintiffs contend that the above description together with Joint Exhibit # 1 identifies the properties to be conveyed with reasonable certainty. We must disagree.

“An attached map becomes a part of the written contract and can aid a defective written description if the map contains enough necessary descriptive information.” U.S. Enterprises v. Dauley, supra at 628. However, the alleged Exhibit # 1 before us only indicates where Survey 84, which contains over 640 acres, is located. There is no coloring on the copy in the transcript. It together with the above description does not indicate where within Survey 84 either of the forty-acre tracts is located. Therefore, the description is not so definite so as to make the land identifiable with reasonable certainty. See U.S. Enterprises v. Dauley, supra at 629; Greer v. Greer, 144 Tex. 528, 191 S.W.2d 848, 850 (1946); Smith v. Sorelle, 126 Tex. 353, 87 S.W.2d 703, 705 (1935); Pfeiffer v. Lindsay, 66 Tex. 123, 1 S.W.2d 264, 265 (1886).

There being no proper legal description of the tracts being exchanged, we find that the settlement agreement is void and unenforceable by specific performance. Therefore, the judgment of the trial court is reversed.

Since it appears likely that the plaintiffs excusably omitted to fully develop their alternative grounds for recovery as a result of the erroneous judgment of the trial court, we are of the opinion that to remand rather than to render judgment will better serve the ends of justice in this case. See United States Fire Insurance Co. v. Carter, 473 S.W.2d 2, 3 (Tex. 1971) (per curiam); Scott v. Liebman, 404 S.W.2d 288, 294 (Tex. 1966); Tex. R. Civ. P. 434.

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

REVERSED and REMANDED.

      . Joint Exhibit # I was filed in the records of the 1969 suit, but was removed from the file by an unknown person, according to an affidavit sworn to by the District Clerk of Dimmit County attached to Plaintiffs’ Supplemental Petition for Summary Judgment. Also attached to their supplemental petition is an affidavit sworn to by Carlos Castillon, attorney for Thalman in the prior case, and a map of Dimmit County. He swears that the map is an accurate copy of Joint Exhibit # 1.


author: PHILLIPS, Chief Justice.

text:
    INDEPENDENCE SAVINGS AND LOAN ASSOCIATION et al., Appellants, v. GONZALES COUNTY SAVINGS AND LOAN ASSOCIATION et al., Appellees. INDEPENDENCE SAVINGS AND LOAN ASSOCIATION et al., Appellants, v. YOAKUM FEDERAL SAVINGS AND LOAN ASSOCIATION, et al., Appellees.
    Nos. 12788 to 12790.
    Court of Civil Appeals of Texas, Austin.
    July 5, 1978.
    Rehearing Denied July 26, 1978.
    Larry E. Temple, Austin, for Independence Sav. and Loan Assn.
    John L. Hill, Atty. Gen., Thomas M. Pol-lan, Asst. Atty. Gen., Austin, for Sav. and Loan Commissioner.
    Barry Bishop, Clark, Thomas, Winters & Shapiro, Austin, for Gonzales County Sav. and Loan Assn.
    Dudley D. McCalla, Heath, Davis & McCalla, Austin, for Yoakum Federal Sav. and Loan Assn.
   PHILLIPS, Chief Justice.

The organizers of appellant Independent Savings and Loan Association made application to the Savings and Loan Commissioner in April of 1976 for a new savings and loan association to be located in Gonzales, Texas. At that time, the home office of Gonzales County Savings and Loan Association, located in Gonzales, Texas, was the only savings and loan facility located in Gonzales County.

In March of 1976, Yoakum Federal Savings and Loan Association had filed an application with the Federal Home Loan Bank of Little Rock for permission to establish a branch office also to be located in Gonzales.

The hearing on appellant’s application was held before the Savings and Loan Commissioner on May 26 and 27,1976. Yoakum Federal filed a letter of protest but did not otherwise participate in the hearing. However, Gonzales County Savings actively participated therein and presented evidence in opposition to the charter application.

On July 7, 1976, the Savings and Loan Commissioner sent a letter to all parties advising them of his intention to approve the charter and asking that an order be prepared for his signature. By order dated July 28,1976, the Federal Home Loan Bank approved the Gonzales branch office for Yoakum Federal.

Thereafter, Gonzales County Savings and Loan Association brought suit against the Savings and Loan Commissioner contesting the validity of his July 12, 1976 order. Independence intervened in support of the order and Yoakum Federal intervened on the side of plaintiff Gonzales County.

Both Gonzales County and Yoakum Federal made application to the district court pursuant to the provisions of Section 19(d)(2) of the Administrative Procedure and Texas Register Act, Article 6252-13a, § 1 et seq. (A.P.A.) to have the cause remanded to the Commissioner for the taking of additional evidence pertaining to the Yoakum Federal branch approval.

Over the objection of the Commissioner and Independence Savings, the trial court granted the motion and entered an order remanding the cause to the Savings and Loan Commissioner for the purpose of taking evidence relative to the establishment of the Yoakum Federal branch in Gonzales, “and the effect, if any, such branch would have on the establishment of a new charter in light of all attendant circumstances as they affect the statutory issues presented to the Commissioner.”

Pursuant to the court’s order, additional hearing on the Independence charter application was held before the Savings and Loan Commissioner in the spring of 1977, and the Independence charter applicants and both Gonzales County and Yoakum Federal participated fully in that hearing.

On May 25, 1977, the Commissioner entered a “supplemental order” to his original order which again approved the charter application of Independence. That order and the evidence compiled at the 1977 hearing were filed with the court in accordance with the court’s previous order.

Two other lawsuits relating to this same cause of action were filed by Gonzales County and Yoakum Federal and as their procedural history is immaterial here, we will not discuss them further. They were consolidated by this Court with the original lawsuit and will be disposed of here.

The trial court then entered judgment holding “that the orders of the Commissioner entered on July 12, 1976, and May 25, 1977, granting the charter application of Independence Savings and Loan Association in Gonzales, Texas, are invalid; that the two orders and the underlying facts therein are irreconcilable and invalid regardless of substantial evidence; and that the irreconcilability of the underlying facts renders such orders invalid because of the absence of underlying facts, contrary to law; and are not reasonably supported by substantial evidence, and should be set aside and held for naught.” The judgment remanded the cause to the Commissioner with direction to deny the charter application.

Appellants then perfected their appeal to this Court. We reverse the judgment of the trial court and render judgment as hereinafter indicated.

I.

Appellants are before us on two main questions. The first is whether the trial court erred in remanding this cause to the Commissioner pursuant to the provisions of Section 19(d)(2) of the Administrative Procedure and Texas Register Act for the taking and consideration of evidence of matters that came into existence after the Commissioner entered his July 12, 1976 order approving appellants’ charter. In our opinion, the trial court did not err in remanding this cause.

Section 19(d)(2) provides that:

“. . any party may apply to the court for leave to present additional evidence and the court, if it is satisfied that the additional evidence is material and that there were good reasons for the failure to present it in the proceeding before the agency, may order that the additional evidence be taken before the agency on conditions determined by the court. The agency may modify its findings and decision by reason of the additional evidence and shall file such evidence and any modifications, new findings, or decisions.” (Emphasis added)

The remand provisions of Section 19(d)(2) provide two statutory requirements. First, the court must be satisfied that the additional evidence is material Surely, the granting of a federal branch creating an additional competing savings institution in a small town is a material fact. The materiality is further emphasized by the fact that the Independence charter was granted originally as the “competitive alternative” to the one existing local federal savings and local association.

The second statutory requirement is that there be “good reasons for the failure to present the evidence in the proceedings before the agency.” In this instance, none of the parties could present evidence of the granting of the federal branch in Gonzales until the branch was approved, and it is undisputed that this occurred after the Commissioner initially granted the Independence charter.

II.

The second question for our determination is whether the court correctly held that the findings of the Commissioner were irreconcilable and invalid, and that the irreconcilability of the underlying facts render such orders invalid because of the absence of underlying facts and are not reasonably supported by substantial evidence.

We cannot agree with this conclusion of the trial court; consequently, we sustain appellants’ points of error directed thereto.

This is primarily a “substantial evidence” case. The original record of the hearing before the Savings and Loan Commissioner in 1976 contains a transcript of testimony of 294 pages plus 19 separate exhibits submitted to the Commissioner by the charter applicants and separate exhibits admitted into evidence on behalf of the opponents.

The Commissioner made the statutory ultimate findings required by Sections 2.02, 2.03, 2.04, 2.05 and 2.06 of the Savings and Loan Act, Article 852a, V.C.S., all favorable to appellant Independence Savings and Loan Association, and then made a highly comprehensive, detailed summary of the underlying facts in support of those ultimate findings.

After setting out the corporate structure of Independence, capital stock directors and their qualifications, the order makes numerous underlying findings of fact based on the testimony adduced at the hearing. We are primarily concerned here with the statutory requirements of public need for a new facility, its projected profitability and whether or not it will unduly harm any existing association.

In the first, or 1976 hearing, the Commissioner’s findings disclose that Gonzales County has a population of approximately 16,300 people and that the economic base of the county is primarily founded on agriculture. The findings then state certain economic facts about the county such as a series of cash receipts for farm marketings, increased employment in the labor force, increases in total earnings and total incomes, increases in city sales tax allocation, increases in total bank deposits, and the increase in total savings in Gonzales County Savings and Loan Association. The total assets of that association were $13,621,000 in 1965, $21,662,000 in 1970, and $37,657,000 in 1975. These totals increased every single year during that ten-year period and that Gonzales County Savings increased even further during the first quarter of 1976 to $38,982,000. The findings further state the residents of Gonzales County are excellent savers, or higher than average in this regard, that not only is the county a good savings and loan market but it is reasonable to anticipate that Independence might obtain both savings and loans from beyond the boundaries of Gonzales County.

Although the findings further state building permit records, deed of trust recordings, all increasing, for the purpose of this opinion we need not expand on these facts.

Consequently, the Commissioner found a public need for a new savings institution in Gonzales County where the economic base is presently sound and growing and reflects a healthy and prosperous area in which the new association will operate.

As we stated above, at the time of this hearing, Yoakum Federal Savings and Loan Association’s application for a branch office in Gonzales was being processed by the federal authorities and was granted a few days after appellant’s application had been approved.

As we also stated above, we are fully in accord with the court’s remand of the case to the Commissioner for further consideration of the impact of the Yoakum Federal’s branch office in Gonzales County.

In compliance with the court’s order, the Savings and Loan Commissioner held another hearing in the spring of 1977. This 1977 hearing adds another 492 pages of transcript plus another 25 exhibits to the record. Following this, the Commissioner issued another order wherein he found “. . . that there is not adequate basis or justification to withdraw or rescind or change the conclusion of his July 12, 1976 order or the ultimate findings contained therein because of the subsequent action by the federal regulatory authorities approving the Gonzales branch office for Yoakum Federal Savings and Loan Association or for any other reason. Rather, the Commissioner reasserts and reaffirms all of the ultimate findings contained in Part II of his July 12, 1976 order.”

We find nothing inconsistent in the two orders and hold that the orders, taken together, are valid, legal orders, based on substantial evidence adduced before the Commissioner in support of appellant’s charter.

The first order, as we outlined above, found a necessity for a new facility. The second order found that there was a necessity for the new facility even taking into consideration a new branch office not considered in the first hearing or in the order following that hearing. It was the Commissioner’s prerogative to so find if such finding is buttressed by the statutory requirements.

In the second order of 1977 issued pursuant to the remand by the trial court, the Commissioner found: “A complete review of the additional economic, demographic, and financial evidence presented during the 1977 reopened hearing reflects a continuation of the healthy growth and expansion of the economic base of the Gonzales County community which the Commissioner found to exist based upon the previous hearing record. It would serve no purpose in this order to repeat the underlying statistical facts set out in the basic July 12,1976 order to which this order is a supplement. However, the Commissioner deems it pertinent to recite some of the more recent data that has now been presented to him.” The second order then states additional underlying facts in support of restated ultimate facts similar to those in the first order. These additional facts point to a slight population increase since the figures given in the first hearing, increase in the labor force, increase in personal income, and that the total cash receipts for farm marketings for Gonzales County hit an all time high for 1975 of $78,131,000 compared to $71,906,000 for 1974. Recent increases were also noted in gross sales for the county, bank debits, building permits, in addition to a continued growth in mortgage lending.

Recent expansion of bank deposits in the county were noted. Indeed, the total savings of Gonzales County Savings and Loan Association grew from $37,657,000 at year end 1975 to $42,220,000 at year end 1976.

The order found further that Yoakum Federal Savings and Loan Association has also done well both from a savings standpoint and a loan standpoint in Gonzales County. The Association’s Gonzales County savings at the time it filed its federal branch application in the spring of 1976 totaled approximately $132,000 and had a total Gonzales County savings as of September, 1976, of $298,000 compared with a March 30, 1977, total of $707,000. This association increased its Gonzales County savings by $409,000 during the last seven months. Yoakum Federal Savings and Loan Association had 81 loans in Gonzales County in a total dollar amount of $1,982,-000 at the time it made its branch application in the spring of 1976. It now has 96 total loans on its books from Gonzales County in a total dollar amount of $2,891,-000. Since it opened its branch office in Gonzales on September 1, 1976, Yoakum Federal Savings and Loan Association has closed 20 loans in the total dollar amount of $590,000 and it has 21 additional first mortgage loan commitments outstanding in a total dollar amount of $627,000.

The Commissioner further found that: “Obviously, both Gonzales County Savings and Loan Association and Yoakum Federal Savings and Loan Association are doing well competing against each other in this healthy, expanding economy.”

The two orders speak for themselves. There is no conflict. The 1976 order contains findings and states underlying facts as those facts existed as of the time it was entered. The 1977 order does the same. Each order is consistent with the facts in the record upon which it was based and both orders are consistent with each other.

It is apparent from the record that this has been a stoutly contested case from the very beginning; however, the Commissioner has made his call, complied with the statutory requirements in writing his order and the order is amply supported by substantial evidence.

III.

Appellee Yoakum Federal Savings and Loan Association suggests that the Commissioner erred in his statement in the May 25,1977 supplemental order that there was no contention in the record before him of undue harm to Yoakum Federal Savings and Loan Association. This pertains to the Commissioner’s ultimate finding that no undue harm to appellee would result from granting appellants’ charter. They cite the court to testimony by the president of that Association where the words “undue harm” were used. Appellants contend that the Commissioner’s statement correctly describes the record before him. We hold that what the Yoakum Federal officer was talking about was the potential loss of additional business — not undue harm. The following testimony given by Mr. C. T. Matthew in the second hearing in 1977 is instructive:

“Q All right, sir, if Independence Savings & Loan begins operations in Gonzales a few blocks away from you as they propose to do, would that have an adverse effect upon your branch operation, your investment in that branch and the entire association, in your opinion?
“A Well, yes, it would have an adverse effect on our operation, because as you can see, we are growing, and we would certainly hope to continue to grow to get something back on our investment that we are placing in Gonzales.
We feel it would be undue harm to us.
“Q Do you intend to continue to operate in Gonzales and compete there with the $200,000 investment that Yoa-kum Federal has committed to you?
“A Absolutely. Our total business, as you can see by adding the savings and loans, exceeds 3½ million dollars. In fact, I believe it is almost 3.7 million.
We have that much to start with, and that is enough to sustain a branch, but I have a feeling that we will get a few more dollars and a few more loans.”
“Q So you knew — I think you indicated in response to Mr. McCalla’s question you already had enough business for it to be profitable, even if you didn’t get any more, I believe was your testimony on Thursday, wasn’t it, Mr. Matthew?
“A Well, we had enough to believe that we could — if it were not profitable land, we could make it so.
“Q So do I understand now that you determined that based on the existing business you had before you even filed the branch, that you were satisfied you were going to have enough business for that branch to be profitable?
“A Yes.”

Obviously, the potential loss of additional profits does not constitute a contention of undue harm in the statutory sense. That is the clear holding of the Texas Supreme Court in Gerst v. Nixon, 411 S.W.2d 350 (Tex.1966), where the Court said:

“In substance, the ‘injury’ resulting to Southeast Texas by the granting of a charter to a Livingston association would be related solely to competition for future business. The probable slowing down of the rate of growth of an existing association because of a lessened opportunity to obtain business in a prospectively developing area because of competition cannot be regarded as an injury to such existing association.” 411 S.W.2d 359.

The judgment of the trial court is reversed and judgment is here rendered reinstating the Commissioner’s order.

Reversed and' Rendered.

      . We are fully aware that there is a division of opinion in this case as to whether the possible inclusion of the federal facility into Gonzales County was taken into consideration by the Commissioner when he issued the 1976 order. For the purposes of this decision, we find this fact to be immaterial as it was fully considered at the second hearing in 1977.


author: HALL, Justice.

text:
    Carl M. FORD, Appellant, v. Lola SIMPSON, Appellee.
    No. 5889.
    Court of Civil Appeals of Texas, Waco.
    July 6, 1978.
    Rehearing Denied July 27, 1978.

      William R. Anderson, Jr. and David B. Anderson, Anderson & Anderson, Cleburne, for appellant.
    Robert M. Mahanay, Mahanay & Higgins, Cleburne, for appellee.
   HALL, Justice.

This is a suit in the nature of a declaratory judgment action for determination of the ownership of a tract of land of approximately 134 acres located in Johnson County.

On January 1, 1938, Bertie Smith executed a warranty deed to W. E. Jarrell conveying the tract in question. At that time W. E. Jarrell and appellee Lola Simpson were husband and wife. Mr. Jarrell died in April, 1938. Mrs. Simpson filed this suit in November, 1976, against appellant Carl M. Ford alleging that although the deed shows Mr. Jarrell to be grantee, the property was actually purchased and paid for with her separate funds and was and is her separate property, but that Ford is claiming an interest in the property as an asserted heir of Jarrell. Ford answered with the contention that the property was the community property of Mr. Jarrell and Mrs. Simpson, and with a detailed claim of ownership of an undivided one-half interest in the tract under our laws of descent and distribution (V.A.T.S. Probate Code, § 45) as Mr. Jarrell’s only surviving child by reason of a marriage by Mr. Jarrell before he married Mrs. Simpson.

Trial was to the court without a jury. Judgment was rendered declaring that Ford is the only surviving child of W. E. Jarrell; but it was further adjudged that the property in question is owned by Mrs. Simpson as her separate property. Material findings of fact were set forth in the judgment.

Ford appeals. He asserts the record is legally and factually insufficient to support the finding that the property was purchased with Mrs. Simpson’s separate funds, or the conclusion that the property is her separate property. We overrule those contentions, and affirm the judgment.

Mrs. Simpson testified that she and W. E. Jarrell were married in August, 1934. Her father, a dairyman, died in October, 1934. She and her sister equally shared the $1,000.00 proceeds of an insurance policy on her father. They also equally divided the dairy herd between them. Mrs. Simpson placed the $500.00 in an account in her name in the F & M Bank at Burleson, Texas, separate from the checking account she shared with her husband. She and Mr. Jarrell moved with the cattle onto the property and began renting it. They made a living milking the cows and selling the milk and cream. Mr. Jarrell did not own any property when they married nor when he died. In January, 1938, she bought the 134 acres from Mrs. Bertie Smith for $2,000.00, payable $500.00 down and $200.00 per year on the balance. Although the deed was taken in Mr. Jarrell’s name, the $500.00 she received as insurance proceeds from her father’s death was used for the down payment at the time of purchase. Thereafter, beginning in January, 1939, after Mr. Jar-rell’s death, she paid the $1,500.00 balance of the purchase price with money she received for milk and cream from her dairy herd. She has continuously lived on the property since its purchase, and lives there now with her present husband, Floyd Simpson.

George Bransom testified that he has been associated with the F & M Bank at Burleson since 1913. It was he who notarized Mrs. Bertie Smith’s signature on the deed of the sale of the tract in question. He knew Mrs. Simpson and her sister and her father, and he knew Mr. Jarrell. He knew that Mrs. Simpson and her sister each received $500.00 as proceeds of an insurance policy upon their father, and that Mrs. Simpson, then Lola Jarrell, placed her share in a separate account in her name at the Bank. He testified to the effect that Mrs. Simpson used her $500.00 “insurance money” as down payment on the purchase of the 134 acres from Mrs. Smith.

The testimony we have recited is legally sufficient to support the finding that although the deed was taken in Mr. Jarrell’s name, the property was purchased and paid for solely with Mrs. Simpson’s separate property. Reviewing the entire record, we hold that the finding is not against the great weight and preponderance of the evidence.

It is the general rule that where land is bought with the funds of one person but title is taken in the name of another, a trust results in favor of the person whose money was used in making the purchase. The one furnishing the money is the equitable owner of the land and the named grantee in the deed is a mere trustee and holds the land for the benefit of him who paid the purchase money. Cohrs v. Scott, 161 Tex. 111, 338 S.W.2d 127, 130 (1960). This rule applies in favor of the wife where, as in our case, land was purchased in the name of the husband but paid for with the separate funds of the wife. Parker v. Coop, 60 Tex. 111, 116 (1883); Blum v. Rogers, 71 Tex. 668, 9 S.W. 595, 597 (1888); Kinlow v. Kinlow, 72 Tex. 639, 10 S.W. 729, 730 (1889); Matador Land & Cattle Co. v. Cooper, 39 Tex.Civ.App. 99, 87 S.W. 235, 237 (1905, no writ); Penman v. Blount, 264 S.W. 169, 170 (Tex.Civ.App.—Beaumont 1924, no writ).

The judgment is affirmed.


author: CORNELIUS, Chief Justice.

text:
    Absebeth DUKE, Appellant, v. BROOKSHIRE GROCERY COMPANY dba Brookshire Food Store, Appellee.
    No. 8575.
    Court of Civil Appeals of Texas, Texarkana.
    July 11, 1978.

      Lynn S. Patton, Fisher & Patton, Long-view, for appellant.
    Frank 0. McClendon, III, Hathaway & Jackson, Tyler, for appellee.
   CORNELIUS, Chief Justice.

Ms. Absebeth Duke appeals from a summary judgment rendered against her in her suit for damages against Brookshire Grocery Company.

Ms. Duke was injured while shopping in Brookshire’s store when she was struck by a push cart loaded with eggs being delivered to the store by Ben Gibson, an employee of Gregg Poultry & Egg Company. Subsequent to the injury, on the 26th of November, 1975, Ms. Duke settled her claim for damages against Gregg Poultry & Egg Company and Ben Gibson for the sum of $17,500.00, and she executed a release which provided in part as follows:

“RELEASE IN FULL OF ALL CLAIMS
“FOR AND IN CONSIDERATION of the payment to Absebeth Duke of the sum of Seventeen thousand five hundred No/100 Dollars ($17,500.00), the receipt of which is hereby acknowledged, I/we, being over 21 years of age, do hereby release, acquit and forever discharge any and all claims against Gregg Poultry and Egg and driver Ben Gibson and all other agents, servants, and employees of Gregg Poultry and Egg, and any other persons, firms or corporations of and from any and all actions, causes of action, claims, demands, damages, costs, loss of service, expenses and compensation, on account of, or in any way growing out of, any and all known and unknown personal injuries ¿nd property damage resulting or to result from an accident that occurred on or about the 17th day of June, 1975, at or near Longview, Texas.
“THE UNDERSIGNED UNDERSTANDS AND AGREES THAT THIS IS IN FULL SATISFACTION FOR ALL DAMAGES ARISING ON ACCOUNT OF THE ABOVE DESCRIBED ACCIDENT AND WILL RECEIVE NO FURTHER SUMS OF MONEY AND THAT THE UNDERSIGNED AGREES TO NOT ASSERT OR PROSECUTE ANY FURTHER CLAIMS OR LAWSUITS THEREFOR AGAINST ANYONE WHOMSOEVER, WHETHER OR NOT HEREIN OTHERWISE NAMED, DESCRIBED OR IDENTIFIED. ANY AND ALL CLAIMS AGAINST PARTIES NOT SPECIFICALLY RELEASED HEREIN, IF ANY, ARE HEREBY ASSIGNED IN FULL TO THE PARTIES HEREBY RELEASED.

Thereafter, on August 6, 1976, Duke filed suit against Brookshire seeking damages for the same injuries. Brookshire answered by general denial and, with leave of the court, filed a cross-action against Gregg Poultry and Gibson, alleging that Duke’s injuries were caused solely by the negligence of Gibson. The cross-action sought full indemnity or, in the alternative, contribution from Gregg Poultry and Gibson should Brookshire be found liable to Duke. Gregg Poultry and Gibson answered the cross-action by general denial, and then filed a cross-action against Duke, contending that her action against Brookshire constituted a breach of the release agreement she executed in November of 1975. After some discovery was accomplished, Brook-shire moved for summary judgment on the basis of the release, answers to certain interrogatories and affidavits. The motion was granted and a take-nothing judgment was rendered against Duke.

The district court’s rendition of summary judgment denying Duke’s claim for damages against Brookshire can only be sustained, under the record before us, if the instrument she executed precluded her maintenance of the suit against Brookshire, thus leaving no material issue of fact to be decided. Duke contends here that, as Texas no longer follows the unity of release rule, the instrument she executed, as a matter law, did not release Brookshire, but was effective to release only those tort feasors named therein, to-wit, Gregg Poultry and Gibson.

In McMillen v. Klingensmith, 467 ' S.W.2d 193 (Tex.1971), our supreme court decided that the unity of release rule would no longer be followed in Texas, and that releases thereafter executed would be effective to release only those parties named or otherwise specifically identified therein. The instrument involved here provided that it released “ . . . any and all claims against Gregg Poultry and Egg and driver Ben Gibson and all other agents, servants, and employees of Gregg Poultry and Egg, and any other persons, firms or corporations . .” Brookshire is not named, and we hold that the phrase “and any other persons, firms or corporations” is only general identification at best, and does not fall within the term “otherwise specifically identified” as used in McMillen v. Klingen-smith, supra. Consequently, the instrument was not effective to release Brookshire.

But the instrument goes further. It provides that, “Any and all claims against parties not specifically released herein, if any, are hereby assigned in full to the parties hereby released.” It is the well settled rule in Texas that a cause of action for damages resulting from personal injuries may be sold or assigned, in whole or in part, as can any other cause of action except those where assignments thereof are expressly prohibited by statute. Bradshaw v. Baylor University, 126 Tex. 99, 84 S.W.2d 703 (1935); Galveston, H. & S. A. Ry. Co. v. Ginther, 96 Tex. 295, 72 S.W. 166 (1903); Friedman v. Martini Tile & Terrazzo Company, 298 S.W.2d 221 (Tex.Civ.App. Fort Worth 1957, no writ); McCloskey v. San Antonio Traction Co., 192 S.W. 1116 (Tex.Civ.App. San Antonio 1917, writ ref’d); Gulf, C. & S. F. Ry. Co. v. Eldredge, 80 S.W. 556 (Tex.Civ.App. 1904, no writ); Gulf, C. & S. F. Ry. Co. v. Miller, supra; Annot., 40 A.L.R.2d 509. If the owner of a cause of action assigns all of his interest therein, parting with both the legal and the equitable title, he cannot bring suit thereon unless he does so, in a representative capacity and upon proper authority, for the owner of the claim. Winn v. Ft. Worth & R. G. Ry. Co., 12 Tex.Civ.App. 198, 33 S.W. 593 (1896, no writ); 1 McDonald’s Texas Civil Practice, Sec. 3.03.2; 1 Tex.Jur.2d Actions, Sec. 5, p. 509; 6 Tex.Jur.2d, Assignments, Sec. 51, p. 444. As such an assignor no longer owns any part of the claim, he lacks that justicia-ble interest which is necessary to maintain any action. Compare: Hallman v. Safeway Stores, Incorporated, 368 F.2d 400 (5th Cir. 1966); Johnson v. Cofer, 113 S.W.2d 963 (Tex.Civ.App. Austin 1938, no writ); Amsler v. D. S. Cage & Co., Ml S.W. 669 (Tex.Civ.App. Beaumont 1923, no writ); Gulf, C. & S. F. R. Co. v. Bartlett, 75 S.W. 56 (Tex.Civ.App. 1903, no writ); Winn v. Ft. Worth & R. G. Ry. Co., supra; 1 McDonald’s Texas Civil Practice, Sec. 3.03.2. And although Brookshire is not a party to the assignment, it nevertheless is permitted to interpose it as a bar to Duke’s maintenance of the suit, for it has the right to require that the action be maintained only by one who has a legitimate interest therein. See, for example, East Texas Fire Ins. Co. v. Coffee, 61 Tex. 287 (1884); Gulf, C. & S. F. Ry. Co. v. Eldredge, supra; Winn v. Ft. Worth & R. G. Ry. Co., supra. Such a procedure does not allow a tort feasor to profit from his negligent act. Indeed, in a case such as this, where Brookshire has cross-actioned against Gregg Poultry and Gibson for indemnity and contribution, such an assignment might operate to the benefit of all concerned. Bradshaw v. Baylor University, supra. For without it, Gregg Poultry, which has paid damages satisfactory to the injured party, might be forced to pay additional sums if Duke recovers damages from Brookshire in excess of $17,500.00 and Brookshire then recovers indemnity against Gregg Poultry. On the other hand, no harm will be done if the assignment is enforced. Duke, who conceded in answers to interrogatories that there was no fraud, overreaching or wrongful conduct involved in taking the release and assignment, will have received what she obviously chose to accept as compensation for her injuries, and under Tex.Rev.Civ.Stat.Ann. art. 2212, Gregg Poultry will be able to recover indemnity or contribution if it establishes that Brookshire was partly or wholly responsible for the accident.

The assignment language in the release is sufficiently broad and explicit to divest all of Duke’s interest in the cause of action and vest it in Gregg Poultry and Gibson. Consequently, the district court properly rendered summary judgment against Duke.

The judgment of the trial court is affirmed.

      . For a thorough history of the common law rule and the effect of the adoption of Tex.Rev. Civ.Stat.Ann. art. 5525 thereon, see Gulf, C. & S. F. Ry. Co. v. Miller, 21 Tex.Civ.App. 609, 53 S.W. 709 (1899, no writ).

      . As for example, claims for workers’ compensation. Tex.Rev.Civ.Stat.Ann. art. 8306, Sec. 3.


author: O’QUINN, Justice.

text:
    Honorable John L. HILL, Attorney General of Texas, Appellant, v. LOWER COLORADO RIVER AUTHORITY et al., Appellees.
    No. 12811.
    Court of Civil Appeals of Texas, Austin.
    July 12, 1978.
    Rehearing Denied July 26, 1978.

      John L. Hill, Atty. Gen., David M. Kendall, Jr., First Asst. Atty. Gen., Douglas G. Caroom, Asst. Atty. Gen., Austin, for appellant.
    Fred B. Werkenthin, Dennis R. Reese, Small, Craig & Werkenthin, Austin, for Lower Colorado River Authority.
    James K. Nance, Melbert Schwarz, Jr., Rufus S. Scott, Baker & Botts, Houston, for Houston Lighting & Power Co.
   O’QUINN, Justice.

John L. Hill brought this lawsuit in September of 1977, “individually and as Attorney General of the State of Texas,” against the Texas Water Rights Commission, the Lower Colorado River Authority, and against Houston Lighting and Power Company as Project Manager for the South Texas Nuclear Project.

Hill alleged that suit was brought “ . . .. to seek review of an order by the Texas Water Rights Commission granting a contractual permit” to Houston Lighting and Power Company, based upon a contract between Houston Lighting, as Project Manager for the South Texas Nuclear Project, and the Lower Colorado River Authority. The petition further alleged that suit was brought “pursuant to Section 6.101, Texas Water Code, and Article 6252-13a, Section 19 (The Administrative Procedure and Texas Register Act).”

Twenty-six days after filing suit, and before answer was made by the Texas Water Rights Commission and other defendants, Hill filed an amended petition on September 28 naming as defendant, in lieu of the Water Rights Commission, the Texas Department of Water Resources which had been created by the Legislature, effective September 1, 1977, with contemporaneous abolishment of the Texas Water Rights Commission previously sued.

The Department of Water Resources answered pro se through Charles Nemir, its acting executive director, setting up a plea to the jurisdiction, special exceptions, and a general denial. The Lower Colorado River Authority and Houston Lighting and Power also answered presenting similar defenses, though more extensively alleged, and specific pleas in abatement.

The Attorney General pleaded, as further authority to bring this action in his capacity as the “duly elected Attorney General of Texas,” that “He brings this action pursuant to his constitutional, statutory, and common law powers individually and on behalf of the people of the State of Texas and its citizens, particularly those in the service area of the South Texas Nuclear Project, who are persons directly affected by the action complained of . . . ” by this suit.

Defendants below joined issue on this claimed authority by the Attorney General and urged their pleas in abatement on the ground that in bringing suit against the Department of Water Resources, to challenge validity of the order made by the Water Rights Commission, the Attorney General in effect abandoned his constitutional and statutory duty to represent the Department of Water Resources in any litigation in which it may be involved, and that such duty to the State and its agencies denied the Attorney General standing in court, individually and as a private citizen, to bring suit against the State agency.

The defendants also filed and urged pleas to the jurisdiction on the ground that the Attorney General failed to sue the proper State agency within the period allowed by statute following the order entered by the Water Rights Commission. The basis for such claim is that suit was filed originally, on September 2, 1977, against an agency (the Texas Water Rights Commission) which no longer existed, by virtue of revision by the Legislature of Title 2 of the Water Code, effective on September 1, 1977. The Attorney General failed to amend and name the proper agency and the correct agent for service until September 28, long after expiration of the time allowed by statute within which to bring suit.

The district court, Judge Ruel C. Walker presiding, overruled the pleas to the jurisdiction, but sustained the pleas in abatement and by order entered February 7, 1978, dismissed the Attorney General’s suit against Texas Department of Water Resources and the other defendants.

The Attorney General has appealed and brings the single point of error that the pleas in abatement were improperly sustained by the trial court “ . . . because the Attorney General of Texas has authority to initiate this action on behalf of the people of the State of Texas to obtain judicial review of the action of the Texas Water Rights Commission.”

We will overrule the point of error and will affirm judgment of the trial court.

The proceedings before the Texas Water Rights Commission, which ultimately reached adoption of the order of June 20, 1977, forming the basis for this litigation, began in January of 1974 with the filing by Houston Lighting and Power of an application for a permit to appropriate public waters of the State from the Colorado River and to construct cooling reservoirs in Matagorda County at the site of an electric generating plant, to be operated by steam generated from nuclear fuel. In filing the application Houston Lighting acted for itself and for electric systems owned by the City of San Antonio, Central Power and Light Company, and the City of Austin. The four electric systems, joined together as tenants in common, would collectively supply an area of south Texas constituting about one-third of the state and serve an estimated 5,000,000 users.

In view of prior water rights held by the Lower Colorado River Authority and to insure “a back-up supply” of water from the Authority’s reservoirs on the Colorado River, Houston Lighting negotiated a contract in the summer of 1974 with the Authority, after the Water Rights Commission had requested the parties to complete a formal contract before hearings on the original application were continued or completed. Subsequently, in January of 1976, Houston Lighting returned to the Commission seeking, under its application, a contractual permit for the water pumped for the project, at which time the Commission expressed concern that the Lower Colorado River Authority was not obligated under the contract with Houston Lighting to supply water stored in the Authority’s upstream reservoirs. Again the parties negotiated and reached further agreement which later met with approval of the Commission. In addition, the Authority voluntarily agreed to abandon its rights to 102,000 acre-feet of water, previously appropriated to the Authority under a permit which authorized impoundment of the water upstream of the project site and the use of such water.

In January of 1977, after the Commission, Houston Lighting, and the Lower Colorado River Authority had agreed upon settlement of the complex issues of this proceeding, the Attorney General made appearance before the Commission and interposed his opposition to the prospective action of the Commission to approve the application as finally reshaped by the parties under guidance of the Commission. Specifically, the Attorney General objected to grant of a contractual permit, and did not oppose the application of Houston Lighting in its initial form. The Commission nevertheless granted the application for a contractual permit based on the amended contract between Houston Lighting and the Lower Colorado River Authority. Concurrently with this action by the Commission, a transfer document, previously authorized and executed on behalf of the several co-owners in the project, was delivered to the Authority. This action transferred to the Authority the project’s interest in the 102,000 acre-feet appropriation acquired under the Houston Lighting permit just granted by the Commission, along with temporary appropriation of 500 acre-feet for use during construction of the plant.

The Attorney General filed motion for rehearing on grant of the contractual permit, although did not challenge the application as initially filed, and at the same time filed suit against the Commission in district court. When the Commission granted the motion for rehearing, the suit was dismissed at behest of the Attorney General.

Thereafter, upon hearing evidence on rehearing, the Commission for the second time adopted the order, entered June 20, 1977, which is involved in this cause.

The order of the Texas Water Rights Commission, which the Attorney General seeks to challenge, approved the transfer by Houston Lighting to the Authority of an appropriative permit previously granted to Houston Lighting by the Commission, and approved also the contractual arrangement under which Houston Lighting agreed to purchase water from the Authority. Thus it is clear that water proposed to be sold to Houston Lighting for the project is covered by a permit, and the only issue on the merits would be whether the action of the Commission is supported by substantial evidence and the Commission did not abuse its discretion in approving the transaction between Houston Lighting and the Authority.

The issue on this appeal is whether the Attorney General under the record has standing to raise the question of substantial evidence and abuse of discretion by the Commission.

The answer to that question must lie in the power granted the attorney general of this state by the Constitution of Texas and the State’s statutes enacted by the Legislature pursuant to constitutional authority. The Attorney General insists that, in addition, under common law the attorney general of this state has the right to “represent the people of the state” and has authority to act as the “lawfully constituted guardian of the public interest.” The Attorney General argues that “. . . the existence of the Attorney General’s common law authority is undeniable. If he lacked such authority, much of the state government would grind to a halt.”

The duties of the attorney general of this state as prescribed by the Constitution are:

“The Attorney General . . . shall represent the State in all suits and pleas in the Supreme Court of the State in which the State may be a party, and shall especially inquire into the charter rights of all private corporations, and from time to time, in the name of the State, take such action in the courts as may be proper and necessary to prevent any private corporation from exercising any power or demanding or collecting any species of taxes, tolls, freight or wharfage not authorized by law. He shall, whenever sufficient cause exists, seek a judicial forfeiture of such charters, unless otherwise expressly directed by law, and give legal advice in writing to the Governor and other executive officers, when requested by them, and perform such other duties as may be required by law. . . .” (Art. IV, sec. 22, Constitution of Texas)

In conformity with the clause “and perform such other duties as may be required by law,” the Legislature from time to time by law has prescribed other duties for the attorney general. For example, in addition to the mandate in the Constitution that the attorney general represent the State in the Supreme Court, the Legislature, in Article 4395, V.A.C.S., requires the attorney general to “prosecute and defend all actions in the Supreme Court or the Court of Civil Appeals in which the State may be interested.” (Emphasis added)

The Water Code, in at least five instances, requires some action by the attorney general of the state for and in behalf of the Texas Department of Water Resources, which is described in Section 5.012 as “an administrative agency of the State”:

(1) After providing for judicial review of orders, the Legislature further provided that if a plaintiff fails to secure proper service of process or does not prosecute suit within one year after its filing, the trial court shall dismiss the suit “on a motion for dismissal made by the attorney general .” unless good cause be shown for delay (Sec. 5.353);

(2) if a fresh water supply project is not being constructed in accordance with plan, and corrective action not taken after notice, the executive director of the Department must give notice to the attorney general, who is authorized to bring an action for injunction or quo warranto proceedings against directors of the water district (Sec. 12.082);

(3) if a levee is constructed without approval, the attorney general, at request of the executive director, “shall file suit in the District Court of Travis County to enjoin any violation . . .” (Sec. 16.238);

(4) at request of the executive director, the attorney general shall institute and conduct suits in the name of the State for injunctive relief or to recover civil penalties, or both, for violations of water quality requirements (Sec. 26.123(d));

(5)in similar manner the attorney general “shall institute and conduct a suit in the name of the State . . .’’in violations of the Solid Waste Disposal Act (Sec. 8(c), Acts 1977, 65th Leg., ch. 870, p. 2207, 2339).

The current appropriation Act, and the two biennial appropriation Acts immediately preceding the current Act, set up provisions for limiting representation of the State to performance by the attorney general. The current General Appropriations Act, effective September 1, 1977, obligates the attorney general to represent the Department of Water Resources, and other agencies, in any civil suit filed in district court in this language:

“COURT REPRESENTATION OF THE STATE. Except as otherwise provided by the Constitution or general or special statutes, the Attorney General shall have the primary duty of representing the State of Texas in the trial of civil cases, and none of the funds appropriated in this Act may be expended by any agency of the State Government to initiate a lawsuit or defend itself against any legal action unless such agency is represented in that particular action by the Attorney General or a member of his staff. . .” (Acts 1977, 65th Leg., ch. 872, art. 5, sec. 41, pp. 2699, 3160).

The Attorney General contends that the clause “and perform such other duties as may be required by law,” found in section 22, Article IV, of the Constitution, “should be construed to include both statutory and common law.” In this contention it is argued that as early as 1840 under the Republic of Texas the “Common Law of England” was adopted. (2 Gammel’s Laws 177) The present statute is Article 1, V.A.C.S., which states:

“The common law of England, so far as it is not inconsistent with the Constitution and laws of this State, shall together with such Constitution and laws, be the rule of decision, and shall continue in force until altered or repealed by the Legislature.”

The Supreme Court has construed the statute as not referring to the common law as applied in England in 1840, “but rather to the English common law as declared by the courts of the various states of the United States.” Southern Pacific Company v. Porter, 160 Tex. 329, 331 S.W.2d 42, 45 (1960).

In further support of the contention that the attorney general of this state may exercise authority accorded under common law to prevent the state government from grinding to a halt, the Attorney General argues that “Texas courts, absent some statutory restriction, have consistently recognized the Attorney General’s authority to utilize his common law powers.” The cases relied upon number close to a dozen, none of which involves an attempt by an attorney general to oppose the State in an effort to substitute his views for that of a lawfully constituted State administrative agency expressly authorized to make the disputed decision.

In the earliest case cited, State v. Delesdenier, 7 Tex. 76 (1851), the attorney general, pursuant to joint resolution of the Legislature, brought suit in behalf of the State to recover land claimed by the State never to have been granted by the sovereign. The Supreme Court held that the State had a right “to appear in her own courts and prosecute suits in her own behalf,” and that the “Executive of the State” had power “to cause legal proceedings to be instituted by the proper law officers . . . ” The Supreme Court concluded that “the joint resolution . . conferred upon the attorney general ample authority to institute the present suit.” (7 Tex. 96)

In five of the cases, upon which the Attorney General relies to show recognition by Texas courts of common law powers accorded the attorney general, the actions were against private corporations and not against the State. In none of these cases was an attorney general attacking a decision made by a State administrative agency-

A public charity trust, as opposed to a private trust, may be properly protected by the attorney general, such being a “function belonging to his office under the Constitution and laws of the state.” Power v. First National Bank of Corsicana, 138 Tex. 604, 161 S.W.2d 273, 284 (1942), citing Carroll v. City of Beaumont, 18 S.W.2d 813, 820 (Tex.Civ.App. Beaumont 1929, writ ref’d); Boyd v. Frost National Bank, 145 Tex. 206, 196 S.W.2d 497, 503 (1946).

A private citizen, though having potential interest in penalties imposed by statute, may not maintain suit for himself and in behalf of the State, without joinder of the attorney general or other proper official. Agey v. American Liberty Pipeline Co., 141 Tex. 379, 172 S.W.2d 972, 975 (1943).

Unless hurtful to the public, action on part of a corporation affecting private interests only may not be the subject of a suit by the attorney general, even under Article 4, section 22, of the Constitution. State v. Farmers’ Loan & Trust Co., 81 Tex. 530, 17 S.W. 60 (1891). A combination of fire insurance companies to fix rates and commissions, possibly not enforceable among them, and not in violation of antitrust statutes, though possibly subject to legislation as against public policy, was held not a proper subject of suit, even by an attorney general, to enjoin or forfeit a franchise. Queen Ins. Co. v. State, 86 Tex. 250, 24 S.W. 397, 406-7 (1893), reversing 22 S.W. 1048.

In two cases, advanced in support of the Attorney General’s claim of common law power recognized by courts, an attorney general sued in behalf of the State to abate nuisances directly affecting State public lands or State public waters. State v. Goodnight, 70 Tex. 682, 11 S.W. 119 (1888); Goldsmith & Powell v. State, 159 S.W.2d 534 (Tex.Civ.App. Dallas 1942, writ ref’d).

Finally, the Attorney General finds inexplicable comfort in Yett v. Cook, 115 Tex. 205, 281 S.W. 837 (1926), in which taxpayers bringing suit were denied standing to compel the mayor and members of the city council of Austin to call an election. The Supreme Court added: “Since the state can bring a mandamus suit similar in purpose to the one before us, it is elementary that the Attorney General has the power to institute such an action.” (281 S.W. 843) It is also elementary that suits against elected officials seeking to compel performance of a ministerial duty, as in Yett v. Cook, are not suits against the State. Laidlaw Bros. v. Marrs, 114 Tex. 561, 273 S.W. 789, 792 (1925); Morris v. Smiley, 378 S.W.2d 149, 151 (Tex.Civ.App. Austin 1964, writ ref’d n. r. e.).

The Attorney General finds comfort in gratuitous statements and dicta appearing in the opinion of the court of civil appeals (22 S.W. 1048, 1052, in Queen Ins. Co., supra, and the opinions in Yett (281 S.W. 843), and Agey (172 S.W.2d 974). But the Attorney General concedes that the recognition of common law authority believed to be found in the cases just reviewed “is interrupted by three cases . . . ” This reference is to cases we consider controlling in this appeal.

In Garcia v. Laughlin, 155 Tex. 261, 285 S.W .2d 191, 194, 195 (1955), the Supreme Court held that the attorney general did “not possess the power to institute” removal proceedings of a county official. The Court quoted from Article IV, section 22, of the Constitution defining the duties and powers of the attorney general to represent the State “. .in all suits and pleas in the Supreme Court of the State in which the State may be a party . . . and perform such other duties as may be required by law . . . ”

“The powers conferred by the Constitution upon the state officials,” the Supreme Court added, “are generally held to be exclusive, and except in the manner authorized by the Constitution, these powers cannot be enlarged or restricted.” In Laughlin the Court approved the holding in State v. Harney, 164 S.W.2d 55 (Tex.Civ.App. San Antonio 1942, writ ref’d w. o. m.), in which the court held that no constitutional or statutory provision “vests in the Attorney General the power, or makes it his duty, to institute actions for the removal of county officers under” Article V, section 24, of the Constitution, and that such power was vested in the county attorney. The Supreme Court pointed out that although the application for writ of error was refused for “want of merit,” that action by the Supreme Court of necessity approved the holding in Harney.

In the third case, which the Attorney General designates as one interrupting purported recognition by the courts of common law powers vested in the attorney general, the attorney general was held not to have powers beyond the authority “conferred upon him by the Constitution and statutes of the State.” State v. Reagan County Purchasing Co., 186 S.W.2d 128, 135 (Tex.Civ.App. El Paso 1944, writ ref’d w. o. m.). In that case the court adopted the following language from Harney: “As the powers and duties of the Attorney General are prescribed by the Constitution and Statutes, those powers must be limited to those so prescribed, and may not be enlarged by the courts.” Citing also Charles Scribner’s Sons v. Marrs, 114 Tex. 11, 262 S.W. 722 (1924).

In Scribner’s Sons the Supreme Court on motion for rehearing made clear that although the attorney general was charged with the duty to represent the State in certain matters, in this case, a suit brought by a textbook publisher against the State Superintendent of Education, the attorney general did not have authority “to elect for the state to accept or reject a contract for text-books that is voidable,” that discretion being lodged exclusively within the hands of the state board of education. (262 S.W. 729)

The Supreme Court held in 1975 “. . . that the Constitution of Texas confers on the Attorney General the authority to institute and maintain suit in the name of the State to restrain Bell [Southwestern Bell Telephone Company] from exacting unreasonably high charges for its intrastate telephone services in Texas, if such be the case.” (Emphasis added) State v. Southwestern Bell Telephone Compafiy, 526 S.W.2d 526 (Tex.Sup.1975). Contrary to the apparent view of the Attorney General in this appeal, the Supreme Court found such authority solely in the Constitution (Art. IV, Sec. 22) and did not invoke the common law to sanction such power.

We find in reviewing the cases decided by the courts of Texas a consistent adherence to the principle that the attorney general derives his power and authority in office from the Constitution and the laws of the State duly enacted by the Legislature. It is further apparent that the duties and powers of the attorney general as expressed in the Constitution and in the statutes consistently ally the attorney general with the State as its counsel and advocate in its behalf, and nowhere do these grants of power arm the attorney general with authority to sue the State or any of its arms or agencies, even when the attorney general holds a view different from the decision or discretion exercised by an administrative agency. We hold that the Attorney General, acting individually and as a private citizen or in performance of the duties of his office, does not have standing to institute and maintain this suit.

By cross points on appeal, the appellees urge that the trial court erred in overruling pleas to the jurisdiction grounded on the failure of the Attorney General to comply with statutory requirements that suit be filed against the Department of Water Resources within thirty days of the final order of the Water Rights Commission.

It is true, as observed earlier, that the Attorney General brought suit on September 2,1977, against the Water Rights Commission, after the effective date of the Legislative Act under which the former Water Rights Commission was abolished and the Department of Water Resources was made the proper agency as defendant. When the original petition was amended, on September 28, 1977, the thirty-day period allowed for bringing suit had expired.

Inasmuch as our holding that the Attorney General is without standing to file and prosecute this cause is controlling and disposes of the case, we find it unnecessary to consider the error claimed by reason of overruling the pleas to the jurisdiction.

The judgment of the trial court sustaining the pleas in abatement and dismissing the suit is in all things affirmed.

Affirmed.


author: HOWARD, Judge.

text:
    Patricia Gail MAGGARD, Administratrix of the Estate of Roy Darrell Maggard, Appellant, v. LOUISVILLE AND NASHVILLE RAILROAD COMPANY, Appellee.
    Court of Appeals of Kentucky.
    Feb. 4, 1977.
    John N. Cornett, Whitesburg, Carl E. McAfee, Edwin C. Gillenwater, Norton, Va., for appellant.
    Charles Landrum, Jr., Lexington, Ronald G. Polly, Eugene W. Herde, Louisville, for appellee.
    Before HOWARD, WHITE and COOPER, JJ.
   HOWARD, Judge.

This appeal involves a wrongful death-negligence action from Letcher Circuit Court in which the trial court judge granted a judgment N.O.V. on behalf of the appellee-defendant. The trial court found as a matter of law that the appellant was guilty of contributory negligence and instructed the jury that they could only find for the appellant-plaintiff if they believed that the appellee-defendant had the last clear chance to stop. In granting a judgment N.O.V., the trial court stated the following:

“As indicated in the cases above cited [General Telephone Company of Kentucky v. Yount, 482 S.W.2d 576 [567] (1972); Louisville and Nashville Railroad Company v. Vanderpool, Ky., 469 [496] S.W.2d 349 (1972)] the defendant does not have the last clear chance to avoid the injury unless the defendant actually knows the situation and realized or has reason to realize that the plaintiff will remain inattentive and the mere fact that the decedent is on the crossing is not alone sufficient to satisfy this requirement.”

On November 30,1972, Roy Darrell Mag-gard was employed by Letcher County, Kentucky as a road grader operator. Ven-son Halcomb was scheduled to go with him that day to clean out ditches and act as a flagman when necessary. Since he was late to work that morning, Roy worked alone spreading red-dog on a dirt road near Blackey, Kentucky. In order to get to where he was working, it was necessary for him to cross the main line and side track of the L & N railroad. There were no warning devices or markings at these two crossings.

Robert Flinchum, engineer of the train, testified that he did not see the road grader until after the train had hit it. It was Curtis Eversole’s, the head end brakeman, duty to watch the right side of the train. Eversole testified that he saw the road grader on the track and told Flinchum to blow the whistle. When he realized that the grader was not going to make it across the track in time, he told Flinchum to put the train in full emergency. The train did not stop until approximately 5-6 car lengths (44 ft. per car) past the crossing. As a result of the accident, the road grader was knocked off the track and on its side. Roy was injured and subsequently died.

The appellant contended that the crossing was a public one and being so the railroad was under a duty to blow its whistle as it approached the crossing which it did not do that day. The appellee claimed that the crossing was private and produced evidence showing that the landowner owned it. The trial court ruled as a matter of law that the crossing was a private one and that being the situation the railroad was under no duty to blow its whistle L & N Railroad Company v. Engleman’s Adm’r, 135 Ky. 515, 122 S.W. 833 (1909).

At a private crossing the only duty of a railroad is to exercise ordinary care to save a person from injury after his peril is discovered by those in charge of the train. The person crossing the track must exercise ordinary care for his own safety. Chesapeake and Ohio Railroad Company v. Hunter’s Adm’r., 170 Ky. 4, 185 S.W. 140 (1916). As to the last clear chance doctrine the railroad company was under a duty to do everything possible after it discovered Maggard’s peril, but is was not required to discover the situation any sooner. L & N Railroad Company v. Vanderpool, Ky., 496 S.W.2d 349 (1973). Considering all the evidence presented in this case, we find that the trial court acted properly when it found Maggard guilty of contributory negligence as a matter of law. L & N Railroad Company v. Fisher, Ky., 357 S.W.2d 683 (1962).

The judgment is affirmed.

All concur.